Getting It in U.S. Courts

...Hamdi—and his irregular force of academic combatants—insisted that the convention allows captured fighters to be designated as "unlawful combatants" only after a formal trial...

...JUNE/JULY 2003 • THE AMERICAN SPECTATOR 23...

...criminal jurisdiction could not, as a matter of customary international law, apply to conspiracies pursued outside U.S...

...Here it rested on the 1950 ruling of the U.S...

...During the Second World War, the Supreme Court approved the execution of German agents, who had landed in the United States by submarine, after trial by a military commission that afforded much less due process than that guaranteed by the Bill of Rights...

...So the court scoffed at the "commonplace . . . claim" that legal scholars are, on their own, entitled to "speak for 'the international community: loosely so called...

...And U.S...

...Even if Jeremy Rabkin is professor of government at Cornell University...

...Good for them...

...The headnote to the case lists 144 law professors—including a The prospect of hanging concentrates the mind...

...The short answer is that trying to get other countries to respect American ideas about international law is a challenge for American diplomacy—and always has been...

...This notion that professors of international law enjoy a special competence to prescribe the nature of customary international law wholly unmoored from legitimating territorial or national responsibilities, the interests and practices of States, or (in countries such as ours) the processes of democratic consent...

...In January, the Fourth Circuit Court of Appeals, in an opinion by Chief Judge Harvey Wilkinson, nonetheless upheld the constitutional validity of Hamdi's detention...

...citizenship (claimed by two of the German saboteurs) did not guarantee further protection for agents operating in the uniform and under the direction of an enemy state...

...If treaties are regarded as evidence of customary law, however, an alien might still go into court with claims grounded on treaties, but now repackaged as "customary law," evidenced by treaties—and might even invoke treaties not ratified in any form by the U.S...

...committed in violation of the law of nations or a treaty of the United States...

...aircraft overseas and for actually participating in the truck-bomb attack on the World Trade Center in 1993...

...If the U.S...

...22 THE AMERICAN SPECTATOR • JUNE/JULY 2003 federal courts could exercise jurisdiction over military actions, he argued, it would still be improper for courts to apply broad claims about customary international law, as Odah had urged, under a 1789 statute authorizing suits "by an alien, for a tort...

...In the Guantanamo case, Judge A. Raymond Randolph filed an additional opinion, going beyond this initial argument about jurisdiction...

...Federal courts are getting it...

...Under the prompting of law professors, other federal courts have held that the "law of nations" now embraces a broad range of human rights claims, set out in international treaties...

...Court of Appeals took a broadly similar approach to the claim of Afghan fighters detained at the U.S...

...Noting that the Constitution assigns to Congress the power to "define and punish offenses against the law of nations, " Randolph concludes that it is "abundantly clear that Congress—not the judiciary—is to determine, through legislation, what international law is and what violations of it ought to be cognizable in the courts...

...In mid-March, the D.C...

...number of quite prominent and senior scholars at distinguished law schools—and 23 advocacy organizations, filing amicus briefs on his behalf...

...Arguably, a "lawful combatant" must be released at the end of the war in which he was captured...

...Ramzi claimed that U.S...

...If our own courts can defy norms of customary international practice (when U.S...

...But the appeals court found no difficulty upholding the detention of Hamdi as an enemy combatant...

...Presidential and congressional war powers, the court noted, are also part of the Constitution and no less crucial to the rights of the American people than guarantees in the Bill of Rights: "For the judicial branch to trespass upon the exercise of the war-making powers would be an infringement of the right to self-determination and self-governance at a time when the care of the common defense is most critical...

...is certainly without merit?' The court's ruling is much less convincing in distinguishing past application of customary law under the Alien Tort Act to a Paraguayan police official (who tortured and killed Paraguayans) and a Serbian militia commander (who perpetrated atrocities against Bosnian Muslims...

...courts that American citizens could not make...

...territory The appeals court had an easy answer to this challenge: Congresshas authorized prosecution of those who conspire to attack Americans, even if the attack takes place on foreign soil—and "United States law is not subordinate to customary international law or necessarily subordinate to treaty-based international law...

...It emphasized that customary law must be discerned from the actual practice of states...

...The opinion by Chief Judge John Walker covers some of the same issues from a somewhat different angle...

...The ruling in Yousef does highlight the problem...

...naval base at Guantanamo Bay, Cuba, raised in Odah, et al...

...In Eisentrager, the Supreme Court had rejected the idea as absurd: "It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home...

...To refute this claim, the court entered into a quite extensive discussion of the legal basis for claims about customary international law...

...Three recent cases decided by federal appeals courts illustrate sober second thoughts about the creep of activist international law claims into American jurisprudence...

...The Fourth Circuit decision in Hamdi rightly declined to pronounce on the hypothetical question of whether this precedent would now apply to terror suspects arrested in the United States...

...Historical inquiry, as Judge Randolph reports, indicates the statute was enacted to authorize claims for compensation after improper seizures of foreign vessels by American authorities...

...He turned out to have a lot of friends...

...Yaser Hamdi was one of the Taliban fighters captured by American forces in Afghanistan in 2001...

...Senate...

...Everyone agrees, in the abstract, that perpetrators of terrible crimes should be punished...

...government were bound to respect every provision of the convention in these circumstances, it would lose one traditional means of bargaining for better treatment of American prisoners in enemy hands: "This is the very essence of reciprocity," as the court noted...

...The court thus refused to treat the Geneva Convention as necessarily applying to enemies that fail to honor it...

...It's not, in general, a good idea to let any country go around punishing anyone who commits acts which that country wants to define as criminal, even if the crimes had no connection with the country so defining them...

...In April the Court of Appeals for the Second Circuit affirmed the conviction of Ramzi Yousef and other foreign terrorists for conspiring to blow up U.S...

...It went on to dispute the ruling of the trial court that "terrorism" had become recognized in customary international law as a crime subject to "universal jurisdiction...

...Supreme Court in Johnson v. Eisentrager that habeas corpus was not available for foreign enemies held on foreign soil...

...But perhaps the judges felt bound to respect these precedents of their own circuit...

...He was held there but not charged with any crime...

...Even U.S...

...The prospect of terrorist attacks on American cities does that, too—at least for federal judges on the East Coast...

...That means we should not want even our own courts to hobble necessary military action...

...In case of conflict, the law enforced by federal courts is the latest law enacted by Congress...

...Only four law professors and three attorneys in private practice filed amicus briefs on the government's side...

...But countries disagree in what they define as criminal...

...But the court insisted that the correct interpretation of the convention was not a matter for a federal court to determine, in any case, "since we would have thereby imposed a mechanism of enforceability that might not find an analog in any other nation:' The convention must be "vindicated by diplomatic means and reciprocity...

...So the Alien Tort Act would allow foreigners to make claims in U.S...

...courts would then be empowered to speculate, on their own—or with help from those law professors—whether customary law now embraces such measures as the treatment of war prisoners under the Geneva Convention...

...Because he had been born in the United States and was "apparently an American citizen:' he was brought back to a naval brig in Norfolk, Virginia...

...Good for us...

...Meanwhile, the first priority of American policy must be security for the American people...

...law requires them to do so), why should American judges worry about whether their rulings encourage other countries to reinterpret customary law...

...This right of the people is no less a right because it is possessed collectively?' The appeals court applied this perspective in responding to claims that Hamdi was denied his rights under the Geneva Convention on prisoners of war...

...Randolph's opinion points out that when the Senate has ratified such treaties, it has stipulated that they will not be "self-executing"—that is, cannot be invoked as law in domestic courts...

...The court emphasized that prisoners of war held outside American territory had no constitutional claims...

...But the Second Circuit was not content to leave the issue there...

...The ruling of the Fourth Circuit Court of Appeals in Hamdi v. Rumsfeld stirred the most interest...

...It's not a challenge made easier by letting American courts, egged on by American law professors, proclaim their own new ideas about what international law should be...

...Moreover, the United States, along with Pakistan (where Yousef was arrested), had subscribed to an international treaty calling for the prosecution of terrorists, which gave further authority for Congress to enact the criminal penalties applied against Yousef and his co-conspirators...

...Adopting this approach, Belgian prosecutors found themselves with petitions to prosecute Donald Rumsfeld for authorizing the bombing of targets in Iraq that caused incidental loss of life to civilians—though the case has nothing to do with Belgium...

...The court denied that any country might properly prosecute anyone deemed a "terrorist" whether its own territory or its own citizens were involved in the particular terror incident...

...v. U.S...

...The court insisted, however, that customary law had long recognized the right of a state to prosecute those who attack its citizens or conspire to do direct harm to the state, even if the conspiracy itself takes place outside the territorial boundaries of the state...

...Yes, we need legal constraints on executive actions in our own country But we can only retain our own country if we can secure it against threats from abroad, and that kind of security can't be delivered by lawyers and judges...

...The Court's ruling in In re Quinn held that enemy combatants are not entitled to anything more...