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.
Detention, Treatment, and Trial of Certain Non-citizens in the War against Terrorism
(b) In light of grave acts of terrorism and threats of terrorism, including the terrorist attacks on September 11, 2001, on the headquarters of the United States Department of Defense in the national capital region, on the World Trade Center in New York, and on civilian aircraft such as in Pennsylvania, I proclaimed a national emergency on September 14, 2001 (Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks).
Socially responsible enterprise in Cuba: a positive role model for Corporate Social Responsibility?’
This article examines the unique institutional environment of socialist Cuba, where currently a process of controlled marketization and expansion of private enterprise is taking place. The article investigates business behaviour in Cuba with particular reference to implicit assumptions relating to socially responsible enterprise, or Corporate Social Responsibility (CSR) as the term is understood in Western Liberal Democracies. It draws upon a series of interviews with business practitioners and business commentators (both Cuban and non-Cuban residents on the island). The interviews focused on the participants’ awareness of business ethics and socially responsible enterprise, and the cultural differences in assumptions and expectations relating to the concept of CSR between the Cuban and non-Cuban interviewees. We find that Cuba at this early stage of tentative marketization presents a positive role model of socially responsible enterprise. Both the highly regulated State economy and the embedded norms and values of social equity that have emerged as a consequence of Cuba’s socialist revolution facilitate business social responsibility. The relevance of this research to current debates in relation to CSR is discussed and it is argued that capitalist economies may similarly benefit from tighter regulatory control and by cultivating more pro-social business norms that prioritise ethical over economic concerns.