Ratcheting back: international law as a constraint on executive power.

• Author: Pearlstein, Deborah N.
• Position: Presidential Power in the Obama Administration: Early Reflections

Constitutional scholars have long noted the historic tendency of the Executive to accrue power in times of security concern. (1) In this respect, the George W. Bush Administration might generally be understood to have fulfilled constitutional expectations--asserting broad power in the years following the devastating attacks of September 11 to detain, interrogate, and try suspected terrorists, notwithstanding treaty obligations arguably to the contrary. (2) As we begin assessing the still new Obama Administration, it thus seems necessary to ask whether it is fulfilling the closely related constitutional expectation: that presidential power over national security only grows over time. (3) By most accounts, the history of executive power relative to the other branches has been one of dramatic, often security-driven, expansion. (4) The expansion is attributed to a number of factors, including not only the Executive's institutional ability to act with speed and initiative, but also to the domestic and international political incentives that shape the presidency. As Harold Koh put it (writing in the wake of the Iran-Contra scandal): "[A] pervasive national perception that the presidency must act swiftly and secretly to respond to fast-moving international events has almost inevitably forced the executive branch into a continuing pattern of evasion" of restraint. (5) Moreover, far from acting as a constraining external force on increasingly bold assertions of presidential authority, Congress and especially the courts have allowed the President to assert it. (6) Together, such forces combine to ensure that only a one-way ratchet is applied to presidential power.

Yet the recent change of presidential administration provides an intriguing set of examples by which one might measure the continued salience of the one-way ratchet paradigm in the post-September 11 world. Among other contrasts, the Administrations of Bush and Obama would appear by composition to differ substantially in their relative commitment to international law as a meaningful constraint on national power. The Bush Administration had asserted broad executive power to resist the application of international law in a way that would constrain U.S. counterterrorism operations. It had also advanced the view that the power to interpret treaty obligations--to "say what the law is" as provided by treaties--rests primarily or even exclusively with the Executive himself. (7) The interpretation power in particular has been of some significance in inter-branch battles past; indeed, "'reinterpretation'" had become a central means by which Presidents have effectively amended treaty obligations they found troubling. (8)

In seeming distinction, the Obama Administration thus far has been peopled with officials almost certain to hold a contrary view. Among others, Legal Adviser to the State Department Harold Koh under President Obama has built a career advocating for careful adherence to international law as part of "our law." (9) Obama Administration Director of the State Department Office of Policy Planning Anne-Marie Slaughter has likewise advocated measures to make international law more effective in constraining national power by promoting more direct engagement within domestic legal systems. (10) Does the Obama Administration resist asserting a similar degree of interpretive prerogative over international law? Or does the one-way ratchet effect prove too great a temptation in this regard?

While it is still early enough in the Obama Administration to make any conclusions uncertain, this essay considers a set of steps that might be seen to reflect a greater willingness by the Administration to acknowledge limits imposed on the Executive by treaty commitments, and arguably a greater willingness to share power to interpret treaties with the courts. If these early indications prove meaningful, they raise a series of questions about the political and structural mechanisms said to drive the one-way ratchet. In the world of incentives the one-way ratchet view describes, why would an Executive move to restore any constraints on power? This essay considers the Obama Administration's early engagements with the international law of armed conflict--and the Geneva Conventions in particular-in an attempt to explore some potential answers.

Following a brief background discussion of the longstanding debate over the treaty power, this essay highlights a set of differences between the Bush and Obama Administrations on matters of treaty interpretation in U.S. counterterrorism operations. It then considers a series of explanations to account for the modest shifts, exploring what if anything these differences might tell us about why a nation facing security threat would ratchet back claims of executive power in the face of international law.

A note of caution is in order. Extrapolating from individual policy decisions to broad state behaviors is always a dicey proposition--especially so when there are differences of opinion among key decision-makers, and when there are so few examples from the current Administration from which to draw. The one-way ratchet view in particular might readily discount the significance of any modest evidence of ratcheting back; over time, such examples might well appear to be no more than short-lived blips along what is an otherwise broadly linear trajectory. Yet such blips seem important to study--not only because they may prove a harbinger of a larger trend, but also because they can shed light on the limits of the political and structural conditions that have so far stood to explain why U.S. executive power trends upwards. If exceptions exist at all, they may tell us whether and how those conditions are susceptible to change.

TREATY POWER DEBATES PRE-2009 IN A NUTSHELL

Controversy surrounding how much formal power the Executive enjoys to interpret or otherwise modify international treaty obligations was hardly new to the Bush Administration. On one side of the historic debate are those who believe that the Executive enjoys substantial power to interpret (even violate) treaties as a result of his formal power under Article II of the Constitution (to "make" treaties), and his functional advantages as the "sole organ" of the United States in foreign relations. (11) A set of twentieth-century Supreme Court statements--noting that the "meaning given [treaties] by the departments of government particularly charged with their negotiation and enforcement is given great weight" (12)--would seem to support this distribution of power, with judicial deference doctrine rightly serving as no "mere window dressing, but rather [as] a significant factor in treaty interpretation.""

Others have maintained that whatever limited power the Executive has over treaty interpretation is shared, at best, with the independent power of the courts to "say what the law is" under Article III. (14) True that the Constitution grants the Executive the power to "make" treaties, (15) but it separately allocates primary interpretive power to the courts, extending the "judicial power" to all cases arising under "treaties made," (16) and otherwise making treaties part of the "supreme law of the land" to which all state court judges, among others, are bound. (17) Accordingly, the Court has long and rightly exercised its independent authority to interpret treaties as it sees fit, with the Founding-era Court in particular showing no deference at all to Executive views on the meaning of treaties. (18) The Court's passing language of deference to Executive treaty interpretation has thus been "[m]uch like a blimp," a doctrine that seems "ponderous but in reality has no weight." (19)

In the face of unsettled debates about how much power the Executive has to interpret or otherwise confront treaty obligations, and correspondingly how much deference the courts do, and should, show the Executive's views, the Bush Administration pressed an understanding of the executive treaty power at the broadest end of the spectrum. In the counterterrorism realm, the President's Commander-in-Chief power weighed against any construction of the Geneva Conventions (regulating armed conflict) that would have the effect of constraining executive power. As an early memo from the Justice Department Office of Legal Counsel (OLC) explained in construing the scope of Common Article 3 of the Geneva Conventions so as not to cover the U.S. conflict with al-Qaeda: "[T]he Commander-in-Chief power gives the President the plenary authority in determining how best to deploy troops in the field. Any congressional effort to restrict presidential authority by subjecting the conduct of the U.S. Armed Forces to a broad construction of the Geneva Convention, one that is not clearly borne by its text, would represent a possible infringement on president discretion to direct the military." (20) Common Article 3 contains a set of basic restrictions on the treatment and trial of detainees in armed conflicts that may involve non-state parties. Yet absent a clear statement from Congress--in the federal War Crimes Act or elsewhere--that the kind of armed conflicts Common Article 3 references meant to include the "war on terror," OLC advised, Common Article 3 should be read to avoid the constitutional problem that would arise in interfering with the President's authority to wage a transnational "war" against al-Qaeda. (21)

At the same time, in scholarly pages and in contemporaneous OLC memoranda, Administration attorneys argued that Article II of the Constitution grants the President "plenary" power over treaties. (22) Article II's grant of the undefined "executive power," along with the express authority to "make treaties," required an understanding that any treaty-related powers not specifically mentioned in Article II--including the power to interpret, and the greater power to terminate or suspend treaties unilaterally--must be...