At Opinio Juris, Deborah Pearlstein argues that if the raid that killed Osama bin Laden violated the UN Charter, it violated U.S. law: Contra CIA, Non-Self-Executing Treaties Are Still the Supreme Law of the Land. Michael Dorf appears to take a similar view at Verdict: Are the “bin Laden” Memos the New Torture Memos? (I say "appears" because it's not clear whether he's talking about a violation of domestic law or a violation of international law).
I agree, as a matter of the Constitution's original meaning. And I see a broader point about nonorignalism as well.
To begin, the argument is that the raid violated Article 2(4) of the UN Charter, which prohibits use of force against the "territorial integrity or political independence" of a member nation (in this case Pakistan), subject to an exception (Article 51) for self-defense. Let's assume this argument is correct (although in fact I think it's very weak under the original meaning of the Charter). The UN Charter is a treaty, meaning that it is part of the "supreme Law of the Land" under Article VI of the U.S. Constitution. But it is a non-self-executing treaty, say the courts (and I agree for reasons I'll get to shortly). At minimum that means it is not judicially enforceable in U.S. court. According to the CIA, apparently that also means it is not binding on the President. Professor Pearlstein disagrees:
This view embraces a fundamental misunderstanding of the doctrine of self-execution, before and even after the Supreme Court’s 2008 decision in Medellin [v. Texas]. A non-self-executing treaty under U.S. law is one that is not automatically enforceable under U.S. law without implementing legislation. Non-self-executing does not mean non-binding as law, nor could it. The Supremacy Clause is clear: “The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made … shall be the supreme law of the land.” The President would never suggest, for example, that because Bivens actions are not available to enforce some violations of the Constitution against the federal government – that the Constitution itself is not binding on the President. Quite the contrary, the President is legally bound by his obligations under the Constitution, and under “all treaties made,” no matter what subsequent enforcement mechanisms may be available.
I think this is right, although it requires a little more analysis. (The following is based on my forthcoming article on non-self-execution). "[A]ll" treaties are supreme law of the land, per Article VI. The reason some are not judicially enforceable is that they are not addressed to the judiciary, but instead are addressed to other branches of government — either expressly, or because they create obligations only other branches can fulfill. For example, a treaty provision that calls on Congress to enact legislation would be non-self-executing (and wouldn't create any obligations on the President either, until Congress enacts implementing legislation). So actually it is very often true that a non-self-executing treaty provision does not create any obligations for the President.
Article 2(4) of the Charter is a little different, because it does not appear to create obligations only for Congress. It's reasonable to conclude that Article 2(4), addressing military decisions within the President's core constitutional power, involves matters textually committed to the President (and to Congress if a declaration of war is involved) not subject to judicial review. It is, in a sense, a political question. Does that mean the Charter provision is part of U.S. law binding on the President, but just nonjusticiable? I think so. The framers were clear that giving treaties the status of supreme law made them the equivalent of statutes for domestic law purposes (for citations, see my forthcoming article). Thus the President's take-care obligation should extend equally to them, to the extent treaty provisions govern something within the President's executive power to implement — as Article 2(4), as applied to the bin Laden raid, does. (There's a wrinkle here about whether Congress' post-9/11 AUMF authorizes the President to violate treaty law, which I'll ignore for simplicity). In sum, if the raid violated Article 2(4) the President was bound (as a matter of domestic law) not to authorize it, just as if it violated a U.S. statute.
But let's be clear: this is a textualist/originalist argument (though Professors Pearlstein and Dorf don't say so). I don't see nonoriginalism being able to reach such a clear conclusion.
The core goal of most versions of nonoriginalism is to update the founding document in light of modern practice, values and circumstances. Here there have been substantial changes in circumstances. In the eighteenth century, treaties were typically bilateral, focused on particular issues of mutual interest; there were not very many of them, and getting out of them did not entail enormous structural costs, particularly when they were violated by the other party. In the post-World War II era, however, multilateral treaties are more common. They (the UN Charter in particular) aren't based on mutual promises between two nations, but rather serve as a framework for international interaction among many nations with sharply differing outlooks about many things including the value of compliance. Whether the President should be inflexibly bound, as a matter of domestic law, to comply with every aspect of such treaties in all instances is doubtful as a matter of realistic foreign relations, and in any event it's a wholly different question from the issues of treaty compliance faced by the framers. There's a strong argument that, at least when vital U.S. interests are at stake, modern circumstances require the President to have some flexibility.
Further, the principal concern underlying inclusion of treaties in the supremacy clause wasn't U.S. compliance with treaty obligations; it was states complying with treaty obligations. As is well known, states routinely violated U.S. treaty obligations in the Confederation period, creating all sorts of problems for the national government, which wanted the treaties enforced but lacked power to enforce them. Article VI of the Constitution was designed to fix that problem. It's less well known — but highlighted in this outstanding article by David Moore — that the founding generation was willing to have the national government violate international law obligations when practicality suggested it. And in any event, Congress under the Constitution can violate a treaty (even a self-executing treaty) by passing a later-in-time statute, so it's unclear why we should be so concerned not to give the President similar flexibility.
Finally, U.S. courts, including the Supreme Court, have said (in dicta) that non-self-executing treaties are not only not judicially enforceable but are not federal law absent implementation by statute. The Court said in Medellin, for example, that "This Court has long recognized the distinction between treaties that automatically have effect as domestic law [meaning self-executing treaties], and those that . . . do not by themselves function as binding federal law [meaning non-self-executing treaties]." (552 U.S. at 504). I agree with Professor Pearlstein that this distinction is inconsistent with the text and original understanding. But I do not see how it is necessarily inconsistent with the modern Constitution, updated to take into account modern values and circumstances.
The response from nonoriginalists, I take it, would principally be that inflexible compliance with international law by the President is a core value that should be constitutionalized (this seems to be Professor Dorf's point). But that is ultimately a policy judgment with which one might reasonably disagree. So I don't see how nonoriginalism reaches such a firm conclusion about the bin Laden raid (and I note that commentators are quite willing to use textualist/originalist arguments when it suits them). And assuming the CIA is operating in a nonoriginalist world, its conclusion therefore seems defensible.
UPDATE: At Just Security, Marty Lederman also argues that the Charter, though non-self-executing, is binding on the President as a matter of domestic law.
Posted at 6:31 AM