Academic journal article
By Little, Laura E.
The George Washington International Law Review , Vol. 38, No. 1
Congress is dead wrong this time. And its timing couldn't have been worse. With terrorism cases flowing into federal courts, the courts face hard decisions balancing civil liberties and effective law enforcement. To confront this challenge effectively, federal courts need-now more than ever-to look for guidance in international and comparative law materials. Indeed, an expanding chorus of scholars and judges urge federal adjudicators to explore transnational materials in making their decisions.1 Although inconsistent throughout its case load, the U.S. Supreme Court is even coming around to the wisdom of this practice.2 But loud voices in Congress have urged precisely the contrary view. Two legislative initiatives from the 109th Congress seek to hog-tie the federal courts as they grapple with difficult issues of civil liberties and the war on
terror, dramatically curtailing federal court freedom to consider materials from other countries or international organizations. One initiative would have confined courts of the United States to only one non-American source: "English constitutional and [English] common law up until the time of the adoption of the Constitution of the United States."3 The other expresses disapproval of courts considering "foreign" law unless it informs "an understanding of the original meaning of the Constitution." While not initiated solely for the purpose of terrorism cases, these prohibitions-and the attitude they reflect-would have a particularly deleterious effect in that context. The initiatives will most likely die the death of other jurisdictional stripping maneuvers before them, performing only the symbolic function of political theater. Yet symbolism can reflect an important political reality and cause harmful influence irrespective of the initiatives' actual fate in the legislative process.
Terrorism is an international problem. Terrorism is a problem shared by other countries. Effective solutions to terrorism have international implications and require international cooperation.4 Considering that civil liberties issues implicate concerns universal to all of humanity, I suggest it unremarkable that federal courts stand to gain much from the experience of other countries in battling terrorism.5 One would also think that the proscriptive, prescriptive, and precatory provisions of international law would be an important, if not in some cases mandatory, reference point in negotiating the tension between civil liberties and civil rights. My goal here is not to dignify Congress's suggestions to the contrary with rigorous constitutional critique. I use the initiatives instead as the impetus for a review of reasons why prudence counsels the courts of the United States to consider transnational material in adjudicating terrorism issues.
In this Article, I highlight the practical and methodological reasons for using transnational materials. To the extent analytically appropriate, I steer clear of politically charged arguments such as one that would urge the U.S. government to defer to international organizations in choosing among alternatives in combating terrorism. Similarly, I swerve away from queries about the potential authority (and supremacy) of non-U.S. law in disposing of cases filed in U.S. courts-authority that could be derived from treaties or international law received into U.S. law.6 Unabashedly trying to reduce controversy and mystery in this enterprise, I pursue the modest goal of convincing litigants and courts that transnational materials are useful and appropriate guides to adjudicating terrorism cases. To that end, I focus on four arguments why federal courts should use these materials: (1) the practice serves common sense; (2) the practice reflects methodologically good judging; (3) the practice serves our constitutional structure; and (4) the practice promotes the rule of law and world governance. While a rich literature debates use of transnational material in the United States, this Article takes a new angle by analyzing the practice in light of concerns unique to federal court adjudication and the specific enterprise of deciding terrorism cases. …