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: 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.
You type really fast! (Was watching you on C-Span.)
Posted by: Scott Taylor | June 30, 2006 at 12:10 PM
I've been given to understand that other people consider my notes freakishly detailed. I didn't realize I was visible on C-Span. At least I wasn't playing Solitaire.
Posted by: Rebecca Tushnet | June 30, 2006 at 12:16 PM