Scholars Agree That Congress Could Reject Conventions, but Not That It Should

The Supreme Court’s decision last month striking down the administration’s plans to try detainees held at Guantánamo Bay, Cuba, was widely hailed as a sweeping triumph for judicial supremacy, individual liberty and international law. In its most striking holding, the court said that a provision of the Geneva Conventions concerning the humane treatment of prisoners applied to all aspects of the conflict with Al Qaeda.

But the decision included an escape clause. “Nothing prevents the president from returning to Congress to seek the authority he believes necessary,” Justice Stephen G. Breyer wrote in a concurrence joined by three other justices.

And indeed, administration lawyers are now asking Congress not only to resurrect the trial procedures struck down by the court but also to address the prohibitions in Common Article 3 of the conventions, which bar, among other things, “outrages upon personal dignity, in particular, humiliating and degrading treatment.”

Legal scholars, including many who say that overriding the Geneva Conventions would be a terrible idea, agree that Congress has the power to do so.

“Congress could come back and write that blank check,” said Peter J. Spiro, a law professor at Temple University.

Martin S. Lederman, a former Justice Department official now at the Georgetown University law school, agreed. “As a matter of domestic law, Congress can pass a statute authorizing what treaties forbid.”

The general rule is that a treaty is a law like any other, meaning a later law can override it. “The last-enacted piece of legislation is effective,” said Scott L. Silliman, a former military lawyer and the executive director of the Center on Law, Ethics and National Security at Duke University. “Can Congress legally restrict the application of the Geneva Conventions? Yes, it can.”

Such a move, however, would be groundbreaking, given the status of the Geneva Conventions in international law and in the popular imagination.

“This is the most exalted humanitarian law treaty enacted in the 20th century,” said Derek P. Jinks, a law professor at the University of Texas and the author of “The Rules of War: The Geneva Conventions in the Age of Terror.”

To be sure, many nations have violated the conventions in practice. But apparently no national legislature has ever taken the step of specifically overriding them.