So It’s Settled: The President Can Violate Customary International Law

by Julian Ku

There is a lot of interesting material revealed in the Charlie Savage NYTimes article on the legal justification for the Bin Laden raid (including how the Attorney General and Office of Legal Counsel were kept in the dark and out of the loop).  But I want to focus on one paragraph in the article, which explained the lawyers’ backup justification for their conclusion:

There was also a trump card. 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.

Deborah has done some very good analysis here on the CIA’s views on this question, as applied to non-self-executing treaties. I think that is a tricky question. But there is also an easier question that was also probably settled in the lawyers’ legal memos.  Like the Bush administration lawyers, the Obama Administration lawyers concluded that the President can choose to violate that customary international law without violating the Constitution or other domestic law.

Although this may seem obvious, it used to be a highly contested question.  I dug up this discussion from a 1986 panel between leading international law scholars Louis Henkin, Anthony D’Amato, Michael Glennon, Abe Chayes and others.  Almost none (even President Reagan’s legal adviser Abe Chayes) would have openly admitted that the President could violate customary international law. The Restatement of U.S. Foreign Relations Law suggests, but does not completely endorse the view that the President can openly violate customary international law.  Indeed, there used to be a fair number of law review articles explaining why the President’s obligation to “Take Care” that the laws are faithfully executed include customary international law. But, if Savage’s reporting is accurate, the U.S. government (under both George Bush and Barack Obama) is no longer troubled by this question, and has moved on. So should the rest of us, apparently.

http://opiniojuris.org/2015/10/29/so-its-settled-the-president-can-violate-customary-international-law/

13 Responses

  1. Julian: No Founder, No Framer, No Supreme Court Justice has ever stated that the President is not bound by treaties or customary international law. There are a myriad of federal cases with holdings and dicta that the President and all members of the Executive are bound by CIL. See, e.g., In Their Own Words: Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14 UC Davis J. Int’l L. & Pol’y 205, 240-45 (2008), available at http://ssrn.com/abstract=1485703
    p.s. check out those “others”

  2. Julian: if Presidents Bush and Obama are not troubled with a claim that the President can violate Article II, Section 3 of the Constitution (the duty faithfully to execute the laws), and President Bush has admitted indirectly that he has done so (he admitted in Sept. 2006 that he had a “program” of “secret” detention [a war crime and a crime against humanity] and tough interrogation tactics [many of which were war crimes, violations of the CAT, and violations of human rights law, including Article 56 of the U.N. Charter) why should we simply “move on”?

  3. Seems to me that the answer is much less complicated than what you are proposing Julian. The lawyers who wrote that are wrong – or more prosaically – domestic legal assholes. A lawyer asking lawyers to just move on because of legal aberration is somewhat laughable. Just remember that if we move on, then every sovereign can move on and in every area of customary international law. That does seem a bit breathless to ask of the world my friend. Just to cover for two Presidents and their ignorant asshole lawyers.
    Best,
    Ben

  4. The NYT reports: 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.

    What if we interpret “bound to obey” to mean “subject to a U.S.-court injunction enforcing”? Has a U.S. court ever enjoined the executive’s violation of customary international law? I would be surprised if so. Under this view, there’s no domestic obstacle to a presidential decision to violate customary international law.

    Of course, this has no impact on the international legal consequences of the decision. In this case, Pakistan and/or Saudi Arabia could invoke U.S. responsibility. The President has no authority to avoid that.

  5. Douglas,
    International law is part of the domestic law, so the lawyers are wrong that there is no domestic law – there is customary international law our courts have applied – my goodness look at Paquete Habana back in the day.

    Subject to a US court injunction would leave out every single domestic law that a court has not had to enforce. Thus sophistry makes no sense unless the sleight of hand is to write a story for a President that slips any constraint. If that is the game then just say Presidential Constitutional Power trumps everything in US domestic law and international law and as long as Congress does not impeach the President the President can do what he/she pleases.

    I wish some people would get international law training and not just US foreign relations law training from apologists for Presidential authoritarianism captured by their narrow careerist ambitions of pleasing the master.

  6. PS I am always mystified by domestic logic that says the the President is not boing by customary international law. I mean the United States itself is bound by international law – for these same folks recognize the disputes that could arise between the Unitrd States and another country over a violation of some aspect of international law.

    So for the folks that say the President can violate, it sure looks to me that as the President is part of the jurisdiction to enforce of the United States as a sovereign the argument is really saying the jurisdiction to enforce of the United States operates without being bound by customary international law.

    What a claim of the sovereign’s lawyer! And from where does that sovereign get their power? From the people. That is the nature of this public trust position. Does the public trust include the violation of law that binds the United States? That sounds more like betrayal of the public trust.

    Fuck these lawyers.
    Best,
    Ben

  7. About 140 years ago at Berlin, the Powers of the time drove a nail into the whole concept of international law at the Congress of Berlin. It set the pattern for international law’s in ability to full fill what it original intention was supposed to have achieved. We have not outlived that legacy.

  8. Douglas: Ben is correct. Se the many cases in the click-ons as well as http://ssrn.com/abstract=1487770 quoted elsewise in Hamdi.

  9. I didn’t understand Julian as endorsing the position as much as lamenting it – evidenced by the sarcastic ‘apparently’ tacked on at the end.

    I agree with Benjamin’s points overall, though. Simply because the president ‘can’ violate the law, doesn’t speak to legality of the act. I could steal a car, or cheat on my taxes. The US, as a super, nuclear power, with the most expensive military on the planet, does what it wants – and accountability for its breaches of international legal obligations is non-existant (Guantanamo, waterboarding, killing ‘terrorists’, invading Iraq, etc.). [I’m not suggesting the US is alone in this, by any stretch]

    But what troubles me as much as the contorted legal arguments is the blatant hypocrisy. US diplomatic representatives rail against other governments for violating customary international law ALL THE TIME. Imagine the US response if those countries replied, “Of course we can violate CIL, doing so isn’t contrary to our domestic law.”

  10. First, Abe Chayes was legal adviser to John F. Kennedy, not Ronald Reagan. The lawyers you cite from the Hill hearing were all fine people, but they were liberal-to-left and certainly not sympathetic to the Reagan Administration.

    Second, in response to Ben’s comment that “International law is part of the domestic law,” the Paquete Habana said it was part of “our law,” not “our domestic law.”

    The Supremacy Clause declares that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . .” It thus draws a distinction between domestic laws enacted by Congress (which are binding only if “made in Pursuance” of the Constitution—which I would argue excludes statutes that infringe upon the constitutional powers of the president (John Marshall said in Marbury: “[A]n act of the Legislature repugnant to the Constitution is void”)—and legal obligations incurred by treaties. Like the Constitution, both are part of the “supreme Law of the Land,” but they are different categories.

    The president is bound to see the laws “faithfully executed,” which obligates him to obey the Constitution and carry out the will of Congress expressed through valid statutes—and also empowers him to determine the meaning of any ambiguities in the statute (subject to the ultimate interpretation by the Supreme Court, of course).

    In the event of a conflict between acts of Congress and the president, on domestic issues the Court has repeatedly made clear (in opinions embracing Jackson’s Youngstown concurrence) that the Congress wins. The case in foreign affairs is in my view less settled, as there appears to have been a consensus among Madison, Hamilton, Washington, Jay, Jefferson, Marshall, and many others that the “exceptions” to the president’s general control over foreign intercourse pursuant to his grant of the nation’s “executive Power” were to be construed strictly and not extended by implication. Thus, I would argue, in the foreign affairs realm the president wins unless the Constitution gives Congress clear authority to act. (Congress does have considerable authority in this area. But to mention one example, Senator Obama’s effort to block G.W. Bush’s “surge” in Iraq—calling up reserve forces during a conflict clearly authorized by Congress—was in my view a clear usurpation of the Commander-in-Chief power. As the Court noted in Hamdan, “[N]either can the President, in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President… . Congress cannot direct the conduct of campaigns . . . .” Similarly, appropriations conditions that simply declare that no funds shall be available unless the president yields his constitutional discretion to Congress (e.g., U.S. v. Klein) are unconstitutional and thus void.

    Although both Jefferson and Hamilton argued that Congress would be constrained both by the Constitution and our treaty obligations, the Supreme Court in Whitney v. Robertson embraced the view that a more recent law trumps a prior inconsistent treaty (and visa-versa). Both presidents and Congress have historically acted contrary to treaty obligations, and with respect to customary international law it is useful to recall Justice Gray’s language in the Paquete Habana:

    “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of eivilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat.”

    This suggests that for purposes of United States law [and I emphasize that context, as when we violate conventional or customary international law we violate that law], the Supreme Court will apply customary international in cases where the president, Congress, and the courts have left a matter undecided. (Note also the reference to “questions of right” here—which is consistent with the view that, absent an issue involving the rights of individuals, decisions involving the meaning of international agreements are political questions entrusted to the political departments.)

    In Marbury, CJ Marshall remarked:
    “By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

    “In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the Courts.”

    Jefferson made a similar observation in his memorandum on his conversation with Citizen Genet, when he argued that there were few disputes concerning treaties of which the Supreme Court could take notice. These were political questions left to the discretion of the president. (As a Federalist member of Congress, John Marshall made the same point during the 1800 debates on the Jonathan Robbins affair.)

    Finally, while I was a strong and early critic of the abuse of detainees through “enhanced interrogation,” [http://www.washingtonpost.com/wp-dyn/content/article/2007/07/25/AR2007072501881.html] it is not clear to me that in a non-international conflict like the struggle against al Qaeda having a program of “‘secret’ detention” is “a war crime and a crime against humanity.” There are many legitimate reasons for keeping the location of detention facilities “secret” during wartime, including trying to reduce the risk they will be attacked by the enemy to free detainees. I don’t disagree that waterboarding and any other “inhumane” treatment of any detainees in armed conflict violates the clear language of CA 3 and thus violates some of our most solemn international treaty obligations. But if detainees are well treated, I’m not aware of any treaty obligation or judicial rule that makes the existence of a hidden detention facility a “war crime.”

  11. The last-in-time rule’s application to treaties is replete with constitutional problems. See Martin, The Constitution as Treaty 135-47 (Cambridge Univ. Press 2007); Jordan Paust’s numerous articles. Furthermore, I believe that SCOTUS has never held that the voluntary law of nations) can constitutionally be superseded by congressional act. Indeed, it has stated in dictum that Congress cannot. See U.S. v. Macintosh.

  12. Response…It is suggested at one point the end of the comment here is somewhat sarcastic. I’d hope so but don’t know. Simply put, covert operations is an area where law is probably bent and realizing this and putting it in some perspective (Bin Laden’s death vs. torture to me not quite comparable, e.g.) doesn’t stop it from being ‘troubling.’ I don’t even know if the Obama Administration is not “troubled” by it though what good that does us (Bush: rather not go to war, it’s troubling, but just have to do it) is unclear.

  13. Bob,

    “Second, in response to Ben’s comment that “International law is part of the domestic law,” the Paquete Habana said it was part of “our law,” not “our domestic law.” ”

    Good point. The Supreme Court said that international law is part of our law.

    The rest of your presentation is an effort to try to make it appear that customary international law is not part of our domestic law that courts apply. That is precisely what the Supreme Court did in Paquete Habana – apply customary international law as part of our domestic law and overriding the Executive position taken. Seems to me that looks like an application of it as a matter of internal/domestic law.

    Moreover, several years ago David Sloss did some early period research of late 18th century and early 19th century decisions in which – if memory serves me well – he documents the overriding of statutes by US courts based on international law that as I remember was customary international law.

    Sorry can not engage farther right now due to time constraints, but wanted to at least give the courtesy of a partial response.

    Best,
    Ben

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