Georgetown Law Faculty Blog

David Cole in the New York Review of Books

David Cole explains Why the Court Said No in Hamdan.

My Senate Armed Services Testimony

for today's post Hamdan hearing is available here. 

The Kennedy Court by David Cole

David Cole has an article in the Nation on the "Kennedy Court."

Hamdan Panel transcript

One last Hamdan panel link: the transcript (pdf) of the discussion.

The Virtues of Courts Martial

I'm starting to catch my breadth after the ruling, and, in response to the hearings today in the Senate Judiciary Committee, penned a piece for Slate Magazine about why we shouldn't rush to legislate some newfangled system to try suspected terrorists.  The piece is available here.  Look for very interesting hearings in the House and Senate Armed Services Committees over the next days, where the level of knowledge about the existing military justice system is terrific. 

Emma Coleman Jordan "What is the Inheritance of Civil Rights Royalty?"

“I would soon as leave my son a curse as the almighty dollar”
- Andrew Carnegie, American Industrialist

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character”
Martin Luther King, Jr.

The recent sale of Dr. Martin Luther King Jr’s personal papers through Sotheby’s Auction house to a consortium of buyers, led by Atlanta Mayor Shirley Franklin, has sparked renewed criticisms of the King Estate’s commercial control of Dr. King’s intellectual legacy.  Over a period of years a chorus of scholars, civil rights leaders and others have decried the efforts of the family of Martin Luther King, Jr to reap financial rewards from reproductions of his speeches and other papers, his image, former parsonage, and the intellectual property value of his ideas.  In 1999, the King Estate won a major lawsuit to enforce its copyright, Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. (link to Lexis; free version here).

The death of Coretta Scott King in January of this year leaves their four children as the last direct beneficiaries of the Sotheby’s private sale rumored to be valued at close to 30 million dollars.  Some of this criticism in the last few weeks has been muted by Mayor Franklin’s successful arrangement  for the papers to be archived in Atlanta, at Morehouse University,  Dr. King’s undergraduate alma mater. 

The criticism of the King children is based on a number of premises that are often in conflict with each other. The King legacy controversies provide a useful window into the ambivalence most Americans feel toward inherited wealth.  For African Americans,  the general black wealth deficit is an especially sensitive subject. To some, the King's emphasis on  commercial exploitation is in direct opposition to the non violent, public service ideals by which Dr. King himself lived during his short 39 years of life.  The King children’s efforts run afoul of the unstated, and somewhat unfair, expectation that they should take the same religiously inspired vow of near-poverty as their father. 

The King Inheritance and The Black Wealth Gap

As sociologists Melvin Oliver and Thomas Shapiro have demonstrated in their research here and here, “1 out of 4 white families received an inheritance after the death of a parent, averaging $144,652.  In stark contrast, about 1 in 20 African American families had inherited in this way, and their average inheritance amounted to [only] $41,985.” The inheritance gap simply reflects the financial wealth gap that precedes death.  Black households earn 59 cents for every dollar earned by whites, with whites holding a typical net worth of $81,000 compared to $8,000 for blacks. 

So, one piece of the criticism of the King children’s efforts to generate wealth from Dr. King’s legacy is based on the fact that most blacks do not enjoy much in the way of inherited wealth and this effort to generate a large inheritance places King’s adult children (Yolanda Denise King, 50, Martin Luther King III, 48, Dexter Scott King, 45, and the Rev. Bernice Albertine King, 42) far out of the socio- economic class of most black families.  This creates the perception that they are seeking to become “civil rights royalty”, economically and socially separate and apart from the rest of black America.

I do not subscribe to all of the criticism of the King children because one piece of Dr. King’s legacy was to lead the effort to break the barriers to economic and social parity with other Americans.  So, I can see the benefit of the enforcement enterprise to the extent that this effort to be compensated for Dr. King's intellectual property rights is consistent with the struggle of all African Americans to overcome the dismal American legacy of commercial exploitation, beginning with slavery.  Therefore this effort can serve as one role model for a way for African Americans to take control of the land, labor, and other resources that belong to our communities   

The Curse of Children Who Do Not Work for the Money

It is more than fair to remember that “God Bless the Child that’s Got his own” The two wealthiest Americans, Bill Gates and Warren Buffett, have made clear their view that they do not want to pass on their entire fortunes to their children.  Last week Buffett made news by publicly signing his commitment to give eighty percent, $37 billion of his fortune to the Bill and Melinda Gates Foundation.  Buffett says that he is not cutting out his children, but that he holds firmly to his long held view that giving his heirs ''a lifetime supply of food stamps just because they came out of the right womb'' can be ''harmful'' for them and is ''an antisocial act.''   Buffett has also said that, "I'm not an enthusiast for dynastic wealth, especially when the alternative is six billion people much poorer (than we are) having a chance to benefit from the money."  His recent gifts are an expression of his“philosophy….that a very rich person should leave his kids enough to do anything but not enough to do nothing.”  [Link: Should You Leave It All to the Children?] His daughter, Susan, has said that “If I write my dad a check for $20, he cashes it.'' At the same time that he gave the majority of his fortune to the Gates Foundation, Buffett gave one billion dollars each to the charitable foundations of his late wife, and to each of his three children. 

The next source of criticism of the King children is that they have, for the most part, not established their own personal achievements to generate wealth.  Thus, some of the resentment can be traced to the perception that they are seeking to establish a black civil rights royalty based on birth, not earned wealth.  Dexter King states his view of this objection, "It has nothing to do with greed.  It has to do with the principle that if you make a dollar, I should make a dime." [Link]

Does The Intellectual Legacy of Martin Luther King, Jr. belong to the Nation or to His Family?

Fueling the controversy about the wealth flowing to King’s children from control of his intellectual property rights is the often unstated assumption that his speeches, letters, books, and papers are a national treasure and should be available, like public documents, such as the Constitution or the Federalist Papers, without restriction, for researchers and others to use without cost.  Lawrence Mamiya, professor of religion and Africana studies at Vassar College says of the King papers “if you have to cite it and pay royalties on it, it becomes problematic”.

I believe that King’s legacy is a hybrid: his papers are of interest to scholars, yet the family has a right to control this valuable intellectual legacy.  I have a substantial objection, however, when the control of the intellectual property interest interferes with dissemination of the historical record.  So, I was especially happy to see that Atlanta Mayor Franklin’s efforts will place the papers in the Sotheby collection at Morehouse College, an historically black university, where researchers will have access. 

I was pleased to learn that Stanford University historian, and Director of the Martin Luther King, Jr. Institute at Stanford, Clayborne Carson, reports that “[w]e have photocopied and scanned these documents in order to ensure that the ideas expressed in them will be preserved and disseminated in our comprehensive edition of The Papers of Martin Luther King, Jr.” and  “with the cooperation of the King family and the King Estate, [he has] taken actions to ensure that King’s visionary ideas, as expressed in the documents to be auctioned at Sotheby’s and elsewhere, will continue to be made available to researchers, students, and other interested people throughout the world”.

The Content of Their Character

At the end of the day, the King children will not be judged by how much money they have amassed in their personal fortunes, but by the “content of their character”.

War Crimes Act and Hamdan (Rosa Brooks)

Reproduced below (full version after the jump) is a column I published on June 30 in the LA Times, the day after the decision in Hamdan was  announced. The response to the column makes me think it's worth clarifying a few things about the potential implication of Hamdan for potential prosecutions under the War Crimes Act.

1) In Hamdan, the Court held that Common Article 3 of the Geneva Conventions applies -- as a matter of international law-- to the US conflict with al Qaeda. 

The Court did *not* decide the question of whether any or all US detainees are entitled to POW status under the 3rd Geneva Convention, or protections under the 4th Geneva Convention on civilians. What the Court held was essentially what human rights and humanitarian law experts have long argued: that Common Article 3 of the Geneva Conventions is an "in the alternative" article, applicable to all conflicts that are not otherwise covered by the Geneva Conventions.

On the one hand, Common Article 3 provides only  very "basic" protections-- such as the right not to be tortured or murdered-- and these are only a tiny subset of the full range of protections to which people who qualify as POWs (for instance) are entitled. On the other hand, the relatively minimal protections of Common Article 3 are given to all "Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause." What that means is that whether a prisoner was wearing a uniform, bearing arms openly, etc., etc. has nothing whatsoever to do with whether he qualifies for protections under Common Article 3.

2). As Carlos Vazquez noted in his earlier post , the Court also did not decide that the Geneva Conventions give rise to judicially enforceable private rights.  However, they did hold that when a US statute incorporates the Geneva Conventions by reference-- as the relevant section of the UCMJ does-- then any applicable articles in the GC are part of US law and enforceable to that extent.

There is nothing novel about such an approach, and readers should note that this also has nothing to do with the current controversy about SCOTUS "reliance" on foreign or international law. Throughout our history our courts have routinely interpreted treaty law and foreign law when our own statutes direct us to do so.

3) Here's how this relates to the War Crimes Act. It too incorporates into US law parts of the Geneva Conventions. Specifically,  it defines war crimes as, among other things, any conduct that violates Common Article 3.

So... not to belabor the point, but if federal law makes it a crime to violate Common Article 3 of the Geneva Conventions, and the Supreme Court says that Common Article 3 applies to the US conflict with al Qaeda, then any US national who violates Common Article 3 with regard to his or her treatment of an al Qaeda suspect detained by the US has committed a war crime -- assuming, of course, all the requisite mens rea elements can be proven, etc.

4) Which leaves the final question: what conduct violates common article 3? Well-- for one thing, as the Court just noted in Hamdan, one violation of Common Article 3  is "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

But Common Article 3 also says that the "following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment."

As a matter of both international and US law, there is zero doubt that techniques such as waterboarding, sexual humiliation, placing people in dog collars, forcing them into painful positions for extended periods, mock executions, etc. violate Common Article 3.

Which-- again, sorry to belabor the point, but it seems not to be as obvious to some as it is to me-- means that many of the techniques approved by the Bush administration and used against detainees constitute war crimes, and are prosecutable as such in US courts.

5) Do I think we're about to see Secretary Rumsfeld in the dock? No (see below). Politically, prosecutions (at least during this administration) are somewhere between "not bloody likely" and "absolutely wildly impossible." And as Marty Lederman has argued, there may even be a due process argument against prosecutions for prior mistreatment of detainees, on the grounds that OLC had advised that Common Article 3 did not apply to the conflict with al Qaeda.  (I don't think I agree, but everything Marty says is worth serious consideration).

But that's more than enough introductory blather. Here's the column, a shorter version of some of the above.

The Los Angeles Times
Supreme Court's decision in Hamdan vs. Rumsfeld could expose officials to prosecution.

June 30, 2006

THE SUPREME Court on Thursday dealt the Bush administration a stinging rebuke, declaring in Hamdan vs. Rumsfeld that military commissions for trying terrorist suspects violate both U.S. military law and the Geneva Convention.

But the real blockbuster in the Hamdan decision is the court's holding that Common Article 3 of the Geneva Convention applies to the conflict with Al Qaeda — a holding that makes high-ranking Bush administration officials potentially subject to prosecution under the federal War Crimes Act.

Hamdan and the Geneva Conventions by Carlos Vázquez

The importance of the Supreme Court’s decision Thursday in Hamdan v. Rumsfeld far transcends the immediate subject before the Court – military commissions. Among the most important holdings of the Court was its decision that Common Article 3 of the Geneva Convnetions apply to the conflict against al Qaida. The Bush Adminstration had argued that Common Article 3 was inapplicable to this conflict because the Article by its terms applies only to conflicts “not of an international nature” and the conflict with al Qaida is of an international nature. The Supreme Court rejected that reading of the Article, concluding that the Article uses the term “international” in the sense of “between states.” Because al Qaida is a non-state actor, the conflict between the United States and al Qaida is, according to the Court, “not of an international nature.” The Administration’s reading of Common Article 3 garnered only two votes on the Court – those of Justices Scalia and Thomas – and even they conceded that the majority’s reading of the clause was reasonable. (They argued that the President’s reading was reasonable too and the Court should have deferred to.)

The Court’s holding that Common Article 3 applies to the conflict against al Qaida is of enormous significance for questions not before the Court in Hamdan. For example, the President’s narrow reading of the Article was his basis for concluding that the Article – which requires humane treatment of detainees and bars torture and degrading treatment – has no bearing on the interrogation of members of al Qaida. It was also the basis for the Office of Legal Counsel's conclusion that officials who interrogate using methods inconsistent with Common Article 3 would not risk criminal liability under the War Crimes Act, which subjects U.S. nationals who commit war crimes to criminal penalties and specifies that violations of Common Article 3 are war crimes.

Some commentators have suggested that the Court’s reading of Common Article 3 is of limited significant because the Court did not hold that the Geneva Conventions are judicially enforceable by private parties as an independent source of law, but instead considered the Convention to be relevant to Hamdan’s suit only because Congress had by statute made compliance with the laws of war – and hence the Geneva Conventions – a condition of using military commissions. It is true that the Court reserved the question of the judicial enforceability of the Geneva Conventions in other contexts. But, contrary to the suggestions of some commentators, the Court did not for this reason leave open the question whether the Geneva Conventions are binding on the President. The question whether the Conventions are judicially enforceable is quite separate from the question whether the Conventions are binding. The Administration in Hamdan had argued that the Conventions are not judicially enforceable because the Court had said in an earlier case (Johnson v. Eisentrager) that an earlier Geneva Convention contemplated that diplomatic protests would be the exclusive enforcement mechanism. But even the Eisentrager Court recognized that the lack of judicial enforceability had no bearing on whether the Convention created rights that the military authorities were bound to respect. Nothing in any of the Hamdan opinions suggests that the Geneva Convnetions are not binding on the President. Thus, even if the Conventions are not enforceable by private parties in our courts, the President and his subordinates are bound to comply with them. Thus, there is no question that the opinions of the Office of Legal Counsel embracing an interpretation of the Conventions contrary to the one adopted by the Supreme Court will now have to be revised.

The question of the Convention’s judicial enforceability will come up in cases in which detainees challenge their treatment as contravening Common Article 3. Numerous such cases are pending. Although it is true that the Court left that question open, it is worth noting that the majority signaled some skepticism about the Administration’s position on that point. As noted, the Administration had relied on the Court’s statement in Eisentrager that the “obvious scheme” of an earlier Geneva Convention was that disputes would be resolved diplomatically. The Court’s skepticism of that argument is suggested by its observation that this argument was “buried in a footnote” in Eisentrager. (At the oral argument, when the Solicitor General mentioned Eisentrager, Justice Stevens immediately noted that the portion of the relevant discussion was “dictum in a footnote.”) Additionally, after noting that it would assume arguendo that the earlier Convention’s contemplation of diplomatic enforcement mechanisms suggests a preclusion of enforcement in domestic courts, the majority wrote: “But see Brief of Amici Curiae Louis Henkin et al.” That brief argued at some length that Eisentrager’s reasoning was erroneous and, being dicta, should not be followed. (Full disclosure: I was a co-author of this brief.)  Specifically, the brief argued that a treaty’s provision fpr international enforcement mechanisms does not in any way suggest a preclusion of domestic enforcement; treaties were declared by our Constitution to be the “law of the land” and hence enforceable in our courts in order to avert or quickly correct violations and thus head off the international enforcement mechanisms contemplated by the treaty (or by international law more generally). Thus, although the judicial-enforceability issue technically remains open, Hamdan indicates that at least five Justices are appropriately skeptical of the Administration’s position on this issue. 

Justice Breyer noted in Hamdan that nothing prevents the President from seeking authority from Congress to establish his military commissions.  Much of the commentary on Hamdan emphasizes that the Court's holding on military commissions is alterable by Congress.  The Hamdan decision places significant limits on Congress' options, however. To the extent the Court relied on the UCMJ, Congress could of course amend that statute.  However, the conflicts the Court found with Common Article 3 present a more signficant obstacle. It is true that, under the last-in-time rule, Congress and the President can legislate in contravention of a treaty obligation.  But it is significant that, in a decision on Wednesday, Sanchez-Llamas v.Oregon, the Court relied on Article III of the Constitution and quoted Marbury v. Madison  in holding that it is the province and duty of the Supreme Court to interpret treaties.  The Court gave that as a reason why the interpretation of another treaty by the International Court of Justice could not be considered binding, but presumably this analysis also makes the Supreme Court the authoritative interpreter of treaties vis-à-vis the President and even Congress.  If so, then the Court’s analysis in Sanchez-Llamas rules out a statute that purports to reject the Supreme Court's interpretation of the Geneva Convention and "restore" the President's interpretation, as Professor John Yoo has urged Congress to do.  The law-makers could, of course, repeal the Geneva Convention's domestic effect, but, in light of Sanchez-Llamas, they would have to do so by openly rejecting the Geneva Convention.  Openly rejecting the Geneva Conventions would of course be a terrible idea, given the protections they provide to our troops.  I assume (and hope) that such repudiation is not within the range of plausible options.  If Congress is powerless to reject the Supreme Court's interpretation of the treaty, and repudiation of the treaty is not conceivable, then any legislative solution would have to comply with the Supreme Court's interpretation of Common Article 3.   

Webcast of Hamdan Panel

Now available in video or audio at the Law School's site, here.

Hamdan Panel: Wrapup and Questions

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.