19 Nov Chertoff on International Law
There is almost nothing in the media or the blogosphere about this story, but reportedly Homeland Security Secretary Michael Chertoff spoke at the Federalist Society this week and was sharply critical of current trends in international law. Reuters reports that Chertoff said that “International law is being used as a rhetorical weapon against us” and that “What we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principals — separation of powers, respect for the Senate’s ability to ratify treaties and … reject treaties.”
A conservative blogger in the audience took a slightly different take from the speech, reporting that “Homeland Security Secretary Michael Chertoff stressed the need for the kind of lawyers who make up the Federalist Society to carry conservative ideas of the rule of law, democratic legitimacy and judicial restraint into the world of international law, where transnational progressive activists hold sway much as the judicial activists of the legal Left held uncontested sway in the judiciary and the academy in the years before the founding of the Federalist Society in the early 1980s. He cited specific examples of the problems international lawyers have caused for Homeland Security, including refusals to provide information about individuals entering the United States by air.”
If anyone is aware of more information about this story I would be curious precisely what Chertoff said. The reports are so sparse and undeveloped that I am reluctant to comment in detail on his speech. But I find Chertoff’s suggestion that public international lawyers and law professors are fairly homogenous in their viewpoints to be quite interesting and on the whole correct. Caution with respect to international law is not particularly welcome in our ranks, even when it is well deserved, as with constitutional comparativism. But I am happy to see growing diversity among the ranks. It seems we are moving to a second generation of public international lawyers and academics who are not so much evangelists of a movement but rather dispassionate observers of a discipline. That is a good thing. Unbridled enthusiasm is not a virtue to which an academic should aspire.
UPDATE: The full text of the speech is here. (Thanks Charles). These excerpts are particularly interesting to me:
Now I’m sure it’s an academic fantasy to imagine a world in which the writings of professors actually define the content of the law rather than what Congress passes or is agreed upon. That’s typically not, at least not in my experience, the way we make law in this country. But it is quite seriously the view taken by some that international law can be discovered in the writings of academics and others who are experts, often self-styled experts…. So what we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principles: separation of power, respect for the Senate’s ability to ratify treaties, and the Senate’s ability to reject treaties, and respect for federalism and the importance of letting the state courts set their own rules to govern what they do. So where is all this leading? Well, I’m going to quote from the same international human rights lawyer [Philippe Sands] who gives us his vision of where we’re going with international law. He says in a recent book called Lawless World, “to claim that states are as sovereign today as they were 50 years ago is to ignore reality. The extent of inter-dependence caused by the avalanche of international laws means that states are constrained by international obligations over an increasingly wide range of actions, and the rules, once adopted, take on a logic and a life of their own. They do not stay within the neat boundaries that states thought they were creating when they were negotiating.” Now, I’m quite sure that is meant to be a happy statement of the way we’re operating now. But I actually view it as a chilling vision of where we could go, given the current developments in international and transnational law. So what do we do about it? Well, traditionally, we have tended to act in a manner that I would call defensive. …But while these defensive means may be necessary, they are not, in my view, a sufficient approach to this increasing challenge to our ability to conduct our domestic affairs…. So my bottom line is this: The problem is not the idea of international law, but it is an international law that has been captured by a very activist, extremist legal philosophy. But it doesn’t have to be that way. And so my challenge to you is to take overseas the same kind of intellectual vigor and intellectual argument that you brought into the United States and into academia in the United States in the ’70s, and that was quite successful over a period of time in changing the playing field, leveling it out, so that there was another voice heard for judicial modesty. I’m confident it’s not going to happen in a week or a month or a year, but that if you take some of the ideas you’ve developed here, and you take them overseas and you take them to academia, and you take them into the legal-philosophical salons in Europe, you will eventually start to persuade because the merit of these ideas I think is strong. And what’s wanting is the energy and the initiative and the courage to take them to a place where until now they have not been very seriously heard.”
The transcript is available on the DHS website:
November 17, 2006
REMARKS BY THE SECRETARY OF HOMELAND SECURITY MICHAEL CHERTOFF AT THE FEDERALIST SOCIETY’S ANNUAL LAWYERS CONVENTION
http://www.dhs.gov/xnews/speeches/sp_1163798467437.shtm
I think I’m just in a bad mood today but when I read that paragraph the first thing I thought about was wishing Secretary Chertoff had spent as much time worrying about how to rescue people from a flooded New Orleans as he does about the (mythical) “legal-philosophical salons in Europe.”
Internal law/International Law
By Benjamin Davis
In a recent speech to the Federalist Society quoted in Reuters, Homeland
Security Secretary Michael Chertoff and formal federal judge is quoted
as saying “International law is being used as a rhetorical weapon
against us,”
Chertoff cited members of the European Parliament in particular as
harboring an “increasingly activist, left-wing and even elitist
philosophy of law” at odds with American practices and interests.
But he said the same pattern could be seen in the policies of the United Nations and other international bodies.
“What we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principals — separation of powers, respect for the
Senate’s ability to ratify treaties and … reject treaties,” Chertoff said.
This speech of Secretary Chertoff is a very important statement for Americans to ponder because it highlights one of the key aspects of international law – horizontal enforcement – other states (and international bodies through which those states operate) pushing one
state to comply with international law obligations as each of those states determine what those obligations are.
At the same time, what the vision of Secretary Chertoff simply does not appreciate is the internal capacity of American citizens to join with those external voices to insist on compliance by the United States with
international law obligations. Or maybe, Secretary Chertoff is making an effort to create division between those Americans who support international law and non-Americans – appealing to nationalist sentiment in a hope of dividing and conquering. It is an old tactic.
It is important that internally we speak with great force about the need for the United States to comply with its obligations. We must have fire in our belly as Justice Robert Jackson said in a speech to the American
Society of International in 1945.
The key aspect of Chertoff’s article is his reaction to the Common Article 3 decision of Hamdan. The thing that is a bitch (and excuse the word but it is precisely the best word) in international law is that there is this wonderful rule that no state can avail itself of its internal law
to extract itself from its international obligations.
Chertoff and the New Sovereigntists are seeking to subvert that rule to make United States internal law flow throughout the world as their unique vision of the only law that is to be respected.
Now, it is possible for state practice to evolve and the United States may seek to make state practice evolve so that torture, cruel inhuman and degrading treatment and other barbarities are considered fine in international law. However, it is also possible that Americans and
foreigners and parts of the American government and foreign governments may resist by pushing the United States to comply with the spirit and letter, object and purpose of the international law obligations.
We must resist Chertoff’s vision for in that vision the result is precisely what we fought our American revolution to avoid – the individual being put at the mercy of an all powerful state controlled by an all powerful leader.
We can only hope that by continued pressure on our elected leaders, the bureacracy, the Presidency and the courts we can help these persons understand that international law is OUR law and they as well as us are to comply with that law.
Thus, when Chertoff as head of the Criminal Division of Justice gave advice and comfort to torturers in other government agencies by agreeing that if certain harsh interrogation techniques were used then the Criminal Division would not prosecute he should understand that as a
matter of domestic (war crimes) and international law that was wrong.
But the domestic law doctrine of prosecutorial discretion which might be of avail in a domestic arena, is to no avail to him in a prosecution on the internatioanl plane for aiding and abetting torture and cruel, inhuman and degrading treatment.
And a day of reckoning is coming. Chertoff should dare to travel to Europe.
Similarly the Military Commissions Act’s attempt to pervert the Third and Fourth Geneva Convention is of no avail in extracting the United States from its international obligations.
Chertoff’s speech is an interesting sign that U.S. political conservatives may be going beyond their campaign to keep international law out of U.S. courts (Chertoff may not know it, but that campaign isn’t exactly new), to try to strike directly against customary international law. Tactically, that’s a smart move, because CIL is international law’s weakest point. CIL is increasingly unmoored from state consent (at least in the view of international law professors and tribunals), but it hasn’t acquired a grounding on democratic legitimacy. Without either, it’s vulnerable to attack as just a plaything of international law professors, which is exactly how Chertoff portrays it.