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The excellent posts by Professors Ku, Golove and Sloss address a central constitutional issue in the law-of-war field: which branch of the U.S. government has the authority to decide what the laws of war require. Below are a few thoughts based on my assessment of the text’s original meaning (for what that may be worth).
1. Ultimate authority on the matter seems plainly vested in Congress, under its power to “define and punish” offenses against the law of nations (Article I, Section 8). The 1787 Convention consciously used the word “define” because it thought the law of nations was often too vague to provide a clear rule, and so needed a definitive interpreter; the text unambiguously places that power in Congress. Although the Bush administration seems to contest that power, at least as applied to some aspects of the military, as far as I know it’s never really explained how it gets around the define-and-punish power, and I’m not entirely sure what that argument would even look like. In any event, I’m not aware of any founding-era support for it.
2. Whether the President has constitutional power to violate the law of nations (assuming no statute defining and enforcing it) would seem to depend on the meaning of the take-care clause (Article II, Section 3), which says that the President must take care that the “laws be faithfully executed.” I think this obviously includes treaties, as the supreme law of the land (Article VI), again despite some Bush administration claims. The more difficult question arises from the unwritten “law of nations” – does it also fall under the take care clause? Despite what Professor Golove says, I think this is a very difficult historical question and the founding-era materials don’t have a lot directly on point. I would rest instead on the fact that the founding-era Americans thought the law of nations was part of the “laws” applicable in the United States, and the take care clause says “laws” without qualification, so it should include the law of nations unless there is good historical evidence that it doesn’t (and there isn’t). So I come out in the same place, albeit a bit more tentatively. (But it’s worth noting that this is not the view of modern courts, and isn’t a consensus in constitutional law scholarship).
3. Even if the President must faithfully execute the law of nations, that does not say anything about who decides what the law of nations requires. (Obviously if there is a defining statute, the President must follow the statutory definition, as the President must always follow Congress’ direction when Congress acts within its constitutional powers). Absent a statute, though, it seems that the President necessarily has the authority (as an initial matter) to decide what the law of nations requires of the executive branch – the executive branch could not function otherwise. So I think Professor Ku is surely right in his initial assessment – that the President has constitutional authority to decide how the laws of war apply to terrorists. (I would emphasize, though, that there is a difference between a good-faith interpretation, or re-interpretation, and violation or disregard). So it seems that the President would be constitutionally entitled (though perhaps mistaken in policy) to say, on behalf of the United States, that (for example) he does not see that any binding custom exists with respect to the treatment of international terrorists, either because the nature of terrorism has evolved or because no such custom ever existed. (I agree with Professor Golove that the current administration has not really made such public, good-faith case, but I could imagine it being done).
4. The critical question, then, is whether U.S. courts can override the President’s good-faith interpretations, as Professor Sloss seems to urge. Obviously Congress can override the President; and of course the President’s interpretation may not be persuasive to international actors or domestic commentators, with the accompanying reputational and other costs. But U.S. courts’ authority over the President in this regard is more difficult to pin down. There are evident practical problems with having the courts supervise the President’s conduct of war (which is really what the suggestion amounts to). Even aside from practical problems, though, one may ask where the courts would get their constitutional authority. In Marbury v. Madison, John Marshall declared the courts’ ability to make an independent judgment of the Constitution’s meaning (independent of Congress and, as he later confirmed, independent of the President as well). But Marshall, at least, did not think this same authority extended to the law of nations (or even treaties), and he thought the practice of the Washington administration confirmed his view, as he outlined in his famous speech to Congress of March 7, 1800. There he recounted the Washington administration’s handling of the British ships captured during the 1793 neutrality, and explained that the legal determination (that ships captured in U.S. waters should be restored) was made by the President, with the actual proceedings done through the courts to resolve factual disputes: “Ultimately it was settled,” he said, “that the fact[s] should be investigated in the courts, but the decision was regulated by the principles established in the executive department.” (Papers of John Marshall, Vol. 4, p. 101). Marshall then used this episode to argue that interpretation of the extradition provisions of the 1794 Jay Treaty was “a case for Executive and not judicial decision.” Marshall may have gone a bit far in applying this view to treaties (especially in the particular case), but given Marshall’s views and the lack of contrary founding-era practice (I’m not aware of any founding era-court decision overriding a formal executive determination of international law), it seems doubtful to extend the courts’ Marbury powers to international law. (To be clear, I am not saying that courts lack power to interpret international law; only that they may lack power to interpret the executive’s international law obligations differently from the executive).
I suspect that the core objection to the last conclusion is not anything found in the Constitution’s text or founding-era materials, but a sense that courts are necessary to check the President’s inevitable tendency to interpret international law to serve his own ends. But I think we (especially we lawyers) are often too quick to think the principal check can or should come from the courts. Congress, as I’ve said, has the ultimate authority and can overturn presidential interpretations (as it did in part in the McCain amendment). International opinion and domestic commentary can be important checks (as they have been in the present case), and ultimately the President (or his would-be successor) must justify his policies to the electorate. Marshall’s speech, mentioned above, came in the context of defending the supposed executive overreaching of the Adams administration; Marshall may have had a legal point, but Adams sustained heavily public criticism and shortly afterward lost his bid for re-election.
[Opinio Juris welcomes Professor Michael Ramsey as a guest respondent. He is a professor of law at San Diego School of Law and an expert in foreign relations law.]
My thanks to Opinio Juris for setting up this fascinating exchange and for inviting me to participate, and to John Bellinger for taking time to provide such thoughtful posts. As somewhat of an outsider to this area (my principal field is the constitutional law of foreign affairs), I find that I have more questions than answers.
Let’s assume there is a category of people who take active part in combat but are not covered by the Third Geneva Convention (because they fail the test of its Article 4) or by Common Article 3 (because the conflict is “of an international character”). It seems fairly inescapable that there is such a category (whether or not Taliban or al-Qaeda fighters are in it). Unless they are covered by the Fourth Geneva Convention, fighters in this category aren’t protected by the text of the Geneva framework. It also seems inescapable that, prior to Geneva, the extensive protections contained in the Fourth Convention did not apply to irregular fighters (that is, those who would fail the Article 4 test). The Fourth Convention’s text seems unclear on whether it covers such persons, since it covers “civilians” (which might or might not include irregular fighters). Do commentators critical of the U.S. position contend that the Fourth Convention’s signatories in 1949 intended to extend its elaborate protections to irregular fighters, contrary to traditional practice? Is that how the Fourth Convention was interpreted immediately after it was ratified? If not, what theory of interpretation allows us to be so certain of today’s meaning? (And for that matter, even if the intent was clear in 1949, are we certain that treaties’ meanings can’t evolve to adapt to new circumstances, as is often said of the Constitution?) These aren’t meant as rhetorical questions, as I haven’t studied the history of Geneva, but I have also not seen much reliance upon it.
On the other hand, for Mr. Bellinger’s side, if the Fourth Convention does not cover persons in this category, doesn’t that create a strange asymmetry: irregular forces in a civil war have the protections of Common Article 3, but (if the U.S. position is right) irregular forces have no protection at all in an international conflict? Is there any evidence that Geneva’s signatories wanted to give more protection to irregulars in civil wars than otherwise? Is it even plausible that they could have had this intent – what could possibly motivate it? Isn’t the asymmetry better explained either by saying that the Fourth Convention applies to irregulars (which you don’t want) or that the Common Article 3 protections were already understood by Geneva’s drafters to apply in international conflicts as a matter of customary law? If the latter explanation is true, though (and I must say, off the top of my head, it seems pretty plausible), then the Taliban and al Qaeda necessarily have at least the Common Article 3 protections, whether or not that Article itself technically applies to them. And if that is right, didn’t the Supreme Court get it basically right in Hamdan, whether or not it was correct on the “not of an international character” characterization of the al Qaeda conflict? Of course, it may matter for U.S. domestic law whether the protections come from the treaty itself or from customary law, but it should not matter to the United States for international purposes. So I guess I’m puzzled as to how the U.S. can maintain that the Taliban lack the protections of the Fourth Convention without acknowledging a customary law amounting to the substance of Common Article 3 for all fighters (including al Qaeda) in international conflicts.
In sum, for both sides: isn’t it plausible that Geneva’s drafters envisioned a middle ground between your claims – all fighters would get the substance of Common Article 3 protections, in international conflicts from pre-Geneva customary law and in non-international conflicts because Common Article 3 extended it to them; and fighters who complied with the requirements of Article 4 of the Third Convention would get that Convention’s additional protections?