Amicus Curiae Brief — Department of Homeland Security, et al., Petitioners v. Vijayakumar Thuraissigiam
Supreme Court briefJan 22, 2020
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No. 19-161
In the Supreme Court of the United States
_________
DEPARTMENT OF HOMELAND SECURITY,
ET AL.,
Petitioners,
v.
VIJAYAKUMAR THURAISSIGIAM,
Respondent.
_________
On Writ of Certiorari to
the United States Court of Appeals
for the Ninth Circuit
_________
BRIEF AMICUS CURIAE FOR
INTERNATIONAL LAWYERS
IN SUPPORT OF RESPONDENT
_________
Curtis Doebbler
Counsel of Record
The Law Office of Dr
Curtis FJ Doebbler
159 West Drexel Ave.
San Antonio, TX 78210
(210) 780-0054
cdoebbler@gmail.com
Counsel for Amicus Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES................................... iii
ACRONYMS AND ABBREVIATIONS ................. ix
INTEREST OF AMICI CURIAE ........................... 1
I. SUMMARY OF THE ARGUMENT .................. 2
II. ARGUMENT...................................................... 2
A. Introduction ................................................. 2
B. International Law Applicable to the
United States Provides for Minimum
Norms of Due Process and Fair Trial ......... 4
1. The Rights to Due Process and a
Fair Trial in Treaties Applicable
to the United States .......................... 5
2. The Rights to Due Process and a
Fair Trial under Customary International Law ................................ 6
C. The Executive and All of Its Officers are
Bound by International Law ....................... 11
1. Treaties ............................................. 12
2. Customary International Law.......... 14
D. Public Policy Supports Applying International Law ................................................ 17
III. CONCLUSION ................................................. 21
APPENDICES ........................................................ A-1
iii
TABLE OF AUTHORITIES
U.S. Laws
8 U.S.C. § 1252(e) ................................................ 2, 3
8 U.S.C. § 1252(e)(2) ............................................ 3
8 U.S.C. § 1255(b)(1) ............................................ 2
84 Fed. Reg. 63994 (2019) ................................... 4
U.S. Const. art. IV, cl. 2 ...................................... 13
U.S. Const. art. II, § 3 ......................................... 12
U.S. Const. art. III, § 2, cl. 1 ............................... 14
Treaties
African Charter of Human and Peoples’
Rights, Jun. 27, 1981, 1520 U.N.T.S. 217
(entered into force Oct. 21, 1986) .................... 7
American Convention on Human Rights, Nov.
22, 1969, 114 U.N.T.S. 213 (entered into
force Jul. 18, 1978) ........................................... 7
Charter of the Organization of American
States, 119 U.N.T.S. 3 (1951) .......................... 7
Convention for the Protection of Human
Rights and Fundamental Freedoms, Nov. 4,
1950, 213 U.N.T.S 221 (entered into force
Sept. 3, 1953).................................................... 6-7
iv
International Covenant on Civil and Political
Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) ........................ 5, 6
Protocol of Amendment to the Charter of the
Organization of American States, O.A.S.
Treaty Series No. 1-A (entered into force
Mar. 12, 1970) .................................................. 7
Vienna Convention on the Law of Treaties,
May 23, 1969, 1155 U.N.T.S. 331 (entered
into force Jan. 27, 1980)................................... 19
Domestic & International Cases
Al Khouri v. Ashcroft, 362 F.3d 461 (8th Cir.
2004) ................................................................. 10
Andrea Mortlock v. United States, Admissibility and Merits, Judgment, Inter-Am.
Comm’n H.R., Report No. 63/08, Case No.
12.534 (2008) .................................................... 9
Bolivarian Republic of Venezuela, et al., v.
Helmerich & Payne International Drilling
Co., et al., 581 U. S. ____ (2017), 137 S. Ct.
348 (2017) ......................................................... 16
Cook v. United States, 288 U.S. 102 (1933) ....... 13
Dooley v. United States, 182 U.S. 222
(1901) .............................................................. 12,13
v
Habeas Corpus in Emergency Situations
(Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion, Inter-Am. Ct. H.R., No. OC-8/87 (Jan.
30, 1987) ........................................................... 10
Hamdan v. Rumsfeld, 548 U. S. 557 (2006) ....... 13
Hilton v. Guyot, 159 U.S. 113, 163 (1895) .......... 15
Interpretation of the American Declaration of
the Rights and Duties of Man within the
Framework of Article 64 of the American
Convention on Human, Rights, Advisory
Opinion OC-10/89, Inter-Am. Ct. H.R. ¶ 45
(Jul. 14, 1989)................................................... 7-8
Kolovrat v. Oregon, 366 U.S. 187 (1961) ............ 13
Lok v. INS, 548 F.2d 37 (2d Cir. 1977) ............... 10
Loren Laroye Riebe Star, Jorge Alberto Barón
Guttlein and Randolfo Izal Elorz v. Mexico,
Merits, Judgment, Inter-Am. Comm’n H.R.,
Report No. 49/99, Case No. 11.610 (Apr. 13,
1999) ............................................................. 9-10
Missouri v. Holland, 252 U.S. 416 (1920) ........... 13
Murray v. Schooner Charming Betsy, 6 U.S.
(2 Cranch) 64, 118 (1804) ................................ 17
Roach and Pinkerton v. United States, Judgment, Inter-Am. Comm’n H.R. 147,
vi
OEA/ser.IJVII.71, doc. 9 rev. 1 (Sept. 22,
1987) ................................................................. 8
Sosa v. Alvarez-Machain, 542 U.S. 692, 729
(2004) ................................................................ 15
The Paquete Habana, 175 U.S. 677
(1900) ....................................................... 15,16,17
Ware v. Hylton, 3 U.S. (3 Dall.) 199, 272
(1796) ............................................................... 14
Water Splash, Inc. v. Menon, 581 U.S. ___
(2017), 137 S. Ct. 1504 (2017) ......................... 13
Wayne Smith v. United States, Admissibility,
Judgment, Inter-Am. Comm’n H.R., Report
No. 56/06, Case No. 12.562 (Jul. 20, 2006) ..... 9
White and Potter (Baby Boy) v. United States,
Judgment, Inter-Am. Comm’n H.R. 25,
OEA/sev.L/V/II.54, doc. 9, rev. 1 (Mar. 6,
1981) ................................................................. 8
Worcester v. Georgia, 31 U.S. (6 Pet.) 515
(1932) ................................................................ 12
Books, Articles and Other Materials
American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, Apr. 1948,
O.A.S. Doc. OEA/Ser.L.V/II.82 doc.6 rev.1
(1992) ................................................................ 8,9
vii
Bart, S.H., Halleck’s International Law, Vol.
II (1878) ........................................................... 13
Henkin, L., How Nations Behave: Law and
Foreign Policy 47 (2d ed., 1979) ...................... 19
Inter-Am. Comm’n H.R., “Report on Immigration in the United States: Detention and
Due
Process,”
O.A.S.
Doc.
OEA/Ser.L/V/II.Doc. 78/10 (Dec. 30, 2010) ..... 9
Inter-Am. Comm’n H.R., “Second Progress
Report of the Special Rapporteurship on
Migrant Workers and Their Families in the
Hemisphere, Annual Report 2000” (Apr. 16,
2001) ................................................................. 9
Innovation Law Lab & S. Poverty Law Ctr.,
The Attorney General’s Judges: How the
U.S. Immigration Courts Became a Deportation Tool (Jun. 2019)..................................... 3-4
International Law Commission, Draft Articles on State Responsibility, annexed to
U.N.G.A. Res. 56/83 of December 12, 2001,
and corrected by U.N. Doc. A/56/49(Vol.
I)/Corr.4 ....................................................... 20-21
Jaya Ramji-Nogales, et al., “Refugee Roulette:
Disparities in Asylum Adjudication,” 60
Stan. L. Rev. 295 (2007) .................................. 4
viii
Paust, J.J., “Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply
to Professor Moore,” 39 Hous. J. Int'l L. 57
(2017) ......................................................... 12,13
Paust, J.J., “May the President Violate Customary International Law? (Cont'd): The
President is Bound by International Law,”
81 Am. J. Int’l L. 377 (Apr. 1987) ................ 16-17
The American Law Institute, The Restatement (Third) of the Foreign Relations
Law
of
the
United
States
(1987) ....................................................... 11,16,19
The Correspondence and Public Papers of
John Jay, Vol. III (Henry P. Johnston, ed.,
1891) ................................................................. 15
The Federalist No. 22 (Hamilton) ....................... 13
The Federalist No. 64 (Jay) ................................. 13
The Federalist No. 80 (Hamilton) ....................... 13
United Nations, Report of the United Nations
Special Rapporteur on Human Rights of
Migrant Workers, Gabriela Rodríguez Pizarro, U.N. Doc. E/CN.4/2003/85 (Dec. 30,
2002) ................................................................. 6
ix
United Nations Working Group on Arbitrary
Detention, Conclusions and Recommendations, U.N. Doc. E/CN.4/2004/3 (Dec. 15,
2003) ................................................................. 6
x
ACRONYMS AND ABBREVIATIONS
Am. J. Int’l L.
Co.
Dall.
Doc.
ed.
Fed. Reg.
IACHR
ICCPR
IJ
No.
O.A.S. or OEA
O.A.S.T.S.
para.
Pet.
Pub. L.
Res.
S. Ct.
Ser.
U.S.
U.N.
U.N.G.A.
U.N.T.S.
Vol.
American Journal of International
Law
company
Dallas
document
edition
Federal Regulation
Inter-American Commission on
Human Rights
International Covenant on Civil
and Political Rights
Immigration Judge
number
Organization of American States
Organization of American States
Treaty Series
paragraph
Peters
Public Law
resolution
Supreme Court Reporter
series
United States or United States Reports
United Nations
United Nations General Assembly
United Nations Treaty Series
Volume
1
STATEMENT OF INTEREST
OF AMICUS CURIAE 1
The individual amicus curiae whose views are
presented here are international law scholars specializing in public international law and international human rights law. See Appendix A (listing
all amici). They research, teach, speak, practice, and
publish widely on international law issues, and routinely advise governments on issues of international law.
Amici submit this brief to assist the Court in deciding whether international law should be applied
in the consideration of this case and generally what
law is relevant.
Amici argue that the applicable international
law provides for the rights of due process and fair
trial and requires the availability of the writ of habeas corpus.
1 Pursuant to Supreme Court Rule 37.3, the amici submit this
brief without an accompanying motion for leave to file an amicus
curiae brief because all parties have consented to its filing. Pursuant to this Court’s Rule 37.6, we note that no part of this brief
was authored by counsel for any party, and no person or entity
other than the International Lawyers or its members made any
monetary contribution to the preparation or submission of the
brief.
2
I. SUMMARY OF ARGUMENT
The purpose of this brief is to bring to the
Court’s attention international law applicable to
the United States that provides requirements of
due process or fair trial in the determination of
rights such as those at issue in expedited removal
proceedings.
The amici believe that international law, as it is
relevant to the determination of this case, should be
addressed by Court. The amicus brief therefore
seeks to bring to the Court’s attention the standards of due process and fair trial that exist under
international law and are applicable to the United
States.
The applicable international law includes treaties ratified by the United States as well as customary international law that is part of U.S. law. As
such, this international law must be faithfully executed by the Executive and enforced by U.S. courts.
II. ARGUMENT
A.
INTRODUCTION
The amici understand the question before the Court
to turn on whether the expedited removal procedure
satisfies due process and fair trial requirements. The
expedited removal procedure is established in 8
U.S.C. § 1255(b)(1), while 8 U.S.C. § 1252(e) provides
that an asylum seeker or a person seeking subject to
expedited removal who is seeking protection due to
the threat of torture or other persecution may only
3
have very limited access to judicial review. As a result,
an asylum seeker or other person seeking protection
from torture or persecution is denied access to a full
habeas corpus procedure.
Consequently, an asylum seeker or other person
seeking protection from torture or persecution is only
entitled to (1) a procedure before the Customs and
Border Patrol, a body of whom the majority of members have little or no understanding of international
human rights law; (2) an interview with an Asylum
Officer, which often lasts less than an hour; and (3) a
hearing––which is often very brief––before an administrative official referred to as an Immigration Judge
(hereinafter “IJ”). In these expedited administrative
proceedings, asylum seekers who are detained are often not represented by legal counsel.
The only judicial review is that foreseen in 8 U.S.C.
§ 1252(e)––through a district court habeas corpus action. However, district courts are limited to reviewing
determinations of whether the petitioner is an alien,
was ordered removed, and can prove her or his immigration status. 8 U.S.C. § 1252(e)(2). No matter how
egregious the deficiencies of due process or fair trial
in the administrative proceedings, these deficiencies
cannot be judicially reviewed. Moreover, all the proceedings establishing the record for the limited judicial review are before administrative officials who are
employees of the Executive branch. These employees
may be intimidated by the statements of their superiors, who are political appointees, indicating that administrative officials should limit the number of immigrants allowed into the country. See, e.g., Innovation Law Lab and Southern Poverty Law Center, The
Attorney General’s Judges: How The U.S.
4
Immigration Courts Became A Deportation Tool 22
(June 2019) and Jaya Ramji-Nogales, et al., “Refugee
Roulette: Disparities in Asylum Adjudication,” 60
Stan. L. Rev. 295, 386 (2007).
As this case comes before the Court, the U.S. government is in the process of further limiting due process and fair trial provisions of the expedited removal
procedure. See 84 Fed. Reg. 63994 (Nov. 19, 2019) (authorizing the removal of asylum-seekers and other
seeking protection before any administrative proceeding before an Asylum Officer or IJ). In so doing, the
government is paying little to no attention to the legal
obligations of the United States under international
law.
The amici submit that international law is relevant
to the consideration of the legality of the expedited removal procedure because this procedure must be consistent with the international legal obligations of the
United States relating to due process and fair trial.
This law should be applied by the Court in its consideration of this case.
B.
International Law Applicable to the
United States Provides for Minimum
Norms of Due Process and Fair
Trial.
International law applicable to the United States
includes the rights to due process and a fair procedure
for the determination of claims for asylum and other
forms of protection from serious human rights violations.
5
The rights to due process and fair trial apply to procedures through which individuals claim rights recognized by domestic or international law. A person seeking asylum or claiming protection from a serious violation of her or his human rights is exercising a right
recognized under both domestic and international
law––namely, the right to seek and receive asylum or
the right to be protected from torture, cruel, inhumane and degrading treatment or punishment.
At a minimum, the combined effect of the rights to
due process and fair trial guarantee a migrant seeking
asylum or other protection from serious human rights
violations the right to challenge the legality of her or
his removal, including the factual determinations of
the administrative official and the fairness of the process leading to removal. This requires the United
States to provide these individuals the right to the
common law writ to habeas corpus.
1. The Rights to Due Process and a Fair
Trial in Treaties Is Applicable to the
United States.
The rights to due process and fair trial are found in
International Covenant on Civil and Political Rights,
Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force
Mar. 23, 1976) (hereinafter “ICCPR”). This treaty has
been ratified by the United States. The ICCPR provides in article 14 that in the determination of one’s
rights, “. . . everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by law.” ICCPR art. 14.
This right requires access to a body that is not
6
beholden to one of the parties before it and to a proceeding in which there is equality of arms between the
parties. The right enumerated in article 14 also requires that a petitioner be allowed an opportunity to
determine the fairness of his or her procedure.
The United Nations Working Group on Arbitrary
Detention has concluded that “where people have
been detained, expelled or returned without being provided with legal guarantees, their continued detention
and subsequent expulsion are to be considered as arbitrary.” U.N. Working Group on Arbitrary Detention,
Conclusions and Recommendations, U.N. Doc.
E/CN.4/2004/3, para. 86 (Dec. 15, 2003). Similarly, the
United Nations Special Rapporteur on the Human
Rights of Migrant Workers has urged States to avoid
actions that curtail judicial control of the right to seek
asylum. United Nations, Report of the United Nations
Special Rapporteur on Human Rights of Migrant
Workers, Gabriela Rodríguez Pizarro, U.N. Doc.
E/CN.4/2003/85, para. 75(h) (Dec. 30, 2002).
2. The Rights to Due Process and a Fair
Trial Also Arise Under Customary International Law.
The fundamental aspects of both the right to due
process and the right to a fair trial are well-established in customary international law that is applicable to the United States. These rights are included in
numerous human rights instruments that have been
ratified by virtually every country in the world. See,
e.g., ICCPR, arts. 6, 7, 14 (ratified by 173 of 206 sovereign States in the international community); Convention for the Protection of Human Rights and
7
Fundamental Freedoms, Nov. 4, 1950, arts. 2, 3, 6,
213 U.N.T.S 221 (entered into force Sept. 3, 1953) (ratified by 47 European States); American Convention on
Human Rights, Nov. 22, 1969, arts. 4, 5, 8, 114
U.N.T.S. 213 (entered into force Jul. 18, 1978) (ratified
by 25 American States); African Charter of Human
and Peoples’ Rights, Jun. 27, 1981, arts. 4, 5, 7, 1520
U.N.T.S. 217 (entered into force Oct. 21, 1986) (ratified by 54 African States). In total, these treaties enjoy
more than 300 ratifications.
The most important expressions of the customary
international law rights to due process and fair trial
are found in the Inter-American context, in which the
United States is an important and very influential actor. As a Member State of the Organization of American States (hereinafter “O.A.S.”), the United States
has recognized and accepted its obligation to respect
the Inter-American rules of customary international
law. It has done this by joining the consensus of States
that have adopted the regional Inter-American instruments that expressly endorse the rights to due process
and fair trial. These instruments are interpreted by
the Inter-American Commission on Human Rights
(hereinafter “IACHR” or “Commission”), a body whose
“principal function [is] to promote the observance and
protection of human rights.” Protocol of Amendment
to the Charter of the Organization of American States,
Feb. 27, 1967, art. 112, O.A.S.T.S. 1-A (entered into
force Mar. 12, 1970) (ratified by the United States on
April 23, 1968). The United States is party to the
Charter of the Organization of American States, 119
U.N.T.S. 3 (1951), the instrument that created the
Commission, and is subject to the jurisdiction of the
Commission. See Interpretation of the American
8
Declaration of the Rights and Duties of Man within
the Framework of Article 64 of the American Convention on Human, Rights, Advisory Opinion OC-10/89,
Inter-Am. Ct. H.R. ¶ 45 (Jul. 14, 1989).
The Commission has held that the provisions of the
American Declaration of the Rights and Duties of
Man, O.A.S. Res. XXX, Apr. 1948, O.A.S. Doc.
OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992) (hereinafter “American Declaration”), which enumerates the
rights to due process and fair trial and was adopted by
the 1948 inter-governmental Ninth International
Conference of American States, in which the United
States participated, are incorporated into the text of
the Charter because they reflect customary international law. The Commission reaffirmed the customary
international nature of the American Declaration on
the Rights and Duties of Man in its opinions in White
and Potter (Baby Boy) v. United States, Judgment, Inter-Am. Comm’n H.R. 25, OEA/sev.L/V/II.54, doc. 9,
rev. 1 (Mar. 6, 1981) and Roach and Pinkerton v.
United States, Judgment, Inter-Am. Comm’n H.R.
147, OEA/ser.IJVII.71, doc. 9 rev. 1 (Sept. 22, 1987).
In the latter case, the Commission held unequivocally
that the provisions of the Declaration are part of international law applicable to the United States. Roach
and Pinkerton v. United States, ¶¶ 45–48.
Article XVIII of the American Declaration provides
that “[e]very person may resort to the courts to ensure
respect for his legal rights. There should likewise be
available to him a simple, brief procedure whereby the
courts will protect him from acts of authority that, to
his prejudice, violate any fundamental constitutional
rights.” American Declaration at 17. Article XXVI of
the American Declaration states that “[e]very person
9
accused of an offense has the right to be given an impartial and public hearing . . .” Id. The IACHR, as the
body authorized to interpret the obligations of O.A.S.
Member States, has made clear that it understands
these fair trial provisions to apply to immigration proceedings. See Andrea Mortlock v. United States, Admissibility and Merits, Judgment, Inter-Am. Comm’n
H.R., Report No. 63/08, Case No. 12.534, ¶ 83 (2008).
The Commission stated that to deny an alleged victim
these protections “simply by virtue of the nature of immigration proceedings would contradict the very object of this provision and its purpose to scrutinize the
proceedings under which the rights, freedoms and
well‐being of the persons under the State’s jurisdiction are established.” Id.
Both the Inter-American Court and Commission
have reiterated this understanding. In its “Report on
Immigration in the United States: Detention and Due
Process,” the Commission noted that “[w]hile many of
these guarantees are articulated in a language that is
more germane to criminal proceedings, they must be
strictly enforced in immigration proceedings as well,
given the circumstances of such proceedings and their
consequences.” IACHR, “Report on Immigration in the
United States: Detention and Due Process,” O.A.S.
Doc. OEA/Ser.L/V/II.Doc. 78/10 (Dec. 30, 2010); see
also IACHR, “Second Progress Report of the Special
Rapporteurship on Migrant Workers and Their Families in the Hemisphere, Annual Report 2000,” para. 90
(Apr. 16, 2001); Wayne Smith v. United States, Admissibility, Judgment, Inter-Am. Comm’n H.R., Report No. 56/06, Case No. 12.562, ¶ 51 (Jul. 20, 2006);
Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Randolfo Izal Elorz v. Mexico, Merits,
10
Judgment, Inter-Am. Comm’n H.R., Report No. 49/99,
Case No. 11.610, ¶ 46 (Apr. 13, 1999).
The rights to due process and fair trial require that
the writ of habeas corpus be available to every migrant challenging the legality of her or his detention,
removal, and/or deportation, even in states of emergency. See Habeas Corpus in Emergency Situations
(Arts. 27(2), 25(1) and 7(6) American Convention on
Human Rights), Advisory Opinion, Inter-Am. Ct.
H.R., No. OC-8/87 (Jan. 30, 1987). This right exists,
according to the Inter-American Court of Human
Rights, because it is “essential for the protection of
various rights whose derogation is prohibited … and
that serve, moreover, to preserve legality in a democratic society.” Id. ¶ 20. While the right to fair trial
may be derogated from in exceptional cases of emergency, the right to access a procedure for a writ of habeas corpus may never be derogated from because it is
essential “to preserve legality in a democratic society.”
Id. ¶ 42.
U.S. courts have long recognized the complex nature of our immigration laws. U.S. immigration law
involves a complex set of regulations that are difficult
for any non-citizen to understand. See, e.g., Al Khouri
v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004) (referring to the "morass of immigration law"); Lok v. INS,
548 F.2d 37, 38 (2d Cir. 1977) (acknowledging the
"baffling skein of provisions for the INS and courts to
disentangle"). Unless a person has access to the full
panoply of due process and fair trial rights required
by law, there is little chance that they can be provided
a fair process in the determination of their rights. The
current expedited removal process does not provide
for an adequately reasoned decision, does not allow
11
adequate time and facilities to prepare one’s case, does
not provide for adequate access to legal counsel, and
does not provide for ‘equality of arms.’
Moreover, the prohibition of torture and the right
to seek and receive asylum when one has shown a
well-founded fear of serious threats to life, well-being
or other basic rights are among these most basic human rights. Individuals seeking asylum or other
forms of protection against serious interferences with
their most basic human rights are entitled to protection under both international and national law. The
determination of whether or not they qualify for protection must be made in a procedure that meets the
standards of due process and fair trial both domestically and under international law.
C. The Executive and All of Its Officers
are Bound by International Law.
International law, emanating from both treaties
that the U.S. has ratified and customary international
law that is applicable to the U.S., creates legal obligations for the Executive and all Executive Officers of
the U.S.
The American Law Institute, The Restatement
(Third) of the Foreign Relations Law of the United
States (1987) (hereinafter “Restatement”), in its “Introduction,” states unambiguously that “[i]n conducting the foreign relations of the United States, [officials
of the United States] are not at large in a political process; they are under law.” Id. at 5. Similarly, Professor
Jordan Paust, reviewing extensive practice by this
Court, and the writings of the founding fathers,
12
concludes that there can be no doubt that “the President is bound by customary and treaty-based international law.” Paust, J.J., “Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply to Professor Moore,”
39 Hous. J. Int'l L. 57, 71–72 & nn. 51–63 (2017).
A failure by this Court to consider the international
obligations of the United States providing for the
rights to due process and fair trial would not only reverse centuries of consistently upheld precedent, but
also could subject the United States to international
criticism as a state unwilling to abide by and show due
respect for international law.
1. Treaties
The Executive is bound by treaties that have received the advice and consent of the United States
Senate, as the U.S. Constitution expressly states that
the President of the United States “shall take Care
that the Laws be faithfully executed,” including as indicated above international law. U.S. Const. art. II, §
3. These treaties should be applied by the Court whenever an exercise of Executive authority raises an issue
of consistency with the United States’ treaty obligations. Indeed, this Court has frequently reviewed executive power based on treaties. Justice John McLean,
in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1932),
held that treaties with native American Nations are
treaties that “must be respected and enforced by the
appropriate organs of the Federal Government.” Id. at
594. In Dooley v. United States, 182 U.S. 222 (1901),
Justice Henry Billings Brown cited with approval the
seminal work of American General Henry Wager
13
Halleck, a jurist and expert in international law, stating that the “[t]he stipulations of treaties . . . are obligatory upon the nations that have entered into to
them . . . and therefore the Executive is bound by the
laws of war that are international law. Id. at 231–32
(citing Bart, S.H., Halleck’s International Law, Vol. II,
433 (1878)). More recently, in Hamdan v. Rumsfeld,
548 U. S. 557 (2006), this Court applied international
law to an armed conflict involving the United States
and held that “. . . the Executive is bound to comply
with the rule of law . . .” including international law.
Id. at 635.
Treaties are expressly made part of U.S. law by the
U.S. Constitution that expressly states that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of
the Land.” U.S. Const. art. IV, cl. 2.
During the founding of the United States, two of the
most prominent founders, Alexander Hamilton and
John Jay, expressed the opinion that treaties were
binding and should be applied by U.S. courts. See The
Federalist No. 22 at 197 (Hamilton); No. 80 at 501–03
(Hamilton); No. 64 423–24 (Jay). This Court, on numerous occasions, has recognized that treaties are
part of U.S. law and must be applied by the Court.
See, e.g., Missouri v. Holland, 252 U.S. 416 (1920);
Cook v. United States, 288 U.S. 102 (1933); Kolovrat
v. Oregon, 366 U.S. 187 (1961); Water Splash, Inc. v.
Menon, 581 U.S. ___ (2017), 137 S. Ct. 1504 (2017);
see also Paust, J.J., “Actual Commitment to Compliance with International Law and Subsequent Supreme Court Opinions: A Reply to Professor Moore,”
39 Hous. J. Int'l L. 57 (2017). Adherence to treaty obligations is particularly important when application of
14
the treaty carries significance for the United States in
international affairs. As Justice James Iredell stated
long ago, and is equally valid today,
a treaty, when executed pursuant to full power, is
valid and obligatory, in point of moral obligation, on
all, as well on the legislative, executive, and judicial
departments . . . as on every individual of the nation, unconnected officially with either, because it
is a promise in effect by the whole nation to another
nation, and if not in fact complied with, unless
there be valid reasons for noncompliance, the public
faith is violated. Ware v. Hylton, 3 U.S. (3 Dall.)
199, 272 (1796).
Treaties that the United States has ratified must
be applied by U.S. courts because Article II of the U.S.
Constitution makes those treaties applicable both in
and of themselves and as part of U.S. law, and because
the Court itself has affirmed the application of treaties to relevant disputes. For the foregoing reasons, in
reviewing the actions of the Executive, the Court
should consider the treaties that the United States
has ratified as part of U.S. law.
2. Customary International Law
Similarly, customary international law should be
applied by the Court because it is part of U.S. law according to both the Constitution, U.S. Const. art. III,
§ 2, cl. 1, and the holdings of this Court.
The Court has consistently recognized that customary international law is part of U.S. law and that it
will apply such law. This Court has stated that “[f]or
two centuries we have affirmed that the domestic law
15
of the United States recognizes the law of nations [i.e.
customary international law].” Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004). Indeed, the first Chief
Justice of this Court, Chief Justice John Jay, expressly charged grand juries “that the laws of nations
make part of the laws of this and of every other civilized nation. They consist of those rules for regulating
the conduct of nations towards each other; which, resulting from right reason, receive their obligations
from that principle and from general assent and practice.” John Jay, C.J., Charge to Grand Juries: The
Charges of Chief Justice Jay to the Grand Junes on
the Eastern circuit at the circuit Courts held in the
Districts of New York on the 4th, of Connecticut on
the 22d days of April, of Massachusetts on the 4th,
and of New Hampshire on the 20th days of May, 1790
in The Correspondence and Public Papers of John Jay,
Vol. III, 387, 393 (Henry P. Johnston, ed., 1891). Justice Gray, writing the opinion for the Court in Hilton
v. Guyot, 159 U.S. 113 (1895), expressly agreed, stating that “[t]he most certain guide . . . [to the applicable
international law] is a treaty or a statute . . . [but]
when . . . there is no written law upon the subject, the
duty still rests upon the judicial tribunals of ascertaining and declaring what the law is . . . .” Id. at 163.
The opinion states further that “[i]nternational law,
in its widest and most comprehensive sense . . . is part
of our law, and must be ascertained and administered
by the courts of justice as often as such questions are
presented in litigation between man and man, duly
submitted to their determination.” Id. In The Paquete
Habana, 175 U.S. 677 (1900), Justice Gray, again
writing the opinion for the Court, stated that “[i]nternational law is part of our law, and must be
16
ascertained and administered by the courts of justice
of appropriate jurisdiction as often as questions of
right depending upon it are duly presented for their
determination.” Id. at 700. Justice Gray further clarified that “[t]his rule of international law is one which
. . . [this Court] . . . administering the law of nations
are bound to take judicial notice of, and to give effect
to . . . .” Id. at 708. This Court has again recently recognized that customary international law is part of
U.S. law and must be applied by the U.S. courts. See
Bolivarian Republic of Venezuela et al., v. Helmerich
& Payne International Drilling Co. et al., 581 U. S.
____, 137 S. Ct. 348 (2017). This view is shared by the
Restatement, op cit, reading “[i]nternational law and
international agreements of the United States are law
of the United States . . . [c]ases arising under international law or international agreements of the United
States are within the Judicial Power of the United
States . . . .” Id. at § 111.
Reviewing the constitutional history of Executive
authority in light of international law, Professor Jordan J. Paust, one of the foremost authorities on international law in U.S. courts, concludes that the U.S.
Constitution
documents an early expectation that international
law is part of the supreme federal law to be applied
at least by the Executive and the judiciary. It also
documents broader legal policies at stake, all of
which make it quite evident that if the President
violates constitutionally based international law,
he violates not only his constitutional oath and
duty, but also the expectations of the Framers––
still generally shared––about authority, delegated
powers and democratic government. Paust, J.J.,
17
“May the President Violate Customary International Law? (Cont'd): The President is Bound by International Law,” 81 Am. J. Int’l L. 377, 378 (1987).
This expectation was reiterated by this Court in
The Paquete Habana, 175 U.S. 677 (1900). This Court
found that while Congress may authorize action contrary to the mere “usage” of the international community of States, action may not be taken by the Executive merely “by direction of the Executive, without express authority from Congress.” Id. at 711.
Finally, the Charming Betsy doctrine counsels that
“an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Murray v. Schooner Charming Betsy, 6
U.S. (2 Cranch) 64, 118 (1804). It is possible to construct 8 U.S.C. § 1252(e) in a manner that ensures the
basic tenants of due process and fair trial: by preserving the right to access the writ of habeas corpus. For
years, the U.S. did exactly this by allowing federal
judges to review the findings of administrative asylum
proceedings de novo in habeas corpus proceedings. Today, expediency should not be allowed to undermine
the fundamental values of due process, fair trial and
the right to seek and receive asylum and the prohibition of torture that are embedded in the international
obligations that are legally binding on the United
States.
D. Public Policy Supports Applying
International Law.
This Court should apply international law as part
of its obligation to uphold the rule of law and to
18
preserve the system of constitutional democracy of the
United States.
First, the U.S. Constitution and the precedents of
this Court interpreting the Constitution indicate that
international law—both treaties and customary international law—are part of United States law. The U.S.
Constitution expressly declares treaties to be part of
U.S. law, and this Court has repeatedly recognized
that customary international law is part of the laws of
the United States that must be applied by the courts.
When international law is overlooked, relevant law is
not applied to decide a case at law. In this case, international law is relevant law that should be applied.
Second, the United States has represented to its
own people that it will respect international law by
ratifying treaties in which it undertakes to guarantee
certain rights to all individuals under its jurisdiction,
such as the rights to due process, fair trial, and to seek
and receive asylum and the prohibition of torture,
cruel, inhumane and degrading treatment. These
rights are essential to the trust of the American people
in their government. It is incumbent that the Executive branch uphold such representations to the American people for the proper functioning of the government as envisioned by the U.S. Constitution. The
Court should ensure this crucial trust is maintained.
Third, respect for international law is essential to
the reputation of the United States in the international community. By ratifying treaties and participating in international affairs, the United States represents to the international community that it will respect international law. As Professor Louis Henkin
wrote almost forty years ago, and is still true today,
“almost all nations observe almost all principles of
19
international law and almost all of their obligations
almost all of the time.” Henkin, L., How Nations Behave: Law and Foreign Policy 47 (2d ed., 1979). Nations that do not respect international law open themselves to international ridicule and expose themselves
to charges of being rogue States. Any failure of the
United States to respect international law harms the
United States and is inconsistent with the consensus
of States expressed in the text of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155
U.N.T.S. 331 (entered into force Jan. 27, 1980), which
although only signed and not ratified by the United
States, expresses a widely accepted rule of customary
international law in article 27: “[a] party may not invoke the provisions of its internal law as justification
for its failure to perform a treaty.” Id. art. 27. Article
26 of the Vienna Convention, further declares that
“[e]very treaty in force is binding upon the parties to
it and must be performed by them in good faith.” Id.
art. 26. Finally, the American Law Institute’s Restatement notes that “[a] state violates international law
if, as a matter of state policy, it practices, encourages,
or condones . . . a consistent pattern of gross violations
of internationally recognized human rights.” Id. § 702.
A Comment to this provision of the Restatement observes that “the obligations of the customary law of
human rights are erga omnes,” thus an obligation
owed to all states and in which all States have an interest of enforcement. Id. Comment b. Therefore,
when the United States ignores international law, it
harms the reputation of the U.S. in the international
community, embarrasses American citizens, and fuels
the arguments of those States and non-State actors
who seek to use extra-legal means to influence the
20
actions of the United States. It also subjects the U.S.
to the possibility of being found responsible for an internationally wrongful act by international bodies,
such as United Nations special mandate holders or
the IACHR. This is the case because, as the Restatement notes, failure to apply a rule of international law
in a domestic context “does not relieve the United
States of its international obligation or of the consequences of a violation of that obligation.” Id. at § 115.
As the final arbiter of the extent to which international law should apply in the U.S. courts, this Court
should safeguard the reputation of the United States
by ensuring the application of international law.
Fourth, disrespect for international law imposes
significant restrictions on the ability of future administrations to conduct international affairs in the best
interest of the American people. Regardless of domestic law, the United States may face consequences for
having committed an internationally wrongful act if
any organ of the State acts in violation of its international legal obligations. These consequences or reparations for injuries are summarized in the International Law Commission’s Draft Articles on State Responsibility, annexed to U.N.G.A. Res. 56/83 of December 12, 2001, and corrected by U.N. Doc.
A/56/49(Vol. I)/Corr. 4., as including restitution, compensation, satisfaction, and interest on any principal
sum due. Id. arts. 35–38. The commission of an internationally wrongful act also entitles States that are
injured by the act to take countermeasures against
the responsible State. Id. art. 22. Moreover, if the internationally wrongful acts are serious, as acts of systemic discrimination based on religion or national
origin and targeting large numbers people are likely
21
to be, all States in the international community “shall
cooperate to bring to an end through lawful means any
serious breach.” Id. art. 41. These negative consequences are likely to affect the foreign relations of the
U.S. government for many years. They are also reasons why this Court should, whenever possible, ensure respect for international law.
IV. CONCLUSION
For the foregoing reasons, Amici request that the
Court consider United States’ obligations under international law in disposing of this case. Amici urge
the Court to apply international law as a safeguard
for an indivdual’s procedural rights. In this respect,
the Amici urge the Court to view habeas corpus as
a guarantee of an impartial and independent adjudication of removal proceedings for immigrants.
Date: January 22, 2020
Respectfully submitted,
Curtis Doebbler
Counsel of Record
The Law Office of Dr Curtis
FJ Doebbler
159 West Drexel Ave.
San Antonio, Texas 78210
(210) 780-0054
cdoebbler@gmail.com
Counsel for Amici Curiae
A-1
APPENDIX
TABLE OF CONTENTS
Appendix A List of Amici .................................. A-2
A-2
APPENDIX A
The Amici are international lawyers and legal scholars specializing in public international law and international human rights law. They have substantial expertise in issues directly affecting the outcome of this case. These Amici are identified below.
Institutional affiliations are listed for identification
purposes only; opinions in this brief do not reflect
those of any affiliated organization.
1. Jordan Paust, former Mike and Teresa Baker
Law Center Professor of International Law at the
Law Center of the University of Houston with mailing address at The Law Office of Dr Curtis FJ Doebbler, P.O. Box 10100, San Antonio, Texas, 78210.
2. Richard Falk, Albert G. Milbank Professor Emeritus of International Law and Practice at Princeton
University with mailing address at The Law Office of
Dr Curtis FJ Doebbler, P.O. Box 10100, San Antonio,
Texas, 78210.
3. Curtis Doebbler, Research Professor of Law, University of Makeni, with mailing address at The Law
Office of Dr Curtis FJ Doebbler, P.O. Box 10100, San
Antonio, Texas, 78210.*
*Counsel of Record
A-3
4. Dave Inder Comar, Just Atonement, a 501(c)(3)
non-profit organization with mailing address at c/o
Comar Molle´ LLP, 119 W 24th Street, 4th Floor, New
York, NY 10011.
5. Margaretha Wewerinke-Singh, Assistant Professor of Public International Law at Leiden University
Law School located at Steenschuur 25, 2311 ES Leiden, the Netherlands.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.