Chertoff outlined his nightmare scenario in a Nov.
speech to the Federalist Society, an organization of right-wing
lawyers who spearheaded the legal arguments for granting President
George W. Bush authority unbound by any law, including the
constitutional rights of Americans.
But the focus of Chertoff’s warning was that the
United States is under growing pressure from legal scholars and the
world community to comply with international law, especially on war
crimes and humane treatment of detainees in the “war on terror.”
“The fact is, whether we like it or not,
international law is increasingly entering our domestic domain,”
The culprits, according to Chertoff, include a
narrow majority of the justices on the U.S. Supreme Court.
“The Supreme Court has begun to bring it through
cases like Hamdan,” a reference to Hamdan v. Rumsfeld in
which the high court cited the Geneva Conventions in ruling that
hundreds of suspects being held without charges at Guantanamo Bay had
Chertoff objected to the Supreme Court’s reference
to the Geneva Conventions despite the fact that the U.S. Constitution
states that treaties entered into by the U.S. government are the
“supreme law of the land” and all four Geneva Conventions were long ago
signed by the U.S. Executive and ratified by the U.S. Senate.
Chertoff also protested the mounting worldwide
legal criticism of the U.S. government.
“International law is being used as a rhetorical
weapon against us,” Chertoff said. “We are constantly portrayed as being
on the losing end, and the negative end of international law
The Homeland Security secretary cited, for
instance, the 1986 International Court of Justice ruling which held that
the U.S. mining of Nicaragua’s harbors during the contra war violated
international law against military aggression. In that case, the Reagan
administration simply denied the court’s jurisdiction over U.S. actions
and ignored the ruling.
However, Chertoff worried that such a defense might
not suffice in the future. So he called on the Federalist Society to go
on the offensive and “take overseas the same kind of intellectual vigor
and intellectual argument that you brought into the United States and
into academia” a quarter century ago, when the group began challenging
the Warren Court’s “judicial activism,” which included outlawing racial
segregation as a violation of the “equal protection” clause of the
Over time, Chertoff said an aggressive assault
against the arguments seeking to apply international law to the United
States could turn the tide in Europe and elsewhere, much as the
Federalist Society succeeded in creating a backlash to the Warren Court.
But Chertoff may have overestimated the
intellectual firepower of the Federalists or undervalued the growing
worldwide commitment to the universal application of international law.
While the U.S. government has been recoiling from
new institutions such as the International Criminal Court, much of the
rest of the world has been embracing the new internationalism with open
Europe has established a system of international
and supranational law unparalleled in the world, partly with the goal of
averting a rise of nationalistic authoritarianism that contributed to
regional devastation from two world wars.
After World War II, with the continent in ruins,
European leaders and their American counterparts supported the creation
of new international regimes such as the United Nations, which had the
expressed purpose of “sav[ing] succeeding generations from the
scourge of war, which twice in our lifetime has brought untold sorrow to
Along with the U.N. Charter and Universal
Declaration of Human Rights, conventions were passed to make the conduct
of war and the treatment of prisoners more humane. These included the
Convention Against Torture, the Covenant on Civil and Political Rights,
and the Geneva Convention relative to the Treatment of Prisoners of War.
While Washington endorsed these efforts, Europe
took them even more to heart, establishing the European Court of Human
Rights [ECHR] to enforce the Convention on Human Rights as the concrete
expression in Europe of the collective guarantee for the liberties and
freedoms set out in the 1948 Universal Declaration of Human Rights.
Acceptance of the Convention, as well as the
compulsory jurisdiction of the ECHR and the binding nature of its
judgments, is a requirement for membership of the Council of Europe.
While the Convention is an integral part of member states’ domestic
legal systems, the European Union also ensures that the Convention is
Although the Convention was originally based on the
Declaration of Human Rights, its current manifestation goes well beyond
the articulation of rights laid out in that document. The Convention has
been expanded over the years, with its most recent version approved in
2000 as the Charter of Fundamental Rights of the European Union.
It now represents perhaps the most expansive view
of rights in the world, including the basic human right to health care,
the right to a free education, the right to join a labor union, and the
right to a “limitation of maximum working hours, to daily and weekly
rest periods, and an annual period of paid leave.”
It also guarantees a right to “environmental
protection,” as well as “a high level of consumer protection.”
Article 21 ensures the right to nondiscrimination,
using a sweeping definition that protects people from discrimination
based on “sex, race, color, ethnic or social origin, genetic features,
language, religion or belief, political or any other opinion, membership
of a national minority, property, birth, disability, age, or sexual
The broad view of rights laid out in the Charter
has been utilized by the European Court of Human Rights to compel
individual nations to alter their laws and policies, with a wide-ranging
impact on the lives of contemporary Europeans.
The court cited the antidiscrimination provision to
force all European countries to allow homosexuals into the military, for
instance, and spanking has been banned in all schools in order to
protect the rights of the child.
When Britain arrested suspected terrorists in the
wake of the 9/11 attacks, the ECHR pressured Britain’s home secretary to
provide legal help and a formal notice of charges to the suspects.
In the EU, there also are comprehensive protections
of privacy for individual citizens, limiting how government data can be
used. Article 7 of the Charter establishes the right to privacy, and
Article 8 enshrines the “protection of personal data.”
Chertoff took aim at these legal protections in
explaining why he was delivering a speech warning of the dangers from
“Now you’re scratching your head and you’re asking
yourself, why does the Secretary of Homeland Security care about this?
Well, in my domain, much of what I do actually intertwines with what
Chertoff cited European objections to handing over
personal data on citizens because of fears of how the U.S. government
might use it.
“It turns out that very modest amount of
information, like your address, and your credit card, and your telephone
number, are very useful for us in identifying whether people seeking to
come into the country have connections to terrorists,” Chertoff said.
Chertoff complained that “privacy advocates … in
the European Parliament believe that because that information is
collected in … Europe, they should determine how we use that information
in deciding who is going to be allowed into our country.”
Under the laws of Europe, activities that are
conducted by the U.S. government under the Patriot Act – such as
gathering personal information from companies, doctors, and libraries –
would be illegal, as would the National Security Agency’s domestic
surveillance program and its related data-mining program.
While the U.S. continues to move toward an ever
more intrusive surveillance society and rejects the applicability of
international law, the EU continues to move in the opposite direction.
Not only do individual member states submit to EU law, but so too does
the EU itself submit to the rule of international law.
For instance, the European Union is a party to the
Kyoto Protocol on global warming, citing article 175 of the 1957 Rome
Treaty, which provides that the EU is “competent to enter into
international agreements” that “promot[e] measures at the international
level to deal with regional or world wide environmental problems.”
The EU also adopted legal instruments, binding on
its member states, covering matters governed by the Protocol. So, not
only is the Kyoto Protocol legally binding on the individual states that
have ratified it, but so too is the EU’s participation in the Protocol
legally binding on the member states of the European Union, regardless
of whether those states have individually signed on to it.
This is due to the supremacy of Community law over
the national law of individual member states, a concept established by
two European Court of Justice cases from the 1960s.
In Van Gend en Loos (1963), the Court ruled
that the European Community “constitutes a new legal order of
international law for the benefit of which the states have limited their
sovereign rights,” and in Costa v. ENEL (1964), the Court ruled
that because member states had definitively transferred sovereign rights
to the Community, its law could not be overruled by national governments
without the legal basis for the Community being usurped.
When the EU enters into legally binding
international agreements such as the Kyoto Protocol, it is assuming a
supra-state right to act on behalf of its member states in order to deal
with global environmental threats.
What Chertoff’s speech highlighted is the growing
transatlantic divide between two visions of the world. The Bush
administration’s view is that national sovereignty – often defined by
the dictates of the so-called “unitary executive” – is held as
inviolable. Meanwhile, the EU views national sovereignty as secondary to
principles of environmental protection, human rights and individual
Under the European concept, authority is shared and
fragmented in a way that both protects the rights of the individual and
ensures that no member state of the EU could develop the sort of
arbitrary power needed to institute an authoritarian government.
In the Bush administration’s view, international
law in no way constrains actions of the U.S. President. Bush, who calls
himself The Decider, can personally decide whose phone will be tapped,
whose medical records are gathered, who will be detained without charges
and who will subjected to “alternative” interrogation methods, such as
Bush’s own opinion about international law is one
of contempt. When asked once if the occupation of Iraq violated U.N. or
other legal principles, Bush joked, “International law? I better call my
Despite Chertoff’s confidence in the persuasiveness
of Federalist Society activists, it may take more than their
“intellectual vigor” to convince Europe and the rest of the world that
Bush’s vision of one-man rule is less “chilling” than a regimen of