What is wrong with this picture? We learned this weekend that a Spanish judge, Baltasar Garzon, is preparing to prosecute six Americans who worked as senior legal and policy advisors to President George W. Bush - including Attorney General Alberto Gonzales and Under Secretary of Defense Douglas Feith. The alleged crime? The opinions they provided Mr. Bush supported the use of torture against enemy combatants.
Most Americans would find this assertion of what has come to be called "transnational law" to be troubling on several grounds. Its application is an affront to due process and the rule of law in this country. It would criminalize internal U.S. policy-making deliberations, with profound implications for U.S. sovereignty. If allowed to run its course, this prosecution would have a profoundly chilling effect on the willingness of subordinates to provide a president with advice, or perhaps even to serve in government.
One would hope that President Obama would recognize that this use of legal mechanisms as a form of warfare against the United States - increasingly known as "lawfare" - holds serious dangers not just for the country and those who ran it for the past eight years, but for his administration, as well. That would appear not to be the case, however, in light of his choice of Harold Koh to be the State Department's top lawyer.
In fact, as dean of Yale's law school, Mr. Koh has been an unalloyed enthusiast for transnational law. For example, in a 2006 article in the Penn State Law Review, he extolled the "transnationalist faction" on the Supreme Court and the wisdom shown by four, and sometimes five, of its justices in rejecting the impulses of what he disdainfully calls "the nationalist faction":
Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy. The transnationalists believe in and promote the blending of international and domestic law; while nationalists continue to maintain a rigid separation of domestic from foreign law. The transnationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue instead that only the political branches can internalize international law.
Frank Gaffney Jr. is the founder and president of the Center for Security Policy and author of War Footing: 10 Steps America Must Take to Prevail in the War for the Free World .
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