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Monday, July 18, 2005

Hamdan and the Domestic Enforceability of International Law

Hamdan v. Rumsfeld, decided Friday by the D.C. Circuit, held on three issues. First, the court was not required to abstain from deciding the case; second, that the President had been delegated authority from Congress to create the tribunals and; third that the Geneva Convention on the treatment of Prisoners of War does not create a right of action for Gitmo detainees. The Court also held, in dicta, that Hamdan would not win even if he were granted the convention rights (for posts on this see Marty Lederman and Peggy McGuinness).

The third holding, that relied upon by the District Court, was an extension of Eisentrager, which held that the rights under the convention were not judicially enforceable, were for the political branches to remedy. This, in my mind, is the most interesting, and the issue that we will hopefully hear decided in the next couple terms.

The issue is the distinction between the U.S.'s foreign obligations and its domestic law. For the entire history of the Republic the U.S. government has entered treaties that have bound it internationally. We
break treaties and are brought before the World Court. But never have these international obligations been successfully used by domestic litigants to force the United States to comply with them. Eisentrager is completely on point.

We have talked a lot about last term's Medellin v. Dretke, which the Court ultimately DIGged. Medellin dealt, in principle, with the same issue. No one contested that the ICJ's decision was an international obligation of the U.S., but rather what that had to do with the case before the Supreme Court. These are two different things: The Convention binds the U.S. internationally, but it does not create rights to be enforced in U.S. courts.

Those arguing that these treaties that were never intended to create enforceable rights seem to completely ignore the structure of our federal system. As if now that the U.S. has entered into all these international obligations, we have ammunition to bring claims for what we consider human rights abuses. This is no different from the creation of substantive due process out of thin air--one takes a document that means A, and without even the pretense of an argument that it was intended to mean B, argues that it should mean B. Makes me want to say "Did you take con law?" (HPM)

On my final paper for my foreign affairs class last semester in which I argued that Medellin should lose his claim, I received a prelimary comment from my (pro-int'l law) professor that "[I] should consult with others on the merits of my federal courts arguments." What? Medellin IS a federal courts argument. The plaintiffs just aren't making it. Go read the oral arguments. Do you think the Justices care about whether it is a good thing for international comity that the United States flaunts the orders of the ICJ? No! Even Justice Kennedy told Medellin's counsel that he "[didn't] have a case."

Those who want Medellin to get deference to the ICJ need to explain how the U.S., which clearly did not delegate authority for the interpretation of U.S. law, should be found to have delegated it, and to require deference to that determination because it's bad to be in violation of a treaty. Also explain how we should give Hamdan a right of action where none was remotely intended and Sandoval completely precludes the finding of one. These, note, are federal courts issues, not international law issues.

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