I



I. Constitution and Empire 4

Somerset v. Stewart (1772); King’s Bench; Lord Mansfield 4

Dred Scott v. Sandford (1856) 4

Downes v. Bidwell (1901) (one of the Insular cases) 6

Johnson v. Eisentrager (1950) 8

Ahrens v. Clark (1948) 10

Reid v. Covert (1957) 11

United States v. Verdugo-Urquidez (1990) 13

Rasul v. Bush (2004) 14

Boumediene v. Bush (2008) 17

II. International Law? 23

Schooner Exchange v. McFaddon & Others (1812) 23

The Antelope (1825) 24

Vattel, The Law of Nations 25

Joseph Story, “Law of Nations” 26

U.S. v. Schooner Peggy (1801) 27

Brown v. United States (1801) 27

Foster v. Nielson (1829) 29

United States v. Percherman (1829) : 30

The Paquete Habana (1898) 31

Filartiga v. Pena-Irala (1980) 32

Tel Oren v. Libyan Arab Republic (1984) 34

Kadic v. Karadzic (1995) 38

Louis Henkin, International Law as Law in the United States 39

Restatement of Foreign Relations Law, Sec. 111.  International Law and Agreements as Law of the United States 41

Restatement of Foreign Relations Law, Sec. 115.  Inconsistency Between International Law or Agreement and Domestic Law:  Law of the United States 42

Curtis Bradley & Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position 42

Sosa v. Alvarez-Machain (2004) 45

III. Torture: An Interlude 48

Geneva Conventions, Common Article III 48

Bybee Memo; Re. Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A 50

Sec. 1003. Note: 42 USC 2000dd. Prohibition on cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States Government 61

Sec. 1004 42 USC 2000dd-1. Protection of United States Government personnel engaged in authorized interrogations 62

Alberto Gonzales, Senate Judiciary Committee Confirmation Hearing 63

Michael Mukasey, Senate Confirmation Hearing 64

PCAT v. The State of Israel and The General Security Service 64

IV. War & Exception 65

The Lieber Code: Excepts 65

Abraham Lincoln, Letter to Albert Hodges 68

Abraham Lincoln, Message to Congress in Special Session 69

Abraham Lincoln, Letter to Erastus Corning and Others 71

Ex parte Merryman (1861) 73

Ex Parte Milligan (1866) 74

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty 76

Korematsu v. United States (1944) 77

Ex Parte Endo (1944) 80

Ex Parte Quirin (1942) 82

In Re Yamashita (1946) (jus post bellum) 84

Hirota v. MacArthur (1949) 86

Hamdi v. Rumsfeld (2004) 87

Hamdan v. Rumsfeld (2006) 92

Padilla v. Hanft (2005) 96

V. Who Obeys What? The States and International Law 97

Missouri v. Holland (1920) 97

Reid v. Covert (1957) 98

VCCR, Article 36 Communication and Contact with Nationals of the Sending States 98

LaGrand Case (2001) 99

The Avena Case (2004) 101

President Bush, Memorandum for the Attorney General—Compliance with the Decisions of the ICJ in Avena 102

Sanchez-Llamas v. Oregon (2006) 103

Medellin v. Texas (2008) 107

VI. The Constitution in the International Markets 111

Charles A. Beard, An Economic Interpretation of the Constitution of the United States 112

Robert McGuire, To Form A More Perfect Union: A New Economic Interpretation of the US Constitution 112

McCulloch v. Maryland (1819) 113

Hepburn v. Griswold (1870) 114

Know v. Lee & Parker v. Davis (1871) 115

Norman v. Baltimore & O.R (1935) 116

Nottz v. United States (1935) 118

Perry v. United States (1935) 118

VII. Rights and International Norms 119

Loewen Group v. United States (2003) 119

Roper v. Simmons (2005) 122

Lawrence v. Texas (2003) 122

Breyer and Scalia 123

Ruth Bader Ginsburg, Looking Beyond our Borders: The Value of a Comparative Perspective in Constitutional Adjudication 123

*Red Underline—Reading and Lecture

** Red—Lecture

*** Black—Reading

I. Constitution and Empire

Somerset v. Stewart (1772); King’s Bench; Lord Mansfield

Facts: Somersett kidnapped from Africa and made a slave, and sold to Stewart. Had not been manumitted since. He was brought to Enlannd to attend and serve. He fled and was recaptured and given to Captain Knowles to be held until he returned to England. Somersett filed for a writ of habeas corpus; the writ from the king to the jailer to produce the body or show cause.

Holding: “So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different, in different countries. The state of slavery is of such a nature, that it is incapable of being introduced on nay reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England, therefore the black must be discharged.

Notes

- Argument

o 1. Slavery only if there is positive law

o 2. No positive law of slavery in England

o 3. Slave free in England

- Point is that common law is embodied reason; Cooke: Common law is artificial reason—it looks to precedent and reason

- Mansfield limits it to positive law because that would have been activism on his part; leaves the question open for the colonies. Because within an imperial construct, it is possible that laws will vary

- Why can’t you have slavery in common law/custom?

o Distinctively immoral

o There are no good reasons for common law justification

o Morality is one of those reasons

Dred Scott v. Sandford (1856)

Facts: Dr. Emerson took slave Dred Scott to Upper Louisiana (where slavery was prohibited) in 1836. Then in 1838, Dr. Emerson took the Sandford and his wife to the state of Missouri and tried to sell him to the defendant Sandford. Dred Scott claims that he was free because of his stay in the Louisiana territory.

Issue: (1) Does the court have jurisdiction--can and African American become a citizen under the United States Constitution. (2) Was the defendant and his family entitled to bring suit under the privileges and immunities clause because of his stay in Louisiana. Is the Missouri Compromise (which says that North of 36’30 there will be no slavery) constitutional?

Holding: (1) African-Americans were not intended to be included, under the word (they are not part of “we the people”) “citizens in the Constitution and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. They were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those the Government might choose to grant them. Every state has the right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights, but this character is confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States.

The legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, not their descendant, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument.

- Article III made it so that Dred Scott needed to be a citizen; federal courts are courts of limited jurisdiction because they are part of limited government

- Court has to undercut implicit allowance of naturalization; so Taney postulates there are no political African communities

- But what about African-Americans living in United States political communities?

o Those poltical communities cannot confer US citizenship

- Why did the court reach the first question? The reach that a holding of United States citizenship could have for state citizenship made it so

o Symbolic effect of decision: makes the states the relevant body for determining citizenship and excluding African-Americans because they are not a member of a polity

▪ The very capacity to become a citizen depends on a membership in a polity; sustain status of African-American because they are not capable of being citizens

- We the People 1776 va 1786

o Question of when people became U.S. citizens

▪ Implication for Dred Scott: anyone who was a citizen in 1776, could not be made uncitizen by Constitution

▪

(2) Constitutional provision which confers on Congress the power ‘to dispose of an make all needful rules and regulations respecting the territory or other property belonging to the United States” has no bearing on the present controversy because it is confined to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more. The powers of the Government and the rights and privileges of the citizen are regulated an plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those created it. The territory being a part of the United States, the Government and citizen both enter it under the authority of the Constitution with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property what that instrument confers, nor lawfully deny any right which it has reserved. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description or property owned by a citizen, no tribunal, acting under the authority of the United States, has a right to draw such a distinction, or deny to it the benefit of the provision and guarantees which have been provided for the protection of the private property against Government encroachments.

- Common consensus is that Missouri Compromise part was intended to hold together the union

- Legal or doctrinal arguments

o Start with constitutional provision

o Two question in sequence: 1) authority to act, 2) was their rights violation

- Court draws critical distinction between territories; major point is that the only way to admit territories is to admit them as states

o Louisiana was required to become a state

o Congress had no authority under the Articles to take the territory, but did under natural law power as sovereign—poltical communities

- Natural law: must be the same always and everywhere

- Constitution only gives enumerated powers, therefore only natural law that is mentioned applies; constitutional regime does not exercise natural law

o Sovereignty paradox: natural right to form political community as sovereign, and yet of the moment constitutional formation natural law powers were limited

- Argument why Congress does not have authority: Only way to get territory is for them to become states, and for Congress to act within Congress’ discretion

o Fundamental anticolonial and racists opinion

o Within Congress has no authority to act+ no colonies, just territories with same rights as states

Downes v. Bidwell (1901) (one of the Insular cases)

Facts: In 1888, the United States acquired Puerto Rico. Merchandise brought into the port of New York for Puerto Rico after the passage of the Foraker Act. In De Lima v. Bidwell, the court held that, upon the ratification of the treaty of peace with Spain, Puerto Rico ceased to be a foreign country, and became a territory of the United States, and that duties were no longer collectible upon merchandise brought from that island. Foraker Act passed under Section 9.

Issue: Did Puerto Rico become part of the United States within the meaning of Article 1 Section 8, which declares that “all duties, imposts, and excises shall be uniform throughout the United States”? (If Puerto Rico did become part of the United States, the Foraker act imposing duties upon its products is unconstitutional, not only by reason of a violation of the uniformity clause, but because by Section 9 “vessels bound to or from one state’ cannot be obliged to enter, clear, or pay duties in another.” Whether tariff applying on imports from other countries applied to Puerto Rico’s? Does constitution follow the flag?

Holding: It is sufficient to observe in relation to these three fundamental instruments, that it can nowhere be inferred that the territories were considered a part of the United States. The Constitution was created by the people of the United States, as union of states, to be governed solely be representative of the states. The Constitution deals with states, their people, and their representatives. Notwithstanding these provisions for the incorporation of territories into the Union, Congress not only in organizing the territory of Louisiana by act of March 26, 1804, but all other territories carved out of this vast inheritance, has assumed that the Constitution did not extend to them of its own force, and has in each case made special provision, either that their legislatures shall pass no law inconsistent with the Constitution of the United States, or that the Constitution or law of the United States shall be the supreme law of such territories.

Treaty making power allows Congress to acquire new territories without the immediate promise of making them states. Jefferson originally thought that he needed constitutional provisions to acquire Louisiana. Maybe: 1) sovereign power, can acquire its own territory (inherent right), 2) necessity gave them power—historical necessity (reason of states). The argument that the Court uses to show that it is necessity. We need to be an empire (p.20) (borrowed from Marshall) and if we have to admit these savages as states the consequences will be extremely serious. Therefore, they have to be governed by another law. (It is necessary, so constitution says it). Court responds Harlan’s response that this is a government of limited powers: the framers didn’t think about this problem, so we have to answer it as they would had they realized by manifest necessity.

It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. Eliminating, then, all expressions unnecessary to the disposition of the particular case, and gleaning therefore the exact point decide in each, the following proposition may be considered established: 2) That territories are not states within the meaning of Rev. Stat Section 709, permitting writs of error from this court in cases where the validity of a state statute drawn in question; 4) That the territories are not within the clause of the Constitution providing for the creation of a supreme court and such inferior courts as Congress may see fit to establish; 6) That where the Constitution has been once formally extended by Congress to territories, neither Congress nor the territorial legislature can enact law inconsistent therewith.

The power to prohibit slavery in the territories is so different from the power to impose duties upon territorial products, and depends upon such different provisions of the Constitution, that they can scarcely be considered as analogous, unless we assume broadly that every clause of the Constitution attaches to the territories as well as to the states. The difficulty with the Dred Scott Case was that the court refused to make a distinction between property in general and a wholly exceptional class of property.

- The Dred Scott distinction/refutation: 1) Dicta, 2) needed for peace and harmony, 3) history changes, the common law changes (Civil War overruled Dred Scott), 4) Distinction in types of property.

There is a clear distinction between prohibition that go to the very root of the power of Congress to act at all, irrespective of time and place, and those that are operative only ‘throughout the United States’ or among the several states. The power to acquire territory be treaty implies, not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants and what their status will be. There are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests. We suggest that there may be a distinction between certain natural rights enforced in the Constitution by prohibitions against interference with them, and what may be termed artificial or remedial rights which are peculiar to our own system of jurisprudence.

- Distinction between two types of rights: root of power of Congress, and those that are only operative throughout the United States’

- Anglo-Saxon people sense of natural justice, except of natural justice; Anglo-Saxon invocation--reinforcing the notion of citizenship and heritage (Puerto Rico, Philippines were governed by Whites (Spain) although they were barbaric rules impaired to US

o Natural rights in the constitution

o Remedial rights, peculiar to Anglo-Saxon jurisprudence

Holding: The island Puerto Rico territory and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution. Dicta: All the other garbage that is “suggested.”

Dissenting Opinion (Harlan): Congress has no existence and can exercise no authority outside of the Constitution. The idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces—the people inhabiting them to enjoy only such rights as Congress chooses to accord to them,--is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution. When the acquisition of territory becomes complete, by cession, the Constitution necessarily becomes the supreme law of such new territory, and no power exists in any department of the government to make ‘concessions’ that are inconsistent with its provisions.

- Treaty-making power responses: original meaning did not include this meaning, evolutionary framework is wrong

- We’re obligated to extend right to citizens of acquired territories or else they would be colonies

- Harlan does not want to acquire territory anti-uimperalist

- Constitutional argument is an anti-imperialist one

- Harlan’s dissent acquiesces to the racism of the majority

- Limited government is needed because colonialism and conquest are characteristic of unlimited government powers, which Congress does not have

Johnson v. Eisentrager (1950)

Facts: 21 German nationals who were in service of German armed forces in China filed habeas corpus petitions. They amended to allege that their employment there was by civilian agencies of the German Government. They were convicted in Chinese military commission of violating laws of war, by engaging in, permitting or ordering continued military activity against the United States after surrender of Germany and before surrender of Japan. Their hostile operations consisted principally of collecting and furnishing intelligence concerning American forces through sophisticated radio operations and their movements to the Japanese armed forces. Their proceedings was conducted wholly under American auspices and involved no international participation. After conviction, the sentences were duly reviewed, and with immaterial modification, approved by military reviewing authority. They were held in prison in US occupied Germany. The petition named as respondents the Secretary of Defense, Secretary of the Army, Chief of Staff of the Army, and the Joint Chiefs of Staff of the United States. They are arguing that the Court has jurisdiction under 28 USC Section 2243, alleging that jailer is subject to the direction of the respondents. District Court dismisses under Ahrens. Court of Appeals reverse, District Court must have jurisdiction to hear the case, under Article III, because it is necessary for that power lie somewhere.

Issues: Does the court have jurisdiction over the habeas corpus petition? Did the trial, conviction and imprisonment of the petitioners violate Articles I and III of the Constitution, and the Fifth Amendment thereto, and other provisions of the Constitution and laws of the United States and provisions of the Geneva Convention governing treatment of prisoners of war?

Holding: Nothing in the text of the Constitution (including Article III that D.C. Circuit invented) extends habeas corpus to alien enemies, nor does anything in our statutes. (I) Our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens, nor between aliens of friendly and enemy of allegiance, nor between resident enemy aliens who have submitted themselves to our law and nonresident enemy aliens who at all times have remained with, and adhered to, enemy governments. Why doesn’t Jackson stop here? Interest in war crimes—he was chief prosecutor in Nuremberg trials. Didn’t want to give jurisdiction and makes his cases vulnerable)

(II) The privilege of litigation has been extended to aliens, friendly or enemy, only because permitting their presence in the country implied protection—no such basis can be invoked here. Another reason for a limited of our courts to resident aliens is that among them are many of friendly personal disposition to whom the status of enemy is only one imputed by law—but these prisoners were actual enemies. Their also concerns of administrability and fairness (logistic and fairness): to grant the writ might mean that our army must transport them across the seas for hearing, this could hamper the war effort and bring aid and comfort to the enemy; also, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands.

(III) The doctrine that the term “any person” in the 5th Amendment spreads its protection over alien enemies anywhere in the world engaged in hostilities against us, should be weighed in light of of the full text of that Amendment. And if the Fifth be held to embrace the prisoners because it uses the inclusive term “no person,” the Sixth must for it applies to all accused. Moreover, if this amendment invest enemy in unlawful hostile action against us with immunity from military trial, it puts them in a more protected position than our own soldiers. Such extraterritorial application of our organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Cf. Downes v. Bidwell.

(IV) Court has long recognized the “power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, enemy belligerents, prisoners of war, or others charged with violating the laws of war.” Breach of the terms of an act of surrender, moreover, is no novelty among war crimes. It is not the function of the Judiciary to entertain private litigation—even by a citizen—which challenges the legality, the wisdom, or the property of Commander-in-Chief in sending our armed forces abroad or to any particular region.There are no procedural irregularities that derive the court of jurisdiction: notice to the protecting power is only necessary of proceedings for disciplinary offenses committed during captivity and not in case of war crimes committed before capture.

\

Dissenting Opinion (Black):

First: Jurisdiction of a federal district court does not depend on whether the initial pleading sufficiently states a cause of action; if a court has jurisdiction of subject matter and parties, it should proceed to try the case, beginning with consideration of the pleadings. Therefore Part IV of the Court’s opinion is wholly irrelevant and lends no support whatever to the Court’s holding that the District Court was without jurisdiction. Also, a decision on the question of whether the petition showed on its face that these prisoners had violated the laws of the war was unwarranted and highly improper deviation from ordinary judicial procedure (no argument, fact-finding by district court). Also, if they were under the control of Japan, then no war crime.

Second: The contention that enemy aliens have no standing whatever to contest conviction for war crimes by habeas corpus proceedings has twice been emphatically rejected by a unanimous Court. Since the Court expressly disavows conflict with Quirin or Yamashita decision, it must be relying not on the status of these petitioners as alien enemy belligerents, but rather on the fact that they were captured, tried, and imprisoned outside our territory. The Court is fashioning wholly indefensible doctrine if it permits the executive branch, by deciding where its prisoners will be tried and imprisoned, to deprive all federal courts of their power to protect against a federal executive’s illegal incarcerations.

Third: When a foreign enemy surrenders, the situation changes markedly. If our country decides

to occupy conquered territory either temporarily or permanently, it assumes the problem of deciding how the subjugated people will be ruled, what laws will govern, who will promulgate them, and what governmental agency of ours will see that they are properly administered. This responsibility immediately raises question concerning the extent to which our domestic laws, constitutional and statutory, are transplanted abroad. The Constitution is not wholly inapplicable in foreign territories that we occupy and govern. Constitution is available because no other tribunal would be available, only own courts can inquire into the legality of their imprisonment. (Dred Scott-property deprivation in Louisiana, dissent of Downes)

- Back to sovereignty paradox: cannot act outside it powere

o Also cites Downes v. Bidwell; some constitutional rights→ dicta in case

Ahrens v. Clark (1948)

Facts: Petitioners are some 120 Germans who are being held at Ellis Island, New York, for deportation to Germany. Their deportation has been directed under removal orders issued on July 18, 1945 by the Attorney General who has found that each of them is dangerous to the public peace and safety of the United States because he has adhered to a government with which the United States is at war or to the principle thereof. The orders challenge are challenged by these petitions for writs of habeas corpus on several grounds, the principal one being that all of them exceed the statutory authority in that they were issued after hostilities with Germany ceased. Attorney General moved to dismiss because petitioners were outside the territorial confines of the District of Columbia.

Issue: Whether the words ‘within their respective jurisdictions’ limit the district court inquiries into the causes of restraints of liberty of those confined or restrained within the territorial jurisdiction of those courts.

Holding: The general view that jurisdiction is so confined and adopted by the court. We start from the accepted premise that apart from specific exceptions created by Congress the jurisdiction of the district courts is territorial. It would take compelling reasons to conclude that Congress contemplated the production of prisoners from remote sections, perhaps thousands of miles from the District Court that issued the writ (Eisentrager foreshadow). The opportunities for escape afforded by travel, the cost of transportation, the administrative burden of such an undertaking negate such a purpose. These are matter of policy which counsel us to construe the jurisdictional provision of the stature in the conventional sense, even though in some situations return of the prisoner to the court where he was tried and convicted might seem to offer advantages.

- Legal realism: looking at legal institutions interpretation of law later-point of constitution is to reach as much civil liberties.

- The statutory scheme contemplates a procedure which may bring the prisoner before the Court. Counterargument: Due process is not afforded without habeas option

- Ahrens had the insights about the potential Bush administration abuses

Dissenting Opinion (Rutledge): The jurisdiction turn this case has taken gives it importance far beyond the serious questions tendered on the merits of petitioners’ application. They are alien enemies interned during the war as dangerous to the nation’s safety. Whether or not petitioners have forfeited the right to continued enjoyment of our institutions and the life they foster, and whether the forfeiture has been declared and now can be executed pursuant to lawfully granted authority, are indeed important questions, upon which these petitioners are as much entitled to hearing and decision.

(Foreshadow of Guantanamo): If this is or is to become the law, the full ramifications of the decisionare difficult to foresee. For if absence of the body from the jurisdiction is alon conclusive against existence of power to issue the writ, what of the case where the place of imprisonment, whether by private or public action, is unknown? What also of the situation where that place is located in one district, but the jailer is present in and can be served with process only in another?

The officer or person who serves the writ does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent. The place of confinement is not important to relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, excepts as greater distance may affect it. The important question is, where is the power of control exercised? This case, therefore, is one which every requisite of jurisdiction, as the writ has been conceived historically, is present. The person having custody of the body has not only the ability but the authority to produce it. He is within reach of the court’s process and amenable to it for that purpose. Indeed in this case he is willing to respond, and to that end, to waive any objection he might be entitled to make to court’s exercise of its power. Unless therefore power is totally wanting by reason of petitioners; absence from the district, there is no insuperable obstacle to its exercise in this case.

Downes, Eisentrager, Ahrens and September 11:

- Downes:constitution does not follow the flag; do not necessarily extend

- Eisentrager: Guantanamo Bay enemy aliens had not been in the country, including the time of captivity

- Ahrens: no court has jurisdiction over Guantanamo Bay; what the government needed was a place not under the Constitution (not a state) that the U.S. owned

Reid v. Covert (1957)

Facts: Article III and 5th and 6th Amendments did not protect an American citizen abroad, based on In Re Ross.Covert killed her husband at an airbase in England while residing on the base with her husband. The court martial asserted jurisdiction over Mrs. Covert under Article 2 (11) “Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States.” Covert pleaded insanity at the time of the crime, but was convicted and sentenced to life imprisonment by the tribunal. She filed a habeas corpus petition on the ground forbade her trial by military authorities. Smith, meanwhile, killed her husband—an Army officer—at a post in Japan where she was living with him. She was tried for murder by a court martial and despite considerable evidence that she was insane was found guilty and sentence to life imprisonment. She filed a petition on the grounds that the court martial lacked jurisdiction because Article 2(11) of the UCMJ was unconstitutional. The cases were consolidated and the Court held military trial was constitutional. It held that the provisions of Article III and the Fifth and Sixth Amendments did not protect an American citizen when he was tried by the American Government in foreign lands for offenses committed there and that Congress could provide for the trial of such offenses in any manner it saw fit so long as the procedures established were reasonable and consonant with due process, as they were in this case. Subsequently the court granted a petition for rehearing.

Issue: Was article 2(11) of the UCMJ constitutional—could smith and Covert be tried by military authorities?

Holding: We reject the idea that when the United States acts against citizens abroad it can do so free do the Bill of Rights. The United States it entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. The language of Art III, section 2 manifest that constitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as here at home. If its language is permitted to have its obvious meaning, section 2 is applicable to criminal trials outside of the States as a group without regard to where the offense is committed or the trial held. While it has been suggested that only those constituonal rights which are ‘fundamental’ protect Americans abroad, we can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of ‘Thou shalt nots’ which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and Amendments(1) . Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right.

- (1) Textualism originalism does not allow for this distinction. This again illustrates how textualis originalism restricted government rights: It was liberal and anit-colonial, that is vis-à-vis the revolutionary principle

The Court’s opinion last Term relied on the Insular cases to support its conclusion that Article III and the Fifth and Sixth Amendments were not applicable—we believe the reliance was misplaced. This ‘Insular Cases’ can be distinguished from the present cases in that they involved the power of the Congress to provide rules and regulations to govern temporarily territories with wholly dissimilar traditions and institutions whereas here the basis for governmental power is American citizenship. Moreover, it is our judgment that neither the cases nor their reasoning should be given further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government.

- “Basis for governmental power is American citizenship” tells the government “don’t put them in Guantanamo if you’re a citizens”

o However, Ahrens then seems to become a problem because it was focused on where the body was

- Reid does not overturn Eisentrager because the holding limited to citizens, although the rest of the opinion illustrates a desire to have constitution extend…

Concurring Opinion (Harlan): I think it is appropriate to state the reasons while left to my voting, first to rehear these cases, and, now, to strike down that jurisdiction (after previously voting to uphold it). The reasoning in the prior opinion is unsound for two reasons:

1) The underlying premise of the prior opinion is that under the Constitution the mere absence of a prohibition against an asserted power, plus the abstract reasonableness of its use., is enough to establish the existence of the power. This is erroneous. Under the Constitution Congress has only such powers as are expressly granted or those that are implied as reasonably necessary and proper to carry out the granted powers. To say that the validity of the statute may be rested upon the inherent ‘sovereign powers’ of this country in its dealings with foreign nations seems to be no more than begging the question.

2) The prior opinion was mistake in interpreting Ross and the Insular cases as standing for the sweeping proposition that the safeguards of Article III and the Fifth and Sixth Amendments automatically have no application to the trial of American citizens outside the United States, no matter what the circumstances. The basic teaching of Ross and the Insular Cases is that there is no rigid and abstract rule that Congress, as a condition precedent to exercising power over American overseas, must exercise it subject to all the guarantees of the Constitution, no matter what the conditions and consideration are that would make adherence to a specific guarantee altogether impracticable and anomalous—the particular local setting, the practical necessities and the possible alternative are relevant to a question of judgment, namely, whether jury trial should be deemed a necessary condition of the exercise of Congress’ power to provide for the trial of American overseas. The question is one of judgment, not compulsion

- Harlan disagrees with Black that Ross and Insular Cases is a historical anomalies

- Harlan and Frankfurter were selective incorporators and the incorporation doctrine seems to inform this decision

United States v. Verdugo-Urquidez (1990)

Facts: Verdugo-Urquidez is a citizen and resident of Mexico. He was arrest in Mexico for narcotics related offense and later extradited to California. After his arrest a DEA agent assigned to the Calexico DEA office, decide to arrange for searches of Verdugp-Urquidez;s Mexican residences located in Mexicali and San Felipe. The search of the Mexcali residence uncovered a tally sheet ,which the Government believes reflects the quantities of marijuana smuggled by Verdugo-Urquidez into the United States. Ninth Circuit affirmed District Court’s denial of Verdugo Urquidez’s motion to suppress on the grounds that under Reid v. Cover, American citizens can be tried b United States military authorities in a foreign country were entitled to the protections of the Fifth and Sixth Amendments, and concluded that “the Constitution imposes substantive constraints on the federal government, even when it operates abroad.” Nobody contest this seach under Mexican law. Defendant claims that he has because he is in the country, and the government is trying him.

Issue: Whether the 4th Amendment applies to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country?

Holding: The global view taken by the Courts of Appeals of the application of the Constitution is contrary to this Court’s decision in the Insular Cases, which held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. In Dorr, we declared the general rule that in an unincorporated territory Congress was not required to adopt “a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation and of its force, carry such right to territory so situated. Only fundamental constitutional rights are guaranteed to inhabitants of those territories.

(In reference to Eisentrager holding): We have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. If such is true of the Fifth Amendment, which speaks in the relatively universal term of “person,” it would seem even more true with respect to the Fourth Amendment, which applies only to “the people.”

Additionally, the defendant can derive no comfort from the Reid holding because he is not a United States citizen. At the time of search he was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. The Reid holding does not stand for the sweeping proposition that Fourth Amendment constrain federal official wherever and against whomever they act. It decided only that United States citizens stationed abroad could invoke the protection of the Fifth and Sixth Amendments.

- Fourth Amendment does not apply—it is not about trial

- Case carries us through the line of the case about inherent sovereign power vs. limited power

- Necessity argument: “For better or for worse, we live in a world of nation-states in which our Government must be able to function effectively in the company of sovereign nations”

Dissenting Opinion (Brennan): The Constitution is the source of Congress’ authority to criminalize conduct, whether here or abroad, and of the Executive’s authority to investigate and prosecute such conduct(cite to Reid v. Covert).. The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal law abroad, but when the Government agents exercise this authority, the Fourth Amendment does not travel with them. At the very least, the Fourth Amendment is an unavoidable correlative of the Government’s power to enforce the criminal law.

The majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. Moreover, foreign nationals investigated and prosecuted for alleged violations of United States criminal laws are just as vulnerable to oppressive Government behavior as are Untied States citizens investigated and prosecuted for the same alleged violations. Mutuality also serves to inculcate the values of law and order.—if we seek respect for law and order, we must observe these principles ourselves.

- Fourth Amendment search and seizure is needed for fundamental fairness (but it is permissible in Mexico)

- The limited powers argument in this case don’t have the originalist and textualist base; moves in the direction of abstract notion of rights

Rasul v. Bush (2004)

Facts: Since early 2002, the U.S. military held approximately 650 non-American captured abroad at the naval based in Guantanamo. Pursuant to a 1903 Lease Agreement executed with the newly independent Republic of Cuba in the aftermath of the Spanish-American War. Under the agreement, “the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the leased areas,” while the US shall exercise complete jurisdiction and control over and within said areas. 2 Austrailian citizens and 12 Kuwaiti citizens captured in Afghanistan filed various actions in the U.S. District Court for D.C. challenging the legality of their detention at the base. All alleged that none of the petitioners has ever been a combatant against the US or has ever engaged in any terrorist acts. They also alleged that none has been charged with any wrongdoing, permitted to consult with counsel, or provided access to the courts or any other tribunal. The District Court construed the actions as writs of habeas corpus, and dismissed for want of jurisdiction under Eisentrager.

Issue: Whether the United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated in Guantanamo?

Holding (Stevens):

II: As it has evolved over the past two centuries, the habeas statute clearly has expanded habeas corpus “beyond the limits that obtained during the 17th and 18th centuries.” The question now before us is whether the habeas statute confers a right to judicial review of the legality of executive detention of aliens in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “unlimited

sovereignty.

III: Petitioners in theses cases differ from the Eisentrager detainees in important respects: They are not national of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners’ constitutional entitlement to habeas review. In addition the Court of Appeals in Eisentrager concluded that the habeas statute had created an unconstitutional gap that had to be filled by reference to “fundamentals.”

- Eisentrager is the main barrier; court distinguishes it, rather than overturning it

Because subsequent decisions have filled the statutory gap that had occasioned Eisentrager’s resort to fundamental, persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their federal right to federal habeas review. In Braden, for example, the court held that because the writ of habeas corpus does not act upon the person who holds him in what is alleged to be unlawful custody, a district court acts within its respective jurisdiction with the meaning of Section 2241 as long as the custodian can be reached by service of process. Because Braden overruled the statutory predicate to Eisentrager’s holding, Eisentrager plainly does not preclude the exercise of Section 2241 jurisdiction over petitioners’ claims.

- Distinguishing Eisentrager:

o 1. Eisentrager was a constitutional case

o 2. Court of Appeals DC below found statutory jurisdiction: based on fundamental judicial power to vindicate constitutional rights

o 3. Eisentrager doesn’t implicate statutory jurisdiction therefore; (Counter: If you reach the constitutional issue, you had to address statutory distinctions)

o 4. Eisentrager relied on Ahrens

o 5. Ahrens was removed by Braden; because under Braden can apply to district court for habeas where you are not being held

o 6. Post Braden, Eisentrager allows for statutory jurisdiction, Braden overruled the statutory predicate (Ahrens) for the decision

▪ Eisentrager was still good law, to the extent that there was a statutory holding, it was overruled by an overtuning of the case it relied on for that holding

- Why didn’t overrule Eisentrager?

o Didn’t want to reach the constitutional issues; passing the ball back to Congress

o Power Sharing

o Disclaiming responsibility

o Eisentrager is the reason for Guantanamo

o It will make them look bad; detrimental reliance. Eisentrager was good law (cited in Verdugo-Urquidez)

▪ Don’t want to be the Court that undermines president’s national security policy

IV: The presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to person detained with the territorial jurisdiction of the United States—by the express terms of its agreements with Cuba, the United States exercise “complete jurisdiction and control” over Guantanamo and may continue to exercise such control permanently if it so chooses.

Application of the habeas statute to persons detained at the base is consistent with historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in so-called ‘exempt jurisdictions’ where ordinary writs did not run, and all other dominions under the sovereign’s control.

- Holding: Court have statutory jurisdiction to hear habeas cases like that of Rasul

Concurring Opinion (Kennedy): While I reach the same conclusion as the Court, my analysis follows a different course—the correct course if to follow the framework of Eisentrager. Scalia exposes the weakenss in the Court’s conclusion that Braden overruled the statutory predicate to Eisentrager’s holding” The correct course is to follow the framework of Eisentrager. A faithful application of Eisentrager requires an initial inquiry into the general circumstances of the detention to determine whether the Court has the authority to entertain the petition and to grant relief after considering all of the facts presented. A necessary corollary of Eisentrager is that there are circumstance in which the courts maintain the power and the responsibility to protect persons from unlawful detention even where military affairs are implicated. The facts here are distinguishable from Eisentrager in two critical ways: 1) Guantanamo is in every practical respect a US territory (we were occupying Germany in Eisentrager, occupation under international law can be indefinite), and it is one far removed from hostilities; the indefinite lease has produced a place that belongs to the US, extending “implied protection” of the United States to it, 2) the detainees at Guantanamo are being held indefinitely, and without benefit of any legal proceeding their status.

o Eisentrager was a statutory decision, but that didn’t draw a bright line rule, it all

o This Concurrence carried an increased importance after O’Connor’s retirement

o Not clear to what Kennedy is committing to, both doctrinally and practically; but Boumedien makes it “clear” in retrospect”

Dissenting Opinion (Scalia): The Court’s contention that Eisentrager was somehow negated by Braden is implausible in the extreme. This is an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field.

I: Even a cursory reading of the habeas statute shows that it presupposes a federal district court with territorial jurisdiction over the detainee: “with their respective jurisdictions… the district wherein the restraint complained of is had… the district court of the district in which the applicant is held.” The statute could not be clearer that a necessary requirement for issuing the writ is that some federal district court have territorial jurisdiction over the detainee. The Guantanamo Bay detainees are not located within the territorial jurisdiction of any federal district court.

Ahrens explicitly reserved the question of what process if any a person confined in an area not subject to the jurisdiction of any district court may employ to assert federal rights. The question was resolved in Eisentrager insofar as noncitizens are concerned. The Court in Eisentrager had to pass judgment on whether the statute granted jurisdiction, since that was the basis for the judgments of both lower courts. Eisentrager’s directly-on-point statutory holding makes it exceedingly difficult for the Court to reach the result it desires today. The Court therefore claims that Braden overrule the statutory predicate to Eisentrager’s holding.

o Court of Appeals attempted to avoid constitutional issues by interpreting statutory jurisdiction. Supreme Court said there is no statutory jurisdiction because there is no constitutional issue with noavailability of habeas

o If the way to get into Court is through the statute, then the Court of Appeals could not have been inventing constitutional issue…Court has to overturn Eisentrager

o Scalia allegations that “you’ve overturned Eisentrager” and the fact that the court doesn’t overturn it foreshadows the constitutional holding in Boumediene

(Braden cannot be read as overruling Ahrens)Braden stands, however, only for the proposition that where a petitioner is in custody in multiple jurisdiction within the United States, he may seek a writ of habeas corpus in a jurisdiction in which he suffers legal confinement, though not physical confinement, if his challenge is to that legal confinement. Outside that class of cases, Braden did not question the general rule of Ahrens. Because present physical custody is at issue in the present case, Braden is inapposite.

II: In abandoning Eisentrager, the Court extends the scope of the habeas statute to the four cornersof the earth. The consequence of the court’s holding that respective jurisdiction means where the custodian can be reached by service of process, is that it permits aliens captured in a foreign theater of active combat to bring a Section 2241 petition against the Secretary of Defense.

III: The cases cited by the majority supporting the extraterritorial application are inapposite because Guantanamo is not a sovereign dominion, and even if it were, jurisdiction would be limited to subjects. It would be an enormous extension of the term to apply it to installations merely leased from a particular use from another nation that still retains ultimate sovereignty.

Under the Court’s holding that detainees can petition any of the 94 federal judicial districts. The fact that exterritorialy located detainees lack the district of detention that the statute require has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum-shop.

Boumediene v. Bush (2008)

Facts: Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba.

Issue: Whether the aliens designated as enemy combatants have the constitutional privilege of habeas corpus, which cannot be withrawn except in conformance witht the supremacy clause? Is the Detainee Treatment Act of 2005, that provides certain procedures for review of the detainee’s status and adequate and effective substitute for habeas corpus

Holding:

- Terse statement of holding: Guatanamo Detainees have habeas rights and congress special procedures are insufficient

II: As a threshold matter, we decide that the Military Commissions Act of 2006 does deny the federal courts jurisdiction to habeas corpus actions pending at the times of its enactment. Therefore, if the statute is valid, the petitoners’ cases must be dismissed.

III: Our account proceeds from two propositions: 1) protection of the privilege of habeas was one of the few safeguards of liberty specified in a Constitituion that, at the outset, had no bill of rights. Second, to the extent that there were settled precedent or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its applciation to enemy aliens, those authorities can be instructive for the present cases.

A: History taught the that the common law writ was all too often insufficient to guard against the abuse of monarchical power in England. This history was known to the Framers. They had the view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. In our system the Suspension Clause is designed to protect cyclical abuse of power. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard liberty. The separation-of-power doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.

IV: We do not question the Government’s position that Cuba, not the United States, maintains sovereignty, in the legal and technical sense of the term over Guantanamo Bay. This, however, does not end the analysis. Our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. For purpose of the current analysis, it is accepted that the Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory. The history of the common law habeas corpus provide scant support for the proposition that de jure sovereignty is the touchstone of habeas corpus, and such a position is consistent with Court precedents and contrary to fundamental separation-of-powers principles.

A: In the Insular Cases, the Court addressed whether the Constitution by its own force, applies in any territory that is not a state. The Court held that the Constitution has independent force in these territories, a force not contingent upon acts of legislative grace. Yet it took note of the difficulties inherent in that position.

Nothing the inherent practical difficulties of enforcing all constitutional provisions “always and everywhere,” the Court devise in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed. This century-old doctrine informs the current analysis in the present matter.

Practical considerations likewise influenced the Court’s analysis in Reid. Justice Frankfurter argued that the specific circumstances of each particular case” are relevant in determining the geographic scope of the Constitution. Justice Harlan, who had joined in the opinion reaching opposite result in the case in the previous Term, was most explicit in rejecting a “rigid and abstract rule” for determining where constitutional guarantees extend. That the petitioners in Reid were American citizens was a key factor in the case and was central to the plurality’s conclusion that the Fifth and Sixth Amendments apply to American civilians tried outside the United States. But practical considerations related to the place of their confinement and trial, were relevant to their place of confinement and trial, were relevant to each Member of the Reid majority. And to Justices Harlan and Frankfurter (whose votes were necessary to the Court’s disposition) these consideration were the decisive factors in the case. If citizenship had been the only relevant factor in the case, it would have been necessary for the Court to overturn Ross, something Justices Harlan and Frankfurter were unwilling to do.

- There is a conflict and tension between Reid, Eisentrager and the Insular cases if de jure sovereignty is the only consideration

o Downes v. Bidwell: doesn’t extend rights; but implys that some extend in dicta

o Reid: 5th and 6th Amendment follow wives abroad although we lacked de jure sovereignty

Practical considerations weighed heavily as well in Eisentrager: the Court sought to balance the constraints of military occupation with constitutional necessities. We decline to read Eisentrager as a formalistic sovereignty-based test for determining the reach of the Suspension Clause for three reasons. (1. Practical considerations language) 2. Because the united States lacked both de jure sovereignty and plenary control over the prison, it is far from clear that the Eisentrager court used the term sovereignty only in the narrow technical sense and not to connote the degree of control the military asserted over the facility. However, the formal legal status of a given territory affects, at least to some extent, the political branches control over that territory. De jure sovereignty is a factor that bears upon which constitutional guarantees apply there. 3. If such a reading were correct, it would be a complete repudiation of the Insular Cases functional approach to questions of extraterritoriality.

- Practical considerations from Eisentrager, petitioner:

o (a) Is an enemy alien

o (b) has never been or resided in the United States

o © wascaptured outside of our territory and there held in military custody as a prisoner of war

o (d) was tried and convicted a Military Commission sitting outside the United States

o (e) for offenses against laws of war committed outside the United States

o (f) and is at all times imprisoned outside the United States

- The practical considerations analysis is in contrast to the bright line rule that the constitution does not follow the flag from Downes

- Kennedy believes that the Insular cases all rely on practical considerations as Eisentrager did. In this case, Guantanamo is different from other territories…

- Kennedy relies on practical considerations, and not formalism, except when he invokes the rule of law

B: A formal-based test raises troubling separation-of-powers concerns as well. It would mean that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. The constitution cannot be contracted away like this. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution. To hold the political branches have the power to switch the Constitution on or off would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not the Court, say what the law is As such, the test for determining the scope of habeas must not be subject to manipulation by those whose power it is designed to restrain.

- In order for there to be rule of law, the court must be allowed to weigh in, according to Kennedy

- Scalia responds by accusing Kennedy of being arrogant, and not realizing that the law makes him a justice, and that his role is to simply interpret the law in front of him

C: Three factors are relevant in determining the reach of the Suspension Clause: (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.

(1): Unlike Eisentrager, the detainees deny that they are enemy combatants. They have been afforded some process in CSRT proceeding to determine their status; but unlike Eisentrager there has been no trial by military commission for violations of the laws of war. The procedural protections to the detainees in the CSRT hearing are far more limited, and fall short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review. Although the detainee is assigned a “Personal Representative” to assist him during CSRT proceedings, the Secretary of the Navy’s Memorandum makes clear that person is not the detainee’s lawyer or even his “advocate.” The Government’s evidence is accorded a presumption of validity. The detainee is allowed to present “reasonably available” evidence, but his ability to rebut the Government’s evidence against him is limited by the circumstances of his confinement and his lack of counsel at this stage. And although the detainee can seek review of his status determination in the Court of Appeals, that review process cannot cure all defects in the earlier proceedings.

(2) In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.

(3) Unlike in Eisentrager, there is no credible argument that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees; claims. The lack of a precedent on point is no barrier to our holding.

Article I Section 9 clause 2 of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees before us, Congress must act in accordance with the requirements of the Suspension Clause. This Court may not impose a defacto suspension by abstaining from these controversies.

V: No remand to the Court of Appeals to consider the adequacy of the substitute of the DTA because the gravity of the separation powers issues raised by these cases and the fact that these detainees have been denied meaningful access to a judicial forum for a period of years render these cases exceptional. The parties before us have addresses the adequacy issue.

Under the DTA, the Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful. The differences between the DTA and habeas statute that would govern in MCA Section 7’s absence, are telling. The habeas statute accommodates the necessity for factfinding that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court of competent jurisdiction, whose institutional capacity of factfinding is superior to his or her own. By granting the Court of Appeals “exclusive” jurisdiction over petitioner’s cases, Congress has foreclosed that option in the DTA.

B: The privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to “the erroneous application or interpretation” of relevant law. And the habeas court must have the power to order the conditional release of an individual unlawfully detained. Where a person is detained by executive order, rather after being tried and convicted, the need for collateral review is most pressing. A criminal conviction is the usual course occurs after a judicial hearing before a tribunal disinterested in the outcome and committed to procedures designed to ensure its own independence. These dynamics are not inherent in executive detention order or executive review procedures. In this context the need for habeas review is more urgent.

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had the means to supplement the record on review, even in the postconviction habeas setting.

Even when all the parties in the CSRT process act with diligence and in good faith, there is considerable risk of error in the tribunal’s finding of fact. Given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant to ignore.

- Why didn’t Congress explicitly suspend Habeas corpus?

o Legally they don’t want to imply that the detainess have rights (if we have to suspend the writ, then maybe they already have the right)

o The nature of the war on Terror—it may go on forever. Do we want the writ to be suspended that long?

o Congress enacting a statute the was declared unconstitutional mean that the Supreme Court, rather than them, would get tagged with letting the “murderers go”

▪ The sovereignty paradox does mean that the inherent powers are limited, but a benefit, as illustrated by this case, is that the court can suspend the blame.

C: There is no way to construe the statute to allow what is constitutionally required in this context: an opportunity for the detainee to present relevant exculpatory evidence that was not made part of the record in the earlier proceedings because it was unavailable to either the Government or the detainee when the CSRT made its findings. By foreclosing consideration of evidence not presented or reasonably available to the detainee at the CSRT proceedings, the DTA disadvantages the detainee by limiting the scope of collateral review to a record that may not be accurate and complete.

IV

A: Under today’s decision, the Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until the Department, acting via the CSRT, has had a chance to review his status.

Concurring Opinion (Souter): Emphasize two things: 1) Today’s decision is not a bolt out of the blue—no one who read Rasul could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases, given the Court’s reliance on the historical background of habeas generally in answering the statutory question. 2) After six years sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas jurisdiction but without any actual habeas scrutiny, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and the Nation.

Concurring Opinion (Roberts): The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambiguous opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants. The habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners’ detention with the undoubted need to protect the American people from the terrorist threat-precisely the challenge Congress undertook in drafting the DTA. All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary. The system the political branches constructed adequately protects any constitutional rights aliens captured abroad and detained as enemy combatants may enjoy.

I: Given the posture in which these cases came, the Court should have declined to intervene until the D.C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case. Mandating that the petitioners exhaust their statutory remedies “is in no sense a suspension of the writ of habeas corpus. It is merely a deferment of resort to the writ until other corrective procedures are shown to be futile. In the absence of any assessment of the DTA’s remedies, the question whether detainees are entitled to habeas is an entirely speculative one.

The system he Court has launched, contrary to its opinion, promises to take longer. The Court assures us that before bringing their habeas petitions, detainees must usually complete the CSRT process. If the majority were truly concerned about the delay, it would have required petitioners to use the DTA process that has been available to them for 2 ½ years, with its Article III review in the D.C. Circuit.

II: Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioner may have.

A: Contrary to the majority, Hamdi is of pressing relevance be establishes the procedures American citizens detained as enemy combatants can expect from a habeas court proceeding under Section 2241. The DTA system of military tribunal hearings followed by Article III review looks a lot like the procedure Hamdi blessed. If nothing else, it is plain from the design of the DTA that Congress, the President, and this Nation’s military leaders have made a good-faith effort to follow precedent.

B: The scope of federal habeas review is traditionally more limited in some contexts than in others, depending on the status of the detainee and the rights he may assert. Declaring that petitioners have a right to habeas in no way excuses the Court from explaining why the DTA does not protect whatever due process or statutory rights petitioners may have.

D: While the majority is correct that the DTA does not contemplate the introduction of “newly discovered” evidence before the Court of Appeals, petitioners and the Solicitor General agree that the DTA does permit the D.C. Circuit to remand a detainee’s cases for a new CSRT determination. The Court’s handwringing over the DTA’s treatment of later-discovered exculpatory evidence is the most it has to show after a roving search for constitutionally problematic scenarios. The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

Concurring Opinion (Scalia): The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.

I: Today’s decision will almost certainly cause more American to be killed. It is this Court’s blatant abandonment of an honored legal principle that produces the decision today. The President relied on our settled precedent in Eisentrager when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President’s Office of Legal Counsel advised him “that the great weight of legal authority indicates that a federal district court of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at Guantanamo”

B: Eisentrager held beyond any doubt that the Constitution does not ensure habeas for aliens by the United States in areas over which our Government is not sovereign. It mentioned practical concerns, but not for the purpose for determining under what circumstances American courts could issue writs of habeas corpus for aliens abroad. It cited them to support its holding that the Constitution does not empower courts to issue writs of habeas corpus to aliens abroad in any circumstances. Eisentrager nowhere mentions a “functional tests, and the notion that it is based upon such a principle is patently false.

The Insular cases, meanwhile, all concerned territories acquired by Congress under Article IV authority and indisputably part of the sovereign territory of the United States. None of the Insular Cases stands for the proposition that aliens located outside U.S. sovereign territory have constitutional rights, and Eisentrager held just the opposite with respect to habeas corpus.

The members of Reid majority, the Court says, were divided over whether Ross which had held under certain circumstances American citizens abroad do not have indictment and jury-trial rights, should be overruled. To say that “practical considerations” determine the precise content of the constitutional protections American citizens enjoy when they are abroad is quite different from saying that “practical considerations” determine whether aliens abroad enjoy an constitutional protections whatever, including habeas. In other words, merely because citizenship is not a sufficient factor extend constitutional rights abroad does not mean that it is not a necessary one.

C: What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. But, our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction.

- The leason of Boumediene, at the time a case is decided, it is impossible to tell what it will mean

II. International Law?

1. What is international law?

2. Is International law law?

3. Is customary international law US law?

4. What is the relationship between CIL and Constitution and International Order

Schooner Exchange v. McFaddon & Others (1812)

Facts: McFaddon of Maryland filed a libel in PA against the Schooner Exchange arguing that they were its sole owners. They argued that while they were on a voyage, the Schooner was violently and forcibly taken by people acting under decrees and orders from Napoleon armed the ship who brought it into the port of Philadelphia, and into the jurisdiction of that court. They asked for the court to attach the vessel and restore it back to them. The US Attorney for Pennsylvania said that because of state of peace and amity between the US, Napoleon, and the king of Italy, public vessels of the emperor could enter and depart the ports and harbors of the US without seizure, arrest, detention or molestation—and because of this the process of attachment should be quashed.

- Significance of the French not showing up—not wanting to submit themselves to the jurisdiction of court

- President directs US Attorney to appear because it is an issue of diplomacy; France and Britain at war we are allied with France against British

Issue: Whether an American citizen can assert in an American court a title to an armed national vessel found within the waters of the United States?

Holding: All sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete jurisdiction within their respective territories which sovereignty confers. A public armed ship constitutes a part of the military force of her nation, acts under the immediate and direct command of the sovereign, and is employed the sovereign in national objects. The sovereign has many and powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and dignity. The implied license therefore under which such vessel enters a friendly port, may reasonably be construed, and it seems to the Court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign territory she claims the rites of hospitality. The sovereign is capable of destroying this implication—he may claim and exercise jurisdiction either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise.

- Jurisdiction is a subset of the sovereign power. If the national power doesn’t have it, you don’t

- Marshall is saying we can have this power as courts, but the whole sovereign, including Congress, lack the power

If the preceding reasoning be correct, the exchange being a public armed ship, in the service of a foreign sovereign, with whom the government of the US is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country.

- As nations, sovereign power is absolute

o Power can be limited by the consent of the nation (as people can consent); two types of consent

▪ Express (positive law of nations)

▪ Implied

- Examples

o Cannot arrest or detain a sovereign within foreing territory; because of their “dignity”; “dignity stands for this idea of independence; can’t be subjected to the limits of the state

o Foreign minister—ambassador immunity

▪ Same concern about threat to dignity; also no immunity would inhibit their ability to do their hob

o Troops to pass through his dominions; You better have express consent, unless it is an act of war

- Why different treatment of army and navy ships? Why does the former require express consent?

o 1. We were at peace with the French

o 2.If there is an absence of a prohibition, there is an implied consent

The Antelope (1825)

Facts: A privateer of slave traders prosecuted a voyage along the coast of Africa. On the coast of Africa it captured an American vessel from Rhode Island from which it took 25 Africans, several Portuguese vessels from which it also took Africans, and a Spanish vessel from which it also took a considerable number of Africans. The two vessels then sailed to Brazil where the privateer was wrecked and her master and most of the crew were made prisoners. The rest of the crew and all the Africans were transferred to the Spanish vessel which was found hovering near the coast of the United States and was brought into the port of Savannah for adjudication. On their arrival, the Portuguese and Spanish Vice-Consuls claimed the African. They were also claimed by John Smith, as capture jus belli—the commander of the Spanish vessel. They were claimed by the United States as having been transported from foreign parts by American citizens, in contravention to the laws of the United States, and as entitled to their freedom by those laws, and by the law of nations. The nation itself appeared on the part of the Vice-Consuls. Jackson captured shipped, wants it. US wants it as well. Slave trade had ended, but slavery hadn’t/

Issue: Are the Africans entitled to their freedom under the law of the US or the law of Nations.

Holding: That which has received the assent of all, must be the law of all. Slavery, has its origin in force, but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful. The parties to the modern law of nations do not propagate thir principles by force; and Africa has not yet adopted them. Throughout the whole extend of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves.

Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition, and without censure. A jurist could not say, that a practice thus supported was illegal, and those engaged in it might be punished, either personally, or by deprivation of property. A right which is vested in all by the consent of all, can be divested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for other, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it. If it be neither repugnant to the law of nations, piracy, it is almost superfluous to say in this Court, that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has prohibited the trade cannot exist.

- They have to address slavery because argument is under the law of nations; if slavery prohibited there argument fails

- But under the law of nations, states have to stand by and not interfere with the affairs of others

o Africa is not a nation (Taney—Dred Scott) and/or they had not adopted the law of nations

o Counterargument is that this is not interference

▪ Counterargument is that law of nations obligates US to enforce their right; US has to legally give them back

Vattel, The Law of Nations

- Nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength

- The Law of Nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.

o It prescribes that in peace nations should do each other as much goof, and in time of war as little harm, as may be possible, without injuring their own proper real interest.

o It established the principle and rule of conduct which should prevent the strongest nation from abusing its power, and induce it to act justly and generously towards other states, upon the broad principle that true happiness, whether of a single individual or of several, can only result from each adopting conduct influence by a sincere desire to increase the general welfare of all mankind.

o The present sources of the law of nations

- For the right being nothing more than the power of doing morally possible, that is to say, what is proper and consistent with duty,--it is evident that right is derived from duty or passive obligation,--the obligation we lie under to act in such or such manner. It is therefore necessary that a Nation should acquire a knowledge of the obligations incumbent on her, in order that she may not only avoid all violation of her duty, but also be able to distinctly to ascertain herrights, or what she may lawfully require from other nations

- Allusion to war: “Now all men and all states have a perfect right to those things that are necessary for their preservation, since that right corresponds to an indispensable obligation. All nations have therefore a right to resort to forcible means for the purposes or repressing any one particular nation who openly violates the laws of the society which Nature has established between them, or who directly attacks the welfare and safety of that society.

- Vattel is the law of nations: obligation of states to each other

- There is a law of nature that gives you liberty: “

o “In a state, the individual citizens do not enjoy then fully and absolutely, because they have made a partial surrender of them to sovereign. But the body of the nation, the State, remains absolutely free and independent with respect to all other men, and all other Nations, as long as it has not voluntarily submitted to them.”

o “Consequently the law of nations is originally no other than the law of nature applied to nations.”

o “Nations being free and indeepdnet, though the conduct of one them be illegal and condemnable by the law of conscience, the other are bound to acquires in it, when it does not infringe upon their perfect rights.”

o Applying this to Antelope—the country had to stay out

- What is really going on in Antelope?

o US is not yet superpower, reason of state dictated staying out of affairs

o We preserve consent because we only want our rights forfeited when we consent

o Want to create reciprocal obligation in spite of moral obligation

Joseph Story, “Law of Nations”

- Response to Vattel: “Vattel has defined the law of nations to be the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights. But it is obvious that he here speaks of one branch only of that law, and that he altogether passes by another most important branch, namely, the rights and obligations which subsist between the nation and its own subjects.”

o “It would be more correct, therefore, to divide it into two great leading heads, namely, the internal law of nations, or that which arises from the relations between the sovereign and the people, and the external law of nations, or that which arises from the relations between different nations.”

- Nations, therefore, in a just sense, are deemed sovereign, not so much because the possess the absolute right to exercise, in their actual organization, such transcendent and despotic authority, but because whatever they do exercise is independent of and uncontrollable by any foreign nation. The sovereignty of many nations is, in its actual organization, limited by their own constitutions of government; but, in relation to all foreign states, the sovereignty is, nevertheless, complete and perfect.

U.S. v. Schooner Peggy (1801)

Facts: In 1801 the US President ratified a convention with France, the fourth article of which: “Property captured and not yet definitively condemned, or which may be recaptured before the exchange of ratifications, (contraband goods destined to an enemy’s port excepted) shall be mutually restored.” It was ratified with the with the advice and consent of the Senate, excepting the 2d article, and with a limitation of the duration of the convention to the term of eight years. Subsequently the ratifications were exchanged at Paris, with a proviso that the expunging of the 2d article should be considered as a renunciation of the respective pretensions which were the object of that article. It was sent back to the Senate and they returned it with a resolve that they considered the convention fully ratified.

Issue: Whether the capture could be considered as made on the high seas, according to the import of that terms as used in the act of Congress of July 9th 1798. Whether, by the sentence of condemnation by the circuit court on 23rd of September the Schooner Peggy could be considered as definitively condemned, within the meaning of the 4th article of the convention with France.

Holding: The Schooner Peggy is within the provisions of the treaty entered into with France and ought to be restored because it is not considered as being definitively condemned. The fact that the circuit court is denominated a final sentence, does no makes its condemnations definitive in the sense in which that term is used in the treaty—the last decree of an inferior court is final in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced under.

The Constitution of the United States declares a treaty to be the supreme law of the land. Of consequence its obligation on the courts of the United States must be admitted. Although the restoration may be an executive when vied as a substantive, act independent of, and unconnected with, other circumstances, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and of consequence, improper.

It is in general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligations denied. If the law be constitutional, and of that no doubt in the present case has been expressed, no courts can contest its obligation.

It is general true that in case between individuals, a court will and should avoid a construction which would, by retrospective operation, affect the rights of parties, but in great national concerns where individual rights, acquired by war, sacrificed for national purposes, the contract making the sacrifice, ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensation.

Brown v. United States (1801)

Issue: May enemy’s property, found on land at the commencement of hostilities, be seized and condemned as a necessary consequence of the declaration of war? Is there any legislative act which authorizes such seizure and condemnation?

Holding: The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation. Reason draws no distinction between debts contracted under the faith of laws, and property acquired in the course of trade, on the faith of the same laws. Even Bykershook, who maintains the broad principle that in war everything done against an enemy is lawful, admits that war does not transfer to the sovereign a debt due to his enemy, and, therefore, if payment of such debt be not exacted, peace revives the former right of the creditor because the occupation which is have by war consists more in fact than in law. The modern rule then is that tangible property belonging to an enemy and found in the country at the commencement of war, ought not be immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property. The constitution of the US was framed at a time when this rule, was received throughout the civilized world. Moreover, the acts of Congress furnish many instances of an opinion that the declaration of war does not, of itself, authorize proceedings against the persons or property of the enemy found, at the time, within the territory.

In response to the argument that the in the executive, in executing the laws of war, may seize and the court condemn, all property which, according to the modern law of nations, is subject to confiscation, although it might require an act of legislature to justify the condemnation of that property which, according to modern usage, ought not be confiscated: The position that the modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power, is not allowed. The usage is a gulf which the sovereign follow or abandons at his will. The rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political consideration which may continually vary.

It appears that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war.

- Marshall’s technique

o Turns to authorities (“opinion juris”)

o Turns to custom→ what countries actually do

▪ Doesn’t’ have to be universal to be a custom

- Under Marshall’s view, we need a separate act of Congress to seize property (sovereign→ Congress)

o Sovereignty→ Congres

Concurring Opinion (Story): It is a perfectly novel and untenable doctrine that a declaration of war operates per se as an actual confiscation of enemy’s property found within the territory. A declaration of war does not, of itself, import a confiscation of enemies’ property within or without the country, on the land or on the high seas. Rather it gives a right to confiscate enemies’ property, and enables the power to whom the execution of the laws and the prosecution of the war are confided, to enforce that right. If no limit is place on the extent to which hostilities may be carried by the executive, the war may carried on according to the principles of the law of nations, and enforced when, and where, and on what property the executive chooses.

Since there is no act of the legislature defining the powers, objects or mode of warfare, the law of nations as applied to the state of war governs. Whatever act is legitimate, whatever act is approved by the law, or hostilities among civilize nations, such the executive, in his discretion, adopt and exercise; for with him the sovereignty of the nation rests as to the execution of the laws. Until any limits are place on the executive by the legislature, the executive must have all the right of modern warfare vested in him, to be exercised in his sound discretion, or he can have none.

- According to Story’s view, when the president says to go to war, the he has powers war gives him under customary international law. Congress can limit his power, but it could not give him more

- Story’ idea of American sovereignty:

o It rests in different hand (with respect to war)

o Congress has power of sovereign to declare war

o President has power to execute once war is declared

o Legislature can limit what president can do in prosecution of war, but when they are silent, president has the full power given to sovereign under the law of nations

My argument is not based on the position that modern usage constitutes a rule which acts directly on thing itself by its own force and not through the sovereign power. Rather the basis is that when the legislative authority, to whom the right to declare war is confided, has declared war in its most unlimited manner, the executive authority, to whom the execution of the war is confided, is bound to carry it into effect. He has discretion vested in him, as to the manner and extent; but he cannot lawfully transcend the rules of warfare established among civilized nations. If the general power to confiscate enemies’ property does not exist in the executive, to be exercised in his discretion, how is it possible that he can have authority to seize and confiscate enemies’ territory.

- The word “war” incorporates international law, you look into international law to give declare was in the meaning

- War means everything that customary international law tells you

Foster v. Nielson (1829)

Facts: The plaintiffs brought a suit to recover a tract of land lying in that district, about thirty miles east of the Mississippi, and in the possession of the defendant. The plaintiffs claimed under a grant of 40,000 arpents of land, made by the Spanish governor, on the 2d of January 1804, to Jayme Joydra, and ratified by the king of Spain on the 29th of May 1804. The defendant argued that the petition of the plaintiff did not show title on which they could recover, that the territory, within which the land claimed is situated, had been ceded, before the grant, to France, and by France to the United States; and that the grant is void, being made by person who had no authority to make it—i.e., the king lacked the authority to make the cession to the plaintiff.

Issue: To whom did the country between the Iberville and the Perdido rightfully belong, when the title asserted by the plaintiffs was acquired? Do these words act directly on the grants, so as to give validity to those not otherwise valid; or do they pledge the faith of the United States to pass acts which ratify and confirm them?

Holding: A sound construction of the eight article of the treaty of St. Idlefonso will not enable this court to apply its provision to the present case. The words of the article are, that “all the grants of land made before the 24th of January 1818, by his catholic majesty, shall be ratified and confirmed to the persons in possession of the lands to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.” A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to accomplished, especially so far as its operation is infra-territorial; but is a carried into execution by the sovereign power of the respective parties to the instrument. But in the United States, the constitution declares a treaty to be the law of the land. It is to be regards as equivalent to an act of the legislature, whenever it operates or itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty address itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.

- The fact that further action needs to be taken when it is infraterritorial is consistent with the Brown holding

o Counterargument is that how will the treaty be the law of the land if it is not self-executing

▪ Rejoinder: It may have been that treaties were intended only to govern relations with foreign relations; treatiesare not made through domestic democractic road (not too far-fetched)

- What is the point of having “law of the land” language if they can be interpreted as being self-executing?

o Useful in bargaining and negotiations—a response to popular sovereignty in the United States

o Other nations afraid that if they were not self-executing, than you had to rely on the people/Congress to get it implement

- Why do we need the current rule that “if treaty imports of a contract, it is not self-executing”

o Because we really want a rule that makes that treaties are self-executing

o In actuality, the Court decides whether they are self-executing, therefore, they are not technically “self-executing”

▪ Gives the court an “escape hatch”

- Language that treaty is the law of the land is consistent with Schooner Peggy

The language of the present treaty does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those acts of congress which were repugnant to it; but its language is that those grants shall be ratified and confirmed to the persons in possession. This seems to be the language of contract; and if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing the laws on the subject.

- Court seems to ignore the fact that “are hereby” can connote performative imemdiacy

United States v. Percherman (1829) :

The eighth article of the treaty was apparently introduced on the part of Spain and must have been intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction which would impair that security further than its positive words require, would seemed to be admissible. Without it, the titles of individuals would remain as valid under the new government as they were under the old, and those titles, so far at least as they were consummate, might be asserted in the courts of the United States, independently of this article.

The Spanish version of the article translates to grants “shall remain ratified and confirmed to the persons in possession of them, to the same extent,” thus conforming exactly to the universally received doctrine of the law of nations. If the English and the Spanish part can, without violence, be made to agree, that construction which establishes this conformity out to prevail. And in this case no violence is done to the language of the treaty by a construction which conforms the English and Spanish to each other. Although the words “shall be ratified and confirmed,” and properly the words of contract, stipulating for some future legislative act—but they are not necessarily so. They may import that they shall be ratified and confirmed by the force of the instrument itself. When we observe that in the counterpart of the same treaty, executed at the same time by the same parties, they are used in this sense, we think the construction proper, if not unavoidable.

- If this case recharacterized the Foster holding, then there would be no case holding that “where a treaty imports a contract, it is not self-executing”

o Obviously this interpretation would be favorable to those who would argue that they are always self-executing

The Paquete Habana (1898)

Facts: Two fishing smack vessels, running in and out of Havana. They regularly engaged in fishing on the coast of Cuba; sailed under the Spanish flag; was owned by a Spanish subject of Cuban birth; living in the city of Havana; was commanded by a subject of Spain, also residing in Havana; and her master and crew had no interest in the vessel, but were entitled to shares, amounting in all to two third, of her catch, the other third belonging to her owner. On April 25, 1898, about two miles off Mariel and eleven miles from Havana, it was captured by the United States. The next stay, the Lola was stopped by a US steamship, and was warned not to go into Havana, but was told that she would be allowed to land at Bahia Hond. It headed toward Bahia Honda, but on the next morning, when it was near the port, it was captured by the US. Both the fishing vessels were brought by their captors into Key West. A final decree of condemnation and sale was entered, “the court not being satisfied that as a matter of law, without any ordinance, treaty, or proclamation, fishing vessel of this class are exempt from seizure”

Issue: Whether the fishing smacks were subject to capture by the armed vessels of the US during the war with Spain?

Holding: By an ancient usage among civilized nations, and gradually ripening into a rule of internal law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt with their cargoes and crews, from captures as prize of war.

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as question of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor; research and experience, have made themselves peculiarly well acquainted with the subject of which they treat. Such works are resorted to by judicial tribunals, not for the specularions of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation, that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law.

- No cite to any authority; Common law courts have always treated customary international law as being part of our law; It has done it cases like Brown, Schooner Exchange

In Brown v. United States, there are expressions of Chief Justice Marshall which, taken by themselves, might seem inconsistent with the position above maintained of the duty of a prize court to take judicial notice of a rule of international law, established by the general usage of civilized nations, as to the kind of property subject to capture. The decision that enemy property on land, however, which by the modern usage of nations is not subject to capture as prize of war, cannot be condemned by a prize court, even by direction of the executive, without express authority from Congress, appears to us to repel any inference that coast fishing vessels, which are exempt by the general consent of civilized nations from capture, and which no act of Congress or order of the President has expressly authorized to be taken and confiscated must be condemned by a prize court, for want of a distinct exemption in a treaty or other public act of the Government

- In Brown, used as international law as a guide; international law principle was applied

Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which, when generally accepted, became universal obligation. This is not giving to the statutes of any nation extra-territorial effect. But it is recognition of the historical fact that be common consent of mankind these rules have been acquiesced in as of general obligation.

Dissenting Opinion (Fuller): There is no such international rule that the Court announces, nor can the court properly revise action which must be treated as having been taken in the ordinary exercise of discretion in the conduct of war. It cannot be maintained “that modern usage constitutes a rule which acts directly upon itself by its own force, and not through the sovereign power. That position was disallowed in Brown v. U.S: “the sovereign follows or abandons it at his will. It is subject to infinite modification. It is not an immutable rule of law, but depends on political consideration which may continually vary. The rule may be disregarded—custom law is not law until Congress acts.

It is rule that exemption from the rigors of war is in the control of the executive. He is bound by no immutable rule on the subject.The rule is that exemption from the rigors of war is in the control of the executive. He is bound by no immutable rule on the subject. Exemption may be designated in advance, or granted according to circumstances, but carrying on war involves the infliction of the hardships of war at least to the extent that the seizure or destruction of enemy’s property on sea need not be specifically authorized in order to be accomplished.

- Fuller is saying that he doesn’t care about what they say, and there is not even consensus. Don’t care about what they say because customary international law is not mentioned in Constitution

- Once you’re at war, the executive’s power is absolute in the absence of Congress acting

- Brown placed sovereignty in Congress; (although general, IN OUR SYSTEM, you don’t confiscate” without congressional action )

- Dissent would respond that is “necessary” you have to violate

Filartiga v. Pena-Irala (1980)

Facts: The Filartigas were opponent to the Paraguayan government of President Stroessner. The moved to the United States. In 1978, Pena sold his house in Paraguay and entered the US under a visitor’s visa. He was accompanied with his girlfriend who lived with him in Paraguay. The couple remained in the US beyond the term of their visas, and were living in Brooklyn, New York when Ms. Filartiga who was living in DC learned of their presence. Acting on info provided by Ms. Filartiga, the INS arrested Pena and his companion, both of whom were subsequently ordered deported following a hearing. Almost immediately, Mrs. Filartiga cause Pena to be served with a summons and civil complaint where he was being held pending deportation. The complaint alleged that Pena had wrongfully caused her son;s death by torture. The Filartigas sought to enjoin Pena’s deportation to ensure his availability for testimony at trial. Jurisdiction is claimed under the general federal question provision 28 U.S. Section 1331 and the ATS, 28 U.S.C. Section 1350.

Issue: Do district court to hear claims of torture under the ATS that did not occur in the US?

Holding:

II: The threshold question is whether the conduct alleged violates the law of nations. In light of he universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world, an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations. The law of nations may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law (under Habana).

Habana is particularly instructive for present purposes for it held that the prohibition against seizure of an enemy’s coastal fishing vessels during wartime, a standard that began as one of comity, only had ripened over the preceding century into “a settled rule of international law” by the general assent of the civilized nations. Thus it is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.

There are few, if any, issues in international law today on which opinion seems to be so united as the limitations on a state’s power to torture persons. The UN Charter makes it clear that in this modern age a state’s treatment of its own citizens is a matter of intentional concern. While this broad mandate has been held to be not wholly self-executing, there is no dissent from the view that the guaranties of the Charter include the right to be free from torture. This prohibition has become part of customary international law, as evidence and defined by the Universal Declaration of Human Rights, which states, in the plainest terms, “no one shall be subject to torture.” The UN Declarations are significant because they specify with great precision the obligation of member nations under the Charter. Since their adoption, “members can no longer contend that they do not know what human rights they promised in the Charter to promote.

- No express prohibition on torture at the time; hard to argue, don’t want to agree to constrained definition

- UN Charter

o Not Self-executing

o A declaration

o Ambiguous

o Declarations are even of their face binfing obligations

- However, there is commentator consensus that universal declaration is customary international law

o Or is there?

▪ Conclusory language on the part of the scholars; need some language about state practice

- Official torture narrowin g suspects: 1) Do it an call it something else, 2) Likelihood of concealment

o And the latter is significant because it is not what they say, but there practice; but:

▪ 1) Doesn’t have to be universal practice

▪ 2) Concealment: Think don’t care-practice; what they think + some practice

- Most of the time those who define it (transform state practice into law); is→ ought; false distinction: can’t say what the commentators think it is cal is not actual law

Although torture was once a routine concomitant of criminal interrogations in many nations, during the modern and hopefully more enlightened era it has been universally renounced. According to one suvery, torture is prohibited, expressly or implicitly, by the constitutions of over fifty-five nations, including both the United States and Paraguay.

III: Common law court of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction wherever the tort occurred. The constitutional basis for the ATS is the law of nations, which has always been a part of the federal common law. In personam jurisdiction has been obtained over the defendant, the parties agree that the acts alleged would violated Paraguyan law, and the policies of the forum are consistent with the foreign law, state court jurisdiction would be proper.

The law of nations forms an integral part of the common law, and a review of the history surrounding the adoption of the Constitution demonstrates that it became a part of the common law of the United States upon the adoption of the Constitution. Therefore, the enactment of the ATS was authorized by the Article III.

It was hardly a radical initiative for Chief Justice Marshall to stated that in the absence of congressional enactment, United States are bound by the law of nations which is part of the law of the lawn. These words were echoed in The Paquete Habana: “international law is part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.

Tel Oren v. Libyan Arab Republic (1984)

Facts: Plaintiffs, mostly Israeli citizens, are survivors and representatives of persons murdered an armed attack on a civilian bus in Israel in March 1978. The filed suit for compensatory and punitive damages in the District Court, naming as defendants the Libyan Arab Republic, the Palestine Liberation Organization, the Palestine Information Office, the National Association of Arab Americans, and the Palestine Congress of Northern America. The plaintiffs alleged that defendant were responsible for multiple tortious in violation of the law of nations, treaties of the United States and criminal laws of the United States as well as the common law. Jurisdiction was claimed under four separate statutes; 28 U.S.C. Section 1331 (federal question jurisdiction); 28 U.S.C Section 332 (diversity jurisdiction; 28 U.S.C. Section 1350 (providing jurisdiction over actions by an alien alleging a tort committed of the law of nations or a treaty of the United States); and the Foreign Immunities of Act of 1976; 28 U.SC. Sections 1330, 1602-1611.

Holding: Affirmance of District Court’s dismissal of the action for lack of subject matter jurisdiction and barred by the applicable statute of limitations.

Concurring Opinion: The Filartiga opinion established several propositions. First, the law of nations is stagnant and should be construed as it exists today among the nations of the world. Second, one source of that law is the customs and usages of civilized nations, as articulated by jurists and commentators. Third, international law today places limits on a state’s power to torture persons held in custody, and confers “fundamental rights upon all people” to be free from torture. Fourth, section 1350 opens the federal courts for adjudication of the rights already recognized by international law.

- Even if you go back to 1789, then piracy involves a private party

o Individual’s in international law:

▪ 18th: individual + states

▪ 19th: states alone

▪ 20th: individual back on the scene (privacy)

- Law of nations (as opposed to international law) could govern nations in the things they do domestically

IV. Meaning of the Law of Nations: My colleague infers Congress intent from the law of nations at the time of Section 1350. The result of the analytical approach is to avoid the dictates of the Paquete Habana and to limit “the law of nations” language to its 18th century definition. It is clear that courts must interpret international law not as it was in 1789, but has it has evolved and exists among the nations of the world today. The Supreme Court state as much almost a century ago, when it announced that counterfeiting of foreign securities constitutes and offense against the law of nations.”

While I do not believe the consensus on non-official torture warrants an extends of Filartiga. While I have little doubt that the trend in international law is toward a more expansive allocation of rights and obligations to entities other that states, I decline to read section 1350 to cover torture by non-state actors, absent guidance from the Supreme Court on the statute’s usage of the term of “law of nations”

VII. Terrorism as a Law of Nations Violation: While this nation unequivocally condemns all terrorist attacks, that sentiment is not universal. The divergence as to basis norms of course reflect a basic disagreement as to legitimate political goals and the proper method of attainment. Given such, disharmony it cannot be concluded that the law of nations—which is defined as the principle and rules that states feel themselves bound to observe, and do commonly observe—outlaws politically motivate terrorism, no matter how repugnant it might be to our own legal system.

- One of the states in this party actions (encourages terrorism).

Concurring Opinion (Bork):

II: The position of Edwards and the Court in Filartiga seems to be fundamentally wrong and certain to produce certain results. It is essential that there be an explicit grant of a cause of action before a private plaintiff be allowed to enforce principle of international law in a federal tribunal. No body of law expressly grants appellants a cause of action is to ask whether a cause of action is to be inferred.

The Supreme Court explained in Davis, that to ask whether a particular plaintiff has a cause of action is to ask whether he “is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court.” The Court said that “the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right that is protected by the Constitution.

An analysis of the appropriateness of providing appellants with a cause of action must take into account the concerns that are inherent in and peculiar to the field of international relations. The concerns lead to a conclusion different from that reached in Davis for here there appear to be “special factors counseling hesitation in the absence of affirmative action by Congress. The factors compelling hesitation are constitutional; they derive from principles of separation of powers.

The crucial element of the doctrine of separation of powers in this case is the principle of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative—‘the political’—Departments.” The act of state doctrine in its traditional formulation precludes the court from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory.” Sabbatino. Originally, the doctrine rested primarily on notions of sovereignty and comity. The Sabbatino court explained that the Constitution does not compel the act of state doctrine, the doctrine has “constitutional underpinnings. It arise out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations.

- Act of state doctrine: Judiciary is terrible about international relations; the US courts should not engage in this kind of discussion

o Don’t want courts sitting in judgment of other nations acts

- Institutional competence (Hart & Sachs)/Legal Process: Insight that different parts of government are good at different things; allocate power on that basis

The same separation of powers principles are reflected in the political question doctrine. The Supreme Court gave that doctrine its modern formulation in Baker v. Carr. If it were necessary, I might well hold that the political question doctrine bars this lawsuit, since it is arguable that this case fits the several categories listed in Baker. Such a determination is not necessary because many of the same considerations that govern application of the political question doctrine also govern the question of the appropriateness of providing appellants with a cause of action.

- Textually demonstrable commitment to another branch, then clear showing before court hears case. Foreign relations are largest class of political question

- Both the act of state doctrine and the political question doctrine have prudence concerns and are both rooted in separation of powers

It would require a clear showing that treaties, common law, congressional enactments, and customary international law and other bodies of law grant appellants a cause of action before my concerns about the principles of separation of powers would be overcome.

III: Treaties of the US, though the law of the land, do not generally create the rights that are privately enforceable in courts. Absent authorizing legislation, an individual has access to courts for enforcement of a treaty’s provisions only when the treaty is self-executing, that is, when it expressly or impliCaedly provides a private right of action. When no rights is explicitly state, courts look to the treaty as a whole to determine whether it evidence an intent to provide a private right of action.

IV: Appellants argue that intentional is part of the common law of the United States and that federal common law provides a cause of action for international law violations, as it would for violations of other federal common law rights. This reflects a confusion about the distinct meanings of common law. “Federal common law” has been used to refer to “generally to federal rules of decision where the authority for a federal rule is not explicitly or clearly found in federal statutory or constitutional command. To say that international law is part of federal common law is to say only that it is nonstatutory and nonconstituional law to be applied, in municipal courts. It is not to say that, like the common law of contract and tort, for example, by itself it affords individuals the right to ask for judicial relief.

- Erie problem: federal common law, Story was the inventor of federal common law

- Post Erie federal common law: vague non-specific category, Article IIU not clear where it should come from

- If the law of nations evolved, then you have collision with Erie; Brandeis: there is no omnipresent common law; legal positivism

Sections 1331 and 1350 cannot be read as granting a cause of action, because, as the Supreme Court stated: “the Judicial Code, in vesting jurisdiction in the District Courts, does not create causes of action, but only confers jurisdiction to adjudicate those arising from other sources which satisfy its limiting provisions.

- Jurisdiction: court power to hear the case

- Cause of action: court gives power to decide the cause

o Action→ legal of action

o Cause→ Legal basis on which to proceed

- We keep these three because court has no authority to overturn ATS, just whatever cause of action Congress assumed exists at the time

- How can common law provide cause of action? Custom, precedent

o A tort only in violate of law of nations

- The founding father enacted this statute→ hard to declare statutesunconstitutional

- Erie’s is not an originalist decision

o Very advanced exemplar of originalist theory

The broadest reading of Section 1350 as evidence of congressional recognition of such a cause of action is that it merely requires that a plaintiff prove that the actions complained of violated international law, this is the approach that the Filartiga court adopted. This interpretation must be rejected. First, it would have to apply equally to actions brought to recover damages for torts committed in violations of treaties, since treaties stand in exactly the same position in section 1350 principles of customary international law (the law of nations). Such application would render meaningless, for alien plaintiffs, the well-established rule that treaties that provide no cause of action cannot be sued on without express or implied federal law authorization.

In addition, appellants’ construction of Section 1350 would authorize tort suits for the vindication of any international legal right. The result would be inconsistent with the severe limitations on individually initiated enforcement inherent in international law itself, and would run counter to constitutional limits on the role of federal courts. Those reasons demand rejection of appellant construction of section 1350 unless a narrow reading of the provision is incompatible with congressional intent. However there is no direct evidence of what Congress had in mind when enacting the provision. The debates over the act in the House nowhere mention the provision, not even indirectly.

The phrase the law of nation has meant various things over time. It is important to remember that in 1789 there was no concept of international human rights; neither was there, under traditional version of customary international law, any recognition of a right to private parties to recover. The assertion that the rule has evolved against the torture by government so that our courts must sit in judgment of the conduct of foreign officials in their own countries with respect to their own foreign citizens raises prospects of judicial interference with foreign affairs that the former does not.

The alien tort action Congress could have intent to bring into federal Courts could be those noted by Blackstone: “the principal offenses against the law of nations, were of three kinds: 1. Violation of safe-conducts, 2. Infringement of the rights of ambassadors, and 3. Piracy. Whether Congress intended theses offense is speculative but they show that the statute could have served a useful purpose even if the larger tasks assigned it by Filartiga and Judge Edwards are rejected. Moreover, creation of federal jurisdiction for the redress of these alien grievances would tend to ease rather than inflame relations with foreign nations. That result comports with Hamilton’s expressed desire.

The substantive rules of international law may evolve and perhaps court may apply those new rules, but that does not solve the problem of the existence of a cause of action. Recognition of suits presenting serious problems of interference with foreign relations would conflict with the primary purpose of the adoption of the law of nations by federal law—to promote America’s peaceful relations with other nations.

Kadic v. Karadzic (1995)

Facts: The plaintiffs are Croat and Muslim citizens of Bosnia-Herzegovina, formerly a republic of Yugoslavia. They alleged that they are victims, and representatives of victims, of various atrocities, including brutal acts of rape, forced prostitution, forced impregnation, torture, and summary execution, carried out by Bosnia-Serb military forces as part of genocidal campaign conducted in the course of the Bosnian civil war. Karadzic, is the President of a three man presidency of the self-proclaimed Bosnian-Serb republic within Bosnia-Herzegovina which claims to exercise lawful authority over large parts of the nation. As President, the defendant possessed the ultimate command authority over the Bosniaa-Serb military forces, and the injuries perpetrated upon plaintiffs were committed as part of a pattern of systematic of human rights violations that was directed by the defendant and carried out by the military forces upon his command. The complaints alleged that he acted in his official capacity either at the head of the republic or in collaboration with the government of the former Yugoslavia and its dominant constituent republic. The plaintiff’s sought compensatory and punitive damages, attorney’s fees, and in one case, injunctive relief. They alleged subject-matter jurisdiction in the Alien Tort Act, the Torture Victim Protection Act of 1991, the general federal-question jurisdictional statutes, 28 U.S.C. Section 1331 and principles of supplemental jurisdiction. The defendant was served with process while in the US, on the invitation of the United Nations. Self-proclaimed republic of Sprska, he wanted to eb head of state for purposes of immunity, but not for purposes of litigation. Plaintiffs sya that he is President of Sprska but not head of state (“somewhat inconsistent” positions)

Issue: Whether some violations of the law of nations may be remedied when committed by those not acting under the authority of a state? If so, whether genocide, war crimes, and crimes against humanity are among the violations that do not require state action?

Holding: Filartiga established that this statute confers federal-subject matter jurisdiction when the following three conditions are satisfied: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations. The only issue here is whether the plaintiffs have pleaded violations of international law. The law of nations , as understood in the modern era, confines its reach to state action. Certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.. An early example of the application of the law of nations to the act of private individuals is the prohibition against privacy. Later examples are prohibitions against the slave trade and certain war crimes.

Congress enacted the Torture Victim Act to codify the cause of action recognized by this Circuit in Filartiga, and to further extend that cause of action to plaintiffs who are US citizens. At the same time, Congress indicated that the Alien Tort Act “has other important uses and should not be replaced. Therefore, the scope of the Alien Tort Act remains undiminished by enactment of the Torture Victim Act. WE must make a particularized examination of these offenses, mindful of the important precept that “evolving standards of international law govern who is within the ATS’ jurisdictional grant. Appellants claims are grouped into three categories: (a) genocide, (b) war crimes, and (c) other instances of inflcting death, torture, and degrading treatment.

Genocide: The condemnation of genocide as contrary to international law quickly achieved broad acceptance by the community of nations after World War II. In the 1946, the General Assembly of the UN declared that genocide a crime under international law that is condemned by the civilized world, whether perpetrators are private individuals, public officials or statesmen. The Convention of the Prevention of Crime and Genocide (in force in US) makes clear that “persons committing genocide shall be whether they are constitutionally responsible rulers, public officials or private individuals.”Nothing in the Genocide Convention Implementation Act or its legislative history reveals an intent by Congress to repeal the Alien Tort Act insofar as it applies to genocide, and the two statutes are surely not repugnant to each other. Under these circumstances, it would be improper to construe the Genocide Convention Implementation Act as repealing the Alien Tort Act by implication. The appellants allegations that the defendant personally planned and ordered a campaign of murder, rape, forced impregnation, and other forms of torture designed to destroy the religious and ethnic groups of Bosnia Muslims and Bosnia Croats clearly state a violation of the international norm proscribing genocide.

- Court is responding to Section 1092 which said Convention Implementation Act should not”not constued as creating any substantive or procedural right enforceable by law by any part y in

- This position that under the ATA there is right to recover; the problem is that they made law where Congress said it didn’t want it

o Court says they found it, rather than making it—evolving standards

War Crimes: Plaintiffs also contend that the acts of the murder, rape, torture, and arbitrary detention of civilians, committed in the course of hostilities, violate the law of war. Atrocities of the types alleged here have long been recognized in international law as violations of the law of war. Moreover, the liability of private individuals for committing war crimes has been recognized since World War I and was recognized since World War I and was confirmed at Nuremberg after World War III and remains today an important aspect of international law.

Torture and summary execution: In Filartiga, the court held that official torture is prohibited by universally accepted norms of international law and the Torture Victim Act confirms this holding and extends it to cover summary execution. However, torture and summary—when not perpetrated in the course of war crimes—are proscribed by international law only when committed by state officials under color of law.

Louis Henkin, International Law as Law in the United States

I. International Law as Federal Law

- Between 1776 and 1789, then, international law was the law of each of the thirteen states, either as state common law, or by incorporation pursuant to the state’s intentional obligations or those of the United States

- Whatever the basis, the status of international law as state law could have been changed, or confirmed, in 1789 when the states united into ‘a more perfect union’—but the new Constitution did not expressly address the matter. The Constitution recognized that the United States was subject to the law of nations and gave Congress the power to define offenses against the law of nations. The judicial power of the United States was extended to cases arising under treaties, cases affecting ambassadors, cases within admiralty of maritime jurisdiction, and controversies to which foreign states or citizens are party.

- After Erie, a determination of international law by a state court was a question of state law, not of federal law, and thus was not subject to review, revision, or independent and final determination and harmonization by the Supreme Court of the United States.

o Such a state affairs made no sense: Whereas the interpretation of a U.S. treaty was a federal question to be decided finally by the Supreme Court for all courts (and domestically, at least, for the political branches as well), determinations of customary international law by state courts were not reviewable by the Supreme Court

- The Supreme Court resolved this issue in Sabbatino: the court reestablished the Act of State doctrine and declared it to be a principle of federal law binding on the states. The Court invoked Judge Jessup’s views rejecting the applicability of Erie to international law. As a result, there is now general agreement that intentional law, as incorporated into domestic law in the United States, is federal, not state law; that cases arising under international law are ‘cases arising under… the Laws of the United States’ and therefore are within the judicial power to the United States under article III of the Constitution; that principles of international law as incorporated in the law of the United States are ‘Law of the United States’ and supreme under article VI

- Court invented “act of state doctrine” of international law under Article III

- Tel Oren: Act of state: doctrine precludes the courts from inquiring into the validity of the public acts a recognized foreign soverign power committed within its own territory

- Court did not have the authority under Erie to make this doctrine in foreign relations law, if they can’t do it in that realm, they can’t do it in this realm

o By inventing the act of state doctrine and circumventing Erie, the court necessarily rejected the argument that Erie applies to international law

▪ Bork’s opinion in Tel-Oren, however, argues that Sabbatino has “constitutional: underpinnings of separation of powers

▪ Problem for Henkin is that Sabbatino invented a doctrine that curtailed the power of courts, rather than increasing it

- Foreign relations law no in federal supreme to states

II. International Law in the Hierarchy of US Law

- Since it is law not enacted by Congress, and the principles of that law are determined by judges for application in cases before them, customary international law has often been characterized as ‘federal common law’ and has been lumped with authentic federal common law-the law made by federal judges under their constitutional power or under authority delegated by Congress

o Although they are similar CIL is not federal common law in significant respects:

▪ (Because courts can’t make it, they are finding it argument): Unlike federal common law, customary international law is not made and developed by the federal courts independently and in the exercise of their own law-making judgment. Federal courts find international law rather than make it, as was not true when courts were applying the ‘common law,’ and as is clearly not the case when federal judges make federal common law pursuant to constitutional or legislative delegation.

▪ The determinants are not their own judgments or the precedents of U.S. courts. It is ‘legislated through the political actions of the governments of the world’s States. It is determined primarily and more authoritatively by international courts and with equal authority by domestic courts of other countries. It is the executive branch, far more than the courts, that acts for the United States to help legislate customary international law.

• Courts decision are not their own judgments because it is looking outside to decision of state practice and custom and law

o This argument ignores the role of interpretation; after all, at common law the courts admitted they were ignoring precedent

▪ State practice is also not made because it is legislated through state practice

- Why can’t Henkin say that judges are interpreting?

o Not talking about treaties (

o The absence of the phrase of customary international law in the Supremacy clause

▪ Before Erie, customary international fit into “federal common law” now where are you going to put it?

• Henkin responds that there is an inherent power under article III, and uses Sabbatino to bolster this proposition

- The status of customary international law in the law of the United States in relation to treaties or acts of Congress has not been authoritatively determined. And, in principle, the argument for according customary law equal authority, and for applying the later-in-time rule to it as well is not unpersuasive. In international law, customary law and treaties are of equal authority and the later in time will prevail in case of inconsistency, when the parties so intend.

o In U.S. law, both treaties and customary law are law of the United States just as statutes are; like statutes, both are superior to state law. That U.S. courts cannot make domestic law inconsistent with an earlier act of Congress is not dispositive and may not even be relevant; customary law is not law made by U.S. judges or any other judges.

▪ Customary law is a multilateral international creation, made by the political processes of States, including the United States. It is akin to multilateral treaties, and some indeed see it as the result of tacit international agreement

- The lack of an expression mention of CIL in the supremacy clause or article III is not significant. The law of nations of the time was not seen as something imposed on the state by the new US government; it had been binding on and accepted by the state before the US government was even established. There was no fear that the states would flout it, and therefore no need to stress its supremacy. In any event, today it is established that customary international law, as incorporated into U.S. law, fits comfortably into the phrase ‘the law of the United States’ for purposes of supremacy to state law. We have also accepted customary international law ‘laws of the United States’ for purposes of article III.

- Customary law is ‘self-executing’ and like a self-executing treaty it is equal in authority to an act of Congress for domestic purposes. An old act of Congress need not stand in the way of U.S. participation in the development of customary law and courts need not wait to give effect to that development until Congress repeals the older statute.

Restatement of Foreign Relations Law, Sec. 111.  International Law and Agreements as Law of the United States

(1)  International law and international agreements of the United States are law of the United States and supreme over the law of several States.

(2)  Cases arising under international law or international agreements of the United States are within the Judicial Power of the United States and, subject to Constitutional and statutory limitations and requirements of justiciability, are within the jurisdiction of the federal courts.

(3)  Courts in the United States are bound to give effect to international law and to international agreements of the United States, except that a “non-self-executing” agreement will not be given effect as law in the absence of necessary implementation.

(4)  An international agreement of the United States is “non-self-executing”

(a) if the agreement manifests an intention that it shall not become effective as

domestic law without the enactment of implementing legislation,

(b) if the Senate in giving consent to a treaty or Congress by resolution, requires

implementing legislation, or

(c) if implementing legislation is constitutionally required.

Restatement of Foreign Relations Law, Sec. 115.  Inconsistency Between International Law or Agreement and Domestic Law:  Law of the United States

(1)       

(a)  An act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act is to supersede the earlier rule or provision is clear or if the act and the earlier rule or provision cannot be fairly reconciled.

(b) That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation.

(2) A provision of a treaty of the United States that becomes effective as law of the United States supersedes as domestic law any inconsistent preexisting provision of a law or treaty of the United States.

(3) A rule of international law or a provision of an international agreement of the United States will not be given effect as law in the United States if it is inconsistent with the United States Constitution

Curtis Bradley & Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position

A. Pre-Erie Status of CIL

- The statement in The Paquete Habana that CIL was “part of our law” did not mean that CIL had the status of federal law. Indeed, the Court in the Paquete Habana itself strongly insinuated as much when it suggested that CIL as applied by federal courts did not bind either Congress or the President

- We have three points to add to what we and others have already said about CIL’s non-federal status prior to Erie:

o 1. 18th and 19th century statements that law of nations was part of the law of the land were not made in the context on interpreting Article VI, and there is no reason to believe that these statements were references to the “supreme Law of Land” in that Article. The law of nation was not viewed as made by any particular sovereign source, especially not by a U.S. constitutional lawmaking source and especially not by federal courts. The assertion that the law of nations was part of the law of the land was likely nothing more than mimicking of earlier statements by Blackstone, who was not, of course, referring to supreme U.S. federal law.

o 2. No court prior to Filartiga in 1980 ever held that CIL was part of the “Laws of the United States,” within the meaning of Article III, and to date no court has held that CIL is part of “Laws of the United States” within the meaning of the Supremacy Clause

o 3. The enactment of the ATS is not persuasive evidence that the First Congress or the Framers thought the CIL had the status of federal law. The First Congress may well have believed that alien-alien suits under the ATS were consistent with Article III’s Alien Diversity Clause. Although such suits appear inconsistent with the language of this clause, would not have been the only instance in which the First Congress thought otherwise.

B. Erie’s Relevance to CIL

- Erie’s new conception of law, and of the constitutional role of the federal courts in applying law, bears upon the claims of the modern position in several ways

o 1. Erie embraced legal positivism: Erie requires federal courts to identify the soverign source for every rule of decision. Because the appropriate “sovereigns” under the U.S. Constitution are the federal government and the states, all law applied by federal courts must be either federal law or state law. This means that advocates of the modern position err in relying on pre-Erie decisin applying CIL as general common law. In addition the suggestion that federal courts can apply CIL in the absence of any domestic authorization cannot survive Erie, which rejected precisely this type of federal judicial power.

o 2. Erie embrace the legal realist view of judicial decisionmaking: Erie rejected this view when it interpreted the term “laws” in the Rules of Decision Act to include state judicial decisions. The recognition that courts “make” law when they engage in common law decisionmaking also formed a basis for the Court’s conclusion that the development of an independent general common law by a federal courts was “an unconstitutional assumption of powers.”

▪ The legal realist conception of judicial decisionmaking undermines the assertion by Professor Henkin. His argument assumes a sharp distinction between law-interpretation and lawmaking that cannot survive even the mildest of legal realist critiques. It ignores the character of CIL lawmaking: CIL is often unwritten, the necessary scope and appropriate sources of “state practice” are unsetteled, and the requirement that state allows customary norms from a “sense of legal obligation”

o 3. The “new” federal common law: Erie did not eliminate the lawmaking powers of federal courts—it changed them. Thus, federal judicial lawmaking is consistent with Erie if it is legitimately authorized.

C. Post-Erie Federal Common Law

- Nothing on the face of the Constitution or any federal statute authorizes federal courts to interpret and apply CIL as federal law in the wholesale fashion contemplated by the modern position.

o Article III of the constitution does not even list CIL as a basis for the exercise of federal judicial power, much less authorize federal courts to incorporate CIL wholesale into federal law

o Nor does Article VI list CIL as a source of supreme federal law. Article I does authorize Congress to define and punish offenses against the law of nations, and Congress has exercised this and related to incorporated select CIL principles into federal statutes. But Congress has never purported to incorporate all of CIL into federal law. And Congress’ selective incorporation would be largely superfluous if CIL were already incorporated wholesale into the federal common law

VI . Implications of the Critique

- Central Argument: legislature are politically accountable, executive are as well; no elected body involved in the ascertainment of customary international law; no democratic pedigree to state practice

o Democracy Deficit Argument: No one voted on these laws

▪ Counterargument: what is the democratic pedigree of the laws found in Paquete Haban and Antelope

• Bradley and Goldsmith’s objection is trumped up; because framers allowed prized cases under Article III; there is no democratic deficit

• Additionally, treaties had no democratic pedigree when the Senators wee popularly elected (hence, there was democracy deficit if you’re an originalist)

• Bradley and Goldsmith actual concern might be with constraints on the executive; and with progressive professor “interesting; trying to strengthen the US commitment to human rights clandestinely

- Certain doctrinal consequences follow from the argument that, in the absence of federal political branch authorization, CIL is not a source of federal law.

o First, a case arising under CIL would not by that fact alone establish federal question jurisdiction.

o Second, federal court interpretations of CIL would not be binding on the federal political branches or the state. If a state chooses to incorporate CIL into state law, then the federal courts would be bound to apply the state interpretation of CIL on issues not otherwise governed by federal law. If a state did not, in fact, incorporate CIL into state law, the federal court would not be authorized to apply CIL as a federal or state law.

- The requirement of political branch authorization does mean that there would likely be less CIL as federal law than would be the case under the modern position

- But the rejection of the modern position would not necessarily spell the end of Filartiga-type of litigation for two reasons

o 1. The ATS jurisdictional grant could be interpreted as authorizing federal courts to create federal common law rules of tort liability in cases brought by aliens based on the court’s interpretation of CIL; ATS cases would therefore arise under this federal law for purposes of Article III

o 2. Not important

Sosa v. Alvarez-Machain (2004)

Facts: In 1985, a DEA agent was captured on assignment in Mexico and taken to a house in Guadalajara, where he tortured over the course of a 2-day interrogation, then murdered. Based in part on eyewitness testimony, DEA officials in the United States came to believe that respondent Alvarez a Mexican physician was present at the house and acted to prolong the agent’s life in order to extend the interrogation and torture. In 1990, a federal grand jury indicted Alvarez for the torture and murder of the DEA agent, and a U.S. District Court in California issued a warrant for his arrest. After negotiations with Mexico to arrange extradition of Alvarez fell through, the DEA approved a plan to hire Mexican national to seize Mexican nationals to seize Alvarez and bring him to the United States. A group of Mexicans, including petitioner Sosa, abducted Alvarez from his house, held him overnight in a motel, and brought him by private plane to El Paso where he was arrested by federal officers. After Alvarez was acquitted on the criminal charge, he returned to Mexico and began a civil action against Sosa, a Mexican citizen and DEA operative, five unnamed Mexican civilians, the US, and four DEA agents. Alvarez sought damages under among other things an unlawful arrest and detention under the ATS, as a violation of the law of nations.

Issue: Whether Alvarez’ allegation that the DEA instigated?

Holding:

III: The ATS is in its terms only jurisdiction, although at the time of enactment the jurisdiction enabled federal courts to hear claims a very limited category defined by the law of nations and recognized at common law. However, that the limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 should be taken as authority to recognize the right of action asserted by Alvarez.

(A): The fact that the ATS was placed in Section 9 of the Judiciary Act, a statute otherwise exclusively concerned with federal-court jurisdiction, is itself support for its strictly jurisdictional nature. The history and practice give the edge to the position that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in the violation of the law of nation would been recognized within the common law of the time.

(1): Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs that was probably on the minds of the men who drafted the ATS with its reference to tort.

(2): The Continental Congress was hamstrung by its inability to “cause infractions of treaties, or of the law of nations to be punished,” and in 1781 the Congress implored the States (after the Marbois affair) to vindicate rights under the law of nations. The Framers responded by vesting the Supreme Court with original jurisdiction over “all cases affecting Ambassadors, other public ministers and Consuls.” Article III, Section 2 and the First Congress followed through. The Judiciary Act reinforced this Court’s original jurisdiction over suits brought by diplomats, created alienage jurisdiction, Section 11, and, of course, included the ATS, Section 9.

- Court very originalist here—looking to the three Blackstone cited; referencing Marbois affair

- But the question is why you would need the ATS after Constitution?

o Congress enacted a statute about privacy;

o And the framers took care of ambassadors in Article III Section 2

- Safe passage, according to Professor Lee (Souter’s former clerk), was the only one of the Blackstone three intended to be covered in the ATS; smaller than Blackstone three

(3):There is no record of congressional discussion about private actions that might be subject to the jurisdictional provision, or about any need for further legislation to create private remedies; there is no record even of debate on the section. There is every reason to suppose that the First Congress did not pass the ATS as a jurisdiction convenience to be place on the shelf until causes of action were created—the anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to have a practical effect. Moreover, Congress intended the ATS to furnish jurisdiction for a modest set of actions in violations of the law of nations; uppermost in the legislative mind at the time of enactment appears to be the offenses against ambassadors; violations of safe conduct were probably understood to be actionable, and individual actions arising out of prize captures and piracy may well have also been contemplated.

(4): In sum, although the ATS is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical material is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding the common law provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.

IV: No development in two centuries from the enactment of Section 1350 to the birth of the modern line of cases beginning with Filartiga has categorically precluded federal courts form recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended Section 1350 or limited civil common law power by another statute. The courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.

- Major rule from Sosa

- Human rights movement celebrates; they fight another day

A) A series of reasons argue for judicial caution when considering the kinds of individual claims that might implement the jurisdiction conferred by the early statute.

o First, the prevailing conception of the common law has changed since 1789 in a way that counsel restraint in judicially applying internationally generated norms.

o Second, the general practice has been to look for legislative guidance before exercising innovative authority over substantive law. (Court only cited Erie tot counsel caution on the Court’s part—doesn’t directly tackle the question if they have jurisdiction.)

o Third, this Court has recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great of majority.

o Fourth, subject of those collateral consequences is itself a reason for a high bar to new causes of action of violating international law, for the potential implications for the foreign relations of the United States of recognizing such caused should make courts particularly wary of such impinging on the discretion of Legislative and Executive Branches in managing foreign affairs. Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution

o Fifth, the courts have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity.

(C): Federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when Section 1350 was enacted. And the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants

Although the Covenant (which mentions “arbitrary arrest”) does bind the United States as a matter of international law, the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligation enforceable in the federal courts. Alvarez cites little authority for the status that the rule has the status of a binding customary norm today. This lack of support is underscored by the Restatement of Foreign Relations which says in its discussion of customary international human rights law that a “state violates international law if, as a matter of state policy, it practices, encourages, or condones…prolonged arbitrary detention.” The implication from this is clear: any credible invocation of a principle against arbitrary detention that the civilized would accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority. In short, a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.

Dissenting Opinion (Scalia): I would subtract from the court’s opinion its reservation of a

discretionary power in the Federal Judiciary to create causes of action for the enforcement of international-law-based norms. After the death of the old general common law in Erie came the birth of a new and different common law pronounced by federal courts. There developed a specifically federal common law for a “few and restricted” areas in which “a federal rule of decision is necessary to protect uniquely federal interest, and those in which Congress has given the court the power to develop substantive law.” Because post-Erie federal common law is made not discovered, federal courts must possess some federal-common-law-making authority before undertaking to craft it. The general rule is that “the vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law.” This rule applies not only to application of federal common law that would displace a state rule, but also to application that simply created a private cause of action under a federal statute.

III: The question is not what case or congressional action prevent federal courts from applying the law of nations as part of the general common law; it is what authorizes that peculiar exception from Erie’s fundamental holding that a general common law does not exist. Post-Erie federal common lawmaking is so far removed from that general-common-law adjudication which applied the “law of nations” that it would be anachronistic to find authorization to do the former in a statutory grant of jurisdiction that was thought to enable the latter.

If the law of nations can be transformed into federal law on the basis of (1) a provision that merely grants jurisdiction combined with (2) some residual judicial power (from whence nobody knows) to create federal causes of action in cases implicating foreign relations, then a grant of federal-question jurisdiction would give rise to a power to create international-law-based federal common law just as effectively as would the ATS. This would mean that the ATS became largely superfluous as of 1875, when Congress granted general federal-question jurisdiction subject to a $500 amount-in-controversy requirement, and entirely superfluous as of 1980, when Congress eliminated the amount-in-controversy requirement.

The portion of the general common law known as the law of nations was understood to refer to the accepted practices of nations in their dealing with one another. Those practice have for the most part, if not in their entirety, been enacted into United States statutory law, so that insofar as they are concerned the demise of the general common law is consequential. The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professor and human rights advocates.

- Rather criticizing the Court for ignoring Erie, and emphasizing the difference between jurisdiction and cause of actions, Scalia could have take the position that the Court never held on the jurisdictional question and that any statements on the subject were dicta

III. Torture: An Interlude

Geneva Conventions, Common Article III

CHAPTER 1. GENERAL PROVISIONS

Article 1

The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

Article 2

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. 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, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end 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;

(d) 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.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Article 4

Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded and sick, and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict, received or interned in their territory, as well as to dead person found.

Article 5

For protected persons who have fallen into the hands of the enemy, the present Convention shall apply until their repatriation.

- On its face, Common Article III might extend to non-military actors and non-signatories

Bybee Memo; Re. Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A

- Office of Legal Counsel is the executive branch’s lawyer—counsel on the constitutionality of actions

o CIA is worried about possibility of legal challenge

- Start with “you have asked”; because it makes clear just answering what was asked; for clarity, in case of misunderstanding

- They are not binding, Why?

o Negativing criminal intent; reliance on emmo

o Illustrates good faith

o Also going to give predictions

- Memo does not, but should, include a Section VII about international response and ethics of the action

o It is used to be that interests of clients and lawyers were deeply intertwined

o Commodization of the legal expetizse; telling them what they want to hear so they return

- We conclude below that Section 2340A proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical. Those acts must be of an extreme nature to rise to the level of torture within the meaning of Section 2340A and the Convention. We further conclude that certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A’s proscription against torture. We conclude by examining possible defenses that would negate any claim that certain interrogation methods violate the statute.

- We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain that is difficult to endure

- The legislative history simply reveals that Congress intended for the statute’s definition to track the Convention’s definition of torture and the reservations, understandings, and declarations that the United States submitted with its ratification. We conclude that the statute, taken as a whole, makes plain that it prohibits only extreme acts.

- We conclude that the treaty’s text prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for "cruel, inhuman, or degrading treatment or punishment."

I. 18 U.S.C. §§ 2340-2340A

- Section 2340A makes it a criminal offense for any person "outside the United States [to] commit[] or attempt[] to commit torture."(1) Section 2340 defines the act of torture as an:act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person with his custody or physical control.

o Thus, to convict a defendant of torture, the prosecution must establish that (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant’s custody or physical control; (4) the defendant specifically intended to cause severe physical or mental pain or suffering, and (5) that the act inflicted severe physical or mental pain or suffering.

A. "Specifically Intended"

- In Ratzlaf v. United States, 510 U.S. 135, 141 (1994), the statute at issue was construed to require that the defendant act with the "specific intent to commit the crime." As a result, the defendant had to act with the express "purpose to disobey the law" in order for the mens rea element to be satisfied

- 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 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 the specific purpose of taking another’s life

- 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. While as a theoretical matter such knowledge does not constitute specific intent, juries are permitted to infer from the factual circumstances that such intent is present.

o Problem is that in most cases, the objective is to elicit information; but severe pain maybe a necessary condition

o Also, the pain is probably geared to acquiring specific information; so might be difficult to suggest it is not specific intent;

o Notice that the rules is not applied to a set of facts

- Further, 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. A good faith belief need not be a reasonable one.

- Where a defendant holds an unreasonable belief, he will confront the problem of proving to the jury that he actually held that belief.

o As the Supreme Court noted in Cheek, "the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury ... will find that the Government has carried its burden of proving" intent. A jury will be permitted to infer that the defendant held the requisite specific intent. As a matter of proof, therefore, a good faith defense will prove more compelling when a reasonable basis exists for the defendant’s belief.

B. "Severe Pain or Suffering"

- The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering physical or mental, is insufficient to amount to torture. Instead, the text provides that pain or suffering must be "severe."

o The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture.”

o 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572 (1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ... hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure. (The dictionary definitions does not provide much support for the conclusion)

- Although these statutes address a substantially different subject from Section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that "severe pain," as used in Section 2340, must rise to a similarly high level — the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions — in order to constitute torture.

o Yoo leaps from “suggests” to “must” in the summary

o These statutes deined “emergency medical condition”

▪ Severe pain is included, not what is defined—red flag

▪ Statute has to do with providing health benefits; Congress is likely to be conservative in this domain

▪ Definition also does not fit with the ordinary meaning

C. "Severe Mental Pain or Suffering"

- In order to prove "severe mental pain or suffering," the statute requires proof of "prolonged mental harm" that was caused by or resulted from one of four enumerated acts. We consider each of these elements.

1. "Prolonged Mental Harm"

- The statute requires that the defendant specifically intend to inflict severe mental pain or suffering. Because the statute requires this mental state with respect to the infliction of severe mental pain, and because it expressly defines severe mental pain in terms of prolonged mental harm, that mental state must be present with respect to prolonged mental harm. To read the statute otherwise would read the phrase "the prolonged mental harm caused by or resulting from" out of the definition of "severe mental pain or suffering."

- A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith

o A defendant could show that he acted in good faith by taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience.

▪ Because the presence of good faith would negate the specific intent element of torture, it is a complete defense to such a charge.

2. Harm Caused by or Resulting from Predicate Acts

- Section 2340(2) sets forth four basic categories of predicate acts.

- First in the list is the "intentional infliction or threatened infliction of severe physical pain or suffering."

o This might at first appear superfluous because the statute already provides that the infliction of severe physical pain or suffering can amount to torture. This provision, however, actually captures the infliction of physical pain or suffering when the defendant inflicts physical pain or suffering with general intent rather than the specific intent that is required where severe physical pain or suffering alone is the basis for the charge.

o Additionally, the threat of inflicting such pain is a predicate act under the statute. A threat may be implicit or explicit. In criminal law, courts generally determine whether an individual’s words or actions constitute a threat by examining whether a reasonable person in the same circumstances would conclude that a threat had been made.

- Second, Section 2340(2)(B) provides that prolonged mental harm, constituting torture, can be caused by "the administration or application or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality."

o Disruption of the senses or personality alone is insufficient to fall within the scope of this subsection; instead, that disruption must be profound. By requiring that the procedures and the drugs create a profound disruption, the statute requires more than that the acts "forcibly separate" or "rend" the senses or personality. Those acts must penetrate to the core of an individual’s ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.

▪ The following examples would constitute a profound disruption of the senses or personality.

• Such an effect might be seen in a drug-induced dementia. In such a state, the individual suffers from significant memory impairment, such as the inability to retain any new information or recall information about things previously of interest to the individual.

• The onset of obsessive-compulsive disorder behaviors would rise to this level.

• Pushing someone to the brink of suicide, particularly where the person comes from a culture with strong taboos against suicide, and it is evidenced by acts of self-mutilation, would be a sufficient disruption of the personality to constitute a "profound disruption.” 

- The third predicate act, listed in Section 2340(2) is threatening a prisoner with "imminent death."

o Common law cases and legislation generally define imminence as requiring that the threat be almost immediately forthcoming.

- Fourth, if the official threatens to do anything previously described to a third party, or commits such an act against a third party, that threat or action can serve as the necessary predicate for prolonged mental harm. The statute does not require any relationship between the prisoner and the third party

3. Legislative History

- Congress criminalized this conduct to fulfill U.S. obligations under the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 (entered into force June 26, 1987), which requires signatories to "ensure that all acts of torture are offenses under its criminal law."

o The only light that the legislative history sheds reinforces what is already obvious from the texts of Section 2340 and CAT: Congress intended Section 2340’s definition of torture to track the definition set forth in CAT, as elucidated by the United States’ reservations, understandings, and declarations submitted as part of its ratification.

4. Summary

- Each component of the definition emphasizes that torture is not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result. If that pain or suffering is psychological, that suffering must result from one of the acts set forth in the statute. In addition, these acts must cause long-term mental harm.

o In short, reading the definition of torture as whole, it is plain that there term encompasses only extreme acts

II. U.N. Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.

- Like Section 2340, the pain and suffering must be severe to reach the threshold of torture. Thus, the text of CAT reinforces our reading of Section 2340 that torture must be an extreme act.

- CAT also distinguishes between torture and other acts of cruel, inhuman, or degrading treatment or punishment. CAT makes clear that torture is at the farthest end of impermissible actions, and that it is distinct and separate from the lower level of "cruel, inhuman, or degrading treatment or punishment."

- CAT defines torture as “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, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating him…

A. Ratification History

- The President being the draftsman of the treaty; Treaties are negotiated by the President in his capacity as the "sole organ of the federal government in the field of international relations."

- The Executive’s interpretation is to be accorded the greatest weight in ascertaining a treaty’s intent and meaning.

- When it submitted the Convention to the Senate, the Reagan administration took the position that CAT reached only the most heinous acts. The Reagan administration included the following understanding: “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.”

o Later, it added that it meant prohibited by the Fifth, Eighth, and Fourteenth Amendments

- ‘Torture’ is thus to be distinguished from lesser forms of cruel, inhuman, or degrading treatment or punishment, which are to be deplored and prevented, but are not so universally and categorically condemned as to warrant the severe legal consequences that the Convention provides in case of torture."

- Treatment or punishment must therefore rise to the level of action that U.S. courts have found to be in violation of the U.S. Constitution in order to constitute cruel, inhuman, or degrading treatment or punishment. That which fails to rise to this level must fail, a fortiori, to constitute torture under Section 2340. 

o Senate did not agree to this

o To be sure, it might be thought significant that the Bush administration’s language differes from the Reagan administration understanding. While it is true that there are rhetorical differences between the understandings, both administration consistently emphasize the extraordinary or extreme acts required to constitute torture. As we have seen, the Bush understanding, reaches only extreme acts. The Reagan administration’s understanding that the pain must be severe.

- The Bush understanding simply took a rather abstract concept — excruciating and agonizing mental pain — and gave it a more concrete form. Executive branch representations made to the Senate support our view that there was little difference between these two understandings and that the further definition of mental pain or suffering merely sought remove the vagueness created by concept of "agonizing and excruciating" mental pain.

o Accordingly, we believe that the two definitions submitted by the Reagan and Bush administrations had the same purpose in terms of articulating a legal standard, namely, ensuring that the prohibition against torture reaches only the most extreme acts.

- Although the ratification record, i.e., testimony, hearings, and the like, is generally not accorded great weight in interpreting treaties, authoritative statements made by representatives of the Executive Branch are accorded the most interpretive value.

- At the Senate hearing on CAT, Mark Richard, Deputy Assistant Attorney General, Criminal Division, Department of Justice, offered extensive testimony as to the meaning of torture. Echoing the analysis submitted by the Reagan administration.

o As to mental torture, Richard testified that "no international consensus had emerged [as to] what degree of mental suffering is required to constitute torture[,]" but that it was nonetheless clear that severe mental pain or suffering "does not encompass the normal legal compulsions which are properly a part of the criminal justice system[:] interrogation, incarceration, prosecution, compelled testimony against a friend, etc, — notwithstanding the fact that they may have the incidental effect of producing mental strain."

o According to Richard, CAT was intended to "condemn as torture intentional acts such as those designed to damage and destroy the human personality." Id. at 14. This description of mental suffering emphasizes the requirement that any mental harm be of significant duration and lends further support for our conclusion that mind-altering substances must

have a profoundly disruptive effect to serve as a predicate act.

III. U.S. Judicial Interpretation

- Civil suits filed under the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 note (2000), which supplies a tort remedy for victims of torture, provide insight into what acts U.S. courts would conclude constitute torture under the criminal statute.

- This definition differs from Section 2340’s definition in two respects. First, the TVPA definition contains an illustrative list of purposes for which such pain may have been inflicted. Second, the TVPA includes the phrase "arising only from or inherent in, or incidental to lawful sanctions"; by contrast, Section 2340 refers only to pain or suffering "incidental to lawful sanctions," 

- In suits brought under the TVPA, courts have not engaged in any lengthy analysis of what acts constitute torture. In part, this is due to the nature of the acts alleged. Almost all of the cases involve physical torture, some of which is of an especially cruel and even sadistic nature.

o Certain acts do, however, consistently reappear in these cases or are of such a barbaric nature, that it is likely a court would find that allegations of such treatment would constitute torture: (1) severe beatings using instruments such as iron barks {sic: bars}, truncheons, and clubs; (2) threats of imminent death, such as mock executions; (3) threats of removing extremities; (4) burning, especially burning with cigarettes; (5) electric shocks to genitalia or threats to do so; (6) rape or sexual assault, or injury to an individual’s sexual organs, or threatening to do any of these sorts of acts; and (7) forcing the prisoner to watch the torture of others.

▪ It is an open question whether waterboarding fits in (@)

- Despite the limited analysis engaged in by courts, a recent district court opinion provides some - assistance in predicting how future courts might address this issue. In Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002), the plaintiffs, Bosnian Muslims, sued a Bosnian Serb, Nikola Vuckovic, for, among other things, torture and cruel and inhumane treatment. The court described in vivid detail the treatment the plaintiffs endured.

o The court did not specify the predicate acts that caused the prolonged mental harm, it is plain that both the threat of severe physical pain and the threat of imminent death were present and persistent. The court did not, however, delve into the nature of psychological harm in reaching its conclusion. Nonetheless, the symptoms that the plaintiffs suffered and continue to suffer are worth noting as illustrative of what might in future cases be held to constitute mental harm. Mehinovic had "anxiety, flashbacks, and nightmares and has difficulty sleeping." Id. at 1334. Similarly, Bicic, "suffers from anxiety, sleeps very little, and has frequent nightmares" and experiences frustration at not being able to work due to the physical and mental pain he suffers. Id. at 1336. Hadzialijagic experienced nightmares, at times required medication to help him sleep, suffered from depression, and had become reclusive as a result of his ordeal. See id. at 1337-38. Subasic, like the others, had nightmares and flashbacks, but also suffered from nervousness, irritability, and experienced difficulty trusting people. The combined effect of these symptoms impaired Subasic’s ability to work. See id. at 1340. Each of these plaintiffs suffered from mental harm that destroyed his ability to function normally, on a daily basis, and would continue to do so into the future.

o In general, several guiding principles can be drawn from this case:

▪ First, this case illustrates that a single incident can constitute torture. We believe that had this been an isolated instance, the court’s conclusion that this act constituted torture would have been in error, because this single blow does not reach the requisite level of severity.

▪ Second, the case demonstrates that courts may be willing to find that a wide range of physical pain can rise to the necessary level of "severe pain or suffering.

IV. International Decisions

- Other Western nations have generally used a high standard in determining whether interrogation techniques violate the international prohibition on torture. In fact, these decisions have found various aggressive interrogation methods to, at worst, constitute cruel, inhuman, and degrading treatment, but not torture.

- These decisions only reinforce our view that there is a clear distinction between the two standards and that only extreme conduct, resulting in pain that is of an intensity often accompanying serious physical injury, will violate the latter.

A. European Court of Human Rights

- This convention prohibits torture, though it offers no definition of it. It also prohibits cruel, inhuman, or degrading treatment or punishment. By barring both types of acts, the European Convention implicitly distinguishes between them and further suggests that torture is a grave act beyond cruel, inhuman, or degrading treatment or punishment

- The Reagan administration relied on this case in reaching the conclusion that the term torture is reserved in international usage for "extreme, deliberate, and unusually cruel practices." 

- The European Court of Human Rights ultimately concluded in Ireland:

o Although the five techniques, as applied in combination, undoubtedly amounted to inhuman and degrading treatment, although their object was the extraction of confession, the naming of others and/or information and although they were used systematically, they did not occasion suffering of the particular intensity and cruelty implied by the word torture...

o The court reached this conclusion based on the distinction the European Convention drew between torture and cruel, inhuman, or degrading treatment or punishment. The court reasoned that by expressly distinguishing between these two categories of treatment, the European Convention sought to "attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering." According to the court, "this distinction derives principally from a difference in the intensity of the suffering inflicted." The court further noted that this distinction paralleled the one drawn in the U.N. Declaration on the Protection From Torture, which specifically defines torture as "‘an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.’”

B. Israel Supreme Court

- In sum, both the European Court on Human Rights and the Israeli Supreme Court have recognized a wide array of acts that constitute cruel, inhuman, or degrading treatment or punishment, but do not amount to torture. Thus, they appear to permit, under international law, an aggressive interpretation as to what amounts to torture, leaving that label to be applied only where extreme circumstances exist.

V. The President’s Commander-in-Chief Power

- Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign.

o As Commander-in-Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy. The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack.

o In such a case, the information gained from interrogations may prevent future attacks by foreign enemies. Any effort to apply Section 2340A in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional.

- General argument: President has constitutional power; so use constitutional avoidance canon if necessary

- Separation of powers: each branch has a certain sphere; courts should not encroach on its sphere by declaring unconstitutional statutes

B. Interpretation to Avoid Constitutional Problems

- As the Supreme Court has recognized, the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces. Because both "[t]he executive power and the command of the military and naval forces is vested in the President," the [Page 34] Supreme Court has unanimously stated that it is "the President alone [] who is constitutionally invested with the entire charge of hostile operations."

- In light of the President’s complete authority over the conduct of war, without a clear statement otherwise, we will not read a criminal statute as infringing on the President’s ultimate authority in these areas. We have long recognized, and the Supreme Court has established a canon of statutory construction that statutes are to be construed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available.

o In the area of foreign affairs, and war powers in particular, the avoidance canon has special force

- In order to respect the President’s inherent constitutional authority to manage a military campaign against al Qaeda and its allies, Section 2340A must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority.

o Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude that it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.

▪ This conclusion is not consistent with Brown v. United States; Story’s opinion explicitly, Marshall’s opinion implicitly

▪ Also you was remiss in not invoking Youngstown; Youngstown says that where president acts permitted by Congress his power is at its highest, where it acts prohibited by Congress, it is at least, and where there is no Congressional action, the area is murky

▪ Brooding Omnipresence vs. legal realist

- We believe that, if executive officials were subject to prosecution for conducting interrogations when they were carrying out the President’s Commander-in-Chief powers, "it would significantly burden and immeasurably impair the President’s ability to fulfill his constitutional duties." These constitutional principles preclude an application of Section 2340A to punish officials for aiding the President in exercising his exclusive constitutional authorities.

C. The Commander-in-Chief Power

- Although Congress may define federal crimes that the President, through the Take Care Clause, should prosecute, Congress cannot compel the President to prosecute outcomes taken pursuant to the President’s own constitutional authority. If Congress could do so, it could control the President’s authority through the manipulation of federal criminal law.

o Hamilton: It must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defence and protection of the community, in any matter essential to its efficacy.

- The decision to deploy military force in the defense of United States interests is expressly placed under Presidential authority by the Vesting Clause, U.S. Const. Art. I, § 1. cl. 1, and by the Commander-in-Chief Clause, id., § 2, cl. 1

o Article II, Section 1 makes this clear by stating that the "executive Power shall be vested in a President of the United States of America." That sweeping grant vests in the President an unenumerated "executive power" and contrasts with the specific enumeration of the powers — those "herein" — granted to Congress in Article I. The implications of constitutional text and structure are confirmed by the practical consideration that national security decisions require the unity in purpose and energy in action that characterize the Presidency rather than Congress. 

- One of the core functions of the Commander in Chief is that of capturing detaining, and interrogating members of the enemy

o It is well settled that the President may seize and detain enemy combatants, at least for the duration of the conflict, and the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength, and its plans. 

o . Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

- Assumption of Story in Brown is that Constitution is absorbed international power ]

- Yoo must think that sovereignty lies with president (not Congress); and part of his authority was to violate international law under Constitution; Congress is poerless

o Can cite Paquete Habana—president can violate international law in taking ships

o Paquete Habana cites Brown without undermining part about Congress being sovereign of law

- Yoo’s necessity argument: “The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security to the United States in situations of grave and unforeseen emergencies

o Yoo, however, is constrained in the scope fo the necessity argument because he is an originalist…and necessity doctrine is not in Constitution

o Interesting, because Yoo is trying to maximize executive power

VI. Defenses

- Even if an interrogation method, however, might arguably cross the line drawn in Section 2340, and application of the statute was not held to be an unconstitutional infringement of the President’s Commander-in-Chief authority, we believe that under the current circumstances certain justification defenses might be available that would potentially eliminate criminal liability. Standard criminal law defenses of necessity and self-defense could justify interrogation methods needed to elicit information to prevent a direct and imminent threat to the United States and its citizens.

A. Necessity

- We believe that a defense of necessity could be raised, under the current circumstances, to an allegation of a Section 2340A violation. Often referred to as the "choice of evils" defense, necessity has been defined as follows:

o Conduct that the actor believes to he necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

▪ (a)  the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

▪ (b)  neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

▪ (c)  a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

- Additional elements of the necessity defense are worth noting here.

o First, the defense is not limited to certain types of harms. Therefore, the harm inflicted by necessity may include intentional homicide, so long as the harm avoided is greater (i.e., preventing more deaths).

o Second, it must actually be the defendant’s intention to avoid the greater harm: intending to commit murder and then learning only later that the death had the fortuitous result of saving other lives will not support a necessity defense.

o Third, if the defendant reasonably believed that the lesser harm was necessary, even if, unknown to him, it was not, he may still avail himself of the defense.

o Fourth, it is for the court, and not the defendant to judge whether the harm avoided outweighed the harm done. Id. at 636. Fifth, the defendant cannot rely upon the necessity defense if a third alternative is open and known to him that will cause less harm.

- It appears to us that under the current circumstances the necessity defense could be successfully maintained in response to an allegation of a Section 2340A violation

o Under the current circumstances, a detainee may possess information that could enable the United States to prevent attacks that potentially could equal or surpass the September 11 attacks in their magnitude. Clearly, any harm that might occur during an interrogation would pale to insignificance compared to the harm avoided by preventing such an attack, which could take hundreds or thousands of lives.

- Under this calculus, two factors will help indicate when the necessity defense could appropriately be invoked.

o First, the more certain that government officials are that a particular individual has information needed to prevent an attack, the more necessary interrogation will be.

o Second, the more likely it appears to be that a terrorist attack is likely to occur, and the greater the amount of damage expected from such an attack, the more that an interrogation to get information would become necessary

▪ Weighing probabilities/ the choice of evils—This is a moral judgment contra to the Bush lawyers; moral judgments under the rubric of law

▪ Yoo is authorizing this in advance; there in charge of saying it is lawful—authorization

- Exception: The defense is available "only in situations wherein the legislature has not itself, in its criminal statute, made a determination of values." Thus, if Congress explicitly has made clear that violation of a statute cannot be outweighed by the harm avoided, courts cannot recognize the necessity defense. E.g., an abortion statute that made clear that abortions even to save the life of the mother would still be a crime; in such cases the necessity defense would be unavailable.

- How does Yoo use the Israeli case?

o Israeli ioinion necessity defense; different between justifications and necessity defense

o Israeli opinion prohibits the authorization of torture; there is no ex ante justification

o Yoo could of course respond that just like PCA, they are letting them know when necessity defense is available; moreover, someone in the institution saying it makes it more legitimate—insurance policy

B. Self-Defense

- Even if a court were to find that a violation of Section 2340A was not justified by necessity, a defendant could still appropriately raise a claim of self-defense.

- Self-defense is a common-law defense to federal criminal law offenses, and nothing in the text, structure or history of Section 2340A precludes its application to a charge of torture. In the absence of any textual provision to the contrary, we assume self-defense can be an appropriate defense to an allegation of torture.

- The doctrine of self-defense permits the use of force to prevent harm to another person; "One is justified in using reasonable force in defense of another person, even a stranger, when he reasonably believes that the other is in immediate danger of unlawful bodily harm from his adversary and that the use of such force is necessary to avoid this danger."

- First, self-defense requires that the use of force be necessary to avoid the danger of unlawful bodily harm; If he reasonably believes that the other person is about to inflict unlawful death or serious bodily harm upon another, and that it is necessary to use such force to prevent it.

o If, however, other options permit the defender to retreat safely from a confrontation without having to resort to deadly force, the use of force may not be necessary in the first place. 

- Second, self-defense requires that the defendant’s belief in the necessity of using force be reasonable. If a defendant honestly but unreasonably believed force was necessary, he will not be able to make out a successful claim of self-defense. Conversely, if a defendant reasonably believed an attack was to occur, but the facts subsequently showed no attack was threatened he may still raise self-defense.

o Some authorities, such as the Model Penal Code, even eliminate the reasonability element, and require only that the defender honestly believed — regardless of its unreasonableness — that the use of force was necessary.

- Third, many legal authorities include the requirement that a defender must reasonably believe that the unlawful violence is "imminent" before he can use force in his defense.

- Fourth, the amount of force should be proportional to the threat.

- The threat of an impending terrorist attack threatens the lives of hundreds if not thousands of American citizens. Whether such a defense will be upheld depends on the specific context within which the interrogation decision is made.

- In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack; rather, he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his membership in the terrorist organization.

- The teaching of the Supreme Court in In re Neagle; In that case, the State of California arrested and held deputy U.S. Marshal Neagle for shooting and killing the assailant of Supreme Court Justice Field. In granting the writ of habeas corpus for Neagle’s release, the Supreme Court did not rely alone upon the marshal’s right to defend another or his right to self-defense. Rather, the Court found that Neagle, as an agent of the United States and of the executive branch, was justified in the killing because, in protecting Justice Field, he was acting pursuant to the executive branch’s inherent constitutional authority to protect the United States government.

o Neagle as a federal officer not only could raise self-defense or defense of another, but also could defend his actions on the ground that he was implementing the Executive Branch’s authority to protect the United States government.

o If the right to defend the national government can be raised as a defense in an individual prosecution, as Neagle suggests, then a government defendant, acting in his official capacity, should be able to argue that any conduct that arguably violated Section 2340A was undertaken pursuant to more than just individual self-defense or defense of another.

Sec. 1003. Note: 42 USC 2000dd. Prohibition on cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States Government

(a) In general

No individual in the custody or under the physical control of the

United States Government, regardless of nationality or physical

location, shall be subject to cruel, inhuman, or degrading

treatment or punishment.(goes beyond torture)

(b) Construction

Nothing in this section shall be construed to impose any

geographical limitation on the applicability of the prohibition

against cruel, inhuman, or degrading treatment or punishment under

this section.

(c) Limitation on supersedure

The provisions of this section shall not be superseded, except by

a provision of law enacted after December 30, 2005, which

specifically repeals, modifies, or supersedes the provisions of

this section.

(d) Cruel, inhuman, or degrading treatment or punishment defined

In this section, the term "cruel, inhuman, or degrading treatment

or punishment" means the cruel, unusual, and inhumane treatment or

punishment prohibited by the Fifth, Eighth, and Fourteenth

Amendments to the Constitution of the United States, as defined in

the United States Reservations, Declarations and Understandings to

the United Nations Convention Against Torture and Other Forms of

Cruel, Inhuman or Degrading Treatment or Punishment done at New

York, December 10, 1984. (this goes no further then what Reagan understood to be the scope of the CAT)

Sec. 1004 42 USC 2000dd-1. Protection of United States Government personnel engaged in authorized interrogations

(a) Protection of United States Government personnel

In any civil action or criminal prosecution against an officer,

employee, member of the Armed Forces, or other agent of the United

States Government who is a United States person, arising out of the

officer, employee, member of the Armed Forces, or other agent's

engaging in specific operational practices, that involve detention

and interrogation of aliens who the President or his designees have

determined are believed to be engaged in or associated with

international terrorist activity that poses a serious, continuing

threat to the United States, its interests, or its allies, and that

were officially authorized and determined to be lawful at the time

that they were conducted, it shall be a defense that such officer,

employee, member of the Armed Forces, or other agent did not know

that the practices were unlawful and a person of ordinary sense and

understanding would not know the practices were unlawful. Good

faith reliance on advice of counsel should be an important factor,

among others, to consider in assessing whether a person of ordinary

sense and understanding would have known the practices to be

unlawful. Nothing in this section shall be construed to limit or

extinguish any defense or protection otherwise available to any

person or entity from suit, civil or criminal liability, or

damages, or to provide immunity from prosecution for any criminal

offense by the proper authorities.

(b) Counsel

The United States Government shall provide or employ counsel, and

pay counsel fees, court costs, bail, and other expenses incident to

the representation of an officer, employee, member of the Armed

Forces, or other agent described in subsection (a), with respect to

any civil action or criminal prosecution or investigation arising

out of practices described in that subsection, whether before

United States courts or agencies, foreign courts or agencies, or

international courts or agencies, under the same conditions, and to

the same extent, to which such services and payments are authorized

under section 1037 of title 10.

Alberto Gonzales, Senate Judiciary Committee Confirmation Hearing

- Senator Leahy: I’d like to ask you a few question about the torture memo that is dated back in August 1st, 2002, signed by…Bybee. The memo was addressed to you, it was written at your request, and it concludes—this is actually the memo—this is actually the memo here; it’s a fairly length memo—but it’s addressed a memorandum for Alberto Gonzales, counsel to the president. And it says for an act to violate the torture statute, it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death

o Gonzales is correct that OLC has responsibility to tell the president what the law means

▪ The setup of whether you agree with conclusion or not is subtle; if you agreed, do you now, if you didn’t, then you abdicated responsibility

▪ Gonzales responds with institutional role of the OLC

- Senator Leahy: The Bybee memo concludes that a president has authority as commander in chief to override domestic and international law as prohibiting torture and can immunize from prosecution anyone—anyone—who commits torture under his act; whether legal or not, he can immunize them.

o Gonzales responds that the hypothetical will never happen; but that he would have to give thought to whether president should ignore it;

▪ He does not want to foreclose the view of commander of chief power; it was the backup theory for why administration (unbeknownst to anyone) was acting in a manner that contravened the antiwiretapping statute

- Senator Hatch: Isnt;t true that the Feb. 7th memo actually makes clear that the Geneva Conventions do apply in both Afghanistan and Iraq

o Gonzo responds that the way the Taliban fought means they forfeited their right to enjoy prisoner of war legal protection

o Presidential memo “forces”—UCMJ only applies to militart

o Gonzo was careful to switch from everyone should be treated to the military detainees would be treated humanely

- Gonzales and the not my role defense: Again it was not my role to direct that we should use certain kinds of methods of receiving information from terrorist. That was a decision made by the operational agencies, and they said we need to try to get this information what is lawful, and we looked to the DOJ to tell us what would be, in fact, within the law.

o Institutional competence argument—I was just the middleman

o Nobody asked the questions about ethics or efficacy of tactics→ not our job, just passing the buck

o The direct effect of this buck passing is that nobody asked the question

▪ No moral philosopher: we’re bound by those legal frameworks; the constitution, international law

• We’re rule of law country, so lawyers have to be in the room; they have to be making the decisions in a system where they claim to be making the decision in a system where they claim to be making final decision on legitimacy of state actions

o Structures themselves embody discretion and morality and ethics

Michael Mukasey, Senate Confirmation Hearing

- Senator Leahy: Do you belief I the commander and chief override and immunize acts of torture?

o Mukasey responds evasively, calls it a mistake unnecessary

▪ Probably doesn’t want to create a liability fro reliance and production of the memo

- Senator Specter: McCain Torture Act, is the president bound by it:

o Would the follow the statute; as opposed to Article II power

- Senator Graham: Would water-boarding induced evidence admissible in military trials?

o Mukasey responds that he does not know what is involved with waterboarding

- Senator Durbin: Do you believe that Hamdan means that Article III applies?

o Mukasey says it does, just procedurally (point will be elaborated in section IV)

▪ Mukasey: “I can’t, as I sit here, recall precisely what part of Article 3 of the Supreme Court found applicable. I thought they were talking about the need for a trial and for an opportunity for a detainee to get a hearing. I did not think that that concerned interrogation techniques.”

- Senator Durbin: constitutionality of waterboarding

o Mukasey doesn’t want to allow liability to those who implemented it

o He repeated mentions of Constitution; point is that the 2340 interpretation by Reagan doesn’t go beyond the Constitution

- In his letter to the Committee

o “In the absence of legislation expressly banning certain interrogation techniques at all circumstances, one must consider whether a particular technique complies with relevant legal standards”

- Intimating that UCMJ does not apply to CIA, so you need other authority to dind their actions illegal

o “While we have identified various disagreements with the August 2002 Memo we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”

- Echoes the Goldsmith memo that essentially insulated anyone who relied on the prior opinions

PCAT v. The State of Israel and The General Security Service

Facts: The GSS is the main body responsible for fighting terrorism in Israel. In order to fulfill this function, the GSS also investigates those suspected of hostile terrorist activities. The purpose of these interrogations includes the gathering of information regarding terrorist in order to prevent them from carrying out terrorist attacks. In the context of these interrogations, GSS investigators also make use of physical means. GSS issues directives authorize investigators to apply physical means against those undergoing interrogation, including shaking the suspect and placing him in the “Shabach” position. These methods are permitted since they are seen as immediately necessary to save human lives.

Issue: Are these interrogation practices legal?

Holding: Defense of necessity provides that “A person will not bear criminal liability for committing any act immediately necessary for the purpose of saving the life, liberty, body or property, of either himself or his fellow person from substantial danger of serious harm, in response to particular circumstances during a specific time, and absent alternative means for avoiding the harm. The authority to establish directives respecting the use of physical means during the course of a GSS interrogation cannot be implied from the “necessity defense.” The “necessity defense” does not constitute a source of authority, which would allow GSS investigators to make use physical means during the course of interrogations. The defense is an improvised reaction to an unpredictable event.

The necessity can not authorize the use of physical means to allow investigators to execute their duties in circumstances of necessity. The very fact that a particular act does not constitute a criminal act-due to the “necessity defense”—does not in itself authorize the act and the concomitant infringement of human rights. The rule of law, both as a formal and as a substantive principle, requires that an infringement of human rights by prescribed by statute. The lifting of criminal responsibility does not imply authorization to infringe a human right. If the state wishes to enable GSS investigators to utilize physical means in interrogations it must enact legislation for this purpose.

IV. War & Exception

- Two question about the Constitution: 1) did it provide justice (No. Slavery), 2) Did it hold the union together (answered by the materials in this section

- Lieber was a German who participated in the 19th Century Revolution; he came to Boston and put together the Encyclopedia Amerciana

o He later moved to South Carolina but fled during the civil war; pleaded to participate in the war

- Three Levels of Analysis

o Logical Doctrine

o Fit in with Precedent

o Is it good

The Lieber Code: Excepts

Martial Law

- 1. Martial law is the immediate and direct effect and consequence of occupation or conquest.

- 5. To save the country is paramount to all other considerations

o This one is central to everything we talk about today; but paramount over what?

o Paramount could just refer to the considerations, not the paramount over law

- 8. Consuls, among American and European nations, are not diplomatic agents. Nevertheless, their offices and persons will be subjected to martial law in cases of urgent necessity only; their property and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint.

- 11. The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace, and avowedly intended to remain in force in case of war between the contracting powers.

o It disclaims all extortions and other transactions for individual gain; all acts of private revenge, or connivance at such acts.

o Offenses to the contrary shall be severely punished, and especially so if committed by officers.

- 13. Military jurisdiction is of two kinds: First, that which is conferred and defined by statute; second, that which is derived from the common law of war

o In the armies of the United States the first is exercised by courts-martial; while cases which do not come within the Rules and Articles of War, or the jurisdiction conferred by statute on courts-martial, are tried by military commissions.

- Question of what kind of law is international law of war?

Military Necessity

- 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

o Implication of “lawful” is that law of war limits military necessity

- 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor… Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God

o Don’t expect last sentence, it sounds like a proposition, not an order

- 16. Military Necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor torture to extort confessions. of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

- 19. Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity.

- 20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war.

- 22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.

- 25. In modern regular wars of the Europeans and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions.

- 27. The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.

- 28. Retaliation shall only be resorted to after careful inquiry into the real occurrence and the character of the misdeeds that may demand retribution.

- 29. Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace; The more vigorously wars are pursued the better it is for humanity. Sharp wars are brief.

o Total War→Faster War (often used to justify Hiroshiam and Nagasaki)

o Lieber didn’t say total because it is limited

o “Total War” from von Clausewitz

▪ “On War,” “War is a continuation of politics by other means”

▪ Logic of war necessarily leads to total war

- 30. War has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor.

- Why does Lieber speak in terms of propositions, not orders→ trying to convince rather than proscribe?

o Because it had very little effect, no secondary sources indicate that Lieber had influential impact; trying convince people that this is law is all he had

▪ Similar to day: necessity of fighting war

▪ No high court adjudicating; no general entity with general authority, althogu we have ICTV, ICTR, ICC

• ICC: 100+ countries signed Rome statute creates entity that can issue indictments, have jury trials on war crimes (recently indicted Sudances president, although Sudan didn’t sign, Security Council can confer jurisdictions

• ICC is attempt to deal with problem of adjudication

• An argument could be made under customary international law that countries are bound and consented ot jurisdictions

• Why is so hard to prosecute? War appears to be outside the law

Prisoner of War

- A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation.

o  All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country; all those who are attached to the Army for its efficiency and promote directly the object of the war

- 50. These include citizens who accompany an army for whatever purpose, such as sutiers, editors, or reports of journals, or contractors; the monarch and members of the hostile reigning family, male or female, the chief, and the chief officers of the hostile government, its diplomatic agents, and all persons who are of particular and singular and benefit to the hostile army or its government

- 53. The enemy's chaplains, officers of the medical staff, apothecaries, hospital nurses, and servants, if they fall into the hands of the American Army, are not prisoners of war, unless the commander has reasons to retain them.

- 56. A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.

- 59. A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was captured, and for which he has not been punished by his own authorities.

o   All prisoners of war are liable to the infliction of retaliatory measures.

- 65. The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war.

- 68. Modern wars are not internecine wars, in which the killing of the enemy is the object. The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war.

- 70. The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war.

- 77. A prisoner of war who escapes may be shot, or otherwise killed, in his flight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape.

o If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished, even with death; and capital punishment may also be inflicted upon prisoners of war discovered to have plotted rebellion against the authorities of the captors, whether in union with fellow-prisoners or other persons.

- 80. Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information, or to punish them for having given false information.

Insurrection---Civil War—Rebellion

- 152. When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of them, as an independent or sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgment of the revolted people as an independent power.

- 153. It is victory in the field that ends the strife and settles the future relations between the contending parties.

- 156. Common justice and plain expediency require that the military commander protect the manifestly loyal citizens in revolted territories against the hardships of the war as much as the common misfortune of all war admits.

o The commander will throw the burden of the war, as much as lies within his power, on the disloyal citizens, of the revolted portion or province, subjecting them to a stricter police than the non-combatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government.

o Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government have the right to decide.

Abraham Lincoln, Letter to Albert Hodges

- I am naturally anti-slavery. If slavery is not wrong, nothing is wrong.

- I never understood that the Presidency conferred upon me an unrestricted right to act official upon this judgment and feeling.

- I understood, too, that in ordinary civil administration this oath even forbade me to practically indulge my primary abstract judgment on the moral question of slavery. I had publicly declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery.

- By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.

o Schmittean terms: outside bounds or of normalcy; and he as executive decides

o He is the doctor who decides on the amputations

- When, in March, and May, and July 1862 I made earnest, and successive appeals to the border states to favor compensated emancipation, I believed the indispensable necessity for military emancipation, and arming the blacks would come, unless averted by that measure. They declined the proposition; and I was, in my best judgment, driven to the alternative of either surrendering the Union, and with it, the Constitution, or of laying strong hand upon the colored element. I chose the latter. In choosing it, I hoped for greater gain than loss; but of this, I was not entirely confident. More than a year of trial now shows no loss by it in our foreign relations, none in our home popular sentiment, none in our white military force, — no loss by it any how or any where. On the contrary, it shows a gain of quite a hundred and thirty thousand soldiers, seamen and laborers. These are palpable facts, about which, as facts, there can be no caviling. We have the men; and we could not have had them without the measure.

o Lincoln believed in general way that there is property right to slavery

o Lincoln apologetic; justifying his position on the necessity of saving the nation

Abraham Lincoln, Message to Congress in Special Session

- Should look at this in juxtaposition to Ex parte Merryman

- Simultaneously, and in connection, with all this, the purpose to sever the Federal Union, was openly avowed. In accordance with this purpose, an ordinance had been adopted in each of these States, declaring the States, respectively, to be separated from the National Union. A formula for instituting a combined government of these states had been promulgated; and this illegal organization, in the character of confederate States was already invoking recognition, aid, and intervention, from Foreign Powers.

- Indispensable Choice: The policy chosen looked to the exhaustion of all peaceful measures, before a resort to any stronger ones. It sought only to hold the public places and property, not already wrested from the Government, and to collect the revenue; relying for the rest, on time, discussion, and the ballot-box.

- It was believed, however, that to so abandon that position, under the circumstances, would be utterly ruinous; that the necessity under which it was to be done, would not be fully understood---that, by many, it would be construed as a part of a voluntary policy---that, at home, it would discourage the friends of the Union, embolden its adversaries, and go far to insure to the latter, a recognition abroad---that, in fact, it would be our national destruction consummated.

o In precaution against such a conjuncture, the government had, a few days before, commenced preparing an expedition, as well adapted as might be, to relieve Fort Sumter, which expedition was intended to be ultimately used, or not, according to circumstances. The strongest anticipated case, for using it, was now presented; and it was resolved to send it forward. As had been intended, in this contingency, it was also resolved to notify the Governor of South Carolina, that he might except an attempt would be made to provision the Fort; and that, if the attempt should not be resisted, there would be no effort to throw in men, arms, or ammunition, without further notice, or in case of an attack upon the Fort. This notice was accordingly given; whereupon the Fort was attacked, and bombarded to its fall, without even awaiting the arrival of the provisioning expedition.

- It is thus seen that the assault upon, and reduction of, Fort Sumter, was, in no sense, a matter of self defence on the part of the assailants.

o They knew that this Government desired to keep the garrison in the Fort, not to assail them, but merely to maintain visible possession, and thus to preserve the Union from actual, and immediate

o dissolution---trusting, as herein-before stated, to time, discussion, and the ballot-box, for final adjustment; and they assailed, and reduced the Fort, for precisely the reverse object---to drive out the visible authority of the Federal Union, and thus force it to immediate dissolution.

o In this act, discarding all else, they have forced upon the country, the distinct issue: "Immediate dissolution, or blood.’’

- "Is there, in all republics, this inherent, and fatal weakness?’’ "Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?

o So viewing the issue, no choice was left but to call out the war power of the Government; and so to resist force, employed for its destruction, by force, for its preservation.

- The people of Virginia have thus allowed this giant insurrection to make its nest within her borders; and this government has no choice left but to deal with it, where it finds it. And it has the less regret, as the loyal citizens have, in due form, claimed its protection.

- border States engaged in "armed neutrality’’---that is, an arming of those states to prevent the Union forces passing one way, or the disunion, the other, over their soil.

o It recognizes no fidelity to the Constitution, no obligation to maintain the Union; and while(very many who have favored it are, doubtless, loyal citizens, it is, nevertheless, treason in effect.

- These measures, whether strictly legal or not, were ventured upon, under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress.

o Retroactive validation for his actions

- The whole of laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen’s liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the official oath be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?

o “Single law” language trivializes habeas

o Lincoln is implying that he violated it, but that he as president had authority to suspend writ under Rebellion

▪ Taney’s refutation is that it is clearly legislative power (textual argument)

o Argument: Can’t be a government of limited powers without writ of habeas corpus→ all laws have suspend without habeas corpus→ no rule of law without habeas corpus

o It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself, is silent as to which, or who, is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together; the very assembling of which might be prevented, as was intended in this case, by the rebellion.

- It is now recommended that you give the legal means for making this contest a short, and a decisive one; that you place at the control of the government, for the work, at least four hundred thousand men, and four hundred millions of dollars. That number of men is about one tenth of those of proper ages within the regions where, apparently, all are willing to engage; and the sum is less than a twenty third part of the money value owned by the men who seem ready to devote the whole… Surely each man has as strong a motive now, to preserve our liberties, as each had then, to establish them.

- Characterizing the rebellion: The sophism itself is, that any state of the Union may, consistently with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union, without the consent of the Union, or of any other state. The little disguise that the supposed right is to be exercised only for just cause, themselves to be the sole judge of its justice, is too thin to merit any notice.

o With rebellion thus sugar-coated, they have been drugging the public mind of their section for more than thirty years; and, until at length, they have brought many good men to a willingness to take up arms against the government the day after some assemblage of men have enacted the farcical pretence of taking their State out of the Union, who could have been brought to no such thing the day before.

o Therein the "United Colonies’’ were declared to be "Free and Independent States’’; but, even then, the object plainly was not to declare their independence of one another, or of the Union; but directly the contrary, as their mutual pledge, and their mutual action, before, at the time, and afterwards, abundantly show. The express plighting of faith, by each and all of the original thirteen, in the Articles of Confederation, two years later, that the Union shall be perpetual, is most conclusive. Having never been States, either in substance, or in name, outside of the Union, whence this magical omnipotence of "State rights,’’ asserting a claim of power to lawfully destroy the Union itself?

o The States have their status IN the Union, and they have no other legal status. If they break from this, they can only do so against law, and by revolution. The Union, and not themselves separately, procured their independence, and their liberty.

- What is now combatted, is the position that secession is consistent with the Constitution---is lawful, and peaceful. It is not contended that there is any express law for it; and nothing should ever be implied as law, which leads to unjust, or absurd consequences.

o Again, if one State may secede, so may another; and when all shall have seceded, none is left to pay the debts. Is this quite just to creditors? Did we notify them of this sage view of ours, when we borrowed their money? If we now recognize this doctrine, by allowing the seceders to go in peace, it is difficult to see what we can do, if others choose to go, or to extort terms upon which they will promise to remain.

Abraham Lincoln, Letter to Erastus Corning and Others

- Congress has produced resolution that argue that certain military arrests and proceedings following them for which I am ultimately responsible, are unconstitutional. I think they are not. The resolutions quote from the constitution, the definition of treason; and also the limiting safe-guards and guarantees therein provided for the citizen, on trials for treason, and on his being held to answer for capital or otherwise infamous crimes, and, in criminal prosecutions, his right to a speedy and public trial by an impartial jury.

o Would not the demonstration have been better, if it could have been truly said that these safe-guards had been adopted, and applied during the civil wars and during our revolution, instead of after the one, and at the close of the other. I too am devotedly for them after civil war, and before civil war, and at all times "except when, in cases of Rebellion or Invasion, the public Safety may require" their suspension

- The arrests were made on totally different grounds, and the proceedings following, accorded with the grounds of the arrests. Let us consider the real case with which we are dealing, and apply to it the parts of the constitution plainly made for such cases.

o It undoubtedly was a well pondered reliance with them that in their own unrestricted effort to destroy Union, constitution, and law, all together, the government would, in great degree, be restrained by the same constitution and law, from arresting their progress. Their sympathizers pervaded all departments of the government, and nearly all communities of the people. From this material, under cover of "Liberty of speech" "Liberty of the press" and "Habeas corpus" they hoped to keep on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause in a thousand ways. They knew that in times such as they were inaugerating, by the constitution itself, the "Habeas corpus" might be suspended; but they also knew they had friends who would make a question as to who was to suspend it; meanwhile their spies and others might remain at large to help on their cause. Or if, as has happened, the executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause.

o Ours is a case of Rebellion—so called by the resolutions before me—in fact, a clear, flagrant, and gigantic case of Rebellion; and the provision of the constitution that "The previlege of the writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public Safety may require it" is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the constitution that ordinary courts of justice are inadequate to "cases of Rebellion"—attests their purpose that in such cases, men may be held in custody whom the courts acting on ordinary rules, would discharge.

o Indeed, arrests by process of courts, and arrests in cases of rebellion, do not proceed altogether upon the same basis… In the latter case, arrests are made, not so much for what has been done, as for what probably would be done. The latter is more for the preventive, and less for the vindictive, than the former.

- Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.

o Crime of goading some into desertion is just as bad as deserting; deserter is impressionable and will be sentenced to death

- That the constitution is not in it’s application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.

- In comparison to Jackson’s action shortly after the treaty of peace that concluded the battle of New Orleans:

o It may be remarked: First, that we had the same constitution then, as now. Secondly, that we then had a case of Invasion, and that now we have a case of Rebellion, and: Thirdly, that the permanent right of the people to public discussion, the liberty of speech and the press, the trial by jury, the law of evidence, and the Habeas Corpus, suffered no detriment whatever by that conduct of Gen. Jackson, or it’s subsequent approval by the American congress.

- I hold that, as a general rule, the commander in the field is the better judge of the necessity in any particular case.

- Residual power: The states have the right to secede because they entered the union as sovereigns

o Licoln: people are sovereigns who organized themselves in the states

▪ This is why he goes back to the question of what the people in the South the think about secession

• Constitutional is elliptical is on subject: “We the people of the United States”

Ex parte Merryman (1861)

Facts: The petitioner resides in Maryland, in Baltimore country; while peaceably in his own house, with is family, it was at two o’clock on the morning of the 25th of May 1861, entered by an armed force, professing to act under military orders; he was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority. The defendant was arrested on general charges of reason and rebellion without proof, and without giving the names of the witness, or specifying the acts which, in the judgment of the military officer, constituted these crimes. The military officer refused to obey the writ of habeas corpus, upon the ground that he is duly authorized by the president to suspend it.

Issue: Does the president has the authority to suspend the writ?

Holding: The 9th section of the first article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department. It is true Congress is of necessity, the judge whether the public safety does or does not require it; and their judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise, before they give the government of the United States such power over the liberty of a citizen. (response to language in passive voice)

- Argument: Habeas Corpus has the language of warfare; executive power

- Counter-argument: Congress has power to declare war

It is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would be undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power.

The only power, therefore, which the president possess where the ‘life, liberty or property’ of a private citizen is concerned is the power and duty prescribed in the third section of the second article which requires ‘that he shall take care that the law shall be faithfully executed. But in exercising this power, he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments. With such provisions in the constitution, expressed in language too clear to be misunderstood by any one. There is no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen.

Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self-defense in times of tumult and danger. The government of the United States is one of delegated and limited powers; it derives its existence and authority altogether from the constitution, and neither of its branches, executive, legislative, or judicial, can exercise any of the powers of government beyond those specified and granted; for tenth article of the amendments to the constitution, in express terms, provides that ‘the powers not delegated to the United States by the constitution, nor prohibited by it to the states, respectively or to the people.”

The right of the subject to the benefit of the writ of habeas corpus, it must be recollected, was one of the great points in controversy, during the long struggle in England between arbitrary government and free institutions, and must therefore have strongly attracted the attention of the statesmen engaged in framing a new and, as they supposed, a freer government than the one which they had thrown off by the revolution.

Such is the case now before me, and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found. I have exercise all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome.

Ex Parte Milligan (1866)

Facts: Milligan is a citizen of the US, has lived for twenty years in Southern Indiana; and, at the time of the grievance complained of, was not, and never had been in the military or naval service of the US. On Oct. 5, 1864 he was arrested by the commanding the military district of Indiana; and has ever since been kept in close confinement. He was brought before a military commission sixteen days later, and was tried on certain charges and specification, found guilty, and sentenced to be hanged. Milligan filled a habeas corpus motion that the military had no jurisdiction because he was a citizen and was never a resident of any of the belligerent states of the rebellion. Charges of treason. Grand jury met, probably local allies to make sure no true bill was issued.

Issue: Upon the facts stated in Milligan’s petition, and the exhibits filed, had the military commission mentioned in it jurisdiction, legally, to try and sentence? Did commission have lawful authority to hear his case? (No.)

Holding: (Hinting that this is not the decision that would have been reached during wartime): Now that the public safety is assured, this question, as well as all other, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach this investigation of this case, fully sensible of the magnitude of the inquiry and the necessity of full and cautious deliberation. The decision of this question does not depend on argument or judicial precedents, numerous highly illustrative as they are. These precedents inform us of the extent of that struggle to preserve liberty and to relieve those in civil life from military trials.

Every trial involves the exercise of judicial power; and from what source did not military commission that tried him derive their authority? Certainly no part of judicial power of the country was conferred on them; because the Constitution expressly vests it ‘in one supreme court and such inferior courts as the Congress may from time to time ordain and establish,’ and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the law; and there is ‘no unwritten criminal code to which resort can be has as a source of jurisdiction.’

It is said that the jurisdiction is complete under the ‘law and usages of war.’ They can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. No usage of war could sanction a military trial there for any offence whatever of a citizen in civil life, in nowise connected with the military service.

- Holding: If the courts are open, not military commission has jurisdiction to put civilian on military trial

(Response to necessity argument): Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.

- Essentially, the argument is that Constitution already contains within it everything that is necessary to preserve the union

- Never need to bring necessity outside of Constitution; contains implicit provision to do this

o Court is insisting that the Constitution was not violated during the war; the Court is going to pretend that the Constitution was not violated to restore us to the ordinary rule of law

No reason of necessity could be urged against it; because Congress had declared penalties against the offences charged, provided fro their punishment, and directed that court to hear and determine them. The government had no right to conclude that Milligan, if guilty, would not receive in that court merited punishment; for its records disclose that it was constantly engaged in the trial of similar offenses, and was never interrupted in its administration of criminal justice.

Another guarantee of freedom was broken when Milligan was denied a trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity.

The proposition is that in a time of war the command of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority and cannot be restrained, excerpt superior officer of the President of the United States. The statement of this proposition shows its importance; for if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis destroys every guarantee of the Constitution.

The Constitution goes no further than the suspension clause. It does not say after a writ of habeas corpus is denied a citizen, that shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it.

Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invastion real, such as effectually closes the courts and deposes the civil administration. It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no which to convict, except on sufficient legal evidence, surely and ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.

- Implication is that location determines the case; not status of Defendant (other than his citizenship)

- This is probably a response to a necessity argument by the government

There are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.

- Point: notice the attempt to the close the exception which is always an option because people rarely say they’re violating the Constitution during the period of the exception

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty

Schmitt criticized Weimar constitution’s inability to handle

- A jurisprudence concerned with ordinary day to day questions has practically no interest in the concept of sovereignty. Only the recognizable is its normal concern; everything else is a “disturbance.”

- Such a jurisprudence confronts the extreme case disconcertedly, for not every extraordinary measure, not every police emergency measure or emergency decree, is necessarily an exception. What characterizes an exception is principally unlimited authority, which means the suspension of the entire existing order. In such a situation it is clear that the state remains, whereas law recedes.

o Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it not of the ordinary kind.

- The state suspends the law in the exception on the basis of its right of self-preservation, as one would say.

- Unlike the normal situation, when the autonomous moment of the decision to recedes to a minimum, the norm is destroyed in the exception. The exception remains, nevertheless, accessible to jurisprudence because both elements, the norm as well as the decisions, remain within the framework of the juristic.

- The exception appears in its absolute form when a situation in which legal prescriptions can be valid must first be brought about. Every general norm demands a normal, everyday frame of life to which it can be factually applied and which is subjected to its regulations. There exists no norm that is applicable to chaos.

- All law is “situational law”; the sovereign has the monopoly over the last decision; therein resides the essence of the state’s sovereignty, which must be juristically defined correctly, not as the monopoly to coerce or to rule, but as the monopoly to decide

o 1. Rule of law exists in a norm of a state of affairs

o 2. No rule of law in state of chaos

o Not a sociological question, says Schmitt

o Sociological question who has authority during crisis

- Taney: Illuminates the decision in absolute parity, defines scope of legal prescriptions

o The true sovereign is he who decides on the exception? (lawyer question, who decides)

▪ Who decides question is the very meaning of who’s in charge

- Schmitt might respond to Courtt’s rationale Milligan that exception “need be based on the law”

o The way we know that Lincoln violated Constitution is because he decided on exception

- Under this view, Lincoln had the authority to be sovereign

o But he went to Congress (does that limit has sovereign )

o This matters because the former position means that Lincoln did not usurp the power, he has the power

▪ Sovereignty does not lie in the people, lies in the unitary executive, as in most other countries

- Grand themes

o What is sovereignty

o Where it lies

o Does war constitutes exception of rule law

o Does it make sense to talk about rule of law

o Civil war constitute an exception

Korematsu v. United States (1944)

Facts: Petitioner an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a military area, contrary to a civilian exclusion order, which directed that after a certain date, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States.

Issue: Was it within the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did?

Holding: Exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. We cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not precisely and quickly ascertained. Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.

- Military necessity argument

o Cites the sentence in Roberts report

▪ Essentially, the institutional competence argument—the court can’t judge

We hold the exclusion order as of the time it was made and when the petitioner violated it. Hardships are part of war, and war is an aggregation of hardship. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direct emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with threatened danger.

The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restrain whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military situation demanded that all citizens Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitability it must-determined that they should have the power to do just this.

- Court goes through pains to say that hostility to him is not racial prejudice; must give different justification (basis for the requirement of discriminatory animus in equal-protection)

Concurring Opinion (Frankfurter): I am unable to see how the legal consideration that led to the decision in Hirabayashi fail to sustain the military order which made the conduct now in controversy a crime. I join in the opinion of the Court, but should like to add a few words of my own.

(1)The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war as much part of the Constitution as provision looking to a nation at peace. The validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as “an unconstitutional order” is to suffuse a part of the Constitution with an atmosphere of unconstitutionality.

o (1) More like Milligan

▪ Necessity makes it constitutional, military has the authority

▪ “Constitution gives power to wage war successfully”

▪ “If a military order such as that under review does not transcend the means appropriate for conducting war”

o (2) Angry with Jackson, his exception would swallow the rule

▪ To talk about a military order that expresses an allowable judgment of war nees by those entrusted with duty of conducting war as “an unconstitutional order

▪ Saying it is unconstitutional makes it ambiguous

To recognize that military order are ‘reasonably expedient military precautions’ in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within limits of the constitutional power to regulate commerce. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

Dissenting Opinion (Roberts): This is a case of a convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. I need hardly labor the conclusion that Constitutional rights have been violated.

The opinion of the court, in my judgment, erroneously divides that which is a single and indivisible and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home, by refusing voluntarily to leave and, so, knowingly and intentionally, defying the order and the Act of Congress.

o Not easy because it was his report that was being cited; also the curfew

o Endo: she is loyal citizen; no evidence to the contrary, let her go

▪ This was a companion case (why is Korematsu important)

Dissenting Opinion (Murphy): This exclusion of “all person of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial ought not to be approved. Such exclusion goes over “the vey bring of constitutional power” and falls into the ugly abyss of racism. It is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.

Being an obvious racial discrimination, the order deprives of all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. Yet no reasonable relation to an ‘immediate, imminent, and impending’ public danger is evident to support his racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law. But the exclusion, either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit to sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshaled in support of such an assumption. I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life .

o Murphy illustrates that racial discrimination was present; that is ridiculous to suggest the basis of detention was hostility

▪ Why did so much time elapse between these

o Citizen are entitled to equal treatment

Dissenting Opinion (Jackson):It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life a community in defense in carryingout a military program; he is not making law in the sense the courts know the term. He issues order, and they may have a certain authority as military commands, although they may very bad as constitutional law. In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.

o Jackson was the author of Eisentrager

o Dissents from the conviction

o Military can do whatever it wants; not susceptible to legal judgments (institutional competence)

▪ Interesting given his actions during the Nuremberg trial

A military order, however unconstitutional, ins not apt to last longer, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke eif all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit or its logic.”

o Court ruling places them on slippery slop

▪ What courts do lasts, lies as a loaded weapon

▪ Jackson’s position allows for a smooth transition back to rule of law, like Milligan, but by almost conceding that it was constitutional

▪ Military action is right, but unconstitutional

I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. The military reasonableness of these orders can only be determined by military superiors.

Ex Parte Endo (1944)

Facts: Endo was an American citizen of Japanese ancestry. She was evacuated from Sacramento, CA, in 1942, pursuant to certain military orders wand was removed to a relocation center. The program of the War Relocation included the continued detention of the disloyal and so far as possible the relocation of the loyal in selected communities. In connection with this, the Authority established a procedure for obtaining leave from Relocation Centers. First, and application for leave clearance is required. An investigation of the applicant is made for the purpose of ascertaining ‘the probable effect upon the war program and upon the public peace and security of issuing indefinite leave’ to the applicant. Indefinite leave may have been granted under 14 specified conditions. Endo made application for leave clearance, but made no application of indefinite leave. In 1942, she filed a petition for a writ of habeas corpus alleging that she was a loyal and law-abiding citizen of the US, that no charge has been made against her, that is she is being unlawfully detained, and that she is confined in the Relocation Center under armed guard and held there against her will.

Issue: Is Endo’s detention lawful?

Holding: No question of military law are involved: the War Relocation Authority, not by the military. Moreover, the evacuation program was not left exclusively to the military the Authority was given a large measure of responsibility for its execution and Congress made its enforcement subject to civil penalties.

It must be assumed that the Chief Executive and members of Congress, as well as the courts, are sensitive to and respectful of the liberties of the citizen. In interpreting war-time measure we must assume that their purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of the war. The necessity for the legislation arose from the fact that the safe conduct of the war requires the fullest possible protection against either espionage or sabotage, to national defense material, national defense premises, and national defense utilities. The purpose and the objective of the Act and of these orders are plain. Their single aim was the protection of the war effort against espionage and sabotage. It is in the light of that one objective that the powers conferred by the orders must be construed.

Neither of Act nor the executive orders use the language of detention. The Act says that no one shall ‘enter, remain in leave, or commit any act’ in the prescribed military areas contrary to the applicable restrictions subjects the right of any person ‘to enter, remain in, or leave’ those prescribed areas to such restrictions as the military may impose. Moreover, unlike the case of curfew regulations, the legislative history of the Act is silent on detention. And that silence may have special significance in view of this fact that detention in Relocation Centers was no part of the original program of evacuation but developed later to meet what seemed to the officials in charged to be mounting hostility to the evacuees on the part of the communities where they sought to go.

We may assume for the purposes of this case that initial detention in Relocation Centers was authorized. But we stress the silence of the legislative history and of the Act and the Executive Orders on the power to detain to emphasize that any such authority which exists must be implied. If there is to be the greatest possible accommodation of the liberties of the citizens with this was measure, any such implied power must be narrowly confined to the precise purpose of the evacuation program. When the power to detain is derived from the power to protect the war effort against espionage and sabotage, detention which has no relationship to that objective is unauthorized.

The authority to detain a citizen or to grant him a conditional release as protection against espionage or sabotage is exhausted at least when his loyalty is conceded. If we held that the authority to detain continued thereafter, we would transform and espionage or sabotage measure into something else. Community hostility even to loyal evacuees may have been (and perhaps still is) a serious problem. But if the authority for their supervision is to be sought on that ground, the legislative and the executive orders offer no support. And none is other advanced. To read them that broadly would be to assume that the Congress and the President intended that this discriminatory action should be taken against these people wholly on account of their ancestry even though government conceded their loyalty to this country. We cannot make such assumption.

Ex Parte Quirin (1942)

Facts: All the petitioners were born in Germany and all have lived in the United States. All returned to Germany between 1933 and 1941. All except Haupt are admittedly citizens of the German Reich After the declaration of war between the US and Germany, they received training at a sabotage school in Germany, where they were instructed in the use explosive and in the methods of secret writing. Three of the petitioners later boarded a German submarine which proceeded across the Atlantic to Long Island carrying with them as supply of explosives, fuses and incendiary and timing devices. While landing they wore German Marine Infantry uniforms or parts of uniforms. Immediately after landing they buried their uniforms and the other articles mentioned and proceeded in civilian dress to NYC. The remaining four petitioners boarded another German sub that took them to Florida wearing caps of the German Marine Infantry and carrying with them a supply of explosives, fuses, and incendiary and timing devices. They had all received instructions in Germany to destroy war industries and war facilities in the US, for which they or relative received payment from the German government. All petitioners were taken into custody in NYC. The President appointed a Military Commission and directed it to try petitioner for offense against the law of war and the Articles of War, and prescribed regulation for the procedure on the trial and for review of the record of the trial and of any judgment or sentence of the Commission. He also issued a proclamation that petitioners should be denied access to the courts. The petitioners were charged with violations of the law of war, relieving or attempting relieve, or corresponding with or giving intelligence to the enemy, spying, and conspiracy to commit the aforementioned offenses.

Issue: The question for decision is whether the detention of petitioners for trial by Military Commission, appointed by order of the president, on charges preferred against them purporting to set out their violations of the law and war and the Articles of War, is in conformity to the law and the US Constitution?

Holding:

The Constitution invests the President as Commander in Chief with the power to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those which pertain to the conduct of war. By the Articles of War Congress recognized the ‘military commission’ appointed by military command as an appropriate tribunal for the trial and punishment of offences against the law of war not ordinarily tried court martial.

- President’s Authority comes from constitution and law of war

From the very beginning of its history the Court has recognized and applied the law of war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. By his Order creating the present Commission he has undertaken to exercise the authority conferred upon him by Congress, and also such authority as the Constitution itself gives the Commander in Chief; to direct the performance of those functions which may constitutionally by the military arm of the nation in time of war.

An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war. Congress had the choice of crystallizing in permanent form and in minute detail every offense against the law of war, or of adopting the system of common law applied by military tribunals so far as it should be recognized and deemed applicable by the courts. It chose the latter course.

- Articles of war speaks generally jurisdiction of tribunal to try violations of law of war

(Reliance on Customary international law via constitution): By universal agreement and practice of the law of war draws a distinction between those who are lawful and unlawful combatants. Unlawful combatants are subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. By a long course of practical administrative construction by its military authorities, our Government has likewise recognized that those who during time or war pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission. This precept of the law of war has been so recognized in practice both here and abroad, (1) (and has so generally been accepted as valid by authorities on international law) that we think it must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War.

- (1) Opinion juri,s although they don’t cite a source in footnote 12 for it being a crime to enter, but not commit any act

- Court engaging in analysis of law of war

Specification 1 plainly alleges violations of the law of war. By passing our boundaries for such purposes without uniform or other emblem signifying their belligerent status, or by discarding that means of identification after entry, such enemies become unlawful belligerents subject to trial and punishment. Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. The offense was complete when with that purpose they entered-or, having so entered, they remained upon-our territory in time of war without uniform or other appropriate means of identification. For that reason, even when committed by a citizen, the offense is distinct from the crime of treason defined in Article III, section 3 of the Constitution, since the absence of uniform essential to one is irrelevant to the other.

- Why two charges? No conspiracy, second charge is dubious; first

It was not the purpose or effect of Section 2 of Article III, read in the light of the common law, to enlarge the then existing right to a jury trial to include cases like the present. The object was to preserve unimpaired trial by jury in all those cases in which it had been recognized by the common law and in all cases of a like nature as the might arise in the future, but not to bring within the sweep of the guaranty those cases in which it was then well understood that a jury trial could not be demanded as of right. Similarly, the Fifth and Sixth Amendments, while guaranteeing the continuance of certain incidents of trial by jury which Article III, Section 2 had left unmentioned, did not enlarge the right to jury trial as it had been established by that Article. In the light of this long-continued and consistent interpretation we must concluded that Section 2 of Article III and the Fifth and Sixth Amendments cannot be taken to have extended the right to demand a jury to trial by military commission, or to have required that offenses against the law of war not triable by jury at common law be tried only in the civil courts.

The Fifth (and by Court implication Sixth) Amendment exception for “cases arising the land or naval forces” does not militate against the conclusion because the petitioners were not in the armed forces of the US. The exception cannot be taken to affect those trials before military commissions which are neither within the exception nor within provisions of Article III Section whose guaranty the Amendments did not enlarge. No exception is necessary to exclude from the operation of these provisions cases never deemed to be within their terms. An express exception from Article III, Section 2, and from the Fifth and Sixth Amendments, of trials of petty offenses and of criminal contempts has not been found necessary in order to preserve the traditional practice of trying those offenses without a jury. It is no more so in order to continue the practice of trying, before military tribunal without a jury, offenses committed by enemy belligerents against the law of war.

Since the Amendments, like Section 2 of Article III, do not preclude all trials of offenses against the law of war by military commission without a jury when the offenders are aliens not members of our Armed Forces, it is plain that they present no greater obstacle to the trial in like manner of citizen enemies who have violated the law of war applicable to enemies. Under the original stature authorizing trial of alien spies by military tribunals, the offenders were outside the constitutional guaranty of trial by jury, not because they were aliens but not only because they had violated the law of war by committing offenses constitutionally triable by military tribunal.

The Court statement in Milligan that ‘can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed’ is not controlling. Elsewhere in its opinion the court was at pains to point that Miliigan was not an enemy belligerent either entitled to the status of a prisoner of war or subject to the penalties imposed upon unlawful belligerent. The Court’s statement is construed as inapplicability of the law of war to Milligan’s case as having particular reference to the facts before it.

- Is the principle of the holding of Milligan admit of this distinction

o Principle of necessity does not appear to be explanatory here

We have no occasion not to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies, who, with purpose of destroying war materials and utilities, entered or after entry remained in our entry remained in our territory without uniform-an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission.

In Re Yamashita (1946) (jus post bellum)

Facts: Petitioner was the Commanding General of an Army Group of the Japanese Army in the Philippines. He surrendered to and became a prisoner of war of the US Armed forces in Sept 1945. He was later charged with a violation of the law of war. Petitioner filed a motion to dismiss the charge on the ground that it failed to state a violation of the law of war, which was denied. Petitioner was found guilty of the offense charged and sentenced to death by hanging. The petition alleged that detention for the purpose of trial was unlawful because the military commission was without lawful authority of jurisdiction to place petitioner on trial because: (1) the military commission was not lawfully created; no military commission could lawfully convened after the cessation of hostilities between the armed forces of the US and Japan; (2) the charged fails to charge him with a violation of the law of the war; (3) The order permitted admission of hearsay and opinion evidence which deprived petitioner of a fair trial in violation of Fifth-amendment due process, (4) the commission failed to give advance notice of petitioner’s trial to the neutral power representing the interests of Japan as a belligerent as required by Article 60 of the Geneva convention. Execution fo Yamashita, showing the discontinuity between Japanese and US military occupation

Issue: Whether the military commission was without lawful authority?

Holding: (Issue 1): The Congressional recognition of military commissions and its sanction of their use in trying offenses against the law of war to which we have referred, sanctioned their creation by military command in conformity to long established American precedents. Such a commission may be appointed by any field commander, or by any commander competent to appoint a general court martial, as the general in this case. Here the commission was not only created by a commander competent to appoint it, but his order conformed to the established policy of the Government and to higher military commands authorizing his action.

- Military commission legitimate

(Absence of authority) We cannot say that there is no authority to convene a commission after hostilities have ended to try violations of the law of war committed before their cessation, at least until peace has been officially recognized by treaty or proclamation of the political branch of the Government. The practical administration of the system of military justice under the law of war would fail if such authority were thought to end with cessation of hostilities. For only after their cessation could be greater number of offenders and the principal ones be apprehended and subjected to trial. Herr, peace has not been agreed upon or proclaimed. Japan, by her acceptance of the Potsdam Declaration and her surrender, has acquiesced in the trial of those guilty of violations of the law of war. The conduct of the trial by the military commission has been authorized by the political branch of the Government, by military command, by international law and usage, and by the terms of the surrender of the Japanese Government.

- Distinction between surrender and peace treaty

Dissenting Opinion (Murphy): The Fifth Amendment guarantee of due process applies to ‘any person’ who is accused of a crime by the Federal Government or any of its agencies. No exception was made as to those who are accused of war crimes or as to those who possess the status of an enemy belligerent. Indeed, such an exception would be contrary to the whole philosophy of human rights which makes the Constitution the great living document that it is. The failure of the military commission to obey the dictates of the due process requirements of the Fifth Amendment is apparent in this case. Hostilities ceased and the petitioner voluntarily surrendered. At that point he was entitled under Due Process to be treated fairly and justly according to the accepted rules of law and procedure. He was also entitled to a fair trial as to any alleged crimes and to be free from charges of legally unrecognized crimes that would serve only to permit his accusers to satisfy their desires for revenge

The trial was ordered to be held in territory over which the United States has complete sovereignty. No military necessity or other emergency demanded the suspension of the safeguards of due process. Yet petitioner was rushed to trial under an improper charged, given insufficient time to prepare an adequate defense, deprived of the benefits of some of the most elementary rules of evidence and summarily sentenced to be hanged. In all this needless and unseemly haste there was no serious attempt to charge or to prove that he committee a recognized violation of the laws of war. He was not charged with personally participating in the acts of atrocity or with ordering or condoning their commission. It was simply alleged that he unlawfully disregard and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit the act of atrocity. The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge.

This does not mean, of course, that the foreign affairs and policies of the nation are proper subjects of judicial inquiry. But when the liberty of any person is restrained by reason of the authority of the United States the writ of habeas corpus is available to test the legality of that restraint, even though direct court review of the restraint is prohibited. The conclusive presumption must be made, in this country at least, that illegal restraints are unauthorized and unjustified by any foreign policy of the Government and that commonly accepted juridical standards are to be recognized and enforced.

Dissenting Opinion (Rutledge): More is at stake than General Yamashita’s fate. Every departure from our universal law weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered. My concern is that we shall not forsake in any case, whether Yamashita’s or another’s. the basic standards of trial which, among other guaranties; the nation fought to keep; that our system military justice shall not alone among all our forms of judging be above or beyond the fundamental law or the control of Congress within its orbit of authority; and that this Court shall not fail in its part under the Constitution to see that these things do not happen.

If, as may be hoped, we are now to enter upon a new era of law in the world, it becomes more important than ever before the nations creating that system to observe their greatest traditions of administering justice, including this one, both in their own judging and in their new creation. The proceedings in this case veer so far from some our time-tested road signs that I cannot take the large strides validating them would demand.

It is not in our tradition for anyone to be charged with crime which is defined after his conduct, alleged to be criminal has taken place; or in language not sufficient to inform him of the nature of the offense or to enable him to make defense. Mass guilt we do not impute to individuals, perhaps in any case but certainly in none where the person is not charged or shown actively to have participated in or knowingly to have failed in taking action to prevent the wrongs done by others, having both duty and the power to do so.

o A crime has been made up after the fact; no notice

o Yamashita relies on Quirin; Yamashita itself has not been relied on recently, doubtful that it is good law

Hirota v. MacArthur (1949)

Holding: Per Curiam opinon: the tribunal that sentencing the petitioners is not one of the US, it was set up by MacArthur and the Allied Powers. That being so, the courts of the US, have no authority to review, to affirm, set aside or annul the judgments and sentences imposed on these petitioners and for this reason the motions for leave to file petitions for writs of habeas corpus are denied.

- Jackson needs the Court to give the answer it does; but Douglas concurs to chastise him

Concurring Opinion (Douglas): The formula the per curiam evolves to dispose of the cases is potentially dangerous. It leaves practically no room for judicial scrutiny of this new type of military tribunal which is evolving. It leaves the power of the tribunal absolute. Prisoners held under its mandates may have appeal to the conscience or mercy of an executive; but they apparently have no appeal to law.

The fact that the tribunal has been set up by the Allied Powers should not of itself preclude our inquiry. If an American General holds a prisoner, our process can reach him wherever he is. It is no defense for him to say that the acts for the Allied Powers. He is an American citizen who is performing functions for our government. It is the historic function of the writ to examine into the cause of restraint of liberty. We should not allow that inquiry to be thwarted merely because the jailer acts not only for the United States but for other nations as well. But it should be noted that the chain of command from the United States to the Supreme Commander is unbroken. It is he who has custody of petitioners. It is through that chain of command the writ of habeas corpus can reach the Supreme Commander. (Constitution follows the flag)

The so-called trial held according to the definition of crime given by the victors obliterates the centuries of civilization which stretch between us and the summary slaying of the defeated in a war. A trial with law thus prescribed will only be sham employment of legal process for the satisfaction of a thirst for revenge. It does not correspond to any idea of justice. Such a trial may justly create the feeling that the setting up of a tribunal like the present is much more political than a legal affair, an essentially political objective having thus been cloaked by a juridical appearance. Formalized vengeance can bring only an ephemeral satisfaction, with every probability of ultimate regret; but vindication of law though genuine legal process alone may contribute substantially to the reestablishment of order an decency in international relations.

The Tokyo Tribunal acted as an instrument of military power of the Executive Branch of Government. It responded to the will of the Supreme Commander as expressed in the military order by which he constituted it. It took its law from its creator and did not act as a free and independent tribunal to adjudge the rights of petitioner under international. It therefore did not sit as a judicial tribunal. It was solely an instrument of political power. Insofar as American participation is concerned, there is no constitutional objection to that action. For the capture and control of those who were responsible for the Pearl Harbor incident was a political question on which the President as Commander in Chief, and as spokesman for the nation in foreign affairs, had the final say.

o Saying that the Nuremberg not a tribunal making law; it is a naked exercise of political power

Hamdi v. Rumsfeld (2004)

Facts: Hamdi was born in Louisiana, and move with his family to Saudi Arabia as a child. By 2001, he resided in Afghanistan. At some point that year, he was seized and was eventually turned over to the United States military. The government initially detained and interrogated Hamdi in Afghanistan before transferring him to the Guantanamo in Jan. 2002. In April 2002, upon learning that Hamdi is an American citizen, authorities transferred him to a naval brig in Virginia where he remained until he was transferred to South Carolina. Government contends that Hamdi was an enemy combatant and that this justifies holding him in the US indefinitely without formal charges or proceedings. His father filed a habeas petition as his next friend alleging his son went to Afghanistan to do relied work and could not have received military training and that he has had no contact with his some since the 2001 and hat he has been held without access to counsel of notice of nay charges against him. It alleged that as a citizen, Hamdi was entitled to Fifth and Fourteenth Amendment protection. The petition asked for the appointment of counsel, the cessation of interrogations, a declaration that his detention violated the 5th and 14th amendments, an evidentiary hearing to adduce proof in support of their allegations, Hamdi’s release from custody. The only evidence adduced by the government was the Mobbs declaration which alleged that Hamdi was labeled an enemy combatant based upon his interviews and in light of his association with the Taliban. Moved to Virginia so you don’t have to litigate the habeas/Guantanamo issue.

Issue: Whether the Executive has the authority to detain citizens who qualify as “enemy combatants”? (Do not reach the question whether Article II provides authority, because Congress has authorized Hamdi’s detention, through the AUMF.) What process if due to Hamdi?

Holding (Plurality O’Connor):

II: The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the Sept 11 terrorist attacks. Detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force.” Congress has authorized the President to use. And it is now recognized that ‘captivity is neither a punishment no an act of vengeance,’ but ‘merely a temporary detention which is devoid all penal character.’ A prisoner of war is no convict; his imprisonment is a simple war measure. And, while Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities.

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

Ex Parte Milligan does not undermine our holding about the Government’s authority to sieze enemy combatants, as we define that term today. In that case, the Court made repeated reference to the fact that its inquiry into whether the military tribunal had jurisdiction to try and punish Milligan turned in large part on the fact that Milligan was not a prisoner of war, but a resident of Indiana arrested while at home there. That fact was central to its conclusion. Moreover, Quirin dismissed the language of Milligan that the petitioners had suggested prevented them from being subject to military process. Quirin was a unanimous opinion. It postdates and clarifies Milligan and provides the most apposite precedent on the question of whether citizens may be detained in such circumstances. To be clear, this opinion only find legislative authority to detain under the AUMF once it is sufficiently clear that the individual is, in fact an enemy combatant; whether that is established by concession or by some other process that verifies this fact with sufficient certainty seems beside the point.

Because Justice Scalia finds the fact of battlefield capture irrelevant, his distinction based on the fact that the petitioner “conceded” enemy-combatant status is beside the point. Moreover, Justice Scalia presumable would come to a different result if Hamdi had been kept in Afghanistan or even Guantanamo Bay.

III: Even in cases in which the detention of enemy combatants in legally authorized, there remains the question of what process is constitutionally due to a citizen who disputes his enemy-combatant status.

A: All agree suspension of the writ has not occurred here. Thus, it is undisputed that Hamdi was properly before an Article III court to challenge his detention under U.S.C. Section 2241. Most notable, Section 2243 provides that “the person detained may, under other, deny any of the facts set forth in the return or allege any other material facts,” and Section 2246 allows the taking of evidence in habeas proceedings by deposition affidavit, or interrogatories. The simple outline of Section 2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process.

A citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. At the same time, the exigencies of the circumstances may demand that, aside from these core element, enemy-combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict: hearsay is admissible, a rebuttable presumption in favor of government’s evidence, burden-shifting scheme after the government puts forth credible evidence In the words of Matthews, process of this sort would sufficiently address the “risk of an erroneous deprivation” of a detainee’s liberty interest while eliminating certain procedures that have questionable additional value in light of the burden on the Government.

- Matthews calculus sort of inapposite—welfare benefits. Balancing test is sort of vacuous. This is a deferral strategy; don’t want to be responsible for Hamdi going free

- Dialogical theory of judicial activism-want Congress to come up with procedures

- Because was a Rasul was statutory, executive and Congress had chance to react and come up with procedures

This process is due only when the determination is made to continue to hold those who have been seized. Any factfinding imposition created by requiring a knowledgeable affiant to summarize these records to an independent tribunal is a minimal one. Factual disputes at enemy-combatant hearings are limited to the alleged combatant’s acts. This focus meddles little, if at all in the strategy or conduct of war, inquiring only into the appropriateness of continuing to detain an individual claimed to have taken up arms against the United States.

Concurring in Judgment (Souter): The plurality accepts the Government’s position that if Hamdi’s designation as enemy combatant is correct, his detention is authorized by an Act of Congress required by 4001(a). I disagree and respectfully dissent. The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raise nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be release.

II: The threshold issue is how broadly or narrowly to read the Non-Detention Act the tone of which is severe” “No citizen shall be imprisoned or otherwise detained by the US except pursuant to an Act of Congress.” For a number of reasons, the statute has to be read broadly to accord the statute a long reach and to impose a burden of justification on the Government.

First, the circumstances in which the Act was adopted point the way to this interpretation. When Congress repealed the 1950 Emergency Detention Act and adopted Section 4001 for purpose of avoiding another Korematsu it intended to preclude reliance on vague congressional authority as authority for detention or imprisonment at the discretion of the Executive. In requiring that nay Executive detention be “pursuant to an Act of Congress,” then Congress necessarily meant to require a congressional enactment that clearly authorized detention or imprisonment.

Second, when Congress passed Section 4001 (a) it was acting in light of an interpretive regime that subjected enactments limiting liberty in wartime to the enactments limiting liberty in wartime to the requirement of a clear statement and it presumably intended Section 4001 (a) to be read accordingly.

Finally, for reasons of inescapable human nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation’s entire reliance in striking the balance between the will to win and the cost in liberty on way to victory the responsibility for security will naturally amplify the claim that security legitimately raises. A reasonable balance is more likely to be reached on the judgment of a different branch, just as Madison said in remarking that “the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other-that the private interest of every individual may be sentinel over the public rights.

C: The government claims that the Geneva Convention applies to Taliban detainees, and Hamdi therefore would seem to quality for treatment as a prisoner of war under the Third Geneva Convention to which the US is a party. But, by holding him incommunicado, the Government has not been treating him as prisoner of war, and in fact the Government claims that no Taliban detainee is entitled to prisoner of war status. The regulation also incorporates the Geneva Convention’s presumption that in cases of doubt, “persons shall enjoy the protection of the Conventin until such time as their status has been determined by a competent tribunal.” Thus, there is reason to question whether the United States is acting in accordance with the law of war it claims as authority. The Government has not made out its claim that in detaining Hamdi in the manner described, it is accord with the laws of war authorized to be applied against citizens by the Force Resolution. The Government, therefore, has failed to support the position that the Force Resolution authorizes the described detention of Hamdi for purposes of Section 4001(a).

o Geneva Convention: Hamdi must have comptent tribunal review his status

▪ Argument: if government’s position is that AUMF incorporates the law of war; cannot say he is relying on law of your violating it

D: The Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the safety of the Nation and its people. This case, however, does not present that question, because an emergency power of necessity must at least be limited by the emergency; Hamdi has been locked up for two years.

IV: Because I find Hamdi’s detention forbidden by Section 4001(a) and unauthorized by the Force Resolution, I would not reach any question of what process he may be due in litigating disputed issues in a proceeding under the habeas statute or prior to the habeas enquiry itself. For me, it suffices that the Government has failed to justify holding him in the absence of a further Act of Congress, criminal charges, a showing that the detention conforms to the law of war, or a demonstration that Section 4001(a) is unconstitutional. I do not adopt the plurality’s resolution of constitutional issues that I would not reach.

o Ginsburg and Souter only agree as to what process due; no right to detain

Dissenting Opinion (Scalia): Where the Government accuse a citizen of waging war against it, our constitutional tradition had been to prosecute him in federal court for treason or some other crime. Where the exigencies of war prevent that, the Constitution’s Suspension Clause, allows Congress to relax the usual protections temporarily. Absent suspension, however, the Executive’s assertion of military exigency has not been thought sufficient to permit detention without charge.

o Scalia is looking for Congress to suspend the writ; this probably why Ginsburg and Souter fail to join his opinion

I: The two ideas central to Blackstone’s understanding-due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned found expression in the Constitution’s Due Process and Suspension Clauses. The gist of the DPC, as understood as the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property. These due process rights have historically been vindicated by the writ of habeas corpus.

II: The relevant question is whether there is a different, special procedure for imprisonment of a citizen accused of wrongdoing by aiding the enemy in wartime.

A: The plurality held that captured enemy combatants (other than those suspected of war crimes( have traditionally been detained until the cessation of hostilities and then released. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.

B: President Lincoln in his famous message to Congress argued only that he could suspend the writ, not even that without suspension, his imprisonment of citizens without criminal trial was permitted. Milligan is not exactly this case, since the petitioner was threatened with death, not merely imprisonment. But the reasoning and conclusion of Milligan logically cover the present: If the law of war cannot be applied to citizens where courts are open, then Hamdi’s imprisonment without criminal trial is no less unlawful than Milligan’s trial.

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal. In Founders’ view, the “blessings of liberty” were threatened by “those military establishments which must gradually poison its very fountain.” A view of the Constitution that gives the Executive authority to use military force rather the force of law against citizens on American soil flies in the face of mistrust that engendered these provisions.

IV: In my view this seeks to revise Milligan rather than describe it. Milligan had involved two separate questions: (1) Whether the military trial of Milligan was justified by the laws of war, and if not (2) whether the President’s suspension of the writ, pursuant to congressional authorization, prevented issuance of habeas corpus. But even if Quirin gave a correct description of Milligan, or made an irrevocable revision f it, Quirin still not justify denial of the writ here. In Quirin it was uncontested that petitioners were members of enemy forces. They were “admitted enemy invaders,” and it was “undisputed” that they had landed in the United States in service of German forces. The specific holding of the Court was only that, “upon the conceded facts,” the petitioners were “plainly within the boundaries” of military jurisdiction. But whose those jurisdictional facts are not conceded where the petitioners insists that he is not a belligerent—Quirin left the preexisting law in place: Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.

o Scalia perceives the Quirin distinction of Milligan as dishonest and empty; not descriptive of the issues

Dissenting Opinion (Thomas): This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess. As such, petitioner’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Matthews. The Federal Government’s war powers cannot be balanced away by this Court. Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interest and for our own institutional inability to weight competing concerns.

I: The founders intended that the President have primary responsibility-along with the necessary power-to protect the national security and to conduct the Nation’s foreign relations. They did so principally because of the structural advantages of a unitary Executive are essential in these domains. These structural advantages are most important in the national-security and foreign-affairs contexts. Congress, to be sure, has a substantial and essential role in both foreign affairs and national security. But it is crucial to recognize that judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive.

The Court has held in specific circumstance that the military acted beyond its warmaking authority. But these cases are distinguishable in important ways. In Endo, the Court held unlawful the detention of an admittedly law-abiding and loyal American of Japanese ancestry. The Court however, also sensibly held that the Government could not detain a loyal citizen pursuant to executive and congressional authorities that could not conceivable be implicated given the Government’s factual allegations.

I acknowledge that the question whether Hamdi’s executive detention is lawful is a question properly resolved by the Judicial Branch, thought the question comes to the Court with the strongest presumptions in favor of the Government. But the question of whether Hamdi is actually an enemy combatant is “of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion of inquiry.

Hamdan v. Rumsfeld (2006)

Facts: Hamdan, a Yemeni national was captured by militia forces and turned over to the US military. In June 2002, he was transported to Guantanamo. Over a year later, the president deemed him eligible for trial by military commission for then-unspecified crimes. After another year had passed, Hamdan was charged with one count of conspiracy to “commit offenses triable by military commission. Hamdan concedes that court-martial constituted in accordance with the UMCJ and would have authority to try him. His objection is that the military commission the President has convened lacks such authority, for two principal reasons: First, neither congressional Act nor the common law of war supports trial by this commission for the crime of conspiracy—an offense that, is not a violation of the law of war. Second, Hamdan contends, the procedures that the President has adopted to try him violate the most basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him. Court reviewing procedures it asked for in Hamdi.

Congress had power to define→ use articles of war→ incorporate law of war→ authorize president

Issue: Does the military commission have the power to proceed? Does the offense which Hamdan has been charged an “offense that by the law of war may be tried by military commissions? Relationship between Constitution and international obligations.

Holding:

IV: Exigency alone will not justify the establishment and use of penal tribunals not contemplated by Article I, Section 8 and Article III, Section 1 of the Constitution unless some other part of that document authorizes a response to the felt need. Quirin did not view the congressional authorization as a sweeping mandate for the president to “invoke military commission when he deems them necessary.” Rather, the Quirin Court recognized that Congress had simply preserved what power, under the Constitution and the common law of war, the President had had before 1916 to convene military commission—with the express condition that the President and those under his command comply with the law of war.

(Congress’ silence on military commissions means that they are derived from what was Article 15 and now the UCMJ): Neither the AUMF or the DTA expands the President’s authority to convene military commission. First; while we assume that the AUMF activated the President’s war powers, and that those powers include the authority to convene military commission in appropriate circumstances, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Although the DTA, unlike either Article 21 or the AUMF, was enacted after the President had convened Hamdan’s commission, it contains no language authorizing the tribunal or any other at Guantanamo. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commission in circumstances where justified under the “Constitution and laws,” including the law of war. Absent a more specific congressional authorization, the task of this Court is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified.

VI: Whether or not the Government has charged Hamdan with an offense against the law of war cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions the President’s se of military commissions on compliance not only with the American common law of war, but also rest with the rest of the UCMJ, insofar as applicable, and with the “rule and precepts of the law of nations,” the four Geneva conventions signed in 1949. The procedures that the Government has decreed will govern Hamdan’s trial by commission violate these laws.

B: Hamdan objects that the procedures’ admitted deviation from those governing courts-martial itself renders the commission illegal. He also objects that he may, under the Commission Order, be convicted based on evidence he has not seen or heard, and that any evidence admitted against him need not comply with admissibility or relevance rules typically applicable in criminal trials and court-martial proceedings.

C: In part because the difference between military commissions and courts-martial originally was a difference of jurisdiction alone, and in part to protect against abuse and ensure evenhandness under the pressures of war, the procedures governing trials by military commission historically have been the same as those governing courts-martial.

There is a glaring historical exception to this general rule. The procedures and evidentiary rules used to try General Yamashita near the end of World War II deviated in significant respects from those then governing courts-martial. The force of that precedent, however, has been seriously undermined by post- World War II developments. The procedures and rules of evidence employed during Yamashita’s trial departed so far from those used in courts-martial that they generated an unusually long an vociferous critique from two Members of this Court. At least partially in response to subsequent criticism of General Yamashita’s trial, the UCMJ’s codification of the Articles of War after WW II expanded the category of person subject thereto to include defendants in Yamashita’s position, and the Third Geneva Convention of 1949 extended prisoner-of-war protections to individuals tried for crimes committed before their capture.

Nothing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case. There is no suggestion of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. The only reason offered is the danger posed by international terrorism. Without for one moment underestimating that danger, it is not evident to us why it should require, in the case of Hamdan’s trial, any variance from the rules that govern courts-martial. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protection not just by the Manual for Courts-Martial but also by the UCMJ itself: the right to be present. Under the circumstances, then, the rules applicable in courts-martial must apply. Since it is undisputed that Commission Order No.1 deviates in many significant respects from those rules, it necessarily violates Article 36(b).

D: The procedures adopted to try Hamdan also violate the Geneva Conventions. Geneva Convention not self-executing, though

i: In Eisentrager, the Court rejected the claim that the 1929 Geneva Convention rendered illegal some of the procedures employed during their trials, which the petitioners in that case said deviated impermissibly from the procedures used by courts-martial to try American soldiers, because the petitioners (unlike Hamdan) had failed to identify any prejudicial disparity “between the Commission that tried them and those that would try an offending soldier of the American forces of like rank,” and in any event could claim no protection under the 1929 convention, during trials for crimes the occurred before their confinements as prisoners of war.

And whatever can be said about the Eisentrager footnote number 14, it does not control this case. Regardless of the nature of the rights conferred on Hamdan, they are part of the law of war. And the compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted.

- (Souter’s Concurrence in Hamdi)/Hamdan is the latest iteration of a mechanism of incorporating of international law into domestic law (others: ATS, and common law prize cases)

- Must comply with law of war even if they are not self-executing (but does not concede it is not self-executing)

ii: (Gov’t argues that Al Qaeda not part of Geneva Conventions): There is at least one provision of the Geneva convention that applies here even if the relevant conflict is not one between signatories. (1) Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply as a minimum,” certain provisions protecting “persons taking no active part in the hostilities, including members of armed forces who lave laid down their arms and those place hors de combat by detention. One such provision prohibits “the passing of sentences and carrying out such executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

- (1) Argument

o Geneva Conventions do apply to Al Qaeda→ “shocking” because this a war crime + Convention is agreement between sovereign states (court usurping authority)→ Mukasey later says in his testimony that he thinks Hamdan extends procedural requirements

▪ Mukasey could say Hamdan only concerned procedural protections of full and fair trial

• Potential response: procedure/substance is a tenuous distinction

- Court’s argument that if you want to rely on laws of war, you must rely on the procedures that allow you to detain

o Government graspingat straws to prevent conclusion that US committed war crimes in waterboarding

o This is why Hamdan may be most important of GB cases; expressly applies the Geneva convention

- Absent Congressional authorization

o Question of whether Congress can violate by Geneva Convention by enacting a waiver of free trial provision

o Yes: Constitution incorporates international law with “war”; so Congress can’t violate it

▪ Brown dissent; Black opinions in Reid

o No: Court intimated in Hamdan that Congress could violate it

iii: Common Article 3, then, is applicable here and requires that Hamdan be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The commentary accompanying a provision of the Fourth Geneva Convention defines “regularly constituted” tribunals to include “ordinary military courts” and “definitely exclude all special tribunals.” At a minimum, a military commission “can be ‘regularly constitute’ by the standards of our military justice system only if some practical need explains deviations from court-martial, no such need has demonstrated in the present case.

iv: The phrase “all the judicial guarantees which are recognized as indispensable by civilized peoples” must be understood to incorporate at the least the barest of those trial protections that have been recognized by customary international law. Those protections include the right to be tried in one’s presence.

v: Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.

Dissenting Opinion (Scalia): The DTA unambiguously provides that “no court, justice, or judge” shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee.

Dissenting Opinion (Thomas): It is clear that this Court lacks jurisdiction to entertain petitioner’s claims and the court openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs. The Courts contends that the military commission is unlawful because it violates the Geneva convention and Hamdan contends that his commission is unlawful because it violates various provisions of the convention, these contentions are untenable.

1: Both of Hamdan’s Geneva Convention claims are foreclosed by Eisentrager. The Court does not dispute the correctness of the cases’ conclusion, namely, that the provisions of the 1929 Geneva Convention were not judicially enforceable because that Convention contemplated that diplomatic measures by political and military authorities were the exclusive mechanisms for such enforcement. The Court cannot escape Eisentrager’s holding merely by observing that Article 21 mentions the law of war; thought Eisentrager did not specifically consider the Court’s novel interpretation of Artcile 21, it involved a challenge to the legality of a WWII military commission, which, like all such commissions, found its authorization in Article 15 of the Articles of War, the predecessor to Article 21 of the UCMJ.

Moreover, the court’s position thus rests on the assumption that Article 21’s reference to the “laws of war” selectively incorporates only those aspects of the Geneva Conventions that the Court finds convenient, namely, the substantive requirements of Common Article 3, and not those aspects of the Conventions that the Court, for whatever reason, disfavors, namely the Conventions’ exclusive diplomatic enforcement scheme. The Court provides no account of way the partial incorporation of the Geneva Conventions should extend only so far—and no further—because none is available beyond its evidence preference to adjudication those matter that the law war, thought the Geneva Conventions, consigns exclusively to the political branches.

Finally, to the extent Article 21 can be inte3rpted as authorizing judicial enforcement of aspects of war that are not otherwise judicially enforceable, that authorization only extends to provisions of the law of war that relate to whether a particular “offender” or a particular “offense” is triable by military commission. Common Article 3 of the Geneva Conventions, the sole provision of the Geneva Conventions relevant to the Court’s holding, relates to neither.

2: The President’s interpretation of Common Article 3 is reasonable and should be sustained. The conflict Al Qaeda is international in character in the sense that it is occurring in various nations around the globe. Here an ambiguous treaty provision (“not of an international character”) is susceptible of two plausible, and reasonable interpretations, our precedents require us to defer to the Executive’s interpretation.

3: Any claim petitioner has under Common Article 3 is not ripe. Common Article is only violated by the act of “passing of sentence,” and thus Hamdan will only have a claim if his military commission convicts him and imposes a sentence. Accordingly, as Hamdan’s claim is ‘contingent upon future events that may not occur as anticipate, or indeed may not occur at all,” it is not ripe for adjudication. In any event, Hamdan’s military commission is plainly ‘regularly constituted’ because such commissions have been employed throughout our history to try unlawful combatants for crimes against the law of war.

Similarly the procedures to be employed Hamdan’s commission afford “all the judicial guarantees which are recognized as indispensable by civilized peoples. Petitioner is entitled to appointed military counsel, to retain a civilian attorney, a presumption of innocence, proof beyond a reasonable doubt, the right to remain silent, to confront witnesses against him, subpoena his own witnesses, and a limited right to be present.

Dissenting Opinion (Justice Alito): I disagree with the holding because petitioner’s commission is a “regularly constituted court.” In order to determine whether a court has been properly appointed, set up, or established, it necessary to refer to a body of law that governs such matters. I interpret Common Article 3 as looking to the domestic law of the appointing country because I am not unaware of any international law standard regarding the way in which such a court must be appointed, set up, or established, and because different countries with different government structures handles this matter differently. Accordingly, “a regularly constituted court” is a court that has been appointed, set up, or established in accordance with the domestic law of the appointing country.

Padilla v. Hanft (2005)

Holding: Rule 36 motion for authorization to transfer Jose Padilla immediately out of military custody in the State of South Carolina and into the custody of federal civilian law enforcement authorities in Florida denied because of the absence of explanation (maybe government is trying to avoid consideration of decision by Supreme Court, and because of the national importance of final consideration of the issue.

Motion was filed after opinion holding President had authority to detain but just before their response to motion for certiorari was due.

- Padilla has some procedural posture of Hamdan. Court says that this wrong venue

- Bush decides to transfer him to Florida to civilian court, asks 4th circuit to withdraw its opinion

- Face: He had just said this guy was dangerous

V. Who Obeys What? The States and International Law

Missouri v. Holland (1920)

Facts: In December 1916, the United States and Great Britain entered into a treaty to protect a number of migratory birds in the U.S. and Canada. Congress passed the Migratory Bird Treaty Act in 1918 in order to facilitate enforcement of the treaty. When Ray P. Holland, the U.S. Game Warden, threatened to arrest citizens of Missouri for violating the Act, the state of Missouri challenged the treaty.

Issue: Did the treaty infringe upon rights reserved to the states by the Tenth Amendment?

Holding: Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way.

- There maybe textualist authority; just be made of under the authority of the United States in contrast of in pursuit with the Constitution; “it is open to question…”

o Black’s response: Referring to Article of Confedration

o Counter: Why not just say past treaties? Also, the tense of Article VI—future tense

o Best answer is bad draftsmanship/intentional ambiguity

It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, “a power which must belong to and somewhere reside in every civilized government” is not to be found.

- Objection: Where does Congress get this power? Necessity

o Most important sentence of Missouri v. Holland

o Implication, when it comes to problems of collective action, states can’t act

▪ Need federal government to act or else no one else will

- Objection: federal government will get any power by making a treaty?

o Federal government can eviscerate states with treaties

The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but is does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership. The whole foundation of the State’s rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away.

- Change in conception of general federal authority since Constitution; not question whether it permits, but whether it allows

o Concession that 100 years ago federal government would have the power

o Civil war decided that it was for “the people”

▪ Now the federal government is expanding the treaty making power

▪ So if the federal government is the true sovereign it has the power to make treaties not expressly prohibited by the Constitution

Reid v. Covert (1957)

Holding: It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

The Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument. In Missouri v. Holland, the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution.

VCCR, Article 36 Communication and Contact with Nationals of the Sending States

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State

a) Consular officers shall be free to communicate with nations of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending States;

b) If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

c) Consular officers shall have the right to visit a national of the sending State who is in prison, custody, or detention to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody, or detention in their district in pursuance of a judgment. Nevertheless consular officers shall refrain from taking action on behalf of a national who is in prison, custody, or detention if he expressly opposes such action

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended,

LaGrand Case (2001)

Facts: The LaGrand brothers were born in Germany and as children moved with their mother to the US where they remained permanently Later they were adopted by a US citizen, although neither brother ever acquired US nationality.The brothers were arrested in January 1982 in Arizona and convicted by a jury on 17 February 1984 of first degree murder and other felonies arising out of an unsuccessful armed robbery of the Valley National Bank in Marana, Arizona. They were sentenced to death on 14 December 1984. At no time during this process were the brothers provided with any information by the relevant US authorities as to the provisions of the VCCR regarding consular communication. Indeed the US contended that law enforcement officials were not aware of the German nationality of the brothers until well after their arrest. Germany, on the other hand, provided evidence to the ICJ that officials of the State of Arizona were aware from as early as April 1982 of the German nationality of both brothers.

The LaGrand brothers unsuccessfully appealed to the Supreme Court of Arizonaand were denied certiorari by the US Supreme Court. A second round of post-conviction proceedings was also unsuccessful. The failure to provide the required information to the LaGrand brothers under the VCCR was not raised at their trial, nor was it raised in these two sets of proceedings, as the LaGrand brothers had not yet been made aware of the provisions of the VCCR. Germany attached great significance to this failure, pointing to a causal connection between what it viewed as inadequate representation of the LaGrand brothers and their ultimate death sentences.

Germany was only made aware of the detention of the LaGrands by the brothers themselves in 1992. Subsequently, a fresh round of proceedings for habeas corpus was commenced which specifically referred to alleged violations of the VCCR. In early 1995 the US District Court for the State of Arizona rejected the claim on the basis of the doctrine of ‘procedural default.’ An appeal to the Court of Appeals of the 9th Circuit was dismissed, the Circuit Court noting: It is undisputed that the State of Arizona did not notify the LaGrands of their rights under the [VCCR]. It is also undisputed that this claim was not raised in any state proceeding. The claim is thus procedurally defaulted. A subsequent petition to the US Supreme Court for certiorari was denied. Further proceedings in February 1999 were again unsuccessful.

After high level diplomatic efforts by Germany to prevent the execution of Karl LaGrand failed, Germany filed its application in the Registry of the ICJ instituting the proceedings and seeking provisional measures in relation to his brother, Walter. On 3 March 1999, by 13 votes to one, the ICJ indicated two provisional measures, the first occasion on which the ICJ has done so in the absence of an oral hearing of the parties. The ICJ ordered, first, that the US ‘take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings’. Secondly, the ICJ required the US to ‘transmit this Order to the Governor of the State of Arizona’. Armed with the Order, Germany applied to the US Supreme Court for a stay of Walter LaGrand’s execution less than two hours before he was scheduled to die. The Supreme Court dismissed the application and Walter LaGrand was executed shortly afterwards.

Issues: (1) Were subparagraphs (a) and (c) of article 36 violated? (2) Were individual rights of the LaGrand brothers violated under the Convention? (3) Does the procedural default rule breach the US obligation to give full effect to the purposes for which the rights accorded under this article are intended? (4) Did the US violate the provisional order of the ICJ? (5) What assurances should be made by US to ensure that this does not happen again?

Holding:

(1): On the facts of this case, the breach of the United States had the consequence of depriving Germany of the exercise of the rights accorded it under Article 36, paragraph (1) (a) and paragraph (1) (c), and thus violated these provisions of the convention. Although the violation of paragraph 1(b) of Article 36 will not necessarily always result in the breach of the other provisions of this Article, the Court finds that the circumstances of this case compel the opposite conclusion. When the sending State is unaware of the detention of its nationals due to the failure of the receiving State to provide the requisite consular notification without delay, which was true in the present case during the period between 1982 and 1992, the sending State has been prevented for all practical purposes from exercising its rights under Article 36, paragraph 1. It is immaterial for the purposes of the present case whether the LaGrands would have sought consular assistance from Germany, whether Germany would have rendered such assistance,or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of United States from exercising them, had they so chosen.

(2) Subparagraph ends with following language: ‘the said authorities shall inform the person concerned without delay of his rights under this subparagraph. Under Article 36, paragraph 1 ©, the sending State’s right to provide consular assistance to the detained person may not be exercised “if he expressly opposes such action.” The clarity of these provisions, viewed in their contexts, admits of no doubt. It follows, as has been held on a number of occasions that the Court must apply these as they stand. Based on the text of these provision, Article 36 paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case.

- Individual rights vs. Rights of states distinction in the VCCR

o What is the best argument for the US

▪ Judge Edwards in Tel-Oren; some individual cases, including prize

• It was still plausible at the time of LaGrand that only for nations

• ICJ just recognizing the modern trend

- They don’t reach the human rights question→ the background issue of the death penalty

(3) A distinction must be drawn between the procedural default rule as such and its specific application in the present case. In itself, the rule does not violate Article 36 of the Vienna Convention. The problem arise when the procedural default rules does not allow the detained individual to challenge a conviction and sentence by claiming, in reliance on Article 36, paragraph 1, of the Convention, that the competent national authorities failed to comply with their obligation to provide the requisite consular formation “without delay,” thus preventing the person from seeking and obtaining consular assistance from the sending State. Under these circumstances, the procedural default rule had the effect of preventing “full effect from being given to the purposes for which the rights accorded under this article intended,” and thus violated paragraph 2 of Article 36.

(4) U.S. says that it is not even called an “order”; treaties are incolcuisve on the point; The French sounds more mandatory, but the English uses “indicated,” “ought,” “suggest.” The object and purpose of the Statute is to enable the Court to fulfill the functions provided for therein, and, in particular, the basic functions of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measure entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article. The fact that the Court does not itself have the means to ensure the execution of order made pursuant to Article 41 is not an argument against the binding nature of such orders.

- ICJ is actually holding that US violated international law on the basis of its incorrect legal advice (parallel to Yoo and his legal advice

o Judiciary, Solicitor General, Governor of Arizona all complicit

The steps taken by the authorities of the US with regard to the Order of the International Court of Justice indicates that the various competent US authorities failed to take all the steps they could have taken to give effect to the Court’s order. However, the Court points out that the US was under great pressure in this case, due to the circumstances in which Germany has instituted the proceedings. The Court notes moreover that at the time when the US authorities took their decision the question of the binding character of orders indicating provisional measures had been extensively discussed in the literature, but had not been settled by its jurisprudence.

(5) The United States has provided the Court with information, which it considers important, on its programme. If a state, in proceedings before the Court, repeatedly refers to substantial activities it is carrying out in order to achieve compliance with certain obligation under a treaty, then this express commitment to follow through with the efforts in this regard. The programme in question certainly cannot provide an assurance that there never again be a failure by the US to observe the obligation of notification under Article 36 of the Vienna Convention. But no State could give such a guarantee and Germany does not seek it. The Court considers that the commitment expressed by the US to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), must be regarded as meeting Germany’s request for a general assurance of non-repetition.

The Court considers in this respect that if the United States, notwithstanding its commitment, should fail in its obligation of consular notification to the detriment of German nations, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbernt upon the US to allow the review and reconsideration of the convctions and sentence by taking account of the violation of the rights set forth in the Convention. The obligation can be carried out in various ways. The choice of means must be left to the United States.

- Why the vagueness? Comity/respect/deference

o Refusal to engage the difficult question

o US responds to this statement by asserting in Avena that clemency is sufficient

The Avena Case (2004)

Facts: Mexico instituted proceedings against the United States of America in a dispute concerning alleged breaches of Articles 5 and 36 of the Vienna Convention on Consular Relations of in relation to the treatment of a number of Mexican nationals who had been tried, convicted and sentenced to death in criminal proceedings in the United States. The original claim related to 54 Mexican Nationals, but as a result of subsequent adjustments by Mexico, only 52 individual cases were involved. Mexico also asked the Court to indicate provisional measures, in order to make the United States to take all measures necessary to ensure that no Mexican national was executed until the court passes its final decision.

Issue: (1) What are the legal consequences of the US’s breach? What does review and reconsideration call for? (3) Mexico also asked for exclusion of statements and confessions made before advice of right to consular notification?

Holding:

1) The remedy to make good these violations should consist in an obligation on the US to permit review reconsideration of these nations’ cases by the US courts with a view to ascertaining whether in each case the violation of Article 36 committed by the competent authorities cause actual prejudice to the defendant in the process of administration of criminal justice. However, the case before the Court concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing. The question of whether the violations are to be regarded as having, in the causal sequences of events, ultimately led to convictions and severe penalties is an integral part of the criminal proceedings before the courts of the US and is for them to determine in the process of review and reconsideration. In so doing, it is for the courts of the US to examine the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in Convention.

2) The review and reconsideration prescribed by LaGrand should be effective. It should take account of the violations of the rights set forth in the Convention and guarantee that the violation and the possible prejudice caused by that violation will be fully examined and taken into account in the review and reconsideration process. Lastly, review and reconsideration should be of both sentence and of the conviction.

In a situation of the violation of rights under Article 36 of the Vienna Convention, the defendant raises his claim in this respect not as a case of harm to a particular right essential to a fair trial but as a case involving the infringement of his right under Article 36. The rights guaranteed under the Vienna Convention are treaty rights which the US has undertake to comply with in relation to the individual concerned, irrespective of due process rights under US constitutional law. In this regard, the Court would point out that what is crucial in the review and reconsideration process is the existence of a procedure which guarantees that full weight is given to the violation of the rights set for in the Vienna Convention, whatever may be the actual outcome of such review and reconsideration. It is the judicial process that is suited to this task.

The clemency process, as currently practiced in the US criminal justice system does not appear to meet the requirements described and is therefore not sufficient in itself to serve as an appropriate means of “review and reconsideration” as envisaged by the Court in the LaGrand case. the Court considers nevertheless that appropriate clemency procedures can supplement judicial review and reconsideration, in particular where the judicial system has failed to take due account of the violation of the rights set forth in the Vienna Convention, as has occurred in the case of three Mexican nationals.

3) Court says that you have to address the concrete circumstances of each case

President Bush, Memorandum for the Attorney General—Compliance with the Decisions of the ICJ in Avena

- President “discharges” US duty by having state courts “give effect”

- Action assumes the president has authority

- VCCR (until Medellin)→ State courts are bound to follow that the treaty, doesn’t say that VCCR bind states to follow the ICJ interpretation

o That will turn on whether the Optional Protocol is self-executing

o And/or whether further treaty that says we’re bound by ICJ judgments is self-executing

- President does not take a position whether, without memo, states would have the authority (probably would)/ obligation to comply

Sanchez-Llamas v. Oregon (2006)

Facts: Under Article 36 of the Vienna Convention, a treaty to which the U.S. is a party, any person detained in a foreign country has the right to notify the consulate of his home country of his detention.

Moises Sanchez-Llamas, a Mexican national, was arrested for his role in a shootout with the police. He was given a Miranda warning, but not informed of his right under Article 36 to notify his consulate. After Sanchez-Llamas made incriminating statements to the police, he was charged with attempted murder. Sanchez-Llamas moved to dismiss the charge. He argued that he had a right under Article 36 which had been violated, and that his confession should consequently be inadmissible as evidence. The trial court denied the motion. The Oregon Court of Appeals and the Oregon Supreme Court both affirmed, holding that the Vienna Convention does not create individual rights, but only rights of countries.

Mario Bustillo, a Honduran national, was arrested for murdering a man with a baseball bat. He was not informed that Article 36 would allow him to notify his consulate of his arrest. At trial, Bustillo's counsel brought witnesses testifying that another man had committed the crime. Nevertheless, Bustillo was convicted of first-degree murder, and the conviction was affirmed on appeal. Bustillo then filed a petition for review in state habeas court. He argued for the first time that his conviction should be thrown out because his Article 36 right to notify his consulate had been violated. The state habeas court denied the petition. The court ruled that the petition was "procedurally barred" under state law because he had failed to raise the issue at trial. The Virginia Supreme Court refused to hear an appeal.

Issues: Whether Article 36 of the Vienna Covention grants rights that may be invoked by individuals in a judicial proceeding; (2) whether suppression of evidence is a proper remedy for a violation of Article 36; and (3) whether an Article 36 claim may be deemed forfeited under state procedural rules because a defendant failed to raise the claim at trial?

Holding:

1) Because the petitioners are not entitled to relief on their claims, it is unnecessary to resolve the question whether the Vienna Convention grants individuals enforceable rights. It is assumed, without deciding, that Article 36 does grant the petitioner such rights.

2) The Convention does not prescribe specific remedies for violations of Article 36. Rather it expressly leaves the implementation fo Article 36 to domestic law: Rights under the article ate to “be exercised in conformity with the laws and regulations of the receiving State.” As far as the text of the Convention is concerned the question of the availability of the exclusionary rule for Article 36 violations is a matter of domestic law.

It would be startling if the Convention were read to require suppression. The exclusionary rule is an entirely an American legal creation. It is implausible that other signatories to the Convention thought it to require a remedy that nearly all refuse to recognize as a matter of domestic law. There is no reason to suppose that Sanchez-Llamas would be afforded the relief he seeks here in any of the other 169 countries party to the Vienna Convention.

It is beyond dispute that the Court does not hold a supervisory power over the courts of the several States. The Courts authority to create a judicial remedy applicable in state court must like, if anywhere, in the treaty itself. Under the Constitution, the President has the power, “by and with the Advice and Consent of the Senate, to make treaties.” The US ratified the Convention with the expectation that it would be interpreted according to its terms. If we were to require suppression for Article 36 violations without some authority in the Convention, we would in effect be supplementing those terms by enlarging the obligations of the United States under the Convention. Where a treaty provides for a particular judicial remedy, there is no issue of intruding on the constitutional prerogatives of the States or the other federal branches. Court must apply the remedy as a requirement of federal law. But where a treaty does not provide particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own.

We have applied the exclusionary rule primarily to deter constitutional violations. In particular we have ruled that the Constitution requires the exclusion of evidence obtained by certain violations of the Fourth Amendment. The few cases in which the Court has suppressed evidence for statutory violations do not help Sanchez-Llamas. In those cases, the excluded evidence arose directly out of statutory violations that implicated important Fourth and Fifth Amendment interests. The violation of the right to consular notification, in contrast is at best remotely connected to gathering of evidence. It has nothing to do with searches or interrogations. It does not guarantee the defendants any assistance at all. In most circumstances, there is likely to be little connection between an Article 36 violation and evidence or statement obtained by police.

Moreover, the reason we often require suppression for Fourth and Fifth Amendment violations are entirely absent from the consular notification context, We require exclusion of coerced confessions both because we disapprove of such coercion and because such confessions tend to be unreliable. We exclude the fruits of unreasonable searches on the theory that without a strong deterrent, the constraints of the Fourth Amendment might be too easily disregarded by law enforcement. The situation here is quite different. The failure to inform a defendant of his Article 36 rights is unlikely, with any frequency, to produce unreliable confessions. And unlike the search-and-seizure context-where the need to obtain valuable evidence may tempt authorities to transgress Fourth Amendment limitations—police win little, if any, practical advantage from violating Article 36.

We think other constitutional and statutory requirements effectively protect the interest served in Sanchez-Llamas’ view by Article 36. A foreign national detained on suspicion of crime, like anyone else in our country, enjoys under our system the protections of the Due Process Clause. Article 36 adds little to these “legal options,” and we think it unnecessary to apply the exclusionary rule where other constitutional and statutory protections—many of them already enforced by exclusionary rule-safeguard the same interest Sanchez-Llamas claims are advance by Article 36. And, of course, diplomatic avenues—the primary means of encoring the Convention.

3) Although the ICJ’s interpretation deserves “respectful consideration,” it does not compel us to set aside the procedural default rule. Under our Constitution, “the Judicial Power of the United States” is “vested in one supreme Court.” That “judicial power extends to treaties.” If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law “is emphatically the province and duty of the judicial department,” headed by the “one Supreme Court” established by the Constitution. It is against this background that the United States ratified, and the Senate gave its advice and consent to, the various agreements that govern referral of Vienna Convention disputes to the ICJ.

- Why?

o Vis-à-vis the ICJ, we get to decide what the treaty means; it is a matter of federal law and we are the expositors of that

Nothing in the structure or purpose of the ICJ suggests that its interpretation were intended to be conclusive on US courts. The ICJ’s decisions have “no binding force except between the parties and in respect to that particular case.” Any interpretation of the law the ICS renders in the course of resolving particular disputes is thus not binding precedent even as to the ICJ itself; there is accordingly little reason to think that such interpretations were intended to be controlling on our courts.

- This argument raises the question of what happens when the Supreme Court and ICJ disagree on the same case, as in Medellin

Although the United States has agreed to “discharge its international obligations” in having state courts give effect to the decision in Avena, it has not taken the view that the ICJ’s interpretations of Article 36 is binding on our courts. Moreover, shortly after Avena, the United States withdrew from the Optional Protocol concerning Vienna Convention disputes. Whatever the effect of Avena and LaGrand before this withdrawal it is doubtful that our courts should give decisive weight to the interpretation of a tribunal whose jurisdiction in this area is no longer recognized by the United States.

- The italicized sentence could only be true if the state court did not have obligation before memo to follow ICJ’s interpretation of Article 36

The ICJ’s interpretation of Article 36 is inconsistent with the basic framework of an adversary system. If the States’ failure to inform the defendant of his Article 37 rights generally excuses the defendant’s failure to comply with relevant procedural rules, then presumably rules such as statutes of limitation and prohibition against filing successive habeas petitioner must also yield in the face of Article 36 claims. This sweeps too broadly, for it reads the “full effect” proviso in way that leaves little room for Article 36’s clear instruction that Article 36 rights “shall be exercise in conforms with the laws and regulations of the receiving State.”

- After Sanchez-Llamas, there is a split between what the Supreme Court thinks Article 36 means and what the ICJ thinks it means

o Supreme Court says if treaty is supreme law of land we have to interpret it; we are the Supreme Court…

- Before Sanchez-Llamas, state court could listen to ICJ; now they are certainly not obligated, may not even have the authority

Dissenting Opinion (Breyer): Unlike the majority, I would decide the first question and answer it affirmatively. A criminal defendant may, at trial or in a postconviction proceeding, raise the claim, at trial or in a postconviciton proceeding, raise the claim that state authorities violated the Convention in his case. My answer to the second question is that sometimes state procedural default rules must yield to the Convention insistence that domestic laws “enable full effect to be given to the purposes for which”; Article 36’srights are intended. And my answer to third question is that suppression may sometimes provide an appropriate remedy.

The petitioners must be right in respect to their claim that the Convention provides law that here courts apply in their respective proceedings. The Convention is a treat. And “all treaties made under the Authority of United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby.” Under the Supremacy Clause a treaty “to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.”

The question is the one this Court set forth in the Head Money Cases: Does the Convention set forth a “law” with the legal stature of an Act of Congress? Does the Convention “prescribe a rule by which the rights of the private citizen may be determined”? Are the obligations set forth in Article 36(1)(b) “of a nature to be enforce in a court of justice?

The “nature” of the Convention provisions raised by the petitioners indicates that they are intended to set forth standards that are judicially enforceable. Those provisions consist of the rights of a foreign national “arrested” or “detained in any other manner” (1) to have, on his “request,” the “consular post” “informed” of that arrest or detention; (2) to have forwarded “without delay” any “communication addressed to the consular post”; and (3) to be “informed without delay” of those two “rights.” These rights do not differ in their “nature” from other procedural rights that courts commonly enforce.

Moreover, the language of Article 36 speaks directly of the “rights” of the individual foreign national. Further, this Court has routinely permitted individuals to enforce treaty provisions similar to Article 36 in domestic judicial proceedings (US v. Rauscher, Kolovrat v. Oregon, Asakura v. Seattle). In all these cases, the Court recognized that (1) a treaty obligated the United States to treat foreign national in a certain manner; (2) the obligation had been breached by the Government’s conduct; and (3) the foreign national could therefore seek redress for that breach in a judicial proceeding, even though the treaty did not specifically mention judicial enforcement of its guarantees or even expressly state that its provisions were intended to confer rights on the foreign national. Language and context argue yet more strongly here in favor of permitting a criminal defendant in an appropriate case to find in the Convention a law to apply in the proceeding against him.

Finally, the international tribunal that the United States agreed would resolve disputes about the interpretation of the Convention, the ICJ, has twice ruled that an arrested foreign national may raise a violation of the arresting authorities’ obligation to “inform him without delay of his rights under” Article 36(1) in American judicial proceeding. That conclusion, as an “interpretation of an international agreement by an international court” deserves our “respectful consideration.” That “respectful consideration” counsel in favor of an interpretation that is consistent with the ICJ’s reading of the convention here.

The Executive Branch’s interpretation of treaty provisions is entitled to “great weight.” The Executive’s views on our treaty obligation “not conclusive.” Where language, the nature of the right, and the ICJ’s interpretation of treaty taken separately or together so strongly point to an intent to confer enforceable right upon an individual, the Executive Branch’s contrary view is not sufficient reason to adopt the Government’s interpretation of the Convention.

The majority’s argument overlooks what the ICJ actually said, overstates what it actually meant, and is inconsistent with what it actually did. Article 36(2) precludes procedural default only where the defendant’s failure to bring his claim sooner is the result of the underlying violation.. The Convention requires effective national remedies; hence local procedural rules must give way (to the Convention’s “full effect” requirement) when, but only when, it is the failure of the arresting authorities to inform the defendant of his Convention rights that prevented the defendant from bringing his claim sooner. The opinions nowhere suggest that a State must provide a procedural remedy to a defendant who, for example, sleeps on his rights. It did not hold that American courts must ignore their procedural default rules in each of the 54 individual case at issue. Rather it held that domestic court must provide “review and reconsideration” in each case.

- If Breyer’s opinion had been the majority, the state courts might actually have been obligated; if the state courts resisted, Supreme Court could ask president for federal troops

- On Breyer’s view , state courts had capacity to comply, but now he is telling them to comply

Medellin v. Texas (2008)

Facts: Jose Medellin, a Mexican national, was convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in Houston. Medellin raised a post-conviction challenge arguing that the state had violated his rights under the Vienna Convention, a treaty to which the United States is a party. Article 36 of the Vienna Convention gives any foreign national detained for a crime the right to contact his consulate. After his petition was ultimately dismissed by the Supreme Court (see Medellin v. Dretke), Medellin's case returned to the Texas Court of Criminal Appeals. Medellin's argument rested in part on a ruling of the International Court of Justice (ICJ) holding that the U.S. had violated the Vienna Convention rights of 51 Mexican nationals (including Medellin) and that their convictions must be reconsidered. Medellin argued that the Vienna Convention granted him an individual right that state courts must respect, a possibility left open by the Supreme Court's 2006 decision in Sanchez-Llamas v. Oregon. Medellin also cited a memorandum from the President of the United States that instructed state courts to comply with the ICJ's rulings by rehearing the cases. Medellin argued that the Constitution gives the President broad power to ensure that treaties are enforced, and that this power extends to the treatment of treaties in state court proceedings

The Texas Court of Criminal Appeals rejected each of Medellin's arguments and dismissed his petition. The court interpreted Sanchez-Llamas as standing for the principle that rulings of the ICJ are not binding on state courts. The Texas court stood by its position that allowing Medellin to raise the Vienna Convention issue after his trial would violate state procedural rules, and that those rules were not supplanted by the Convention. The President had no authority to order the enforcement in state court of an ICJ ruling, because that would imply a law-making power not allocated to him by the Constitution.

Issue: Is the ICJ’s judgment in Avena directly enforceable as domestic law in a state court in the US? Does the President’s memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in Avena without regard to state procedural default rules?

- Important to remain cognizant of the difference between the contention that VCCR is self-executing and has binding force, and whether the ICJ is judgment is self-executing and has binding force

o The argument is laid out in three parts

Holding: Contrast voting breakdown with Boumediene,

- (1) VCCR—we signed it and we’re executing it

A: (2) The Optional Protocol: “Disputes arising out of the interpretation or application of the Vienna Convention shall lie within the compulsory jurisdiction of the ICJ.” Submitting to jurisdiction and agreeing to be bound are two different things. The most natural reading of the Optional Protocol is a bare grant of jurisdictions. It provides only “disputes rising out of the interpretation or application of the Vienna Convention shall lie within the compulsory jurisdiction of the ICJ” and “may accordingly be brought before the ICJ by any party to the present Protocol.”

(3) Article 94(1) of the United Nations Charter provides that “each Member of the United Nations undertakes to comply with the decision of the ICJ in any case to which it is party.” The phrase “undertakes to comply” is not “an acknowledgment that an ICJ decision will have immediate legal effect in the courts of the UN members,” but rather “a commitment on the part of U.N. Members to take future action through their political branches to comply with an ICJ decision. The article is not a directive to domestic courts. It does not provide that the United States “shall” or “must” comply with an ICJ decision, nor indicate that the Senate ratified the U.N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts. Instead, “the words of Article 94 call upon governments to take certain action.” In other words, the U.N. Charter reads like “a compact between independent nations” that “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.”

Moreover, Article 94(2)—the enforcement provision-provides the ole remedy for noncompliance: referral to the United Nations Security Council by an aggrieved state. And, the ICJ statute, incorporated into the UN Charter, provides further evidence that the ICJ’s judgment in Avena does not automatically constitute federal law judicially enforceable in the United States courts. Article 59 of the statute provides that “the decision of the ICJ has no binding force except between the parties and in respect of that particular case.” The dissent does not explain how, Medellin, an individual, can be a party to the ICJ proceeding. Only nations states may be parties before the ICJ and ICJ judgments are binding only between those parties. The Executive Branch has unfailing adhered to its view that the relevant treaties do not create domestically enforceable federal law

B: The interpretive approach employed by the Court today-resorting to the text—is hardly novel. Foster and Percherman. The dissent’s contrary approach would assign to the courts—not political branches—the primary role in deciding when and how international agreements will be enforced To read a treaty so that it sometimes has the effect of domestic law and sometimes does not is tantamount to vesting with the judiciary the power not only to interpret but also to create the law.

That a judgment of an international tribunal might not automatically become domestic law hardly means the underlying treaty is “useless.” Such judgments would constitute international obligations, the proper subject of political and diplomatic negotiations. And Congress could elect to give them wholesale effect through implementing legislation, as it regularly has. Congress knows how to accord domestic effect to international obligations when it desires such a result

(III) (A): Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action in this areas. First, “when the president acts pursuant to express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own rights plus all that Congress can delegate. Second, “when the President acts in absence of either a congressional grant or denial of authority, he can rely upon his own independent powers, but there is a zone of twilight in which he had and Congress may have concurrent authority, or in which its distribution is uncertain.” In this circumstance, Presidential authority can derive support from “congressional inertia, indifference of quiescence.” Finally, “when the President takes measures incompatible the expressed or implied will of Congress, his power is at its lowest ebb,” and the Court can sustain his actions “only by disabling the Congress from acting upon the subject.”

The president has an array of political and diplomatic means available to enforce international obligations, but unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-execution treaty into domestic law falls to Congress. The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, consistent with all other constitutional restraints.

- Government made the Missouri v. Holland argument: If Congress could get power not to be found in the Constitution from a treaty, because of necessity, then the treaty can confer power on president not found in constitution because of necessity

“The President’s power to see that the laws are faithfully executed refutes the idea the he is to be a lawmaker.” Given the absence of congressional legislation, that the non-self-executing treaties at issue here die not “expressly or impliedly” vest the President with the unilateral authority to make them self-executing. Accordingly, the President’s Memo does not fall within the first category of the Youngstown framework. When the President asserts the power to “enforce” a non-self-executing treaty by unilaterally creating domestic law, he acts in conflict with the implicit understanding of the ratifying Senate. His assertion of authority, insofar as it is based on the pertinent non-self-executing treaties, is therefore within Justice Jackson’s third category, not the first or even the second.

(2) The claims-settlement cases do not support the authority that the President asserts in this case. The claims-settlement case involve a narrow set of circumstances: the making of executive agreements to settle civil claims between American citizens and foreign governments or foreign nationals. They are based on the view that “a systematic, unbroken, executive practice, long pursued, to the knowledge of the Congress and never before questioned,” can “raise a presumption that the action had been taken in pursuance of its consent.”

The President’s Memo is not supported by a “particularly longstanding practice” of congressional acquiescence, but rather is what the United States itself has described as “unprecedented action.” Indeed, the Government has not identified a single instance in which the President has attempted (or Congress has acquiesced in) a Presidential directive issued to courts, much less one that reaches deep into the heart of the State’s police powers and compels state courts to reopen final criminal judgments and set aside neutrally applicable state laws. The Executive’s narrow and strictly limited authority to settle international claims disputes authority to settle intentional claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memo.

- Contrasting the voting breakdown in Medellin with that in Boumediene

o Logical consistency of voting breakdown; substantive perspective

▪ On the one hand, the 4 conservatives believe that the constitution serves our interests, not the Constitution of all

▪ On the other hand, the 4 conservatives liberals believe the Constitution does serve everyone, including those outside its borders

▪ On this view, Kennedy is the lone inconsistent justice

o Logical inconsistency of voting breakdown, institutional perspective

▪ On the one hand, Kennedy is the only consistent justice; he views the Supreme Court as the rule of law, and its power will not be usurped

▪ On the other hand the other 8 justices are being inconsistent, voting for president in one instance and Supreme Court in another

- Doctrinal question of what determines whether treaty is self-executing

o A multi factor-test, similar to what the court employed in employed in Boumediesne

o Textualist approach of the majority; but

▪ Executives may use vagueness to get it passed

▪ And if you rely on the text, nothing may self-executing

Dissenting Opinion (Breyer)

(I)(A): Since Foster and Pollard, this Court has frequently held or assumed that particular treaty provisions self-executing, automatically binding the States without more. The Court has held to the contrary only in two cases: Foster which was reversed and another case where specific congressional actions indicated that Congress thought further legislation necessary. Of particular relevance to the present case, the Court has held that the United States may be obligated by treaty to comply with the judgment of an international tribunal interpreting that treaty, despite the absence of any congressional enactment specifically requiring such compliance.

(B) (1): The case law does make clear that, insofar as today’s majority looks for language about “self-execution” in the treaty itself and insofar as it erects “clear statement” presumptions designed to help find an answer, it is misguided. The many treaty provisions that this Court has found self-executing contain no textual language on the point. Few, if any, of these provisions are clear.

Few of them actually speak clearly on the matter of self-execution. This is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation’s domestic law regard the provision’s legal status. And that domestic status-determining law differs marked from one nation to another.

(2): Text and history, along with subject matter and related characteristics will help our courts determine whether the treaty provision “addresses itself to the political department for further action or to “the judicial department” for direct enforcement. The Court has also found the provision’s subject matter of particular importance. One might also ask whether the treaty provision specific, detailed individual legal rights. Other things being equal, where rights are specific and readily enforceable, the treaty provision more likely “addresses” the judiciary. Alternatively, would direct enforcement require the courts to create a new cause of action? Would such enforcement engender constitutional controversy? Would it create constitutionally undesirable conflict with the other branches? In such circumstances, it is not likely that the provision contemplates direct judicial enforcement.

Such question, drawn from case law stretching back 200 years, do not create a simple test, let alone a magic formula. But they do help to constitute a practical, context-specific judicial approach, seeking to separate run-of –the-mill judicial matters from other matters, sometimes more politically charged, sometimes more clearly the responsibility of other branches, sometimes lacking those attributes that would permit courts to act on their own without more ado.

The majority very different approach has seriously negative practical implications. The United States has entered into at least 70 treaties that contain provision for ICJ dispute settlement similar to the Protocol before us. If the Optional Protocol here, taken together with the UN Charter and its annexed ICJ Statute, is insufficient to warrant enforcement of the ICJ judgments before us, it is difficult to see how one could reach a different conclusion in any of these other instances. And the consequence is to undermine longstanding efforts in those treaties to create an effective international system for interpreting and applying many, often commercial, self-executing treaty provision. Nor is Congress likely to have the time available, let alone the will, to legislate judgment-by-judgment enforcement of, say, the ICJ’s (or other international tribunals’) resolution of non-politically-sensitive commercial disputes.

III: It is difficult to believe that in the exercise of his Article II powers pursuant to a ratified treaty, the President can never take action that would result in setting aside state law. Given the Court’s comparative lack of expertise in foreign affairs; given the importance of the Nation’s foreign relations; given the difficulty of finding the proper constitutional balance among state and federal, executive and legislative, powers in such matters; and given the likely future importance of this Court’s efforts to do so, I would very much hesitate before concluding that the Constitution implicitly sets forth broad prohibitions (or permissions) in this area. I would thus be content to leave the matter in the constitutional shade from which it has emerged.

o Parallel between Breyer and the language about it “difficult to believe” and the most important sentence of Missouri v. Holland

o Brown v. United States: Marshall toguht that sovereign power is unlimited in foreign relations; Story thinks the executive is constrained

IV: The majority’s two holdings taken together produce practical anomalies. They unnecessarily complicate the President’s foreign affairs task insofar as, for example, the increase the likelihood of Security Council Avena enforcement proceedings, of worsening relations with our neighbor Mexico, or precipitating actions by other nations putting at risk American citizens who have the misfortune to be arrested while traveling abroad, or of diminishing our Nation’s reputation abroad as a result of our failure to follow the “rule of law” principles that we preach.

o Breyer also thinks that the Court is part of rule of law

o When intentional is internalized and applied in domestic law, then it is on part with domestic and constitutional law in that they are binding and have force of law

o If our courts don’t internalize and apply law, it undermines the international rule of law

▪ Counterargument: We are committed to our procedures; all we said was “compulsory jurisdiction,” and “undertake to comply,”

• There is democracy deficit if the ICJ binds our Supreme Court

o Although Breyer cites 1834 case, back then self-executing met that US courts got interpret the treaty; Breyer’s argument that 94(1) is self-executing, however, means that ICJ gets to interpret the VCCR, not our courts

VI. The Constitution in the International Markets

- This section focuses on what court means when it invokes “necessity”

o We generally say “reasons of state,” today is focused on reasons; the things behind the law

▪ Financial necessity→ markets

• We have done terrorism, war

- Section also emphasizes why we have constitutional government

o To give government an opportunity to borrow money from its citizens and financial markets

▪ Acquiring capital

• Worst thing for government is the perception that it can’t pay off its debts

- Summary

o 1. Government needs money to meet its responsibilities

▪ It is doing all this against the backdrop of international credit market that can’t be forced to accept our currency

▪ Basic element of constitution is ability to borrow money

o 2. In moments of greatest crisis, Supreme Court will always bow in the face of financial necessity

▪ Legal structures of constitutional will bend to necessity

o 3. Is this all right?

▪ Bradley’s theory allows necessity to trump all

Charles A. Beard, An Economic Interpretation of the Constitution of the United States

- The Federalist presents in a relatively brief and systematic form of an economic interpretation of the Constitution by the men best fitted, through an intimate knowledge of the ideals of the framers, to expound the political science of the new government

- The keystone of the whole structure is, in fact, the system provided for judicial control—the most unique contribution to the science of government which has been made by American political genius.

- Two small clauses embody the chief demands of personalty against agrarianism: the emission of paper money is prohibited and the states are forbidden to impair the obligation of contract. The first of these means a return to a specie basis—when coupled with the requirement that the gold and silver coin of the United States shall be the legal tender

- The full import of the obligation of contract clause was doubtless better understood by Chief Justice Marshall than by any man of that generation. Marshall believed that it was designed to bring under the ban substantially all legislation which affected personalty adversely—in other words that it was similar in character to the due process clause of the 14th amendment.

- The four leading sources of probable conflict among the states if not united into a firm union: territory, commerce, the national debt, and violations of the contractual rights in property—all as severely economic as could well be imagined

- Crucial conceptualization of the constitutional struggle according to Bears is the relationshop between creditors versus debtors

o During revolution, states printed money; passed legal tender laws obligating them to take it→ this transferred wealth from creditors to debtors

Robert McGuire, To Form A More Perfect Union: A New Economic Interpretation of the US Constitution

- The overall findings of this study suggest that it is unlikely that any real-world constitution would ever be drafted or ratified through a disinterested and nonpartisan process. Because actual constitutional settings will always involve political actors who possess partisan interests and who likely will be able to predict the consequences of their decisions, partisan interests woll influence constitutional choice. Constitutions are the products of the interests of those who frame and adopt them.

- Charles Beard’s economic interpretation has not been refuted. The issues, in fact, have not been appropriately tested.

- An economic approach is not an argument against the legitimacy of the Constitution. The Constitution can be an economic document that was a product of its times, including having been based upon a property consciousness, and still be democratic and legitimate

- A politician’s interests include not only economic interest narrowly defined (pecuniary interests) but also the politician’s beliefs and ideologies (nonpecuniary interests) as well.

- The findings support the view that both personal and constituent interests played a role in determining specific provisions in the Constitution. The findings indicate voting patterns that can be said to generally support an economic interpretation of the Constitution because personal and constituent economic interests affected voting on particular issues primarily when those interests were more likely to be advanced by the outcome.

o The magnitude of the influence on the votes of many of the economic interests and characteristics of the delegates and of their constituents often was very large. The predicted probability of a yes vote on any given issue was considerably different for delegates with considerably different interest and characteristics.

o The statistical findings indicate that a delegate’s occupation, assets, and wealth did significantly influence his votes during the drafting and ratification of the Constitution

McCulloch v. Maryland (1819)

Facts: In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. Bank facilitated the state interest of having single currency. Would make government the creditor.

Issue: The case presented two questions: Did Congress have the authority to establish the bank, particularly since it is not enumerated? Did the Maryland law unconstitutionally interfere with congressional powers?

Holding: In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them."

Notes

- Marshall sort of sides with Frankfurter→ i.e., necessity is built into the constitution

- “The nature of a constitution requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced rom the nature of the objects themselves…In considering this question, then we must never forget that it is a constitution we are expounding.”

o This broad interpretation of constitution with necessity is invoked during time of financial necessity

- “The sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional”

- “Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretension to such a power.”

Hepburn v. Griswold (1870)

PROCEDURAL POSTURE: Defendants, a payor and others, appealed a judgment of the Court of Appeals of Kentucky, which held that defendants were not relieved by the Act of Congress of Feb. 25, 1862, from the obligation assumed in the contract with plaintiff payee and the payee could not be compelled to receive in payment a currency of different nature and value from that which was in the contemplation of the parties when the contract was made. Issue is whether this tender has to be accepted on contracts made before the issue

OVERVIEW: The payee held a promissory note wherein the payor promised to pay a certain amount of dollars. When the note was made, there were no United States notes. After the note was made, the Act was passed that made United States notes a legal tender in payment of debts. The payee brought an action to collect on the promissory note. Defendants sought to satisfy the note through the payment of United States notes. The payee contended that he was not obliged to accept the notes because the debt was contracted before the date of the Act. The court of appeals found in favor of the payee, and defendants sought reversal of that judgment by writ of error. The Court affirmed. The Court held that the payee was not bound to receive from defendants the currency tendered to him in payment of their note, made before the passage of the act of February 25th, 1862. The Court held that the Act was inconsistent with the spirit of the Constitution, and prohibited by the Constitution, because the Act was not really calculated to carry into effect any express power vested in Congress.

OUTCOME: The Court affirmed the judgment of the court of appeals.

- McCulloch v. Maryland: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that and, which are not prohibited but consistent with the letter and spirit of the Constitution, are constitutional.

- But there is another provision in the same amendment which, in our judgment, cannot have its full and intended effect unless construed as a direct prohibition of the legislation which we have been considering. It is that which declares that ‘no person shall be deprived of life, liberty, or property, without due process of law.’ In effect the argument is that forcing people to take money is wealth transfer.

o Framers were wooried that debtors would pass law dispossessing creditors…constitution was overwhelmingly property protecting document

o Framers were worried about this kinds of these things; wanted to create creditworthy entity→ send message to the international order

- Miller Dissent: The result of the war was conceded by all thoughtful men to depend on the capacity of the government to raise money in amounts previously unknown. The National government would have perished, and, with it, the Constitution which we are now called upon to construe with such nice and critical accuracy. The legal tender act prevent disastrous results and the tender clause was necessary to prevent them. “The legal tender clause of the statutes under consideration were placed emphatically by those enacted them, upon their necessity to the further borrowing of money and maintaining the army and navy. It was done reluctantly and with hesitation, and only after the necessity had been demonstrated and had become imperative.

o Dissenters are not saying that government has the power, saying absolutely necessity

Know v. Lee & Parker v. Davis (1871)

PROCEDURAL POSTURE: In one legal tender case, defendant purchaser sought review of the judgment of the Circuit Court for the Western District of Texas, which ruled in favor of the plaintiff resident on a writ of error. In the second case, plaintiff seller appealed from a decree in equity in the Supreme Judicial Court of Massachusetts, which ordered the seller to execute a deed upon payment of defendant purchaser.

OVERVIEW: Two disputes arose surrounding the use of paper money. In a series of acts, Congress authorized the use of greenbacks as the legal tender in the payment of all debts. Opponents of the acts argued that the power to authorize the use of greenbacks was not embraced in the authority given Congress to coin money, the power could not be implied from the power to regulate the value of money, the exercise of the legal tender power was not necessary to carrying into execution any of the powers expressly delegated, the power could not be assumed as a necessary inherent sovereign right, the history of the Constitution and the country indicated that the power was referred to the people, and the legal tender power was unconstitutional and impaired the obligation of contracts. The court held that the acts were constitutional as applied to contracts made either before or after their passage. The court held that the acts were a proper exercise of Congress' authority to coin money.

OUTCOME: The court affirmed the judgments.

Majority Opinion

- “The necessity was immediate and passing. The army was unpaid. There was then due to the soldiers in the field nearly a score of millions of dollars.. The requisitions from the War and Navy Departments for supplies exceeded fifty millions, and the current expenditure was over one million per day…”

- “But, without extending our remarks further, it will be seen that we hold the acts of Congress constitutional as applied to contracts made either before or after their passage. In so holding, we overrule so much of what was decided in Hepburn, as ruled the acts unwarranted by the Constitution so far as the apply to contracts made before their enactment.”

o “That case was decided by a divided court and by a court having a less number of judges than the law then in existence provided this court shall have. These cases have been heard before a full court, and they have received most of our careful consideration. The questions involved are constitutional questions of the most vital importance to the government and to the public at large. We have been in the habit of treating cases involving a consideration of constitutional power differently from those which concern merely private right.

▪ We are not accustomed to hear them in the absence of a full court, if it can be avoided. Even in cases involving only private rights, if convinced we had made a mistake, we would hear another argument and error.

Concurring Opinion (Bradley)

- “When the ordinary currency disappears, as it often does in time of war, when business began to stagnate and general bankruptcy is imminent, then the government must have power at the same time to renovate its own resources and to revive the drooping energies of the nation by supplying it with a circulating medium. What that medium shall be, what its character and qualities, will depend upon the greatness of the exigency, and the degree of promptitude which it demands.”

- “What is it that the protects the creditor in the accumulation and possession of his wealth? Is it not the government and its laws? And can he not consent to trust that government for a brief period until it shall have vindicated its right to exist? All property and all rights, even those of liberty and life, are held subject to the fundamental condition of being liable to be impaired by providential calamities and national vicissitudes.”

o You need government/law to even have your property; Hobbesian perspective

- These views are exhibited, not for the purpose showing that the power is a desirable one, and therefore, ought be assumed; much less for the purpose of giving judgment on the expediency of its exercise in any particular case; but for the purpose of showing that it is one of those vital and essential powers inhering in every national sovereignty and necessary to its self-preservation

o He says he is not trying to convince you, need it to be sovereign and self-preserve

- “All these are fundamental political conditions on which life, property, and money are respectively held and enjoyed under our system of government, nay, under any system of government, nay, under any system of government. There are times when the exigencies of the state rightly absorb all subordinate consideration of private interest, convenience, or feeling; and at such times, the temporary though compulsory acceptance by a private creditor of the government credit, in lieu of his debtor’s obligation to pay, is one of the slightest forms in which the necessary burdens of society can be sustained.

o Same is true of your life→ conscription

o Response to counterargument: Is it worse than to lose everything by the subversion of the government? What is it that protects him in the accumulation and possession of his wealth

▪ Creditor has choice between two evils→ the economic argument

o And court is always affecting property with coinage; you are dispossessing

- Bradley’s theory

o Necessity because government is the font of any rights→ Hobbesian perspective

▪ You should be glad you don’t have rights during time of exignecies

▪ Necessity→ no law→ unlimited powers

▪ Rights are subordinated

▪ Argument proves too much, however

Norman v. Baltimore & O.R (1935)

OVERVIEW: In consolidated cases challenging the validity of a joint resolution of Congress, 48 Stat. 112, with respect to "gold clauses" of private contracts for the payment of money, the court held that the resolution was valid, and affirmed the decisions of the lower courts. The resolution declared that any contractual provision that gave an obligee the right to require payment in gold was against public policy. In concluding that the joint resolution was constitutional, the court opined that the broad and comprehensive national authority over the subjects of revenue, finance, and currency was derived from the aggregate of the powers granted to Congress, including the power to regulate the value of money. Moreover, Congress was empowered with express authority to make all laws that were necessary and proper for exercising the other enumerated powers. Roosevelt wanted to collect all gold because gold clauses circumvented legal tender laws.

OUTCOME: The decisions of the lower courts finding the congressional joint resolution constitutional were affirmed. Congress was empowered with the authority to regulate the value of money, and to make all laws necessary and proper for carrying out that enumerated power.

Majority Opinion

- “The contention is that the power of the Congress, broadly sustained by the decisions we have cited in relation to private contracts for the payment of money generally, does not extend to the striking down of express contracts for gold payments. The cast before the Court in the legal tender cases, as we have seen, were not deemed to go so far. “

- “We are concerned with the constitutional power of the Congress over the monetary system of the country and its attempted frustration. Exercising that power, the Congress has undertaken to establish a uniform currency, and parity between kinds of currency, and to make that currency, dollar for dollar, legal tender for the payment of debts. In the light of abundant experience, the Congress was entitled to choose such a uniform monetary system, and to reject a dual system, with respect to all obligations within the range of the exercise of its constitutional authority.”

- “The contention that these gold clauses are valid contracts and cannot be struck down proceeds upon the assumption that private parties, and states and municipalities, may make and enforce contracts which may and enforce contracts which may limit that authority. Dismissing that untenable assumption, the facts must be faced. We think that it is clearly shown that these clauses interfere with the exertion of the power granted to the Congress, and certainly it not established that Congress arbitrarily or capriciously decided that such an interference existed.

Dissenting Opinion (McReynolds)

- “No definite delegation of such a power exists; and we cannot believe the farseeing framers, who labored with hope of establishing justice and securing the blessings of liberty, intended that the expected government should have authority to annihilate its own obligations and destroy the very rights which they were endeavoring to protect. Not only is there no permission for such actions; they are inhibited. And no plenitude of words can conform them to our charter”

- “It is true to say that the gold clauses ‘were intended to afford a definite standard or measure of value, and this to protect against a depreciation of the currency and against the discharge of the obligation by payment of less than that prescribed.”

- “The fundamental problem now presented is whether recent statutes passed by Congress in respect of money and credits were designed to attain a legitimate end. Or whether, under the guise of pursuing a monetary policy, Congress really has inaugurated a plan primarily designed to destroy private obligations, repudiate national debts, and drive into the Treasury all gold within the country is exchange for incontrovertible promises to pay, or much less value.”

o “Considering all the circumstances, we must conclude they show that the plan disclosed is of the latter description, and its enforcement would deprive the parties before us of their rights under the Consequently the Court should do what it can to afford adequate relief”

- In the Legal Tender Cases, the court held both the end in view and the means employed were lawful. The thing actually done was the issuance of bills endowed with the quality of legal tender in order to carry on until the United States could find it possible to meet their obligations in standard coin. This they accomplished in 1879. The purpose was to meet honorable obligations—not to repudiate them.

- These bonds are held by men and women in many parts of the world; they have relied upon our honor. Thousands of our own citizens of every degree not doubting the good faith of their sovereign have purchased them. It will not be easy for this multitude to appraise the form of words which establishes that they have suffered no appreciable damage. Their difficulty will nto be assuaged when they reflect that ready calculation of the exact loss suffered by the Phillipinne government moved Congress to satisfy it by appropriating

o US needs this gold to maintain its credibility on the international market

Nottz v. United States (1935)

PROCEDURAL POSTURE: Questions were propounded by the U.S. Court of Claims arising out of a claim based on gold certificates. Plaintiff owner brought suit as a holder of gold certificates of the Treasury of the United States. The owner alleged that defendant United States certified that the gold was deposited in the U.S. Treasury, and that it refused to redeem the certificates for gold coin when presented by the owner.

OVERVIEW: The United States gave the owner cash for the gold certificates. The owner asserted that as of a certain date, he was entitled to receive gold coin upon redemption of his gold certificates. The court found, however, that the owner did not fall within any of the statutory exemptions under the Emergency Bank Act of March 9, 1933, which permitted the Secretary of Treasury to pay and deliver to persons gold coin or bullion. The court also noted that at the time the owner presented the certificates to the United States, the United States dollar had devalued and that the currency paid to the owner for his gold certificates was then on a parity with that standard of value. As a result, it cannot be said that the owner, in receiving the currency on that basis, sustained any actual loss.

OUTCOME: The question submitted by the lower court as to whether the owner was entitled to recover actual damages from the United States for any loss he suffered was answered in the negative.

- “Had the gold coin been paid to him… he would been required under the applicable legislation and orders, fortwith to deliver the gold coin to the Treasury.”

- “The currency paid to the plaintiff for his gold certificates was then on a parity with that standard of value. It cannot be said that, in receiving the currency on that basis, he sustained any actual loss.”

- Government is prepared to dispossess citizens to meet its obligation in international markets

Perry v. United States (1935)

PROCEDURAL POSTURE: The Court responded to questions certified by the Court of claims in plaintiff bondholder's action to recover from defendant, the United States, on a bond that was issued under 40 Stat. 288. The bondholder claimed that he was entitled to redeem the bond, which was payable in gold dollars, for an amount based upon the weight of a gold dollar at the time he purchased it. The weight of a gold dollar was reduced by 31 Stat. 45.

OVERVIEW: The bondholder purchased a bond that was issued by the United States under 40 Stat. 288. The bond was payable in United States gold coin of the present standard of value. When the bondholder purchased the bond, the weight of a U.S. gold dollar was standardized under 31 Stat. 45. Before the bondholder redeemed his bond, 48 Stat. 113 and 48 Stat. 52, 53, as amended by 48 Stat. 342 were enacted. Under 48 Stat. 113, all United States obligations were declared payable only in legal tender and the gold clause in the bondholder's bond was revoked. Under 48 Stat. 52, 53, as amended by 48 Stat. 342 the weight of U.S. gold dollars was substantially reduced. The bondholder claimed that he was entitled to redeem his bond for gold dollars equal in weight to those he would have received if the weight under 31 Stat. 45 was still the standard. The United States had offered to redeem the bonds for their face value in legal tender. The court held that 48 Stat. 113 was an impermissible attempt by Congress to alter obligations of the United States. However, the court also held that the change in the weight of gold dollars did not result in any actual damages to the bondholder.

OUTCOME: The court held that the bondholder was not entitled to redeem a bond that was payable in gold coin of the standard of value at the time of purchase for an amount in legal tender that was in excess of the face value of the bond based upon a decrease in the weight of U.S. gold dollars.

Notes

- “The argument in favor of the Joint Resolution, as applied to government bonds, is in substance that the government cannot by contract restrict the exercise of a sovereign power.”

o “The Constitution gives to the Congress the power to borrow money on the credit of the United States, and unqualified power, a power vital to the government upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledge. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress had not been vested with authority to alter or destroy those obligations. The fact that the United States may not be sued without its consent is a matter of procedure which does not affect the legal and binding character of its contracts. While the Congress is under no duty to provide remedies through the courts, the contractual obligation still exists, and despite infirmities of procedure, remains birding upon the conscience of the sovereign.”

VII. Rights and International Norms

- Feldman’s perspective: Today’s issues are stand in for problems we have dealt with throughout the course→ rule of law & international law and sovereignty obedience to international law

- Exam

o Thesis + evidence + consideration of counterarguments

Loewen Group v. United States (2003)

- Two part argument: 1) unfair trial, 2) unfair bond rule

The Trial

- “Having read the transcript and having considered the submissions of the parties with respect to the conduct of the trial, we have reached the firm conclusion that the conduct of the trial by the trial judge was so flawed that it constituted a miscarriage of justice amounting to a manifest injustice as that expression is understood in international law. “

- “Judge Graves failed in his duty to take control of the trial by permitting the jury to be exposed to persistent and flagrant appeals to prejudice on the part of O’Keefe’s counsel and witnesses. Respondent is responsible for any failure on the part of the trial judge in failing to take control of the trial so as to ensure that it was fairly conducted in this respect “

Steps Taken By Lowen to Protects Its Position

- Having regard to the history of the trial, and the way in which it was conducted by Judge Graves, we do not consider that failures to object on the part of Loewen’s counsel amounted to a waiver of the grounds on which Claimants now contend that the conduct of the trial constituted a violation of NAFTA. There was a gross failure on the part of the trial judge to afford the due process due to Loewen in protecting it from the tactics employed by O’Keefe and its counsel. It defies common sense to suggest that Loewen’s counsel by their conduct made an election not to pursue their objections to those tactics and that Loewen waived its objections to the lack of due process and to the grounds on which it now complains.

Excessive Verdict

- Claimants had a very strong case for arguing that the damages awarded, both compensatory and punitive, were excessive, and that the amounts were so inflated as to invite the inference that the jury was swayed by prejudice, passion or sympathy. The initial award of punitive damages, despite the trial judge’s instruction that the jury was then to confine itself to issues of liability and compensatory damages, indicates that the jury was minded to award punitive damages against Loewen without instructions from the trial judge and without evidence to support the amount of an award.

- The total award (even the award of compensatory damages) appears to be grossly disproportionate to the damage suffered by O’Keefe. The dispute involved three contracts valued at $980,000 and an exchange of two funeral homes worth approximately $2.5 million for a Loewen funeral insurance company valued at approximately $4 million. The jury foreman said “May be O’Keefe lost $1 million dollars. $6 million to $8 million I’d say was right …” (App. at A3079). Respondent seeks to justify the award of $500 million not by reference to the substance of the dispute but by reference to Loewen’s “monopolization of funeral home markets and overcharging of grief-stricken consumers of funeral services”. Granted that asubstantial award of damages on this claim might well be justified, Claimants had very strong grounds for arguing that verdict of $500,000,000 was excessive.

NAFTA Article 1105

- Neither State practice, the decisions of international tribunals nor the opinion of commentators support the view that bad faith or malicious intention is an essential element of unfair and inequitable treatment or denial of justice amounting to a breach of international justice. Manifest injustice in the sense of a lack of due process leading to an outcome which offends a sense of judicial propriety is enough, even if one applies the Interpretation according to its terms.

- International law does, however, attach special importance to discriminatory violations of municipal law (Harvard Law School, Research in International Law, Draft Convention on the Law of Responsibility of States for Damage Done in Their Territory to the Persons or Property of Foreigners (“1929 Draft Convention”) 23 American Journal of International Law 133, 174 (Special Supp. 1929) (“a judgment [which] is manifestly unjust, especially if it has been inspired by ill-will towards foreigners as such or as citizens of a particular states”); Adede, A Fresh Look at the Meaning of Denial of Justice under International Law, XIV Can YB International Law 91 (“a … decision which is clearly at variance with the law and discriminatory cannot be allowed to establish legal obligations for the alien litigant”). A decision which is in breach of municipal law and is discriminatory against the foreign litigant amounts to manifest injustice according to international law.

The Necessity For Finality of Action on the Part of the State’s Legal System

- Having reached the conclusion that the trial and the verdict were improper and cannot be squared with minimum standards of fair international law and fair and equitable treatment, we must now consider the question whether, in the light of subsequent proceedings, the trial and the verdict alone or in combination with the subsequent proceedings amounted to an international wrong. We take up at this point the Respondent’s second ground of objection to competence and jurisdiction which covers much of the same ground and was not resolved in the Tribunal’s Decision of January 5, 2001.

- The principle that a court decision which can be challenged through the judicial process does not amount to a denial of justice at the international level has been linked to the duty imposed upon a State by international law to provide a fair and efficient system of justice.

- No instance has been drawn to our attention in which an international tribunal has held a State responsible for a breach of international law constituted by a lower court decision when there was available an effective and adequate appeal within the State’s legal system.

- The purpose of the requirement that a decision of a lower court be challenged through the judicial process before the State is responsible for a breach of international law constituted by judicial decision is to afford the State the opportunity of redressing through its legal system the inchoate breach of international law occasioned by the lower court decision. The requirement has application to breaches of Articles 1102 and 1110 as well as Article 1105.

Did Loewen pursue available local remedies?

- Although entry into the settlement agreement may well have been a reasonable course for Loewen to take, we are simply left to speculate on the reasons which led to the decision to adopt that course rather than to pursue other options. It is not a case in which it can be said that it was the only course which Loewen could reasonably be expected to take.

- Accordingly, our conclusion is that Loewen failed to pursue its domestic remedies, notably the Supreme Court option and that, in consequence, Loewen has not shown a violation of customary international law and a violation of NAFTA for which Respondent is responsible.

o Court is looking for an averment that there were no other options; or are they? Maybe they’re just worried about the upshot of their decision might lead to backlash

Orders and Conclusion

- (1) That it lacks jurisdiction to determine TLGI’s claims under NAFTA concerning the decisions of United States courts in consequence of TLGI’s assignment of those claims to a Canadian corporation owned and controlled by a United States corporation.

- (2) That it lacks jurisdiction to determine Raymond L. Loewen’s claims under NAFTA concerning decisions of the United States courts on the ground that it was not shown that he owned or controlled directly or indirectly TLGI when the claims were submitted to arbitration or after TLGI was reorganized under Chapter 11 of the United States Bankruptcy Code.

- (3) TLGI’s claims and Raymond L. Loewen’s are hereby dismissed in their entirety.

- (4) That each party shall bear its own costs, and shall bear equally the expenses of the Tribunal and the Secretariat.

- Too great a readiness to step from outside into the domestic arena, attributing the shape of an international wrong to what is really a local error (however serious), will damage both the integrity of the domestic judicial system and the viability of NAFTA itself. The natural instinct, when someone observes a miscarriage of justice, is to step in and try to put it right, but the interests of the international investing community demand that we must observe the principles which we have been appointed to apply, and stay our hands.

o Court is worried that US will walk away; concern in high salience cases that interference will lead to backlash

▪ Tribunal is not a domestic court (but see Dred Scott); they’re afraid of the US withdrawing

▪ Paradox: Tribunals trad lightly to preserve legitimacy, but illustrate no coercive force; on this view ICJ/Article 36 cases illustrate problem with tribunals exercising power

Roper v. Simmons (2005)

- “The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.”

- “As respondent and a number of amici emphasize, Article 37 of the UN Convention on the Convention the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18… Parallel prohibitions are contained in other significant international covenants.”

o Congress could have authority to pass statute proscribing death penalty because of tratey under Reid interpretation of Missouri v. Holland

- “Only seven countries other than the United States have executed juvenile offenders since 1990. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice.

- “The opinion of the world community, while not controlling our outcome, does provide respected and significant conformation of our conclusions.”

- According to his view, Constitution has to be venerable and hence consonant with international norms

Lawrence v. Texas (2003)

- “The sweeping references by Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities is pointing in an opposite direction.”

- “An adult male resident in Northern Ireland alleged he was a practicing homosexual desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right.”

o “Authoritative in all countries that are members of the Council Europe, the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.

Breyer and Scalia

Breyer

- So many ways international law influences our law

o Similarities between problems engaging and facing

- Blackstone, King Arthur don’t preclude the use of it, why should he?

- If we cite them, they’ll cite us

- It is analogous to legislative history

o But not major factor, not determinative

o Need to have faith in jurist to be honest in application

- The lionshare of cases are the low-profile ones

o It comes in the briefs—the law students need to be studying it in torts and contracts

Scalia

- We can and should use it when treaties are at issue; just as we defer to agencies

- Abortion, exclusionary rule—things other countries don’t use; selective usage by the courts

- Evidence that they are substituting their own judgment

- Lends itself to /invites manipulation

- Not the judges job to a moral arbiter, judicial decrees should not be the instruments of change

o Persuade your fellow citizens in a democracy

- 1. Orignalism does not implicate it; citing it shows that you’re not a citizen

- 2. Democracy problem; substituting your own judgment; like citing legislative history→ cocktail party analogy

- 3. Acontextual; constitution is an organic body of local views, values, beliefs (self-referential ideal)

Ruth Bader Ginsburg, Looking Beyond our Borders: The Value of a Comparative Perspective in Constitutional Adjudication

- We are the losers if we do not both share our experience with, and learn from others.

- The 1776 Declaration of Independence, you will recall, expressed concern about the opinions of other peoples, it placed before the world the reasons why the USA was impelled to separate form Great Britain. The Declaration did so out of “decent Respect to the Opinions of Mankind”

- The just pride we take in our system of constitutional review, also in our judicially enforceable Bill of Rights, hardly means we should rest content with our current jurisprudence and have little to learn from others. May I suggest two areas in which, as I see it, we could do better. Our concerns the dynamism with which we interpret our Constitution, and similarly, our common law. The other involves the extraterritorial application on fundamental rights.

- Recognizing that forecasts are risky, I nonetheless believe we will continue to accord “a decent Respect to the Opinions of Humankind” as a matter of comity and in a spirit of humility. Comity, because projects vital to our well being—combating international terrorism is a prime example-- require trust and cooperation of the nations the world over. And humility because, in Justice O’Connor’s words: “Other legal systems continue to innovate, to experiment, and to find new solutions to the new legal problems that arise each day, from which we can learn and benefit.”

- Breyer and Ginsburg could have responded that it is artificial to say that our own conception is not borne out of interactions with other nations; belonging to civilized community; the public is cosmopolitan

- Breyer and Ginsburg, however, don’t invoke this cosmopolitan argument because it will invite a backlash

o Goes back to Feldman argument; the main issue is the relationship between binding international and binding domestic law

▪ The real topic is how will our national government manages as the international legal order becomes more robust

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