Two rulings of the US Supreme Court this week rejected the sweeping wartime powers claimed by President George W. Bush.
In the case of Yaser Hamdi, the court renounced the administration's claim that military authorities could indefinitely hold a US citizen as an "enemy combatant" without ever providing him with an opportunity to contest the basis for his detention before a neutral decision maker.
And in a case brought by 14 foreign nationals, the court cast aside the government's argument that because the US Naval Base at Guantanamo Bay is nominally under Cuban sovereignty, US courts lack jurisdiction to entertain legal claims brought by persons who had no say in where the US military chose to detain them. Although nowhere mentioned in either case, the scandalous treatment of Iraqi prisoners at Abu Ghraib and the revelations that high-level government lawyers prepared confidential memoranda authorizing torture, likely played a part in the justices' reasoning.
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The administration essentially said, "trust us to do what's right."
Clearly, the court thought that such trust had not been earned. Another unspoken consideration may have been at work in the Guantanamo Bay case, which has garnered considerable international attention.
In recent years, a majority of the justices of the Supreme Court have articulated a multilateralist view of US law that stands in marked contrast to the unilateralism of the Bush administration. For example, in a 2002 Virginia case, the high court ruled that the execution of the mentally retarded is forbidden by the US Constitution as "cruel and unusual punishment."
While most of the Court's analysis focused on domestic considerations, the justices also invoked a legal brief filed by the EU that described the overwhelming disapproval of the practice in the world community.
Likewise, in last year's ruling striking down a Texas prohibition on same-sex sodomy, the Court cited a 1967 Act of the English Parliament and a 1981 ruling of the European Court of Human Rights.
These justices regularly travel to colloquia on comparative constitutional law and see themselves as part of an international community of high court judges. It cannot have escaped their notice that to uphold indefinite detention of foreign nationals without judicial process would have made them virtual pariahs on the conference circuit.
I do not mean to suggest that the justices decided the Guantanamo Bay case as they did so that they would be toasted at their international cocktail parties. I contend that their concern for world opinion -- if that concern played the role I am suggesting it did -- was for their country, not for themselves. In less than four years, Bush and his advisers have cast aside much of the longstanding bipartisan consensus under which the US works through and with multilateral institutions like the UN.
Alarmed by this dramatic volte-face, the majority of justices in the Guantanamo Bay case may be trying to send assurances to the rest of the world that Bush does not speak for all Americans, not even the ones who put him in office in the first place. Of course, neoconservative critics of the high court will see in this explanation the confirmation of their worst fears.
Here are judges, they will say, who do not understand that they have no legitimate qualifications to act as agents of US foreign policy, a job committed by the Constitution to the president and (they may grudgingly admit) Congress. Yet the high court has considered cases with implications for foreign policy before.
In the most celebrated US case of the twentieth century, Brown v. Board of Education, the justices were probably influenced by a government brief explaining how racial segregation in the southern US undermined American efforts to compete with the Soviet Union for the hearts and minds of people in developing countries.
By holding that American apartheid violated the constitutional command of "equal protection of the laws," the court struck a blow for justice at home and US strategic interests abroad. To be sure, the Brown precedent is not entirely analogous, for there the Supreme Court gave weight to foreign policy considerations in just the way that the federal executive had urged.
In the Guantanamo Bay case, by contrast, the Bush administration argued that a ruling for the detainees would undermine the war effort by diverting manpower and material from the battlefield to the courtroom. But the majority opinion of justice John Paul Stevens paid little heed to the administration's parade of horribles.
A decorated World War II veteran, justice Stevens may well have thought that he was at least as qualified as the civilians in the Bush Justice Department to forecast the impact of the court's ruling on military efficiency. Or perhaps the justices were simply reacting to the administration's constant overreaching.
Yes, the existence of religious fanatics eager to kill large numbers of innocent US civilians warrants strong measures in response.
But the Supreme Court's rulings affirm the fundamental principle that even grave dangers do not warrant the sort of blanket deference to which the Bush administration believes it is entitled whenever it utters the words "war" and "terrorism."
Michael Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book Constitutional Law Stories tells the stories behind 15 leading constitutional cases.
Copyright: Project Syndicate
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