Vital Interests: You have written an interesting and timely book titled Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs. You examine the history of the Supreme Court and how its role was defined in the Constitution. Your book is significant because it deals with separation of powers, particularly between the Court and the executive branch. Can you provide some background on the thesis for your book and how the Court was originally intended to play a role in foreign affairs?

Martin Flaherty: The book originated from a long-standing interest I had in the growth of the executive, the role of the judiciary, and separation of powers. My work on this topic predated the Trump administration, but now the Trump administration has made all of these issues pressing. I start with the premise that when it comes to the courts making rulings that affect foreign affairs, it is now at a crossroads.

Sometimes, it will be true to its historic role and robustly enforce individual rights in cases before it, regardless of whether they involve foreign affairs or not. At other times the courts will either refuse to take the case or defer to the political branches, especially the president. A recent prime example is the anti-Muslim ban case, Trump v. Hawaii.

In my book I maintain that the Court should pull back from this undefined crossroads and get back on the path that was originally intended for it, which was to play a vital role in the separation of powers whether the cases involve domestic or foreign affairs matters.

VI: Given your involvement in international human rights, is your concern with established universal norms that safeguard individual rights? Is it your contention that the Supreme Court should consider these international norms in the cases they hear? 

Martin Flaherty: A couple of things on that. One is that in cases that involve foreign affairs, individuals can be safeguarded either by domestic statutory or constitutional provisions. Or they can, where appropriate, be safeguarded by international human rights standards such as those that Congress incorporated in a Federal law known as the Alien Tort Statute. Either way, my argument is that the Court should do its job and say what the law is and apply that law without being prejudiced by what the executive branch’s stand might be on a foreign affairs issue. The Court's constitutional mandate is to apply the law no matter what the context.

VI: When the executive branch makes its own rulings in international affairs, whether it is engaging in warfare or international intrigue, are you saying that the Court has a responsibility to step up and review that policy to see that legal standards are met?  

Martin Flaherty: Yes, this can come up in a number of ways. In a pure separation of powers fashion, the way it often comes up is when a president takes an action in foreign affairs and the question is, does the Constitution authorize the president to do so? For example, when the Obama administration participated in the bombing of Libya without specific congressional authorization; or recently, when the Trump administration put troops on the ground in Iraq and Syria to fight ISIS, again without specific congressional authorization.

I argue that this is problematic precisely because Congress has the power to declare war and to authorize armed conflict and, where appropriate, the Court should step in there. That's one type of case. Another type of case, again, involves instances where the executive takes action and it violates a person's individual rights under the Constitution or under applicable international law.

VI: In your historical analysis of the separation of powers you say that was understood for many years. You state that the turning point in the erosion of that separation was the Youngstown case when the Court ruled against President Truman’s action to seize private property citing executive war powers without congressional authority.

Martin Flaherty: To go back to the beginning, what I argue is that probably the most important doctrine that the founders adopted in the constitution was the separation of powers, which involves the balance among the three branches to prevent the tyrannical accretion of too much power in any one branch. That's kind of standard among historians. 

The one thing I add is that the doctrine applied even more – not less -- strongly with regard to foreign affairs. The Constitution created a stronger federal government that had the ability to effectively conduct foreign affairs but where there is power and effectiveness, there's also danger. One of the ways to mitigate the danger or overreach was separation of powers. One manifestation of that can be seen in the Founders belief that the Court should have a key role in various foreign affairs matters when there were legal cases before them.

With this original conception, I argue that the Court followed that vision for about 150 years. This principle was eroded as the United States became a regional power, a global power, and then a superpower hegemon. This reality gave the executive branch ever more power and it has pressed its exclusive domain over foreing affairs ever more strongly. The Court has resisted at points, sometimes strikingly.    The Youngstown case stands as one of the most important instances.  There the Court told a President during a major war that he could not take an action – seizing the nation’s steel mills in light of a pending nationwide strike – that he considered vital to the war effort.  Several of the post-9/11 cases follow in that tradition. Unfortunately, now we're at a place where the judiciary too often defers to the President.

VI: Skeptics say the Court isn’t really qualified to deal in foreign affairs and these matters are best left to the executive branch where the expertise lies. Should the executive branch rightfully dominate in the complex area of foreign affairs and the Court just play their role in domestic matters?

Martin Flaherty: That is one of my favorite non-arguments.  I have two responses. One is: where do the courts have expertise? Where the courts have expertise is the interpreting and applying the law, whether it's domestic or international. If it is a case in which the law applies, that is exactly within the intended expertise of the court. That's one response. 

The other response goes something like this: arguably, the executive branch has far more expertise in, say, crime-fighting than the courts do. The executive branch has the FBI, the Department of Justice, the resources to compile and analyze statistics concerning crime. The executive branch in other words knows. or has reason to claim, much greater competence when it comes to fighting crime. Now consider that we have a federal criminal statute that can be read broadly or narrowly. Imagine further that a lawyer for the executive branch says, "You courts need to defer, not just consider, but to actually defer, to our interpretation of the statute because we know a lot more about crime-fighting than you do." That would be unheard of. Yet it's exactly that form of argument that's made in foreign affairs, and I think it's an equally empty argument.

VI: What about when state secrets and national security are involved? How does that affect the argument for executive branch privilege?

Martin Flaherty: I date the significant pressure on the courts in that regard to around the mid-20th century, because it's at that point that the nation really becomes involved in perpetual war, whether cold or hot. It is at that point that the executive branch makes all institutional competence arguments - that we know better because we're in perilous times and it's national security and you should either not take cases or defer to the executive branch.

A good example, as you mentioned, is state secrets. That's a doctrine that really pops up right after World War II. Post 9/11 it's been used as a rationale to keep out of court cases dealing with really egregious violations of human rights.

VI: There are cases that emanated from Guantanamo -  the Boumediene, the Rasul, and the Hamdan cases - where the Court actually stood up to the executive branch.

 Martin Flaherty: Exactly - that's my crossroads argument. On the one hand you have the post 9/11 cases like Rasul, Hamdi, Hamdan, Boumediene, in which the Court does stand up to the executive. The Court, I think, properly stood firm regardless of the purported foreign affairs consequences that the executive branch put forward. That's on the good side of the ledger. That is consistent with the court's intended and historic role.

A counterexample is Trump v. Hawaii, in which the Court said we're not going to get behind this immigration ban and look at what the real reasons for it might be because the executive branch tells us it is to promote national security. In Justice Sotomayor’s dissent, she argues  that's not a reason not to follow our ordinary doctrine and look behind the surface of the ban. Then she famously gives about 13 pages laying out President Trump’s real motive - that the ban is not really about national security, the ban reflects nothing more than politically motivated fear mongering against Muslims. 

VI: Others have written about the Court and its relationship to foreign and international law. There is a recent book by Justice Stephen Breyer, The Court and the World: American Law and the New Global Realities, that says the United States really should engage with foreign law and consider international law sometimes, but you take issue with that book because it doesn't go far enough.

Martin Flaherty:I think it's a thoughtful book that seriously advocates for the need of the Supreme Court to engage with international legal issues. Where I disagree is Breyer seems to think that the Court getting involved in standing up to the executive branch and the political branches during times of crisis and armed conflict is a relatively recent phenomenon. I say, quite to the contrary, this is exactly what the intended role of the Court was. It's the role that the courts played in several armed conflicts throughout our early history.

That really it is a story of the Court falling away from its role recently rather than adopting a new role. That's one of my principal disagreements with Justice Breyer.

VI: You discuss the fact that the traditional nation state really doesn't exist anymore. You refer to ideas that Ann-Marie Slaughter and others have put forth about the growth of a disaggregated world where global networks have accumulated considerable power and influence. How should the Court relate to this new global reality?

Martin Flaherty: My point in this regard, and possibly the most original part of the book, is the application of this recent international relations theory to U.S. constitutional law and foreign relations law.Scholars point to a new phenomenon whereby nations don't interact in traditional ways,  rather executive branch officials interact directly with their opposites from other countries, judges do the same with judges from other jurisdictions and legislators as well. Policies are no longer made in purely domestic contexts.

What those scholars don't ask is, in the context of separation of powers, who's the net beneficiary in this new modern phenomenon? I think once you ask that question, the answer is fairly evident: it's the executive branch that clearly benefits. I have various illustrative cases, like extraordinary rendition, with regard to that, where executive branch officials, security branch officials work with one another behind the scenes.

It is another factor that empowers the executive branch far beyond what the founders could ever have envisioned. It is another reason why foreign affairs is an area where the Court should take more of an active role, not less of an active role, because foreign affairs is further empowering the executive and creating an even greater imbalance among the branches.

VI: Would you say that legal rulings related to foreign affairs and national security coming out of the Office of Legal Counsel and the Justice Department are areas where the Supreme Court should demonstrate judicial activism and review questionable actions?

Martin Flaherty: Yes, absolutely. A specific example, in one of the post 9/11 cases, was putting detainees on trial in front of military commissions where they have very stripped down procedural protections. One argument made on behalf of the people put in front of those tribunals was that this violates the Geneva Conventions. What the executive branch said was, "Look, we interpret this one provision of the Geneva Conventions not to apply at all to your case."

This is an outrageous miss-characterization and misreading of the relevant provision, Common Article 3. Fortunately, the Court said, "Look, we are not deferring to your interpretation of this treaty. We are going to interpret it independently because we are the branch that has that expertise." The Court rightly rejected the administration's position and held that the military commissions violated that provision of the Geneva Convention as incorporated into domestic law by Congress. That is exactly what the Court should be doing.

VI: Talking about treaties, what role does the Supreme Court play? Treaties are ratified by Congress. How can the Court intervene? How does the Court get cases that involve treaties?

Martin Flaherty: Under the Supremacy Clause, treaties constitute  “the supreme Law of the Land” and ordinarily would be considered on par with federal statutes. That said, there's an old doctrine that says some treaties are what you would call non-self-executing. Self-executing treaties are ones that apply automatically. That seems to be what the Supremacy Clause says, but an early case by John Marshall indicated that some treaties are intended not to automatically apply, are  non-self-executing.

What has been happening recently, I would argue, is there's been at least one major case, Medellin,  in which the Supreme Court indicated that it's less likely to interpret a treaty as automatically applying as self-executing. If that's the direction the Supreme Court is going, that's wrong headed One of the reasons we have the Constitution to begin with is because the founders wanted individuals who had rights under treaties to be able to go to federal courts and have those rights vindicated.

VI: Should individuals be able to bring cases to the Supreme Court that involve violations of human rights norms as articulated in treaties the United States has ratified?

Martin Flaherty: Ideally, yes, but unfortunately what usually happens with regard to our human rights treaties is that the Senate will make clear that it does not want the treaty to apply automatically, to be self-executing. The Senate, with the President, is part of the treaty making process -- treaties have to be approved by two-thirds of the Senate.  That practice makes it impossible for the courts to invoke human rights treaties. That said, there are a number of other ways human rights treaties and customary international law of human rights can come in, so the Court does have some leeway

One way is to view more treaties as self-executing when there's been no Senate action to the contrary. Another way I write about is the Alien Tort Statute. That’s a statute through which the first Congress brought customary international law norms down into domestic law. Unfortunately, in two major cases – Kiobel and Jesner, the Court virtually eliminated or cut that statute off at the knees in ways that I think are completely wrongheaded.

VI: Your book is prescriptive as well as descriptive. What can be done in terms of reforming the position the Supreme Court takes in cases involving foreign affairs? How can the Court play a more positive role in restoring the balance of power?

Martin Flaherty: At the end of the book I divide that question into three parts. One involves what I call a gatekeeper doctrines. There, I advocate that when in doubt the Court should take cases even if they involve foreign affairs. If the executive branch argues that there's no standing to take the case, or should it be a political consideration, or that state secrets apply, I argue that the Court should be very skeptical. That's number one.

Number two refers to the central theme of the book, which is: if there is applicable law, the Court should apply it without fear or favor and not be cowed by the fact that it has foreign relations consequences. 

Finally there are areas where international law can come in, and that the Court has a certain amount of leeway to employ doctrines that either bring it in or keep it out. There I argue, in every instance where it's possible, the Court should attempt to recognize and apply international law and international human rights law. These are the ways that I think an informed judiciary should approach these issues.

VI: Looking at the current court, do you see justices who share your opinions and outlook? Or is this going to have to be an educational process, something that should be brought up as new Supreme Court justices are vetted? 

Martin Flaherty: Well, sorry to say it will probably have to be the latter approach. This would be, in the current atmosphere and with the current composition of the court, an argument for the longer haul. Ideally, one would have the fantasy that judges and justices will read reasoned arguments and be persuaded but I'm a little more realistic than that.

The argument would be for future appointees, not just on the Supreme Court, but also in lower courts. Assuming the current political situation changes this is something that appointees should be questioned about, their stance with regard to judicial power and foreign affairs.

VI: Relatedly In the current atmosphere do you see any cases that are percolating through the judicial system that could be brought up to the Supreme Court that deal with foreign affairs issues?

Martin Flaherty: Earlier in the Trump administration, there were a lot of issues percolating.  Of course lately everything has been overwhelmed and eclipsed by impeachment. On that point one thing I would say is, even in impeachment, there is an area where what I'm writing about would be highly relevant. 

It is this - that in the Watergate investigation when the Supreme Court ruled that Nixon had to hand over the tapes to the district court, the Court noted we there was no claim by President Nixon that the communications asked for by the Court involved national security and foreign affairs. If that were the case it would have been a very different situation.

I would argue that observation in Chief Justice Warren Burger's opinion should be rejected. Indeed it's going to be relevant here because some of the testimony and some of the communications pertinent to both the Russia scandal cover-up and now to the Ukraine extortion obviously by definition involve foreign affairs.  But the Court should clearly reject any executive privilege claims that the president or his subordinates would make that no, we don't have to testify, we don't have to turn over communications, because it involves national security. In that approach lies the continued erosion of our most fundamental Constitutional commitments. 

Martin S. Flaherty is the Leitner Family Professor of Law and Founding Co-Director of the Leitner Center for International Law and Justice at Fordham Law School. He is also a Visiting Professor at the Woodrow Wilson School of Public and International Affairs at Princeton, where he was Fellow in the Program in Law and Public Affairs. He also teaches at Barnard College, Columbia University. Professor Flaherty has taught at China University of Political Science and Law and the National Judges College in Beijing, and Queens University Belfast. He has also co-founded the Asia Law and Justice Program at the Leitner Center as well as the Committee to Support Chinese Lawyers, an independent NGO on which he serves as Vice Chair. He is also a member of the Council on Foreign Relations. Flaherty’s publications focus upon constitutional law and history, foreign affairs, and international human rights.