Is The Nation State Threatened?

 “Is the Nation State Threatened?” This question, though apt, may fail to convey how dire the threat to sovereignty truly is. It might be better to ask, “Is the Nation State Terminally Ill?” Are we witnessing the death march of sovereignty, and with it democratic self-determination?

The question resonates on each side of the Atlantic. That militant Islam is at the core of this question presents, in both the United States and the United Kingdom, a double irony. First, Jihadists flatly reject central tenets of Western liberal democracy: separation of religion and politics, freedom to choose any, or no, religion, freedom to make laws that contradict scripture, equality of Muslims and non-Muslims, and of men and women. Yet, as we debate the endur- ing tension between liberty and equality, Jihadists have somehow come to embody the very rights against government intrusion they would ruthlessly deny upon supplanting western governments with the hegemonic Caliphate of their dreams.

Relatedly, the radicals of Dar al-Islam are unabashed about their hostile intentions toward the sovereign states of what they tellingly call Dar al-Harb, the realm of war. Because this is so—because, to borrow Justice Antonin Scalia’s memorable phrase, “this wolf comes as a wolf”—jihadists are, in reality, the sheep’s clothing for the more deadly wolf in this equation: the interlocking networks of primarily Western elites so perceptively identified by the Hudson Institute’s John Fonte as “transnational progressives.”

It is no secret that this internationalist movement is composed of nongovernmental organizations (NGOs), officials of the United Nations and other international organizations; multinational corporations; and ideologically compatible officials and bureaucrats operating within nation states. Nor is there anything novel in the observation that international law is its hammer-and-chisel for sculpting a post-sovereign nirvana, through the efforts of lawyers, judges, and law professors in the movement’s vanguard.

What is new, however, is that transnational progressivism has become not merely a prominent jurisprudential current but, in fact, the dominant ideology of American and British courts. With the potent combination of a seismic shift in public attitudes away from democratic self-determination and toward oligarchic juristocracy (or rule by courts), as well as a sweeping infrastructure of so-called “international human rights law,” this movement is now poised to realize much of its goal: A world in which the nation state, the organizing geopolitical paradigm and engine of human progress since the Treaty of Westphalia, substantially gives way to a post-sovereign order of global governance led by supra-national tribunals (or tribunals that, though nominally “national,” pledge fealty to the higher calling of “humanity”). Like other utopian projects, the end of this one is tyranny.

The U.S. Supreme Court’s June 2006 decision in Hamdan v. Rumsfeld should by now have brought this perilous state of affairs into sharp relief. Instead, the challenge to sovereignty has been obscured by another surge in the five-year-old controversy over the detention and trial of unlawful enemy combatants captured during the War on Terror. The Hamdan majority, moreover, dealt elusively with the potentially revolutionary international-law underpinnings of its decision.

Salim Hamdan, the personal driver and bodyguard of Osama bin Laden, was apprehended in Afghanistan after military operations began there in 2001. President Bush, meanwhile, authorized the Defense Department to try captured alien terrorist operatives by military commission (rather than court-martial or trial in the civilian justice system). Such commissions have a rich pedigree—having been employed for war crimes by General George Washington during the Revolutionary War, as well as by Lincoln, Wilson, and FDR, among other wartime presidents. Hamdan was among the first captives referred for a commission, and was charged with membership in the al Qaeda war crimes conspiracy.

That Hamdan’s case was before the federal judiciary at all was a reflection of transnational progressivism’s ascendancy, and a powerful warning sign that a majority of the Supreme Court was in its thrall. In 2004, six of the nine justices had astoundingly ruled, in Rasul v. Bush, that enemy prisoners of war—despite being, firstly, hostile aliens with no legitimate claim on U.S. constitutional privileges and, secondly, detained outside the territorial jurisdiction of the U.S. courts—somehow had a right to compel the executive branch, even as it was conducting the war, to justify their detention.

The U.S. Constitution, it might be recalled, is a compact between a primary source of power, namely, the American people, and the government that power created. It is not a treaty between the United States and the rest of the world—indeed, it explicitly presumes (in the Treason Clause, art. III, 3) that the rest of the world will include enemies of the United States.

In the Framers’ ingenious construct, the courts were to have no role in conducting foreign affairs or safeguarding the nation from foreign threats. That was to be the task of the political departments which, unlike the courts, are accountable to the citizens whose lives are at stake. The judicial branch was to be the bulwark protecting members of the uniquely American community—i.e., citizens of the United States and those aliens who, by their lawful participation in our national life, have immersed themselves into the fabric of American society—from the excesses of an oppressive executive or a legislature. The judiciary is the guardian of the law and order a free people must have in order to flourish.

With that understanding, Rasul was a bracing clarion. The courts, it announced, are no longer the neutral referee within a sovereign structure, ensuring that Americans get a fair shake from their government. Instead, in the teeth of the Supreme Court’s reaffirmation, only a quarter-century ago in Dames & Moore v. Regan (1981), of the concession that the Framers “did not make the judiciary the overseer of our government,” the courts have sublimated themselves to the status of über-branch, transcending mere national considerations to ensure that all the world—including that part of it energetically trying to kill Americans—has a forum in which to press its case against the United States. With Hamdan, this evolution, or downward spiral, has proceeded to its next logical stage.

“The right of a government to maintain its existence—self-preservation,” wrote Justice Felix Frankfurter in 1951, “is the most pervasive aspect of sovereignty.” Nor was this truism an American innovation. It was a bedrock principle of international law, a corpus rooted in the sovereign notions of comity and consent. The trail-blazing Dutch jurist, Hugo Grotius, wrote:

when our lives are threatened with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided: an instance, as it has been shewn, on which the justice of private war rests. We must observe that this kind of defence derives its origin from the principle of self[-]preservation, which nature has given to every living creature, and not from the injustice or misconduct of the aggressor.

Yes, a natural right of each human being, and the natural endowment of the defining communal structure of human beings, the nation state. So it was, as the Claremont Institute’s Richard Samuelson recently explained, that Emmerich de Vattel, the Swiss philosopher and contemporary of America’s founders, elaborated:

Every nation, as well as every man, has, therefore, a right to prevent other nations from obstructing her preservation, her perfection, and happiness—that is, to preserve herself from all injuries…[A]nd this right is a perfect one, since it is given to satisfy a natural and indispensable obligation: for, when we cannot use constraint in order to cause our rights to be respected, their effects are very uncertain. It is this right to preserve herself from all injury that is called the right to security.

There is no more basic assertion of this natural right than the waging of a defensive war, bringing to bear, after provocation, the national might necessary to quell the enemy so that he is no longer a threat. There is no greater security, for both the nation state and the order of civilized nations, than victory over forces that thrive on inhumanity—forces that always and everywhere process accommodation as weakness.

The authority to capture and hold enemy combatants until the conclusion of hostilities, to subject to discipline violators of the laws and customs of civilized warfare, is thus elemental. That, indeed, was the conclusion of the Supreme Court in its 1946 Yamashita case. “The trial and punishment of enemy combatants,” it instructed, are basic to the “conduct of war.” In fact, four years earlier, as war raged, the Court had upheld the convictions of eight German saboteurs who were captured in the United States just days before FDR ordered their trial by military commission. (Six were put to death by electrocution only a month later—and the court’s decision upholding the entire exercise, Ex Parte Quirin, was not publicly released until months later.)

Such brute exercises of sovereign self-protection, however, cut sharply against the post-World War II era’s internationalist ethos. That mindset has three characteristics: denying the natural basis on which human rights (including self-preservation) were founded; subordinating the community to its ambitious new individual, a chimera mixed-and-matched from its transitory pieties; and undermining the security imperative of defeating evil by elevating the arrogant fantasy of negotiating with it.

That ethos, predominant today, was already on display in the 1945 United Nations Charter, the very opening passages of which condemn above all else the “the scourge of war”—notwithstanding that a noble war had just defeated the scourges of Nazi tyranny and Japanese imperialism. The Charter’s ne plus ultra is “fundamental human rights.” These, it proclaims, would be best promoted by establishing a world body “under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.”

The Charter’s Article 51, though often ignored, purports to reduce the right of self-defense to limited responsive engagements which ensue only until “the Security Council has taken measures necessary to maintain international peace and security.” Literally, a member nation is expected to endure a first strike, no matter how clearly signaled and existentially threatening, before taking protective action. Moreover, it is the Security Council, not the besieged sovereign, which is authorized “to take at any time such action as it deems necessary”; and the goal of any such action must be the restoration of “international peace and security” (emphasis added), not the well-being of any one nation.

The Framers of the American Constitution, steeped in the majesty of British law and tradition, understood that real security required an accountability nexus between the political actors wielding power and the public whose lives hung in the balance. Today, by contrast, UN Secretary General Kofi Annan, reading Article 51, claims the Security Council is “pre-eminent”—“the sole source of legitimacy on the use of force,” based on a Charter which, alone, “provides a universally legal basis for the use of force.”

The fallout abounds. For example, the Special Rapporteur of the United Nations’ new Human Rights Council recently released a report on the “Prevention of Human Rights Violations Committed with Small Arms and Light Weapons.” In its haste to rid the world of guns, regardless of contrary national laws (such as the Second Amendment to the U.S. Constitution), the report breezily contradicts international law’s ancient origins, declaring there is no right to self-defense—neither for the individual nor for the nation state. At best, self-defense was said to be available in most jurisdictions as a defense to be interposed, not a privilege (much less a natural right) to be guaranteed. Thus, there is a right to life, but not to preserve that life.

This can have come as no surprise to Israel, a perennial victim of transnational progressivism’s infatuation with self-styled “freedom fighters” and “national liberation movements”—which is to say, leftist insurgents and jihadists. In 2004, the UN’s International Court of Justice (known, in its solipsism, as “the World Court”), ruled by a lopsided fourteen-to-one that the barrier constructed to shield Israelis from relentless terrorist assault—reducing suicide-bombing murders by over 90 percent and thus minimizing the need for Israeli Defense Forces to conduct responsive operations in the West Bank and Gaza—was an affront to international law. The tribunal reasoned that the fence, transparently derided as “the wall,” created disproportionate hardship for Palestinians. In the true spirit of Animal Farm, the ruling, rendered by justices hailing from countries that routinely repress various minorities, came just as the UN itself was burdening Manhattan’s already harried commuters by constructing a security fence around its headquarters.

How surprising was it, then, during this summer’s siege of civilian bombing by Hezbollah—an international terrorist organization whose animating purpose is the destruction of the Jewish state—that it was Israel, the victim, which Secretary General Annan chose to accuse of war crimes? And for what? For unintentionally striking UN forces that had, for years, enabled Hezbollah’s offensive operations.

Enter Hamdan. In its decision, the Supreme Court invalidated President Bush’s military commission procedures on the alarming ground that they violated international law, specifically Common Article 3 (CA3) of the Geneva Conventions (a “common article” because it is incorporated in all four of the 1949 Geneva Conventions). Insofar as is pertinent to military commissions (although, as we shall see, there are other germane terms), CA3 states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, … [p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, [and] … [t]o this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:…the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (Emphasis added.)

The inference that this provision has any application whatsoever to the war on terror is astonishing. Principally, the Geneva Conventions deal with international wars between regular armies. Consistent with their civilizing leitmotif, they require fighters to qualify for privileges by satisfying humane standards. They reaffirm the time-honored concept, memorialized in the 1907 Hague Convention IV, of the “lawful” or “privileged” combatant. Such combatants are licensed to engage in warfare only if they are members of a national army, subject to a formal chain of command, wear uniforms to identify themselves as soldiers, carry their weapons openly, and conduct their operations in accordance with “the laws and customs of war.” As the legal scholars David B. Rivkin, Jr., and Lee A. Casey elaborate, those standards, developed over centuries of balancing military necessity with hu- manitarian considerations, state: legitimate warfare is limited to sovereign states, civilians may not be attacked deliberately, captured combatants may be held until the cessation of hostilities, lawful combatants are to be accorded the privileges due to honorable POWs, and certain weapons designed to cause unnecessary suffering are proscribed. That is, the laws and customs of war are the antithesis of the barbarities practiced by al Qaeda, an international terror network.

CA3 is something of a Geneva aberration. It addresses civil war occurring within a single country, not the Conventions’ raison d’être, international conflicts. Very often, at least one faction in such a conflict will not be a national army. Arguably, there may be some justification for relaxing privileged combatant qualifications in order to extend basic standards of humane treatment.

But the war on terror, launched after savage attacks in the United States prompted military operations in Afghanistan, is manifestly not a civil war. The Supreme Court’s pedantic end-run around that inconvenience—namely, the suggestion that because al Qaeda is not a nation it cannot by definition participate in international conflicts—would no doubt surprise thousands of victims strewn across four continents.

The twisting of CA3’s language, though, is just a side-issue. The salient point for the future of the nation state is how the Court got to CA3 in the first place. Here, it is necessary to pause momentarily over the state of play before the Supreme Court got involved.

The appellate panel whose ruling was under review in Hamdan was, as American courts go, no slouch. On it sat three highly respected jurists, including Judge John G. Roberts, Jr., who, soon after, was nominated and confirmed as Chief Justice of the United States (after Senate hearings that prompted awe at his mastery of the law). The panel emphatically rejected the accused terrorist’s claims to Geneva Convention protection, reaffirming that treaties—even human rights treaties—do not create rights that individual persons may enforce judicially against the contracting states. Disputes are to be resolved diplomatically by the political representatives of sovereigns, not by courts.

This is a foundational principle of international law. Assuming courts that are components—not overseers—of sovereign governments, it is also a matter of common sense. The principle, moreover, is explicitly written into the Geneva Conventions—in fact, into CA3 itself. Anticipating potential disputes about its coverage, the provision states, “An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.” It would have been absurd to think when Geneva was adopted in 1949, just as it should be absurd to think today, that an individual who believed himself denied some benefit of the international treaty could seek redress, not by pressing his government to lodge a protest with the diplomats of the offending nation, but by filing suit in the latter’s courts—expecting the judiciary to call its peer branches to account for the benefit of an enemy operative.

This, though, is precisely the conceit of the tidal wave known as “international human rights law.” In The Case for Sovereignty: Why the World Should Welcome American Independence, the Cornell scholar Jeremy Rabkin explains its shattering potential:

Earlier generations were certainly familiar with claims under international law by which one state might protest the mistreatment of its own citizens when they traveled into the territory of another state. But human-rights law purports to apply to human beings, as such. It purports to protect individuals, even in dealing with their own government. There is nothing international about such a claim.

Au contraire. The Supreme Court’s Rasul harbinger may have become its Hamdan revolution. It is not simply that the justices (in an opinion written by Justice John Paul Stevens and joined by Justices David Souter, Ruth Bader Ginsburg, Stephen Breyer, and, substantially, Anthony Kennedy) overruled the lower court. That would have been bad enough in this case. But the internationalist majority insouciantly—or, the cynical mind imagines, quite consciously—declined to grapple meaningfully with the gravamen of the Court of Appeals’ analysis, the doctrine that treaties are presumptively unenforceable by the judiciary.

At times, the majority seemed to be saying, spuriously, that Geneva was germane to Hamdan’s case only because Congress had implicitly incorporated CA3 (supposedly by merely mentioning the “laws of war”) in a statute that addresses military commissions (the Uniform Code of Military Justice). Far more ominously, though, at other times the Court patently intimated that CA3 was applicable of its own force—that, as a treaty, it set forth positive international human rights law obligations with which sovereigns were bound to comply … or be directed to do so by their robed masters.

For the nation state, the portents could not be more alarming. Controversy roared in the United States over the appropriate legislative reaction to Hamdan. Alarmingly, the centerpiece of the debate was the interrogation and conditions of confinement of alien enemy combatants. Those matters, though, have utterly nothing to do with Hamdan. The sole issue of that litigation was the trial of alien enemy combatants by military commission. Issues of custody and questioning could only be thought pertinent if one assumes that the Supreme Court must have found CA3—which, besides trials, mandates humane treatment and forbids such coerciveness as “cruel treatment,” “outrages upon personal dignity,” and “humiliating and degrading treatment”—to be governing law, judicially enforceable on behalf of individual claimants for all purposes.

The cataclysm such an assumption augurs cannot be overstated. A sweeping infrastructure of international human rights law has been slowly built and fortified over the past sixty years. Its roots trace back to not only to the Geneva Conventions and the UN Charter but also the same post-war era’s clarion call, the Universal Declaration of Human Rights, which proclaimed an international community comprised not of sovereign nations but of one human family, all born free and inalienably entitled to life, liberty, personal security, freedom from torture and slavery, equality before the law, and so on.

Though the Declaration itself never became a binding treaty, it spawned two “International Covenants” that divided its soaring rhetoric along the cold-war economic divide: one on Civil and Political Rights (ICCPR) and the other on Economic, Social, and Cultural Rights (ICESCR). While the latter is more palpably a statist wish-list—calling for government-underwritten economic sectors, universal health care, comparable-worth compensation, a mandate to end hunger, and the like—the former also smacks of leftist pieties, calling for government-mandated proscriptions of degrading treatment, hate speech, advocacy of war, and unequal burden-sharing in the rearing of children. Additional protocols were later tacked on to abolish the death penalty (in the ICCPR) and create mechanisms for citizens to enforce the treaties against their own governments—under the auspices of the now superseded UN High Commission for Human Rights (whose members have included such humanitarian stalwarts as Libya, Syria, Sudan, Sierra Leone, and Uganda).

Subsets of that same commission monitor a host of other human-rights conventions: the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the Convention on the Rights of All Migrant Workers and Members of their Families, and the UN Convention Against Torture and Cruel Inhuman and Degrading Treatment.

That several of these compacts have never been ratified in the U.S. under our constitutional procedure (calling for presidential negotiation and, later, ratification only after consent by two-thirds of the senate) would now seem to matter little. In 1977, for example, the UN spearheaded Protocol I to the Geneva Conventions. While much of the world, including the United Kingdom, signed on, the Reagan administration demurred, largely because the treaty would confer rights on—and thus reward and encourage—terrorists, in addition to outlawing effective war-fighting (ostensibly to strengthen international guidelines against the indiscriminate and disproportionate use-of-force). No matter. By resorting to, and torturing, the text of CA3, the Supreme Court has effectively imposed on the United States some of the very treaty terms the nation’s accountable political representatives rejected in Protocol I. The justices seemed untroubled by the absence of constitutional legitimacy and institutional competence in their conduct of foreign relations.

Hamdan continues a trend, decades in the making, by which transnational progressives, often with courts at the helm, dissolve international law’s moorings in the notion of sovereign consent. An unspoken “customary law,” they maintain, is equally as binding on states as formally ratified treaty terms. Once written compacts have been accepted by an array of nations over a period of years, they are said, hocus-pocus, to be subsumed into customary law. Countries which refused to sign those compacts, or accepted them with serious reservations, are condemned as international scofflaws (or even war criminals) for failing to comply with that to which they never consented in the first place.

The revival by U.S. courts of the moribund Alien Tort Statute is illustrative of the trend. Under this 1789 law, judges now presume to regulate the internal affairs of foreign nations—no matter how remote and inconsequential to American interests—if, in their view, “definable, universal, and obligatory” international norms have been transgressed. The trend, further, has reached ambitious new heights with the Rome Statute, creating the International Criminal Court, which claims jurisdiction over all the world—even non-ratifying states—as well as power to criminalize the defensive use of force as, for example, a war crime.

After Hamdan, however, the known terms of treaties—ratified or not—are just as ominous as the globalists’ envelope-pushing approach to customary law. The afore-described human rights treaties contain numerous terms that run afoul of U.S. constitutional guarantees and democratically determined laws. They contain provisions that no accountable politician would dare propose. For decades, however, they’ve been casually negotiated, signed, and sometimes ratified on the assumption that they were merely hortatory. Ambitious politicians, beguiled by the soothing melodies of “human rights” and “international community,” danced merrily along, figuring there’d never be a call to pay the piper. Well, the piper is at the door. And the bill may be more than the nation state can bear.

Hamdan signals that human rights treaties may become judicially enforceable. If that happens, the catastrophe for democratic self-determination in the U.S. may match the steady erosion of British sovereignty caused by the Labour government’s incorporation into domestic law of the European Convention for Protection of Human Rights and Fundamental Freedoms.

That Convention, too, was a product of the post-World War II fondness for soaring idealism and sweeping entitlements to such privileges as “life,” “liberty,” “security,” and “respect for private and family life,” along with proscriptions against “torture” and “discrimination.” Yet, these are more abstract principles than universal rights, as Melanie Phillips observes in her eye-popping book Londonistan. Unlike national laws, whose meaning can be concretely divined by studying the context and intentions of the enacting legislature, human rights law calls on us to arbitrate between competing principles. Such judgments are highly contingent, not universal, dependent on the subjective views of those called on to decide. Now those decisions are routinely made by British judges. And we know empirically, as Judge Robert Bork observes with characteristic sagacity, “Once the rhetoric of rights takes hold, the law is applied reflexively, according to semantics, and without regard to the reason that defines and limits the right.”

For almost a half-century after Great Britain adopted the European Convention in 1953, it was principally construed by the European Court of Human Rights in Strasbourg. This intensified what Ms. Phillips aptly calls “legal supremacism”—in this case, the subordination of English common law to “the encroachment of European law, on the basis that … distinctions [rooted in sovereignty] no longer matter because we are all now bound by universal legal principles that brook no opposition.” Professor Rabkin has assessed the damage well. The Human Rights Court, which rendered only ten judgments in the 1960s, decided over 800 cases between 1990 and 1998, when the European Convention was statutorily incorporated into British domestic law. “Though Britain had the oldest and seemingly best- established traditions of legal protections for individual liberty of any signatory to the Human Rights Convention,” a substantial percentage of the Human Rights Court’s cases involved challenges to British practices. These compromised the government’s ability to control its borders, protect national security, detain and interrogate terrorists, and enforce democratically determined social policy.

Since incorporation, the pace has become dizzying. Ms. Phillips captures it well in a chapter that brings us full circle, “The Human Rights Jihad.” The proud heritage of Britishness daily deliquesces as jurists—insulated, like their U.S. counterparts, from political checks—dismantle its foundations. The democratically developed understanding of marriage and family is redefined by judicial fiat in the name of gay rights. The simple keeping of vital statistics is fictionalized and criminalized in furtherance of a “right” of transgendered persons to deny the biological realities of birth. Parliament’s planning laws are struck down to protect illegal gypsy camps under the rubric of the “right to family life.” Free expression is crushed beneath the weight of politically correct speech codes. Deportation and detention of suspected alien terrorists are precluded as violative of non-discrimination and proportionality privileges under international law.

Much of what is great about America is owed to following in the giant, civilizing footsteps of our British forebears. So the questions must be asked: Will the United Kingdom complete its journey toward sovereign suicide? Will the United States follow her? Is the nation state threatened? The prognosis is not good, at least for those who believe the sovereign nation is the true guarantor real peace. Not the internationalist version of peace: precarious stalemate interrupted by occasional savage advance. Real peace, through freedom, self-determination, confidence, security and prosperity.