A few weeks ago ASIL, together with Harvard Law School, welcomed judges from national and international courts from around the world to a conference in Cambridge to address the value of dialogues emerging from transnational judicial networks.  While some have dismissed such efforts as “judicial tourism,” it became immediately apparent to me, as a mere observer, that for the judges invited to Harvard, some of whom had come from across the world for this two day event, the occasion was a coveted opportunity having little to do with sightseeing and everything to do with learning from others engaged in common tasks.  Notwithstanding all the controversy, particularly (if not exclusively) in the United States over the use or misuse of “foreign” or “international” law by national judges, what I saw at Harvard Law School was not a cabal intended to contaminate the “pure” interpretation of U.S. law or the U.S. Constitution but a group of people – not very different from the interest groups within the ASIL or the ASIL as a whole – trying to better educate themselves in order to improve their professional efforts.

When asked to identify what was the benefit of transjudicial networks, the judges’ answers were revealing.  They said that such occasions exposed them to new tools for interpreting the law – such as the principles of proportionality or margin of appreciation used by some European judges.  They said that they acquired skills in interpreting specialized areas of the law with which they were not familiar, such as international law.  That they became aware of scholarly work that had proven useful to some of their foreign “brethren” – or shared moments of bemusement over the inexplicable fact that academics everywhere produce so little that is of any use.  That transjudicial communications permitted information exchanges that lead to best practices on managing a courtroom or a docket, treating witnesses or advocates, or establishing equitable systems for disciplining corrupt judges.  And yes, sometimes they learned of judicial decisions rendered by others, which some of them thought relevant to the issues that they faced.

The judges recognized a second type of benefit.  Learning that judges elsewhere faced the same problems provided certain psychological advantages and emboldened them – or at least made criticism of their “activism” or “reticence” more tolerable.  Judicial gatherings were “empowering.”  They acknowledged that on rare occasions “empowerment” took more concrete form – as when a group of African judges, upon learning that a particular court in another African state was under siege from the government, which was shrinking judicial budgets, threatening judicial salaries, or even jailing uncooperative jurists, decided to act. On becoming aware of such threats to the judicial independence of others, involving individuals that they had gotten to know at prior conferences, judges wrote letters and in at least one instance, even participated in diplomatic efforts to uphold the rule of law.

All of these benefits were apparent at the conference workshop that I attended – on judicial ethics and the role of a judge in a democratic society.  The judges drew strength from their common values, reflected in their respective national codes of judicial ethics[2] as well as the Bangalore Principles of Judicial Conduct endorsed by ECOSOC in 2006.  (See Principles, attached as an annex to ECOSOS Resolution 2006/23, at http://www.unodc.org/pdf/corruption/corruption_judicial_res_e.pdf ). The latter distills from the experiences of judges everywhere those qualities that are essential to defending the rule of law, namely, independence, impartiality, integrity, propriety, equality, and competence. For the judges, as for those who drafted the Bangalore Principles, the most fundamental prerequisite to the rule of law was recognizing that judges must be able to exercise their function “independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.” (Value 1.1, Bangalore Principles).

The judges also saw common threats to these values, stemming from the other branches of their respective governments, the media, the general public, or, with respect to judges from international tribunals, from those that established their courts, such as the UN.  It was clear that judges from the developing world faced the most obvious and crude challenges to their independence. In the most extreme cases, the threats had come from génocidaires out to kill political or legal elites, including judges, as in Rwanda circa 1994 or Pol Pot’s Cambodia.  All too often, judges from Asia, Latin America, Africa, and in the former Yugoslavia have paid for their independence with their lives and many still live under real threat, including from authoritarian regimes distrustful of civilian courts and civilian justice.  Yet, when judges from “fragile” democracies spoke at the Harvard conference, they went out of their way to indicate that threats to judicial independence emerged in rich states of the north as well.

While they were diplomatic in their words, the foreign judges at Harvard had clearly heard about threats directed at U.S. judges, about proposals in the U.S. Congress to sanction judges for “relying” on foreign law, and about such things as Presidential signing statements intended to bypass the separation of powers.  They knew such events had stirred the concerns of U.S. judges and lawyers, including in the American Bar Association and the American Law Institute.  (See Michael Traynor, “Judicial Independence: A Cornerstone of Liberty,” President’s Letter in current issue of The ALI Reporter, at www.ali.org/ali.R3102_02-ALIComment.htm ).  They wanted to know whether those members of Congress who opposed references to foreign law were actually demanding that judges not read certain materials or, if the point was merely to prevent formal citation, whether the consequence would be duplicity or dishonesty -- that is silent reliance on what could no longer be mentioned.  They were also aware that some of the attacks on the judiciary in established democracies stemmed from the war on terror.  The elephant in that room was, of course, this fall’s passage of the U.S. Military Commissions Act (MCA), Public Law 109-366, 120 Stat. 2600 (Oct. 17, 2006)(for a text of the Act see http://thomas.loc.gov/cgi-bin/query/D?c109:3:./temp/~c109JBxAhI )(see also the ASIL Insight at http://www.asil.org/insights/2006/11/insights061114.html; for a related ASIL Insight see also http://www.asil.org/insights/2006/12/insights061214.html  ).

While the judges at Harvard did not dwell on the MCA and merely resolved to continue to discuss the challenges to the judiciary posed by the war on terror in subsequent meetings, it was impossible for those of us familiar with the MCA to avoid seeing the threat it poses to the laudable Bangalore Principles.  A law that prohibits judicial review of the conditions of confinement or custodial treatment of any non-citizen of the U.S., including resident aliens, deemed to be an enemy combatant; that prohibits U.S. judges from applying the Geneva Conventions to such individuals; that restricts the scope of war crimes prosecutions that can be brought by way of implementing Common Article 3 of those treaties; that authorizes unusual military commissions that had just previously been found by the U.S.’s own Supreme Court to be unlawful under Common Article 3; and that goes so far as to forbid U.S. judges from looking to how the Geneva Conventions have been interpreted elsewhere, is a fundamental affront to judicial independence that sends a chilling message to judges everywhere from the nation that was once the leading proponent of the rule of law.  Irrespective of the justifications offered for its distinct provisions, the cumulative effect of a law that strips away habeas review, fails to include any rights for either the determination of status, bringing of charges or a speedy trial, permits the exclusion of the defendant from portions of his trial, and anticipates the introduction of coerced testimony and secret evidence not shown to the accused, while giving the President exclusive authority to determine which methods of treatment not otherwise specifically barred as “war crimes” remain feasible (but in all probability never challengeable in court), is unmistakable.  Such a law, had it been passed by any other country, would have been, not very long ago, denounced by our own State Department as a fundamental violation of the separation of powers and of  rights to due process and fair trial.  The MCA ties the hands of the crucial branch in a democracy charged with protecting all individuals, especially vulnerable minorities, from governmental abuse.

That the United States is now ceding so much of the rule of law to its “war” on terror sends a chilling message of disempowerment to judges everywhere.  It is a message that will surely be conveyed directly through other “transnational networks” consisting of counter-terrorism law enforcement personnel, and not judges -- including those working with the UN Security Council’s counter-terrorism bureaucracy.  In such places, the MCA is likely to be sold as the very latest “best practice” to combat terror, the last word on how best to “balance” security and freedom from a historic defender of human rights – but also the kind of measure that would have drawn praise from that enemy of human rights who died as I write these lines, Augusto Pinochet.  Independent judges everywhere are likely to see the MCA as an internationally unlawful act that expresses in no uncertain terms its distaste for the value of (in the words of Common Article 3 of the Geneva Conventions) “regularly constituted courts according all judicial guarantees which are regarded as indispensable by civilized peoples,” while, on its face, seeming to uphold it.[3]

Of course, the affront felt by judges is nothing as compared to the harms that the Act sanctions against non-U.S. citizens anywhere who are branded as enemy combatants, including Arab-Americans who since 9/11 have been concerned about being targeted at airports, at the border, for contributions to charity, or even for having a non-Anglicized name.  (See, e.g., Rick Hampson,“Fear ‘as bad as after 9/11,” USA Today, Dec. 13, 2006, at 1.)  I never thought that when I became a naturalized U.S. citizen at the age of 18, I was potentially protecting myself from so much – or that my neighbors and relatives, protected only by a green card, would one day be exposed to so much possible harm from the government that afforded all of us sanctuary.

It is unclear whether the MCA, and especially its habeas stripping provisions, will withstand constitutional attack.  Its bizarre ban on judges’ use of international law to interpret international law seeks to avoid a separation of powers challenge by appearing to be a limitation on the interpretation of the Act itself and not on the undoubted right of independent judges to interpret treaties (and the law) for themselves.   As usual, the bulwark of liberty will remain our courts.

We are told by some who appear to have forgotten their basic civics that the MCA constitutes a “democratic” correction to our “unaccountable” judiciary.  It is true that the Act gathered a majority in two houses of Congress and the signature of the President but I wonder how many of our fellow citizens, if they remember what judicial review is for, really want what the Act allows -- or the kind of “democracy” that it presumably aims to protect.  And I wonder, if a majority of us really supports this fundamental affront to an independent judiciary, what other groups that majority may yet decide do not require protection by Article III judges.