An Unintended Casualty of the War on Terror

As the dust of the Bush administration’s war on terror settles, casualties are starting to appear on the legal battlefield. The United States’ human rights reputation and the Supreme Court’s international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration because in fact it handed down several opinions setting limitations on the administration’s treatment of terror detainees. While these cases, notably Hamdan v. Rumsfeld, set forth domestic law limitations, their conspicuous effort to avoid giving the Geneva Conventions the force of law served to confirm world opinion that the Supreme Court is “out of step.” This Essay demonstrates how the Court’s avoidance of the treaty status issue in Hamdan not only contributed to the perception of American legal exceptionalism but also paved the way for the single most anti-international opinion in Supreme Court history, Medellín v. Texas. In Medellín, the Supreme Court adopted a legal stance that creates near impassable barriers to the domestic enforcement of treaties. Nonetheless, as President Obama ruminates on maintaining military tribunals and courts brace for another round of terrorism cases, the Supreme Court may yet have a chance to narrow the reach of Medellín, confirm the enforceability of the Geneva Conventions, and restore its international influence