Washington Post (12.12.05).

The High Court Looks Abroad.

As Congress Backs Bush Foreign Policy, Justices Voice Qualms.

By Charles Lane

With President Bush's foreign policy generally backed by a Republican-controlled Congress, friction is developing with a branch of government that usually stays out of international issues: the Supreme Court.

Both in their decisions and in public remarks off the bench, key members of the court are expressing views either explicitly or implicitly at variance with the administration's approach.

The issues range from U.S. tactics in the war against al Qaeda to relatively arcane questions of consular access for foreigners on death row in the United States. But a common theme runs through them: concern by members of the court about America's image in the world. Where the White House has pursued policies in the teeth of international opposition, the justices have often spoken with a multilateralist accent.

"Congress has been notably acquiescent. The court has not," said Michael J. Glennon, a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University. "Congress has been a facilitator. The court has been an objector."

On Tuesday, Attorney General Alberto R. Gonzales chided Justices Stephen G. Breyer and Anthony M. Kennedy by name for using the opinions of foreign courts for guidance in recent rulings on constitutional cases. The justices' professed goal, supporting their judicial colleagues abroad, may be laudable, Gonzales told an audience at the University of Chicago's law school, but "the judiciary is not supposed to have a foreign policy independent of the political branches."

Mindful of their institution's historical avoidance of foreign affairs, the justices have kept their public observations muted, indirect and polite. Gone are the days when, at the height of the Cold War, Justice William O. Douglas called for diplomatic recognition of the People's Republic of China. And, as the court is an institution that can only respond to lawsuits, not initiate policy changes, the practical impact of the justices' views is limited to cases that come before them.

Still, the court's membership includes people such as Kennedy, a regular at a summer seminar on constitutional law in Salzburg, Austria, and Breyer, fluent in French, who are well traveled and know about international affairs. The justices come into frequent contact with international colleagues at conferences, making them part of a burgeoning transnational class of legal experts. And, for any justice, the court can serve as a bully pulpit from which to comment, however carefully, on the United States' standing in the world.

Justice Sandra Day O'Connor used a speech at West Point on Oct. 20 to make a point about the alleged mistreatment of prisoners in U.S. military custody, telling cadets: "We need a clear set of rules to reaffirm our values as a nation. This is crucial in the ongoing war of ideas. We have to demonstrate two things in particular: First, this country believes in protecting the basic humanity of all people, and that includes even our adversaries. Second, we will not stoop to the atrocities and inhumane tactics of some of our adversaries."

In June, Kennedy observed in public remarks that he was "concerned that nationalism or self-interest will obscure the greatness of American traditions." Later, he gave a long interview, in Salzburg, to the New Yorker magazine, in which he held forth on the importance of good relations between the U.S. judiciary and its foreign counterparts.

Justice Ruth Bader Ginsburg had made a similar point in an April speech. "We live in an age in which the fundamental principles to which we subscribe -- liberty, equality and justice for all -- are encountering extraordinary challenges," Ginsburg told a meeting of the American Society for International Law. "But it is also an age in which we can join hands with others who hold to those principles and face similar challenges."

On the current court, only Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Antonin Scalia oppose the use of foreign case law in constitutional interpretation. Along with Breyer, Kennedy, O'Connor and Ginsburg, Justices John Paul Stevens and David H. Souter have supported it.

Echoing the concerns of Roberts, Scalia and Thomas, as well as those of Republicans in Congress, Gonzales, in his first detailed statement on the subject, charged that the court has used foreign case law only selectively, to support such rulings as the court's recent bans on the juvenile death penalty and on laws against homosexual sodomy.

"Reliance on foreign law threatens to unmoor the court from the proper source of its authority for judicial review and place in jeopardy the reverence Americans have for the laws and for the institution of the Supreme Court," Gonzales said.

But the six members of the court who accept the use of foreign law say it is only a source of information and ideas, not binding precedent.

"In a very few cases the majority has referred to foreign decisions in the same way it might refer to a treatise or an academic article. Our sovereignty is not at risk," said Cass Sunstein, a professor of law at the University of Chicago.

In its legal approach to terrorism, the Bush administration appears to have overestimated how much deference the court would show to the commander in chief during wartime. Though the court has moved gingerly, it has refused to stay out of the area where the administration has attracted some of its strongest criticism in Europe: the treatment of prisoners at Guantanamo Bay and elsewhere.

Last year, the court ordered the administration to give terrorism suspects the right to dispute their detention in federal court and said that the president had to provide a fair hearing to U.S. citizens captured as terror suspects abroad.

And earlier this week, the court, brushing aside administration objections, said it would hear a challenge to the administration's planned military commission trials for prisoners at Guantanamo -- including the question, to which the administration has already answered "no" -- of whether U.S. courts can enforce the Geneva Conventions there.

On the same day, the justices agreed to revisit another issue that has caused the administration diplomatic headaches with countries critical of the U.S. death penalty: the possible enforcement, in U.S. courts, of an International Court of Justice ruling that would require U.S. judges to give new hearings to foreign death row inmates who claim they were not given access to their consulates after being arrested -- as required by a treaty the United States has ratified.