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.

Tamanaha on "Legal Niceties" and Iraq

My St. John's colleague Brian Tamanaha has an interesting post at Balikinization about the World Tribunal on Iraq and "legal niceties."

First Charges Against Saddam Hussein

The Iraqi Special Tribunal, constituted to try Saddam Hussein and members of his former government, announced Sunday that the first case against Saddam had been referred for trial. The referral is akin to indictment in the US criminal justice system, and will allow the trial to be scheduled. The first case involves Saddam's massacre of over 150 Shiites in Dujyal in 1982. (The largest known massacre by Saddam against Iraqi nationals was the gassing of over 5,000 Kurds at Halabja in 1988; charges in that case are likely to be forthcoming.) The Dujyal case appears to be well-documented, relatively straight-forward, with witnesses who are readily available, all of which make it suitable to be the first case heard against Saddam. A tribunal established with limited jurisdiction and purpose needs to establish credibility in the early cases.

Whatever one's position on the US-led invasion of Iraq, prosecution of Saddam is important. The special tribunal was constituted more or less by an outside power (the CPA, though it technically ceded power to the Iraqi Governing Council for the purpose of official establishment of the court) but has come to include Iraqi judges and be governed by a combination of Iraqi law and international criminal law (for war crimes, crimes against humanity). This makes it different from, say, prosecution by the ICC -- the wisdom of which I continue to doubt. The tribunal has faults, but it can serve an important function in discrediting Saddam apologists and giving voice to the many tens of thousands of victims of Saddam and his brutal regime. But it is equally important that the trial be perceived as independent of both the US and the current Iraqi government, fair, and impartial (or at least as impartial as possible under the circumstances). If it succeeds at that, it can, like many of the successful national prosecutions that have taken place in post-conflict/post-regime societies, play an important role in putting Iraq on a firm path toward the rule of law and democracy.

For those interested in monitoring this case and other investigations, the tribunal has a website, though it doesn't appear to be updated very frequently.

Hamdan: Does Common Art. 3 Apply?

Marty Lederman has posted this excellent analysis of the Hamdan case over at Balkinzation.com. As Julian pointed out in his original post, the DC Circuit's conclusion that the Geneva Conventions do not apply to the current conflict with al Qaeda is vulnerable on appeal to the Supreme Court. Lederman probes deeper into the question of whether Common Art. 3 of the GCs (pertaining to conflicts "not of an international character") should apply to Guantanamo. I happen to agree with Judge William's dissent on this issue: Common Art. 3 was designed to apply to all conflicts that could not be categorized as between two sovereign states. Internal conflicts, insurgencies, and yes, cross-border terrorism and counter-terrorism, seem to all fit within the category of non-international.

As Lederman notes, the DCC opinion may have greater impact than Julian suggests. If Common Art. 3 does not apply at Guantanamo, then there is no treaty-based requirement of humane treatment. So while Hamdan is about the constitution of the military commissions, it has broader implication in the debate over treatment of detainees. Will this be enough to prompt congressional efforts to codify Common Art. 3? Lederman sees this as a distinct possibility. It would certainly shift power away from the executive to a more accountable branch.

I hear, in Lederman's discussion of Senate discomfort with certain administration positions, echoes of the Israel Supreme Court opinion in the Public Committee Against Torture Case (38 ILM 1471, 1999) in which it held that, if the GSS wished to use certain physical means of interrogation (shaking, and certain other methods that "impinge on the suspect's dignity, his bodily integrity and his basic rights"), it could only do so with parliamentary authorization:

This having been said, there are those who argue that Israel’s security
problems are too numerous, and require the authorization of physical
means. Whether it is appropriate for Israel, in light of its security
difficulties, to sanction physical means is an issue that must be decided
by the legislative branch, which represents the people. We do not take
any stand on this matter at this time. It is there that various considerations
must be weighed. The debate must occur there. It is there that the
required legislation may be passed, provided, of course, that the law
“befit[s] the values of the State of Israel, is enacted for a proper purpose,
and [infringes the suspect's liberty] to an extent no greater than required."

What about whether the protections of Common Art. 3 applies as a matter of customary international law? The fact that the Bush Administration changed over 5 decades of US government practice on the applicability of Common Art. 3 -- and its status as customary international law -- appears to be a significant (if not determinative) fact in this case. Indeed, why else would the administration have gone to the trouble of changing the policy if it intended to actually extend the minimal protections of Common Art. 3 to the Guantanamo detainees? If it is the case that the President is always acting constitutionally when he determines whether the US is bound by an international custom, challengers will continue to lose on this question.

The 2005 ICRC restatement of customary humanitarian international law was not cited by the DC Circuit. My own (admittedly, cursory) reading of those volumes suggests that while there is room to debate whether the terms of Comm. Art. 3 are meant only to apply to those conflicts that are geographically non-international (i.e. civil wars), its protections extend -- through practice and through incorporation of other international human rights instruments -- to all detainees.

But even it SCOTUS decides that the GCs and Comm. Art. 3 apply and create justiciable grounds for a habeas challenge, it doesn't result in instant victory for the plaintiff. As the DCC notes, if Comm. Art. 3 applies, the federal courts may still require that detainees exhaust all of their remedies through the military justice system before brining a collateral challenge under the Geneva Conventions. Even the most generous reading of customary international humanitarian law will not get plaintiffs out of the exhaustion requirement.