An Unintended Casualty of the War on Terror

• Citation: Vol. 27 No. 2
• Publication year: 2010

Georgia State University Law Review‌‌‌‌

Volume 27

Issue 2 Winter 2011 Article 12

1-1-2011

An Unintended Casualty of the War on Terror

Aya Gruber

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Gruber, Aya (2010) "An Unintended Casualty of the War on Terror," Georgia State University Law Review: Vol. 27: Iss. 2, Article 12. Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss2/12

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AN UNINTENDED CASUALTY OF THE WAR ON TERROR

Aya Gruber*

ABSTRACT

As the dust of the Bush administration’s war on terror settles, casualties are starting to appear on the legal battlefield. The United States’ human rights reputation and the Supreme Court’s international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration because in fact it handed down several opinions setting limitations on the administration’s treatment of terror detainees. While these cases, notably Hamdan v. Rumsfeld, set forth domestic law limitations, their conspicuous effort to avoid giving the Geneva Conventions the force of law served to confirm world opinion that the Supreme Court is “out of step.” This Essay demonstrates how the Court’s avoidance of the treaty status issue in Hamdan not only contributed to the perception of American legal exceptionalism but also paved the way for the single most anti-international opinion in Supreme Court history, Medellín v. Texas. In Medellín, the Supreme Court adopted a legal stance that creates near impassable barriers to the domestic enforcement of treaties. Nonetheless, as President Obama ruminates on maintaining military tribunals and courts brace for another round of terrorism cases, the Supreme Court may yet have a chance to

* Professor of Law, University of Colorado Law School. I thank Jorge Esquirol, John Stack, Lakshmann Guruswamy, Tung Yin, and Robert Chesney for their helpful input. This Essay draws upon the seminal treaty jurisprudence scholarship of Jordan Paust, Carlos Manuel Vázquez, Louis Henkin, and David Sloss, and to them I am particularly indebted. All errors, of course, are my own.

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narrow the reach of Medellín, confirm the enforceability of the Geneva Conventions, and restore its international influence.

INTRODUCTION

The United States’ war on terror has produced a lesser-discussed but very important casualty: the international reputation of the Supreme Court. Today, many scholars both within and outside the United States note the dwindling influence of the U.S. Supreme Court, as evidenced by declining worldwide citation. On September 17, 2008, the front page of the New York Times declared, “U.S. Court Is Now Guiding Fewer Nations.”1 The article observes that citations to the Canadian Supreme Court and European Court of Justice are on an upswing, especially in cases involving human rights, while, according to Professor Anne Marie Slaughter, “We are losing one of the greatest bully pulpits we have ever had.”2 The bottom line is that much of today’s world views U.S. Supreme Court opinion as antiquated and out-of-step with modern constructions of global rights and obligations.3 To be sure, several aspects of American legal practice garnered international disfavor even before the September 11 attacks, notably the nation’s continued legal support for the death penalty.4 Subsequently, the war on terror and its concurrent destruction of civil liberties, embrace of torture and indefinite detention, and contempt for international humanitarian law cemented the widespread view of America as the prototypical abuser of human rights rather than guarantor.5 In short, the courts of the world are

1. Adam Liptak, U.S. Court Is Now Guiding Fewer Nations, N.Y. TIMES, Sept. 17, 2008, at A1,

   available at http://www.nytimes.com/2008/09/18/us/18legal.html.

2. Id.

3. See id. (noting that the decline of U.S. Supreme Court influence can be attributed in part to “new and sophisticated” constitutional courts that are more liberal than the U.S. Supreme Court).

4. See John Quigley, “If You Are Not A United States Citizen . . .”: International Requirements in the Arrest of Foreigners, 6 OHIO ST. J. CRIM. L. 661, 666-67 (2009) (noting negative public opinion in Europe towards death penalty and discussing foreign states’ interventions in U.S. death penalty cases on behalf of foreign defendants).

5. David Glazier, A Self-Inflicted Wound: A Half-Dozen Years of Turmoil over the Guantánamo

   Military Commissions, 12 LEWIS & CLARK L. REV. 131, 133 (2008) (observing that because of the United States’ “[r]efusal to apply the Geneva Conventions, indefinite detentions based on flimsy

   
   

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   saying that if the U.S. does not respect international and foreign law, international and foreign courts will not respect the U.S.6

   As President Obama recedes from his initial stance against ad hoc military justice7 and federal courts prepare for another round of military tribunal challenges,8 we should remain poignantly focused on the reputational damage caused by the Bush administration’s “cowboy adventure into totalitarianism,”9 which was permitted to push forward even by “liberal” “obstructionist” Supreme Court decisions.10 As we move into a new era of international relations and (hopefully) respect for human rights, the time is ripe to learn some lessons about what was and what was not decided in the Supreme Court terrorism cases. This Essay highlights how an unfortunate misstep in the seemingly internationalist Hamdan v. Rumsfeld11 decision paved the way for a jurisprudence of hostility toward international law. In this way, progressive Justices actually became complicit in the legal isolationist ideology so prevalent during the Bush era, which led the courts of the world to abandon the Supreme Court.

   
   

   
   

   evidence, detainee abuse, and the questionable invasion of Iraq . . . American stature in world public opinion has declined from sympathetic victim to pariah.”).

6. David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. DAVIS L. REV. 1, 60–61 (2002) [hereinafter Sloss, Non-Self-Executing Treaties] (asserting that the United States’ “cynical” approach to international law is contrary to its national interests).

7. Obama issued a campaign statement asserting, “It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice.” See Obama Speaks on Hamdan Conviction, CHI. TRIB., Aug. 6, 2008, available at http://www.swamppolitics.com/news/politics/blog/2008/08/obama_speaks_on_hamdan_convict.html. He has since retreated from that promise. See also infra notes 191-96.

8. See Peter Finn, Obama Set to Revive Military Commissions, WASH. POST, May 9, 2009, at A1, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/05/08/AR2009050804228. html; see infra note 194.

9. Anthony G. Amsterdam, Remarks at the Investiture of Eric M. Freedman as the Maurice A.

   Deane Distinguished Professor of Constitutional Law, 33 HOFSTRA L. REV. 403, 415 (2004).

10. See infra notes 49-51 and accompanying text (discussing perception of Hamdan v. Rumsfeld, 548 U.S. 557 (2006), as a victory for liberals).

11. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

    
    

    
    

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    1. A GLOBALIST COURT IN AN AGE OF NATIONALISM

       
       

       There can be little dispute that during the Bush administration years, especially those immediately following September 11, internationalism fell out of popular and political favor. Guantánamo, renditions, torture, and the unilateral invasion of Iraq served as stark examples of the United States’ go-it-alone mentality regarding human rights and humanitarian law. This attitude was arguably a continuation of the administration’s pre-September 11 “exceptionalist”12 approach to human rights.13 Foreign jurists and human rights supporters had already been shocked at President Bush’s “unsigning” of the Rome Statute, thereby withdrawing support for the International Criminal Court,14 and the United States’ refusal to participate in international environmental regulation.15 Of course, after September 11, as isolationist sentiment rose, America’s acceptance of international law further decreased.

       Indeed, many Americans, including important legal actors, openly express contempt for international law and legal institutions.16 In this view, international human rights law is a dirty phrase synonymous with loss of American sovereignty and radical liberal ideology.17 Following September 11, isolationist sentiment intensified as society became increasingly averse to international law, foreign values, and

       
       

       
       

12. The term “exceptionalism” is used to describe the view that “as the exceptional nation, America should be a model . . . with a special and unique destiny to lead the rest of the world to freedom and democracy.” Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 YALE L.J. 1564, 1582-83 (2006). Thus, “American exceptionalism has always had two sides: the one eager to set the world to rights, the other ready to turn its back with contempt if its message should be ignored.” MARGARET MACMILLAN, PEACEMAKERS: THE PARIS CONFERENCE OF 1919 AND ITS ATTEMPT TO END WAR...