Georgetown Law Faculty Blog

International Development Assistance for Health: Ten Priorities for the Obama Administration

 

            President-Elect Obama has a strong commitment to, and policy on, international development assistance for health. However, during the election, he rarely discussed global health, and with the financial crisis he may turn his attention to pressing economic issues. America’s commitment to global health is not only a moral imperative, but also is critically important to our national interests in security, trade, and human development. A major initiative by the new President on Global Health Diplomacy would help transform America’s world image. Here, I offer ten priorities on global health for the Obama Administration.

 

            With a new administration starting in January, it is an opportune time to propose fundamental reform of America’s policy on development assistance for health:

 

1.    Appoint a cabinet level official on international aid. Development policy cuts across multiple sectors, including foreign affairs, health, agriculture, energy, and the environment. A cabinet level official with direct access to the President is needed to advocate a “health in all policies” approach and coordinate the currently fragmented activities across agencies.

2.    Fulfill America’s pledge to devote 0.7% of GNI per annum to ODA. America should fulfill its pledge to ensure scalable and sustainable global health assistance. G8 leaders in Toyako, Japan this year reaffirmed their long-standing pledges, while committing to full, annual measurements of progress.

3.    Meet basic survival needs of the world’s poor. American aid should be directed primarily to meeting what I call “basic survival needs,” including sanitation and sewage, pest control, clean air and water, diet and nutrition, tobacco reduction, and essential medicines and vaccines. Meeting everyday survival needs may lack the glamour of high-technology medicine or dramatic rescue, but what it lacks in excitement it gains in impact by targeting the major determinants of health.

4.    Strengthen health systems. American aid should aim to improve health systems in developing countries, including human resources, data systems, laboratories, primary care, and public health infrastructure. The G8 experts group in Toyako recommended, and countries committed to, health system improvement as a better way to improve health for the world’s poor.

5.    Reverse the “brain drain.” The WHO estimates that 4.3 million more health care workers (HCWs) are required to meet the Millennium Development Goals, particularly in Africa, which has 25% of the world’s disease burden, but only 3% of the world’s health workers. Rather than improving the workforce in developing countries, the U.S. actively recruits HCWs. The U.S. should build the supply of skilled workers at home, limit international recruitment, and “give back” by building human resources in poor countries through cash payments, scholarships, clinical training, and HCW exchanges.

6.    Improve maternal, newborn, and child health. Each year more than half a million women die in pregnancy, and the same number of children die from easily preventable causes such as diarrhea, pneumonia, and malaria. Many women and children would survive if they received antenatal and postnatal care, skilled birth attendants, childhood vaccines, adequate nutrition, and inexpensive lifesaving interventions.

7.    Create fair trade for developing countries. The United States has aggressively defended free trade through the World Trade Organization, as well as even more stringent regional and bilateral treaties. This has created obstacles for poor countries in accessing essential vaccines and medicines, developing domestic health and safety protections, or competing fairly with richer countries. The world’s poorest people, for example, were made even more vulnerable when the wealthy West and rising East refused to eliminate farm subsidies, leading to the collapse of the Doha round of agricultural trade negotiations.

8.    Collaborate and coordinate with multiple players. A proliferation of actors now occupy the field of global health, resulting in rampant problems of fragmentation and duplication in a sea of funding and activities that span the global health domain. Related to fragmentation is the growing competition between foreign aid workers and local service providers, hindering efforts at greater country ownership and control. The U.S. should work with stakeholders and consult local leaders to foster effective partnerships, create synergies, and avoid destructive competition.

9.    Promote accountability, transparency, and monitoring. Accountability in global health is problematic. WHO is accountable to its Member States, but often lacks detailed and realistic targets. States are accountable to their electorate, but routinely renege on pledges to the poor. Civil society, foundations, and corporations report to an array of different interest groups and cannot be held accountable for their failures. The U.S. should work with the international community to create rules for accountability, transparency, and monitoring progress to achieve goals.

10. Agree to fair terms of international cooperation on global health. The U.S. has been resistant to global health governance, refusing to ratify vital treaties or work cooperatively. The U.S. could make a genuine difference by agreeing to fair terms of cooperation through international agreements, such as a Framework Convention on Global Health. See Lawrence O. Gostin, Meeting Basic Survival Needs of the World’s Least Healthy People: Toward a Framework Convention on Global Health, 96 Georgetown Law Journal 331-392 (2008), available at http://ssrn.com/abstract=1014082.

 

Effective global health governance could dramatically improve life prospects for millions of people and diminish our collective vulnerabilities. That is an ideal worth pursuing by President-Elect Obama.

Lawrence O. Gostin, Linda and Timothy O'Neill Professor of Global Health Law, Georgetown Law

New Article by Carlos Vázquez

Treaties as Law of the Land: The Supremacy Clause and Presumption of Self-Execution, a new article by Carlos Vázquez and to be published in the Harvard Law Review, has just been posted to SSRN.

Abstract:

 

[This article was being prepared for publication in the May 2008 issue of the Harvard Law Review when the Supreme Court handed down its decision in Medellín v. Texas on March 25. A revised version will appear in a later issue of the same journal.]

The case law concerning the judicial enforcement of treaties has long been regarded as a morass. Relying on the notion that treaties are contracts between nations generally enforceable only at the state-to-state level, primarily through diplomatic mechanisms, the lower courts have begun to require private parties invoking treaties to make a threshold showing of "judicial enforceability" over and above the showing that litigants must make to enforce statutes and the Constitution. This Article argues that such a showing is unnecessary because the Supremacy Clause supplements the state-to-state enforcement mechanisms provided by international law with a domestic mechanism: enforcement in the courts at the behest of individuals. Under the Supremacy Clause, the judicial enforcement of treaties is governed by the same doctrines that govern the judicial enforcement of the other two forms of federal law - federal statutes and the Constitution. The sole exception to the foregoing proposition concerns treaties that are "non-self-executing" in the sense contemplated by the Court in Foster v. Nielson.  This Article argues that the Constitution establishes a presumption that treaties are self-executing in this sense. The Court's subsequent decision in United States v. Percheman is best read to have recognized such a presumption when it wrote that a treaty is non-self-executing if it "stipulat[es] for a future legislative act."

In recent years, the U.S. treaty-makers have been attaching declarations of non-self-execution to the human rights treaties the United States has ratified. These declarations appear to be stipulations of the sort contemplated by the Court in Percheman, but their validity has been the subject of considerable controversy. This Article concludes that declarations clearly stipulating that the treaty obligations being assumed by the United States are subject to legislative implementation do validly render the treaties non-self-executing in the Foster/Percheman sense.

Common Article 3, Torture, and Specific Intent

Over at Balkinization, Marty Lederman and David Luban have published trenchant criticisms of the new war crimes bill currently before Congress.  Marty and David analyze numerous problems with the main provisions relating to Common Article 3, including: (1) Section 6’s court-stripping provisions, (2) Section 7’s prohibition on invoking the Geneva Conventions or its protocols as a source of rights in any federal habeas or civil proceeding in which the U.S. government or its agents is a party, (3) Section 8's "full satisfaction" provision for grave breaches of Common Article 3, and (4) Section 8’s definition of “cruel or inhuman treatment.”  In this post, I wish to call attention to a further issue: Section 8’s “specific intent” requirement on what constitutes torture for purposes of the War Crimes Act.

Section 8 defines torture as:

The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering...upon another person within his custody or physical control for the purpose of obtaining information or a confession... (emphasis added).

This definition is a departure from Common Article 3, which simply lists torture without qualification among those acts which “are and shall remain prohibited at any time and in any place whatsoever…” That is, while Common Article 3 does not restrict torture to harms associated with a particular mental state, Section 8 does do so; furthermore, it defines that mental state narrowly, as one of “specific intent.”

Why is this noteworthy?  Recall the Bybee memo's analysis of the same mens rea element in the federal torture statute:

[B]ecause Section 2340 [i.e., 18 USC § 2340] requires that a defendant act with the specific intent to inflict severe pain, the infliction of such pain must be the defendant’s precise objective. If the statute had required only general intent, it would be sufficient to establish guilt by showing that the defendant “possessed knowledge with respect to the actus reus of the crime.” If the defendant acted knowing that severe pain or suffering was reasonably likely to result from his actions, but no more, he would have acted only with general intent…. As a theoretical matter, therefore, knowledge alone that a particular result is certain to occur does not constitute specific intent. As the Supreme Court explained in the context of murder, “the . . . common law of homicide distinguishes . . . between a person who knows that another person will be killed as a result of his conduct and a person who acts with a specific purpose of taking another’s life.” Put differently, the law distinguishes actions taken ‘because of’ a given end from actions taken ‘in spite of their unintended but foreseen consequences.’” Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control (p. 3-4, emphasis added).

Furthermore:

[A] showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent. Where a defendant acts in good faith, he acts with an honest belief that he has not engaged in the proscribed conduct….A good faith belief need not be a reasonable one….(p. 4-5, emphasis added).

In December 2004, the Justice Department published a second memorandum (the “Levin memo”) meant to supersede the Bybee memo in its entirety. However, the Levin memo’s treatment of the specific intent issue is evasive and unconvincing. Here is the key passage which reveals the question-begging character of the exercise: “We do not believe it is useful to try to define the precise meaning of ‘specific intent’ in section 2340. In light of the President’s directive that the  United States does not engage in torture, it would not be appropriate to rely on parsing the specific intent element of the statute to approve as lawful conduct that might otherwise amount to torture.”

What does all this imply for the torture provision now before Congress? First, it is simply not true that the proposed legislation prohibits U.S. agents from “inflicting severe physical or mental pain or suffering for the purpose of obtaining information or a confession,” as the flow chart published in the September 22 New York Times implies. Plainly, the proposed law does not prohibit this. Indeed, by its very terms it does not even prohibit U.S. agents from knowingly inflicting severe physical or mental pain or suffering for the purpose of obtaining information or a confession. Rather, the bill merely prohibits U.S. agents from specifically intending to inflict these harms.

And what exactly does "specifically intending" mean? The Levin memo’s reply is that it is not “useful” for the government to answer that question.  By contrast, the more candid and informative Bybee memo—surely probative evidence of how the Bush administration is likely to interpret and apply the provision under the “virtually unreviewable” authority given to it by the proposed legislation—does provide some fairly clear answers.  According to the Bybee memo, specific intent means what it has typically meant in Anglo-American law: purpose or conscious objective, as distinct from knowledge, substantial certainty, foreseeability, and related concepts.  Hence—to recall a familiar example—a U.S. agent who knows or foresees with substantial certainty that his coercive interrogation technique will result in “death, organ failure, or permanent impairment of a significant bodily function” is not necessarily guilty of torture under the proposed legislation, even without recourse to defenses like necessity--at least not according to the Bybee memo.

Second, in light of the foregoing it seems patently false to assert that the proposed legislation merely clarifies Common Article 3’s prohibition on torture. Common Article 3 does not explicitly limit torture to cases of specifically intended harms, nor should it be read to do so implicitly. This is a debatable proposition, but it appears to be supported by ample evidence, including common usage and the Official Commentary on the Geneva Conventions, as well as the general intent language found in the 1984 U.N. Convention Against Torture (CAT):

For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession...(CAT, Article 1(1), emphasis added).

As the Bybee memo recounts, when the Reagan Administration submitted the CAT to the Senate, it sought to narrow the general intent language of the CAT to ensure it would be understood as requiring specific intent: 

The United States understands that, in order to constitute torture, an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering (p. 16, emphasis added). 

Likewise, in order to “ensure that the Convention’s reach remain limited,” the first Bush Administration submitted the following understanding to the Senate in 1990:

The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering…(p. 18, emphasis added).

This is the understanding with which the US ratified the CAT in 1994 and which underlies 18 USC §§ 2340-2340A, the federal torture statute. 

But Common Article 3's ban on torture--ratified decades earlier--is not so limited.  It does not require proof of "specific intent" in the sense implied by the language of the proposed bill.  And since 1997, the War Crimes Act has criminalized all of CA3's prohibition on torture.  Under the proposed bill, that would no longer be the case.

Is the specific intent rule nonetheless justifiable?  Arguably not, for at least the following reasons. First, the rule is simply too lenient, in just those ways the Bybee memo exposed--and there is no good reason why the U.S. should not criminalize all instances of torture made unlawful by Common Article 3.  Second, the rule is artificial in just the manner the Bush Administration has publicly disavowed: “the President has been very clear on the issue of torture, which is we are against it—and torture by anyone's common-sense definition of it, not some fancy definition.”  Third, there is the question of consistency: the Torture Victims Protection Act, 28 USC § 1350 note (3)(b), which supplies a tort remedy for victims of torture, proceeds under a general intent rule, as do many war crimes tribunals to which the United States has lent political and diplomatic support.

Finally, there is the issue of whether “the world is beginning to doubt the moral basis of our fight against terrorism.”  What is the world to make of the fact that the United States relies on artifice and technicality to avoid the plain meaning and import of the Geneva Conventions, and therefore appears willing to countenance situations like this one?

 Prosecutor:  Did you know that what you were doing to the detainee would cause him severe physical pain?

Defendant:  Yes sir.

Prosecutor: Did you know it would permanently disfigure him?

Defendant:  Yes.

Prosecutor: Did you know it would prevent him from being able to walk?

Defendant:  Yes.

Prosecutor: And were you doing it for the purpose of obtaining information or a confession?

Defendant: Yes.

Prosecutor: Isn’t that torture?

Defendant: No sir. Read the statute. I knew those harms would occur, but I did not specifically intend any of them.  Causing those harms was not my conscious objective.

Perhaps I am wrong to assume that Common Article 3 would condemn this behavior but that the proposed amendment to the War Crimes Act defining torture would not.  The Levin memo carefully avoids clarifying the issue, and Senators McCain and Graham have refused to comment.  Yet the issue goes to the heart of our commitment to ban torture, and to do so in a manner that comports with common sense.  Congress should replace the specific intent rule in both the WCA and section 2340 with language which tracks the general intent standard of the Convention Against Torture.  At a minimum, it should hold hearings on the issue to determine whether the proposed legislation represents a significant failure to live up to our obligations under the Geneva Conventions.

 

David Cole in the New York Review of Books

David Cole explains Why the Court Said No in Hamdan.

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. 

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.