interpreted to give the President essentially unreviewable authority to determine numerous
crucial questions regarding the applicability of the Geneva Conventions, including whom the
Conventions protect and which "aggressive" interrogation techniques—other than those "grave
breaches" of common Article 3 falling within the War Crimes Act-violate the Conventions.
Whether or not this arrangement is constitutional, it is an unjustifiable assault on the
federal judiciary and the status of treaties as the "supreme Law of the land" under our
Constitution. As Alexander Hamilton wrote in The Federalist No. 22:

56

Laws are a dead letter without courts to expound and define their true meaning and
operation. The treaties of the United States, to have any force at all, must be
considered as part of the law of the land. Their truc import, as far as respects
individuals, must, like all other laws, be ascertained by judicial determinations.

Writing for the Supreme Court, Chief Justice John Roberts recently reaffirmed this proposition,
stating that "[i]f 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."""" These provisions of the MCA interfere with the courts' core function as the
interpreter and enforcer of our nation's treaties and call into question our commitment to the
Geneva Conventions.

The prohibition on the use of foreign and international law as a “basis for a rule of
decision" in interpreting the Conventions, as enforced by the War Crimes Act, is also misguided.
Even Justice Antonin Scalia-an ardent opponent of the use of foreign and international
authority in interpreting our domestic laws-acknowledges that he "will use it in the

36

57

Lederman on Balkinization, Sept. 22, 2006, http://balkin.blogspot.com/2006/09/three-of-most-
significant-problems.html (“What this means, in effect, is that the President's interpretation and
application of the Geneva Conventions will be virtually unreviewable, no matter who the affected
parties may be, in this and other armed conflicts, now and in the future... across the board.").
U.S. CONST., art. VI, § 2.

Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2684 (2006) (quoting Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803)).

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interpretation of a treaty" because “the object of a treaty being to come up with a text that is the
same for all the countries, we should defer to the views of other signatories, much as we defer to
the view of agencies."58 The MCA, however, seems to forbid this practice, despite the fact that
foreign and international authorities are the most well-developed sources of law interpreting the
Geneva Conventions.

Similarly, in seeming to expand the deference otherwise due the President's

interpretations of the Conventions--which frequently have been opposed by the relevant experts
within the administration”—the MCA may prevent courts from making their own judgments
regarding the reliability of those interpretations, as they do in all other areas of administrative
law. While deference is ordinarily due the President's interpretations of a treaty, such deference
is inappropriate where the interpretation is contrary to the treaty's plain language or structure,
would lead to unreasonable results, or would contradict well-established practices or
understandings of the signatories." To the extent that the MCA seeks to expand the deference
due such interpretations, it wrongfully interferes with the courts' ability to reject plainly unsound
interpretations of the Conventions.

60

As the International Committee of the Red Cross has emphasized, the Conventions were designed "first and foremost to protect individuals, and not to serve State interests." The effect of the MCA's review-limiting provisions, however, is to deprive these individuals of their ability

5% The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between
Justice Antonin Scalia and Justice Stephen Breyer, 3 INT'L J. CONST. L. 519, 521 (2005).

59

See Neal Kumar Katyal, Hamdan v. Rumsfeld: The Legal Academy Goes To Practice, 120 HARV. L.
REV. 65, 111 (2006) (detailing the dissent within the Bush Administration regarding the President's
interpretation of the Conventions).

Sce United States v. Stuart, 489 U.S. 353, 365-66 (1989); Trans World Airlines, Inc. v. Franklin Mint
Corp., 466 U.S. 243, 259 (1984); Perkins v. Elg, 307 U.S. 325, 348-49 (1939); Johnson v. Browne,
205 U.S. 309, 316-22 (1907).

4 INT'L COMM. OF RED CROSS, COMMENTARY: GENEVA CONVENTION RELATIVE TO THE

PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR 21 (1958), cited in Hamdan, 126 S.Ct. at 2794
п.57.

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to enforce these rights if their captors choose not to recognize them. In taking this position, the MCA announces to others that we do not share their view of the importance of the rights guaranteed by the Conventions, which, in turn, exposes our nation to scorn and our troops to reciprocal treatment.62 We believe that this is a profoundly unwise and dangerous development. Finally, these provisions may be unconstitutional as well as inadvisable. The MCA's directive that "no person” can “invoke” the Geneva Conventions "as a source of rights” in suits against the government and its officials is an unusual one. In fact, no similar provision appears in the United States Code. This broad language, however, suggests that the intent of the MCA is to leave the Conventions on the books while simultaneously undermining them by forbidding litigants from invoking their protections. Some have argued that this legislative sleight-of-hand violates separation-of-powers principles by impermissibly obstructing the exercise of the judicial powers granted by Article 10. Thus, in Legal Services Corporation v. Velazquez, the Court held that Congress violates the First Amendment and Article III when it “seek[s] to prohibit the analysis of certain legal issues and to truncate presentation to the courts," and that the Court would be "vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge."

1765

64

The MCA's apparent ban on courts' consideration of foreign and international law in interpreting the Conventions also raises constitutional questions, as there is some uncertainly about the extent to which Congress can control the courts' interpretive techniques through

statutory mandates requiring or forbidding the use of certain interpretive resources. Professor

62

63

See generally Amicus Curiac Brief of Retired Generals and Admirals et al. in Support of Petitioner,
Hamdan, 126 S.Ct. 2749 (No. 05-184).

See Plaintiffs' Supplemental Memorandum of Law Responding to Defendants' Notice of

Supplemental Authority, In re: Iraq and Afghanistan Detainees Litigation, Misc. No. 06-145, at 13-14
(D.D.C. Nov. 28, 2006) (raising this argument).

64 $31 U.S. 533 (2001)

63 Id. at 545, 548.

16

Gary Lawson, for example, contends that separation-of-powers principles must include "an
independent judicial power to ascertain, interpret, and apply the relevant law,"66 and he

concludes that "Congress cannot tell the courts how to reason any more than it can tell the courts
how to decide."

1967

But whether or not these legal arguments would ultimately convince a court to invalidate
these provisions of the MCA, the Association strongly believes that they should be repealed. As
Representative Jerrold Nadler stated during the legislative debate on the MCA, it is “simply
wrong and hypocritical" to both "bope that other civilized powers will abide by [the
Conventions]" and make known that we are not going to allow our courts to enforce them.”
By pursuing this disingenuous course of action, we not only damage our standing in the world
community, but we also give others an excuse to undermine the Conventions' protections,
ultimately to the detriment of our own armed forces. In explaining his vote for the MCA,
Senator John McCain reaffirmed his belief that Congress remained committed to the Geneva
Conventions, stating that "the [MCA] does not redefine the Geneva Conventions in any way."
Whether or not this is true, the fact remains that the MCA has rendered the Conventions
effectively unenforceable.

"769

66

67

61

69

Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18
CONST. COMMENT. 191, 212 (2001).

Id; see also Martin H. Redish, Federal Judicial Independence: Constitutional and Political
Perspectives, 46 MERCER L. REV. 697, 707 (1995) (reaching the same conclusion). Nicholas Quinn
Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2109 (2002), ☎ffers
an opposing view, arguing that "[t]here is no general, Article III objection that developing interpretive
methodology is an inalienable judicial prerogative."

H. COMM. ON THE JUDICIARY, MILITARY COMMISSIONS ACT OF 2006, H.R. Rep. No. 109-664, pt. 2,
at 173 (Sept. 25, 2006)

152 Cong. Rec. S10274 (Sept. 27, 2006).

17

Dear Senator Leahy, Senator Specter, Representative Conyers and Representative Smith:

I write on behalf of the Association of the Bar of the City of New York to urge once
again that Congress take immediate action to eliminate provisions of the Military
Commissions Act and the Detainee Treatment Act that strip the courts' jurisdiction to
entertain habeas petitions from alien detainees held as "enemy combatants”.

Our letter to you of March 6, 2007 and the accompanying Report detailed the reasons
why the habeas stripping provisions should be promptly eliminated. The Supreme
Court's denial of certiorari yesterday to review the constitutionality of these provisions at
this time only makes it more urgent that Congress take action as soon as possible to right
this grave injustice and remove this stain on our Nation's traditions of fair process and
the rule of law.

Many of the detainces at Guantanamo have been imprisoned for more than five years.
The Supreme Court's decision to delay review of their plight pending proceedings in the
D.C. Circuit under the Detainee Treatment Act provisions for limited review of decisions
of Combatant Status Review Tribunals ("CSRTs") will mean that these prisoners - many
of whom may be innocent of any wrongdoing – will have to suffer further confinement
perhaps for years. Our Report analyzes in detail why the CSRT process is essentially a
sham and why the limited D.C. Circuit review of CSRT decisions is inadequate without
more stringent fact-finding procedures.

THE ASSOCIATION OF THE BAR OF TILE CITY OF NEW YORK

42 West 44" Street, New York, NY 10036-6689