Research Paper Series Cover Template - SSRN papers

• LEGAL STUDIES RESEARCH P APER SERIES •

Research Paper No. 2006-06

Date: 05-01-2006

Title : Transnational Guidance in Terrorism Cases

Author: Laura E. Little

Published: George Washington Int'l L. Rev. 1 (2006)

This paper can be downloaded without charge from the Social Science Research Network Electronic paper Collection: http://ssrn.com/abstract=859824

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TRANSNATIONAL GUIDANCE IN TERRORISM CASES LAURA E. LITTLE*

I.

INTRODUCTION

Congress is dead wrong this time. And its timing couldn’t have been worse. With terrorism cases flowing into federal courts, the courts face hard decisions balancing civil liberties and effective law enforcement. To confront this challenge effectively, federal courts need—now more than ever—to look for guidance in international and comparative law materials. Indeed, an expanding chorus of scholars and judges urge federal adjudicators to explore transnational materials in making their decisions.1 Although inconsistent throughout its case load, the U.S. Supreme Court is even coming around to the wisdom of this practice.2 But loud voices in Congress have urged precisely the contrary view. Two legislative initiatives from the 109th Congress seek to hog-tie the federal courts as they grapple with difficult issues of civil liberties and the war on terror, dramatically curtailing federal court freedom to consider materials from other countries or international organizations. One initiative would have confined courts of the United States to only one non-American source: “English constitutional and [English] common law up until the time of the adoption of the Constitution of the United States.”3 The other expresses disap* Professor of Law and James E. Beasley Chair in Law, Beasley School of Law, Temple University. J.D. 1985, Beasley School of Law, Temple University; B.A. 1979, University of Pennsylvania. I delivered an early version of this Article to the 2004 Judicial Conference of the U.S. Court of Appeals for the Third Circuit. I am thankful to my international law colleagues, Professors Henry Richardson, Duncan Hollis, and Jeffrey Dunoff, for their encouragement and help with this project. I acknowledge my debt to John Huh and Joe Karlin for their resourceful and cheerful research assistance. 1. See infra notes 5–7, 19–20, and 51–59 for an array of sources on the subject. 2. See Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law, 67 LAW & CONTEMP. PROBS. 169, 169 (2004) (noting that the U.S. Supreme Court cited more international and comparative materials in the 2003-2004 session than ever before). 3. Constitution Restoration Act of 2005, H.R. 1070, 109th Cong. § 201 (as introduced Mar. 3, 2005). The Senate version of the bill, which carries the same title, provides: In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up until the time of the adoption of the Constitution of the United States.

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proval of courts considering “foreign” law unless it informs “an understanding of the original meaning of the Constitution.” While not initiated solely for the purpose of terrorism cases, these prohibitions—and the attitude they reflect—would have a particularly deleterious effect in that context. The initiatives will most likely die the death of other jurisdictional stripping maneuvers before them, performing only the symbolic function of political theater. Yet symbolism can reflect an important political reality and cause harmful influence irrespective of the initiatives’ actual fate in the legislative process. Terrorism is an international problem. Terrorism is a problem shared by other countries. Effective solutions to terrorism have international implications and require international cooperation.4 Considering that civil liberties issues implicate concerns universal Constitution Restoration Act of 2005, S. 520, 109th Cong. § 201 (as introduced Mar. 3, 2005). This bill was originally introduced in the 108th Congress under the name, “The Constitution Restoration Act of 2004.” The 2004 bill was less restrictive than the 2005 bill because the 2004 bill lacked the following modifier at the end: “up until the time of the adoption of the Constitution of the United States.” See H.R. 3799, 108th Cong. (2004); S. 2082, 108th Cong. (2004). The additional phrase in the 2005 bill would presumably prevent courts from considering any non-U.S. sources from dates after the adoption of the U.S. Constitution in 1789. In a similar vein, the unenacted Reaffirmation of American Independence Resolution provides: Resolved, That it is the sense of the House of Representatives that judicial interpretations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States. H. Res. 97, 109th Cong. (2005). Also in the 109th Congress, an identical resolution was introduced in the Senate, S. Res. 92. The House and Senate resolutions derive from one originally introduced in the House of Representatives in 2004. The 2005 version, however, is less restrictive than the 2004 resolution. The 2004 resolution not only constrained interpretations of the U.S. Constitution, but extended to all federal laws. The 2004 resolution provided: Resolved, That it is the sense of the House of Representatives that judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements are incorporated into the legislative history of laws passed by the elected legislative branches of the United States or otherwise inform an understanding of the original meaning of the laws of the United States. H.R. Res. 568, 108th Cong. (2004). 4. See HANS KOECHLER, THE UNITED NATIONS AND INTERNATIONAL TERRORISM: CHALLENGES TO COLLECTIVE SECURITY (2002) (reviewing the doctrine of collective security, the challenges posed by transnational terrorism, and the need for a comprehensive approach toward terrorism); Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility 1, 14, delivered to the Security Council and the General Assembly, U.N. Doc. A/59/565 (Dec. 2, 2004) (concluding that the “mutual vulnerability” and interdependence of weak and strong states in combating terrorism have never been more clear than they are today).


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to all of humanity, I suggest it unremarkable that federal courts stand to gain much from the experience of other countries in battling terrorism.5 One would also think that the proscriptive, prescriptive, and precatory provisions of international law would be an important, if not in some cases mandatory, reference point in negotiating the tension between civil liberties and civil rights. My goal here is not to dignify Congress’s suggestions to the contrary with rigorous constitutional critique. I use the initiatives instead as the impetus for a review of reasons why prudence counsels the courts of the United States to consider transnational material in adjudicating terrorism issues. In this Article, I highlight the practical and methodological reasons for using transnational materials. To the extent analytically appropriate, I steer clear of politically charged arguments such as one that would urge the U.S. government to defer to international organizations in choosing among alternatives in combating terrorism. Similarly, I swerve away from queries about the potential authority (and supremacy) of non-U.S. law in disposing of cases filed in U.S. courts—authority that could be derived from treaties or international law received into U.S. law.6 Unabashedly trying to reduce controversy and mystery in this enterprise, I pursue the modest goal of convincing litigants and courts that transnational materials are useful and appropriate guides to adjudicating terrorism cases. To that end, I focus on four arguments why federal courts should use these materials: (1) the practice serves common sense; (2) the practice reflects methodologically good judging; (3) the practice serves our constitutional structure; and (4) the practice promotes the rule of law and world governance. While a rich literature debates use of transnational material in the United States, this Article takes a new angle by analyzing the practice in 5. See generally MARK SIDEL, MORE SECURE, LESS FREE?: ANTITERRORISM POLICY & CIVIL LIBERTIES AFTER SEPTEMBER 11, at 147 (2004) (observing that balancing civil liberties and counter-terrorist strategy is as important, difficult, and controversial in the United Kingdom as it is in the United States); Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 IND. L.J. 819, 825 (1999) (arguing that “all constitutional courts are engaged in the identification, interpretation, and application of the same set of norms”). 6. Sanford Levinson, Looking Abroad When Interpreting the United States Constitution: Some Reflections, 39 TEX. INT’L L.J. 353, 353 (2004) (distinguishing between following international or foreign norms and simply taking transnational norms into account). For a particularly helpful analysis of the possibility for the United States to embrace international law without compromising its commitment to self government, see Jed Rubenfeld, Unilateralism and Constitutionalism, 79 N.Y.U. L. REV. 1971, 2022 (2004). Rubenfeld is careful to distinguish between international cooperation and international governance. See id.


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light of concerns unique to federal court adjudication and the specific enterprise of deciding terrorism cases.7 II.

COMMON SENSE

Let’s be honest. We do not really know how to handle many issues in terrorism cases. September 11 handed us a challenge the likes of which we had never before seen. Legal reverberations from the event continue to provide a clash of absolutes with often competing goals of combating terrorism and preserving civil liberties.8 An obvious, important, and useful tool for coping is transnational law—specifically, the experience of international law as well as the domestic law of other countries in negotiating the same clash. First, U.S. courts give their decisions greater credibility by seeking guidance from transnational law. The downside risk is minimal, if not absent. To the extent that federal courts decide consistently with the transnational source, they benefit from the added authority of others under different circumstances having come to the same conclusion. To the extent that federal courts consider but reject the position of the transnational source, they show themselves to be careful and thorough in researching and deliberating sensitive issues, thus insulating themselves from the criticism of being reflexively parochial. Where federal courts evaluate domestic law from other countries, they can point to the “field tested” experience of others that has either proven well tooled or, alternatively, has shown itself to be unworkable. Where federal courts make decisions in accord with international sources, they may benefit from the universality of the norm that guides them.9 To the extent that they reject the 7. For articles and books discussing the issue on a general level, see, e.g., INTERNALAW DECISIONS IN NATIONAL COURTS (Thomas M. Franck & Gregory H. Fox eds., 1995) (13 papers discussing the use of comparative and international law in domestic courts as well as international tribunals); Harold Hongju Koh, International Law as Part of our Law, 98 AM. J. INT’L L. 43, 48 (2004) (celebrating the ways in which international law contributes to and is part of U.S. law); Patricia M. Wald, The Use of International Law in the American Adjudicative Process, 27 HARV. J.L. & PUB. POL’Y 431 (2004) (enunciating guidelines for using laws from other countries. 8. Through nimble legal reasoning, one can argue that humanity may get closer to achieving the long term goal of preserving civil liberties by combating terrorism. My arguments in this essay support, not undermine, that line of thought. 9. In some cases, the courts may even make a jus cogens argument, enhancing the authority of their decision by reference to the peremptory quality of the norm followed. See MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 36, 62–63 (3d ed. 1999) (defining jus cogens as a peremptory norm that is so fundamental as to invalidate other TIONAL


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international norm, they have shown themselves forthright in their consideration of relevant materials. The process of looking elsewhere in and of itself will enhance the authenticity of the enterprise. Conformity is not, of course, decisionmaking’s ultimate value. Federal courts are designed to resist the temptations of outside influence.10 Thriving in this structure, the federal judiciary has distinguished itself for over two hundred years by showing courage to break from the rest of world and develop its own unique and proudly civilized jurisprudence. That is not to say, however, that terrorism provides a context in which to indulge that frontier spirit and entrepreneurial instinct to its fullest. To the contrary, game theory11 and other “disciplines”12 establish that humans have many rules and “from which no derogation is permitted”) (quoting the Vienna Convention on the Law of Treaties, art. 53, Nov. 8, 1972, 23 U.S.T. 3227, 8 I.L.M. 679). 10. As Justice Brennan has explained, the Constitution’s Article III guarantees are designed to implement the Anglo-American tradition of an independent judiciary, which envisions independence from many sources, including other governmental branches, other judicial colleagues, and improper influence. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59–60 & n.10 (1982) (Brennan, J.). 11. Take for example the archetypical case of the prisoner’s dilemma, in which the highest collective payoff occurs when both players in a game choose to cooperate. Often, however, individual payoffs are structured so that each individual is better off defecting if the other cooperates. Accordingly, where each is ignorant of the other’s independent choice, each is expected to defect rather than to cooperate with the other. Where relevant, U.S. courts may be able to avoid this dilemma because the international practice or the practice of the other country is already known when the U.S. court is deliberating. Under these circumstances, following transnational precedent may allow U.S. courts to avoid the prisoner’s dilemma because the other nation or institution has acted first to extend or to withdraw a particular civil liberty or to dispose of the terrorism issue in a particular way. For a clear explanation of the prisoner’s dilemma game, see Note, Parties, PACS, and Campaign Finance: Preserving First Amendment Parity, 110 HARV. L. REV. 1573, 1578 (1997). 12. See, e.g., JONATHAN KLICK & FRANCESCO PARISI, SOCIAL NETWORKS, SELF DENIAL, AND MEDIAN PREFERENCES: CONFORMITY AS AN EVOLUTIONARY STRATEGY 10–11 (2005) (noting that political economists observe that voters who conform reduce “the risk of being part of an outvoted minority that gets exploited by the winning majority in an economic system”), available at http://ssrn.com/abstract_id=589325 (last visited Sept. 9, 2005). The preference for conformity in legal decision-making is also consistent with economic models showing that individuals act rationally in paying heed to others’ actions because the decisions of others may reflect information the individual lacks. See, e.g., Abjhijit V. Banerjee, A Simple Model of Herd Behavior, 107 Q. J. ECON. 797, 798 (1992) (outlining a theory of herd behavior based on the assumption of others’ information). Risk reduction comes in part from increasing the esteem one receives from others. Many have tied conformity with increase in social status and esteem. As Murasaki Shikibu, author of The Tale of Genji, stated in her diary: “Someone who makes such an effort to be different from others is bound to fall in people’s esteem, and I can only think that her future will be a hard one.” RUTH L. OZEKI, MY YEAR OF MEATS 14 (1998) (quoting Shikibu); see also B. Douglas Bernheim, A Theory of Conformity, 102 J. POL. ECON. 841, 842 (1994) (observing that a “large body of sociological, psychological, and anthropological research


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rational reasons for seeking others’ views, including a desire to reduce risk through conformity. Terrorism is a context in which the knowledge of others’ views as well as the risk of hostile reaction to one’s own views are keenly relevant. When in hostile territory, consensus—not provocative individualism—provides the most prudent guide. Careful consideration of others’ laws—rather than recalcitrance or reflexive individualism—is a rational adaptation to the social and global realities of transnational terrorism.13 This consideration of others is, of course, neither a mandate nor a principle of blind conformity.14 I do not suggest federal courts should abandon their independence, transforming their consideration of the laws of other countries or international laws into the extreme of actually following transnational law in every case where it is applicable. Whether dressed in social science garb or expressed in plain talk, the bottom line is that two heads are often better than one. Much is to be gained by seeking the guidance of others. As explored below, even the process of considering another’s position and thoughtfully declining to follow that position helps to clarify issues and inform the ultimate decision. Where others come from a different background and point of view, the advantages of listening to their perspectives are even greater. Where the circumstances are hostile, the counsel of others is particularly precious. III.

GOOD JUDGING METHODOLOGY

Critics suggest that transnational materials prompt federal courts to fall prey to sloppy research and undisciplined reasoning.15 I disagree. Transnational materials not only allow courts to be more thorough in their approach, but also promote good judging methsupports the view that” a desire for “prestige, esteem, popularity, or acceptance” tends “to produce conformism”). 13. See KLICK & PARISI, supra note 12, at 13–14 (arguing that humans conform as an adaptive response in order “to maximize their chances of success and payoffs from social interactions” and to reduce “utility loss” and negative social reactions). 14. See Matthew 15:14 (King James) (“Let them alone: they be blind leaders of the blind. And if the blind lead the blind, both shall fall into the ditch.”). 15. See, e.g., Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 AM. J. INT’L L. 57, 64–65 (2004) (criticizing federal court use of transnational sources as haphazard and selective); Antonin Scalia & Stephen Breyer, Discussion on the Constitutional Relevance of Foreign Court Decisions 5 (Jan. 13, 2005) (Justice Scalia criticizing selective and incomplete use of transnational materials), at http://domino.american.edu/ AU/media/mediarel.nsf/41cc7d6ab41c6e4685256869007a3b8f/1f2f7dc4757fd01e85256f 890068e6e0?OpenDocument (last visited Oct. 3, 2005).


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odology. For terrorism cases, the materials are particularly likely to encourage depth and understanding of broader context. Finally, international and comparative law are well developed fields for which ample guidance on expert decisionmaking is available. A.

A Tool for Thorough and Disciplined Research and Analysis

The hallmark of a federal court’s job is Article III’s case or controversy requirement. That requirement and the justiciablity doctrines that derive therefrom impose on federal courts the discipline of practicing their craft within the context of specific disputes. Rather than ruling in the abstract, federal courts render each decision on a fixed set of facts. Providing the court with a medium on which to project the consequences of a ruling, the “real life” facts are important vehicles for the court to evaluate and to measure alternatives. Comparative and international materials offer federal courts a similar tool to ensure effective decisionmaking. Indeed, these materials are even more useful because they actually provide a dry run of possible outcomes of a particular resolution. As Justice Breyer has explained, experience of other courts may “cast an empirical light on the consequences of different solutions to a common legal problem.”16 Empirical data can lead in a number of useful directions. First, there is always the possibility that the materials might reflect a workable creative solution. Where that is not the case, the materials allow the United States to learn from the mistakes of others without bearing the consequences of an ill-fated resolution or bad judgment about conflicting concerns and values. Alternatively, rather than providing a roadmap, the materials can act as a foil for decisionmaking and analysis. Justice Stevens, for example, has used constitutional comparison negatively to describe search and seizure rules as “bulwark[s] against police practices that prevail in totalitarian regimes.”17 Thus, as these observations clarify, transnational materials may simply inform (not control) the contemplative process. They need not make their way into the ultimate decision, but through a process of indirect incorporation influence and improve the final product.18

16. Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., dissenting). 17. California v. Acevedo, 500 U.S. 565, 586 (1991) (Stevens, J., dissenting). 18. I thank my colleague Henry Richardson for this observation.


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Some criticize use of transnational materials as a mere exercise in window dressing,19 which they view as incomplete in its analysis and dangerous in its propensity to lure the judge into unfamiliar territory.20 Yet the possibility of an occasional shoddy decision is hardly unique to areas where transnational materials are relevant and, in any event, is no reason to disqualify all federal judges from consulting and citing the materials. This criticism also ignores that judges apply unfamiliar law all the time, whether in the conflict of laws setting or simply in an unexplored area of substantive law.21 Federal judges have proven themselves up to the task of tackling unfamiliar territory in a multitude of contexts at least as complicated as transnational law, including highly technical areas of hard science and economics. Their relative success with these challenges does not minimize the benefits from training and guidance on likely pitfalls of international and comparative law research and reasoning. As discussed below,22 many resources in case law, treaties, and scholarship stand ready to guide the courts in the proper direction. Moreover, terrorism and civil liberties disputes cases may not always present courts with analytically challenging issues, but nonetheless call for voluminous review, such as an inquiry into the status of human rights under customary international law. While these inquiries may present federal courts with a workload challenge, little reason exists why judges cannot request counsel to sift and to summarize the appropriate customary law materials.23 Even more significantly, when competently performed, the process of exploring new law has important positive effects. Take the analogous process of making a domestic choice of law decision, 19. See Levinson, supra note 6, at 363 (describing Justice Kennedy’s recent citation to international materials as a “trill in a cadenza”). 20. See, e.g., Alford, supra note 15, at 64–65 (criticizing federal court use of transnational sources as haphazard and selective); Scalia & Breyer, supra note 15, at 5 (Justice Scalia criticizing selective and incomplete use of transnational materials). 21. Justice Breyer has observed: “How do we know we can keep this under control? How do we know we cite both side (sic)? How do we know we looked for everything? Well, I’d say that kind of a problem arises with any sort of citation. A judge can do what he’s supposed to do, or not.” Scalia & Breyer, supra note 15, at 7. 22. See supra notes 45–64 and accompanying text for a discussion of canons of international interpretation, guidelines for comparative constitutional analysis, and similar aids. 23. See A. Mark Weisburd, American Judges and International Law, 36 VAND. J. TRANSNAT’L L. 1475, 1529 (2003) (in ascertaining customary international law, “so much material may be available that sorting through it may be difficult,” but possible with the aid of counsel). Professor Weisburd warns, however, that in ascertaining customary international law, judges should steer clear of questionable materials such as restatements, scholarly materials not based on actual state practice, and—under some circumstances—other opinions of U.S. courts. See id. at 1504–20.

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which calls for a judge to evaluate nonforum laws and to weigh competing claims as to which sovereign will provide the governing law. Even if the judge decides to apply forum law, the choice-of-law process legitimizes that decision and allows for deeper understanding of forum law than previously existed. Indeed, everyone—the judge, the lawyers, the litigants, and sometimes even the public— gains greater understanding of the strengths, goals, and scope of forum legal principles. The related complaint that judges cherry pick sources to support their positions is also not unique to transnational law. Opinions from a broad range of subject matters read like briefs (rather than deliberative documents) and reflect one-sided reasoning fueled by ulterior motives.24 To be sure, society should encourage judges to strive for candor and balanced discussion of opposing claims, but their occasional failure to do so should not disqualify an entire range of enormously helpful and relevant materials. B.

The Example of Terrorism and Civil Liberties

Arguments advocating the use of transnational materials have special force in the context of terrorism and civil liberties cases coming before federal courts. Because terrorism is an international problem, the context provided by international and comparative materials is particularly useful in gauging a decision’s ramifications. Because terrorism and civil liberties also involve sensitive issues, the “dry run” provided by the transnational materials may be particularly valuable. The materials further help to flesh out a decision, giving it greater credibility with the litigants, the nation, and the international audience. Again, each of these points is true whether or not the transnational materials actually make a difference in the ultimate outcome. Experience from the recent trilogy of U.S. Supreme Court terrorism cases from the 2003-2004 term is illustrative. All three— 24. For discussion of this problem in other contexts, see, e.g., Laura E. Little, Hiding with Words: Obfuscation, Avoidance, and Federal Jurisdiction Opinions, 46 UCLA L. REV. 75, 82–87 (1998) (exploring reasons why opinions do not tend to present full explication of competing arguments and sources); Laura E. Little, An Excursion into the Uncharted Waters of the Seventeenth Amendment, 64 TEMP. L. REV. 629, 657 (1991) (arguing that in uncharted areas “full development of the rival forces in the case is needed to fuel the opinion’s potential as precedent”). For a less judgmental analysis of this phenomenon, see CASS SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 39–40 (1996) (explaining that judges resolve cases by establishing “incompletely theorized agreements,” relying on specific legal rules and avoiding “high-level principles in order to navigate the challenges of pluralism”).


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Hamdi v. Rumsfeld,25 Rumsfeld v. Padilla,26 and Rasul v. Bush 27— provided ample opportunity for discussing transnational law since each concerned the status of individuals detained in the war on terror. Recognizing that the cases raised issues relating to national security and the treatment of individuals who might be classified as prisoners of war, the parties and amici brought extensive transnational materials to the Court’s attention.28 Ultimately, however, the materials had little if any influence on the cases and appeared in the opinions only in passing.29 Because the Court resolved Padilla and Rasul on procedural grounds pertaining to the reach of U.S. habeas corpus jurisdiction, the relative absence of transnational materials from the opinions is not particularly shocking.30 Hamdi, however, is another matter. Hamdi presented the question of what process the U.S. government must provide to an individual seized on foreign soil during the course of hostilities and detained indefinitely as an “enemy com25. Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). 26. Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004). 27. Rasul v. Bush, 124 S. Ct. 2686 (2004). 28. See Brief for the Petitioner at 29, Padilla, 124 S. Ct. 2711 (No. 03-1027) (citing International Committee of the Red Cross commentary on the Geneva Convention Relative to the Treatment of Prisoners of War); Brief for the Respondents at 23 n.8, Hamdi, 124 S. Ct. 2633 (No. 03-6696) (citing an International Committee of the Red Cross commentary on the Geneva Convention Relative to the Treatment of Prisoners of War); Brief for Petitioners at 17, 38 n.15, Hamdi, 124 S. Ct. 2633 (No. 03-6696) (citing the Geneva Convention Relative to the Treatment of Prisoners of War, as well as “internationally accepted norms related to the waging of armed conflict”); Brief for Law Professors et al. as Amicus Curiae Supporting Respondents at 4 & n.5, 10 & n.15, Rasul, 124 S. Ct. 2686 (Nos. 3-334, 03-343) (citing positions of international organizations); Petitioners’ Brief on the Merits at 23–29, Rasul, 124 S. Ct. 2686 (No. 03-334) (relying extensively on international materials in arguing that denying judicial review for detainees would be contrary to the law of civilized nations). 29. See, e.g., Hamdi, 124 S. Ct. at 2641 (citing various international conventions as well as law review articles from international journals for the proposition that detention may last no longer than active hostilities); Rasul, 124 S. Ct. at 2696–97 (plurality opinion) (analyzing English habeas corpus cases from the 1600s, 1700s, and 1800s); id. at 2709–10 (Scalia, J., dissenting) (analyzing English habeas corpus law). Counting the opinions in all three cases, one commentator found twenty-seven opportunities for employing the indisputably relevant Geneva Convention Relative to the Treatment of Prisoners of War. JOHN K. SETEAR, A FOREST WITH NO TREES: THE SUPREME COURT AND INTERNATIONAL LAW IN THE 2003-2004 TERM, 28–29 (2004) (observing that the government cited the war on terror as its reason for imprisoning the petitioner in all three cases), available at http://ssrn.com/abstract=600043 (last visited Sept. 9, 2005). Only two times, however, did members of the Court do so “in a manner important to the outcome of their opinion, while four others bolstered their fundamentally constitutional argument with references to the Convention.” Id. at 29. 30. Padilla, 124 S. Ct. at 2727 (holding that Padilla did not file his claim in the correct jurisdiction); Rasul, 124 S. Ct. at 2698 (holding that federal courts have jurisdiction to hear habeas claims filed by detainees at Guantanamo Bay).


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batant.”31 Commentators have observed the Supreme Court’s remarkable failure to engage the question whether the Geneva Convention governed the actual disposition of the case.32 The Hamdi decision’s cogency would have benefitted from greater consideration of other international materials as well. For example, in confronting the government’s argument that extraordinary circumstances of national security justified Hamdi’s detention without the benefit of any hearing, the plurality turned to what it called “the ordinary mechanism” for handling requests for fair procedures: the balancing test developed in Mathews v. Eldridge.33 The Supreme Court developed Mathews v. Eldridge balancing for evaluating the administration of disability benefits and has applied the approach in a series of routine domestic matters over the last 30 years.34 One wonders whether this balancing test— with its time-worn cost-benefit analysis—reflects the sensitivity and analytical depth that Hamdi demanded. Indeed, with all due respect to the plurality’s inclination to resort to “ordinary” mechanisms, Hamdi was not an “ordinary” case. One might find comfort in the plurality’s willingness to extend Hamdi the same due process approach it extends to its own citizens who are removed from terrorist activities. But the cold calculus of Mathews v. Eldridge balancing rings hollow in evaluating the proper procedures for incarcerating individuals whom the United States has essentially branded as criminals perpetuating an international crisis.

31. Hamdi, 124 S. Ct. at 2635 (plurality opinion). 32. See, e.g., Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 CORNELL L. REV. 97, 101 (2004) (observing that Hamdi left many questions unanswered, including the role of the Geneva Conventions in the war on terror); see also SETEAR, supra note 29, at 5 (commenting that the Geneva Convention was important to the facts of Hamdi, but was treated in the Court’s resolution of the case “as truth in advertising was to P.T. Barnum”). 33. Hamdi, 124 S. Ct. at 2646–50 (plurality opinion) (citing Matthews v. Eldridge, 424 U.S. 319 (1976). 34. See City of Los Angeles v. David, 538 U.S. 715, 717–19 (2003) (applying balancing test to determine whether a city’s delay in holding a payment-recovery hearing for impoundment and towing fees violates a car owner’s due process); Gilbert v. Homar, 520 U.S. 924, 931–33 (1997) (applying balancing test to determine whether it is permissible for a university to suspend an employee without pay before providing a hearing); United States v. James Daniel Good Real Prop., 510 U.S. 43, 53–55 (1993) (applying a balancing test to determine whether a government seizure of real property for civil forfeiture without prior notice violates due process); Washington v. Harper, 494 U.S. 210, 229–30 (1990) (applying balancing test to determine whether a state policy of allowing prison authorities to administer antipsychotic drugs to inmates against their will violates due process).

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The plurality would likely have reached the same ultimate conclusion had it used pertinent international law in its decision.35 Take for example the International Covenant on Civil and Political Rights (ICCPR),36 which contains indisputably relevant procedural standards relating to arrest and detention.37 The symbolic impor35. Particularly comprehensive briefing on the issue appeared in the briefs of amici by the American Bar Association and Selected International Law Professors. See Brief for the American Bar Association as Amicus Curiae Supporting Petitioners, Hamdi, 124 S. Ct. 2633 (No. 03-6696); Brief of International Law Professors as Amicus Curiae Supporting Petitioners, Hamdi, 124 S. Ct. 2633 (No. 03-6696). 36. International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. 37. For materials suggesting that Article 9 of the ICCPR would have provided the same result as Mathews v. Eldridge balancing, see, e.g., SCOTT N. CARLSON & GREGORY GISVOLD, PRACTICAL GUIDE TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 81–84 (2003) (explaining scope of Article 9’s guarantee against “arbitrary arrest and detention” and deprivation of “liberty except on such grounds and in accordance with such procedures as are established by law”); SARAH JOSEPH ET AL., THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 307–21 (2d ed. 2004) (reviewing case law on Article 9’s guarantees). The Supreme Court has now declared its view that the ICCPR is not self-executing. See, e.g., Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2765–67 (2004) (observing that the Senate declared that the Covenant was not self-executing). As the State Department has made clear, however, even for treaty provisions that are not self-executing, courts may consider the obligations thereunder and may find guidance from the provisions’ principles and objectives. See Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, United States Comm. Against Torture, ¶ 57, U.N. Doc. CAT/C/28/Add. 5 (Oct. 15, 1999) (citing Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1994)). Moreover, legislative history for the ICCPR provides that any declaration of non-executing nature does not “limit the international obligations of the United States under the Covenant.” Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, United States Human Rights Comm., ¶ 4, U.N. Doc. CCPR/C/81/Add. 4 (Aug. 24, 1994). Rather, the “fundamental rights and freedoms protected by the Covenant are already guaranteed as a matter of U.S. law, either by virtue of constitutional protections or enacted statutes, and can be effectively asserted and enforced by individuals in the judicial system on those bases.” Id. ¶ 8. In other words, the Supreme Court’s decision that the ICCPR does not create obligations enforceable as a federal cause of action does not undermine the treaty’s moral force and status as an important benchmark against which to measure claims of unlawful governmental conduct. See Sosa, 124 S. Ct. at 2767 & n.23 (holding that the treaty does not create federal court causes of action, but recognizing the ICCPR’s moral force). Moreover, from the perspective of the more cautious Supreme Court justices, the negative determination on self-execution renders the ICCPR a safe source of guidance on international norms because the Court may distance its reliance on the treaty from any suggestion that it was committing the United States to an inflexible foreign policy position. Cf. id. at 2767. Of course, the ICCPR is not the only part of international law pertinent to the procedural protections at issue in Hamdi. The right to be free from arbitrary detention is well grounded in customary international law. See, e.g., Najarro de Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1397 (5th Cir. 1985) (identifying the right to be free from arbitrary detention as part of the law of nations); Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1388 (10th Cir. 1981) (stating that “[n]o principle of international law is more fundamental than the concept that human beings should be free from arbitrary imprison-


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tance of citing the ICCPR is obvious when viewed in light of the motivations for ratifying it: the Senate believed our country should ratify the ICCPR in order to fulfill its obligation to lead by example.38 More pragmatically, citation to the ICCPR may have focused government policymakers on relevant examples. After citing broad platitudes from Mathews v. Eldridge, the Hamdi plurality fabricated a few random procedural details for detainees: burden shifting and waiver of the hearsay rule of evidence.39 Guidance from international instruments such as the ICCPR and interpreting cases may have helped avoid the many reported uncertainties following Hamdi.40 Indeed, controversy continues to rage regarding approment”). This concept appears in many international instruments protecting against arbitrary arrest and detention. See, e.g., Organization of American States, American Convention on Human Rights, art. 7, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123; Universal Declaration of Human Rights, art. 9, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948). But cf. Sosa, 124 S. Ct. 2739, 2767–68 (narrowly interpreting the rights against arbitrary arrest and detention under existing international law principles). 38. The Senate Committee Report states: In view of the leading role that the United States plays in the international struggle for human rights, the absence of U.S. ratification of the Covenant is conspicuous and, in the view of many, hypocritical. The Committee believes that ratification will remove doubts about the seriousness of the U.S. commitment to human rights and strengthen the impact of U.S. efforts in the human rights field. S. EXEC. REP. NO. 102-23, pt. IV, at 3 (1992). 39. See Hamdi, 124 S. Ct. at 2649 (concluding that “the exigencies of the circumstances” may demand that hearsay evidence “be accepted as the most reliable available evidence from the Government” and that the evidentiary burdens require that “once the Government puts forth credible evidence that the habeus petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut the evidence with more persuasive evidence that he falls outside the criteria”). 40. Following the decision, the print media reported that the various parts of the administration encountered difficulty in developing appropriate procedures. See, e.g., Tim Golden, Administration Officials Split Over Stalled Military Tribunals, N.Y. TIMES, Oct. 25, 2004, at A1 (reporting that “senior officials have begun to acknowledge privately that the fate of both Guantanamo and the military commissions is uncertain”); Editorial, Making Law at Guantanamo, WASH. POST, Aug. 23, 2004, at A14 (criticizing the administration for failing to meet its responsibility “to create a meaningful and transparent review process”); Christopher Marquis, Pentagon Will Permit Captives at Cuba Base to Appeal Status, N.Y. TIMES, July 8, 2004, at A14 (reporting that the Defense Department’s “new procedure was hastily devised to head off a possible flood of litigation after a Supreme Court ruling last week requiring that the prisoners be allowed to challenge their legal status before a neutral party”); Alec Russell, Tribunals will Rule on Captives in Guantanamo, DAILY TELEGRAPH (London), July 9, 2004, at 16 (stating that the “Pentagon is to hold emergency hearings to review the status of the Guantanamo Bay detainees in response to last week’s [S]upreme [C]ourt ruling”); Editorial, The Tribunals Begin, WASH. POST, Aug. 29, 2004, at B6 (reporting that defense lawyers in military tribunals “are seriously understaffed,” that the “commission’s structure and composition are troubling,” and that the Defense Department’s “procedures still lack a provision for appeals to the federal courts”).


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priate treatment of detainees.41 An unequivocal cue from the Supreme Court about the importance of international and comparative standards would have sent an important human rights message and may have averted controversy and embarrassment resulting from executive policies.42 The House of Lords’ detailed, clear, and sophisticated review of international materials in a parallel British dispute about detainees certainly supports this conclusion.43 Hamdi, Padilla, and Rasul highlight a difficult challenge for judges adjudicating terrorism cases. In each case, the United States asserted that it imprisoned the petitioner as part of the global war on terror.44 This strategy suggests that any significant judicial review—much less a potent judicial remedy—improperly invades executive discretion and dangerously penetrates the shield of national security. The guidance of transnational materials, including their concrete illustrations, provides a reference point for courts evaluating how seriously to take the national security claim. As explored again in Part IV below, courts may respond to these claims in a variety of ways, such as concluding they lack foundation, using procedures designed to protect the confidentiality of information, or invoking the political question doctrine to justify dismissing the case. 41. See, e.g., Editorial, Emptying Guantanamo, WASH. POST, Aug. 6, 2005, at A18 (discussing the political problems faced by the administration in repatriating detainees held at the Guantanamo Bay Naval Base for incarceration in their home countries); see also Abdah v. Bush, No. 04-1254, 2005 U.S. Dist. LEXIS 17189, at *5 (D.D.C. June 10, 2005) (granting a motion for a preservation order requiring federal agencies to preserve evidence regarding torture and abuse of detainees at the Guantanamo Bay Naval Base); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 481 (D.D.C. 2005) (holding that detainees stated valid Fifth Amendment process claims and that the Combatant Status Review Tribunal procedures to determine who is an “enemy combatant” violate due process). 42. See, e.g., Anne Gearan, Bush Administration Tries New Legal Angles on Detainees, DETROIT NEWS, Aug. 21, 2004 (reporting that the Supreme Court will likely need to weigh in again on proper treatment of terrorism detainees), available at http://www.detnews. com/2004/nation/0408/21/nation-248875.htm; Douglas Jehl et al., C.I.A. is Seen as Seeking New Role on Detainees, N.Y. TIMES, Feb. 16, 2005, at A16 (reporting that the C.I.A. leadership is expressing doubts about the legality of detention and interrogation practices for terror suspects). But cf. Editorial, The Tribunals Begin, supra note 40 (“For all the criticism the commissions have taken from human rights groups and others, they did not appear to be kangaroo courts in which the results are preordained.”). 43. See A & Others v. Secretary of State of the Home Dep’t, [2004] UKHL 56, [2005] 2 W.L.R. 87 (ruling that indefinite detention of foreigners was unjustifiable and discriminatory). 44. Hamdi, 124 S. Ct. at 2635–36; Padilla, 124 S. Ct. at 2715–16, Rasul, 124 S. Ct. at 2690. See also SETEAR, supra note 29, at 28 (observing that the government cited the war on terror as its reason for imprisoning the petitioner in all three cases).

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Guides for International and Comparative Decisionmaking

In the next Part, I show how federal courts act consistently with their governmental role and reinforce our constitutional separation of powers system by considering transnational materials in terrorism cases. Here I address the more prosaic question whether methodologies exist that allow the courts to use these materials competently. For the purpose of this discussion, I distinguish between international instruments (such as treaties, agreements, covenants, and customary international law) and comparative law materials from countries other than the United States. While each category may present occasional challenges to adjudicators, case law and scholarly materials provide useful road maps. Fine-tuned methodologies exist to enable federal courts to realize the promise of transnational materials. 1.

International Law

Supreme Court case law lays out explicit rules for courts confronting disputes governed by international instruments such as treaties, agreements, or covenants. As a general principle, the Court has declared, the terms of treaties and other compacts “will bind our courts” when the United States is a party to the compact.45 Moreover, for two centuries the Supreme Court has affirmed that domestic U.S. law recognizes the law of nations, which the Court views as part of U.S. law itself.46 The Supreme Court has likewise laid a groundwork for construing international compacts in light of statutory enactments.47 The adjudicatory rules are fuzzier for customary international law. Nevertheless, the Supreme Court has declared that actual practice, as reflected in scholarly works and elsewhere, is the guiding principle for ascertaining customary international law.48 Consistent with this approach, the Court has also explained that 45. See Wald, supra note 7, at 431. 46. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (noting that “it is, of course, true that U.S. courts apply international law as a part of our own in appropriate circumstances”); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (holding that “international law is part of our law, and must be ascertained and administered by the court of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”). 47. See, e.g., Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (instructing that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains”). 48. See The Paquete Habana, 175 U.S. 677, 700 (1900) (inviting resort to “the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat”). See generally


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international tribunals offer trustworthy evidence of international law.49 In recent years, the Supreme Court and scholarly commentators have offered more specific guidance by identifying areas of caution. For example, the Supreme Court recently warned courts to require a relatively high degree of specificity in customary international law when recognizing common law causes of action premised on international law.50 Likewise, commentators have delineated which types of materials are more reliable than others when a court is identifying prevailing international practice.51 2.

Comparative Law

The clash between civil liberties and fighting terrorism raises issues that many nations resolve with constitutional principles. The comparative process should thus generally focus on constitutional law. Judges and scholars debate the proper approach to comparative constitutional adjudication.52 The debate, however, has yielded methodologies for comparative analysis and made accessible a rich cache of materials in treatises and casebooks. Scholars have exhaustively compared the structures of constitutional documents,53 catalogued varying factual and normative principles Weisburd, supra note 23, at 1487–88 (summarizing the approach taken by the court in The Paquete Habana and the nature of customary international law). 49. See The Paquete Habana, 175 U.S. at 700–14; see generally Roger P. Alford, Federal Courts, International Tribunals, and the Continuum of Deference, 43 VA. J. INT’L L. 675, 684 (2003) (framing the Paquete Habana principle). 50. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2764–65 (2004). 51. See, e.g., Weisburd, supra note 23, at 1500–29 (advising courts to use caution in relying on scholarly articles basing legal rules on sources other than state practice, the Restatement of the Foreign Relations Law of the United States, decisions of U.S. courts interpreting customary international law, and the decisions of international courts). Professor Weisburd points out, however, that there exist “trustworthy” and frequently updated “extensive collections of the actual practice of states” available for courts attempting to ascertain customary international law on human rights issues. Id. at 1529. I note, however, a point of confusion on the question of how a federal court should characterize customary international law. Scholars cannot agree whether customary international law should be treated in federal courts as state law, federal common law, or some other category. See T. Alexander Aleinikoff, International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate, 98 AM. J. INT’L L. 91, 91–97 (2004) (summarizing the debate and taking the position that customary international law is “law to be applied in appropriate cases by federal courts in instances where they otherwise possess jurisdiction”). 52. See, e.g., Anne-Marie Slaughter, A Global Community of Courts, 44 HARV. INT’L L.J. 191, 198–99 (2003) (describing a “transjudicial debate about the uses and abuses of persuasive authority, in which individual courts seek to draw a line between the requirements of their own legal systems and the resources of others”). 53. Choudhry, supra note 5, at 827 (citing Paul Bender, The Canadian Charter of Rights and Freedoms and the United States Bill of Rights: A Comparison, 28 MCGILL L.J. 811 (1983)).

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underlying constitutional jurisprudence, and trolled constitutional case law in order to organize transnational doctrines.54 Some scholars have even created taxonomies of comparative constitutional interpretation strategies,55 and developed guidelines for U.S. state and federal judges to refine the process of comparing constitutional sources.56 In other words, the federal court practice of using transnational constitutional materials is not just some newfangled trend in constitutional “cosmopolitanism,”57 but is rooted in a long cooperative tradition. Not surprisingly, this cooperation is particularly prevalent for courts making decisions on the types of issues likely to arise in a terrorism case—human rights matters.58 As one commentator has observed, “more than ever before, there is a growing acceptance of foreign influence in constitutional justice, particularly with regard to human rights.”59 In addition to this scholarly guidance, computer legal research facilitates broad ranging comparative analysis. Indeed, technology now makes available so many sources that courts confront the practical problem of choosing among a vast array of materials from many countries. Case law and secondary material stand ready to guide this choice. For example, Justice Breyer has opined that federal courts may find opinions of former Commonwealth nations particularly instructive, as they are likely to reflect a legal tradition 54. See, e.g., id. (reviewing scholarship); Ruti Teitel, Comparative Constitutional Law in a Global Age, 117 HARV. L. REV. 2570, 2575–87 (2004) (reviewing MICHEL ROSENFELD ET AL., COMPARATIVE CONSTITUTIONALISM (2003) (analyzing dominant jurisprudential approaches to comparativism)); Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1230 (1999) (arguing that the U.S. Constitution “licenses reliance on experience elsewhere” through the approaches of “functionalism, expressivism, and bricolage”). 55. See Choudhry, supra note 5, at 839 (identifying three modes of constitutional interpretation that courts use when relying on comparative jurisprudence: “universalist, dialogical, and genealogical”); Teitel, supra note 54, at 2575–87 (analyzing the functional, critical, and dialogical approaches to comparativism). 56. See David Fontana, Refined Comparativism in Constitutional Law, 49 UCLA L. REV. 539, 556–62 (2001). 57. Levinson, supra note 6, at 356 (coining the phrase “jurisprudential cosmopolitanism” to describe transnational constitutional interpretation and defining the term as “looking abroad for possible wisdom”). 58. See Ruth Bader Ginsburg, Affirmative Action As An International Human Rights Dialogue, 18 BROOKINGS REVIEW 2, 3 (Winter 2000) (“In the area of human rights, experience in one nation or region may inspire or inform other nations or regions.”), cited in Slaughter, supra note 52, at 199; Claire L’Heureux-Dube, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 TULSA L.J. 15, 16 (1998) (“More and more courts, particularly within the common law world, are looking to the judgments of other jurisdictions, particularly when making decisions on human rights issues.”). 59. Teitel, supra note 54, at 2572.

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shared with the United States.60 This affinity with Commonwealth materials is also reflected in the legislative initiative discussed above.61 Scholars agree, albeit with an inclination to a cast a broader net. Pointing out that basic characteristics of our constitutional system derive from England and the European Continent, many scholars argue that U.S. judges should look to those countries for arguments and rhetoric.62 For those courts interested in materials from countries that do not share a close common heritage with the United States, Judge Patricia Wald developed the following checklist for U.S. courts to consider before using a foreign decision: (1) whether the decision was made on the basis of a factual record through adversarial procedures or as an abstract decision; (2) whether all interested parties had a stake in the decision; (3) whether judges in the system are independent; (4) whether judges in the system have a reputation for integrity; and (5) whether judges in the system are allowed to pursue their own notions of natural law and morality or are bound by legislative or judicial precedents.63 Despite controversy among judges and scholars, the available methodologies for constitutional comparison are indeed rich. Continued debate about the uses and abuses of comparative materials will only improve further standards. Courts will be the beneficiaries of scholarly effort, particularly now that studies comparing United States and foreign anti-terror policies are beginning to emerge.64 IV.

CONSTITUTIONAL STRUCTURE

AND

TRADITION

Article III’s language and early jurisdictional statutes make clear that the framers and First Congress envisioned federal court adju60. Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J., dissenting from denial of certiorari) (referring to Eighth Amendment jurisprudence). 61. See supra note 3 and accompanying text for a discussion of the Constitution Restoration Act of 2004. 62. See, e.g., Michael Wells, International Norms in Constitutional Law, 32 GA. J. INT’L & COMP. L. 429, 430 (2004) (citing John Locke and Michel de Montesquieu as part of our heritage). 63. Wald, supra note 7, at 439–40; see also Rex Glensy, Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45 VA. J. INT’L L. 357, 361, 420 (2005) (setting forth a framework for selecting foreign persuasive authority that includes case context, as well as the originating country’s “democratic credentials” and “societal affinities” to the United States). 64. See, e.g., SIDEL, supra note 5, 147–68 (contrasting security initiatives in Great Britain, Australia, and India with the U.S. experience).

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dicating matters with foreign relations implications.65 Subsequent federal court decisions and congressional acquiescence reinforce the presumption that a large swath of foreign relations turf includes welcome territory for federal courts. Indeed, as the U.S. Supreme Court recently observed, after such a long tradition, “[i]t would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.”66 Surely this observation includes cases presenting the balance between preserving civil liberties and fighting terrorism. Yet the debate rages high. After canvassing the current views of the U.S. Supreme Court, I find a resolution in our constitutional system of separation of powers. A.

The Views of the U.S. Supreme Court

At best, the U.S. Supreme Court has sent mixed messages on the question whether transnational materials have any place in civil rights adjudication. On one hand are decisions such as Hamdi v. Rumsfeld,67 with indisputable transnational implications but little discussion of international and comparative law materials. On the other hand are members of the Supreme Court, sometimes even acting together as a Court majority, pursuing international adventure where the occasion presents purely a domestic issue such as sodomy,68 affirmative action,69 and the death penalty.70 One might explain this paradox by arguing that domestic issues provide a low risk context in which to explore the transnational 65. See, e.g., U.S. CONST. art. III, § 2 (providing for original Supreme Court jurisdiction over “all Cases affecting Ambassadors, other public Ministers and Consuls”); Judiciary Act of 1789, ch. 20, §§ 9, 11, 13, 1 Stat. 80 (creating alien tort jurisdiction, alienage jurisdiction, and jurisdiction over suits brought by diplomats). 66. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2764–65 (2004). 67. Hamdi, 124 S. Ct. 2633 (2004). 68. See Lawrence v. Texas, 539 U.S. 558, 573 (2003) (citing a European Court of Human Rights case in analyzing constitutional privacy rights). 69. See Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring) (citing a United Nations resolution); cf. Ginsburg, supra note 58, at 3, cited in Slaughter, supra note 52, at 199 (“In the area of human rights, experience in one nation or region may inspire or inform other nations or regions.”). 70. See, e.g., Roper v. Simmons, 125 S. Ct. 1198, 1198–1200 (2005) (discussing both comparative and international law materials in majority opinion); Knight v. Florida, 528 U.S. 990, 995–98 (1999) (Breyer, J., dissenting from denial of certiorari) (citing foreign precedents on the death penalty issue); Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (plurality opinion) (observing that juvenile execution violates standards of “other nations that share our Anglo-American heritage” and of leading members of the Western European community); Transcript of Oral Argument at 14–15, 17, Roper, 125 S. Ct. 1198 (No. 03-633) (discussion and questions by Justices Kennedy, Ginsburg, and Breyer of other countries’ practices concerning the execution of juveniles).

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realm. That is, current and former members of the Supreme Court have found it safe to dabble in comparativism where foreign materials lack capacity to control a decision. Perhaps they are loathe to tread on “true” international ground for fear that they might commit the United States to a foreign affairs position.71 This theory does not explain, however, the Court’s inconsistent approach to foreign relations materials themselves. Despite its declared impotence in the foreign relations area, the Supreme Court is occasionally a bit audacious in authorizing assertions of federal court power.72 For example, the Court has assumed federal court competence to make judicial rules of decision—without legislative guidance—over such matters as the act of state doctrine73 and common law causes of action under the Alien Tort Statute.74 When actually discussing whether the Court should use transnational material in disposing of constitutional law cases, the Justices speak more forthrightly. Three justices—Justices Breyer.75 O’Connor,76 and Ginsburg77—have strongly urged the importance 71. Jed Rubenfeld suggests yet another explanation in observing the heightened importance of democratic constitutionalism in U.S. legal culture: International law has never quite achieved higher-law status in America; it almost has lower-law status. In the American constitutional perspective, law gains no special authority by virtue of being international law, and courts obtain no special legitimacy by virtue of being international courts. On the contrary, from the American perspective, national constitutional courts, which remain embedded within the nation’s democratic processes, are an essential feature of constitutionalism. Rubenfeld, supra note 6, at 1997. 72. This dissonance is reminiscent of the decision in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984), in which the judges expressed doubt about their expertise and power to apply international law, but ultimately created articulate opinions demonstrating adroit abilities to navigate international law principles. I thank my colleague Jeffrey Dunoff for this observation. 73. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964) (concluding that the act of state doctrine must be determined according to federal law). 74. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2758, 2761 (2004). 75. See, e.g., Knight, 528 U.S. at 997 (Breyer, J., dissenting from denial of certiorari) (“Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a ‘decent respect to the opinions of mankind.’”); Scalia & Breyer, supra note 15 (arguing in favor of the use of transnational materials). 76. See Thompson v. Oklahoma, 487 U.S. 815, 851 (1988) (O’Connor, J., concurring) (noting that the United States agreed by ratifying Article 68 of the Geneva Convention “to set a minimum age of 18 for capital punishment in certain circumstances”); Elizabeth Greathouse, Justices See Joint Issues with the EU, WASH. POST, July 9, 1998, at A24 (quoting Justices O’Connor and Breyer agreeing that the Court should consult and perhaps cite decisions of the European Court of Justice). 77. Ginsburg, supra note 58, at 3 (“In the area of human rights, experience in one nation or region may inspire or inform other nations or regions.”), cited in Slaughter, supra note 52, at 199 (reviewing many of the statements of Justices Ginsburg, O’Connor, and Breyer); Anne E. Kornblut, Justice Ginsburg Backs Value of Foreign Law, N.Y. TIMES, Apr. 10,

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of these materials in U.S. constitutional decisionmaking. Even Chief Justice Rehnquist, in extrajudicial writing, endorsed comparative constitutional analysis.78 Justices O’Connor and Ginsburg as well as Chief Justice Rehnquist have gone even farther, disapproving Congress’s aggressiveness in pressing contrary sentiments.79 Through citation in opinions they have authored, Justices Stevens,80 Souter,81 and Kennedy82 have likewise demonstrated a willingness to use comparative analysis. On the other hand, Justices Scalia83 and Thomas84 have explicitly condemned using comparative sources. Both Justices, however, have exhibited inconsistency: 2005, at A10 (quoting Justice Ginsburg as stating that “[t]he notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is frozen in time as of the date of its ratification”). 78. William H. Rehnquist, Constitutional Courts–Comparative Remarks (1969), reprinted in GERMANY AND ITS BASIC LAW: PAST, PRESENT, AND FUTURE–A GERMAN-AMERICAN SYMPOSIUM 411, 412 (Paul Kirchof & Donald P. Kommers eds., 1993), cited in Hongju Koh, supra note 7, at 48 (“constitutional law is solidly ground in so many countries, it is time that the U.S. courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process”). 79. Referring to the House measure seeking to preclude judicial reliance on transnational materials, Justice O’Connor called the Resolution “very worrisome.” See supra note 2; Linda Greenhouse, Rehnquist Resumes His Call for Judicial Independence, N.Y. TIMES, Jan. 1, 2005, at A10. Justice Ginsburg has described the congressional resolutions as “disquieting.” Kornblut, supra note 77. Chief Justice Rehnquist referred to the issue in his 2004 Year-End Report of the Federal Judiciary in which he disapproved of Congressional measures that would “limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action.” Greenhouse, supra. Some may interpret this as a negative allusion to those legislative initiatives focused on precluding federal courts from looking to transnational materials. Id. (suggesting that Chief Justice Rehnquist may have been including proposed prohibitions against use of foreign legal materials in this reference). 80. See, e.g., California v. Acevedo, 500 U.S. 565, 586 (1991) (Stevens, J., dissenting) (comparing U.S. police practice with that in totalitarian regimes). 81. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 785–87 (1997) (Souter, J., concurring) (exploring Dutch constitutional practice on physician-assisted suicide). 82. See, e.g., Roper v. Simmons, 125 S. Ct. 1183, 1189 (2005) (Kennedy, J., writing for the court) (citing transnational materials within decision to abolish juvenile death penalty); Zadvydas v. Davis, 533 U.S. 678, 721 (2001) (Kennedy, J., dissenting) (citing a U.N. report and arguing that alien detention under certain circumstances “accords with international views on detention of refugees”). In Roper, Justice Kennedy explained that “[I]t does not lessen our fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our own heritage of freedom.” Roper, 125 S. Ct. at 1189. 83. See, e.g., Printz v. United States, 521 U.S. 898, 921 n.11 (1997) (Scalia, J.) (“We think such comparative analysis [of federal systems] inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one.”); Scalia & Breyer, supra note 15, at 23. 84. See Foster v. Florida, 537 U.S. 990, 990–91 n.* (2002) (Thomas, J., concurring in denial of certiorari) (“While Congress . . . may wish to consider the actions of other nations

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while expressing disapproval, they have each cited comparative sources as persuasive in opinions they have written.85 Suggesting that he will likely join ranks with Justices Scalia and Thomas, Chief Justice Roberts explained his misgivings about comparative constitutional analysis during his confirmation hearings.86 B.

Separation of Powers

Contrary to Congress’s assumptions underlying its jurisdiction stripping initiatives, separation of powers supports federal courts’ use of transnational principles. Indeed, separation of powers even requires federal courts to evaluate transnational principles, particularly in the context of terrorism. Many argue that resolute federal court action is particularly necessary to combat the Executive’s tendency since September 11 to act not only without international consent, but to bypass Congress and the judiciary as well.87 Yet one need not embrace this position to appreciate why a federal judge on any issue it likes, this Court’s Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans.”). 85. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 381–82 (1995) (Scalia, J., dissenting) (referring to Australian, Canadian, and English laws banning anonymous campaign speech to support his conclusion that such bans do not undermine the democratic process); Holder v. Hall, 512 U.S. 874, 906 n.14 (1994) (Thomas, J., concurring) (citing A. Lijphart, Proportionality by Non-PR Methods: Ethnic Representation in Belgium, Cyprus, Lebanon, New Zealand, West Germany, and Zimbabwe, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES 113, 116 (B. Grofman & A. Lijphart eds., 1986)). 86. Chief Justice Roberts explained: If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he’s playing a role in shaping the law that binds the people in this country. I think that’s a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn’t confine judges. It doesn’t limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They’re there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent–because they’re finding precedent in foreign law–and use that to determine the meaning of the Constitution. And I think that’s a misuse of precedent, not a correct use of precedent. Court in Transition: From the Hearings, N.Y. TIMES, Sept. 14, 2005, at A26. Senator Spector restated this position during full Senate debates. 151 CONG. REC. S10172 (daily ed. Sept. 19, 2005) (statement of Sen. Specter). 87. See, e.g., Rubenfeld, supra note 6, at 2026–27 (critiquing the post-September 11 Executive Branch tendency toward “double unilateralism” in relation to the international community and other branches of the U.S. government).

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adjudicating a terrorism issue should consider transnational materials and avoid a “lockstep” approach to executive assertions of power. Court power to consider transnational materials derives from the power of judicial review itself. The judicial review power, of course, grants the Supreme Court the authority and the duty to invalidate governmental actions that violate the Constitution.88 In dispatching that duty, federal courts may confront principles governing international affairs. Within that context, the Supreme Court has articulated the adjudicatory rules for international law mentioned earlier, such as the federal court obligation to construe legislation consistently with the law of nations.89 Obviously, these canons envision a significant role for federal courts interpreting international materials.90 The Supreme Court has authorized federal judges to create rules of decisions over such matters as the act of state doctrine,91 the preemption of state law by international instruments,92 and creation of common law causes of action for international law violations under the Alien Tort Statute.93 If federal courts enjoy that kind of latitude in cases with foreign implications, surely they are not overreaching their role by simply considering transnational materials in cases with foreign elements. In the context of dispatching their duty to say “what the law is”94 on a particular topic, federal courts must do so as thoughtfully and thoroughly as they can. Once possessing power to adjudicate a matter that is transnational in character, federal courts adjudicate properly only by evaluating relevant transnational legal materials. A related source of authority to consider transnational materials comes from the judiciary’s role as umpire among the federal legis88. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803). 89. See supra notes 45–51 for a description of these rules. See also Sandra Day O’Connor, Federalism of Free Nations, in INTERNATIONAL LAW DECISIONS IN NATIONAL COURTS 14–15 (Thomas M. Franck & Gregory H. Fox eds., 1996) (reviewing adjudication principles that establish the “plenary authority of the political branches to conduct affairs of state” does not place those branches “wholly beyond the requirements of law”). 90. See The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.”). 91. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964) (“We conclude that the scope of the act of state doctrine must be determined according to federal law.”) 92. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 425 (2003) (noting that the “express federal policy and the clear conflict raised by the state statute are alone enough to require state law to yield”). 93. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2758, 2761 (2004). 94. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

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lative and executive branches.95 The Constitution is indistinct on the issue of which governmental branch holds the trump card for military and foreign affairs questions. For example, the constitutional text suggests an uneasy balance, a dissonance, in the coexistence of the president’s power as Commander in Chief96 and Congress’s power to declare war, to punish piracies and offenses against the law of nations, and to make rules for the regulation of the land and naval forces.97 Over time, the case law has fluctuated on the proper balance between the legislature and the executive, evincing no less than four separate judicial models for evaluating the scope of inherent executive power.98 Recently, within the context of the war on terror, the Hamdi plurality ducked the question of executive authority, reasoning that Congress had already acted and provided legislative authorization for some form of detention.99 Despite the judiciary’s inconsistent record in umpiring the president and Congress, few, if any, question the judiciary’s authority to act in that role. Once a federal court becomes entwined in the delicate question of which branch to defer, the court can perform its constitutional function only if it fully explores and explicates the full nature of governing law. To best fulfill its role as an independent arbiter of interbranch struggle, the prudent court casts a large net in pursuing guidance—including the legal experience of international law and of other countries that do not have a stake in the controversy. The judiciary gains greater credibility in negotiating the jealousies between the other two branches by reviewing a wide range of materials. Having observed that the Supreme Court envisions a role for federal courts in foreign relations matters, I hasten to recognize the Court’s reluctance for the federal judiciary to pursue proactive 95. One could make a similar, albeit less tested, argument regarding the judiciary’s role in umpiring the relationship between states and the federal government on issues of international affairs. See, e.g., Garamendi, 539 U.S. at 425 (holding that a California statute interferes with the President’s conduct of foreign policy and is therefore preempted). 96. See U.S. CONST. art. II, § 2 (designating the President as Commander in Chief of federal military forces). 97. See U.S. CONST. art. I, § 8. 98. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 331–34 (2d ed. 2002) (outlining four models of executive authority appearing in Supreme Court cases); see also Flaherty, supra note 2, at 171 (observing that “the Founding generation” simply left unresolved many central foreign affairs questions). 99. See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2639 (2004) (plurality opinion) (stating that “[w]e do not reach the question whether Article II provides [plenary executive authority to detain], however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention”).

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or intrusive review of such matters. Indeed, perhaps the most reasonable grounds for avoiding transnational materials is concern with protecting military discretion and allowing other branches to negotiate sensitive issues of foreign relations and national security without interference of the judiciary.100 In evaluating this argument, I note first that concern with judicial meddling peaks in contexts other than those I focus on here. As the Supreme Court recently explained, judicial caution is most important in cases presenting the direct interaction of “nation states with each other” and cases adjudicating the “rights and . . . the duties of nations in their intercourse with each other.”101 Cases implicating individual rights fall more closely to the core of the judiciary’s authority and competence. Indeed, the Supreme Court has repeatedly recognized that national security and military discretion claims do not automatically repel judicial scrutiny of civil rights violations.102 Even more to the point, however, the federal courts need no moratorium against transnational materials to inform their constraint in cases triggering foreign affairs and national security issues. First, courts may reckon with the sensitivity of particular disputes by using measures such as in camera proceedings and sealing documents in limited instances to safeguard confidentiality. In those instances where the judge develops the hypothesis that she may lack knowledge, expertise, or power to handle a foreign relations matter, steering clear of materials that may inform her judgment is not a prudent option. A more sophisticated device—the 100. See Scalia & Breyer, supra note 15, at 7, in which Justice Breyer describes a conversation with a legislator urging him that, if he must consider laws of other countries, not to cite them. 101. Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2756 (2004) (noting that in the early years of the United States, these aspects of the law of nations occupied the “executive and legislative domains, not the judicial”); cf. Flaherty, supra note 2, at 177 (suggesting that the U.S. courts are engaging in more legal internationalization because international law has expanded into “transnational organizations” and “international human rights law”). 102. Hamdi, 124 S. Ct. 2633, 2649–50 (2004) (plurality opinion) (stating that “[w]hile we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims” such as those relating to the arrest and detention of suspected terrorists); Korematsu v. United States, 323 U.S. 214, 234 (1944) (Murphy, J., dissenting) (arguing that “like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled”) (cited with approval in Hamdi, 124 S. Ct. 2633, 2649–50 (2004) (plurality opinion)); Sterling v. Constantin, 287 U.S. 378, 401 (1932) (“What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.”).

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political question doctrine—stands ready instead. Under the political question doctrine, the Constitution as well as prudential principles “deny the judiciary its traditional role of conflict resolution”103 in international relations cases. As the Court explained in Baker v. Carr, “[n]ot only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government’s views.”104 The political question doctrine is far from perfect. It is imprecise and tends to foster indeterminate results105 Nevertheless, while not the darling of academics or other thinkers,106 the doctrine at least allows for more nuanced reasoning and judicial discretion than an unthinking prohibition on relying and citing relevant legal materials. Lawmakers’ energies would be much better channeled toward improving the political question doctrine itself than enforcing a blanket prohibition against transnational materials.107 V.

RULE

OF

LAW

AND

WORLD GOVERNANCE

Courts implement the law. They work on government’s front lines, tailoring legal principles to the specifics of people’s lives and problems. As such, they are perhaps the most crucial part of government by the rule of law. The practice of considering transnational law enhances the federal judiciary’s role in implementing the rule of law within the context of fighting terrorism. Consistent with world citizenship, the practice represents the right thing to do. As stated by Justice Breyer in a frequently quoted opinion: “Willingness to consider foreign judicial views in comparable cases is not surprising in a Nation that from its birth has given a decent 103. O’Connor, supra note 89, at 14–15. 104. 369 U.S. 186, 211 (1962). 105. See, e.g., Martin Redish, Judicial Review and the “Political Question,” 79 Nw. U. L. Rev. 1031, 1031 (1985) (observing that the political question doctrine has been “an enigma” to scholars, who have debated the doctrine’s “wisdom and validity” as well as its “scope and rationale.”) 106. See, e.g., Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237 (2002); Martin Redish, Judicial Review and the “Political Question,” 79 NW. U. L. REV. 1031, 1033 (1985) (arguing that “the political question doctrine should play no role whatsoever in the exercise of the judicial review power”). 107. As mentioned above, other strategies such as protecting the confidentiality of sensitive, albeit relevant, information are available to the judge in the absence of full abstention.

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respect to the opinions of mankind.”108 Several instrumental factors related to our rule of law goals also weigh heavily in favor of the practice of using transnational materials: increasing judicial professionalism, augmenting the legitimacy of U.S. legal culture, building global cooperation, and strengthening the fight against terror. A.

Judicial Professionalism

As argued above, judges who consider transnational materials demonstrate solid decisionmaking methodology and commitment to thorough investigation of relevant legal materials. They dispatch their constitutional duty best by including transnational materials in their research, discussions, and final written products. Proper use of transnational materials requires learning a new legal landscape. This process expands the judiciary’s expertise, while the contrary practice reinforces insularity, small-mindedness, and fear of unknown intellectual turf.109 Moreover, an opinion citing and discussing relevant transnational law appears less parochial and better informed.110 The resulting professionalism enhances credibility and legitimacy for federal court decisions in the rest of the world.111 B.

U.S. Legal Culture

While terrorism itself does not necessarily respond favorably to rationality and consistency, the rest of the world does. A judge who considers transnational materials projects to the world that the United States is willing to act consistently with settled expectations and the rule of law.112 The practice shows that the judiciary is able to resist “majoritarian impulses”113—even if those impulses come from an understandable feeling of fear and protectionism. By seriously dis108. Knight v. Florida, 528 U.S. 990, 997 (1999) (Breyer, J., dissenting from denial of certiorari). 109. The process also expands the horizons of law clerks, the next generation of legal professionals. 110. See Janet Konen Levit, Going Public with Transnational Law: The 2002-2003 Supreme Court Term, 39 TULSA L. REV. 155, 157–58 (2003) (noting that “there is clearly room to criticize the [Supreme] Court for . . . taking a ‘parochial’ approach in some decisions”). 111. Cf. Slaughter, supra note 52, at 201 (arguing that “[e]vidence of like-minded foreign decisions could enhance the [domestic] legitimacy of a particular opinion”). 112. See Weisburd, supra note 23, at 1504 (discussing the relationship between relying on past state practice, fulfilling expectations, and developing settled legal principles). 113. Hongju Koh, supra note 7, at 55 (noting that it is not the job of judges to indulge “majoritarian impulses”).

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cussing transnational materials, judges show an inclusive and openminded approach toward their work. In so doing, the judiciary backs up the claim of a tolerant, pluralistic society in the United States. Consideration of transnational materials reflects many values emblematic of our nation, including commitment to expanding knowledge as a key to freedom and our democracy’s “let many voices be heard” spirit. Judge Wald notes that the United States has been investing billions of dollars “to spread the ‘rule of law’ and human rights across the globe.”114 Presumably, she argues, these programs are based on the premise that most countries have “common aspirations, a sense of dignity and worth, and intuitions and feelings about justice.”115 Thus, she reasons, “increasing interchange among judges around the world is not a kind of conspiracy to impose the views of a few on the many but rather a genuine search for common denominators of basic fairness governing relationships between the governors and the governed.”116 Judges who invoke transnational jurisprudence thus not only demonstrate the federal judiciary’s commitment to well informed rule following, but also reinforce our nation’s international legal outreach efforts. C.

Global Cooperation

Explicit consideration of transnational materials allows federal courts to assume a more “global posture.”117 As such, courts not only increase their own authenticity, but model the respect the United States seeks to foster among members of the world community. By looking to others’ views, federal courts implicitly recognize the gravity of the task at hand—an important starting point for an enterprise as daunting and complicated as fighting terrorism. At the same time, the courts increase the prestige of the transnational law that they cite. Sharing of ideas will likewise foster an international consensus on the appropriate balance between fighting terrorism and preserving civil liberties—a consensus likely to provide more effective, long range regulation than an isolationist approach.118 114. Wald, supra note 7, at 441. 115. Id. at 441–42. 116. Id. at 442. 117. Levit, supra note 110, at 157–58 (arguing that the U.S. Supreme Court’s citation to transnational law serves comity, puts the Court in a more “global posture,” and allows the court to appear less “parochial”). 118. See Frederick Schauer, The Politics and Incentives of Legal Transplantation, in GOVERNANCE IN A GLOBALIZING WORLD 253, 258–59 (Joseph S. Nye & John D. Donahue eds., 2000)

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The Ultimate Goal: Defeating Terrorism

Enhancing judicial professionalism, the reputation of U.S. legal culture, and global cooperation are all noble ends in themselves. Yet they also act as instruments to yet another end: defeating terrorism itself. The reasoning unfolds as follows: by skillfully tracking international and comparative examples, federal courts enhance the legitimacy of the United States. If our legitimacy is enhanced, then we are more likely to get cooperation from other countries in detecting nascent terrorist activity, capturing suspects, and prosecuting terrorists transnationally. When we lose legitimacy, we sacrifice the assistance of other countries. Our reduced legitimacy likely also galvanizes terrorist cells and facilitates their recruiting efforts.119 Increased U.S. legitimacy presumably has the opposite effect. Yet another salutary effect emerges: improving cooperation among nations and increasing the prestige of transnational law renders law a more effective tool for fighting terrorism. We can trace the source of terrorism to failures of the rule of law in other countries. U.S. courts contribute to bringing rule of law to these countries by showing that we are part of the international enterprise of developing universal norms and by cooperating in crossfertilization of legal cultures. Surely world governance by rule of law is strengthened when the world’s “legal systems work together in harmony rather than at cross purposes.”120 (arguing that “ideas that are seen as close to an emerging international consensus are likely to be more influential internationally”). 119. For an example of this dynamic, see Shawn Boyne, The Tension between Politics and Justice: German Courts and the 9/11 Suspect Cases (2004) (unpublished manuscript, on file with the author) (arguing that the United States’ failure to allow German terrorism defendants access to exculpatory testimony of those in U.S. custody led to failed prosecutions resulting from a German judicial protest over the U.S. government’s lack of cooperation). 120. Howe v. Goldcorp Inc., Ltd., 946 F.2d 944, 950 (1st Cir. 1991) (Breyer, J.) (stating that growing economic interdependence, increased international commerce, and the greater likelihood of cross-border consequences resulting from state action all argue for greater international legal cooperation). Marking Human Rights Day, on December 10, 2002, Secretary-General Kofi Annan articulated this reasoning: Yet the strength of the rule of law lies in its universal relevance and application— in its grounding in the fundamental human rights of all people. It applies equally to the strong and the weak. Its application is the duty of States large and small. It is the most effective tool to fight criminality and terrorism, and the best guarantee of safety, security and freedom for us all. Press Release, Kofi Annan, United Nations Secretary-General, Marking Human Rights Day, Secretary-General Calls for Vision to Bring About New Equilibrium in International Relations, U.N. Doc. SG/SM/8526 (Feb. 11, 2002), available at http://www.un.org/News/ Press/docs/2002/sgsm8526.doc.htm (last visited Sept. 8, 2005).


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Power without law is tyranny.121 People hate tyrants. Hate in turn breeds terrorism. If others view the United States as tyrannical, our country attracts terrorism. If U.S. courts use only “OUR” own law, they are not necessarily guided by principles regarded by the rest of the world as law. On past occasions, our country has proceeded on the presumption that any difference between “our” law and “their” law is “their” problem. No cause for discussion on our part. In the age of terrorism, we adhere to this view at our peril. VI.

CONCLUSION

Terrorism inspires fear, which in turn encourages insularity, protectionism, and the tendency of government actors to hide behind the shield of national security. Yet in confronting terrorism, government agents should cultivate the contrary impulse—particularly in the context of civil rights litigation, which by definition implicates issues and problems shared by all humanity. To do so not only allows courts to serve as agents in an important cross-cultural enterprise,122 but also promotes the ultimate goal of defeating terrorist efforts. Within the U.S., many look to the Supreme Court for leadership in transnational jurisprudence.123 Yet the Supreme Court relies by necessity on the Courts of Appeals and District Courts for help with law development. The justices are loathe to venture onto legal terrain that the lower courts have not explored themselves.124 Lower court judges look to the parties for issue formulation, research, and briefing. Thus, the impetus for transnational jurisprudence 121. See, e.g., Susan Koniak, When Courts Refuse To Frame the Law And Others Frame it to their Will, 66 S. CAL. L. REV. 1075, 1106 (1993) (suggesting that reducing law to power approaches tyranny); Loren A. Smith, The Eternal Price of Liberty or The Magical World of Constitutional Law: How Not to Make Rights Appear and Disappear Out of a Hat, 32 SUFFOLK U. L. REV. 1, 4 (1998) (arguing that without the constraint of law and reason, policy becomes the province of, and an instrument for, tyranny). 122. See Choudhry, supra note 5, at 825 (arguing that “all constitutional courts are engaged in the identification, interpretation, and application of the same set of norms”). 123. The bulk of scholarly study of the topic focuses on the U.S. Supreme Court’s track record. See, e.g., Levit, supra note 110, at 157–58 (arguing that U.S. Supreme Court’s citation to transnational law serves comity, puts the Court in a more “global posture,” and allows the court to appear less “parochial”); Slaughter, supra note 52, at 199 (reviewing many of the statements of Justices Ginsburg, O’Connor, and Breyer); Teitel, supra note 54, at 2575–79 (reviewing experience in the U.S. Supreme Court). 124. See, e.g., Todd J. Tiberi, Supreme Court Denials of Certiorari in Conflicts Cases: Percolation or Procastination?, 54 U. Pitt. L. Rev. 861, 861 (1993) (reporting that Supreme Court justices have explained that the Court often denies review in a case because the legal issues need to percolate in the lower courts).

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must come in substantial part at the trial level—from both judges and lawyers. The legal academy must also play its part,125 through education and other support for professionals as they bring broadranging transnational jurisprudence to federal terrorism litigation and beyond.

125. My colleague Mark Rahdert argues that responsibility lies in the first instance with legal education to encourage students to expand their sights beyond domestic law and to train students to research and analyze international and comparative law materials.