Quin-Essential Cases: Too much foreign law over-riding U.S. law

Quin Hillyer
No government is truly legitimate unless its authority rests upon the freely determined consent of the governed.
That concept is the most basic lesson we learn in grade-school civics classes. Yet that ideal now is threatened as never before in American history, under the guise of “respect” for international opinion.
Three news items in the last two weeks show how Americans are threatened with the imposition of foreign law over American law. These threats are an assault on our sovereignty, and on our freedom.
The first item is the controversy over President Barack Obama’s nomination of Yale Law Dean Harold Koh to be chief counsel for the State Department. Koh is a self-proclaimed “transnationalist” who believes (in his own words) that American judges should be “domesticating international law into U.S. law.”
The second worrisome item came when Supreme Court Justice Ruth Bader Ginsburg last weekend told an audience at Ohio State University that the “tremendous persuasive value” of a foreign court should sometimes be used to help judges uphold “human dignity” here at home.
The third item, truly chilling, occurred at the end of March, when a Spanish court initiated a “war crimes” investigation of former U.S. Attorney General Alberto Gonzales and five other former Bush administration lawyers, supposedly for authorizing “torture” at Guantanamo Bay.
Although no Spaniards were held at Gitmo and no alleged abuses occurred on Spanish soil, the Spanish judge claims “universal jurisdiction” to try and imprison any serious malefactor. Presumably, the judge could issue an arrest warrant for any of the six and have them apprehended by friendly authorities any time those Americans travel abroad.
If actually tried, those American lawyers would enjoy few of the protections guaranteed to American citizens by the U.S. Constitution. And this injustice could befall them even though the lawyers’ alleged “crime” was simply offering advisory opinions about the interpretation of American law concerning prisoners held for terrorism.
Presumably, transnationalists like Koh would not complain about such mistreatment of American citizens by a publicity-seeking foreign judge. After all, Koh has even questioned whether Americans’ “embrace of the First Amendment” goes too far in protecting speech that foreigners may deem offensive.
Of course, transnationalists claim their concern is for protecting human rights. That’s what Koh wrote in a brief on behalf of the former U.N. High Commissioner for Human Rights in the controversial 2003 case of Lawrence v. Texas, in which a divided Supreme Court threw out a Texas law against homosexual sodomy.
In what proved to be a major salvo in the move to impose foreign law on U.S. courts, Justice Anthony Kennedy adopted some of Koh’s reasoning in that case to note that petitioners were seeking “rights” that had been “accepted as an integral part of human freedom in many other countries.”
In response, I wrote a column for National Review Online in which I set aside the “sodomy” question in order to focus on Kennedy’s extraordinary appeal to foreign law. The problem, I warned, was that “the same foreign authority cited in supposed defense of liberty could be cited to take an American individual's liberty away.”
That is the key consideration: Here in America, our liberties can be taken away only if we violate what the poet Tennyson once lyrically described as “the laws ourselves have made.” Yet no U.N. high commission has done the painstaking work of building a government answerable in equal measure to each individual whom that government would rule.
Still, this random Spanish judge threatens to arrest six American lawyers on the flimsiest of pretexts. How flimsy? Well, since early 2003 Guantanamo has been a model prison, one which many official European delegations have pronounced “clean and humane” and “run with the utmost professionalism.”
And before 2003? The official Schmidt-Furlow investigation into the Gitmo prison (in 2005) found “no evidence of torture or inhumane treatment at JTF-GTMO” and only a single instance of the next-worst standard of “degrading and abusive treatment.”
In an American court, that’s tremendously exculpatory evidence. In a new Spanish inquisition, it might still be treated as a “war crime.” Americans should not put up with such a pernicious assault on any fellow Americans’ liberty.
Quin Hillyer is associate editorial page editor for The Washington Examiner. He can be reached at
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