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Bipartisanship in International Law

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Sunday, March 17, 2013 at 9:00 AM

When I testified last month (together with Ben, Bobby, and Steve) before the House Judiciary Committee on the legality of targeted killings, I started and ended my remarks with a plea for more congressional bipartisanship on international and national security legal issues.  I added that I was appearing specifically in order to provide bipartisan support for the Administration’s legal position on the use of drones (although I did continue to call for greater transparency in the Administration’s drone program).

This was the third time I had testified in support of Obama Administration international legal positions.  In June 2012, I testified (together with former Deputy Secretary of State John Negroponte) before the Senate Foreign Relations Committee in support of the Law of the Sea Convention.  And I testified in July 2011 before the Senate Judiciary Committee in support of the Consular Notification Compliance Act, which would give the President statutory authority to comply with the International Court of Justice’s 2004 Avena decision (which had ordered review of the death sentences of 51 Mexican nationals who had not received consular notice under the Vienna Convention).

In each case, I was motivated not by any particular urge to do favors for this Administration, but rather by a desire to demonstrate — especially to Republicans on each of the committees where I appeared — that the initiatives in question enjoyed bipartisan support and had also been endorsed by the Bush Administration.  I reminded members of Congress that President Bush, despite being maligned (including by members of the Obama Administration) for lack of commitment to international law, had directed state courts in Texas and elsewhere to comply with the Avena decision and had strongly supported the Law of the Sea Convention.  Although the Bush Administration never specifically targeted an American citizen in a drone strike, I testified that the Obama Administration’s White Paper was a reasonable analysis of the applicable law.

Whether any of this testimony had any effect on Congress is hard to say.  Congress did not pass the Consular Notification Compliance Act and the Senate did not approve the Law of the Sea Convention.  Many Republicans in Congress remain strongly opposed to both initiatives as well as to the use of drones to target American citizens without prior judicial review.  Nevertheless, I hope that Republican Members of Congress and their staffs who may be inclined to oppose Obama Administration initiatives may better understand why these initiatives also can make sense from a Republican perspective.

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