Judicial Review as Soft Power: How the Courts Can Help Us Win the Post-9/11 Conflict
The American military efforts in Afghanistan and Iraq are not yielding desired results and, even assuming they were, such military success would not be sufficient to prevail in the war against transnational terrorism. The United States must engage in the battle of hearts and minds in order to achieve meaningful safety and a lasting respite from the specter of terrorist activity. To participate in this more intangible, intellectual battle, the United States will need to utilize its "soft power," or its ability to draw nations or peoples towards its policy preferences through attraction, as distinct from "hard power," in which foreign conduct is shaped by military or economic coercion. The question becomes what soft power resources are available to -- and may be credibly invoked by -- the United States? This Article argues that the American constitutional design, particularly its commitment to the rule of law, is an aspect of soft power that, if communicated externally, will attract moderate Muslims and others to American interests and help quell the reach and appeal of terrorists bent on destroying the United States. Such "legal soft power" will resonate with the international audience only if we adhere to fundamental American principles in actuality -- they must be more than mere platitudes. Accordingly, I suggest that the Supreme Court's robust evaluation of individual rights claims in the post-9/11 context demonstrates that the judiciary has been faithful to the rule of law even in times of national crisis and stress. It is not the outcomes that necessarily shows this, but the genuine process within which federal actions may be challenged. If it is the case that the rule of law may be an element of soft power conceptually and that the judicial decisionmaking has honored it in practice, then it would benefit American national security interests if others in the world were made aware of the American constitutional scheme, one of separation of powers and judicial review, and the Supreme Court's fidelity to the Constitution in times of war. Such information may make it more likely that other nations and peoples will be attracted to American interests. In an odd sense, the judicial branch may be a positive instrument of foreign policy and a beneficial tool in America's current war -- even if it strikes down executive or legislative actions in the government's prosecution of the war itself.
First Korematsu and Now Ashcroft v. Iqbal: The Latest Chapter in the Wartime Supreme Court’s Disregard for Claims of Discrimination
Upon his arrest in New York in the aftermath of the September 11, 2001, attacks for charges related to identity theft, Javaid Iqbal, a Muslim male, was classified as a person of “high interest” and thereafter placed in a federal prison facility housing “September 11 detainees.” Iqbal, claiming that this classification was premised on his race, religion, and national origin, and not based on any evidence tying him to terrorism, filed suit against John Ashcroft, Robert Mueller, and others. Ashcroft and Mueller moved to dismiss the complaint on the grounds that Iqbal’s allegations were insufficient to overcome their entitlement to qualified immunity. The district court and U.S. Court of Appeals for the Second Circuit disagreed, denying the motion. Last term, the Supreme Court, in a 5-4 ruling, reversed, holding that Iqbal’s allegations of discrimination were implausible under the pleading standards announced in Bell Atlantic v. Twombly, and finding unremarkable the accepted fact that the government targeted Muslims in the wake of 9/11. The purpose of this Article is to challenge both the procedural and substantive rulings in Iqbal. In particular: Part I will provide an overview of the factual background and procedural history of the case, Part II will examine the arguments put before the Court by the parties and amici, Part III will summarize the Court’s decision and the dissenting opinions, while Part IV will argue that the Court not only drastically altered the traditional pleading standards that apply to civil cases, but erroneously concluded that Iqbal’s allegations of constitutional violations were insufficient at the motion to dismiss stage. It also offers an alternative framework as to how motions to dismiss for failure to state a claim and claims of discrimination in the wartime context should be assessed by courts when and if Iqbal is revisited. Though Iqbal has largely escaped serious scholarly attention, hundreds of federal court orders are now relying upon it for its explication of the pleading requirements under Rule 8(a)(2) and even for its approval of racial profiling. This Article sheds light on Iqbal and charges that, because it dissolved notice pleading and sanctioned blanket profiling of Muslims for national security reasons, it is one of the worst decisions of our generation. It is, in other words, 9/11’s Korematsu.
Accountability perception of Thai Government: to whom and what counts
PurposePublic sector entities face conflicting demands from stakeholders. The literature suggests identifying and prioritizing stakeholders can improve accountability. Thailand, an emerging economy, and currently under military rule, provides an interesting context to investigate stakeholder tensions. The purpose of this paper is to investigate how and why the Thai Government bureaucrats prioritize their stakeholders.Design/methodology/approachThe study draws on the managerial branch of stakeholder theory and stakeholder salience theory to examine the importance of various stakeholders and of the stakeholders’ salient attributes perceived by the Thai Government bureaucrats in discharging its accountability. The study uses a survey questionnaire mailed out to the central government departments in Thailand.FindingsThe study finds that single most important stakeholder is the Office of the Auditor-General. The public is perceived as the second. This is dissimilar to the western-centric accountability focus on the public, and challenges claims by the Thai military coup that it will bring democratic rule. “Legal power” supporting the stakeholders’ claims for government accountability is the most influential attribute in determining stakeholder importance and prioritizing attention for government bureaucrat’s discharge of its accountability.Originality/valueSuch findings increase understanding of the applicability of stakeholder theory and stakeholder salience theory in the context of military rule in emerging economy countries such as Thailand. This paper also provides suggestions of how stakeholders may shape their salience in order to gain priority. This also provides an immediate suggestion for reforms of the Thai regulatory frameworks in prioritizing stakeholders and promoting the government’s greater accountability.