Author Archive for
David Golove

Response to Professor Kent’s Post

by David Golove

I want to thank the editors of Opinio Juris for hosting this forum and inviting me to participate, the editors of the Volume under review for their magnificent work in putting together such an impressive and comprehensive set of essays, and Andrew Kent for his thoughtful response to my contribution to the Volume.

Let me here take up the two main criticisms that Professor Kent helpfully offers in response to my essay. The fundamental claim of my contribution is that, while departing from past doctrinal precedents in significant respects, the Supreme Court’s War on Terror cases faithfully carry forward, in changed circumstances, a deep American constitutional tradition going back to the Founding, which, optimistically, I dub our Just War constitutional tradition. The core commitment of this tradition is to the civilized conduct of war in accordance with law. Some of its key doctrinal tenets – designed to implement the fundamental commitment to civilized warfare – were, I claim, a recognition that both the Executive and Congress were constitutionally obliged to conduct war in compliance not with the Bill of Rights (which is part of the municipal law) but with the international laws of war (which comprised the rules of civilized warfare), and, further, that the courts were to play a role both in developing the content of the laws of war and in enforcing those rules (in some contexts) against executive and military officials. However, beginning with the Cold War and with increasing intensity in its aftermath, brought dramatically into view by the War on Terror, these doctrinal tenets have slowly lost much of their force. Most importantly, the status of international law in the domestic constitutional order has been consistently downgraded and is now tenuous at best. This development, with which everyone who follows Opinio Juris is familiar, was reflected most consequentially in the Bush Administration’s open denial that the President is obliged to comply with the laws of war in conducting the War on Terror. Moreover, the emergence of a global terrorist threat, conceived of, novelly, as a “war,” stretched the traditional laws of war to the breaking point. These developments threatened to undermine – indeed, to flip on its head – the Just War constitutional tradition. My argument is that the Supreme Court’s War on Terror cases were a partially successful effort to recapture the fundamental goals of the Just War constitutional tradition, even as the Court departed from some existing doctrinal understandings.

It seems that Professor Kent is dubious about whether the doctrinal tenets I have identified with the Just War tradition were actually ever in place. However, for reasons of space, he focuses on what he rightly takes to be the most controversial claim – that even Congress was constitutionally obliged to follow the laws of war. Of course, this claim flies in the face of contemporary constitutional understandings and much (though not all) scholarship and conventional wisdom about the origins of the “last-in-time” rule. Professor Kent points, in particular, to a number of Marshall Court opinions which he reads as affirming Congress’ constitutional power to disregard international law. In my view, at least some of these opinions should be stricken from the litany of citations for the last-in-time rule, because they simply do not support it. This is a point that many have already made about, for example, The Nereide (1815). More importantly, none of these cases deal with the scope of Congress’ constitutional power but, at most, with the scope of judicial review, which is a wholly different matter. It may be that the Court would have been wary about its own authority to strike down legislation as in conflict with the laws of war, but that says nothing about the “Constitution outside the Courts” and the longstanding understandings in Congress and among leading constitutional authorities about the limits on its constitutional powers over war.

Professor Kent’s second point expresses skepticism about my claim that the courts played an active role in supervising executive war measures. In particular, he doesn’t accept my analogy between 18th and 19th century prize jurisdiction over wartime captures of property at sea and Rasul and Boumediene’s affirmation of judicial jurisdiction over wartime captures of persons. I’m glad that he raises this point, because I take this analogy to be central to the essay. In my view, prize jurisdiction has many important implications for debates over Rasul and Boudemiene. Let me focus on two. First, it shows that, contrary to what many seem to believe, the judiciary is not incompetent to exercise jurisdiction over military measures or, at least, that American constitutional tradition suggests just the opposite. For a century and a half, the judiciary was actively engaged in supervising executive wartime measures both as to matters of fact and law, and, moreover, the matters in which it became involved were sometimes both highly controversial and of signal importance to U.S. military strategies and interests. The judiciary took a leading role in developing the law of neutrality – a crucial part of the laws of war – and it applied rights derived not from the Constitution but from international law to executive military measures. Second, a close look at the 18th and 19th century practice shows that judicial jurisdiction was generally affirmed in those contexts in which it was most needed and the judiciary was most suited to the task. In particular, subject to practical constraints, the courts exercised jurisdiction in those contexts where disputes of fact were most likely to arise and in which considerations of reciprocity were least likely to bring about reliable executive compliance with the laws of war. While in the 18th and 19th centuries, those conditions were present most dramatically in the context of wartime seizures of neutral vessels for allegedly engaging in violations of neutral duties; in our time, and in the context of the War on Terror, these considerations apply most forcefully to military detentions of suspected terrorists. Hence, Rasul and Boumediene should rightly be seen as carrying forward, in contemporary circumstances, this earlier practice.

I am a bit uncertain about exactly in which respects Professor Kent disagrees with these claims. He seeks to explain active judicial involvement in prize cases as arising out of constitutional authorization and perhaps command as well as out of legislation and executive proclamations. Of course, that doesn’t explain why prize jurisdiction was so uncontroversial in the first place or its function within the larger constitutional system applicable to war. In any case, although I don’t disagree with this point, I take the issue in Rasul and Boumediene to be precisely whether to interpret relevant legislation (22 U.S.C. § 2241) and the Suspension Clause of the Constitution as commanding or authorizing judicial jurisdiction over detentions. Without engaging in methodological disputes over interpretation, I take my points to go to the proper interpretation of those provisions, countering arguments about historical practice and the competence of the judiciary in military contexts and offering affirmative support for judicial review where certain conditions (e..g., disputes of fact/lack of reciprocity) are present. Professor Kent also suggests that active judicial review in prize can be explained by the need to protect the titles of captors to the property they seized. I think this claim is, as an historical matter, seriously deficient as a general explanation for the emergence of prize jurisdiction, although it was in the mix, but I’m also uncertain how the point is relevant to the issues. It may be that Professor Kent is suggesting that the titles issue meant that there was a strong national interest in judicial jurisdiction in the prize context that is missing from the contemporary detention context. But that surely is a controversial claim. Putting aside the question of the importance of the national interest in clearing title to prizes, it is undoubtedly the case that the members of the majority in Rasul and Boumediene understood the national interest to support judicial jurisdiction over detentions, and I suspect that many observers, myself among them, agree (although others, equally certainly, disagree). (Putting the point narrowly, just as prize jurisdiction helped establish clear title in captors to seized property in foreign courts, so too Boumediene jurisdiction may help immunize U.S. government and military officials from potential civil and criminal liability in foreign courts). Of course, assessments of the national interest will diverge, but I don’t see any reason to believe that the national interest was uncontroversially present in one case and absent in the other. In any case, my argument is only that the Court’s decisions, including its extension of judicial jurisdiction, should be understood as efforts to carry forward our Just War constitutional tradition – which embraces civilized warfare under law – in the face of many legal, jurisprudential, political, and technological developments that render the traditional doctrines incapable of supporting it.

Again, let me thank Opinio Juris for inviting my participation and Professor Kent for taking the time to make thoughtful comments on my essay.

More on Normative Puzzles

by David Golove

I’d like to pick up on the thread begun by Tim and Peter. Kal’s discussion of the Insular Cases follows the traditional understanding that places them in a normatively negative light, as important constitutional facilitators of colonialism and as reflecting the era’s racism. Clearly, it was both of those things, though it is worth noting (depressingly) that the anti-imperialism movement was itself, to a considerable extent, infused with (and indeed propelled by) racism. At least since Eisentrager and Reid, however, much of the focus of criticism has been on the Court’s willingness to apply the Bill of Rights only partially (on a kind of natural law theory) to the insular territories. Why should non-white persons be entitled only to a lesser bundle of constitutional rights? Yet, as Peter points out, the main impact, at least as I understand it, of the Court’s ruling about the Bill of Rights was that the jury trial right did not apply in Puerto Rico and the other insular possessions, and that ruling seems at least plausible, and perhaps justified normatively, in view of the different (civil law) traditions that predated the U.S. conquests. So, my question is, did the Court’s failure to find the Bill of Rights applicable in full actually facilitate violations of basic rights in the territories, and would overruling <em>Downes </em>and its progeny in this respect be a significant improvement from a human rights perspective? My intuition is that the Bill of Rights ruling was not the normatively most problematic aspect of <em>Downes</em>. One might point, alternatively, to the (constitutional) economic implications of “non-incorporation” as more crucial, but, here again, it is not clear, at least to me, whether non-incorporation was more a privilege than a burden on the citizens of the territories. A final possibility is that what was really crucial was the understanding that the insular possessions were not on even the slow track to statehood and that their citizens, therefore, had no expectation of exercising political rights in the United States. In this respect, the decisions marked a great divergence from prior understandings during the westward expansion, and it opened the possibility that the United States could hold these territories as colonies in perpetuity. That sounds pretty bad, but even here, one might point out that incorporation might have been worse. Consider the fact that Puerto Rico still has not opted for statehood, and the Philippines presumably prefers the fact that it achieved independence rather than unbreakable membership in the U.S. political system. In any case, my point is that I’m really puzzled by the normative issue. I’m hoping Kal can enlighten us on this point? . . . .

The Origins of the Non-Extraterritoriality of the Bill of Rights

by David Golove

Kal deserves a hearty congratulations on the publication of Does the Constitution Follow the Flag. The book is really a tour de force. Kal offers a sweeping treatment of over two centuries of legal thought respecting territoriality in its multiple manifestations; situates his discussion in wider political, economic, and intellectual developments during this same period; brings out the subtle internal linkages between the various legal doctrines he traces; and offers a larger framework for thinking about the issues going forward. Despite its technical subject matter, moreover, the book is highly readable. Nevertheless, because praising a book quickly becomes boring (for everyone other than the author!), I will try to bring out some differences in our assessments of at least part of the historical materials he discusses – in particular, those which concern the question of the extraterritorial application of the Bill of Rights.

One of Kal’s core claims is about the fundamentality of territoriality in the development of U.S. law, including with respect to the application of the Bill of Rights to aliens overseas. The importance and topicality of this question will obviously not be lost on anyone. Kal follows conventional contemporary jurisprudence in thinking that territoriality provides the key to understanding historical ideas about the scope of application of the Bill of Rights. Because under the Westphalian model of sovereignty, accepted from the Founding through the 19th Century, law was strictly territorial, it followed, in Kal’s account, that the Constitution, like the laws of the United States more generally, applied only in the sovereign territory of the United States. . . .

The President and the Interpretation of International Law– A Reply to Ku

by David Golove

[Opinio Juris welcomes Professor David Golove of New York University School of Law as a guest respondent. Professor Golove’s teaching and scholarship is focused on the foreign relations law of the United States and on constituional law.]

In his recent post, Julian asks whether the President has domestic constitutional authority to adopt a “new” interpretation of the laws of war. Even if Congress and the Judiciary have some countervailing authority in this respect, Julian suggests that the President should, at least, get a first crack at offering his own approach.

Of course, it couldn’t be more obvious that the President does have a first crack, at least as a practical matter, though he may be and indeed has been overruled by both Congress and the Judiciary from time to time (frequently in recent years). The President’s duty faithfully to execute the laws presumably gives him substantial authority, at least in the first instance, to adopt new good faith interpretations of customary international law. As Commander-in-Chief, he interprets the laws of war and makes those interpretations binding on U.S. military personnel by, inter alia, issuing military manuals. I can’t imagine why Julian thinks that this question is up for grabs.

Probably, though, Julian is contemplating a case where the President is actually violating the existing laws of war, offering not a good faith “interpretation” but a new (and presumably, from the President’s perspective, preferable) rule altogether. So, the real question is whether the President has domestic constitutional authority to violate existing customary international law. But Julian is actually not putting the question quite so broadly. Rather, he asks more narrowly whether the President can violate the laws of war in an effort to change the content of the law, which, of course, is an accepted method for changing customary international law. It seems that Julian thinks that the President should have this power. Julian may also believe that the judiciary ought to be bound by the President’s legislative choices and even, perhaps, that Congress ought to be as well (since the laws of war govern “the conduct of campaigns” in John Yoo’s expansive sense).

Of course, as anyone who has looked at the 18th and 19th century history on this point will easily recognize, Julian is wise to avoid making the broader claim that the President has constitutional authority simply to violate customary international law for any reason at all. That view would be radically out of step with original understandings and with constitutional developments over most of U.S. history. For those who think original understandings and/or historical practice are to be given great weight, this stubborn fact seems to present a large obstacle to embracing such a view.

Julian’s narrower claim, however, is more complicated. As an initial matter, it is worth noting that in recent years the President has not generally acted in a way designed to change “customary international law.” The process of customary international law formation, at a minimum, requires some degree of transparency and public justification. The Bush Administration has often preferred to act on the basis of secret legal memoranda and to offer persistent denials and obfuscation about the conduct in which it is engaging and which, if we take Julian seriously, the President is seeking to legitimize from a legal point of view. If the Administration is unwilling to acknowledge its behavior and justify its actions publicly and forthrightly, then the President is not genuinely seeking to change the law. He is just flouting it.

But returning to Julian’s main claim, it would seem that the most plausible basis for his view which he doesn’t really seek to justify only to suggest builds from the substantial role that the President actually and inevitably plays in the development of customary international law principles. If the President may play such a role when existing law is uncertain or legitimately contested, why shouldn’t he have authority simply to violate the laws of war altogether, at least if he is seeking to establish a new rule in its place?

The reason, I believe, is that this argument, instead of seeking to make a virtue out of a vice, seeks to make a bigger vice out of a smaller one. One of the most problematic aspects of the international legal system is the “democracy deficit” it creates by enhancing the law-making role played by executive officers. This feature of international relations is at the core of many critiques of international law, used as a ground for opposing, for example, expansive conceptions of the treaty power and the permissibility of international delegations. Although the problem is indeed pervasive, it is also, I believe, to a some extent inevitable. That is hardly a reason, however, to push executive power to its logical limit. Rather, doing the opposite makes far more sense. We ought to try to find ways to limit the damage to democratic values that this anomaly produces. Placing the power to violate the law in order to change it in the hands of the executive will further reduce transparency, democratic deliberation, and accountability on issues of great public importance. If the President believes that we need a new paradigm for the laws of war suited to the circumstances of international terrorism, he can bring forward a proposal to Congress, which in turn will deliberate upon it against the backdrop of a wider public debate. Why isn’t that a superior approach from a democratic point of view? Indeed, from every point of view?