ROBERT SIEGEL, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
It was a very busy day at the Supreme Court. For more than an hour, the court heard arguments today testing the rights of American citizens held by U.S. forces in Iraq. In a separate case, the attorney general made a rare appearance as advocate for the United States. The justices delivered a major opinion limiting the force of many U.S. treaties, and they rejected President Bush's assertion that he can unilaterally order state governments to comply with treaties.
NPR legal affairs correspondent Nina Totenberg begins our coverage.
NINA TOTENBERG: The Constitution says all treaties 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. So when the Senate ratifies a treaty with a two-thirds vote, does that mean that the treaty provisions are binding on the states?
Today, the U.S. Supreme Court said they are binding only if the treaty explicitly says so or there's legislation to make that clear. For all of American history many treaties have been deemed to be what's called self-executing, meaning that its provisions are automatically binding. But not all treaties fall into this category.
And today, the Supreme Court set a bright line for which treaties are self-executing, namely those that explicitly say so or have accompanying legislation that says so. The court said the president acting on his own cannot make a treaty binding on the states. The court's ruling came in a death penalty case involving a treaty enacted in 1969 guaranteeing that when foreign nationals are accused of a crime they must be given access to diplomats from their home country.
Although this provision was inserted at the insistence of the United States to protect its citizens abroad, state and local governments here were slow to honor it.
And in 2004, the Mexican government went to the International Court of Justice on behalf of 51 of its citizens on death row in the United States, who had not been told that their right to consular access and thus did not have the benefit of the Mexican government's help at the time of their trials.
The International Court rules of the U.S. had violated its treaty obligations and ordered the U.S. to, in some form, reconsider the death sentences. President Bush then withdrew from the part of the treaty subjecting the United States to the International Court's jurisdiction. But for those 51 individuals, he ordered the state courts to comply.
The state of Texas, his home state, refused asserting that the president's unilateral assertion of power was unconstitutional. And today, the U.S. Supreme Court agreed by a 6-to-3 majority. Writing for the court, Chief Justice John Roberts said that since this treaty did not explicitly say its provision were binding and since there was no legislation to make the treaty binding, the president could not, on his own, force the states to comply.
Said Roberts, there's no reason to believe that the president and the Senate signed up for such a result. Dissenting were Justices Breyer, Ginsburg and Souter. They said some 70 existing treaties are in jeopardy because of today's ruling. Many U.S. diplomats were dismayed. Yale Law School Dean Harold Koh, who served in the State Department official in the Clinton administration, said the decision would create havoc in diplomatic circles for sometime to come.
Mr. HAROLD KOH (Dean, Yale Law School): If our international allies have no assurance that we're actually going to keep our word, then they have much less incentive to keep their word when they are being obliged to do something.
TOTENBERG: But Charles Cooper, a former Reagan administration official, said President Bush had gone too far.
Mr. CHARLES COOPER (Assistant Attorney General, Reagan Administration): The notion that the president can himself unilaterally determine that it shall be a binding domestic law, even to the point of pre-empting states laws dealing with criminal procedure is a breathtaking proposition, and that's what the court rejected.
TOTENBERG: Temple Law School Professor Duncan Hollis, an expert on international law, said that nonetheless today's ruling would have practical consequences. Because enforcement of some existing treaties may now be in doubt, negotiations over future treaties could more difficult, he said, with general assurances of enforcement failing to suffice.
Professor DUNCAN HOLLIS (Law, Temple Law School): This case seems to suggest that other countries may now say, that's not enough, you have to tell us. Are you going to have a legislation to meet this treaty's obligations? How exactly are you going to meet your obligations as a matter of international law? And, I think, as a result of this decision the executives are going to be forced to give answers that it didn't have to give before.
TOTENBERG: After the treaty decision was announced today, the court heard arguments in the cases of two men, both American citizens who were challenging their detention by U.S. forces in Iraq. The men traveled to Iraq after the war. One is a translator for journalists, the other allegedly seeking reconstruction work. The U.S. claims they're terrorists and wants them turned over to the Iraqis for trial and potentially, execution. The men say they're innocent and contend they're entitled to a hearing in the U.S. courts to test the basis for their detention before being turned over.
Deputy Solicitor General Greg Garre representing the Bush administration told the justices that when U.S. citizens go abroad they cannot then comeback to the U.S. courts to complain about their arrest and trial in other countries. Chief Justice Roberts: Is there a limit to your argument, supposing they're going to be tortured? Answer: When Americans go abroad, they have to take what they get. Justice Kennedy: Could they be released to a lynch mob? Answer: The Iraqi courts are functioning under fundamental standards.
Representing the two men being held in Iraq, Lawyer Joseph Margulies faced even tougher questioning and from some unexpected quarters. Justice Stevens: Is the fact that there are ongoing hostilities relevant? Say, a sergeant arrest this guy in the streets, he can't turn him over to the Iraqis? Justice Kennedy: suppose an undercover agent in Japan finds a drug dealer, he can't give him to the Japanese police? That's a sweeping statement. That can't be right.
When Lawyer Margulies fudged about whether U.S. citizenship is key to his case, Justice Ginsburg asked, so if a U.S. citizen is facing torture, if released to a foreign government, we should protect him? But if the man is not a citizen, the U.S. should throw him into the lion's den? When Margulies said no, Justice Scalia came back at him from the other direction to say that the whole world has the protections of the U.S. Constitution is extravagant.
Nina Totenberg, NPR News, Washington.
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