Judicial Review and the War on Terror

by David Sloss

[Opinio Juris welcomes Professor David Sloss as a guest respondent. Professor Sloss is an expert on foreign relations law (among other areas) and he teaches at Saint Louis University School of Law. His recent articles can be found here.]

I want to thank John Bellinger for his recent posts on this blog. He has presented a very thoughtful and articulate legal defense of the government’s policies in the war on terror. Much of his legal analysis is persuasive. Even so, I am not wholly convinced. Rather than focusing on the details of particular legal arguments, though, I’d like to approach these issues from a slightly different perspective.

One reason for skepticism about some of the government’s legal claims is that the government has consistently attempted to insulate its legal arguments from judicial review. Numerous petitioners have brought a variety of claims in U.S. courts, challenging various aspects of the government’s policies on the grounds that those policies are inconsistent with U.S. obligations under international law. The government has consistently tried to prevent the courts from adjudicating the merits of these claims, both by introducing legislation to limit the jurisdiction of federal courts (the Detainee Treatment Act and the Military Commission Act) and by raising various jurisdictional and procedural objections in concrete cases. If the government really believes in the merits of its own legal positions, why is it afraid to subject its policies to legal scrutiny in a judicial forum? Indeed, if the government wants to persuade the rest of the world that the United States is genuinely committed to complying with its international legal obligations, it should welcome the opportunity to submit its policies to judicial scrutiny.

No doubt, some readers will object that it is unrealistic to expect the government willingly to subject its policies to judicial scrutiny. In fact, though, historical materials demonstrate that there was a time when the U.S. government invited judicial scrutiny of its wartime foreign policies. In the period between 1793 and 1796, France was at war with England, Spain and other European powers. The United States adopted a declared policy of neutrality. But the United States had previously entered into treaties with France that obligated the U.S. to adopt a pro-French tilt in certain respects. During this period, numerous private claimants filed claims in U.S. courts that presented tensions between the United States’ treaty commitments to France and its legal obligations as a neutral state. The claims generally centered around the activities of French privateers who had captured British and Spanish merchant ships. In the typical case, a British or Spanish ship owner (or a consular official representing the owner’s interests) would file suit against a French privateer, seeking restitution of a captured vessel, and alleging that the privateer had infringed U.S. neutrality. In response, the French privateer would invoke the 1778 treaty between the U.S. and France as a defense.

These cases from the 1790s are similar to modern war on terror cases in one key respect – in both sets of cases, questions of private rights are intimately bound up with questions of international law and U.S. foreign policy. In the 1790s, the British and French Ambassadors filed repeated diplomatic protests with the Secretary of State related to these cases. The French complained that the U.S. was not honoring its treaty commitments. The British complained that U.S. actions contravened its declared neutrality policy and its obligations as a neutral state. Surprisingly, the executive branch responded to these diplomatic protests by telling the French and British ambassadors that these were judicial questions to be resolved by litigation in U.S. federal courts. In effect, the executive branch willingly delegated to the judicial branch the responsibility for balancing the competing demands of U.S. treaty commitments to France and U.S. neutrality policy.

It is not entirely clear why the executive branch referred foreign ambassadors to U.S. courts, but let me suggest the following explanation. I believe that the Washington Administration wanted to persuade other countries that the United States took its international legal obligations seriously. Administration officials recognized that if the executive branch tried to resolve the disputes between French privateers and British ship owners — which is basically what the French and British Ambassadors asked the government to do — the British would protest if we ruled in favor of the French, and the French would protest if we ruled in favor of the British. By referring both sides to the courts, the executive could plausibly claim that it was simply trying to ensure that the relevant law would be applied in an evenhanded manner by a neutral adjudicator. This approach was quite successful: the Washington Administration was able to persuade both sides in a heated war that the United States was committed to complying with its international legal obligations.

Obviously, the current situation differs in significant respects from the problems confronted by the Washington Administration. Even so, there is an important lesson to be learned here. If the government wants to persuade the rest of the world that the United States is committed to complying with its international legal obligations, it can promote that objective by inviting judicial scrutiny of U.S. policies in the war on terror – at least in cases where those policies are intimately bound up with issues of private rights and international law. In contrast, continued resistance to judicial oversight reinforces the suspicion that the government is not persuaded by its own legal arguments.


6 Responses

  1. I am curious why you have the private rights. What about a U.S. state prosecution of a federal officer for an international law crime? What about the court getting around the fancy doctrines (state secret, contractor, federal officer immunity etc) asserting the international law rule that no state can extract itself from its international obligations through it domestic law so that prosecution for international crimes might be sought. I guess criminal prosecution relates to private rights (rights of the defendant) but I am not sure that you are including that in your calculus. Thus, my question.



  2. David: Because coercive interrogation reportedly is much less effective when the detainees being questioned have some hope that they might actually be protected by the rule of law and due process. See the remarkable Jacoby Declaration in Padilla, especially page 8:

    “Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla. . . . Any potential sign of counsel involvement would disrupt our ability to gather intelligence from Padilla. Providing him access to counsel now would create expectations by Padilla that his ultimate release may be obtained through an adversarial civil litigation process. This would break – probably irreparably – the sense of dependency and trust that the interrogators are attempting to create.”

  3. I think the Executive’s rationale for avoiding Judicial scrutiny is clear, they don’t have the evidence to convict most detainees of any crime. For example, according to Thomas Hemingway, a legal adviser to the Pentagon’s office on commissions, even with the new rules allowing for hearsay evidence and coerced testimony, the Executive can still only bring charges against 80 out of the 400 detainees in Guantanamo. US terror trials to allow hearsay

    What, then, is the rationale for holding the other 320 detainees?

  4. Mark N2: What, then, is the rationale for holding the other 320 detainees?

    I think the answer is the law of war, the existence of an ongoing conflict with al Qaeda, and these detainees being sworn members of the enemy. I’m curious, not knowing all that much about criminal law, is it a crime to be a member of al Qaeda in some foreign country? Can the US criminal justice system reach out to Pakistan and charge one of that country’s citizens with the crime of belonging to an outlawed group if it cannot be proven that person ever actually attacked an American?

    If the criminal justice system cannot reach those indivduals, what is the alternative to holding al Qaeda members without criminal charges until the conflict is over?

    P.S. – this blog is fantastic. I wish I had found it earlier.

  5. Greg,

    You make an interesting statement when you say “…these detainees being sworn members of the enemy”. Unless I am mistaken, if there was evidence to demonstrate that they were our sworn enemy, then that would be enough to bring them to trial. If there are 320 who can’t be brought to trial, then there are 320 for whom we don’t have enough evidence to support the charge of being our enemy.

    Which again brings us back to the question, why are we holding 320 detainees who cannot be reliably shown to be our enemy?

  6. I wonder to what extent those 320 detainees are people offered to us as “Al Qaeda” by our allies without any evidence beyond our allies’ initial representation that they were such.

    As the turmoil of war in Afghanistan and Iraq carries on, it may be difficult or impossible to find their original accuser. So we’re left with someone labeled a terrorist, but without even an affidavit that they were an Al Qaeda member.

    Also, it could include people who could not be charged without alerting the enemy that they have in fact been picked up and compromised by the United States. To what extent we’re using double agents and stand-ins for captured figures is unknown.

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