Global Policy Forum

By Chris Strohm

Homeland Security Secretary Michael Chertoff on Friday decried what he described as an "activist" and "left-wing" interpretation of laws in foreign countries, saying it affects the U.S. government's ability to protect the nation.

In a far-reaching speech to the Federalist Society, a legal community of conservatives and libertarians, Chertoff said judicial activism is "flourishing" in international circles and foreign courts, and increasingly affects the U.S. government's ability to conduct domestic security affairs. There is "broad legal activism" in other countries, he said, that goes beyond the type of judicial activism that occurred in the United States in the late 1960s and early 1970s. He charged that "vaguely defined" legal positions could trump the activities of a sovereign nation to protect itself.

Chertoff, a former U.S. Court of Appeals judge, said the Homeland Security Department has already hit legal roadblocks in international dealings. For example, he said the department had difficulty convincing the European Union to provide information on foreigners flying into the United States, largely because privacy advocates in the European parliament had reservations. In the end, the U.S. government succeeded in getting access to so-called passenger name records, which are used to screen airline passengers. He said the debate focused his attention "on how much of my ability to do my job ... depends upon constraints that others want to put upon us" based on their legal interpretations.

Chertoff said international pressure came to bear in the U.S. Supreme Court's ruling in a case involving the detainment of Salim Ahmed Hamdan, an accused terrorist and former driver for Osama bin Laden. The court ruled that military commissions set up by the Bush administration to try detainees at Guantanamo Bay violate U.S. and international law.

Chertoff also observed that international organizations, such as the United Nation's Human Rights Committee, consider legal interpretations from countries such as Cuba and Zimbabwe. He warned that international judicial activism could affect the U.S. government's use of the USA PATRIOT Act or "force" the United States to afford legal rights to illegal aliens. "How we deal with this issue of international law [affects] how we defend ourselves and how we conduct our domestic affairs," he said.

Judicial activism in the United States has largely been replaced by judicial modesty, Chertoff said. But the philosophy of judicial modesty "is pretty much absent" when people develop and discuss international law abroad, especially at academic institutions, he said.

Chertoff said it is not enough for conservatives in the United States to be on the defensive when it comes to international legal proceedings. Instead, he called on members of the Federalist Society to go on the offensive in their dealings with foreign governments, academic institutions or organizations in an effort to persuade them to change their legal philosophies.