How Does International Law Limit the War on Terror?

PANEL #2 (9:00-10:45 a.m.)

Many commentators have argued that the United States has violated international law in its war on terror. This panel will consider both the abstract question of the extent to which international law can restrict United States action and specific issues in which international law is claimed to prohibit U.S. action. It will thus consider the extent to which international law is the law of our own land. It will also consider the extent to which the operation of specific provisions of international law, such as the law of war, place restrictions on the war on terror.

Moderator: Hon. A. Raymond Randolph, D.C. Circuit Court of Appeals
Panelists:

* Professor Akhil Amar, Yale Law School
* Professor Catherine Powell, Fordham Law School
* Professor Saikrishna B. Prakash, University of San Diego School of Law
* Professor John Yoo, Boalt Hall (UC Berkeley) School of Law

A case that I sat on with then Judge Roberts and Williams is going to the Supreme Court, Hamdan v. Rumsfeld. There's some question about whether there's jurisdiction, and also a jurisdictional question for the cases in our court that were argued in December. Congress passed an act depriving the district courts over habeas petitions coming from Guantanamo Bay, investing jurisdiction exclusively in the D.C. Circuit. There's an ethics rule against judges' talking about the merits of cases before them, so I'm not going to, but the panelists will.

John Yoo has been in the Washington Post every day for the past month or so, and now is taking a sabbatical to Italy. He's among the three of our panelists who were at Yale Law and students of the fourth panelist, Akhil Amar.

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John Yoo-- I asked the organizers why they scheduled My experience has been that protestors don't wake up early in the morning. Twelve hundred Federalists are a friendly audience, and twelve hundred hung over Federalists are a pliant audience. I'm more cautious than Jeremy Rabkin was last night, because Amar was my professor and he's going to pass judgment on what I say. It's a safer place for Yale Law grads to be, which is in panels and not in government.

This question of international law and does it constrain the U.S. in the war on terrorism: are AQ members POWs under the Geneva Conventions? can the U.S. detain captures from Afghanistan and Iraq? can the U.S. question them in ways that fall short of torture but may constitute cruel and inhumane and degrading treatment? Would it be best for the U.S. and the world for the U.S. to have to follow international law?

Is international law made in a democratic fashion? I think the panelists yesterday would have said no. Is it enforceable by supernational government? most people would say no. Most countries ought to follow it voluntarily and thereby enforce it. During the Napoleonic Wars, the U.S. tried to constrain the British with international law. There has been little consistency even since WWII: the French and British in Suez Canal; the U.S. in Kosovo have violated the UN Charter. Countries are promoting their own self-interest. Europeans are not putting their resources into military force, and they are constraining the U.S. They have an interest in stopping the war on terrorism, but they are constrained by the Muslim populations in their own countries; it's more comfortable for them, with their domestic politics, to treat terrorism as a matter of crime rather than military intervention.

It doesn't seem to me that international law could never be enforced, but the Constitution sets out clear guidelines for that happens; it is in the Supremacy Clause for treaties that have been approved, gone through a process of political enactment. International law, and whether to comply with it, and how to comply with it, is a question the political branches have to weigh vis a vis other ones. The Constitution still determines how that law is to be enforced. Take the Geneva Conventions and whether AQ members have the legal status of POWs. The executive branch, politically accountable, decided that they were not because AQ is not a nation-state and never signed the Geneva Convention and never follows it in their own conduct. Senate Kerry could have campaigned against Bush on this point in 2004, but Kerry tried to outflank Bush to the right on terrorism; in the debates he said kill kill capture terrorists like a kid who learned a new word in school.

President Truman decided to drop nuclear bombs on Japan; President Reagan supplying arms; Clinton bombing Kosovo; Bush invading Iraq. As a matter of practice, presidents have violated international law when they thought it was in the best interests of the United States.

Would it be best for the U.S. to follow international law in the war on terrorism? Yesterday we heard arguments of following law just because it is law, without regard for the content. That assumes that war we have today is just like the war we had in the past, and that those norms of war between nation-states can be applied to the war against terrorism. We have to figure out how those old norms apply to new circumstance. Think about the kind of enemy we are facing today. The U.S. is not going to win by raising armies and sending them against another army; we are fighting religious extremists who operate in a network without allegiance to nation-states, attacking civilian targets in violation of the core rules of war. We must follow our own interests, and not be constrained by nations with other interests.

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Catherine Powell-- I met Judge Kozinski in the lobby of the hotel last night at 2am, he quickly sized me up and identified me as a stealth member of the American Constitution Society. I am not a card-carrying member of ACS or the Federalist Society.

Since 9/11, we have had many debates on the controversies that arise from international law: Courts using international law to decide domestic constitutional law cases, as in Roper and Lawrence, which critics claim lacks democratic legitimacy; and whether the president has power to act without the constraint of international law, which seems strangely disconnected from the democratic debate. This argument claims that following international law would allow for too much democracy, would encroach on the president's power to wage war as Commander in Chief.

Torture that occurs inside the U.S. is covered by statute, and the war crimes act covers our obligations under the Geneva Convention for torture outside the U.S. The prohibition against torture is reflected in both domestic and international law, a dual positivization and a desirable convergence. This is supported by international law scholars such as Henkin, but they also think it is not necessary for international law to be binding.

I too have called for deeper modes of democratic deliberation to implement international law, and thereby acknowledge Yoo and Goldsmith, but agree with Henkin that international law is binding without it. When international law and domestic law converge, this is desirable. Critics balk at enforcement of legislation as a constraint on the president's ability to wage war.

War justifies and calls for less democratic deliberation, a single decision maker who is the president. There are three responses for this: the Constitution gives Congress wide array of war power and the power to make rules concerning capture on land and water. The Founders saw the experience of the monarch and wanted to put more, not fewer, constraints on the power to go to war. The critics also want the president to be able to violate international law (I say violate, not terminate our obligations, because it's not clear that Bush has done so; he does say that torture isn't our policy).

Harkening back to Missouri v. Holland and the Bricker Amendment, some scholars argue that when a treaty is signed by the U.S., Congress should make law to provide for liability for violating that treaty.

I have to close with a reference to Justice Barak, the outgoing judge of the Israeli Supreme Court from whom I took a class at Yale and who took me under his wing when I went to Israel. In his landmark decision prohibiting torture, he made it clear that it was necessary for the legislature to decide whether physical pressure should be used on suspects. This is the destiny of a democracy, that not all means are acceptable to it. Although it often must fight with one hand tied behind its back, it nonetheless has the upper hand by upholding the rule of law.

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Saikrishna B. Prakash--

I want to limit my discussion to customary international law, which is not part of a treaty signed by the U.S. nor put into statute. There are two sense in which international law might limit the war on terror. In the political sense, whatever our views on whether it has domestic effect or not, the executive branch and Congress care about political opinion to some extent and have to be concerned about how their actions will be construed by other nations. John [Yoo] can tell us more, since he served in the government and can tell us whether there is that concern, but I think there is in government even if not for some of the panelists.

Citing the Supremacy Clause and the Take Care Clause, the supporters of customary international law say it is the supreme law of the land. The Supremacy Clause says that it makes the laws made pursuant to the Constitution the law of the land, which does not include customary law. The Supremacy Clause refers to law made in the future, laws passed after the Constitution. Customary international law preceded the Constitution, and it isn't made with respect to or pursuance of the Constitution. Some people argue that the president has a duty to take care that the customary international law was enforced. There's historical precedent for this, in arguments that the president had a duty to maintain neutrality when Britain and France were fighting. But one of the problems in the pre-Constitutional period was that states' statutes violated our treaty obligations (Lord Fairfax), so the states clearly weren't following customary international law. The Washington Administration came to the correct conclusion that they needed a Congressional statute to prosecute violation of the law of neutrality. They couldn't people in jail for putting people for violating neutrality until the actual neutrality act was passed by Congress.

Even if you don't think the Constitution incorporates customary international law, it may have a kind of eternal component, as Wilson believed. If you find the Constitution inconsistent with international law, it would be illegal. Congress cannot pass laws that are inconsistent with customary international law if you believe that it is this mandatory law. If you want customary international law to be part of our domestic law, there's a way to do that; Congress has the power to define the law of nations. At least then we have a statute passed by Congress and can say what international law is and isn't, and I'm afraid now that we don't have that.

Judge Randolph: The question of international law and law of nations came up at the convention in Philadelphia, and one of the Framers said it was too indefinite; that's why the line about Congress having the power to punish violations of it. Perhaps we should change our topic to, How does natural law constrain the war on terrorism? But as a British judge said when an advocate said "In the Book of Nature, it is written..." "Would counsel please cite the page?"

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Akhil Amar --

Our Constitution was framed not in accordance with other nations' laws -- at the time, how many nations had guaranteed trial by jury? -- but with an eye to what we needed from other countries. The Framers have an argument about how the Articles of Confederation can be disregarded; how do you get from the unanimous consent required by the Articles to the nine state conventions required by the Constitution? When your existence as a nation, the fundamental law is the law of self-preservation, and if we stick with the Articles, we will be devoured. Our very existence as a nation-state will be destroyed if we continue with this bankrupt regime. There's a lawyerly argument that if the treaty is breached, we are no longer bound by it. In making this rule of how the Constitution would come into effect, the nine don't bind the four, and those who don't go with the Constitution can go it alone. It's a multilateralism among the democracies of the states.

In my view, statutes have a higher status than treaties because the House of Representatives has been involved in the former; you cannot raise a tax, spend money, make federal crimes nor repeal a previous federal statute. Treaties can trump pre-existing state law -- you don't want an individual state to suck the rest of us into war -- but not previously-enacted statute. In the ante-bellum period, the South was massively unrepublican. More people voted against Saddam Hussein in Iraq than voted against the slavery regime in the South. Some of our greatest achievements have come because we care about world opinion, as with the Emancipation Proclamation. Brown v. Board and the Cold War imperative of desegregation: Jim Crow makes us look bad in the Third World.

We need to move toward multilateral organizations, not necessarily binding, with a community of democracies. The General Assembly and Security Council are not that. Why should it be only the rich nations that count as in the G7 and G8? Wise presidents do not lightly disregard the democratic nations, that opinion of mankind. We can't go it alone in today's world any more than we did in the last two centuries. We need to start the community of democracies with standards, the club that everyone wants to join. They can criticize America there and tell the U.S. to live up to the standards. It creates incentive for us in America to pay attention to what our fellow democracies think.

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John Yoo--
Akhil, that really reminded me of being in class: you got the last word in and spoke a little longer than everyone else. Now I'm a law professor too! It's a policy choice to decide to consider what other countries think; it's not legally binding. Reading international law as our so-called allies do is not a policy choice made for us by our Constitution.

Judge Randolph--
The lines are blurring these days. Treaties often are made with broad language, as with the Montreal Protocol on ozone depletion, where Congress implemented it by statute but there are more rules to be made.

Catherine Powell--
On the issue of whether customary international law is domestic law according to the Constitution, in the war on terrorism it is such a hypothetical question. When it comes to torture, it has been implemented by statute.

Judge Randolph--
The federal Tort Claims Act said you could sue only for violations of the law of nations.

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Q&A:

Q: Prof. Yoo, are we changing our treaty obligations due to the scope of the war on terror, and those of other nations, and would such a change be legitimate?

A: If the UN had read the treaties broadly to apply to the war on terror... the Administration has not read the Geneva Conventions to apply to the war on terror, and the Conventions were not written for such a war. A lot of countries saw in the '70s that there was a gap in the Conventions and filled the gap with the Protocols, and President Reagan specifically said "we don't want to give terrorists the protections that we give to people who follow the rules of war."

Q: What do you think of the McCain Amendment? what is the most clear language that you would like to see in such a legislation, to avoid the problems of ambiguity?

Powell A: The Amendment is a bit redundant in applying extra-territorially, as our existing law already does. McCain was trying to make it clear that cruel, degrading and inhumane treatment applies extra-territorially.

Yoo A: Before the McCain Amendment, we signed a treaty saying not to engage in torture without defining it. There are interesting questions about what would happen if there were a direct conflict between that statute and the president. We have apparently captured the #3, 4 and 5 of AQ, and even McCain said that he wants the president to do what's necessary, but he said that's a one in a million case. I'm afraid that it's not anymore, and the Amendment doesn't solve the problem of what to do in the case of imminent attack.

Amar A: To the extent that any act of Congress makes a federal crime of violating the statute, this goes beyond what a treaty by itself can do. There is not interchangeability as a matter of American domestic constitutional law.

Q: Members of AQ are citizens of states that have ratified the Geneva Convention. Are they not therefore due the protection of the Conventions?

Yoo A: I don't think so, because we're not at war with those ratifying countries. I do think that if we are, Geneva Conventions apply, as in Iraq.

Judge Randolph: The Conventions require that combatants wear insignia and separate themselves from civilians, and AQ doesn't fight that way.

Yoo: If you say at the start of a conflict that you will follow the Geneva Convention, then so must your opponent, but AQ has not said so. Its purpose and method is to violate the Conventions regarding attacks on civilians.

Powell: That address Convention 3, which applies to POWs, but not Convention 4, not to mention an array of human rights treaties.

Q: [Incoherent question by someone who said he was from UPenn.]

Yoo A: I'm going to have to get out my secret decoder ring to understand the question. That we are being criticized for Guantanamo while Cuba goes relatively uncriticized is a sign that nations are using international law as a tool for foreign policy. Regarding the neutrality proclamation, Washington took the opinion of all the members of Cabinet whether he could issue the proclamation, and they all said that he did have the authority.

Amar A: One thought on war-crimes, Americans may be particularly vulnerable here because they do much of the fighting around the world, but if we were take a formal juridical perspective of the thing, then Kosovo was not authorized, which would be dangerous for Clinton's traveling around the world for fear of being arrested. We had a lot more democratic nations in Kosovo than we did in Iraq, but that's not a part of the Waldron perspective. We should pay more attention to what the consensus of the world democracies is.

Prakash A: There's been a two year campaign to demonize John [Yoo], and it's to prevent other people from writing these opinions. It's not as if his position is ridiculous and outrageous [Questioner: It is!] I doubt whether people who are criticizing him actually have a soft place in their heart for Congress rather than the president if we had a different statutory scheme altogether.

Q: I'm concerned that if we are known as a country that doesn't believe that international law or our own treaties bind, it will hamper our ability to enter into military alliances. There are two options when we enter into treaties: to withdraw if we want to violate them, or to make good arguments that we're not violating them.

Yoo A: I don't want to be read as saying that treaties have no value, and that the U.S. should not feel itself in some sense bound by them. I think whether we continue to obey treaties or not is a political decision, and as you said the U.S. can pull out. We should pull out of the ABM, or the alliance with France that we pulled out of during the Napoleonic Wars. Waldron argued that we follow international law because it is law, but you make a practical argument for international cooperation. But that is a question we ought to leave in the hands of the political branches.