Today’s important D.C. Circuit decision in Al Bihani v. Obama held that international law does not in any way constrain the president in the exercise of his executive authority under the 2001 Authorization for the Use of Military Force that gave him the power to wage war against al Qaeda and its allies. I am no great enthusiast for the incorporation of international law into domestic jurisprudence (see here and here). Nonetheless, I fear that the D.C. Circuit has gone too far here. According to the majority opinion written by Judge Janice Rogers Brown:
Before considering [the detainee's] arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF and other statutes are limited by the international laws of war. This premise is mistaken. There is
no indication in the AUMF, the Detainee Treatment Act of 2005, … or the MCA of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.
It is certainly true that Congress has never enacted a statute requiring the president to follow “[t]he international laws of war as a whole.” But it has compelled the executive to follow those international laws embodied in treaties such as the Geneva Convention that have been duly ratified by the Senate. Article VI of the Constitution clearly states that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Such treaties are therefore binding on the president, as on other government officials. Judge Brown points out that the AUMF and later legislation did not expressly state that these treaties bind the president. However, they don’t have to. The treaties – like other duly enacted laws – are binding of their own force and don’t need to be reiterated in later statutes.
It’s possible that Brown means to argue that these treaties were binding before 2001, but that the AUMF repealed them in so far as they might limit the president’s actions in the War on Terror. I don’t see any indication of that in the text of the AUMF, the relevant portion of which gives the president the authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
Indeed, the text only gives the President the power to use force that is both “necessary” and “appropriate.” Presumably, the word “appropriate” applies only to such force as is legally permitted under American law governing the wartime use of military force. Otherwise, that term would be superfluous. Moreover, when the AUMF was enacted, no one in Congress or the Bush administration claimed that it freed the President of all treaty-based restraints on his wartime conduct. If the resolution were understood to be making such a radical departure from previous legal rules, it would surely have been pointed out and debated at the time. The Supreme Court has often stated that it disfavors interpreting new laws as repealing old ones “by implication.” Surely that rule is especially appropriate in a case like this one, where the asserted implied repeal is so sweeping. Indeed, the Court has ruled that “[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” There is no such irreconcilability here, since the text of the AUMF can easily be interpreted as permitting only such force as is permitted by previous US law governing the wartime use of military power.
It is true, as the Supreme Court ruled in the Medellin case, that some treaties duly ratified by the Senate are not enforceable in Court. But that is not true of all treaties with provisions restricting wartime conduct. Indeed, the Supreme Court has in fact enforced some of these treaties as recently as the Hamdan v. Rumsfeld in 2006.
The D.C. Circuit was on firmer ground in denying that the president is required to follow customary international law, treaties that have not been ratified by the Senate, or other international law materials that have not been incorporated into American domestic law by the US legislative process. John McGinnis and I defended that position at length here. For reasons we explained in that piece, there is good reason to block such “raw international law” from overriding the domestic law of liberal democracies. However, defensible skepticism about international law doesn’t justify the conclusion that the US can never enter into binding international agreements that restrict the president’s wartime actions. Neither does it justify concluding that the AUMF swept away preexisting legal restrictions on the wartime use of force.
I agree with most of the rest of Judge Brown’s reasoning, and I think the court was right to uphold the president’s power to detain Al Bihani. As Judge Stephen Williams pointed out in his concurring opinion (which also rejected the majority argument criticized here), Al Bihani himself admitted that he served an armed unit allied with the Taliban and al Qaeda, and carried a weapon as part of his duties. That is ample reason to detain him as an enemy combatant – even if his primary work was to cook for the enemy fighters rather than participate in combat directly, and even if (as he claimed) he was working for the unit as an independent contractor rather than a full-fledged member. But the D.C. Circuit should have reached that conclusion without ruling that the president’s use of executive power in the War on Terror is completely unconstrained by international law of any kind.
UPDATE: I should have noted that the Military Commissions Act of 2006 does prevent War on Terror detainees from filing claims based on the Geneva Convention. However, that still does not foreclose all international law claims.
Duffy Pratt says:
While a treaty may be the law of the land, that doesn’t mean that it necessarily binds a President. It takes the President and the Senate to make a treaty, but it only takes the President to break the treaty. Has something changed about that principle? On this point, I think the question would end up being what limits, if any, are there on the executive’s authority to abrogate a treaty.
Also, international law might constrain a president, and that would not be the point of this decision. Instead, the decision means simply that international law does not constrain the president as a matter of domestic U.S. law. If Interational law has the mechanisms to pursue its own enforcement and remedies, then it perhaps is still binding on the president.
January 6, 2010, 12:06 amGuy says:
What’s the MCA look like after Boumediene? My understanding is that it only allows the D.C. Court of Appeals to determine whether the procedures set by the Secretary of Defense were followed and whether those procedures are consistent with “the Constitution and laws of the United States”, leaving the word “treaties” conspicuously absent. I know the Supreme Court struck down the habeas-suspending part but they told the District Court not to grant habeas until after the MCA procedures were finished, right?
January 6, 2010, 12:10 amIlya Somin says:
It takes the President and the Senate to make a treaty, but it only takes the President to break the treaty. Has something changed about that principle? On this point, I think the question would end up being what limits, if any, are there on the executive’s authority to abrogate a treaty.
I deny that the President has the power to unilaterally abrogate a treaty. Since a treaty is a law, only the legislative branch has the power to change it. Moreover, neither President Bush nor Obama have ever claimed to abrogat the Geneva Convention and other similar treaties. Bush did assert that the no treaty could constrain presidential war powers, even if not abrogated. But that dubious claim was right rejected by the Supreme Court.
Also, international law might constrain a president, and that would not be the point of this decision. Instead, the decision means simply that international law does not constrain the president as a matter of domestic U.S. law.
Article VI clearly states that treaties ratified by the Senate are a part of US domestic law.
January 6, 2010, 12:14 amzuch says:
Where does the Constitution state that the president is permitted to break treaties (at all, let alone unilaterally and without Senate approval)? It’s not in my copy, so if anyone has a clue where this came from….
Cheers,
January 6, 2010, 12:21 amGuy says:
I guess what I’m asking is that if someone had a claim under the Geneva Convention or any other treaty they would still be able to bring it up on habeas in the District Court after exhausting the procedures of the MCA, right?
January 6, 2010, 12:22 amPeteP says:
I’m sure the Prez will give a presser in the next few days saying ‘Damn that Republican Judge Brown ! She’s giving the President too much power ! I hereby refute her logic, and state publicly that I will be constrained by theose international laws she says I am not constrained by !’
Dont’cha think ? After all, that’s what he would have been screaming for GWB to do, not long ago …. and fair is fair, right ???? “The power of the Bush Unitary Executive / Imperial Presidency must be reigned in” as I recall ?
Right ????
( chirp chirp )
January 6, 2010, 1:40 amDilan Esper says:
1. it’s possible the president could withdraw us from a treaty. goldwater v. carter holds that at least it is nonjusticiable if the president does it; of course that doesn’t necessarily mean that it is legal.
2. but abrogating and violating treaties are two different things. bush was careful to claim we were NOT withdrawing from any human rights treaties. rather, he claimed either they didn’t apply, weren’t violated, or provided no remedy. these arguments all conceded that if the treaties were applicable, were violated, and provided a remedy, bush would be bound to obey them as they were still in force.
January 6, 2010, 3:22 amfederal white collar criminal says:
I would argue that any interpretation of the statute as giving the President powers beyond customary international law would be disfavored under the Charming Betsy canon. Particularly when there is barely any difference between customary international law when the AUMF was passed and now, it does not seem too much of an imposition on Congress to be clear if it wants to abrogate customary international law.
January 6, 2010, 3:54 amAnon Y. Mous says:
True, but any subsequent law, legally enacted, supersedes previous law. Even if any previous treaties did place a limitation on POTUS/USA before AUMF, it would no longer be true to the extent that they conflict with AUMF.
January 6, 2010, 4:56 amCDU says:
President Bush’s unilateral withdrawal from the Anti-Ballistic Missile Treaty in 2001 seems to indicate otherwise. Now, the ABM Treaty situation is somewhat different in that the treaty itself contains a provision allowing either state to withdraw by giving six months notice to the other. However, the Bush did not seek any sort of Senate approval to initiate a withdrawal.
January 6, 2010, 5:00 amMark N. says:
It’s at least possible that this is a significant enough difference to change the outcome. One argument is that if the treaty itself contains provisions for its own termination, then a president exercising that option is simply executing terms of a treaty that the Senate has already ratified— and executing properly ratified treaties is legitimate executive power. Abrogating a treaty that doesn’t itself contain Senate-ratified terms for how to abrogate it might be more questionable.
The Congressional Research Service probably gives the only real answer (PDF), though, which is that it’s a murky and undecided issue, but existing precedent has so far declined to constrain the President.
January 6, 2010, 5:11 amMartinned says:
Indeed. AFAIK this is an issue that has never been decisively resolved, mostly because cases where this would come up are usually non-justiciable or otherwise do not involve anyone with standing to sue.
(Question: How come Congress doesn’t sue the President when they think a line has been crossed? In a number of other democracies countries, and in the EU, that is quite common.)
Another source of information on this issue is the Findlaw annotation of the treaty clause of article II.
January 6, 2010, 9:08 amlgm says:
Judge Brown is another heckuvajob Bushie. Like Alito and Roberts and Scalia, she’s a strict constructionist who is happy to ignore the letter of the law when she doesn’t like the outcome.
January 6, 2010, 9:11 amDarel Finkbeiner says:
So, “it is certainly true” with what Brown actually wrote… yet you still disagree.
January 6, 2010, 9:54 amBart DePalma says:
Given that either Congress or the President can withdraw from treaties at will, the elected branches also arguably have the lesser power to suspend them. Thus, neither elected branch is effectively bound by treaties.
January 6, 2010, 10:40 amzuch says:
This is true. But I’m tweaking the nose of any textualists/Thomasites here. Even if it is true, and it’s a good, or pragmatic, or even necessary idea to allow treaties to be abrogated, it ain’t in the Constitution. One could argue that, similar to repealing laws, a treaty may only be abrogated by modification in the same manner as the treaty was enacted … requiring in the case of laws concurrence of both houses and the president, and in treaties, agreement by the other treaty party unless the treaty specifically allows for unilateral abrogation or withdrawal in its provisions.
Cheers,
January 6, 2010, 10:42 amzuch says:
Oh, yes. Treaties are just fluff and piffle. Not worth the paper they’re printed on. Let’s make sure everyone knows that … and make sure to tell the founders that they were full’o'it when they thought to mention treaties as having any legal meaning in the Constitution.
Cheers,
January 6, 2010, 10:47 amlolwut says:
LOL. We’re more sophisticated here, sorry. Try that schtick elsewhere, maybe Democratic Underground.
January 6, 2010, 11:16 amChris Travers says:
Yeah. Gotta hate Scalia. you know, the Justice who authored the opinions that flag burning was protected, that US citizens detained by the government in the war against terrorism had the full benefit of the criminal courts (dissent in Hamdi, joined by Stevens), that FLIR usage was a search, that students couldn’t be arbitrarily searched by school administrators, etc.
What an enemy of civil liberties we have there…..
(Significantly, Stevens authored the dissents in the flag burning cases and the dissent in the FLIR case.)
January 6, 2010, 11:37 amChris Travers says:
First, I am not sure that is given. Certainly things like the convention against torture end up constraining immigration proceedings whether or not the current administration likes it or not. Secondly as Illya points out the Hamdan decision held that the Geneva Conventions certainly did apply to the current conflict and were binding.
January 6, 2010, 11:45 ammattc says:
a treaty that does not comply with explicit or allegedly implicit constituional powers cannot bind the president, congress or any other part of govvernment. the constitution can only be amended per its delineated procedures.
January 6, 2010, 12:03 pmInternational FInance Lawyer says:
I agree with Professor Somin, in all particulars.
“Customary international law” is not the Constitution, a Law made in Pursuance thereof or a Treaty made under the Authority of the United States. It is therefore not Law of the Land. The court’s forthright statement of the principle is refreshing. federal white collar criminal is wrong; Congress is in the business of making law, not declaring that something is not the law — particularly when the Constitution already says it’s not the law. It would be gratuitous and demeaning to the Constitution.
I also agree that the court is wrong about treaties; a duly adopted treaty is law of the United States (if self-implementing or duly implemented). The court’s dicta was unnecessary in many ways — the law expressly excluded the treaties from the standards for decision and the court correctly found that they would not affect its decision.
A revised opinion or en banc decision might be appropriate to excise the offending dicta.
I don’t see the Supreme Court taking it to affirm (it’s clearly the correct result) and edit out the dicta. (it’s not from the Ninth Circuit, after all.) There’s no conflict among the lower courts. The Supreme Court would probably be delighted not to be bothered by this (and not to have to commit themselves) before the lower courts sketch out the standards for hearings and habeas.
January 6, 2010, 12:33 pmMartinned says:
But it could be made the law of the land. Not being a treaty, international customary law can’t be ratified, but surely Congress can authorise the use of military force subject to the proviso that the laws of war, both treaty based and custom based, have to be observed. Maybe it would be reasonable to ask them to say so explicitly, instead of reading it into the word “appropriate”, but it would seem strange to deny Congress the power to do such a thing completely.
January 6, 2010, 12:54 pmlolwut says:
I agree with International Finance Lawyer agreeing with Somin.
Also:
“If it is constitutionally permissible to place that higher burden on a citizen petitioner in a routine case, it follows a priori [sic] that placing a lower burden on the government defending a wartime detention—where national security interests are at their zenith and the riat their nadir—is also permissible.” Slip op. at 20.
I think JRB meant to use “a fortiori” rather than “a priori.” Correct before publication plz.
January 6, 2010, 1:00 pmlolwut says:
Martinned, typically, you have nothing interesting to say. What you just wrote is pablum.
January 6, 2010, 1:04 pmMartinned says:
I’m surprised you have time to comment here. Shouldn’t you be emailing Gideon Rachman?
[/Flaming]
(Cool story, BTW. Even though the Financial Times is hardly left-wing, GR mentions being harassed like this with some frequency, like in this post from October, and in this one from December 2008.)
January 6, 2010, 1:10 pmRichard Samp says:
Somin: “It is true, as the Supreme Court ruled in the Medellin case, that some treaties duly ratified by the Senate are not enforceable in Court. But that is not true of all treaties with provisions restricting wartime conduct. Indeed, the Supreme Court has in fact enforced some of these treaties as recently as the Hamdan v. Rumsfeld in 2006.”
The Hamdan decision did not, in fact, hold that the Geneva Conventions were enforceable in U.S. courts by Guantanamo detainees. Rather, the majority based its ruling on the Uniform Code of Military Justice. The majority was faced with a binding precedent (Eisentrager) stating that the Geneva Conventions were not enforceable domestically, and it did not purport to overturn that precedent. Rather, it noted that the government was invoking the UCMJ as the basis of its authority to conduct trials before military commissions, and it interpreted the UCMJ as requiring any such trials to be conducted in accordance with the Geneva Conventions: “[C]ompliance with the law of war is the condition upon which the authority set forth in Article 21 [of the UCMJ] is granted.”
The issue in Al Bihani was not whether the President is bound to comply with treaties ratified by Congress. Rather, the issue was whether Al Bihani is authorized to contest his continued detention by invoking the Geneva Conventions and/or other treaties embodying provisions of the law of war which Congress may have ratified but which it has not authorized to be enforced domestically. The D.C. Circuit correctly determined that no, Al Bihani is not so authorized.
January 6, 2010, 1:23 pmDilan Esper says:
The issue in Al Bihani was not whether the President is bound to comply with treaties ratified by Congress.
The President is bound to comply with treaties ratified by Congress. Indeed, there is no doubt whatsoever about this. Treaties are covered by the Supremacy Clause and are part of the “supreme law of the land”, and the President’s enumerated JOB is to “take care that the laws be faithfully executed”.
There is simply no doubt that this is the case.
There are issues about (1) the President’s power to withdraw from a treaty, and (2) the justiciability of claims that the President violated a treaty. But if we don’t withdraw from the treaty (and Bush at no time said he was withdrawing from (or “suspending”, Bart) these treaties), there is not a shred of doubt that they bind the President. Indeed, the entire point of these treaties is to bind the executive branches of every country that signs on.
A lot of this discussion is about either confusing or deliberately blurring the distinction between (1) the courts can’t or won’t do anything to stop the President from violating a treaty and (2) it is legal for the President to violate a treaty. To cut through this– does anyone doubt that a President’s deliberate violation of an important treaty would constitute a legitimate ground for impeachment if the requisite congressional supermajorities were obtained?
January 6, 2010, 2:58 pmRichard Samp says:
Esper: “The President is bound to comply with treaties ratified by Congress. Indeed, there is no doubt whatsoever about this.”
It sounds as though we are in complete agreement. All agree that treaties are part of “the Supreme law of the land.”
But the question at hand is whether Ilya’s criticism of the D.C. Circuit is well-taken. I think not. The majority’s conclusion — that the Geneva Conventions and other treaties embodying “the law of war” are not domestically enforceable — is unexceptionable. And once you arrive at that conclusion, there is no reason to reach the merits of Al Bihani’s claim (that his continued detention violates the Geneva Convention). Judge Williams (in his concurrence) took the opposite approach. He said that since it was clear that Al Bihani’s detention was proper under the Geneva Conventions, there was no reason to reach the issue of whether the Geneva Conventions (by virtue of having been embodied within the AUMF) were enforceable domestically.
January 6, 2010, 4:14 pmDilan Esper says:
But the question at hand is whether Ilya’s criticism of the D.C. Circuit is well-taken. I think not. The majority’s conclusion — that the Geneva Conventions and other treaties embodying “the law of war” are not domestically enforceable — is unexceptionable.
This is too complex and too broad.
Think of several levels to this:
1. Do the GC’s provide an independent basis / cause of action for habeas relief?
2. Did the AUMF incorporate the GC’s by reference in restricting the President to “appropriate” force?
3. Did Congress codify the GC’s in the UCMJ, Torture Act, or other statutes, to what extent, and to what extent do these statutes create enforceable obligations?
4. Should Congressional statutes and even executive orders be interpreted, under the Charming Betsy principle, so as not to conflict with the GC’s or customary international law unless there is a clear intent to violate them?
5. Even if the answer to all of these questions is “no”, is the President required to follow duly ratified, subsisting treaties even if there is no legal remedy for their violation?
Bottom line, this is a complicated area of the law which requires detailed analysis.
January 6, 2010, 4:44 pmChris Travers says:
I disagree here. I think the concurring opinion had it right. The guy admitted to facts that justify his detention so at best all the rest of this is dicta and probably should have been saved for a different case anyway.
January 6, 2010, 5:02 pmBob from Ohio says:
Goldwater v. Carter and Curtiss Wright say you are likely wrong though it depends on what you mean by “abrogate”.
The Constitution gives the Senate a role in “making” treaties, it is silent on “breaking”. Congress can certainly pass a later law that in effects “amends” the treaty in the same way that a later treaty can “amend” a law.
If the treaty, as most do, has withdraw provisions, then the President as “sole organ” [Curtiss Wright]in foreign affairs is the only logical entity to invoke the withdraw provisions.
Now, the messy area is when there is no withdraw provision in the treaty. Goldwater provides some support for the proposition that even here, the president can act. I admit that this is not clear.
January 6, 2010, 7:27 pmDilan Esper says:
Bob:
The President’s withdrawal from a treaty is nonjusticiable, clearly. But that doesn’t mean it’s legal.
Further, it’s important to not take the “sole organ” stuff too literally. Clearly Congress does have lots of power in foreign affairs, including powers to constrain the President. (Among other things, if Congress codifies the provisions of a treaty in an execution statute, the President’s purported withdrawal from the treaty would not in any way affect the vitality of the execution statute.)
Finally, as I’ve said previously, none of this withdrawal stuff is applicable here anyway. Bush could have, if he wanted to, announced that it was the position of his administration that the US was no longer bound by these treaties. Had he done so, I suspect the courts would have ruled the matter nonjusticiable under Goldwater. But he chose not to do this– so there is no doubt that these treaties still bind the executive branch of the government. The questions at issue are questions about the VIOLATION of a treaty on order of the executive branch, not withdrawal.
January 6, 2010, 7:43 pmAGBates says:
These criticisms of the opinion’s sweeping language are basically sound, but Prof. Somin seems to misunderstand the primary way in which international law is relevant to al-Bihani’s habeas petition. Al-Bihani did not broadly claim that he was being held in violation of the Geneva Conventions or some other treaty. Rather, he argued that the purported basis for his detention — the AUMF — did not in fact authorize the government to detain him. Two basic questions were therefore before the habeas court: (1) whom does the AUMF authorize the government to detain? and (2) is al-Bihani such a person?
Question (1) involves statutory interpretation. In Hamdi, a majority of the justices (the plurality plus Justices Souter and Ginsburg), indicated that the AUMF should be interpreted with reference to the international law of armed conflict. (Bradley & Goldsmith have provided a more robust defense of that position here.) International law is primarily relevant in this case as a source of meaning for the AUMF, not as a force that directly constrains the government through the Supremacy Clause.
January 7, 2010, 1:04 amthe federal white-collar criminal says:
You’re missing the point. Charming Betsy is a (very long established) canon that when a statute is susceptible to two reasonable interpretations, the court should prefer an interpretation in accordance with international law, including customary international law. Applying the canon is not “making law” any more than applying the rule of lenity to a criminal statute is “making law.” The rule of lenity ensures that the elected legislature makes a clear, unambiguous decision to choose a harsher punishment. Similarly, the Charming Betsy canon ensures that Congress makes a clear, unambiguous decision to abrogate the country’s sovereign responsibilities on the international plane.
It seems unlikely that Congress intended the AUMF to give the President the authority to do absolutely anything, so there must be some limit to its grant of authority. Since there’s no indication in the text of what that might be, Charming Betsy would counsel that those limitations include the customary rules of armed conflict. But that’s just interpreting the law; as I said in the previous post, Congress could easily state explicitly that the President is authorized to take measures, including those that transgress customary international law.
I would also note that customary international law is unambiguously part of current U.S. law under The Paquette Habana. There is certainly some controversy over whether it is federal common law or state common law (and both arguments have issues), but there isn’t much controversy that you can apply it in U.S. courts. Particularly if you consider it to be state common law, which I find more plausible given that the Constitution gives Congress the power to define and punish violations of customary international law and which can be overidden by statute and federal statutes, it is hard to see how that denigrates the constitution.
January 8, 2010, 12:25 am