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.
Shadowing the Flag: Extending the Habeas Writ Beyond Guantanamo
The writ of habeas corpus activates the courts’ duty to check the arbitrary or unlawful restraints by the executive on individual liberty. In times of war, the courts have been compelled to determine whether the writ is available to individuals held by the executive outside of the territorial boundaries of the United States. The Supreme Court in Johnson v. Eisentrager, in which World War II detainees were held in Germany, answered in the negative, while in Boumediene v. Bush, involving post-9 11 detainees housed in Guantanamo, reached the opposite conclusion. Operating within these two guideposts, the U.S. Court of Appeals for the District of Columbia Circuit in al Maqaleh v. Gates decided that three detainees held in Bagram Air Base, Afghanistan are not entitled to the constitutional habeas privilege. The purpose of this Article is to explain why the D.C. Circuit got it wrong. Part I provides an overview of the facts and relevant law that formed the basis for the decision. Part II will show that the court misapplied the basic factors set forth initially by the Court in Eisentrager and later clarified by it in Boumediene. Part III will contain a proposed framework that reorients and reframes these factors in order to make habeas jurisdiction analyses more workable and consistent with the historical justifications for the writ, separation of powers considerations, and governing case law. Part IV applies this framework to the Bagram petitions and in doing so highlights the problematics of the D.C. Circuit’s decision. In short, under both existing standards and the suggested new way of looking at questions of wartime habeas jurisdiction, I posit that the petitions should not have been dismissed. If left to stand, al Maqaleh will not only cast the detainees into an indefinite legal abyss, but will place the executive beyond the courts’ traditional constitutional checking duties, precisely when the wartime executive is most tempted to act outside of established law – that is, when judicial review is most critically needed.
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