To Ignore International Law Is To Dismiss It

To Ignore International Law Is To Dismiss It

I’m not surprised that Ben (as one of the new foreign policy pragmatists) says he’s amenable to international law as part of an anti-terror answer (assuming that that a legal fix of any description is necessary — I hope we’ll hear from Deborah Pearlstein with her argument that we don’t need to change international law, either). But it’s too bad that something along the lines of his post isn’t in the book.

Here’s why. This book will actually get read by the policymakers, very few of whom will have the reflex to think of IL strategies on their own. No one’s going to be scratching her head thinking, where’s the missing chapter on put international law to work here? (Okay, no one beyond the readership of this blog.) That reinforces the kind of old-world thinking that has gotten us into so much trouble. We’ll just go ahead and do it our way, on the assumption that the rest of the world will welcome our rediscovered reasonableness. Maybe they will, maybe they won’t — the U.S. shouldn’t leave it to chance the next time around.

So I’m mostly lamenting this as a lost opportunity. Same thing with Jack Goldsmith’s The Terror Presidency: great book that is also getting read, very sober and practical on the separation of powers analysis, but just nothing on the need to bring IL into the picture as a dynamic moving part. To work from Peggy’s excellent line, a domestic law-only approach to global terrorism may be an unreal dream, but that’s not stopping a lot of people from dreaming it.

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Marty Lederman

Yes, but contrast both Justice O’Connor’s opinion in Hamdi and Judge Wilkinson’s recent opinion in al-Marri, both of which lean heavily on the laws of war, not only as a guide to the scope of legislative authorization in the AUMF, but also, in the latter case, as establishing constitutional limits on the detention powers of the political branches (a theme recently pressed by David Golove).  The new IL skeptics might have a foothold in certain academic circles, but thankfully the trend hasn’t filtered down even to the conservative jurists who are the ones identifying limits on the detention power.