Pres. George W. Bush ordered a robust government-wide response to the 9/11 attacks, and did so fortified by an authorization for the use of military force approved overwhelmingly by the American people’s elected representatives in both houses of Congress. U.S. military and intelligence forces, together with a coalition of allies, conducted combat operations that devastated al-Qaeda’s capabilities, killing and capturing thousands of enemy operatives. The National Security Agency monitored international enemy communications, including those crossing U.S. borders, to thwart further coordination between al-Qaeda’s overseas leaders and terrorists in the United States. The Justice Department, using enhanced national-security investigative powers enacted by a virtually unanimous Congress, rooted out terror cells in several successful prosecutions.
The strategy has kept the American people safe from a reprise of 9/11 for eight years. But it was all wrong, argues Harold Hongju Koh, the Yale Law School dean whom Pres. Barack Obama has nominated for the critical position of legal adviser to the State Department. “On the day after the attack,” Koh wrote in 2003, “George Bush could have flown to New York to stand in solidarity with the world’s ambassadors in front of the United Nations.” In reality, the U.N. building and its habitués were not available for a photo-op at the time, owing to the inferno a bit farther downtown. But reality is not Koh’s usual stomping ground.
He prefers the transnational-progressive vision of a post-sovereign order in which terror networks and rogue states are to be controlled by the luminous power of the law. Not American law, or even international law, but global law, first conceived by progressive academics (for instance, Harold Koh), then applied, and supposedly enforced, by supra-national tribunals. Faced with a terrorist atrocity, Koh argues, President Bush should have forgone all that national-defense mobilization and “supported the International Criminal Court as a way of bringing the Osama bin Ladens and Saddam Husseins of the world to justice.”
Koh is a radical transnationalist. Transnationalist is not a term of abuse; it is the term Koh himself uses to distinguish his worldview from that underpinning traditional American jurisprudence — the jurisprudence of national sovereignty. Koh does not see the United States as an independent nation with a natural right to security — the right to “preserve herself from all injury,” in the words of Emmerich de Vattel, the Swiss international-law pioneer admired by the Framers. He instead advocates a “transnational jurisprudence” that “assumes America’s political and economic interdependence with other nations operating within the international legal system.”
Koh’s support of a global legal system is the key to anticipating where he would try to take the country. As Ethics and Public Policy Center president M. Edward Whelan III observes in a spellbinding series on SMALLCAPSNational Review Online’s “Bench Memos,” Koh “would be advising on the legal positions that the United States should be taking in federal courts on issues arguably implicating international law. . . . He would be counseling State Department officials on international negotiations, treaty interpretation, and treaty implementation; and he would be a major player in interagency disputes on all these matters.” If confirmed, Koh would be a powerful voice for those who seek to use global human-rights law to control relations not only between sovereign states, but between citizens and their governments. Koh would be enormously influential in an administration that is multilateralist in its instincts, eager to be admired in Europe, fixated on “engagement” (even with our enemies), and inclined to govern with a poorly camouflaged loathing of American power (at least when used to pursue American interests).
The traditional understanding of U.S. sovereignty holds that the American people established a federal system of government to maximize their self-determination. It includes democratically accountable state and local governments to address most concerns, a democratically accountable national government of limited powers, and legal systems (federal, state, and local) to order transactions within the body politic. Interaction with the outside world is principally political, not legal — the ambit of diplomacy, not courts.
Under the Constitution, legal obligations can be assumed in the international arena, but only through the consent of the governed. Thus the “Law of Nations” (a term for a very narrow corpus, dealing mostly with piracy and the safe conduct of diplomats) applies only to the extent enacted by Congress. Similarly, treaties become the law of the land only if democratically ratified by a supermajority of the Senate.
Koh rejects the traditional understanding of American sovereignty and the constitutional order that maintains it. In his mind, the United States is just one of 192 nations in a “globalizing world” subservient to “the emergence of transnational law.” Democratic decision-making is to be supplanted by judicial oligarchy. As Koh puts it, “Domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law, not simply to promote American aims, but to advance the broader development of a well-functioning international judicial system.”
#page#That judicial oligarchy is to be part of, and to take its marching orders from, a transnational avant-garde that serves not the interests of any particular people — most certainly not the American people — but the international law of human rights.
This agenda is to be judicially imposed in two ways.
The first involves redefining “treaty.” Traditionally, treaties are agreements between sovereign governments. They are not self-executing, meaning they create no judicially enforceable rights for states or individuals. Treaty disputes are to be resolved not legally, but diplomatically. That presumption can be set aside only when treaties expressly say so, and even here there are limits: A treaty may not supersede the Constitution — it may not vest the federal government, at the behest of foreign powers, with authority to infringe state and individual rights.
Koh & Co. are fundamentally altering this understanding. For the transnationalist, treaties are boundless in scope and presumptively self-executing — empowering judges to impose terms on unwilling states, for the benefit of individuals (even hostile aliens), notwithstanding that these terms never would have been agreed to had they been made explicit. In 2006, for example, the Supreme Court drew on Common Article 3 (CA3) of the Geneva Conventions to grant al-Qaeda American judicial rights, despite the fact that, by its own terms, CA3 applies only to civil wars, and that the Geneva Conventions expressly provide that disputes about the treaty’s application be subject to diplomatic resolution, not lawsuits.
Significantly, the explosion of treaty writing in the last 60 years is chockablock with the Left’s agenda: state control of child-rearing, universal health care, comparable-worth compensation, prohibition of capital punishment, rescission of firearms rights, etc. The U.N. Charter, furthermore, literally would forbid a nation to take action preventing an attack (even if it is obvious the attack is imminent) and allow the Security Council to limit any response to an attack at a whim. Under the transnationalist approach, federal and international courts could emasculate the political branches by giving the force of law to the terms of any international accord — including treaties the U.S. has not ratified.
The transnationalist’s second and more sinister mode of judicial rule is “customary international law.” This promiscuous concept began innocently enough: as the notion that, beyond the written international law (found in treaties), there is an unwritten but equally binding law derived from the “general and consistent practice” of nations. Arguably, this is sensible as long as it accurately reflects behavioral norms voluntarily established over a long period of time. But the transmogrification of this concept in modern times eviscerates both consent and custom.
The way the game works is this: Activist law professors such as Koh collude with likeminded NGOs to formulate what are presented as transcendent principles of social and economic justice. These are said to be teased out of treaty terms; the writings of international-law experts who interpret treaties and customs; the diplomatic, political, military, and legal behavior of states; the decisions of international tribunals; the proceedings of the U.N.; and the interpretive publications and conventions of influential NGOs. By the ipse dixit of these experts, principles are supposedly invested with the force of common law, becoming applicable in federal courts despite their derivation from treaties the U.S. has declined to sign, much less ratify; treaties the U.S. has ratified only with caveats and reservations that contradict the supposed customary law; or thin air.
When the forces of democratic self-determination protest, Koh disparages them. He writes with contempt about American exceptionalism, urging the “transnational legal process” as the ideal means to “avoid [its] most negative and damaging features.” He rails at “U.S. insistence upon double standards” — which basically means any step America takes in pursuance of its national interests that is out of step with European opinion. He would have courts overrule the death penalty, violate the right to bear arms, and “moderate” our “exceptional free speech tradition.” He would require that alien enemy combatants be tried in civilian federal courts — the disastrous strategy of the 1990s that, as even the Obama administration has recognized, would leave untouched the sea of terrorists who cannot be apprehended or tried under our burdensome due-process standards. And he would require federal and state courts to give effect to the rulings of the International Court of Justice, which in recent years has, among other things, attempted to invalidate death sentences in Texas and held that Israel’s security fence — which reduced suicide bombings by more than 90 percent — is a violation of international law.
As president, Barack Obama is sworn to uphold the Constitution. His nominee for State Department legal adviser, guided by leftist academics and insulated from the will of the people, would diminish the Constitution in favor of rule by judges. Global governance is not American governance — and the difference will make the world a very dangerous place for Americans.