American Enterprise Institute

February 21, 2006

[Edited transcript from audio tapes]

11:45 a.m.	Registration and Lunch
Noon	Opening Remarks:	Jack Goldsmith, AEI, Harvard Law School
12:10	Panel I: Looking Abroad for Law? Customary International Law and the Alien Tort Statute
	Panelists:	William Dodge, University of California, Hastings College of the Law
		Julian Ku, Hofstra University School of Law
		David Moore, University of Kentucky College of Law
		Beth Stephens, Rutgers School of Law
	Moderator:	Jack Goldsmith, AEI, Harvard Law School
1:35	Panel II: Law and War: The War on Terrorism and International Law
	Panelists:	Kenneth Anderson, Washington College of Law, American University
		Morton Halperin, Open Society Institute, Center for American Progress
		John Hutson, Franklin Pierce Law Center, U.S. Navy
		Andrew McCarthy, Foundation for the Defense of Democracies
	Moderator:	John Yoo, AEI, UC-Berkeley Boalt Hall School of Law
2:50	Break
3:00	Keynote Address
	Introduction:	Christopher DeMuth, AEI
	Speaker:	Justice Antonin Scalia
4:00	Panel III: Outsourcing Constitutional Law? International and Foreign Law and the U.S. Supreme Court
	Panelists:	Peter Berkowitz, George Mason University Law School, Hoover Institution
		Thomas Goldstein, Goldstein and Howe, P.C.
		Stuart Taylor, National Journal, Newsweek, Brookings Institution
		John Yoo, AEI, UC-Berkeley Boalt Hall School of Law
	Moderator:	Danielle Pletka, AEI
	Closing Remarks:	John Yoo, AEI, UC-Berkeley Boalt Hall School of Law

Proceedings:

Jack Goldsmith:  My name is Jack Goldsmith.  I teach at Harvard Law School.  I’m a visiting scholar here at the American Enterprise Institute.  I want to welcome you to today’s program on Outsourcing American Law. 

The American Enterprise Institute has an annual conference as part of its program on American Sovereignty, a program that John Bolton was involved in starting seven or eight years ago.  John is off in New York and elsewhere practicing what he preached here for a long time.  So, we’re carrying on the business that he began. 

Today’s theme is Outsourcing American Law.  What the theme is meant to get at is the idea that increasingly United States legal norms are being either influenced or decided by entities outside of the United States.  Today’s program is designed to sort of question whether that’s true, whether it’s a good or bad idea, whether we need to be worried about it or whether there’s something to say in favor of it in various contexts.

So, there are lots of ways in which American law is potentially outsourced.  I’m just going to give you a few examples.  One example is international organizations like the World Trade Organization or NAFTA, the North American Free Trade Agreement.  These entities in a very real sense establish international organizations that review the legality of American law under international law.  So, NAFTA arbitration panels can review whether federal legislation is consistent with the international norms of NAFTA and declare them to be illegal and inconsistent with those norms.  The World Trade Organization can do the same thing. So that can be used as an example of outsourcing the final word on whether United States actions are legal because it really is involving legality under international law and it’s being decided by entities outside of the United States.

Another example that the first panel is devoted to today is customary international law.  International law is made up of two main sources:  treaties and customary international law.  Customary international law is defined as the customary practices of states that states follow from the sense of legal obligation.  By definition, customary international law is more fluid, less certain, harder to identify and, probably fair to say, more controversial than treaty law.  In the last 20 years, American courts have increasingly been applying customary international law, especially in the context of the Alien Tort Statute. The first wave of cases were about Aliens suing Aliens for human rights abuses committed abroad, but the litigation of applying customary international law norms to regulate Americans has evolved to regulate not just the activities of Aliens against Aliens for activities abroad, but also the activities of United States corporations for their activities abroad and, increasingly, the executive branch for its activities abroad.

The reason this is arguably an example of outsourcing is because the content of customary international law is increasingly determined by non-American actors -- by  international organizations that make pronouncements, international judges, non-governmental organizations and the like (or at least that’s the claim that we’ll be debating on the first panel today, which is about customary international law), especially in the context of human rights litigation under the Alien Tort Statute.

Another example of potential outsourcing, and this is the topic of the second panel, concerns the laws of war.  Once again, it’s a similar phenomenon to the customary international law phenomenon where increasingly there are independent points of interpretive authority outside the United States in European courts, non-governmental organizations like the International Committee for the Red Cross, and other non-governmental organizations that are setting the content of the laws of war that many people think contrary to the interest of the United States.

So, that’s a second example of potential outsourcing of American law because customary international law is invoked in litigation and in diplomatic circles in a way to restrict the activities of the United States that aren’t otherwise prohibited by treaties. 

The third issue, and one that’s probably of these three been most in the news, concerns the use by the Supreme Court of the United States of international law and foreign law -- especially to give content to the provisions of the U.S. Constitution.  This has happened a lot recently.  There have been lots of debates about the legitimacy of using foreign and international law to interpret our Constitution.  We’re very lucky today to have as our keynote speaker at three o’clock -- Justice Scalia –- who has been involved in this debate both in the court and publicly.  He’s going to speak to this topic.  Then our third panel will be devoted to that issue.

We have a great array of panelists today.  We have leading academics on the subject.  We have prominent journalists who have written and thought about these issues and people who have litigated the issues in the Supreme Court.  With that, with no further ado, I think we’ll start our first panel, which is about customary international law and Alien Tort Statute and the litigation after Sosa – let me just set it up a little bit – especially with a focus on the Supreme Court’s 2004 decision in Sosa. 

Just to give you a brief, brief history, the modern use of the Alien Tort Statute and the birth of human rights litigation under the Alien Tort Statute began in 1980 in the famous second circuit decision called Filartiga.  The Statute had been used infrequently since it was enacted in a judiciary act of 1789, but Filartiga sort of gave new birth to the Alien Tort Statute.  The Alien Tort Statute provides federal jurisdiction pursuits brought by Aliens for Torts committed in violation of the law of nations. 

Beginning in 1980, the Alien Tort Statute was used as a basis for human rights litigation.  As I said at the beginning, primarily between Aliens for human rights abuses committed abroad.  Then it expanded, as I said earlier, to corporations for their activities outside the United States, pursuits brought by Aliens.  There are a whole host of corporate lawsuits.  It’s been invoked against the executive branch in the war on terrorism.  Not yet successfully, I believe.

There is a lot of academic debate and debate in the courts about whether this litigation was legitimate, whether it was the proper interpretation of the Aliens Tort Statute, how much of this litigation was legitimate, how much was not.  There was enormous academic debate, enormous judicial debate. 

The Supreme Court finally took a case in 2003, decided in 2004 that resolved some of the issues, I would say, about the Alien Tort Statute and human rights litigation.  I’m not going to give you my interpretation of the Sosa decision.  I don’t want to pre-judge our panelists’ views of the case and its significance for modern human rights litigation.  I’ll leave it to our panelists to do that. 

Let me just introduce them briefly in alphabetic order and we’ll go in this order.  The panels will speak for ten to 12 minutes each and then we’ll open it up for questions.  First is Bill Dodge who’s a professor of law at the University of California, Hastings College of Law.  Bill has written extensively about the Alien Tort Statute and he participated on the writing of an amicus brief in the Sosa case that I just mentioned that the Supreme Court cited favorably. 

Julian Ku is a professor of law at Hofstra University School of Law.  He has also written extensively about the Alien Tort Statute, especially about various ways of Alien Tort Statute litigation after Sosa. 

Third is David Moore, an assistant professor of law at the University of Kentucky, College of Law.  David, too, has written extensively about the Alien Tort Statute, especially after Sosa. 

And finally, Beth Stephens, a professor at Rutgers Camden School of Law.  Beth, too, has written extensively about the Alien Tort Statute and she’s also litigated quite a few Alien Tort Statute cases so she can bring a lot of practical knowledge to bear on these issues.  With that, we’ll begin with Bill.

Bill Dodge:  Thanks, Jack.  I want to start by thanking Jack and John and the American Enterprise Institute for having us all here today.  I’m looking forward to a very interesting afternoon.

As Jack suggested, one can identify different waves of Alien Tort litigation.  The first wave began in 1980 with the Floridaga case.  These first wave suits are brought by Aliens against other Aliens for grave violations of human rights abroad.  Torture, extrajudicial killing, genocide, war crimes. 

A second wave of Alien Tort suits began in the 1990s.  In these suits the defendants are corporations, usually U.S. corporations.  Although these suits sometimes allege primary violations of human rights by the defendants, they often proceed on a theory of vicarious liability, seeking to hold corporations liable for aiding and abetting primary violations by foreign governments.  A famous example is Doe vs. Unical in which a class of Burmese villagers brought suit alleging that Unical had aided and abetted the Burmese military’s program of forced labor for the construction of a pipeline.

The third wave of Alien Tort suits involves claims against the U.S. government, its officials and others working on behalf of the U.S. government.  Although some of these suits were filed in the 1990s, this wave has recently swelled with cases arising from the war in Iraq and U.S. anti-terrorism policies.  Detainees from both Guantanamo Bay and Abu Ghraib have filed suits against U.S. officials and contractors alleging torture, among other things.

Sosa vs. Alvarez-Machain was one of these third wave cases.  It involved a claim of arbitrary detention against a foreign national working under the direction of the DEA to bring a criminal suspect to the United States for trial.  Although the case arose long before September 11th, 2001, it was fraught with implications for the war on terror for it raised the possibility that U.S. officials and others aiding them in capturing or detaining foreign suspects might be liable civilly for violating customary international law.  It was this aspect of the case that made Sosa an attractive one for the Bush administration to take to the Supreme Court.  And a frightening one for advocates of the Floridaga line of cases.  But it was considerations from the second wave of corporate cases, critically affected by Sosa’s council and the Bush administration about what arguments to press before the Supreme Court. 

Sosa’s principle argument to the Supreme Court was that no suit could be brought under the Alien Tort Statute unless Congress granted an express cause of action.  This cause of action argument came from Judge Bork’s concurring opinion in the 1984 case called Tel Oren vs. Libyan Arab Republic.

Because express causative action exist in U.S. law only for torture and extrajudicial killing under the 1992 Torture Victim Protection Act, this argument would have wiped out most Alien Tort litigation, including the corporate cases.  Neither Sosa’s council nor the Bush administration chose to make the alternative argument that Alien Tort suits between two aliens were unconstitutional because they exceeded the limits of Article III’s grant of subject matter jurisdiction to the federal courts, an argument ably sketched in a 2002 article by Professor Curtis Bradley.

If successful, this argument would have barred the suit in Sosa.  It would have barred other third wave cases against foreign defendants.  It would have also done away completely with the first wave of cases, the Floridaga line of cases.  But it would not have stopped the second wave of cases against American corporations because Article III of the Constitution provides for jurisdiction over controversies between the citizens of the state and foreign citizens or subjects.

Sosa then became a stalking horse for the corporation cases.  The $25,000 in damages awarded against Sosa hardly justified taking this case to the Supreme Court.  But Sosa’s council was also counsel to Unical.  The Bush administration had supported the cause of action argument with an amicus brief in Unical and apparently saw Sosa as a good vehicle to take this argument to the Supreme Court.  This strategic decision proved to be a very poor one for opponents of the Alien Tort Statute because in choosing the argument with the broadest impact, they chose the one with the weakest historical basis.

It is clear, beyond any doubt, that in 1789 when the Alien Tort Statute was passed as part of the first judiciary act, the law of nations was considered to be part of the general common law.  No express cause of action was needed because the common law provided a write of action for torts in violation of the law of nations, just as it provided a write of action for other torts.  The Supreme Court thus rejected the cause of action argument and in a part of the Sosa opinion joined by all nine justices, held that the Alien Tort Statute “is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with potential for personal liability at the time.”

Justice Souter’s opinion went on to hold that suits could be brought under the act not just for violations of safe conducts, infringement of the rights of ambassadors and piracy, but also for violations of the present day law of nations that “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th Century paradigms we have recognized.”  At this point, Justice Souter lost three votes.

Justice Scalia’s concurring opinion, joined by Chief Justice Rehnquist and Justice Thomas argued that the court’s rejection of a general federal common law in the 1938, Erie Railroad vs. Tompkins had closed the door on Alien Tort suits based on that law.  His opinion drew heavily on a 1997 Harvard Law Review article by Professor Goldsmith and Professor Bradley arguing that after Erie, federal courts should treat customary international law as state rather than federal common law.  The majority, however, rejected the Bradley/Goldsmith position, expressly characterizing modern, customary international law as federal common law, at least for purposes of the Alien Tort Statute.  A qualification that is important and that I will return to.

The effect of Sosa was to endorse the status quo in Alien Tort litigation.  Although the court reversed the award of damages holding that Alvarez-Machain’s brief detention did not violate a well established norm of customary international law, the standard it adopted for general acceptance and specificity was the same one the lower courts had been applying in the first wave cases.  Indeed the court stated that its standard was generally consistent with these lower court decisions, citing several with approval including Floridaga.

It seems clear then that this first wave of Alien Tort suits between aliens for grave violations of human rights abroad will continue in U.S. courts.  I’m not going to guess about the second and third waves at this point.  I’ll leave that to others or to the question and answer period.

I do want to say a few words about what I think the implications of Sosa are for the role of customary international law in the U.S. legal system more generally.  I think one can say three basic things.  First, it seems fair to say that the most sweeping version of the Bradley/Goldsmith argument that after Erie, customary international law can never be federal law unless expressly incorporated by Congress is dead.  Sosa expressly holds that customary international law is federal common law for Alien Tort Statute purposes.

Second, it’s important to note that while Sosa begins with the historical understanding of the Alien Tort Statute, it does not end there.  Sosa expressly considers modern developments engaging the proper role for customary international law.  This is important methodologically because there have been enormous changes in both international law and the domestic legal system over the last 220 years.  These changes include not just the decline of general common law, but also a transition from natural law conceptions of international law to positivism during the 19th Century.  This is an area in which it is not possible to be a strict originalist because the world the framers lived in no longer exists.  One must necessarily translate the original understandings into modern terms. 

Third, Sosa does not hold that customary international law is federal common law for all purposes.  Rather it takes what I have called a ‘particularized’ approach looking at the place of customary international law in the domestic legal system issue by issue.  To illustrate, it’s helpful to examine a fascinating exchange of footnotes between Justice Scalia and Justice Souter.  In his footnote, Justice Scalia argued that if international law is federal law for purposes of the Alien Tort Statute, it must be federal law for all purposes.  Customary international law would then bind the states under the supremacy clause of Article 6 and it would constitute part of the laws of the United States for the purposes of both Article III and the general federal question Statute.

Justice Souter responded for the court in footnote 19 that although customary international law is federal common law for the Alien Tort Statute, it is not for the purposes of the general federal question Statute, which was passed in the 1870s.  He pointed out that the background assumptions against which that Statute was passed were different than at the time of the first Congress.  Justice Souter said nothing, interestingly enough, about the status of customary international law under either Article VI or Article III of the Constitution. 

As a textualist and originalist, Justice Scalia should have known better than to lump all of these issues together.  Let us consider for a moment the place of customary international law under three provisions of the Constitution.  Article II’s take care clause, Article III’s grant of federal question jurisdiction and Article VI’s supremacy clause.

Let’s begin with the texts.  Article II, Section 3 says the President shall “take care that the laws be faithfully executed.”  Article III, Section 2 extends the judicial power to “all cases in law and equity arising under this constitution, the laws of the United States and treaties made or which shall be made under their authority.”  And Article VI says “This Constitution and the law 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.”

As a simple matter of textualism, the use of different phrases, the laws in Article II, the laws of the United States in Article III, and the laws of the United States which shall be made in pursuance of this Constitution, suggest that each of these provisions has a different scope. 

Turning to the history of these provisions, it is clear that the framers understood Article II’s take care clause to embrace the law of nations.  The issue arose shortly after ratification in 1793 in the context of the neutrality debates.  Alexander Hamilton, writing a specificus argued, “The executive is charged with the execution of all laws, the laws of nations, as well as the municipal law which recognizes and adopts those laws.”  Madison, writing his Helvetius, disagreed with Hamilton about much, but not about this, characterizing Hamilton’s point about the take care clause as a truth.  So, notwithstanding the pack, had Habana’s misunderstood dictum about controlling executive acts, from a textualist’s and originalist’s point of view, the President has a constitutional obligation to obey customary international law.

With the Bush Administration’s recent invocation of the commander-in-chief power in the wire tapping controversy in mind, it’s also worth noting that the President’s obligation under the take care clause is on the same level as the commander-in-chief power.  So, an assertion of that power would not be sufficient to avoid it. 

What about the scope of Article III’s phrase the laws of the United States?  If it does not include customary international law, then Alien Tort suits between aliens, like the Floridaga case or the Sosa case are unconstitutional because there is no other basis of jurisdiction in Article III to support them.  This is the issue that Sosa’s counsel and the Bush Administration chose not to raise in Sosa.  But they might have enjoyed no greater success than with the cause of action argument in the end.

The original understanding, as I’ve argued at length elsewhere, is that the laws of the United States included the law of nations.  Several plans submitted to the Constitutional Convention provided expressly for jurisdiction over cases arising under the law of nations, the draft reported by the committee of detail did not.  It contained a limiting phrase, passed by the legislature, but the convention voted to strike that phrase removing that limitation.  John Jay and federalist three described Article III as granting jurisdiction over questions of the law of nations commending the convention for assuring a uniform interpretation of that law. 

Finally, what is the status of customary international law under the supremacy clause of Article VI?  Here the text refers to the laws of the United States which shall be made in pursuance of the Constitution, a phrase that would seem to exclude customary international law.  On the other hand, there is a good deal of evidence that the law of nations was considered to be binding on the states already as general common law, in which case it would have been unnecessary to include the law of nations in the supremacy clause.  How then to translate the original understanding into the modern legal system.  I have suggested that customary international law should bind the states under the supremacy clause. 

I will confine myself here to two basic points.  First, the Supreme Court has recognized that other kinds of law, not expressly listed in the supremacy clause, bind the states, specifically executive agreements that do not meet the constitutional requirements of treaties.  Second, incorporation of customary international law through the supremacy clause has some procedural advantages because it would be subject to override by Congress.

Thus, even if customary international law is binding under Article VI, if Congress wanted to authorize the states to violate customary international law, for example, by executing minors or pregnant women, it could do so.  It seems to me that such a system would be less intrusive on state sovereignty than what the Supreme Court is currently doing, which is using foreign and international law to interpret the eighth amendment because Congress has no power to reverse those interpretations.

In conclusion, Sosa leaves unsettled a host of fascinating issues concerning the relationship between customary international law and the U.S. legal system.  Issues that promise to keep both the academy and the courts busy for some time.  Thank you very much.  [Applause]

Julian Ku:  Thanks.  I also want to thank John and Jack and AEI for inviting me to speak today.  I’ve long admired both the work of John and Jack so it’s an honor for them to ask me to contribute to a discussion that both John Yoo and Jack Goldsmith have already done so much to shape.

My goal today is to build on Bill’s discussion of Sosa v Alvarez-Machain, but not talk so much about what Sosa did, but to talk about what to do about Sosa now.  In particular, I’m going to offer an argument in favor of executive branch control over the interpretation of customary international law.  I’ll outline a theory in support of the President’s Constitutional power to issue interpretations of customary international law that are binding on federal courts, at least in cases brought under the Alien Tort Statute.

Now, I have to admit this remains a theory, but that’s why I’m an academic.  It has not been adopted by any court and, in fact, I have to admit it has not been adopted by the executive branch either, even currently.  But I do think it’s something the current administration should think about developing. 

After Sosa, as Bill mentioned, the customary international laws continue to be invoked in a wide variety of cases, including a number of important cases against the executive branch’s policies on the war on terrorism.  Sosa did not really address the concerns that a lot of the critics that the ATS, Alien Tort Statute, raised prior to Sosa.  After Sosa, federal courts are still empowered to recognize innovative or cutting edge norms of customary international law and the foreign policy interests of the U.S. government are not always taken into account, or at least into serious account when deciding these kinds of cases.  So, in my view, the executive branch has the legal authority to assert a more aggressive role in the interpretation of customary international law by federal courts.  I’ll offer a number of legal and functional justifications for this role. 

So, first, I’ll argue that Sosa has not resulted in substantially stricter or narrower interpretation of customary international law.  Second, I’ll outline my legal argument in favor of presidential control of customary international law.  Third, I’ll offer functional justifications for this legal argument.

So, as most of you know, customary international law is often applied really, by U.S. courts in the context of private lawsuits brought under the Alien Tort Statute.  The key case on this is now Sosa v Alvarez-Machain, which Professor Dodge discussed at length.  Now, after Sosa, two important questions remained.

How would federal courts be able to effectively determine which customary international law norms were well accepted and which were not.  One, as Professor Dodge also mentioned, in particular, would lawsuits against corporations premised on the theory that corporations can be liable under international law, either directly or indirectly, would that survive after Sosa.  That was a big question. 

And second, a less sort of big question, but I think actually the more important question, is the Sosa court noted that the executive branch’s views on foreign policy, that the foreign policy effective in a particular lawsuit would be given substantial weight, but how much weight would courts really give to these executive branch views. 

Now, it is a little bit early to be sure how all this will pan out, but I think it is safe to say that Sosa has not been read to bar innovative or cutting edge interpretations as customary international law, such as arguably liability of corporations for direct or indirect violations of human rights laws. 

Additionally, while the executive branch has made great efforts to intervene in cases that it believes adversely effects its foreign policy, Sosa has not been read to require very serious deference to the executive branch’s views.  Just to talk about one case that, I think, illustrates this 2005 case.   Presbyterian Church v. Talisan is a lawsuit by Sudanese nationals against a Canadian energy company alleging that that Canadian company aided and abetted the genocidal activities of the Sudanese government in Darfur.

The Canadian company moved to dismiss based on Sosa’s new standard for finding customary international law arguing that corporate or secondary liability is not sufficiently well accepted for a federal court to use as a rule decision.  The Canadian company also moved to dismiss based on a statement of interest filed by the U.S. and Canadian governments.  Canada argued that, in particular, we have our own remedies for punishing international human rights abuses.  It can prosecute it.  It was trying to use promotion of trade with Sudan as a carrot to go along with the stick of international pressure on the government of Sudan.

A U.S. statement of interest basically endorsed the Canadian government’s views.  And the district court in the southern district of New York easily rejected both these arguments and allowed the lawsuit to go forward.  With respect to the question of corporate liability it said it relied heavily on case law developed by the international criminal court for the former Yugoslavia and the court in Rwanda.  It’s held that there is a well accepted customary international law in holding private actors liable for violations of certain customary international law norms and for secondary liability for international human rights violations.

In answer to the question of the U.S. statement of interest, the court simply held that the policy considerations offered by the Canadian and U.S. governments do not militate against continuing to assert jurisdiction in allowing the lawsuit to go forward.  Since the allegations were that the Canadian company knowingly participated in the genocide, the foreign policy interests that Canada had suggested, the court decided didn’t really outweigh the interests in pursuing this lawsuit.  So, it essentially refused to accept the Canadian claim supported by the U.S. government that jurisdiction here would interfere with the effective exercise of U.S. and Canadian foreign policy. 

So, the bottom line, this is just one case I realize, but I think it’s illustrative at least of how some courts might read Sosa.  After Sosa, courts have still found corporate and secondary liability for violations of customary international law, even though at least this theory is arguably an innovation under traditional customary international law norms.  Moreover, despite the Sosa court’s admonition, the courts give great deference to the executive branch statements on the effect of foreign policy, the court here and other courts have had little difficulty brushing these aside to saying even when there are very plausible foreign policy conflict interests that were demonstrated. 

Now, let me turn to my second point.  Let me offer a different approach to how we should interpret customary international law that that was at least outlined by the Sosa court.  It requires the federal courts to give the executive branch absolute, or at least near absolute, deference in its interpretations of customary international law in the context of Alien Tort Statute lawsuits. 

Now, my legal argument rests on text structure, precedent and some aspects of the Sosa decision itself.  So, the first place to look obviously is the text construction of the Constitution.  While it’s not perfectly obvious, and I do agree here with Professor Dodge that there’s no obvious originalist answer to this question.

I do believe that the structure of the Constitution allocates to the President and not to the federal courts the power to interpret customary international law on behalf of the United States.  The President doesn’t get the last word on what is customary international law for purposes of the United States, but neither do the federal courts.  The last word is held by Congress.  So, there are at least textual approaches. 

There are two clauses in the Constitution that justify the President’s power to interpret customary international law.  First is a general vesting clause that gives the President the executive power, and which has been interpreted rather broadly to give the President broad residual powers to make pretty much almost all the foreign policy decisions on behalf of the U.S. government. 

Second, the President has specific powers in the context of his specifically textually granted powers such as his commander-in-chief power arguably gives him a lot of power to interpret the law of war and his power to recognize foreign ambassadors gives him broad powers to interpret the law of diplomatic and sovereign immunity.  So, the President might have both very broad executive powers to interpret customary international law and also specific foreign policy powers that allow him to interpret the law in particular context.

The structure of the Constitution weighs heavily in favor, I think, in giving the President a primary and dominant role in the development of the U.S. government’s views on customary international law.  This floats from the primacy – a primacy that everyone would admit, even if they don’t like it – the primacy of the President in the conduct of U.S. foreign affairs.  This primacy means that the President has at least always been understood to have the power to accept a rule of customary international law on behalf of the United States.

So perhaps the famous President Truman accepted a rule of customary international law extending U.S. claims to the continental shelf underneath the oceans of the U.S. territorial seas.  He has the power to recognize rules of customary international law in the context of the law of war, foreign sovereign immunity and many other categories.

The power to accept the rule of customary international law is sort of the sweet part, but it also includes the bitter part.  The bitter part is that if the President has the power to recognize or accept a rule of customary international law, it likely means the President also has the power to reject the rule of customary international law on behalf of the United States. 

Now, again, just so you don’t think I’m really crazy, I do not say the executive has the exclusive role in determining U.S. positions on customary international law, plainly Congress has the power to overrule pretty much any Presidential determination of what is customary international law for the United States.  Congress is granted the power to define and punish offenses against the law of nations.  But this power is rarely exercised and in almost all cases is exercised secondarily after the President or federal courts have acted. 

What is clear, at least in my mind, is that federal courts have very limited powers to interpret customary international law.  The federal courts have generally recognized customary international law as a form of general common law, as Professor Dodge has pointed out.  Some have argued that this also means that it falls within the Article III’s grant of jurisdiction to cases involving the law of the United States.  Either way most scholars agree that absent statutory codification, customary international law is only applied in U.S. courts as part of the common law.  And, therefore, holds a very unusual and limited status, unlike federal statutory law, treaties, or constitutional law. 

Customary international law has no obvious legitimating political authority for its status in the U.S. system.  This is not to say that customary international law is not law, but that it is just a very unusual kind of law in the U.S. system.  This is another explanation, at least in my mind, for why it makes sense for the President to have broader control over this kind of law than other kinds of law.

Now, Professor Dodge mentioned that the take care clause, which the President is required to take care that the laws be faithfully executed, as requiring the President constitutionally to follow, to obey customary international law or whatever international law might bind the United States.  But I think this reading of the take care clause ignores at least one of the realities in the interpretation and the administration of customary international law. 

Unlike other forms of law the President must take care of, constitution, treaties, Statutes, customary international law is formed by the customs and practices of states including the United States.  This makes customary international law a uniquely flexible type of law because the President will often act in ways that deviate from state practice. 

To take one really uncontroversial example, suppose the customary international law of the sea required acceptance of a three mile rule for territorial seas.  The President wanted to recognize a 15 mile rule.  Can he do it?  Would he be bound to take care and follow the three mile rule unless or until Congress told him he could go recognize the 15 mile rule.  I don’t think that’s the way the take care clause has been understood.  I don’t think that’s how historically it’s been interpreted.

Now, this primacy that I’ve been talking about in the executive branch is interpretation of customary international law has been recognized and given effect in a variety of context.  Perhaps the most common example prior to the rise of Alien Tort Statute lawsuits was in the executive branch interpretations of the customary international law of foreign sovereign immunity.  In early and mid 20th Century the executive branch was commonly consulted on its views as to the applicability and the proper interpretation of the law of foreign sovereign immunity, a form of customary international law, the executive branch’s statements as to the applicability of foreign sovereign immunity were given heavy and in some cases absolute deference by courts in the United States.  So, when the executive branch said that we would adopt this particular interpretation of customary international law or apply it to this particular case, the court would pretty much say, okay, that’s it, we’re done here. 

Now, this process changed with the passage of the foreign sovereign immunities act, which Congress codified the rule and took away the President’s power to some degree.  But it just provides an example of how this process might work.  You have rules of customary international law that are recognized by the President, which are followed by the courts, which Congress can then eventually codify if it chooses through statutory law.

Let me just try to conclude because I’m running a little over on my time.  In Sosa itself, the Supreme Court itself recognized the peculiar and special nature of customary international law.  Under the Sosa court’s reading of the Alien Tort Statute, the Statute does not create a cause of action.  It rather grants jurisdiction and existing lawsuits are permitted on theory of courts exercising very limited common law powers.  In this understanding where courts have very limited authority to engage in this kind of lawmaking, they are obviously operating with the tiniest Congressional mandate possible or imaginable.

So, in that circumstance, a rule of deference or very heavy deference or maybe even absolute deference to the executive branch seems to follow actually rather naturally.  It doesn’t seem to fall out of place with the Sosa court’s decision.

Now, let me just sort of quickly point out that as a practical matter there’s a lot of advantages to having executive branch determine customary international law unifying interpretations of customary international law on behalf of the United States.  For a variety of reasons, the executive branch has a lot more access to information and access to the way that the rules of customary international law might intersect with the foreign policy interests of the United States allowing both the federal courts and the President to contest what the proper interpretations of customary international law are.  It’s going to create a lot of dissension.  At least to me, it seems it’s a fairly strong argument to me that the executive branch has greater competence in determining how to interpret customary international law in light of the foreign policy interests of the United States.

Now, let me just conclude here.  I do not want you to misunderstand my argument.  I’m not arguing for Presidential absolutism in foreign policy or in Alien Tort Statute lawsuits.  I fully accept that in some or pretty much all cases Congress may determine that customary international law may be a ruled decision for the courts.  I think it has done some in some circumstances.  But where Congress has not spoken plainly that it wants courts to apply customary international law as a ruled decision, the executive branch I think should properly exercise its constitutional authority to issue binding interpretations of customary international law that should be followed by federal courts.  Thanks.  [Applause]

David Moore:  I think maybe as the most junior faculty member here my judgment was lacking because I think I’ve staked out perhaps the most aggressive position.  That is simply that the Sosa decision has been widely misread.  To understand why I think that, I’d like to go back to some of the background Jack gave us on the debate that was occurring pre-Sosa.  Prior to the Sosa decision the majority position – and I say majority meaning the position the restatement of U.S. foreign relations law had adopted and the position of most scholars who had written on the topic -- was that customary international law was federal common law that could be immediately applied by the federal courts. 

The minority position was that after Erie there was no room for federal courts to immediately apply customary international law, which had been general common law.  But instead the federal courts were supposed to follow the lead of the political branches.  Unless the political branches had acted and decided to incorporate customary international law as domestic law, the federal courts could not site customary international law as a rule of decision.  This was essentially a strict separation of powers position that Congress and the executive are the primary lawmakers in our system and the primary conductors of foreign affairs.  Sosa, of course, weighed into this debate and post-Sosa, most scholars have taken the position that Sosa has endorsed the majority view that federal courts still have authority to apply customary international law as federal common law. 

My research has identified about 15 scholars who have staked out that position.  Some have done so very aggressively.  In the Yale Law Journal last year, one professor said that Sosa sided definitively with the majority position and represents a catastrophe for the minority view.  We’ve heard Bill today say that the minority view is dead, post-Sosa.  Some have not taken as aggressive of a stance, but again, the majority of scholars have read Sosa as upholding the majority view. 

If I understand the writings of my fellow panelists, all of them have also perceived Sosa as a victory for the majority position, even if they don’t necessarily agree with that outcome.  But as I said, I believe that interpretation is simply wrong.

 I believe that for three reasons.  One is the Supreme Court’s focus on Congressional intent in the Sosa decision. 

The second is the limitations that the court imposed on the federal judiciary.  If they were going to site customary international law or use it as a rule of decision. 

And third, the reasons that Congress gave for imposing those limitations.  In my view, you look at those three things. Sosa endorses the minority view that the federal courts are to wait for the political branches to incorporate customary international law.  And not only does it endorse that view, but it does so unanimously.  Unanimously, the court felt that Congressional intent was the key to resolving the principle issue in Sosa, whether the federal courts could use customary international law to provide a cause of action in that case.  After quickly agreeing that the Alien Tort Statute was simply jurisdictional, the court turned to deciding whether there could still be customary international law causes of action pursuant to the Alien Tort Statute’s jurisdictional grant.

To answer that question, the court did not turn to a discussion of the inherent authority of the federal courts.  Rather, it turned to a lengthy analysis of what Congress had intended.  Had the court accepted the majority position that customary international law is simply federal common law, the court would not have needed to engage in this discussion of Congressional intent.  The majority view the federal court as simply having this authority to apply customary international law as common law, even in the absence of Congressional action.

So, the Alien Tort Statute really would have been irrelevant.  There was no need for Congressional action for customary international law to be applied.  Indeed, the court didn’t have to rely on the Alien Tort Statute, even for a jurisdictional grant because under the majority view they could have simply turned to 1331, the General Federal Question Statute. 

If customary international law was federal common law, presumably it arose under federal law and the suit could have been brought directly under 1331.  The court rejected that argument.  It wasn’t as Bill suggested that the court simply said that customary international law was not federal common law for purposes of 1331, or the General Federal Question Statute.  But what the majority said is that 1331 simply didn’t provide any evidence of Congressional intent for courts to apply customary international law as a rule of decision.

So, all nine justices felt that what was critical here again was Congressional intent.  This was not easy to discern.  There was no recorded debate on the Alien Tort Statute or discussion in historical records of the First Congress of what was intended exactly by the Alien Tort Statute.  However, the court unanimously was able to agree that the history tended to show that Congress intended the Alien Tort Statute to have some immediate application.  Yes, it was a jurisdictional Statute, but that Congress understood at the time that there were customary international law causes of action that the federal courts could apply as general common law.  So, they saw there that there was a basis for applying customary international law and intended that the Alien Tort Statute would, therefore, have some immediate traction.

The court split though on deciding what the import of this intent was, this intent or this understanding, at least, that the courts would have some authority to apply customary international law.

Justice Scalia believed that it was impossible post-Erie to fulfill or implement that intent of the First Congress.  Why?  Because general common law was different in kind from the common law that survived Erie.  So that the court could not simply leave open the door of allowing federal courts to apply certain customary international law causes of action that had been open at the time the ATS was enacted.  Instead, the court would have to open a new door.  Authority to apply federal common law is understood post-Erie.  The majority disagreed with that.  The majority felt that Congress’ intent post-Erie could still be implemented.  It felt there were other considerations the majority said that left the door ajar subject to vigilant door keeping. 

What were these other considerations?  One, that Erie had not rejected common law all together.  Two, that the court had affirmed that domestic law recognizes customary international law, or international law more generally.  And third, that there was no intent.  Again, focusing on Congress’ intent.  There was no intent from the First Congress or subsequent Congress to strip federal courts of their authority to apply international law at all.

Some of these considerations are not controversial.  We recognize that post-Erie, there is some room for common law.  Certainly the First Congress’ and arguably subsequent Congress’ intent has been to allow some customary international law causes of action to go forward.  What those who advocate the majority position would tend to rely on in saying that Sosa continues to endorse that position is that the court said that domestic law recognizes international law.  But, if you look at the language, the language was very circumspect.  One that said it’s not that the federal courts must avert their gaze entirely or that Erie does not preclude application of customary international law as common law. 

But more fundamentally, why was the court invoking these considerations at all?  It was to determine what the intent or how the intent, whether the intent of the First Congress could still be implemented.  So, this consideration that international law has some role in our system was simply a consideration to lead to the conclusion that Congress’ intent could still be implemented post-Erie.  That intent, however, was supposed to be exercised subject to great restraints, the majority said.  Why?  Because our conception of common law has changed.

We recognize that common law is a lawmaking exercise, not a law discovering exercise because our conception of the federal court’s authority has changed.  We recognize now, as the court indicated, that Congress is the primary lawmaker and that as a general rule we should look for legislative guidance before the courts exercise any kind of innovative authority over substantive law.  Other reasons for restraint, the court has indicated that we should look to Congress for causes of action.  That there are important policy decisions involved in deciding whether to create a private right of action so we should look first to Congress.  Here there was no mandate from either the First Congress or subsequent Congress, Congress’ for the federal courts to get involved in widespread cause of action creation.

Finally, the Supreme Court said the federal courts need to exercise restraint because of the collateral consequences of incorporating customary international law as federal common law for the foreign affairs implications that that leads to.  The court recognized, again, that Congress and the executive are to take the lead in foreign affairs.

Underlying all these reasons for restraint are separation of powers concerns.  Is there recognition that Congress and the executive are the primary lawmakers and conductors of foreign affairs.  Those are the concerns that animate the minority position.  Not only did the court recognize these reasons for restraint, but imposed some fairly stringent limitations on the federal courts.  After recognizing that they did have some authority as a result of Congress’ intent in enacting the Alien Tort Statute, none the less, the Supreme Court imposed limitations on the exercise of that delegated authority. 

As has been mentioned, the court indicated that federal court should not recognize a common law cause of action in situations where customary international law is not sufficiently explicit or broadly accepted.  Not only does this prevent the federal courts from recognizing a norm of customary international law before it is actually qualified as customary international law, but this serves to prevent the federal courts from exercising discretion beyond that that the First Congress intended in enacting the Alien Tort Statute.

Federal courts are also to consider the practical consequences of what they’ve done - the foreign relations effects, the position of the executive, an exhaustion of remedies, according to the court.  Again, all these considerations are based on separation of powers concerns,  inconsistent with this majority view that the federal courts have some unfettered authority to apply customary international law as common law.

Did the court get this right?  I think so.  I think so for a number of the reasons that Julian mentioned.  Comparing the competencies of the federal courts to Congress and the executive, both in the area of foreign affairs and in the area of domestic lawmaking, there’s certainly advantages.  Not to mention Constitutional separation of powers mandates that would lead me to conclude that Congress and the executive should take the lead.  Certainly there’s increased transparency in Congress that we hold public hearings to see what Congress is thinking before they enact a law, whereas we get our reasons from the courts ex-post if customary international law is adopted as common law.  The Congress and the executive have broader capacity to look beyond the specific case to the broader implications of incorporating customary international law and have the facility to gather information in a way that’s much broader and less formal than so many ways than what we get in litigation.

All this is not to say that Sosa left international law out in the cold.  There can be room for customary international law in our domestic legal system.  Sosa in my view simply says that Congress needs to make that decision.  If customary international law is to provide a rule of decision, that decision should be made by Congress.  I think Sosa made that clear by focusing on Congressional intent and basing its decision that there was some residual power to apply customary international law as common law on the intent of the First and subsequent Congresses.  Thank you.  [Applause]

Beth Stephens:  Thank you.  Thank you also to Jack and John for including me on this panel.  I think it’s clear from our past writing and the work that we have done that we disagree so profoundly on so many issues of Constitutional and international law that I would have to hope this is a reflection they consider me to be a worthy debater in this process.  Certainly not an endorsement of my views.

I don’t disagree with some of the verging opinions of the prior panelists about what Sosa said about the role of the federal courts in federal common law and in customary international law.  I think there’s a common ground on which we might agree that Sosa did hold that the federal courts have and still have the power to recognize federal common law causes of action, that they historically have such a power and that nothing in the Erie is putting an end to the general common law or in the general rise of positivism in our legal system.  Nothing in either of those trends or decisions precludes the federal court’s recognition of federal common law causes of action.  I think it’s important in recognizing this to resist an effort to read Justice Scalia’s opinion as the majority decision in the case.  It was not – and some of the lower courts in applying the case have made, I think, very clear their wish that it had been the majority.  But that was the point of Sosa on which the court did rule six to three.

I think of customary international law as one of many sources of law that the federal courts, or even the state courts, could choose to apply to cases where it properly governs.  And that Sosa is a case in which, as David said, the court ruled that perhaps there are other reasons why customary international law might be applied in other situations.  But in this one, we have customary international law as the basis for a judicially recognized federal common law cause of action because Congress so intended.  Congress intended that when it enacted the Statute in 1789 and nothing has happened in the intervening 200 and plus years to preclude the courts from continuing to do that.

The court also recognized and upheld prior practice in the ways in which courts determined customary international law, citing to a decision from 1900 in which the Supreme Court talked about the sources of customary international law as including the decisions of scholars helping to understand customary international law, as well as views of the various branches of government. 

So, in sum, Sosa tells us about customary international law at least as a minimum, that the federal courts have the power to recognize and apply it in appropriate situations, in appropriate cases.  It rejects the arguments that the courts have no power to do this unless Congress has specifically incorporated and defined the norm of customary international law.  That was one of the arguments that was made to the court in the briefing and the court didn’t go for that.

I think the court also rejects exactly the kind of executive branch monopoly that Julian has argued for implicitly because the executive branch argued for such a monopoly in its briefing to the court.  One way to see that is in the court’s discussion of the actual claim, which it rejected in the case.  The claim that Alvarez-Machain had been the victim of an arbitrary detention that violated international law.  The Supreme Court didn’t say, well the executive branch tells us that this was not a violation of international law.  Instead, the Supreme Court did its own analysis of the norm, looked at the international documents relied upon by Alvarez-Machain and said they don’t cut it.  They don’t establish that there is customary international law that prohibits the abuse to which he was subject.  It doesn’t rise to that level.

So the methodology, the method by which they found that he had not stated a violation of international law, to me very clearly shows that it’s not so simple to say, well the executive branch tells us so. 

I would disagree with the view that the court ignored the problems with its approach to customary international law and ignored the foreign policy concerns.  I think the court was clear about the fact that although courts have to act carefully in this area, there is a role for the federal courts in determining and applying norms of customary international law.  I’ll come back to that in a minute. 

First, let me talk briefly about the future uses of the Alien Tort Statute after Sosa.  Some of these topics have already been touched upon.  Certainly, I agree that the area of corporate liability and corporate defendants is the most controversial and the most likely to have an impact on the future. 

This third generation of cases against the U.S. executive branch, as somebody mentioned, have not had much luck to date and run into a whole set of federal immunity issues that are quite daunting.  But, on the corporate cases, cases that are filed against private corporations, I would say that they fall clearly without a doubt within the parameters set out by Sosa.

The framers recognized that private actors could be held liable for some violations of international law.  The framers recognize that actors who assisted violations of international law could be held liable for their role.  Sometimes referred to as vicarious liability, but when one is aiding a human rights violation, that’s not vicarious liability in the sense of respondent superiority.  You have agent principle.  You have a legal relationship which means that you are liable for the wrongs done by someone else.  These are situations in which private actors have done things that have contributed to the human rights abuses. 

In the case of the Talisman case for genocide in the Sudan, a case brought by Christians or the Presbyterian Church, charging genocide against their church members, the oil company is accused of colluding with the government of the Sudan, knowing that the Christian residence of this particular area of the Sudan were going to be wiped out in order to clear the land for oil exploration.  That’s not vicarious liability.  That’s not saying that because they’re entered into some legal relationship with the government they will be held liable for what’s done by the government. 

All domestic systems recognize that corporations can be held liable for tortuous behavior.  International law recognizes that corporations can be held liable, that private actors can be held liable.  One complaint is that many of the international law precedents come from the criminal law side, rather than civil law.  But in looking at a comparative law approach, it’s a mistake to draw too much from the line between criminal and civil.  Different domestic legal systems draw the line differently.  Many country’s private citizens can attach a civil complaint to a criminal prosecution and in many countries private citizens can bring criminal prosecutions.  So that many of the assumptions that we make about the difference between criminal and civil just don’t apply internationally. 

So, precedence from different systems on both sides of the civil/criminal line often apply to both kinds of cases.  I think that there is really no basis for a distinction between holding private individuals liable and holding corporations liable in these human rights cases, except for the, I suppose, understandable corporate interests and not being held liable for egregious human rights abuses.  I think one of the messages of Sosa is very much that it is only the core egregious abuses that can be the subject of suits under the Alien Tort Statute.

So, that the concern pre-Sosa without liar or trivial or minor abuses being recognized as actionable under the Statute has largely been put to rest.  The argument that a corporation should not be held liable under the Talisman facts, for example, when it aids and abets genocide to me is one that has no foundation in current law.  And as well, no foundation in U.S. foreign policy.

There have been several cases post-Sosa that had dismissed claims on the basis of U.S. government executive branch statements of interest.  This is an area which I guess I’m at 180 degrees opposite of Julian in saying that I’m quite concerned that the courts are far too likely to defer to the executive branch.  I think that there’s a very difficult line for the judiciary in trying to determine how to give respectful deference to the views of the executive branch when the executive branch statements are based on conclusive claims this will interfere with foreign policy without detailed justifications.

If the courts give absolute deference, the executive branch says we can’t hear this case, therefore, we won’t.  I think the courts have abdicated their constitutional role under our system of separation of powers and have really seeded to the executive branch a power that the Constitution grants to the judiciary. 

So, my prediction for the Alien Tort litigation is that more of the outlier, less egregious claims will drop off.  That there will be fewer such claims. That as the courts become more comfortable with the doctrine, I would hope that such claims will be brought less, but it’s hard to predict what litigators will do, but dismissed more quickly.  There have been claims for all sorts of human rights abuses and contract and domestic Tort claims, which the courts have had no trouble at all in dismissing over the 25 years since Floridaga.  I think those claims will be dismissed even more quickly now post-Sosa.  But that I would predict that the corporate claims and the aiding and abetting claims will survive because I do think that they meet the Sosa standard. 

My final point on the role of the judiciary in these cases and in applying customary international law and the connection to the larger theme of the afternoon, I reject the argument that the judicial application of customary international law or international law in general is anti-Democratic or violates the principles of separation of powers because the traditional role of the judiciary is to apply neutral norms to the cases that come before them.  And the judiciary in our system plays a very important role in that, in providing a neutral forum, an objective forum in which those with less power in our political system can come and seek redress.  And where a group of peasants from rural Burma can come into court against the Unical Oil Corporation in California and receive an objective hearing.  The executive branch often does not provide that forum for citizens of our own country as well as for people from other countries. 

So, I think for some of the structural and functional reasons that lead Julian to the opposite conclusion, I would say that the judiciary is the right place for these cases to be decided, for these claims to be decided.  And I also think that it’s a mistake to overheat the rhetoric about the implications of this.  I would challenge the title of this afternoon’s event, the Outsourcing of U.S. Law, I don’t think that that application of customary international law norms in a narrow set of human rights cases constitutes outsourcing.  One of the questions asked in the program is, are there circumstances under which international and foreign law can trump the Constitution.  I don’t think that’s one of the issues that’s at play in this debate, unless I’ve missed it.

So, I think these are a rather narrow set of issues, both generally in the topics that will be talked about later today, and more particularly in the relatively small number of Alien Tort cases in which some of the worst actors of U.S. citizen corporations, as well as foreign corporations have committed some of the worst abuses. And that it is entirely appropriate for U.S. courts to hold them accountable.  [Applause]

Jack Goldsmith:  Thank you, Beth, and thank you all.  I have a few comments and then we’ll open it up to questions.  So, it’s remarkable to me that after 220 years or so of constitutional history and after a prominent Supreme Court decision, we still don’t have consensus about how customary international law comes into the U.S. constitutional system and what its effect is.  Whether it binds the President, whether it’s under the subjection of the President, what’s its relationship to the states, what is Congress’ role.  That’s remarkable.  I think that’s one of the most interesting things revealed by the four panelists. 

I just want to raise another issue that I jumped over and that the panelists alluded to but didn’t focus on that I think is related to the outsourcing issue.  That is, we all talked about how customary international law comes into and is applied in the United States.  But we jumped over what is customary international law, what are its sources, what are its proper sources.  Beth talked about this a little bit at the end. 

Traditionally in my view, customary international law was the practices of nations, the customs of nations.  That’s where it got its name.  But this conception – that customs of the nations of the world followed from a sense or legal obligation.  This conception and what courts would do and what diplomats would do would be to look to the customary practices of nations that had been followed in the past, discern whether nations had assented to those propositions out of a sense of legal obligation.  Then that would be how customary international law was identified. 

I think there’s a lot less certainty about how custom is identified, what the sources are, where does it come from with respect to human rights law.  Part of the problem is the Untied States government has ratified a number of human rights treaties – torture convention, the genocide convention, international covenant on civil and political rights, but they have as a condition of ratification rendered these treaties non-self-executing, not a source of domestic law.

So, the treaties are not a source – that’s the way I interpret it – they haven’t rendered non-self-executing.  I think that means they’re not a source of domestic law.  So, this is why the Alien Tort Statute also extends to violations of treaties.  But typically treaties are not relied on directly.  Custom is. 

So, the question is where does this come from.  I think on this question, Sosa leaves a lot very uncertain because Sosa rejected a lot of sources of customary international law, but didn’t reject the proposition that custom could apply in the United States.  So, possible sources of custom are the treaties themselves, their statement of foreign relations law, which is a document drafted by professors and academics and practitioners.  The pronouncement of scholars, as Beth mentioned, is often mentioned as a source of customary international law.  The pronouncements of international institutions, of foreign courts, of international courts, surveys of national constitutions, all these things are potentially sources of customary international law, but to what degree and what the relative priority is and whether and how these sources, which are I think external to – most of them are external to the U.S. constitutional system.  The question about how those become custom, I think, is very much left open after Sosa.

Q and A:

Pavel:  It’s really funny.  The last thing that you said in your comments was that somehow the United States ratified these international conventions but that didn’t imply that they have the full force of law.  Which seems very funny to me.  What do you mean United States ratified them if they didn’t have the force of law?

Jack Goldsmith:  They’re binding under international law, but they’re just not – what non-self-executing typically means is they’re not a source of law in the domestic realm.  But my panelists might disagree with that.

Pavel:  What do you mean the United States ratified them?  I mean, it seems to me like lying in saying we’re going to ratify them, but we’re not going to execute them.

Jack Goldsmith:  It’s a common understanding in many countries in the world, including commonwealth countries, view treaties as presumptively not applying in the domestic realm unless there’s independent legislation,.

Pavel:  That is why countries ratify laws though.

Jack Goldsmith:  Do you have a question?

Pavel:  I have another question though.  It was related to the second thing you were bringing up when you were saying what’s actually the source.  Because in the United States there is a Constitution that’s based on a principle.  It’s specifically like the principle of general welfare, which was an achievement.  It’s one of the greatest achievements of European civilization, which is a scientific principle.  All the laws that are derived from that are not based on tradition.  They’re based on a scientific principle.  In other words, the United States doesn’t act on the basis of positive law based on tradition.  But it actually acts on the basis of laws derived from the idea of the principle that identifies the role of human beings in a society and the role of a society in the world.

Jack Goldsmith:  Okay.  Is there a question?

Pavel:  Well, it’s funny because one of the things you were saying as an argument why those laws are not to be applied in the United States was that well, it’s not the tradition.  But that’s not how U.S. law works.

Jack Goldsmith:  Okay.  I was saying that the traditional understanding of customary international law and the standard accepted definition from their statement, for example, and in the Supreme Court is that customary international law is the customary practices of nations followed from the sense of legal obligation.  I was pointing out that as Floridaga itself recognized in 1980 in the Second Circuit decision, that conception of custom doesn’t work well with regard to human rights violations because the unfortunate fact remains is that many nations still do customarily commit human rights abuses.  So, you can’t look to state practice in the same way that you look to state practice in the 19th Century.  That raises the question about what the sources are.  Floridaga itself relied on treaties, U.N. general assembly resolutions, the writings of scholars and constitutions from around the world.  That’s a different conception, I think.  Maybe my panelists disagree about whether that’s a new conception of custom.

Bill Dodge:  I think one thing – Jack you traced it back – you said traditionally customary international law is based on the practice of states.  It depends how far back you traced your tradition.  This is something that evolves in the 19th Century.  This is not something that was present at the founding.  At the founding, the common understanding of the law of nations, and they didn’t call it customary international law, right.  The law of nations was based on natural law.  It was deducible by judges from general principles of reason, such as the speaker was raising.  Part of that was just a view of law as based on natural law.  Part of it was you really didn’t have a lot of sources of diplomatic practice.  States didn’t keep track of their diplomatic practice.  There wasn’t anything really for judges to consult besides their own notions of reason.  And this ties in with something that Julian was saying in his presentation as well, the point he was making about the executive as the person who acts for the United States in the development of international law and state practice.  I mean, that’s a notion that really comes out with the move to positivism in the 19th Century.  It’s not an original notion.  Now, it’s one that we have to deal with today, but this just drives home, it seems to me, the point I was making before about we need to translate the original understandings into modern terms because things are so different today.

Dennis Coyle:  Hi.  Dennis Coyle from Catholic University, NAEI.  My question then is what do we make of Sosa after the decision.  Seems to be three theories coming from the panel.  One is it’s basically primarily up to the judiciary.  In which case I wonder how do you make sense of Sosa in light of Erie?  Does it in effect mean that there’s a federal common law for aliens, but not for U.S. citizens?  Secondly, Congress takes the lead is a theory.  Well, has Congress done anything since Sosa to try to define or limit the application of international law?  And finally, if it’s the President that has the primary interpretive power, does that not then open the door for an executive not to limit international common law, but to embrace purely aggressive standards of international human rights and promote those?

Julian Ku:  Allow me to sort of carve out a Presidentialist position, although the theory of it here would be a Presidentialist position in acting domestically in the context of where Congress allows him to act domestically.  So, in the Alien Tort Statute, that’s one of the justifications for the President’s primary there is in addition to the broad constitutional powers would be the fact that Congress has created a very narrow, sort of special situation where these international law norms can be vindicated.  In that special situation, Congress I think, at least it should be interpreted at the present having a very big role in that situation.  I don’t necessarily embrace the broader claim that he has that can apply it against the states completely in other contexts.

Beth Stephens:  I would comment on another piece of your question, which is the role of Congress and just to say that I think that Congress’ response to Floridaga, I think, is part of the history of how the Supreme Court got to its decision.  After the Floridaga decision, Congress has addressed this area, I think, three times and each time has expanded, added new categories of those who can sue in small ways.  Nothing as broad reaching as the Alien Tort Statute, but none of those times did they actually try to appeal or amend the Statute.  There was a question from the bench in the oral argument saying to the government representative, has your administration proposed to Congress that they change the Statute.  I think there was some sense from the court – this is a reasonable interpretation of the Statute.  Congress doesn’t show any interest in changing it.  Why are you coming to us to declare it unconstitutional or the interpretation wrong.  Why don’t you go to Congress if you don’t like what the courts have done for the past 25 years.

Bill Dodge:  And I think perhaps one reason why Congress hasn’t acted is because there’s such a focus on the courts for incorporation of these principles.  The majority position has been, and as I said, post-Sosa remains that the federal courts have authority to incorporate these norms.  So, at least a lot of those who are thinking about these issues, at least in the legal academy, are focusing on the courts to incorporate these norms rather than putting pressure on Congress to address this issue. 

Ed Whalen:  Ed Whalen, Ethics and Public Policy Center.  How can Congress as a matter of constitutional power delegate to the international community the ability to develop thereafter new norms that apply as a matter of federal law?  And isn’t the court’s acquiescence of practice largely because it in fact empowers the courts?

Bill Dodge:  Historically the law of nations was a legitimate source for American law.  It’s not unconstitutional.  It’s the background norm that the framers assumed when they ratified the Constitution.

Alan Lowbright:  I’m not versed in this area of law so perhaps this is a simple question, but with the information that I have heard in the last few minutes, I’d like to find out if it’s possible for non-citizens invoking the Alien provisions to have a superior position in U.S. courts than citizens actually do.  That is, could they sue under causes of action that aren’t available to American citizens suing in the same courts.

Beth Stephens:  As a practical matter, yes, the Alien Tort Statute just applies to aliens and the claims that Congress has codified that apply to U.S. citizens as well are narrower, limited to torture and extrajudicial killings as the most important of them.  One theory has been that citizens could bring the claims under 1331, just arising under jurisdictions.  There are those who disagree with how to interpret Sosa on that.  I agree with Bill that Sosa said no.  So, there is that disparity now.

Stanley Koger :  Stanley Koger with the Cato Institute.  I’m not an attorney so this is all somewhat new to me.  When the Cold War ended, I was struck – I was a student of the Soviet Union – I was struck by the comments in the Soviet press how they were wrong about the issues of human rights on the Helsinki final act, for example.  They said the West was right.  You cannot violate domestic human rights.  There are international standards every country must abide by those standards.  So, your point, Professor Goldsmith, about the non-executing, I think, the first questioner was, what about specifically the Helsinki final act, OSCE, because as I see what’s going on in Russia now, they’re walking back from that.  Do we hold those as a standard?  Because as I said, I was struck at the role this played in ending the Cold War.

Jack Goldsmith:  The Helsinki final act was actually not international law, per se.  It was not a treaty.  It was not binding as international law, but it was one of the unusual and interesting things about it.  It explicitly said it wasn’t a treaty and didn’t create legal obligations.  Yet, it did have this enormous domestic impact. 

Just to go back to the point I was making earlier, there’s a difference between the two, and there has been in this country for at least 150 years maybe longer.  I can’t remember exactly when the Supreme Court established the practice of treaties that are binding on the United States and that we have an international obligation to abide by.  But then the second separate and independent question about how those obligations get enforced.  They’re not always enforceable by the judiciary domestically.  There may be other mechanisms from the political side enforcing them.  That is what the Senate and the Presidents and the cross administrations had done with regard to human rights treaties.  They have said we’re bound by these obligations.  We have an obligation not to back cut from them, but we think we satisfied these obligations in terms of our domestic Statutes and therefore, we don’t need any additional authority under federal courts to interpret them. 

I will say this and something that hasn’t been mentioned.  I was at a conference a few days ago with a European scholar and I was talking about the Alien Tort Statute and the European scholar thought it was remarkable – and Beth can speak to this – a remarkable example of U.S. unilateralism.  Because I think, in fact, Beth wrote a long article about this.  There’s no other country that interprets and enforces customary international law in human rights cases domestically the way the United States does.  So, some of the questions have a flavor of are we fully abiding by our obligations or not by perhaps not fully enforcing customary international law in human rights cases.  We are, I think, unique in the world, to the extent that we do so.  Any comments?

Beth Stephens:  Yeah.  Two comments.  One is in response to Jack’s last observation.  It’s true that no other country does exactly what we do, but part of the premise of my article is that that’s the wrong question to ask, does anyone else do exactly what we do because other countries do it in different ways.  Controversially in other countries as well, the criminal prosecutions, universal jurisdiction prosecutions are one example.  But no other country uses civil claims the way we do in part because no other country has the kind of litigation systems that we do and discovery and contingency fees.  So there are many reasons.  But this particular use of human rights law and civil litigations is not something obligated by international law.

To respond to another part of your comment, I was told I was speaking to an AEI audience there would be more policy and less legalistics, so let me just make a quick policy political comment that I hear from your comment something that resonates with me as a statement that is, my own personal view, that it’s a mistake for the United States to move away from an adherence to international human rights norms, whatever the legal mechanism, whether they’re required or not because of the moral and political authority potential that that has for us internationally.

Julian Ku:  How exactly do you figure out what the best approach to recognizing what is a norm and then figuring out exactly how to implement it?  One problem is for courts, suppose the other side is just sort of actually cheating, which actually happens quite often with international human rights treaties.  There are a lot of countries that sign it and show no signs of any actually carrying out of the treaties.  What is the proper response of the United States?  I actually agree policy wise, but I do think it’s a more complicated question of always adhering all the time to every single international human rights norm that you can conceive of, which I know is a bit extreme.  But I think that’s one possibility.  Or having at least a political filter through Congress and the President, sort of figure out what the best approach of adjusting the U.S. position, especially domestically to deal with this, I think which is a fairly complex question of how exactly you want to deal with human rights norms.

Stuart:  Just to be clear, is there any doubt at all that if a court, the Supreme Court makes a decision in customary international law against the United States, the President goes to Congress and says I want to overrule this, Congress does it.  Is there any doubt that that sticks or is it debatable at this point whether customary international law prevails or the act of Congress prevails?

Jack Goldsmith:  And you mean in the domestic system?

Stewart:  In the domestic system, yeah.

Julian Ku:  My view is that I think – and I don’t think there’s a huge disagreement, Congress has a very unexplored, but pretty absolute power in this area.  It could cut this off if it wanted to.

Beth Stephens:  We could site to you law professors who disagree, but I don’t think that there’s a significant controversy about that.

Jack Goldsmith:  Okay.  That’ll wrap it up for this panel.  Thank you very much.  [Applause]

The next panel will be the war on terrorism and international law. 

John Yoo: So, it’s my pleasure to moderate the second panel today on Law and War:  The War on Terrorism and International Law.  I’d like to just introduce everybody, in order they’re going to speak, in alphabetical order.  Very briefly, the panel, just by the title name, is about The Laws of War and the War on Terrorism, what effect should the laws of war have on the war on terrorism, what norms do the laws of war create, how are they to be implemented, if at all.  How is the United States’ policy on international law effect counter-terrorism matters, amongst many other questions. 

I couldn’t think of a better collection of experts to discuss these issues.  I think we have a panel here of people who have written extensively, thought extensively about these matters and also participated in many of the important cases and matters that have risen in this area.  To my far right is Professor Kenneth Anderson, who’s a professor at the American University Law School here in Washington.  He has written extensively on matters of the intersection of international law and domestic law.  He’s also written quite a bit about pure international law, international organizations.  He’s a former director of Human Rights Watch and general counsel of the Open Society Institute.

Speaking after him will be Morton Halperin.  Who is the director of U.S. Advocacy at the Open Society Institute and executive director of the Open Society Policy Center.  He has most recently served in the executive branch as head of the policy planning office at the State Department, one of the most significant offices in the government for the formation of foreign policy.  He has also served in the Nixon and Johnson administrations and has been a significant official in the American Civil Liberties Union and the author of a number of books, including Bureaucratic Policies and Foreign Policy, which I read as a college student.  [Laughter]

To his left is Admiral now Dean John Hutson.  He’s Dean and President of Franklin Pierce Law Center.  He most recently before that was an admiral in the JAG corps in the U.S. Navy.  So someone who combines both the scholarly interest and practical knowledge about these issues involving the laws of war we have with us today.  Before he reached the Navy JAG, he obviously had a number of other important positions throughout the Navy as a legal advisor, including to Secretary of the Navy and Chief of Naval Operations.

Two people over to his right is Andrew McCarthy who is now a senior fellow at the Foundation for the Defense of Democracies and contributor to National Review Online.  Again, in terms of a combination of scholarly interest and practice, Mr. McCarthy was the lead prosecutor in perhaps the most important terrorism prosecution before September 11th, the prosecution of Sheik Omar Abdul Rahman.  So, also brings a lot of practical knowledge, plus being published in a number of leading reviews and being adjunct professor of law at Fordham and New York University Law School.

So, we’re going to go in alphabetical order for about ten minutes each then give the panelists time to respond to each other.  Then open up the last 20 to 30 minutes for questions from the audience.  But we have to end promptly at 2:50 so Justice Scalia doesn’t rule us all out of order, which is something I’ve always tried to avoid in my life.  You can sit at the panel or the podium, whatever you’d like.

Kenneth Anderson:  I would very much like to thank John for this privilege of being on this panel and also being in front of this very distinguished audience.  So, I am absolutely delighted to be here.  I will be addressing less the questions of international law than, in fact, making a sort of broad ranging plea about where I think that the institutionalization of the war on terror needs to go.  I will be ranging broadly and not hitting anything really in any great detail. 

But my thought is really very straight forward.  It is that I don’t think that there will be an institutional war on terror, I don’t think that there will be much of a policy on a war on terror which outlasts this administration, which will be in place no matter whether there’s a Democrat in the White House or a Republican in the White House past this administration, unless this administration is willing to take on the burden of institutionalizing the war on terror and by going to Congress to do it.  I say that as somebody who is a very strong supporter of this administration and what it’s done to this point.  But I don’t think there will be a war on terror in a meaningful policy sense unless the Administration is willing to take this issue to Congress and to find ways to enact some sort of comprehensive legislation that deals with the aspects of a war on terror. 

Now, if we look briefly at the leading components on the war on terror, at least those that raise significant legal questions and the ones that have sort of bedeviled us, I think we can see where it is that a comprehensive legislative solution is most needed.  There are many, many open questions in the international law of armed conflict and its application to the war on terror.  Without any question, there are many open questions about that.  And yet, for all that, I don’t think that our fundamental issues about the legal regulation on the war on terror fundamentally arise from the law of armed conflict.  I think it actually comes from other places.  Likewise, if we turn over to the pure questions of criminal law enforcement where police go and act in their purely police capacities and defendants are put into a criminal law justice system, yes, there are open questions about secrecy, about many different aspects of when is somebody appropriately a defendant, when do they enter the criminal justice system.  But by and large, once they’re in, to a fair extent those questions are relatively settled within our settled criminal justice system.

Where the issue of regulation arises principally, I think, is in a certain area between those two.  By between those two I mean what, for lack of a better term, and I really don’t think it’s a particularly good term, what we might call an intelligence war, an intelligence struggle where the fundamental issues wind up being the collection of intelligence.  All sorts of legal issues that rise out of surveillance, that arise out of detention, that arise out of rendition, that arise out of interrogation, that arise out of what constitutes impermissible interrogation and torture.  All of those kinds of legal issues arise fundamentally in an area which is neither law enforcement, nor in most cases, many cases at least, is it something which is genuinely part of an actual armed conflict in a legal sense at that moment, in the sense that Afghanistan is an armed conflict, in the sense that the war in Iraq is an armed conflict in a legal sense.  In those kinds of areas, and we can add one more to that, which is the use of force which is neither clearly police work, nor does it clearly rise to the level of armed conflict.  So, you might call it the use of force short of armed conflict.  Those are the areas in which we largely lack legal regulation in which we do not have some sort of set out paradigm for dealing with it, in which we are grabbing pieces from the criminal law system, grabbing pieces from the law of armed conflict.  I think that it’s time that we recognize that this area is going to require some new legal concepts and the elucidation of new areas that we’ve not gone into before.  Part of which can be drawn from existing areas, but others of which I think will be genuinely new. 

Now, the answer of the Bush Administration to date has been we have inherent executive authority, and skip all the legal arguments, but in effect, we have inherent legal authority from one source or another by which as an executive simply do all this stuff.  We’ll do it in sort of a try this, try that fashion.  If there’s too much public pressure in one area, then we will move to another approach.  But basically we do not need to go to Congress in order to get this kind of authority.  One way or another, we’ve already got it.

Now, I have read very carefully John’s book and many of John’s writings and am actually a closet disciple, John.

John Yoo:  You’re going to regret that when you come up for confirmation hearings for the Supreme Court.

Kenneth Anderson:  Right, right.  Now, here’s the problem, however.  I am a disciple of John’s in the pure ethereal, theoretical, scholarly, magnificently cerebral atmosphere of my attic.  When I look at the actual war on terror, however, and when I look at what the Bush Administration has done its best to convince me of over the course of the years since 9-11, what has it said to me?  It has said this is going to be a long war.  This is going to be a long struggle.  This is going to go on beyond any particular presidential administration.  Look to the long term on this.  Well, I am entirely persuaded of that.  Under those circumstances I think it is also entirely unacceptable to say we the executive have simply got inherent authority to wind up doing whatever it is we think is the right approach to that in it or any particular circumstances.

The ability to respond to a national emergency is one thing.  The ability to go on for decades in the form of the Cold War is another entirely.  What we need now is a legislative pronouncement, is a legislative enactment, developed with the Administration that winds up institutionalizing this in some fashion.  Institutionalizing it in the way in which we instituted and institutionalized the effort against the Soviet Union and the Cold War, one which marginalizes the Wallace Democrats and one in which also it embraces as broad a bipartisanship as possible.  And I stress as possible.  But one which is fundamentally something which can outlast any particular administration.  We have not done that to date and it is, in my view, the single most important foreign policy obligation of this administration besides the prosecution of actual or possible wars. 

Now, I can’t tell you what the details of that is supposed to look like.  I can tell you a couple of things.  First of all, there are areas besides the war on terror of enormous practical importance that go beyond the three that I had mentioned.  Criminal justice on the one hand, armed conflict on the other and the sort of undefined intelligence thing in the middle.  There is, for example, financial regulation to try and cut off the sources of financing.  There’s diplomacy in the effort, for example, come up with a comprehensive definition of terrorism.  There are all sorts of different aspects.  The most important, however, is this undefined area that I’ve characterized as the intelligence struggle.

The areas that we need to develop standards would be at least these.  One would be surveillance.  Judge Posner has written a very useful, I think, very quick guide in the Wall Street Journal to what legislation should look like in order to deal with questions of FISA, the NSA, wire tapping, these kinds of things. 

Second is that it’s going to have to wind up having a policy with regards to detention and rendition.  What the standards are going to be for those things and how they interrelate with the existing laws of war to the extent that they have to develop new standards.  And to the extent that one has got to find the lines between what constitutes legal armed conflict and not.  And how on the other side, it interacts with the domestic criminal justice system.

Third, it’s going to wind up having to address the questions of interrogation and what crosses the line of permissible interrogation into torture.  So the question of what’s the users manual going to be for the convention against torture.  What actually crosses the line.  I don’t think that there’s any alternative but for some kind of legislative enactment and I don’t think the McCain amendment did it.  It’s a good start in order to at least start a conversation, but it did not answer the questions.

In that particular area of interrogation, I think that the most important question will wind up being do we believe that the standards of interrogation should wind up taking into account what it is that we know about the person whom we have in custody.  Should it be the case that the harshness of interrogation, short of torture, is permissibly greater in the case of somebody who we know to a hundred percent in certainty is our enemy.  Or, should it be something different in the case of somebody for whom we have no reason to know that this isn’t just the shepherd out there wandering around the hillside.  We have to answer that question about whether it makes a difference what you know about the person you’re interrogating or not. 

Then finally we have to, at least on this list, answer the questions about what are the standards for the use of force in circumstances that do not, in fact, rise to the legal standard of armed conflict.  In most of those cases I believe in that latter case, I think that in many of those cases, that that actually is fairly easy that we should apply the standar