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International Law in the U.S. Legal System, 2nd Edition by Bradley, Curtis A (4th June 2015)

10 War Powers and the War on Terrorism

From: International Law in the U.S. Legal System (2nd Edition)

Curtis A. Bradley

Subject(s):
Terrorism — War crimes — Ius ad bellum — UN Charter — Ius in bello — Conduct of hostilities — UN Security Council — Armed conflict, international — Detention — Specific courts and tribunals — Specific Courts and Tribunals

(p. 285) 10  War Powers and the War on Terrorism

this chapter considers the relevance of international law within the U.S. legal system to the United States’ initiation and conduct of war. It also discusses a variety of international law-related issues that have arisen in connection with the “war on terrorism” following the attacks of September 11, 2001.

Much of the interpretation and enforcement of international law in this area occurs outside the courts, especially within the executive branch. As will be seen, courts do not typically enforce the international laws of war directly against Congress or the president. Some aspects of the international laws of war, however, have been incorporated into federal statutory provisions, especially criminal provisions, and these statutes can be enforced by both civilian and military courts. Courts also sometimes take account of international law when construing other federal statutes relating to war. This topic therefore provides yet another example of the indirect, interpretive role of international law in the U.S. legal system.

Even when courts are not involved, the U.S. government gives significant attention to the international laws of war, in part because of concerns about reciprocity with respect to the treatment of U.S. military personnel, but also because of a longstanding commitment to the values reflected in these laws. The government is not a unitary decision maker, however, and this topic therefore also illustrates how departments within the government often often debate both the content and applicability of international (p. 286) law. This is true even within the executive branch itself, as is illustrated by some of the legal debates that have arisen in the war on terrorism.

Modern International Law and Warfare

An extensive body of international law is relevant both to the initiation of war and to how war is conducted. The international law governing the initiation of war is referred to as jus ad bellum, and the international law governing the conduct of war is referred to as jus in bello.1 The latter category encompasses what is commonly referred to as the “law of armed conflict” or “international humanitarian law.” A variety of treaties and customary norms regulate both areas of international law.

The principal treaty regulating jus ad bellum today is the United Nations Charter, to which the United States has been a party since 1945.2 Under the Charter, nations are allowed to use military force “against the territorial integrity or political independence of any state” in only two circumstances: in individual or collective self-defense, or pursuant to an authorization from the United Nations Security Council.3 This sharp restriction on the use of force represents a substantial change from how international law historically addressed the initiation of war. At least prior to the formation of the League of Nations after World War I and the adoption of the Kellogg-Briand Pact of 1928, war was understood to be a generally available instrument of foreign policy.4

(p. 287) Because the restrictions in the UN Charter on the use of force are directed at the political and military organs of government and concern relations between nations rather than the treatment of individuals, they are probably not “self-executing” in the U.S. legal system.5 As discussed in Chapter 2, even if non–self-executing treaties are in some sense binding on the executive branch, they are not judicially enforceable. Although customary international law may contain restrictions similar to those in the UN Charter,6 U.S courts (as we saw in Chapter 5) are unlikely to enforce customary international law against Congress or the president. Indeed, in The Paquete Habana, which concerned actions by the U.S. Navy in the Spanish-American War, the Supreme Court noted that customary international law is to be applied in the absence of a “controlling executive or legislative act.”7

A much wider array of treaties govern jus in bello. Some treaties, for example, restrict the types of weapons that can be used in combat.8 Probably the most important treaties (p. 288) governing conduct in war are the four Geneva Conventions for the Protection of Victims of War that were developed after World War II. These Conventions address the treatment of various categories of individuals during armed conflict, including prisoners of war.9 The United States ratified the Conventions in 1955, and today essentially all nations in the world are parties to them.10 Some human rights treaties, such as the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, are also potentially relevant to conduct during war.

It is not clear whether the Geneva Conventions are self-executing. As discussed in Chapter 2, treaty provisions calling for criminal punishment have long been treated in the U.S. legal system as non–self-executing, and some provisions in the Geneva Conventions fall into that category. As for the other provisions in the Conventions, they concern the protection of individuals, a factor that might weigh in favor of self-execution. On the other hand, the subject matter of the Conventions—conduct during an armed conflict, which often will take place outside the territorial jurisdiction of the United States—might suggest that domestic judicial enforcement was not contemplated. In a 1950 decision, Johnson v. Eisentrager, the Supreme Court stated in a footnote that the 1929 Geneva Convention—a precursor to the current Geneva Conventions—was not self-executing. The Court explained:

It is…the obvious scheme of the Agreement that responsibility for observance and enforcement of these rights is upon political and military authorities. Rights of alien enemies are vindicated under it only through protests and intervention of protecting powers as the rights of our citizens against foreign governments are vindicated only by Presidential intervention.11

(p. 289) The United States ratified the current Geneva Conventions after this decision, and there is no indication in the Conventions that they were intended to provide for a new right of judicial review. Instead, the Conventions provide only for diplomatic mechanisms to resolve disputes under the Conventions.12

Regardless of whether the Conventions or other treaties relating to war are self-executing, Congress can incorporate their provisions into U.S. law. It has done so to some extent in the War Crimes Act.13 As originally enacted in 1996, the Act criminalized the commission of “grave breaches” of the Geneva Conventions when committed either by or against U.S. nationals or armed forces.14 In 1997, the Act was amended to broaden the definition of war crimes to cover certain violations of other treaties relating to the conduct of warfare, and also to cover any violation (not just “grave breaches”) of Common Article 3 of the Geneva Conventions (which provides certain minimum protections for individuals in conflicts “not of an international character”).15 As discussed below, the Act was amended again in 2006 in response to a Supreme Court decision holding that Common Article 3 applied to the war on terrorism.16

(p. 290) Congressional War Powers

The Constitution assigns a variety of war-related powers to Congress. These include the powers to “declare war,” to “grant letters of marque and reprisal,” and to “make rules concerning captures on land and water.”17 In addition, Congress has the power to “raise and support armies,” to “provide and maintain a navy,” and to “make rules for the government and regulation of the land and naval forces.”18 Other congressional powers, such as the power to define and punish offenses against the law of nations, are also potentially relevant to war. In addition, Congress has the general authority to make laws “necessary and proper for carrying into execution” not only its own powers but also “all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof,” including the war powers of the president.19

Academic commentators have disagreed about the implications of the Constitution’s assignment to Congress of the power to declare war. At the time of the constitutional Founding, declarations of war served particular functions under international law. Among other things, they would trigger customary international law rules governing conduct such as the seizure of vessels, the shipment of contraband, and the institution of blockades.20 Some scholars contend that Congress was given only the power to trigger these international law consequences, not control over the United States’ initiation of wars.21 The Constitution provided for war-making to be checked, according to this argument, not through a requirement of advance congressional approval, but rather (p. 291) through congressional control over appropriations for war.22 Many scholars disagree with this argument, however, contending that the Declare War Clause, along with the Constitution’s other grants of war-related authority to Congress, show that the constitutional Founders vested control over war initiation with Congress.23 These scholars note, among other things, that early U.S. presidents and other political figures appeared to assume, as least in their public statements, that congressional authorization was needed in order for the United States to conduct offensive military operations.24

The scholars who maintain that the Constitution requires congressional authorization in order for the president to initiate war do not typically maintain that the authorization must take the form of a declaration of war. Undeclared wars were common before the constitutional Founding,25 and the United States’ first major conflict against another nation after the Founding—a naval war against France at the end of the eighteenth century—was undeclared.26 In fact, despite being involved in hundreds of military conflicts since its Founding, the United States has declared war in connection with only five conflicts: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.27 Moreover, modern international law, by outlawing aggressive war-making and disallowing the changing of legal entitlements through war, has made declarations of war much less relevant than they once were.28 In part because of (p. 292) these changes in international law, the United States has not issued a formal declaration of war in over seventy years.29

Although Congress has not formally declared war since World War II, it has authorized by statute some of the most significant U.S. military engagements in the post–World War II period, including the Vietnam War, the 1991 Gulf War, the post-September 11, 2001 war in Afghanistan and against Al Qaeda, and the 2003 Iraq War. As discussed below, however, President Truman initiated the Korean War in 1950 without congressional authorization. Moreover, presidents have initiated a number of smaller-scale military operations in this period (such as in Panama, Somalia, Haiti, Yugoslavia, and Libya) without congressional authorization.30 As discussed in Chapter 1, historical governmental practice can help inform understandings of the distribution of authority between Congress and the president, so it is not surprising that executive branch lawyers commonly cite to the post–World War II practice as evidence that congressional authorization is not a prerequisite for all presidential uses of force.31

As explained elsewhere in this book, Congress has the authority to override both customary international law and earlier-in-time treaties within the U.S. legal system. Thus, as a matter of U.S. law, Congress can authorize war even if the war would violate international law. Consider, for example, the U.S. war in Iraq that began in 2003, after Congress had authorized it in October 2002.32 It is arguable that this war, because it did not involve defense against an armed attack and was not specifically approved by the UN Security Council, violated international law.33 Nevertheless, within the U.S. legal (p. 293) system, Congress would have had the authority to approve the war and thereby potentially place the United States in breach of its international law obligations.

Despite Congress’s authority to override it, international law is likely to be relevant when discerning the scope and effect of some of Congress’s war powers. In addition to the power to declare war, other congressional war powers, such as its ability to issue letters of marque and reprisal and to regulate captures on land and water, directly concern topics that, at the time of the drafting and ratification of the Constitution, would have been regulated by international law.34 In addition, Congress’s authority to define and punish offenses against the law of nations obviously references international law and thus is potentially limited by it. For example, as will be discussed below, when using its define-and-punish power to prescribe crimes by enemy belligerents that can be prosecuted in military commissions, Congress may not be able to go beyond what is considered an offense under international law (although it may have authority outside the define-and-punish power to authorize the prosecution of certain other offenses).

International law is also potentially relevant when interpreting the scope of congressional authorizations of force. If nothing else, a broad authorization of force is likely to be read as conveying the general authority allowed to belligerents under the international laws of war. For example, during the Mexican-American War, for which Congress had formally declared war, the executive branch argued, and the Supreme Court agreed, that the president’s exercise of various belligerent rights in occupied California was valid, even in the absence of specific congressional authorization, because the rights were “the belligerent rights of a conqueror” that accorded with “the law of arms and the right of conquest” under the laws of war.35 Similarly, during the Civil War, which Congress retroactively authorized months after it began, both President Lincoln and the Supreme Court concluded that the president possessed all the authority permitted by the laws of war.36

(p. 294) The Supreme Court followed a narrower approach to construing congressional authorizations of war in a decision concerning the War of 1812. In Brown v. United States, the issue was whether a congressional declaration of war should be construed as authorizing the executive branch to confiscate enemy property located within the United States.37 A majority of the Court reasoned that, although the United States had a sovereign right to seize the property, modern international practice disfavored such a seizure, and “a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere.”38 The Court also noted that the Constitution gives Congress the power to make rules concerning captures on land as “an independent substantive power, not included in that of declaring war.”39 In addition, the Court observed that Congress had previously regulated other aspects of the treatment of enemy aliens, which suggested to the Court that such treatment was not addressed by the declaration of war.40 Finally, the Court reasoned that the determination of the U.S. policy on seizure of enemy property was properly made by Congress because “[t]‌he rule which we apply to the property of our enemy, will be applied by him to the property of our citizens” and that “[l]ike all questions of policy, it is proper for the consideration of a department which can modify it at will.”41

Modern assumptions about the scope of congressional authorizations of war appear to be broader than the approach of the Court in Brown. As Professor Louis Henkin noted, Brown was decided in an era in which presidential war power was “still in its infancy,”42 and at a time when Congress still micromanaged war-making. Particularly during and after the Civil War, wartime presidents captured and detained prisoners of war, held military trials, and negotiated armistice agreements—all in the absence of specific congressional authorization.43 That more expansive understanding of (p. 295) presidential wartime authority continued through World War II and was reflected in legislation, executive branch practice, and judicial precedent.44 The approach of the courts to Congress’s authorization of force in the war on terrorism, discussed below, is consistent with this broader understanding.

Presidential War Powers

The Constitution designates the president as the Commander in Chief of the armed forces.45 Even the scholars who maintain that the Constitution requires congressional authorization when the United States initiates war accept that the president, acting as Commander in Chief, has the authority to order the use of force to respond to attacks on the United States. As the Supreme Court stated in approving a naval blockade that President Lincoln had ordered at the outset of the Civil War, “[i]‌f war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force.”46 It is also generally accepted that the president has some authority to use force to protect U.S. citizens and their property abroad,47 and presidents and their lawyers have often invoked this power as a justification for military operations. Executive branch lawyers have also claimed that, while seeking to protect U.S. citizens abroad, the president may also use force to protect foreign citizens exposed to the same threat.48

Some scholars have argued that the scope of the president’s constitutional authority as Commander in Chief is implicitly limited by the international laws of war.49 To the extent that this is so, it is likely true only of the international law relating to jus in bello rather than jus ad bellum. As we have seen, international law historically did not (p. 296) place many restraints on the initiation of war. Although modern international law does sharply limit the permissible use of force, as a matter of practice presidents have exercised the sovereign authority of the United States to decide whether and how to comply with the jus ad bellum, and a number of presidentially initiated military operations in the post–World War II period have arguably been inconsistent with it. An especially significant example is the Kosovo bombing campaign directed by President Clinton in the late 1990s, which neither involved the exercise of self-defense nor was authorized by the UN Security Council and thus did not fall within the two permissible bases for the use of force set forth in the UN Charter.50 Congress could attempt to impose jus ad bellum restrictions on the president by codifying them in statutes, but it has shown no inclination to do so. For example, in its most significant effort to regulate presidential initiation of war—the War Powers Resolution of 1973 (discussed below)—Congress made no mention of any presidential obligation to comply with international law.

Even with respect to jus in bello limitations, the precedent for implied limitations on the commander-in-chief power is limited at best.51 A more likely way in which jus in bello restrictions would bind the president as a matter of domestic law would be if Congress incorporated them into federal statutes. Congress has a variety of powers that it could invoke to do so, including its power to regulate the armed forces and its power to define and punish offenses against the law of nations. Congress does not have the constitutional authority, however, to regulate in a manner that would invade an exclusive presidential power. The scope of the president’s exclusive commander-in-chief power is unclear, but at a minimum it probably includes control over the chain of military command,52 and it might also extend to control over some tactical decisions on the battlefield.53 In any event, Congress has incorporated aspects of the jus in bello(p. 297) into statutory law, such as in the War Crimes Act discussed above, and in the Uniform Code of Military Justice that regulates the conduct of U.S. military personnel, and these statutory provisions are generally assumed to be constitutional. Congress has also enacted criminal legislation prohibiting torture, as part of the United States’ implementation of the Torture Convention.54 Both the War Crimes Act and the torture statute were the focus of significant discussion in the war on terrorism, as discussed below.

War Powers Resolution

In 1973, in the wake of the Vietnam War, Congress enacted the War Powers Resolution, over President Nixon’s veto.55 The Resolution begins by expressing Congress’s view that the president has the constitutional authority to introduce U.S. military forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances” only if there is “a declaration of war,” “specific statutory authorization,” or “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”56 The Resolution then proceeds to require that the president consult with and report to Congress concerning the introduction of forces into hostilities.57 Most dramatically, the Resolution provides that the president normally must terminate the use of armed forces within sixty days unless Congress has either declared war or provided specific authorization for the use of force.58 The Resolution also makes clear that authorization is not to be inferred from any treaty unless Congress has implemented the treaty with legislation that specifically authorizes the use of U.S. armed forces.59

President Nixon argued that the War Powers Resolution was unconstitutional, and other presidents have sometimes raised questions about its validity. Nevertheless, presidents have often submitted reports to Congress about military operations and have (p. 298) stated that these reports are “consistent with” the terms of the Resolution.60 In addition, when presidents have continued with hostilities beyond the sixty-day cutoff date specified in the Resolution, they have argued that they were acting consistently with the Resolution, not that they could disregard it. Many commentators have expressed the view, however, that the Resolution has not operated as an effective restraint on presidential war-making.61

To date, courts have not been willing to adjudicate challenges to purported presidential noncompliance with the War Powers Resolution. As discussed in Chapter 1, the Supreme Court has held that members of Congress generally do not have standing to challenge presidential actions, and lower courts have dismissed congressional efforts to enforce the Resolution on that basis.62 Other courts have reasoned that the meaning of “hostilities” in the Resolution (which does not necessarily track the concept of “armed conflict” under international law) is a nonjusticiable political question that must be worked out by Congress and the executive branch rather than the courts.63 Still other courts have found particular challenges under the Resolution to be either unripe or moot.64

A recent example of controversy over presidential compliance with the War Powers Resolution involves the U.S. military operations in Libya in 2011. After the Libyan government of Colonel Muammar Qadhafi initiated a violent crackdown against protestors, the UN Security Council authorized nations to “take all necessary measures” to protect civilians there.65 The United States, operating as part of an international coalition, subsequently launched air strikes against Libyan targets. President Obama submitted a report to Congress about the strikes, which he described as being “consistent with the War Powers Resolution,” but he did not seek or obtain congressional authorization for the strikes. The Justice Department’s Office of Legal Counsel issued a memorandum arguing that even if the president is constitutionally required to obtain congressional authorization before engaging in “war,” the Libyan operation was sufficiently limited in nature, scope, and duration that it did not constitute a war for these purposes.66 When (p. 299) the operation continued after sixty days, the State Department’s Legal Adviser controversially argued that the War Powers Resolution was inapplicable. According to his argument, the United States was not engaged in “hostilities” within the meaning of the Resolution because, among other things, the operation did not involve the use of ground troops and posed little danger to U.S. armed forces.67 The Legal Adviser did not claim, however, that the president had the legal authority to ignore the Resolution. Indeed, he made clear in an interview that the Obama administration was “not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress.”68

Delegating War Powers

One issue that has arisen in the debates over the constitutional distribution of war authority is whether, assuming congressional authorization is normally required for nondefensive uses of force, authorization from the UN Security Council can serve as a substitute. The United States has been a party to the UN Charter since 1945. Under the Charter, the Security Council, which is composed of five permanent members and ten rotating nonpermanent members, is charged with “primary responsibility for the maintenance of international peace and security.”69 If the Security Council determines “the existence of any threat to the peace, breach of the peace, or act of aggression,” and that nonmilitary measures “would be inadequate or have proved to be inadequate,” it can authorize “such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”70 As a member of the United Nations, the United States has promised in the Charter to “accept and carry out the decisions of the Security Council.”71 Because it is one of the five permanent members of the Council, however, it has a veto power and therefore is in a position to block any decisions by the Council (including authorizations of military force) with which it disagrees.

Some scholars contend that, even if presidents are normally required to obtain congressional authorization for nondefensive uses of force, they are not required to do so (p. 300) when the use of force has been authorized by the Security Council.72 These scholars note that presidents have a constitutional duty to take care that the laws are faithfully executed, and they argue that this duty should encompass the UN Charter, since it is a treaty ratified by the United States. They also contend that, when the United States is using force pursuant to a Security Council resolution, it should not be viewed as engaged in a “war” for purposes of the Constitution.73

This sort of argument was made in support of the legality of the Korean War, which was authorized by the Security Council but not by Congress. Senator William Knowland, for example, contended that President Harry Truman had authorization to commit U.S. forces into combat “under the terms of our obligations to the United Nations Charter,” and that this action did not require a declaration of war because it was “more in the nature of a police action.”74 More qualified statements along these lines were made in connection with the Gulf War in 1991, which was authorized by the Security Council following Iraq’s invasion of Kuwait, although the first President Bush ultimately decided to obtain congressional authorization for that conflict.75

Critics of this argument contend that the Security Council is not functionally analogous to Congress with respect to the authorization of the use of force.76 The Council (p. 301) does not represent the U.S. electorate, and, although the United States has a veto power on the Council, the U.S. representative is appointed by, and subject to the direction of, the executive branch. Moreover, in practice, Security Council resolutions at most authorize the use of military force; they do not mandate that nations engage in military action. As a result, there is no inherent conflict between a presidential duty to take care that the laws are faithfully executed and a requirement of congressional authorization. It is also important to keep in mind that the UN Charter was approved by the Senate but not the House of Representatives, whereas the Constitution assigns the power to declare war to the full Congress.

It is noteworthy that, although the Obama administration was acting pursuant to Security Council authorization in conducting military operations against Libya in 2011, it did not claim that Council authorization was a substitute for congressional authorization. Instead, a memorandum from the Justice Department’s Office of Legal Counsel reasoned that the military operations were not “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause.”77 Similarly, in a report sent to Congress, the Obama administration argued that “[g]‌iven the important U.S. interests served by U.S. military operations in Libya and the limited nature, scope and duration of the anticipated actions, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad.”78 The administration did, however, cite to the “longstanding U.S. commitment to maintaining the credibility of the United Nations Security Council and the effectiveness of its actions to promote international peace and security” as a national interest that justified the president’s decision to order the use of force.79 In other words, instead of claiming that the Security Council resolution provided a constitutional alternative to a requirement of congressional authorization, the administration simply claimed that the authorization could help justify the executive branch’s use of force in a situation in which congressional authorization was not required.

Placing U.S. Troops under Foreign Command

Sometimes U.S. military operations are carried out in conjunction with other nations as part of a coalition or international structure. For example, the United States regularly participates in military operations under the auspices of the North Atlantic Treaty (p. 302) Organization or the United Nations. One issue that is implicated by such joint operations is whether it is constitutional to place U.S. troops under foreign command. The Constitution makes the president the Commander in Chief of the armed forces, and also gives him or her the power to appoint officers of the United States, including high-level military officials, subject to the consent of the Senate. It is unclear to what extent these assignments of authority to the president limit the president’s ability to delegate command to foreign officers.

In thinking about this issue, it is useful to distinguish between four types of command authority. Policy command involves developing general goals that guide the conduct of the military operations. Strategic command involves the translation of policies into concrete military plans. Operational command involves organizing forces and directing their mission. Tactical command involves direct control over troops and their use in combat. In a number of instances in U.S. history, including during both World War I and World War II, U.S. troops have served under the operational command of foreign officers, and sometimes even under their strategic command.80 Generally, however, the United States has not delegated either policy command or tactical command.

In 1994, after an extensive interagency review process, President Clinton issued Presidential Decision Directive 25, which sets forth guidelines for U.S. participation in multilateral peacekeeping operations.81 Among other things, the Directive addresses the issue of U.S. soldiers serving under foreign command. According to a White House summary of the Directive, it makes clear that “[t]‌he President retains and will never relinquish command authority over U.S. forces,” and that “[t]he chain of command from the President to the lowest U.S. commander in the field remains inviolate.”82 At the same time, it notes that “the President will consider placing appropriate U.S. forces under the operational control of a competent UN commander for specific UN operations authorized by the Security Council.”83 Even in these situations, however, the United States would retain certain “fundamental elements of the U.S. chain of command”:

U.S. commanders will maintain the capability to report separately to higher U.S. military authorities, as well as the UN commander. Commanders of (p. 303) U.S. military units participating in UN operations will refer to higher U.S. authorities orders that are illegal under U.S. or international law, or are outside the mandate of the mission to which the U.S. agreed with the UN, if they are unable to resolve the matter with the UN commander in the field. The United States reserves the right to terminate participation at any time and to take whatever actions it deems necessary to protect U.S. forces if they are endangered.84

In the 1990s, the Clinton administration delegated even tactical command to foreign officers in some multilateral operations.

At least one scholar has argued that such delegations are unconstitutional.85 A delegation of tactical command, according to this argument, is inconsistent with the Appointments Clause, the unitary nature of the executive branch, and the nondelegation doctrine because it “allow[s]‌ the President or the treatymakers to transfer executive power to individuals independent of presidential control.”86 “If the President delegates command authority over American troops entirely outside of the federal government,” the argument runs, “neither Congress nor the public can determine whether foreign or international commanders are exercising their authority according to American standards, nor can they enforce their policy wishes through the usual legal or political methods available when power is delegated within the executive branch.”87

These concerns seem overstated. As Commander in Chief, the president presumably needs discretion to determine how best to carry out military operations, and in a joint operation sometimes the best course of action may involve delegating responsibility to allies. As long as the president has the ability to decide whether to commit the troops to the operation, and has the ability to terminate the commitment, the commander-in-chief role would seem to remain intact. Moreover, the distinction between operational command and tactical command is somewhat artificial, since all forms of command can be consequential in terms of the risks to U.S. soldiers and the success of the mission. As for accountability, it is unlikely that a presidential allowance of foreign tactical command for an operation will eliminate or even reduce presidential accountability for what happens to the U.S. forces. Rather, if the mission does not go well, the president will almost certainly be held responsible for delegating authority to the foreign commander.88

(p. 304) Military Detentions in the “War on Terrorism”

On September 11, 2001, nineteen members of the Al Qaeda terrorist network hijacked four commercial airplanes in the United States. The hijackers crashed two of the planes into the World Trade Center in New York and a third into the Pentagon near Washington, D.C. The fourth plane crashed in Pennsylvania after a struggle between the passengers and the hijackers. Thousands of people were killed in the attacks, and they caused billions of dollars in property and economic damage.89

A week after the attacks, Congress enacted an Authorization for Use of Military Force (AUMF) that broadly authorized the president to:

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.90

Relying on the AUMF, as well as his authority as Commander in Chief,91 President George W. Bush responded to the September 11 attacks by, among things, initiating combat operations in Afghanistan, where Al Qaeda had training camps and where its (p. 305) leader, Osama bin Laden, was located.92 The combat operations were directed against both Al Qaeda as well as the military forces of the Taliban government that ruled much of Afghanistan at the time and had been harboring Al Qaeda. As part of these operations, the United States acquired custody of numerous individuals allegedly connected to Al Qaeda and the Taliban. The United States also obtained custody of alleged members of Al Qaeda apprehended in other locations around the world. Starting in 2002, the United States began housing some of the detainees at the U.S. naval base in Guantanamo Bay, Cuba. As discussed in Chapter 6, the United States has occupied the base since the end of the Spanish-American War and, pursuant to agreements with Cuba, has exclusive jurisdiction and control over the base and the right to remain there indefinitely. Certain high-level Al Qaeda members were initially held by the CIA in secret locations but were eventually moved to Guantanamo.93

Third Geneva Convention

There was substantial debate within the Bush administration about whether the Geneva Convention Relative to the Treatment of Prisoners of War, also known as the Third Geneva Convention, applied to these detentions. The Convention mandates a variety of protections for “prisoners of war,” which it defines in Article 4(A) as including:

  1. (1)  Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

  2. (2)  Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

    1. (a)  that of being commanded by a person responsible for his subordinates;

    2. (b)  that of having a fixed distinctive sign recognizable at a distance;

    3. (c)  that of carrying arms openly;

    4. (d)  that of conducting their operations in accordance with the laws and customs of war.

  3. (3)  Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(p. 306) Article 5 of the Convention further provides that “[s]‌hould any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

The Office of Legal Counsel in the Justice Department argued that the Convention did not apply to either Al Qaeda or Taliban detainees. It reasoned that Al Qaeda is neither a nation nor a party to the Convention. It further reasoned that, although Afghanistan is a party to the Convention, Taliban fighters were required to comply with the conditions in Article 4(A)(2) and had not done so.94 In addition, the Office of Legal Counsel contended that Afghanistan was a “failed state” incapable of fulfilling its international obligations, and that the United States therefore had the right to suspend the application of the Conventions to that country. The Legal Adviser’s Office of the Department of State, by contrast, took the position that the Third Geneva Convention applied to the conflict in Afghanistan as a whole, although not to the worldwide conflict with Al Qaeda; rejected the “failed states” theory; and argued that the Taliban fighters were entitled to individualized determinations of whether they qualified as prisoners of war.95 Ultimately, President Bush concluded that the Third Geneva Convention was inapplicable to the conflict with Al Qaeda, even in Afghanistan, and that, although the United States would apply the Convention to the conflict with the Taliban, the Taliban detainees did not qualify for prisoner-of-war status under the Convention.96 President (p. 307) Bush also concluded that Common Article 3 of the Geneva Conventions—a provision that mandates certain minimum protections for individuals in “an armed conflict not of an international character”—was inapplicable to either Al Qaeda or Taliban detainees because the relevant conflicts were international in scope.

These conclusions regarding the Geneva Conventions were highly controversial. In the view of this author, the president’s conclusion that the Third Geneva Convention did not apply to Al Qaeda, even in Afghanistan, was a reasonable legal interpretation. Common Article 2 of the Geneva Conventions provides that the Conventions “shall apply to…any…armed conflict which may arise between two or more of the High Contracting Parties.” Al Qaeda is not a state, much less a high contracting party to the Geneva Conventions.97 Common Article 2 also applies the Geneva Conventions to a nonparty Power that “accepts and applies the provisions thereof,” but even if Al Qaeda is a “Power” within the meaning of Common Article 2 (which it probably is not), it does not accept and apply the Conventions. Nor does it matter, for purposes of Common Article 2, that Al Qaeda may have been fighting in conjunction with the Afghan Taliban forces. Common Article 2 states that “although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations.” This provision makes clear that even when two nations fight together against a third nation in a traditional armed conflict, the third nation is bound by the Geneva Conventions only vis-à-vis the enemy that is a party to the Geneva Conventions, not with respect to the enemy that is not a party to the Conventions. At a minimum, the same rule should apply when the nonparty armed forces are members of a terrorist organization.98

President Bush’s decision to deny prisoner-of-war status to the Taliban fighters is more debatable. On the one hand, the Taliban fighters were the operative military forces of the ruling Afghan government at that time, and the language of Article 4(A)(1) and Article 4(A)(3) seems to suggest that a nation’s regular armed forces (p. 308) automatically qualify for prisoner-of-war protection.99 On the other hand, law of war treaties that predate the Geneva Conventions, and which the Conventions built upon, provide support for the conclusion that the Conventions’ reference to the regular armed forces of a party implicitly encompasses the requirements set forth in Article 4(A)(2).100 In addition to having some historical support, this reading would provide an incentive for regular forces to follow these requirements and thus, for example, adequately distinguish themselves from civilians, which is a fundamental component of the laws of war.101 Although Article 5 of the Convention mandates status hearings when there is doubt about whether a particular detainee qualifies as a prisoner of war, if the Taliban fighters failed to qualify as a class for this status (as President Bush concluded) then it is not clear that there would be such doubt (although there might be doubt about whether a particular detainee was a member of the Taliban). In any event, concluding that the Bush administration’s decision to deny prisoner-of-war protections and status hearings was legally defensible does not mean that it was wise policy, and there is no question that the decision made it more difficult for the United States to persuade other nations of the legitimacy of its detention policy.102

Even if the president had concluded that the Third Geneva Convention applied to some or all of the Guantanamo detainees, this would not by itself have precluded the United States from detaining them, since the Convention specifically contemplates military detention. But application of the Convention would have potentially been inconsistent with other aspects of U.S. policy at the time. As discussed below, the executive (p. 309) branch was reserving the right to try some of the detainees in military commissions for having committed war crimes, and it wanted to have some flexibility in the procedures that would be used in such commissions (such as with respect to the admission of evidence). Article 102 of the Third Geneva Convention, however, states that a prisoner of war can be validly sentenced “only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power.” In addition, it was evident after September 11 that the acquisition of information was especially vital in combating a clandestine organization such as Al Qaeda, and the executive branch therefore wanted flexibility in interrogating the detainees. Article 17 of the Third Geneva Convention states, however, that prisoners of war are required to give only their name, rank, and a few other pieces of information, and that they may not be subjected to coercive interrogation. Common Article 3 of the Geneva Conventions contains much less stringent restrictions, but there was still potential conflict between the U.S. interrogation and military commission policies and Common Article 3’s prohibitions against “cruel treatment and torture” and “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

Judicial Review of the Detentions

In a 2004 decision, Hamdi v. Rumsfeld, the Supreme Court considered the U.S. military’s detention authority relating to the conflict in Afghanistan.103 In that case, Yaser Hamdi, a dual U.S.-Saudi national, had been apprehended in Afghanistan during the fighting there and was eventually moved by the U.S. military to a naval brig in the United States. The military maintained that Hamdi had been serving with the Taliban forces and that he therefore qualified as an “enemy combatant” subject to military detention.

There was no majority opinion in Hamdi, but a four-justice plurality opinion written by Justice O’Connor, as well as Justice Thomas in dissent, concluded that the government had the authority to detain Hamdi, assuming that the facts were as the government alleged. For purposes of its analysis, the plurality addressed only the military’s authority to detain individuals who are “part of or supporting forces hostile to the United States (p. 310) or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.”104

The plurality reasoned that the AUMF, in giving the president the authority to use “all necessary and appropriate force” against the Taliban, implicitly gave him the authority to detain Taliban forces in military custody. In reaching this conclusion, the plurality noted that it is a “fundamental incident of waging war” to detain enemy forces.105 In describing these incidents of war, the plurality referred both to U.S. historical practice and to international law.106 The Court further observed that detention serves the important functional purpose of preventing captured individuals from returning to the battlefield.107 In addressing Hamdi’s concern that detention in the “war on terror” could potentially be indefinite, the plurality observed that the international laws of war allow for detention only until the end of active hostilities, and it stated that it understood the AUMF’s implicit grant of detention authority as lasting only “for the duration of the relevant conflict.”108 This detention authority, the plurality further reasoned, extends even to U.S. citizens. “A citizen, no less than an alien,” said the plurality, can be part of hostile forces and “such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.”109

Despite upholding the military’s authority to detain in this situation, the plurality also held that the Constitution’s Due Process Clause requires that “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.”110 It noted, however, that the proceedings could be tailored to alleviate the potential burden on the executive of having to defend its decisions during an ongoing military conflict. In particular, the plurality suggested that it may be proper to allow the introduction of hearsay evidence and to apply a rebuttable presumption in favor of the government’s evidence.111

Justices Souter and Ginsburg disagreed with the plurality that the AUMF gave the president the authority to detain Hamdi. Although acknowledging that international law allowed for the detention of enemy forces until the end of hostilities, they argued that the military could not invoke international law in support of its detention of (p. 311) Taliban forces because it had not shown that it was complying with international law in carrying out the detentions. In particular, Justices Souter and Ginsburg expressed the view that the military was violating Article 5 of the Third Geneva Convention by failing to hold hearings to determine if Taliban detainees qualified as prisoners of war. Nevertheless, in order to produce a definitive decision, they concurred in the plurality’s due process holding.112

Although the due process analysis in Hamdi was focused on the detention of a U.S. citizen, the U.S. military subsequently adopted a process for the Guantanamo detainees (all of whom have been foreign citizens) that arguably complied with those requirements. In July 2004, the military created Combatant Status Review Tribunals (CSRTs) to ensure that each detainee qualified as an enemy combatant subject to detention.113 Under the CSRT process, the detainees at Guantanamo were each given notice of the factual basis for their detention and an opportunity, with the assistance of a “personal representative” (a military officer who did not act as a lawyer or advocate), to challenge their designation as an enemy combatant. The challenges were heard by panels of three commissioned military officers not involved in the detainees’ apprehension, detention, interrogation, or screening. The detainees had the right to call witnesses if reasonably available, question other witnesses, testify, and introduce relevant documentary evidence. Subsequently, in the Boumediene v. Bush decision discussed in Chapter 6, the Supreme Court concluded that the CSRT process was not an adequate alternative to habeas corpus review by the federal courts of the legality of the detentions at Guantanamo.

Scope of Detention Authority

The Hamdi decision addressed only the detention of individuals captured during the fighting in Afghanistan and did not address the scope of the U.S. military’s detention authority with respect to the broader conflict against the Al Qaeda terrorist organization. In 2006, Congress purported to disallow the federal courts from exercising habeas corpus jurisdiction over non–U.S. citizens determined to be enemy combatants in the war on terrorism, while allowing review in the D.C. Circuit of the rulings of the CSRTs. In Boumediene, the Supreme Court held that this restriction on habeas corpus (p. 312) review was unconstitutional as applied to Guantanamo. Since that decision, the federal courts in Washington, D.C., have heard a variety of habeas corpus challenges by the Guantanamo detainees and issued a number of important decisions concerning both the scope of the military’s detention authority there and the procedures to be used in adjudicating the legality of the detentions.

The courts accepted the executive branch’s argument, made first by the Bush administration and then by the Obama administration, that the detention authority conferred by the AUMF extended not only to Taliban fighters, but also to members of Al Qaeda and affiliated groups.114 One of the key substantive issues in this litigation has been how to determine whether someone is sufficiently affiliated with a covered organization. The courts have applied a case-specific and functional approach to that issue. In applying such an approach, the D.C. Circuit has explained with respect to Al Qaeda:

That an individual operates within al Qaeda’s formal command structure is surely sufficient but is not necessary to show he is “part of” the organization; there may be other indicia that a particular individual is sufficiently involved with the organization to be deemed part of it,…but the purely independent conduct of a freelancer is not enough.115

When upholding detention, the courts often cite facts such as the individual having trained in an Al Qaeda training camp or having stayed in an Al Qaeda- or Taliban-affiliated guesthouse. They also consider facts such as location of capture, routes of travel, and association with known Al Qaeda members. Of course, the detainee’s own statements are often probative as well, as is evidence that the detainee carried out commands from Al Qaeda or Taliban leadership. The decisions are highly factual and are often redacted when released to the public in order to shield confidential government information.116

Another issue that has arisen in the habeas corpus litigation from Guantanamo is the proper length of detention. As the plurality noted in Hamdi, international law contemplates that enemy combatants can be held until the end of active hostilities. That concept may work reasonably well for Taliban fighters apprehended during the conflict in Afghanistan, since active hostilities between the United States and the Taliban will presumably cease at some point in the foreseeable future. In Hamdi, for example, the (p. 313) plurality explained that “[i]‌f the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions [of Taliban fighters] are part of the exercise of ‘necessary and appropriate force,’ and therefore are authorized by the AUMF.”117 But it is less clear how this “end of hostilities” concept should work with respect to the broader conflict with the Al Qaeda terrorist organization and its affiliate organizations. The plurality in Hamdi acknowledged this issue, noting that “[i]f the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding [of the authority to detain until the end of hostilities] may unravel.”118 It further observed that “indefinite detention for the purpose of interrogation is not authorized.”119

In 2004, the Bush administration created Administrative Review Boards at Guantanamo, which made yearly assessments of whether each detainee should continue to be held, based on an assessment of whether the detainee remained a threat and other considerations.120 Through that process and other mechanisms, hundreds of detainees were repatriated or released from Guantanamo. In 2011, the Obama administration established Periodic Review Boards that similarly consider, for each detainee, whether continued detention is “necessary to protect against a significant threat to the security of the United States.”121 To date, the federal courts in D.C. have not shown an inclination to regulate the length of detention, instead viewing this as a decision to be made by the political branches of the government.122

International Law and the AUMF

There has been a dispute among the judges on the U.S. Court of Appeals for the D.C. Circuit over the relevance of international law when interpreting the scope of the detention authority in the AUMF. In a 2010 decision, Al-Bihani v. Obama, two of the three judges on the panel reasoned that international law does not limit the executive branch’s detention authority under the AUMF.123 In that case, the issue was whether (p. 314) a paramilitary group in Afghanistan qualified as “associated forces” with the Taliban for purposes of the AUMF. The petitioner there, who had served as a cook in the group, argued that the court should look to the international law principles of “co-belligerency,” pursuant to which, he argued, the group should not have been considered an enemy of the United States. In rejecting this argument, the court observed that “[t]‌here is no indication…that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF.”124 One of the judges on the panel concurred in the denial of relief, but disagreed with the majority’s view about the irrelevance of international law, noting that this view “appears hard to square with the approach that the Supreme Court took in Hamdi,” and that the Obama administration had itself acknowledged the relevance of international law to the interpretation of the AUMF.125 In declining to grant en banc review of this decision, the full court of appeals described the decision’s reasoning concerning the relevance of international law as “not necessary to the disposition of the merits.”126 That issue was therefore ultimately left unsettled.127

In the view of this author, there are good reasons to conclude that international law is relevant in construing the scope of what Congress authorized in the AUMF. The (p. 315) AUMF authorizes a type of conduct—the use of military force—that has long been regulated by international law. The statute also leaves unspecified many of the rules and standards that would govern this use of force. Just as courts consult historical practice, dictionaries, and other background materials to determine what Congress intended, it makes sense—for construing a statute such as the AUMF—to consult the international law backdrop against which Congress legislated. This is particularly true for international law that is reflected in treaties that the United States has ratified and that were in place prior to the enactment of the AUMF, such as the Geneva Conventions. As noted above, the plurality in Hamdi appeared to view international law as relevant when it construed the AUMF to include an authorization of detention until the end of hostilities. If international law is relevant in determining what authority Congress has granted, then logically it should also be relevant in determining what authority Congress has not granted.128 Indeed, the plurality in Hamdi seemed to recognize this when it observed that “[i]‌t is a clearly established principle of the law of war that detention may last no longer than active hostilities,” and when it concluded from this that “indefinite detention for the purpose of interrogation is not authorized.”129

Importantly, however, even if international law is relevant in interpreting the scope of the AUMF, this would not mean that Congress in the AUMF has affirmatively prohibited the president from violating international law. The AUMF is a broadly worded authorizing statute that does not have any prohibitory language, let alone prohibitory language referencing international law. Nor does the Charming Betsy canon of construction, discussed throughout this book, suggest that the AUMF should be read as having such a prohibitory effect. Under this canon, courts will attempt to construe statutes, when reasonably possible, so that the statutes do not violate international law. It is not clear that the canon even applies in the context of a grant of discretionary enforcement authority to the president, especially when the grant of authority, like the AUMF, overlaps with the president’s independent constitutional powers.130 Even if the canon does apply, however, it would simply require that the AUMF be construed not to violate (p. 316) international law.131 At most, then, application of the canon to the AUMF would yield the interpretation that the AUMF does not authorize the president to violate international law. It would not yield the quite different interpretation that the AUMF affirmatively prohibits the president from violating international law. To put the point differently, nothing in international law, or in the Charming Betsy canon, requires that Congress affirmatively prohibit the president from violating international law when authorizing the use of force. The allocation between the domestic legislature and the executive of domestic authority to comply with or violate international law is simply not addressed by international law.

The primary significance of the distinction between interpreting the AUMF not to authorize violations of international law and interpreting it affirmatively to prohibit violations of international law concerns customary international law. As discussed in Chapter 2, the president probably has a duty to comply with treaties that are still in force, on the ground that they are part of the “Laws” that he or she must faithfully execute under Article II. As a result, law-of-war treaties can bind the president independently of the AUMF (although they might not be judicially enforceable). By contrast, as noted above, there is a strong argument that the president has the domestic constitutional authority to violate customary international law. If so, then the issue of whether the AUMF incorporates the prohibitions of the customary international laws of war becomes important. If the AUMF does not incorporate these prohibitions, presidential actions in violation of them would fall within the second of the three categories of presidential power outlined by Justice Jackson in his concurrence in the Youngstown steel seizure case, in which the president would retain his preexisting authority to violate customary international law.132 But if the AUMF affirmatively prohibits the president from violating the customary international laws of war, the president’s actions in violation of such law would fall within the lowest of the three categories and would be valid only if they involved an area of exclusive presidential authority.133

(p. 317) Additional Detention Legislation

In late 2011, Congress enacted legislation, as part of the National Defense Authorization Act for Fiscal Year 2012 (NDAA), that addressed the issue of detention in the war on terrorism.134 In the NDAA, Congress “affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force…includes the authority for the Armed Forces of the United States to detain covered persons…pending disposition under the law of war.”135 It also spells out who can be detained, in terms similar to the standard that had been developed by the federal courts in D.C.:

  1. (1)  A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

  2. (2)  A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.136

In addition, the NDAA repeatedly refers to detention and disposition “under the law of war,” which appears to be a reference at least in part to the international laws of war.137 This statute thus provides additional grounds for treating international law as relevant to the detention authority. Despite these provisions, the NDAA also states that it is not “intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force,” and that it should not be “construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”138

The NDAA also addresses the issue of length of detention, albeit somewhat indirectly. It requires the Secretary of Defense to submit a report to congressional committees setting forth procedures to address various issues relating to the Periodic Review Boards at (p. 318) Guantanamo, including certain “clarifications” sought by Congress.139 It also states that the procedures should

ensure that appropriate consideration is given to factors addressing the need for continued detention of the detainee, including—

(A) the likelihood the detainee will resume terrorist activity if transferred or released; (B) the likelihood the detainee will reestablish ties with al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners if transferred or released; (C) the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released; (D) the likelihood the detainee may be subject to trial by military commission; and (E) any law enforcement interest in the detainee.140

Perhaps most controversially, the NDAA mandates military detention of anyone who is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and has participated in an attack or attempted attack against the United States or its coalition partners.141 It exempts U.S. citizens, however, and it mandates detention only “pending disposition under the law of war.”142 It also allows the president to waive the requirement of mandatory detention “if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.”143 President Obama subsequently issued a Policy Directive that prospectively waives mandatory military detention for various situations in which a person has been apprehended by domestic law enforcement, such as when military detention would undermine cooperation with foreign governments or reduce the likelihood of getting cooperation from the detainee.144

The NDAA and subsequent appropriations statutes have also contained restrictions on the transfer of detainees from Guantanamo, restrictions that President Obama suggested (while signing the statutes into law) might under some circumstances unconstitutionally intrude on his executive authority.145 In 2014, Obama’s release from (p. 319) Guantanamo of five Taliban detainees in return for the Taliban’s release of a U.S. citizen, without giving advance notice to Congress as required by the legislation, generated substantial controversy.146 The Government Accountability Office, an investigative arm of Congress, concluded that the Obama administration had violated federal statutory provisions in making the exchange.147

Military Commission Trials

At various times in its history, the United States has used military commissions—that is, criminal tribunals composed of military officers—to try certain classes of individuals. These commissions have been used for three basic purposes: to administer justice in territory occupied by the United States, to replace civilian courts where martial law has been declared, and to try enemy belligerents for violations of the laws of war.148 They have been used in both formally declared wars and in other military conflicts, such as the Civil War and conflicts with Indian tribes. Military commissions are distinct from “courts-martial,” which are the military courts used to try U.S. soldiers for criminal offenses, although the procedures used in military commissions have often been similar to those used in courts-martial. Unlike military commissions, courts-martial have historically been regulated by detailed Articles of War enacted by Congress.149

Two months after the September 11 attacks, President Bush issued a Military Order that, among other things, authorized the use of military commissions in the war on terrorism. The Order stated that non-U.S. citizens who were members of Al Qaeda or who otherwise were involved in acts of international terrorism against the United States could be tried by the commissions “for any and all offenses triable by military (p. 320) commission.”150 The decision to use military commissions in the war on terrorism was highly controversial. Among other things, there were concerns that the trials would lack sufficient procedural protections to make them fair and that they would be perceived as illegitimate by the international community.151

In subsequently defending the legal validity of such commissions, the Bush administration relied heavily on precedent from World War II, especially a Supreme Court decision from 1942, Ex parte Quirin.152 In Quirin, the Court unanimously concluded that President Roosevelt had statutory authority to use a military commission to try a group of Nazi agents who had surreptitiously entered the United States with plans to carry out acts of sabotage. The Court placed particular emphasis on Article 15 of the Articles of War, which provided that “the provisions of these articles conferring jurisdiction upon courts martial shall not be construed as depriving military commissions…of concurrent jurisdiction in respect of offenders or offenses that by statute or by the law of war may be triable by such military commissions.”153 Although Article 15 was phrased as a mere recognition of the president’s historical authority to use military commissions, the Supreme Court in Quirin construed it as affirmative congressional authorization for such commissions.154 The Court stated that “[b]‌y the Articles of War, and especially Article 15, Congress has explicitly provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases,” and the Court further stated that “Congress [in Article 15] has authorized trial of offenses against the law of war before such commissions.”155

(p. 321) In concluding that Congress had acted constitutionally in authorizing the use of military commissions, the Court in Quirin distinguished a famous Civil War–era decision, Ex parte Milligan. In Milligan, the Court had held that the Union military had acted unconstitutionally in using a military commission to try a group of individuals in Indiana for allegedly conspiring to aid the Confederacy, reasoning that the law of war “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.”156 The Court in Quirin explained that, unlike the case before it, Milligan involved the trial of “a non- belligerent, not subject to the law of war save as—in circumstances found not there to be present, and not involved here—martial law might be constitutionally established.”157

After Quirin, Congress recodified Article 15 of the Articles of War in what is now Section 821 of the Uniform Code of Military Justice (UCMJ).158 Section 821 provides, similar to what had been provided in Article 15, that the UCMJ provisions do not deprive military commissions of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions. The legislative history of Section 821 indicates that Congress was preserving the language of Article 15 because that language had already been interpreted in Quirin.159 President Bush therefore not surprisingly cited to Section 821 in his Military Order authorizing the use of military commissions.160

Several years after Bush issued his Military Order, his administration began initiating military commission proceedings against the Guantanamo detainees, including Salim Hamdan, who allegedly had acted as Osama bin Laden’s driver and bodyguard. Hamdan filed a habeas corpus petition challenging the validity of the military commission, and the case eventually went up to the Supreme Court. In a 2006 decision, Hamdan v. Rumsfeld, the Court held that the military commission system that President Bush had established was invalid because it violated statutory restrictions in the UCMJ on the use of military commissions.161 The Court reasoned that “while we assume that (p. 322) the AUMF activated the President’s war powers,…and that those powers include the authority to convene military commissions in appropriate circumstances,” there is nothing in the AUMF indicating that it was intended to expand the President’s authority to use commissions beyond what is allowed by the UCMJ.162

In particular, the Court in Hamdan interpreted provisions in the UCMJ as requiring that military commissions follow the procedures of courts-martial unless shown to be impracticable, and the Court concluded that the government had not made such a showing. The Court relied on, among other things, a reference in Section 821 of the UCMJ to “offenders or offenses that by statute or by the law of war may be tried by military commission,” language that the Court interpreted as conditioning Congress’s authorization of military commissions on “compliance with the law of war.”163 The laws of war, the Court further reasoned, included the Geneva Conventions, and the Court held that at least Common Article 3 of the Conventions applied to the conflict between the United States and Al Qaeda.164 Common Article 3, the Court noted, prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” “At a minimum,” concluded the Court, “a military commission ‘can be “regularly constituted” by the standards of our military justice system only if some practical need explains deviations from court-martial practice,’” and it found that the government had not shown such a need.165

As noted above, Common Article 3 applies to conflicts “not of an international character,” and the Court interpreted this reference as encompassing a cross-border conflict between a nation and a nonstate terrorist group, on the theory that such a conflict is not between nations and thus is not “inter-national.”166 The Court therefore obviously did not accept the Bush administration’s interpretation of Common Article 3, even though, as noted in Chapter 2, courts often give substantial deference to treaty interpretations by the executive branch. The dissent in Hamdan argued (with some force, in the view of this author) that “where, as here, an ambiguous treaty provision…is susceptible of two plausible, and reasonable, interpretations, our precedents require us to defer to the Executive’s interpretation.”167

(p. 323) The Supreme Court’s conclusion that Common Article 3 applied to the conflict with Al Qaeda had potential implications beyond the use of military commissions, especially for interrogation of detainees. Common Article 3 prohibits, for example, “cruel treatment and torture,” as well as “humiliating and degrading treatment.” Nevertheless, the Bush administration quickly accepted the Court’s conclusion: the Deputy Secretary of Defense issued a memorandum directing Department of Defense personnel to ensure that their standards complied with Common Article 3,168 and President Bush withdrew the portion of his 2002 determination that had stated that Common Article 3 was inapplicable to the conflict with Al Qaeda.169

A few months after the decision in Hamdan, Congress enacted the Military Commissions Act (MCA) of 2006.170 The MCA of 2006 specifically authorized the use of military commissions to try “unlawful enemy combatants,” which Congress defined to include individuals who are “part of the Taliban, al Qaeda, or associated forces.”171 The Act also set forth extensive procedures to be followed by the commissions, and it codified and defined the various crimes that could be prosecuted before the commissions.

The MCA of 2006 contains a number of references to the Geneva Conventions. For example, Congress declared that a commission established in compliance with the requirements it was setting out “is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.”172 It also sought to restrict the use of the Geneva Conventions by detainees in the war on terrorism, providing that “[n]‌o alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights,”173 and that “[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other 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.”174

The MCA of 2006 also limited criminal liability associated with violations of Common Article 3. As discussed above, the War Crimes Act had been amended in 1997 to criminalize all breaches of Common Article 3. The Supreme Court’s conclusion in Hamdan that Common Article 3 applied to the war on terrorism potentially exposed (p. 324) U.S. officials, such as members of the CIA, to criminal prosecution for breaches of its terms. Congress responded to this development by amending the War Crimes Act to provide that violations of Common Article 3 would fall within the Act only if they constituted “grave breaches” of the Article.175 The amendment also set forth the acts that would constitute such grave breaches, notably leaving out violations of Common Article 3’s prohibitions on “humiliating or degrading treatment” and on “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”176

In 2009, after President Obama had taken office, Congress enacted a revised Military Commissions Act.177 The MCA of 2009 refers to “unprivileged enemy belligerents” rather than “unlawful enemy combatants,” but the class of individuals covered is similar.178 The 2009 statute does, however, add to the procedural protections for the detainees, and it makes clear that no statements obtained by either torture or the use of cruel, inhuman, or degrading treatment shall be admissible. It also reduces the restriction on invoking the Geneva Conventions in military commission proceedings: instead of barring their use as “a source of rights,” as in the MCA of 2006, it provides that the Conventions cannot be invoked by military commission defendants “as a basis for a private right of action,” which seems to allow for the possibility of their use as a defense to prosecution.179 President Obama initially suspended the use of military commission trials, but he ordered their resumption in 2011.180

The government’s constitutional authority to use military commissions is not unlimited. At least for the most part, the government can use these commissions only to prosecute violations of the international laws of war.181 Some of the Guantanamo detainees (p. 325) have therefore challenged military commission charges against them on the ground that these charges do not involve such violations. In Hamdan, a plurality of the Supreme Court expressed the view that the crime of “conspiracy” is not recognized under the international laws of war, noting, among other things, that this crime “has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.”182 That view was not reflected in a binding majority opinion, however, and Congress in the MCA of 2006 specifically included conspiracy as one of the offenses that could be prosecuted.183 The MCA of 2009 similarly includes conspiracy as a chargeable offense.184 Other crimes listed in those statutes include providing material support for terrorism,185 and solicitation of another to commit a covered offense,186 and detainees have argued that those crimes also fall outside the scope of international laws of war.

In 2014, the U.S. Court of Appeals for the D.C. Circuit held that it did not constitute plain constitutional error to try detainees for conspiracy because conspiracy was already a federal crime long before the enactment of the MCA, and because it is not clear that military commissions can try only violations of the international laws of war.187 In support of the latter point, the court noted that the conspirators involved in the assassination of President Abraham Lincoln as well as the group of Nazi saboteurs apprehended during World War II had been tried in military commissions for conspiracy.188 The court held, however, that the detainees could not be tried for material support for terrorism or solicitation of others to commit war crimes because these offenses neither involved violations of the international laws of war nor were supported by domestic precedent.189

(p. 326) Coercive Interrogation

Another topic of controversy that has emerged in the war on terrorism is the use by the U.S. government of various coercive interrogation techniques, including most controversially the use of “waterboarding.”190 These techniques implicate U.S. obligations under treaties such as the Geneva Conventions and the Torture Convention, as well as obligations under customary international law. They also potentially implicate statutory provisions that implement these treaty obligations, in particular the War Crimes Act and the criminal statute that implements the Torture Convention.

At the time of the September 11 attacks, the War Crimes Act criminalized “grave breaches” of the Geneva Conventions as well as any violations of Common Article 3 of the Conventions. As noted above, under the Third Geneva Convention, prisoners of war may not be subjected to coercive interrogation. As we have seen, however, the Bush administration concluded that the Al Qaeda and Taliban detainees did not qualify for the prisoner-of-war protections in the Convention. Common Article 3 of the Geneva Conventions prohibits “cruel treatment and torture” as well as “outrages upon personal dignity, in particular humiliating and degrading treatment,” but the administration concluded that this treaty provision was inapplicable (a conclusion later rejected by the Supreme Court). Also in place at the time of the September 11 attacks was a statute that implements the Torture Convention by criminalizing acts of torture committed outside the United States.191 That statute does not address, however, lesser forms of abuse that constitute “cruel, inhuman, or degrading treatment or punishment,” even though such conduct is prohibited by the Torture Convention.192

(p. 327) In 2002, the Justice Department’s Office of Legal Counsel issued a memorandum, which was later leaked to the media, addressing the authority under U.S. law to use coercive methods of interrogation.193 The memorandum focused in particular on the meaning of the U.S. criminal statute that implements the Torture Convention. When it came to light, the memorandum was highly controversial, both because it adopted a narrow definition of what constituted torture (reasoning that “[p]‌hysical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”), and because it suggested that the president had the constitutional authority to disregard the torture statute. Independent of its substantive conclusions, the memorandum was criticized for being overly tendentious and for addressing issues not specifically presented. Two years later, the Justice Department withdrew the memorandum and substituted an analysis that was more narrowly drawn.194 In the meantime, it had been discovered that U.S. soldiers had abused prisoners at the Abu Ghraib prison facility in Iraq.195 Although these abuses were not directly connected to U.S. interrogation policy in the war on terrorism, their revelation made the issue of coercive interrogation more salient and also triggered concerns that there was slippage between the U.S. approach to the war on terrorism and its approach to the more conventional war in Iraq (where the Geneva Conventions indisputably applied).196

In late 2005, Congress acted to restrict coercive interrogation, providing in the Detainee Treatment Act that “[n]‌o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.”197 The Military (p. 328) Commissions Act of 2006 subsequently provided that evidence based on torture would not be admissible in military commission proceedings, and that evidence obtained by cruel, inhuman, or degrading treatment or punishment would not be admissible unless obtained before the enactment of the Detainee Treatment Act.198 The Military Commissions Act of 2009 goes further and completely disallows the introduction of evidence obtained by cruel, inhuman, or degrading treatment or punishment.199

In the meantime, the Supreme Court held in Hamdan that Common Article 3 of the Geneva Conventions applies to the war on terrorism. Shortly thereafter, the U.S. Army issued a new Field Manual specifically prohibiting many of the controversial interrogation techniques, including waterboarding.200 Interrogations by the CIA, however, were not covered by the Manual, and in 2007 President Bush issued an Executive Order placing less stringent restrictions on the CIA than those that applied to the military.201 Shortly after taking office, President Obama issued an Executive Order revoking Bush’s 2007 Order and limiting interrogation techniques for anyone in U.S. custody to those allowed by the Army Field Manual.202 Obama later observed critically that, during the Bush administration, the United States had “tortured some folks.”203

Targeted Killing

Although targeted killing of the enemy is not unique to the war on terrorism, there has been significant controversy over the use of this tactic by the United States against alleged members of the Taliban, Al Qaeda, and affiliated organizations. In recent (p. 329) years, these targeted killings have often involved the use of unmanned aerial vehicles, or “drones,” although sometimes they have involved more conventional uses of force (such as with the killing of the leader of Al Qaeda, Osama bin Laden, in 2011). The targeted killings have occurred in a number of countries, including Afghanistan, Pakistan, Yemen, and Somalia.204

The controversy over targeted killings relates to more general disputes about the extent to which members of a nonstate terrorist organization should be considered combatants as opposed to civilians for purposes of the laws of war, the legality of using force within another sovereign state in order to address threats that the state may be unwilling or unable to address itself, and the permissibility of engaging in preemptive self-defense.205 But the controversy also concerns the morality and ethics of engaging in warfare from a distance without much risk of casualties, and whether there is sufficient domestic oversight of this type of lethal force by the executive branch.206 In addition, concerns were expressed that the Obama administration might be using targeted killings as a way of avoiding the legal and public relations difficulties associated with military detention, although the administration vigorously denied this charge.

In defending the legality of the targeted killings, the Obama administration argued that the United States is in an armed conflict with the Taliban and Al Qaeda and that members of these enemy forces “are belligerents and, therefore, lawful targets under international law.”207 It also argued that nothing in international law “prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.”208 By contrast, critics contended that the theater of conflict does not extend outside of Afghanistan, and that targeted killings in other locations constitute unlawful assassinations, at least if apprehension is a feasible alternative.209 The issue has been further complicated by the fact that some of the individuals being targeted are not members of (p. 330) Al Qaeda itself but rather are part of organizations that are affiliated in some way with Al Qaeda.

Unless Congress acted to disallow them, it is unlikely that U.S. courts would review the legality of these targeted killings, at least when conducted against foreign citizens outside the United States. A suit was brought in an effort to stop the U.S. government from targeting Anwar Al-Aulaqi, a dual U.S.–Yemeni citizen who allegedly had an operational role in an organization that is affiliated with Al Qaeda. The court concluded, however, that the targeting decision was a nonjusticiable political question,210 and Al-Aulaqi was subsequently killed in a drone attack in Yemen.211 Even if not subject to judicial review, press reports have indicated that there is an elaborate process within the executive branch for decisions relating to targeted killings, and that this process even includes the direct involvement of the president.212 Nevertheless, critics have complained that there is too much secrecy surrounding both the standards used by the government in making targeted killing decisions and the legal justifications for the program.213

Assessments of the legality of targeted killing by lawyers in the executive branch illustrate how principles of international law can be intertwined with the interpretation of U.S. statutory and constitutional law. In 2013, a Department of Justice white paper analyzing the legality of targeted killing of U.S. citizens, which had been prepared in 2011, was leaked to the press.214 The white paper concluded that, when the following three conditions are met, the use of lethal force against a U.S. citizen in a foreign country is permissible: “(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.”215 The third condition explicitly links the legality of targeted killing under U.S. law, including U.S. constitutional law, to an assessment of its legality under international law. In addition, the first condition refers to the concept of “imminence,” a concept related to the international law right (p. 331) of self-defense, and the white paper adopts a broad conception of the concept for this context, such that it “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”216

In 2014, the Obama administration released a redacted version of a 2010 memorandum prepared by the Justice Department’s Office of Legal Counsel that specifically analyzed the legality of targeting Al-Aulaqi.217 The memorandum concluded, among other things, that the AUMF’s authorization of force “may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization,”218 and that the use of force against Al-Aulaqi would not violate other statutory provisions. The memorandum also concluded that a targeted killing of Al-Aulaqi would be consistent with the international laws of war, something that, the memorandum reasoned, “also bears on whether the operation would be authorized by the AUMF.”219 International law would not be violated, according to the memorandum, because the United States was engaged in a non-international armed conflict with Al Qaeda; this conflict now extended to the activities of a group affiliated with Al Qaeda in Yemen, of which Al-Aulaqi was a high-level member involved in planning attacks; and international law allows for the targeting of such a member of an enemy organization.220

In the United States, the efficacy of international law relating to war, at least in the modern era, is determined in large part by its incorporation and acceptance by the political branches of the government rather than its direct application by the judiciary. Courts are generally deferential to the political branches when it comes to issues relating to war, in light of the high stakes involved and the perception that government flexibility is particularly needed in this context, and on some issues the courts are likely to abstain altogether. Moreover, when courts do consider international law as it relates to (p. 332) war powers, they typically apply it only indirectly to help inform their interpretation of political branch actions rather than as a basis for overriding these actions. Nevertheless, as is true with other topics covered in this book, allowing international law an interpretive role can have significant consequences for judicial decision making. It is also worth noting that even if the United States is not always perfectly compliant with the international laws of war, Congress and the executive branch give significant attention to it, in part because the United States has a strong interest in having other nations observe it, but also because it is generally consistent with the country’s long-standing values and ideals.221

Footnotes:

1  Recent treatments of jus ad bellum include Yoram Dinstein, War, Aggression and Self-Defence (5th ed. 2012), and Christine D. Gray, International Law and the Use of Force (3d ed. 2008). Recent treatments of jus in bello include Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2d ed. 2010), and Leslie C. Green, The Contemporary Law of Armed Conflict (2d ed. 2000).

2  See United Nations Charter, June 26, 1945, 59 Stat. 1051, T.S. No. 933.

3  See id., art. 2(4) (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”); id., art. 42 (The Security Council “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”); id., art. 51 (“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”).

4  See, e.g., 2 Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States § 597, at 189 (1922) (“It always lies within the power of a State to endeavor to obtain redress for wrongs, or to gain political or other advantages over another, not merely by the employment of force, but also by direct recourse to war.”). In the Kellogg-Briand Pact of 1928, a group of nations, including the United States, renounced war “as an instrument of national policy in their relations with one another.” Treaty Between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, art. I, 46 Stat. 2343, 94 L.N.T.S. 57. This is not to suggest that there were no efforts before this point to restrict resort to the use of force. For example, some nations (including the United States) agreed in a 1907 treaty not to resort to force in order to recover on contract debt obligations, although even that commitment did not apply if the debtor state failed to arbitrate the dispute. See Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, Oct. 18, 1907, 36 Stat. 2241, 1 Bevans 607.

5  See, e.g., Flores v. S. Peru Copper Corp., 414 F.3d 233, 250 n. 24 (2d Cir. 2003) (“[A]‌lthough the Charter of the United Nations has been ratified by the United States, it is not self-executing.”); Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373–74 (7th Cir. 1985) (“We have found no case holding that the U.N. Charter is self-executing nor has plaintiff provided us with one. There are, however, quite a few decisions stating that the Charter is not self-executing.”); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984) (Bork, J., concurring) (“Articles 1 and 2 of the United Nations Charter are likewise not self-executing. They do not speak in terms of individual rights but impose obligations on nations and on the United Nations itself.”). Cf. Medellin v. Texas, 552 U.S. 491, 508–10 (2008) (holding that Article 94 of the United Nations Charter, which obligates nations to comply with decisions of the International Court of Justice, is not self-executing).

6  See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 I.C.J. 392, 424 (Nov. 26) (“Principles such as those of the non-use of force, non-intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated.”).

7  The Paquete Habana, 175 U.S. 677, 700 (1900). See also, e.g., Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996) (“[W]‌here a controlling executive or legislative act does exist, customary international law is inapplicable.”); Gisbert v. U.S. Attorney General, 988 F.2d 1437, 1448 (5th Cir. 1993) (agreeing with “other circuits [that] have held in the context of immigration detention that international law is not controlling because federal executive, legislative, and judicial actions supersede the application of these principles of international law”).

David Golove contends that the Court’s statement simply meant that it would apply customary international law even if there were no legislative or executive act incorporating that law. See David Golove, Military Tribunals, International Law, and the Constitution: A Franckian–Madisonian Approach, 35 N.Y.U. J. Int’l L. & Pol’y 363, 391–92 (2003). This interpretation ignores the fact that, as the Court itself emphasized, the president had issued orders requiring compliance with the customary laws of war, see The Paquete Habana, 175 U.S. at 712, and hence there was a controlling executive act that would have supported application of the customary principle applied by the Court. The Court therefore must have been saying that there was no controlling legislative or executive act barring the application of the customary international law rule, and that is how most courts and commentators have understood the Court’s language. That is also how the dissenting Justices in The Paquete Habana understood what the majority was saying. See id. at 716.

8  See, e.g., Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65 (entered into force Feb. 8, 1928; for the United States Oct. 4, 1975).

9  The four Geneva Conventions are (1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114; (2) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217; (3) the Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 [hereinafter Third Geneva Convention]; and (4) the Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516. Each was signed in Geneva on August 12, 1949, and ratified by the United States on July 14, 1955. As of 2014, there were 196 parties to the Conventions. See ICRC Humanitarian Law—Treaties & Documents, at http://www.icrc.org/ihl.nsf/CONVPRES?OpenView.

10  There are also two additional protocols to the Geneva Conventions, which were developed in the 1970s. Although the protocols have been widely ratified, the United States is not a party to them. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non–International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609. Other important treaties governing jus in bello include the 1907 Hague Conventions. See, e.g., Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

11  339 U.S. 763, 789 n.14 (1950). In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Court referred to this footnote as a “curious statement” but did not disavow it. Id. at 627.

12  See, e.g., Third Geneva Convention, supra note 9, art. 11 (providing that the protecting powers “where they deem it advisable in the interest of protected persons, particularly in cases of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention,…shall lend their good offices with a view to settling the disagreement”); id., art. 132 (“At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the Convention.”). See also Hamdi v. Rumsfeld, 316 F.3d 450, 468 (4th Cir. 2003) (“[W]‌hat discussion there is of enforcement [in the Geneva Conventions] focuses entirely on the vindication by diplomatic means of treaty rights inhering in sovereign nations.”), vacated and remanded on other grounds, 542 U.S. 507 (2004).

For differing views about whether the Geneva Conventions are self-executing, compare Hamdi, 316 F.3d at 468 (holding that the Geneva Conventions are not self-executing), and Al-Bihani v. Obama, 619 F.3d 1, 20 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (“[T]‌he 1949 Geneva Conventions are not self-executing treaties and thus are not domestic U.S. law.”), with United States v. Khadr, 717 F. Supp. 2d 1215, 1220 n.4 (Ct. Mil. Comm’n Rev. 2007) (“The Geneva Conventions are generally viewed as self-executing treaties (i.e., ones which become effective without the necessity of implementing congressional action), form a part of American law, and are binding in federal courts under the Supremacy Clause.”), and United States v. Lindh, 212 F. Supp. 2d 541, 553 (E.D. Va. 2002) (“[T]he [Third Geneva Convention], insofar as it is pertinent here, is a self-executing treaty.”).

13  See 18 U.S.C. § 2441.

14  See Pub. L. No. 104–192, 110 Stat. 2104 (Aug. 21, 1996). The Geneva Conventions require parties to criminalize certain “grave breaches” of the Conventions. See, e.g., Third Geneva Convention, supra note 9, art. 129 (“The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.”). When the United States ratified the Conventions in 1955, the Senate Foreign Relations Committee expressed the view that U.S. obligations under the “grave breach” provisions in the Conventions were satisfied by existing law and that no implementing legislation was therefore needed. See S. Exec. Rep. No. 84–9 (1955), reprinted in 84 Cong. Rec. 9958, 9970 (1955).

15  See Pub. L. No. 105–118, 111 Stat. 2386, 2436, § 583 (Nov. 26, 1997).

16  The Geneva Conventions have also been incorporated into U.S. military handbooks and manuals. See, e.g., Department of the Army Field Manual, The Law of Land Warfare, FM-27-10 (July 1956), at http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm27_10.pdf.

17  See U.S. Const. art. I, § 8, cl. 11.

18  Id., cls. 12–14.

19  Id., cl. 18.

20  See, e.g., 3 Emmerich de Vattel, The Law of Nations or the Principles of Natural Law § 56, at 255 (Charles G. Fenwick Trans., 1916) (1758) (“[P]‌ublication of the declaration of war is necessary for the instruction and guidance of a State’s own subjects, and in order to fix the date from which certain rights belonging to them in virtue of war are to begin, and in order to settle certain effects which the voluntary Law of Nations attributes to formal war.”).

21  See, e.g., John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996). A draft of the Constitution would have given Congress the power to “make” war. The word “make” was changed during the Federal Convention to “declare.” See 2 The Records of the Federal Convention of 1787, at 318–19 (Max Farrand ed., 1911). For an argument that, in the eighteenth century, war could be “declared by word or action” and that Congress’s declare war power therefore gave it the authority to decide whether the United States initiated war, see Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543 (2002). For a response to this argument, see John C. Yoo, War and the Constitutional Text, 69 U. Chi. L. Rev. 1639 (2002), and for a rejoinder, see Michael D. Ramsey, Text and History in the War Powers Debate: A Reply to Professor Yoo, 69 U. Chi. L. Rev. 1685 (2002). See also Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War, 93 Cornell L. Rev. 45 (2007) (arguing that any action by the United States to begin waging war is a declaration of war and thus within the control of Congress, even if another nation has already declared war on the United States by word or action).

22  See Yoo, supra note 21, at 295 (contending that “the Framers intended Congress to participate in war-making by controlling appropriations”).

23  See, e.g., John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3 (1993); Louis Fisher, Presidential War Power (3d ed. rev. 2013); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989); Charles A. Lofgren, War-Making under the Constitution: The Original Understanding, 81 Yale L.J. 672 (1972); William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 Cornell L. Rev. 695 (1997).

24  See Ramsey, supra note 21, at 1566 (“As congressional advocates have detailed, Madison, Hamilton, Jefferson, Wilson, Washington, Jay, Marshall, and an array of lesser figures indicated that war power lay primarily with Congress, and no prominent figure took the other side.”). See also Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials 601–02 (5th ed. 2014) (describing post-Founding statements and practices).

25  See J. F. Maurice, Hostilities without Declaration of War: An Historical Abstract of the Cases in Which Hostilities Have Occurred between Civilized Powers Prior to Declaration or Warning: From 1700 to 1870 (1883); W. Taylor Reveley III, War Powers of the President and Congress: Who Holds the Arrows and Olive Branch? 54–55 (1981); Clyde Eagleton, The Form and Function of the Declaration of War, 32 Am. J. Int’l L. 19 (1938). See also The Federalist Papers, No. 25: Hamilton, at 165 (Clinton Rossiter ed., 1961) (noting that “the ceremony of a formal denunciation of war has of late fallen into disuse”).

26  See Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) (holding that France was an “enemy” for purposes of a statute concerning recapture of vessels even though war had not been formally declared).

27  See Robert Salazar Torreon, Instances of Use of United States Armed Forces Abroad, 1798–2014 (Cong. Res. Serv., Jan. 13, 2014), available at http://fas.org/sgp/crs/natsec/R42738.pdf.

28  See Paul Kahn, War Powers and the Millennium, 34 Loy. L.A. L. Rev. 11 (2000).

29  See Jennifer K. Elsea & Richard F. Grimmett, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications (Cong. Res. Serv., Apr. 18, 2014), available at http://fas.org/sgp/crs/natsec/RL31133.pdf. See also Orlando v. Laird, 443 F.2d 1039, 1043 (2d Cir. 1971) (“The choice, for example, between an explicit declaration on the one hand and a resolution and war-implementing legislation, on the other, as the medium for expression of congressional consent involves ‘the exercise of a discretion demonstrably committed to the…legislature,’ Baker v. Carr, [369 U.S. 186,] 211 [(1962)], and therefore, invokes the political question doctrine.”).

30  See Torreon, supra note 27.

31  See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012).

32  For Congress’s authorization of the Iraq war, see Authorization for Use of Military Force against Iraq Resolution of 2002, Pub. L. No. 107–243, 116 Stat. 1498 (Oct. 16, 2002).

33  Compare Sean D. Murphy, Assessing the Legality of Invading Iraq, 92 Geo. L.J. 173, 256 (2004) (“The legal theory advanced in 2003 by the United States and its allies to justify the invasion of Iraq is not persuasive. Neither the language of the relevant resolutions nor the practice of the Security Council with respect to those resolutions supports the use of force against Iraq, especially in light of the extensive opposition of most of the members of the Security Council over the course of 2002–03.”), with Christopher Greenwood, International Law and the Preemptive Use of Force: Afghanistan, Al Qaida, and Iraq, 4 San Diego Int’l L.J. 7, 36 (2003) (“[A]‌lthough it must be recognized that others have taken a different view, the present writer believes that those governments who resorted to force were right to conclude that they could rely on the authorization of military action in [Security Council] resolution 678, read together with resolutions 687 and 1441.”).

34  For discussion of Congress’s power to grant letters of marque and reprisal, see Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander-in-Chief Clause Reconsidered, 106 Mich. L. Rev. 61 (2007). For discussion of Congress’s power to regulate captures on land and water, see Ingrid Wuerth, The Captures Clause, 76 U. Chi. L. Rev. 1683 (2009). See also J. Gregory Sidak, The Quasi War Cases—and Their Relevance to Whether “Letters of Marque and Reprisal” Constrain Presidential War Powers, 28 Harv. J.L. & Pub. Pol’y 465 (2005).

35  See Cross v. Harrison, 57 U.S. (16 How.) 164, 190 (1854); see also id. at 193 (noting that the occupation government “had its origin in the lawful exercise of a belligerent right over a conquered territory”); id. at 180–81 (excerpt from brief of the Attorney General).

36  The executive branch defended Lincoln’s blockade of the South on the ground that it was permitted by the laws of war. See The Prize Cases, 67 U.S. (2 Black) 635, 660–61 (1863) (quoting argument from Richard Dana, lawyer for the government, that “[t]‌he function to use the army and navy being in the President, the mode of using them, within the rules of civilized warfare, and subject to established laws of Congress, must be subject to his discretion”). All nine justices in the Prize Cases, including the dissenters, accepted this proposition. See id. at 672–73; id. at 684–85 (Nelson, J., dissenting). Lincoln also justified the emancipation of Southern slaves on the ground that it was a wartime action permitted by the laws of war. See Letter from Abraham Lincoln to James C. Conkling (Aug. 26, 1863), in 6 The Collected Works of Abraham Lincoln 406, 408 (Roy P. Basler ed., 1953).

37  12 U.S. (8 Cranch) 110 (1814).

38  Id. at 125.

39  Id. at 126.

40  See id.

41  Id. at 128–29. Justice Story dissented, arguing that there was a right under customary international law to seize enemy property and that, in declaring war in unlimited terms, Congress had triggered in the executive branch “a right to employ all the usual and customary means acknowledged in war, to carry it into effect.” Id. at 145 (Story, J., dissenting).

42  Louis Henkin, Foreign Affairs and the United States Constitution 104 (2d ed. 1996).

43  See, e.g., William E. Birkhimer, Military Government and Martial Law 351–55 (rev. 3d ed. 1914) (providing examples of presidential use of military commissions); Edward S. Corwin, The President: Office and Powers, 1787–1984, at 294–95 (Randall W. Bland et al. eds., rev. 5th ed. 1984) (noting examples of presidents concluding armistice agreements); John Yoo, Transferring Terrorists, 79 Notre Dame L. Rev. 1183, 1221 (2004) (surveying U.S. history and concluding that in the Mexican-American War, the Civil War, the Spanish-American War, World Wars I and II, the Vietnam War, the invasion of Panama, and the 1991 Gulf War, Congress “never sought to regulate the disposition of [prisoners of war] or asserted that it has any authority over them”).

44  See Corwin, supra note 43, at 262–97; Henkin, supra note 42, at 45–50; Louis William Koenig, The Presidency and the Crisis: Powers of the Office from the Invasion of Poland to Pearl Harbor 55–57, 67–68, 97, 120 (1944); Reveley, supra note 25, at 135–69.

45  See U.S. Const. art. II, § 2, cl. 1.

46  The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863). During the drafting of the Constitution, when the phrase “make war” was changed to “declare war,” it was noted that this would “leav[e]‌ to the Executive the power to repel sudden attacks.” See 2 Records of the Federal Convention, supra note 21, at 318.

47  See Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y. 1860).

48  See, e.g., Memorandum from Jack L. Goldsmith III, Assistant Attorney General, to Alberto R. Gonzales, Counsel to the President, Deployment of United States Armed Forces to Haiti (Mar. 17, 2004), 28 Op. Off. Legal Counsel 30, 32 (2004); Memorandum from Timothy E. Flanigan, Assistant Attorney General, to William P. Barr, Attorney General, Authority to Use United States Military Forces in Somalia (Dec. 4, 1992), 16 Op. Off. Legal Counsel 6, 11 (1992).

49  See, e.g., Golove, supra note 7; David Golove, The Supreme Court, the War on Terror, and the American Just War Constitutional Tradition, in International Law in the Supreme Court: Continuity and Change 561 (David L. Sloss, Michael D. Ramsey, & William S. Dodge eds., 2011). See also Wuerth, supra note 34, at 64–65 (arguing that international law “is, and has been, attractive to courts, lawyers, and scholars struggling with the Commander in Chief Clause because it can function as a second-order interpretive norm, thereby aiding in the resolution of many of the difficulties associated with the Clause”).

50  For arguments that the Kosovo campaign violated the United Nations Charter, see, for example, Michael J. Glennon, Limits of Law, Prerogatives of Power: Interventionism after Kosovo 13–35 (2001), and Jules Lobel, Benign Hegemony?: Kosovo and Article 2(4) of the U.N. Charter, 1 Chi. J. Int’l L. 19 (2000).

51  See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2097 n.220 (2005). See also J. Andrew Kent, Congress’s Under-Appreciated Power to Define and Punish Offenses against the Law of Nations, 85 Tex. L. Rev. 843, 930–36 (2007) (questioning the proposition that international law limits the government’s constitutional authority).

52  See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952) (Jackson, J., concurring) (noting that the Commander in Chief Clause “undoubtedly puts the Nation’s armed forces under presidential command”).

53  See, e.g., Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 Cornell L. Rev. 97, 171 (2004) (“Commentators generally agree that the President has exclusive authority over battlefield operations, and that Congress’s war powers are constrained by the need to avoid interfering with the President’s Commander-in-Chief power during wartime.”). For a detailed examination of congressional regulation of issues relating to war, and an argument that the president’s exclusive commander in chief power extends only to the superintendence of the military chain of command, see David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941 (2008), and David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008). For an early decision holding that the seizure of a vessel during the naval war between the United States and France was improper because the seizure did not fall within the scope of a congressional authorization, see Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804). For differing views about the significance of Barreme, compare Michael J. Glennon, Constitutional Diplomacy 3–8 (1991) (arguing that Barreme supports broad congressional authority to control the president during wartime), with Sidak, supra note 34 (disputing that proposition).

54  See 18 U.S.C. § 2340A.

55  See War Powers Resolution, Pub. L. No. 93–148, 87 Stat. 555 (1973). For President Nixon’s explanation of why he vetoed the Resolution, see Richard Nixon, Veto of the War Powers Resolution, Public Papers 893 (Oct. 24, 1973).

56  War Powers Resolution, supra note 55, § 2(c).

57  See id., §§ 3, 4.

58  Id., § 5(b).

59  See id., § 8(a).

60  See Richard F. Grimmett, War Powers Resolution: Presidential Compliance, at 14–22 (Cong. Res. Serv., Feb. 1, 2012) (noting that “[p]‌residents have submitted 132 reports to Congress as a result of the War Powers Resolution” and describing these reports), available at http://www.fas.org/sgp/crs/natsec/RL33532.pdf.

61  See, e.g., John Hart Ely, Suppose Congress Wanted a War Powers Act That Worked, 88 Colum. L. Rev. 1379 (1988); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. Miami L. Rev. 17 (1995).

62  See, e.g., Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).

63  See, e.g., Crockett v. Reagan, 720 F.2d 1355, 1356–57 (D.C. Cir. 1983); Kucinich v. Obama, 821 F. Supp. 2d 110 (D.D.C. 2011); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987).

64  See, e.g., Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985) (mootness); Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990) (lack of ripeness).

65  See S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011).

66  See Memorandum Opinion from Caroline D. Krass, Principal Deputy Assistant Attorney General, Office of Legal Counsel, to the Attorney General, Authority to Use Military Force in Libya (April 1, 2011), available at http://www.justice.gov/olc/2011/authority-military-use-in-libya.pdf. For a critique of the analysis in this memorandum, see Michael J. Glennon, The Cost of “Empty Words”: A Comment on the Justice Department’s Libya Opinion, Harv. Nat’l Sec. J. Forum (2011), available at http://harvardnsj.org/wp-content/uploads/2011/04/Forum_Glennon_Final-Version.pdf.

67  See Libya and War Powers: Hearing Before S. Comm. on Foreign Relations, 112th Cong. (June 28, 2011) (statement of Harold Hongju Koh, Legal Adviser, Dep’t of State), reprinted in 1 J.L. (1 Pub. L. Misc.) 292 (2011). See also Trevor W. Morrison, “Hostilities, 1 J.L. (1 Pub. L. Misc.) 233 (2011).

68  Charlie Savage & Mark Landler, White House Defends Continuing U.S. Role in Libya Operation, N.Y. Times, June 15, 2011.

69  United Nations Charter, supra note 2, art. 24(1).

70  Id., art. 42.

71  Id., art. 25.

72  See, e.g., Thomas M. Franck & Faiza Patel, UN Police Action in Lieu of War: “The Old Order Changeth, 85 Am. J. Int’l L. 63 (1991). Cf. David Golove, From Versailles to San Francisco: The Revolutionary Transformation of the War Powers, 70 U. Colo. L. Rev. 1491, 1492 (1999) (arguing that the president has the authority to use force when authorized by the Security Council but that this authority “does not extend to large-scale commitments of the forces of the United States in major military actions”).

73  Earlier in the twentieth century, similar arguments were made in support of various “police actions” initiated by presidents, especially in Latin America. See, e.g., Jean Galbraith, International Law and the Domestic Separation of Powers, 99 Va. L. Rev. 987, 1019–27 (2013); David Gartner, Foreign Relations, Strategic Doctrine, and Presidential Power, 63 Ala. L. Rev. 499 (2012). In particular, the claim was that international law is part of the “Laws” referred to in the Take Care Clause and that therefore the president has the authority to use military force to addresses breaches of that law and restore order. The claim is questionable, since even if international law is part of the laws that the president has a duty to faithfully execute, it would not necessarily follow that the president has a general law enforcement power with respect to violations of that law outside of U.S. territory. See Louis Henkin, Foreign Affairs and the Constitution 55 (1972) (describing the Take Care Clause argument as “clever but not compelling”).

74  96 Cong. Rec. S9540 (1950).

75  See Fisher, supra note 23, at 168–73.

76  See Michael J. Glennon, The Constitution and Chapter VII of the United Nations Charter, 85 Am. J. Int’l L. 74, 75 (1991); Jane E. Stromseth, Rethinking War Powers: Congress, the President, and the United Nations, 81 Geo. L.J. 597, 639, 663–64 (1993). One of the principal concerns expressed in the Senate concerning the Treaty of Versailles, which established the League of Nations, was that it might impose an obligation on the United States to use military force when called for by the League. To address this concern, Senator Henry Cabot Lodge proposed a reservation to the treaty that would have made clear that the United States would not become involved in the use of force without specific congressional authorization, but President Woodrow Wilson and his supporters in the Senate opposed the reservation. See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 89 Am. J. Int’l L. 21, 22–23 (1995); Glennon, supra, at 75–76. Cf. Golove, supra note 72, at 1494 (arguing that Wilson accepted the proposition that Congress would have to approve U.S. military operations authorized by the League of Nations).

77  Memorandum from Caroline D. Krass, supra note 66, at 10.

78  United States Activities in Libya, at 25 (June 2011), available at http://www.foreignpolicy.com/files/fp_uploaded_documents/110615_United_States_Activities_in_Libya_—_6_15_11.pdf. A lawsuit brought by ten members of the House of Representatives challenging the president’s constitutional authority to conduct the military campaign in Libya was dismissed for lack of standing. See Kucinich v. Obama, 821 F. Supp. 2d 110 (D.D.C. 2011).

79  Memorandum from Caroline D. Krass, supra note 66, at 12.

80  See Michael J. Glennon & Allison R. Hayward, Collective Security and the Constitution: Can the Commander in Chief Power Be Delegated to the United Nations?, 82 Geo. L.J. 1573 (1994); David Kaye, Are There Limits to Military Alliance? Presidential Power to Place American Troops under Non-American Commanders, 5 Transnat’l L. & Contemp. Probs. 399 (1995); Edward F. Bruner & Nina M. Serafino, Peacekeeping: Military Command and Control Issues (Cong. Res. Serv., Nov. 1, 2001), available at http://congressionalresearch.com/RL31120/document.php?study=Peacekeeping+Military+Command+and+Control+Issues.

81  See Dep’t of State, Bureau of Int’l Org. Affairs, Pub. No. 10161, The Clinton Administration’s Policy on Reforming Multilateral Peace Operations, reprinted at 33 I.L.M. 795 (1994).

82  Id. at 817.

83  Id.

84  Id. The Directive has been declassified and is now publicly available. See Presidential Decision Directive/NSC-25, at http://fas.org/irp/offdocs/pdd/pdd-25.pdf.

85  See John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. Pa. L. Rev. 1673 (2000); see also John C. Yoo, UN Wars, US War Powers, 1 Chi. J. Int’l L. 355 (2000).

86  Yoo, Kosovo, War Powers, and the Multilateral Future, supra note 85, at 1714.

87  Id. at 1717.

88  At times during the Clinton administration, Congress sought to preclude the placement of U.S. troops under foreign command. In response, the Clinton administration repeatedly insisted that Congress lacked the authority to place such a limitation on the president’s discretion as Commander in Chief. In 1996, Congress considered legislation that would prohibit the expenditure of any funds for U.S. armed forces that served under UN operational or tactical command. Commenting on this proposed legislation, the Justice Department’s Office of Legal Counsel argued that “[i]‌t is for the President alone, as Commander-in-Chief, to make the choice of the particular personnel who are to exercise operational and tactical command functions over the U.S. Armed Forces.” See Memorandum from Walter Dellinger, Assistant Attorney General, to Alan J. Kreczko, Special Assistant to the President and Legal Adviser to the National Security Council, Placing of United States Armed Forces under Nations Operational or Tactical Control (May 8, 1996), available at http://www.usdoj.gov/olc/hr3308.htm. In other instances during the 1990s in which Congress included restrictions in legislation concerning the placement of U.S. troops under foreign command, President Clinton issued signing statements raising constitutional objections. See William J. Clinton, Statement on Signing the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, 2 Pub. Papers 1666, 1667 (Nov. 26, 1997); William J. Clinton, Statement on Signing the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, 2 Pub. Papers 1843, 1847 (Oct. 26, 1998). Shortly after taking office, President Obama issued a similar signing statement. See Presidential Statement on Signing H.R. 1105, The Omnibus Appropriations Act, 2009, 1 Pub. Papers 216 (Mar. 11, 2009).

89  For a more detailed description of the attacks, see The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks upon the United States (2004).

90  Authorization for Use of Military Force, Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001).

91  Shortly after the September 11 attacks, the Justice Department’s Office of Legal Counsel issued a memorandum concluding that the president had the constitutional authority to retaliate not only “against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations,” and also the authority to “deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.” Memorandum from John C. Yoo, Deputy Assistant Attorney General, to the Deputy Counsel to the President, The President’s Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them (Sept. 25, 2001), available at http://www.justice.gov/olc/warpowers925.htm.

92  For an argument that “the laws of war applicable in non-international armed conflict govern the September 11 attacks and that the attacks violated these laws,” see Derek Jinks, September 11 and the Laws of War, 28 Yale J. Int’l L. 1, 9 (2003).

93  See, e.g., Sheryl Gay Stolberg, President Moves 14 Held in Secret to Guantanamo, N.Y. Times, Sept. 6, 2006.

94  See Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 22, 2002), available at www.justice.gov/olc/docs/memo-laws-taliban-detainees.pdf; Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto R. Gonzales, Counsel to the President, Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949 (Feb. 7, 2002), available at www.justice.gov/olc/2002/pub-artc4potusdetermination.pdf.

95  See, e.g., Memorandum from William H. Taft, IV, State Department Legal Adviser, to John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, Your Draft Memorandum of January 9 (Jan. 11, 2002), available at http://www.torturingdemocracy.org/documents/20020111.pdf; Memorandum from William H. Taft, IV, Comments on Your Paper on the Geneva Convention (Feb. 2, 2002), reprinted in 37 Case W. Res. J. Int’l L. 615 (2006).

96  Memorandum from President George W. Bush to Vice President Dick Cheney et al., Humane Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002), available at http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf.

For additional discussion of the debates within the Bush administration over these and other issues relating to the war on terrorism, see Harold H. Bruff, Bad Advice: Bush’s Lawyers in the War on Terror (2009); Jack L. Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration (2007); and John Yoo, War by Other Means: An Insider’s Account of the War on Terror (2006). For more general discussions of U.S. policy in the war on terrorism, see Peter L. Bergen, The Longest War: The Enduring Conflict Between America and Al-Qaeda (2011); Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (2009); Bob Woodward, Bush at War (2002). For background on some of the events leading up to the September 11 attacks, see Daniel Benjamin & Steven Simon, The Age of Sacred Terror: Radical Islam’s War against America (2002); Steve Coll, Ghost Wars: The Secret History of the CIA, Afghanistan, and bin Laden, from the Soviet Invasion to September 10, 2001 (2004); and Lawrence Wright, The Looming Tower: Al Qaeda and the Road to 9/11 (2006).

97  See also John B. Bellinger III & Vijay M. Padmanabhan, Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law, 105 Am. J. Int’l L. 201, 205 (2011) (“Common Article 2 of the Geneva Conventions, which is the jurisdictional provision for the bulk of the Conventions’ protections, limits application of the Conventions to conflicts between high contracting parties, which are limited to states. Thus, the Geneva Conventions generally provide regulations governing armed conflicts between nation-states.”).

98  See also George H. Aldrich, Comment, The Taliban, Al Qaeda, and the Determination of Illegal Combatants, 96 Am. J. Int’l L. 891, 893 (2002) (concluding that “the decision to consider that two separate armed conflicts are being waged is correct”).

99  See id. at 895 (“Whether the four conditions applicable under Article 4A(2) to members of militias and other volunteer corps that are not part of the armed forces of a state are also inherent requirements of any of a state’s armed forces is a debatable question.”).

100  See, e.g., Michael Bothe et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, at 234–35 (1982) (“It is generally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907 Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered to be unnecessary and redundant to spell them out in the [Geneva] Conventions.”); Ingrid Detter, The Law of War 136–37 (2d ed. 2006) (expressing a similar view); United States v. Lindh, 212 F. Supp. 2d 541, 557 n.34 (E.D. Va. 2002) (same).

101  See also Sean D. Murphy, Evolving Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules to the Release of Persons Deemed “Unprivileged Combatants, 75 Geo. Wash. L. Rev. 1105, 1125 (2007) (“Although it is clear that Geneva Convention III article 4(A)(3) does not expressly apply the four criteria to ‘regular armed forces,’ the real question is what is meant by that phrase. Presumably it is not enough that a government merely declare that certain persons are a part of its regular armed forces. If that were the case, then any government could designate any persons—whether militias, mercenaries, volunteers, guerrillas, brigands, or pirates—that are willing to attack its enemy as part of its ‘regular armed forces,’ thereby extending to them a status that the laws of war clearly do not contemplate.”).

102  See Curtis A. Bradley, The Bush Administration and International Law: Too Much Lawyering and Too Little Diplomacy, 4 Duke J. Const. L. & Pub. Pol’y 57, 64 (2009). See also Philip Zelikow, Legal Policy for a Twilight War, 30 Hous. J. Int’l L. 89, 92 (2007) (arguing that the Bush Administration, prior to 2006, focused too much on what it could do under international law in the war on terrorism and not enough on what it should do).

Some commentators have argued that if the Al Qaeda or Taliban fighters do not qualify for prisoner of war status under the Third Geneva Convention, they must be considered civilians subject to the protections of the Fourth Geneva Convention. See, e.g., Antonio Cassese, International Law 409–10 (2d ed. 2005); Knut Dormann, The Legal Situation of “Unlawful/Unprivileged Combatants, 85 Int’l Rev. Red Cross 45 (2003); Ryan Goodman, Comment, The Detention of Civilians in Armed Conflict, 103 Am. J. Int’l L. 48 (2009). For a critique of this claim, see Bellinger & Padmanabhan, supra note 97, at 216–17; Curtis A. Bradley, The United States, Israel, and Unlawful Combatants, 12 Green Bag 2d 397 (2009).

103  542 U.S. 507 (2004) (plurality opinion).

104  Id. at 516.

105  Id. at 519.

106  See id. at 518–19.

107  Id. at 518.

108  Id. at 521.

109  Id. at 519. The plurality reached this conclusion despite the existence of a federal statute, 18 U.S.C. § 4001(a), that provides that “[n]‌o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Pub. L. No. 92–128, 85 Stat. 347 (1971), codified at 18 U.S.C. § 4001(a). The plurality did not decide whether this statute applies to military detentions. Even if it does, the plurality reasoned, the AUMF is a sufficient “Act of Congress” to satisfy its terms.

110  542 U.S. at 533.

111  See id. at 533–34.

112  The U.S. government subsequently decided to release Yaser Hamdi and allow him to return to his family in Saudi Arabia, so the hearing mandated by the Supreme Court never took place. See Joel Brinkley & Eric Lichtblau, U.S. Releases Saudi-American It Had Captured in Afghanistan, N.Y. Times, Oct. 12, 2004.

113  See Memorandum from the Deputy Secretary of Defense to the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal (July 7, 2004) (emphasis added), available at http://www.defenselink. mil/news/Jul2004/d20040707review.pdf; Memorandum from the Deputy Secretary of Defense to the Secretaries of the Military Departments et al., Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba (July 14, 2006), available at http://www.defenselink.mil/news/Aug2006/d20060809CSRTProcedures.pdf.

114  See, e.g., Khan v. Obama, 655 F.3d 20, 23 (D.C. Cir. 2011); Al Odah v. United States, 611 F.3d 8, 10 (D.C. Cir. 2010); Awad v. Obama, 608 F.3d 1, 11–12 (D.C. Cir. 2010).

115  Bensayah v. Obama, 610 F.3d 718, 725 (D.C. Cir. 2010).

116  For a description of the decisions in this area, see Benjamin Wittes, Robert M. Chesney, Larkin Reynolds, and Harvard Law Sch. Nat’l Sec. Research Comm., The Emerging Law of Detention 2.0: The Guantanamo Habeas Cases as Lawmaking (May 12, 2011), available at http://www.brookings.edu/research/reports/2011/05/guantanamo-wittes. See also Robert M. Chesney, Who May Be Held?: Military Detention through the Habeas Lens, 52 B.C. L. Rev. 769 (2011).

117  542 U.S. at 521 (plurality opinion).

118  Id.

119  Id.

120  See U.S. Dep’t of Def., Order, Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba (May 11, 2004), available at http://www.defenselink.mil/news/May2004/d20040518gtmoreview.pdf.

121  See Executive Order 13,567, Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force § 2 (Mar. 7, 2011), available at http://www.whitehouse.gov/the-press-office/2011/03/07/executive-order-periodic-review-individuals-detained-guant-namo-bay-nava.

122  See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010) (“The determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.”).

123  See id.

124  Id. at 871.

125  Id. at 885 (Williams, J., concurring). See also Harold Hongju Koh, Legal Adviser, U.S. Department of State, Address at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010) (“[T]‌his Administration has expressly acknowledged that international law informs the scope of our detention authority. Both in our internal decisions about specific Guantanamo detainees, and before the courts in habeas cases, we have interpreted the scope of detention authority authorized by Congress in the AUMF as informed by the laws of war.”), available at http://www.state.gov/s/l/releases/remarks/139119.htm.

126  619 F.3d 1, 1 (D.C. Cir. 2010). Each of the three judges from the original panel decision filed an opinion concurring in the denial of rehearing en banc. Judge Brown reiterated her view that “[t]‌here is no indication that the AUMF placed any international legal limits on the President’s discretion to prosecute the war and, in light of the challenge our nation faced after September 11, 2001, that makes eminent sense.” Id. at 8. Judge Kavanaugh explained at length why, in his view, “[i]nternational-law norms that have not been incorporated into domestic U.S. law by the political branches are not judicially enforceable limits on the President’s authority under the AUMF.” Id. at 9. Judge Williams expressed the view, by contrast, that international law was relevant in interpreting the AUMF. See id. at 53–56.

127  For another case in which international law was potentially relevant to the scope of the detention authority under the AUMF, see Al Warafi v. Obama, 821 F. Supp. 2d 47 (D.D.C. 2011). In that case, a Guantanamo detainee claimed that, when he was captured in Afghanistan, he was serving as a medic for the Taliban forces. Under the First Geneva Convention, individuals who operate exclusively as medical personnel are to be detained as prisoners “only in so far as the state of health…and the number of prisoners of war require,” and if they are not needed to take care of other prisoners, they “shall be returned to the Party to the conflict to whom they belong, as soon as a road is open for their return and military requirements permit.” Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, arts. 28, 30, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31. A federal court in D.C. concluded, however, that the detainee had not put forward sufficient evidence to show that he had been operating exclusively as a medic, so the court decided that it did not need to resolve the issue of the relevance of international law. See 821 F. Supp. 2d at 54–56.

128  See Bradley & Goldsmith, supra note 51, at 2094.

129  542 U.S. at 520, 521.

130  See Bradley & Goldsmith, supra note 51, at 2097–98. Cf. United States v. Corey, 232 F.3d 1166, 1179 n.9 (9th Cir. 2000) (“These concerns [underlying the Charming Betsy canon] are obviously much less serious where the interpretation arguably violating international law is urged upon us by the Executive Branch of our government. When construing a statute with potential foreign policy implications, we must presume that the President has evaluated the foreign policy consequences of such an exercise of U.S. law and determined that it serves the interests of the United States.”); Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, 13 Op. Off. Legal Counsel 163, 172 (1989) (concluding that the Charming Betsy canon was not applicable to “broad authorizing statutes ‘carrying into Execution’ core Executive powers” (quoting U.S. Const. art. I, § 8, cl. 18)). But see Ingrid Brunk Wuerth, Authorizations for the Use of Force, International Law, and the Charming Betsy Canon, 46 B.C. L. Rev. 293, 333, 339–40 (2005) (arguing that the Charming Betsy canon does apply to the AUMF).

131  See Bradley & Goldsmith, supra note 51, at 2099. See also Wuerth, supra note 130, at 356 (“[I]‌t bears repeating that if the President is exercising his own authority as Commander in Chief (or some other power granted by the Constitution), then the [Charming Betsy] canon is not in play at all.”). But cf. Ryan Goodman & Derek Jinks, International Law, U.S. War Powers, and the Global War on Terrorism, 118 Harv. L. Rev. 2653 (2005) (arguing that the authority granted to the president in the AUMF is implicitly conditioned on compliance with a variety of rules in the international laws of war).

132  See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) (describing as an intermediate category the situations in which “the President acts in absence of either a congressional grant or denial of authority”).

133  See id. (noting that “[w]‌hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter”).

134  National Defense Authorization Act for Fiscal Year 2012, Subtitle D—Counterterrorism, Pub. L. No. 112–81, 112th Cong., 125 Stat. 1298 (2011).

135  Id., § 1021(a).

136  Id., § 1021(b).

137  See, e.g., id., § 1021(c) (referring to “[t]‌he disposition of a person under the law of war,” and “[d]etention under the law of war”).

138  Id., § 1021(d), (e).

139  See id., § 1023(a).

140  Id., § 1023(b)(4).

141  Id., § 1022(a). When signing the legislation, President Obama expressed the view that the mandatory detention provisions were “ill-conceived.” Presidential Statement on Signing the National Defense Authorization Act for Fiscal Year 2012, 2011 Daily Comp. Pres. Doc. 978, at 2 (Dec. 31, 2011), available at http://www.gpo.gov/fdsys/pkg/DCPD-201100978/pdf/DCPD-201100978.pdf.

142  NDAA, supra note 134, § 1021(a).

143  Id., § 1022(a)(4).

144  See Directive on Procedures Implementing Section 1022 of the National Defense Authorization Act for Fiscal Year 2012, 2012 Daily Comp. Pres. Doc. 123 (Feb. 28, 2012), available at http://www.whitehouse.gov/the-press-office/2012/02/28/presidential-policy-directive-requirements-national-defense-authorizatio.

145  See, e.g., Statement by the President on H.R. 3304 (Dec. 26, 2013), at http://www.whitehouse.gov/the-press-office/2013/12/26/statement-president-hr-3304.

146  See, e.g., Charlie Savage & David E. Sanger, Deal to Free Bowe Bergdahl Puts Obama on Defensive, N.Y. Times, June 3, 2014.

147  See Memorandum from Susan A. Poling, General Counsel, Government Accountability Office, to the Honorable Mitch McConnell et al., Department of Defense—Compliance with Statutory Notification Requirement (Aug. 21, 2014), at http://www.gao.gov/assets/670/665390.pdf.

148  See Curtis A. Bradley, The Story of Ex parte Milligan: Military Trials, Enemy Combatants, and Congressional Authorization, in Presidential Power Stories 93, 95–96 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009); Curtis A. Bradley & Jack L. Goldsmith, The Constitutional Validity of Military Commissions, 5 Green Bag 2d 249 (2002); see also Hamdan v. Rumsfeld, 548 U.S. 557, 595–96 (2006) (plurality opinion); Madsen v. Kinsella, 343 U.S. 341, 346–47 (1952). Military commissions have also been used “when military forces were beyond the jurisdiction of their national courts, but military law did not authorize trying troops for offenses against the local population.” David Glazier, Note, Kangaroo Courts or Competent Tribunal?: Judging the 21st Century Military Commission, 89 Va. L. Rev. 2005, 2023 (2003).

149  See Madsen v. Kinsella, 343 U.S. 341, 348 (1952) (“In the absence of attempts by Congress to limit the President’s power, it appears that, as Commander-in-Chief of the Army and Navy of the United States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in the territory occupied by the United States by force of arms.”).

150  Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, Nov. 13, 2001, 66 Fed. Reg. 57833 § 4(a) (Nov. 16, 2001). The Department of Defense subsequently promulgated procedures to be used by the military commissions. See Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War against Terrorism, 32 C.F.R. pt. 9 (2003).

151  See, e.g., George P. Fletcher, War and the Constitution: Bush’s Military Tribunals Haven’t Got a Legal Leg to Stand On, The Am. Prospect, Jan. 1, 2002, at 26; Harold Hongju Koh, The Case against Military Commissions, 96 Am. J. Int’l L. 337 (2002); Anthony Lewis, Editorial, Abroad and at Home; Right and Wrong, N.Y. Times, Nov. 24, 2001; Aryeh Neier, The Military Tribunals on Trial, N.Y. Rev. of Books, Jan. 16, 2002.

152  317 U.S. 1 (1942).

153  Articles of War of 1916, art. 15, 39 Stat. 650, 653 (1916).

154  For discussion of the Quirin case and the circumstances surrounding it, see Michael Dobbs, Saboteurs: The Nazi Raid on America (2005); Louis Fisher, Nazi Saboteur on Trial (2d ed. 2005); Eugene Rachlis, They Came to Kill: The Story of Eight Nazi Saboteurs in America (1961); and David J. Danelski, The Saboteurs’ Case, 1 J. S. Ct. Hist. 61 (1996). For discussion of why President Bush’s decision to use military commissions to try alleged terrorists was much more controversial than President Roosevelt’s decision to use a military commission to try the Nazi saboteurs, see Jack Goldsmith & Cass R. Sunstein, Military Tribunals and Legal Culture: What a Difference Sixty Years Makes, 19 Const. Comm. 261 (2002).

155  317 U.S. at 28, 29. A few years later, the Supreme Court, relying in part on Quirin, again read Article 15 of the Articles of War as explicit congressional authorization for military commissions to try offenses against the laws of war. See In re Yamashita, 327 U.S. 1, 46 (1946).

156  See 71 U.S. (4 Wall.) 2, 121 (1866). Four justices in Milligan argued that Congress had the constitutional authority to authorize a military commission for this case but had not done so, and that the Court should have rested its decision only on statutory rather than constitutional grounds. See 71 U.S. at 136–39 (Chase, J.).

157  317 U.S. at 45.

158  See 10 U.S.C. § 821.

159  See Sen. Rpt. 486, Establishing a Uniform Code of Military Justice, 81st Cong., 1st Sess. at 13 (June 10, 1949) (“The language of [Article of War] 15 has been preserved because it has been construed by the Supreme Court. (Ex Parte Quirin, 317 U.S. 1 (1942)).”); H. Rept. 491, Uniform Code of Military Justice, 81st Cong., 1st Sess. at 17 (April 28, 1949) (same).

160  For debate over whether President Bush had the legal authority to establish military commissions, compare Bradley & Goldsmith, supra note 148 (arguing that he did), and John M. Bickers, Military Commissions Are Constitutionally Sound: A Response to Professors Katyal and Tribe, 34 Tex. Tech L. Rev. 899 (2003) (same), with Fletcher, supra note 151 (arguing that he did not), and Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 Yale L.J. 1259 (2002) (same).

161  548 U.S. 557 (2006).

162  Id. at 594. The Court also reasoned that even if the president has independent constitutional authority to establish military commissions, when exercising this authority he or she is required to comply with limitations imposed by Congress. See id. at 593 n.23. The Court cited Justice Jackson’s concurrence in the Youngstown steel seizure decision, which is discussed in Chapter 1. See also id. at 638 (Kennedy, J., concurring) (relying heavily on the approach set out in Justice Jackson’s concurrence).

163  Id. at 628.

164  See id. at 629–31.

165  Id. at 632–33.

166  See id. at 630–31.

167  Id. at 719 (Thomas, J., dissenting). See also Murphy, supra note 101, at 1115 (“A fair reading of the negotiating history suggests that this Common Article 3 paradigm was principally designed to address the situation of an armed conflict internal to a single state.”).

168  See Memorandum from Gordon England, Deputy Secretary of Defense, Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense (July 7, 2006), available at http://www.defense.gov/pubs/pdfs/DepSecDef%20memo%20on%20common%20article%203.pdf.

169  See Mark Mazzeti & Kate Zernike, White House Says Terror Detainees Hold Basic Rights, N.Y. Times, July 12, 2006.

170  See Military Commissions Act, Pub. L. 109–366, 120 Stat. 2632 (Oct. 17, 2006) [hereinafter MCA of 2006].

171  Id., § 948a.

172  Id., § 948b(f).

173  Id., § 948b(g).

174  Id., § 5(a).

175  See id., § 6(d). Salim Hamdan was tried in one of the new commissions and was convicted of providing material support for terrorism, but he received only five months imprisonment beyond the time he had already spent at Guantanamo, and he was released to his home country of Yemen with a month left to serve in his sentence. See Robert F. Worth, Bin Laden Driver to Be Sent to Yemen, N.Y. Times (Nov. 25, 2008).

176  See 18 U.S.C. § 2441(d) (listing conduct considered to be a grave breach of common Article 3 for purposes of the statutes). See also Michael John Garcia, The War Crimes Act: Current Issues (Jan. 22, 2009), available at http://www.fas.org/sgp/crs/intel/RL33662.pdf.

For debate over the legal validity of these various restrictions on the use of the Geneva Conventions, compare Curtis A. Bradley, The Military Commissions Act, Habeas Corpus, and the Geneva Conventions, 101 Am. J. Int’l L. 322 (2007) (arguing that they are generally valid), with Carlos M. Vázquez, The Military Commissions Act, the Geneva Conventions, and the Courts: A Critical Guide, 101 Am. J. Int’l L. 73 (2007) (questioning their validity).

177  See Military Commissions Act, Pub. L. No. 111–84, 123 Stat. 2190, Tit. XVIII (Oct. 28, 2009) [hereinafter MCA of 2009].

178  See id., § 948a.

179  Id., § 948b(e).

180  See Scott Shane & Mark Landler, Obama Clears Way for Guantanamo Trials, N.Y. Times Mar. 7, 2011.

181  See, e.g., Ex parte Quirin, 317 U.S. 1, 31 (1942) (“Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”) (emphasis added). To the extent that the prosecutions are based on Congress’s power to define and punish offenses against the law of nations, the prosecutions presumably must have some basis in the law of nations; see, for example, Stephen I. Vladeck, The Laws of War as a Constitutional Limit on Military Jurisdiction, 4 J. Nat’l Sec. L. & Pol’y 295 (2010), although courts would likely give some deference to the combined judgment of Congress and the president about the content of international law. Based on their other constitutional powers, as well as historical practice, Congress and the president may have the authority to allow military commission trials for certain additional offenses that are not grounded in the law of nations, although this is a matter of some controversy.

182  548 U.S. at 603–04.

183  See MCA of 2006, supra note 170, § 950v(b)(28).

184  See MCA of 2009, supra note 177, § 950t(29).

185  See MCA of 2006, supra note 170, § 950v(b)(25); MCA of 2009, supra note 177, § 950t(25).

186  See MCA of 2006, supra note 170, § 950u; MCA of 2009, supra note 177, § 950t(30).

187  See Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc).

188  See id. at 60–66.

189  See id. at 68–80.

190  Reports indicate that the CIA was authorized to use so-called “enhanced” interrogation techniques against a number of high-level Al Qaeda detainees, and that these techniques included slapping, forced standing for long periods, light and noise bombardment, and, for several of the detainees, waterboarding. See Greg Miller, CIA Chief Confirms Use of Waterboarding, L.A. Times, Feb. 6, 2008; Jon Ward & John Solomon, Interview of the Vice-President, Wash. Times, Dec. 22, 2008. Waterboarding involves pouring water over a person’s face while the person is restrained—for example, by being strapped to a board—in order to induce in the person the sensation of drowning. Less aggressive (but potentially coercive) interrogation techniques, such as manipulation of sleep patterns, were authorized for use at Guantanamo. See News Release No. 596–04, U.S. Dept. of Defense, DOD Provides Details on Interrogation Process (June 22, 2004), available at http://www.au.af.mil/au/awc/awcgate/dod/nr20040622–0930.htm; Memorandum from the Secretary of Defense for the Commander, U.S. Southern Command, Counter-Resistance Techniques in the War on Terrorism (Apr. 16, 2003), available at http://www.au.af.mil/au/awc/awcgate/dod/d20040622doc9.pdf.

191  See 18 U.S.C. § 2340A(a).

192  Article 16 of the Torture Convention provides that “[e]‌ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 16, Dec. 10, 1984, S. Treaty Doc. No. 20–100 (1988), 1465 U.N.T.S. 85. When joining the Convention, the United States included a reservation with its instrument of ratification stating that it “considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” S. Exec. Rep. 101–30, Resolution of Advice and Consent to Ratification, I(2) (1990). For a discussion of the implications of the Torture Convention for interrogation techniques, see Michael John Garcia, U.N. Convention against Torture (CAT): Overview and Application to Interrogation Techniques (Cong. Res. Serv., Jan. 26, 2009), available at http://www.fas.org/sgp/crs/intel/RL32438.pdf.

193  Memorandum from Jay S. Bybee, Assistant Attorney General, to Alberto Gonzales, Counsel to the President, Standards of Conduct for Interrogation under 18 U.S.C. §§ 23402340A (Aug. 1, 2002), available at http://www.justice.gov/olc/docs/memo-gonzales-aug2002.pdf.

194  Memorandum from Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, to James B. Comey, Deputy Attorney General, Legal Standards Applicable under 18 U.S.C. §§ 2340–2340A (Dec. 23, 2004), available at http://www.justice.gov/olc/18usc23402340a2.htm.

195  See James Risen, GI’s Are Accused of Abusing Iraqi Captives, N.Y. Times, Apr. 29, 2004.

196  See, e.g., Seymour M. Hersch, The Chain of Command: The Road from 9/11 to Abu Ghraib (2005). In fact, some of the techniques for degrading prisoners at Abu Ghraib may have been used first at Guantanamo. See Josh White, Abu Ghraib Tactics Were First Used at Guantanamo, Wash. Post, July 14, 2005.

197  Detainee Treatment Act of 2005, Pub. L. No. 109–148, Div. A, tit. 10, 119 Stat. 2739, § 1003 (2005).

198  See MCA of 2006, supra note 170, § 948r(c).

199  See MCA of 2009, supra note 177, § 948r.

200  See Field Manual (FM) 2–22.3, Human Intelligence Collector Operations, at 5–21 (Sept. 2006) (specifically disallowing certain conduct in interrogations, including waterboarding), available at www.fas.org/irp/dod-dir/army/fm2-22-3.pdf.

201  See Exec. Order No. 13,440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 3 C.F.R. 229 (2007). The Order purported to be consistent with U.S. obligations under Common Article 3 of the Geneva Conventions. See id., § 3.

202  See Exec. Order No. 13,491, Ensuring Lawful Interrogations, § 3(b) (Jan. 22, 2009), 74 Fed. Reg. 4893 (Jan. 27, 2009).

Even when based on domestic law, suits brought against U.S. officials for alleged mistreatment in the war on terrorism face a number of legal obstacles. Courts have been reluctant, for example, to infer a damages remedy for violations of the Constitution in this context. See, e.g., Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc); Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (per curiam). The officials are also entitled to immunity if the law was unclear at the time of their actions. See, e.g., Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011); Padilla v. Yoo, 678 F.3d 748 (9th Cir. 2012). Statutory restrictions have also barred relief. See, e.g., Ameur v. Gates, 759 F.3d 317 (4th Cir. 2014).

203  See Kathleen Hennessey, Obama: “We Tortured Some Folks,” L.A. Times, Aug. 1, 2014. In late 2014, the Senate Intelligence Committee released a lengthy report describing and criticizing the CIA’s interrogation practices during the Bush administration. See Mark Mazzetti, Panel Faults C.I.A. Over Brutality and Deceit in Terrorism Interrogations, N.Y. Times, Dec. 9, 2014.

204  See, e.g., Scott Shane, Targeted Killing Comes to Define War on Terror, N.Y. Times, Aug. 7, 2013.

205  For discussions of the legality of targeted killing under international law, see Nils Melzer, Targeted Killing in International Law (2009); Avery Plaw, Targeting Terrorists: A License to Kill? (2008); Targeted Killings: Law and Morality in an Asymmetrical World (Claire Finkelstein, Jens David Ohlin & Andrew Altman eds., 2012); Gabriella Blum & Philip Heymann, Law and Policy of Targeted Killing, 1 Harv. Nat’l Sec. J. 145 (2010); and John Yoo, Assassination or Targeted Killings after 9/11, 56 N.Y.L. Sch. L. Rev. 57 (2011/2012).

206  Compare, for example, Scott Shane, The Moral Case for Drones, N.Y. Times, July 14, 2012, with John Kaag & Sarah Kreps, The Moral Hazard of Drones, N.Y. Times, July 22, 2012.

207  Harold Hongju Koh, State Department Legal Adviser, at the Annual Meeting of the American Society of International Law (Mar. 25, 2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm.

208  John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism at the Woodrow Wilson International Center for Scholars, The Ethics and Efficacy of the President’s Counterterrorism Strategy (Apr. 30, 2012), available at http://www.lawfareblog.com/2012/04/brennanspeech/.

209  See, e.g., Mary Ellen O’Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009 (July 2010), available at http://www.law.upenn.edu/academics/institutes/ilp/targetedkilling/papers/OConnellDrones.pdf.

210  Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 46–52 (D.D.C. 2010).

211  See Mark Mazzetti, Eric Schmitt & Robert F. Worth, Two-Year Manhunt Led to Killing of Awlaki in Yemen, N.Y. Times, Sept. 30, 2011; see also Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. Times, Oct. 8, 2011. For a debate over the legality of this targeted killing, see John C. Dehn & Kevin Jon Heller, Debate: Targeted Killing: The Case of Anwar Al-Aulaqi, 159 U. Pa. L. Rev. 175 (2011).

212  See, e.g., Jo Becker & Scott Shane, Secret “Kill List” Proves a Test of Obama’s Principles and Will, N.Y. Times, May 29, 2012. For additional discussion of President Obama’s involvement in targeted killing decisions, see Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency (2012).

213  See, e.g., David Cole, Killing Our Citizens without Trial, N.Y. Rev. of Books, Dec. 22, 2011; Steve Coll, Daily Comment, Kill or Capture, New Yorker, Aug. 2, 2012.

214  Department of Justice White Paper, available at http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.

215  Id. at 1.

216  Id. at 7. The paper explains that “certain members of al-Qa’ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa’ida would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties.” Id. at 8. Attorney General Eric Holder had articulated similar views in a speech in 2012. See Department of Justice, Attorney General Eric Holder Speaks at Northwestern University School of Law (Mar. 5, 2012), at http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html.

217  See Memorandum from David J. Barron, Acting Assistant Attorney General, to the Attorney General, Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi (July 16, 2010), available at http://justsecurity.org/wp-content/uploads/2014/06/OLC-Awlaki-Memo.pdf.

218  Id. at 23.

219  Id.

220  See id. at 24–27.

221  For an excellent historical account of the relationship between the United States and the international laws of war, see John Fabian Witt, Lincoln’s Code: The Laws of War in American History (2012).