Think tank urges tough questions for Kagan on the role of international law in U.S. courts

Andrew Gonyea
Communications Assistant

As Elena Kagan’s Senate confirmation hearings for the Supreme Court continue today, the Heritage Foundation is urging tough questions for Kagan concerning her views on international law and American foreign policy.

Professor Jeremy Rabkin of the George Mason University School of Law explained at a recent Heritage event that a trend we are seeing in the courts and among commentators is an increasing willingness to embrace international institutions, customs and the “law of nations” in determining legal outcomes. Rabkin views this as a “disturbing” trend, and sees far-reaching implications for American sovereignty and national security.

To establish this trend, Rabkin referred to several recent court cases in which Supreme Court justices cited outside laws and customs as influencers for arriving at decisions. For example, in one case, the Court referred to a practice as being “overwhelmingly disapproved” in the international community. In another, the Court cited rulings of foreign courts as evidence of international support for abolishing a particular law.

While the Court’s actual holdings did not hinge on those citations, in each of those cases, previous rulings were reversed. According to Rabkin, this fact suggests two things: one, a desire among certain justices to create a good impression in the international community, and two, an attempt to reinforce legal arguments that may otherwise have been viewed as tenuous.

Getting to implications for American sovereignty and national security, Rabkin discussed judicial monitoring of military action abroad. In recent cases, he explained, the Court has granted Guantanamo detainees access to U.S. courts to appeal determinations of military hearings, and also told the military, for the first time, how to interpret the 1949 Geneva Convention on Prisoners of War. Rabkin believes it is not a coincidence that the same justices who cited, or did not protest, appeals to international authority were those justices who went against precedents and granted enemy combatants the rights in question.

Looking to future challenges for the Court, Rabkin posed a couple questions: “If courts can say which military prisoners should be released, why leave the military a free hand in deciding which enemies can be targeted in missile strikes or infantry attacks? If courts must ensure that innocents are not detained, why not ensure that innocents are not killed in improper military actions?”

Robert Alt, Senior Legal Fellow and Deputy Director, Center for Legal and Judicial Studies, and Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network, agreed that a Supreme Court which is trending towards international alignment is much more likely to look to international laws and customs in deciding the permissibility of such actions as targeted drone killings in Afghanistan and Pakistan and detainment practices, both of which have drawn criticism from the international community.

All of this, according to Rabkin, is why it is important to get Kagan to clarify her stance on these issues. Although it may be in her interest to be less-than-forthright, in the interest of protecting American sovereignty and security, senators must make every attempt to hold her to account.