Is it possible for the US government to be sanctioned/punished for its acts

[AFAIKnow]

@Pleonast

andWhat would happen if the President signed and the Senate ratified a treaty that, to pick an unlikely example, mandated the housing of U.N. troops in private homes? Can then President then knock on your door and order you to house a few Marines wearing blue hats? Would you have any recourse to sue?

Can the President and/or congress superced the Constitution without an amendment approved under Article V?

“The treaty is . . . a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States”. - Doe v. Braden

"It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” - The Cherokee Tobacco

"'The government of the United States, as was well observed in the argument, is one of limited powers. It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot by legislation enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.

<snip>

It is very clear that, as the treaty cannot give this power to the federal government, we must look for it in the constitution, - New Orleans v. U.S

[Bricker]

@Pleonast

Because,That means that treaties have the same supremacy as the Constitution itself. Just as the Supreme Court can’t declare an Amendment unconstitutional, a treaty can’t be so declared.

This represents my understanding, I’m quite possibly incorrect.

No.

This Constitution, and the Laws 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…

Now that mentions three things:

[ul]
[li]The Constitution[/li][li]the laws of the United States made in pursuance to the Constitution[/li][li]treaties[/li][/ul]

There’s no question that in a conflict between federal law and the Constitution, the Constitution wins out. Why would you assume differently for treaties?

[John_Mace]

@Pleonast

Because,That means that treaties have the same supremacy as the Constitution itself. Just as the Supreme Court can’t declare an Amendment unconstitutional, a treaty can’t be so declared.

This represents my understanding, I’m quite possibly incorrect.

Just think of how treaties are ratified: Signed by the prez, and then approved by 2/3 of the Senate. Do you really think the constitution can be amended (which is what the effect would be if your assumption was correct) w/o any input from the House or the State legislatures? No, that makes no sense at all.

[Age_Quod_Agis]

@Pleonast

Because,That means that treaties have the same supremacy as the Constitution itself. Just as the Supreme Court can’t declare an Amendment unconstitutional, a treaty can’t be so declared.

This represents my understanding, I’m quite possibly incorrect.

You are incorrect. The Supreme law of the land is the United States Constitution; treaties may be found unconstitutional. Here’s the Supreme Court in Reid v. Covert 354 U.S. 1 (1956), discussing Article VI (affectionately known as the “Supremacy Clause”) (emphasis added):

@US Supreme Court

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in “pursuance” of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary [354 U.S. 1, 17] War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights - let alone alien to our entire constitutional history and tradition - to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

… This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty.

…This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

So treaties are exactly in line with federal statutes, and both of those are below the US Constitution. The Constitution, treaties, and federal statutes are all superior state laws.

[Pleonast]

Thanks for the quotes, AFAIKnow.

@Bricker

There’s no question that in a conflict between federal law and the Constitution, the Constitution wins out.

Ah, I understand.

@John Mace

Do you really think the constitution can be amended (which is what the effect would be if your assumption was correct) w/o any input from the House or the State legislatures? No, that makes no sense at all.

I hoped that it was not the case. For me there’s very little overlap between “makes sense” and “interpreting the law”. That’s why I tend stick to physics, it sensical.

[Odesio]

@clairobscur

1. the USA already accept that its citizens can be tried by foreign courts (that don’t necessarily have a jury)

Sure, we generally allow nations to put our citizens on trial if they’re accused of committing a crime in their country. The ICC would have jurisdiction over U.S. soldiers no matter where they operated overseas. There seems to be a big difference to me.

2. The USA could always choose to try itself its prosecuted citizens, since the ICC will do so only if the criminal’s country fails to prosecute the crime.

What if the U.S. investigates and decides there isn’t enough evidence to warrant a prosecution or if a trial yields a not guilty verdict or a verdict that isn’t tough enough, what then?

Marc

[AFAIKnow]

@MGibson

What if the U.S. investigates and decides there isn’t enough evidence to warrant a prosecution or if a trial yields a not guilty verdict or a verdict that isn’t tough enough, what then?

Marc

Then, I think it holds water. And since the US has always had that choice, I don’t see a distinction at all.

[JRDelirious]

I used to be under the same misimpression, Pleonast, but closer study showed that the clause in question does not give treaties equal standing with the Constitution. It says “Treaties made under the Authority of the United States” – that Authority derives from the Constitution itself.
BTW. in any case the US refusal to go along with the ICC antecedes the current Iraq unpleasantness, so that is not THE reason. But an unspoken part of the concern IS a fear that individual Americans will end up becoming proxy defendants/sacrificial atonements for the effects of a USA Government policy they were not responsible for, or for actions by George Bush or Secretary Rice or General Pace or any other such person/entity that is beyond the reach of the Court.

clairobscur, the US will extradite its citizens to other countries to face trials in their legal systems, but as mentioned before, subject to prior review by the American judicial system – basically, they feel it’s one thing to voluntarily hand over a suspect; to say they MUST “or else” could be seen as a breach of national sovereignty. And let’s remember that a number of countries will not extradite even an American to the USA if s/he faces a possible death penalty, so it cuts both ways.

[John_Mace]

@Pleonast

That’s why I tend stick to physics, it sensical.

Yep, I know exactly what you mean. I’m a physics guy myself. I could never do the law gig as a living, but it can be fun to debate here.

[Martin_Hyde]

@Pleonast

andWhat would happen if the President signed and the Senate ratified a treaty that, to pick an unlikely example, mandated the housing of U.N. troops in private homes? Can then President then knock on your door and order you to house a few Marines wearing blue hats? Would you have any recourse to sue?

Yes, I would file suit in U.S. Federal Court against the President of the United States (or some other public official that would be applicable) saying my third amendment rights were in material violation (3rd amendment doesn’t come up often, but it’s specifically written to deal with just this kind of thing.)

The USSC would undoubtably rule that the President does not have the authority to force quartering of troops. Would the USSC be able to directly overrule the treaty? I profess ignorance on that. But they could make actual ENFORCEMENT of the treaty on U.S. soil unconstitutional.

[Martin_Hyde]

@clairobscur

These two arguments don’t hold water, since :

1. the USA already accept that its citizens can be tried by foreign courts (that don’t necessarily have a jury)

You’re missing a very important part of my statement that fundamentally alters the argument here.

The ICC would allow U.S. soldiers who commit crimes while under U.S. jurisdiction to be tried without a jury. When you commit a crime in the jurisdiction of the United States you are guaranteed an absolute (you can waive this right in favor a bench trial, obviously.)

While under U.S. jurisdiction is the important part. The U.S. allows its citizens to be tried by foreign courts that do not have jury trials when a U.S. citizen commits a crime in the jurisdiction of those foreign courts. If I kill someone in France the United States won’t protest because I’m convicted without trial by jury (I’m assuming France doesn’t have jury trials, but I honestly don’t know, just for the sake of argument) because the U.S. expects its citizens to recognize they will be governed by the laws of the land in which they are travelling when they are abroad.

Now, the U.S. government WILL step in if I’m arrested in a foreign jurisdiction and tried in a grossly unjust manner, or something like that. But, the simple absence of a jury trial in a civil law country where the trial still conforms to excellent standards of fairness and justice wouldn’t upset anyone at the U.S. State Department.

However, when you start packing off U.S. citizens, who are accused of crimes committed while under U.S. jurisdiction, to a foreign court to be tried not by a jury, that’s a material violation of the 6th Amendment and there is no way around it.

2. The USA could always choose to try itself its prosecuted citizens, since the ICC will do so only if the criminal’s country fails to prosecute the crime.

Well, in the United States, if the prosecuting authorities decide not to prosecute that means they felt there was not enough evidence to make a meaningful case that the person was guilty beyond a reasonable doubt. So that person being tried in those cases would be wholly unacceptable.

[Martin_Hyde]

@Martin Hyde

The ICC would allow U.S. soldiers who commit crimes while under U.S. jurisdiction to be tried without a jury. When you commit a crime in the jurisdiction of the United States you are guaranteed an absolute (you can waive this right in favor a bench trial, obviously.)

Meant to type, “absolute right to trial by jury.”

[First_Amongst_Daves]

@Der Trihs

The US is heavily dependent on foreign trade ( as are our trading partners, of course ). If enough countries hated us enough that they were willing to hurt themselves economically in order to punish us, a boycott of the US by our major trading partners would hurt us bad, I think.

Canadians are a bit mad with the US for ignoring a NAFTA ruling: from The Economist

Last August, NAFTA arbitrators looking into an interminable trade dispute between Canada and the United States on softwood lumber ruled in Canada’s favour. The bad luck for Mr Martin was that the Americans paid almost no attention.

The gist of this arcane dispute is as follows. The Americans accuse the Canadians of charging low stumpage fees to forestry companies that use crown lands. This, they say, enables Canadian exporters to sell lumber at below-market prices. The arbitrators, finding that Canadian lumber exports had not injured American producers, instructed the United States to drop import duties it started to impose three years ago, and to return those it had already collected. But most Americans hardly noticed this ruling, and the Bush administration, under pressure from its own lumber lobby, did nothing to implement it.

America’s insouciance has caused apoplexy north of the border. “Unacceptable,” thundered Mr Martin. A union leader said Ottawa should “turn the taps off on oil and gas exports”. Thomas Axworthy, a former aide to Trudeau, caught the mood in a newspaper article asking whether America’s signature on a treaty meant anything at all. He went on to propose ferocious retaliation: reviewing any American takeovers of Canadian energy companies, stopping work on the Alaska gas pipeline and making exploitation of the oil sands conditional on America ending its “harassment”. When Condoleezza Rice, America’s secretary of state, on a visit to Ottawa in October insisted that America’s record on honouring treaties was “as good as gold”, Canadians reacted with scorn.

In his interview with The Economist, Mr Martin’s own anger was palpable. Though ruling out the use of oil as a lever, he called America’s decision to ignore a ruling by NAFTA’s highest dispute-settlement body a violation of both the spirit and the letter of the accord, and he gave warning that America’s behaviour would affect other decisions Canada might take.

I personally think Mr Axworthy’s proposed retaliation is entirely appropriate: what is the point of being in a dispute resolution mechanism if the resolution is to be ignored?

[buns3000]

@Bricker

What’s the penalty for that crime?

Where can I look that up? In what book of international law statutes?

Presumably, there’s no such thing as war crimes unless he can answer.

[First_Amongst_Daves]

@Martin Hyde

Well, in the United States, if the prosecuting authorities decide not to prosecute that means they felt there was not enough evidence to make a meaningful case that the person was guilty beyond a reasonable doubt. So that person being tried in those cases would be wholly unacceptable.

I’m sure the families of the people in this Italiancable car don’t agree. The pilots were complete idiots, who engaged in an obstruction of justice by destroying videotape:

Although marine pilots are required to maintain altitude of at least one thousand feet (two thousand, according to the Italian government), the plane had cut the cable at a height of 360 feet. It was traveling at 621 miles per hour when 517 miles per hour was considered the upper limit. The pilot had been performing low-level acrobatics while his copilot took pictures on videotape (which he later destroyed).

In response to outrage in Italy and calls for vigorous prosecution of those responsible, the marine pilots argued that their charts were inaccurate, that their altimeter had not worked, and that they had not consulted U.S. Air Force units permanently based in the area about local hazards. A court-martial held not in Italy but in Camp Lejeune, North Carolina, exonerated everyone involved, calling it a “training accident.” Soon after, President Bill Clinton apologized and promised financial compensation to the victims, but on May 14, 1999, Congress dropped the provision for aid to the families because of opposition in the House of Representatives and from the Pentagon.

And the first time the US every prosecuted its troops for a negligent “friendly fire incident” was January 2003, under pressure from the Canadian government. This inquiry revealed the pilots were using amphetemines, had been on shift for 6 hours longer than permitted, and were tens of thousands of feet above the range of the Canadian unit’s small arms fire, and yet the pilots strafed them with a cannon.

My recollection from the book The Justice Game by Geoffrey Robertson QC was that US officials refused to participate in a negligence trial in England for friendly fire on English soldiers in the Gulf War. In that case the plaintiffs were successful. So how can an English court (which are the best in the world) find the pilots negligent, and yet no disciplinary action was taken against the negligent pilots?

Would you agree in the cisrcumstances I have described above that an international court should have jurisdiction where the US refuses or fails to take appropriate action?