Editor’s note: This article is part of the Just Security Symposium on Harold Hongju Koh’s “The National Security Constitution in the 21st Century”.
Harold Hongju Koh’s The National Security Constitution in the 21st Century is a code red threat assessment of the state of public law in America today. True to Koh’s nature, he does not leave us without hope; rather he devotes a sizeable portion of the book to calls for reform, from the legal frameworks governing war powers and intelligence to the division of labor in the national security legal bureaucracy plodding away within the deepest (secure) chambers of the executive branch itself.
I have elsewhere shared my thoughts on war powers reform, Congressional oversight, and the legal bureaucracy. These primarily reflect concerns—shared by Koh, among others—with containing an ever-aggrandizing Executive, an objective that is all the more urgent today.
I will focus here on a different undercurrent threaded beneath many of the calls for reform in Koh’s book. Koh calls for Congress to take back up its constitutional role over warmaking, for judges to return to longstanding judicial doctrines that look to international law in interpreting constitutional or statutory provisions, and for the executive branch to reform how national security legal advice is coordinated and enshrined to make better use of international law expertise in specialized agencies. He calls for a new framework for thinking about the president’s power to make international agreements unilaterally, and for when the president can end them.
Underlying each of these proposals is one harsh and unspoken background reality: international law is becoming a third rail in American politics today. International law plays a significant role in so many aspects of American life, from business to communications to the food we eat to public health to preserving natural resources to peace and security. Yet political rhetoric today suggests widespread ignorance about what international law even means, and often advances misinformation and fear about what it can do.
In stark contrast to longstanding precedent, judges today often deny a role for international law as a rule of decision or tool of interpretation in U.S. courts. The presidency, which has as a result amassed almost exclusive control over the making, interpreting, and breaking of international law for the United States, siloes its expertise in a legal office within the State Department that wields little power within the government and rarely in recent years even gets a politically confirmed head. And the United States’ ability to ratify treaties has been drying up as the Senate refuses to provide advice and consent to agreements—or even consider whether to do so.
There is thus a justifiable fear today that if a reckless president withdraws the United States from critical institutions or treaties, they may face few political consequences for doing so, and the United States may never be able to rejoin.
This is not to say that the United States has become a lawless nation on the global plane, as some might believe. Reasonable minds can certainly differ on the U.S. legal position on any particular matter, but consideration of compliance with existing law is—at least for now—a significant mainstay of U.S. government decision-making. Strategic vision for how to deploy the tools of international law and institutions looking forward, on the other hand, is a primary casualty of the war on international law. The net result of the undermining of international law domestically is an undermining of U.S. interests internationally, which all branches of government should work to correct.
How We Got Here
The undermining of international law as law within U.S. politics and the domestic legal system did not happen by accident. In modern history, a conservative movement that lost its battles on the substance of certain international law norms—be it human rights, climate change, war, or racial discrimination—turned to process as a second bite at the apple. Having failed to halt the developing norms they found distasteful, they found ways to undermine the field of international law in the U.S. legal system.
They have been wildly successful. So successful has this war been that the rejection of international law has become untethered from any given substantive battle and has become a generalized grievance. We have reached the point where today a Supreme Court nominee of either party apparently believes they must denounce (51:06), or even entirely misstate (54:09), a role for international law in the U.S. legal system law in order to be confirmed.
Nor is the denigration of international law as a means of settling scores a new phenomenon. It has deep historical underpinnings sustained by longstanding grievances.
One critical juncture in American history well illustrates this. In the early 1950s, a group of politicians grew concerned that treaties codifying protection for human rights and barring discrimination would be used to challenge Jim Crow laws throughout the south. Senator John Bricker introduced a constitutional amendment seeking to limit the president’s ability to make treaties and to undermine the efficacy of existing treaties in court. Specifically, the Bricker amendment would make all treaties “[in]effective as internal law in the United States” without the affirmative “enactment of appropriate legislation by the Congress.” Bricker and his supporters lost this particular battle, but generations of lawyers and judges and lawyers have taken up where Bricker left off, successfully narrowing the efficacy of treaties as a rule of decision in U.S. courts.
The decades since have seen waves of assaults on the role of international law in the U.S. legal system, from attacks on the use of international law as a rule of decision in U.S. courts, to devaluing longstanding canons of interpretation of U.S. statutes and the Constitution, to an antipathy toward taking on international obligations through treaties or providing support to international institutions.
Over time, the process arguments against international law have become attenuated from the substantive debates that spawned them. There are surely judges today who are not thinking of Jim Crow when they take a narrow view of self-execution doctrine. At other times, the substance and process again intersect.
Fear, Influence, and International Law
With respect to international tribunals in particular, for many their antipathy is based in a fear that U.S. officials will be dragged before them. The broader distaste for international institutions is in part a fear that Americans will lose control over the rules that govern us. One irony is that each of these concerns becomes more realistic the less the United States engages with the process of shaping international law and institutions. The United States has the opportunity to lead after winning a hard-fought place in the world, and when we relinquish that place we wind up following.
The United States is still a rather legalistic society, though belief in public law may be deteriorating. For now, at least, the problem is less about raw compliance with existing law than it is a lack of strategic vision over how to engage international law and institutions going forward. The result over time is an erosion of U.S. influence, a reduced ability for the United States to negotiate the substance of international norms, diminished ability to use international institutions to resolve conflicts, decreased power to hold others accountable, dilution of the rhetorical weight of our criticism, and a deterioration of U.S. standing in the world.
Of course, there are times when even critics of international law and institutions look around and realize that it would be useful if the United States could lean on those tools that they had worked so hard to undermine. I’m not sure anyone had Senator Lindsay Graham (R-SC) calling for investigations of war crimes in the International Criminal Court and the International Court of Justice on their bingo card for 2022.
But the attenuation between process and substance means that the crusade against international law can threaten to take down even those institutions and agreements many conservatives want to retain. NATO. The WTO. Tax treaties. Cooperative security agreements. All depend on strategic vision and hearty engagement with international law and institutions.
What Should We Do Now?
The stigmatization of international law and institutions has infiltrated every important tier of the U.S. political and legal system. Despite the many practitioners of international law and its constant presence in every aspect of the U.S. system, we can see evidence of its denigration in the judiciary, in political rhetoric, in the structure of the federal bureaucracy, and in academic institutions. Confronting this challenge requires a multipronged approach.
For educators, there is a defensiveness inherent in much teaching of international law in the United States. Anyone who has taught or taken an international law class has heard the refrain, “but is international law really law?” Many international law textbooks even open with that question. Few if any U.S. law schools treat the study of international law as a significant requirement for any American lawyer. It is so rare to require any course connected to international or comparative law that Justice Elena Kagan was interrogated at her confirmation hearing for Harvard’s decision to require that students take one.
We can do better. We can make taking international law a norm for American lawyers, most of whom will confront it in their legal careers. We can affirmatively hire teachers of international law so that scholars do not have to pretend they are something else on the academic job market. And we can teach it without apology, explaining that international law covers a huge expanse of substantive topics and contains a range of enforceability and dispute resolution possibilities and problems, just like domestic law.
Within the executive branch, the core of international law expertise is focused in one elite office inside the State Department—an office Koh himself once led, an experience that informs many of the proposals in his book—the Office of the Legal Adviser, known as “L.” (Full disclosure, I have myself served in L under several different administrations including under Koh’s tenure there.) This office is highly regarded, yet too often discounted when its views conflict with those of other legal offices throughout the bureaucracy.
As but one example of the relative political clout of the office, L is alone among the general counsel’s offices of every national security agency in regularly going years without politically confirmed leadership. In fact, the Biden administration’s State Department Legal Adviser was finally confirmed only five weeks ago, with about four months left in the administration. The administration’s willingness to go for so long without an appointed Legal Adviser and to put so little capital into confirming one and the Senate’s holdup of this and other critical foreign policy posts suggests a lack of understanding and strategic vision about the criticality of international law and institution building for the United States.
If international law expertise is consolidated in L, then it should have the lead within the administration on questions of international law. As with all legal questions, there can be a range of views on the parameters of any particular obligation. But international law should not be treated like a policy question on which all agencies might have a stake in voting. Moreover, the White House and the Secretary of State should put real political capital into confirming their choice of legal adviser. One evident reason many administrations have not is that they have always found remarkably able leadership from the career public servants who otherwise comprise that office. But going without a political head means that L alone among the national security legal offices does not have a member of the president’s team sitting at the table. It means that Congress does not have a political appointee to call before it to represent the administration’s positions on international law. And it reveals a failure on the part of an administration to understand the importance of exerting the president’s vision over that office just like any other, and of having a legal adviser who enters with energy and a strategic vision of their own.
As for why international law has become a third rail in politics, there are so many forces at play here. Populism, isolationism, racism, anti-elitism, xenophobia. But we can start by just being honest about what international law is and is not. It is not foreign law. It is not giving up our sovereignty to some world overlord. It is not a universal police force run by the United Nations.
What international law is, on the other hand, is using legal tools—often created by the United States along with our closest allies—to effectuate U.S. foreign policy goals. It is using law to create fora in which states can meet to resolve their disputes. It is partaking in a common set of rules and language based in actual state practice—including our own—and actual belief that this practice stems from legal obligation. It is negotiating and signing onto cooperative agreements with other nations when we deem it is in the U.S. interest to do so, standing by those commitments while we agree to be bound, and if we want to depart, doing so in accordance with the terms of our obligations.
At the heart of Koh’s book is a concern with an ever-aggrandizing president. This should be a concern that Congress and the courts share, and one that those not so blinded by partisan politics might also want to correct. Yet these branches’ dismissal of international law only cedes further turf to the president.
I’ve written elsewhere about the ways that the siloing of international law work in the executive branch gives presidents the ability to exploit international law to increase their own power vis-à-vis the other branches. There are obvious examples of this, such as when presidents turn to creative uses of executive agreements out of a belief that there is no hope for engaging the Senate in advice and consent to ratification of a treaty.
Then there are less obvious examples, such as when executive branch lawyers successfully argue that international law should trump statutory or constitutional restrictions on targeted killing, and that the executive alone should define those legal parameters, apply them to facts, and judge the outcome.
Widespread ignorance and even fear of international law only cede the territory to those willing to wield it. Congress, the courts, and the president could all do better at engaging with international law and institutions. For the interests of the United States, it is essential that they do so.
Author’s note: This essay draws on research that is part of a forthcoming project of the author’s on The War on International Law.