Mullah Omar: Taliban Rules and Regulations

[jmm99]

We'll start with the Supremacy Clause of the US Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

The Constitution stands at the top of the pecking order. What are the "Laws of the United States" ? First off, except in very limited civil areas (admiralty is the major area), there is no Federal Common Law - and definitely no Federal Criminal Common Law.

So, although the US is considered a Common Law Country, its Federal Law is primarily code. Of it, we have statutes enacted by Congress (usually with Presidential approval), as well as a host of regulations and rules issued by administrative agencies - and executive orders issued by the President.

The common law does exist in the states, whose common laws and statutory laws must be applied by the Federal courts in cases where state law applies - under the Rules of Decision Act (which has near constitutional status).

Just as "Laws" have a "gloss" (going beyond statutes), so also "Treaties" have a "gloss" to include international executive agreements, which are of two kinds: presidential executive agreements (made by the president alone based on his constitutional powers); and presidential-congressional executive agreements (made by both branches and therefore based on the combined powers of both branches).

Now, a "Law" cannot be made "in pursuance of" the Constitution if it violates the Constitution; and a "Treaty" cannot be made under the "authority of the United States" if it violates the Constitution since the United States has no authority to violate the Constitution. Interestingly enough, each of the three branches of government (legislative, executive and judicial) has the power to determine constitutionality; although traditionally the other two branches have usually accepted the constitutional decisions of the Supreme Court.

Thus, the Constitution is definitely the highest US legal authority. What of the priority between statutes and treaties ? Again, this is a "gloss" from the Supremacy Clause (its order of Constitution, Laws and Treaties) and from other provisions as well. The bottom line is that a subsequent statute may implement a treaty (under US law, some treaties are not self-executing), interpret and clarify a treaty (which may amount to substantial amendment), and even abrogate (nullify) a treaty. US law recognizes that abrogation can have international consequences, but if a statute abrogates a treaty that treaty is nullified. Abrogation of treaties by executive order or administrative regulations or rules is another story - as the Bush Department of Justice (DoJ) found out in the Gitmo cases.

The conventions we are concerned with (Hague and Geneva) are true treaties, presented by the President to the Senate for ratification (with or without reservations). I've attached a flow chart for international laws applicable to armed conflicts. The black and white portion was swiped from either a Geoff Corn or Charlie Dunlap article; the colorful portion is by JMM.

Besides the conventional treaty framework discussed above, the issue of US adoption of "customary" international law can present itself. As to that, I would apply a strict standard. It could be adopted by a presidential executive order for matters within his powers (as traditionally defined; not as John Yoo et al defined them). It could also be adopted by statute (where the combined executive and legislative powers provide great support for validity). The Supreme Court (SCOTUS) has little power in this area (unless it runs wild). It could, for example, adopt customary international law in the admiralty area (and has done so); but, even there, it could not adopt a "customary" international criminal law against piracy (because of the prohibition against Federal Criminal Common Law).