¹ Jordan J. Paust, The President Is Bound by International Law, 81 AJIL 377, 377–83 (1987).

² Id.

³ Id. See also infra note 4. Professor Michael Glennon and Monroe Leigh seem to agree. See Michael J. Glennon, State-Sponsored Abduction: A Comment on United States v. Alvarez-Machain, 86 AJIL 746, 749, 751–52 (1992); Monroe Leigh, Is the President above Customary International Law’?, id. at 757, 760.

⁴ See Glennon, supra note 3, at 752; see also Jordan J. Paust, Customary International Law: Its Nature, Sources and Status as Law of the United States, 12 Mich. J. Int’l L. 59, 81–82 & n.39 (1990); The Federalist No. 3, at 98 (John Jay) (Benjamin Fletcher Wright ed. 1961) (“the law of nations, will always be expounded in one sense and executed in the same manner” (emphasis added); on Jay’s recognitions, approved by other Founders, see also Paust, supra note 1, at 379 n.7); Peter Duponceau, A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States 3 (1824) (law of nations “is binding on every people and every government. It is to be carried into effect at all times …. Every branch of the national administration … is bound to administer it… . [T]his universal … law can never cease to be the rule of executive and judicial proceedings …”).

⁵ 22 U.S. (9 Wheat.) 362, 369–71, 376–79 (1824).

⁶ 112 S.Ct. 2188, 2201–02 (1992) (Stevens, J., dissenting).

⁷ 4 U.S. (4 Dall.) 37 (1800).

⁸ Id. at 43 (emphasis added). See also infra note 15; Paust, supra note 1, at 379 & n.9 (other opinion of Justice Chase).

⁹ Malvina Halberstam, In Defense of the Supreme Court Decision in Alvarez-Machain, 86 AJIL 736, 742 (1992); see also id. at 741, 743. On presidential “authority,” what it “ ‘may’ “ or may not include, and when acts are “ ‘within’ “ such authority, see Paust, supra note 1, at 384–85, 387; infra note 12.

¹⁰ See Halberstam, supra note 9, at 737 n.7, 741 (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)), 743. None of the other cases cited on pages 741 or 743 are directly relevant to presidential violations of international law. See also infra notes 17–18. Additionally, there was no attention paid to contrary opinions-of the judiciary and Attorneys General, relevant provisions of the Constitution, or the views of the Founders. The other case cited (id. at 742 n.45) addressed only treaty engagements, and then only the question whether our “government” might be “justified in” or have a “just occasion to” suspend adherence to a treaty when “the views and acts of a foreign sovereign” present a circumstance in which the claimed right of suspension arises. See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 602 (1889). Additionally, this was a “last-in-time” case, resting on the exercise of “legislation.” Id. at 600–03, 606–07, also equating the “government” with the legislature or joint action of “the executive and legislative departments” (emphasis added). See also Chew Heong v. United States, 112 U.S. 536, 563 (1884), quoted in Paust, supra note 1, at 382; infra note 19. Chae Chan Ping did not state that the President, acting alone, may violate a treaty, much less customary international law. Importantly also, Chae Chan Ping is one of the cases recognizing the executed or vested rights exception to the last-in-time rule and, thus, the primacy of such treaty-based rights even over subsequent legislation. See Jordan J. Paust, Rediscovering the Relationship Between Congressional Power and International Law: Exceptions to the Last in Time Rule and the Primacy of Custom, 28 Va. J. Int’l L. 393, 406–10 (1988), and references cited.

¹¹ See Halberstam, supra note 9, at 737 n.7, 741, 743. Also, it is quite strange and incorrect to assume that when the Executive prosecutes or orders “the trial” of an accused in an Article III court located within the United States, the President is merely engaged in “the conduct of foreign affairs.” For that assumption, see id. at 741, 743. Moreover, it is bizarre and subversive of a constitutional separation of powers to argue that, while conducting such a “foreign affair” in an Article III court, the court has lost its judicial power and responsibility under the Constitution to apply relevant law and should tolerate illegality. For that argument, see id. at 743.

¹² Curtiss-Wright, 299 U.S. at 318–20 (emphasis added). On Curtiss-Wright, see also Paust, supra note 4, at 81 n.39; Paust, Is the President Bound by the Supreme Law of the Land?—Foreign Affairs and National Security Reexamined, 9 Hastings Const. L.Q. 719, 753 (1982). Since Justice Sutherland had expressly recognized that operations “must be governed by” treaties and other international law (299 U.S. at 318 (emphasis added)), it is evident that he understood “applicable provisions of the Constitution” to include Article II, §3; Article III, §2; and Article VI, cl. 2. In any event, they are applicable provisions. See, e.g., supra notes 3–4. Professor Halberstam assumes, incorrectly, that Article I, §8, cl. 10 “has no bearing on whether the United States may constitutionally violate international law” and that it could not apply to “breaches & by governments.” Halberstam, supra note 9, at 742 n.45. Of course, no cases or expectations of the Founders affirm this claim, and a landmark opinion of the Attorney General with respect to war crimes, relevant Founder expectations and judicial opinions are clearly to the contrary. See 11 Op. Att’y Gen. 297, 299–300 (1865); Paust, supra note 10, at 418–21 & n.55; 9 Op. Att’y Gen. 356, 362–63 (1859) (as quoted in last citation and adding: “a law which operates on the interests and rights of other States and peoples must be made and executed according to the law of nations” (emphasis added)). Additionally, Congress has power under Article I, §8, cl. 18 to make laws (but only such laws) as shall be “proper” and in “Execution” of related powers. See also Halberstam, supra note 9, at 743 n.51; Glennon, supra note 3, at 752.

¹³ See United States v. Macintosh, 283 U.S. 605, 622 (1931).

¹⁴ Miller v. United States, 78 U.S. (11 Wall.) 268, 314 (1870) (Field, J” dissenting).

¹⁵ See Paust, supra note 10, at 416–18, 442 (also analyzing Bos, 4 U.S. (4 Dall.) 37 (1800)).

¹⁶ See Halberstam, supra note 9, at 741, 744 n.52.

¹⁷ ” See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428, 430 & n.34 (1964); Jordan J. Paust, Correspondence, 18 Va. J. Int’l L. 601 (1978).

¹⁸ See, e.g., Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177 (2d Cir. 1967), cert, denied, 390 U.S. 956 (1968), adopting by ref. Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (2d Cir. 1962).

¹⁹ See Glennon, supra note 3, at 751. An unavoidable clash between a treaty and a federal statute is another matter. In such a case, judicial precedent adopts the last-in-time rule and its several exceptions. See supra notes 10, 15; see also Paust, supra note 1, at 384, 387–90.

²⁰ Glennon, supra note 3, at 751 n.30.

²¹ See, e.g., Paust, supra note 1, at 380–81, 387; Paust, supra note 10, at 411 n.37, 417 n.49, 419 n.55, 421–22 n.57, 426 n.62, 439 n.90, 440–41 n.91, 442. The only new reference in Professor Glennon’s footnote is to Waring v. Clarke, 46 U.S. (5 How.) 441 (1847) (like the other cites, without attention to particular pages or details of language). But the case lacks any relevant statement. See also id. at 452 (Wayne, J.), 466 (Catron, J.), concerning the exact issues before the Court.

²² See, e.g., Paust, supra note 10, at 416–43, and references cited.

²³ Id.

²⁴ See Glennon, supra note 3, at 746, 748, 753; Halberstam, supra note 9, at 736–37 & n.5, 740, 740–41 n.35 (actually critical of what the Court did not state); Leigh, supra note 3, at 761–62 n.27. In this regard, the constant focus of the majority opinion was on express and arguably implied “terms of the United States-Mexico extradition treaty.” See 112 S.Ct. at 2194–96 & nn. 14–15.

²⁵ See, e.g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20–21 & n.12 (1963); Santovincenzo v. Egan, 284 U.S. 30, 40 (1931); Geofroy v. Riggs, 133 U.S. 258, 271 (1890); United States v. Rauscher, 119 U.S. 407, 419–20, 429 (1886); The Pizarro, 15 U.S. (2 Wheat.) 227, 246 (1817); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 261 (1796) (“The subject of treaties … is to be determined by the law of nations”); see also Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 261 (1984); Jordan v. Tashiro, 278 U.S. 123, 127 (1928); Tucker v. Alexandroff, 183 U.S. 424, 437 (1902); Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 21 U.S. (8 Wheat.) 464, 490 (1823). Outside the Supreme Court but highly relevant and reflecting early views of a Founder and Chief Justice is Henfield’s Case, 11 F.Cas. 1099, 1101 (C.C.D. Pa. 1793) (No. 6360) (Jay, C.J., on circuit, charge to grand jury).

²⁶ See Alvarez-Machain, 112 S.Ct. at 2195–96 (Rehnquist, C.J.). See also id. at 2197, 2201–02, 2203 n.27 (Stevens, J., dissenting).

²⁷ See also Andrew L. Wilder, Note, United States v. Alvarez-Machain, 32 Va. J. Int’l L. 979, 986–87 (1992) (“contrary to common sense … ridiculous”); Jordan J. Paust, After Alvarez-Machain: Abductions, Standing, Denials of Justice, and Unaddressed Human Rights Claims, 67 St. John’s L. Rev. (forthcoming 1993).

²⁸ Here, I do not suggest that all abductions necessarily violate international law. See also Jordan J. Paust, Extradition and United States Prosecution of the Achille Lauro Hostage-Takers: Navigating the Hazards, 20 Vand. J. Transnat’l L. 235, 253 (1987), and references cited; Paust, supra note 27. In this case, the defendant was not accused of violations of international law over which there is universal jurisdiction, Mexico had not breached or denied any international duty, the accused would not have escaped prosecution, and actions of lower-level U.S. actors were not reasonably necessary—nor did the President seem to have ordered such conduct. Charter norms are relevant to three questions: (1) whether an abduction violates customary law reflected in Article 2(4) or (7); (2) whether an abduction violates customary human rights guaranteed under Articles 55(c) and 56 (see generally Filartiga v. Pena-Irala, 630 F.2d 876, 882 (2d Cir. 1980); Forti v. Suarez-Mason, 672 F.Supp. 1531, 1541–42 (N.D. Cal. 1987), 694 F.Supp. 707, 710–11 (N.D. Cal. 1988)); and (3) whether a remedy of return is part of such human rights law (see, e.g., Professor Henkin Replies, ASIL Newsletter, Jan.–Feb. 1993, at 6; Halberstam, supra note 9, at 744–45).

²⁹ See also Glennon, supra note 3, at 748.

³⁰ See also supra note 24; Semmelman, Case Note, 86 AJIL 811,815, 817 n.30, 820 (1992)—other wise incorrectly interpreting the thrust of The Paquete Habana and wrongly emphasizing Gray’s language as the relevant test (compare id. at 817–18 with Paust, supra note 1, at 381, 383–87, 389). Semmelman also argues, improperly, that customary and Charter prohibitions should not have been read into the treaty (compare Semmelman, supra, at 816–17 with supra notes 25–29 and accompanying text) and assumes, erroneously, that the narrowly focused majority opinion “disparaged customary international law as the source of a rule of decision in the case” (id. at 817 (emphasis added)) or was (more generally or in any other context) “suggesting that the court below was obligated to disregard customary international law unless the Executive chose to abide by it and ordered the defendant returned” (id. at 818). These points are in error because the issue of custom “as the source of a rule of decision” was not before the Court or addressed in any way other than as possible background for recognizing “an implied term” “outside of the Treaty” (but which is to be read in as “a violation of the Treaty” (emphasis added)), “outside of the terms of the … treaty,” “outside of its terms” but which should be read into “this particular treaty” (112 S.Ct. at 2194–96 & n.14). Since it was not read in, a decision whether to return the accused was, like the allegedly implied terms, “a matter outside of the Treaty.” 112 S.Ct. at 2196 (emphasis added); see also id. at 2193 (“The Treaty says nothing about the obligations … or the consequences under the Treaty if such an abduction occurs”). Only the treaty as such was before the Court (this is the way “outside” was consistently used in 112 S.Ct. at 2194–96; see also Halberstam, supra note 9, at 737 n.7, 740–41 n.35, emphasizing what the majority “could” have said but actually did not say; Semmelman, supra, at 820).

³¹ See Glennon, supra note 3, at 748–49; Leigh, supra note 3, at 757–58, 763.

³² See supra notes 24, 30, the terse, unreasoned, unsupported and unsupportable statement of the Ninth Circuit notwithstanding. See Semmelman, supra note 30, at 820.