Contact theSOPAbout theSOPSupport theSOPWritersEditorsManaging Editors
theSOP logo
Published:November 19th, 2006 05:59 EST

Federalist Society's Annual Lawyers Convention Featured Speaker Michael Chertoff

By SOP newswire

Secretary Chertoff: Thank you very much. A lot of lawyers in this room. Now I don't usually address lawyers' groups anymore because one of the benefits of my current position is it's the first job I've had since I graduated from law school in which I wasn't acting in a capacity of being a lawyer. And I'll tell you, it's wonderful. Every time there's a problem, I say, go ask the lawyers about that.

But I am delighted to speak to this group because I think the premise of the Federalist Society is that ideas matter in the world of the law and that our views of the role of the courts and our philosophy of law actually has a real-world impact on the way we organize our lives and conduct our daily affairs.

Now when I was in school, in law school -- and I graduated in 1978 -- I don't think the Society had yet been formed. And when I was in school, during the period from '75 to '78, we were still in the, I would say, full flush of the Warren Court years when the phrase "judicial activism" was viewed as a term of admiration. And for those of you who are younger, it may be a little hard to imagine what it was like to be in an environment in which there were only very few of us who were willing to talk about things like judicial restraint, or suggest that judges couldn't solve every single problem, and to be facing really a majority that looked at us like we were demented.

One of those who was a year behind me, but I think probably had as a very similar experience, was John Roberts, now the Chief Justice. There were very few people, frankly, who in my era were in a position to argue seriously for what Chief Justice Roberts has, I think very accurately, described as "judicial modesty." 

First, let me tell you what I mean, or what I think the phrase "judicial modesty" means. I think it means things like deferring to the political branches that represent the will of the people. I think it means cautiousness in the use of judicial remedies and kind of a humble recognition in the fact that sometimes there can be unintended consequences. I think it means mindfulness of the limits of judicial competence.

You know, judges are -- by and large -- pretty smart. When I was a judge, my colleagues were pretty smart, but they're not necessarily great at everything, and they don't necessarily understand everything. And they kind of -- a modesty in understanding their own competence is, to me, a significant element of the right way a judge out to behave.

And, of course, a critical element in judicial modesty is a rigorous observance of the self-limiting elements of jurisdiction. You have to be particularly careful about policing yourself to make sure you don't overstep because judges, after all, are generally given the last word about jurisdiction.

So what I think is really fascinating about the society is that by forming the Federalist Society, the visionaries who created the organization established fora in which these ideas of judicial modesty could be openly discussed in a collegial environment. Essentially, they created a counterweight to the prevailing academic orthodoxy of the '60s and '70s, and that was a very positive thing.

Of course, some people now have taken up the idea that really the Federalist Society is kind of like a modern day Da Vinci conspiracy -- a secret society that controls all the legal jobs and all the legal decision-making in the administration -- and of course, we know that is nonsense. But what the society did was it did create a forum in which one could challenge ideas that had previously been accepted as the conventional wisdom.

I'm not going to say that that means that the philosophy of judicial modesty or similar conservative philosophies now dominate the legal landscape. Far from it, many people still believe -- whether they be in academia, or on the courts, or practicing law -- many still believe that the purpose of the courts is to pursue a vision of the good life of social justice as conceived by legal thinkers and judges.

But now, in large part because of the work that the society and others have done, the claim for judicial modesty is sufficiently well established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it. Judges and lawyers who take an activist approach realize that they have to respond to the critique of that activism. Conservatism and judicial modesty have now become forces to be reckoned with in the intellectual discourse of the law here in the United States. In short, you've leveled the playing field, and that has been a very good thing.

So now your work is not done because I'm going to ask you to confront a new challenge, and that is the rise of an increasingly activist, left-wing, and even elitist philosophy of law that is flourishing not in the United States but in foreign courts and in various international courts and bodies.

For decades, the judges, the lawyers and the academics who provide the intellectual firepower in the development of international law and transnational law have increasingly advocated for a broad vision of legal activism that exceeds even the kind of legal activism we saw discussed in the academy here in the United States in the 60s.

So now you're scratching your head and you're asking yourself, why does the Secretary of Homeland Security care about this?  Well, in my domain, much of what I do actually intertwines with what happens overseas. And what happens in the world of international law and transnational law increasingly has an impact on my ability to do my job and the ability of the people who work in my department to do their jobs. And I'll give you a recent example.

Some of you may have followed in the press that there was a difference of opinion between the European Union and the United States about the use of something called passenger name record data, which is basic information that you get when you buy a ticket or you work through a travel agent as part of the process of planning your trip to come to the United States. There is great value to us in the ability to get access to that information as part of the process of our determining who we are going to allow to enter the United States. That, of course, is a fundamental core power of any sovereign; you get to decide who you're going to admit and who you're going to reject.

And it turns out that this very modest amount of information, like your address, and your credit card, and your telephone number, are very useful for us in identifying whether people seeking to come into the country have connections to terrorists that, at a minimum, suggest we ought to put them into secondary before we grant them admission. And this strikes me as eminently reasonable, and I can tell you it is a critical tool in protecting this country.

But privacy advocates, particularly in the European Parliament believe that because that information is collected in, among other places, Europe, they should determine how we use that information in deciding who is going to be allowed into our country. And this led to a very substantial debate. Fortunately, we resolved it with an agreement which I think does address the principal concerns that we have. But it focused my attention on how much of my ability to do my job in leading a department that protects the American people depends upon constraints that others want to put upon us based on their conception of either international law or transnational law. So I've come to see in a very dramatic way, this has a real world impact on the fundamental issues about how we protect ourselves.

Of course, it turns out that this is not a new issue. If you go back in 1986, there was a case in the International Court of Justice called Nicaragua v. the United States where there was a challenge to the United States policy of supporting the contras. And the court there was confronted by a jurisdictional argument which the United States raised.

The argument was that, based on the various treaties which were enforced, which meant things that we and other countries had agreed to, the court didn't really have jurisdiction of the case because all of the relevant parties were not participating, but the court brushed that jurisdictional argument aside and ruled against the United States on the ground that even if the treaties did not permit this to be addressed in that particular forum, there was customary law that allowed the court to act even though the treaties would have forbidden action in that case. And that's a fairly significant and dramatic decision, at least in my view.

In 1998, the International Court of Justice again confronted the United States in Breard v. Gilmore. That involved a Paraguayan who had not been given access to his consul -- I think frankly because nobody knew he was Paraguayan -- in Virginia, had worked his way up and down the state system in Virginia -- after he was convicted and sentenced to death, was working his way up the federal system. And literally at the eleventh hour of his execution, Paraguay went into the International Court of Justice and ordered the United States not to complete the sentence that had been imposed by a duly constituted Virginia state court.

Ultimately, it went up to the U.S. Supreme Court. And the U.S. Supreme Court ruled that because the court -- the plaintiff Breard had not exhausted or raised these issues at any point in the state court proceedings, he had waived his rights. There was a procedural bar under a 1986 federal statute that basically said you've got to raise your claims in accordance with state law or you've waived them. And therefore the execution went ahead. But international lawyers in the international courts were outraged that we gave greater weight to a federal statute that came after the treaty in question rather than deferring to an international court.

And of course, it's not only been the United States that has felt the vigor of this -- what I would call very activist -- kind of international adjudication. In 2004, the International Court of Justice waded into a thicket that is probably one of the most difficult of all in the area of international relations, and that has to do with Israel and its activities in the West Bank of the Jordan River. There, in a case entitled Legal Consequences of Construction of a Wall in the Occupied Palestinian Territory, the ICJ issued a very broad advisory opinion concluding that the construction of a wall that was specifically designed to keep suicide bombers out of Israel, where they were blowing up people on a regular basis, violated international law, had to be dismantled, and reparations had to be made because the wall was put up.

Part of that reasoning process was the ICJ concluding that Israel could not use the threat of terrorist attacks emanating for the Palestinian territories to justify the wall because the attacks were not attributed to a state. In other words, using what I would consider a very hyper-technical reading, the court was relatively dismissive of what most of us would regard as a very compelling, fundamental attribute of state sovereignty -- the right to protect your citizens from being killed by people coming in from outside.

And I think this sequence of decisions shows an increasing tendency to look to rather generally described and often ambiguous "universal norms" to trump domestic prerogatives that are very much at the core of what it means to live up to your responsibility as a sovereign state. Now who interprets these laws?  Of course, to the extent we're dealing with the text of treaties, if this country is party to a treaty we have consented to it -- if it's been ratified by the Senate -- and it's fair that we live up to the letter of the agreement we have signed.

But often the letter of the agreement is not what controls; it is, in fact, what we have not agreed to that people seek to impose upon us. And of course this begins with the judges and justices of various international courts, not, of course, appointed by or ratified by our legal -- our political process, that looks to customary international law, that is often considered to be described by what they say are the opinions of international law experts. That basically means professors.

Now I'm sure it's an academic fantasy to imagine a world in which the writings of professors actually define the content of the law rather than what Congress passes or is agreed upon. That's typically not, at least not in my experience, the way we make law in this country. But it is quite seriously the view taken by some that international law can be discovered in the writings of academics and others who are experts, often self-styled experts.

And I think Congress itself has recognized that this tendency to have a very expansive and activist view of customary international law requires that we be very cautious in this country about how we address the issue. Several times, for example, the Senate has expressly put reservations into its approval of treaties to make sure that the treaties are interpreted and applied domestically in a limited fashion, or even more importantly in a way that's consistent with our own fundamental constitutional requirements.

And yet again, the experts and sometimes the foreign adjudicators simply view those limitations as minor impediments to insistence that we accept the full measure of the treaty as ratified by others, or perhaps as not ratified by anybody, but as having its source in that vague and fertile turf of customary international law.

And of course, when one looks to the sources of this international law, one can hardly, for example, fail to note the composition of the U.N. Human Rights Committee and other U.N. organs which often take some of their impetus for their view of international from countries like Cuba and Zimbabwe, which are not notable upholders of the rule of law in their own countries.

And the increasing tendency of the U.N. and similar bodies to enter into the domestic arena with aggressive views of international law that would requires us, for example, to second-guess the Patriot Act, or to accord illegal immigrants in the United States equal rights with those who are here legally.

But perhaps even more urgently in the current arena, we see the impact of international and transnational law on our struggle to defeat an enemy that wants to bring war to our shores and successfully did so on 9/11.

I've talked about the PNR, passenger name record, issue we've had with Europe, in which some in the European Parliament argued that the fact that the information was derived from Europeans coming to the U.S. meant that we should be forced in the United States to let Europe supervise and set the terms of how we make use of that information. A press report I saw today suggested a similar measure by some European privacy advocates to limit the way in which financial information that we gather can be used in our country, because at some point that information may have passed through European hands.

So how we deal with this issue of international law is increasingly impacting how we defend ourselves and how we conduct our domestic affairs. So what's the source of all this?  Well, the source of it, I think, has to do with what I said at the very beginning of the speech. It's the fact that the concept of judicial modesty, which at least has won respect in this country, of not perhaps completely unanimous agreement, is, I think, pretty much absent in those areas where people develop and discuss international law. And if you look at the cases I've talked about, it illustrates the point very well.

A critical element of judicial modesty is deferring to the political and Democratic branches, to those who govern with the consent of the people. And even when we talked about overriding those with the Constitution, it's because our Constitution is a document which reflects the consent of the people. But in the Nicaragua case, the ICJ, International Court of Justice, precisely rejected consent by pushing to one side the carefully crafted treaty limitations about who should be present in the court before the court could rule, and then simply going ahead and reaching for customary law.

And recently a leading practitioner in the area of international human rights law was quite specific in saying that when the U.S. refuses to ratify a treaty, it doesn't matter, because we may still be bound by customary international law. Or in the Breard case, where the international law community gave short shrift to Congress's mandate that we respect the procedural rules and regulations of the state courts. In other words, a critical element of federalism, reflected not only in our Constitution but in a specific act of Congress, was viewed as an impediment to be brushed aside in the service of a more general and, frankly, somewhat vaguer set of international norms.

So what we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principles: separation of power, respect for the Senate's ability to ratify treaties, and the Senate's ability to reject treaties, and respect for federalism and the importance of letting the state courts set their own rules to govern what they do.

So where is all this leading?  Well, I'm going to quote from the same international human rights lawyer who gives us his vision of where we're going with international law. He says in a recent book called Lawless World, "to claim that states are as sovereign today as they were 50 years ago is to ignore reality. The extent of inter-dependence caused by the avalanche of international laws means that states are constrained by international obligations over an increasingly wide range of actions, and the rules, once adopted, take on a logic and a life of their own. They do not stay within the neat boundaries that states thought they were creating when they were negotiating."

Now, I'm quite sure that is meant to be a happy statement of the way we're operating now. But I actually view it as a chilling vision of where we could go, given the current developments in international and transnational law. So what do we do about it?

Well, traditionally, we have tended to act in a manner that I would call defensive. For example, after the Nicaragua case, the U.S. government withdrew jurisdiction over the matter and that ended the legal power of the International Court such as it was to compel a result.

In some of the more extravagant assertions by some of the U.N. human rights organs, we've simply accepted this statement as a kind of hortatory request, and we haven't done anything further with it.

And of course, those of you who fellow the developments with the International Criminal Court know that we have sought to enter agreements with other countries to avoid the application of that court's rules against our own citizens when we haven't, in fact, ratified or agreed to that treaty.

But while these defensive means may be necessary, they are not, in my view, a sufficient approach to this increasing challenge to our ability to conduct our domestic affairs.

First of all, the fact is whether we like it not, international law is increasingly entering our domestic domain. The Supreme Court has begun to bring it through cases like Hamdan and Alvarez-MacHain, which allowed a very small opening but still an opening in the door under the Alien Tort Claims Act to international human rights law being a source of direct causes of action here in the United States.

Through various European and other kinds of domestic protection rules, they're trying -- there's an increasing effort to control our use of information in our own country to determined who comes in from outside, and, of course, international law is being used as a rhetorical weapon against us. We are constantly portrayed as being on the losing end, and the negative end of international law developments.

And I also have to say in fairness there are some positive things that a properly constructed and implemented international law can do not only for the whole world but for us, as well. Common standards on aviation and maritime security are a win-win for us and for our allies overseas. There is a positive dimension to international law if we can recapture it from those elements that seem to make it into a kind of activism on steroids.

So my bottom line is this:  The problem is not the idea of international law, but it is an international law that has been captured by a very activist, extremist legal philosophy. But it doesn't have to be that way. And so my challenge to you is to take overseas the same kind of intellectual vigor and intellectual argument that you brought into the United States and into academia in the United States in the '70s, and that was quite successful over a period of time in changing the playing field, leveling it out, so that there was another voice heard for judicial modesty.

I'm confident it's not going to happen in a week or a month or a year, but that if you take some of the ideas you've developed here, and you take them overseas and you take them to academia, and you take them into the legal-philosophical salons in Europe, you will eventually start to persuade because the merit of these ideas I think is strong. And what's wanting is the energy and the initiative and the courage to take them to a place where until now they have not been very seriously heard.

Thank you very much.

Question:  Mr. Secretary, my question concerns no-fly lists. How do you get on a list?  How do you get off a list?  And why not give the American citizen his day in court to contest the proposed action of your department?

Secretary Chertoff:  Well, if you want to get on the list, I think I probably can put you on.

The no-fly list -- the process, without getting into classified material, basically involves a determination that there's intelligence about someone being a threat to aviation. And based on that determination, we judge through an inter-agency process whether someone ought to be put on the no-fly list. And the list is then transmitted to the airlines and winds up then being a basis to deny people -- they're actually legally obliged to deny people the opportunity to fly.

People can -- if they have an issue with it, they can raise an issue with it. But we don't conduct court hearings on this. We don't believe first of all, almost all the information is classified; second, because I'm quite sure that the 19 hijackers, if we could replay history, would have contested being on a no-fly list, and we're not about to let them do that; and third, because we would be inundated with proceedings.

This is the kind of measure you have to undertake if you're going to protect the airlines from being blown up. Now, we do sometimes revisit these things. And if we have a basis to believe, for example, that a mistake has been made, we've taken people off the list. And sometimes for people who have refused -- been refused boarding, they will raise the issue. They'll write in, or they'll have somebody contact us. And we will consider if they've got some reason to believe that they shouldn't be on the list.

I should separate that from mistakes in identity. Those we always do correct. And the problem often arises with mistakes in identity that we actually have been prohibited from gathering some limited additional information that would actually allow us to separate people who have the same name from people that are really in danger. So I want to be clear that when we have mistakes, we correct those and we tell the airlines that they ought to be corrected.

But people who are -- when we actually have identified a person as the right person and we put them on the list, based on our careful consideration of intelligence, it's not a subject for litigation.