PART 3 OF 3 (MEMO 6 CONT'D.)
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Notes:1. The four Geneva Conventions for the Protection of Victims of War, dated August 12, 1949, were ratified by the United States on July 14, 1955. These are the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 6 U.S.T. 3115 ("Geneva Convention I"); the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U.S.T. 3219 ("Geneva Convention II"); the Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3517 ("Geneva Convention III"); and the Convention Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3317 ("Geneva Convention IV").
2. We have discussed in a separate memorandum the federal jurisdiction issues that might arise concerning Guantanamo Bay. See Memorandum for William J. Haynes, II, General Counsel, Department of Defense, from Patrick F. Philbin, Deputy Assistant Attorney General and John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Possible Habeas Jurisdiction over Aliens Held in Guantanamo Bay, Cuba (Dec. 28, 2001).
3. See generally Memorandum for Albert R. Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Legality of the Use of Military Commissions to Try Terrorists (Nov. 6, 2001).
4. The rule of lenity requires that the WCA be read so as to ensure that prospective defendants have adequate notice of the nature of the acts that the statute condemns. See, e.g., Castillo v. United States, 530 U.S. 120, 131 (2000). In those cases in which the application of a treaty incorporated by the WCA is unclear, therefore, the rule of lenity requires that the interpretive issue be resolved in the defendant's favor.
5. That common clause reads as follows:
The [signatory Nations] undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention ... Each [signatory nation] shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts ... It may also, if it prefers ... hand such persons over for trial to another [signatory nation], provided such [nation] has made out a prima facie case.
Geneva Convention I, art. 49; Geneva Convention II, art. 50; Geneva Convention III, art. 129; Geneva Convention IV, art. 146.
6. H.R. Rep. No. 104-698, at 6, reprinted in 1996 U.S.C.C.A.N. at 2171.
7. Id. at 5, reprinted in 1996 U.S.C.C.A.N. at 217. In projecting our criminal law extraterritorially in order to protect victims who are United States nationals, Congress was apparently relying on the international law principle of passive personality. The passive personality principle "asserts that a state may apply law -- particularly criminal law -- to an act committed outside its territory by a person not its national where the victim of the act was its national.'" United States v. Rezaq, 134 F.3d 1121, 1133 (D.C. Cir.) cert. denied, 525 U.S. 834 (1998). The principle marks recognition of the fact that "each nation has a legitimate interest that its nationals and permanent inhabitants not be maimed or disabled from self-support," or otherwise injured. Lauritzen v. Larsen, 345 U.S. 571, 586 (1953); see also Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 309 (1970).
8. H.R. Rep. No. 104-698, at 7, reprinted in 1996 U.S.C.C.A.N. at 2172. In United States ex rel. Toth v. Quarles 350 U.S. 11 (1955), the Supreme Court had held that a former serviceman could not constitutionally be tried before a court martial under the Uniform Code for Military Justice (the "UCMJ") for crimes he was alleged to have committed while in the armed services. The WCA cured this problem.
9. H.R. Rep. No. 104-698, at 7, reprinted in 1996 U.S.C.C.A.N. at 2172. The principle of nationality in international law recognizes that (as Congress did here) a State may criminalize acts performed extraterritorially by its own nationals. See, e.g., Skiriotes v. Florida, 313 U.S. 69 73 (1941); Steele v. Bulova Watch Co., 344 U.S. 280, 282 (1952).
10. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 253 (1984) ("A treaty is in the nature of a contract between nations."); The Head Money Cases, 112 U.S. 580, 598 (1884) ("A treaty is primarily a compact between independent nations."); United States ex rel. Saroop v. Garcia, 109 F.3d 165, 167 (3d Cir. 1997). ("[T]reaties are agreements between nations.")
11. Geneva III art. 2 (emphasis added).
12. Common Article 3 reads in relevant part as follows:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who had laid down their arms and those places hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for ... The application of the preceding provisions shall not affect the legal status of tee Parties to the conflict.
13. Article 2's reference to a state of war "not recognized" by a belligerent was apparently intended to refer to conflicts such as the 1937 war between China and Japan. Both sides denied that a state of war existed. See Joyce A. C. Gutteridge, The Geneva Conventions of 1949, 26 Brit/Y.B. Int'l L. 294, 298-99 (1949).
14. Frits Kalshoven, Constraints on the Waging of War 59 (1987).
15. Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at ¶ 39 (Yves Sandoz et al. eds., 1987)
16. Gutteridge, supra, at 300.
17. See Joseph H. Beale, Jr., The Recognition of Cuban Belligerency, 9 Harv. L. Rev. 406, n. 1 (1896).
18. See The Prosecutor v. Dusko Tadic (Jurisdiction of the Tribunal) (Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia 1995) ("Todic"), 105 I.L.R. 453, 504-05 (E. Lauterpacht & C.J. Greenwood eds., 1997).
19. Id. at 505; see also Gerald Irving Draper, Reflections on Law and Armed Conflicts 107 (1998) ("Before 1949, in the absence of recognized belligerency accorded to the elements opposed to the government of a State, the law of war ... had no application to internal armed conflicts ... International law had little or nothing to say as to how the armed rebellion was crushed by the government concerned, for such matters fell within the domestic jurisdiction of States. Such conflicts were often waged with great lack of restraint and cruelty. Such conduct was a domestic matter.").
20. Tadic, 105 I.L.R. at 507. Indeed, the events of the Spanish Civil War, in which "both the republican Government [of Spain] and third States refused to recognize the [Nationalist] insurgents as belligerents," id. at 507, may be reflected in common Article 3's reference to "the legal status of the Parties to the conflict."
21. See id. at 508.
22. See Draper, Reflections on Law and Armed Conflicts, supra, at 108.
23. Some international law authorities seem to suggest that common Article 3 is better read as applying to all forms of non-international armed conflict. The Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, supra, after first stating that Article 3 applies when "the government of a single State [is] in conflict with one or more armed factions within its territory," suggests, in a footnote, that an armed conflict not of an international character "may also exist in which armed factions fight against each other without intervention by the armed forces of the established government." Id. ¶ 4339 at n.2. A still broader interpretation appears to be supported by the language of the decision of the International Court of Justice (the "ICJ") in Nicaragua v. United States -- which the United States refused to acknowledge by withdrawing from the compulsory jurisdiction of the ICJ. Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), (International Court of Justice 1986), 76 I.L.R. 1, 448, ¶ 218 (E. Lauterpacht & C.J. Greenwood eds., 1988). The ICJ's decision is probably best read to suggest that all "armed conflicts" are either international or non-international and that if they are non-international, they are governed by common Article 3. If that is the correct understanding, however, the result was merely stated as a conclusion, without taking account either of the precise language of Article 3 or of the background to its adoption. Moreover, while it was true that one of the conflicts to which the ICJ was addressing itself -- "[t]he conflict between the contras' forces and those of the Government of Nicaragua" -- "was an armed conflict which is 'not of an international character,'" id. at 448, ¶ 219, that conflict was recognizably a civil war between a State and an insurgent group, not a conflict between or among violent factions in a territory in which the State had collapsed. Thus there is substantial reason to question the logic and scope of the ICJ's interpretation of common Article 3, which, in any event, is not binding as a matter of domestic law on the United States.
24. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), June 8, 1977, 1125 U.N.T.S. 4; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 610.
25. Hague Convention IV, Respecting the Laws and Customs of War on Land, act. 18, 1907, 36 Stat. 2277.
26. Thomas Jefferson, Opinion on the Powers of-the Senate Respecting Diplomatic Appointments (1790), reprinted in 6 The Papers of Thomas Jefferson 378 (Julian P. Boyd ed., 1961).
27. Id. at 379.
28. Alexander Hamilton, Paciticus No. 1 ( 1793), reprinted in 15 The Papers of Alexander Hamilton 33, 39 (Harold C. Syrett et al. eds., 1969).
29. 10 Annals of Cong. 613-14 (1800).
30. Harlow v. Fitzgerald, 457 U.S. 800, 812 n. 19 (1982).
31. Nixon v. Fitzgerald, 457 U.S. 731, 749-50 (1982).
32. Department of the Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981)).
33. United States v. Curtiss Wright Export Corp. , 299 U.S. 304, 320 ( 1936).
34. Hamilton, Paciticus No. 1 supra, at 42.
35. Restatement (Third) of the Foreign Relations Law of the United States § 339 (1987).
36. See, e.g., Memorandum for Alberto R. Gonzales, Counsel to the President, from: Jay S. Bybee, Assistant Attorney General, Re: Authority of the President to Denounce the ABM Treaty (Dec. 14, 2001); Goldwater v. Carter, 617 F.2d 697, 706-07 (D.C. Cir.) (en banc), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979); Senate Comm. on Foreign Relations, 106th Cong., Treaties. and Other International Agreements: The Role of the United States Senate 201 (Comm. Print 2001) (prepared by Congressional Research Service, Library of Congress) (footnotes omitted)
37. See Memorandum for John Bellinger, III, Senior Associate Counsel and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001); see also Memorandum for William Howard Taft, IV, Legal Adviser, Department of State, from John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Presidents Constitutional Authority to Withdraw Treaties from the Senate (Aug. 24, 2001).
38. See Kennett v. Chambers, 55 U.S. 38, 47-48, 51 ( 1852); Terlinden v. Ames, 184 U .S. 2.70, 288 ( 1902); Saroop v. Garcia, 109 F.3d 165, 171 (3d. Cir. 1997) (collecting cases). Alexander Hamilton argued in 1793 that the revolution in France had triggered the power (indeed, the duty) of the President to determine whether the pre-existing treaty of alliance with the King of France remained in effect. The President's constitutional powers, he said, "include that of judging, in the case of a Revolution of Government in a foreign Country, whether the new rulers are competent organs of the National Will and ought to be recognised or not: And where a treaty antecedently exists between the States and such nation that right involves the power of giving operation or not to such treaty."
Alexander Hamilton, Pacificus No.1 (1793), reprinted in 15 The Papers of Alexander Hamilton 33, 41 (Harold C. Syrett et al. eds 1969).
39. See Taylor v. Morton, 23 F. Cas. 784, 787 (C.C.D. Mass. 1855) (No. 13,799) (Curtis, Circuit Justice), off d. 67 U.S. (2 Black) 481 (1862).
40 See International Load Line Convention, 40 Op. Att'y Gen. 119, 124 ( 1941 ). Changed conditions have provided a basis on which Presidents have suspended treaties in the past. For example, in 1939, President Franklin Roosevelt suspended the operation of the London Naval Treaty of 1936. "The war in Europe had caused several contracting parties to suspend the treaty, for the obvious reason that it was impossible to limit naval armaments. The notice of termination was therefore grounded on changed circumstances." David Gray Adler, The Constitution and the Termination of Treaties 187 (1986).
41. International Load Line Convention, 40 Op. Att'y Gen. at 123.
42. See, e.g., Charlton v. Kelly, 229 U.S. 447, 473 (1913); Escobedo v. United States, 623 F.2d 1098, 1106 (5th Cir.), Cert. denied, 449 U.S. 1036 (1980).
43. In 1986, the United States suspended the performance of its obligations under the Security Treaty (ANZUS Pact), T.I.A.S. 2493, 3 U .S. T. 3420, entered into force April 29, 1952, as to New Zealand but not as to Australia. See Marian Nash (Leich), I Cumulative Digest of United State.) Practice in International Law 1981-1988, at 1279-81.
Thus, suspension of the Geneva Conventions as to Afghanistan would not affect the United States' relationships under the Conventions with other state parties.
44. On June 20, 1876, for example, President Grant informed Congress that he was suspending the extradition clause of the 1842 "Webster-Ashburton Treaty" with Great Britain, Convention as 10 Boundaries, Suppression of Slave Trade and Extradition, Aug. 9, 1842, U.S.-Gr. Brit., Art 10, 8 Stat. 572, 579. Grant advised Congress that the release of two fugitives whose extradition was sought by the United States amounted to the abrogation or annulment of the extradition clause, and that the executive branch in response would take no action to surrender fugitives sought by the British Government unless Congress signified that it do so. The clause remained suspended until it was reactivated by the British Government's resumed performance.
45. See, e.g., Geneva Convention III, art. 142. The suspension of a treaty is distinct from the denunciation or termination of one. Suspension is generally a milder measure than termination, often being partial, temporary, or contingent upon circumstances that can be altered by the actions of the parties to the treaty. Moreover, at least in the United States, suspension of a treaty can be reversed by unilateral executive action, whereas termination, which annuls a treaty, and which is therefore more disruptive of international relationships, would require Senate consent to a new treaty to be undone.
46. In general, the partial suspension of the provisions of a treaty (as distinct from both termination and complete suspension) is recognized as permissible under international law. Article 60 of the Vienna Convention on treaties explicitly permits the suspension of a treaty "in whole or in part." "[U]nder both treaty law and non-forcible reprisal law as a basis for responsive suspension it is clear that suspension may be only partial and need not suspend or terminate an agreement as a whole, in contrast, for example, with treaty withdrawal clauses." John Norton Moore, Enhancing Compliance With International Law: A Neglected Remedy, 39 Va. J. Int'l L. 881, 932 (1999). It should be noted, however, that the United States is not a party to the Vienna Convention on treaties, although it has treated its rules as customary international law. This issue is explored in greater detail, infra Part III.C.
47. 331 U.S. at 514.
48. Id.; see also id. at 508-09 (President might have "formulated a national policy quite inconsistent with the enforcement" of the treaty).
49. We should not be understood to be saying that the President's basis for suspending the Geneva Conventions as to Afghanistan is merely the fact that Afghanistan underwent a change of government in 1996, after the military successes of Taliban. The general rule of international law is that treaty relations survive a change of government. See, e.g., 2 Marjorie M. Whiteman, Digest of International Law 771-73 (1963); J.L. Brierly, The Law of Nations 144-45 (6th ed. 1963); Eleanor C. McDowell, Contemporary Practice of the United States Relating to International Law, 71 Am. J. Int'l L. 337 ( 1977). The general rule is that treaties may still be observed even as to State parties, the current governments of which have been unrecognized. See New York Chinese TV Programs v. U.E. Enterprises, 954 F.2d 847 (2d Cir. 1992); see also Restatement (Third) of the Foreign Relations Law of the United States § 202 emts. a, b (1987).
50. It would be mistaken to argue that the concept of a failed State is not legal in nature, and thus cannot be taken into account in determining whether to suspend our Geneva III obligations toward Afghanistan. Legal scholars as well as political scientists have employed the concept for some time. Moreover, even if taken only as a category of political science, the term "failed State" encapsulates a description of structural conditions within a country such as Afghanistan that are directly relevant to considering whether that country has lapsed for legal purposes into a condition of statelessness.
51. "States in which institutions and law and order have totally or partially collapsed under the pressure and amidst the confusion of erupting violence, yet which subsist as a ghostly presence on the world map, are now commonly referred to as 'failed States' or 'Etats sons gouvernmement."' Daniel Thurer, The Failed State and International Law, International Review of the Red Cross No. 836 (Dec. 31, 1999), available at
http://www.icrc.org/eng/review (visited Jan. 10, 2002). Somewhat different tests have been used for determining whether a State has railed." First, the most salient characteristic of a "failed State" seems to be the disappearance of a "central government." Yoram Dinstein, The Thirteenth Woldemar A. Solf Lecture in International Law, 166 Mil. L. Rev. 93, 103 (2000); see also id. ("All that remains is a multiplicity of groups of irregular combatants fighting each other."). Closely related to this test, but perhaps some what broader, is the definition of a "failed State" as "a situation where the government is unable to discharge basic governmental functions with respect to its populace and its territory. Consequently, laws are not made, cases are not decided, order is not preserved and societal cohesion deteriorates. Basic services such as medical care, education, infrastructure maintenance, tax collection and other functions and services rendered by central governing authorities cease to exist or exist only in limited areas." Ruth Gordon, Growing Constitutions, 1 U. Pa. J. Const. L. 528, 533-34 (1999). Professor Thurer distinguishes three elements (respectively, territorial, political and functional) said to characterize a "failed State": 1) failed States undergo an "implosion rather than an explosion of the structures of power and authority, the disintegration and destructuring of States rather than their dismemberment;" 2) they experience "the total or near total breakdown of structures guaranteeing law and order;" and 3) there are marked by "the absence of bodies capable, on the one hand, of repre-break senting [sic] the State at the international level and, on the other, of being influenced by the outside world."
52. See Restatement (Third) of the Foreign Relations Law of the United States § 201; see also 1933 Montevideo Convention on Rights and Duties of States, art. I, 49 Stat. 3097, 28 Am. J. Int'l L. Supp. 75 (1934).
53. Eleanor C. McDowell, Contemporary Practice of the United States Relating to International Law, 71 Am. J. Int'l L. 337 (1977).
54. Larry P. Goodson, Afghanistan's Endless War: State Failure, Regional Politics, and the Rise of the Taliban 46, 115 (2001).
55. Ahmed Rashid, Taliban: Militant Islam, Oil & Fundamentalism in Central Asia 213 (2001).
56. Id. at 207-08, 212-13.
57. Goodson, supra, at 103-04; 115.
58. United States Department of State, International Information Programs, Rocca Blames Taliban for Humanitarian Disaster in Afghanistan (act. 10, 2001), available at
http://www.usinfo.state.gov/regional/ne ... tm(visited Jan. 10, 2001).
59. See U.N. Security Council Resolution 1333 (2000), available at
http://www.un.org/Docs/scres/2000/res 1333e.pdf (finding that "the Taliban benefits directly from the cultivation of illicit opium by imposing a tax on its production and indirectly benefits from the processing and trafficking of such opium, and ... these substantial resources strengthen the Taliban's capacity to harbor terrorists"). The United States Government has amassed substantial evidence that the Taliban has condoned and profited from narco-trafficking on a massive scale, with disastrous effects on neighboring countries. See The Taliban, Terrorism, and Drug Trade: Hearing Before the Subcomm. on Criminal Justice, Drug Policy and Human Resources of the House Comm. on Government Refom, 107th Cong. (2001) (testimony of William Bach, Director, Office of Asia, Africa, Europe, NIS Programs, Bureau of International Narcotics and Law Enforcement Affairs, Department of State; testimony of Asa Hutchinson, Administrator, Drug Enforcement Administration, U.S. Department of Justice).
60. U.N. Security Council Resolution 1333 "strongly condemn[ed]" the Taliban for the "sheltering and training of terrorists and [the] planning of terrorist acts," and "deplor[ed] the fact that the Taliban continues to provide a safe haven to Osama Bin Laden and to allow him and others associated with him to operate a network of terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor international terrorist operations." U.N. Security Council Resolution 1214, ¶ 13 (1998) enjoined the Taliban to stop providing a sanctuary and training for terrorists. U.N. Security Council Resolution 1267, ¶ 2 (1999), stated that the Taliban's failure to comply with the Council's 1998 demand constituted a threat to the peace. See Sean D. Murphy, Efforts to Obtain Custody of Osama Bin Laden, 94 Am. J. Int'l L. 366 (2000).
61. See Yossef Bodansky, Bin Laden: The Man Who Declared War on America 301-02 (2001).
62 See Robert F. Turner, 1nternational Law and the Use of Force in Response to the World Trade Center and Pentagon Attacks, available at
http://jurist.law.pin.edu/forum/forumnew34.htm (visited Jan. 10, 2002) ("If (as has been claimed by the US and UK governments) bin Laden masterminded the attacks on New York and Washington, Afghanistan is in breach of its state responsibility to take reasonable measures to prevent its territory from being used to launch attacks against other states. The United States and its allies thus have a legal right to violate Afghanistan's territorial integrity to destroy bin Laden and related terrorist targets. If the Taliban elects to join forces with bin Laden, it, too, becomes a lawful target."); see also W. Michael Reisman, International Legal Responses to Terrorism, 22 Hous. J. Int'l L. 3, 40-42, 51-54 (1999).
63. See, e.g., Michael Dobbs & Vermon Loeb, 2 U.S. Targets Bound by Fate, Wash. Post, Nov. 14, 2001 at A22 ("According to Thomas Gouttierre, an Afghan expert at the University of Nebraska and a former UN adviser, the so-called Afghan Arabs surrounding bin Laden were much more educated and articulate than the often illiterate Taliban and succeeded in convincing them that they were at the head of a worldwide Islamic renaissance. 'Al Qaeda ended up hijacking a large part of the Taliban movement,' he said, noting that [Taliban supreme religious leader Mohammed] Omar and bin Laden were 'very, very tight' by 1998."); Peter Baker, Defector Says Bin Laden Had Cash, Taliban In His Pocket, Wash. Post, Nov. 30, 2001 at A 1 (reporting claims by former Taliban official of al Qaeda's corruption of Taliban officials).
64. Online News Hour: The Taliban (Sept. 15, 2001), available at
http://www.pbs.org/newshour/bb/terroris ... 01/taliban 9-15.html (visited Jan. 15, 2002).
65. The Bush Administration's Response to September 11th and Beyond, Remarks to the Council of Foreign Relations (act. 15, 2001), available at
http://www.yale.edu/lawweb/avalon/sept 11/haass 001.htm (visited Jan. 15, 2002).
66. The so-called "55th Brigade," a military force consisting primarily of Arabs under Syrian and Saudi commanders, was based outside of Kabul and was trained, maintained and paid for by al Qaeda. It "provided crucial support to Taliban forces during offensives against the Northern Alliance over the past five years." Michael Jansen, US focused initially on bin Laden Mercenaries. The Irish Times on the Web (act. 30, 2001), available at
http://www.ireland.coewspaper/world/2001/1030/wor6.htm (visited Jan. 15, 2001). According to some reports, these al Qaeda fighters were the most aggressive and ideologically committed forces available to the Taliban leadership, and were used to control other Taliban units. See also Michael Kranish & Indira A.R. Lakshmanan, Partners in 'Jihad': Bin Laden Ties to Taliban, Boston Globe, act. 28, 2001, at A 1. This article contains especially detailed information about the close linkages between the two movements and their leaders.
67. Transcript: Rumsfeld Says Taliban Functioning As Military Force Only. supra.
68. Fact Sheet on Al Qaeda and Taliban Atrocities (released Nov. 22, 2001 by Coalition Information Center), available at
http://www.usinfo.state.gov/topical/pol ... 112301.htm (visited Jan. 15, 2002). The source cited for this particular report was the Defense Department.
69. Fact Sheet: Taliban Actions Imperil Afghan Civilians (Nov. 2, 2001), available at
http://www.usinfo.state.gov/topical/pol ... 10203.httm (visited Jan. 15, 2002). Further, the State Department publicized reports from The Washington Post that the Taliban was using entire villages as human shields to protect their stockpiles of ammunition and weapons, that they were relocating the police ministry in Kandahar to mosques, that they had taken over NGO relief organization buildings, and that they were discovered transporting tanks and mortar shells in the guise of humanitarian relief. Fact Sheet: The Taliban's Betrayal of the Afghan People (Nov. 6, 2001), available at http:llwww.usinfo.state.gov/topical/pol/terror/01110608.htm (visited Jan. 15, 2002).
70. Id.
71. id. (quoting report; no citation given).
72. See A Look at the Taliban, USA Today, Sept. 30, 2001, available at
http://www.usatoday.com/news/world/2001/the taliban.http (visited Jan. 10, 2002). Indeed, Pakistan had been the only country in the world that maintained an embassy in Kabul; the overwhelming majority of States and the United Nations recognized exiled President Burhanuddin Rabbani and his government as the country's legal authorities. See Taliban tactics move to hostage play. Aug. 8, 2001, available at
http://www.janes.com/regional_news/asia ... _1_n.shtml (visited act. 19, 2001).
73. Secretary Rumsfeld Media Availability en Route to Moscow (Nov. 2, 2001), available at
http://www.yale.edu/lawweb/avalon/sept II/dod brief64.htm (visited Jan. 15, 2002).
74. Rumsfeld Says Taliban to Blame for Casualties (act. 29, 2001), available at http:/lwww.usinfo.state.gov/topical/pol/terror/01102905.htm (visited Jan. 15, 2002).
75. Transcript: Rumsfeld Says Taliban Functioning As Military Force Only (Nov. 4, 2001), available at http:www.usinfo.state.gov./topical/pol/terror/0110403.htm (visited Jan. 15, 2002).
76. Rumsfeld on Afghanistan Developments on "Fox News Sunday," (Nov. 12, 2001), available at
http://www.usinfo.state.gov/topical/pol ... 111204.htm (visited Jan. 15, 2002).
77. Background Note (October, 2001), available at
http://www.state.gov/pa/bgn/index.cfm? docid=5380 (visited Jan. 10, 2002), prepared by the Bureau of South Asian Affairs. See also Reuters AlertNet - Afghanistan, Country Profiles ("There are no state-constituted armed forces. It is not possible to show how ground forces' equipment have been divided among the different factions."), available at
http://www.alerrnet.org/thefacts/countr ... ?version-1 (visited Jan. 15, 2002).
78. Paula J. Dobransky, Afghanistan: Not Always a Baulefield (act. 29, 2001), available at
http://www.usinfo.state.gov/topical/pol ... 102908.htm (visited Jan. 15, 2002).
79. The End of the Taliban Reign of Terror in Afghanistan (Dec. 12, 2001 ), available at
http://www.usinfo.state.gov/topical/pol ... 121206.hnn (visited Jan. 15, 2002).
80. Rashid, supra, at 207.
81. Philip Webster; Blair's mission to Kabul. The Times of London, Jan. 8, 2002, available at 2002 WL 4171996.
82. We do not think that the military successes of the United States and the Northern Alliance necessarily meant that Afghanistan's statehood was restored before the Bonn agreement, if only because the international community, including the United States, did not regard the Northern Alliance as constituting the government of Afghanistan. United Nations Security Council Resolution 1378, ¶ 1 (2001), available at
http://www.yale.edu/lawweb/avalon/sept11/unsecres 1378.htm (visited Nov. 19, 2001), expressed "strong support for the efforts of the Afghan people to establish a new and transitional administration leading to the formation of a government" (emphasis added): see also id. ¶ 3 (affirming that the United Nations should play a central role in supporting Afghan efforts to establish a "new and transitional administration leading to the formation of a new government"). The plain implication of this Resolution, which reflects the views of the United States, is that Afghanistan after the Taliban did not have a government at that time.
83. In general, of course, a decision by a State not to discharge its treaty obligations, even when effective as a matter of domestic law, does not necessarily relieve it of possible international liability for non-performance. See generally Pigeon River Improvement, Slide & Boom Co, v. Charles W Cox, Ltd., 291 U.S. 138, 160 (1934).
84. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. 16, 47, '98 (Advisory opinion June 21, 1971) (holding it to be a "general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character. ... The silence of a treaty as to the existence of such a right cannot be interpreted as implying the exclusion of a right which has its source outside of the treaty, in general international law[.]").
85. Vienna Convention on Treaties, art. 60(2)(b).
86. Id. art. 60(3).
87. Id. art. 60(5). The Vienna Convention seems to prohibit or restrict the suspension of humanitarian treaties if the sole ground for suspension is material breach. It does not squarely address the case in which suspension is based, not on particular breaches by a party, but by the party's disappearance as a State or on its incapacity to perform its treaty obligations.
88. Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 433 (2d Cir.), cert. denied, 122 S. Ct. 206 (2001); Moore, supra, at 891-92 (quoting 1971 statement by Secretary of State William P. Rogers and 1986 testimony by Deputy Legal Adviser Mary V. Mochary).
89. See Sir Ian Sinclair, The Vienna Convention on the Law of Treaties 191 (2d ed. 1984) (explaining intent and scope of reference to "humanitarian" treaties). Indeed, when the drafters of the Vienna Convention added paragraph 5 to Article 60, the Geneva Conventions were specifically mentioned as coming within it. See Harris, supra, at 797.
90. See, e.g. , Draper, The Red Cross Conventions, supra, at 8; see also Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), 76 I.L.R. at 448, '220.
91. See. e.g., Geneva Convention III, art. 131.
92. See, e.g., id., art. 142.
93. See Sinclair, supra, at 192.
94. See, e.g., the Geneva Convention III, art. 8; Geneva Convention IV, art. 9.
95. Geneva Convention III, art. 9; Geneva Convention IV, art. 10.
96. The President could, of course, also determine that it will be the policy of the United States to require its own troops to adhere to standards of conduct recognized under customary international law, and could prosecute offenders for violations. As explained below, the President is not bound to follow these standards by law, but may direct the armed forces to adhere to them as a matter of policy.
97. Quoted in Joseph P. Bialke, United Nations Peace Operations: Applicable Norms and the Application of the Law of Armed Conflict, 50 A.F.L. Rev. 1, 63 n. 235 (2001).
98. David M. Morriss, From War to Peace: A Study of Cease-Fire Agreements and the Evolving Role of the United Nations, 36 Va. J. Int'l. L. 801, 883-85 (1996).
99. Entitlement of American Military Personnel Held by North Viet-Nam to Treatment as Prisoners of War Under the Geneva Convention of 1949 Relative to the Treatment of Prisoners of War, July 13, 1966, reprinted in John Norton Moore, Law and the 1ndo-China War 635, 639 ( 1972).
100. See United States v. Noriego, 117 F.3d 1206, 1211 ( 11th Cir. 1997).
101. See Jan E. Aldykiewicz and Geoffrey S. Corn, Authority to Court-Martial Non U.S. Military Personnel for Serious Violations of International Humanitarian Law Committed During Internal Armed Conflict, 167 Mil. L. Rev. 74, 77 n.6 (2001). In United States v. Noriega, 808 F. Supp. 791, 794 (S.D. Fla. 1992), the district court held that the United States' intervention in Panama in late 1989 was an international armed conflict under (common) Article 2 of the Geneva Convention III, and that General Noriega was entitled to POW status. To the extent that the holding assumed that the courts are free to determine whether a conflict is between the United States and another "State" regardless of the President's view whether the other party is a "State" or not, we disagree with it. By assuming the right to determine that the United States was engaged in an armed conflict with Panama -- rather than with insurgent forces in rebellion against the recognized and legitimate government of Panama -- the district court impermissibly usurped the recognition power, a constitutional authority reserved to the President. The power to determine whether a foreign government is to be accorded recognition, and the related power to determine whether a condition of statelessness exists in a particular country, are exclusively executive. See, e.g., Baker v. Carr, 369 U.S. 186, 212 ( 1962) ("[R]recognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called a republic of whose existence we know nothing.' ... Similarly, recognition of belligerency abroad is an executive responsibility. ...") (citation omitted); Kennett v. Chambers, 55 U.S. (14 How.) 38, 50-51 (1852) ("[T]he question whether [the Republic of] Texas [while in rebellion against Mexico] had or had not at that time become an independent state, was a question for that department of our government exclusively which is charged with our foreign relations. And until the period when that department recognized it as an independent state, the judicial tribunals ... were bound to consider ... Texas as a part of the Mexican territory."); Mingtai Fire & Marine Ins. Co. v. United Parcel Service, 177 F.3d 1142, 1145 (9th Cir.) ("[T]he Supreme Court has repeatedly held that the Constitution commits to the Executive branch alone the authority to recognize, and to withdraw recognition from foreign regimes."), cert. denied, 528 U.S. 951 (1999).
102. Letter for the Hon. Richard L. Thornburgh, Attorney General, from Abraham D. Sofaer, Legal Adviser, State Department at 2 (Jan. 31, 1990).
103. Quoted in Bialke, supra, at 56.
104. Memorandum for Alberto R. Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Attorney General, Office of Legal Counsel, Re: Legality of the Use of Military Commissions to Try Terrorists at 22-33 (Nov. 6, 2001); Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 2-3 ( act. 17, 2001).
105. Griffin v. Morlin, 785 F.2d 1172, 1186-87 & n.37 ( 4th Cir. 1986) , aff.'d by an equally divided court, 795 F.2d 22 (4th Cir. 1986) (en banc), cert. denied, 480 U.S. 919 (1987).
106. United States v. Peterson, 483 F.2d 1222, 1228-29 (D.C. Cir.) (footnote omitted), cert denied, 414 U.S. 1007 (1973).
107. See Tennessee v. Garner, 471 U.S. 1, 7, 11 (1985) (Fourth Amendment "seizure" caused by use of force subject to reasonableness analysis); Memorandum to Files, from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re: Use of Deadly Force Against Civil Aircraft Threatening to Attack 1996 Summer Olympic Games (Aug. 19, 1996); United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 ( 1994) ("[A] USG officer or employee may use deadly force against civil aircraft without violating [a criminal statute] if he or she reasonably believes that the aircraft poses a threat of serious physical harm ... to another person.").
108. During the India-Pakistan conflicts between 1965 and 1971, prisoners were able to correspond with their families, but there were "some difficulties in getting lists of all military prisoners" -- "[e]specially at the beginning of the conflict." Allan Rosas, The Legal Status of Prisoners of War at 186 (1976). Similarly, during the 1967 War in the Middle East, Israeli authorities delayed access to Arab prisoners on the grounds that "all facilities would be granted as soon as the prisoners were transferred to the camp at Atlith ... In the meantime, delegates had the opportunity to see some of the prisoners at the transit camp at El Quantara and Kusseima." Id. at 203 (citation omitted). Although Israel was technically obliged under the Convention to provide access to Arab. POWs, immediate compliance with that obligation was infeasible.
109. Sierra Club v. Thomas, 828 F.2d 783, 794 (D. C. Cir. 1987).
110. Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir. 1999).
111. Memorandum for John Bellinger, III, Senior Associate Counsel and Legal Adviser to the National Security Council, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority of the President to Suspend Certain Provisions of the ABM Treaty (Nov. 15, 2001).
112. See Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, 13 Op. O.L.C. 163 (1989).
113. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992).
114. See id. at 669-70; Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935-36 (D.C. Cir. 1988); Garcia-Mir v. Meese, 788 F.2d 1446, 1453-55 (11th Cir.), cert. denied. 479 U.S. 889 (1986).
115. See, e.g., Michael J. Glennon, Raising the Paquete Habana: Is Violation of Customary International Law by the Executive Unconstitutional?, 80Nw. U. L. Rev. 321, 325 (1985); Louis Henkin, International Law As Law in the United States, 82 Mich. L. Rev. 1555, 1567 (1984); Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071, 1179 (1985); see also Jonathan R. Charney, Agora: May the President Violate Customary International Law?, 80 Am. J. Int'l L. 913 (1986).
116. Recently, the status of customary international law within the federal legal system has been the subject of sustained debate with legal academia. The legitimacy of incorporating customary international law as federal law has been subjected in these exchanges to crippling doubts. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law As Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 817 (1997); see also Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. Rev. 665, 672-673 (1986); Arthur M. Weisburd, The Executive Branch and International Law, 41 Vand. L. Rev. 1205, 1269 (1988). These claims have not gone unchallenged. See Harold H. Koh, Is International Law Really State Law?, III Harv. L. Rev. 1824, 1827 (1998); Gerald L. Neuman, Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371, 371 (1997); Beth Stephens, The Law of Our Land: Customary International Law As Federal Law After Erie, 66 Fordham L. Rev. 393, 396-97 (1997). Bradley and Goldsmith have responded to their critics several times. See Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, III Harv. L. Rev. 2260 ( 1998); Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 Fordham L. Rev. 319, 330 (1997).
117. U.S. Const. art. I, §8, cl.10.
118. The Federalist No. 80. at 447-49 (Alexander Hamilton) (Clinton Rossiter ed., 1999).
119. Id. at 444-46.
120. Id., e.g., Stewart Jay, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819, 830-37 (1989); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1306-12 (1996); Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 Fordham L. Rev. 319, 333-36 (1997).
121. Cf. INS v. Chadha, 462 U.S. 919 (1983) (invalidating legislative veto for failure to undergo bicameralism and presentment as required by Article I, Section 8 for all legislation).
122. In fact, allowing customary international law to bear the force of federal law would create significant problems under the Appointments Clause and the non-delegation doctrine, as it would be law made completely outside the American legal system through a process of international practice, rather than either the legislature or officers of the United States authorized to do so.
123. See, e.g., Foster v. Neilson, 27 U .S. (2 Pet.) 253, 314 ( 1829).
124. 11 U.S. (7 Cranch) 116, 145-46 (1812).
125. Id. at 128.
126. See, e.g., Oliver Am. Trading Co. v. Mexico, 264 U.S. 440, 442-43 (1924); Huntington v. Attrill, 146 U.S. 657, 683 (1892); New York Life Ins. Co. v. Hendren, 92 U.S. 286, 286-87 (1875).
127. 92 U.S. 286, 286-87.
128. 175 U.S. at700.
129. Two lines of cases are often cited for the proposition that the Supreme Court has found customary international law to be federal law. The first derives from Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). The "Charming Betsy" rule, as it is sometimes known, is a rule of construction that a statute should be construed when possible so as not to conflict with international law. This rule, however, does not apply international law of its own force, but instead can be seen as measure of judicial restraint: that violating international law is a decision for the political branches to make, and that if they wish to do so, they should state clearly their intentions. The second, Banco National de Cuba v. Sabbatino, 376 U.S. 398, applied the "act of state" doctrine, which generally precludes courts from examining the validity of the decisions of foreign governments taken on their own soil, as federal common law to a suit over expropriations by the Cuban government. As with Charming Betsy, however, the Court developed this rule as one of judicial self-restraint to preserve the flexibility of the political branches to decide how to conduct foreign policy.
Some supporters of customary international law as federal law rely on a third line of cases, beginning with Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). In Fiartiga, the Second Circuit read the federal Alien Tort Statute, 28 U.S.C. § 1350 (1994), to allow a tort suit in federal court against the former official of a foreign government for violating norms of international human rights law, namely torture. Incorporation of customary international law via the Alien Tort Statute, while accepted by several circuit courts, has never received the blessings of the Supreme Court and has been sharply criticized by some circuits, see, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808-10 (D.C. Cir. 1984) (Bork, J., concurring), cert. denied, 470 U.S. 1003 (1985), as well as by academics, see Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy of International Human Rights Litigation, 66 Fordham L. Rev. 319, 330 (1997).
130. See Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001) (reviewing authorities).
131. "When articulating principles of international law in its relations with other states, the Executive branch speaks not only as an interpreter of generally accepted and traditional rules, as would the courts, but also as an advocate of standards it believes desirable for the community of nations and protective of national concerns." Sabbatino, 376 U.S. at 432-33. See also Rappenecker v. United States, 509 F.Supp. 1024, 1029 (N.D. Cal. 1980) ("Under the doctrine of separation of powers, the making of those determinations [under international law] is entrusted to the President."); International Load line Convention, 40 Op. Att'y Gen. at 123-24 (President "speak[s] for the nation" in making determination under international law).
132. 13 Op. O.L.C. at 170.
133. Id.
134. Id. at 171.
135. See, e.g., Campbell v. Clinton, 203 F.3d 19, 40 (D.C. Cir.), cert. denied, 531 U.S. 815 (2000).