"An American Society for International Law"
James H. Carter
ASIL President

My topic today is “An American Society FOR International Law.”

Earlier this year, ASIL Executive Director Charlotte Ku and I met with academic and practitioner members of the Society in the San Francisco Bay area to discuss what we could do to support their activities. The subject of the Society “taking positions” on controversial issues of the day arose, as it often does. I pointed out, as have my predecessors, that a learned society is ill-positioned to formulate public policy positions on a regular basis for a variety of reasons, not least because individuals and groups within our organization speak from a variety of perspectives. We are a non-partisan organization, or perhaps a “multi-partisan” entity, because of course we are and intend to remain home to partisans of many different stripes, and we as the ASIL do not choose among them. Our members represent every shade of political opinion, and I hope they always will.

I also noted that the Society has not been shy in publicizing the important issues of concern to international lawyers, including making sure that the voices are heard of those who believe that the United States is not doing what it should today to uphold international law. An example is our attention to the Avena litigation and related cases involving foreign nationals’ treaty rights to access to consular representation in the United States.

At the conclusion of that West Coast lunch, though, one member said, “Still, I’d feel better if I could say I am a member of the American Society for International Law.” I have thought about this concern, which I have heard regularly in various forms, and would like to address it today. I believe we are a Society for International Law.

The theme of our 2006 Centennial, which we are marking throughout this 100th year of our history, is “A Just World Under Law.” We celebrate at a time when questions of justice figure prominently in discussions of the relationship of international law to United States Government practices. Assertions of unilateral rights to use military force preemptively, executive detention policies that may or may not square with international humanitarian law and the U.S. Constitution, and U.S. compliance with our treaty obligations regarding torture are subjects on every lawyer’s mind. Many ASIL members hold strong views on these issues, and all of us consider it important that the Society address them. History will judge us wanting if we fail to provide an even-handed forum for such discussion or if in that discussion our members fail to hold the United States to its own highest values.

Our name is the American Society of International Law, but our membership is 40 percent non-American. Professor Philip Alston said here last year (perhaps only partly in jest) that so-called “mischief makers” sometimes see us as the “Society for American International Law” or perhaps the “Society for International American Law,” more concerned with U.S. perspectives than we properly should be. Having traveled this past year to China and India for meetings with their international law societies (which I am happy to say include a number of ASIL members), I have been reminded that the rest of the world expects this Society, international but with “American” as part of our name, to include as one of its functions critiquing the international actions of the U.S. Government from a legal standpoint whenever it is appropriate to do so.

I.

Let me state the case, then, for the proposition that we are doing our job as an American Society FOR International Law. First, we are addressing the most important current issues repeatedly and in depth. Our meetings and publications have been filled with timely and wide-ranging discussions -- sometimes heated discussions -- of all aspects of the so-called “Global War on Terror” and related matters. At this Annual Meeting alone, relevant programs include a lecture on “Torture, Violence and the Global War on Terror”; a lively debate this morning on the topic, “Is International Law Useful to the United States?”; a panel on “Executive Power in Wartime”; a discussion of “Legal Ethics and the War on Terror: The Role of the Government Lawyer”; and panels on “American Exceptionalism” and “International Law in Times of Empire.” Many of you will recall earlier annual meeting programs, too, including lively panels last year on “The Bush Administration Preemption Doctrine and the Future of World Order,” as well as “Intelligence and the Use of Force in the War on Terrorism” and “Iraq, One Year Later.” The lawfulness and justice of certain U.S. conduct was challenged, as it also was defended.

Our Journal, as well, has devoted considerable attention to the most important issues of our day. Among other things, two separate “Agoras” have addressed future implications of the Iraq conflict and the role of international law in U.S. constitutional law.

Although the parallel is not complete, present circumstances seem to me to resemble somewhat the divisions in society concerning the Vietnam War. In the early 1970s, ASIL members debated that war’s legality, and both sides were heard from. Judge Stephen Schwebel, then our Executive Director, has commented in the Society’s History that, “Even on an issue that led to such divisiveness, bitterness even, the Society could present the distinctive viewpoints, not take a position on any, and keep its integrity as a forum for legal analysis and expression of divergent viewpoints.” I think we have done that today, as well. Divided views will not destroy us.

But I believe we have done even better. While the Journal and two special programs in the early seventies addressed the Vietnam War issues, our Secretary, Professor Frederick Kirgis, nevertheless notes in his History that the Annual Meetings “did not devote as much attention to the war as one might have expected.” I don’t think that that criticism will be made of our treatment of any critical issues in the present era. We are not ducking hot international law issues, but looking for them.

II.

There is a second point to be made in support of the argument that we are a Society FOR International Law: we assure that voices are heard in support of the rule of law where it is fundamentally challenged. Our presentation of the issues has included a platform for those who do not accept governmental assertions, whatever the government in question. We critique, as thinkers do.

Now as in the 1970s, Government representatives argue that official U.S. positions are consistent with national and international law. However, some participants in the present debates have taken the position, for example, that the U.S. Executive branch need not comply with the Geneva Conventions and/or that those treaties have meanings that stretch the credulity of most international lawyers. While all sides are entitled to be heard, it is important that the institutions of the Society present views from which the weight of responsible authority can be discerned.

Recent issues of the Journal have done this, for example, when its editors described relevant court decisions and international practice developments. A recent Contemporary Practice section, for example, provides a fine summary of the Executive Branch’s original memoranda on the status and permissible treatment of detainees, including coverage of the adverse reactions to those memoranda once they were made public. The Contemporary Practice note on treatment of detainees also highlights the August 2004 report of the independent panel appointed by the Secretary of Defense to investigate the earlier legal memoranda on torture, and it pointedly cites that later report’s conclusion that, in the initial development of policy, legal resources of government lawyers “were not utilized to their full potential” and that “a wider range of legal opinions and more robust debate regarding detainee policies and operations” likely would have avoided some of what has occurred. I think history will agree with the independent panel on that.

The Journal also has featured editorial comments from leaders of our Society addressing these matters, as individuals. Prominent among them are Professor Jose Alvarez’s comment on “Hegemonic International Law Revisited”; former ASIL President Tom Franck’s comment suggesting a perhaps surprising “broad area of often unacknowledged agreement” between those who are critical of and those who support the U.S. Government’s legal posture toward its current crop of detainees at home and abroad; and Professors Richard Bilder and Detlev Vagts’ timely comment entitled “Speaking Law to Power: Lawyers and Torture,” addressing the role of government lawyers in shaping policy after 9/11. All strongly assert the importance of the rule of law in evaluating current U.S. Government conduct.

Remarks and comments at our Annual Meetings tell a similar story. It seems fair to say that voices from the Society have expressed thoughtful critiques of Executive branch positions. Through them, the Society stands for the rule of law and in particular international law.

The rule of law needs support in these times. The judiciary, of course, is the primary bulwark of the rule of law, and judges around the world speak out on this issue. In his F.A. Mann Lecture in London in November of 2003, entitled “Guantanamo Bay: The Legal Black Hole,” Britain’s Lord Steyn commented on what he called a judge’s “duty, even in times of crisis, to guard against an unprincipled and exorbitant executive response” to terrorism. He roundly criticized the decisions of lower American courts to that date dealing with detainees as showing “extraordinary deference” to executive authority, amounting to, as he put it, a “monstrous failure of justice.”

Lord Steyn quoted Judge Aharon Barak, President of the Supreme Court of Israel, in a case in which that court held that the violent interrogation of a suspected terrorist is not lawful, even if such conduct might save human life by preventing impending terrorist acts. Judge Barak said:

“We are aware that this decision does not make it easier to deal with the reality. This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.”

“Such restraint,” Lord Steyn added, “is at the very core of democratic values.”

But judges are not alone in addressing these matters. On June 28, 2004 the U.S. Supreme Court decided the important Hamdi/ Rasul/ Padilla trilogy of cases involving detainees in the “Global War on Terror.” In Hamdi, the Court determined that an alleged “enemy combatant” has a right to a hearing to contest his or her status and the right to access to counsel. In Rasul, the Court determined that it had jurisdiction to hear habeas corpus challenges to the legality of the detention of aliens at Guantanamo Bay.

Our Journal included comments on these cases, written respectively by Professors Jenny Martinez and David Sloss, supporting the important principle that judicial control of executive actions in time of war is critical to the rule of law. Professor Martinez’s comment on Hamdi described the decision as “a sharp and much needed rebuke to the U.S. Government’s position that its treatment of detainees in the so-called ‘War on Terrorism’ is immune from judicial oversight.” Professor Sloss noted that the Executive Branch of the U.S. Government has invoked the law of war as a source of legal authority for the Government to maintain custody over Guantanamo detainees, while simultaneously denying that those detainees have any legal rights under the Geneva Convention. He concluded, simply, “That position is untenable.”

These notes are individual views; but their publication in our journal of record is typical of what a society for international law should be doing: namely, keeping the rule of law in the forefront when assessing executive actions in the “Global War on Terror.”

One of these notes emphasizes the rather tentative degree to which the U.S. Supreme Court has approached international law so far in its detainee decisions. Professor Martinez described Hamdi as “A decision rendered in the shadow of international law,” marked by ambiguities that “stem at least in part from the Court’s reluctance to grapple directly with the contours of international humanitarian law and from its failure to articulate clearly the relationship between that body of law and U.S. law.” It is right to critique the judiciary, too, and call for it to support international law fully and articulately.

The Society of course should and does apply a rule of law yardstick to measure the conduct of other nations’ governments and the actions of international organizations. But we bear a special responsibility to do this for American institutions, as we are doing.

III.

My third point is that we serve as the American Society FOR International Law when we spread relevant information about the rule of law to a wider general public. That was what our founders intended, and it is what we are committed to doing as the Society prepares to enter its second century.

Elihu Root and our other founders intended to inform public opinion about issues of international law, not just to advance learning, but because they thought in part that an informed public would serve as a restraint on pressures for war. That remains a worthwhile objective, and we have committed ourselves to increasing the Society’s outreach to various publics in our second century. We will not be marching in the streets on behalf of any cause, but each of us can play a role in explaining and urging support for the rule of law.

You have heard before that there is no such thing as “the Society,” apart from each of you. We are a scholarly organization but also a membership organization with an outreach goal. I urge you to take advantage of opportunities to discuss international law aspects of current issues in debates outside our own fora, engaging skeptics and explaining to them why international law matters.

We live in a time when international legality of governmental actions is in the forefront of the public’s mind, and we should capitalize on the opportunity this presents for each of us to speak out. As Professor Rosa Brooks said last year at our Annual Meeting program entitled, “Conceiving a Just World Under Law”:

“It is hard, in times of threat and fear, to make people believe in abstractions like the rule of law, but times of threat and fear are precisely when we most need the rule of law.”

By what we have done, and by what I ask you to continue to do, let us be proud that we are a Society FOR International Law.