From Commentary Magazine's "Contentions" Weblog
June 23, 2009

A “Distinctly ‘Feminist Procedure’”

By Ted R. Bromund

Yesterday evening, Senator Harry Reid filed cloture on the nomination of Harold Koh, formerly Dean of Yale Law, to be Legal Adviser to the State Department. There were multiple holds on Koh, so absent administration willingness to make a deal this was the only way forward. It will take every Democratic vote to get to the sixty required.

No matter where you stand on Koh it’s difficult to avoid a sneaking admiration for him. So much of academia at its most public is performance art - even if the issues at stake are serious - and Koh is a superb performer.

Judge Sotomayor’s “wise Latina” comment has already come in for extensive criticism, and Jennifer Rubin, among others, has raised wonderful questions about the “noxious double standard” involved in the Judge’s membership in the all-female Belizean Grove. But Koh’s gotten in on the feminist act too. His views on American exceptionalism, sovereignty, and treaties, among other subjects, have been widely ventilated, but no one has picked up on his 1993 article in the University of Cincinnati Law Review on “Two Cheers for Feminist Procedure.”

On two dimensions - the cognitive and the critical - Koh gives feminist procedure “very high marks.” By cognitive, Koh means that feminist theory, correctly in his eyes, reveals that legal procedure “reinforces certain values which could be called ‘male’: individualism, neutrality, formality, separateness, and autonomy” and devalues the female “connectedness, reciprocity, empathy, relationship, informality, and context.” By critical, Koh means that feminist theory has introduced “a new dichotomy - the male/female dichotomy - to the study of procedure.”

I’ve rather lost track of whether feminists believe in innate differences between men and women, or whether they believe it’s all socially constructed. Koh’s not too clear on this either: he says differences are socially constructed, but also claims the dichotomy between men and women will soon be basic to legal procedure. It’s on that basis that Koh applauds the “very substantial contributions that feminist theory can make to the study of [legal] procedure.”

So what’s lacking? Feminist procedure, according to Koh, hasn’t yet - or hadn’t yet, in 1993 - “begun to address a constructive program of reform” to create a world in which “gender issues are taken systematically into account,” in which procedural rules are significantly tailored to the personal attributes - i.e. the gender - of the litigant. That, in Koh’s words, is “the unfinished task.” So, onwards to the world of Judge Sotomayor and the “wise Latinas.”

And then comes the performance twist. Koh’s been around long enough to see the attack coming: he’s asked for feminist procedure to formalize itself, but feminist procedure, according to him, is anti-formalist, formalism being a male virtue. So by asking this, he’s revealed his own complicity in the gendered nature of justice. He parries with the skill of a judo master, with a mea culpa that he is, after all, a man - more essentialism - and that it’s important for feminists to “reach out beyond the converted” if “we” are to move to a “distinctively feminist procedure.”

As performance, this is wonderful stuff. But as law, it
is - well, it is not law. It is procedure made anew for every case. In other words, it is arbitrary. It is also a ridiculous slander on both men, who are capable of appreciating context, and women, who are capable of being neutral. And that is one of the worst things about the kind of justice Koh, and Sotomayor, are espousing: far from condemning legally-approved social separation as inherently unjust (as liberals used to), they are actively promoting it in the name of their brand of justice.

--Posted - 06.23.2009 - 6:47 PM

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From The New Ledger
May 25, 2009

American Exceptionalism and its Enemies

By Ted Bromund

The United States is an exceptional nation. Most Americans would not regard that as a controversial statement. And there is a good reason for that: it is true. The U.S. is the world’s oldest and most stable capitalist liberal democracy, older even than Great Britain, which did not become a mass democracy until the late nineteenth century.

It was the first nation founded in an act of rebellion against a colonial power. It was the first nation founded on the belief that the rights of man are inherent and God-given, and that the powers of the government derive from the consent of the people. It was, therefore, the first nation to recognize that the state must be limited to the powers granted by the people, and to recognize explicitly that the state was founded to secure their rights. It was the first nation to be based on a separation of powers, and on the clear subordination of the military to civilian rule. And it was the first nation to state all of this in a constitution that was publicly debated and democratically accepted.

Other nations – Britain, most notably – share in some of these traditions, and that is not surprisingly, because the United States was deeply influenced by ideas born in England in the 17th century. But precisely because the U.S. was founded – whereas Britain evolved – the U.S. exemplifies these virtues in their purest form. That is why it is exceptional. And that is a fact that has been recognized by Europeans for centuries.

Many of the great works of American interpretation – from Crevecoeur’s Letters from an American Farmer, to Tocqueville’s great Democracy in America, to Lord James Bryce’s American Commonwealth, were written by foreigners who accepted that America was exceptional, and wanted to understand why. And hundreds of other eminent Europeans – from Charles Dickens to Charles Dilke – visited the U.S. for the same purpose: to understand a place that was like nothing else in the world.

By and large, the conservatives disliked the U.S., and the liberals liked it. There was a good reason for that: the U.S. was founded on liberal values, and in its acceptance of modernity, its everyday equality of manners, the freedom of movement within it, its mix of immigrants, and the protections and praise it gave to property-holding by all classes, it was, in the terms of the nineteenth century, a profoundly liberal country. Of course, as European observers realized, it was also deeply conservative in its attachment to the order established in 1776 and 1787. But that core of conservatism, the more perceptive among them concluded, was precisely what made it possible for it to sustain its liberalism, what prevented it from breaking down as the traditionalist European conservatives hoped it would.

American scholars agreed with the liberal Europeans. Much of American scholarship was devoted, in one way or another, to explaining why the United States was exceptional. The effort reached a peak with Frederick Jackson Turner’s theory of the frontier, but it continued well into the 20th century. After World War II, indeed, it led to the creation of American Studies, an entirely new academic discipline founded on the argument that, now that the U.S. was a world power, we needed to understand ourselves, and explain our unusual ways to others, with greater clarity.

Those ways were, indeed, unusual. Most Americans believe the U.S. is exceptional, but we often forget just how unusual a country this is. The U.S. has a remarkable free speech tradition, which given tremendous protections to the press and to those accused of libel. It separates church and state in a way that is still rare, even in Europe. It gives rights to those accused of crimes that are unparalleled in history, or elsewhere in the world. It has a more open government than any other nation, one that gives citizens unprecedented access to its doings.

And, while like all nations it controls its borders, it has welcomed more immigrants from more places than any other nation in the world. Indeed, the popularity of the U.S. as a destination for immigrants is the ultimate proof that it is, indeed, exceptional. Emigration is the greatest and most democratic election in the world, because it is based on the individual decisions of millions. The U.S. has been winning that great election since it was founded.

In some ways, such as its very liberal abortion laws, the U.S. is exceptional in ways that conservatives dislike. But by and large, conservatives today celebrate American exceptionalism. That is curious, in a way, because so much of what makes the U.S. exceptional is liberal in origin. But that simply goes to make Tocqueville’s point: the U.S. has a liberal tradition and a conservative attachment to it.

Now, wipe all that from your mind. Forget the history, forget Tocqueville, forget generations of scholarship, forget the existence of the Constitution and the Bill of Rights, forget the heroes like Lincoln, Martin Luther King Jr., and John F. Kennedy who testified to it, forget the fact that we are all the children of immigrants, and forget the evidence of your own eyes. In the American academy today, and in the upper reaches of the Democratic Party, the claim that the U.S. is exceptional is viewed with skepticism, or with scorn.

This is a difficult fact for most Americans to accept, or to believe, but for these elites, the word ‘exceptionalism’ is criticism, not praise. In the academy, where I spent more than twenty years, ‘American exceptionalism’ is treated, at best, as a myth born of self-righteous national chauvinism. At worst, it is a badly-disguised code word for knuckle-dragging reactionaries and closet fascists. Nothing pinpoints you as a conservative in the American academy faster than referring to American exceptionalism without a sneer, and nothing ingratiates you faster than dismissing anyone who believes in it as a dangerous right-winger and an historical ignoramus.

President Obama was educated in this academy – BA from Columbia University, JD from Harvard Law – so it is no surprise that he shares its dismissive attitude towards ‘American exceptionalism.’ When asked by a reporter in France if he believed in it, his response was characteristic: “I believe in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism.”

It is one thing – and it is quite right – for an American president to recognize that other nations have their own patriotisms. Americans are not shocked by this: in fact, they are only shocked when citizens of other countries are not proud of their homelands. But it is quite another thing for an American president to make American exceptionalism into a statement of personal opinion, into something that is as valid, or invalid, as any other opinion.

All nations may be special to their citizens, but the United States, historically, is unique. If the President of the United States cannot bring himself to make this claim, which is both true and a basic part of fulfilling his duty as the leader of the nation, then he has aligned himself with the claim’s opponents, albeit it with the gentler ones. That is something that no previous president, from either party, has done.

And that pattern has carried through in the President’s nominations. The foremost example is Harold Koh, the former Dean of the Yale Law School , nominated as Legal Adviser to the State Department. Koh recognizes that the U.S. is an exceptional nation. For him, this is a serious problem, one the American judiciary needs to redress. For example, in a 2003 article “On American Exceptionalism,” published in the Stanford Law Review, Koh acknowledges that the U.S. affords far greater protection than most countries to speech and the press. For Koh, this is cause for a measure of concern:

On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of “margin of appreciation,” familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.

So, the U.S.’s differences from the rest of the world are not “too deeply unsettling” and, thanks to EU law, can be tolerated to “some measure.” But how far, exactly, should they be tolerated? In a footnote, Koh gives his answer: the courts should reinterpret the U.S.’s free speech tradition so it does not cause problems abroad:

in a globalizing world, our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet. In my view, however, our Supreme Court can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation.

And that is not an isolated example. For Koh, all American exceptionalism is bad: the only relevant question is which part of the tradition is the worst. Koh concludes that:

I prefer to distinguish among four somewhat different faces of American exceptionalism, which I call, in order of ascending opprobrium: distinctive rights, different labels, the ‘flying buttress’ mentality, and double standards. In my view, the fourth face - double standards - presents the most dangerous and destructive form of American exceptionalism.

The least dangerous are America’s distinctive rights, such as free speech: these can be tolerated to some extent, though they should be reinterpreted if they pose problems. The ‘different labels’ problem is Koh’s attack on the American refusal – as he sees it – to use internationally-recognized terms to describe practices that the U.S. rejects. According to Koh, this is a perverse relic of history, “a quirky, nonintegrationist feature of our cultural distinctiveness (akin to our continuing use of feet and inches, rather than the metric system).”

More accurately, it is a result of the fact that the U.S. is a federal nation, and the various states have the power and the right to report statistics using terms of their own choice. Similarly, the national government is ultimately responsible to the American people, not the preferences of international organization – though Koh would not accept that point. What matters is that the government is following its own laws, which prescribe certain terms.

The other facet of the ‘labels’ problem, as Koh sees it, are America’s “exclusionary treaty practices - e.g., nonratification, ratification with reservations, and the non-self-executing treaty doctrine.” In other words, if the U.S. decides not to ratify a treaty or to ratify it partially, or if it argues that treaties must be backed up by Congressional passage of supporting legislation, this too is exceptionalist, and a problem. It is not as serious a problem as the ones higher on his list, but, yes: the simple fact that the Senate has exercised its constitutional right not to ratify a treaty is, according to Koh, a worrying piece of American exceptionalism.

The third aspect of American exceptionalism – and this is where Koh’s anger begins to mount – is its “flying buttress mentality.” In other words, the U.S. claims to be a pillar of human rights, but it is really a flying buttress: it is “willing to stand outside the structure supporting it, but unwilling to subject itself to the critical examination and rules of that structure.” Koh refers here explicitly to the Convention on the Rights of the Child, a thoroughly destructive but widely-ratified treaty, though he could easily adduce others, such as the Convention on the Elimination of All Forms of Discrimination Against Women, that fall into the same pattern.

Koh is making the claim not that the U.S. is a serial abuser of children, but that failing to ratify treaties that other nations have signed, regardless of how good or bad the treaty is, or how serious or frivolous the signatures of the others are, is an example of a “promiscuous failure.” Indeed, in a May 8, 2001 op-ed in the Washington Post, Koh attacked the U.S. for failing to ratify treaties that “far less law-abiding countries” have signed.

This is a startlingly naïve claim. It does not appear to have occurred to Koh that the fact that many “far less-law abiding” countries have signed a treaty might be a valid reason for the U.S. to refuse to sign on: if the other signatories are not law-abiding, the treaty is worthless, because the signatories will not obey it. More broadly, Koh ignores the fact that the reason why the U.S. has refused to ratify many treaties is because he, and his supporters, have driven the train of international treaty-making so fast that the wheels have come off: treaties have become unenforceable expressions of aspirations, not serious national commitments. In those circumstances, the U.S. is being responsible, not irresponsible, by refusing to ratify.

Finally, there is Koh’s fourth area, “double standards,” when “the United States actually uses its exceptional power and wealth to promote a double standard.” By “double standard,” Koh does not mean what most people do by that term: that the U.S. does one thing but encourages or forces other to do another. He criticizes the U.S. for declining to ratify the Kyoto Protocol or the Rome Statute that established the International Criminal Court, but this is not a double standard: it is simply an example of the U.S. not ratifying a treaty of which Koh approves. Other nations remain entirely free to ratify, or not to do so.

For Koh, in short, “double standard” means that the U.S. is doing something different, and something he dislikes, from other nations. But that is inherent in the right of self-government, which is the fundamental part of the American exceptionalist tradition. Even for those who want the U.S. to ratify all the treaties to which it is not currently party, it should be infinitely more important for the U.S. to retain the right of self-government, which includes the right to accept or reject treaties. Those treaties, important though they are – and as bad as conservatives correctly believe them to be – are ultimately unimportant compared to the right of self-government that Koh is denigrating with his attack on the hypocrisy of the U.S. for exercising it.

The problem that liberal elites today have with American exceptionalism is simple to sum up. Before the mid-1960s, most liberals believed in it. But then 1968 happened, and the New Left took over the academy and the intellectual leadership of the Democratic Party. The New Left was not rebelling against American conservatism, which in the mid-1960s was still nascent. It was rebelling against American liberalism, and – among much else – against its belief in the basic goodness and exceptionalness of America. American conservatism is, really, a rebellion against that rebellion, fortified by the neo-conservatives who split away from American liberalism when they realized it was being taken over by the radicals.

The more moderate Democratic leaders – Bill Clinton, preeminently – have resisted the New Left, but the tendencies of the party’s activists and elite are fundamentally opposed to American exceptionalism. It is in their hearts, and they can do no other. For the post-war liberals, the U.S. was liberal and modern. For the New Left, it is Europe that holds that crown: to believe in American exceptionalism is to believe that the U.S. should not be Europeanized.

And it is from those activists and from that elite that Barack Obama springs. His dismissive treatment of American exceptionalism places him more quickly and accurately than anything else he has said. Bill Clinton was heralded as the first Baby Boomer President, but if the Baby Boomers were the Generation of 1968, that title more accurately belongs to Obama. The realities of governing, as he is painfully discovering, will pull Obama one way, but his instincts – as reflected in his nominations, and his public remarks – will pull him the other, in a direction that Truman and Kennedy would have scorned.

This will be – indeed, it is being – hailed as the triumph of liberalism. But in reality it is an attack on it, and on the tradition of American exceptionalism that embodies it. It is equally an assault on the conservative belief that the United States must uphold the source of that exceptionalism, the legacies of 1776 and 1787. For the first time in its history, the United States has a president who has broken with the bipartisan tradition of his predecessors by refusing to state, proudly, that the nation he leads is exceptional. He has nothing to gain from refusing to state this, so he must believe it. And that is a somber reflection for Memorial Day.

Ted R. Bromund is the Senior Research Fellow at the Margaret Thatcher Center for Freedom and a frequent contributor to Commentary.

©2009 THE NEW LEDGER PUBLISHING COMPANY, LLC. All rights reserved.

http://newledger.com/2009/05/american-exceptionalism-and-its-enemies/

The New Ledger
April 23, 2009

Harold Koh and the End of Human Rights

By Ted Bromund

International human rights treaties have a problem. Pretend you are a state, and I am a state. If we make an arms control treaty and you cheat, I can re-arm, and thereby nullify the advantages you have gained. This threat reduces the advantages of cheating, and therefore the incentives to do it. Similarly, if we make a trade treaty and you cheat by imposing tariffs on imports from me, I can retaliate by imposing tariffs on imports from you. Again, you will have gained nothing. In other words, both arms control treaties and trade treaties can be enforced by the signatories, simply by detecting and retaliating against cheating.

But human rights treaties do not work that way. If you are a state and I am a state, and we sign an international convention promising, for example, to respect free speech, what am I supposed to do if you break your pledge? Impose restrictions on free speech at home in retaliation? Clearly not. By their very nature, because they are about internal behavior, not external conduct, human rights treaties pose an exceptionally difficult enforcement problem. That is one reason why, until relatively recently, few treaties focused on human rights.

There are certainly exceptions: Britain’s long-running campaign against the slave trade is a case in point, though even that comparison is vitiated by the fact that Britain was quite willing to use unilateral force to back up its diplomacy. But until the post-1945 era, and especially until the end of the Cold War, these unenforceable treaties were rare. That was because states regarded treaties as mutually binding, enforced commitments between states, and they were only willing to restrict their own sovereignty if others did so after negotiation and in a verifiable way.

But over the last forty years, the number of human rights treaties has exploded. Indeed, the very concept of human rights has changed. Now, as supporters such as Harold Koh at Yale Law School are proud to claim, issues like arms control are conceptualized as human rights problems. Koh views this as an advance, because it gave campaigners a way to make the issue appealing to everyone, which made it possible to move faster than arms control negotiations normally do. In reality, it is a retreat: fast treaties are not necessarily better ones, and by sweeping up arms control into the paradigm of human rights treaties, the unenforceable model of the latter has contaminated the old, enforceable model that used to be applied to the former.

From binding commitments, treaties have become unenforceable aspirations. That has made them very much easier to sign, which helps explain why there are so many human rights treaties in the world today: the cost of a signature is minimal, and the public relations benefits are considerable. But this says nothing about what this model of treaty-making has done for human rights. As Prof. Oona Hathaway at Yale Law School has summarized the problem:

[It] appears that treaty ratification is not infrequently associated with worse practices than otherwise expected. These findings can be explained in part . . . by the dual nature of treaties as both instrumental and expressive instruments. Treaties not only create binding law, but also declare or express the position of countries that ratify them. Because human rights treaties tend to be weakly monitored and enforced, countries that ratify may enjoy the benefits of this expression — including, perhaps, reduced pressure for improvements in practices-without bearing significant costs.

The problem is even worse, of course, when less-well defined ‘international norms’ stand in for treaties. For self-declared transnationalists like Koh – whose views and career are particularly relevant because he has been nominated as the State Department’s Legal Adviser – this vagueness is cause for celebration, not concern, because it means that norms supposedly having the same validity as international law can come from almost anywhere. This is fundamentally why Koh opposed the U.S. boycott of the 2001 Durban Conference: that carnival of anti-Semitism was, as he put it, part of the “emerging global agenda on race discrimination,” and it therefore had a basic validity that even its disgraceful excesses did not destroy. As Koh put it in his 1998 Frankel Lecture, later published in the Houston Law Review:

[L]aw-declaring fora thus include treaty regimes; domestic, regional, and international courts; ad hoc tribunals; domestic and regional legislatures; executive entities; commission of international publicists; and nongovernmental organizations.

But this remarkably broad claim about the origins of international law does not meet the main point: How are human rights treaties, or the even broader category of international norms, to be enforced? Koh’s answer on this point comes in two forms: his writings as a legal scholar, and his practice while Assistant Secretary of State for Democracy, Human Rights, and Labor, the position he held from 1998 to 2001.

Koh addressed the point explicitly as a scholar in January 1998, in the Addison C. Harris Lecture at the University of Indiana School of Law, later published in the Fall 1999 number of the Indiana Law Journal. According to Koh, the simple answer – Hathaway’s answer – that international human rights law is often not enforced is wrong. On the contrary, it is “enforced through a complex, little-understood legal process that I call transnational legal process.” Koh acknowledges that there are other avenues:

[If] the United States is attempting to encourage China to follow norms of international human rights law . . . [it should] act at all five levels: the level of power and coercion, to apply external and political sanctions; at the level of self-interest, to develop carrots that can be offered to China in terms of trade benefits or other kinds of economic incentives; at the level of liberal theory . . . ; at the level of communitarian values, to seek to encourage China to ratify the International Covenants on Civil and Political Rights . . .

But for Koh, the most important part of the process is the final, transnational level:

and finally, from a legal process perspective, to seek to engage the Chinese people . . . in a variety of international interactions that will cause them to internalize norms of international human rights law. . . . [W]e seek to encourage a change in the nature of the Chinese political identity to reconstitute China as a nation that abides by core norms of international human rights law.

Koh’s defenders often claim that he does not want to effect fundamental political change in the United States. The fact is that the process he identifies here for China is precisely the same process he sets out for the U.S. And that process is the process of transnationalism. So how, according to Koh, is international human rights law enforced?

Not, he acknowledges, by states: “the few mechanisms created had virtually no enforcement . . . . The overall picture . . . is one of impotence, ineffectiveness . . . .” Enforcement is the province not of states, but of “transnational norm entrepreneurs, government norm sponsors, transnational issue networks, interpretive communities and law-declaring fora, bureaucratic compliance procedures, and issue linkages . . . .” In short, for Koh, transnational civil society is responsible not only for creating international human rights law, but for enforcing it.

Given that premise, it is no wonder that, as Hathaway points out, the number of treaties that are signed do not correlate with improved human rights. Under Koh’s theory, the places that need the enforcing efforts of transnational civil society the most – that is, the world’s dictatorships – are the ones that have the least of it. On the other hand, from his point of view, Koh’s approach offers wonderful possibilities for changing the U.S., precisely because it is an open and liberal society. That, of course, is the point Koh contests: for him, it is the U.S., which he refers to as one of the world’s “skeptical” states, that is in need of change.

Ted R. Bromund is the Senior Research Fellow at the Margaret Thatcher Center for Freedom and a frequent contributor to Commentary.
TNL

©2009 THE NEW LEDGER PUBLISHING COMPANY, LLC. All rights reserved.

http://newledger.com/2009/04/harold-koh-and-the-end-of-human-rights/

From National Review Online
April 28, 2009

Koh Fails the Democracy Test

Consent of the governed? Or rule by international wisemen?

By John Fonte

Advocates of global governance advance their agenda through the “transnational legal process.” Harold Koh, former dean of the Yale Law School, who has been nominated by President Obama to be the legal adviser to the State Department, is a leading advocate of this “transnational legal process.” His confirmation hearing is today, Tuesday, April 28.

Dean Koh has written extensively — sometimes clearly, sometimes obtusely — on transnational law and the “transnational legal process.” In a rather clear paragraph in The American Prospect (September 20, 2004), Koh explains how the system works:

Transnational legal process encompasses the interactions of public and private actors — nation states, corporations, international organizations, and non-governmental organizations — in a variety of forums, to make, interpret, enforce, and ultimately internalize rules of international law. In my view, it is the key to understanding why nations obey international law. Under this view, those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, which generate legal interpretations, which can in turn be internalized into the domestic law of even resistant nation-states.

Koh says much the same thing in the Penn State International Law Journal (2006) — more abstractly, to be sure, but it is worth listening to his voice to begin to appreciate the tone of the global-governance debate in legal circles:

To understand how transnational law works, one must understand “Transnational Legal Process,” the transubstantive process in each of these issues areas [business, crime, immigration, refugees, human rights, environment, trade, terrorism] whereby [nation] states and other transnational private actors use the blend of domestic and international legal process to internalize international legal norms into domestic law. As I have argued elsewhere, key agents in promoting this process of internalization include transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, and interpretive communities. In this story, one of these agents triggers an interaction at the international level, works together with other agents of internalization to force an interpretation of the international legal norm in an interpretive forum, and then continues to work with those agents to persuade a resisting nation-state to internalize that interpretation into domestic law.

Koh notes that the crucial mechanism for incorporating these global norms that are “created” and “interpreted” in transnational forums into American constitutional law is the American judiciary. As Koh declares, “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.”

The global norms that are to be “internalized” into American law cover a wide range of policy areas, including matters of foreign policy, terrorism, internal security, commerce, environment, human rights, free speech, and social issues such as feminism, abortion, gay rights, and the status of children.

To ask the crucial questions of democratic theory: Who governs? Who decides?

For the advocates of global governance, the policy issues listed above are typically global problems that require global solutions. In this view, international judges, NGO activists, international lawyers, and the like operating in transnational forums such as the International Court of Justice, the International Criminal Court, and various U.N. agencies are the appropriate decision-makers.

For the advocates of liberal democracy, these issues should be decided through the democratic political process. In the United States, this would mean the elected representatives of the people: the Congress and president at the national level, state legislatures and governors at the state level, and city councils and mayors at the local level.

To be sure, the American judiciary should perform its constitutional role of interpreting the laws made by the political branches of American democracy. However, it is not appropriate for American courts to impose or “internalize” global norms, rules, or laws “created” at transnational forums by transnational actors who have no direct accountability to “We the People of the United States”; actors who not only are not elected by the American people, but who are, for the most part, not even citizens of the United States. It is not appropriate, that is, if one believes in liberal democracy.

But, of course, the “transnational legal process” articulated by Harold Koh and the politics of transnationalism generally are not democratic. They represent a new form of governance that I call “post-democratic.” To “make, interpret, [and] enforce” international law, “which can in turn be internalized into the domestic law of even resistant nation-states” (as Koh describes it), is to exercise governance. But do these transnational governors have the consent of the governed?

The transnational legal process fails the “government by the consent of the governed” test in two ways. First, the democratic branches of government, the elected representatives of the people, have no direct input either in writing the global laws in the first place, or even in consenting to their domestic internalization, as, for example, happens when the Senate ratifies a treaty or the Congress passes enabling legislation for a non-self-executing treaty.

Second, there is no democratic mechanism to repeal or change these international rules that are incorporated into U.S. law by this process. What if the American people decide that they object to these global norms and transnational laws that were imposed upon them without their consent (on, for example, the death penalty, internal security, immigration, family law, etc.)? What if the American people at first approved, but later changed their minds on, some of these rules: How can these global norms, now part of international law and U.S. constitutional law, be repealed? Legislation to repeal the global norms could be deemed “unconstitutional.” In short, there are no democratic answers to these questions consistent with the transnational legal process, because it is not a democratic process.

At the end of the day, the argument over the transnational legal process is one part of a larger argument that will come to dominate the 21st century: Who governs?

Will Americans continue to decide for themselves public policies related to national security, human rights, immigration, free speech, terrorism, the environment, trade, commercial regulation, abortion, gay rights, and family issues — or will questions be decided by “transnational issue networks” working with “transnational norm entrepreneurs,” “governmental norm sponsors,” and “interpretive communities,” with the complicity of American judges?

— John Fonte is a senior fellow at the Hudson Institute. His book Sovereignty or Submission: Will Americans Rule Themselves or Be Ruled by Others? will be published by Encounter Books in 2010.

© National Review Online 2009. All Rights Reserved.

http://article.nationalreview.com/?q=ZWZkMGM0M2JjNmY5N2RjNjBkMTBlNzFlMjI4N2NkOGE=

Ethics And Public Policy Center
April 20. 2009

Harold Koh's Transnationalism

A Collection of Posts on the State Department Legal Adviser Nominee

By M. Edward Whelan III

ARTICLE

National Review Online's Bench Memos
Publication Date: April 16, 2009

[In a series of posts on National Review Online's Bench Memos blog that earned prominent attention, EPPC President Ed Whelan exposed the radical transnationalist views of controversial State Department legal adviser nominee Harold Koh. Immediately below is the outline of the series, [and the URL linking to all of it.]]

1. Harold Koh's Transnationalism (overview of series)

2. What "transnationalism" is

3. Customary international law

a. What customary international law is

b. The transnationalist game on customary international law

4. Treaties

a. The scope of the treaty power

b. The domestic legal status of treaties

c. CEDAW as a case study

(1) CEDAW and the CEDAW committee

(2) Koh's remarkable testimony about CEDAW

d. The treaty game

5. Constitutional law

a. Reinventing the Constitution (Part 1): Koh's positions

b. Reinventing the Constitution (Part 2): The flaws in Koh's positions

c. Reinventing the Constitution (Part 3): What Koh's positions threaten

d. The constitutional game

6. The role of the State Department legal adviser

http://www.eppc.org/publications/pubID.3793/pub_detail.asp

From National Review Online
May 4, 2009

Global Kohordinates

Meet the radical transnationalist preparing to take up residency at State

By Andrew McCarthy

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 National 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.”

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.

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From National Review Online's "The Corner" Weblog
April 4, 2009

Response to Ted Olson's Endorsement of Harold Koh

By Andy McCarthy

My respect and admiration for Ted Olson know no bounds. But I think his endorsement of Yale Law School Dean Harold Koh for the job of State Department legal adviser significantly misses the point of the good-faith opposition to Koh. Therefore, it merits a response.

As the Politico report phrases it, Ted's "disagrees" with critics because, Ted says, Koh "is a brilliant scholar and a man of great integrity." But this doesn't disagree with anything that's actually been argued — at least not here. I don't know Dean Koh personally, but lots of my friends and acquaintances do, and I have read a lot of his work. There is no doubt in my mind that he is a man of great integrity. Moreover, the fact that I happen to disagree with him on many things has no bearing on his brilliance; he is plainly a scholar of great erudition and skill. That is to say, we can stipulate that Koh "is a brilliant scholar and a man of great integrity" — we don't have a disagreement about that.

This is an argument about policy, not personality, honesty, or qualifications. The mainstream media did not vet President Obama. His transnational progressive positions were not scrutinized — and even though the president is even now on an important trip, crafting new global regulatory arrangements with other heads of state, we still have not gotten anything approximating an examination of Obama's views. Bluntly, the public has been better informed about Gov. Sarah Palin's handling of the Alaska State Police than about their President's fondness for international redistribution of wealth, international treaties, and the transfer of national sovereignty to transnational bureaucracies and tribunals.

#red#Events like the Koh nomination are the only opportunity we have to highlight and generate push-back on these positions. I imagine they are positions Ted would have a lot of trouble with. Here's what the Politico has to say on that score (my italics):

Olson was sharply dismissive of claims that Koh is too solicitous of international law. While he declined to discuss the specifics of the case against Koh,... he pushed back hard against the broader claim that Koh’s regard for international law is cause for suspicion. “He has been in international law his entire professional life,” Olson said. “Of course he’s very involved in the subject.”

So when it gets down to the only thing Koh's opposition is actually concerned about, the specific policy positions Koh has taken (e.g., on using foreign law to interpret — and radically alter — provisions of the U.S. Constitution), Ted won't address it. To say that Koh is "very involved in the subject of international law" is beside the point — what is the likelihood that a president would nominate as State Department legal adviser a lawyer who was not very involved in the subject of international law?

The germane question is: In the course of that deep involvement, what views has he developed and what positions has he taken? It's inevitable that the State Department and the administration will soon be confronted with questions like, "What will be the effect on our national security if we push ratification of the Law of Sea Treaty — which provides for disputes to be resolved by a mini-U.N. with its own mini-World Court?" I would think most people take as a given that Dean Koh, as an accomplished international law scholar, is steeped in the relevant issues. The only thing that matters is where he stands on them and what advice he is likely to give — i.e., the things that Ted wouldn't get into in the interview.

His rationale for that reticence is that the president and the Secretary of State "are entitled to have who they want as their legal adviser." So then, first the president doesn't get vetted during the campaign, then the Secretary of State has a hearing that is more like a coronation (and where the only minor brush with scrutiny involved not international law but the Clinton Library), and now we're told: Don't bother with issues because the president and the Secretary are entitled to choose their own lawyer.

Let's ignore for the moment the facts that (a) Koh is not actually their lawyer but the State Department's (they can and do have their own lawyers, and no one has tried to interfere with that), and (b) State Department legal-adviser is a confirmation position requiring Senate consent (the hearings would be very short if the only question was: "Do the President and Secretary Clinton want you to serve?"). My question is, if we adopt the scenario Ted suggests: Is there ever a time — ever, ever — when these issues of great significance to the American people actually get discussed and probed? Do we ever get to find out where everyone stands? Do we ever get to push back?

A lot of people (Ted included) said there should be no opposition to Eric Holder as Attorney General, either. But there was opposition which highlighted, to take just one example, Holder's urging (in 2008, as an Obama campaign spokesman) that there should be a "reckoning" — investigations and prosecutions of Bush administration officials for actions taken in defense of the United States. Because the opposition highlighted that concern, Republican senators pressed Holder on it, both privately and in his testimony. They won concessions from him — they say — that there would be no such prosecutions.

As pressure from the Left mounts, those concessions may be the only thing preventing such prosecutions. Because the issue got exposure, the Obama administration got a sense of how unpopular such prosecutions would be. And now, the blowback would be even worse because there would not only be reaction to the prosecutions but to the fact that Holder (and Obama) would be seen as having misled Congress. That is additional insurance that the prosecutions won't happen. From our perspective, yes, Holder got confirmed, but by raising signficant questions we obtained good policy outcomes and limited the Justice Department's room to go in unwise directions.

There is value in principled opposition. It is not about whether Dean Koh has great integrity (he does) and is a highly accomplished scholar (he is). It's not even just about whether he gets confirmed. It's about using one of the few avenues available to us to examine a crucial set of issues and influence policy.

--Posted 04/04/2009 09:07

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