JURIST Guest Columnist John Cerone of New England School of Law says that while we are accustomed to seeing the US president wrap himself in the US flag to avoid the restraints of international law, his posture in recent cases reveals that he occasionally dons the UN banner as well, perhaps for inverse purposes….

Earlier this year, I was invited to participate in a symposium on the case of Medellin v. Texas, in which US President George W. Bush had intervened in support of Ernesto Medellin, a Mexican citizen on death row in Texas. Medellin was seeking review of his case in light of a judgment of the International Court of Justice requiring the United States to reconsider his conviction and sentence. The Court had found that the United States had violated its international obligation to inform Medellin, upon arrest, of his right to have the Mexican consular authorities notified of his situation.

This case was of particular interest to international lawyers for a variety of reasons, not least of which was the peculiar posture of the Bush Administration. Essentially, the Executive had intervened 1) on behalf of a (non-whitecollar) criminal defendant, 2) in a death penalty case, 3) in Texas, 4) invoking principles of comity, 5) with reference to an international legal obligation on the United States, 6) as determined by an international court, 7) in a judgment that penetrates deeply into the domestic criminal justice system, 8) of Texas.

What's not wrong with this picture?

In my analysis, prepared prior to the recent Supreme Court judgment in that case, I speculated that, despite all indications to the contrary, Hell had not actually frozen over. While acknowledging that the President's intervention may have been motivated by the interests cited in his brief — ensuring reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law — parallel developments suggested that the intervention may also have been prompted by a narrower interest that this Administration has sought consistently to advance.

When viewed in light of the U.S. Executive's invocation of international law in a counter-terrorism context, a pattern seems to emerge. In particular, throughout the "War on Terror," the White House has invoked international law to expand its authority, both externally and internally, while rejecting the limitations imposed by international law. A prime example has been the invocation of the law of war as granting virtually unfettered discretion to detain and kill those deemed "enemy combatants," while simultaneously ignoring those rules of international and US law that would restrain this discretion.

In its March 25 judgment in Medellin, the Supreme Court, following its own recently established pattern, rejected the President's exorbitant assertion of authority. Reflecting upon the judgment, and in particular the Supreme Court's refusal to order review and reconsideration of the petitioner's conviction and sentence, I've re-examined whether my own hasty analysis may have been a bit cynical, and considered that perhaps the predominant interests underlying the President's intervention were indeed those it purported to serve. Fortunately, the Supreme Court has pointed a way forward. The review and reconsideration indicated by the ICJ can yet be achieved in a way that would address all of the interests cited in the Executive's brief. The President need only ask Congress to accord the Court's judgment the status of federal law. While the 110th Congress may be reluctant to cooperate with the Bush Administration, simply making the request would be a sign of good faith.

I'm not inclined to hold my breath.

On the same day that Medellin was handed down, the US Executive appeared before the Supreme Court to argue the case of Munaf v. Geren. The Deputy Solicitor General argued that US courts lacked jurisdiction to hear habeas petitions by US citizens held by US troops in Iraq because the petitioners were "being held under international authority pursuant to determinations made by an international multinational force acting and carrying out a United Nations mandate…" As pointed out by Justice Souter, this would mean that "the president acting alone can make an agreement for an international force or a cooperative force and that agreement of the executive alone in effect eliminates habeas jurisdiction over an American citizen." This would seem even more striking as applied to an international force that is in reality a US force with an international veneer.

Unlike the Executive's argument in Medellin, which may be seen to evince bad faith, can their argument in Munaf be seen as anything but? Viewed in the context of this continuing pattern of opportunistic invocation of international law, the President's intervention in Medellin is stripped of the legitimacy of the interests it claims to serve, leaving only the bare power-grab.

John Cerone is Associate Professor of Law & Director of the Center for International Law & Policy at the New England School of Law.
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