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The Post 9/11 Legal Landscape:
Why the Bush Administration Hasn't Gotten Its "Wish List", And Why It Will Have To Ultimately Obey International Law


Thursday, Sep. 18, 2003

One can hardly imagine an administration more antagonistic to international law than the current one. Indeed, for the Bush Administration, the very phrase is accompanied by the use of scare quotes - as if even mouthing the words "international law" might drape it with some undeserved cloak of legitimacy.

This Administration, for example, proudly refused to ratify the Kyoto protocol, "unsigned" the treaty establishing the International Criminal Court, withdrew from the ABM treaty, opposed international accords on biological weapons and small arms trafficking, and continues to dismiss near-universally-subscribed human rights agreements.

For this Administration, it is sovereignty that provides the rallying call - and sovereignty, on this view, is not merely a doctrine, but rather a principle that must be defended as a matter of constitutional duty. The sovereigntists believe that at the height of its global powers, the U.S. must maintain maximal freedom of action on the international plane - and that international law is simply irrelevant to foreign policy decisionmaking.

The wake of September 11 would seem to have vindicated and entrenched this sovereigntist orientation. The shock of the attacks gave the anti-internationalists an upper hand against more moderate elements. The same Department of Defense neoconservatives who pressed successfully for the invasion of Iraq, together with hardline State Department plant John Bolton, have emerged the key ideological and policymaking antagonists of U.S. participation in and submission to international lawmaking processes. As with Iraq and other post-9/11 issues, these forces would seem to have succeeded in derailing greater U.S. regard for international law.

In the end, however, 9/11 and its aftermath may prove a donnybrook for the sovereigntists. The importance of multilateral action has never been more clear - and that reality gives other nations leverage over the U.S., for the U.S. needs their cooperation in the fight against terror. Accordingly, to the extent that other states care about international law - and many of them do - they will increasingly be in a position to impose international norms on the United States.

As international law and institutions take hold elsewhere, America's splendid legal isolation will no longer be sustainable. Like it or not, the U.S. will be brought into the ambit of international law.

Constitutional Constraint Beyond the Courts

Given the enormity of the 9/11 attacks - and contrary to the conventional wisdom - it is remarkable how little success the Bush Administration has had in securing approval of its anti-terrorism agenda. Left to its own devices, Administration efforts would have been far more invasive of civil liberties and human rights than it has been. So why hasn't it been able to go further?

Congress, first of all, has vigilantly resisted extending open-ended powers to the executive branch. The USA Patriot Act does lower the threshold for some enforcement activities and surveillance methods. But the more questionable authorities it granted are all subject to a 2005 sunset. Moreover, the government does not appear to have made extensive use of them.

Meanwhile, insofar as the Department of Justice has exploited powers within its preexisting authorities, it has faced withering criticism. For example, the post 9/11 detention of hundreds of aliens of Middle Eastern origin on technical immigration charges was lambasted not only in the press, but also from Justice's own internal watchdog.

True, the Administration has taken the unprecedented step of taking three American citizens out of the justice system entirely - Jose Padilla, Yaser Hamdi, and Ali Saleh Kahlah al-Marri - by using the "enemy combatant" label. But condemnation from the mainstream bar and among editorialists, has surely deterred the Administration from the broader use of the category.

Attempts to build on the Patriot legislation have gone nowhere. A draft "Patriot II", leaked early this year, included broad new enforcement powers, as critiqued on this site by columnist Anita Ramasastry.

In late August, the Administration went public with a far more limited set of proposals - including expanded eligibility for the death penalty, and broadening the possibilities for denying bail in terror-related cases.

The proposed elimination of the original Patriot Act's 2005 sunset provisions, and the new proposal for administrative - not court-issued - subpoenas have met with a cold reception. Indeed, John Ashcroft's national tour to defend the Patriot Act, and press for further powers, has been a huge flop - derided by the press and failing to reach beyond small, friendly handpicked audiences.

This dynamic has proved the resiliency of the Constitution even outside the courts. Some judges are showing a surprising fortitude in questioning Administration tactics, but they remain bit players in this drama. The courts have no monopoly on constitutional determination. Congressional, editorial, and public opposition to the Administration's more extreme initiatives has been framed in constitutional terms. The defeat of these initiatives is a vindication of core individual rights, even in the face of the terror threat.


Military Tribunals and Guantanamo: Divergent Domestic and International Responses

But this domestic constitutional activity can't explain some elements of the response to 9/11. Domestic opposition has been muted with respect to the use of military tribunals against non-citizen terrorist defendants and the holding of several hundred alleged Al Qaeda and Taliban detainees at Guantanamo Bay. On these issues, hasn't the Administration gotten its way? The answer is: In theory, yes, but in practice, that remains to be seen.

The military tribunals were authorized by a bare-bones October 2001 executive order, criticized as insufficiently protective of the procedural rights of the accused. But mainstream elite opinion accepts the concept of military tribunals if they were to provide adequate procedural guarantees. Indeed, Democrats Joseph Lieberman and Carl Levin even took the Administration to task for not putting alleged twentieth hijacker Zacarias Moussaoui into the tribunal pipeline.

The Supreme Court's decision in Ex parte Quirin decision has been accepted as sufficient authority for such tribunals. And prominent liberal legal scholars such as Laurence Tribe and Cass Sunstein are on record as accepting the tribunals' legitimacy. So is liberal New York Times columnist Anthony Lewis. And public opinion agrees.

Then why haven't the tribunals been deployed? Here one can point to intense international opposition as the key causal element. European public opinion and the major international human rights groups have been particularly vocal in condemning the tribunal option. Much of this opposition has been framed in legal terms. The argument is that the tribunals would be not just bad policy, but a violation of international law.

Similarly, while the continuing Guantanamo detentions are generating only moderate opposition in the U.S., they have emerged as a major human rights issue for the Europeans. As the detainees approach a third year in captivity, this international pressure will doubtless intensify.

The How and Why of Leveraging International Norms

Of course, in the past international sentiment that U.S. action was inconsistent with international law did not make it consequential - hence the lingering perception that international law isn't really "law" at all. But the anti-terrorism context affords other states leverage to impose international law on the U.S.

Where other states have terrorism suspects in custody, first of all, they put conditions on extradition. Since the 1989 Soering decision from the European Court of Human Rights, European countries have demanded assurances that the U.S. not pursue the death penalty. In the post-9/11 context, extraditions will likely to include the additional condition that the U.S. shall not prosecute the accused in a military tribunal. (Spain has already announced this policy with respect to suspected Al Qaeda operatives in its custody.)

In this context, U.S. authorities have no choice but to accept the European position. And the same is true -more significantly - with respect to European and other governments' anti-terrorism cooperation generally. They might condition intelligence sharing, for example, on a U.S. decision to abjure tribunals. If those governments care enough about the military tribunal, Guantanamo, and other related issues, they are in a position to extract behavioral changes from the United States.

By now, it is clear that effective preemptive action against terrorist organizations must be multilateral. Too much groundwork for terrorist attacks can be laid outside the target country's borders (as was true with 9/11 itself, for which significant planning was undertaken in Germany). And as we are now seeing, even Iraq is coming to require multilateral support - as the U.S. goes begging for financial and other contributions to the rebuilding process there.

In other words, the United States can no longer go it alone.

Two recent episodes demonstrate how this model may play out on the ground. In July 2003, the Bush Administration identified six detainees, two of them British, as eligible for tribunal proceedings. British arguments against the tribunal were draped in the mantle of human rights and international law. In the face of British protest, the U.S. backed down.

The leverage here was clear: if the United States proceeded with the tribunal prosecutions, they risked the unwavering support of a loyal partner in the post-9/11 context, too steep a cost for the marginal returns of resorting to tribunal procedures. In so doing, it further compromised the tribunals as an option in other cases; other states may well insist on similar concessions for their detainee nationals.

Similarly, the U.S. recently agreed to release three juvenile detainees from Guantanamo, in the face of intense condemnation from human rights groups and a United Nations special representative for children and armed conflict. Again, the protests were framed in international law terms, and the U.S. backed down.

In the end, the U.S. may not use the military tribunals at all. We may also witness the release of a large proportion of the Guantanamo detainees. Both results will have been driven by international pressure grounded in international law.

Chaining the Hegemon

Of course, this is not to say that international law will always carry the day, just as there is no such thing as perfect enforcement in the domestic law context.

Granted, the invasion of Iraq demonstrates the capacity of the United States to defy the conceptions of other actors on questions of international legality. But it also shows that there is a price for violating international law. It is highly unlikely that in the face of international rejection of the grounds for the invasion that the United States will again undertake "preemptive" action against other states. No one is still talking about marching to Damascus or Tehran or Pyongyang. That the costs of illegitimacy can be borne in some contexts will not make them bearable in others - nor does it mean that these costs are not real.

This analysis has striking consequences for the future: If the United States can be held to international norms in its responses to the extremities of the 9/11, we can expect it to play along in other contexts. We can then quit arguing about whether international law and institutions are meaningful - and concentrate on the difficult challenges of refining a new international architecture.

Peter Spiro, a former State Department lawyer and NSC staff member, teaches immigration and international law subjects at Hofstra Law School.

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