[T]he Constitution does not empower him to recognize as a legal obligation a part of a treaty that the Senate has never approved.

by Douglas J. Feith at Hudson Institute

EXCERPTS:

This month, President Barack Obama declared he has a “legal obligation” to treat wartime detainees according to provisions of a treaty that the United States has never ratified. The maneuver raises a basic question: Who makes law for Americans?

The standard answer, drawing on the Constitution, is Congress. One of American democracy’s quaint conceits, after all, is that laws should be made by the people American voters have elected.

But that old-school answer doesn’t satisfy those in the progressive “transnational legal norms” movement. Frustrated that elected officials often refuse to enact the measures they favor, these reformers aim to persuade judges that progressive ideas on war crimes, arms control, the death penalty and other matters should be accepted as rights. They encourage judges to ground these rights not in local statutes produced by legislators, but in treaties, laws and court decisions of other countries, in academic writing, and in customary international law.

The treaty Mr. Obama cited is Protocol 1 to the Geneva Conventions on the laws of war. Drafted in the mid-1970s, the Carter administration signed Protocol 1, but President Ronald Reagan, after years of interagency review, concluded that it is “fundamentally and irreconcilably flawed,” because it contains provisions that would “undermine humanitarian law and endanger civilians in war.”

Yet Mr. Obama declared that America has a “legal obligation” to adhere to a portion of Protocol 1: Article 75, which establishes standards for detainee treatment. While acknowledging that the U.S. government still has “significant concerns” about Protocol 1, the president says he accepts Article 75 as consistent with current American practice. His key conclusion: “The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well.”

What makes this statement so controversial is not the substance of Article 75 (the protection it gives detainees has bipartisan support). Rather, it is the fact that the president is embracing a treaty provision never approved by the Senate.

If Article 75 is accepted as customary international law, then how could Mr. Obama deny that the rest of Protocol 1 also qualifies? And what of all other treaties with a long list of parties? If a large number of countries, simply by joining a treaty, can convert it promptly into customary law, then America loses its right to opt out.

Douglas Feith, Under Secretary of Defense for Policy from 2001 to 2005, is a Senior Fellow at Hudson Institute and the author of War and Decision: Inside the Pentagon at the Dawn of the War on Terrorism.

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