Dispatches from the Creation Wars

Jack Balkin says no:

First, the MCA puts the President in an interesting position: the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva’s status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly.

But that last part seems to be the key: this law forbids anyone from taking a violation of the Geneva Conventions to court. Here is the text of Sec. 7(a):

(a) In General- No person may invoke the Geneva Conventions, or any protocols thereto, in any habeas or civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States, is a party, as a source of rights in any court of the United States or its States or territories.

So here’s the question: if the legislature and the executive branch both claim the authority to violate this treaty, and the courts cannot hear any case that challenges those actions, how exactly is this treaty still the law of the land? Remember, under our constitution treaties are considered binding law. Once the Senate ratifies a treaty, it is just as legally binding as any other law. But if our government violates it and there is no recourse to challenge such violations, is this not a de facto withdrawal from the treaty?


  1. #1 SharonB
    September 29, 2006

    I agree with your reasoning, Ed. It is a perfect Catch-22 loophole / doublespeak situation.

  2. #2 Jake
    September 29, 2006

    No doublespeak about it. We are about to withdraw from the Geneva Conventions. To top it off, IINM this law also can apply to US citizens.

  3. #3 RickD
    September 29, 2006

    Well, we’ve been going to war without declaring war for quite some time. The concept of “rule of law” has long been abandoned in favor of “follow laws if forced to”.

  4. #4 jba
    September 29, 2006

    Now this is something I have been wondering about a lot lately. I dont claim to know too much about the Geneva Conventions, but isnt the way we’ve been treating prisoners this whole time a violation of them? Or do we get out of it because they are considered civilian? Also if someone could point me to a good source about the Conventions I would appreciate it, as it seems more important now than any time I can recall to understand them.

  5. #5 Morat20
    September 29, 2006

    What I don’t get — seriously don’t get — is why the GOP isn’t showing the slightest shred of self-interest here. The “We Own Congress and the White House” party can’t go on forever. They’re likely to lose part of Congress soon, and the Presidency sooner or later.

    It’s entirely possible they’d end up with a Democratic president with all these powers — and no way for them to repeal them without Democratic opposition.

    The GOP used to have a cottage industry in paranoid fear of the government — how come they’re not wondering “What would Hillary do with this?”*

    *I chose Hillary because the wingnuts are convinced she’s a jackbooted thug. Personally, given the choice between giving Hillary those powers or George, I’d pick Hillary hands down.

  6. #6 David Durant
    September 29, 2006

    So, what happens now? Surely there must be those on the Supreme Court Bench that would agree that the act of bringing this law onto the books breaks existing de-facto American law.

    What manner of case would have to be brought before they could, in effect, strike this law down?

    What precedence is there here? Ie, would it be more likely that the treaty would be found to be no longer valid (by judical decision) instead? Can that branch of government even do that?

  7. #7 Anuminous
    September 29, 2006


    You could try here

  8. #8 FishyFred
    September 29, 2006

    [blockquote]No doublespeak about it. We are about to withdraw from the Geneva Conventions.[/blockquote]But would the administration admit it? If we’re withdrawing, I understand the mindset if the administration tries to keep it on the down-low, but that’s because admitting it would be a PR nightmare for most Republicans.

  9. #9 Dan
    September 29, 2006

    The basic question is: Is there a rule if there is no remedy for a violation of it? The question isn’t easy to answer, but it also isn’t particularly novel, either. Have a look at Holland v. Michigan handed down last term. At issue there was the “knock and announce” rule that is well established in Fourth Amendment jurisprudence. In Holland, the Court said that knock and announce remains the rule, but if the police break the rule, there is no constitutional violation. You can argue that formally, knock and announce remains the law and serves as a “reminder” to law enforcement; or you can argue that realistically, knock and announce is not the law.

    Same situation here. Formally, CA 3 remains the law. Realistically, this Act negates (or at least purports to negate — stay tuned) any meaningful remedy in most instances. Professor Balkin is arguing that CA 3 remains the law because it sets up a conflict for the Executive under the “take care” clause of Art. II. That is to say, if CA 3 remains the law, then the Executive must take care to enforce it. If the Executive fails to do so, he may be liable to impeachment. Not a likely scenario given the current composition of Congress (nor, admittedly, any likely to emerge after the midterms). But if CA 3 has been repealed, then the President has no duty to execute it. I wouldn’t pretend to speak for Prof. Balkin, but that’s my guess as to why he argues as he does.

  10. #10 Matthew Young
    September 29, 2006

    It’s just so incredibly depressing, as much as anything.

    Maybe there hasn’t been a real war for far too long. There seems to be no understanding of why things like the Geneva Convention exist and why there are very, very good reasons for them existing.

    The same really goes for applying the rule of law to POWs of all stripes, whether you wish to call them ‘terrorists’ or not. How can you actually declare war on someone and then define them as illegal combatants? Is the assumption that you are allowed to shoot at them, but the second they shoot back they are somehow breaking the rules?

    It reminds me of listening to Americans calling the French ‘surrender monkeys’ – clueless, idiotic, pompous, vainglorious pig-ignorance of the worst kind, betraying a complete lack of understanding of what war is like. There was brutal, brutal war waged across Europe and Asia twice in the space of thirty years and the scars of these wars changed society in a very profound way.

    Virtually every village in France has a war memorial for both wars in the centre of the town with a list of names on it that must come very close to equalling the entire male population of that village at the time. Russia lost 20m people in WWII. Not three thousand. Twenty million. Poland lost a fifth of its population. This kind of scar on the mentality of a people is something that a/ the United States seems to find impossible to understand, and b/ created the atmosphere in which the Geneva Convention and UN were created and considered essential.

    As we get further and further from these events people slowly drift into forgetfulness about why things like the Geneva Convention actually exist. Heck, how far did we have to get from the Cold War for people to forget how seriously we took the threat of nuclear holocaust only a few years ago? Suddenly the anti-proliferation treaty can be cast aside with the Geneva Convention.

    We seem to have generated a lot of anxiety without the sobering, awful lessons that come from actual, serious conflict, and consequently we are collectively making some very, very bad decisions. Depressing beyond words.

  11. #11 dogmeatIB
    September 29, 2006

    I know it sounds like a conspiracy theory, but what if they aren’t planning on losing any more elections? I mean think about it this way:

    1) 2000 election was a fiasco
    2) 2004 election had some serious flaws
    3) Huge push to put in voting machines that actually violate voter rights laws, leave no paper trail, and are produced by companies run by huge supporters of the GOP
    4) Sometimes these companies are actually allowed to manage the elections
    5) Systematic undercounting of urban areas, IE the census flap from the late 90’s that everyone seems to have forgotten about.
    6) Two senators, while leading in their respective races, die in four years?

    If you look at it from trends, etc., the 2004 election makes no sense:

    -Bush’s approval rating prior to the election, sub 50%, generally as sure of a sign as you can get that the president is going to lose.

    -during his tenure the misery index rose, another very likely sign that the incumbant party loses.

    -High voter turnout … historically has gone to Democrats.

    There are three or four more, but you get the point. Certainly, one or two, coincidence, but just about every common indicator suggested that Bush would lose, and lose badly, yet he won. It honestly doesn’t make any sense, so perhaps they aren’t planning on losing any more “elections.”

  12. #12 Coin
    September 29, 2006

    What I don’t get — seriously don’t get — is why the GOP isn’t showing the slightest shred of self-interest here. The “We Own Congress and the White House” party can’t go on forever. They’re likely to lose part of Congress soon, and the Presidency sooner or later.

    Are they? In the aftermath of this detainee/wiretap/torture bill passing, the Republicans are in victory lap mode, the media is wash with stories about how Bush gave a speech saying that the Democrats and Al Qaeda are actually the same organization or something, and looking at the news the momentum the Democrats have been building for weeks appears to be completely gone.

    The Democrats appear to have entirely surrendered the media plotline by allowing this vote to go forward, and they seem to be showing no indications of exerting any efforts to reclaim it. They don’t even seem to be showing any indications of pushing back against the Republicans for creating this bill, or trying to justify the way the Democrats voted on the bill to the public– which is hardly surprising, because about eleven of the Senate’s democrats voted for the new bill.

    Looking at the news today I see no one opposing the Republicans but a bunch of bloggers. I think it’s quite possible the Democrats just lost the election.

    It’s entirely possible they’d end up with a Democratic president with all these powers — and no way for them to repeal them without Democratic opposition.

    I think it’s abundantly clear that every inch of Republican policy at this point– from national security, to fiscal policy, to even their own political strategies– is based around thinking only about the present and ignoring the consequences, no matter how bad, for the future. Considering the party’s policy is being basically set by fiat from a presidential administration that only exists for two more years anyway (assuming you believe Cheney’s claims he won’t run for president), this may not be all that surprising.

  13. #13 Coin
    September 29, 2006

    Wait; my mistake, the wiretap bill is separate from the detainee bill.


    Mr. Brayton: I’ve been wondering but have no idea, or any idea who to ask. Exactly how plausible is it that parts of this new bill will be subject or susceptible to judicial challenge? For example, the bit saying that you can’t bring geneva conventions claims before a court. My understanding, which could be wrong, is that the congress can basically set the rules for lower courts as they please, but the Supreme Court is at least to some degree autonomous and the congress can’t just order them not to take certain cases. How much authority does Congress have to pass something like this “no judicial Geneva enforcement” rule, and is it possible that the supreme court could rule that regardless of congress they have the power to hear such cases if they want?

    Then there’s the thing about how non-U.S. citizens no longer have the right of habeas corpus. I’m particularly curious about that. Does congress actually have the authority to do this? Arlen Specter seems to already think this part of the bill will be struck down in court. As far as I’m aware the Constitution says that habeas corpus can be abridged when “the public safety requires it”, but is this clause unlimited? Does Congress actually have the right to suspend habeas corpus (even if only for non-citizens), indefinitely, during a time such as now when the nation is not at war? Is there any precedent on such a question?

  14. #14 coturnix
    September 29, 2006

    No, they do not intend to lose any Presidential elections ever in the future. With this bill, Congress has relinquished power to the Executive, so they do not care if they lose House or Senate every now and then. This bill eliminates Courts as the third leg of the tri-prong government as well.

    So, when they cheat in 2008 with their voting machines and we go out and protest, Bush will throw us in jail as “enemy combatants”. Easy.

  15. #15 Boosterz
    September 29, 2006

    The Bush administration knows full well that this bill can’t withstand a legal challenge. That’s why they have AG Gonzales going out and shaking his finger at judges telling them, “you better not kill this BS law if you know what’s good for you!”

    These people would be a joke if they weren’t so damn dangerous.


  16. #16 Ed Brayton
    September 29, 2006

    I spent some time this afternoon on a conference call with a bunch of liberty-minded people who are working on how to respond to this, including a few lawyers. Basically, the courts are not likely to uphold the habeas corpus provisions, but that’s a two or three year process. And it’s not entirely clear who has standing to bring such a suit. And frankly, I think they know that and know they’ll be out of office by the time anything can really be done about it.

  17. #17 Daniel DiRito
    September 29, 2006

    In our acceptance of the Geneva Conventions, we not only demonstrated our commitment to humanity, we honored the principles and values upon which our nation was founded…and in so doing we led the world towards civility by example…at a time when we could have sought retribution and retaliation. In so doing, we led the world out of darkness and we became a beacon for freedom and for justice and provided us with more might than all of the weapons we possessed. By applying our morality with consistency, we provided hope to the oppressed as well as the oppressors that freedom and justice served by all is freedom and justice received by all.

    We stand again at a crossroads. We can succumb to fear and choose a path that not only violates our moral construct but serves to destroy the very foundations upon which this nation was built. If we make the wrong decisions, we will also no longer be defending the values that we purport to honor…we will no longer be patriots because a patriot only exists if the nation he supports still exists. If we give up our values in order to preserve our way of life, we have chosen self-defeat. One can never suspend one’s values in order to defend them. To do so is to have no values.

    Today America is being called upon to lead by example. Should we fail to do so with the courage of our convictions and the commitment to honor those convictions in the face of adversity; we will have ceded our country and our right to lead…at which time the choice to be a patriot will have been precluded. Democracy grows when democracy’s practiced. Dying for democracy can only happen if democracy lives. To deny democracy in order to preserve it is to dishonor those brave enough to defend it.

    Mr. President, will you be a patriot and lead this country or will you abrogate the efforts of the countless patriots that served her well? The fate of America hangs in the balance.

    Read more here:


  18. #18 Thinker
    September 29, 2006

    The “no need to knock on a ‘need to knock’ warrent” case is a bit different. In that case, the majority, with either stunning naivety (unlikely) or stunning disingenuousness (very likely). Said that there were still remedies in that the victims could sue for civil rights violations. Which is of course, bullshit, when was the last time you heard of _anyone_ even bringing, much less winning a civil rights case against the police for not knocking on an otherwise valid warrant?

    Proved that Scalia is a more brazen liar than previously suspected.

    But, theoretically at least, there is a recourse for violations of the knock rule.

    This bill doesn’t even leave a theoretical recourse for violations of the Geneva Conventions. Make no mistake, we just pulled out of the treaty.

  19. #19 Ktesibios
    September 29, 2006

    Well, whatever the Party Comrades manage to do in the way of destroying every decent free thing this country ever stood for, there’s one thing I think is certain.

    Some of our Glorious Leaders are going to spend the rest of their lives unable ever to set foot outside the USA for fear of a tap on the shoulder from someone with a warrant.

  20. #20 raj
    October 1, 2006

    Much as I respect Jack Balkin and his web site, it strikes me that he is being a bit disingenuous. It should be obvious that, if there is no remedy (no ability to sue in court for violation of the law), there is no right. And that is what the recent law would provide for.

    I seriously don’t know how to put it more simply.

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