More Roberts Testimony on War Powers and Treaties
on Sep 15, 2005 at 5:02 pm
As a follow-up to my previous post, here’s more testimony from today on war powers and related questions:
SEN. LEAHY: Can Congress stop a war?
ROBERTS: Well, that’s, of course, a difficult question. Now Congress has always exercised the power of the purse with respect to activities of that sort and regulated the funding for that type of activity. And that’s, of course, always been the core of Congress’ authority. But the question to actually terminate hostilities that the executive has determined to initiate either with the authorization of Congress or a situation of congressional silence or acquiescence, to go back to the Youngstown decision, the issue of what Congress’ authorities are to terminate, short of exercising its power with respect to the purse, those are unsettled, and I think have to be addressed in the context of a particular case. And the memo to which you refer, again, I was a lawyer for the executive and any cautious lawyer for the executive, without regard to the administration, would be on the alert for any type of suggestion that there are limits on that power.
* * *
SEN. FEINSTEIN: If an executive exercises power in direct violation of an act of Congress, is such an act unconstitutional?
ROBERTS: Well, the answer depends, Senator. And this is where you get back to the Youngstown analysis, where Justice Jackson said there are three categories: You can act with Congress’ support, be unclear what Congress’ position is, and he recognized a third category where an executive may act in the face of a congressional prohibition. And there are certain areas where the executive does have authority to the exclusion of Congress. Without stating a legal view, for example, one that law professors regularly talk about is the pardon power. In other words, that’s given expressly to the president under the Constitution. And if Congress were to pass a restriction on the pardon power, does the president nonetheless have the authority to act under the Constitution? That’s a difficult question, but it may be that the president’s authority would trump Congress’ authority. So I can’t answer a question in the abstract without knowing exactly what the record is and what the situation is. What Justice Jackson said in Youngstown, though, is obviously true, that if the president is acting in the face of congressional opposition, his power is at its lowest ebb. As Jackson put it, it includes his powers, less whatever powers Congress has. So if it’s in an area in which Congress has legitimate authority to act, that would restrict the executive’s authority.
* * *
And this from yesterday:
SENATOR GRAHAM: Are you familiar with the Geneva Convention?
ROBERTS: : Yes, Senator.
GRAHAM: Do you believe that the Geneva Convention, as a body of law, that it has been good for America to be part of that convention?
ROBERTS: : I do, yes.
GRAHAM: Why?
ROBERTS: : Well, my understanding in general is it’s an effort to bring civilized standards to conduct of war — a generally uncivilized enterprise throughout history; an effort to bring some protection and regularity to prisoners of war in particular. And I think that’s a very important international effort.
GRAHAM: As Senator Kyl said, this will be the only time we get to talk. And I don’t want to compromise your role as a judge, but I do want you to help me express some concepts here that America needs to be more understanding of. And I want to work with my Democratic friends to see if we can find some way to deal with us. We’re dealing with an enemy that is not covered by the Geneva Convention. Al Qaida, by their very structure and nature, are not signatories to the Geneva Convention and are not covered under its dictates. An enemy combatant: Are you familiar with that term in the law?
ROBERTS: : Yes, Senator, I am.
GRAHAM: What would an enemy combatant be under American jurisprudence? Who would they be?
ROBERTS: : Well, I really have…
GRAHAM: Fair enough. Fair enough.
ROBERTS: : Those cases are both pending. The ones that I’ve decided are pending before the Supreme Court and those issues are likely to come before…
GRAHAM: Fair enough. The Geneva Convention doesn’t cover Al Qaida, but or president has said that anyone in our charge, terrorist or not, will be treated humanely. I applaud the president, because, in fighting the war on terror, we need not become our enemy. Our strength as a nation is believing in the rule of law, even for the worst of those that we may encounter. I admire Mr. Adams for representing the Redcoats. I cannot imagine how tough that must have been. But his willingness to take on the unpopular cause in the name of the rule of law has made it stronger. When the president said that we will treat everyone humanely, even the worst of the worst, I think he’s brought out the best in who we are. But we’re in a war, Judge Roberts, where the Geneva Convention doesn’t apply. And we have before the courts a line of cases dealing with the dilemma this country faces. When you capture an enemy combatant, non-citizen, foreign terrorist, there’s three things I think we must do. We must aggressively interrogate them without changing who we are. We must have the ability to keep them off the battlefield for a long period of time to protect our nation.
GRAHAM: And we must have a system to hold them accountable for some of the most horrible crimes imaginable. Justice Jackson was of your favorite justices. Is that correct?
ROBERTS: : I think that’s a fair description, yes.
GRAHAM: He has indicated in the Youngstown case that the presidency of the executive branch is at its strongest when it has concurrence with the legislative branch. Is that a fair summary of what he said?
ROBERTS: : Yes. He divided up the area basically into three parts. Considering the executive’s authority, he said when it has the support of Congress it’s at its greatest, and, obviously, when it’s in opposition to Congress it’s at its lowest ebb, as he put it. And he described a middle area in which it was sometimes difficult to tell whether Congress was supporting the action or not.
GRAHAM: This is me speaking, not you. Congress is AWOL, ladies and gentlemen, in the war on terror when it comes to detention, interrogation and prosecution of enemy noncitizen combatants. Justice Scalia has written eloquently that Congress has the power to get involved in these issues and Congress is silent. What is the case, is it the Rasul case, where the Supreme Court in a 5-4 decision has given habeas corpus rights to noncitizen foreign terrorists?
ROBERTS: : I think that’s correct, Senator.
GRAHAM: That is an amazing departure from what we’ve been as a nation for 200 years. I have been to Guantanamo Bay twice. The people running the prison tell me that 185 of detainees have lawyers in federal court. Justice Scalia says we’ve set up a situation where 94 different jurisdictions can hear habeas cases involving noncitizen foreign terrorists. The people running the jail say this process is undermining out ability to get good information. A habeas corpus petition, would it allow a defense attorney to call a military commander in to answer for how this person was captured?
ROBERTS: : I don’t know, Senator, and I hesitate to opine on that without knowing.
GRAHAM: Well, the truth is that we’ve set up a situation where our military leaders and our military commanders and soldiers in the field can be called from all over the world, all over the country, to answer for why such person is detained. We had a conversation in our office, my office. You said something to the effect, as Justice Scalia said in his dissenting opinion, that this would be an area where the courts would welcome some congressional involvement. And right now, we have the executive branch carrying the load totally by themselves. We’ve got several cases before the court dealing with detention policy, interrogation policy and prosecution policy. Do you believe that this is an area, if the Congress acted, as Justice Jackson said, that it would strengthen the hand of the executive in a legal situation?
ROBERTS: : My observation during our meeting, Senator, was not an expression of legal determination. And it doesn’t necessarily mean a view that Congress’ action or involvement would be determinative or would even be within the scope of legal authority, depending on what the issue and the arguments were. I do know that when you are in the middle area, where it’s difficult to determine whether Congress is supporting the president’s action or is opposed to the president’s action, that the court often has to try to read the tea leaves of related legislation. If you look at the Dames and Moore decision coming out of the Iranian hostage crisis, what the court did in that case, applying the middle tier, was look at a vast array of legislation. And it was a very difficult enterprise to try to figure out what Congress’ view was. My point was simply that if we’d know what Congress’ view was, it might make it easier to apply it in a particular case, and you wouldn’t have to go through that process of trying to determine what position Congress was in, if that turned out to be pertinent under the particular legal challenge.
GRAHAM: Thank you. Justice Scalia said in a very direct way, The courts are ill- equipped to deal with these issues. In the Youngstown Steel case, Justice Jackson says, When the president acts pursuant to an express or implied authorization of Congress, his authority is at the maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate. A seizure executed by the president pursuant to an act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who may attack.
GRAHAM: Do you agree with that?
ROBERTS: : That was read from the Jackson — I do. I agree with the basic proposition that the president’s authority is at its greatest when he has the support of Congress.
GRAHAM: To my colleagues, I think it is imperative for this body to get involved in the war on terror when it comes to detaining, interrogating and prosecuting enemy combatants who are not citizens. It is important that all three branches of government, in my opinion, feel comfortable with the policies of this nation, that we’ll be stronger if the judicial branch, the legislative branch and the executive branch are working together to come up with policies that will allow for aggressive interrogation, appropriate detention and serious prosecution in a way that’s within the values of our nation. So that is why I will be introducing legislation on all those topics. And I will not ask you any further what you may or may not do about the legislation if it ever gets to the floor of the Senate and passed.
* * *
SEN. FEINSTEIN: [T]he Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?
ROBERTS: Right.
FEINSTEIN: Which gives it the total weight of law. Can a president, then, decide not to follow a treaty?
ROBERTS: As a general matter, the answer is no. The treaty power, as long as it’s ratified according to the requirements in the Constitution, by two-thirds of the Senate, you’re perfectly correct, it is under the supremacy clause the supreme law of the land. Now, I don’t know if there are particular arguments about executive authority in that area with which I’m not familiar, and I don’t mean to state categorically, but my general understanding is that treaties that are ratified — and of course we have treaties that aren’t ratified and executive agreements that aren’t submitted for ratification and so on — but the treaty that’s ratified by the Senate under the supremacy clause is part of the supreme law of the land.
FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?
ROBERTS: Yes. Now, there are questions, of course, that arise under those — and have arisen under those — about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated. But that’s an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.
