Saying What the Law Is

Deborah N. Pearlstein

In the Military Commissions Act of 2006, Congress suggested that the Geneva Conventions are still good law while simultaneously denying the courts the authority to say what the Conventions mean. Congress and the President cannot have it both ways.

Passed in response to the Supreme Court's landmark ruling in Hamdan v. Rumsfeld,¹ the Military Commissions Act of 2006² (MCA) is by far the most sweeping legislation on the books bearing on the Executive's power to detain, interrogate, and try suspected terrorists. Yet instead of grappling seriously with the issues that have plagued U.S. counterterrorism policy since September 11th, the bill is a creature of political circumstance, advanced in the wake of a devastating loss for the President in the Supreme Court on the eve of midterm elections that amount to a referendum on the political branches' handling of national security. Given the stakes for the President and Congress, it is unsurprising that the Act's most radical provisions take aim at the federal courts.

Indeed, sections of the Act purport to strip the courts not only of jurisdiction to decide core questions of executive authority, but also of the power to "say what the law is" in the cases properly before them. In this respect, Administration lawyers have their work cut out for them as they begin to draft briefs seeking to dismiss numerous habeas cases and civil actions where plaintiffs have challenged Administration detention and interrogation practices. For a statute that purports to protect the courts' Article III judicial power but deny courts the authority to look at all the law before them challenges one of the fundamental tenets of Marbury v. Madison³ itself.

Consider for example Section 5 of the new law, which provides that "[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer . . . is a party as a source of rights in any court of the United States." Cases involving treaties pose questions about the supreme law of the land, and thus clearly fall within the express judicial power of the U.S. federal courts to decide.⁴ It is therefore not at all clear what the Act means when it establishes that this particular set of treaties cannot be invoked as a "source of rights" in any U.S. court.

On one reading, Congress may mean that the Geneva Conventions will not afford litigants a private right of action - a route into federal court - for a particular kind of remedy, like damages. Indeed, some of the bill's legislative history could be invoked to support this view.⁵ While the effectiveness of the statutory language in accomplishing this goal is open to debate, the notion that not all treaties come equipped with built-in "get into court" cards is quite familiar to American jurisprudence.⁶

But another reading, one that Administration lawyers advanced as a matter of treaty interpretation as Hamdan made its way through the courts before the MCA, would have this provision mean that the Geneva Conventions cannot be invoked as a rule of decision in federal courts. Put differently, Administration lawyers may hope Section 5 lends support to the idea that even in the course of a federal criminal prosecution or habeas action, the courts may not look to the Geneva Conventions in interpreting the scope of federal statutory law, imposing limits on the President's Article II powers, or even declaring that certain U.S. government conduct is inconsistent with a treaty's text.⁷ Indeed, when viewed alongside various other provisions of the MCA like § 6(a)(2), which purports to forbid courts from relying on foreign or international law in interpreting the federal War Crimes Act, or § 6(a)(3), which affords the President the "authority for the United States to interpret the meaning and application of the Geneva Conventions," it seems plausible to imagine that the Administration would like to deny courts the power to look to whole bodies of law in the cases they decide.

Apart from the significant debate surrounding statutory interpretation that such a reading would provoke, interpreting Section 5 and analogous MCA provisions in this way would fly in the face of one of the core holdings of Hamdan itself: that whatever the enforcement mechanism, treaties are part of the law of the land binding on the U.S. government. And when a federal court exercising proper jurisdiction believes executive action violates a treaty obligation, the court has, at a minimum, the power to say so. For example, in rejecting the President's arguments that the military commissions convened at Guantanamo Bay were properly authorized, the Hamdan Court looked in part to a federal statute expressly invoking the law of war as limiting the President's authority to convene military commissions. "[R]egardless of the nature of the rights conferred on Hamdan," the Court held, the Geneva Conventions are "part of the law of war. And compliance with the law of war is the condition upon which the authority set forth in [the statute authorizing military commissions] is granted."⁸ Where Congress has specifically pointed to international law as defining the meaning of a statute (such as the War Crimes Act), the courts must look to that law in determining what the statute means.

Yet Hamdan appropriately goes further than this. Expressly overturning the Court of Appeals holding that "the Geneva Conventions are not judicially enforceable," both the majority opinion (signed by five justices) and Justice Kennedy's concurrence emphasized that, whatever the mechanisms for enforcing treaty requirements, as far as the federal government is concerned, "requirements they are nonetheless."⁹ There is a critical - evidently constitutional - difference between the assertion that a treaty provides no private right of action and the assertion that a court cannot look to a ratified treaty as providing the rule of decision. The latter, Hamdan suggests, may be beyond Congress' power to do.¹⁰

The rule could scarcely be otherwise. As scholars like Carlos Vazquez have pointed out, the whole idea of the Supremacy Clause was to make clear that treaties were fair game for the domestic courts.¹¹ Treaties' "true import, as far as respects individuals," the great executive power expansivist Alexander Hamilton wrote in Federalist No. 22, "must, like all other laws, be ascertained by judicial determinations."¹² While this idea hardly resolves the question whether a particular treaty, standing alone, can get a party into court, it strongly supports the idea that once in the courthouse door, a party is entitled to at least a decision on what the law bearing on his case says.

The alternative rule would be strange indeed. Imagine that Congress enacts, for example, a criminal law establishing that those who provide abortions to minors must be sentenced to 30 years in jail. At the same time, Congress instructs the courts that the very same law cannot serve as the basis of a federal indictment. Such a set of laws would seem on their face contrary to the judiciary's Article III powers to interpret the law, and the President's duty to faithfully execute it. But more than this, they would allow Congress (and potentially the Executive) to effectively reap the political benefit of appearing tough on crime without bearing the political cost that might accompany the successful prosecution of a doctor. But when it comes to law enforcement, the Supreme Court has urged against interpretations that would produce just such a result. In requiring that the maximum sentence accompanying a given crime be provided by the legislature and proven to a jury - rather than affording judges the discretion to exceed the sentence provided by statutory law - the Court insisted that our democratic structures discourage legislatures from saying one thing while enabling the courts to do another. Rather, a state is required "to make its choices concerning the substantive content of its criminal laws with full awareness of the consequence, unable to mask substantive policy choices" behind having adopted the underlying law in the first place.¹³ In such a way, the Court noted, "[t]he political check on potentially harsh legislative action is then more likely to operate."¹⁴

The Geneva Conventions are, to be sure, more to protect than to punish, but the principle of democratic accountability for the law on the books is the same. By insisting that the obligations of the Geneva Conventions remain binding on the United States while purporting to deny the Courts the power to say what the Conventions mean, the MCA would avoid precisely the political check the Apprendi Court had in mind. Centrally at issue in the MCA debates was whether the United States would abrogate or otherwise reject Common Article 3 of the Geneva Conventions - treaties ratified by every nation on earth - which provide a baseline standard for the humane treatment of detainees caught up in armed conflict. For many, the international political cost of being seen as running from the Geneva treaties while in the midst of a war in which international counterterrorism cooperation was essential was too great a risk.¹⁵ For others, particularly retired military leaders who advocated vigorously against a provision in the Administration's original draft of the MCA that would have expressly redefined the scope of Common Article 3,¹⁶ any express U.S. effort to limit its Common Article 3 duties would badly undermine the chances that American troops would avoid mistreatment if they were captured by a foreign enemy.¹⁷ From the Administration's perspective, legislation that would tell our allies we were adhering to the Geneva Conventions without permitting the courts to invoke those Conventions to limit U.S. government conduct would seem an ideal solution to the debate.

As long as the judiciary really has the power to "say what the law is," however, Congress cannot simply ask the courts to ignore certain laws just because it is too afraid to bear the political consequences of taking them off the books. If Congress wanted to terminate U.S. participation in the Geneva Conventions (since Common Article 3 under the treaty is non-derogable), it enjoys that power. But it cannot pretend Geneva is still good law while denying the courts the authority to say what it means. It is for that reason, among many others, that any attempt to construe the MCA as forbidding the courts from considering what rights exist under the Geneva Conventions, should fail.

* Deborah Pearlstein is a Visiting Scholar at the Woodrow Wilson School of Public and International Affairs, Princeton University, and Director of the Law and Security Program at Human Rights First.
1 126 S. Ct. 2749 (2006).
2 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 [hereinafter "MCA"].
3 5 U.S. (1 Cranch) 137, 177 (1803).
4 U.S. CONST. art I, § 2; U.S. CONST. art. VI.
5 See, e.g., 152 CONG. REC. S10, 414 (daily ed. Sept. 28, 2006) (statement of Sen. McCain) ("This legislation . . . would eliminate any private right of action against our personnel based on a violation of the Geneva Conventions. The intent of this provision is to protect officers, employees, members of the Armed Forces, and other agents of the United States from suits for money damages or any other lawsuits that could harm the financial well-being of our personnel who were engaged in lawful--I emphasize 'lawful'--activities.").
6 See, e.g., Sanchez-Llamas v. Oregon, 126 S.Ct. 2699, 2677 (2006) (citing Head Money Cases, 112 U.S. 580, 598 (1884)).
7 Bush Administration lawyers have not historically been shy about arguing that "new" security challenges have made it essential to have a governmental structure where the Executive is free to act in security matters "without any interference from the federal judiciary." See, e.g., John C. Yoo, War, Responsibility, and the Age of Terrorism, 57 STAN. L. REV. 793, at 794 (2004).
8 Hamdan, 126 S.Ct. 2749 at 2794 (2006) (citing 10 U.S.C. § 821) (noting President's authority to convene military commissions extends only to those who may be tried by such commissions pursuant to statute or to the law of war).
9 Id. at 2798.
10 Id. See also id. at 2802 (Kennedy, J., concurring) ("The provision is part of a treaty the United States has ratified and thus accepted as binding law."); cf. Sanchez-Llamas v. Oregon, 126 S.Ct. at 2684 (2006) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) at 177 (1803) ("If treaties are to be given effect as federal law [under our legal system], determining their meaning as a matter of federal law 'is emphatically the province and duty of the judicial department,' headed by the 'one supreme Court' established by the Constitution."); Williams v. Taylor, 529 U.S. 362, 378-79 (2000) (opinion of Stevens, J.) ("At the core of [the judicial] power is the federal courts' independent responsibility--independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States--to interpret federal law.").
11 CARLOS VAZQUEZ, HAMDAN AND THE GENEVA CONVENTIONS (Georgetown Law Faculty Blog) (June 30, 2006), http://gulcfac.typepad.com/georgetown_university_law/
2006/06/hamdan_and_the_.html.
12 THE FEDERALIST No. 22, at 150 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
13 Apprendi v. New Jersey, 530 U.S. 466, 490 n.16 (2000) (quoting Patterson v. New York, 432 U.S. 197, 228-29 n.13 (1977) (Powell, J., dissenting)).
14 Id.
15 Senator John Warner declared on the Senate floor: "What we do today will impact how we conduct the war on terror for as long as it lasts . . . It will fundamentally impact our relationships with our allies. It will fundamentally impact the image of the United States of America in the eyes of the world. It is crucial to our ability to keep America safe. It will speak most loudly about the core values, the principles of this great Republic known as the United States of America." 152 CONG. REC. S10245 (daily ed. Sept. 27, 2006) (statement by Sen. Warner). See also, e.g., Letter from Families of 9/11 Victims to the Senate Opposing Administration Efforts to Undermine the Geneva Conventions (Sept. 14, 2006), available at
http://www.humanrightsfirst.info/pdf/06918-etn-911-fam-sigs.pdf; Richard Simon, Julian E. Barnes, & Janet Hook, Senate Panel Rebuffs Bush on Detainees, L.A. TIMES, Sept. 15, 2006, at A1.
16 See Brief of Retired Generals and Admirals and Milt Bearden as Amici Curiae Supporting Petitioner, Hamdan, 126 S. Ct. 2749 (No. 05-184).
17 Senator John Warner said on the Senate floor, "Such an action [reinterpretation of the Geneva Conventions] could open the door to statutory reinterpretation by a host of other nations with less regard for human rights than the United States, and would result in possibly our U.S. troops being put at greater risk should they become captives in a future conflict." 152 CONG. REC.. S10246 (daily ed. Sept. 27, 2006) (statement by Sen. Warner). See also, e.g., Letter from 40 Retired Military Leaders to Sen. John Warner and Sen. Carl Levin (Sept. 12, 2006), available at
http://www.humanrightsfirst.info/pdf/06913-etn-military-let-ca3.pdf; Letter from Gen. John Vessey to Sen. John McCain (Sept. 12, 2006), available at
http://www.humanrightsfirst.info/pdf/06914-etn-vessey-geneva-ltr.pdf; Letter from Gen. Colin Powell to Sen. John McCain (Sept. 13, 2006), available at
http://www.humanrightsfirst.info/pdf/06914-etn-powell-ltr-com-art-3.pdf; Letter From Gen. H. Hugh Shelton to Sen. John McCain (Sept. 20, 2006), available at
http://www.humanrightsfirst.info/pdf/06920-etn-shelton-ltr-mccain-ca3.pdf; Editorial, A Crucial Choice, WASH. POST, Sept. 14, 2006, at A20; Editorial, Listen to McCain and Powell, CHI. TRIB., Sept. 17, 2006, at C6; Editorial, Do Not Compromise on Torture, DES MOINES REG., Sept. 20, 2006, at 12A; Editorial, Stampeding Congress, N.Y. TIMES, Sept. 15, 2006, at A24.

Preferred Citation: Deborah N. Pearlstein, Saying What the Law Is, 1 HARV. L. POL'Y REV. (Online) (Nov 6, 2006),
http://www.hlpronline.com/2006/07/pearlstein_01.htm