Notes by Rebecca Tushnet.
Mark Tushnet: His comments are more pro-administration, though not strongly so. He’s concentrating on legal possibilities rather than political ones. He asks: Does admission of evidence obtained by coercion violate Common Article 3? Exclusion of such evidence obtained by coercion – at least when there is some reason to think the evidence is reliable – is not universal around the world. So we don’t know the impact of Hamdan on admission of coercion-derived evidence.
Katyal: Responding to Tushnet’s point that it’s not good to rely on a case in which Rutledge dissented as long as Stevens is on the Court: Stevens didn’t just clerk for Rutledge; the Yamashita dissent is one of the most powerful dissents Katyal’s ever read.
On war crimes: Yesterday, one enterprising military commission defense attorneys sent a letter to the commission “judges.” It said: dear judges, I’m supposed to file motions today. I request a stay because I don’t want to violate Common Article 3 and participating in the commission might make me liable for war crimes.
Question from the audience: Can Congress repudiate the law of nations? Vázquez: For purposes of domestic US law it can, though it would be a big deal. Both treaties and law of nations would continue to bind us internationally, and we’d have to face the consequences, but our judges would look to the statute. Luban: It would be a very dramatic move for the US to repudiate the Geneva Conventions, because they protect US forces as well as people in US hands. When the Justice Department was writing the torture memos, the JAGs wrote outraged letters to Justice lawyers pointing out that the moral high ground is that which protects US captives during any future war. We shouldn’t poison the chalice, since we may be drinking ourselves someday.
Question: We usually make reservations to human rights treaties; did we do so making the Conventions non-self-executing? Luban: We didn’t with the Geneva Conventions. Vázquez: The administration’s argument was that there was only one enforcement mechanism, international diplomacy: that was the equivalent of a reservation saying the Conventions weren’t self-executing.
Question: Does the decision have implications for jurisdiction/prosecution in the International Criminal Court? Luban: We’re not necessarily within its jurisdiction, depending on whether an adversary is a party to the ICC. If US personnel were investigated by the ICC, the US gets the first bite at the apple – the ICC can’t take the case unless the US is unwilling or unable to investigate itself, and that’s a pretty high hurdle to jump (apple orchard to clear?). The US has been signing bilateral nonsurrender agreements with as many countries as possible, so those countries won’t hand over US people to the ICC. The Protection of Servicemembers Act also authorizes the president to use all means necessary including force to get servicemembers out of the ICC’s hands: the Hague Invasion Act. Vázquez: His initial reaction is that the decision has no particular implications for the ICC, in that the Court’s interpretation of the Conventions is the same as everybody else’s – the ICC would have adopted the same interpretation, as many other countries and the Red Cross have done.
Question: does Hamdan say we can detain people as long as hostilities go on? Katyal: The Court said the case didn’t involve the detention power. Question: But does this affect the determination of enemy status? Katyal: The district court ruled on this, but the Supreme Court didn’t. That’s now pending in the DC Circuit and will probably be resolved in short order. Luban: Had the Court found no jurisdiction, there would have been significant implications for pending lower court cases, but now those cases can go forward.
Question: Would a law saying that, for domestic legal purposes, the al Qaeda conflict shouldn’t be interpreted as being of an “international character” really harm us internationally? Despite the Court’s profile here, people outside the US might not understand that was a de facto repudiation of the Conventions. Vázquez: He thinks that wouldn’t work, because the Court is the final interpreter of treaties under Marbury. Also, that might not make the commissions “regularly constituted” as required by Hamdan. Tushnet: Tushnet agrees that a statute mandating an interpretation of the Conventions wouldn’t in itself overcome the Court’s interpretation given the Marbury argument. The question would be whether such a statute would count as a repudiation of the Geneva Conventions such that it would make domestic law. Repeals by implication aren’t favored, but it’s not loony to think that the Court would take such a statute to repudiate the underlying obligation rather than to assert of independent interpretive authority. Question: But surely Congress can pass clarifications saying a law shouldn’t be construed in such and such a way, effectively reversing an earlier decision. Vázquez: That’s a repeal, and won’t work in the same way for a treaty because a treaty has independent existence.
Question: What effect will the decision have on extraordinary rendition? Luban: Not much effect, since that’s a different treaty. Common Article 3 doesn’t cover sending someone abroad. Arguably that’s prohibited under the Convention Against Torture, but Hamdan doesn’t reach it.
Question: How far could Congress go in jurisdiction-stripping? Tushnet: If all issues that a litigant might want to raise were channeled into an exclusive remedy procedure, there wouldn’t be a problem. If there are restrictions on the issues that can be raised, you have to look in detail to see if they’re sufficiently severe to deny due process. His quick and dirty view: The limits in the DTA are not severe enough to violate due process.
Question: Is the defense of following military orders available in a prosecution under the war crimes law? Tushnet: You’d have to worry about the mental element required for commission of the war crime. If willfulness is required, case law suggests that at least reasonable reliance on advice of counsel provides you with a defense. Certainly the OLC believed that reasonable reliance would provide such a defense because that’s the reason they produced the torture memo – not to authorize torture, but to ensure that CIA agents who might engage in it would have a defense. Luban: the war crimes statute doesn’t have a mens rea specified at all. It’s a felony to commit a war crime. The statute is a cipher on mens rea. The usual doctrine for defense of superior orders is that you may disobey a dubious legal order but you’re assuming the risk that it’s legal and may be courtmartialed. If it flies the black flag of illegality, you must defy it. This may change from one period to the next. It may be that while the memos are flying there’s no certainty about waterboarding, but at this point any CIA operative who waterboarded in the wake of Hamdan is doing something manifestly illegal.