Judicial Review and the War on Terror

[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.