 Welcome to Think Tech on OC16, Hawaii's weekly newscast on things that matter to tech and Hawaii. I'm Jay Fidel. And I'm Kaui Lucas. Our show this time will take us to a really interesting panel of judges, lawyers and global strategists who spoke about the acceptance of legal rules and precedents from other countries by American courts. It included comments by U.S. Court of Appeals Judge Richard Clifton, retired Intermediate Court of Appeals Judge James Burns, and think tank thinker Brad Glosserman of Pacific Forum. On October 26th, the Hawaii Chapter of the Federalist Society for Law and Public Policy and Pacific Forum CSIS, the Center for Strategic and International Studies, presented a roundtable discussion entitled, The Globe and the Gabble, Judicial Decision Making in the Age of Globalization. Should American judges consider foreign law when interpreting the U.S. Constitution? Or for that matter, the state constitutions? Does America's approach to questions of international law affect its diplomatic efforts? And if so, how? What do we need to know about this? And what do we need to do about it? For years, judges and scholars have discussed the role of foreign law in American jurisprudence. For example, in a case called Glossib v. Gross, the U.S. Supreme Court considered whether the use of the drug medazolam for lethal injections violates the cruel and unusual punishment prohibition in the Eighth Amendment to the U.S. Constitution. In that case, Justice Stephen Breyer noted that 95 out of 193 members of the United Nations have abolished the death penalty. On the other hand, in a dissenting opinion in Roper v. Simmons, Justice Antonin Scalia said that the premise that American law should conform to the laws of the rest of the world ought to be rejected out of hand. In a thought-provoking discussion, the jurists in this program spoke about the interaction of foreign and American law. Beyond that, Brad Glosserman, a think-tank foreign policy expert, discussed how America's approach to foreign and international law has an impact on our diplomatic efforts abroad. Let's meet the panelists. Judge Richard Clifton, graduated from Princeton in 1972, then earned his law degree from Yale in 1975. He served as law clerk to Judge Herbert Choi of the Ninth Circuit, then joined the firm of Cade, Shuddy, Fleming and Wright. He continued with that firm until he was nominated to the Ninth Circuit by President George W. Bush in 2002. He will be taking senior status on the court at the end of this year. Judge James Burns, son of Hawaii Governor John Burns, was the chief judge of the Hawaii Intermediate Court of Appeals for over 25 years and played a major role in developing Hawaii law during that period. He was part of the judicial panel that decided the landmark gay marriage case of Bayer v. Lewin. Judge Burns took his law degree from Villanova in 1962. He served as a district court judge, a circuit court judge, and then an associate judge for the Hawaii Intermediate Court of Appeals. He was chief judge there from 1982 until he retired in 2007. Brad Glosserman is executive director of Pacific Forum CSIS. Pacific Forum has provided policy analysis and a platform for high-level dialogue on Asia Pacific security, diplomacy, economic and environmental issues since 1975. Brad Glosserman took his law degree from George Washington University, a master's degree from John Hopkins School of Advanced International Studies, and a BA from Reed College. The moderator for the discussion was Kenji Price, an attorney with a law firm of Carl Smith Ball. How foreign law affects, in particular, U.S. constitutional interpretation, or whether it even should affect the interpretation of the United States Constitution. So I'm going to start by directing my first question towards Judge Clifton. First, for years scholars and jurors have taken different views about this issue. What role did any foreign law should have in interpreting the Constitution? From your observations as a judge and your research and your experiences, can you summarize some of the more prominent viewpoints? This morning, driving in, I heard as many of you probably did on Hawaii Public Radio, a story about how three African nations, South Africa, Burundi, I've forgotten, Gambia, withdrawing from the International Criminal Court, saying that it's the International Caucasian Court and so forth, and doesn't reflect, it's unfairly aimed at Africans and so forth. And it struck me because I'd also been thinking about in preparation for this, a program I saw, I think it was the Charlie Rose show several years ago when Justice Breyer was on one of his book tours and promoting a book. And he was asked about a citation he had included in one of his previous opinions for the Supreme Court. I'll find I don't recall what opinion it was and I don't recall what he said, but I've heard about this before, among the various countries he cited to, for the most part these citations are to European countries. But he also referenced Zimbabwe. And the host, I think it was Charlie Rose, questioned Zimbabwe, and Justice Breyer acknowledged, well, maybe it's not one of the major sources of human rights law for the world. But it suggests, I mean, Kenji's question raises some question, what are we talking about when we're speaking of foreign law? What foreign law do we look to that we can laugh and with good reason, perhaps about Zimbabwe, but you realize from the African perspective, now why not us? And let's face it, in Africa we know, for example, same-sex marriage, none too popular. And yet, should we be turning to foreign law, what does that mean? One of the concerns that we can't disregard is that when we look to foreign law and try to put our law in the context of foreign law, are you picking and choosing, and are you picking and choosing in a way that simply confirms what you're trying to establish? Well, on one level as a judge, I'd have to say yes, I mean judges make up their minds and then try to explain something I've taken to in opinion writing. I'm writing an opinion, to say right up front, what the result's going to be. For years, and you still see opinions like this, and you still read briefs like this, where you get a sense you're being led through the jungle on exploration, and finally, voila, there's the answer. But you know very well, the person writing that knew from the beginning what the answer was going to be, right? And so yes, it is true, as judges are writing, they are picking and choosing, and they're picking law review articles on the rare occasions they're cited. And frankly, you could say citation to law review articles is now about on a par of citations to foreign law authorities. They're just not part of the judiciary very much anymore. But judges are picking and choosing. And even the cases I've cited, the Roper is the one that I mentioned where there was the lengthiest discussion of foreign law. If you had taken out that foreign law discussion, would the result have been any different? I'm confident the answer is no. That's simply being one of the sources being offered up in that case by Justice Kennedy to explain the basis for his conclusion that the evolving standards of human decency has meant this form of punishment for behavior when you were a minor is no longer acceptable and hence falls under the prohibition against cruel and unusual punishment. Judge Burns? Anybody who has a good idea, I don't care if he came from China, Russia, Timbuktu, buy into it, accept it, use it, if it's a better idea. So in our case, we obviously have to look to Judge Clifton when his interpretation of the federal constitution and to the extent that our state constitution is the same. We're pretty well stuck with it. Think of the cases on the mainline where the state court went one way and the federal court went the other, which one won. So, but if it's something unique, if it's something that the feds don't get into, we can make our own interpretation. But here again, if it's something that some foreign country has gotten its nose into and they got a better idea than we got or say, for example, cruel and unusual punishment, if they got a better idea than we have, why not? Now our final speaker, Brad Glosser, there's certainly no unanimity in many of these questions, although we do have what we would consider to be defining guidance, if you will, in the form of the treaties and international covenants that ostensibly the United States is a signatory to. And the technicalities that accompany, if you will, the adoption of these international legal norms, principle rules, make for some intriguing gradation. So for example, in a subject that I'll be bringing up a little bit later, the United Nations Convention on the Law of the Sea, I think, is recognized by and large as being the determinant international body of rules and norms that tell us what is the law in regard to these disputes. The United States has signed the treaty, but we've never ratified it. So what degree does that distinction between our process and how far we've gone, does that make a difference in the degree to the way that we're prepared to afford that or that the way that the United States can attach to it as we make the case for the applicability of Wim Gloss around the world? And I mean, it's quite frequently thrown in our place, and this is hopefully a subject that we can take up later. But the idea that the United States is such a defender of Wim Gloss without having ratified the agreement kind of undermines, I think, our position. And this may be not be a key consideration, go directly to your question, but I think a frame that I'd like to offer in the consideration of these questions is that I think the degree to which the United States is prepared to accept and be part of a larger framework, if you will, of judicial reasoning and considerations of human rights, et cetera, reflects very greatly on the way that this country is perceived within the world more generally. That we live in an age where there's far greater transparency into the decisions that are made, into the reasoning that is used, that is more intimately connected to other jurisdictions around the world by virtue of globalization and legal processes. And consequently, the degree to which we are prepared to be seen as an integral part of that as opposed to standing away from it and being separate from it really says a great deal about our nature, the nature of the United States relationship to the world more generally. So that while we are considering this in the context of international or domestic legal decision making, it has a very profound influence on the way we're perceived as being part of a larger community of nations. On one level, the reaction of the Oklahoma legislature, keep foreign law out, is plainly an overreaction. It's the same sentiment that led to having freedom fries when we didn't like what the French were doing, like the French wanted to take responsibility for French fries. But it's not entirely without some substance. I mean, there are areas where our law is markedly out of step with the rest of the world, and we like it that way. I think the First Amendment may be the best example. The United States is well over to one side of the spectrum of permitting speech and protecting speech that in other nations would be found libelous or criminal. It's not an accident that a lot of libel suits are brought in England, because you couldn't possibly win most of those suits from the get-go in the United States. Many of the European nations have hate crime statutes. Most of them derive from World War II and the efforts to stamp out Nazis, including neo-Nazis and their various permutations and so forth. We don't do that. We let the American Nazi Party march through Skokie, Illinois, the town that had more Holocaust survivors than any other. And so if you are a defender of that view of the First Amendment, you have substantive reasons to be concerned with somebody who says we ought to interpret our Constitution through the lenses of the Europeans or whatever other part of the world you're interested in, because there are distinct differences. So when people in Oklahoma or Kansas or Hawaii or wherever else say we're different about this, one of the walls they want to put up is keep those foreign ideas out. And if you start picking and choosing which ideas you're willing to accept and which ideas you're not willing to accept, then you're not playing the same game. So you can understand why there's some pushback if you feel strongly and you can pick whatever issue you want, if it be at the same sex marriage, be it the First Amendment, be it capital punishment. If you feel strongly in a given view, the temptation to pick and choose what you'll rely upon is enormous. But if you're talking now about should foreign law be considered, that cuts across all those issues and they need to be prepared to consider the context of all those issues. I'd like to take a quote from Scalia in that cruel and unusual punishment case. He said, where there is not a settled consensus amongst our own people, the views of other nations, however enlightened the justices of this court may think them to be cannot be imposed upon the Americans through the Constitution. And I scratch my head at that one. He's basically saying imposed. I say it's a good thought. If it's a good thought accepted, if it's not a good thought rejected, you're not imposing foreign law on them. You're imposing the foreign idea. Lawfare is actually coined in 1999 by a couple of actually weirdly enough Chinese PLA People's Liberation Army officers. And they used it as a means of arguing that it was a nation's use of legalized international instruments to achieve strategic objectives. And it's kind of, it took on for a while a pejorative sense that this was a way that a country might use international law to frustrate or to achieve, to prevent an adversary from doing something that they were troubled by. And over time, I think that that notion has expanded to become far less negative. And now we look at it as in fact a key component of international engagement. And it is a way that we use instruments of international law in order to achieve our strategic, the interests of our country as a whole. And I think that, and there's a, there's a comment by General Charles Dunlap, who was really instrumental I think when he was at the Pentagon working on these issues, who says, this is the use of law as a weapon of war and the strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective. I think that again is a little dated. I think we're looking at this more expansively. But one of the remarks I want to make before we go much further is that what we've talked about really I think to this point is essentially the way that the international system affects the way that Americans kind of live their lives and the rules by which they are judged and are forced to live a daily basis. The way that I look at this as a foreign policy person is the way that the United States uses international law to advance its interests in the world beyond its borders. So I mean, most broad conception would be as lawfare. But I mean, we frequently forget that underneath many of the critical foreign policy questions that we're talking about on a daily basis are really fundamental legal issues. And let me just offer two of them, take five minutes to riff while I can. The first is North Korea. You know, and we look at North Korea as being this crazy state run by this crazy family of which, by the way, is all wrong. They're not crazy and they're very smart people. But we talk about them as these three Kims that have threatened the world and engage in bellicose behavior and are viewed as a threat to the United States and our interests, those of our allies, our partners, our friends, etc., etc. And that's part of it. But really one of the key facets of our problem with North Korea is really essentially a legal one. And that is, this is a government that has signed international treaties and made international obligations to remain a state that does not possess nuclear weapons. Those are legal commitments. We don't like it, of course. But our objection to this is really fundamentally based on an international treaty. It was an excellent discussion, this question of foreign law and treaties and the U.S. Constitution. And there's so much, it just opened a whole series of important boxes that are becoming more important than they have been. And so I enjoyed it. As a practitioner, it seems to me most of the foreign law questions that are common tend to be at least attempted resolved through the treaty process. But that, in turn, as we see with the trade agreements recently, there's a lot of doubt over how these large packages should be addressed and how they can become the law of our land without with Congress's approval, the concessions that the Congress has made of its power to regulate trade. I could see this opening into a whole series of presentations and discussions. So a lot of fun. I don't think people look very specifically except when they're forced to. It's a question of when is the United States, does it see itself as part of a larger community of nations or is somehow separate? And this is kind of tricky. You know, when we're talking the typical catch phrase in the U.S. foreign policy debate is American exceptionalism. And we use that as kind of a, if you will, a shorthand for the need for leadership. But there is a dangerous tendency that we've seen in some components of this election campaign to separate the United States from the rest of the world. And I think the degree to which we put ourselves apart by arguing that the rules that bind everyone else don't apply to us, we got a real issue. I mean, if you look back, again, you know, I was talking about the post war order, if, you know, the thing that was most remarkable about the United States did in 1945, 44, 45, 46 was that we bound ourselves into an order and not as opposed to just merely being saying the rules are for the little guy. And, you know, we turned our back on a system that said the big power is determined the way things work that we promote in international democracy. If it works, it's a different issue. But that's it, I think it's more our degree to acknowledge that we two are bound by rules, that we two are limited in the expression of our power and that we two are prepared to be part of this bigger community. I learned a few things from the judge and the other gentlemen. So I enjoyed it. I thought it was it was engaging the discussion back and forth. I think in terms of the first half and the second half has to do more with the the impact of what we do on on other nations. And of course I have no no perspective on that. So I thought it was fascinating to hear that indeed what we do does have impact elsewhere. It is rare where you'll get to get this kind of judicial wisdom from judges with so much experience from different jurisdictions and to get that perspective from a foreign policy expert. So I thought all in all it was just a wonderful conversation. We all know that the world is smaller and more interdependent now. Foreign law is more easily accessible than it was. And American law is more easily accessible to foreign lawyers and governments than it was. That being the case, the world canon does see us and will judge us on whether we respect the legal evolution of systems other than our own. It is therefore all the more important that American judges and lawyers be familiar with and sensitive to the law and precedent in other countries and on occasion pay appropriate respect to it. Not only in the context of the way those countries work but in the context of the way the world now works. The message is that our judges lawyers and policymakers including our foreign policymakers need to be thinking globally on comparative law issues like this. We commend the organizers and participants in this program for raising the subject and initiating the discussion among those who may somehow be able to do something about it. We can only hope that this discussion is taking place in other jurisdictions around the country. And now let's take a look at our ThinkTech calendar of events going forward. There's so much happening in Hawaii. Sometimes things happen under the radar and we don't hear much about them. But ThinkTech will take you there. Remember, you can watch ThinkTech on OC16 several times every week to stay current on what's happening in government, industry, academia and communities around the islands. Remember also that ThinkTech broadcasts its daily talk shows live on the internet from 11 a.m. to 5 p.m. on weekdays. Then we broadcast our earlier shows all night long and on the weekends. And some people listen to them all night long and on the weekends. If you missed a show, or if you want to replay or share any of our shows, they're all archived on ThinkTechHawaii.com and YouTube. For our audio stream, go to ThinkTechHawaii.com slash radio. Visit ThinkTechHawaii.com for our weekly calendar and live stream and YouTube links, or sign up on our email list and get the daily docket of our upcoming shows and uploads. ThinkTech has a high-tech green screen studio at Pioneer Plaza. If you want to be part of our live audience or participate in our programs and help us raise public awareness, contact us at Think at ThinkTechHawaii.com. Give us a thumbs up on YouTube, or send us a tweet at ThinkTechHI. We'd like to know how you feel about the issues and events that affect our lives in Hawaii. We want to stay in touch with you, and we'd like you to stay in touch with us. Let's think together. Act. You can call in and join our talk shows live. While you're watching any of our shows, you can call in at 415-871-2474 and pose a question or make a comment to participate in the discussion. We'll be right back to wrap up this week's edition of ThinkTech. But first, we want to thank our underwriters. Okay, Kowie. That wraps up this week's edition of ThinkTech. Remember, you can watch ThinkTech on OC16 several times every week. Can't get enough of it, just like Kowie does. For additional times, check out OC16.tv. For lots more ThinkTech videos and for underwriting and sponsorship opportunities on ThinkTech, visit ThinkTechHawaii.com, be a guest or a host, a producer or an intern, and help us reach and have an impact on Hawaii. Thanks so much for being part of our ThinkTech family and supporting our open discussion of tech, energy, diversification, and global awareness in Hawaii. You can watch this show throughout the week and tune in next Sunday evening for our next important weekly episode. I'm Jay Fiedel. And I'm Kowie Lucas. Aloha, everyone.