Diplomacy through official channels is easily controlled by the executive branch. While there may be the occasional hiccup, policy is generally made and carried out, and people stay on message. Congressional diplomacy is a bit trickier, but congress has only limited authorities in these situations, and the President has quite a few checks and balances to keep congress generally in line. The third branch of government, however, is ideally very independent. The judicial branch (the systems of courts with the Supreme Court at the head) doesn’t have much of a role in foreign policy. (An interesting constitutional note, however, is this little quote, “In all Cases affecting Ambassadors, other public Ministers and Consuls… the supreme Court shall have original Jurisdiction.”)
Judicial diplomacy is a tricky thing. We see it frequently in Consular work, as spouses from multiple countries wage international custody battles (click here for an example). We’re also seeing it right now in the trial of a Somali pirate. (In this case, at least the “government” of Somalia seems to be in agreement, saying, “Over all, we have full confidence in the American legal system, and I think in due course, justice will be served on both sides.”) So, this is a pretty common thing. (I’d say increasingly common, as that’s my perception, but I don’t have any empirical data to back that up.)
One notable example is the trial of Binyam Mohamed, a British citizen who has accused the U.S. of torturing him while in the custody of various third countries (and Britain of being accomplice to this torture). According to the Washington Times, the U.S. sent a letter saying,
If it is determined that [her majesty's government] is unable to protect information we provide to it, even if that inability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in the future…
Neither in [those four] memoranda, nor in any statements of the administration accompanying their release, was reference made to the identity of any foreign government that might have assisted the United States.
Given the declassification of the highly sensitive information contained in the memoranda, the fact that the president refrained from providing any information about foreign governments is indicative that the United States continues to preserve the secrecy of such information as critical to our national security.”
Interestingly, Mohamed’s American Citizen lawyer is threatening the U.S. government. The article goes on to say,
‘The U.S. is committing a criminal offense in Britain by seeking to conceal this information. What the Obama administration did is not just ill-advised, it is illegal,’ he said.
Mr. Smith said he is scheduled to meet with the Metropolitan Police next week. ‘One of the questions that will come up is whether these statements by the U.S. government are an independent crime that should be investigated,’ he said.
In this case it seems that executive diplomacy is trumping judicial diplomacy (unlike the standard in those custody cases). Sharing classified information that was given to you by another country is a critical no-no if you want intelligence to continue being shared).
Anyway, you hear from time to time that the judicial branch gets out of control with its activism and insufficient checks. Here’s something else for those folks to worry about.
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this is not quite the appropriate spot for the comment, but the link to your top 5 reasons not to join the foreign service directs to an error page. your FSOT guide has been very helpful, so i was hoping to be able to read the “not to” bit as well…