GAFFNEY: Looming specter of transnationalism

The Washington Times ^ | March 31, 2009 | Frank J. Gaffney Jr.

[Scanian]

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 advisers to former President George W. Bush - including former Attorney General Alberto R. Gonzales and Undersecretary of Defense Douglas J. Feith. The purported 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. policymaking 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 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”:

[Scanian]

"U.S. needs a State Department defender of its sovereign rights"

[cripplecreek]

Looks like the “conspiracy theorists” got another one right.

[LuxAerterna]

Judges like this are themselves guilty of a crime - attempted kidnapping - and should be treated as such. The USA shouldn’t take this lying down.

[ZeitgeistSurfer]

The State Department has been a traitorous organization almost from its inception. It's gotten much worse under Clinton and Bush. Koh would be considered a moderate at Foggy Bottom. If a secret vote were taken at State, the majority would vote to eliminate the United States as a sovereign entity and replace it with either a world government or the North American Union. Yes, it's that bad.

[plsjr]

Worse than that - From the aricle: How many Americans are aware that some, let alone an actual majority, of the Supreme Court's justices think this country should be ruled by something other than the Constitution of the United States, laws made pursuant thereto and treaties clearly consistent with it?

[nathanbedford]

Finally, the transnationalists urge that the power of the executive branch should be constrained by judicial review and the concept of international comity, while the nationalists tend to believe that federal courts should give extraordinarily broad deference to executive power in foreign affairs.”

Many of us have been expressing our fears since before the election that Obama would turn to the treaty making power and even the executive agreement power vested in the President to make an end run around the Constitution to affect our rights guaranteed by the Bill of Rights. If a complaisant court were to find a higher value in treaties over individual constitutional rights-a step and has not yet taken-then Obama would need only two thirds of the Senate to work his will, the House of representatives being bypassed in the treaty making process. The Court would ultimately be pushed out of the process or packed or just otherwise dominated.

Even more chilling is the prospect of achieving the same results by executive agreement which requires no Senate approval at all.

Even if there is no assault on the Bill of Rights, the executive could make an end run around the Constitution by executive agreement or treaties with foreign powers or extra national organizations such as the United Nations, or trade organizations, which simply take the legislative power away from Congress on matters involving, for example, pollution control. I assume that legislative power of the states is a dead issue anyway.

[sergeantdave]

“I assume that legislative power of the states is a dead issue anyway.”

Your assumption is incorrect. The tea parties are forcing state legislatures, governors and citizens to reassess the relationship with the criminal syndicate occupying Washington.

This is a proper step in building resistance to the Marxists. Hotheads who want to roll the guillotine down Pennsylvania Avenue today need to be ignored.

[nathanbedford]

Alas, even in today's economic climate, I cannot conceive of a more sure way to go broke them by betting on the restoration of states' rights.