1 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (to be codified at 10 U.S.C. §§948a–950w and other sections of titles 10, 18, 28, and 42).

2 Hamdan v., Rumsfeld, 126 S.Ct. 2749 (2006)Google Scholar.

3 Military Order, Detention, Treatment, and Trial of Certain Non–citizens in the War Against Terrorism, 66 Fed. Reg. 57, 833 (Nov. 16, 2001).

4 See, e.g., Geneva Convention [No. III] Relative to the Treatment of Prisoners of War, Art. 3, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 [hereinafter Third Geneva Convention].

5 18 U.S.C. §2441 (2000).

6 See Sean D., Murphy, Contemporary Practice of the United States, 96 AJIL 475–80 (2002)Google Scholar, and in this Agora Michael J., Matheson, The Amendment of the War Crimes Act, 101 AJIL 48, 50 & n.9 (2007)Google Scholar.

7 See Standards of Military Commissions and Tribunals: Hearing Before the H. Comm. on Armed Services, 109th Cong. (2006) (statement of Theodore B. Olson) (“[I]t is my view that Congress should restore the status quo that existed prior to the Supreme Court’s decision in Hamdan . . . “ ) ; The NewsHour with Jim Lehrer: High Court Blocks Guantanamo Tribunals (PBS television broadcast June 29, 2006) (interview with John Yoo), available at <http://www.pbs.org/bb/law/jan–june06/Guantanamo2_06-29.html>; see also Eric, Posner, Apply the Golden Rule to Al Qaeda? Wall St. J., July 15, 2006, at A9 Google Scholar.

8 Sanchez-Llamas v., Oregon, 126 S.Ct. 2669, 2684 (2006)Google Scholar, discussed in text at notes 39–40 infra.

9 S. 3861, 109th Cong. §6(b)(1) (2006); see also H.R. 6054, 109th Cong. §6(b)(1) (2006).

10 Although this provision finds echoes in some of the provisions of the MCA discussed below, the provisions ultimately enacted do not purport to prohibit the “indirect” invocation of the Geneva Conventions and Protocols, and they do not purport to bar the invocation of these instruments in criminal prosecutions against citizens and lawful enemy combatants or in civil actions against private or foreign defendants. S. 3861 would apparently have barred the invocation of the Conventions in all those circumstances.

11 See Statement of Sen. John, McCain, 152 Cong. Rec. S10, 354, S10, 413–14 (Sept. 28, 2006)Google Scholar (“[T]his legislation before the Senate does not amend, redefine, or modify the Geneva Conventions in any way. The conventions are preserved intact. . . . [T]his bill makes clear that the United States will fulfill all of its obligations under those Conventions.”).

12 152 Cong. Rec. H6273 (daily ed. Sept. 6, 2006).

13 152 Cong. Rec. S9113, S9122 (daily ed. Sept. 7, 2006).

14 Report of the Committee on Armed Services of the House of Representatives on H.R. 6054, H.R. Rep. NO. 109-664, pt. 1 (Sept. 15, 2006).

15 S.3901, 109th Cong. (2006) (as introduced in the Senate by Senator Warner on Sept. 14); 152 Cong.Rec. S9629 (daily ed. Sept. 14, 2006).

16 S. 3930, 109th Cong. (2006) (as introduced by Senator Mitch McConnell on Sept. 22).

17 S. 3930, 109th Cong. (2006) (as placed on the calendar in the Senate by Senator McConnell on Sept. 25). On the same day, the House Judiciary Committee favorably reported out the bill originally proposed by the president. Report of the Committee on the Judiciary of the House of Representatives to Accompany H.R. 6054, H.R. Rep. No. 109-664, pt. 2 (Sept. 25, 2006).

18 152 Cong. Rec. H7508 (daily ed. Sept. 27, 2006) (debate begins in House); 152 Cong. Rec. S10, 234 (daily ed. Sept. 27, 2006) (debate begins in Senate).

19 See 152 Cong. Rec. H7522 (daily ed. Sept. 27, 2006) (House passes bill); 152 Cong. Rec. S10, 420 (daily ed. Sept. 28, 2006) (Senate passes bill). Some additional debate occurred in the House after the Senate’s approval of the bill, but the bill considered was identical to the one that had been approved by the House on September 27. 152 Cong. Rec. H7925 (daily ed. Sept. 29, 2006).

20 See William, Kristol, The Trap, Wkly. Standard, Sept. 25, 2006, available at <http://www.weeklystandard.com/Content/Public/Articles/000/000/012/7111zwcj.asp?pg=1>Google Scholar (describing the president’s opposition to the Warner/McCain/Graham version as a “trap” “sprung” by the president to make the midterm elections “about national security” and to draw “a clear and live contrast between [himself] and the Democrats on an important issue in the war on terror”); see also William H., Taft IV (legal adviser, U.S. Department of State, 2001–2005), Remarks, Second Annual Samuel Dash Conference on Human Rights: Security, Human Rights, and War Powers in the Post–9/11 Era: What Should We Expect from Congress (Feb. 13, 2007), available at <http://www.law.georgetown.edu/webcast/eventDetail.cfmPeventID=268>>Google Scholar (audio) (“The [MCA] . . . was enacted under the pressure of a campaign and in a deliberately charged political atmosphere. . . . There was no need to enact the [MCA] in this rush except for the political agenda. The people who were subject to the [MCA] weren’t going anywhere.”). Condemnation of this political gamesmanship was a consistent theme of the Democrats during the brief debate in the House and the Senate. See, e.g., 152 Cong. Rec. S10, 388–89 (daily ed. Sept. 28, 2006) (statement of Sen. Barack Obama) (“The problem with this bill is that it is sloppy. And the reason it is sloppy is because we rushed it to serve political purposes instead of taking the time to do the job right. . . . [Senators Warner, McCain, and Graham] essentially got steamrolled by this administration and by the imperatives of November 7.”).

21 See 152 Cong. Rec. S10.400 (daily ed. Sept. 28, 2006) (statement of Senator Edward M. Kennedy) (“[W]e have continued to see changes in [the compromise] bill as it has been moved toward the floor in a rush to achieve passage before the Senate recesses for the election. This rush to passage to serve a political agenda is no way to produce careful and thoughtful legislation on profound issues of national security and civil liberties. At this point, most Members of this body hardly know what they are being asked to approve.”); id. at S10, 409 (statement of Sen. Joseph R. Biden) (“And rush we did. In the last week, there have been two different versions of the legislation that emerged from closed–door negotiations with the administration.”). The confusion among legislators is reflected, for example, in Senator McCain’s belief that section 5(a) of the compromise bill addressed the invocation of the Geneva Conventions only in suits seeking damages. See id. at S 10, 414. Although section 7(a) of the Warner/McCain/Graham bill was limited to suits for damages, see S. 3901, supra note 15, that limitation was removed in the compromise bill and does not appear in section 5(a) of the bill then being debated and eventually enacted. See discussion infra.

22 See Standards of Military Commissions and Tribunals: Hearings Before the H. Comm. on Armed Services, 109th Cong. (2006) (statement of Michael P. Scharf) (“Congress can override the requirements of the 1949 Geneva Conventions if it enacts a later–in–time statute that manifests a clear intent to violate the provisions of these venerable . . . treaties.”); Military Commissions and the Supreme Court Decision in Hamdan v. Rumsfeld; Hearings Before the S. Comm. on Armed Services, 109th Cong. (2006) (statement of Neal Katyal) (“If Congress wants to avoid applying any provision of Common Article 3 to ‘enemy combatants’ or other groups, it must be crystal clear that it so intends, because under the Charming Betsy doctrine courts will construe statutes so as to harmonize with international agreements whenever fairly possible. Congress’s abrogation of Common Article 3 would need to be very explicit, and very public, or else courts will not recognize it.” (citation omitted)). The last–in–time rule and the rule of The Charming Betsy are discussed in text at notes 50–68 infra.

23 Detainee Treatment Act of 2005, Pub. L. No. 109–148, Div. A, tit. X, §1001, 119 Stat. 2739, & Pub. L. No. 109–163, Div. A, tit. XIV, §1401, 119 Stat. 3474, 3478 (to be codified at 42 U.S.C. §2000dd & 10 U.S.C. §801 note). The Court held that the provisions did not apply to pending cases. Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2762–70 (2006).

24 Hamdan, 126 S.Ct. at 2797–98Google Scholar.

25 Johnson v., Eisentrager, 339 U.S. 763, 789 n.14 (1950)Google Scholar.

26 Hamdan, 126 S.Ct. at 2793–94Google Scholar. Among the authorities critical of the Eisentrager footnote cited by the Court was the Amicus Brief of Law Professors Louis Henkin et al., Hamdan v. Rumsfeld (U.S. 2006) (No. 05-184), available at <http://www.hamdanvrumsfeld.com/HamdanvRumsfeldAmicusBriefofLawProfessorsLouisHenkinetal.pdf> [hereinafter Brief of Henkin et al.]. See Hamdan, 126 S.Ct. at 2794 & n.58. I was a coauthor and signatory of this brief.

27 10 U.S.C. §821 (2000).

28 126 S.Ct. at 2795.

29 For an extended analysis of this question, see Brief of Henkin et al., supra note 26.

30 If the Geneva Conventions were not judicially enforceable in the absence of legislative incorporation, then the provisions discussed below that arguably curtail judicial enforcement of the Geneva Conventions would be superfluous. Cf. infra text at notes 93–97 (discussing evidence that some of these provisions were intended merely as an expression of Congress’s views about the extent to which the Conventions would be independently enforceable in court). Indeed, the fact that these provisions would leave open the courts’ power to enforce the Geneva Conventions in certain contexts (such as in criminal proceedings against citizens or actions against private parties and foreign sovereigns) appears to contradict the administration’s apparent belief, reflected in the bill it initially proposed, that “enforcement of the obligations imposed by the Conventions is a matter between the nations that are parties to them.” Message from the President Transmitting a Draft of Proposed Legislation Entitled the “Military Commissions Act of 2006,” H.R. DOC. NO. 109–133, at 23–24 (Sept. 27, 2006).

In assuming that the Conventions are judicially enforceable in the absence of legislative incorporation, I do not assume that all provisions of the Conventions would be enforceable at the behest of any person at any time. As noted below, some provisions of the Conventions are non–self–executing. See infra notes 104–06. Rather, I assume that the provisions that require the United States to treat particular persons in a particular way would be enforceable at the behest of such persons (1) defensively and (2) in suits for affirmative relief to the extent that the Conventions or another law (such as the habeas statute) confers a private right of action. Thus, at a minimum, common Article 3’s prohibition of trials except in accordance with certain procedures would be enforceable at such trials to protect covered persons from being tried in accordance with other procedures.

31 10 U.S.C. §949a(a). Section 3 of the MCA adds a new chapter (chapter 47A) to title 10 of the U.S. Code. I shall cite the provisions added by section 3 by their section numbers as they will be codified in title 10.

32 See Chae Chan Ping v. United States, 130 U.S. 581, 599–602 (1889)Google Scholar (The Chinese Exclusion Cases); Edye v., Robertson, 112 U.S. 580, 597–99 (1884)Google Scholar (The Head Money Cases).

33 As discussed more fully below, other provisions of the MCA make clear that the Geneva Conventions remain in full force.

34 See, e.g., Sumitomo, Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184–85 (1982)Google Scholar (“Although not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.”).

35 See id.

36 See also Robert, Chesney, Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations, Iowal. Rev. (forthcoming 2007), available at <http://ssrn.com/sol3/papers.cfm?abstract_id=931997>Google Scholar; Martin S., Flaherty, Executive Power in Foreign Affairs, Harv. J.L. & Pub. Pol’y Google Scholar (forthcoming); David, Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, N.Y.U. Ann. Surv. Am. L. (forthcoming), available at <http://ssrn.com/sol3/papers.cfm?abstract_id=889924>>Google Scholar.

37 U.S. Const. Arts. VI, III, §1.

38 Sanchez–Llamas v., Oregon, 126 S.Ct. 2669 (2006)Google Scholar.

39 Id. at 2684 (one citation omitted).

40 Id. (quoting Williams v. Taylor, 529 U.S. 362, 378–79 (2000)) (emphasis added)).

41 Compare Restatement (Second) of The Foreign Relations Law of the United States §150 (1965) (“Under the law of the United States, courts in the United States have exclusive authority to interpret an international agreement to which the United States is a party for the purpose of applying it in litigation as the domestic law of the United States.”), with Restatement (Third) of the Foreign Relations Law of the United States §326(2) (1987) (“Courts in the United States have final authority to interpret an international agreement for purposes of applying it as law in the United States, but will give great weight to an interpretation made by the Executive Branch.”) [hereinafter Restatement (Third)].

42 27 U.S. (2 Pet.) 253 (1829).

43 Id. at 307.

44 Additionally, in urging deference to the political branches, the Court in Foster emphasized that this was a dispute between nations concerning a national boundary. Indeed, Foster was cited by the Court in Baker v. Carr for the proposition that “the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory.” Baker v., Carr, 369 U.S. 186, 212 (1962)Google Scholar (citing Foster, 27 U.S. at 307).

45 10 U.S.C. §948i(b).

46 U.S. Const, amend. V.

47 See Government’s Supplemental Brief Concerning Military Commissions Act at 15, Boumediene v. Bush, Nos. 05–5062, 05-5063, 05-5064, 05-095 through 05-5116 (D.D.C. Nov. 13, 2006); cf. text at notes 89–92 infra (arguing that Due Process and Article III limits do apply to military commissions operating outside our borders because of role played by Court of Military Commission Review, D.C. Circuit, and Supreme Court). See also The Bush Presidency and the Constitution, AALS panel discussion (Jan. 5, 2007) (statement of Bradford A. Berenson, associate counsel to the president, 2001–2003) (expressing the view that the Due Process Clause does apply to the operations of the military commissions but suggesting that under Mathews v., Eldridge, 424 U.S. 319 (1976)Google Scholar, the process that is due would be less than in a criminal trial), available at <http://natseclaw.typepad.com/natseclaw/files/AALS.MCAPanel.WMA> (audio) [hereinafter AALS Panel]. If the Due Process Clause applies in full force, the claim that the commissions afford the procedural guarantees required by common Article 3 is more plausible.

48 10 U.S.C. §949a(a).

49 See 152 Cong. Reg. S10, 246 (daily ed. Sept. 27, 2006) (statement of Sen. Warner) (“To meet the mandate of the Court in its decision, Hamdi [sic] v. Rumsfeld, this legislation provides for a military commission that, in the words of Common Article 3, affords ‘all judicial guarantees which are recognized as indispensable by civilized peoples.’”); id. (statement of Sen. Warner) (“This bill does not provide as a matter of law that this legislation fully satisfies Common Article 3 of the Geneva Conventions. My colleagues and I feel that to make such a statement a matter of statute would amount to a reinterpretation of our obligations under the Geneva Conventions . . . .Such an action could open the door to statutory reinterpretation by a host of other nations with less regard for human rights than the United States and would result in possibly our U.S. troops being put at greater risk . . .”). A more problematic alternative would be to read the section as affirming that, to the extent that the other provisions of the MCA, or the procedures promulgated by the secretary of defense, depart from the requirements of common Article 3, those requirements are superseded by this statute. Such an interpretation is difficult to square with the words of section 948b(f). See also id. at S10, 244 (statement of Sen. Frist) (“Nothing in this bill would change any of the standards of the Geneva Conventions . . . . [or] authorize the President to do so.”). I next consider whether the same result follows under the last–in–time rule independently of section 948b(f).

50 See Chae Chan Ping v. United States, 130 U.S. 581, 599–602 (1889)Google Scholar (The Chinese Exclusion Cases); Edye v. Robertson, 112 U.S. 580, 597–99 (1884) (The Head Money Cases).

51 10 U.S.C. §948r. Although the admission of statements procured through torture is prohibited by section 948r(b), section 948r(c) and (d) permit the admission of a statement procured through lesser forms of coercion if “the totality of the circumstances renders the statement reliable” and other specified conditions are satisfied.

52 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)Google Scholar (federal statutes “ought never to be construed to violate the law of nations if any other possible construction remains”).

53 Wood v. United States, 41 U.S. 342, 363 (1842)Google Scholar.

54 Chew Heong v. United States, 112 U.S. 536, 549 (1884)Google Scholar.

55 Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252 (1984)Google Scholar (quoting Cook v. United States, 288 U.S. 102, 120 (1933)).

56 Weinberger v., Rossi, 456 U.S. 25, 32 (1982)Google Scholar. Breard v., Greene, 523 U.S. 371 (1998)Google Scholar, is not to the contrary. Although the Court invoked the last–in–time rule and indicated that the Anti–terrorism and Effective Death Penalty Act of 1996 (AEDPA) supersedes the Vienna Convention on Consular Relations (VCCR) in the event of a conflict between the two, the Court’s interpretation of the AEDPA did not produce an implicit repeal of the VCCR. The relevant provision of the VCCR conferred a right to a judicial remedy, whereas the AEDPA denied federal courts jurisdiction over certain habeas claims. The Court’s interpretation of the AEDPA as denying a remedy in federal court did not repeal any part of the VCCR, as the latter would be satisfied by a remedy in state court.

57 695 F.Supp. 1456 (S.D.N.Y. 1988).

58 22 U.S.C. §§5201–5203.

59 Agreement Regarding the Headquarters of the United Nations, June 26, 1947, 61 Stat. 3416, 11 UNTS 11.

60 Restatement (Third), supra note 41, §115(1)(a) (emphasis added). The court in the PLO mission case referred to this section but misquoted it, substituting the word “and” for the first “or” in the italicized clause. 695 F.Supp. at 1465.

61 Whitney v., Robertson, 124 U.S. 190, 194 (1888)Google Scholar.

62 Id. at 195.

63 See, e.g., Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993)Google Scholar. See also Cook v. United States, 288 U.S. 102, 119–20 (1933)Google Scholar, in which a later statute permitting searches of vessels up to 12 miles from shore was held not to supersede an earlier treaty barring searches more than 10 miles from shore.

64 On the other hand, common Article 3 would be superseded by a provision that prohibited the exclusion of statements procured by coercion. MCA section 949a(b)(2)(C) may be such a provision. It provides that “[a] statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self–incrimination so long as the evidence complies with the provisions of section 948r of this title.” On the other hand, the heading of section 949a(b)(2) indicates that the rules of procedure established by the secretary of defense “may” include provisions such as subsection 949a(b)(2)(C), arguably making this a permissive rather than a prohibitory provision.

65 For example, it is settled that the conflict between a permissive rule and a prohibitory rule suffices to trigger a choice–of–law analysis.

66 In addition to provisions already discussed, see 18 U.S.C. §2441(d)(5), added by section 6(b) of the MCA, which provides that “[t]he definitions in this subsection are intended only to define the grave breaches of common Article 3 and not the full scope of United States obligations under that Article.” See also Statement of Senator McCain, quoted supra note 11; Statements of Senators Warner and Frist, supra note 49; The Supreme Court’s Decision in Hamdan v., Rumsfeld: Hearings Before the H. Comm. on Armed Services, 109th Cong. (July 12, 2006)Google Scholar (statement of Steven G. Bradbury, acting assistant attorney general, Office of Legal Counsel) (“We believe that the standards governing the treatment of detainees by the United States in the War on Terror should be certain, and that those standards should be defined by U.S. law, in a manner that will fully satisfy our international obligations.”); Legislation in Response to Hamdan v., Rumsfeld: Hearings Before the S. Common Armed Services, 109th Cong. (Aug. 2, 2006)Google Scholar (statement of Alberto Gonzales, attorney general) (same); 152 Cong. Reg. S10, 414 (daily ed. Sept. 28, 2006) (statement of Sen. McCain) (“[T]his bill makes it clear that the United States will fulfill all of its obligations under those Conventions.”).

67 The recent decision of the D.C. Circuit in Fund for Animals, Inc. v. Kempthorne, No. 05–5352, 2006 U.S. App. Lexis 30828 (D.C. Cir. Dec. 15, 2006), is distinguishable. That case involved a statute containing a provision that clearly conflicted with a prior judicial interpretation of a treaty alongside a provision offering the “sense of Congress” that the new provision was consistent with the treaty. The court rejected the argument that the existence of the two provisions in the same statute created an ambiguity that triggered the Charming Betsy presumption, and it gave effect to the provision conflicting with the treaty. The indications that the MCA was intended to preserve the Geneva Conventions intact are more numerous and more powerful than the “sense of Congress” provision involved in Kempthorne. Furthermore, both the text and the history of the statute construed in Kempthorne made it clear that Congress meant to supersede the treaty as it had been interpreted by the courts, whereas no such intent was expressed with respect to the MCA.

68 Of course, if the treaty is ambiguous, the courts could reconcile the statute and the treaty by construing the treaty as requiring only what the statute requires. I do not consider here the respective roles of Congress and the courts in interpreting treaties that are ambiguous in their text.

69 Nothing in the MCA prevents the government from trying such aliens in tribunals other than military commissions.

70 S. 3930, supra note 16, §948b(f); S. 3930, Supra note 17, §948b(f) (emphasis added).

71 Cf. Hamdan v., Rumsfeld, 126 S.Ct. 2749, 2766 & n.10 (2006)Google Scholar.

72 This interpretation may derive some support from Congressman Tom Lantos’s statement on the House floor that the bill “prohibits any detainee from ever raising the Geneva Conventions in any case before any court or military commission.” 152 Cong. Rec. H7555 (daily ed. Sept. 27, 2006). It is possible, however, that Lantos was describing what he thought was the joint operation of section 948b(g) and section 5(a) of the MCA. If so, he was reading section 5(a) too broadly. See infra text at notes 120–23.

73 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc . No. 100–20 (1988), 1465 UNTS 85.

74 As discussed below, see text at note 120 infra, section 5(a) of the MCA provides that persons may not invoke the Geneva Conventions or any protocols thereto in any habeas or civil action in which the United States or a U.S. official is a party. That section does not apply to trials before the military commissions themselves. Section 6(a)(2) of the MCA, also discussed below, see text at note 135 infra, provides that no foreign or international source of law shall supply a rule of decision in interpreting the War Crimes Act, as amended by the MCA. The military commissions will not be enforcing the War Crimes Act.

75 Cf. discussion infra at p. 93. Of course, there are substantial questions about the extent to which customary law may be invoked in court against the executive, and about the self–executing status of some of the relevant treaties.

76 Perhaps he can maintain that this standard is being invoked as a limitation on the government’s power, and thus not as “a source of rights.” The obvious counterargument is that a limitation on the government’s power to act in a given way toward an alien is the same as a right of the alien not to be treated that way. This is the rationale for allowing individuals to invoke legal provisions in court that limit the government’s power. According to Chief Justice Marshall’s famous dictum in Marbury v. Madison, the role of the courts is solely to enforce the rights of individuals. 5 U.S. (1 Cranch) 137, 170 (1803). If the lack of governmental power to act in contravention of the Geneva Conventions did not confer a correlative right of the individual to be treated in conformity with the Geneva Conventions, the individual would presumably lack standing to invoke the Conventions in court in the first place.

77 531 U.S. 533(2001).

78 Id. at 545.

79 Id. at 546.

80 Id. at 554 (Scalia, J., dissenting) (quoting Rust v. Sullivan, 500 U.S. 173, 193 (1991)).

81 Id.

82 Detainee Treatment Act of 2005, supra note 23.

83 126 S.Ct. at 2775.

84 H.R. Rep. No. 109-664, pt. 1, at 28 (2006); see also H.R. Rep. No. 109-664, pt. 2 (2006) (same). A subsequent debate in the Judiciary Committee on a motion to delete this section revealed that the bill’s supporters were primarily concerned with frivolous lawsuits seeking damages for violations of the Conventions. See id. at 168–71.

85 Henry M., Hart Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1383 (1953)Google Scholar.

86 Yakus v. United States, 321 U.S. 414, 446–47 (1944)Google Scholar. Hart was most disturbed by language in certain opinions in Estep v. United States, 327 U.S. 114 (1946). It is noteworthy, however, that these statements were made in opinions that did not command a majority, and even these opinions stressed that the legal question excluded from the trial court could be ventilated in a subsequent habeas proceeding. Id. at 141–42 (Frankfurter, J., concurring).

87 United States v. Mendoza–Lopez, 481 U.S. 828, 837–38 (1987)Google Scholar.

88 See Rasul v., Bush, 542 U.S. 466, 480 (2004)Google Scholar; see generally id. at 483 n. 15; United States v. Verdugo–Urquidez, 494 U.S. 259, 277–78 (1990)Google Scholar (Kennedy, J., concurring).

89 10 U.S.C. §§950f, 950g. The MCA also does not specify that the Court of Military Commission Review must operate within the United States proper, but presumably it will. Any decision by the secretary of defense to have the court operate outside the United States would serve no purpose but to evade constitutional limits.

90 10 U.S.C. §950d.

91 This is thus not a situation where courts in the United States would be reviewing convictions rendered abroad at the behest of the accused.

92 See text at note 85 supra.

93 Joint Statement of Senators McCain, Warner, and Graham on Individual Rights Under the Geneva Conventions (Sept. 28, 2006), reprinted in 152 Cong. Rec. S10, 401, S10, 402 (daily ed. Sept. 28, 2006). The reference to federal courts suggests that the senators were referring to section 5(a), discussed in text at notes 120–28 infra, which provides that persons may not invoke the Geneva Conventions in certain types of actions in U.S. and state courts. Because section 948b( g) employs the same “may not invoke” locution, the quoted language applies equally to it.

94 Id., 152 Cong. Rec. at S10, 401.

95 See id; see also 152 Cong. Rec. H7535 (daily ed. Sept. 27, 2006) (statement of Rep. Duncan Hunter) (“Section 5 clarifies that the Geneva Conventions are not an enforceable source of rights in any habeas corpus or other civil action or proceeding by an individual in U.S. courts.” (emphasis added)).

96 Even if the Geneva Conventions do not confer private rights of action, they should be enforceable at the behest of criminal defendants having rights under them, as defendants by definition do not seek to maintain an action.

97 See supra text at notes 34–44.

98 Robert Chesney posed the question, and coined the term, as moderator of the AALS Panel, supra note 47. Cf. also Michael C., Dorf, Playing with Fire: The Administration’s Draft Bill on Detainees Would Violate the Geneva Conventions and Thereby Put Americans at Risk (July 31, 2006), available at <http://writ.news.findlaw.com/dorf/20060731.html>>Google Scholar.

99 See, most recently, Payne–Barahona v. Gonzales, 2007 U.S. App. Lexis 449, at *6 (1st Cir. Jan. 10, 2007) (non–self–executing treaties, like unratified treaties, “do not have the force of domestic law”).

100 Detainee Treatment Act of 2005, supra note 23; see Hamdan v. Rumsfeld, 126 S.Ct. at 2775.

101 See discussion of MCA section 5(a) infra. As discussed below, the conformity of actions of U.S. officials with the Geneva Conventions can become an issue in a suit against private parties. See note 122 infra.

102 Such a reading would be in tension, however, with the many statements during the House and Senate debates that even the Geneva Convention provisions that are not judicially enforceable bind the president. See, e.g., H.R. Rep. No. 109–664, pt. 1,at 28 (2006) (“[W]hile [section 6(a) of the administration bill] prohibits any court from treating the Geneva Conventions as a source of rights, this section does not affect the obligations of the United States under the Geneva Conventions; to the contrary, the committee believes that the political branches of the United States remain fully bound by, and will continue to honor, the Conventions whenever and wherever they apply.”); 152 Cong. Rec. S10, 414 (daily ed. Sept. 28, 2006) (statement of Sen. McCain) (“Even if the Geneva Conventions do not enable detainees to sue our personnel for money damages, the President and his subordinates are nevertheless bound to comply. That is clear to me and to all who have negotiated this legislation in good faith.”); see also statements cited infra note 137.

103 Foster v., Neilson, 27 U.S. (2 Pet.) 253, 314 (1829)Google Scholar.

104 See Carlos, Manuel Vázquez, The Four Doctrines of Self–Executing Treaties, 89 AJIL 695, 718–19 (1995)Google Scholar. On this ground, the requirement of Article 129 of the Third Geneva Convention, supra note 4, that grave breaches of common Article 3 be criminalized is non–self–executing.

105 See Vázquez, supra note 104, at 712–15. On this ground, Article 94 of the Fourth Geneva Convention is probably non–self–executing insofar as it requires the detaining power to “encourage intellectual, educational and recreational pursuits, sports and games amongst internees.” Convention [No. IV] Relative to the Protection of Civilian Persons in Time of War, Art. 94, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287 [hereinafter Fourth Geneva Convention].

106 United States v. Percheman, 32 U.S. (7 Pet.) 51, 89 (1833)Google Scholar; see generally Vázquez, supra note 104, at 700–10. Article 50 of the Fourth Geneva Convention, supra note 105, may fall in this category inasmuch as it provides:

As seen in the text at note 25 supra, in a footnote to Johnson v. Eisentrager, the Supreme Court suggested in dictum that the predecessor of the Geneva Conventions was unenforceable in courts because the parties obviously contemplated that disputes would be resolved through diplomatic channels. This argument overlooks that treaties were made the law of the land enforceable in courts to avert U.S. violations that could lead to state–to–state enforcement mechanisms such as war. See generally Brief of Henkin et al., supra note 26. The existence of international dispute settlement mechanisms no more suggests the preclusion of national enforcement mechanisms than the existence of federal courts precludes enforcement of federal law in state courts. The Supreme Court in Hamdan was thus appropriately skeptical of this analysis.

107 See supra notes 104–06.

108 For discussion, see Vázquez, supra note 104, at 706–08.

109 See Sosa v., Alvarez–Machain, 542 U.S. 692, 755 (2004)Google Scholar.

110 Power Auth. of N.Y. v. Fed. Power Comm’n, 247 F.2d 538 (D.C. Cir. 1957)Google Scholar.

111 See, e.g., Jordan J., Paust, Avoiding “Fraudulent” Executive Policy: Analysis of Non–Self–Execution of the Covenant on Civil and Political Rights, 42 Depaul L. Rev. 1257, 1260 (1993)Google Scholar; John, Quigley, The International Covenant on Civil and Political Rights and the Supremacy Clause, 42 Depaul L. Rev. 1287, 1301 (1993)Google Scholar; Stefan A., Riesenfeld & Frederick M., Abbott, The Scope of the U.S. Senate Control over the Conclusion and Operation of Treaties, 67 Chi.– Kentl. Rev. 571, 599 (1991)Google Scholar; David, Sloss, The Domestication of International Human Rights: Non–Self–Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129 (1999)Google Scholar; Charles H., Dearborn, Note, The Domestic Legal Effect of Declarations That Treaty Provisions Are Not Self–Executing, 57 Tex. L. Rev. 233, 243 (1979)Google Scholar; cf. Louis, Henkin, Foreign Affairs and the United States Constitution 202 (2d ed. 1996)Google Scholar (describing practice of attaching such declarations to treaties as “anti–Constitutional”). But see Curtis A., Bradley & Jack L., Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399 (2000)Google Scholar.

112 Cf Carlos, Manuel Vázquez, Laughing at Treaties, 99 Colum. L. Rev. 2154, 2187–88 (1999)Google Scholar (concluding that a “non–self–executing” reservation would be valid and effective).

113 Foster v., Neilson, 27 U.S. (2 Pet.) 253, 314 (1829)Google Scholar.

114 Moreover, while the courts lack the power to require the legislature to legislate, they could easily remedy the constitutional problem regarding a statute purporting to make a self–executing treaty non–self–executing: they could simply nullify the statute and enforce the treaty as originally passed.

115 See Vázquez, supra note 104, at 698–99.

116 Vienna Convention on the Law of Treaties, Art. 27, opened for signature May 23, 1969, 1155 UNTS 331.

117 Cf. Adam, Liptak, Scholars Agree That Congress Could Reject Conventions, but Not That It Should, N.Y. Times, July 15, 2006, at A10 Google Scholar (“Professor Jinks said there was an argument to be made for even an implausible Congressional interpretation of Common Article 3 if the alternative was outright repudiation, if only because the rest of the world might view that as slightly less provocative.”).

118 Another purpose of the Supremacy Clause was to secure for the United States a reputation for treaty compliance, in order to induce other countries to enter into beneficial treaty relations with the new state. Achieving this purpose required the limitation of the political branches’ options once the treaty came into force, which in turn was expected to make the political branches more cautious in entering into treaties in the first place (and presumably remaining party to them when there was no longer a political will to comply).

119 See Foster v., Neilson, 27 U.S. (2 Pet.) 253, 314 (1829)Google Scholar.

120 28 U.S.C. §2241 note.

121 See supra text at notes 93–97.

122 Disputes about the conformity of such activities with the Geneva Conventions can arise in civil actions between private parties. For example, if a U.S. official takes the personal property of an internee and gives or sells it to a private party, the conformity of that action with Article 97 of the Fourth Geneva Convention, supra note 105, could become an issue in a civil action between the internee and the purchaser. Article 97 provides in part: “Internees shall be permitted to retain articles of personal use. Monies, cheques, bonds, etc., and valuables in their possession may not be taken from them except in accordance with established procedure.”

123 The difference between the two versions is shown by their headings. Section 6(b) of the bill proposed by the administration was headed “Rights Not Judicially Enforceable.” S. 3861, supra note 9, §6(b)(1). Section 5(a) of the MCA is headed “Treaty Obligations Not Establishing Grounds for Certain Claims” (emphasis added).

124 Cf. Garcia–Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986).

125 See, e.g., The Paquete Habana, 175 U.S. 677, 700 (1900).

126 See supra notes 9–10 and corresponding text.

127 28 U.S.C. §2241(e)(2).

128 See Hut, supra note 85, at 1374.

129 See INS v. St. Cyr, 533 U.S. 289, 301–02 (2001).

130 For example, where the government has taken property in violation of applicable law, compensation may be required by the Due Process Clause or the Takings Clause. See McKesson Corp. v. Div. of ABT, 496 U.S. 18 (1990)Google Scholar; First Evangelical Lutheran Church v. County of L.A., 482 U.S. 304, 316 n.9 (1987)Google Scholar. Compare Article 97 of the Fourth Geneva Convention, discussed supra note 122.

131 See Matheson, supra note 6, at 50 & nn.9–13.

132 18 U.S.C. §2441 note. The quoted provisions of section 6 appear in §2441 note unless otherwise indicated.

133 Article 129 of the Third Geneva Convention, supra note 4, obligates the parties to criminalize grave breaches of that Convention as specified in Article 130. Article 130 defines grave breaches of the Convention as

134 See Vázquez, supra note 104, at 718 & n.108. But see Jordan, Paust, Self–Executing Treaties, 82 AJIL 760, 775, 780 (1988)Google Scholar.

135 These include “Torture,” “Cruel or Inhuman Treatment,” “Performing Biological Experiments,” “Murder,” “Mutilation or Maiming,” “Intentionally Causing Serious Bodily Injury,” “Rape,” “Sexual Assault or Abuse,” and “Taking Hostages.”

136 City of L.A. v. Lyons, 461 U.S. 95 (1983). Under Lyons, plaintiff would have to show a likelihood that he would be subjected to such treatment again. Another possible plaintiff would be a U.S. soldier claiming that the president’s too narrow interpretation of common Article 3 makes it more likely that other states will narrowly interpret provisions of the Geneva Convention that protect him. That claim, too, is unlikely to satisfy causation and redressability components of standing doctrine. A U.S. unlawful combatant might have a better chance of overcoming standing obstacles, but none is likely to initiate litigation challenging the president’s regulations. Even if standing obstacles were overcome, it would be difficult to maintain that the availability of such a claim was constitutionally required.

137 See 152 Cong. Rec. S10, 399 (daily ed. Sept. 28, 2006) (statement of Sen. McCain) (“Nothing in this bill gives the President the authority to modify the conventions or our obligations under those treaties.”); id. (statement of Sen. Carl Levin) (“[A]ny interpretation issued by the President under this section would only be valid if it is consistent with U.S. obligations under the Geneva Conventions and the Detainee Treatment Act[.]”); id. (statement of Sen. McCain) (agreeing with Levin); id. (statement of Sen. Warner) (agreeing with Levin).