International law and constitutional interpretation: The commander in chief clause reconsidered

Michigan Law Review

Volumn 106, Issue 1, 2007, Pages 61-100

  Wuerth, Ingrid Brunk ^a  

^a VANDERBILT UNIVERSITY   (United States)

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EID: 35348833621     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (454)

1. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952) (Jackson, J., concurring);
2. W. TAYLOR REVELEY III, WAR POWERS OF THE PRESIDENT AND CONGRESS 1, 7-9 (1981);
3. CLINTON ROSSITER, THE SUPREME COURT AND THE COMMANDER IN CHIEF 5 (1951);
4. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2051 (2005).
5. See Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution means by "Declare War", 93 CORNELL L. REV. (forthcoming 2007), available at http://ssrn.com/abstract= 977244 (collecting important examples of academic work on the Declare War Clause);
6. Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1544 nn.1-2 (2002).
7. See Brief for Respondents at 18-23, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184), available at http://www.usdoj.gov/osg/briefs/ 2005/3mer/2mer/2005-0184.mer.aa.pdf (military trials);
8. Brief for the Petitioner at 27-38, Rumsfeld v. Padilla, 542 U.S. 426 (2004) (No. 03-1027), available at http://www.usdoj.gov/osg/briefs/2003/ 3mer/2mer/2003-1027.mer.aa.pdf (military detentions);
9. Opening Brief for the Appellant at 52-57, Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005) (No. 05-6396) (military detentions);
10. U.S. DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 6-10 (2006), available at http://www.usdoj.gov/opa/ whitepaperonnsalegalauthorities.pdf (wiretapping);
11. Memorandum from Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep't of Justice, to Alberto R. Gonzales, Counsel to the President 31-39 (Aug. 1, 2002) [hereinafter Bybee Interrogation Memorandum], available at http://www.washingtonpost.com/wp-srv/nation/ documents/ dojinterrogationmemo20020801.pdf (interrogations).
12. See Bybee Interrogation Memorandum, supra note 3, at 39;
13. see also Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights during Wartime, 5 THEORETICAL INQUIRIES L. 1, 32 (2004);
14. Reid Skibell, Separation-of-Powers and the Commander in Chief: Congress's Authority to Override Presidential Decisions in Crisis Situations, 13 GEO. MASON L. REV. 183, 190-93 (2004).
15. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2772-75 (2006);
16. Hamdi v. Rumsfeld, 542 U.S. 507, 516-24 (2004) (plurality opinion).
17. See Hamdan, 126 S. Ct. 2749;
18. see also Duncan v. Kahanamoku, 327 U.S. 304 (1946);
19. Ex parte Endo, 323 U.S. 283 (1944);
20. Ex porte Milligan, 71 U.S. (4 Wall.) 2 (1866);
21. Brown v. United States, 12 U.S. (8 Cranch) 110 (1814).
22. See President's Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006, 41 WEEKLY COMP. PRES. DOC. 1918 (Dec. 30, 2005), available at http:// www.whitehouse.gov/news/releases/2005/12/20051230-8.html (last visited May 17, 2007).
23. See S. Amend. 4882 to H.R. 5631, 109th Cong. (2d Sess. 2006), 152 CONG. REC. S8975 (daily ed. Sept. 5, 2006).
24. See Hamdan, 126 S. Ct. at 2774 (noting this as an open issue).
25. See, e.g., EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1984, at 294-95 (5th ed. 1984);
26. J.G. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 371-78 (rev. ed. 1963);
27. WILLIAM WHITING, WAR POWERS UNDER THE CONSTITUTION OF THE UNITED STATES 53 (2d ed. 1871);
28. QUINCY WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 298-301 (1922);
29. FRANCIS D. WORMUTH & EDWIN B. FIRMAGE, TO CHAIN THE DOG OF WAR 113-14 (2d ed. 1989);
30. Letter from Abraham Lincoln to James C. Conklin (Aug. 26, 1863), in 6 THE COLLECTED WORKS OF ABRAHAM LINCOLN 408 (Roy Basler ed., 1953);
31. Jack Goldsmith, Justice Jackson's Unpublished Opinion in Ex Parte Quirin, 9 GREEN BAG 2D 223, 227 (2006);
32. David Golove, Military Tribunals, International Law, and the Constitution: A Franckian-Madisonian Approach, 35 N.Y.U. J. INT'L L. & POL. 363 (2003);
33. Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259, 1270 (2002);
34. Abraham D. Sofaer, The Power Over War, 50 U. MIAMI L. REV. 33, 42, 50-51 (1995).
35. E.g., Brief for Respondents at 20-21, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184), available at http://www.usdoj.gov/osg/ briefs/2005/3mer/2mer/2005-0184.mer.aa.pdf;
36. Brief for the Petitioner at 27-30, Rumsfeld v. Padilla, 542 U.S. 426 (2004) (No. 03-1027), available at http://www.usdoj.gov/osg/briefs/2003/ 3mer/2mer/2003-1027.mer.aa.pdf;
37. Brief for the Respondents at 13-18, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696), available at http://www.usdoj.gov/osg/briefs/2003/ 3mer/2mer/2003-6996.mer.aa.pdf;
38. Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, 98 AM. J. INT'L L. 69 (2004);
39. Alberto R. Gonzales, Attorney Gen., U.S. Dep't of Justice, Prepared Remarks Chicago Law School (Nov. 9, 2005), available at http://www.usdoj.gov/ag/speeches/2005/ag_speech_0511092.html (last visited May 17, 2007).
40. See Sarah H. Cleveland, Our International Constitution, 31 YALE J. INT'L L. 1, 19-26 (2006) (describing cases);
41. Golove, supra note 10 (same).
42. See Hamdi v. Rumsfeld, 337 F.3d 335, 341-45 (4th Cir. 2003) (Wilkinson, J., concurring);
43. id. at 351-52, 355 (Traxler, J., concurring);
44. Hamdi v. Rumsfeld, 316 F.3d 450, 468-69, 474 (4th Cir. 2003), vacated, 542 U.S. 507 (2004) (plurality opinion);
45. Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002);
46. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002), modified sub nom.
47. Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), rev'd 542 U.S. 426 (2004).
48. Originalism as used here means the text of the Constitution as it would have been understood when it was enacted. See generally RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 89-130 (2004).
49. See infra Sections II.B and II.C.
50. Cass R. Sunstein, Burkean Minimalism, 105 MICH. L. REV. 353, 389 (2006).
51. Functionalism as used here means an approach that focuses on the "core function" of each branch and allows flexibility in how power is allocated among them. See Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1736-37 (1996);
52. Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions - A Foolish Inconsistency?, 72 CORNELL L. REV. 488, 489 (1987).
53. See infra notes 72-80 and accompanying text.
54. See infra notes 27-28 and accompanying text and Section III.B (discussing these and other powers of Congress related to war).
55. See, e.g., Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 CORNELL L. REV. 97 (2004);
56. Arthur M. Weisburd, The Executive Branch and International Law, 41 VAND. L. REV. 1205 (1988). Other general arguments about the respective powers of Congress and the president could also affect some of the analysis in this Article, but they, too, are analytically distinct. For example, some have suggested that Congress can regulate all aspects of presidential power under the Necessary and Proper Clause.
57. See, e.g., Saikrishna Prakash, Regulating Presidential Powers, 91 CORNELL L. REV. 215, 226-27, 231-35 (2005) (reviewing HAROLD J. KRENT, PRESIDENTIAL POWERS (2005)). The appropriate deference to the executive branch in determining the content of international law is another related, but analytically distinct, issue.
58. See infra text accompanying notes 212-216.
59. The two issues overlap, however: direct enforcement of international law against the president may depend on the scope of his independent Article II powers. The scope of the president's constitutional power, this Article argues, may depend itself in part on international law.
60. See, e.g., Michael D. Ramsey, Torturing Executive Power, 93 GEO. L.J. 1213, 1232-33 (2005) (noting distinctions between self-executing and non-self-executing treaties in determining whether the president is bound by treaties).
61. See, e.g., Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000) (rejecting a lawsuit by congressmen alleging that President Clinton exceeded his war powers under the Constitution, though disagreeing as to whether the claim was justiciable).
62. Cf. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive During the First Half-Century, 47 CASE W. RES. L. REV. 1451, 1463-72 (1997) (emphasizing the importance of coordinate constitutional interpretation, particularly by the executive branch, in separation of powers cases);
63. H. Jefferson Powell, The President's Authority over Foreign Affairs: An Executive Branch Perspective, 67 GEO. WASH. L. REV. 527, 530-35 (1999) (discussing executive and legislative interpretation of the Constitution).
64. As used here, an exclusive power is one that the president can exercise even over the objection of Congress. A concurrent power is one that the president can exercise when Congress is otherwise silent, but not over the objection of Congress.
65. H. JEFFERSON POWELL, THE PRESIDENT'S AUTHORITY OVER FOREIGN AFFAIRS 20 (2002);
66. see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643-44 (1952) (Jackson, J., concurring);
67. Mark E. Brandon, War and American Constitutional Order, 56 VAND. L. REV. 1815, 1842-43 (2003).
68. U.S. CONST. art II.
69. Id. art. I, § 8.
70. See infra notes 119-126 and accompanying text.
71. See POWELL, supra note 26;
72. REVELEY, supra note 1;
73. THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 317-20 (Max Farrand ed., 1937).
74. The ratification debates did question whether the president should be permitted to command in person. See Patrick Henry, Statement at the Virginia Ratifying Convention (June 5, 1788), reprinted in 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 59-60 (Jonathan Elliot ed., 2d ed., Phila., J.B. Lippincott & Co. 1866) (1836);
75. see also infra note 185 and accompanying text.
76. See CORWIN, supra note 10, at 288;
77. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643-44 (1952);
78. Ex porte Milligan, 71 U.S. (4 Wall.) 2, 126 (1866).
79. See Goldsmith, supra note 10, at 237;
80. see also Youngstown, 343 U.S. at 644 (Jackson, J., concurring).
81. Ramsey, supra note 22, at 1241-42 n.116;
82. see also Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850);
83. THE FEDERALIST NO. 69, at 460 (Alexander Hamilton) (Paul Leicester Ford ed., N.Y., Henry Holt & Co. 1898) ("It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy.").
84. Philip Bobbitt, War Powers: An Essay on John Hart Ely's War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath, 92 MICH. L. REV. 1364, 1391 (1994).
85. Peter Raven-Hansen & William C. Banks, Pulling the Purse Strings of the Commander in Chief, 80 VA. L. REV. 833, 903 (1994);
86. see also WILLIAM HOWARD TAFT, OUR CHIEF MAGISTRATE AND HIS POWERS 129 (H. Jefferson Powell ed., Carolina Academic Press 2002) (1916);
87. cf. Youngstown, 343 U.S. at 643-44 (Jackson, J., concurring) ("[Congress] is also empowered to make rules for the 'Government and Regulation of land and naval Forces,' by which it may to some unknown extent impinge upon even command functions." (quoting U.S. CONST. art. I, § 8, cl. 14)).
88. See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2, 126 (1866) (reasoning that Indiana was not "on the theatre of active military operations");
89. id. at 140 (Chase, C.J., concurring) (reasoning that Indiana was on "the theatre of military operations");
90. Hamdi v. Rumsfeld, 337 F.3d 335, 351 (4th Cir. 2003) (Traxler, J., concurring) (arguing, in the denial of rehearing en banc, that Hamdi's detention fell within the "[e]xecutive's wartime powers under Article II" because he was captured in a "foreign combat zone"), vacated, 542 U.S. 507 (2004) (plurality opinion);
91. id. at 358-59 (Luttig, J., dissenting) (criticizing Traxler's argument);
92. id. at 372-74 (Motz, J., dissenting) (same). Justice Jackson withdrew his separate opinion in Ex parte Quirin and the distinction between inward and outward action from his Youngstown concurrence has attracted little attention.
93. JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11, at 18-22 (2005);
94. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 234 (2001) [hereinafter Prakash & Ramsey, The Executive Power].
95. Contra Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004) (criticizing the Vesting Clause thesis).
96. For a response to Bradley and Flaherty's criticism, see Saikrishna B. Prakash & Michael D. Ramsey, Foreign Affairs and the Jeffersonian Executive: A Defense, 89 MINN. L. REV. 1591, 1624-25 n.120 (2005) [hereinafter Prakash & Ramsey, Foreign Affairs].
97. Cf. John Yoo, Transferring Terrorists, 79 NOTRE DAME L. REV. 1183, 1200-01 (2004) ("Even if the Constitution's entrustment of the Commander in Chief power to the President did not bestow upon him the authority to make unilateral determinations regarding the disposition of captured enemies, the President would nevertheless enjoy such a power by virtue of the broad sweep of the Vesting Clause.").
98. Bradley & Flaherty, supra note 38, at 555.
99. Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. ILL. L. REV. 1, 28-30;
100. Ramsey & Prakash, The Executive Power, supra note 38, at 259.
101. For example, Prof. Yoo's discussion about prisoners concludes, based on "structural" arguments, that "[t]he handling and disposition of individuals captured during military operations requires command-type decisions and the swift exercise of judgment that can only be made by 'a single hand.'" Yoo, supra note 39, at 1200 (citing THE FEDERALIST NO. 74, at 500 (Alexander Hamilton) (Jacob E. Cooke ed., 1982)).
102. On Yoo as an originalist, see John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 172 (1996) (defending originalism in the interpretation of war powers)
103. Yoo, supra note 39, at 1204-05.
104. Michael Stokes Paulsen, The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257, 1276 (2004);
105. see also id. at 1267-69.
106. Id. at 1283.
107. Id. at 1289.
108. Michael Stokes Paulsen, The Emancipation Proclamation and the Commander in Chief Power, 40 GA. L. REV. 807, 812-13 (2006).
109. U.S. CONST. art. I, § 8, cl. 10.
110. CORWIN, supra note 10, at 263-68;
111. REVELEY, supra note 1, at 135-70;
112. see Brandon, supra note 26, at 1847-18;
113. Cass R. Sunstein, Minimalism at War, 2004 SUP. CT. REV. 47, 68 (2004).
114. CORWIN, supra note 10, at 269-70;
115. W. Michael Reisman, War Powers: The Operational Code of Competence, 83 AM. J. INT'L L. 777, 778-81 (1989);
116. Jane E. Stromseth, Understanding Constitutional War Powers Today: Why Methodology Matters, 106 YALE L.J. 845, 888 (1996) (book review);
117. Office of the Legal Adviser, Dep't of State, The Legality of the United States Participation in the Defense of Viet Nam, 75 YALE L.J. 1085, 1101 (1966).
118. See infra Sections III.A-B;
119. see also Charles A. Lofgren, On War-Making, Original Intent, and Ultra-Whiggery, 21 VAL. U. L. REV. 53, 57 (1986) (arguing that the ratifiers of the Constitution had a narrow conception of the president's power as commander in chief).
120. See Sunstein, supra note 16, at 400-02 (suggesting that originalism might be an unattractive method of interpretation in war powers and national security cases).
121. See, e.g., Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995).
122. See JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993).
123. See Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 TEX. L. REV. 961, 975-81, 1008-09 (2001);
124. Stromseth, supra note 50, at 872-75, 878;
125. Sunstein, supra note 16, at 389-91.
126. See infra text accompanying notes 94-95.
127. E.g., Spiro, supra note 55;
128. Sunstein, supra note 16.
129. See Ludecke v. Watkins, 335 U.S. 160, 170 (1948);
130. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936);
131. Thomasson v. Perry, 80 F.3d 915, 926 (4th Cir. 1996);
132. Tozer v. LTV Corp., 792 F.2d 403, 405 (4th Cir. 1986);
133. see also Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2823-26 (2006) (Thomas, J., dissenting);
134. Hamdi v. Rumsfeld, 542 U.S. 507, 582-83 (2004) (Thomas, J., dissenting);
135. Gilligan v. Morgan, 413 U.S. 1, 10 (1973);
136. Sunstein, supra note 16, at 401.
137. See Hamdan, 126 S. Ct. at 2823-26 (Thomas, J., dissenting);
138. Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948);
139. Curtiss-Wright, 299 U.S. at 320;
140. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 768 (Ronald D. Rotunda & John E. Nowak eds., 1987);
141. see also WILLIAM H. REHNQUIST, ALL THE LAWS BUT ONE: CIVIL LIBERTIES IN WARTIME 205 (Vintage Books 2000) (1998).
142. See REHNQUIST, supra note 59;
143. ROSSITER, supra note 1, at 91 (asserting judges, like the general public, like to "win wars").
144. See Issacharoff & Pildes, supra note 4, at 8-30 (describing this trend in detail).
145. Issacharoff and Pildes use the term "second-order issues" in a similar way to describe judicial decision-making based on "appropriate institutions and processes" rather than "abstract disputes over the meaning of various 'rights.'" Id. at 44.
146. See infra notes 94-95 and accompanying text;
147. cf. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003);
148. Dames & Moore v. Regan, 453 U.S. 654 (1981).
149. E.g., Duncan v. Kahanamoku, 327 U.S. 304, 324 (1946);
150. In re Yamashita, 327 U.S. 1, 11, 25 (1946);
151. Hirabayashi v. United States, 320 U.S. 81, 97-101 (1943);
152. Ex parte Quirin, 317 U.S. 1, 35, 48 (1942);
153. cf. The Prize Cases, 67 U.S. (2 Black) 635, 670-71 (1862) (reasoning that because Congress had retroactively blessed the forfeitures, the Court did not have to decide whether such act was "necessary under the circumstances").
154. See supra note 6 and accompanying text.
155. See Issacharoff & Pildes, supra note 4;
156. Sunstein, supra note 16, at 394-95;
157. Laurence H. Tribe & Patrick O. Gudridge, The Anti-Emergency Constitution, 113 YALE L.J. 1801, 1832-40 (2004).
158. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 119, 139-40, 148 (1990);
159. Patricia L. Bellia, Executive Power in Youngstown's Shadow, 19 CONST. COMMENT. 87, 145 (2002).
160. In Hamdi, Justices O'Connor, Kennedy, Breyer, and Thomas, and Chief Justice Rehnquist concluded that the detentions were authorized by Congress. See Hamdi v. Rumsfeld, 542 U.S. 507, 516-24 (2004) (O'Connor, J., plurality opinion) (joined by Rehnquist, C.J., and Kennedy & Breyer, JJ.);
161. id. at 587 (Thomas, J., dissenting). Four Justices concluded that the detentions were not authorized by Congress.
162. Id. at 541-53 (Souter, J., concurring in part, dissenting in part) (joined by Ginsburg, J.);
163. id. at 574 (Scalia, J., dissenting) (joined by Stevens, J.). In Hamdan, the Court held that the military commissions exceeded the limits that Congress had placed on the president.
164. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2796-97 (2006). Four Justices, however, would have gone further and held that the president's actions violated the statute in additional ways.
165. Id. at 2775-86, 2796-98 (opinion of Stevens, J., joined by Breyer, Souter, & Ginsburg, J.J.). The three dissenting justices concluded that the commissions were authorized by Congress.
166. Id. at 2823-49 (Thomas, J., dissenting) (joined by Scalia, J., and joined in part by Alito, J.). Justice Alito, however, did not join all of this analysis.
167. Id. at 2849-50 (Alito, J., dissenting).
168. See Bellia, supra note 66, at 148-54 (detailing problems with analysis of congressional authorization);
169. Curtis A. Bradley et al., January 9, 2006 Letter from Scholars and Former Government Officials to Congressional Leadership in Response to Justice Department Letter of December 22, 2005, 81 IND. L.J. 1364, 1365-67 (2006) [hereinafter Letter to Congressional Leadership] (arguing, contrary to the Department of Justice, that Congress had not authorized electronic surveillance of persons in the United States).
170. See, e.g., Issacharoff & Pildes, supra note 4, at 44 (noting that when he acts contrary to Congress, the president's actions are struck down or receive closer scrutiny);
171. Sunstein, supra note 49, at 77 ("[A]s a general rule, the executive should not be allowed to proceed on its own.").
172. See, e.g., John O. McGinnis, Foreign to Our Constitution, 100 NW. U. L. REV. 303 (2006).
173. Professors Bradley and Goldsmith are "skeptical" that international law can serve as a tool to interpret the Commander in Chief Clause, in part because the laws of war are more restrictive today than they were at the framing: thus, "[i]f the Commander in Chief Clause itself incorporates evolving law-of-war restrictions, the scope of the Commander-in-Chief power would have shrunk significantly during the past two centuries, which is contrary to constitutional history." Bradley & Goldsmith, supra note 1, at 2097 n.220. But this argument holds only if international law serves as the sole tool of constitutional interpretation. The Department of Justice argues, for example, that as commander in chief, the president has the constitutional authority to conduct surveillance in the United States without a warrant.
174. See Letter from William E. Moschella, Assistant Attorney Gen., Dep't of Justice, to Pat Roberts, Chairman, Senate Select Comm. on Intelligence, et al. (Dec. 22, 2005), available at http://www.fas.org/irp/agency/doj/ fisa/doj122205.pdf.
175. For an argument contrary to the position of the Department of Justice, see Letter to Congressional Leadership, supra note 68. Assuming the position of the Justice Department is correct, the president's power over time may have expanded in an area that is simply unregulated by international law. Moreover, in many areas regulated in detail by international law, such as the trial and detention of prisoners, it is unclear that the president today does enjoy greater constitutional authority than he did at the framing.
176. See Hamdan, 126 S. Ct. 2749.
177. U.S. CONST. art. II, § 2, cl. 2.
178. Id.
179. Id. art. I, § 7.
180. See Louis HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 184 (2d ed. 1996).
181. The last-in-time rule does not undermine this conclusion. The rule provides that if a treaty and federal statute conflict, the one later enacted controls. Id. at 209. Because the rule puts treaties and statutes on equal footing, it might seem to conflict with the foregoing analysis, which distinguishes between treaties and statutes. The last-in-time rule, however, resolves direct conflicts between statutes and treaties, when courts must pick which to apply.
182. See, e.g., Whitney v. Robertson, 124 U.S. 190 (1888). The point here, by contrast, is that treaties have special significance in separation of powers contexts, where the fundamental question is the scope of the president's constitutional power.
183. 542 U.S. 507, 536-37 (2004) (plurality opinion) (reasoning that the AUMF does not authorize indefinite detention, which would violate the Geneva Conventions).
184. See supra notes 61-64 and accompanying text.
185. See, e.g., John B. Bellinger III, Legal Adviser to the Sec'y of State, Remarks at the Duke Law School Center for International and Comparative Law: Reflections on Transatlantic Approaches to International Law (Nov. 15, 2006), available at http://www.state.gov/s/l/rls/77279.htm (last visited May 17, 2007) ("[W]e take our international obligations seriously[;] we do not enter into them lightly.").
186. See Josh White, President Relents, Backs Torture Ban; McCain Proposal Had Veto-Proof Support, WASH. POST, Dec. 16, 2005, at A1.
187. 126 S. Ct. 2749, 2799 (2006) (Kennedy, J., concurring in part).
188. The treaty power was lodged with the Senate, as opposed to the House, because it was viewed as particularly important. The smaller number of senators, their longer tenure, and their method of selection ensured that the power was lodged with those "who best understand our national interests, whether considered in relation to the several States or to foreign nations; who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence." THE FEDERALIST, supra note 34, No. 64, at 428 (John Jay).
189. HENKIN, supra note 75, at 175 n.2;
190. John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703, 760-63 (2002);
191. John K. Setear, The President's Rational Choice of a Treaty's Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement?, 31 J. LEGAL STUD. 5, 7-8 (2002).
192. Setear, supra note 83, at 15-16;
193. see also Lawson & Seidman, supra note 41, at 12 (emphasizing that treaties, but not statutes, can create legally binding obligations with other countries).
194. This analysis would not impact the president's power to withdraw from a treaty when such withdrawal is consistent with the treaty itself and international law. See Laurence R. Heifer, Exiting Treaties, 91 VA. L. REV. 1579, 1589 (2005) (distinguishing between exiting and breaching treaties). This analysis also does not limit the ability of the president and Congress acting together to violate or renounce U.S. obligations under international law. Moreover, in situations requiring an immediate response to an emergency, other functional and/or textual arguments could weigh in favor of the president's power to act, even in ways contrary to a treaty. The extent to which the president is bound by treaties and other forms of international law is contested and beyond the scope of this article.
195. See text accompanying notes 21-23.
196. See, e.g., Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 378 (7th Cir. 1985).
197. See International Covenant on Civil and Political Rights, 138 CONG. REC. S8069-71 (1992).
198. See Cleveland, supra note 12, at 118-19 (arguing that non-self-executing treaties can serve to interpret the Constitution).
199. See, e.g., Geneva 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, 75 U.N.T.S. 85;
200. Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 31;
201. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135;
202. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter, collectively, Geneva Conventions].
203. See, e.g., Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 116 (1804);
204. see also Ingrid Brunk Wuerth, Authorizations for the Use of Force, International Law, and the Charming Betsy Canon, 46 B.C. L. REV. 293, 330-31 (2005).
205. See Whitney v. Robertson, 124 U.S. 190 (1888);
206. see also supra note 76.
207. Cf. Act of Mar. 3, 1799, ch. 45, 1 Stat. 743 ("[T]he President . . . is hereby empowered and required to cause the most rigorous retaliation to be executed on any such citizens of the French Republic, as have been or hereafter may be captured in pursuance of any of the laws of the United States.").
208. The historical argument cuts the other way, however. See infra text accompanying notes 203-204.
209. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 413-17 (2003);
210. Dames & Moore v. Regan, 453 U.S. 654, 679, 682-83 (1981).
211. See generally KOH, supra note 66, at 70-71;
212. Bobbin, supra note 35, at 1383-87;
213. Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. REV. 109 (1984);
214. Stromseth, supra note 50, at 875-82;
215. Yoo, supra note 39, at 1204-05.
216. Justice Frankfurter reasons that "[d]eeply embedded traditional ways of conducting government" can "give meaning to the words of a text": [A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on 'executive Power' vested in the President by [Article II, Section 1]. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring).
217. Grant R. Doty, The United States and the Development of the Laws of Land Warfare, 156 MIL. L. REV. 224, 238-39 (1998);
218. W. Hays Parks, Means and Methods of Warfare, 38 GEO. WASH. INT'LL. REV. 511 (2006).
219. See, e.g., INT'L & OPERATIONAL LAW DEP'T, JUDGE ADVOCATE GEN.'S SCH., OPERATIONAL LAW HANDBOOK 28 (2003);
220. U.S. DEP'T OF DEE, DIRECTIVE NO. 5100.77, DOD LAW OF WAR PROGRAM (1998).
221. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2775-86 (2006).
222. A norm of customary international law to which the United States had persistently objected would not be binding on the United States and would not have the interpretative value described here. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 11 (6th ed. 2003). Customary international law to which the United States has not announced its adherence (but to which it has not objected) might have some role in constitutional interpretation. Claims of military necessity are, as we have seen, especially difficult for courts to evaluate. If the president claims that a particular power is essential to the conduct of war, and many countries have renounced that power through international obligations, the president's functional claim may be weakened. The strength of that conclusion may vary based on the universality of the norm in question.
223. See Cleveland, supra note 12, at 113-15 (discussing norm universality).
224. See MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 55-59 (1990);
225. Spiro, supra note 55, at 1015-16 (emphasizing the importance of repetition and longevity when relying on past practice);
226. Stromseth, supra note 50, at 880 (emphasizing the importance of consistency when relying on past practice).
227. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 75, June 8, 1977, 1125 U.N.T.S. 3.
228. Id. This language is much more detailed than Common Article III of the Geneva Conventions.
229. See Derek Jinks, The Declining Significance of POW Status, 45 HARV. INT'L L.J. 367, 412-13 (2004) (discussing the relationship between Common Article 3 and Article 75).
230. See George H. Aldrich, Prospects for United States Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 AM. J. INT'L L. 1, 2-3 (1991);
231. see also 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 459 (1982) (detailing the U.S. position on aspects of Article 75).
232. See Aldrich, supra note 103, at 2-3.
233. See Michael J. Matheson, Continuity and Change in the Law of War: 1975-2005: Detainees and POWs, 38 GEO. WASH. INT'L L. REV. 543, 546 (2006);
234. see also Guy B. Roberts, The New Rules for Waging War: The Case Against Ratification of Additional Protocol 1, 26 VA. J. INT'L L. 109 (1985) (providing detailed criticism of parts of Protocol I, but not Article 75);
235. George H. Aldrich, Progressive Development of the Laws of War: A Reply to Criticisms of the Proposed 1977 Geneva Convention Protocol 1, 26 VA. J. INT'L L. 693, 699 (1986) (describing Article 75 as "warmly welcomed" by the United States in 1977).
236. Matheson, supra note 105 at 546;
237. Michael J. Matheson, Deputy Legal Adviser, U.S. Dep't of State, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, Remarks at the Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law (Jan. 22, 1987), in 2 AM. U. J. INT'L L. & POL'Y 419, 420-21 (1987). Multinational and "coalition deployments," such as those involving NATO forces, typically use Protocol I
238. See Jinks, supra note 102, at 431.
239. A claim by the president that he has constitutional authority to try combatants by military commission absent congressional authorization, for example, would be functionally strengthened if the commission comported with Article 75. The Bush administration may be reconsidering its adherence to Article 75. See Geoffrey S. Corn, Hamdan, Fundamental Fairness, and the Significance of Additional Protocol II, ARMY LAW., Aug. 2006, at 1, 6 (comparing the U.S. Army Judge Advocate General's Legal Center and School Operational Handbooks from 2003 and 2006 and suggesting that the government is rolling back its commitments to Protocol I in general).
240. See Wuerth, supra note 90, at 330.
241. See id.
242. Id. at 336-37.
243. See, e.g., Bradley & Goldsmith, supra note 1;
244. Wuerth, supra note 90.
245. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring).
246. Id. at 637.
247. Id.
248. See supra Section II.A.
249. See supra Section II.B.
250. U.S. CONST. art. II, § 2
251. Id. art II, § 1;
252. see also supra notes 38-43 and accompanying text.
253. E.g., DEL. CONST. OF 1776, art. 9;
254. PA. CONST. OF 1776, § 20;
255. N.H. CONST. OF 1784, pt. II;
256. S.C. CONST. OF 1778, art. UI;
257. VT. CONST. OF 1786, ch. II, § xi.
258. CHARLES OSCAR PAULLIN, THE NAVY OF THE AMERICAN REVOLUTION 52 (1906).
259. Id. at 52-53.
260. For an example of a colonial governor with the commander in chief title, see JOHN FRANKLIN JAMESON, PRIVATEERING AND PIRACY IN THE COLONIAL PERIOD 378 (1923).
261. EMMERICH DE VATTEL, THE LAW OF NATIONS 299 (Joseph Chitty, ed., Phila., T & J.W. Johnson & Co. 1863) (1758).
262. The New Jersey Plan referred to the President's power to "direct all military operations." 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 30, at 244. Hamilton's proposal gave the president the power of "direction" of war "when authorized or begun."
263. Id. at 292.
264. Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE LJ. 672, 679 (1972).
265. Id. at 675-77.
266. ELY, supra note 54, at 5;
267. POWELL, supra note 26, at 115-17 (describing the discussion about the change at the Constitutional Convention).
268. U.S. CONST. art. I, § 8.
269. Id. Jefferson Powell notes that this power is "associate[d] " with "the power to 'define . .. Offences against the Law of Nations.'"
270. POWELL, supra note 26, at 114 (quoting U.S. CONST. art. I, § 8).
271. U.S. CONST. art. 1, § 8.
272. Ramsey, supra note 2, at 1569-90 (describing three views of the role of formal declarations of war in international law);
273. Robert F. Turner, Essay, War and the Forgotten Executive Power Clause of the Constitution: A Review Essay of John Hart Ely's War and Responsibility, 34 VA. J. INT'L L. 903, 907 (1994);
274. Yoo, supra note 42, at 242.
275. 3 HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE 1238 (Richard Tuck ed., Liberty Fund 2005) (1625);
276. Graver Clark, The English Practice With Regard to Reprisals by Private Persons, 27 AM. J. INT'L. L. 694 (1933).
277. See also G.F. DE MARTENS, AN ESSAY ON PRIVATEERS, CAPTURES, AND PARTICULARLY ON RECAPTURES 10-12 (Thomas Hartwell Home trans., Lawbook Exchange 2004) (1801). Martens explains that a letter of reprisal permitted seizure of goods only within the jurisdiction of the sovereign who granted them, while a letter of marque "authorized the seizure of them beyond the confines of his territory."
278. Id. at 11. Martens and others conclude, however, that "these two expressions" have been "confounded, and are indiscriminately used now to designate both."
279. Id. Some writers distinguished letters of marque on the one hand from letters of marque and reprisal on the other, based on whether they were issued during times of war (marque) or times of peace (marque and reprisal).
280. See, e.g., HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW § 292 n.151 (George Grafton Wilson ed., Oxford Univ. Press 1936) (1836).
281. See, e.g., GROTIUS, supra note 131;
282. MARTENS, supra note 131.
283. See VATTEL, supra note 122, at 385 n.168 (using "capture" to describe both moveable and immoveable property found on both land and water). Vattel lists "captures" under the heading of "war" in his index.
284. Id. at 626, 655.
285. See RICHARD LEE, A TREATISE OF CAPTURES IN WAR (photo, reprint 1967) (1759).
286. See Yoo, supra note 42, at 251-52.
287. See, e.g., 3 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 373 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1905) (authorizing the seizure of all "ships of war, frigates, sloops, cutters, and armed vessels as are or shall be employed in the present cruel and unjust war against the United Colonies");
288. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 230 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1906) (expanding authorized captures to include all ships and other vessels "belonging to any inhabitant or inhabitants" of Great Britain);
289. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 606 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1906) (expanding authorized captures to include all ships and other vessels "belonging to any subject or subjects of the King of Great Britain, except the inhabitants of the Bermudas, and Providence or Bahama islands");
290. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 339 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1907) (expanding authorized captures to include "all ships and other vessels whatsoever, carrying ... contraband goods" to the British);
291. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 905 (Gaillard Hunt ed., William S. Hein & Co. 2005) (1910) (requiring that vessels "commanded by the United States" conform to the regulations on neutral vessels passed by Russia);
292. REVOLUTIONARY DIPLOMATIC CORRESPONDENCE OF THE UNITED STATES 80-81 (Francis Wharton ed., Wash., Gov't Printing Office 1889) [hereinafter RDC].
293. The form of Commission issued by Congress on April 2, 1776, authorized private vessels and their crews "by force of arms, to attack, seize and take the ships and other vessels belonging to the inhabitants of Great Britain." 4 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 248.
294. See, e.g., id. at 254 (prohibiting the threat of persons "contrary to common usage, and the practice of civilized nations in war");
295. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 295 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1908) ("[I]f the enemy will not consent to exempt citizens from capture, agreeably to the law of nations, the commissioners be instructed positively to insist on their exchange, without any relation to rank.").
296. 13 JOURNALS OF THE CONTINENTAL CONGRESS 17741789, at 104 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1909).
297. 3 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 374 ("[A]ll prosecutions shall be commenced in the court of that colony in which the captures shall be made . . . .");
298. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 340 (authorizing private vessels also to take prizes "into any port or harbour within the dominions of any neutral state willing to admit the same");
299. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 137, at 88. For public vessels Congress also determined how prize was to be divided among officers and men.
300. E.g., 4 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 36.
301. E.g., 10 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 137, at 88.
302. 4 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 250.
303. See Gregg L. Lint, The American Revolution and the Law of Nations, 1776-1789, 1 DIPLOMATIC HIST. 20, 24-26 (1977).
304. Letter from Franklin to Vergennes (June 18, 1780), in 3 RDC, supra note 135, at 801, 801-02 (responding to Dutch complaints about the American privateer Black Prince and explaining why the American captors were entitled to the enemy property on board);
305. Letter from B. Franklin to the President of Congress (Aug. 9, 1780), in 4 RDC, supra note 135, at 21, 24 ("As it is likely to become the law of nations that free ships make free goods, I wish the Congress to consider whether it may not be proper to give orders to their cruisers not to molest foreign ships, but conform to the spirit of that treaty of neutrality.").
306. Letter from B. Franklin to the President of Congress (Aug. 9, 1780), supra note 143, at 24.
307. 18 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 135 at 864-867.
308. This decision followed the Declaration of Armed Neutrality of 1780. Id. For details of the changes in U.S. policy during the Revolutionary War on the question of "free ships make free goods," see Lint, supra note 142, at 24-26.
309. This issue arose when an American privateer recaptured a French vessel, the Isabella, which had been captured by a Guernsey (English) privateer. Among the questions that the diplomats negotiated were the share of a prize due to the party that recaptures it (the French and English rules varied) as well as whether the Guernsey privateer was actually a pirate when it captured the French vessel, since it only had a commission to prey on American ships. Letter from Sartine to the Commissioners at Paris (Sept. 16, 1778), in 2 RDC, supra note 135, at 719, 719-20;
310. Letter from B. Franklin, Arthur Lee, & John Adams to Sartine (Sept. 17, 1778), in 2 RDC, supra note 135, at 720, 720-22;
311. Letter from Sartine to the Commissioners at Paris (Sept. 21, 1778), in 2 RDC, supra note 135, at 730, 730 (noting that final disposition of the issue is for the courts);
312. Letter from B. Franklin, Arthur Lee, & John Adams to Sartine (Sept. 27, 1778), in 2 RDC, supra note 135, at 747, 747.
313. For a resolution regarding recaptures, see 3 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 407.
314. For an excerpt from French and Dutch Convention Concerning Recaptures, see Letter from John Adams to the President to Congress (May 25, 1781), in 4 RDC, supra note 135, at 435, 435-36.
315. In 1781, the King of Prussia issued an ordinance explaining its views on armed neutrality, prohibiting all Prussian subjects from carrying "merchandizes generally acknowledged to be prohibited and contraband" such as "cannons, mortars, bombs, grenades, fusils, pistols, bullets, flints, matches, powder, saltpetre, sulphur, pikes, swords, and saddles" and requesting that the belligerent powers not "permit their armed vessels to molest or take the Prussian vessels loaded with masts, timber, pitch, corn, and other materials, which, without being warlike stores, may, nevertheles [SIC], in the sequel be converted into such stores." Letter from John Adams to the President of Congress (May 21, 1781), in 4 RDC, supra note 135, at 424, 426.
316. For congressional action on the question of contraband, see 21 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 1151, 1153-58 (Gaillard Hunt, ed., William S. Hein & Co. 2005) (1912) (discussing an ordinance ascertaining what captures on water shall be legal).
317. See also Lint, supra note 142, at 25-26 (discussing the importance of the definition of "contraband" during the Revolution).
318. MARTENS, supra note 131, at 51, 55-61.
319. See supra note 137.
320. MARTENS, supra note 131.
321. Letter from Benjamin Franklin, Silas Deane, & Arthur Lee to Captains of American Armed Vessels (Nov. 21, 1777), in 2 RDC, supra note 135, at 425, 425;
322. Letter from Arthur Lee to Committee of Foreign Affairs (Nov. 27, 1777), in 2 RDC, supra note 135, at 429, 429;
323. Letter from B. Franklin, Silas Deane, & Arthur Lee to the Committee of Foreign Affairs (Nov. 30, 1777), in 2 RDC, supra note 135, at 433, 433-36;
324. Letter from James Gardoqui to A. Lee (Sept. 28, 1778), in 2 RDC, supra note 135, at 750, 750-51;
325. Letter From B. Franklin to Ferdinand Grand (Oct. 14, 1778), in 2 RDC, supra note 135, at 784, 784-85.
326. In the summer of 1777, France complained, for example, that by outfitting vessels of war and by permitting them to bring English prizes into French ports, the Americans put France in violation of its treaty obligations to the British. See Letter from Vergennes to the Commissioners at Paris (July 16, 1777), in 2 RDC, supra note 135, at 364, 364-65 (complaining that the American vessels the Reprisal, the Lexington, and the Dolphin brought English prizes into French ports).
327. The situation was a tricky one for the American diplomats in France. To the English, the French emphasized their efforts to comply with their treaty obligations and to prevent American vessels of war from using their ports. To the Americans, however, the French made clear that the disposal of American prizes in their ports would be overlooked (in part because of their commercial benefits to France) as much as possible. See Letter from Silas Deane to Robert Morris (Aug. 23, 1777), in 2 RDC, supra note 135, at 378, 378-82;
328. Letter from B. Franklin, Silas Deane, & Arthur Lee to the Committee of Foreign Affairs (Sept. 8, 1777), in 2 RDC, supra note 135, at 388, 388-91. In 1780, Franklin wrote to Congress requesting it to again give orders to the American cruisers not to meddle with neutral vessels for the practice was apt to produce "ill blood." Letter from B. Franklin to the President of Congress (May 31, 1780),
329. in 3 RDC, supra note 135, at 742, 745;
330. see also Letter from Franklin to Vergennes (June 18, 1780)
331. supra note 143, at 801-03.
332. The disposition of French privateers in American ports as well as American privateers in French ports was the subject of negotiation and agreement between the French government and American Commissioners in France. See Letter from B. Franklin, Arthur Lee, & John Adams to Sartine (July 16, 1778), in 2 RDC, supra note 135, at 647, 647;
333. Letter from Sartine to Commissioners (July 29, 1778), in 2 RDC, supra note 135, at 673, 673;
334. Letter from Arthur Lee & John Adams to Sartine (Aug. 13, 1778), in 2 RDC, supra note 135, at 682, 682-83;
335. Letter from Sartine to Commissioners at Paris (Aug. 16, 1778), in 2 RDC, supra note 135, at 684, 684-87;
336. Letter from B. Franklin, Arthur Lee, & John Adams to Sartine (Aug. 18, 1778), in 2 RDC, supra note 135, at 688, 688-89;
337. Letter from J. Adams to the President of Congress (Oct. 6, 1780), in 4 RDC, supra note 135, at 83, 83-84 (enclosing a Dutch ordinance prohibiting privateers from bringing prizes into Dutch ports).
338. In December 1776, for example, the Continental Congress agreed to pay for armed vessels to be outfitted by the commissioners in Paris-assuming that France would not disapprove-but at the same time refused to permit the commissioners to authorize private ships of war because it would be too difficult to control their conduct. I GARDNER W. ALLEN, A NAVAL HISTORY OF THE AMERICAN REVOLUTION 279 (1913).
339. By the following May, Congress had changed its mind and sent Franklin commissions for outfitting privateers in France. Id. at 279-80;
340. see also Letter from Franklin to Vergennes (June 18, 1780), supra note 143, at 801-03 (discussing commissions for privateers in France).
341. 4 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 230;
342. see also 7 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 340 (prohibiting captures "contrary to, or inconsistent with the usage and customs of nations");
343. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 137, at 196 (instructing privateers "not to infringe or violate the laws of nations, or the laws of neutrality").
344. 1 ALLEN, supra note 153, at 48-50;
345. C. Kevin Marshall, Comment, Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars, 64 U. CHI. L. REV. 953, 976 (1997).
346. 4 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 254.
347. 11 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 486 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1908).
348. Id.
349. See MARTENS, supra note 131, at 104-06;
350. Letter from Franklin to Vergennes (June 18. 1780), supra note 143, at 803;
351. Letter from Franklin to Vergennes (Aug. 15, 1780), 4 RDC, supra note 135, at 33.
352. See, e.g., 3 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 371-75 (providing very specifically which vessels and cargo could be captured both by privatelyarmed vessels and those fitted out at the expense of any of the Colonies);
353. see also MARTENS, supra note 131, at 23-24.
354. See Ramsey, supra note 2, at 1617-18 (noting that eighteenth-century authors do not specifically address this issue, but that early presidential practice suggests that the term applied to public as well as private vessels);
355. 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, 474 (2005) (both public and private vessels engaged in reprisal activity);
356. Yoo, supra note 42, at 251 ("Letters of marque and reprisal do not clearly refer to the use of the state's own military against another state.").
357. THE ARTICLES OF CONFEDERATION art. VI (U.S. 1781).
358. U.S. CONST, art. I, § 8.
359. See 4 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 253 ("Instructions to the commanders of private ships or vessels of war, which shall have commissions or letters of marque and reprisal. . . .").
360. It is clear that the term commission applies to the licensing of both private and public armed ships, not just public. 3 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789,
361. supra note 135, at 371-75;
362. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 230, 251-52;
363. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 584;
364. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 135, at 223-24, 226.
365. In practice, the term commission was widely employed to refer generally to authorizations (for a variety of purposes) by the sovereign to individuals. See, e.g., Commission of a Vice-Admiralty Judge (June 16, 1753), in JAMESON, supra note 121, at 519-23 (empowering James Michie to hold a vice-admiralty court in South Carolina).
366. 1 MATTHEW HALE, HISTORIA PLACITORUM CORONAE: THE HISTORY OF THE PLEAS OF THE CROWN 162 (Sollom Emlyn ed., London, E. & R. Nutt, & R. Gosling 1736);
367. cf. Ramsey, supra note 2, at 1574 (describing Hale as a "leading English treatise writer well known in America").
368. GROTIUS, supra note 131, at 1234 n.4, 1240 n.3 (citing to reprisals made by King Herod and Emperor Julian).
369. GARDNER WELD ALLEN, MASSACHUSETTS PRIVATEERS OF THE REVOLUTION 255 (1927).
370. Id. at 43.
371. See Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 644-45 (1999) (discussing level of generality problems).
372. See, e.g., REVELEY supra note 1, at 63-64;
373. David Gray Adler, The Constitution and Presidential Warmaking, in THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY 183, 184-90 (David Gray Adler & Larry N. George eds., 1996);
374. Jules Lobel, Covert War and Congressional Authority: Hidden War and Forgotten Power, 134 U. PA. L. REV. 1035, 1042-45 (1986);
375. Jules Lobel, "Little Wars" and the Constitution, 50 U. MIAMI L. REV. 61, 66-72 (1995)
376. [hereinafter Lobel, Little Wars]; Stromseth, supra note 50, at 854-56, 859-60. I use the term war initiation to include uses of force that do not lead to war itself.
377. ALLEN, supra note 153, at 45-48.
378. Letter from B. Franklin, Silas Deane, & Arthur Lee to Committee of Secret Correspondence (Feb. 6, 1777), in 2 RDC, supra note 135, at 261-62;
379. Letter from B. Franklin, Silas Deane, & Arthur Lee to the Committee of Foreign Affairs (Sept. 8, 1777), supra note 152, at 390;
380. Letter from Franklin to the President of Congress (Aug. 10, 1780), in 4 RDC, supra note 135, at 25, 26;
381. Letter from John Adams to the President of Congress (Sept. 16, 1780), in 4 RDC, supra note 135, at 57, 58.
382. See Commission of Capt. Benjamin Norton as a Privateer (June 2, 1741), in JAMESON, supra note 121, at 378-81 (explaining that Great Britain had already declared war on Spain in 1739, and subsequently authorized the seizure and taking of vessels belonging to Spain or to Spanish subjects);
383. see also CARL J. KULSRUD, MARITIME NEUTRALITY TO 1780, at 38-39 (1936) (noting that general reprisals were "employed in every maritime war in the days of the sailing vessel");
384. cf. MARTENS, supra note 131, at 20-21, 25-27, 26 n.b (distinguishing between wartime and peacetime letters).
385. Article VI states as follows: [N]or shall any state grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the [U]nited [S]tates in [C]ongress assembled, and then only against the Kingdom or state and the subjects thereof against which war has been so declared, and under such regulations as shall be established by the [UJnited [S]tates in [C]ongress assembled . . . . THE ARTICLES OF CONFEDERATION art. VI (U.S. 1781). Article IX states as follows: The [U]nited [S]tates, in [C]ongress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article; [and] . . . of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the [U]nited [S]tates shall be divided or appropriated; of granting letters of marque and reprisal in times of peace; appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of [C]ongress shall be appointed a judge of any of the said courts. Id. art. IX.
386. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 30, at 326.
387. Lobel, Little Wars, supra note 171, at 69;
388. STORY, supra note 59, at 63.
389. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 30, at 319.
390. Yoo, supra note 38, at 25-26.
391. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1201-02 (2006);
392. Ramsey, supra note 2, at 1599;
393. cf. WILLIAM BLACKSTONE, 1 COMMENTARIES *249-51;
394. VATTEL, supra note 122, at 285.
395. See BLACKSTONE, supra note 180, at *250;
396. RICHARD PARES, COLONIAL BLOCKADE AND NEUTRAL RIGHTS 1739-1763, at 42-76 (1938).
397. PARES, supra note 181, at 68-71, 226.
398. Id. at 45-53; see also REPORT OF LAW OFFICERS AND CIVILIANS AS TO THE LEGALITY OF A PROPOSED INSTRUCTION TO PRIVATEERS NOT TO SEIZE SHIPS AND GOODS OF ENEMIES OTHER THAN THE FRENCH, HAVING REGARD TO THE PRIZE ACT (1757), reprinted in 2 DOCUMENTS RELATING TO THE LAW AND CUSTOM OF THE SEA 381-382 (Thomson Gale 2007) (1916).
399. KULSRUD, supra note 174, at 31-36 (1936);
400. FRENCH PRIZE REGULATIONS (1744), reprinted in 2 DOCUMENTS RELATING TO THE LAW AND CUSTOM OF THE SEA, supra note 183, at 312-316.
401. See THE FEDERALIST, supra note 34, at 465.
402. Id. No. 44, at 295 (James Madison).
403. VATTEL, supra note 122, at 391-93 n.172.
404. Id.
405. PARES, supra note 181, at 101..
406. See id. at 84-108.
407. See THE FEDERALIST, supra note 34, No. 83, at 564 (Alexander Hamilton).
408. See supra note 137.
409. See, e.g., 3 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789,
410. supra note 135, at 400;
411. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789,
412. supra note 135, at 175-76, 263-64;
413. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789,
414. supra note 135, at 630;
415. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 449-50 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1907);
416. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789,
417. supra note 137, at 79-81, 293-97;
418. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 138, at 272-80 (empowering Washington to negotiate the exchange of prisoners);
419. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789,
420. supra note 147, at 972-74, 1029-30;
421. JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 93-95 (Worthington Chauncey Ford ed., William S. Hein & Co. 2005) (1914).
422. U.S. CONST, art. I, § 8, cl. 11. 195. Act of Mar. 3, 1799, ch. 45, 1 Stat. 743; Act of Feb. 28, 1799, ch. 18, 1 Stat. 624; Act of July 9, 1798, ch. 68, § 8, 1 Stat. 578, 580; Act of June 28, 1798, ch. 62, § 4, 1 Stat. 574, 575; Act of July 6, 1812, ch. 128, 2 Stat. 777, repealed by Act of Mar. 3, 1817, ch. 34, 3 Stat. 358.
423. See generally Jesse S. Reeves, The Influence of the Law of Nature Upon International Law in the United States, 3 AM. J. INT'L L. 547 (1909).
424. See generally Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT'L L. 461 (1989);
425. William R. Casto, The Federal Courts' Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 CONN. L. REV. 467 (1986);
426. William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the "Originalists", 19 HASTINGS INT'L & COMP. L. REV. 221, 232 (1996).
427. See generally Curtis Bradley & Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modem Position, 110 HARV. L. REV. 815 (1997);
428. Stewart Jay, The Status of the Law of Nations in Early American Law, 42 VAND. L. REV. 819 (1989);
429. Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071 (1985).
430. See generally VATTEL, supra note 122.
431. See, e.g., Geneva Conventions, supra note 89.
432. David J. Bederman, The Feigned Demise of Prize, 9 EMORY INT'L L. REV. 31, 36-41 (1995) (book review).
433. 21 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, supra note 147, at 1153-58.
434. The use of cluster munitions is not explicitly prohibited by current treaties on international humanitarian law, but the International Committee of the Red Cross has called for their prohibition in all populated areas. Press Release, Int'l Comm. of the Red Cross, Cluster munitions: ICRC calls for urgent international action (June 11, 2006), available at http://www.icrc.org/ web/eng/siteeng0.nsf/htmlall/ihl-weapon-news-061106?opendocument (last visited May 17, 2007).
435. See supra notes 90-92 and accompanying text.
436. See supra note 2.
437. See, e.g., Prakash, supra note 2, at 4 n.10 ("The Article never argues that the original Constitution (and its meanings) ought to apply today. Instead, this Article makes claims about the late eighteenth century meaning of 'declare war' and merely assumes that this meaning should continue to apply today.");
438. Ramsey, supra note 2, at 1544.
439. Sunstein, supra note 16, at 391.
440. BARNETT, supra note 14, at 118-30.
441. Compare Barnett, supra note 170, at 645-46 (suggesting that courts may engage in construction), with KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 211-12 (1999) (suggesting that the political branches, not the courts, should engage in constitutional construction).
442. Prakash & Ramsey, Foreign Affairs, supra note 38 at 1597-98.
443. See, e.g., Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT'L L. 43, 43-45 (2004);
444. McGinnis, supra note 70, at 303-09.
445. See Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230 (2007);
446. Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 CONST. COMMENT. 179 (2006);
447. Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170 (2007);
448. David Sloss, Judicial Deference to Executive Branch Treaty Interpretations: A Historical Perspective, 62 N.Y.U. ANN. SURV. AM. L. 497 (2007).
449. See, e.g., Ku &Yoo, supra note 212, at 215-16.
450. Ku & Yoo, supra note 212, at 201-02; Posner & Sunstein, supra note 212, at 1202.
451. Jinks & Katyal, supra note 212, 1275-79.
452. See Erwin Chemerinsky, Controlling Inherent Presidential Power: Providing a Framework for Judicial Review, 56 S. CAL. L. REV. 863, 870 (1983).
453. For example, there are 194 state parties to the Geneva Conventions of 1949 and 167 and 163 state parties to Protocols I and II, respectively. Int'l Comm. of the Red Cross, 1949 Conventions & Additional Protocols, http://www.icrc.org/ihl.nsf/CONVPRES?OpenView (last visited May 17, 2007);
454. see also supra text accompanying notes 103-107 (describing Protocol I). There are 182 state parties (including the United States) to the 1993 Chemical Weapon Convention. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, 1974 U.N.T.S. 317, available at http://www.icrc.org/ihl.nsf/INTRO/553?OpenDocument (last visited May 17, 2007). There are 102 state parties (including the United States) to a similar convention. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 137, available at http://www.icrc.org/ihl.nsf/INTRO/500?OpenDocument (last visited May 17, 2007).