Deborah Pearlstein is a visiting research scholar at the Woodrow Wilson School of Public and International Affairs at Princeton University. From 2003-2007, she was director of the U.S. Law and Security Program at Human Rights First.
When the Senate rejected President Reagan's nomination of Judge Robert Bork to the U.S. Supreme Court close to 20 years ago, a half-dozen books and numerous articles were written marking the nomination as a watershed in Supreme Court politics. Opponents of the nominee mobilized more aggressively, more successfully, and in a more organized way than had been previously done. The 58-to-42 vote was the largest margin by which the Senate had ever rejected a Supreme Court nominee.
Addressing an audience of academic and business leaders in New York City earlier this month, Department of Homeland Security Secretary Michael Chertoff emphasized the importance of risk-management principles in designing an effective approach to minimizing the threat of terrorism. “In business,” Chertoff said, “[y]ou weigh the risks of a particular action, you conduct a cost-benefit analysis, and you factor these into your considerations.” Where the costs of any security strategy -- like investing major federal resources in disaster preparedness for the residents of Rochester, Minnesota -- outweigh its plausible benefits, we are better off without it.
The Supreme Court's growing docket of cases involving international law seems to have left both Congress and the White House with a bad case of the shakes. Between Senator John Cornyn's proposed resolution last month stating that judicial consideration of foreign judgments “threatens the sovereignty of the United States,” and the Justice Department's scramble before the Supreme Court last week to avoid judicial enforcement of treaty obligations Congress willingly ratified, one would think the U.S. justice system is facing imminent attack by marauding members of the French supreme court.
Almost a year since the first photos of torture from Abu Ghraib appeared, there remains a steady stream of new documents out of Afghanistan and Iraq revealing an ever-larger number of detainees brutalized in U.S. custody. One might have imagined that evidence of such a systemic problem in U.S. detention and interrogation operations (roundly condemned by most on Capitol Hill) would lead lawmakers to seek more effective enforcement mechanisms and stiffer penalties for violators. Yet on the contrary, policy-makers' interest in embracing and regulating “highly coercive” methods of interrogation (based on a realpolitik acceptance that harsh coercion is happening anyway) is emerging as an early agenda item in the first new Congress since Abu Ghraib.
While the Bush administration contemplates long-term options for detaining the 500 or so foreign nationals still held at the U.S. Naval Base at Guantanamo Bay, it might do well to take a look at the Supreme Court's technical decision last week involving the government's power to detain in the United States those non-citizens whose home countries won't accept their return. As a matter of statutory interpretation involving the complexities of federal immigration law, the decision is unremarkable. But as a harbinger of what the White House is likely to encounter as it continues to assert the power to indefinitely detain foreign nationals caught up in the “war on terrorism,” the Court's jurisprudence is becoming impressively clear.