Volume 43 | Number 1 Fall 2007
Page 2 of 6
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I. Introduction
The Military Commissions Act of 2006 (MCA)1 imposes substantial restrictions on the judicial enforcement of the Geneva Conventions in U.S. courts. First, the MCA specifies that “no alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.”2 The MCA also stipulates: “No person may invoke the Geneva Conventions . . . in any habeas corpus or other civil action or proceeding to which the United States, or . . . agent of the United States is a party as a source of right in any court of the United States or its States or territories.”3
These statutory provisions are likely to face constitutional challenges in U.S. courts.4 The resolution of those constitutional issues will probably depend, in part, on whether the reviewing court applies the “nationalist” or “transnationalist” model of treaty enforcement.5 Briefly, the transnationalist model holds: the Geneva Conventions have the status of law in the United States; courts should interpret the Conventions in accordance with international law; the Conventions protect individual rights; and the judiciary is responsible for providing remedies to individuals whose treaty rights are violated.6 In contrast, the nationalist model holds: the Geneva Conventions lack domestic legal force in the absence of implementing legislation; courts should interpret the Conventions in accordance with executive branch policy preferences; the Conventions do not create individually enforceable rights; and the judiciary is not responsible for providing remedies for violations of the Geneva Conventions.7
If a court applies the nationalist model, it will undoubtedly uphold the constitutionality of the MCA provisions cited above. From a nationalist perspective, these statutory provisions merely direct the courts to do what they ought to do anyway. Even if Congress had never enacted the MCA, nationalists contend, courts should refuse to enforce the Geneva Conventions on behalf of individuals who claim to be victims of treaty violations by U.S. government agents. If a court applies the transnationalist model, though, it might well conclude that the MCA provisions quoted above are unconstitutional. From a transnationalist perspective, if a court has jurisdiction over an actual controversy, the court has a constitutional duty to decide that controversy in accordance with supreme federal law, including treaty law. The MCA is constitutionally suspect in that it appears to direct courts to disregard a specific category of supreme federal law—the Geneva Conventions—even in cases where the court has jurisdiction and the proper resolution of the controversy requires application of the Geneva Conventions.
This essay does not advocate a position for or against the constitutionality of the Military Commissions Act. Instead, the essay contends that one cannot truly appreciate the nature of the constitutional issues at stake without understanding the conflict between the nationalist and transnationalist models. Accordingly, this essay has three objectives. First, it provides a conceptual overview of the distinction between the nationalist and transnationalist models. Second, it illustrates the application of the two models by reference to recent judicial decisions implicating the Geneva Conventions. The analysis shows that U.S. courts have applied both models in Geneva Convention cases, even though the two models are mutually inconsistent. Third, the essay shows that the transnationalist model has deep historical roots, dating back to the eighteenth century, whereas the emergence of the nationalist model is largely a post-World War II development. This essay does not present original historical analysis: it merely summarizes the historical analysis developed by this author and other scholars in previous publications.
The nationalist and transnationalist models provide radically different answers to three questions: (1) do treaties have the status of law in the U.S. legal system?; (2) how should courts interpret treaties?; (3) in what circumstances can private individuals obtain judicial remedies for violations of treaty-based individual rights? Parts II through IV of this essay, respectively, address these three questions.