After the Republican Party confirmed Donald Trump as its candidate for the U.S. Presidency in July 2016, the Seattle Times editorial page published my opinion piece entitled, “Why Trump Would be a Good President.” I was prompted to write something in response to another Republican lawyer’s argument in the Seattle Times comparing Mr. Trump to Adolph Hitler. His piece shamelessly included an image of a Nazi swastika, although I suspect the editorial page and not the author thought that meme would cleverly get the point across. Deploying a symbol that represents the Shoah more than anything else to attack Mr. Trump was despicable in and of itself, but I also considered, then and now, Mr. Trump to be the far better candidate and I stated my argument.
Within a week or two after the Seattle Times published my article, Phoebe Keane, a researcher from the BBC, contacted me to request an interview about my argument in support of Trump for possible use in an upcoming “The Inquiry” broadcast. Flattered, of course, and amazed that someone in London read the Seattle newspaper, I was happy to talk about it and gave her an earful of reasons why there was nothing to fear about a Trump Presidency. Her editor chose not to use my contribution, but when I caught the overnight broadcast it sounded as if what I told her informed the choices of the interviews they did use.
The conclusion of The Inquiry report was that Mr. Trump’s statements, some of which are admittedly unorthodox or worse, were so dangerous that he could destabilize the world order. I emailed Ms. Keane to praise the report and take issue with the conclusion Trump was a destabilizing force. I said from my vantage point, it appeared instability was already in evidence by, among other events, the Brexit vote, renewed interest in Scotland to exit the UK, issues throughout the EU driven in part by the mass migration of Muslims, civil war in Ukraine, Russian interests, troubles in all of north, central, and eastern Africa, Turkey, the Middle East, Iran, Afghanistan and Pakistan, South China Sea territorial claims, changes in China, the nut job in North Korea, the assassination of journalists and mayors in Mexico, Venezuela’s meltdown, and the Philippines’ noise about withdrawing from the UN, all of which are of interest to the U.S. I argued it was hard to find stability anywhere, except maybe in New Zealand which is, in any event regularly shaken by earthquakes. Not so stable there either.
Her editor, Richard Knight, wrote me back right away to take credit for the report’s conclusion, and to explain to me his view that a Trump presidency would jeopardize “world stability”. While he replied “fair point” when I asked what part of this stable world he had in mind, he held fast to his fears about Mr. Trump.
One of the arguments I advanced to the BBC reporters was that the U.S. President, in fact, has very little power and, consequently, there is little need for alarm. He has the bully pulpit, for sure, a very active Twitter account and a tendency to say remarkable things, but the American Executive is only one of three co-equal branches of government, and the other two, Congress and the Courts, are empowered to rein in an otherwise dangerous President. Since the election, the power of the courts to disrupt the President’s initiatives was shown dramatically when he attempted to temporarily halt the flow of immigrants from seven mostly Muslim countries and several Democratic State Attorneys General, including my own, Robert Ferguson filed suit, and several all too ready federal judges, like Lilliputians lashing Gulliver down before he could get off the beach, tied Trump up within days of when he issued his immigration order.
I was reminded of my BBC interview recently when I came across U.S. Supreme Court Associate Justice Stephen Breyer’s work, The Court and the World: American Law and the New Global Realities (Alfred A. Knopf 2015).
While not a new publication, I was intrigued by his introductory remarks about the Court’s attention to the workings of the Foreign Intelligence Surveillance Act (FISA) and its court, the Foreign Intelligence Surveillance Court, and the status of Jerusalem. The FISA court acts ex parte and in secret and is as near as we have come in the U.S. to a Star Chamber; its workings are under scrutiny as I write this. And only a few weeks ago, Mr. Trump announced that the American Embassy in Israel would be moved to Jerusalem which, by the way, was what Congress overwhelmingly decreed in 1995 when Bill Clinton was President. Nevertheless, Trump’s declaration prompted Palestinian supporters throughout the world to riot in protest.
Justice Breyer’s discussion of these issues and the central role of the U.S. Supreme Court in preserving world order fully two years before President Trump was sworn in is timely given current events.
Stephen Breyer grew up in San Francisco, obtained his first degree in Philosophy from Stanford University, a second degree from Magdalen College Oxford, and his law degree from Harvard. He never entered private practice but worked in various government positions and then taught law school before becoming an appellate judge in 1980. President Clinton elevated him to the Supreme Court in 1990 where he is accurately said to lead the Court’s liberal wing. He is a deep thinker and his work, The Court and the World, provides a philosophical and accessible explanation of the many ways the U.S. Supreme Court interacts with the world’s legal order.
Befitting a scholar of the classics, Breyer begins his analysis with Cicero who favored a constitutional republic in which, of course, persuasion rather than violence is the instrument of political power. He translates Cicero’s aphorism silent enim leges inter arma, “when the cannons roar, the laws fall silent,” to define the dilemma of our time, comparing the exigencies of the war on terror to Abraham Lincoln’s Civil War suspension of the writ of habeas corpus. Presciently, it seems by some current pundits’ reports, Breyer found comfort in Cicero’s circumstances “where armed gangs had taken control of the streets. They were never punished, for their leaders had been elected to public office.” Some argue similar circumstances also describe Trump’s election. Indeed, the lawyer I disputed in the Seattle Times made that same thuggery argument, and my hot-headed response was to argue if people were not rioting in the streets they had better begin.
As one who in more sober moments has practiced law for over 40 years, studied and written about comparative legal systems, and is qualified as an international commercial arbitrator, I believe it is useful to keep three facts in mind while reading Breyer’s book. First, the American legal system is based on the common law. That means much of the American legal landscape is created by judges who issue decisions by written opinion. To be sure, legislatures and, to increasingly significant degree, administrative agencies create law, but even those laws come before judges for application or review and, most of the time, the court’s decision puts a gloss on the law, whether to clarify its application or declare it is no longer binding on anybody. Second, ours is a republic of state and federal domains, each jealous of its own prerogatives. And third, a fundamental basis for legal analysis in our system is that government is limited to enumerated powers set forth in the Constitution establishing the government.
Breyer contrasts our approach of enumerated powers, that is, those coming from the people’s grant of power to the government, with much of the rest of the Western world in which a Crown with unlimited power grants or better yet, relinquishes, such power as it sees fit. Even the Magna Carta, an essential founding document, is accurately understood not as a grant of power to the King, but, instead a release of power from the King in deference to his Barons.
Breyer argues, in what I believe is an overstatement, that world affairs, including commerce and the ease of travel and communication, have drawn the Supreme Court more profoundly into international affairs and, consequently, to cases involving foreign matters that require the Court to become better acquainted with foreign legal systems. I say overstatement because if we measure the phenomena of globalization by the movement of people, the increase in world trade and finance, and a rapid increase in communications, one can reasonably argue the period around 1900 was as, if not more, globalized than today.
Breyer completely omits reference to or use of law arising in the Islamic or Communist traditions, or for that matter the laws and decisions of indigenous people. In the U.S., the Native American tribes are considered to be sovereign nations and most have their own courts.
His immediate objective is to soothe the nerves of those who complain loudest about the influence of foreign law on Supreme Court decisions, and he does so by showing the many ways our courts have confronted foreign law without controversy. Some are mundane, like the laws governing familial relations, such as the Hague Convention on the Civil Aspects of International Child Abduction. Many other less mundane examples exist. A U.S. statute enables discovery of documents and other information from witnesses located in the U.S. in support of claims pending in a foreign tribunal. And the U.S. is a signatory to the New York Convention on the Enforcement of Foreign Arbitral Awards, which enables a successful party to enforce an arbitral award rendered outside the U.S. by seizing assets located in the U.S.
Under the U.S. Constitution, treaties are the supreme law of the land and every state court is required to comply with treaty mandates. Its language, written in 1789, is as clear today as it was then: “all treaties made….under the Authority of the United States, shall be the supreme Law of the Land: and the Judges in every State shall be bound thereby.”
Breyer begins with the constitutional issues arising from foreign threats to our national security. Those have always been with us. While we might consider the War of 1812 when British forces burned Washington, D.C. to the ground, Britain’s self-interested support of the Confederacy during the U.S. Civil War, German Foreign Secretary Zimmerman’s 1913 telegram to his Mexican counterpart offering to return large parts of the American southwest to Mexico in exchange for Mexico’s support in what became the First World War, or the December 7, 1941 bombing of the U.S. Naval Base at Pearl Harbor, all those threats pale in comparison to what happened on September 11, 2001.
It occurred on a Monday morning. I was beginning an arbitration of a large construction claim and, as was my usual practice, I left home for the office early to review the day’s planned events. When I tuned in to my usual rock and roll radio station, the DJ oddly announced they would provide a full report at the half hour. When I arrived at my office building, female staff were hurriedly leaving in tears. An hour or so later, at the hearing offices, TV monitors showed the World Trade Towers in flames. When the first tower collapsed it was obvious this was no accident, and I said to no one in particular, “there go our civil liberties.”
By noon on the West Coast the attacks were over. Both towers collapsed, taking two other large buildings in the World Trade Center complex with them, an airliner had hit the Pentagon, and another crashed in Pennsylvania. The FAA grounded all airplanes flying in or to the U.S.; hundreds of airliners had to find a place to land immediately, and the skies became eerily silent. When we returned to the hearing after the lunch hour, my opposing counsel asked me if we could jointly ask the arbitrator to postpone the rest of the day’s hearing. He said his wife was afraid and wanted him to come home. Of course, I replied. The arbitrator, an old bull retired Army Corps of Engineers’ officer, resisted our request at first, claiming “that is exactly what they want us to do,” but he eventually gave in.
The administration believed it knew exactly who was to blame for the attack, and President George W. Bush in classic Texan cowboy style ordered the Afghanistan Taliban to surrender Osama bin Laden, “or else.” Shortly thereafter, the Congress authorized the President as Commander in Chief to exercise all means necessary to defend American interests, the war on terror began and it continues to this day.
Breyer separates the Court’s responses to Presidential power into phases, evolving from “silence” to “no blank check”. His suggestion that the responses to Presidential power evolved to accord less deference to the President is somewhat overstated, but I think it would be accurate to say the Court’s responses today are not what they were in the beginning. The Court’s 19th and 20th Century decisions tended inconsistently to defer to the President’s exercise of power, often declaiming authority to rule on what they called “political questions.”
On occasion, after the Court ruled the President exceeded his power, the President essentially ignored the Court’s rulings. In the 1830s when the Court ruled that Georgia land where gold was discovered belonged to the Cherokee tribe, President Andrew Jackson supposedly said, “John Marshall (then Chief Justice of the Supreme Court) has made his decision; now let him enforce it.” During the Civil War, President Lincoln suspended the writ of habeas corpus, the Court ruled against him, and Lincoln ignored the Court. But in other national crises, the Court has upheld Presidential power in ways that seem unimaginable today. In Korematsu, the Court upheld President Roosevelt’s order interring over 70,000 U.S. citizens of Japanese descent at the outset of WW2. Calling that decision one of the three worst in U.S. history, Breyer is optimistic those days are behind us.
In Chapter 4, titled “No Blank Check” Breyer addresses the cases emanating from the detention of terrorists at the Guantanamo Naval Base in Cuba. His argument is premised on a now “widespread public acceptance of the role of the courts as guarantors of basic freedoms” that he concludes is one result of the Court’s decision in Brown v. Board of Education where the Court outlawed racial segregation in public schools. He also relies on the principles reflected in the UN’s 1948 Universal Declaration of Human Rights, the 1949 Geneva Conventions, the Human Rights Court in Strasbourg the Council of Europe established in 1959, and international conventions governing torture, genocide (that the U.S. has not ratified) and the rights of children.
While it is true the Court outlawed racial segregation in public schools in 1954 and that decision was welcomed in many quarters, to claim widespread acceptance of the role of the courts in effecting such change is wishful thinking. President Eisenhower had to place the Arkansas National Guard under federal control and deploy the 101st Airborne Division of the U.S. Army to escort black children to school through a gauntlet of abusive white parents. Similar reactions erupted when federal judges ordered school busing in order to integrate public schools in the 1970’s.
I would argue instead, that the unelected and essentially unaccountable Court took this power unto itself out of its own sense of a need for moral justice. The same aggrandizement of power was demonstrated in the Guantanamo cases and later after Donald Trump was elected and he attempted to halt the flow of immigrants from terrorist havens. In both cases, exactly what is moral or just is, like beauty, in the eye of the beholder. That reasonable minds might disagree over these fundamental issues was brought home when the European Court of Human Rights issued a report on the U.S. rendition program. It condemned the U.S. practice of seizing alleged terrorists from European streets, and taking them to unknown “black” sites for interrogation.
Relying on the ECHR report, the Financial Times’ June 8, 2006 lead editorial cited Associate Supreme Court Justice Sandra Day O’Conner’s plea that we not wield the tools of tyrants and the FT asked, “What are we trying to save?” My June 15, 2006 letter answered the question simply: “Western civilization” and I advised that we should avoid maudlin pleas in favor of Winston Churchill’s unvarnished advice to defeat the enemy by whatever means are necessary. That morning, an email from a university professor from northern England who wished more of his countrymen understood the stakes informed me that the FT had published my letter.
The Guantanamo cases began with the Court’s rejection of the Bush administration’s argument that Guantanamo was outside U.S. jurisdiction and, therefore, its detainees were not entitled to the right of habeas corpus in a case called Rasul. Justice Stevens, writing for the 6-3 majority wrote:
Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
A companion case, Hamdi, involved a U.S citizen also held at Guantanamo. Justice O’Connor concluded, “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Then in Hamdan, the Court ruled 5-4 that the government’s use of special military commissions to try the detainees was unlawful. And in a fourth case, Boumediene, that Breyer argues is the most important of the first four, the Court held 5-4 that Congress was without power to suspend the writ of habeas corpus under its Constitutional power to suspend the writ “when in Cases of Rebellion or Invasions the public Safety may require it,” because there was no rebellion or invasion. That one vote would produce the opposite outcome tells us these are not easy issues to decide and reasonable minds can disagree.
These Guantanamo decisions reflect the Court’s will, but the fact is no detainee has yet been tried for his alleged crimes, some have been transferred to others’ custody, and while President Obama swapped five senior Taliban for an AWOL soldier hostage, all the others have been and continue to be held at the President’s pleasure. Two political facts of life remain, one evident in the American political reality, the other revealed in British wisdom.
The U.S. is signatory to a treaty called the Vienna Convention on Consular Relations. It requires the police to notify a foreign consulate when they arrest a foreign citizen. Breyer reports that the Court was confronted with several cases in which foreign citizens were arrested, tried, convicted, sentenced and in one case in Virginia put to death without notice to the defendant’s consular officer. In Medellin, a Mexican citizen was arrested, tried in a Texas court and sentenced to death. The International Court of Justice had ruled that his international rights were violated because Medellin was not advised of his right to consular notification, but in his appeal to the U.S. Supreme Court, the Court ruled the Vienna Convention was not self-executing, and because Congress had not enacted enabling legislation, the decision of the ICJ was not binding on the State of Texas. Texas Attorney General Ted Cruz, now U.S. Senator, argued the case for the State of Texas. At one time its own republic, Texas marches to the beat of its own drummer, as well it might under our federal system.
Britain’s exercise of executive power was on display when confronted with Senator (as he was then known) August Pinochet’s 1989 arrest at London Bridge hospital where he was recuperating from surgery. A Spanish Magistrate, when he learned Pinochet was in London, had issued an international warrant for his arrest for crimes of genocide and terrorism, including murder and torture allegedly committed during Pinochet’s 17-year rule as dictator of Chile. A diplomatic crisis erupted because, ordinarily, heads of state and former heads of state are entitled to diplomatic immunity under international law, and he was traveling on a diplomatic passport. Following his arrest, Pinochet’s lawyers promptly asked a London magistrate to quash the warrant relying on, among other authorities, a U.S. Supreme Court decision in 1842 and the U.S.’s Foreign Sovereign Immunities Act. The Blair government supported Pinochet’s request, the magistrate granted the motion to quash the warrant, and the matter proceeded to an appeal before a tribunal of five members of the House of Lords, with Lord Slynn of Hadley as the Chief Judge.
A few years after the event, I met Lord Slynn at a London Court of International Arbitration Symposium at Tylney Hall. I did not know then who he was or what had happened. I’ve since learned he was a very highly respected jurist; he was kind to me and I was sorry to read he passed in 2009. Probably detecting that I was a new participant at Tylney Hall, he approached me, and handed me his card, and I introduced myself. When I saw his title, I asked, “how does an American lawyer address a member of the House of Lords?” He graciously replied, “you can call me Gordon.”
In the minority of a 3-2 decision, Lord Slynn concluded murder was not an international crime, but Pinochet was entitled to diplomatic immunity against the charge of torture and the appeal should be allowed. Unfortunately, one of the majority, Lord Hoffman, it turned out, was married to a woman employed by Amnesty International, and they had appeared in the matter in support of the Spanish warrant. The decision was set aside, and a new tribunal considered the matter again and by 6-1 granted the appeal, which re-instated the Spanish arrest warrant. But Home Secretary Jack Straw saw to it that, rather than delivering up Pinochet to the Spanish court, he was promptly put on a flight to Chile.
The tension between an Executive charged with protecting national security and preserving international relations as it thinks best and an independent judiciary that prefers another outcome will always exist in a democratic republic like ours.
Justice Breyer concludes his excellent account of the Court’s work by teaching us that “the important divisions in the world are not geographical, racial, or religious but between those who believe in a rule of law and those who do not.” I hope he is correct in his analysis. He rightly reminds us that the rule of law is but one defense to Camus’ plague germ, an allegory for totalitarianism, which is always present in the body politic even when dormant.
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