09 Aug A Fair and Balanced Discussion of the Military Commission Act of 2006?
The American Journal of International Law has posted a continuation of its “Agora” on the legal validity of the Military Commissions Act of 2006. It continues an earlier Agora which was interesting and intelligent, but predictably one-sided in its relentless criticism of the MCA (thanks to the Chron of Higher Education blog for the pointer).
In its continuation, the AJIL editors provide a little balance by publishing an essay by Duke lawprof Curtis Bradley defending the legality of the MCA (mostly). It also includes a well-done, but (in my opinion), somewhat overwrought analogy between the MCA regime and Latin American disappearances in the 1970s and 1980s by Professor Tom Farer of University of Denver, and a typically fairminded essay by Professor David Martin of UVA.
Bradley is no kneejerk defender of the Administration or the MCA. Indeed, he seems very doubtful that the MCA will be interpreted to eliminate habeas review of constitutional rights in Guantanamo and I think he is right that the MCA will almost certainly interpreted to provide a limited review of constitutional claims made by the detainees in Guantanamo. This will be a close call, but there seem to be five solid votes for this proposition.
What will not be a close call for the Court, he thinks (and I agree), is the MCA’s elimination of the right to raise treaty claims under the Geneva Convention in federal district court or in the court of appeals. His analysis of this seems very sound and I would be very surprised if the Court departed substantially from his analytical approach.
Indeed, I would recommend Bradley’s analysis of the Geneva Conventions to newbie Supreme Court clerks currently preparing for next year’s term. You can’t do much better.
Prof. Bradley’s argument in support of the MCA’s elimination of the right to raise GC claims is based primarily on two false presumptions: (i) the constitutionality of the last-in-time rule and (ii) the meaning of the GCs rely on the parties’ intent. First, as I have argued previously on this blog and in several publications, the last-in-time rule is unconstitutional because, inter alia, it violates constitutional text and incorrectly incorporates the notion of Congressional supremacy that was rejected by the Framers. Prof. Bradley does not address any of these arguments.
Second, the Vienna Convention on the Law of Treaties only allows the parties’ intent to be used to interpret treaties when a special meaning is given to a treaty’s term. This is not the case with the GCs. Rather, the meaning of treaty provisions often evolves in order to ensure compliance with the parties’ other subsequent international legal obligations. Indeed, such an evolving meaning is required under international law. Such other subsequent international legal obligations include the right to national judicial review guaranteed by international human rights law. Prof. Bradley does not address any of this. Furthermore, it is difficult to see how diplomatic measures alone could ensure GC compliance in cases where there are no states or protecting powers that are willing to intercede (in good faith) on behalf of alleged terrorists. Construing the GCs to not guarantee such judicial review would violate their object and purpose.
In opposition to Prof. Ku’s recommendation, I would discourage “newbie Supreme Court clerks” from bothering with Prof. Bradley’s article. They can do better.
Francisco Forrest Martin
The Supreme Court has been consistenly applying the last-in-time rule for well over a century. Even if one could formulate a coherent constitutional objection to it (and I, for one, don’t see how it violates the “constitutional text,” since Article VI makes both Treaties and statutes the supreme law of the land without purporting to rank them, see also Ahkil Amar’s argument that even previously enacted statutes should trump treaties to the extent of any conflict), that ship has long since sailed. As for the second argument, can you point to anything in the text of the GCs (which I take it is an accepted basis on which to determine their meaning) that establishes an indefeasible right to judicial review of Geneva Convention claims?
First, the Supreme Court has NOT been consistently applying the last-in-time rule. See, e.g., U.S. v. Macintosh, 283 U.S. 605, 622 (1931)(“From its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.”). With the exception of the Chinese Exclusion Cases, when SCOTUS does use the last-in-time rule, it uses is without any reasoned justification (except as precedent). And, when SCOTUS did provide a purportedly reasoned justification of the last-in-time rule in the Chinese Exclusion Cases, it justified its use by characterizing Chinese immigration as an “Oriental invasion” — a racist characterization that should shame anyone who approvingly cites the case in support of the rule.
Second, according to the texts of Articles III and VI, federal statutes are only made in pursuance of the Constitution; whereas treaties are made under the authority of the United States. The authority of federal statutes is derivative of the Contitution. The legal authority of treaties comes from the United States itself. Therefore, treaties have greater legal authority than federal statututes. Furthermore, by your Article VI argument, federal statutes would have equal legal authority to the Constitution, which they do not. (And, Prof. Amar’s argument makes no sense because the Constitution also makes pre-Constitution treaties supreme law, but there are no earlier enacted federal statutes that could trump such treaties. Indeed, the Articles Congress did not think so when they made a 1786 U.S.-Prussia treaty, which is still federal law. (See Art. 24:”And it is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this and the next preceding article [governing humanitarian protections], but on the contrary, that the state of war is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law of nature or nations.”)
Finally, as stated in my earlier posting, the GC’s must be construed in conformity with international human rights law that guarantees an effective and sufficient domestic judicial remedy. See, e.g., Namibia Advisory Opinion. The international law governing treaty interpretation does not employ a merely textualist approach. Indeed, SCOTUS has held that treaties are to be liberally construed and treaty constructions must protect human rights. See Tucker v. Alexandroff, 183 U.S. 424, 437 (1902) (“As treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization, and as their main object is, not only to avoid war and secure a lasting and perpetual peace, but to promote a friendly feeling between the people of the two countries, they should be interpreted in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity, so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence.”)
Francisco Forrest Martin
1. I have no idea what Macintosh has to do with the last-in-time rule. It’s a case about whether an alien had met the statutory criteria for naturalization, despite his statments that he would fight only in wars he considered morally justified. No treaty was relevant to the decision or discussed by the court. Certainly, there was no conflict between any treaty and the naturalization statute. Nor does Justice Sutherland’s quote about Congress’ war power at all relevant to the last-in-time rule. Furthermore, it is quite misleading to try to taint that rule by associating with judicial racism. Well before the Chinese Exclusion Cases, the Supreme Court had established (and justified) the last-in-time doctrine in the Head Money Cases and again in Whitney v. Robinson.
2. The text of Article VI clearly makes the Constitution superior to statutes (which must made “in pursuance of the Constitution”). What it does not clearly do is make treaties superior to statutes. To be sure, Article VI says that treaties made under the “Authority of the United States” are supreme law, but I fail to see what the difference in language here has to do with the last-in-time question. (Why does it follow from the fact that statutes are made pursuant to the Constitution whereas treaties are made under the authority of the United States that treaties have “greater legal authority”? That seems a total non sequitur.) After all, the obvious reason for the different language is to make clear that, in distinction to other laws, treaties made under the Articles of Confederation (and not merely those made after ratification of the new Constitution) would trump state law.
3. Yes, treaties are supposed to be construed liberally. The “analysis must begin, however, with the text of the treaty and the context in which the written words are used.” Air France v. Saks, 470 U.S. 392, 397 (1985). And, when courts look beyond the written words, they don’t just get to import into the treaty whatever international human rights lawyers think would be a good idea. Instead, the recognized non-textual interpretive tools include “the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Id. at 396. The goal is to determine what the parties intended, not merely to protect human rights in the abstract (however laudable that may be). And, in the case of the GC’s, I’ve yet to see any evidence that the parties who negotiated the Conventions expected or intended that they would be enforced through actions brought by individual POWs (or putative POWs) in national courts. Cf. GC3 Art. 132.
I should have been more clear. The language from Macintosh is dictum. However, the language clearly extends to treaties and Congress’ inability to violate such international law. Are not “principles of international law” found and reflected in treaties — especially humanitarian treaties that cannot be suspended during war, whereas other treaties PER INTERNATIONAL LAW ITSELF sometimes can?
But, I do stand corrected. Both Whitney and Head Money did give reasons — albeit incorrect reasons as I have argued here and elsewhere in my publications.
As for why “made under the authority of the United States gives treaties more legal authority that federal statutes, I already addressed this in a previous posting to this blog. Both the Constitution and other treaties are made under the authority of the United States. The only reason why the Constitution “trumps” post-Constitution treaties is because (i) it came first and (ii) international law itself allows the invalidation of treaties that conflict with fundamental national law. Federal statutes only have authority derivative of the Constitution and treaties. Think of it this way: federal statutes generally can only address those areas covered by Congress’ enumerated powers. However, treaties (and the rest of the law of nations) have no subject-matter limitation under the Constitution, and Congress only has authority derivative of U.S. treaties (and other international law) to make implementing legislation for such treaties (and other international law). See Article I, section 8’s Define &Punish Clause.
As for the intention of the parties controlling treaty interpretation, I suggest that you read the Vienna Convention on the Law of Treaties. The travaux preparatoires and circumstances surrounding the conclusion of the treaty are only used to confirm the meaning as determined by, inter alia, the parties’ other international legal obligations.
Francisco Forrest Martin
1. What Justice Sutherland is saying (in dictum) is that the scope of Congress’ war powers under the Constitution should be determined by reference to principles of international law. That seems quite plausible. But it’s quite a leap from that to the conclusion that, in the exercise of all of its enumerated powers, Congress lacks the authority to violate international law. (The courts have consistently held otherwise, of course. E.g., United States v. Yousef, 327 F.3d 56, 93 (2d Cir. 2003)). It’s an even greater leap to say that Congress may not, by enacting legislation that conflicts with the terms of a treaty, render that treaty inoperable as a matter of domestic law to the extent of the conflict. Forced to choose between the Supreme Court’s clear and consistent holding that the last-in-time rule is part of our constitutional structure and an isolated dictum that requires two highly implausible inferences to even begin to cast doubt on that holding, I’ll stick with the former.
2. You seem to be conflating the source of authority to enact legislation with the force and effect of that legislation once enacted. You may be right that there are no subject-matter limitations on treaties (though, of course, there’s a long-standing debate on that question), whereas federal statutes must be enacted pursuant to a power enumerated in Article I, section 8. But that does nothing to establish whether a treaty or a statute trumps in the event of a conflict. Your claim is akin to saying that because federal courts have jurisdiction only to decide certain types of cases, their rulings on questions of federal law should be trumped by any inconsistent decision from a state court of general jurisdiction.
3. I’m familiar with the Vienna Convention. Article 31 makes clear that the “terms of the treaty in their context and in the light its object and purpose” are of primary importance in interpreting the treaty. So, I ask again, what “terms” in the Geneva Conventions purport to confer an absolute right of judicial review of individual treaty claims, such that a decision by Congress to render them enforceable only by the Executive Branch would be impermissible?
Madisonian,
1. I cited SCOTUS’ Macintosh decision just to point out that SCOTUS has not been consistent. This should be no surprise given that federal court decisions — including SCOTUS’ — are often inconsistent and/or wrong. I have not relied solely on federal court decisions interpreting arguably vague constitutional text for rejecting the constitutionality of the last-in-time rule. My argument relies also on the Constitution’s travaux preparatoires and circumstances surrounding its conclusion, and the U.S.’ other international legal obligations (e.g., pacta sunt servanda) — which are the proper controlling authorities under international law for construing a treaty, which is what the Constitution is. Your approach isolates the Constitution from any international legal construction, instead relying on arguably vague constitutional text and federal court decisions interpreting such text. I guess that you don’t think that the Constitution is a treaty whose arguably vague provisions must be construed in conformity with the U.S.’ other international legal obligations. If so, I suggest that we address this more fundamental issue of what kind of legal instrument the Constitution is.
2. Yes, I am conflating the authority to make law with the force and effect of the law. Although, e.g., Congress can make a diversity jurisdiction statute that requires the application of state law (which is inferior to federal law), the federal statute still would trump state law. Your federal-state court analogy is inapplicable because state courts do not have more legal authority than federal courts in interpreting federal law, according to the Supremacy Clause and Article III as construed by international law governing international judicial review.
3. Maybe I am missing something, but how could the executive branch alone in all cases enforce all of the GC provisions? For example, SCOTUS retains original jurisdiction over foreign public ministers. Such a foreign minister could be a criminal defendant or plaintiff in a case alleging GC4 violations. Congress cannot strip SCOTUS of original jurisdiction in such a case by giving such jurisdiction to military commissions (or lower federal courts). Doesn’t SCOTUS have Article III authority and a constitutional/international duty to comply with Article 146 of the GC4 by judicially reviewing any GC4 claims raised by the foreign minister?
Francisco Forrest Martin
MESSAGE
1. But Macintosh doesn’t show that the Supreme Court has been inconsistent. The case has nothing to do with the last-in-time rule and even Justice Sutherland’s dictum is not at all at odds with that rule. As for your broader point, you are absolutely right: I do not think that the U.S. Constitution is a treaty or that it should be interpreted as such. Arguably, the Articles of Confederation was a treaty among the several States, but the Constitution self-consciously followed a different path. The Constitution is a fundamental charter of the government of a single nation, executed in the name and for the benefit of the “People” of that nation.
2. You seem to have missed my point, which is that the subject-matter limitations on lawmaking authority should not be equated with limitations on the force of the laws ultimately enacted pursuant to that authority. Even if the United States had the constitutional power to enact treaties on any subject under the sun, and even even Congress’ Article I, section 8 authority was strictly construed, it would not follow that treaties trump statutes in the event of a conflict between them. If you want to argue against the last-in-time rule, you need to find a better hook than that.
Madisonian:
1. I agree that Macintosh does not expressly address the last-in-time rule, but its dictum says that Congress cannot violate principles of international law — which, of course, are incorporated and reflected by treaties. Therefore, SCOTUS has been inconsistent. I might also add that SCOTUS in The Schooner Exchange v. McFaddon also stated that civilized nations could not retract treaty obligations. Assuming that SCOTUS thought that the U.S. was a civilized nation, then the U.S. also could not retract its treaty obligations.
The Constitution is a treaty. A treaty is defined as a (i) written agreement (ii) between two or more states (iii) governed by international law. First, the Constitution is a written legal instrument. Second, Article VII states that the Constitution is between the states. (It is also “ratified,” which is how treaties come into force.) Third, the Constitution is governed by international law in that the Constitution’s establishment was governed by the law of treaties, and the Constitution incorporates several fundamental international law principles (most noticeably that treaties are law). Therefore, it is a treaty. For more, see Martin, Our Constitution as Federal Treaty, 31 Hastings Const. L. Quart. 269 (2004); Martin, The Constitution as Treaty (Cambridge Univ. Press (2007). I don’t disagree with you on your description of the Constiution as being a fundamental charter of the government of a single nation, etc. Treaties are often such charters. Jay, King, and others used the 1707 Treaty of Union as an analogy to the proposed Constitution during the Constitutional Convention. Indeed, we have a “federal” system — as in “foedus” which means “treaty.”
2. I did understand your point; however, your rule only makes sense in the context of treaties and federal statutes if federal statutes and treaties have equal legal authority (which the last-in-time rule assumes). This is question begging. A treaty can govern both territorial and extraterritorial matters. According to SCOTUS, federal statutes generally cannot govern extraterritorial matters because this would violate international law’s comity presumption against the extraterritorial effect of national legislation. The only way federal statutes can have extraterritorial effect is if international law (e.g., a treaty) allows it. Therefore, the authority of a federal statute to have extraterritorial effect is based on international law (e.g., a treaty). Treaties, on the other hand, do not rely on the authority of federal statutory law to have territorial effect because treaties are part of the supreme law OF THE LAND. The last-in-time rule does not differentiate between treaties that have territorial or extraterritorial effect. It merely claims that treaties and federal statutes have equal legal authority. However, federal statutes have no authority (absent international law) to govern extraterritorial matters, and any authority that lawfully gives federal statutes extraterritorial effect relies on the consent by foreign states (through, e.g., treaty or custom). As John Jay put it best:
“They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.”
A federal statute cannot nullify the consent of a foreign state-party to a U.S. treaty. Therefore, a federal statute cannot nullify a treaty (unless international law itself permits it).
Francisco Forrest Martin
And just to add a little spice, no state can exclude itself from its international obligations through its internal law. That would be constitution on down. A very basic rule of VCLT and customary international law.
Best,
Ben
I believe in another place Jordan Paust has argued against the last in time rule based on the doctrine of vested rights which were noted in some of the cases. See his International Law as United States law.
Also, Bradley does what I have come to call the U.S. Foreign Relations Law tap dance on the Geneva Conventions in a very excellent manner.
One concern with Bradley is that the MCA restriction of the full effect of the Common Article 3 might be a subject of even greater scrutiny by the Supreme Court in the current posture (Congressional and Presidential agreement) because the MCA and the DTA appear to be thinly veiled attempt at limiting liability of high level civilians (Congressional and Executive in particular) for the GC violative orders that they made/acquieced in during the period between the January 7, 2002 Presidential order and the Hamdan decision. The cases showing horrendous treatment that keep coming are taking their toll. The evidence of the CSRT’s and Mil Commissions being sham procedures also take their toll.
Second, the attitude of the home country of the detainee may be significant in determining the process and punishment the person gets in the military commission. The David Hicks case shows the Australian electoral concerns that make the process so home country dependent nature of the process and the punishment. And the stepping in of Cheney’s handpicked “trusted aid” to devise the plea suggests the political nature of these cases more than the judicial nature of them. It is that fundamental political nature of these processes that is not masked on the international plane and which presents a great challenge to those wishing to make apologia – even nuanced apologia. The foreign countries are not bound by these internal procedures of the United States and so may invoke the full extent of the Geneva Conventions and force the military commission – at the risk of causing a treaty breach – to provide Geneva Convention level process rather than ersatz process.
Third, can we have the ICRC Torture Report released so that we can see what happened to those high-value detainees now at Guantanamo? As the Abu Ghraib cases had an effect on the Hamdi, Rasul, Padilla trilogy, one would suspect that the CIA Black Sites ICRC report release would point out the fundamental discontinuity between what the US has said and what it has done. Then, the question becomes whether the Supreme Court has the will to exercise its Judicial Power to help right our state.
Best,
Ben