America and the World, December 2004 – post by Harold Hongju Koh

America is an exceptional country, with exceptional capacity to fill global vacuums, shape global regimes, and to generate global solutions. In the last half-century, it has played that role largely by promoting global institutions and constitutions. As I have argued in the Stanford Law Review, our post-Cold war, pre-9/11 policy was broadly characterized by an avowed strategy of promoting democracy from the bottom up around the world, then mobilizing global cooperation among democracies, within international institutions and international regimes, in order to solve global problems.
Within that broad frame, late 20th century American foreign policy was characterized by:

1. an emphasis on diplomacy backed by force, with force itself used as a last resort;
2. a human rights policy that focused on human rights reporting, various forms of human rights conditionality, accountability through a growing emphasis on international criminal justice, and a willingness to engage bilaterally and multilaterally with repressive regimes around the principles of FDR’s “Four Freedoms” speech (although in fact primarily focused on promoting civil and political rights);
3. a democracy-promotion policy that focused on democracy-building from the bottom up; and
4. a general procedural orientation that Strobe Talbott describes as “strategic multilateralism and tactical unilateralism.”

At home, our pre-9/11 National Security Constitution was premised on a post-Youngstown, post-Vietnam/Watergate vision characterized by

1. a constitutional theory of shared powers, though marked in practice by extreme judicial deference to executive prerogative in foreign affairs;
2. internal executive branch decisionmaking characterized by strongly centralized constitutional advice, flowing to the President primarily through the Attorney General and discipline imposed by the Office of Legal Counsel at Justice (OLC),
3. varying degrees of congressional oversight and checking of executive overreaching,
4. presumptions in favor of open government (FOIA, declassification) and against governmental surveillance of the domestic arena; and
5. a relatively generous attitude toward resident aliens’ rights to participate in most aspects of American life (except for voting, jury duty, etc.) and an antipathy to the notion of extralegal or extrajudicial geographic zones or extralegal persons.

Remarkably, in only three years, both sets of premises have been largely inverted in the name of homeland security:

1. As Afghanistan and Iraq foreshadow, advocates of homeland security now urge that it be preserved by episodes of discretionary warmaking by coalitions of the willing on real and potential state sponsors of terror-- based on international law theories of preemptive self-defense and factual claims of real or potential access to weapons of mass destruction -- constrained more by resource overstretch than by constraints imposed by international law;
2. our human rights policy has shifted toward a “Cold War” double standard of downplaying or apologizing for abuses committed by ourselves or our allies as necessary elements of the War Against Terror, hostility toward international criminal adjudication, reduced engagement with repressive regimes, and a dramatically increased emphasis on Freedom from Fear as the overriding human rights value;
3. With democracy promotion, we have shifted to hard top-down, militarily-imposed and resource-intensive democracy promotion in Afghanistan and Iraq, soft faith in “domino democratization” throughout the Middle East-- accompanied (ironically) by dramatically reduced engagement in the Middle East peace process-- and a noticeably reduced role in democracy promotion in Central and Eastern Europe (see Ukraine), Africa (see Cote d’Ivoire), Latin America (see Venezuela) and South Asia (see Pakistan);
4. and a shift toward strategic unilateralism and tactical multilateralism, characterized by a broad antipathy toward the previous emphasis on global engagement through diplomacy, institution- or constitution- building by treaty negotiation.

At home, the post 9/11 constitutional vision has shifted, as other bloggers here have noted, toward a set of premises that would enable the policy orientation just described:

1. a Curtiss-Wright theory of extreme executive prerogative in foreign affairs;
2. internal executive branch decisionmaking characterized by constitutional advice flowing to the President primarily from DOD General Counsel’s Office and the White House Counsel
3. modest or minimal congressional oversight of executive activity,
4. a post-Patriot Act presumption in favor of governmental secrecy, reduced declassification and growing governmental surveillance of the domestic arena; and
5. growing scapegoating and chilling of aliens’ participation in American life with executive efforts to create both extralegal and extrajudicial geographic zones (e.g. Guantanamo, Baghram) and extralegal persons (e.g. enemy combatants) who are subject to various kinds of nonjudicial process,
6. and a concerted effort to persuade the judiciary to abstain on “passive virtues” rationales from substantive oversight of executive branch activity and to reject incorporation of international and foreign law into domestic legal review, so as to exempt the U.S. government from charges of embracing double standards.

In the next few decades, the appropriate constitutional response will not be rocket science or innovative fixes, but rather, time-honored checks-and-balances reasoning:

1. continuing reaffirmation of Youngstown as the governing constitutional theory of shared power in foreign policy decisionmaking;
2. strengthened internal checks and balances within the Executive Branch through a meaningful role for Justice on the constitutional side and State and the Trade Representative and the policy side;
3. Enhanced congressional oversight and expertise, especially in the foreign affairs, intelligence and armed services committees, and greater use of bipartisan commissions (a la the 9/11 commission) to expose structural governmental failures,
4. resistance to new legislation designed to enhance further governmental secrecy and surveillance and to scapegoat aliens,
5. constitutional protection for enhanced media oversight to break through secrecy and expose abuses (as in e.g., Abu Ghraib, Iraq and the search for WMD)
6. continued litigation by NGO groups:
a. to resist scapegoating of aliens and executive efforts to maintain extralegal and extrajudicial zones and extralegal combatants subject to minimal judicial review,
b. to persuade the judiciary to maintain substantive oversight of executive branch activity,
c. to support selective incorporation of international and foreign law into domestic legal review, so as to check the creation of a constitutional jurisprudence of rights which is visibly below global human rights standards, and to
d. create a set of judicial canons to govern the relationship between domestic and emerging international jurisprudence (e.g. U.S. and ICJ in the death penalty area; U.S. and WTO and NAFTA panels, U.S. courts and international arbitrations in the commercial arena).

Re the last, unlike some, I have not given up on the courts, and particularly the Supreme Court, which in the last few terms has imposed judicial review on Guantanamo (Rasul), granted due process rights to enemy combatants (Hamdi), sustained Alien Tort litigation (Sosa v. Alvarez-Machain), and acknowledged the relevance of international standards with respect to privacy (Lawrence), equal protection (Grutter) and death penalty (Atkins, and perhaps this term in Roper). This orientation arises in good measure from the creation of a “transnationalist majority” created by the joining of Justices Kennedy and O’Connor to Stevens, Souter, Ginsburg, and Breyer (forming the majority in most of the cases just enumerated).
Nor has the trend toward transnationalist jurisprudence at the Supreme Court been a partisan one. Sosa, for example, was decided by the same 6-3 majority, with four of the transnationalist justices being Republican appointees (Stevens, O’Connor, Kennedy, and Souter). Thus, as in all other areas, the orientation of new judicial appointments will be pivotal in determining where our constitutional jurisprudence moves in the next two decades, and whether it moves America in a transnationalist or nationalist direction.

-- Harold Hongju Koh