The Far Right's Fake Legal History of Treaties

Andrew C. McCarthy, writing for the National Review Online, has penned a fake history worthy of the Mormon church on the status of treaties in U.S. law. The money line:

Increasingly, the ruling is championed as holding that treaties like the 1949 Geneva Conventions are not really compacts between nation states; violations of them are not, as they have been understood from time immemorial, merely grist for diplomatic protest. Instead, Hamdan is being taken to mean that treaties inure to the benefit of individual persons — even if they are jihadists pledged to the annihilation of the West and its human-rights values.

The problem is, that the U.S. Constitution makes clear, and U.S. law has held for a very long time, treaties are binding U.S. law.

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; and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary notwithstanding.

United States Constitution, Article VI, Section 2.

Here's what the U.S. Supreme Court has said about the subject, almost a century ago:

We do not deem it necessary to consider the constitutional limits of the treaty-making power. A treaty, within those limits, by the express words of the Constitution, is the supreme law of the land, binding alike National and state courts, and is capable of enforcement, and must be enforced by them in the litigation of private rights.

Maiorano v. Baltimore and Ohio R.R. Co., 213 U.S. 268. 272-273 (1909).

The U.S. Supreme Court has not since reversed this holding.

Sometimes parts of treaties establish private rights of action, and sometimes not, but treaties are always far more than grist for diplomatic protest. Even when there is no private right of action for damages in a private party (something also true of many domestic U.S. statutes), that does not mean that the United States is not obligated to comply with the treaty. The U.S. Government is still bound to comply with valid laws and treaties, whether or not they create private rights of action, becaue the United States Constitution, Article II, Section 3, provides that the President "shall take care that the laws be faithfully executed."

McCarthy also fails to articulate why our Republic is doomed to fall merely by treating al-Queda suspects in the same manner designed with such bad guys as known Nazis who were just killing Americans on U.S. battlefields in mind. No one has ever said that dangereous detainees must be released pending a determination of the lawfulness of their detention and conditions of detention, if the judiciary determines that it is likely that the United States will prevail in its cause, and that irreperable harm might be caused by not doing so.

McCarthy is the real radical. He thinks that it is just fine for the United States to ignore its binding treaty obligations. Indeed, he thinks it is a violation of national sovereignty to do otherwise. In other words, he thinks that sovereignty is inconsistent with the rule of law. But, the notion that sovereignty requires anarchy is an extreme one.

The United States is already virtually lawless. It is one of the few nations in the world where Congress is allowed to unilaterally violate a treaty, by passing a contrary statute. See, e.g., Whitney v Robertson, 124 U.S. 190 (1888). But, this rule of law on the releative supremacy of statutes and treaties under the U.S. Constitution, at least, demands that an abrogation of our legal obligations under binding treaties be made consciously and democratically, not simply by implication. A man like Mr. McCarthy, whose employer is the Foundation for the Defense of Democracies ought to care about things like that. But, clearly, he is little more than an apologist for a lawless President Bush.