Friday, July 22, 2005

WWJRD (What Would Justice Roberts Do) with International Law?

In the midst of the pre-confirmation feeding frenzy over Judge John Roberts, it is worth considering (okay, wildy speculating about) how he would approach the use of foreign judicial opinions, legal sources and the more complex questions about how international law is brought into effect through the federal courts. If, as the FT op-ed by David Garrow suggests, Roberts will be another O'Connor, will he step into her shoes as chief diplomat of the Court as well as chief legal pragmatist?

We have only two high-profile cases from Roberts' time on the DC Circuit to draw on: Acree (dismissing a tort suit brought by US POWs against the Republic of Iraq on the grounds the ATS does not authorize suits against foreign governments. See Julian's earlier post here.) and Hamdan (upholding the administration's use of military commissions at Guantanamo. See posts here and here.) Roberts drafted the Acree opinion and joined Judge Randolph in the Hamdan case. As Julian has already noted, Judge Randolph cleverly avoided appearing to grant too much deference to the executive in constituting the military commissions by holding that the congressional authorization to use force following 9/11 granted the administration the power to constitute these commissions and trials. But the jurisprudential posture of Hamdan read together with Acree (in which the adminsitration filed a brief arguing against the POWs claim), could be construed as one that grants broad deference to executive decision-making in foreign affairs, with only a narrow role for the courts.

Professor Oona Hathaway shares some thoughts on additional Roberts cases at the ThinkProgress blog:

In a much less heralded case decided last month, TMR Energy Limited v. State Property Fund of Ukraine, Roberts signed onto an opinion (again authored by another member of the court) that takes the strong position that “[n]ever does customary international law prevail over a contrary federal statute” and cites a controversial new book on international law for the point that “political branches have the final say about whether and how [customary international law] applies in the United States and whether or not the United States will comply with it.” These issues are not nearly as settled in the case law as the opinion makes them out to be. They are instead the subject of vigorous debate and disagreement.
The only case I could find in which Judge Roberts signed onto an opinion that enforced international law was in Robertson v. American Airlines . In that case, the Court of Appeals (in an opinion again authored by another member of the panel) held that the two-year statute of limitations provided by international law applied to the claim of the litigant rather than the more generous three-year rule that generally governs in the District of Columbia and hence the litigant’s suit was barred.

Memos drafted by Roberts while in the Reagan White House Counsel's Office (published online at the WaPo) Roberts drafted while in the Reagan White House on the Grenada invasion and the detention of the Mariel boatlift asylum seekers. As noted in the Post:

In a memo dated Jan. 13, 1984, he summarily dismissed retired Supreme Court justice Arthur Goldberg's concerns, expressed in a private letter to the White House, that the 1983 U.S. invasion of Grenada was unconstitutional. "Goldberg is correct that the constitution vests the authority to declare war in the Congress," he said. The president, however, "has inherent authority in the international area to defend American lives and interests," an authority that "has been recognized since at least the time President Jefferson sent the marines to the shores of Tripoli. While there are no clear lines separating what the president can do on his own and what requires a formal declaration of war, the Grenada mission seems to be clearly acceptable."

Roberts adopted a similarly expansive view of presidential powers in his review of the proposed Immigration Emergency Act. The bill was drafted in response to the 1980 Mariel boatlift crisis that brought 125,000 Cuban refugees to U.S. shores. Roberts noted that the legislation would have allowed the United States to "flexibly detain" illegal immigrants as well as "freely transport them between detention facilities." He said: "It is a broad grant of emergency powers to the President, but I cannot conclude that it is too broad in light of the Mariel experience."

On the question of whether foreign practices laws and decisions should be used in constitutional decision-making, we've got pretty much nothing in the Roberts record. Though I can't imagine that asking whether European human rights decisions should be consulted on questions of homosexual rights or the death penalty -- regardless of the legitimacy of such a practice -- is a winning strategy for Democrats on the Senate Judiciary Committee.

While this kind of tealeaf reading can be counterproductive, particularly where there are so few leaves to read, Roberts appears comfortable with an expansive view of presidential authority under both the commander in chief and foreign affairs powers, including on the controversial question of whether the president has sole power to determine the scope of US obligations under treaties, and whether customary international law can ever be binding on federal courts. But he does not appear to be a Robert Bork on the fundamental question of whether international rules exist in a way that is justiciable.

Of course, if Roberts is confirmed and serves several decades on the Court, he is likely to be exposed to more foreign law, foreign judges and international travel than in any of his prior professional positions. Whether he becomes a Blackmun or Kennedy as a result of that exposure remains to be seen.


Anonymous Anonymous said...

I don't know if you realize that many people find playing on the devotional phrase "what would Jesus do" to be offensive.

You may not care or may indeed prefer to be offensive, but I thought I would mention it.

John 13: 15 For I have given you an example, that you should do as I have done to you.

7/23/2005 12:08 PM  
Blogger Julian Ku said...

I posted this comment on the Think Progress blog, taking issue with Prof. Hathaway's post.

I don’t disagree exactly with Oona’s description of the cases where Judge Roberts ruled on matters relating to international law. I do take a bit of an issue with her characterization of his (probable) views on customary international law as outside the mainstream.

First, it is worth noting that the same D.C. Circuit opinion (TMR Energy) she cites as an example of Judge Roberts’ problematic views was also joined by Judge David Tatel of the D.C. Circuit, a Clinton appointee and hardly a conservative or international law skeptic.

Second, I don’t agree that the proposition that customary international law cannot override a federal statute is the subject of vigorous debate and disagreement in the academy. I don’t believe that even the famously internationalist Professor Henkin of Columbia subscribes to this view. The mainstream position is that customary international law is “federal common law”. As such, it can never override a pre-existing federal statute. Moreover, even if it is disputed by some academics, there is basically no disagreement among courts for this proposition.

Finally, I am baffled by Oona’s description of the Posner/Goldsmith book as “controversial.” To be sure, it is authored by Jack Goldsmith of Harvard and Eric Posner of U.Chicago, both who are not traditional liberal internationalists. But citing their book is simply not any crazier than, say, citing Anne Marie Slaughter’s recent book A New World Order, which can be viewed as controversial in its own right.

7/25/2005 11:16 AM  
Blogger Peggy McGuinness said...

Good to hear from you from parts beyond. I agree with many of your comments, and I cannot speak for Oona Hathaway, but I assume when she calls the Goldsmith/Posner book "controversial," she is revealing her own disagreement with either its premises or conclusions, and acknowledging that there are others in the academy who disagree with them too.

It is interesting to note (as Linda Greenhouse did in yesterday's NYTimes) that these questions about international law -- or even about the scope of presidential authority during wartime -- do not appear on the first Democrat questionnaire to Roberts. Let's see if any of our pet IL issues get raised at the hearing.

One unrelated addendum, it turns out Judge Roberts teaches an international trade law course at the G'Town summer program (along with Judge Stanceu of the International Trade Court). That kind of familiarity with highly techinical transnational DR procedures would, I think, be rare among SCOTUS nominees. Here's the syllabus.

7/25/2005 12:08 PM  
Anonymous Tom Doyle said...

"I don't know if you realize that many people find playing on the devotional phrase 'what would Jesus do' to be offensive."

With all due respect, I don't regard the title as offensive, and I'm unable to see why anyone would or should. The passage from John's Gospel doesn't support your claim, in my view. Many articles, religious and non-religious, serious and humorous, sermons, homilies, etc. have "played on" a modification of the original "WWJD" question. (See the example below, which relates to the general subject of the OJ blog.) Your comment is the first writing I have encountered that takes the position that such a device is offensive, and, a fortiori, the first claim I've seen that many people consider it so.

Also the statement that Professor McGuinness "may not care or may indeed prefer to be offensive" seems judgmental, unjustified, and uncharitable.

I think you might find the entry on "What would Jesus do?" in the Wikipedia encyclopedia, very interesting and informative, particularly its many links to other writings on the subject.

What Would Grotius Do?-The Founder of International Law Speaks Out on Iraq
By Dean G. Falvy
FINDLAW Apr. 03, 2003

Are the U.S. and Britain waging an illegal war against Iraq? And if they were, how would we know?... Fortunately, with the legality and legitimacy of the present conflict in Iraq very much in doubt, there is still one untarnished authority to whom we can turn. He has remained largely quiet during the crisis, offending none of the principal antagonists....He is the Dutch scholar.... Hugo Grotius,...perhaps the world's leading authority on international law. According to most accounts, he virtually invented the field.

But you won't find Grotius pontificating about Iraq on CNN or Fox, or even on the Op-Ed page of The New York Times. He's been keeping a low profile--at least since his death in 1645.

Despite this not entirely self-imposed silence, Grotius is willing to share his views with those who patiently inquire. Curling up one evening with an copy of his 1625 bestseller De Jure Belli ac Pacis (On the Law of War and Peace), I was able to ask the old master for his opinions on the present crisis. The questions are mine, but Grotius's answers are quoted directly from the text.

Q: The Bush Administration has argued that it is waging war against Iraq now in order to protect the U.S. from possible attacks in the future. But how can this war be justified on the grounds of self-defense, if Iraq has not actually attacked the U.S.?

Grotius: A just cause of war is an injury, which though not actually committed, threatens our persons or property with danger.... The danger must be immediate, which is one necessary point. [But] when an assailant seizes any weapon with an apparent intention to kill me, I have a right to anticipate and prevent the danger.... Many wrongs proceed from fear... Xenophon says, "I have known some men, who partly through misrepresentation, and partly through suspicion, dreading one another, in order to prevent the supposed intentions of their adversaries, have committed the most enormous cruelties against those who neither designed, nor wished them any harm."

Q: That's exactly the problem--what if our fears have simply run amok? It's possible that Iraq would never have used its weapons against us. How certain do we have to be about a threat before we can act?

Grotius: Apprehensions from a neighboring power are not a sufficient ground for war. For to authorize hostilities as a defensive measure, they must arise from the necessity, which just apprehensions create; apprehensions not only of the power, but of the intentions of a formidable state, and such apprehensions as amount to a moral certainty.

Q: "Moral certainty" is a pretty high standard. At that point, isn't it already too late? Shouldn't we strike before the threat even arises--by waging what the Bush administration has called "preventative war"?

Grotius: Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorizes one power to commence hostilities against another, whose increasing greatness awakens her alarms. As a matter of expediency such a measure may be adopted, but the principles of justice can never be advanced in its favor.... [T]o maintain that the bare probability of some remote or future annoyance from a neighboring state affords a just ground of hostile aggression, is a doctrine repugnant to every principle of equity.

Q: So unless there's an immediate threat, "preventative" war can never be just. But even so, isn't it better to ensure our safety now and worry about justice later?

Grotius: In matters of moment, where the lives of men are at stake, the decision should incline to the safer side, according to the proverbial maxim, which pronounces it better to acquit the guilty than to condemn the innocent. War being an object of such weighty magnitude, in which the innocent must often be involved in the sufferings of the guilty, between wavering opinions the balance should incline in favor of peace.

Q: Easy for you to say. You're already dead. If we follow your advice and put justice and caution first, can we ever be sure that we are safe from attack?

Grotius: Such, however, is the condition of human life, that no full security can be enjoyed. The only protection against uncertain fears must be sought, not from violence, but from divine providence, and defensive precaution.

Q: "Defensive precaution" sounds like a containment strategy. Do you think there are measures that could have been taken to contain Iraq short of war?

Grotius: If any one intend no immediate violence, but is found to have formed a conspiracy to destroy me by assassination, or poison... I have no right to kill him. For my knowledge of the danger may prevent it. . . . [M]y knowing it will lead me to apply for the legal remedies of prevention.

Q: ...What about all those U.N. resolutions Saddam flouted? And what about evidence that despite the resolutions, he continued to develop weapons of mass destruction? Aren't they just cause for war?

Grotius: How honorable it is to be heedless of our own lives, where we can preserve the lives, and promote the lasting welfare of others. A duty that should operate with greater force upon Christians, who have before their eyes continually the example of Him who died to save us, while we were enemies and ungodly. An example which calls upon us, in the most affecting manner, not to insist upon the rigorous prosecution of our justest rights, where it cannot be done but by the calamities which war occasions.

Q: I don't suppose you can tell me whether Iraq is a case of "imperious necessity" or not. But what about some of the other justifications offered by advocates of the war, such as protecting our oil supplies and enhancing the stability of the region?

Grotius: The advantage to be gained by a war can never pleaded as a motive of equal weight and justice with necessity.

Q: In its recent policy statement, "The National Security Strategy of the United States of America," the Bush administration announced that it will not allow any other country to challenge America's military superiority. It also stated that the U.S. will use its power to promote "freedom, democracy and free enterprise," which it identified as the world's "single sustainable model for national success." If this war allows us to impose our way of life on troubled countries like Iraq, is that such a bad thing?

Grotius: As to the argument in favor of universal dominion from its being so beneficial to mankind, it may be observed that all its advantages are counterbalanced by still greater disadvantages. For as a ship may be built too large to be conveniently managed, so an empire may be too extensive in population and territory to be directed and governed by one head. But even granting the expediency of universal empire, that expediency cannot give such a right...


Q: OK, I'm relieved to hear you say that. But here's the problem. How do we know when to believe a leader who says he's waging war for another people's freedom, and when he's abusing our credulity to achieve other aims?

Grotius: Pretexts of that kind cannot always be allowed, [as] they may often be used as the cover of ambitious designs. But right does not necessarily lose its nature from being in the hands of wicked men. The sea still continues a channel of lawful intercourse, though sometimes navigated by pirates, and swords are still instruments of defense, though sometimes wielded by robbers or assassins.

Q: Nice metaphor. I suppose that if our leaders have tolerated Saddam's barbarity for the past twenty-five years, we should be skeptical when they cite it as a reason for going to war now. But you make a valid point--even if our leaders are insincere, they may inadvertently succeed in doing some good. At this point, we can only hope so. It will be sorely needed to counterbalance the unintended harm.

I'm still having some trouble figuring out exactly where you stand. You seem to doubt the justifications advanced for this war, but, like many of us, find it a difficult question. Meanwhile, the decisions are left to those who admit no uncertainty. Does it disturb you that international law could not prevent this war, or at least assure us that if waged, it would be a just one?

Grotius: There is no intermediate line between a straight line and a curve. But it is not so in morals, where the least circumstances vary the subject, and admit a latitude of interpretation, settling the points of truth and justice between two extremes. So that between what is right and what is unlawful there is a middle space, where it is easy to incline to the one side, or to the other. This occasions an ambiguity somewhat like the difficulty of deciding the precise moment where the twilight begins, and where it ends...

For where the power of law ceases, there war begins.

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