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Chertoff's 'Chilling Vision'

By Nat Parry
November 22, 2006

Homeland Security Secretary Michael Chertoff, who runs the giant agency that keeps track of threats to the United States, has shared what he calls his “chilling vision” of the future – a time when U.S. government actions might be constrained by international law.

Chertoff outlined his nightmare scenario in a Nov. 17 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,” Chertoff said.

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 legal rights.

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 developments.”

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 Fourteenth Amendment.

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.

Different Approaches

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 arms.

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 mankind.”

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 faithfully observed.

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 orientation.”

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.

Privacy Rights

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 international law:

“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 happens overseas.”

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.

Transatlantic Divide

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 dignity.

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 waterboarding.

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 lawyer.”

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 international law.

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