The Supreme Court’s Mixed Signals on International Law

The U.S. Supreme Court ruled in March 2008 (Medellin v. Texas) that U.S. states were not bound by International Court of Justice judgment on staying the execution of a Mexican national, running counter to Bush administration wishes. In a separate judgment (PDF) (Boumediene v. Bush) in June 2008, the court gave Guantanamo Bay detainees the right to have federal judges review the reason for their detention. That also challenged the White House, this time on its policy of detaining non-enemy combatants. CFR Adjunct Senior Fellow Noah Feldman says the rulings could send confusing signals to the rest of the world about U.S. compliance with international obligations. On the death penalty case, he says, the most important foreign policy consequence is that "legal institutions of the United States including the Supreme Court are very nervous about submitting the United States to the judgment of these international bodies."

You wrote in the New York Times Magazine that the U.S. Supreme Court’s landmark rulings last term on the Medellin death penalty case and the Guantanamo Bay detainee policy were essentially about what sort of constitution we have, either outward facing or inward looking. What does it mean for U.S. foreign policy that the court seems to be divided down the middle on that question?

It means that we’re communicating a kind of schizophrenic vision to those who are watching closely abroad. That’s not unheard of. Sometimes the president will be of one party and Congress of a different party and there are differences in the foreign policy that we’re projecting as a result of that division. But it’s starker in the case of legal materials because the Supreme Court really does have the final say. We don’t exactly know in any given situation what Justice [Anthony] Kennedy, who is the swing vote right now, is planning on doing. Another thing that it communicates to the rest of the world is that this next election is enormously important because, depending on who is elected and which justices they name, we’ll probably have a much more coherent picture in the next five years than we do today.

So taking one of the rulings, the death penalty ruling, it calls into question something like seventy other U.S. treaties of a similar nature. Going forward, does this mean Congress has to weigh in explicitly on these?

Yes, with respect to the series of agreements, many of them bilateral but some of them multilateral. Potentially there are even more than those seventy if one extrapolates. In any case where the treaty is arguably ambiguous with respect to whether it should be treated as law in a U.S. court, it is now fairly clear that it will not be treated as law in the U.S. courts unless Congress weighs in. That means that if you’re another country trying to figure out what we’re going to do, your safest bet is to assume we’re not going to apply that treaty in our own courts unless Congress makes a special determination to that effect.

It’s still a little bit early, but what do you see as potential international fallout if the United States is unable to follow up this ruling by the Supreme Court with some sort of clear-cut action on the treaties it’s already signed?

There are two; there is the specific and the sort of general. The specific is that particular treaty regimes, as you say, are now to some extent called into question. But, the more general is that the United States is just seen as tacking away from zealous attempts to enforce its international commitments. It will be taken by those who pay attention to these things as a signal of distancing ourselves, and also a distancing based on a reason-at least the judiciary in the United States is very suspicious of international tribunals that make legal decisions. That’s probably the most important message, or foreign policy consequence of the decision-that legal institutions of the United States, including the Supreme Court, are very nervous about submitting the United States to the judgment of these international bodies.

This gets kind of messy, I think, if the United States is in this situation in which it is turning its back on international judgments, isn’t it?

Well, there is a cost, I would say. The way I would describe it in foreign policy terms is to say that when a legal institution like the Supreme Court make a decision like this, it imposes a cost on our interactions with other countries. To the extent that countries are looking to see us comply with various international obligations, we’re saying that we’re less inclined to comply under various circumstances. That makes it more costly to enter into deals because the other side will want more assurance that we’re likely to comply. And it has reputational costs as well. But, you know, there are corresponding benefits, too. One has to make a judgment about whether it’s worth it or not. In my view, this is not the right cost-benefit analysis in this case, but there’s a reasonable view that it is worth the cost-benefit balance because an international tribunal can bind the United States in a way that is not responsive to democratic institutions within the United States.

There’s something like fifty more of these international death-row cases, so are we seeing now states maybe stepping to the fore in the absence of Congressional action on this particular issue?

What’s happening in this situation is that it’s the states that sentence these individuals to death and it’s the states that have the primary obligation to follow the international treaty, the Vienna Convention on Consular Relations [VCCR]. The states violated the VCCR and yet, it’s the United States as a country that’s been held to be in violation of the treaty, because it’s the country that’s the signatory to the treaty, not the individual states. So what you’re seeing here is what you might call one of the very great complexities associated with being a federal country ourselves. Our federal government through the president, according to our Supreme Court, now lacks the power to compel states to comply with our international treaty obligations. And that’s an anomalous situation vis-à-vis most other countries in the world because it’s the federal government that’s committed us to this treaty. Now, the majority would respond to that by saying, "Well, if Congress wants to, Congress can pass a law compelling states to comply with the treaty." And it’s a little unclear what the Supreme Court would say even if Congress did do that, but at least in theory that’s the next step. If Congress doesn’t want the states to be violating these international treaties and refusing to take into account what the international tribunals are saying, Congress should do something about it.

Meanwhile, on the Guantanamo Bay-related ruling, what is the next step for the United States?

I think symbolically what’s needed is a relatively rapid dispossession of the cases that [involve] people in Guantanamo. The Supreme Court has said they now have constitutional rights, so those constitutional rights need to be exercised. U.S. federal courts need to get involved in the job, as they are already beginning to do, of reviewing the legitimacy of these detentions, which has lasted in some cases for years. That’s where we’ll find out, when Guantanamo gradually is either emptied and closed, or alternatively, anyone who is detained there is being detained pursuant to evidence that the world can understand justifies their detention as prisoners of war or criminals or as whatever the charge may happen to be. The great difficulty with Guantanamo is it was perceived correctly as being a place where people were not being detained subject to rules. I don’t think the world thinks that you can’t detain suspected terrorists-the world thinks you can do that, but you have to do it pursuant to rules and to clear charges.

The court’s ruling in June gave detainees the right to have federal judges review the reasons for their detention and also gave federal judges the power to release them. Now we have the first major follow-up to that with a federal judge this week ordering (PDF) the release of seventeen ethnic Uighur detainees [who are Chinese citizens], probably into the care of supporters in the United States. Is it correct for a federal judge to override the executive branch’s warnings that these men still pose a danger? Does this veer into violation of immigration laws?

The government concedes that the seventeen Uighurs would not pose a danger to any other country. They’ve been in detention for seven years, despite the fact that there was not sufficient evidence to show they were enemy combatants. At some point, then, they need to be released from detention, and since nowhere else will take them, supervised release into the United States seems like the price we have to pay for having a constitution and the rule of law. As Judge [Ricardo M.] Urbina put it, the principle of the rule of law trumps the separation of powers.

In fact, you have two presidential candidates who don’t want to see Guantanamo open much longer, but there’s this conundrum of where do you put the people, or where do you send the people who are there?

Exactly, nobody wants Guantanamo to remain open. It’s a terrible symbol and at this point there is no constitutional advantage to it being in Guantanamo as opposed to in the United States. So, at a minimum you could bring everyone into the United States and close the Guantanamo facility, but then you still have to deal with the question of what do you do with people. Some of the people there may well in fact be people who were engaged one way or another in terrorist activity, or were aware of terrorist activity, and you’re going to have to do something about detaining them. You know, letting terrorists go, if they’re actually terrorists, is obviously not in anybody’s interest.

Have these rulings complicated efforts by the first post-Bush administration to strike up a new international relationship and burnish the country’s image?

Guantanamo helps because it means that the next administration won’t have to say that they’re shutting it down in rejection of Bush strategy; they can just say they’re following the Supreme Court’s ruling in some way. But, Medellin is difficult. It definitely makes it harder for the next president to demonstrate a kind of international compliance, because after all, in the Medellin case, President Bush actually ordered the states to comply with the judgment of the International Court of Justice, and the Supreme Court held that he lacked the authority to do that on his own. So, it makes it harder for the president.