Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land

by Deborah Pearlstein

Let’s set aside for now the apparent reliance on the “unwilling or unable” exception to justify the U.S. invasion of Pakistan without that country’s consent – even without having asked the country for its consent. Let’s also set aside the apparent designation of the bin Laden operation as a “covert action” under U.S. law – when it’s not at all clear the operation was intended “to influence political, economic, or military conditions abroad,” as the U.S. law of covert action requires (as opposed to, for example, just killing or capturing bin Laden). The most troubling sentence in Charlie Savage’s new New York Times piece on the legal theory underlying the United States’ 2011 incursion into Pakistan to kill or capture Osama bin Laden is this: “While the lawyers believed that Mr. Obama was bound to obey domestic law, they also believed he could decide to violate international law when authorizing a ‘covert’ action, officials said.”

The Times piece very helpfully links directly to the basis of its statement that administration lawyers believed the President could disregard international law in covert actions – a set of written answers for the record that now CIA General Counsel Carolyn Krass prepared in response to questions surrounding her congressional confirmation hearing. Here’s the relevant exchange:

Q: In your answers to the Committee’s pre-hearing questions about the UN Charter and the Geneva Conventions, you wrote, ‘As a general matter, and including with respect to the use of force, the United States respects international law and complies with it to the extent possible in the execution of covert action activities.’ You also wrote that the U.N. Charter and the Geneva Conventions are NOT self-executing treaties, and therefore they are NOT legally binding upon actions carried out by the U.S. government, including covert actions. If, as you wrote in your answers to the Committee’s pre-hearing questions, the U.S. respects international law and complies with it to the extent possible in the execution of covert action activities, how does the U.S. decide when to abide by international law and when it does not apply?

A: When reviewing covert action activities, the CIA General Counsel works with senior lawyers from the other departments and agencies, … both to ensure that the proposed covert action activity does not violate U.S. domestic law and to identify any potential violations of international law. This review also considers whether there is a domestic legal requirement to follow provisions of international law in the execution of covert action activities—for example, if there are any relevant treaty provisions or principles of customary international law that have been implemented in a domestic statute. If there is such a domestic legal requirement, that requirement must be complied with. As the question indicates, I earlier stated that, as a general matter, the United States respects international law and complies with it to the extent possible in the execution of covert action activities. If confirmed, I would ensure that the Director is informed of the international law implications of proposed covert action activities to enable policy discussions regarding whether to recommend that the President nonetheless authorize the covert action activity.

Savage’s article describes this understanding of the inapplicability of international law to covert actions as a “trump card” in the lawyers’ pre-raid analysis – meaning that even if one did not buy the “unwilling or unable” theory, or anything else about the raid, it wouldn’t have mattered. The UN Charter and the Geneva Conventions are non-self-executing treaties under U.S. law, the theory is, so the President is not legally bound.

This view embraces a fundamental misunderstanding of the doctrine of self-execution, before and even after the Supreme Court’s 2008 decision in Medellin. A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without implementing legislation. Non-self-executing does not mean non-binding as law, nor could it. The Supremacy Clause is clear: “The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made … shall be the supreme law of the land.” The President would never suggest, for example, that because Bivens actions are not available to enforce some violations of the Constitution against the federal government – that the Constitution itself is not binding on the President. Quite the contrary, the President is legally bound by his obligations under the Constitution, and under “all treaties made,” no matter what subsequent enforcement mechanisms may be available.

That the CIA has a deeply troubling view of its duty to comply with U.S. treaty law signed by the President and ratified by the Senate is not exactly news. As I discussed here in commenting on former CIA General Counsel Stephen Preston’s 2012 speech on U.S. drone strikes, agency lawyers have bent over backwards to say they embrace practices “consistent with” U.S. legal obligations under the Geneva Conventions and the like – not that CIA actually, simply, complies with them. But it should. Covert action or no, treaties remain the supreme law of the land.

http://opiniojuris.org/2015/10/28/contra-cia-non-self-executing-treaties-are-still-the-supreme-law-of-the-land/

7 Responses

  1. Whilst I agree with your analysis. I would just like to point out that (and I doubt that you disagree, but feel free to do so) the major point here is that as a matter of international law, if it is a violation of a treaty (or custom), domestic constitutional issues are not salient. Domestic law is no defence as a matter of international law.

  2. Deborah, great post, although not sure I agree. Do you have a view on the President and Customary International law? Is it different from your view on treaties?

  3. Thanks Julian. The Paquete Habana has this suggestion of treating customary law differently than treaties, so I at least understand why there’s been a debate about the President’s duty to comply with it. But there can be no such debate about his duty to comply with treaties that we have duly signed and ratified. And there’s no question that it was treaties – the UN Charter in particular – at issue here.

  4. And Rob, yes of course agreed.

  5. Although the Supremacy Clause is technically applicable to the states and they are bound by “all” treaties (not some of them, the one’s they like, etc. — see http://ssrn.com/abstract=1484842 and the many federal and state court cases cited therein re: treaties as well as CIL), the President is expressly bound under the U.S. Const., art. II, sec. 3, to faithfully execute the “Laws,” which have included treaty-based and customary international law since the Founder and Framers. see the many cases in http://ssrn.com/abstract=1485703 The unanimous views of the Founders and Framers, the text of the Const., and the overwhelming recognitions in federal cases demonstrated that the President and all members of the Executive branch are bound by international law, especially the laws of war. See, e.g., ibid. One of the nine false claims of the Bush/Cheney regime was that the President is not bound by international law (see http://ssrn.com/abstract=1989099 esp. at 67 & n.14 ).
    The Paquete Habana is precisely one of those Supreme Court cases that recognized that presidentially-approved conduct during war with respect to aliens abroad was violative of the laws of war! Three years later, Holmes upheld the result. See 34 Va. J. Int’l L. 981 (1994) and 14 UC Davis J. Int’l L. & Pol’y 205, 240-45 (2008).

  6. Deborah,
    THe CIA lawyers get that sense of impunity because they are not prosecuted for the crimes they allow. Slap one of them in jail for their advice and they will feel that bite of international law. I do believe that they are studiously avoiding going abroad which suggests that they are cognizant that this law does bite, notwithstanding their bravado when hanging out among those in the US. The might think about their analysis being applied by every other sovereign in the world or the invoking of the rule of reciprocity by another sovereign based on their analysis. Reciprocity is a killer.
    Best,
    Ben

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