Here’s why I’m not worried about the Hamdan decision (and it’s not just that the Supreme Court smacked around “international law” the day before).
First, note what the intellectual right-wing was saying early this year: that the “Law of Nations” described in the Constitution should be narrowly interpreted.
Still, the framers held firm to the imperatives of self-determination and limited interference. The Constitution prescribed a system of enumerated powers, sufficient to secure the nation and promote commerce but respectful of individual choice and local sovereignty. Any authority not expressly assigned to one of the three federal branches was reserved to the states and the people. If new law was needed or if current law required mending, the divisions of authority were reasonably clear: matters of immediate, parochial concern were to be taken up by representatives and courts at the state and local level; the federal governmenta sliver of the present-day behemothwas reserved for those relatively few issues that transcended state boundaries.
The first was the law of nations. In a very useful recent book, Jeremy Rabkin explains that this term of art, culled from Blackstones Commentaries, related specifically to piracy and mercantile shipping (both of which lay outside the jurisdiction of any nation) as well as to the need to provide safe harbor for lawful foreign nationals, including diplomats. And, finite as this was, the framers constrained it still further. Under Article I of the Constitution, the law of nations was to have domestic application only if Congress chose to define and punish offenses against itand regardless of what other nations might regard as a violation.
The Supreme Court agrees
Ultimately, Hamdan v. Rumsfeld is best read as the Supreme Court limiting international law by refusing to grant the Bush’s administration expansive interpretation of it.
There is no suggestion that Congress has, in exercise of its constitutional authority to â€œdefine and punish . . . Offences against the Law of Nations,â€ U. S. Const., Art. I, Â§8, cl. 10, positively identified â€œconspiracyâ€ as a war crime.33 As we explained in Quirin, that is not necessarily fatal to the Governmentâ€™s claim of authority to try the alleged offense by military commission; Congress, through Article 21 of the UCMJ, has â€œincorporated by referenceâ€ the common law of war, which may render triable by military commission certain offenses not defined by statute. 317 U. S., at 30. When, however, neither the elements of the offense nor the range of permissible punishments is defined by statute or treaty, the precedent must be plain and unambiguous. To demand any less would be to risk concentrating in military hands a degree of adjudicative and punitive power in excess of that contemplated either by statute or by the Constitution. Cf. Loving v. United States, 517 U. S. 748, 771 (1996) (acknowledging that Congress â€œmay not delegate the power to make lawsâ€); Reid, 354 U. S., at 23â€“24 (â€œThe Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential boundsâ€); The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison) (â€œThe accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyrannyâ€).3
At a minimum, the Government must make a substantial showing that the crime for which it seeks to try a defendant by military commission is acknowledged to be an offense against the law of war. That burden is far from satisfied here. The crime of â€œconspiracyâ€ 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,35 and does not appear in either the Geneva Conventions or the Hague Conventionsâ€”the major treaties on the law of war.36 Winthrop explains that under the common law governing military commissions, it is not enough to intend to violate the law of war and commit overt acts in furtherance of that intention unless the overt acts either are themselves offenses against the law of war or constitute steps sufficiently substantial to qualify as an attempt. See Winthrop 841 (â€œ[T]he jurisdiction of the military commission should be restricted to cases of offence consisting in overt acts, i.e., in unlawful commissions or actual attempts to commit, and not in intentions merely.”