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Published online by Cambridge University Press: 27 February 2017
Many commentators argued that a central problem with the government’s actions after the attacks of September 11, 2001, was executive unilateralism. For example, in criticizing President George W. Bush’s initial effort to establish military commissions to try terrorists, Professors Neal Katyal and Laurence Tribe argued that, “in the absence of an emergency that threatens truly irreparable damage to the nation or its Constitution, that Constitution’s text, structure, and logic demand approval by Congress if life, liberty, or property are to be significantly curtailed or abridged.” These commentators therefore invited the courts to play a “democracy-forcing” role to prompt greater congressional participation, through, in particular, the application of “clear statement” requirements. In Hamdan v. Rumsfeld, the Supreme Court accepted this invitation. In holding that the military commission system that President Bush had established to try terrorist detainees was invalid, the Court relied on what it believed to be restrictions in the Uniform Code of Militaryjustice (U.C.M.J.), a statute that is of course subject to amendment by Congress. Thus, as Justice Stephen Breyer and other Justices noted in a concurrence, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”
1 Neal, K. Katyal & Laurence, H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals 111 Yale L.J. 1259, 1266 (2002)Google Scholar (emphasis added).
2 Id. at 1289-90; see also, e.g., Cass, R. Sunstein, Minimalism at War 2004 Sup. Ct. Rev. 47, 53–54 Google Scholar (arguing that “[c]ourts should require clear congressional authorization before the executive intrudes on interests that have a strong claim to constitutional protection”).
3 Hamdan v. Rumsfeld, 126S.Ct. 2749 (2006); see Jack, Balkin, Hamdan as a Democracy-Forcing Decision Balkanization, June 29, 2006, <http://balkin.blogspot.com/2006/06/hamdan-as-democracy-forcing-decision.html=.Google Scholar
4 126 S.Ct. at 2799 (Breyer, J., concurring).
5 Pub. L. No. 109-366, 120 Stat. 2600 (2006) (to be codified at 10 U.S.C. §§948a-950w and other sections of titles 10,18,28, and 42) [hereinafter MCA]. The vote in Congress in favor of the MCA was 250-170 in the House and 65-34 in the Senate.
6 See Military Order, Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism, 66 Fed. Reg. 57,831, 57,834, §4 (Nov. 16, 2001).
7 Id. §2(a)(l).
8 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. §1541 note (Supp. 1, 2002)); 10 U.S.C. §§821, 836 (2000). Section 821 provides that “[t]he provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.” Section 836 provides that the president may prescribe procedures for courts-martial, military commissions, and other military tribunals through regulations that “shall, so far as [the president] considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not . . . be contrary to or inconsistent with this chapter.” Section 836 further provides that” [a] 11 rules and regulations made under this article shall be uniform insofar as practicable.”
9 Ex parte Quirin, 317 U.S. 1 (1942).
10 Proclamation No. 2561, 7 Fed. Reg, 5101 (July 7, 1942). Notwithstanding this language, the Supreme Court construed the proclamation as permitting habeas corpus review. See 317 U.S. at 25. In commenting on President Bush’s similar order, Alberto Gonzales, then counsel to the president, stated that, “[u]nder the order, anyone arrested, detained or tried in the United States by a military commission will be able to challenge the lawfulness of the commission’s jurisdiction through a habeas corpus proceeding in a federal court,” and he noted that” [t]he language of the order is similar to the language of a military tribunal order issued by President Franklin Roosevelt that was construed by the Supreme Court to permit habeas corpus review.” Alberto, R. Gonzales, Op-Ed, Martial Justice, Full and Fair N.Y. Times, Nov. 30, 2001, at A27.Google Scholar
11 Military Order, 7 Fed. Reg. 5103 (July 7, 1942).
13 See, e.g., U.S. Dep’t of Defense, Military Commission Order No. 1 (Mar. 21, 2002), 41 ILM 725 (2002), available at <http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf= U.S. Dep’t of Defense, Military Commission Instructions, Nos. 1-10 (Apr. 2003-Mar. 2006), available at <http://www.defenselink.mil/news/Aug2004/commissions_instructions.html=.
14 See Jennifer, K. Elsea, The Military Commissions Act of 2006: Analysis of Procedural Rules and Comparison with Previous DOD Rules and the Uniform Code of Military Justice, at CRS-3 (Congressional Research Service [CRS] Oct. 12, 2006), available at <http://www.fas.org/sgp/crs/natsec/RL33688.pdf=Google Scholar.
15 Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004).
16 Rasul v. Bush, 542 U.S. 466,483 (2004). Section 2241 provides in relevant part that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” Such writs shall extend to prisoners “in custody under or by color of the authority of the United States. . . [or] in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §2241(a), (c)(2000).
17 U.S. Dep’t of Defense, List of Detainees Who Went Through Complete CSRT Process, at <http://www.dod.mil/pubs/foi/detainees/detainee_list.pdf=.
19 The Administrative Review Board assesses whether the detainee is “a continuing threat to the U.S. or its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters (e.g., Taliban), and whether there are other factors that could form the basis for continued detention (e.g., the enemy combatant’s intelligence value and any law enforcement interest in the detainee).” Gordon England, Memorandum to Secretaries of the Military Departments et al., Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba, para. 1(c) (July 14, 2006), available at <http://www.defenselink.mil/news/Aug2006/d20060809ARBProceduresMemo.pdf= see also U.S. Dep’t of Defense, News Release No. 360-07, Detainee Transfer Announced (Mar. 30, 2007) (noting that,” [s]ince 2002, approximately 390 detainees have departed Guantanamo for other countries”).
20 Pub. L. No. 109-148, Div. A, tit. 10, 119 Stat. 2739, §1005(e)(l) (2005).
21 Id §1005(e)(2), (3). The Supreme Court is allowed to review the D.C. Circuit’s decision on a petition for a writ of certiorari.
22 126 S.Ct. 2749, 2762-69 (2006).
23 Id. at 2790.
24 Id. at 2795.
25 George, W. Bush, Memorandum: Humane Treatment of Al Qaeda and Taliban Detainees, para. 2(a) (Feb. 7, 2002), at <http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB127/02.02.07.pdf=.Google Scholar
26 Id., paras. 2(b), (d).
27 Id, para. 2(c).
28 Hamdan, 126 S.Ct. at 2795-96.5 But cf International Committee of The Red Cross [ICRC], Commentary on the Geneva Conventions of 12 August 1949: III Geneva Convention Relative to the Treatment of Prisoners of War 28 (Jean S. Pictet gen. ed., 1960) (noting, in commenting on common Article 3, that “the Red Cross has long been trying to aid the victims of civil wars and internal conflicts, the dangers of which are sometimes even greater than those of international wars”) (emphasis added) [hereinafter ICRC III Geneva Commentary]; ICRC, Commentary on The Additional Protocols of 8 June 1977 To The Geneva Conventions of 12 August 1949, at 1319 (Yves Sandoz, Christophe Swinarski, & Bruno Zimmermann eds., 1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other: the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory.”) (footnote omitted) (emphasis added).
29 126 S. Ct. at 2795-96. Under section 821, supra note 8, the U.C.M.J.’s courts-martial provisions do not deprive military commissions of concurrent jurisdiction to try offenses “that by statute or by the law of war may be tried by military commissions.”
30 See supra text at note 4.
31 126 S. Ct. at 2808 (Kennedy, J., concurring); see also id. at 2800 (“If Congress, after due consideration, deems it appropriate to change the controlling statutes, in conformance with the Constitution and other laws, it has the power and prerogative to do so.”). In referring to “conformance with the Constitution and other laws,” Justice Kennedy obviously was reserving some ability to review the legality of revised military commissions.
32 See id. at 2799 (“This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction.”); id. at 2800 (“[D]omestic statutes control this case.”); id. at 2801 (citing Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 637 (1952)) (“If the President has exceeded these limits [in the U.C.M.J.], this becomes a case of conflict between Presidential and congressional action—a case within Justice Jackson’s third category, not the second or first.”).
34 William, Glaberson, Plea of Guilty from a Detainee in Guantánamo N.Y. Times, Mar. 27, 2007, at A1.Google Scholar
35 10 U.S.C. §948(b), (c).
36 Id. §948c.
37 Id. §948a( 1) (A). The CSRTs determine whether an individual is an “enemy combatant,” not whether the individual is an “unlawful enemy combatant.” The MCA, in turn, exempts “lawful” enemy combatants from trial by military commission, and it defines the circumstances under which an individual will qualify as a lawful enemy combatant. Id. §948a(2). As noted in the text, the MCA further declares that the Taliban, Al Qaeda, and “associated forces” qualify as unlawful enemy combatants.
38 Id. §948b(g).
39 See Joint Statement of Senators [John] McCain, [John] Warner, and [Lindsey] Graham on Individual Rights Under the Geneva Conventions, 152 Cong. Reg. S10,401, S10,402 (daily ed. Sept. 28, 2006) [hereinafter Senators’ Joint Statement] (“It is not the intent of Congress to dictate what can or cannot be said by litigants in any case.”). As a result, the First Amendment considerations raised by Professor Carlos Vazquez concerning this provision are probably not implicated. See Carlos, Manuel Vázquez, The Military Commissions Act, the Geneva Conventions, and the Courts: A Critical Guide 101 AJIL 73, 84–85 (2007)Google Scholar (in the initial Agora on the MCA in the previous issue). Professor Vázquez’s suggestion that §948b(g) might be a speech provision appears to be based in part on the assumption that Congress in the MCA was allowing detainees to raise Geneva Convention claims in appeals to the D.C. Circuit, but not in the military commissions. In fact, it does not appear that treaty claims are included in the D.C. Circuit’s scope of review. See infra text at notes 56-64.
40 MCA, supra note 5, sec. 5(a), 28 U.S.C. §2241 note.
41 The Alien Tort Statute provides that” [t] he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. §1350 (2000). Although it is only a jurisdictional statute, it has been construed by the Supreme Court as conferring some authority on the federal courts to develop common law causes of action for violations of customary international law. See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004); see also Curtis, A. Bradley, Jack, L. Goldsmith, & David, H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120Harv. L. Rev. 869 (2007).Google Scholar Some detainees in the war on terrorism have attempted to bring claims against U.S. government actors under the statute. See, e.g., Rasul v. Rumsfeld, 414 F.Supp.2d 26 (D.D.C. 2006); see also Rasul v. Bush, 542 U.S. 466,484-85 (2004) (noting that the detainees at Guantánamo were not jurisdictionally precluded from bringing claims under the Alien Tort Statute).
42 See Vázquez, supra note 39, at 92.
43 See id. at 93. For example, in ratifying human rights treaties, such as the Convention Against Torture, the Senate and the president have expressly declared the treaties to be “not self-executing,” and courts have construed these declarations as rendering the treaties judicially unenforceable. See generally Curtis, A. Bradley & Jack, L. Goldsmith, Treaties, Human Rights, and Conditional Consent 149 U. Pa. L. Rev. 399 (2000)Google Scholar; see also Sosa, 542 U.S. at 735 (noting that the United States ratified the International Covenant on Civil and Political Rights “on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts”) (emphasis added). In addition, customary international law, which was historically referred to as part of the “law of nations,” may not be judicially enforceable against the executive. .See The Paquete Habana, 175 U.S. 677,700 (1900) (stating that courts are to apply the law of nations “where there is n o . . . controlling executive or legislative act”); Garcia-Mir v. Meese, 788 F.2d 1446, 1453-54 (11th Cir. 1986) (holding that customary international law is not judicially enforceable against the attorney general).
44 10 U.S.C. §948b(f).
45 Geneva Convention Relative to the Treatment of Prisoners of War, Arts. 129, 130, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention].
46 18 U.S.C. §2441(c) (2000).
47 See MCA, supra note 5, sec. 6(a)(1), (b)(1)(B), 18 U.S.C. §2441 note. Although Article 130 of the Third Geneva Convention, supra note 45, defines grave breaches to include “depriving a prisoner of war of the rights of fair and regular trial,” this is presumably a reference to the procedural rights of lawful combatants in an international armed conflict, not the minimal rights specified in common Article 3 for an “armed conflict not of an international character.” As a result, it is not clear that the United States is obligated under the Third Geneva Convention to criminalize the denial of a regularly constituted court under common Article 3. Indeed, it is not clear that the obligation to criminalize grave breaches has any application to conduct that takes place in noninternational armed conflicts. Cf. Michael, J. Matheson, The Amendment of the War Crimes Act 101 AJIL 48, 52 (2007)Google Scholar (“The Conventions require criminal penalties only for ‘grave breaches’ and do not require that such penalties be applied against the full range of violations of common Article 3—if, indeed, the ‘grave breaches’ provisions apply to that article at all.”).
48 MCA, supra note 5, sec. 6(a)(2), 18 U.S.C. §2441 note.
49 Id, sec. 6(a)(3)(A).
50 Id., sec. 6(a)(2).
51 Id, sec. 7(a), amending 28 U.S.C. §2241(e).
52 MCA section 7(b) provides:
The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.
28 U.S.C. §2441 note.
53 10 U.S.C. §950g(a).
54 Id §950g(c).
55 MCA, supra note 5, sec. 7(a), 28 U.S.C. §2441 note.
56 28 U.S.C. §2241(c)(3) (2000).
57 It is not clear whether the Geneva Conventions are even relevant to the CSRT process. Common Article 3 addresses trials, but not detention determinations. Article 5 of the Third Geneva Convention, supra note 45, addresses prisoner-of-war determinations, but it simply refers to a “competent tribunal” without specifying procedural requirements and, in any event, the CSRT process is not used to determine whether the detainees qualify as prisoners of war. See Robert, M. Chesney, Judicial Review, Combatant Status Determinations, and the Possible Consequences of Boumediene, 48 Harv. Int’l l.J. Online 62, 65 (2007), <http://www.harvardilj.org/online/110=Google Scholar; see also Geoffrey, Corn, Eric, Talbot Jensen, & Sean, Watts, Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocker 116 Yale L J. Supp. 327, 327 (2007)Google Scholar (“In our view, because predicate analysis identified no qualifying POW groups to which detainees could claim membership, the CSRTs were appropriately precluded from determining POW status,”).
58 For the Constitution, see Article III, Section 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties . . . . “ ) , and Article VI (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties...”). For statutes in addition to 28 U.S.C. §2241, see, for example, 28 U.S.C. §1331 (2000) (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of die United States.”), and 28 U.S.C. § 1257 (2000) (stating that the Supreme Court has jurisdiction to review state court decisions “where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States”).
59 152 Cong. Rec. S10.268 (daily ed. Sept. 27, 2006) (Sen. Kyl) (emphasis added).
60 152 Cong. Rec. S10.404 (daily ed. Sept. 28, 2006) (Sen. Sessions) (emphasis added).
61 Id. at S10,403 (Sen. Cornyn) (emphasis added).
62 In discussing the DTA, for example, Senator Carl Levin simply noted that the D.C. Circuit would be able to review “whether the application of [the CSRT] standards and procedures is consistent with the Constitution and laws of the United States.” 151 Cong. Rec. S12.802 (daily ed. Nov. 15, 2005) (Sen. Levin); see also, e.g., 151 Cong. Rec. S14.258 (daily ed. Dec. 21, 2005) (Sen. Levin). Similarly, the House Armed Services Committee report on the MCA states that “the jurisdiction of the D.C. Circuit should be limited to the consideration of whether the final decision was consistent with the standards and procedures for military commissions and to the extent applicable, the Constitution,” making no mention of treaties. H.R. Rep. NO. 109-664, pt. 1, at 23 (2006).
63 152 Cong. Rec. SI0, 266 (daily ed. Sept. 27, 2006) (Sen. Graham).
64 See also Examining Proposals to Limit Guantanamo Detainees’ Access to Habeas Corpus Review: Hearing Before the S. Comm. on the judiciary, 109th Cong. (Sept. 25,2006) (testimony of Bradford Berenson) (“This [D.C. Circuit review in the DTA] . . . appears to exclude any claims based on treaty rights that have not been incorporated into U.S. law or are not mirrored in any U.S. constitutional protections that would apply to the detainees.”), at <http://judiciary.senate.gov/testimony.cfm?id=2416&wit_id=5775=.
65 The constitutional issue is the same whether the limit on suspension is viewed as the protection of a right or as a limitation on Congress. Cf. Boumediene v. Bush, 476 F.3d 981, 995-98 (D.C. Cir. 2007) (Rogers, J., dissenting) (arguing that the Suspension Clause should be viewed as a limitation on Congress), cert, denied, 127S.Ct. 1478 (2007). Either way, the issue is whether the limitations on Congress’s ability to suspend the writ of habeas corpus apply, as a constitutional matter, to non-U.S. citizens held at Guantánamo.
66 U.S. Const. Art. I, §9, cl. 2.
67 INS v. St. Cyr, 533 U.S. 289, 301 (2001).
68 Id. There is significant academic disagreement over whether the Suspension Clause was intended as a restraint on Congress’s ability to withdraw the habeas jurisdiction of the federal courts (as the Supreme Court appears to assume) or merely as a limitation on Congress’s ability to interfere with the habeas jurisdiction of the state courts. Compare, e.g., Francis, Paschal, The Constitution and Habeas Corpus 1970 Duke L.J. 605 Google Scholar, with William, F. Duker, A Constitutional History of Habeas Corpus 129–80 (1980).Google Scholar This issue is complicated by the Supreme Court’s decision in Tarble’ s Case, 80 U.S. (13 Wall.) 397(1871), in which the Court held that state courts did not have the authority to order the release of someone held in federal custody.
69 Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004). For decisions addressing the ability of U.S. citizens detained by U.S. military authorities in Iraq to seek habeas relief in a U.S. court, compare Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007) (allowing the detainee to seek habeas relief, where he had not been charged or convicted by a non-U.S. tribunal), with Munaf v. Geren, 2007 U.S. App. Lexis 7974 (D.C. Cir. Apr. 6, 2007) (not allowing the detainee to seek habeas relief after being convicted by an Iraqi court). Cf. Hirota v. MacArthur, 338 U.S. 197(1948) (denying leave to file petitions for writs of habeas corpus to Japanese citizens who had been tried by a military tribunal in Japan).
70 See Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007); Hamdan v. Rumsfeld, 464 F.Supp.2d 9 (D.D.C. 2006).
71 Johnson v. Eisentrager, 339 U.S. 763 (1950).
72 Rasul v. Bush, 542 U.S. 466 (2004).
73 Id. at 476.
74 Id. at 480. The United States occupies the Guantánamo naval base pursuant to a 1903 lease agreement with Cuba, in which the United States “recognizes the continuance of the ultimate sovereignty of the Republic of Cuba” over the base, and Cuba “consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas.” Lease of Lands for Coaling and Naval Stations, U.S.-Cuba, Art. Ill, Feb. 23, 1903, TS No. 418. As agreed in a 1934 treaty between Cuba and the United States, Cuba cannot unilaterally terminate the lease “ [s]o long as the United States of America shall not abandon the said naval station.” Treaty Defining Relations with Cuba, U.S.Cuba, Art. Ill, May 29, 1934, 48 Stat. 1683, TS No. 866.
75 Rasul, 542 U.S. at 481.
76 One circumstance that has changed since Rasul, however, is that each detainee at Guantánamo has received a hearing before a CSRT, and thus it is no longer true that they have “never been afforded access to any tribunal.” The Court did not indicate in Rasul the extent to which this factor was significant, but it seems unlikely that a majority of the Court would conclude that the mere existence of the CSRT process is sufficient by itself to preclude constitutional review at Guantánamo, since a principal reason for such constitutional review would be to assess the sufficiency of that very process.
77 Rasul, 542 U.S. at 487 (Kennedy, J., concurring); cf. In re Yamashita, 327 U.S. 1, 9 (1946) (allowing habeas action to be filed challenging military commission trial in the Philippines, then a territory of the United States, and noting that Congress “has not withdrawn, and the Executive branch of the Government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus”).
78 See United States v. Verdugo-Urquidez, 494 U.S. 259, 275-78 (1990) (Kennedy, J., concurring). Justice Kennedy’s contextual approach to the applicability of the Constitution abroad is similar to the approach of Justice Harlan. See Reid v. Covert, 354 U.S. 1, 65-67 (1957) (Harlan, J., concurring).
79 But cf. J. Andrew, Kent, A Textual and Historical Case Against a Global Constitution 95 Geo. L.J. 463, 521 (2007)Google Scholar (“Textual and structural evidence suggests that the constitutionally protected writ of habeas corpus is only available within the United States.”).
80 Although the Suspension Clause does not state this expressly, the Supreme Court has assumed that only Congress has the authority to suspend the writ of habeas corpus. See Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (“Only in the rarest of circumstances has Congress seen fit to suspend the writ. At all other times, it has remained a critical check on the Executive, ensuring that it does not detain individuals except in accordance with law.”) (citation omitted); id. at 562 (Scalia, J., dissenting) (“Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I.”).
81 Compare Hamdi, 542U.S.at578 (Scalia, J., dissenting) (“[W]hether the attacks of September 11,2001, constitute an ‘invasion,’ and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court.”), with Amanda, L. Tyler, Is Suspension a Political Question? 59 Stan. L. Rev. 333 (2006)Google Scholar (arguing that the determination of whether the conditions for suspension exist is not a political question).
82 Cf. INS v. St. Cyr, 533 U.S. 289, 301 n. 13 (2001) (“The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.”).
83 See, e.g., H.R. Rep. No. 109-664, pt. 2, at 5 (2006) (expressing the view that “United States constitutional protections do not apply to alien prisoners ofwar held outside of our borders”); 152 Cong. Rec. S10.267 (daily ed. Sept. 27, 2006) (Sen. Graham) (“ [I] f there is a constitutional right of habeas corpus given to enemy combatants, that is a totally different endeavor, and it would change in many ways what I have said.”).
84 St. Cyr, 533 U.S. a t 3l 4 n . 38.
85 Swain v. Pressley, 430 U.S. 372, 381 (1977).
86 See, e.g., Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922) (noting that only the Supreme Court’s jurisdiction “is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution.”); see also H.R. Rep. NO. 109-664, pt. 2, supra note 83, at 4-5 (“The Committee strongly believes that the Constitution gives Congress the power to determine whether the Federal courts have jurisdiction over applications for a writ of habeas corpus pursuant to 28 U.S.C. §2241 filed by or on behalf of an alien detained . . . at Guantanamo Bay, Cuba.”).
87 The government’s brief opposing the grant of certiorari in Boumediene was largely focused on this question. See Brief for the Respondents in Opposition, at 12-19, Boumediene v. Bush, Nos. 06-1195, 06-1196 (Sup. Ct. Mar. 2007), at <http://www.scotusblog.com/movabletype/archives/BoumedieneBIO.pdf=0 I am assuming here that the constitutional right of habeas corpus does not include a right to challenge conditions of confinement, as opposed to the legality of detention. Cf. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) (describing the “core” of habeas corpus as a challenge to the “fact or duration” of confinement).
88 See Gordon England, Memorandum for Secretaries of the Military Departments et al., Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba (July 14, 2006), available at <http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf= [hereinafter CSRT Memorandum]. Some litigants have argued that the D.C. Circuit review cannot be adequate because it is premised on there being a CSRT determination, and there is no statutory requirement that the military conduct such a determination. However, these determinations are mandated by military directive for all detainees at Guantánamo, and the military appears to have followed this directive. If the military ever fails to provide a determination to a detainee entitled to one, presumably a court could address, on a case-specific basis, the potential infringement of the constitutional right to habeas corpus entailed by that failure.
89 Id., Enclosure 1 (Combatant Status Review Tribunal Process), at 2.
90 Id. at 6.
91 Id. at 4.
92 Id. at 6.
93 Hamdi v. Rumsfeld, 542 U.S. 507, 538 (2004). Article 5 of the Third Geneva Convention, supra note 45, simply provides that if there is doubt about a detainee’s status, the detainee is to enjoy the protection of the Convention “until such time as [his] status has been determined by a competent tribunal,” and does not define the process to be used by such a tribunal. Under army regulations, this status determination involves procedures that are less elaborate than those of the CSRTs. See U.S. Dep’t of the Army, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Regulation 190-8, §1-6(1997).For example, no “personal representative” is provided for the prisoner-of-war determinations, and no appeal is allowed of the determination, let alone an appeal to a federal court.
94 Hamdi, 542 U.S. at 534.
95 Cf. United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”).
96 At the time this essay was written, petitions were pending before the D.C. Circuit arising from CSRT determinations. See Parhat v. Gates, No. 06-1397 (D.C. Cir.); Bismullah v. Gates, No. 06-1197 (D.C. Cir.).
97 The same considerations that apply when determining whether a constitutional right of habeas corpus extends to Guantánamo (such as the extent of U.S. jurisdiction and control there) would likely apply when considering whether and to what extent the Fifth Amendment Due Process Clause extends to Guantánamo. Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 278 (1990) (Kennedy, J., concurring) (“ ‘[T]he question of which specific safeguards . . . are appropriately to be applied in a particular context. . . can be reduced to the issue of what process is “due” a defendant in the particular circumstances of a particular case.’“) (quoting Reid v. Covert, 354 U.S. 1,75 (1957) (Harlan, J., concurring)); see also Balzac v. Porto Rico, 258 U.S. 298, 312-13 (1922) (stating that “[t]he guaranties of certain fundamental personal rights declared in the Constitution, as for instance that no person could be deprived of life, liberty or property without due process of law” applied to U.S. territorial possessions).
98 See CSRT Memorandum, supra note 88 (referring only to detainees at Guantánamo).
99 See Al-Marri v. Wright, 443 F. Supp. 2d 774 (D.S.C. 2006). Al-Marri was deemed to be an enemy combatant through a presidential directive rather than through the CSRT process. See George, W. Bush, Determination (filed June 23, 2003, C D . 111.), available at <http://fll.findlaw.com/news.findlaw.com/hdocs/docs/almarri/almarri62303exord.pdf=Google Scholar . The Department of Defense has ordered that, upon dismissal of al-Marri’s habeas petition, he be provided with a CSRT determination. See Respondent-Appellee’s Motion to Dismiss for Lack of Jurisdiction and Proposed Briefing Schedule, at 4 - 5 , Al-Marri v. Wright, No. 06-7427 (4th Cir. Nov. 13, 2006), available at <http://www.pegc.us/archive/Al-Marri_v_Bush/CA4_gov_mot_to_dismiss_20061113.pdf=.
100 See, e.g., Fosterv. Neilson, 27U.S. (2 Pet.) 253,314 (1829) (explaining that a self-executing treaty “operates of itself without the aid of any legislative provision,” whereas a non-self-executing treaty “addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court”); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (“When the stipulations [of a treaty] are not self-executing they can only be enforced pursuant to legislation to carry them into effect. . . .”); Auguste v. Ridge, 395 F.3d 123, 132 & 133 n.7 (3d Cir. 2005) (“Treaties that are not self-executing do not create judicially-enforceable rights unless they are first given effect by implementing legislation.”).
101 See, e.g., Goldstar (Panama) S.A. v. United States, 967 F.2d 965,968 (4th Cir. 1992) (“Courts will only find a treaty to be self-executing if the document, as a whole, evidences an intent to provide a private right of action.”); Restatement (Third) of The Foreign Relations Law of The United States §m(4)(a) (1987) [hereinafter Restatement (Third)] (stating that a treaty is non-self-executing and therefore will not be given effect as law in the absence of implementing legislation, “if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation”). Although some courts have suggested that it is appropriate to look to the intent of all the parties to the treaty, I agree with the Restatement of Foreign Relations Law that it is the intent of the United States that should be determinative for this issue. See id. § 111 cmt. h. Self-execution concerns a matter of domestic implementation, an issue that is not normally the focus of international law or negotiation, and in some countries treaties are always non-self-executing, making it even less likely that these countries will have an intent concerning whether a treaty is self-executing in the United States.
103 Johnson v. Eisentrager, 339 U.S. 763, 789 n.14 (1950). The majority in Hamdan referred to this footnote as a “curious statement” but did not disavow it. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2794 (2006).
104 See, e.g., Third Geneva Convention, supra note 45, Art. 11 (providing that the protecting powers, “where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention,. . . shall lend their good offices with a view to settling the disagreement”); id., Art. 132 (“At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.”); see also Hamdi v. Rumsfeld, 316 F.3d 450, 468 (4th Cir. 2003) (“[W]hat discussion there is of enforcement [in the Geneva Conventions] focuses entirely on the vindication by diplomatic means of treaty rights inhering in sovereign nations.”), vacated and remanded on other grounds, 542 U.S. 507 (2004).
105 See, e.g., More v. Intelcom Support Serv., 960 F.2d 466, 471 (5th Cir. 1992) (“Accepting arguendo that the Treaty is ambiguous and admits of two constructions, one providing for self-executing private rights and another not so providing, we would have to accept the interpretation of the Department of Defense, the U.S. Government agency charged with enforcing the Treaty.”).
106 The legislative history of the MCA appears to confirm that Congress did not view the Geneva Conventions as self-executing. See, e.g., H.R. Rep. No. 109-664, pt. 2, supra note 83, at 3 (noting that the MCA would “clarify that the Geneva Conventions are not judicially enforceable in United States courts”); id. at 17 (“Until the Hamdan decision, the prohibitions contained in Common Article 3 were not considered enforceable in United States courts. This section demonstrates Congress’ intent to return to that original understanding of Common Article 3.”); Senators’ Joint Statement, supra note 39,152 Cong. Rec. S10, 401 (referring to the “widely-held view that the Geneva Conventions provide no private rights of action to individuals”); see also, e.g., Cameron Septic Tank Co. v. Knoxville, 227 U.S. 39, 49 (1913) (emphasizing “sense of Congress” that treaty was not self-executing). Professor Vazquez suggests that the restrictions in the MCA on invoking the Geneva Conventions would be “superfluous” if Congress believed that the Conventions were non-self-executing. Vazquez, supra note 39, at 76 n. 30. In enacting these restrictions, however, Congress may have simply been guarding against the possibility that, despite Congress’s view to the contrary, courts might find the Conventions to be self-executing. This would explain, for example, why Congress did not attempt to “unexecute” the Conventions in all settings, such as in criminal proceedings in federal court. See supra text at note 44.
107 See supra text at notes 38-40.
108 See e.g., Breardv. Greene, 523 U.S.371, 376(1998);The Chinese Exclusion Case, 130 U.S. 581,600 (1889); Whitney v. Robertson, 124 U.S. 190, 194 (1888); Head Money Cases, 112 U.S. 580, 597-99 (1884).
109 Whitney, 124 U.S. at 195.
110 Or imagine that the Geneva Conventions were statutes rather than treaties. If Congress at time 77 had specified various requirements in a statute and provided for judicial enforceability, it could uncontroversially (under its last-in-time authority over prior statutes) provide at time T2 that the statutory obligations would still apply but be enforced in ways other than judicial enforcement. See also Richard, H. Fallon Jr. & Daniel, J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror 120 Harv. L. Rev. 2029, 2093–94 (2007)Google Scholar (“As a matter of U.S. domestic law, Congress unquestionably may limit or preclude judicial enforcement of rights under international conventions.”).
111 See generally Bradley & Goldsmith, supra note 43, at 419-22.
112 See, e.g., Auguste v. Ridge, 395 F.3d 123, 141 n.17 (3d Cir. 2005) (collecting cases).
113 Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004); see note 43 supra.
114 Vázquez, supra note 39, at 90.
115 Id. at 91-92.
116 Id. at 91.
117 See, e.g., The Federalist No. 22, at 151 (Alexander, Hamilton) (Clinton, Rossiter ed., 1961)Google Scholar (noting that, under the Articles of Confederation, “[t]he treaties of the United States... are liable to the infractions of thirteen different legislatures”); 1 The Records of The Federal Convention of 1787, at 316 (Max, Farrand ed., 1911)Google Scholar (noting concern by James Madison regarding “the tendency of the States to these violations” of the law of nations and treaties). Most judicial decisions that have enforced treaties directly have involved enforcement against states and localities. See Tim, Wu, When Do American Judges Enforce Treaties? 97 Va. L. Rev. (forthcoming 2007).Google Scholar
118 In enacting the Genocide Convention Implementation Act, for example, Congress provided that the Act should not “be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding.” 18 U.S.C. §1092 (2000); see also Bradley & Goldsmith, supra note 43, at 447; Paul, B. Stephan, Private Remedies for Treaty Violations After Sanchez-Llamas, 11 Lewis & Clark L. Rev. 65 (2007).Google Scholar
119 The U.S. implementing legislation for the World Trade Organization agreements, for example, provides that “ [n] o provision of any of the [agreements], nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect.” Moreover, “ [n] o State law, or the application of such a State law,” it continues, “may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with any of the Uruguay Round Agreements, except in an action brought by the United States for the purpose of declaring such law or application invalid.” 19 U.S.C. §3512(a)(1), (b)(2)(A).
120 Vázquez, supra note 39, at 86.
121 Yakus v. United States, 321 U.S. 414 (1944).
122 Id. at 444.
123 United States v. Mendoza-Lopez, 481 U.S. 828, 839 n.15 (1987).
124 Presumably, in situations in which crimes under the MCA are defined by reference to the Geneva Conventions (such as crimes against “protected persons”), defendants in military commissions may invoke the Conventions to argue that they have not committed the crime. Such invocations would not make the Conventions a “source of rights” as disallowed in the MCA, and they would not involve applying the Conventions as a “rule of decision” as prohibited by section 6(a)(2). See Vázquez, supra note 39, at 84 (“At a minimum, then, section 948b(g) is subject to an implicit exception for portions of the Geneva Conventions incorporated by reference into the MCA itself”).
125 See id. at 77-78. It is not clear that Congress was attempting to bind courts to this provision. It may have simply been communicating its views about common Article 3. Vázquez suggests that Congress could not reasonably have had a view about whether the military commissions it was authorizing complied with common Article 3, because the MCA delegates to the secretary of defense the authority to promulgate pretrial and trial procedures for the commissions, and Congress would not have known what those procedures would look like at the time it enacted the MCA. Id. at 79. Congress, however, could have held the view that a commission with the basic structure and procedures outlined in the MCA would be a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” As I note below, such a view would be reasonable.
126 See United States v. Klein, 80 U.S. (13 Wall.) 128, 146(1872) (finding statute to be unconstitutional because it purported to “prescribe rules of decision to the Judicial Department of the government in cases pending before it”); cf Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,218 (1995) (“Whatever the precise scope of Klein, however, later decisions have made clear that its prohibition does not take hold when Congress ‘amend[s] applicable law.’ Robertsons. Seattle Audubon Soc 503 U.S. 429, 441 (1992)Google Scholar.”) (citations omitted).
127 Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2684 (2006) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)); see also Curtis, A. Bradley, Case Report: Sanchez-Llamas v. Oregon, in 100 AJIL 882 (2006).Google Scholar As noted above, another provision in the MCA states that the amendment to the War Crimes Act fully satisfies U.S. obligations under Article 129 of the Third Geneva Convention to “provide effective penal sanctions” for “grave breaches” of the Convention. That provision, section 6(a)(2), should also not be dispositive for courts, but I think it is unlikely that anyone will have standing to challenge this potential underimplementation of the criminal enforcement obligations imposed by the treaty. See text at note 48 supra (quoting section 6(a)(2)).
128 See 10U.S.C. §948b(b).
129 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (stating that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”); restatement (Third), supra note 101, §114 (“Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.”); see also Curtis, A. Bradley, TheCharming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law 86 Geo. L.J. 479 (1998).Google Scholar
130 See, e.g., Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 879 (D.C. Cir. 2006) (“The canon against construing ambiguous statutes to abrogate prior treaties does not help plaintiffs here, however, because the amended Migratory Bird Treaty Act is unambiguous. . . .”); United States v. Yousef, 327 F.3d 56, 92 (2d Cir. 2003).
131 See Vázquez, supra note 39, at 80-82.
132 See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176,184-85 (1982); see also Sanchez-Llamas, 126 S. Ct. at 2685 (“In addition, ‘[w]hile courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.’“) (quoting Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)).
133 See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.) 253, 307 (1829) (“We think then, however individual judges might construe the treaty of St Ildefonso, it is the province of the Court to conform its decisions to the will of the legislature, if that will has been clearly expressed.”).
134 MCA, supra note 5, sec. 6(a)(3)(A), 18 U.S.C. §2441 note; see Chevron USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837,843 (1984); Curtis, A. Bradley, Chevron Deference and Foreign Affairs 86 Va. L. Rev. 649 (2000)Google Scholar; see also 152 Cong. Rec. S10,244 (daily ed. Sept. 27, 2006) (statement by Senator Levin that this provision “gives [the president] the authority to adopt regulations interpreting the meaning and application of the Geneva Conventions in the same manner and to the same extent as he can issue such regulations interpreting other laws”). But cf. 152 Cong. Rec. S10, 399 (daily ed. Sept. 28, 2006) (statement by Senator McCain, concurred in by Senator Warner, that “[n]othing in this bill gives the President the authority to modify the conventions or our obligations under those treaties”).
135 ICRC III Geneva Commentary, supra note 28, at 39; see also id. at 40 (“We must be very clear about one point; it is only ‘summary’ justice which it is intended to prohibit.”).
136 For a detailed description of the procedures set forth in the MCA, see Elsea, supra note 14.
137 10 U.S.C. §§948j, 949d(b), 950c.
138 Id. §948r(b).
139 W. §948r(c).
140 A number of bills have been introduced in Congress to amend the MCA. The likelihood that any of these bills will be enacted is unclear, given the possibility of a presidential veto.
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