Unilateralism, in many ways, has been the watchword of the Bush administration. From its antipathy toward the International Criminal Court and the Kyoto Protocol on global warming to its damn-the-torpedoes approach to the Iraq war, the administration has acted as if it is largely unconcerned with the need, felt by many of its critics, to work in concert with others in world affairs. "International law?" President Bush famously quipped when asked whether America was required to allow countries that opposed the invasion of Iraq (specifically France and Germany) to participate in rebuilding. "I better call my lawyer. He didn't bring that up to me."
This sweeping rejection of multilateral rules drives many foreign policy observers to exasperation--with good reason. Yet critics are too quick to tar the Bush administration as anti-multilateralist. In fact, as three recent cases show, the executive branch readily looks to multilateralism and international law when it serves their interests.
Last year, in a decided by the Supreme Court, a religious group sought an exemption to a ban on a psychoactive drug, which it claimed was a sacrament in its religious ceremonies. The government argued that it could not grant the exemption because the drug was covered by a 1971 United Nations drug control treaty. Compliance with the international treaty, it said, was a "compelling interest" that overrode the needs of the religious sect.
But the administration's solicitude for U.N. treaty obligations was driven more by its anti-drug policy than by any real commitment to international law. Perhaps cognizant of this fact, the Supreme Court declined to endorse the idea that compliance with the treaty presented a compelling interest.
Then, this fall, the Court heard a challenge to the Environmental Protection Agency's (EPA) decision to refrain from regulating greenhouse gas emissions. Here the Bush administration argued, among other things, that the EPA reasonably declined to regulate these gases because the problem of global warming requires an international solution. In order to negotiate such a solution effectively, the government said, it needed maximum flexibility. Domestic regulation would, in other words, hamper the Bush administration's efforts to solve the problem of climate change through multilateral cooperation. This, too, appears disingenuous on its face. In light of the total rejection of the Kyoto Protocol, it is fair to question whether these efforts actually exist. Yet invoking multilateral cooperation here may serve to strengthen the president's hand. (The Court has yet to issue a ruling in this case.)
Most recently, the administration embraced multilateralism in its case against Shawqi Omar. Omar, an American citizen, was captured in Iraq by American troops in 2004, and is still detained there in an American facility. Omar claims to be innocent of any wrong-doing, and to have traveled to Iraq seeking reconstruction-related work. The government, however, contends that Omar is an enemy combatant and a member of Abu Musab Al Zarqawi's network who facilitated terrorist activities both inside and outside of Iraq.
Omar's lawyers sought to challenge his detention via a writ of habeas corpus. The hallowed "great writ" has for centuries allowed those imprisoned by the state to dispute their detention before a court of law. The Military Commissions Act passed by Congress last fall stripped non-citizens of the right to bring habeas petitions, but Omar's status as a U.S. citizen would seem, at first glance, to place his case well within the bounds of normal habeas jurisprudence. But in litigation before the Court of Appeals for the D.C. Circuit the Bush administration argued that Omar could not use the habeas process, because the American troops detaining him are not, despite all appearances to the contrary, actually American troops. They are instead "multinational forces." And as the government argued in its brief, "United States courts lack jurisdiction over multinational forces acting pursuant to the auspices of an international body--in this case, the United Nations Security Council."
That American military forces in Iraq would be characterized as "multinational" is not altogether surprising, given the pains to which the administration has stressed that other members of the "coalition of the willing" still have troops in Iraq. Much more striking is the claim is that the forces are "acting pursuant to the auspices of an international body." Bush administration lawyers relied in this regard on a remarkably terse World War II-era Supreme Court ruling that the federal courts could not review the convictions of Japanese nationals before the International Military Tribunal for the Far East. Because that tribunal was not an American court--there were judges from many nations on it--the Supreme Court held that it could not review the proceedings.
In the case of Omar, it is true that, after the invasion of Iraq, the U.N. Security Council blessed the occupation via a series of resolutions (in a somewhat desperate attempt to reassert a measure of control over the American fait accompli). But it's one thing to have the Security Council endorse the presence of U.S. troops in Iraq after the fact. It is another to claim that U.S. forces are therefore acting "pursuant to the auspices of" the United Nations. U.S. troops are plainly not commanded or controlled by U.N. officials. The U.S. military did not detain Omar at the behest of the United Nations or any other international institution. And, unlike the Japanese nationals, Omar is facing neither a foreign nor an international court.
The central issue here is whether the executive branch can sidestep habeas corpus by invoking the multilateral nature of the Iraq war itself. Is the existence of other foreign forces in Iraq, coupled with the endorsement of the U.N. Security Council, sufficient to transform the detention of an American citizen by American officials into an international detention that federal judges cannot touch? In its decision handed down last month the D.C. Circuit rightly said no.
It is perhaps startling to see the Bush administration focus so closely on international law and multilateral cooperation. But at times such agreements present a convenient cover for the government's true aims. Obsessed with maintaining a maximally free hand, the Bush administration often finds international commitments--and even international restraints--paradoxically attractive when dealing with federal judges. Though the strategy proved unsuccessful in two of these cases, the administration will undoubtedly continue to cite international law--when it is convenient for them.
By Kal Raustiala