Judge Bork's remarkable adherence to unremarkable principles of national security law.

AuthorMaggs, Gregory E.
PositionSpecial Issue Commemorating the Life and Works of Judge Robert H. Bork
  1. INTRODUCTION

    The late Judge Robert H. Bork is usually remembered as an eminent jurist and scholar in the fields of antitrust law and constitutional law. His judicial opinions and his writings, especially The Antitrust Paradox (1) and The Tempting of America, (2) are certainly standards in these areas. Judge Bork, however, also deserves acclaim for his contributions to other fields of law. One extremely important subject, in which Judge Bork's judicial work has received little attention, is the law pertaining to national security and U.S. foreign relations.

    This essay discusses Judge Bork's opinions in four important D.C. Circuit cases: Demjanjuk v. Meese, (3) Persinger v. Islamic Republic of Iran, (4) Finzer v. Barry, (5) and Tel-Oren v. Libyan Arab Republic, (6) In these cases, Judge Bork identified and followed nine very traditional principles of law concerning national security and foreign relations. These principles were so clear and well-established that at the time they seemed unremarkable. Indeed, while scrutinizing nearly every other aspect of Judge Bork's records, proponents and opponents of his nomination to the Supreme Court said very little about his opinions in these cases.

    How Judge Bork addressed the law in the area of national security and U.S. foreign relations is a subject that deserves a fresh look in light of important Supreme Court litigation arising out of the War on Terror. In a series of cases, often decided by the narrowest of margins, Justices of the Supreme Court have effectively rejected each of the nine traditional principles that Judge Bork applied in his D.C. Circuit opinions. Contrasting the Supreme Court's controversial decisions in these cases to Judge Bork's very different and more restrained approach reveals another aspect of what was lost when the Senate failed to confirm Judge Bork's nomination to the Supreme Court in 1987.

  2. FOUR CASES AND NINE PRINCIPLES OF NATIONAL SECURITY AND FOREIGN RELATIONS LAW

    In 1986, the U.S. Court of Appeals for the D.C. Circuit decided the case of Demjanjuk v. Meese. (7) In that case, an accused Nazi war criminal filed a habeas petition seeking to block his extradition from the United States to Israel. (8) Demjanjuk claimed that the extradition would violate the International Convention on the Prevention and Punishment of the Crime of Genocide. (9) In his opinion for the court, Judge Bork rejected the petitioner's claim for three reasons. First, the cited Genocide Convention had not yet become binding on the United States. (10) Although the U.S. Senate had approved the treaty, the United States had not yet deposited the formal instrument of ratification, and the treaty by its terms did not become effective until ninety days after ratification. (11) Second, the treaty was not self-executing, and Congress had not enacted any implementing legislation. (12) Third, the treaty addressed extradition only for the crime of genocide, and Demjanjuk was being extradited to stand trial for murder and malicious wounding, not genocide. (13) "Since genocide is not the basis for this extradition," Judge Bork wrote, "the Genocide Convention, even if it were now law, would be irrelevant." (14)

    In this case, Judge Bork recognized and applied three fundamental principles concerning national security and U.S. foreign relations, which might be summarized as follows:

    (1) A treaty does not bind the United States if the United States has not ratified it.

    (2) Even if a treaty is in effect, courts can enforce the treaty's requirements only if the treaty is self-executing or if Congress has implemented the treaty through legislation.

    (3) A treaty must be interpreted according to the ordinary meaning of its terms.

    At the time of the Demjanjuk decisions, these principles were well-established and generally uncontroversial. Principles (1) and (3) came straight from the Restatement (Second) of Foreign Relations Law. (15) Section 139 of that work says: "An international agreement does not, per se, impose an obligation upon a state not a party to it without the consent of that state." (16) Section 147(1)(a) instructs that treaties be interpreted by "the ordinary meaning of the words of the agreement in the context in which they are used" in addition to other factors. (17) The Restatement (Third) of Foreign Relations Law, published the year following the Demjanjuk decision, only slightly rephrases these points. (18) Principle (2) comes directly from the Supreme Court's well-known 1888 decision in Whitney v. Robertson, which held that when treaty "stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect ...." (19) Because Judge Bork followed these principles so clearly in Demjanjuk and because the principles themselves were not particularly remarkable, no one said much about them during the debates regarding Judge Bork's subsequent nomination to the Supreme Court.

    A second illustrative D.C. Circuit decision is Persinger v. Islamic Republic of Iran. (20) Marine Sergeant Gregory Persinger was one of the U.S. embassy guards taken hostage in Tehran in 1979. After his release, he and others sued the government of Iran, seeking damages for their detention and maltreatment. (21) In his opinion for the court, Judge Bork did not allow the case to proceed. However sympathetic and meritorious the plaintiffs' grievances against Iran may have seemed, Judge Bork concluded that the court lacked jurisdiction because a federal statute said: "[A] foreign state shall be immune from the jurisdiction of the courts of the United States." (22) The statute contained an exception for injuries caused within the United States. (23) But Judge Bork concluded that the U.S. embassy in Tehran was not "within the United States," even though the United States asserts jurisdiction over its embassies for some purposes. (24)

    The Persinger decision exemplifies two additional principles of law concerning national security and U.S. foreign RELATIONS, which might be summarized in this way:

    (4) Although Congress may have power to regulate matters occurring outside the United States, federal statutes may specify that Congress has not done so.

    (5) U.S. installations outside of the United States are not within the territory of the United States, even if the United States exercises control over them.

    Each of these principles, like the previous three discussed above, were well-established and uncontroversial at the time of the decision. Citing older precedent, the Supreme Court concisely summarized principle (4) just a short time after the D.C. Circuit's decision in the Persinger case as follows: "Congress has the authority to enforce its laws beyond the territorial boundaries of the United States.... Whether Congress has in fact exercised that authority in [particular] cases is a matter of statutory construction." (25)

    Principle (5) underlay the Supreme Court's decision in cases like Johnson v. Eisentrager which held that an enemy prisoner held by the United States in a U.S. military prison in occupied Germany after World War II was not in the territory of the United States. (26)

    A third D.C. Circuit case in which Judge Bork wrote the court's opinion was Finzer v. Barry. (27) In that case, Father David Finzer and other anticommunist activists wanted to protest in front of the Soviet and Nicaraguan embassies in Washington, D.C. (28) They challenged a D.C. statute that prohibited displaying placards within 500 feet of any embassy if the display would "bring into public odium" the government of any foreign country. (29) The plaintiffs claimed that the statute violated the First Amendment because the prohibition on displaying placards was content-based, viewpoint-discriminatory, vague, and overbroad. (30)

    Judge Bork rejected these arguments. Later, some of what Judge Bork wrote about the First Amendment was reversed by the Supreme Court. (31) But Judge Bork's opinion for the D.C. Circuit is still significant because it applied two fundamental principles for deciding national security and U.S. foreign relations law cases that at least, in the abstract, were not controversial at the time of the case. The plaintiffs' First Amendment challenge to the statute required the court to determine whether the government had a compelling interest for its speech limitations. (32) The government argued that the statute was necessary for national security based on the logic that how the United States protects foreign embassies in Washington influences how foreign countries protect U.S. embassies abroad. (33) In evaluating this argument, Judge Bork observed that Congress had power to define and punish crimes against the law of nations under Article I, Section 8 of the Constitution. (34) He then looked to the Federalist Papers and other historic documents to determine what this power originally was...

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