I’m writing … to respond to your assertion that ”it is intellectually dishonest” for me to “ignore” Protocol I, and to your insinuation that I have also ignored the fact that courts traditionally defer to presidential interpretation of treaties. My “Myths” post in fact specifically addresses both of these things — albeit not, of course, in the detail that I would devote to the questions in a longer article. See Myth No. 4 (discussing deference to the President and suggesting that the Court was acting out of the ordinary by not even mentioning it), and Myth No. 5 (which focuses specifically on the Protocol I argument).
Nor should I be accused of “cherry picking” by ignoring the question of how Common Article 3 can and should be judicially enforced. That’s the specific topic of my Myth No. 2. (And, by the way, your suggestion that Common Article 8 should be construed to prevent Common Article 3 from being enforced in domestic courts would mean that the War Crimes Act — imposing criminal culpability for violations of CA3 — would itself violate Common Article 8.) [Emphasis in original.]
Obviously, he makes some fair points here. I should have been clearer that I was undertaking to challenge only Marty’s “Myth Number 8,” which is the one employed by Andrew Sullivan to challenge NRO’s article. I did not do a comprehensive critique of Marty’s analysis. I don’t believe I insinuated that he ignored the tradition of deference to the president, but I certainly did accuse him of ignoring Protocol I. As he says, he did address Protocol I elsewhere in his analysis. I didn’t realize that. I don’t agree with his analysis, but it is thoughtful.
I disagree with Marty’s contention that his Myth Number 2 disproves my cherry-picking point. I encourage everyone to read it on its own merits. Myth Number 2 does not address the fact that the Geneva Conventions, by their own terms, do not provide for judicial enforcement, and therefore that the Hamdan Court, and admirers of its decision, are cherry-picking when they incorporate into the UCMJ only Common Article 3 but not the other Common Articles (like 8 and 11) which demonstrate that the parties to Geneva intended other types of compliance mechanisms, not judicial enforcement.
For me, Marty’s counter about the War Crimes Act misses the point. I don’t believe Hamdan critics contend (I know I certainly don’t) that Congress could not, if it wished, enact legislation tomorrow that predicates all kinds of judicially enforceable punishments/benefits on the provisions of the Geneva Conventions.
What we are talking about here is whether, in the absence of such legislation, courts on their own may construe a treaty to be judicially enforceable when (a) the terms of the treaty not only don’t provide for it but provide for other enforcement methods, (b) there is a long tradition of presuming that treaties do not create individually enforceable rights, and (c) the political branches, particularly in times of national crisis, ought to be able to rely on the courts to abide by their long traditions, rather than pulling the rug out from under settled assumptions.
In any event, I commend to readers these and the rest of Marty’s Myths. They form as comprehensive a statement of the pro-Hamdan position as one will find — on that much, I agree with Andrew Sullivan.