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Hamdan: Preliminary Observations by Mark Tushnet
The following observations are adapted from comments I prepared for a public forum on Hamdan held at Georgetown University Law Center on June 30, 2006.
Hamdan was an incredibly difficult case for the petitioners to win. Their lawyers had to provide reasons for rejecting, one after another, plausible arguments that would have led to rejecting their claims: several versions of an argument for abstention in deference to pending military proceedings, for example, each slightly different because invoked with respect to different stages of the proceedings.
It would have been immeasurably more difficult had the Administration sought authorization from Congress for its course of action, with respect both to detainees charged with committing war crimes and to the much larger number of detainees held simply as enemy combatants. Does Hamdan indicate that there would be some problemj with prosecuting these detainees for precisely the same crimes with which they were charged in tribunals composed in exactly the same way as the ones at issue there? My first reaction is that the answer is, No, it doesn’t, with one modest qualification with respect to the crimes that can be charged.
The structure of the Court’s opinion is straight-forward. The President claimed that these military tribunals were authorized by federal law, both in the Uniform Code of Military Justice and in the Authorization for Use of Military Force adopted after the September 11 attacks. As to the latter, the Court, following the line adopted in Hamdi v. Rumsfeld, held that, while the AUMF might authorize actions roughly consistent with the law of armed combat, it should not be construed to authorize actions substantially departing from such actions. And, as to the Uniform Code, the Court held that what Congress had authorized were tribunals composed and operating in a manner congruent with the composition and operation of courts martial, unless the President made a focused and defensible determination that congruency was impracticable (defensible, subject to some degree of deference, but less deference than with respect to a presidential determination that courts martial should depart from the procedures used in civilian courts).
So, as the Court analyzed Hamdan, the case involved proceedings that had not been authorized by Congress. Indeed, the thrust of the Court’s opinion is that, Congress having provided for military tribunals in the Uniform Code of Military Justice, the President could not put into effect alternative procedures inconsistent with what Congress had authorized. In the jargon of separation of powers law, the absence of authorization in Hamdan did not place the case in Justice Jackson’s Category Two, where the President acts in the absence of congressional authorization, but rather in Jackson’s Category Three, where Congress’s actions, fairly read, prohibited the action the President took. (And, just as in the Steel Seizure Case itself, congressional prohibition need not be explicit, but can be inferred from the surrounding body of law and tradition.)
What’s next (as a matter of legal possibility, not political likelihood)? Obviously the government can proceed against Hamdan in a court martial, charging him with a substantive offense on the books when he committed the acts with which he is charged. Justice Thomas’s dissent argues, without refutation from the Court on this point (unless I missed it), that Hamdan could be charged in a court martial with committing the war crime of being a member of a criminal organization prohibited by the laws of war. (Justice Thomas thought that he had already been charged with that crime; Justice Stevens and the plurality disagreed.)
More aggressively, the government could take the position that Congress’s purported prohibition of military tribunals was an unconstitutional interference with the President’s power as commander-in-chief to choose whatever means he finds most appropriate to conduct war. This argument would concede that the problem falls within Jackson’s Category Three, but would go on to point out that Jackson said only that in Category Three, the President’s power was at its lowest ebb, not that it was absent. The argument would then be that Congress cannot intrude on “core” presidential powers (perhaps not controversial), that making tactical decisions about the conduct of war is such a power (perhaps more controversial), and that choosing military tribunals of a particular sort is such a tactical decision (plainly, quite controversial).
It’s worth emphasizing that the Court’s opinion in Hamdan does not preclude this argument, although obviously the opinion leans pretty strongly against it. The closest the Court comes to addressing the argument is in a footnote, which says that the President “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.” But, of course, the Jackson-Category-Three argument is that congressional intrusion on core presidential powers is not “proper.” In addition, the footnote concludes, “The Government does not argue otherwise.” But what if it had done so?
And now to the final point: What would the legal position be were Congress to authorize exactly the same tribunals and Hamdan to be charged with a war crime before such a tribunal? It seems to me that the Hamdan opinion does not show, in any way, that such tribunals, authorized by Congress, would be impermissible. The only question the Court discusses is a separation-of-powers question, about the President’s power to convene these tribunals given the other processes Congress has authorized.
Two small points on the law before I conclude with some non-legal observations: (1) There might be an ex post facto problem in charging Hamdan with a crime not in existence at the time he acted, A plurality concluded that conspiracy to commit war crimes was not itself a war crime. The ex post facto problem would arise, at least for the plurality, were Hamdan to face such a conspiracy charge. But, even putting aside the question of whether a prudent Congress and administration could act in the hope that the plurality’s views would not become a majority’s, it’s easy enough to devise charges – like the one Justice Thomas identified – that wouldn’t raise ex post facto problems.
(2) What about the Geneva Convention and Common Article Three? First, as I read the opinion, the Court holds that Common Article Three requires trial before a regularly constituted tribunal, and interprets the term “regularly constituted” to mean, “constituted pursuant to the ordinary methods of establishing tribunals.” And, again as I read the opinion, a statute enacted by Congress creating these tribunals would satisfy that requirement. But, second, and even more obvious, Common Article Three is a provision in a treaty, and well-established law in the United States holds that subsequently enacted statutes can override preexisting treaty requirements (the last-in-time rule). So, even if the tribunals the President constituted violate Common Article Three, a congressional statute explicitly reconstituting them would not be unlawful as a matter of U.S. law.
I’ll conclude with two other observations. (3) One thing people in the administration might be interested in doing – not the only thing, but one thing – is simply running out the clock, that is, keeping all the Guantanamo issues unresolved until January 21, 2009. If that turns out to be what they really want to do more than anything else, I’m pretty sure that they can do so, first by putting the legislative process into operation (and pointing to pending legislation as a reason for courts to move slowly themselves), then by ensuring that whatever legislation that results is vulnerable to legal attack, and then by defending against such an attack with all the weapons a good litigator has available, including appeals and stays of proceedings pending appeal. There’s no guarantee that all this would push things into the hands of the next President, but the odds would, I think, favor the President on this one.
(4) And, finally, some modest advice to government litigators (and perhaps others): As long as Justice Stevens is on the Court, never, never rely heavily on an opinion from which Justice Rutledge dissented strongly. It didn’t work in Rasul, where Justice Stevens had a decent though creative argument that the dissent he had worked on while with Justice Rutledge had been vindicated decades later. And it didn’t work in Hamdan, where Justice Stevens had to admit that Yamashita provided strong support for the government, but then was able to say, again creatively, that subsequent decisions, here by Congress, vindicated the dissent.
Posted by Mark Tushnet in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (2) | TrackBack (0)
Full Version: Georgetown University Law Center Panel on
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Hamdan Panel: David Luban
Notes by Rebecca Tushnet.
David Luban discussed the implications of Hamdan for interrogation policy and torture debate, and what it means to talk about Common Article 3. The Geneva Conventions are treaties on how people who are out of combat should be treated: the sick, wounded, or captured; prisoners of war; civilian captives. They have different sets of rights, but Article 3 is common to all of them. There are split-level protection: Standard, old-paradigm war of one state against another offers a large array of protections for captured prisoners. If it’s not state against state (not of “international character,” according to the Court), Article 3 gives a basic minimum set of rights even for Al Qaeda captives. They’re protected from sentences and executions without judgment by a regularly constituted court with guarantees recognized as indispendable protections by civilized people.
Other articles protect captives from murder, mutilation, cruel treatment, torture, and outrages upon personal dignity (including humiliating and degrading treatment). So all those things apply to Al Qaeda captives too, after Hamdan. The federal war crimes statute criminalizes violations of Common Article 3.
One implication: It ups the stakes dramatically for participants in the military commissions. If they proceed and are not properly constituted, that’s a federal felony.
Second, interrogators are bound by Common Article 3. The McCain Amendment had no penalty for cruel, inhuman and degrading treatment, but now there is a penalty for such treatment – it’s a war crime and a felony. The war crimes statute covers both members of the armed forces and civilians who are U.S. nationals, like CIA interrogators. Perhaps this will be a deterrent of rough interrogation, if interrogators feel that a different administration might look on their acts differently. There is an internal debate in the Army at present: will Common Article 3 standards be built into the new Army field manual on interrogation? Hamdan will strengthen the case for inclusion.
Does this end the debate on cruel, inhuman and degrading treatment? No, it just displaces it. What are the standards for humiliating and degrading treatment? The most likely administration line: those standards aren’t really defined in US law. The torture convention also says we should undertake to prevent such treatment; the Senate ratification included an understanding that what we meant was defined by 5th and 8th Amendment standards: what shocks the conscience or is cruel and unusual. An idea floating around the blogosphere: If there’s a legitimate governmental purpose like national security, then the treatment can’t shock the conscience, and thus doesn’t violate Common Article 3. Ultimately, then, Hamdan won’t end the debate but will shift it to whether conduct that would normally shock the conscience no longer delivers the same shock when done in the name of national security.
Posted by Rebecca Tushnet in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (0) | TrackBack (0)
Notes by Rebecca Tushnet.
David Luban discussed the implications of Hamdan for interrogation policy and torture debate, and what it means to talk about Common Article 3. The Geneva Conventions are treaties on how people who are out of combat should be treated: the sick, wounded, or captured; prisoners of war; civilian captives. They have different sets of rights, but Article 3 is common to all of them. There are split-level protection: Standard, old-paradigm war of one state against another offers a large array of protections for captured prisoners. If it’s not state against state (not of “international character,” according to the Court), Article 3 gives a basic minimum set of rights even for Al Qaeda captives. They’re protected from sentences and executions without judgment by a regularly constituted court with guarantees recognized as indispendable protections by civilized people.
Other articles protect captives from murder, mutilation, cruel treatment, torture, and outrages upon personal dignity (including humiliating and degrading treatment). So all those things apply to Al Qaeda captives too, after Hamdan. The federal war crimes statute criminalizes violations of Common Article 3.
One implication: It ups the stakes dramatically for participants in the military commissions. If they proceed and are not properly constituted, that’s a federal felony.
Second, interrogators are bound by Common Article 3. The McCain Amendment had no penalty for cruel, inhuman and degrading treatment, but now there is a penalty for such treatment – it’s a war crime and a felony. The war crimes statute covers both members of the armed forces and civilians who are U.S. nationals, like CIA interrogators. Perhaps this will be a deterrent of rough interrogation, if interrogators feel that a different administration might look on their acts differently. There is an internal debate in the Army at present: will Common Article 3 standards be built into the new Army field manual on interrogation? Hamdan will strengthen the case for inclusion.
Does this end the debate on cruel, inhuman and degrading treatment? No, it just displaces it. What are the standards for humiliating and degrading treatment? The most likely administration line: those standards aren’t really defined in US law. The torture convention also says we should undertake to prevent such treatment; the Senate ratification included an understanding that what we meant was defined by 5th and 8th Amendment standards: what shocks the conscience or is cruel and unusual. An idea floating around the blogosphere: If there’s a legitimate governmental purpose like national security, then the treatment can’t shock the conscience, and thus doesn’t violate Common Article 3. Ultimately, then, Hamdan won’t end the debate but will shift it to whether conduct that would normally shock the conscience no longer delivers the same shock when done in the name of national security.
Posted by Rebecca Tushnet in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (0) | TrackBack (0)
Hamdan Panel: Carlos Vázquez
Notes by Rebecca Tushnet; same disclaimers apply.
Carlos Vázquez: This case is significant for reasons that transcend military commissions. Hamdan was about military commissions in the way Youngstown was about steel mills: a definitive statement about the separation of powers.
Common Article 3 applies to the conflict against Al Qaeda. This is huge. Only 2 justices agreed with the administration’s interpretation of Common Article 3; Scalia didn’t join that part of Thomas’s dissent.
Three points: (1) On the blogosphere, some critics have stated that the Court considered Common Article 3 to be relevant and binding only because incorporated into a statute that authorized the creation of military commissions but included a requirement of compliance with the laws of war. Thus, Common Article 3 would not be binding beyond the statute relating to military commissions. Congress could simply amend the statute. Vázquez thinks this is wrong. The Court did say it was reserving the question of whether the Geneva Conventions were enforceable by Hamdan directly as opposed to through the statute. But that was the nature of the debate: the Court didn’t have to reach the issue.
Whether or not the Conventions are judicially enforceable by individuals in courts is separate from whether the Conventions bind the US and the president. Nothing in the case sets the president free from the Conventions. The administration relied on Eisentrager, but in that case the Court made clear that the Conventions were binding (even if they couldn’t be enforced by a court). All of the OLC opinions written in reliance on the administration’s interpretation will have to be revised.
(2) Other litigants will raise these reserved questions, when people don’t challenge military commissions but rely on Common Article 3. The majority signaled skepticism about the government’s position on this point. At oral argument, Justice Stevens said the administration’s reliance on Eisentrager was reliance on dicta in a footnote. The court’s opinion in Hamdan also includes a footnote to a brief suggesting Eisentrager was wrong and shouldn’t be followed. Even though the issue is open, we got a signal from at least five Justices that Eisentrager doesn’t rule out direct enforcement of the Conventions by individuals.
(3) Can Congress change the result? Most commentary has said yes, because statutes and treaties are of equal stature and the statute can make the treaty no longer valid as domestic law. But there are significant limits on how Congress can act after Hamdan. Look at the opinion from the previous day: Sanchez-Llamas, in which the Court made the point, quoting Marbury, that the Supreme Court itself is the authoritative interpreter of treaties. Thus Congress can’t do what Yoo advocated, “restore the correct interpretation of the treaty” through a law stating Congress’s interpretation of the treaty. Congress can pass a statute inconsistent with the Geneva Conventions, but it would have to do so by repudiating the Conventions. Congress has the raw power to authorize military commissions that violate Common Article 3, but Vázquez thinks and hopes that it would not do so overtly because the Conventions are of tremendous importance to our troops abroad.
Posted by Rebecca Tushnet in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (0) | TrackBack (0)
Hamdan Panel: Neal Katyal, notes by Rebecca Tushnet
Georgetown University Law Center panel on Hamdan v. Rumsfeld, June 30, 2006, sponsored by the GULC Supreme Court Institute:
These are my notes from the panel. I am not deeply familiar with the case and I could not get down every detail, so please treat these as notes, not a transcript.
Mark Tushnet summarized the case and identified some remaining issues, as discussed in his earlier post.
Neal Katyal: He testified over 4 years ago before the Senate Judiciary Committee on military tribunals. He remembers going into his Con Law class, which thought he advocated excessive judicial deference and never thought any law was unconstitutional. He told them he’d found something unconstitutional. Fifty-six months later, not a single person was tried in these commissions even though the administration said there was no time to wait for legislation. They didn’t even indict anyone for 2½ years. The commisions were never really about trying terrorists; they were means to further an agenda of presidential powers in a time of crisis. This agenda is understandable in a lot of ways; any president in office after September 11 would have tried to push his powers to the zenith in many, though not all, areas.
The administration decided to say the courts have no business asking questions because it’s up to the president to authorize whatever he thinks is in the national interest; the executive writes and defines all the offenses, acts as judge and jury, and perhaps even executioner, since the death penalty is available. This is deeply in tension with the founders’ designs, especially when Congress can legislate and has done so.
That’s what was rebuked yesterday, these extravagant claims. Maybe on Sept. 13th, the president did have such powers, but 56 months later, the claims are hollow. We should return to foundational ideals that no one person, no matter how wise he is, can control our government. We’ve already heard calls for legislation to fix the decision from Senator Frist and others. If there were a national security emergency, one would have expected it to occur before the Hamdan decision, since the tribunals haven’t tried anyone. This was not a robust system; it’s indicted 10 people, tried no one, and of the 10, they’re basically low-level. Again, the commissions were not about convicting terrorists, but looking tough on the war on terror. Looking tough and being tough are different things. Being tough is actually prosecuting people in real courts, not going astray from our traditions.
The administration and some in Congress claim an urgent need for legislation. First, we’re talking about 10 people – administration says at most 75 – it’s odd to think there’s an emergent crisis. Especially since Justice claims it’s gotten 500 terrorist convictions in civilian courts. The Court’s decision repeatedly focused on how the existing courtmartial system is tooled up and ready to deal with terrorism cases now, if civilian courts aren’t appropriate.
Yesterday, Katyal debated Professor Yoo on NewsHour who feared that sources and methods would be revealed in trials. The courtmartial system has done a great job of protecting classified information, but there’s a deeper problem with Yoo’s argument: 95% of the evidence is the detainees’ own statements; most of the rest is videotapes from public broadcasts.
The only thing that might come into play is the source and method of interrogation: why did the detainees say these things? That’s what’s hidden by the “sources and methods” language; what the military commission system is about is allowing decisionmakers to consider evidence obtained by coercion. One reason we know this: When Padilla was finally indicted in federal court, he wasn’t indicted for the dirty bomb or other bomb plots. Administration officials, anonymously, told the New York Times it couldn’t charge Padilla with a bomb plot because he and others had been coerced through physical means into giving testimony. That wouldn’t have stood up in civilian trial or courtsmartial. But they’d charged Padilla’s coconspirator in the commission process using the very same evidence at almost the same time. If we feel the need to introduce such evidence into trial, we should do so by clear congressional direction.
Katyal hoped that when Hamdan won, the administration would take a deep breath and think, this is something great about America. The founders anticipated that presidents would press their power. It’s a strength of the country that a Yemeni with a fourth-grade education can sue the government to claim a violation of our own basic laws. We should celebrate this; we are different, and can win the war on terror through soft power, our ability to settle disputes through law. The US has been bashed on Guantanamo, but if you look at what our government – all three branches – has done, we’re doing a lot better than many countries.
Posted by Rebecca Tushnet in Constitutional Law, Current Affairs, International Law | Permalink | Comments (0) | TrackBack (0)
Notes by Rebecca Tushnet; same disclaimers apply.
Carlos Vázquez: This case is significant for reasons that transcend military commissions. Hamdan was about military commissions in the way Youngstown was about steel mills: a definitive statement about the separation of powers.
Common Article 3 applies to the conflict against Al Qaeda. This is huge. Only 2 justices agreed with the administration’s interpretation of Common Article 3; Scalia didn’t join that part of Thomas’s dissent.
Three points: (1) On the blogosphere, some critics have stated that the Court considered Common Article 3 to be relevant and binding only because incorporated into a statute that authorized the creation of military commissions but included a requirement of compliance with the laws of war. Thus, Common Article 3 would not be binding beyond the statute relating to military commissions. Congress could simply amend the statute. Vázquez thinks this is wrong. The Court did say it was reserving the question of whether the Geneva Conventions were enforceable by Hamdan directly as opposed to through the statute. But that was the nature of the debate: the Court didn’t have to reach the issue.
Whether or not the Conventions are judicially enforceable by individuals in courts is separate from whether the Conventions bind the US and the president. Nothing in the case sets the president free from the Conventions. The administration relied on Eisentrager, but in that case the Court made clear that the Conventions were binding (even if they couldn’t be enforced by a court). All of the OLC opinions written in reliance on the administration’s interpretation will have to be revised.
(2) Other litigants will raise these reserved questions, when people don’t challenge military commissions but rely on Common Article 3. The majority signaled skepticism about the government’s position on this point. At oral argument, Justice Stevens said the administration’s reliance on Eisentrager was reliance on dicta in a footnote. The court’s opinion in Hamdan also includes a footnote to a brief suggesting Eisentrager was wrong and shouldn’t be followed. Even though the issue is open, we got a signal from at least five Justices that Eisentrager doesn’t rule out direct enforcement of the Conventions by individuals.
(3) Can Congress change the result? Most commentary has said yes, because statutes and treaties are of equal stature and the statute can make the treaty no longer valid as domestic law. But there are significant limits on how Congress can act after Hamdan. Look at the opinion from the previous day: Sanchez-Llamas, in which the Court made the point, quoting Marbury, that the Supreme Court itself is the authoritative interpreter of treaties. Thus Congress can’t do what Yoo advocated, “restore the correct interpretation of the treaty” through a law stating Congress’s interpretation of the treaty. Congress can pass a statute inconsistent with the Geneva Conventions, but it would have to do so by repudiating the Conventions. Congress has the raw power to authorize military commissions that violate Common Article 3, but Vázquez thinks and hopes that it would not do so overtly because the Conventions are of tremendous importance to our troops abroad.
Posted by Rebecca Tushnet in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (0) | TrackBack (0)
Hamdan Panel: Neal Katyal, notes by Rebecca Tushnet
Georgetown University Law Center panel on Hamdan v. Rumsfeld, June 30, 2006, sponsored by the GULC Supreme Court Institute:
These are my notes from the panel. I am not deeply familiar with the case and I could not get down every detail, so please treat these as notes, not a transcript.
Mark Tushnet summarized the case and identified some remaining issues, as discussed in his earlier post.
Neal Katyal: He testified over 4 years ago before the Senate Judiciary Committee on military tribunals. He remembers going into his Con Law class, which thought he advocated excessive judicial deference and never thought any law was unconstitutional. He told them he’d found something unconstitutional. Fifty-six months later, not a single person was tried in these commissions even though the administration said there was no time to wait for legislation. They didn’t even indict anyone for 2½ years. The commisions were never really about trying terrorists; they were means to further an agenda of presidential powers in a time of crisis. This agenda is understandable in a lot of ways; any president in office after September 11 would have tried to push his powers to the zenith in many, though not all, areas.
The administration decided to say the courts have no business asking questions because it’s up to the president to authorize whatever he thinks is in the national interest; the executive writes and defines all the offenses, acts as judge and jury, and perhaps even executioner, since the death penalty is available. This is deeply in tension with the founders’ designs, especially when Congress can legislate and has done so.
That’s what was rebuked yesterday, these extravagant claims. Maybe on Sept. 13th, the president did have such powers, but 56 months later, the claims are hollow. We should return to foundational ideals that no one person, no matter how wise he is, can control our government. We’ve already heard calls for legislation to fix the decision from Senator Frist and others. If there were a national security emergency, one would have expected it to occur before the Hamdan decision, since the tribunals haven’t tried anyone. This was not a robust system; it’s indicted 10 people, tried no one, and of the 10, they’re basically low-level. Again, the commissions were not about convicting terrorists, but looking tough on the war on terror. Looking tough and being tough are different things. Being tough is actually prosecuting people in real courts, not going astray from our traditions.
The administration and some in Congress claim an urgent need for legislation. First, we’re talking about 10 people – administration says at most 75 – it’s odd to think there’s an emergent crisis. Especially since Justice claims it’s gotten 500 terrorist convictions in civilian courts. The Court’s decision repeatedly focused on how the existing courtmartial system is tooled up and ready to deal with terrorism cases now, if civilian courts aren’t appropriate.
Yesterday, Katyal debated Professor Yoo on NewsHour who feared that sources and methods would be revealed in trials. The courtmartial system has done a great job of protecting classified information, but there’s a deeper problem with Yoo’s argument: 95% of the evidence is the detainees’ own statements; most of the rest is videotapes from public broadcasts.
The only thing that might come into play is the source and method of interrogation: why did the detainees say these things? That’s what’s hidden by the “sources and methods” language; what the military commission system is about is allowing decisionmakers to consider evidence obtained by coercion. One reason we know this: When Padilla was finally indicted in federal court, he wasn’t indicted for the dirty bomb or other bomb plots. Administration officials, anonymously, told the New York Times it couldn’t charge Padilla with a bomb plot because he and others had been coerced through physical means into giving testimony. That wouldn’t have stood up in civilian trial or courtsmartial. But they’d charged Padilla’s coconspirator in the commission process using the very same evidence at almost the same time. If we feel the need to introduce such evidence into trial, we should do so by clear congressional direction.
Katyal hoped that when Hamdan won, the administration would take a deep breath and think, this is something great about America. The founders anticipated that presidents would press their power. It’s a strength of the country that a Yemeni with a fourth-grade education can sue the government to claim a violation of our own basic laws. We should celebrate this; we are different, and can win the war on terror through soft power, our ability to settle disputes through law. The US has been bashed on Guantanamo, but if you look at what our government – all three branches – has done, we’re doing a lot better than many countries.
Posted by Rebecca Tushnet in Constitutional Law, Current Affairs, International Law | Permalink | Comments (0) | TrackBack (0)
Hamdan Panel: Wrapup and Questions
Notes by Rebecca Tushnet.
Mark Tushnet: His comments are more pro-administration, though not strongly so. He’s concentrating on legal possibilities rather than political ones. He asks: Does admission of evidence obtained by coercion violate Common Article 3? Exclusion of such evidence obtained by coercion – at least when there is some reason to think the evidence is reliable – is not universal around the world. So we don’t know the impact of Hamdan on admission of coercion-derived evidence.
Katyal: Responding to Tushnet’s point that it’s not good to rely on a case in which Rutledge dissented as long as Stevens is on the Court: Stevens didn’t just clerk for Rutledge; the Yamashita dissent is one of the most powerful dissents Katyal’s ever read.
On war crimes: Yesterday, one enterprising military commission defense attorneys sent a letter to the commission “judges.” It said: dear judges, I’m supposed to file motions today. I request a stay because I don’t want to violate Common Article 3 and participating in the commission might make me liable for war crimes.
Question from the audience: Can Congress repudiate the law of nations? Vázquez: For purposes of domestic US law it can, though it would be a big deal. Both treaties and law of nations would continue to bind us internationally, and we’d have to face the consequences, but our judges would look to the statute. Luban: It would be a very dramatic move for the US to repudiate the Geneva Conventions, because they protect US forces as well as people in US hands. When the Justice Department was writing the torture memos, the JAGs wrote outraged letters to Justice lawyers pointing out that the moral high ground is that which protects US captives during any future war. We shouldn’t poison the chalice, since we may be drinking ourselves someday.
Question: We usually make reservations to human rights treaties; did we do so making the Conventions non-self-executing? Luban: We didn’t with the Geneva Conventions. Vázquez: The administration’s argument was that there was only one enforcement mechanism, international diplomacy: that was the equivalent of a reservation saying the Conventions weren’t self-executing.
Question: Does the decision have implications for jurisdiction/prosecution in the International Criminal Court? Luban: We’re not necessarily within its jurisdiction, depending on whether an adversary is a party to the ICC. If US personnel were investigated by the ICC, the US gets the first bite at the apple – the ICC can’t take the case unless the US is unwilling or unable to investigate itself, and that’s a pretty high hurdle to jump (apple orchard to clear?). The US has been signing bilateral nonsurrender agreements with as many countries as possible, so those countries won’t hand over US people to the ICC. The Protection of Servicemembers Act also authorizes the president to use all means necessary including force to get servicemembers out of the ICC’s hands: the Hague Invasion Act. Vázquez: His initial reaction is that the decision has no particular implications for the ICC, in that the Court’s interpretation of the Conventions is the same as everybody else’s – the ICC would have adopted the same interpretation, as many other countries and the Red Cross have done.
Question: does Hamdan say we can detain people as long as hostilities go on? Katyal: The Court said the case didn’t involve the detention power. Question: But does this affect the determination of enemy status? Katyal: The district court ruled on this, but the Supreme Court didn’t. That’s now pending in the DC Circuit and will probably be resolved in short order. Luban: Had the Court found no jurisdiction, there would have been significant implications for pending lower court cases, but now those cases can go forward.
Question: Would a law saying that, for domestic legal purposes, the al Qaeda conflict shouldn’t be interpreted as being of an “international character” really harm us internationally? Despite the Court’s profile here, people outside the US might not understand that was a de facto repudiation of the Conventions. Vázquez: He thinks that wouldn’t work, because the Court is the final interpreter of treaties under Marbury. Also, that might not make the commissions “regularly constituted” as required by Hamdan. Tushnet: Tushnet agrees that a statute mandating an interpretation of the Conventions wouldn’t in itself overcome the Court’s interpretation given the Marbury argument. The question would be whether such a statute would count as a repudiation of the Geneva Conventions such that it would make domestic law. Repeals by implication aren’t favored, but it’s not loony to think that the Court would take such a statute to repudiate the underlying obligation rather than to assert of independent interpretive authority. Question: But surely Congress can pass clarifications saying a law shouldn’t be construed in such and such a way, effectively reversing an earlier decision. Vázquez: That’s a repeal, and won’t work in the same way for a treaty because a treaty has independent existence.
Question: What effect will the decision have on extraordinary rendition? Luban: Not much effect, since that’s a different treaty. Common Article 3 doesn’t cover sending someone abroad. Arguably that’s prohibited under the Convention Against Torture, but Hamdan doesn’t reach it.
Question: How far could Congress go in jurisdiction-stripping? Tushnet: If all issues that a litigant might want to raise were channeled into an exclusive remedy procedure, there wouldn’t be a problem. If there are restrictions on the issues that can be raised, you have to look in detail to see if they’re sufficiently severe to deny due process. His quick and dirty view: The limits in the DTA are not severe enough to violate due process.
Question: Is the defense of following military orders available in a prosecution under the war crimes law? Tushnet: You’d have to worry about the mental element required for commission of the war crime. If willfulness is required, case law suggests that at least reasonable reliance on advice of counsel provides you with a defense. Certainly the OLC believed that reasonable reliance would provide such a defense because that’s the reason they produced the torture memo – not to authorize torture, but to ensure that CIA agents who might engage in it would have a defense. Luban: the war crimes statute doesn’t have a mens rea specified at all. It’s a felony to commit a war crime. The statute is a cipher on mens rea. The usual doctrine for defense of superior orders is that you may disobey a dubious legal order but you’re assuming the risk that it’s legal and may be courtmartialed. If it flies the black flag of illegality, you must defy it. This may change from one period to the next. It may be that while the memos are flying there’s no certainty about waterboarding, but at this point any CIA operative who waterboarded in the wake of Hamdan is doing something manifestly illegal.
Posted by Rebecca Tushnet in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (0) | TrackBack (0)
Notes by Rebecca Tushnet.
Mark Tushnet: His comments are more pro-administration, though not strongly so. He’s concentrating on legal possibilities rather than political ones. He asks: Does admission of evidence obtained by coercion violate Common Article 3? Exclusion of such evidence obtained by coercion – at least when there is some reason to think the evidence is reliable – is not universal around the world. So we don’t know the impact of Hamdan on admission of coercion-derived evidence.
Katyal: Responding to Tushnet’s point that it’s not good to rely on a case in which Rutledge dissented as long as Stevens is on the Court: Stevens didn’t just clerk for Rutledge; the Yamashita dissent is one of the most powerful dissents Katyal’s ever read.
On war crimes: Yesterday, one enterprising military commission defense attorneys sent a letter to the commission “judges.” It said: dear judges, I’m supposed to file motions today. I request a stay because I don’t want to violate Common Article 3 and participating in the commission might make me liable for war crimes.
Question from the audience: Can Congress repudiate the law of nations? Vázquez: For purposes of domestic US law it can, though it would be a big deal. Both treaties and law of nations would continue to bind us internationally, and we’d have to face the consequences, but our judges would look to the statute. Luban: It would be a very dramatic move for the US to repudiate the Geneva Conventions, because they protect US forces as well as people in US hands. When the Justice Department was writing the torture memos, the JAGs wrote outraged letters to Justice lawyers pointing out that the moral high ground is that which protects US captives during any future war. We shouldn’t poison the chalice, since we may be drinking ourselves someday.
Question: We usually make reservations to human rights treaties; did we do so making the Conventions non-self-executing? Luban: We didn’t with the Geneva Conventions. Vázquez: The administration’s argument was that there was only one enforcement mechanism, international diplomacy: that was the equivalent of a reservation saying the Conventions weren’t self-executing.
Question: Does the decision have implications for jurisdiction/prosecution in the International Criminal Court? Luban: We’re not necessarily within its jurisdiction, depending on whether an adversary is a party to the ICC. If US personnel were investigated by the ICC, the US gets the first bite at the apple – the ICC can’t take the case unless the US is unwilling or unable to investigate itself, and that’s a pretty high hurdle to jump (apple orchard to clear?). The US has been signing bilateral nonsurrender agreements with as many countries as possible, so those countries won’t hand over US people to the ICC. The Protection of Servicemembers Act also authorizes the president to use all means necessary including force to get servicemembers out of the ICC’s hands: the Hague Invasion Act. Vázquez: His initial reaction is that the decision has no particular implications for the ICC, in that the Court’s interpretation of the Conventions is the same as everybody else’s – the ICC would have adopted the same interpretation, as many other countries and the Red Cross have done.
Question: does Hamdan say we can detain people as long as hostilities go on? Katyal: The Court said the case didn’t involve the detention power. Question: But does this affect the determination of enemy status? Katyal: The district court ruled on this, but the Supreme Court didn’t. That’s now pending in the DC Circuit and will probably be resolved in short order. Luban: Had the Court found no jurisdiction, there would have been significant implications for pending lower court cases, but now those cases can go forward.
Question: Would a law saying that, for domestic legal purposes, the al Qaeda conflict shouldn’t be interpreted as being of an “international character” really harm us internationally? Despite the Court’s profile here, people outside the US might not understand that was a de facto repudiation of the Conventions. Vázquez: He thinks that wouldn’t work, because the Court is the final interpreter of treaties under Marbury. Also, that might not make the commissions “regularly constituted” as required by Hamdan. Tushnet: Tushnet agrees that a statute mandating an interpretation of the Conventions wouldn’t in itself overcome the Court’s interpretation given the Marbury argument. The question would be whether such a statute would count as a repudiation of the Geneva Conventions such that it would make domestic law. Repeals by implication aren’t favored, but it’s not loony to think that the Court would take such a statute to repudiate the underlying obligation rather than to assert of independent interpretive authority. Question: But surely Congress can pass clarifications saying a law shouldn’t be construed in such and such a way, effectively reversing an earlier decision. Vázquez: That’s a repeal, and won’t work in the same way for a treaty because a treaty has independent existence.
Question: What effect will the decision have on extraordinary rendition? Luban: Not much effect, since that’s a different treaty. Common Article 3 doesn’t cover sending someone abroad. Arguably that’s prohibited under the Convention Against Torture, but Hamdan doesn’t reach it.
Question: How far could Congress go in jurisdiction-stripping? Tushnet: If all issues that a litigant might want to raise were channeled into an exclusive remedy procedure, there wouldn’t be a problem. If there are restrictions on the issues that can be raised, you have to look in detail to see if they’re sufficiently severe to deny due process. His quick and dirty view: The limits in the DTA are not severe enough to violate due process.
Question: Is the defense of following military orders available in a prosecution under the war crimes law? Tushnet: You’d have to worry about the mental element required for commission of the war crime. If willfulness is required, case law suggests that at least reasonable reliance on advice of counsel provides you with a defense. Certainly the OLC believed that reasonable reliance would provide such a defense because that’s the reason they produced the torture memo – not to authorize torture, but to ensure that CIA agents who might engage in it would have a defense. Luban: the war crimes statute doesn’t have a mens rea specified at all. It’s a felony to commit a war crime. The statute is a cipher on mens rea. The usual doctrine for defense of superior orders is that you may disobey a dubious legal order but you’re assuming the risk that it’s legal and may be courtmartialed. If it flies the black flag of illegality, you must defy it. This may change from one period to the next. It may be that while the memos are flying there’s no certainty about waterboarding, but at this point any CIA operative who waterboarded in the wake of Hamdan is doing something manifestly illegal.
Posted by Rebecca Tushnet in Constitutional Law, Current Affairs, Geneva Conventions, International Law | Permalink | Comments (0) | TrackBack (0)
This has been televised twice today on C-Span, have been able to catch some of it, hope to find it rebroadcast again when I can see all of it.Since Congress has gone on Fourth holiday, there should be opportunity to again view. I found it extremely informational to watch the audio broadcast of Court hearing the case, impressed with attorney representing Hamdan, have heard Clement before arguing other cases on the government side, not so impressed with his lawyering, and in this case, his and Scalia's co-supporting was obviously blatant.
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