Sarah Cleveland Defends the “Obama-Clinton” Approach to International Law

by Julian Ku

I had the good fortune of participating in a symposium last week sponsored by the University of Virginia Law School’s John Bassett Moore Society.  Entitled “The Obama Impact”, the symposium explored the impact of the new administration on international law and policy.  I have already shared my views on this subject here and I took the opportunity during my visit to rebut the United Nations’ claim to “indispensability.”  But the main action at the symposium was the keynote address by Sarah Cleveland, Counselor on International Law in the U.S. State Department’s Office of the Legal Adviser.  Cleveland, who is also a Columbia Law School professor, offered one of the most forthright and clear explanations of the new administration’s approach to international law.  A summary can be found here, along with a recording of her address.  But below is a key excerpt:

“I would say that the administration has articulated an Obama-Clinton doctrine, a vision that reflects commitments to four elements,” Cleveland said. “The first is multilateral engagement. This was a consistent theme of the president’s campaign and has been a consistent theme of his first year in office.”

Other elements of the doctrine are universality, or the idea that all men are created equal, and the legitimating force of law, which suggests that law gives strength and legitimacy to government action.

“Finally, these goals are to be achieved through a principled pragmatism and the exercise of smart power: the intelligent use of all means to our disposal, including diplomacy, promotion of democracy, development and human rights,” Cleveland said.

Cleveland’s framework is interesting, but I’ll note simply that few of the things she describes are substantially different from things that Condi Rice and John Bellinger would have said.  The devil is in the details, and so far there is not as much a difference as some of the campaign rhetoric suggested.  (Not that this is a bad thing).
UPDATE: Her boss, Harold Koh, shared a few thoughts with John Bellinger today as well.

John Bellinger Gets it Right on Consular Convention Implementing Legislation

by Peggy McGuinness

John Bellinger, who served as the Bush administration Legal Advisor to the State Department (in which capacity he famously guest blogged at Opinio Juris!), has an op-ed in today’s last Saturday’s NY Times calling for legislation to override the Supreme Court’s decision in Medellin v. Texas and to give effect to the ICJ’s 2003 decision in Avena. The legislation would overcome any state procedural bar rules to permit review of the convictions of the 51 Mexican nationals at issue in Avena who were denied their consular notification rights in violation of the Consular Convention.  As Bellinger notes, until such review takes place, the U.S. remains in non-compliance with the ICJ decision and the UN Charter.  Moreover, the Supreme Court indicated in Medellin v. Texas that legislation, not to assertion of executive powers, is the only path to compliance with Avena — short of the individual states independently choosing to comply (an option rendered impossible following Texas’ execution of Jose Medellin last August).

Bellinger rightly emphasizes the reciprocal nature of the Consular Convention and the protections it affords to Americans overseas, and notes that although the Obama administration has embraced the idea of enforcing  international legal obligations it still faces a dilemma on this issue:

President Obama now faces the same challenges as Mr. Bush in 2005: an international obligation to review the cases of those Mexicans remaining on death rows across the country; state governments that are politically unwilling or legally unable to provide this review; and a Congress that often fails to appreciate that compliance with treaty obligations is in our national interest, not an infringement of our sovereignty.

The Obama administration’s best option would be to seek narrowly tailored legislation that would authorize the president to order review of these cases and override, if necessary, any state criminal laws limiting further appeals, in order to comply with the United Nations Charter.

From closing Guantánamo to engaging with the International Criminal Court to seeking Senate approval of the Law of the Sea Convention, President Obama is confronting the recurring tension between our international interests and domestic politics. But reviewing the Mexican cases as the international court demands is not insincere global theater. On the contrary, complying with the Vienna Convention is legally required and smart foreign policy. It protects Americans abroad and confirms this country’s commitment to international law.

A statute aimed more broadly at Consular Convention compliance was proposed during the last congressional term but languished in the shadow of the presidential campaign and a lame-duck administration (see the proposed bill here.)  Whether the statute is more narrowly tailored as Bellinger suggests, or sweeps more broadly to preempt state procedural rules to achieve compliance with the Convention going forward, Bellinger is right that this should be a priority for the Obama State Department and Congress.

John Bellinger Reflects on Four Years as Legal Adviser at State

by Kenneth Anderson

John Bellinger has been legal adviser to the State Department for the past four years.  In this speech to the International Law Weekend (October 17, 2008), he offers some reflections on his experience.  (We here at OJ were privileged to have John guest blog here in a unique and highly successful experiment in ‘blogging with the Legal Adviser’.)  I excerpt part of the speech below, and here is the link.  I will offer some thoughts of my own in a separate post; here let me just say that John is someone I know personally, a friend, and someone for whom I have enormous respect and admiration.  ( Excerpted is the opening section, setting out three goals for tenure as legal adviser.)

Sincere Appreciations to John Bellinger

by Roger Alford

Bidding John Bellinger Adieu

by Duncan Hollis

Wrap Up Discussion II

by John Bellinger

This post marks the end of my stint as guest-blogger. Although I have a few bruises to show for it, I have nonetheless appreciated the opportunity to have an in-depth dialogue with all of you regarding what I believe are very difficult legal issues, and hope that this dialogue will continue on this forum and others over the weeks and months to come. Today, I will try to address a number of the points raised in the essays and comments that have responded to my previous posts; I hope readers will forgive me for not being able to respond to every question.

If one thing is clear from the numerous posts and comments on the detention and treatment of international terrorists detained outside of a country’s territory, I think it is that the wide and inconsistent range of views we’ve read illustrate just how complex and unclear this area of the law remains. As Legal Adviser, I am, of course, acutely aware that many people disagree with U.S. policies or interpretation of the law relating to detainees. This is one reason why I have wanted to engage in greater public discussion of these issues. But if the proper legal framework were as clear as some critics think, we wouldn’t have, five years after September 11, so many international law experts still disagreeing — not just with us, but with each other — about what the applicable rules ought to be. Some, like Manfred Nowak, the UN’s Rapporteur on Torture, have applied human rights law and have asserted that detainees in Guantanamo must be prosecuted for crimes or released. Many others agree that it has been appropriate for the U.S. and coalition forces to detain members of the Taliban and al Qaida under the laws of war but argue that the U.S. has applied the laws of war improperly by failing to give the detainees POW status or providing Article 5 tribunals. It is especially striking to me that so many continue to express views that seem to be inconsistent with the Supreme Court’s decision in the Hamdan case, which should have settled much of the dispute over the international law applicable to the U.S. conflict with al Qaida.

There is a growing international acceptance that the legal framework applicable to international terrorism is complex and unclear. Earlier this week, the Foreign Affairs Committee of the UK’s House of Commons issued a report on Guantanamo in which it concluded that “the Geneva Conventions are failing to provide necessary protections because they lack clarity and are out of date.” The Committee recommended that the British Government work to update the Conventions “in a way that deals more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants, and with the treatment of detainees.”

The Committee’s comments echo previous conclusions by UK Defence Minister John Reid and by the OSCE Special Rapporteur on Guantanamo, Anne-Marie Lizin. In an April 2006 speech, Reid called on the international community to re-examine whether the Geneva Conventions are appropriate to deal with the conflict with international terrorists capable of operating on a global scale. “If we do not,’ he said, “we risk continuing to fight a 21st Century conflict with 20th Century rules.” Madame Lizin, in her July 2006 report on Guantanamo, concluded that there is “incontestably some legal haziness” regarding the legal framework applicable to “international terrorist organisations.” Madame Lizin called for an “international commission of legal experts” to examine “whether additional instruments are necessary in future in order to counter or to prevent these new threats to international peace and security, including the international status of the prisoners of these new conflicts, in light of the current legal and practical haziness.” Although I think it is premature to attempt to negotiate a new Geneva Convention – especially in light of the strides that we have made in developing the specific rules and regulations governing the detention, interrogation and trial of unlawful enemy combatants in the Military Commissions Act and recent DOD directives — I do agree that further work needs to be done to examine how to deal with the problem of international terrorists who may be beyond the reach of our criminal laws and yet who are not part of the armed forces of a party to the Geneva Conventions.

Much of the discussion over this past week has veered back and forth between law and policy. Tobias Thienel objected to my use of a “political point” as having “no legal value whatsoever.” Many of the arguments made by contributors to this blog, though couched in legal terms, have actually expressed opinions of what the law “ought” to be, or of progressive developments they would like to see in the law. The truth is that many differences of opinion that are described as legal differences, are in fact policy differences stemming from different legal traditions and cultures, different nations’ experiences in World War II, and different approaches to problem-solving. I addressed some of these differences in greater depth in my remarks to the Duke Law School Center for International and Comparative Law this past November, and I would encourage those interested to read those remarks.

I wanted to begin my substantive comments by addressing some of the points raised by Deborah Pearlstein. Ms. Pearlstein’s remarks were in many ways a comprehensive critique of the Administration’s detention policies from the perspective of the human rights community, so I think it’s important to address her major points. She states that she agrees that we were, and probably still are, in an armed conflict in Afghanistan that entitles us to seize and detain prisoners. Given this critical shared starting assumption, I wanted to address several of her specific points.

First, Ms. Pearlstein asserts that the reason the United States did not initially conclude that the conflict with al Qaida fell within the ambit of Common Article 3 was that the Administration was trying to avoid treating detainees humanely. But as I explained last week, most legal scholars believed prior to Hamdan that Common Article 3, which applies to armed conflicts “not of an international character,” covered internal armed conflicts, or civil wars, that took place within a single state. Pictet’s commentary to the Geneva Conventions directly supports this legal position – his commentary to the Third Convention indicates, (on page 37) “it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities – conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.” Whatever can be said of our conflict with al Qaida, it was clear that it was not internal to one state, given the attacks against Western interests that had been perpetrated across the globe, including in the United States, Africa, and the Middle East. Thus, I think it was reasonable for the United States to conclude that Common Article 3 did not apply as a treaty matter to the conflict with al Qaida.

Second, Ms. Pearlstein suggests that even after Hamdan it is the position of the United States that Common Article 3 is too vague to require our forces to follow it. This is simply not true. The President has made clear that the entire U.S. Government will comply with Hamdan. Deputy Secretary of Defense Gordon England issued a directive following Hamdan mandating a top-to-bottom review of DoD policies related to detention of combatants in the conflict with al Qaida and the Taliban to ensure treatment was consistent with Common Article 3. The new DoD Detainee Directive and Army Field Manual prescribe detainee treatment and interrogation policies that are fully consistent with Common Article 3 as well. And the Military Commissions Act crafted new rules for military commissions that comply with Hamdan also. The MCA did define which violations of Common Article 3 are subject to criminal prosecution. But as others have pointed out on this blog, criminal trials based on offenses that are vague and undefined violate the most basic norm of due process. Consistent with this principle, the MCA gives guidance to prosecutors and potential defendants about what conduct will result in criminal sanction, while the more basic requirement that detainees be treated consistently with Common Article 3 remains in place.

Third, Ms. Pearlstein argued that the U.S. acted inconsistently with the Geneva Conventions in not providing Article 5 tribunals to “all detainees who question their status.” In fact, as Geoffrey Corn and Matthew Gross pointed out, Article 5 requires a “competent tribunal” only “should any doubt arise” as to whether POW status is due. Thus, for example, if we catch Osama Bin Laden running from the battlefield, there would be no doubt that he is not entitled to POW protections and the Conventions would not mandate an Article 5 review. As I stated in my last post, in response to Ken Anderson, we have in any event provided those detained at Guantanamo more extensive procedural protections in the CSRT process than in a typical Article 5 tribunal, including the opportunity to be heard from, to present reasonably available evidence, to obtain the benefit of a personal representative, and see an unclassified summary of the information against the detainee. The government is also required to provide the CSRT any exculpatory information it may have. And under the Detainee Treatment Act and MCA, detainees are given the right to challenge their combatant determination in the federal courts. I understand fully that critics are still not satisfied with the CSRTs. But it is incontrovertible that the CSRTs provide far more procedural protections than a traditional Article 5 Tribunal convened by the U.S. military or any of our allies in any previous conflict. Thus, Ms. Pearlstein is correct in stating that “CSRTs are not the kind of hearing Geneva had in mind,” as the CSRTs in fact provide far greater protections than were envisioned for an Article 5 review.

Fourth, Ms. Pearlstein takes issue with the U.S. Government’s not according POW status to the Taliban. As I mentioned last week, we acknowledge that this is a difficult question over which there has been much debate. But the U.S. Government has disagreed with her statement that the Taliban was “the armed force of Afghanistan.” The Taliban was among a patchwork of rival militias – indeed, they were the most powerful of these rival groups — at the time of the U.S. invasion, but it is not clear that they ever rose to the level of the official armed forces of Afghanistan, as the conflict with the Northern Alliance persisted to the day Coalition forces began operations there. In any event, they clearly failed to meet the requirements of Article 4 of the Third Geneva Convention. Contrary to Ms. Pearlstein’s suggestion, the black turbans were far from a uniform characteristic of the Taliban. Kanal Matinuddin’s book, The Taliban Phenomenon: Afghanistan 1994-97, provides detailed photographs showing Taliban soldiers wearing turbans of different colors and styles, many of which appear to closely resemble the turbans worn by non-military Taliban and other civilians.

Fifth, Ms. Pearlstein repeats a charge frequently leveled at the United States: failure to accord the Taliban or al Qaida POW status somehow fails to provide them the protections of the law of war while imposing on them the requirements of that law. I disagree with this description. To begin with, it can’t credibly be argued that any category of combatants, least of which unprivileged belligerents such as Taliban and al Qaida, should be freed from a requirement to follow the laws and customs of war that require protection of the civilian population, such as distinction of civilian targets and the prohibition from targeting civilians and civilian objects as such. We believe that they have failed to meet these obligations, and committed war crimes in the process, and they must be held accountable. At the same time, it can’t credibly be argued that al Qaida has met the criteria for POW status. As Geoff Corn observed, the categories of individuals entitled to POW status is exclusive: private citizens captured while engaged in combatant acts are not entitled to prisoner of war status. If captured while taking a direct part in hostilities, they could be classified as unlawful combatants or spies, prosecuted under the capturing government’s law, and/or held for the duration of the hostilities. This is also an unsustainable position in the wake of the Hamdan decision, which found that a different status under the Geneva Conventions applies. So I think the United States acts consistently with the Geneva Conventions and the law of war in denying these groups POW protections, while at the same time holding them accountable for their violations of the laws of war.

I also want to address here the related claim suggested by some of the responses to my post on Unlawful Enemy Combatants and Ken Anderson’s response that holding and prosecuting members of the Taliban and al Qaida under the laws of war somehow legitimizes their actions and will require us to confer upon them combatant immunity for their attacks against military targets. Experts in international humanitarian law will confirm that this is certainly not true. The U.S. Supreme Court also addressed this point in Ex parte Quirin when it ruled that eight German saboteurs were unlawful combatants who were subject to trial in military tribunals for violations of the laws of war. The Court held that the law of war makes a distinction between lawful and unlawful combatants. The unlawful combatants, like lawful combatants, are subject to capture and detention, “but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.” The Court went on to discuss “familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals” Members of al Qaida such as Khalid Shaykh Mohammed had no legal right to attack the Pentagon. As a result, they are not entitled to combatant immunity. But they may be prosecuted under the laws of war for their violations of that law, as the German saboteurs were prosecuted in Quirin. Thus it is that a lawful combatant, upon being captured, may not be prosecuted for murder because he is entitled to combatant immunity, though he may be prosecuted for committing war crimes. The unlawful combatant, however, who is not protected by the mantle of combatant immunity, may be prosecuted for both war crimes and for other acts (such as killing a lawful combatant) for which those entitled to combatant immunity could not be prosecuted.

Finally, Ms. Pearlstein describes Guantanamo Bay as “inconsistent with IHL” and “a bad mistake.” In the first instance she appears to focus on what she asserts were “various forms of detainee abuse” that took place there. To be clear the U.S. Government does not countenance abuse of detainees, and those transgressions that have taken place have been investigated, and where appropriate, punished. But her larger point seems to be part of continuing calls to close Guantanamo. The President has stated that he would like to move to the day that Guantanamo can be closed. But, as I have stated in a previous post, continuing condemnation of Guantanamo, without more, will not help close it any faster. Here, I would like to quote again from the recent report of the House of Commons Foreign Affairs Committee, in which the Committee concludes that “many of those detained present a real threat to public safety and that all states are under an obligation to protect their citizens and those of other countries from that threat. At present, that obligation is being discharged by the United States alone, in ways that have attracted strong criticism, but we conclude that the international community as a whole needs to shoulder its responsibility in finding a longer-term solution.” I appreciate that a number of human rights organizations have tried to help with the resettlement of some of the detainees in Guantanamo who have been approved for release, and I urge other countries and groups to do the same.

Turning to other issues, my first wrap-up post also generated strong reactions regarding the U.S. view that the International Covenant on Civil and Political Rights (ICCPR) does not apply outside the territory of the United States. As I noted earlier, this is a longstanding U.S. position that is based on the plain text of Article 2 of the ICCPR (the Covenant applies to “. . . all individuals within its territory and subject to its jurisdiction . . . ”) and supported by the negotiating history. . Indeed, the draft text of Article 2 under consideration by the Commission on Human Rights in 1950 would have required that states ensure ICCPR rights to everyone “within its jurisdiction.” The United States, however, proposed the addition of the requirement that the individual also be “within its territory.” Eleanor Roosevelt, the U.S. representative and then-Chairman of the Commission emphasized that the United States was “particularly anxious” that it not assume any extra-territorial obligations.

She explained that “[t]he purpose of the proposed addition [is] to make it clear that the draft Covenant would apply only to persons within the territory and subject to the jurisdiction of the contracting states. The United States [is] afraid that without such an addition the draft Covenant might be construed as obliging the contracting states to enact legislation concerning persons, who although outside its territory were technically within its jurisdiction for certain purposes. An illustration would be the occupied territories of Germany, Austria and Japan: persons within those countries were subject to the jurisdiction of the occupying states in certain respects, but were outside the scope of legislation of those states.” Eleanor Roosevelt also specifically referred to “leased territories” during her explanation of the United States change in the text of Article 2.

Although some delegations spoke against the U.S. amendment, the U.S. proposal ultimately was adopted at the 1950 negotiating session at the Human Rights Commission by a vote of 8-2 with 5 abstentions. Subsequently, after similar debates, the United States and others defeated French proposals to delete the phrase “within its territory” at both the 1952 session of the Commission and the 1963 session of the General Assembly. More information about our interpretation can be found here.

Jan challenged the longstanding U.S. interpretation, arguing that we need to look at the “purpose” of human rights treaties. Although the text of a treaty is certainly the starting place for interpretation, I don’t disagree that the purpose behind the treaty is relevant as well. As a matter of longstanding treaty law, as reflected in the Vienna Convention on the Law of Treaties, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Resort to this fundamental rule of interpretation led the U.S. government over an extended period of time to conclude that the obligations assumed by a State Party to the International Covenant on Civil and Political Rights (ICCPR) apply only within the territory of the State Party.

This interpretation of the ICCPR is not contrary to the purpose of the ICCPR; rather, it’s consistent with the terms of the treaty, which require states to guarantee rights to persons within their territory and subject to their jurisdiction. Further, it is important to note that the non-extraterritorial application of a treaty does not mean that an individual has no legal protections outside of the United States. On this point, I must correct the misconception, expressed by Jan, that by taking detainees “a few miles off the coast” we can engage in torture. To be clear, torture by U.S. personnel of anyone, anywhere is prohibited by criminal law, and those that violate this absolute prohibition will be held accountable.

Francisco argued that the U.S. interpretation of the ICCPR was invalid because the U.N. Human Rights Committee found the treaty to apply extraterritorially, pursuant to its “jurisdiction to settle such conflicting state-party interpretations.” However, Article 40 of the ICCPR does not give the Committee the authority to alter treaty obligations or to issue authoritative interpretations of the treaty. States could have chosen to give the Committee this authority, but they did not. The practice of the Committee is to issue “general comments” on the interpretation of the treaty, which are not legally binding. Over the years there have been utterances in general comments and in country recommendations with which the United States and other States Parties disagree. These are honest differences of opinion.

Several writers expressed concern that in implementing Article 3 of the Convention Against Torture, which obligates a Party not to “expel, return (‘refouler’) or extradite a person to another State” if there are substantial grounds for believing a person would be tortured, the United States has adopted as its standard whether “it is more likely than not” that the person would be tortured. These writers argued that the United States should adopt a lower standard that would prohibit transfers upon a finding that there was a smaller risk of torture. This is another area where issues of legal obligation and desirable policy can be confused. As a matter of treaty law, the “more likely than not standard” is fully consistent with U.S. treaty obligations under the Convention. Indeed the U.S. Senate gave its advice and consent to ratification of the Convention Against Torture in 1994 subject to the formal written understanding, “[t]hat the United States understands the phrase, ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in article 3 of the Convention, to mean ‘if it is more likely than not that he would be tortured’”. As the United States government included this understanding in its instrument of ratification at the time it became a State Party to the Convention, the understanding describes the obligation the United States assumed under Article 3. It’s worth noting that no state party to the treaty raised an objection to this understanding.

The reason for adopting that understanding was explained in the May 10, 1988 letter of submittal from the Department of State:

“Under current U.S. law, an individual may not normally be expelled or returned where his ‘life or freedom would be threatened . . . on account of race, religion, nationality membership in a particular social group or political opinion.’ 8 U.S.C 1253(h)(1). The U.S. Supreme Court has interpreted this provision to mean that a person entitled to its protections may not be deported to a country where it is more likely than not that he would be persecuted. INS v. Stevic, 467 U.S. 407 (1984). To clarify that Article 3 is not intended to alter this standard, the following understanding is recommended.”

That understanding is the one that was adopted by the Senate and contained in the U.S. instrument of ratification.

Before I leave the legal issues related to the conflict with al Qaida and the Taliban, I wanted to commend Ken Anderson and Charles Garraway for their comments on a “middle way” for approaching counterterrorism issues moving forward. As I have emphasized in previous posts, as well as in my remarks to the London School of Economics, military force and the laws of war are not the only appropriate or legal approach to confront international terrorism generally, or al Qaida in particular. We recognize that other countries, like the UK, Germany, and Spain, may be able to continue to use their criminal laws to prosecute members of al Qaida. Indeed, the United States itself continues to use its criminal laws to prosecute members of al Qaida, like Zacharias Moussaoui. The point here is that we recognize there is no one-size-fits-all approach that works for all counterterrorism efforts, and we will continue to employ a flexible array of tools, including military force, law enforcement, diplomacy, intelligence operations, and financial sanctions to confront the threat.

I also have a few reactions to the various comments on my post on immunities. Although this subject did not elicit as many reactions as my law of war postings, I appreciated the questions and comments, particularly Tobias Thienel’s taking the time to write about the House of Lords decision in Jones, the U.S. Chuidian line of cases, and the overall issue of state responsibility.

The U.S. Government discussed state responsibility in its ILC’s 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10, Art. 4 (2001).

The U.S. Government also explained in the Dichter Statement of Interest why practice regarding international criminal law and tribunals is not probative of whether a government official enjoys civil immunity for official acts in the domestic courts of another country. If you are interested, take a look at the discussion starting on page 29. You will also see that we observed that the lack of an immunity exception for civil suits alleging jus cogens violations does not mean that such violations, when they actually occur, will necessarily be beyond the reach of the courts (e.g., if there is a waiver) or escape other kinds of remedies, such as appropriate criminal proceedings or sanctions and other forms of diplomatic pressure.

As for U.S. practice regarding criminal immunity of heads of state, the Legal Adviser’s office is not aware of any criminal charges having been brought against a sitting head of state by United States federal or state prosecutors. No U.S. court has squarely addressed the immunity from criminal charges of a former head of state in the face of an assertion of immunity by the relevant state, but we have had at least one case in which a prosecution proceeded after a waiver: Pavel Lazarenko, former Ukrainian Prime Minister and Member of Parliament, was prosecuted successfully by the United States for violations of various U.S. laws after the Ukrainian parliament voted to remove his immunity.

Finally, in response to those who asked about employment in the Legal Adviser’s Office, we always welcome expressions of interest or applications from qualified candidates, although at this point we do not anticipate any vacancies before October 2007. We have a summer internship program for second year law students and an externship program for second and third year law students. We hire new lawyers and laterals. You can find information about the Office and the application process here.

Thank you all for joining me in this discussion.

Separation of Powers and Troop Build-Up in Iraq

by Roger Alford

A Response from the Human Rights Community

by Deborah Pearlstein

[Opinio Juris welcomes Deborah Pearlstein as a guest respondent. She will spend the coming year as an Associate Research Scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University. For the past three years, she has directed the Law and Security Program at Human Rights First.]

With thanks to Opinio Juris for inviting me to engage in this interesting discussion, I wanted to offer a few remarks on Mr. Bellinger’s thoughtful posts. I should also thank Mr. Bellinger for his detailed and public engagement with these important issues.

There are several points on which Mr. Bellinger and I agree. Most generally, many of the legal issues surrounding the detention and trial of terrorist suspects are indeed complex. And it is also true in this area of law and policy, as all others, that it is far easier to criticize than to propose affirmative solutions. On our particular subject matter, Mr. Bellinger is right that the war in Afghanistan beginning in 2001 was an armed conflict within the meaning of the law of war (international humanitarian law or IHL), and that in the course of that conflict, the United States was entitled to seize and detain prisoners. I also think – and here I perhaps differ from some of my colleagues in the human rights community – that there is a reasonable argument to be made there is still an armed conflict governed by IHL, among other laws, under way in Afghanistan.

That said, there a number of points on which Mr. Bellinger and I appear to disagree. In the interest of space, I’ll address just a few of these. And I’ll hope for an opportunity for further discussions.

I should note at the outset that Mr. Bellinger’s arguments are limited in their persuasiveness not only by several specific errors, but also by the reality that there are certain aspects of the law respecting detention, treatment and trial that do not present complex questions – aspects that the current administration has violated nonetheless. From the prohibition against torture and cruel treatment, to the simple requirement that all detainees seized in the course of armed conflict are entitled to a so-called Article 5 hearing to determine whether they are entitled to prisoner-of-war protections (codified in existing U.S. Army regulations), the administration has devoted much of the past five years arguing even these (I would have once thought) inarguable points.

Take for example the principle that the prohibition against torture and cruel treatment – contained in Common Article 3 of the Geneva Conventions – applies to all those detained by the United States in the course of armed conflict. As the International Committee of the Red Cross, the body designated by the Geneva treaties as primarily responsible for treaty interpretation, has long held, all those caught up in the course of armed conflict are governed by one of the Geneva Conventions—either as lawful combatants under Geneva III, or as civilians (whether engaged unlawfully in combat or not) under Geneva IV. (Take a look at International Committee of the Red Cross, International Humanitarian Law and Terrorism: Questions and Answers (May 5, 2004).) Contrary to positions the administration took for years, right up until it lost this argument when the Supreme Court decided Hamdan last year, Common Article 3 applies no matter the detainee’s status as “prisoner of war,” “unprivileged belligerent,” civilian, or anything else.

Let me unpack this example a bit, because this understanding of the applicability of Common Article 3 I think goes to the core of complaints about the administration’s use of the term “enemy combatant” these past years. Contrary to Mr. Bellinger’s suggestion, I would not argue that the primary problem with this designation is that it denies to Al Qaeda members the special status of “prisoner of war.” Indeed, I don’t know anyone who argues that Al Qaeda fighters are entitled to POW protection. Rather, I objected vigorously to the administration’s efforts to use the “enemy combatant” label because, among other things, it was used as a way of skirting otherwise applicable laws, particularly to deny to a large swath of detainees the protection of Common Article 3. (See, for instance, former Defense Secretary Rumsfeld’s comments at a press briefing in 2002 “[T]echnically, unlawful combatants do not have any rights under the Geneva Conventions.”). Under IHL, however, the key difference between a “prisoner of war” and anyone else engaged in combat is not what level of cruelty one can subject them to during interrogation. Rather, it is whether they enjoy the so-called combatants privilege: in brief, if you’re a lawful combatant (such as the uniformed military of a state party to the Geneva Conventions) and you shoot someone in the course of armed conflict, you can’t be charged with murder for doing it. In contrast, if you’re not lawfully engaged in combat (as in the case of a civilian committing murder in the course of armed conflict), you can be prosecuted for shooting someone, and you’re not entitled to the very special protections afforded privileged “prisoners of war.” If individuals (including Al Qaeda members) not part of a state army or other legitimate organized military force engage directly in combat in the course of armed conflict, they can and should be prosecuted (criminally or through a lawfully constituted military tribunal). But whether you’re privileged to kill people during war or not – the lesson of Common Article 3 (in the prisoner of war Convention, Geneva III, or in the Convention for the protection of civilians, Geneva IV) is that everyone is entitled to that baseline humane treatment. That is one of the conclusions the administration was trying to avoid with the use of terms like “enemy combatant.” And that is what Hamdan rejected.

(An aside to respond to the argument Mr. Bellinger touches upon that Common Article 3 is too vague a standard to hold our troops to observe. I’m deeply skeptical of this claim. Our police officers daily apply the very general standard “probable cause”; our troops can likewise well apply the standards “cruel treatment” and “outrages upon personal dignity” within the meaning of Geneva. In any case, if there were any doubt, the administration and Congress could quite simply resolve it in favor of greater clarity, and greater criminal liability. (In the Military Commissions Act, the “clarity” objection was resolved by specifying particular violations, but by generally narrowing liability under the War Crimes Act.) For what it’s worth, the standard I’d recommend for understanding what Common Article 3 prohibits: if we’d be outraged if someone did it to our troops, it’s an outrage if we do it to someone else. The standard may not be perfect, but I suspect it might help us avoid in the future some of the conduct we’ve seen in recent years – forcing detainees to remain naked, in freezing cells, standing until their legs cramp in excruciating pain, denying them access to a bathroom when they need it and depriving them of virtually all human contact for months on end.)

None of this is to suggest that the abusive treatment afforded some “enemy combatants” these past years is the only problem with the administration’s use of the term. There are many problems with it. To take just a few others that came up in recent posts: Mr. Bellinger is wrong to suggest that sets of fighters (including the Taliban) in the Afghanistan war could be categorically labeled unlawful enemy combatants and across the board denied POW protection. Excluding a whole class from protection of the Geneva Conventions (according to the doctrine of Rumsfeld and other senior administration officials whose views were expressed in early internal memos) is inconsistent with the individualized hearings contemplated by Geneva III, Article 5. Indeed, all detainees who question their status are entitled to an Article 5 hearing upon capture – not, as the CSRTs ultimately provided, hearings several years and several thousands of miles removed from the field of conflict when witnesses to the capture and evidence of innocence are all but impossible to come by. And as has now been extensively documented, beyond their failings of temporal and geographic proximity to the point of capture, the CSRTs have fallen badly short of fairly and accurately determining whether detainees were rightly captured in the first instance. (Tim Golden’s December 31, 2006 piece in the New York Times on the flaws of the CSRTs was quite powerful on this point.) The CSRTs are not the kind of hearing Geneva had in mind.

Mr. Bellinger’s argument as to why Taliban soldiers are not entitled to POW protection is particularly problematic. As the armed force of Afghanistan, a state party to the Geneva Conventions, Taliban fighters held by the United States would appear to be quintessential prisoners of war. But according to Mr. Bellinger, because the Taliban wore no distinctive uniform and because they unlawfully attacked civilian targets, they are not entitled to enjoy POW protection. Mr. Bellinger is right to acknowledge the text of Geneva III does not clearly require that the armed force of a state party wear uniforms; being a member of the state’s armed forces is status enough to qualify for POW protection. In any case, on the facts, Mr. Bellinger is too facile – Taliban often wore black turbans that distinguished them from the rest of the population. Beyond that, American forces in Afghanistan could themselves be found out of uniform for various reasons. (See one photo of this in Human Rights First’s 2003 publication “Assessing the New Normal.”) If we insist on requiring that combatants be uniformed at all times to receive POW protections, we may well end up depriving our own troops of the POW protections we rightfully demand they receive. That can’t plausibly be an outcome we seek.

Perhaps most troubling in this line of argument, Mr. Bellinger asserts that the bargain the Geneva Conventions strike may be summarized as follows: “Ignore the laws of war, and you cannot seek the status given to lawful combatants.” Because the Taliban violated the law of war, they are not entitled to the protection of the law of war. This is something like a circular argument. The Taliban no doubt committed war crimes; accordingly they should be prosecuted for these violations under the law of war. If we reject the idea that the law of war applies to them, we jeopardize our ability to pursue their prosecution for war crimes under these very same laws. I do not believe the administration can seek to obtain the power benefits that come with IHL without accepting the rights burdens that also attach. The Hamdan Court embraced this principle in insisting military commissions set up to try prisoners for war crimes themselves comply with the law of war.

Let me conclude by returning to what I believe are two more fundamental disconnects between Mr. Bellinger’s arguments and the position of many administration critics. First, I am pleased that Mr. Bellinger believes that the “phrase ‘the global war on terror’ … is not intended to be a legal statement.” But where Mr. Bellinger may aim to draw a distinction between arguments the administration makes rhetorically or as a matter of policy, and arguments it makes expressly as a matter of law, that distinction is not one the administration’s litigators have hewed to in case after case in which it has resisted judicial review of any and all aspects of the global detention system the United States has operated for the past five years, and in which it has argued that because we are at war, the President enjoys authority, that he otherwise does not have, to surveil, detain, question, try individuals, and keep secret information. Calling it a “war” – rhetorically or not – figured centrally in the President’s legal arguments. That the “war” has shifted in its scope and description from brief to brief at a minimum calls into some question the justification for the broad swath of policies the administration has pursued in this conflict’s name.

Finally, I suspect Mr. Bellinger might agree that some of the actions taken in the first years following the attacks of September 11 were in fact inconsistent with IHL. Indeed, criticism of Guantanamo Bay and various forms of detainee abuse – both as a matter of law and policy – is by now so thoroughly bipartisan and international in nature, it is hard to see these policies as anything but a bad mistake. What is critical now, however, is not to compound that mistake by torquing our interpretation of IHL (and passing new legislation like the Military Commissions Act) in order to bolster an argument that these failed policies (and other past mistreatment of prisoners) were legally justified. The solution to Guantanamo and related policies now lies in treating them as limited to what they were – a flawed approach, legally erroneous but sui generis – not necessary to the broader policy challenge of combating the threat of terrorism. There is no doubt the United States needs to be able to detain some people to combat terrorism, and needs to be able to question people to elicit information. But in addressing these pressing demands, Congress and the administration should start from the basic security policy imperatives – not from the real but separate need to deal with, for example, the 300 some remaining detainees still subject to the Guantanamo mistake. Let’s not make law – as we did in the MCA – that purports to reinterpret U.S. and international law forevermore just to try to correct for the mistakes made in this particular case. Five-plus years after September 11, and with all the calm deliberation we can afford, we can pursue security policy with a view to ensuring that the protection of fundamental individual rights under U.S. and international law are at the core of U.S. actions against terrorism.

Wrap Up Discussion I

by John Bellinger

As I look to wrap up what has been an energetic and stimulating dialogue on a host of international legal issues, I would like to post some responses now, and will conclude next week. Let me reiterate how much we appreciate the comments, especially from those who have provided detailed legal and historical analysis. For too long, the discourse on these complex and difficult issues has been at too high a level of generality, and these comments have been very helpful to us.

I want to begin by tackling perhaps the most fundamental issue underlying many of the threads this week: why the United States believes it is in an armed conflict with al Qaida. Marko, for example, has stated that he continues to disagree with the premise that the conflict with al Qaida is a global armed conflict, preferring to view the conflict as discrete wars in Afghanistan and Iraq. I have already discussed in depth why we view our conflict with al Qaida in global terms. The magnitudes of the attacks they have undertaken against us and our allies across the globe belie the comforting conclusion that the enemy is confined to discrete geographical locations. But regardless of whether one accepts that argument, it seems beyond controversy that our actions in Afghanistan in 2001 and 2002 constituted a war. U.S. and Coalition forces were engaged in military actions, not enforcement of criminal laws. And I think the continued casualties inflicted on Coalition troops in Afghanistan, and on civilian populations around the globe by al Qaida, confirm that this conflict is ongoing. Most critically though, whether one then views those detained in this conflict as detained in a global or territorially-discrete conflict does not change the central legal proposition that they are wartime detainees to whom the law of war applies.

What it means for individuals to be detained under the law of war has been the source of much consternation on this board as well. Many posts have suggested the view that everyone captured in the conflict with al Qaida and the Taliban is entitled to protection under either the Third or Fourth Convention. While I can understand an aspiration that there be no gaps in coverage between the two Conventions, I thought Geoffrey Corn’s reference to the final record of the drafting sessions helpfully clarified that the conventions were designed to protect certain specific types of individuals, not everyone.

For example, the Third Convention on prisoners of war describes with great precision the 6 categories of persons who are considered to be prisoners of war — including members of the armed forces of a party to the conflict, members of other militias and volunteer groups who meet four specific conditions, and persons who accompany the armed forces — and 2 categories of persons who are to be treated as prisoners of war. The Fourth Convention on civilians specifically excludes several categories of persons from its coverage, such as nationals of a state not bound by the convention and, in certain circumstances, nationals of a neutral state in the territory of a belligerent, and nationals of a co-belligerent state — as well as persons covered under the First, Second or Third Conventions. As Geoffrey Corn’s post makes clear, the Fourth Convention was designed to protect civilian victims of war, and was not intended to be a “safety net” to protect “illegitimate bearers of arms who could not expect full protection under rules of war to which they did not conform.”

Others took issue with how we’ve gone about determining whether a combatant is entitled to protection under the Third Convention. Ken Anderson’s observation that while as an international law matter the President was authorized to designate the Taliban and al Qaida as unlawful combatants, as a policy matter it would have made sense to use Article 5 Tribunals to do so, is also worthy of comment. The United States was not, and no country could have been, prepared to deal with the type of massive terrorist attacks and worldwide terrorist network that we confronted on September 11. There was no book on a shelf somewhere that contained a ready legal guide to combating armies of transnational terrorists. Article 5 of the Third Convention provides: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.” In 2002, our government concluded that because, as a legal matter, al Qaida (because they were not a party to the Convention) and the Taliban (because of their actions) could not qualify under any circumstances as POWs, Article 5 Tribunals were not necessary or appropriate.

Since that time, U.S. policies and practices have had to evolve significantly.

The United States has now created additional processes to ensure that those detained at Guantanamo are the right people to detain and are not detained any longer than is necessary. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present information, and may appeal the determination of the CSRT to our federal courts. It is simply not correct to say that detainees have not and will not have access to our federal courts to review their detention. Nearly 40 detainees have been released as a result of this process.

Detainees who the United States does not intend to prosecute by military commission also have their detention reviewed annually by an Administrative Review Board. This Board determines whether the detainee can be released or transferred without posing a serious threat to the United States or its allies. We are aware of concerns about the indefinite nature of the conflict with al Qaida and the resulting concerns about indefinite detention. ARBs attempt to address these concerns by balancing our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary. To date, more than 200 detainees have been released or transferred pursuant to the ARB process.

While I hope this addresses some of Katherine’s (and Nathaniel Nerode’s) concerns about the CSRT and ARB process, I do think she raises a good point about the difficulty of repatriating some detainees who have been designated as eligible for transfer or release. We have nearly 75 additional detainees that we would like to move off of Guantanamo, but have been unable to do so to date. In some instances, countries are not willing to take back their nationals, either because they cannot confirm their nationality or because they lack the will to accept back those that have been at Guantanamo. In other instances, countries have been unwilling or unable to take the steps needed to ensure that transferred detainees will not pose a threat to the United States or its allies. We are not in a position to transfer detainees to still other states because we have concerns about how those states will treat their nationals once returned. The State Department will continue to push countries to take back their nationals with appropriate security and humane treatment assurances. Similarly, we look to other countries in Europe and elsewhere help resettle those detainees who cannot be repatriated. Guantanamo is not going to be closed any faster by more breathless calls for its “immediate” closure, but foreign governments and NGOs can help reduce the number of detainees by urging countries to take responsibility for their nationals.

Katherine also wrote that she utterly disagreed with the contention that the Convention Against Torture does not apply to the war on terror. I want to clarify (again!) that this has never been our contention. We have never said that the Convention Against Torture (or the ICCPR for that matter) does not apply in times of war; frankly, this is one area where our position has repeatedly been mischaracterized, including by the Committee Against Torture and the Human Rights Committee.

What we have said is that from a legal perspective, whether a particular situation falls within the scope of any treaty requires a review of the specific conduct and the potentially relevant treaty provision(s) according to their terms. When dealing in situations of armed conflict, you also have to take into account that there is an entire body of law — the law of armed conflict or international humanitarian law — that provides specialized rules (the lex specialis) that govern. This does NOT mean that we think the CAT does not apply in a time of war. Of course it does. Our police are not free to ignore the CAT when they make arrests inside the United States. But when our troops are engaged in military operations, they follow the applicable laws of war, which provide specific rules (such as for the repatriation of prisoners) but which also include many analogous and often identical rules (such as the prohibition against torture).

As lawyers we believe that you have to read the treaties as they are, not as how some would like them to be. For example, we are often criticized for our long-standing position (dating from when Eleanor Roosevelt negotiated the Covenant) that the ICCPR does not apply extraterritorially. This view is based is based on the plain text of Article 2 of the ICCPR, which says that the Covenant applies only to individuals who are both within its territory and who are subject to its jurisdiction. This interpretation is supported by the plain text of the convention as well as its negotiating history (travaux preparatoire). You can read about our interpretation in detail here.

Another example — one Katherine mentioned — is Article 3 of the Convention Against Torture, which is a prohibition on transferring persons to another country where it is more likely than not that they will be tortured. One of the legal issues that has arisen in interpreting Article 3 has been whether it applies to transfers from outside the United States. Again, our legal conclusion, based on the plain text and Supreme Court interpretations of the term “refouler” (see Sale v. Haitian Centers Council, 509 U.S. 155 (1993)) as well as the negotiating history of the provision is that it does not. (More detail is on pages 32-37 of this document).

While we recognize that some might not agree with that legal analysis (the Committee Against Torture did not), we also believe that is based on a solid, good faith legal analysis of the text of the Convention, not on some results-driven attempt to evade the law.

Of course, we share the concern about not sending people to face torture. That’s why regardless of the legal analysis, in all cases the United States applies the standard the United States agreed to in Article 3 to detainees transferred from outside the United States (e.g., Guantanamo) as a matter of policy. We do not transfer people to countries where we believe it is more likely than not that they will be tortured. This policy applies to all components of the U.S. government and to individuals in U.S. custody or control wherever they might be detained.

Just as we must be careful about asserting what treaties mean, similarly we think people need to be more careful when making assertions about what constitutes “customary international law.” This has received attention in many posts, and some have cited to the recent study by the International Committee of the Red Cross (ICRC) on Customary International Humanitarian Law to support their arguments. There is general agreement that customary international law develops from a general and consistent practice of states followed by them out of a sense of legal obligation. Further, the law develops largely from the practice of specially affected states, not from commentators, statements by non-governmental organizations, or the practice of states with little history of participation in the activities in question. For that reason, the United States has concerns about the methodology of the ICRC study, and we have addressed those concerns directly with them. While we welcome the study’s discussion of this complex and important subject, and appreciate the major effort that the ICRC and the study’s authors have made, we are not in a position to accept without further analysis the study’s conclusions that particular rules related to the laws and customs of war in fact reflect customary international law.

A number of comments addressed the issue of proportionality, and correctly noted (Geoffrey Corn/Matthew Gross) that the concept is as much a part of state practice as it is based in treaty law. In addition to the Army Field Manual identified by Corn, the U.S. Navy’s Commander’s Handbook on the Law of Naval Operations provides that incidental injury or collateral damage must not be “excessive in light of the military advantage anticipated by the attack.” The concept of proportionality appears in somewhat different terms in Articles 51(5)(b) and 57(2)(a)(iii) of Additional Protocol I. Proportionality is at issue not only in battlefield applications, but in the strategic context as well, as reflected in Daniel Webster’s letter to Mr. Fox concerning the Caroline incident (noting that Her Majesty’s Government would have to show that the Canadian authorities did nothing “unreasonable or excessive”?) and in the advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons (“the submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law.”?)

Although time and space do not allow a complete discussion of the concept of proportionality as relates to all the questions raised by Benjamin Davis, Katharine and others, it is our position that the response to the attacks of 11 September 2001 has been as limited and as focused as possible to decisively counter the threat to the United States. The combat operations in both Afghanistan and Iraq were “swift and decisive” (as Matthew Gross referred to the war in Iraq). As relates to detainee operations and the unlawful enemy combatants at Guantanamo Bay, Cuba, it is instructive to recall that only about 700 of over 80,000 individuals who were detained in Afghanistan, Iraq and elsewhere were transferred to Guantanamo — the vast majority were screened and released.

Along those lines, several of the commentators repeated some of the allegations that have appeared in the press and in other fora about various U.S. actions. As I asked the U.N. Committee Against Torture, I would ask you not to believe every allegation that you have heard. Allegations about U.S. military or intelligence activities have become so hyperbolic as to be absurd. Critics will now accept virtually any speculation and rumor and circulate them as fact. The U.S. Government has attempted to address as many of these allegations as quickly and as fully as possible. And yet, as much as we would like to deny the numerous inaccurate charges made against our government, because many of the accusations relate to alleged intelligence activities, we have found that we cannot comment upon them except in a general way. So we ask that, when considering the “proportionality” of our actions in the global war on terror, everyone keep a sense of proportion and perspective about the relatively few actual cases of abuse and wrongdoing that have occurred. The United States is committed to the rule of law and has a well-functioning legal system to ensure criminal and civil accountability.

And speaking of criminal accountability, the comments to my post on The Meaning of Common Article Three reinforced in my mind the importance of clarity in criminal statutes and their implementing regulations. Katherine asks, “Doesn’t the U.S. Army court martial people for ‘conduct unbecoming an officer and a gentleman.'” Indeed, the Army does so, as do the other uniformed services. However, while the text of Article 133 of the Uniform Code of Military Justice (a federal law, enacted by Congress in 10 U.S.C. 47) proscribes “conduct unbecoming,” the Manual for Courts-Martial (prescribed by Executive Order 12473, April 13, 1984, to implement the U.C.M.J.) contains etailed explanations of the nature of the offense, the type of conduct that violates the article, and examples of specific offenses. As I noted in my post, the US government never prosecuted anyone under the War Crimes Act, perhaps because of the lack of clarity in the statute. I believe the amended Act goes a long way toward correcting that lack of clarity, particularly since it contemplates that the President may issue further interpretations of what constitutes violations of CA3. I concur with Non liquet, citing Marty Lederman, that simply because a provision is broad does not necessarily make it vague. But, as Alan Kaufman notes, people are “seriously divided” on many of these issues.

Finally, I do want to briefly touch on Eric Posner’s comments about the bargain theory of war. While I found his piece to be an interesting intellectual exploration of the theory underlying the law of war in general, and the Geneva Conventions in particular, I believe it was an oversimplification of the relevant considerations. Eric contends that there is a dichotomy between the bargain model, whereby one limits one’s war making ability to extract similar concessions from other states, and the universalist model, whereby individuals have certain basic rights that cannot be transgressed regardless of that individual’s conduct. But the truth is that the law of war and the Geneva Conventions have elements of both concepts. For example, as I’ve already explained the Third Convention does operate as a bargain of sorts, by for the most part reserving its protections for soldiers of States that have accepted its strictures. But Article 85 of that Convention explicitly maintains POW treatment for those who qualify even after conviction for a violation of the laws of war, an example of universalist thinking. At the end of the day, I think the United States acts true to its tradition and history in considering certain norms sacrosanct, such as the prohibition on torture, and therefore cannot be disregarded regardless of the behavior of the enemy. But I also think we act consistently with international law in denying the full protections accorded lawful combatants to terrorist groups like al Qaida.

The President’s Constitutional Authority over International Law: Some Further Thoughts

by Michael Ramsey

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.

Illegal Combatants and Counter-terrorism — A Middle Way

by Charles Garraway

Like others, I have followed this week’s entries with fascination. From outside the United States, it is a pleasure to see such a spirited debate conducted in such a fine manner. It is a tribute to John Bellinger that the thoughtful tone that he set at the start has been continued.

I wish to take up two points. First, there is the issue of unlawful combatants/unprivileged belligerents. As I made plain in my earlier contribution, I agree in practice with much of what John says. However, in trying to get the message across to a European audience, it is necessary to realise the linguistic change that took place between 1907 with the Hague Regulations and 1977 with the Additional Protocols. In Hague, Chapter 1 is headed ‘The Qualifications of Belligerents’. There follow three articles dealing with the armed forces, ending with Article 3 which states ‘The armed forces of the belligerent parties may consist of combatants and non-combatants’. We tend to view that article through 21st century glasses and consider that non-combatants relate to medical and religious personnel but that was not how it was seen in 1907. Your status as a member of the armed forces was one of belligerent; your conduct decided whether or not you were a combatant. Thus logistic personnel – and even military lawyers! – would be considered as ‘non-combatants’ as they did not take a direct part in hostilities.

Although the vocabulary was already beginning to adapt prior to that date, 1977 and Additional Protocol I fundamentally changed the meaning of ‘combatant’. All members of the armed forces (other than medical and religious personnel) were now combatants by status, regardless of what they did. Everybody else was a ‘civilian’ though civilians would lose their protection as such by taking a direct part in hostilities. The word ‘belligerent’ has gone and with the change of meaning of the word ‘combatant’, there is no longer any agreed word to describe the person who takes a direct part in hostilities as a matter of conduct. In debates in the United States, he is referred to as a ‘combatant’, whether lawful or unlawful, in accordance with the Hague usage but to those brought up on a diet of Protocol I language, an ‘unlawful combatant’ has a completely different meaning. That is why I prefer to go back to the old Baxter term of ‘unprivileged belligerent’. If we have reversed the meaning of combatant, then maybe the only answer is to do the same with belligerent. Viewed in this way, much of the debate over unlawful combatancy dies away. As John Bellinger rightly says, the concept has an ancient lineage.

My second point is to agree in large measure with Ken Anderson. Counter-terrorism lies on the borderline of differing legal regimes and we need to use all the legal tools in out toolbox, not just to concentrate on one. There is indeed a place for the laws of armed conflict, as Afghanistan made clear, but there is also a place for criminal law, domestic, transnational and international, with the consequent impact of human rights law. At present, these regimes tend to rub against each other like tectonic plates with occasional earth tremors where they conflict, whether it is in the right to use force or the right to detain and prosecute. We need to work to try to produce a cohesive set of legal standards that apply across the spectrum of violence, not least so that our long suffering service personnel can know exactly where they stand. The soldier, sailor, marine or airman who is faced with the real life problems that we have been arguing over this week deserves nothing less.

More Guest Blogging By Bellinger

by Duncan Hollis