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Reading over Chief Justice Roberts' Medellin opinion, it reminds me a lot of Justice Stevens' majority opinion in Hamdan v. Rumsfeld in 2006. Recall that in Hamdan, the court blocked the Bush administration's effort to create military commissions unilaterally by reading the UCMJ as requiring Congressional approval for those commissions. The basic idea: If you guys in the executive branch wanna do military commissions, you gotta get Congress clearly and unambiguously on board first.
Medellin v. Texas strikes me as similar. The majority reads the court's precedents on treaties as effectively requiring a clear statement that the treaty is self-executing before it will be construed to be so. And it also holds that the executive can't act on its own and make the Avena judgment binding. The basic idea: If you guys in the executive branch wanna make these foreign judgments binding law, you gotta get Congress clearly and unambiguously on board first.
Of course, the people who like both Hamdan and Medellin could probably meet in a phone booth. (And Justice Kennedy is already in the phone booth.) But the two decisions seem pretty similar to me.
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Can God create a boulder he cannot lift? That's the type of political question raised by the decision in Medellin: namely whether the Bush administration can create a court more resistant to enforcement of international law than the administration itself. And it seems that the answer is "yes."
The decision, boiled down, allows an individual state to put the whole United States in breach of a treaty, in defiance of both an international tribunal and the President's order that the State obey the treaty. If the federal courts are supposed to do anything, it is to prevent individual states from getting the United States into international trouble. That, as Breyer's dissent points out, was the point of the earliest and most important treaty enforcement cases—particularly the Great British Debt case. That case enforced the peace treaty ending the revolutionary war with Britain as against states whose actions threatened a new war. It set out a simple rule: The federal courts need to act to prevent states breaching U.S. treaties. The whole issue of "self-execution" is secondary to this concern.
And with this the Bush administration agreed; it realized that the national interest called for enforcement of the Vienna Convention. Remember that this case is about the treatment of arrested foreign nationals. The worse the United States treats foreign nationals who are arrested, the worse things are for millions of American expatriates.
That's why I disagree with Eric. It's not clear to me how it serves the interest of the whole country to have individual states getting other countries angry at the U.S. That problem in other contexts convinced the Supreme Court to prevent Massachusetts from creating its own sanction regime for Burma (Crosby), and convinced it to prevent California from setting up its own claim system for World War II abuses. But in this decision the complexity and weirdness of the "self-execution" doctrine has led the court to miss what is really going on.
The U.S. happens to benefit from enforcement of this particular treaty; hence Bush's order to Texas to enforce the treaty. It's the court, swamped by doctrine and operating outside of the international system that doesn't see that.
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Phil, the Supremes have time-honored words ready-made to make your Munaf point. Here's the theme, from the court's 1949 opinion in Watts (p. 52), quoted verbatim in the 2004 Padilla dissent (p. 11 n.10):
And there comes a point where this Court should not be ignorant as judges of what we know as men.
(And woman, one might add.) The theme's found, too, in this from Chief Justice Howard Taft, in the 1922 Child Labor Tax Case (p. 37):
All others can see and understand this. How can we properly shut our minds to it?
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Today, the Supreme Court handed down an opinion of great importance for understanding America's obligations under international law. The United States is a party to the Vienna Convention on Consular Relations, which requires states to allow foreign nationals to obtain advice from their consulates when they are arrested and to give notice to these foreign nationals that they have this right. Local police in the United States do not always know that they are supposed to do this, and the lawyers assigned to criminal defendants don't always know that they should complain to the court if the local police fail to do this. In most cases, if your lawyer fails to invoke one of your rights before the trial judge, you can't later bring it to the attention of another judge in a habeas proceeding.This is known as the procedural default rule.
In 2004, the International Court of Justice, the judicial organ of the United Nations, held, in a case brought by Mexico against the United States, that depriving foreign nationals of their consular rights under the procedural default rule violates the Vienna Convention. In response, the United States withdrew from the protocol that gave the ICJ jurisdiction over these cases, but the president issued a memorandum instructing state courts "to give effect" to the ICJ's decision with respect to pending cases, including Medellin's. In the Medellin case, there were two issues: whether the ICJ's judgment binds U.S. federal courts and whether, if not, the president's attempt to force state courts to give effect to the ICJ's judgment was lawful. The court answered both questions with a "no."
The legal arguments are interesting, but the larger significance of this case concerns the extent to which international law controls the U.S. government. Consider the following implications of the case:
1. The court interpreted the relevant treaties as "non-self-executing" (they do not create judicially enforceable domestic law because Congress has not incorporated them through legislation) rather than "self-executing." The case will likely make courts in the future less likely to interpret treaties as creating domestic law. If a violation occurs, injured parties will be limited to pursuing diplomatic remedies; U.S. courts will be out of the picture.
2. The court deprived the president of a powerful instrument for forcing American state courts to comply with non-self-executing treaties. In a rare burst of internationalism, President Bush tried to compel American states and their courts to live up to American treaty obligations. But it turns out that he doesn't have the power to do this; he will need to persuade Congress to give him the authority, treaty by treaty.
3. The court expresses skepticism about the claim that the judgment of an international court could ever "automatically" bind federal and state courts, finding it hard to believe that Congress would want "politically sensitive judgments" to be enforced by courts rather than addressed by the political branches.
(Expressing a point that will warm the hearts of realists everywhere, the majority opinion pointed out that when the United States government originally agreed that the ICJ would have jurisdiction over disputes between states, it anticipated that the only way that the prevailing state would be able to enforce the judgment would be by petitioning the Security Council—where the United States holds a veto.)
There is an academic theory that holds that the type of litigation (sometimes called "transnational legal process") exemplified by the Medellin case would eventually bring the United States into greater and greater compliance with international law. But with the benefit of hindsight, we see that the opposite has been the case. The U.S. government reacted to this litigation by withdrawing from the protocol that gave the ICJ jurisdiction over these cases, and the U.S. Supreme Court has reacted to this litigation by weakening the domestic effect of treaties, expressing discomfort with international adjudication and making clear that the president lacks the power to compel the states to comply with treaties. The United States will violate or withdraw from international law when its national government wants to, and sometimes it will do so even when its national government does not want to.
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Like Marty, Diane, and Deborah, I, too, am excited about today's oral argument in Munaf and Omar. Not just because I think this case raises thorny issues, but also because this case deals with a subject I have some personal experience with.
I served in Iraq from 2005-06 as an adviser to the Iraqi police in Baqubah. My team also worked closely with the provincial courts and jails as part of an effort to improve the larger rule-of-law system. Every time we visited a police station, we also looked at its detention cell or jail. We lived on the police headquarters compound for the first three months of our tour, literally living above the provincial jail; we later moved down the street and spent at least two days inside the jail. Attorneys for Munaf and Omar now argue that it would be unlawful to transfer their clients from U.S. (or Multi-National Forces) custody to Iraqi custody because of the conditions in the Iraqi jails and prisons—and the likelihood of torture there. I believe these arguments because I saw the overcrowding, squalid conditions, lack of due process, and evidence of torture in these facilities with my own eyes.
Second, I soldiered under the Byzantine organization known as Multi-National Forces-Iraq. I served pretty far down in the command structure on an adviser team; between me and MNF-I lay the brigade, division, and corps layers of command. However, in our work with the Rule of Law system and Iraqi security forces, we frequently interacted with senior officials and leaders from MNF-I. Notwithstanding the legal arguments from the government's counsel, there is no question in my mind that this is a U.S.-led, U.S.-centric, and U.S.-run organization in every way—right down to the American comfort food they serve in the chow halls next to the Republican Palace in Baghdad that MNF-I uses for a headquarters. I understand the government's argument with respect to the U.N. Security Council mandate and other points, but I think that argument flies in the face of reality.
Why should reality matter?
I think the court is particularly sensitive to what I'll call the "ground truth" in these detention cases. I think the justices remember well how they heard oral argument in Rasul and Hamdi in April 2004—and even asked a question about torture, eliciting no response from the government—only to have CBS air the first images from Abu Ghraib that night on television. I also think the court is aware of how the torture issue has developed since then. My sense is that the court will consider the realities of Iraq in their deliberation and draw out some of those realities today at oral argument.
I look forward to reading Dahlia's "Supreme Court Dispatch" tonight. ...