Most international law professors trying to prepare their classes for the fall probably have mixed feelings about the US Supreme Court’s June 29th opinion in Hamdan v. Rumsfeld (slip opinion available at http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf). For most true believers in international law’s continuing relevance, the Court’s ringing affirmation in that case that the Congress of the United States has not issued the Executive a “blank check” even for the purpose of waging the “war” on terror and that even members of Al Qaeda are entitled to the protections of Common Article 3 of the Geneva Conventions was surely a welcome tonic – and a nice antidote to the same Court’s rebuke to the International Court of Justice a day earlier in Sanchez-Llamas v. Oregon (slip opinion available at http://www.supremecourtus.gov/opinions/05pdf/04-10566.pdf). Yet beleaguered teachers trying to cram ever more law into the fixed confines of a three credit survey course do not always welcome 170+ page Supreme Court decisions, however favorable to international law -- not when these are rendered only weeks before the start of classes, when no casebook or teachers’ manuals have yet pre-digested the case. But those professors who are tempted, under the pressure of time and need for broad coverage, to relegate Hamdan to an abbreviated discussion at the end of one rushed class hour devoted to international humanitarian law should resist the temptation.
The course in international law, as most teachers know, suffers by comparison with other law school courses because its teacher must first convince students who have been taught that all that matters in law is what judges say that, notwithstanding the evident scarcity of judicial opinions in this field, there is still “law” to discuss. We should relish the Hamdan teaching moment as the rare opportunity to use that most traditional tool of law school teaching – an actual judicial decision issued, unlike old chestnuts like Missouri v. Holland or The Paquete Habana, during our students’ lifetimes. Whether or not Hamdan is fated to become, as Harold Koh has suggested (see Koh’s testimony before the Senate Judiciary Committee hearing on July 11 ), the most important case on executive power since Youngstown Steel or merely a pause in time until Congress rubber stamps the military commissions struck down in that case, scarcely matters from a pedagogical perspective. Hamdan presents a valuable teaching opportunity whatever the final resolution and might be even more valuable should Congress decide to react, as now seems probable. While focusing on Hamdan risks misleading students into thinking that international law is routinely interpreted and enforced by national courts, careful attention to the complex, on-going processes initiated by that decision – including subsequent hearings in (and possible legislation by) the Congress, subsequent developments in lower US courts, reactions by human rights NGOs and other states – can even be used to undermine the Langdellian prejudices of our students. In this instance, focusing on a case and the case method can be used to subvert the notion that international law is ultimately determined by what (national) judges alone decide.
Of course, the teacher who wants to use Hamdan needs to distill the holdings of the 5 judge majority cobbled together in Stevens’s opinion, the plurality in which only Stevens, Souter, Ginsberg, and Breyer joined, the concurrence by Breyer, Kennedy Souter, and Ginsburg, and the forceful dissents by Scalia, Thomas, and Alito, writing either on their own or together. Fortunately, thanks to the instantaneous web, there are no scarcity of resources at our disposal – including a concise ASIL Insight of July 14, 2006 (http://www.asil.org/insights/2006/insights060714.html), the FindLaw column of my Columbia colleague Michael C. Dorf (http://writ.news.findlaw.com/dorf/20060630.html), and more opinionated commentary by Carlos Vázquez and Marty Lederman, among others (see discussion at Georgetown Law faculty blog, accessible at http://gulcfac.typepad.com/georgetown_university_law/international_law/index.html; also Hamdan Panel transcript of June 30, 2006, accessible at https://www.law.georgetown.edu/news/documents/hamdanTranscript.pdf). Teachers who want to point students in the direction of less favorable and more popularized reactions to the decision in the press or blog-land, might want to suggest, editorials in the National Review and in the website for the American Enterprise Institute with aptly descriptive titles like “An Outrage” or “The High Court’s Hamdan Power Grab” (National Review Online editorial, accessible at http://article.nationalreview.com/?q=ZTYwOTYzMWY5NGZlNDM0MTg2MDc3ZjkxYmI4ZmY4NmU=; an editorial by John Yoo accessible athttp://www.aei.org/publications/filter.all,pubID.24630/pub_detail.asp, an editorial by Jeremy A. Rabkin, accessible at http://www.aei.org/publications/filter.all,pubID.24640/pub_detail.asp, as well as a National Review Online symposium by John Eastman, Julian Ku, and Ed Whelan, accessible at http://article.nationalreview.com/?q=NzZmOTBhMzFlY2VlMzI5NjYyNzMzZWVlNTAwNzZhMWM=); the mostly favorable newspaper editorials surveyed by Knight/Ridder, or the more balanced four part series of essays by David B. Rivkin and Lee A. Casey in the Washington Times (http://www.washingtontimes.com/op-ed/20060710-082101-3448r.htm, http://www.washingtontimes.com/op-ed/20060711-091218-5224r.htm, http://www.washingtontimes.com/op-ed/20060712-083808-7840r.htm, http://www.washingtontimes.com/op-ed/20060713-082629-8400r.htm). Politically savvy students will readily see in these reactions implications far afield from international law – including speculation that the decision will expedite the end of US detentions in Guantanamo (see also an editorial by George Fletcher in Project Syndicate; accessible at http://www.project-syndicate.org/commentary/fletcher9; an editorial by David Ignatius in The Washington Post, accessible at http://www.washingtonpost.com/wp-dyn/content/article/2006/07/06/AR2006070601548.html) or the Bush Administration’s warrantless wiretapping program (compare Cass Sunstein’s piece in Balkinization, accessible at http://balkin.blogspot.com/2006/07/nsa-and-hamdan.html and Jack Balkin’s blog, accessible at http://balkin.blogspot.com/2006/06/hamdan-and-nsa-dispute.html, to comments by Steve Bradbury, Acting Assistant Attorney General at Senate Judiciary committee hearings, July 11).
Hamdan raises, in one tidy package, virtually every issue that our international law casebooks attempt to canvass. Moreover, it raises them in connection with a timely issue of obvious import about which our students can be expected to have strong views; as opposed to say the application of the Sherman Act (compare Hartford Fire Insurance v. California).
Want to address questions about who in the United States interprets a treaty and with which tools? A nice place to start would be the majority’s determination of what is meant by a conflict that is not “international” – which was crucial to its decision that Common Article 3 applied (Stevens opinion, Part VI (D)(ii); compare Thomas dissent, at Part B(2)(according treaty interpretations made by the President great weight). That section of the Stevens opinion draws on a variety of materials to interpret a US treaty obligation, including prior US cases, the Commentaries to the Geneva Conventions, the opinions of scholars, and decisions by the ICJ and international criminal tribunals. Another Hamdan treaty interpretation lesson occurs with respect to the majority’s interpretation of what guarantees are accorded under Common Article 3’s reference to a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” (See Stevens opinion, at Part VI(D)(iii), plurality opinion, at Part VI (D)(iv), but see Thomas dissent at Part B(3)). Post-Hamdan Senate hearings have understandably focused attention on another treaty interpretation issue: namely whether Common Article 3’s ban on “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment” is an “inherently vague” phrase requiring further legislative clarification, especially if we are expected to give “respectful consideration” to how others outside the United States have interpreted terms which are supposed to be enforced through US criminal sanctions (compare comments by Harold Koh, Senate Judiciary Committee, July 11 to comments by Attorney General Gonzalez, Armed Services Committee hearing of Aug. 2, 2006 and comments by Steve Bradbury and Senator Sessions, Senate Judiciary Committee hearing of July 11, 2006).
Hamdan’s attempt to enforce Geneva law, as well as the Court’s intriguing side-stepping of whether certain Geneva rights could ever produce domestic legal effects even without the benefit of US implementing legislation (see Stevens Opinion, footnote 58, at p. 64-65 and footnote 61 at p. 66), can also provoke discussion about how treaties are rendered “enforceable.” Should treaties be subject only to diplomatic enforcement at the state to state level or when rights they contain have become “ripe”-- as Thomas suggests in dissent (Thomas dissent, at Parts B(1) and B(3))?
Want to address the status of treaties as “law of the land” and the later in time rule under Article VI of the US Constitution? You can’t do better than post-Hamdan Senate testimony wherein witnesses generally agree that while Congress could decide to abrogate in whole or in part Geneva law, taking such a step would produce evident reciprocity concerns with respect to the treatment of captured US troops or its special forces (see, e.g., testimony by Koh and Silliman, Senate Judiciary Committee hearing, July 11; and testimony by Adm. MacDonald in the Senate Judiciary Committee hearing, Aug. 2).
Want to address the status of customary international law in US law, including its treatment by US judges, especially given prominent revisionist critiques of what The Paquete Habana really meant on this score? Consider what the Court majority had to say about how Common Article 3 ought to be interpreted (see above), or what four of the justices in the majority say about the alleged international crime of conspiracy to commit war crimes (Stevens opinion, part V) or the role of customary international law and Article 75 of Protocol I in determining the rights of those accused of crimes, including before military commissions (Plurality opinion, at Part VI(D)(iv)). (Interestingly, Justice Thomas’s dissent does not dispute the use of customary international law; he simply argues that relevant precedents, both national and international, support the charge of conspiracy for war crimes.) Want to address whether, as is discussed in section 115, Preporters’ Note 4 of the 1986 US Restatement on Foreign Relations, the President himself may be bound by international law? Consider the Court’s careful side-stepping of this issue by framing the question presented as one involving what Congress did or did not authorize and get the students to compare Hamdan’s approach to the separation of powers to such survey course war-horses as US v. Curtiss-Wright and Dames & Moore v. Regan.
Of course, Hamdan provides a great vehicle to raise a number of prominent and contentious post- 9/11 issues. Did the Court really say, as the Bush Administration has subsequently contended, that it is perfectly legal for the United States to detain, even in perpetuity, any and all detainees held in the “war” on terror in Guantanamo or elsewhere so long as these are not tried through unfair military commissions? (compare Washington Post editorial by Jack Goldsmith and Eric A. Posner urging indefinite detention, accessible at http://www.washingtonpost.com/wp-dyn/content/article/2006/08/03/AR2006080301257.html; see also discussion of indefinite detention in the Senate Judiciary Committee and the Senate Armed Services Committee hearings of Aug. 2, particularly exchanges between Sen. Spector and Adm. MacDonald and Gen. Rives). If so, is Hamdan really a case that affirms the human rights of all human beings or only a pyrrhic vindication of Congressional prerogatives? Will the Court’s conclusion that Common Article 3 applies to Al Qaeda and the subsequent Defense Department memorandum affirming that all Al Qaeda detainees are to be treated in accord with its provisions really change how the United States deals with the interrogation of suspects, even if by the CIA or by countries to whom the US renders persons? (See the exchange between Senator Leahy and Steve Bradbury in the Senate Judiciary Committee hearing on July 11). This has been addressed in at least some of the post-Hamdan Senate hearings where it is apparent that there continues to be a divide among those who, like military JAG officials, condemn the use of any and all testimony obtained by coercion (see generally, Senate Judiciary Committee hearing on Aug. 2, testimony by General Black, Adm. MacDonald, and Gen. Rives) and those who fear “coercion” itself is a manipulable constraint that should not stand in the way of successful investigations and prosecutions for terrorism (compare comments by Lt. Cmdr. Swift, Senate Judiciary Committee hearing, July 11, to Steven Bradbury and Paul Cobb at Senate Judiciary Committee hearing, July 11, and by Bradbury at Senate Judiciary Committee hearing, Aug. 2). The post-Hamdan Senate hearings also highlight divisions of views on such matters as whether the law, national and international, ought to err on the side of deterring over-zealous interrogators or protecting the public from further potential terrorist acts (compare exchange between Senator Richard Durbin and Steve Bradbury, Senate Judiciary Committee hearing on July 11; compare comments by Harold Koh and Theodore Olson, Senate Judiciary Committee hearing, July 11; exchange between Sen. McCain and Attorney General Gonzalez, Senate Armed Services Committee hearing, Aug. 2).
And I can’t think of a better way to get students to consider the reality of international criminal law and on-going efforts to enforce it than to get them to think about the way the majority reads Nuremberg precedents (see, e.g., footnote 32 of the Stevens opinion at 37), the Court’s own Yamashita case (see, e.g., p. 39 of Stevens opinion), or the current state of the law of war (Stevens opinion, at p. 40-48) or the implications of Justice Kennedy’s pointed reminders that insofar as US officials violated Common Article 3 they may be guilty of war crimes under our own War Crimes Act (Kennedy concurrence, at p. 7). Of course, as is clear from the Senate hearings and subsequent commentary, Hamdan is likely to produce US legislation intended to protect US officials from prosecutions based on Common Article 3, but perhaps less favorable results around the world (see, e.g., Rosa Brooks’s editorial, accessible at http://www2.ljworld.com/news/2006/jul/03/ruling_could_hold_us_officials_responsible/; compare leaked proposed draft legislation attributed to Bush Administration, accessible at Balkinization blog, http://balkin.blogspot.com/2006/07/bush-administration-draft-hamdan.html). Lively classroom exchanges are virtually guaranteed among students who have been exposed to Nuremberg precedents once they contemplate Attorney General Gonzalez’s controversial suggestion that we modify the War Crimes Act to provide retroactive immunity from such prosecutions for those “relied in good faith upon decisions made by their superiors” (Senate Armed Services Committee hearing, Aug. 2).
The question whether international law sanctions conspiracy as a war crime is not simply a technical or philosophical dispute between civil and common law criminal lawyers; nor is it merely a difference concerning how one parses the historical precedents (compare Amicus Curiae Brief of specialists in Conspiracy and International Law to Thomas dissent, at Part C(1) and (2)). At its heart, the debate is over what international criminal law is for. Should Hamdan, who was accused of being Usama bin Laden’s driver, be charged with the war crime of “joining an enterprise of persons who share a common purpose,” simply because he was a driver? My Columbia colleague George Fletcher, one of the authors of the amicus brief challenging the legitimacy of the charge of conspiracy, argues that he should not be prosecuted because this inchoate crime of association is akin to ascribing “collective guilt” (Amicus, at 29) and because “international criminal proceedings are oriented to post hoc justice—to judging those who are alleged to have already brought about massacres and other major crimes that concern the international community. Conspiracy, by contrast, is suited to a legal system that emphasizes early police intervention, before criminal plans are carried out. Early intervention is possible in a domestic legal system, but there is no international police force that could fulfill a similar function.” (see George P. Fletcher’s editorial, accessible at http://www.project-syndicate.org/commentary/fletcher9). But others would suggest, particularly in the wake of Britain’s apparently successful effort to thwart the latest terrorist plot, that early intervention and effective deterrence is precisely what both international and national counter-terrorism law ought to be about. Congress is likely to have the last word on whether the laws of war, at least insofar as the US is concerned, will ultimately include the crime of conspiratorial agreement (compare testimony of military officers urging legislation including conspiracy as a war crime in Senate Judiciary Committee hearing, Aug. 2). If the Hamdan teaching moment is seized, our students will not mistake that determination for an arid academic exercise.
Transcripts of the Senate Hearings cited throughout this piece, namely the Senate Judiciary Hearings of July 11, 2006 and Aug. 2, 2006, and the Senate Armed Services Hearings of Aug. 2, 2006, can be found at http://web.lexis-nexis.com/universe(Lexis Academic Universe), http://web.lexis-nexis.com.arugula.cc.columbia.edu:2048/congcomp (Lexis Congressional) and http://www.fnsg.com/ (Federal News Service). Suggested search terms are "Hamdan", "Senate" and/or "Hearings".