Counterterrorism and Global Trade — Legal Developments — Need a More Effective Congress and International Law.

In his two books, Jack Goldsmith rationalized the growth of presidential power in the War on Terror, addressing both the Bush and Obama administrations. And of course he tries to justify his actions, with some limited success, while in the Bush Justice Department.
In his 2009 book, The Terror Presidency, Goldsmith notes the string of congressional capitulations during 2001–2008, allowing a more militarized approach to the counterterrorism policies by the Bush administration. However, he notes Supreme Court decisions imposing restrictions on those actions.
In his 2012 book, Power and Constraint, Goldsmith continues his argument that Congress not only failed to restrict the president’s actions but, in fact, generally sanctioned the continuity of Bush-era policies.
Unfortunately, he glosses over the broad rejection by the Obama administration of torture,  waterboarding, and extraordinary rendition  as instruments of U.S. policy. He is dismissive of the very significant role federal courts played in limiting these Bush era-policies while balancing civil liberties with national security.
But most interestingly, Goldsmith extends his argument that it is not only the courts that provide for presidential accountability but the hypergrowth of private organizations, especially by aggressive lawyers.
In a sense, he argues that it is now the courts and these informal groups that functionally provide an accountability mechanism in lieu of an ineffectual Congress.
It is clear that it has been the federal courts that have primarily protected individual rights as enshrined in the Bill of Rights. And this focus on individual rights is what makes America truly exceptional among the countries of the world.
To me it is the balance between the protection of individual rights and the protection of the national security of the United States that is always a work in progress as global events unfurl. We need to get this right and this varies over time. (This applies especially to our developing policies concerning cybersecurity and extensive use of drones.)
It is my sense that the state of counterterrorism policies today is just about right, with the grave exception of the diminished role of federal courts concerning detainees and their legal rights. (I am also concerned about the administration’s continued assertion of the “state secrets privilege.”)
Goldsmith greets the role of courts and private groups with gratifying acceptance but displays an unfounded conservative bias against what these lawyers and organizations advocate: the observance of international law as law of the land. He barely disguises his disgust with the growth of this law that covers many areas once removed from broad rules of conduct.
It is unfortunate that as a law professor he prefers the workings of an ad hoc military commission system in lieu of the well-tested federal court system as to detainees and terrorist trials. Empirical evidence is on the side of the federal courts.
What does this have to do with global trade?
For foreign and military affairs, there is a sharing of power by the president and Congress. However, as to these areas the powers of the president have grown immensely over the years. As for foreign trade, Congress has exclusive authority. While the executive negotiates agreements the Congress has firmly kept control of its authority over accepting these agreements and implementation of them by legislation. This division and differences in powers are basically as the Constitution envisioned them.
For global rules of trade, international law forms the basis—both treaty law and customary international law. For example, the World Trade Organization (WTO) and bilateral trade agreements are supreme law of the land, under Article VI of the U.S. Constitution. Rules concerning expropriations are rules of customary international law. Such laws are the law of the land under Supreme Court precedent, going back to the 1800s.
The problem is that Goldsmith and others resent and reject the notion that customary international law can be expanded and applicable to states without their specific consent—especially the United States—and is often too broadly interpreted.
This they argue represents a challenge to U.S. sovereignty. In fact, this critical issue, which I thought has long been settled precedent, is being reconsidered by the Supreme Court this term.
For example, conservative international lawyers have long-argued the that “Alien Tort Statute” ought to be limited if not disregarded concerning suits against foreign corporations or anyone violating customary international law outside of the U.S. Thus, restricting the application of customary international law within the United States. Many other countries allow such legal actions against foreign corporations. Of course, Congress can explicitly extend the statute to avoid a restrictive reading.
It is interesting to note that the continuity of counterterrorism policies from the Bush to Obama administrations is akin to a similar continuity of aggressive U.S. policies towards China in WTO litigation.
What’s the problem as it relates to trade relations?
This narrow view of customary international law (which I would consider an unjustifiable assault on it) weakens the ability of states to consider a wide range of newer issues; for example, actions by individuals and corporations in collaboration with state sponsors of terrorism and rogue state to gain economic concessions. What about the entire issue of exclusive economic zones in maritime law and the traditional right of states to self-defense and state-sponsored commercial cyber intrusions? A narrow view of customary international law relegates law to a position of inability to meet dynamic changes in the global system.
For example, the European Court of Human Rights now applies international human rights law, under both conventional and customary international law, to corporations. (The court delas with the inter-play of EU law, European Human Rights law, the law of states, and  the impact on corporations individuals.) In a sense giving them protection against state abuse.
This is particularly interesting since the Russian Federation is a member of this regional system and cases against it are numerous. Implicitly that means that corporations are recognized as juridical persons with obligations also.
 Goldsmith’s antagonism with international law generally feeds into a broad reluctance concerning the U.S. involvement with bilateral, regional and international legal arrangements allowing adjudication of newer and growing trade and investment issues with a wide-range of countries. Such involvement is viewed, in part, as a diminishing of U.S. sovereignty.
In conclusion, as to matters of trade, both Congress and international law set the parameters for presidential action. An ineffective Congress and an emaciated view of  international law are unhelpful in today’s world. They are counter-productive to U.S. national interests in meeting the political and economic challenges confronting the U.S. in an interdependent global environment.
Dr. Stuart Malawer is the author of two recent casebooks, U.S. NATIONAL SECURITY LAW (Hein and Company, 2009) and WTO Law, Litigation and Policy (Hein and Company, 2007).

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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