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Tuesday, February 28, 2006

If You Were Wondering About the Engagement...

That was announced at Saturday night's Federalist Society student symposium banquet, the lady in question tells all.

As for her naming suggestion for a group of leftists, I respond with one for conservatives that has at least as much rhyme.

Continue Reading "If You Were Wondering About the Engagement..." . . .

Saturday, February 25, 2006

Executive Power in Foreign Affairs

PANEL #4 DEBATE (2:30-3:30 p.m.)

This debate will address the arguments over the extent of the Executive’s power in matters touching on foreign affairs. The debate will confront both constitutional and pragmatic arguments regarding the boundaries of the Executive’s role in treaty interpretation, war powers, and homeland security. The discussion will touch upon appropriate methods of constitutional interpretation—from originalism to functionalism.

Moderator: Hon. Alex Kozinski, 9th Circuit Court of Appeals
* Professor Martin Flaherty, Fordham Law School
* Professor Michael Ramsey, University of San Diego Law School
Kozinski --

To my left is a youngish white male who is a professor at a Catholic school on the West Coast; to my further left is a youngish white male who is a professor at a Catholic school on the East Coast. The subject of executive power -- if we think about the power in the terms that have become familiar from Justice Jackson in the steel seizure case: given by Congress; outside congressional authorization without anything said by Congress one way or the other; and in derogation of authorization, where the powers are at the lowest ebb. Executive power has been cut down, but there's a little bit left and we're debating it now. After we had our debate last night, and our reception, I went and I got the Yale and Michigan law review articles and I went back to my hotel room and became engrossed in them and only had to stop when I was woken up in the morning. So I can't say I absorbed everything in them.
In Prof. Ramsay's article, the last paragraph, says we need to go back to the text, where constitutional discussion ought to begin. Prof. Flaherty has both a textualist and a non-textualist argument -- on text alone, he has 122 pages and 670 footnotes. You don't need to read the entire article, just that 670th footnote, conveniently put by itself on the last page: "Prakash and Ramsay simply beg the question of how the Constitution should be interpreted..." It is a begging-the-question trump argument.

Fortunately there is a rematch round, and we have rules. You have 15 minutes, but I will not enforce them, and if you want to drag yourself down by keep on talking, I won't stop you. I don't want to a clean fight, I'm looking
I'd liek to see some ad hominems, and some cheap debaters' tricks. I draw the line at any physical violence that I observe, but I have been very non-observant. If it gets boring, I have here the trump card in case any starts to nod off: a whistle. The person to speak first is chosen by coin toss -- Prof. Ramsay.

Prof. Ramsay --

My essential proposition is that the 18th century meaning of executive power includes foreign affairs power, as well as the more familiar power to execute the law. This has been referred to as Hamilton's vision, but it actually was articulated by Thomas Jefferson too. The Constitution has declared that the executive power shall be invested in the president, and transactions of foreign affairs are his exclusively except those specifically designated to Congress. The key writers of the 18th century describe executive power to include foreign affairs power. When Washington became president, he took control of foreign affairs, things like control and removal of diplomats, formation of foreign policy, interpretation and termination of treaties, even though they're not conveyed by any specific clause of the Constitution nor statutory authority. In a pragmatic sense, my pitch for adopting this reading of executive power is that it gives us a rule of law for international affairs. We can ask, when a presidnetial claim of power is advanced, as Jefferson did: Is this presidential power known in the 18th century, or one that was delegated? Approaches founded on a living constitution have no such advantage.

Prof. Flaherty --

I'm a card-carrying member of the ACS and someone who had some role in its founding, which led me to confide that this might be the toughest crowd I've faced since I was in the headquarters of a Protestant paramilitary group in Northern Ireland arguing for Catholic rights. I figured, at least this crowd doesn't have any guns, but then I thought "Federalist Society, 2nd Amendment." So hold your fire.

Mike Ramsay has a moderate theory, and I want to talk about the competing conceptions. Ramsay gives a default position that when nothing else addresses powers of foreign affairs, it goes to the president. If used in the wrong hands, and I don't know if my friend John Yoo is still here, this can be used as a way to foil attempts by Congress to legislate in executive foreign affairs powers. I want to argue for symmetry, that both branches have to resort to conventional methods of constitutional interpretation. How does that look in foreign relations? The text is not going to resolve a lot the turf battles, and a lot will be resolved by history and custom but not all, and ultimately one may have no choice but to fall back on structural or purposive approaches.

I just don't think the term executive can bear all the weight Ramsay wants to put on it. The core meaning of execute is not foreign affairs authority, but to make the laws effective. If the commerce power cannot be read to embrace everything, neither can the executive. There are counter-texts, texts in Article II that don't make sense because they are redundant if the executive power conveys en masse foreign affairs authority. So the answer can't lie in text. The answer ostensibly comes from history: in the 18th century, executive power was widely understood to mean foreign affairs authority. Here I'm going to use a cheap debaters' trick: I care more about history than doctrinal results. Let the president torture, just get the history right.

There is very little evidence to support the idea that in the 18th century, it was widely thought that executive power equalled foreign affairs power. Separation of powers was a relatively new and under-developed doctrine at that time. Locke had a tripartite system, but it did not include the judiciary, and distinguished the federative foreign affairs power from the executive.


Flaherty: I resist the aesthetic fallacy with respect to the Constitution. It is a coherent document, but not particularly so; a committee document, hammered out, and finding a grand plan in slight deviations is unconvincing.

Ramsay: There's absolutely no doubt that the word "execute" and its derivate "executive" refers to carrying out the powers of office, and this is the sense used in the oath clause. But that doesn't cut either way on whether the executive vesting clause has additional meanings.

Kozinski: Michael, could you address a historical point? I wonder how much historical precedent really matters when the notion of the executive that existed at the founding is very different from what the executive is today. At that time, there were mostly kings of varying power, and so the conduct of foreign powers was mostly a personal matter.

Ramsay: I am not saying that because Montesquieu thought the king should have foreign affairs power, the Framers thought the president did, or that we today should. I use the writers for definition, to see what the ordinary meaning of words was in the 18th century.

Q: The general vesting clause may be something beside the point when you have the War Power. If you could answer to questions: if we are in a war like the war on terror with no external limits, what is the excutive power, and how does this interact with Article III?

Flaherty A: Most scholars other than John Yoo do think that the War Power gives Congress the power to declare war. The problem is the indeterminacy of the length and geography; if your definition of war in the war on terror swallows everything else.

Ramsay A: The Commander in Chief power is not redundant of the Chief Executive power. I think you're looking at a substantial concurrent power between the president and Congress. There are limits on what Congress can do; it cannot make someone other than the president commander-in-chief. For the most part, a Congressional regulation would trump.

T. More Q: Even if that's how Montesquieu thought of it, why wouldn't the Founders think "We're not making a king here"?

Flaherty A: This is my reward for going into the Protestant paramilitary.

Ramsay A: With that view, you lose the ability to explain the traditional powers presidents did exercise, such as the power to dismiss ambassadors, that are not enumerated. On the broader point of whether they're following Montesquieu or not, they're clearly not -- they took several powers from the executive and gave them to the legislative. But this reflects a compromise between the Articles of Confederation's weak executive and Montesquieu's very strong executive.

Flaherty A: This is the problem with history-inspired legal scholarship: history is messy. We don't agree on executive power today, so to think that there was widespread agreement during an era when it was being developed is counter-intuitive.

Q: If the president does not have plenary foreign affairs power, then who does?

Flaherty A: It depends on the issue.

Kozinski: You should be a judge.

Flaherty: I thought about answering, "I'll answer when I see it thoroughly briefed."

Kozinski: No advisory opinions.

Ramsay: Prof. Flaherty's recourse to penumbras suggests that he's already in trouble.

Kozinski: Why not just go with Jackson? We know that there are powers that Congress can give and some that it can't take away.

Q: Do you think that your interpretation gives a result that you find preferable to that of your opponent's interpretation?

Ramsay A: As a constitutional interpreter in an originalist mode, my own person view of how the founding ought to have been done doesn't affect how it was done. You're asking me to engage in a living constitution analysis, and that's just not on my resume.

Flaherty A: To me, the preferable result is to get the history correct. In many doctrinal areas, the history provides no clear guidance. I did not mean to suggest that the removal of ambassadors was purely a function of the appointments clause, but the late 18th and early 19th century Americans did not rely on the executive vesting clause.

Ramsay A: My last word is Thomas Jefferson's word, and you can't fight this opinion. "The constitution has declared that the executive power shall be vested in the president. The transaction of business is executive all together, it belongs to that department."

Continue Reading "Executive Power in Foreign Affairs" . . .

Bolton on UN Reform

Address (1:45-2:15 p.m.)
United Nations Reform
Ambassador John R. Bolton, U.S. Ambassador to the U.N.
Federalist Society Executive Vice President Leonard Leo gave the introduction, describing Bolton's differences from the international policy elite as a "wonderful breath of patriotism" and a "refreshing dose of humility," by putting trust in the American people and other peoples of democratic regimes.

I know that you've covered a broad array of topics, and I wish I could stay and hear the next panel. I want to talk practically about the things we do in the conduct of American foreign policy, and what people say about the "legal implications" of that policy. I think it's important that we understand when talking about the relationship between actions in foreign policy and international law to have a sense of what happens practically, because it's different from what many academics would say. It's in discussing the concrete that general principles become more applicable.

What I think history will record as one of Bush's most important initiatives: his decision to withdraw the United States from the Anti Ballistic Missile treaty of 1972. The practical security reasons for this were clear; the strategic relationship between the U.S. and what used to be the USSR no longer existed, so the treaty against developing an ABM system was simply outdated. We were the only two countries prohibited from developing an ABM system, which kept us from dealing with the new reality of WMDs in the hands of terrorists and lunatic regimes. Bush suggested that both countries withdraw from the treaty, and then withdrew unilaterally. This caused great gnashing of teeth among some international lawyers. In the case of the ABM treaty, we do have a laboratory of experiment, and the negative predictions have been proved wrong: we have no new arms race, and we haven't undercut the fabric of arms control and nonproliferation treaties that had grown up over the years. Instead, a new strategic relationship between the U.S. and Russia has been allowed to grow, and new research and development in weapons has occurred. This is an example of how the mythology of treaties might have impeded our policy.

The treaty of Moscow is the exact opposite of the arms race people predicted, but it drew criticism from the community of international legal scholars, because it was already the American intent to draw down its arsenal, and putting in treaty form what you were going to do anyway isn't a real treaty. This treaty was three pages long, and without the State Department boilerplate it would have been two pages. We were prepared to do this as a handshake deal, but the Russians because of their own internal considerations wanted it in treaty form. One would think we'd all be happy in this reduction of forces, but for those who are real international lawyers, only thousand page treaties that force us to do things we don't want to do are worthwhile. Treaties don't operate with a force independent of the underlying political realities.

At the UN now, we're in a struggle over whether we're going to achieve significant reforms in the way the UN is managed. We find that organization is deeply troubled by bad management, extensive corruption and a growing lack of confidence to carry out the missions that were given to it. Volcker's report on the oil-for-food scandal, in which a humanitarian program was corrupted by Saddam Hussein and mismanaged by the UN. This kind of corruption and mismanagement don't spring up overnight, and the problems arose from the culture of the UN itself. There's a broader investigation here in New York of UN procurement. Just a few months ago, the UN instituted a new gift restriction; the old policy allowed gifts in total value of $10,000 per year. Sexual exploitation and abuse committed by UN peacekeepers has been discussed only in the last few years, but it was pervasive for years before that, and it's a stain on the UN that these peacekeepers sent to protect the most vulnerable are exploiting them.

Trying to get these issues discussed in the UN, you would think would be a matter of significant concern to all the member governments, and it is a concern to many. But we find that the opponents of significant reform have chosen not to debate the issues about waste, fraud, abuse, sexual exploitation, but have begun to make the argument that the U.S. and other permanent members of the Security Council are encroaching on the authority of the General Assembly, which has budget authority within the UN. This is an interesting argument, since without the creation of peacekeeping forces, there would be no budget and no sexual exploitation. I wish more people in the U.S. could see this, more transparency so people could watch the debates that we go through at the UN each day. Instead of talking about corruption and mismanagement, we talk about matters people across 1st Avenue can barely understand.

Iran's nuclear weapons program. The Administration together with its allies has been trying to deal with Iran's clandestine effort to acquire nuclear weapons through the IAEA. Almost all of the substantive provisions, the Iranians have violated over the years. YOu would think the proponents of stronger international law would say that these violations should have troubling consequences for the Iranians, but ironically, many people are arguging that in fact these decisions are not binding, that only a decision by the Security Council under Ch. 7 of the UN Charter can really bind the Iranians and make it obligatory. In the world of international law, that's probably true, but in the world of actual politics, there's a curious inversion. The action of the Iranians have led to the devaluation of the IAEA itself. The Iranians are free to continue doing what they're doing now.

What it really comes down to is whether through the UN system, the IAEA or the Security Council, we're going to make Iran comply with obligations it voluntarily undertook. The U.S. has been enjoined by its allies to work through the UN system, and this is why the president has made a peaceful and diplomatic solution such a priority. But at some point, we have to ask whether we are willing to accept an Iran with nuclear weapons -- which we are not -- and what we are going to do. We will see whether in an age of proliferation and terrorism whether the UN structure will succeed. I will close with the strong view of the president that it is not acceptable for Iran to have nuclear weapons.


Q: To what exent do you think the UN is impaired by the U.S. having invaded Iraq without UN support, and what do you think of the UN's role in environmental protection?

A: There was substantial opposition to the policies we were using in Iraq before we used military force, and this reflects broader attitudes in the world as a whole. But the real point of the actions we took, and I don't have any reservations about it, is that after 10 years of trying to get Saddam Hussein to comply with his obligations, including one he voluntarily accepted, there was no will on the Security Council to enforce its own resolutions. It was unquestionably correct from the perspective of America's national security. I had no doubt whatever that there was sufficient legal authority under the existing Security Council resolutions.

Q: Iranian president recently called for a Muslim seat on the Security Council.

A: I wouldn't hold my breath.

Q: Well, will there be any additions or subtractions from the Security Council likely to occur?

A: The five permanent members that were put there in 1945 are not the same we would have if we were putting nations on today. But they weren't meant to representative of the world; they were the winners of WWII. Four of them were the victorious powers, and then France was added, at the request of Churchill over FDR's objections. We have supported Japan for a permanent seat, because it has exercised its power responsibly, and it's a fault of the UN system that we can't thik of a way to get them there.

Q: If you were the Supreme Leader of the UN --

A: Not likely.

Q: -- what changes you would make? Also, when did you learn the secret of the power mustache?

A: I;m never going to divulge the last secret. There are a lot of things you could do to change the UN. Bush is very seriously committed to this and so is Secretary Rice. A lot of the problems stem from structural factors that may or may not be subject to change, such as the allocation of responsibility for paying the UN's budget. The U.S. pays 22$ of the assessed budget and 27% of the peacekeeping; the next biggest contributor is Japan. The top dozen contributors pay 80% of the budget. The 90 countries paying the lowest assessments contribute less than 1%. Yet we have one nation, one vote, which leads to countries' spending other countries' money. If you look at the best-run UN agencies over time, like UNICEF, the World Food Program, the High Commission for Refugees, are funded voluntarily. If you were going to pick one thing to look at, this thing about financing and voting power would be the one reform I would go for.

Continue Reading "Bolton on UN Reform" . . .

Enforceability of International Tribunals' Decisions in the U.S.

PANEL #3 (11:00 a.m.-12:30 p.m.)

This panel will deal with questions relating to the constitutional permissibility of express and implicit delegations of authority to international bodies such as the United Nations, the International Court of Justice, and appellate bodies in NAFTA. Panelists will deal with issues such as the Executive’s ability to delegate treaty interpretation authority to international bodies, as currently practiced under compulsory jurisdiction clauses in many international treaties. The recent case of Medellin v. Dretke raises the question of whether, even in the absence of express delegation, our courts should follow the decisions of international law courts out of comity.

Moderator: Hon. Diarmuid O'Scannlain, 9th Circuit Court of Appeals
* Dean Alex Aleinikoff, Georgetown University Law Center
* Professor Curtis Bradley, Duke University School of Law
* Professor Lori Damrosch, Columbia Law School
* Professor John Harrison, University of Virginia Law School
[Unfortunately, PG was helping Prof. Amar sell his book and therefore missed the panel's speaking.]


Judge Kozinski, from the UCLA law chapter: I was fascinated by Judge O'Scannlain's description of the procedure after Aveeno. What are the applications for the non-Aveino cases?

Damrosch: My basic position on the effect of the presidential proclamation -- it's sort of like the Little Prince who commands the sun to rise when the sun is already rising. If the state courts were not fulfilling their existing duties, the federal courts would have ruled that they had to do. The proclamation is icing on the cake.

Bradley: The decision does not create any federal law preempting the Texas law. the assertion of the executive is to create law to override otherwise applicable state law. The ability to make law is normally invested with Congress. The courts will allow some executive branch lawmaking due to the underlying treaty, despite its lack of self-execution, and the Take Care Clause. But that wouldn't have happened with the executive's making some domestic law.

Damrosch: Before Bush made the memo, in the first of the cases come up in Oklahoma, that court concluded that it would give effect to the Avena judgment for one of the 51 nationals, on the basis of guidance from the State Department that the judgment had binding effect for the U.S.

O'Scannlain: The Supreme Court did say that it would come back up to them after going through the Fifth Circuit.

Q: Since the ICJ is much controlled by non-democratic states, should we be suject to it?

Aleinikoff: We ought to be figuring out processes for international law as it is appropriate. In this I may be closer to Bradley than to Damrosch, and I'm surprised to hear myself say that. An interpretive authority in both the ICJ and the U.S. for the meaning of treaties, because the long run interest is for the U.S. law to be integrated non-hierarchically with international law and this can best happen if we have U.S. judges grapple with international law.

Q from Emory lieutenant: I think one of the major fears of Americans is participation in tribunals that don't share American values. Even with our democratic allies, we disagree on issues like capital punishment and foreign affairs.

Aleinikoff: I assume we only join those international tribunals that we think operate under appropriate norms of due process. The U.S. should have joined the ICJ in light of the ICJ's changing its rule to accommodate the U.S.

Harrison: The judicial bodies are being used to make law, and we are close to a new Supremacy Clause. This law should be made legislatively. Structure and the substantive issue get bound together, as with the death penalty.

Aleinikoff: Old Constitution says that treaties we enter into are deemed Supreme. The history of the American constitution is not originalism or formalism. We will get to the transnational world, because that is what the popular branches and the people want, and our narratives will catch up to that.

Continue Reading "Enforceability of International Tribunals' Decisions in the U.S." . . .

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

* 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.


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.


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.


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?"


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.


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.



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.

Continue Reading "How Does International Law Limit the War on Terror?" . . .

Friday, February 24, 2006

What Is an International Rule of Law? Competing Perspectives on Its Meaning, Feasibility and Desirability

PANEL #1 (7:05-8:45 p.m.)

This panel will explore competing definitions and visions of what is meant by an international rule of law, a concept that has proved elusive to define. Is international law really law? What exactly does rule by international law mean? Is such a regime really possible or even truly desirable? Who is to make the rules? Does the international lawmaking process assure that international law is good? The discussion will provide a necessary starting point for the entire conference by trying to lay out the key positions in the debate over the proper role and scope of an International Rule of Law.

Moderator: Hon. Dennis Jacobs, 2nd Circuit Court of Appeals
* Professor Thomas Franck, New York University Law School
* Professor John McGinnis, Northwestern University Law School
* Professor Jeremy Rabkin, Cornell University
* Professor Jeremy Waldron, Columbia Law School

Judge Jacobs--

Closely matched panelists in disagreement; this will be the rare law school event that will be worthy of being called a symposium, in which orthodoxies will be challenged and moderators in every room to prevent assault and arson. The interface between our constitution and international law generates questions of extraordinary interest and subtlety, but they have previously been coolly debated among specialists. As we meet now, however, they are a flashpoint of anger. Why is the subject of this symposium exciting passion and rage?

International law and standards have become a tool of anti-Americanism, and it has become a culture in Europe and some U.S. law schools. These issues have become a theater in the culture wars. One team is adept and unafraid of dealing pragmatically with machines, force and commodities; they see themselves as clear-sighted and patriotic. The others are the brain-working classes: lawyers, academics, journalists. They champion the rule of law, and use it to subordinate and restrain the more practical types and expand their own funding. I expect that these conflicts will not overwhelm us, and an opportunity now presents itself to discuss them with mutual respect.

Manhattan is a center of internationalism. Contrasting with the optimism of the UN building is the hole in the ground where the World Trade Center used to be. But look around New York, and you see how nationalism and sectarianism lose their force in cuisine and the general commerce of American life.

International law is not all human rights and military conflict; it is composed in the greatest part of a well developed, highly ratified system of order for business transactions: ships given passage, piracy suppressed, criminals extradited, tariffs and duties adjusted and negotiated. This panel will explore the more controversial topic of an international rule of law.

In which sectors do international legal norms ideally operate? what allegiance do American actors owe to them? The Constitution intersects extensively with international affairs: punishing piracy, making the president Commander in Chief, giving Congress the power to declare war, prohibiting the states from making treaties. One pervasive issue is international customary law. You're on the turf of the 2nd Circuit, and we only use international customary law in the absence of American law. More expansive approaches may recommend themselves for one reason or another. Should a norm be respected for countries that have not agreed to it? Relatedly, what force should be attached to norms identified by academics and NGOs rather than legislatures and executives?

Prof. McGinnis has predicted the rise of international federalism, and the decline in power of the nation-state. Jeremy Waldron argues that international norms respecting the treatment of prisoners of war are owed a special deference. Rabkin will offer an original perspective on the dream of global justice -- that it is an impossibility and ignores world political dynamics.


Prof. McGinnis--

The domestic world is becoming full of international law, with judges proposing to use it for interpreting our own constitution. Others want to use it as federal law to displace our own legislation, and to determine how we will conduct the war on terror. Unprocessed international law, I will call "raw international law," to distinguish it from international law to which the executive and legislative branches have agreed. How are we to evaluate the quality of raw international law?

One process that commands respect for norm creation is democracy. Collective judgments of the many are likely to be better than those of the few. Customary international law has a democratic deficit at its heart -- five deficits, in fact. Nations need not expressly consent to customary international law to be governed by it, only fail to express disagreement. There's also the influence wielded by non-democratic and even totalitarian governments, especially on human rights treaties. Should we give domestic effect to treaties we did not ratify, but Axis powers did? Most nations themselves don't give effect to customary international law, in contrast to Congressionally passed laws, which are obeyed. Many principles of customary law have no canonical text; someone must assess how widespread the practice is. Social science shows that the average American understands what's going on in Geneva than what is going on in Washington, which gives elites an advantage in international law and allows them to get what they could not through domestic democracy.

International customary law lacks the virtue of domestic norms and common law. The actors in international law are nations, not people, and thus do not act to benefit people. Nor is it efficient even for nations. The 180 nations in today's world have different interests, and many have never interacted in substantial ways, much less reciprocally. We do not generally circumscribe the actions of states and federal actors without a supreme law that has gone through the process of democratic deliberation. The political branches can decide to enter into international agreements if they determine that such would improve mutual welfare.

American law may be better than international law even for other nations. Most of our decisions about human rights directly affect those who have subjected themselves to U.S. jurisdiction. Some individuals can choose to move here and take advantage of our particular bundle of rights and responsibilities. By converging our domestic law to international law, we may lose the gifts that American exceptionalism can deliver to the world. The U.S. is the world's great power, the global hegemon. It stands to gain the lion's share of resources from the peace and prosperity of the world, and its political process thus has incentives to maximize that peace and prosperity. Moreover, immigrants contribute to our political process. Insisting that our courts follow our own law, America helps the world most by remaining true to our own democratic genius.


Prof. Franck--

Customary international law is largely a non-issue; it overwhelmingly consists of treaty law, just as statutory law has replaced customary law domestically. The Alien Tort Claims Act, or treaties approved by two thirds of the Senate, meet McGinnis's democracy test. This includes the UN Charter, which has the International Court of Justice and requires signatories to abide by it. International law does not pull states to compliance contrary to their interests, and the possibilities of what international law can achieve are limited by state interests and the distribution of state powers. So power, not the norm, is what governs; if states decide to abide by hard international norms, it's because it meets their interests at the time, not because of a desire to comply with the law as such. Free-floating custom, unattached to anything else, gets no attention from me and little from American courts, but I am concerned by the attack on international law in Goldsmith and Posner.

In 1907, the Secretary of State felt it necessary to have an impartial international tribune. What has caused us to move from Elihu Root's admonition to the delegates negotiating in the Hague? What has changed is that the U.S. does now see itself as the world's sole superpower. It's one of those odd things about law, that it tends to favor the weak because it imposes obligations on the state that sees itself as the world's only superpower, which it could avoid being bound by with the preponderance of its power. The Israeli Supreme Court strives mightily to bring its decisions on the fence into some measure of compliance with the UN Court. We have thousands of treaties that bound other states, with which they comply routinely. Should the U.S. be bound as we bind Uganda or Chad?

We aren't the world's only hegemon. If we were playing a chess match for hegemon, there would be North Korea and Iran, which have defied the U.S. We cannot compel them, and we cannot alone compel the climate, diseases, money laundering, drugs or settle the problems created by the invasion of Iraq. If you're into the notion of rational choice, you don't start with the notion of "I can have everything I want by defying the law." You start with "I must enroll others into cooperation, and recognize that I'm going to win some and lose some."

If the configuration of state interest is to maximize one's options in every interaction with every other state, then international law is rubbish. But the world is not like that. We cannot win every encounter; what we can do is support the law. On balance, we win some, we lose some, but above all our interest is in the peaceful resolution of disputes, as we see in trade negotiation. If the law says you are not to use force unilaterally unless you have been or are about to be attacked, you may say "that doesn't answer the problem of a world of terrorism and nuclear weapons." But you don't follow your interest by saying you need a permission slip from no one. The system of law comes to an end, and that is a much bigger loss, aside from the fact that you are more likely to make mistakes when you're alone and can't get anyone else to sign on. If you overthrow the only system we've got -- a duly passed treaty -- you are demolishing something more precious than anything else you've got.

There may be situations so overwhelmingly threatening to the U.S. that the law has no place in it and we do what we must to save ourselves, but we must determine when that standard has been reached, and there must be checks and balances in making that decision. That is what the law is, and those are the parameters in which the foreign policy of the U.S. must operate.


Prof. Waldron--

The rule of law is the ancient focus of our allegiance as lawyers; it's an American ideal, and an international law as well. It's the source of the dignity and power of lawyers' profession. Is it clear what the rule of law demands of us in the international arena?

What does it require of us in the domestic realm? Suppose I'm an ordinary citizen: it requires that I obey the law, be alert to my obligations, and should not act in a way that harms or undermines the legal system. There are many areas where the law leaves me to my own devices, which is not a matter of regret. In most conceptions of the rule of law, the citizen is entitled to insist that the law be clear, and if it is uncertain, he is entitled to the benefity of that uncertainty; a presumption of freedom. The whole point of the rule of law is to secure an environment to act and secure affairs, to plan business. The elimination of uncertainty, that's the raison d'etre.

Think about the position of the Administration, or a lawyer working for it. What does the rule of law demand of them? Unlike the individual citizen, the Administration does not have any inherent interest in freedom of action in the way the individual does. On the contrary, it should act in accordance with law, bending over backwards to honor the idea of governmental compliance with law. This lawyer should advise the government to act in accordance with the law, not gratuitously, but to foster an atmosphere of freedom for citizens.

It is tempting to say that the nation-state becomes analogous to the citizen at the level of international law, and thus the Administration should have that same benefit of uncertainty in that realm. It need not wish for more law, rather than less. It is entitled to treat the Geneva Convention as not binding more than it obviously textually is.

But this analogy is misconceived. The state does not lose its legal and rule-governed character in the arena of international law. As Kant noticed, there is something odd and bizarre in a state treating its majesty as a sovereign republic as a license to demand freedom from international constraint.

One way to understand this is to remember that the state is not just the subject in international law; it is the source of law and an actor. International law is horizontal, depending largely on treaties for creation and the nations for enforcement. The Administration itself, like a lawyer, is an officer of the law, and therefore one cannot advise it on the model of finding loopholes. Although we use this fiction that sovereigns are individuals, real nation-states are not individuals. They are trustees of the people committed to their care, in pursuit of the peaceful and orderly world we seek, sought for the sake of millions of men and women committed to the care of the statesmen and women. It is the ordinary humans likely to suffer if the rule of law suffers. The ultimate subjects of international law are peoples. We should not make any fetish of statism in this area.

Nowhere is this clearer than in the role of international law in protecting human rights. It's the consummation of the point about trustee-ship. The analogy I have been arguing against sometimes is bolstered by a claim that treaties are like contracts, like the businessman is governed by contracts. That may be true for some treaties, but many are more like statutes. Students, be prepared to justify yourselves as advisors of governments -- not to liberals, law professors or New Zealanders, but to people who believe in the rule of law as the Founders did.

These are abstract remarks, but deadly serious issues. There are people in this room who have acted recklessly and in disregard of their responsibilities, and that have led to the dishonor of this nation. Some Democrats and liberals are inclined to talk about conspiracies to violate the law. It's important to focus on the culture and environment in which we do our thinking about the law. C.S. Lewis on human wickedness: Many of us have had the experience in some small pocket of human society, where the tone was bad. And inside that pocket, some actions were regarded as merely normal -- everybody does it. Some were regarded as efficient. But when we emerged into the world, we found that what we had regarded as impracticable virtue, other saw as minimum of decency.

People are emerging from having advised the Administration and having that experience. We need to think about the scruples and ideals that will allow us to reflect more scrupulously on our obligations.


Prof. Rabkin (political science professor)--

To the extent that law has greater clarity than politics, it's because we have institutions to clarify it. We do not have those institutions reliably in the international law, so it cannot have that clarity of domestic law, which itself is subject to dispute. Let's not expect too much of international law.

At the level of abstraction talking about the rule of law, you could forget that international law is different. You need courts and police to enforce the judgment of the courts; to put together plausible materials is not enough. It is the view of the Founders, and the correct view. One of the great jurists of all time, called the father of international law, putting together a plausible series of arguments, showed that slaves had an obligation not to escape. Rousseau said whoever is persuaded by this argument deserves to be a slave.

Fundamentally, I think you cannot make sense of international law without understanding that it is international. This term was launched into the world in the same year as the U.S. Constitution. Bentham coined the term, a law between sovereigns, only inter-governmental, not the law of nations or of peoples (the earlier suggested term) that is what a lot of people had agreed on and not be able to change it within a country. This was persuasive, and within a few decades had spread into all Western languages except German.

The Declaration of Independence starts with an appeal to Nature and Nature's God, a separate and equal station among the powers of the earth. The right to decide for ourselves, not be ruled by some gathering of international treaty-makers. This is rooted in the right to defend yourself; we gather together to defend ourselves. You cannot defend yourself without establishing an authority who has the force to defend you. So the Declaration ends with a declaration of the right to levy war, to defend ourselves collectively, we Americans are here to defend ourselves. We began not with law but with a revolution in the name of our right to defend ourselves. What they are defending is not just right against attack but the right to pre-emptive defense. You strike first when you see someone is threatening you, or acting aggressively against others and thus a threat to you. Waldron's idea works in a world of good Kantians, but not in the real world. Sovereignty is valuable because not all states will see even the same treaty the same way.

Madison, whose profile appears on ties, says that the great thing about the federal government is that it will guarantee the states against insurrection and invasion. Happy would it be if a similar project could be established for the peace of all mankind. This is visionary, not something to be seriously expected. You cannot expect people to trust a universal authority to care about their protection, and it is amazing that we care as much as we do. When the WTC was attacked, people in Alaska said "We have been attacked." When Danish embassies were attacked, Europe said "You're on your own." Who will risk their troops for the massacre of people in Darfur? Possibly Nigeria, but probably not. That's why it's bad to live in a place like the Sudan.

International law is not the same as domestic law. It is not all the same law. Our government cares about defending us. Europeans are outraged by Guantanamo, because we keep terrorists behind barbed wire. What should we do with the terrorists? send them to Europe? (that would be good) The U.S. has not signed a treaty that says we must treat terrorists as we treat soldiers. I honor the lawyers who have advised the president to follow the constitution by protecting Americans, and I hope all of you when you grow up will do the same.

[uproarious applause]



Q: Rabkin, how do you feel about a democratic peace?

A: I'm optimistic; in the modern world, democratic countries rarely go to world with each other. That's why I'm happy to see democracy being built in Iraq. Europeans say they have maintained peace since 1945 because of the EU, but why have we done this in the Americas without transnational government? If Germany were a nasty dictatorship, the EU could not constrain it. The countries that threaten us -- we've spent a lot of time at Federalist events making fun of France, an unreliable ally but not a threat -- cannot be so constrained. Half the UN is composed of countries governed by tyrants.

Q: Franck, you say look at these other nations and how they value international law, but aren't those countries that have very little power? So why should the U.S.?

A: There never is power equilibrium in any dispute. Guyana could probably demolish Suriname. But they find it useful to follow the law, as should the U.S. If we walked away from the WTO because we lost a case, why would anyone pay any attention to us the next time we brought a case? Can we get along with the WTO, probably not. It's more important to have a peaceful process for resolving the case.

McGinnis- The U.S. does tend to comply with the WTO, but that has to do with: the beneficience of the rules; not a dead hand problem like the UN; made by democratic nations, not totalitarian nations. The U.S. has plausibly said we were consistent with Article 51 of the Charter in invading Iraq, but even if we violated it, why does it matter for a charter made 50 years ago?

Q by T.More: McGinnis, why shouldn't the rule of law be what Federalists support? Waldron and Franck, what about the problem of institutional perversity?

Waldron: It's very important to distinguish between international institutions and international law. Nothing I said this evening had particular reference to the UN Security Council and the authorization of the invasion of Iraq. The particular issues I had in mind, the provisions protecting detainees, were the institutional apparatus of this country in attempting to subvert those agreements. International law is a dense web of action on which we depend, and for the most part in which we take a compliant role. I'm worried that by getting excited by the prospect of detaining people indefinitely, and acting like Jack Bauer on 24 in doing what needs to be done, we sell ourselves short.

Franck: The Security Council is a highly imperfect system, comparable to domestic imperfect systems. It represents the power of a few countries that could start another world war, and to stop the UN from doing something to which they are opposed. There was no veto used in the Iraq case; we never came close to a majority. When countries like Canada, Mexico, France and Germany tell us there's another way, if we had done that, what would we have lost? Something Adlai Stevenson, another person not a favorite at the Federalist Society, said: Don't do something, just sit there. The point that needs to be made is that what happens when you don't give a damn about the rules. If you don't like the rules, change them. If you hate the rules and don't think you can change them, walk out on them. We could walk out on the UN. If you sign the countries with 191 other countries, Senate approves the treaty, then live by the treaty or leave it.

Continue Reading "What Is an International Rule of Law? Competing Perspectives on Its Meaning, Feasibility and Desirability" . . .

Liveblogging the Federalist Symposium

Our very own PG will be liveblogging the panels, debates, and addresses tonight and tomorrow. Check back for updates.

Continue Reading "Liveblogging the Federalist Symposium" . . .

2006 Student Symposium Starts Today!

Though it's the last of the five panels in this year's Federalist Society student symposium, the discussion scheduled for Saturday at 3:45-5:30 p.m. on Foreign and International Law Sources in Domestic Constitutional Interpretation has some relevance to an anniversary occurring today. The description of the event says,
The Supreme Court has increasingly turned to international law to interpret provisions of the U.S. Constitution. Cases such as Lawrence v. Texas and Roper v. Simmons have cited both European decisions and international law as persuasive authority in constitutional interpretation. This use of foreign and international law in domestic constitutional interpretation raises important questions. Are foreign and international law valid sources of constitutional interpretation? Is the use consistent with originalism? To what extent is such reliance a new phenomenon?
I don't know whether foreign and international law will be considered a valid source of constitutional interpretation, nor consistent with originalism, but as many already have noted, such reliance is not a wholly new phenomenon. The American courts have been considering the law of other nations in determining the law of their own for at least two centuries.

Today marks the 203rd anniversary of U.S. Supreme Court Chief Justice John Marshall's handing down* the decision in Marbury v. Madison, which looked to the lately abandoned government and tradition of England for guidance:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. 'In all other cases,' he says, 'it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.'

And afterwards, page 109 of the same volume, he says, 'I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.'
Marbury, 5 U.S. at 163. And again, despite the striking absence of a king from the U.S. government:
After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says, 'but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers: for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents by whom the king has been deceived and induced to do a temporary injustice.'
5 U.S. at 165.

One might counter that Marshall merely cited Blackstone for common law authority, which in American law clearly arises from the English tradition, in contrast to the constitutional law that arose only from the consent of the people through their thirteen states. Yet look at the first quote again. In deciding what is at least partially a constitutional issue -- whether Marbury could sue an executive officer for failing to give him the commission that was his by right -- Marshall pointed out, "In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court." This seems to me a definite use of the English example to explain what the limits of executive power are. If "the king himself" cannot be beyond the reach of suit, then neither can the executive branch that has replaced him.

Regardless of one's views on international law and its interaction with the American constitution, this weekend's symposium promises to be informative, enlightening and even entertaining; for example, the panel mentioned above features Judges Frank Easterbrook and William Pryor. Members of the Columbia Federalist Society will be blogging here at Ex Post, and we hope that other attendees keep the discussion going in comments.

* The phrase "handing down" does say a lot about how we view judges, doesn't it?

Continue Reading "2006 Student Symposium Starts Today!" . . .

Wednesday, February 15, 2006

Fun with FedSoc

While doing some research, I ran across a couple of articles mentioning the Federalist Society that I thought might entertain others.

The first had me cracking up in public, as it's an intentionally humorous 1991 Yale Law Journal piece titled "How Not to Succeed in Law School," by James D. Gordon III. His author note reads in part:
Professor of Law, Brigham Young University Law School. B.A. 1977, Brigham Young University; J.D. 1980, Boalt Hall School of Law, University of California, Berkeley. Just for the record (in case I am ever nominated for a judicial appointment), I don't believe a word of this Essay. And if I do, I'm only being tentative. And if I'm not, I promise to let my colleagues dissuade me from my position shortly before the Senate confirmation hearings begin. After all, I watched the Bork hearings, too.
Apparently he learned originalism well --
Another organization, the Federalist Society, has appeared at some American law schools and is attempting to return us to that golden age when states were as yet unencumbered by the Bill of Rights. Their organizational efforts have been impeded, however, by the fact that Federalist membership dues must be paid in gold coins, since the Society refuses to recognize paper money as legal tender.

The second is more serious: a 1997 Wake Forest Law Review article, "What Judges Can Do About Legal Professionalism," by the Chief Justice of the Indiana Supreme Court.
Part III explores the relationship of judges to people and organizations in the path of law reform. The American Bar Association (ABA), state and federal judicial*623 conferences, the Federalist Society, academia and the coordinate branches of government bring together people concerned about both the state of law and the practice of law. Each body approaches the discussion with differing priorities, and judges must actively participate in this discussion. [...]

Other organizations devoted to the improvement of the practice of law include Inns of Court and the Federalist Society. The Inns of Court movement was sparked during the 1980s by Chief Justice Warren Burger in an effort to raise the effectiveness and integrity of the bar. To quote Judge Patrick Higginbotham, President of the American Inns of Court, the philosophy on which the Inns are based is "an effort to define and embrace the underlying values of the legal profession--a positive claim that the law is a learned profession. . . . The idea is fundamental change--a return to our core values as servants of the law and officers of the court." The Inns are modeled after the English Inns of Court, and judicial participation is crucial to an Inn's success. The Inn typically is divided into "pupilage teams" that design and present instructive programs on issues concerned with ethics in client representation. In addition to the educational program, an Inn's meeting concludes with a meal so that discussion can continue in a collegial atmosphere. I have found from my own Inn membership that most of us leave the meetings happier about our potential contribution as lawyers.

The Federalist Society is also an organization that has been effective in bringing judges, attorneys, and students together to examine the proper role of lawyers in society. The Federalist Society's mission is to foster debate concerning the most pressing issues in law and government. Without regard to political stripe, judges ought to take advantage of the opportunities this organization creates for examination of the judicial function and the ethics of modern law practice, for the emphasis on debate provides a forum for thoughtful discussion. Judges can make a solid impact in this discussion by weighing in on topics like judicial activism, criminal procedure, civil rights, class action litigation, or the role of the ABA in our system of law.

Continue Reading "Fun with FedSoc" . . .

Tuesday, February 14, 2006

NSA Spying and the AUMF

So we recently were given a moot court problem dealing with an NSA spying program. I was excited, wrote about half my brief (the half dealing with whether the AUMF grants the President power to execute the program), when the problem was changed. So my brief is basically worthless, and someone suggested I post it. So here it is. It's very rough, but mildly interesting--defining characteristics, I guess, of a blog post.

The facts, in relevant part, are that the spying program tracked all international IM conversations, then filtered it by computer for various terms, and then NSA agents decided which conversations were worth investigating. Petitioner was convicted of aiding a terrorist. The government "caught" Petitioner based on evidence gained through the program, and she challenged the evidence and everything that came from it as illegal such that the conviction should be overturned.

I. The Court should vacate the lower court's decision since the Authorization to Use Military Force does not abrogate the FISA requirements for the government's illegal surveillance program.

Petitioner's conviction in the instant case was based exclusively upon evidence obtained by the bulk surveillance program called FutureMouse, which logs all Instant Message (IM) conversations between users in the United States and overseas users. Stone Moot Ct. R. 11, 16. IM communication began in the early 1970's, and now attracts almost 100 million users. See James Altucher, MSN Plus AOL Is a Negative for Google, TheStreet.com, Sept. 15, 2005, http://www.thestreet.com/pf/markets/jamesaltucher/10242834.html. Under FutureMouse, every single IM conversation is logged, and a combination of computers and NSA personnel pick out the conversations that warrant further review and action. Stone Moot Ct. R. 16. There is no initial filter for suspected terrorists, and no warrant is ever sought for the surveillance, even though the Foreign Intelligence Surveillance Act (FISA) specifically bars electronic surveillance under such circumstances except when "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 18 U.S.C. 1802(B). The government does not contest that FutureMouse violates FISA, admitting itself that the program is "warrantless," Stone Moot Ct. R. 14. Instead, it argues that both FISA is unconstitutional as applied to the President's conducting foreign intelligence surveillance (discussed infra), and that even without this exclusive authority, the 2001 Authorization to Use Military Force (AUMF) repealed the requirements of FISA when the President is deterring acts of international terrorism. Id. at 15.

The AUMF does not remedy the illegal surveillance program involved in the instant case. The AUMF authorizes the President to use all "necessary and appropriate force" against the "nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons." 115 Stat. 224 § (2)(a). There are, therefore, two separate constraints on the scope of power the President is authorized to use—the force must be "necessary and appropriate" and it must be against the parties included in the authorization.

The FutureMouse program fails on both of these constraints. There is no evidence on the record that Ms. Jones falls under any of these categories, a fact that was even admitted to by the government in the instant case, Stone Moot Ct. R. 14, so whatever surveillance power the AUMF gives the President it does not, by its terms, reach to U.S. citizens such as Ms. Jones. It is also clear that this Court’s prior interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) does not extend "necessary and appropriate" force to include such an extremely broad surveillance program as FutureMouse. The construction of the AUMF the government seeks in this case is outside the scope of the Hamdi holding, in conflict with numerous traditional canons of construction, and would give the government the kind of "blank check" this Court has specifically denied it has. Hamdi, 542 U.S. at [XX]. Since the AUMF does not repeal FISA's requirements, it was illegal for the government to use the warrantless surveillance evidence against Ms. Jones in the lower court and her motion in limine to exclude the evidence gained through illegal surveillance should have been granted. Her conviction should therefore be vacated with instructions to exclude the illegally gained evidence.

A. There is no evidence on the record that Ms. Jones is a party for whom the AUMF would abrogate FISA's warrant requirement.

The most obvious, and perhaps most important, limit on the authorization given to the President under the AUMF is the persons against which it authorizes him to use force. The AUMF requires a nexus between military action and "nations, organizations, or persons" whom the President determines have certain specified connections to the September 11 attacks. This nexus requirement is not accidental; it was pared down from the President’s initial request for authority to "deter and pre-empt any future acts of terrorism or aggression against the United States," without regard to the entities involved. See David Abramowitz, The President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing Use of Force Against International Terrorism, 43 Harv. Int'l L.J. 71, 73 (2002) (quoting Draft Joint Resolution Authorizing the Use of Force). Negotiations between Congress and the White House produced the language of the AUMF limiting the authorization to those connected with the September 11th attacks. See, e.g., John Lancaster & Helen Dewar, Congress Clears Use of Force, $40 Billion in Emergency Aid, Wash. Post, Sept. 15, 2001, at A4. This nexus limitation was a crucial limit on the extent of power, and was even considered by many members of Congress to be the sole limit on the President’s authorization to use force. Curtis A. Bradley and Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2079 (2005) (citing floor debates).

The interpretive question this important nexus requirement raises is what relationship a "nation[], organization[], or person[]" must have to the "terrorist attacks that occurred on September 11, 2001" in order to fall under the AUMF’s grant of authority. The grant surely extends to the members of al Qaeda who participated in the September 11th attack, and probably to members of al Qaeda who either did not participate in the attack or have since joined al Qaeda. Bradley and Goldsmith, supra, at 2109. Under the most broad reading of the grant, all it requires is 1) some organizational relationship between the group to which a person belongs and al Qaeda, and 2) a common goal for some future attack against the United States. There is no evidence on the record in the instant case to satisfy even this extremely broad reading of the nexus requirement.

There is no evidence that either Ms. Jones or Millat Iqbal are members of any terrorist organization, let alone an organization tied to al Qaeda and/or the September 11th attacks. Even Ryan Topps, the representative of the Keepers of the Eternal and Victorious Islamic Nation (KEVIN), to whom Ms. Jones provided documents has not been shown to have any affiliation with al Qaeda. Stone Moot Ct. R. 11. The government has not produced one scintilla of evidence that would suggest that the nexus requirement for the AUMF to have authorized the warrantless surveillance has been satisfied. It has even admitted that it had no prior reason to suspect Ms. Jones for any affiliation with terrorism or any other kind of wrongdoing. Id. at 14. This means that whatever effect the AUMF has in abrogating the requirements of FISA for surveillance of those covered by its terms (itself a dubious proposition, discussed infra), an IM conversation between two persons with no connection at all to al Qaeda or the September 11th attacks is not included in that abrogation. The surveillance against Ms. Jones was illegal, and the evidence obtained through the surveillance as well as the additional evidence against her found as a result of the illegal surveillance must also be excluded as "the fruit of a poisonous tree." Mapp v. Ohio, 367 U.S. 643 (1961).

B. The FutureMouse program is outside the limits this Court put on the scope of the AUMF in Hamdi.

Apart from whether Ms. Jones is included within the group of persons against whom the AUMF authorizes the President to use force is the question of whether the FutureMouse program is a "necessary and appropriate" use of force. This Court’s prior interpretation of the AUMF in Hamdi v. Rumsfeld suggests that the FutureMouse program is not a "fundamental incident of making war" such that it is not included within the AUMF's grant of authority. Hamdi is quite careful in the extent of power it read the AUMF to grant, and the authority the government claims in the instant case with its FutureMouse surveillance is outside that scope.

Hamdi dealt with whether the AUMF authorized the detention of enemy combatants. A plurality of the Court held that the President did have power to detain the combatants, but limited its holding to members of the Taliban during the time of hostilities with Afghanistan. Hamdi, 542 U.S. at 518. The Court did not require that the resolution have enumerated powers that Congress meant to allow the President to exercise; since "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," Congress "clearly and unmistakably authorized detention in the narrow circumstances" facing the Court. Id. at 519. However, outside this very limited holding of the plurality to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there," Id. at 516, there are a myriad of concerns raised by the opinions that militate against finding the FutureMouse program within the authority granted by the AUMF.

To begin, the opinions in Hamdi are indeed somewhat confusing. Justice O'Connor writing for herself, Chief Justice Rehnquist and Justices Kennedy and Breyer held that the AUMF granted the President authority to detain enemy combatants, but held that due process required that the combatants be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Hamdi, 542 U.S. at [__]. Justices Souter, joined by Justice Ginsburg concurred, finding that the AUMF did not warrant the detention, but agreed that Hamdi should be granted a hearing to prove he is not an enemy combatant. Justice Scalia, joined by Justice Stevens, dissented on the grounds that the AUMF did not suspend the writ of habeas corpus. Lastly, Justice Thomas dissented on all restrictions on the President's actions, finding them constitutionally committed to his keeping. In relevant part, therefore, a five justice plurality consisting of Chief Justice Rehnquist and Justices O’Connor, Kennedy, Breyer, and Thomas found that the AUMF authorized the President to detain Mr. Hamdi.

The principal opinion authored by Justice O’Connor is extremely narrow in the authority it grants the President. She calls the facts presented in the case "narrow circumstances," Hamdi, 542 at 509, 519, presenting a "narrow question," Id. at 516, regarding individuals in a "limited category," Id. at 518. The opinion expressed doubt about its holding being sustained in the event of an indefinite or perpetual war, Id. at 521 ("If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel."), and stressed that its holding was based on Mr. Hamdi being detained during active hostilities, against the Taliban. Id. at [__]. Justice O’Connor specifically eschewed any finding of the kind of circumscribed role of the courts in the protection of individuals during war time that Justice Thomas defended in dissent. Thus, all that can really be said about the amount of deference the Hamdi plurality grants to the President in interpreting the AUMF is that uses of force need not be specifically enumerated in the authorization.

C. Traditional canons of construction militate against construing the AUMF broadly enough to include the FutureMouse program.

Multiple canons of statutory construction suggest that the very general terms of the AUMF should not be read to unnecessarily conflict with the specific terms of FISA. When there is a conflict between two statutes, this Court has held that the "carefully drawn" statutes prevail over general statutes. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992). Congress has directly and specifically spoken to the precise question of domestic warrantless wiretapping during wartime, and should not be considered to implicitly have repealed itself. Such a repeal by implication has historically only been established by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 137 (2001), and "the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable," id. at 141-142. The AUMF and FISA are not irreconcilable; the AUMF should not be read as implicitly repealing FISA’s warrant requirement.

Statutes should, moreover, be read to avoid grave constitutional concerns. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). For this reason, the Fourth Amendment privacy issues raised by this case militate against a broad construction. This Court’s decision in Kent v. Dulles, 357 U.S. 116 (1958) is instructive on this point. The 1926 passport statute authorizes the President to determine the rules by which passports are granted and issued. See 22 U.S.C. S 211a (2000). The Court in Kent refused to construe the passport statute so broad as to grant the President power to withhold passports on grounds of political affiliation. The Court "hesitate[d] to find in this broad generalized power [over passports] an authority to trench so heavily on the rights of the citizen," and thus "construe[d] narrowly all delegated powers that curtail or dilute” fundamental rights." Kent, 357 U.S. at 129.

Comparing two World War II-era decisions further shows this Court has historically avoided reading statutory grants so broad when faced with questions of the liberty of non-combatants. In Ex parte Endo, 323 U.S. 81 (1943), the Court read a congressional authorization to fall short of authorizing the President to detain U.S. citizens of Japanese heritage. Even during war, the President would have to identify clear statutory authorization for any such detention, that although constitutional, see Korematsu v United States, 323 US 214 (1943) (decided the same day as Endo), approached the line of constitutionality. According to the Court, "[i]n interpreting a wartime measure we must assume that their purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of war." Endo, 323 at 300; see also Duncan v. Kahanamoku, 327 U.S. 304, 314-16 (1946). Conversely, in Ex parte Quirin, 317 U.S. 1 (1942), the Court concluded in the absence of a clear statement that the U.S. citizen combatant could be subject to a military trial in the United States. Id. at 44.

This juxtaposition shows the importance of the nature of the individual in this Court’s construction of the statutory grant. Whereas statutory grants to the President imply deference on treatment of combatants, the invasion on the rights of regular Americans does not warrant such deference. If the President is going to be authorized by statute to institute such vast surveillance on potentially every IM user in the country, this Court should require a clear statement from Congress as it has in the past. It is quite clear that Congress would not authorize such a program, evidenced by its refusal to adopt legislation accomplishing the same since the passage of the AUMF. See Dan Eggen, 2003 Draft Legislation Covered Eavesdropping, Wash. Post, Saturday, January 28, 2006, Page A2. This Court should not presume as much.

This approach to construing the AUMF fits the Hamdi plurality nicely into the Court’s prior war power cases. Justice Souter’s concurrence found that the prohibition in 18 U.S.C. § 4001(a) of detention of U.S. citizens "except pursuant to an Act of Congress" required a clear congressional statement that was not satisfied by the AUMF, Hamdi, 542 U.S. at 544, but the plurality relied on historical practice to determined that the AUMF was an "explicit congressional authorization" to satisfy S 4001(a). Id. at 516-17. Mr. Hamdi’s status as a combatant warranted, despite Justice Souter’s concurrence, a more broad reading of the AUMF due to his status as a combatant. Non-combatants, per Endo, do not warrant such a broad reading in the absence of a more clear statement. These historical principles, combined with the status of Ms. Jones and this Court’s interpretation in Hamdi do not warrant the construction of the AUMF the Second Circuit awarded it.

Continue Reading "NSA Spying and the AUMF" . . .

Monday, February 06, 2006

Alas for Our Judeo-Christian Heritage

This NYTimes article about how some of the nationwide culture debates are playing out in Utah indirectly illustrates the federalist aspect of the First Amendment's history. In other parts of the country, conservatives are assumed to be friendly to teaching evolution and permitting organized prayer in schools, but the differences between the Mormon faith and other denominations' beliefs that dominate the rest of the nation are highlighted by the unwillingness of even Republican state legislators to hop on that bandwagon.
[State Senator Peter C. Knudson, the Republican majority leader,] and other lawmakers say that part of the debate here is in fact over what kind of religion would be buttressed by the legislation. Although the Origins of Life bill, as it is formally known, does not mention an alternative theory to evolution, some legislators say they think that voting yes could be tantamount to supporting intelligent design, which posits an undefined intelligence lurking behind the miracles of life and which differs greatly from the Mormon creation story.

"There are people who say, 'That's not my religion,' or that it will only confuse our children," said State Representative Brad King, a Democrat and the minority whip in the House, who also plans to vote against the bill. "For me, it's sort of that way," added Mr. King, whose father, a Mormon bishop, taught evolution at the College of Eastern Utah.

Others say that Mormonism, with its emphasis that all beings can progress toward higher planes of existence, before and after death, has an almost built-in receptivity toward evolutionary thought that other religions might lack. Still others oppose the state's inserting itself in matters of curriculum, which are mostly under the control of local school districts.
Such concerns are a reminder that even the "Judeo-Christian" tradition, often touted as being embedded in our laws and thus a necessary part of government institutions, is more complicated than the monolith it is presented to be.
Utah's predominant faith has also made its stance less predictable on other issues touching on religion in school — notably school prayer. Enthusiasm for the idea has been muted or ambivalent, said Kirk Jowers, a professor of political science and director of the Hinckley Institute of Politics at the University of Utah*. Professor Jowers pointed to the awareness among Mormons of their religion's minority status in the nation and world.

"It was kind of a realization that if you push to have prayer in school, then outside of Utah, the prayer would not typically be a Mormon's prayer, so is that road you want go down?" Professor Jowers said.
This is precisely how the issue played out in Santa Fe Independent School District v. Doe, the prayer-at-football-games case in which the plaintiffs were Mormon and Catholic families who were decidedly a minority in the Baptist town.

*The Hinckley Institute's most famous alumnus probably is Karl Rove.

Continue Reading "Alas for Our Judeo-Christian Heritage" . . .