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Volume: 5 Number: 33_monday

August 9, 2004

Opinion - The Supreme Court, international law and President Bush. [Edited]

By STUART S. MALAWER

Special to the Daily Record

While overshadowed by rulings concerning the rights of detainees, executive power and judicial review in the “war on terror,” the Supreme Court recently issued three surprisingly significant decisions on international law.

These cases show a realistic reaffirmation by the Supreme Court of international law’s central importance to U.S. jurisprudence, the rejection of a post-war conservative belittlement as well as an apparent disdain for it, and a prudent determination of Congressional intent and judicial precedent in global commerce.

While dealing with quite technical issues of the federal courts’ subject-matter jurisdiction in alien torts, sovereign immunity and antitrust, these three decisions suggest a return to pragmatism by the Supreme Court. Taken together they provide a sensible balancing of foreign policy concerns within the context of the separation of powers and foreign relations. They also serve as a counterweight to the political degradation of international law that started with the Reagan-Bush era and continued through the current Bush administration.

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These decisions also challenge the conservative disdain of international law as practiced in foreign affairs by the Reagan and both Bush Administrations. In 1988 I wrote an article published in the Harvard International Law Journal and then reprinted in the Congressional Record outlining the disregard of both Constitutional and international law by the Reagan Administration. The Iran-Contra Scandal is only one illustration of this disregard.

The current Bush Administration has continued this crusade by its illegal attack on Iraq in violation of the most basic tenet of the U.N. Charter. Article 51 of the U.N. Charter permits the use of military force only in self-defense when there is an armed attack.

A minority of jurists and international lawyers, including myself, acknowledge a right of anticipatory self-defense in very rare circumstances, where there is a very real threat of imminent attack. Anything other than this interpretation makes this right of self-defense too subjective and the prohibition against the use of force in international relations illusory. This right of self-defense does not involve the preemptive use of force when an attack may occur and certainly does not apply in order to prevent one that might occur sometime in the future.

A “preemptive war,” or perhaps more correctly a “preventive war,” as well as a “just war” are simply not permissible by standards championed by the United States during and after World War II. The Bush administration, then, prosecuted the Iraqi war illegally by violating a wide-range of cardinal norms concerning rights of detainees and prohibitions against torture. These actions should come as no surprise. The culture of avoiding international law, degrading our allies, and ignoring multilateral institutions set the tone. The Bush administration claimed an outrageous right of self-defense, ignored our traditional allies, claimed the U.N. to be impotent, and equivocated about the laws governing the conduct of war. The military and intelligence communities, including unfortunately some soldiers in the field and those maintaining U.S. detention centers worldwide, only responded with their own actions unencumbered by legal rules.

Upholding integrity

In conclusion, the Supreme Court’s rulings in these three cases play a critical role in upholding the honor, integrity and the exceptional character of the United States. Moreover, these decisions answer the caustic refrain posed by President Bush during a photo opportunity when questioned about the international legality of U.S. operations. The president said, “I guess I need to call my lawyer.” He should have. The Supreme Court has reminded us all that international law is applied by U.S. courts and that the Supreme Court applies the rule of law as enacted by Congress. The Supreme Court’s application of these laws in the recent three cases concerning subject-matter jurisdiction sets the stage for it, if called upon, hopefully, to apply international law to areas of even greater national importance — going to war and its prosecution.

Yes, President Bush should have called his lawyer — one beholden to the Constitution and the laws of the land, including international law. And the Congress should have insisted upon compliance with international law rather than simply acquiescing to outrageous presidential actions.

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Stuart S. Malawer is Distinguished Professor of Law & International Trade at George Mason University in Virginia.

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