27 Jul International Law in the U.S. Supreme Court: A Brief Response to Professor Kent
I would like to thank Opinio Juris for hosting this book discussion, and I would like to thank the several contributors for their insightful and provocative posts. This post responds specifically to Andrew Kent’s skeptical reaction to David Golove’s claim that the judiciary had an active role in policing executive branch compliance with the laws of war. I believe that the book provides a fair amount of support for Professor Golove’s claim, at least through the Spanish-American war.
After the Quasi-War with France, the Supreme Court invalidated wartime seizures of property by the executive in United States v. Schooner Peggy, 5 U.S. 103 (1801) and Little v. Barreme, 6 U.S. 170 (1804). In the War of 1812, the Court invalidated wartime seizures of property in Brown v. United States, 12 U.S. 110 (1814) and The Nereide, 13 U.S. 388 (1815). After the Civil War, the Court invalidated a wartime seizure of property in United States v. Padelford, 76 U.S. 531 (1870). During and after the Spanish-American War, the Court invalidated wartime seizures of property in The Buena Ventura, 175 U.S. 384 (1899), The Paquete Habana, 175 U.S. 677 (1900), and MacLeod v. United States, 229 U.S. 416 (1913). (This list is not comprehensive.)
In all these cases, the executive relied at least partly on the law of war to justify a seizure of property. And in all these cases, the Court ruled against the executive and held that the challenged seizure was improper. Hence, all these cases provide at least some support for the claim that the Supreme Court, before World War I, played an active role in policing executive compliance with the laws of war.
On the other hand, there are specific features of each of these cases that complicate the story.
In many of the cases cited above, the Court relied on something other than the law of war to constrain the President. In Schooner Peggy the key constraint was a treaty; in Little v. Barreme it was a statute; in Brown it was the Constitution. Thus, all three cases involved constraints on the executive’s wartime power, but the law of war did not provide the key constraint.
In other cases, such as U.S. v. Padelford and The Buena Ventura, the Court applied the law of war to constrain the executive, but it did so indirectly. In Padelford the Court invoked the law of war to help interpret a statute. In The Buena Ventura the Court invoked the law of war to help construe a Presidential proclamation. In neither case did the Court apply the law of war directly as a constraint on executive power.
In The Nereide and MacLeod v. United States, the law of war arguably did provide the key constraint on executive power. However, The Nereide involved a seizure by a privateer, not a military officer. And MacLeod involved collection of import duties in a zone of military occupation, not a seizure of goods from the enemy. Thus, The Paquete Habana may be the only case where the Supreme Court applied the law of war directly to invalidate a wartime seizure of enemy property by a U.S. military officer.
In my view, though, the key point is that in all these cases the Court employed its judicial power as a constraint on wartime actions of the executive in situations where the President or his representative invoked the law of war to help justify those actions. In this sense, the above-cited cases support the Court’s conclusion in Hamdi that war is not “a blank check” for the President. Moreover, they support the conclusion that the judiciary has some responsibility to ensure that the President exercises his wartime authority in a manner that is consistent with a web of constraints created by the Constitution, statutes, treaties and the customary laws of war.
Of course, the politico-military context of the war on terror is quite different from any prior wars. Thus, even if we can agree on the history, there is much room for intelligent and spirited debate about the contemporary lessons to be drawn from that history. Our main goal in the book was to help promote a more well-informed debate. I am pleased that most commentators seem to agree that we succeeded in that modest goal.
I would count The Nereide as a case involving the use of the law of war as a constraint on the executive branch. Privateers acted upon commission granted, if memory serves, by the President pursuant to a congressionial act. The commission would outline the privateer’s scope of authorty similar to a presidential order to a military commander. Thus, privateers were effectively an extension of the executive branch. If a privateer seized goods in a manner consistent with his commission but contrary to the laws of war (as is arguably the case in The Nereide), the Court is effectively constraining the executive branch.
We might quibble about whether, in granting a privateer’s commission, a president acts pursuant to executive or delegated congressional authority (to grant letters of marque). Either way, unless Congress expressly authorized granting of commissions without regard to the laws of war, the Charming Betsy would require interpreting that delegated authority in a manner consistent with international law. (We could then argue about whether the Charming Betsy is case in which the Court applied the law of war directly to constrain executive power or whether it was simply a case involving statutory interpretation.)
Response…Dear David (Sloss, that is): I don’t for a moment question that U.S. courts historically played an active role in supervising the Executive through prize litigation. My point went to the underlying reasons for that fairly active judicial role, and whether those reasons are transferable to the different context of today’s war-on-terror detentions. As I wrote, “I think a different or at least supplemental story”–supplemental to Prof. Golove’s account–“can be told about why U.S. courts were so actively involved in prize litigation.” -Andrew Kent