President Michael Traynor introduces Justice Sandra Day O’Connor (and her new book) to the membership at the Annual Meeting in Washington.

Justice O’Connor Predicts Greater Domestic Reliance on Norms of International Law and Praises Institute’s Increasing Transnational Focus

In her remarks during the Wednesday morning session of the 2002 Annual Meeting in May, Supreme Court Justice Sandra Day O’Connor suggested that the Court will increasingly come to rely on "international and foreign law in resolving what now appear to be domestic disputes" and praised the Institute for its pursuit of a variety of projects in the international area. Other speakers at the 79th Annual Meeting included Council member and former ALI Vice President Patricia M. Wald; the Institute’s First Vice President, Conrad K. Harper; and Counsel to the President Alberto R. Gonzales.

Declaring that "understanding international law is no longer just a legal specialty" but "a duty we all share," Justice O’Connor contended that judges and lawyers need to care about such matters because of globalization. "Thirty percent of our gross domestic product is internationally derived," she said: "We operate today under a large array of international agreements and organizations," and globalization "also represents a greater awareness of, and access to, people and places far different from our own," with nations’ fates being "more closely intertwined than ever before." International law, she asserted, "is no longer confined in relevance to a few treaties and business agreements. Rather, it has taken on the character of … ‘transnational law’ — what Philip Jessup has defined as ‘all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.’" She observed that, while "inter-nation law and the law of other nations are rarely binding on our decisions, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts — what is sometimes called ‘transjudicialism.’"

Justice O’Connor noted that the current Supreme Court has itself been reluctant "to look to international or foreign law in interpreting our own Constitution and related statutes," but that it has "looked to international-law notions of sovereignty when shaping our federalism jurisprudence and to international-law norms in boundary disputes between American states"; she predicted, however, that the relevance of international legal standards in domestic contexts will become more apparent in the future. Because issues of "international and foreign law are being raised in our courts more often and in more areas than our courts have the knowledge and experiences to address," she stressed the importance of "expanded knowledge in this field." She pointed to the ways in which specific projects of the Institute have helped to advance such knowledge, and she concluded by thanking the members of the ALI for their "appreciation of the music of the law — which, like real music, should transcend international boundaries."

In her Annual Dinner address at the French Embassy on May 14, Judge Wald, former Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, provided vivid examples of the law’s international scope and significance as she described three of her cases during her recent two-year stint as the American judge on the International Criminal Tribunal for the Former Yugoslavia in the Hague. Her first trial, which lasted 98 days and included more than 100 witnesses and 1100 exhibits, was "a genocide case brought against General Radislav Krstic, the Bosnian Serb Commander of the Drina Corps on whose territory in July 1995 the week-long executions and secret mass burials of up to 8000 young Muslim men occurred." While Krstic had not himself initiated the plan of execution, she pointed out, he was "complicit in the plan and in its ultimate success." Although he was sentenced to 46 years in prison, she noted that he has appealed and that his superior, General Mladic, whom several witnesses testified to seeing personally on the execution sites during the week in question, remains a free man.

Her second major trial, Judge Wald said, "lasted 113 trial days," featured 139 witnesses and nearly 500 exhibits, and "involved the prosecution of five police officers who were assigned as guards in the most notorious concentration camp … established by the Bosnian Serbs in northeastern Bosnia." Judge Wald indicated that the camp "almost immediately became a chamber of horrors where sadistic and vengeful opportunists savaged underfed, overcrowded, terrorized, and disease-infected prisoners" and where "hundreds of men and at least a few women died under its regime of beatings, torture, and rape." Although the defendants "had not set up the camp" and "at least three of the five were never proved to have ordered the beatings or torture, or personally to have participated in any atrocities," all of them "were convicted on a criminal-enterprise theory," which imposed "criminal responsibility on those who join in an enterprise knowing the goal of the enterprise is an illegal one and who contribute substantially to accomplishing the goals of that enterprise even though their contribution is not itself illegal conduct." While "there remains a fundamental legal (perhaps even moral) issue as to how far down the ladder of command it is fair to take this theory of criminal responsibility," a fit question, Judge Wald suggested for the ALI to consider some day, the court was satisfied its judgment was right "based on the continued active involvement of these men in running the camp when they had full knowledge of how the inmates were being mistreated and abused, and some authority, albeit limited, to discourage the savagery and the abuse that was going on."

The third and final case that Judge Wald discussed involved "the only appeal at the Yugoslav Tribunal to date that reversed convictions on the basis of insufficient evidence." She said that "the Appeal Panel reversed the convictions of three Bosnian Croats accused of participating in a surprise dawn raid on a small central Bosnian village in the course of which 200 Muslim homes were destroyed and 100 inhabitants killed." Two of the convictions, she explained, "relied principally on the testimony of a 13-year-old girl who said she recognized the faces of the attackers even though they were disguised … and she saw them for only a few brief moments in the pre-dawn light." In addition, Judge Wald indicated that there were "inconsistencies between her statements at trial and pretrial," the event’s only other eyewitness — a close relative — whose prior statements differed materially from hers, was never called to the stand, and "the girl’s family had discussed the girl’s account at length with her before she eventually identified one of the accused." "Despite the deference accorded to the Trial Chamber’s positive evaluation of the girl’s testimony in court," Judge Wald explained, "we … found it too slight and inconsistent a basis upon which to affirm the men’s convictions and long prison sentences."

Although many of her days "were filled with frustrations over broken computers, non-English-speaking colleagues and aides, cumbersome processes, and the justly fabled bureaucracy and red tape of the U.N.," Judge Wald concluded by declaring that "I do not think any time of my professional life was more rewarding or better spent in the pursuit of that elusive concept called justice."

As the representative of the new class of life members honored at the luncheon on May 14, Vice President Harper, a former State Department Legal Adviser, spoke of another legal issue with international implications, President Bush’s order, on September 11, 2001, authorizing combat aircraft "to shoot down in flight any airliner that did not obey instructions to divert its course away from Washington, D.C." Mr. Harper suggested that the sort of horror one must contemplate in the future because of this directive is that of the incident last year, when "a Peruvian fighter pilot, relying on U.S.-supplied intelligence," erroneously "shot down a single-engine plane owned and operated by the Association of Baptists for World Evangelism" and killed a mother and her infant daughter.

Observing that President Bush’s September directive "has not been widely publicized," Vice President Harper indicated that, according to the Associated Press, "four commercial airliners and a medical helicopter had crossed into the Washington no-fly zone since September 11," about 36 aircraft were turned away from Washington since September 11 because they did not complete the requisite authentication procedures, and, in the past 10 years, "the prohibited airspace around the White House had been violated at least 94 times by civilian aircraft." Such mistakes can and will happen he said, despite the fact that none of those erring aircraft "had necessitated military action." Although recognizing that the shoot-down policy "is understandable under classic doctrines of self-defense," he concluded that there should be "full public discussion" of the President’s directive, both domestically and internationally, and particularly before the International Civil Aviation Organization Council, with the aim of reducing the likelihood of the kinds of error that could cause the directive to be acted upon. In addition, Mr. Harper cautioned first, that "legitimate users of civil aircraft," as well as "potential terrorists," ought to "know the risks"; second, that our military pilots must be "carefully trained" and their sources of intelligence need to be "as error-free as possible"; and finally, that "the more widely known the shoot-down policy is, the more likely civil aircraft will follow the right flight paths, tune into the correct radio frequencies, and respond to warning signals from military aircraft."

At the luncheon on May 15, Justice Gonzales, like Mr. Harper, spoke about the scope of executive power, but while Mr. Harper warned of the dangers of abuse or misuse of such power, Justice Gonzales described the role of his office in ensuring that "the legitimate powers of the presidency are, in effect, preserved." He began by emphasizing that "two core principles" he has sought to pursue in achieving this goal are "fidelity to the rule of law" and recognition that "we need to maintain and, where appropriate, restore the ability of the President to successfully perform his constitutionally assigned functions." He stressed the need for a proper balance of powers between the executive and legislative branches, discussing three specific areas to illustrate what he meant by "proper balance": "executive privilege, judicial appointments, and the commander-in-chief powers."

Regarding the President’s authority as commander-in-chief, Justice Gonzales said this constitutional power "exceeds all others in its importance" and "in times of war … assumes even greater significance." He observed that "the following was accomplished through unilateral presidential action in the days immediately after the September 11 attacks: a wholesale reorientation of United States foreign policy and military strategy, the authorization of massive covert action worldwide, a commitment to foreign military operations, the reassurance and healing of the nation’s spirit, the initiation of steps to recover domestically, important steps to enhance protection of the American homeland and to prevent further attacks, and the development and authorization of important structures for acting against international terrorists’ financing." Justice Gonzales pointed out that "most of these steps were accomplished within the first weeks and months after the attacks." "Had the President been unable to act on his own, or had any other organ of government been charged with the authority to take these steps, they could never have been accomplished," he declared. Concluding that "only a unitary, energetic executive acting alone could have accomplished this," he spoke of his confidence that "history will confirm that the Administration did what it could to safeguard our long-term freedoms and to prevent another terrorist attack consistent with the requirements of the Constitution."

The complete texts of the talks delivered at this year’s Annual Meeting will appear in the Proceedings, as well as in a separate volume of Remarks and Addresses that will be available later this year.