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U.S. Supreme Court and Foreign Policy

Interviewer: Eben Kaplan
Interviewees: David Golove, Professor of Law, New York University, and Steven C. Welsh, Research Analyst, Center for Defense Information
January 6, 2006

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The U.S. Supreme Court will have two new faces when it next convenes. This shake-up occurs at a time when the Court's decisions could have a substantial impact on issues of foreign policy and national security. Already the court has heard several cases that affect the "war on terror": First in June 2004, the Court ruled in Rasul v. Bush that foreign nationals kept at the Guantanamo Bay detention center were entitled to challenge their captivity in U.S. courts. Then in Hamdi v. Rumsfeld, it held the same was true for U.S. citizens labeled "enemy combatants."

David Golove, professor of law at New York University, and Steven C. Welsh, research analyst at the Center for Defense Information, spoke with cfr.org about the potential international implications of the Court's decisions with its new mix of justices.


What are the major foreign policy and national security related cases the Supreme Court is likely to consider in the near future?

Golove: Two summers ago the Court decided three major "war on terror" cases: the [Shafiq] Rasul case [v. President Bush], the [Yaser Esam] Hamdi case [v. Secretary of Defense Donald Rumsfeld], and the [Jose] Padilla case [on terror-related charges]. There's continuing litigation in connection with all but the Hamdi case; he was released after the Supreme Court rendered its decision. We also currently have in the Supreme Court the [Salim Ahmed] Hamdan case, which involves a war crimes charge before a military commission in Guantanamo. That case will presumably be decided by the Court, though in light of recent legislation there are questions over whether the Court still has jurisdiction or whether it's been stripped of its jurisdiction by Congress. Interestingly, [Chief] Justice [John] Roberts ruled on this case in a lower appeals court and would presumably not sit on it again. The Padilla case continues to be litigated. Government sought to avoid the Court's deciding the case by announcing it was going to transfer Padilla to civil authorities for prosecution in Miami. Whether or not the Court will consider the case moot now is unclear.

Those are not the only cases involving national security and foreign policy the Court is likely to hear. It's conceivable the surveillance case discussed in the press in the last couple of weeks may come before the Court. People who have been convicted in federal court [on] terrorism-related charges are now inquiring whether...the search warrants the government used to collect evidence against them were based upon evidence which had been obtained in potentially illegal searches in connection with the eavesdropping program.

Welsh: It's one thing to look at what the Supreme Court is taking up or might take up; it's another thing to look at what the confirmation hearing gets into, even if those things never turn into actual litigation. The confirmation hearings, even though they're to confirm a nominee for a position, are before a political body that could use the hearing as a template for legal debate and policy debate and even political debate.

One broad issue is executive power. It was brought up during the Roberts confirmation hearings in a lot of different ways, in terms of the ability to go to war or stop a war. Right now we're getting into executive power issues relating to activities the administration deems incidental to national security and defending the nation, such as the warrantless surveillance of international communications. That's one area that is probably going to be explored and in the confirmation hearings, but the extent to which it works its way into litigation is unclear. Some other areas that the court has dealt with obviously involve detainee operations through series of cases that produced what Chairman [Arlen] Specter [R-PA] called "a crazy quilt of opinions"—majority, plurality, dissenting, and concurring, and so on—relating to the treatment of detainees in different circumstances, including Guantanamo Bay.

Another other big area is civil liberties since 9/11. One thing I would question and think needs to be explored more is that there should not be a false dichotomy that develops between law and security. Sometimes there's a suggestion that there needs to be a trade-off, but that's not necessarily the case. Obeying the law does not mean that one is undermining security. For example, in the treatment of detainees being interrogated, it turns out that unlawful behavior also produces bad information, which defeats the purpose of intelligence interrogation.


Are there any recent, close decisions with international implications that might have gone the other way under the newly configured court?

Golove: It's difficult to predict how the new justices—assuming [nominee Judge Samuel] Alito is confirmed—would have voted. In the Rasul case, the decision was six to three. [Former Chief Justice William] Rehnquist was in the dissent and [former Justice Sandra Day] O'Connor was with the majority. So you might say the case would still be five to four even if the two new justices voted with the minority. But that's a little too simple, because the case was really five to one to three—that is to say, there was a separate concurrence by Justice [Anthony] Kennedy that didn't necessarily endorse everything that was said in the majority opinion. So with two new justices—if they were with the dissenting judges—it might have been a four-one-four decision, which might have significant consequences for what the law was interpreted to be.

Justice O'Connor wrote the Hamdi plurality decision, and said the commanding chief power is not a blank check and the president is still bound by the law by the constitution—something the administration rejects. If Judge Alito takes her place, it could be very significant to some of these cases, especially if the court is closely divided on many issues, including those related to the war on terrorism, as I expect it will be.

Welsh: I think one of the reasons the Alito confirmation is drawing more controversy than the Roberts confirmation is people felt Roberts would not necessarily be more conservative than Chief Justice Rehnquist, whereas there's speculation Judge Alito might be more conservative than Justice O'Connor. I think the decisions that have been most significant in a lot of ways that matter are still unfolding. For example, the Department of Defense looked to Justice O'Connor's opinion in Hamdi [to guide its actions], but that wasn't even a majority opinion, that was a plurality. As dramatic as these decisions have been, I don't know there's been a cut-and-dry final result of where things are heading in terms of U.S. policy with all the branches of the government acting together.

Interesting wrinkles that could emerge will be the extent to which the Supreme Court gets into more constitutional issues as opposed to statutory issues. The Supreme Court tries, if it can, to keep things as simple as possible, to avoid the big constitutional confrontation. So in the Rasul v. Bush case, the Supreme Court focused on simply looking at the statute. But the statute's been amended, now. So whether it's in that case or in others, if Congress acts in a way that takes away a statutory basis for the court's decision, then will the Court look to other constitutional issues?


What kind of impact might the Court have on the ongoing debate on balancing civil liberties with security?

Golove: The eavesdropping question is interesting in its own right, but it is also—and maybe more importantly—part of a very radical and very broad movement in the executive branch to exert executive authority of a really unprecedented kind. [The movement is based on] the same legal theory that the administration says justifies the eavesdropping program, notwithstanding the Foreign Intelligence Surveillance Act (FISA) law. There's the FISA law, the torture statute, and the war crimes act, all of which the administration in its various memos has asserted are unconstitutional insofar as they seek to limit the president. Now, the administration took the position that these laws were unconstitutional insofar as they apply to the president, but it did that in secret.

Whether the Supreme Court will weigh in and how it will weigh in is a little hard to predict, but in the Hamdi case, Justice O'Connor's opinion made it very clear that, at least when we're talking about American citizens, the Constitution still applies, and the principle of due process applies.

It is unclear if the court will ever get an opportunity to decide directly on those questions, but it certainly might, in any of these cases, make rulings that suggest more or less directly that it doesn't agree with the president's theory. I think it's very unlikely the court would ever uphold the theory the executive branch has used. It would be remarkable if the court were to enforce any such view. And in fact, in the Hamdi case, eight of the nine judges essentially rejected that view, at least in that context.

Welsh: The interesting thing about the civil liberties debate is the extent to which one is talking about the rights of everybody versus how one handles alleged terrorists. For example, in Boston and New York, suspicionless searches of bags on the subway—which is something that affects everybody—at least has a common understanding. I have no idea whether some of these supposedly suspicionless searches in fact are targeted at people that are under surveillance as suspected terrorist sympathizers. But in terms of the publicly announced policy, it's something affecting everybody. In the context of the warrantless surveillance of international communications, the administration is claiming that it's targeted at people suspected or known to have ties to al-Qaeda. At the same time, there have been media reports for years about the supposed echelon program of NSA [National Security Agency] essentially engaging in something analogous to data-mining of international communications. They're intercepting all sorts of communications from everyone and having technology parse through all of these to try to pick up key words.

So I think that the tenor of the debate is slightly different when it affects everybody than when it just affects suspected terrorists. To the extent constitutional issues are involved, then obviously that is the purview of the courts, and when lower courts have been reviewing issues surrounding suspicionless searches they obviously have been looking to Supreme Court opinions.


How is the court likely to come into contact with the question of international law and its applicability to the United States?

Golove: That's a very important question because the administration has also made broad claims about executive power to carry out foreign affairs without being limited by the judiciary, or to some extent, Congress. Despite the long history going back to the founding of the Court's active engagement in interpreting international law, the administration has taken a narrower and narrower view of the courts, asserting essentially that treaties are a matter for the executive branch to deal with between states and the courts need to defer to the executive branch's interpretations of the treaties of international law. And what's more, that the president has the authority to violate treaties of international law when he so chooses.

There was a case a couple of years ago that overturned a Massachusetts law sanctioning Burma for human rights violations. Then there was a law in California dealing with insurance claims by Holocaust survivors. Both of these laws were struck down by the Supreme Court in those cases. Then there have been a series of cases on the Vienna Convention on Consular Relations—that's a convention that protects American citizens abroad when they're arrested by placing an obligation on foreign countries to notify the U.S. consulate that an American citizen has been arrested and allow the consul to aid in the citizen's defense. Of course, that obligation is reciprocal on the United States, but the United States has been very lax in engaging in the required consular notification. This has led to a great deal of international controversy and a series of decisions by the International Court of Justice [ICJ] saying the United States is in violation of that treaty, and that to remedy the violation of the treaty, the United States is required to provide some kind of judicial remedy to convicted defendants who are not afforded their right of consular notification.

Now the court has before it two new cases that raise very similar questions about the relationship between the international institutions, the judicial institutions like the ICJ, and American courts and American interpretations of treaties. These are tremendously important questions about foreign policy and how it will be conducted, and the role of the Court and the separation of powers in foreign affairs. The Court has typically been evenly divided in these cases, especially on very sensitive issues about the relationship between international law and domestic law. The new justices may have an impact on how those decisions are actually rendered. In a way, Justice O'Connor has been quite receptive to international law and foreign constitutional law in her decisions. Whether a Justice Alito would be similar in his attitudes is highly doubtful.

Welsh: Well, first of all, there are international law issues that are very important to national security that probably would not be within the purview of the court. One that comes to mind is the fact that international law basically requires the Iranian nuclear matter to be referred to the Security Council. That's something that's definitely legal, but I don't see whether that would necessarily be part of a case or controversy coming before the Supreme Court.

There's the question of detainees, in terms of cases already coming through the Court system or might come through the system. The Geneva Conventions [on the treatment of prisoners of war], the Convention against Torture, and other sources of international law have certainly been brought up in argument. One thing to remember, though, is that some international law is part of the U.S. legal system: Treaties to which the United States is party to and the laws of nations are part of the U.S. legal system but they're subordinate to the U.S. Constitution. Other sources of international law, such as decisions by courts in other countries, are what have raised more controversy, I think, in terms of some justices wanting to look at those decisions for their persuasive value, even though they are not legally binding.

I'm interested to see what other kind of litigation might come up because of, for example, the detainee amendment. The McCain amendment [on detainees], barring mistreatment of any U.S. detainee, for example, would cause me to wonder whether there will be lawsuits brought over the alleged secret prisons. There have already been lawsuits brought over rendition.

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