But watch what the Obama administration does, not just what it says. I’m not talking about its attacks on Fox News. I’m talking about a little-publicized October 2 resolution in which Clinton’s own State Department joined Islamic nations in adopting language all-too-friendly to censoring speech that some religions and races find offensive.

The ambiguously worded United Nations Human Rights Council resolution could plausibly be read as encouraging or even obliging the U.S. to make it a crime to engage in hate speech, or, perhaps, in mere "negative racial and religious stereotyping." This despite decades of First Amendment case law protecting such speech.

To be sure, the provisions to which I refer were a compromise, stopping short of the flat ban on defamation of religion sought by Islamic nations, and they could also be construed more narrowly and innocuously. It all depends on who does the construing.

Is it "negative stereotyping" to say that the world’s most dangerous terrorists are Islamists, for example? Many would say yes.

I sketch below how the resolution could be construed to require prosecuting some offensive speech and how it could be used in the long run to change the meaning of our Constitution and laws, based on doctrines developed by legal academics including Obama appointee Harold Koh, the State Department’s top lawyer.

Also troublesome on the free-speech front are various remarks by Mark Lloyd, the Federal Communications Commission’s associate general counsel and chief diversity officer. Lloyd asserted in a 2006 book, "The purpose of free speech is warped to protect global corporations and block rules that would promote democratic governance." He co-authored a 2007 report calling for regulatory changes to close "the gap between conservative and progressive talk radio." In 2008, he praised the "incredible … democratic revolution" of Hugo Chavez and implied approval of the thuggish Venezuelan strongman’s pattern of shutting down news media opposed to him.

That’s how I read Lloyd’s videotaped statement, first aired by Glenn Beck of Fox News, in which he said: "The property owners and the folks who then were controlling the media rebelled [against Chavez], worked, frankly, with folks here in the U.S. government, worked to oust him. But he came back with another revolution, and then Chavez began to take very seriously the media in his country."

Then there was the June 5 high school commencement speech in which White House Communications Director Anita Dunn called Mao Zedong — one of history’s greatest mass murderers and an implacable enemy of free speech — one of "my favorite political philosophers." Dunn has, coincidentally, been the point person in President Obama’s attacks on Fox News.

The administration is seeded with left-liberal thinkers who have smiled on efforts to punish speech that is offensive to favored racial and religious groups.

This is not to suggest that Dunn approves of mass murder or that Obama wants to censor critics. But the ideologies of appointees such as Lloyd and Dunn can have consequences. And in his eagerness to please international opinion, Obama has now taken a small but significant step toward making bad law.

Law — especially international law — evolves below the radar, in small moves largely ignored by the mainstream media. Although international resolutions have traditionally not been seen as binding law, the Obama administration is seeded with left-liberal thinkers who have long sought to spin what some call "transnational" law out of such stuff, and who have smiled on efforts to punish speech that is offensive to favored racial, religious, and other groups.

Such attitudes may help explain the administration’s decision to join the U.N. Human Rights Council in the first place. Obama reversed a Bush administration policy of shunning this deeply politicized body, which counts as members several flagrant human-rights abusers and which is preoccupied with attacking Israel.

The council’s October 2 resolution is ostensibly an endorsement of "freedom of opinion and expression," which seems ironic, given the track records of such members as China, Cuba, Egypt, and Saudi Arabia.

But the real problem is a provision, which the U.S. championed jointly with Egypt, exuding hostility to free expression.

That provision "expresses its concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative racial and religious stereotyping continue to rise around the world, and condemns, in this context, any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence, and urges States to take effective measures, consistent with their obligations under international human-rights law, to address and combat such incidents" (emphasis added).

What is this clot of verbiage supposed to mean?

It could be read narrowly as a commitment merely to denounce and eschew hate speech. But it could more logically be read broadly as requiring the United States and other nations to punish "hostile" speech about — and perhaps also "negative stereotyping" of — any race or religion. It’s a safe bet, however, that the Islamic nations that are so concerned about criticisms of their religion will not be prosecuting anyone for the rampant "negative racial and ethnic stereotyping" and hate speech in their own countries directed at Jews and sometimes Christians.

Eugene Volokh of the University of California (Los Angeles) Law School pointed out on his Volokh Conspiracy blog that the reference to "obligations under international human-rights law" could be seen as binding the United States to a provision of the International Covenant on Civil and Political Rights requiring that hate speech "shall be prohibited by law." The U.S. has previously rejected that provision.

Added Volokh: "Advocacy of mere hostility — for instance… to radical strains of Islam [or any other religion] — is clearly constitutionally protected here in the U.S.; but the resolution seems to call for its prohibition. [And] if we are constitutionally barred from adhering to it by our domestic Constitution, then [the administration’s vote was] implicitly criticizing that Constitution, and committing ourselves to do what we can to change it." Such a stance could be seen as obliging the executive branch to urge the Supreme Court to overrule decades of First Amendment decisions.

Obama should not take even a small step down the road toward bartering away free speech for the sake of international consensus.

Far-fetched? Not according to the hopes and expectations of many international law scholars. "An international norm against hate speech would supply a basis for prohibiting it, the First Amendment notwithstanding…. In the long run, it may point to the Constitution’s more complete subordination," Peter Spiro, a professor at Temple University Law School, asserted in a 2003 Stanford Law Review article.

Similarly, if more ambiguously, Koh wrote in another 2003 Stanford Law Review article, "Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet." The Supreme Court, suggested Koh — then a professor at Yale Law School — "can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation" that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. "Criticism of religion is the very measure of the guarantee of free speech," as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.

Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on "racial and religious stereotyping" and the rest.

The pressure to censor harsh criticisms of Islam, as well as other religions and groups, began to intensify after bloody riots by Muslims around the world in 2006 over the publication in Denmark of cartoons ridiculing Muhammad.

People have reportedly been prosecuted in Austria, Finland, and India for asserting that Muhammad’s marriage to a 9-year-old girl made him a "pedophile." Brigitte Bardot was convicted in 2008 of provoking racial hatred for saying in a letter to France’s interior minister that Muslims were ruining France. A 15-year-old boy in Britain was charged under the Racial and Religious Hatred Act last year for holding up a sign outside a Scientology building calling the practice "a dangerous cult." And so on.

We have had no such overt federal government censorship in this country so far. But we have seen plenty of private censorship and self-censorship, especially at our universities, most of which have thinly disguised speech codes.

One example is the spineless decision in August by Yale President Richard Levin and the Yale University Press to remove the Danish cartoons (and all other pictures) of Muhammad from a book about the drawings.

The reaction of the academic world to such episodes has been apathy. The same is true of the response by the academic world, the news media, and civil-liberties groups to the October 2 resolution.

Take The New York Times and the American Civil Liberties Union. Both were once dependable guardians of uninhibited, robust, and wide-open debate, regardless of whose ox was gored. But as best I can tell from their websites, neither has said a word about the Obama administration’s collaboration with would-be censors sitting on the U.N. Human Rights Council.

This article appeared in the Saturday, October 31, 2009 edition of National Journal.

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We have recently witnessed the spectacle of three of the nation’s richest and most famous plaintiffs’ lawyers heading to federal prison for various criminal frauds. More on them later. First, let’s consider an especially egregious case that the Supreme Court allowed on May 12, for lack of a quorum, to move ahead in lower federal courts. These consolidated lawsuits, which are seeking more than $400 billion from companies that did business in South Africa during apartheid, score high on what I call Taylor’s Index of Completely Worthless Lawsuit Indicators:

• The lawsuits will do victims of wrongdoing little or no good.

• They will penalize no human being who has done anything wrong.

• They will deter more conduct that is beneficial than harmful.

• The legal costs and any damages will come at the expense of the general public.

• The lawsuits therefore serve no purpose at all but to enrich lawyers and provide ideological power trips for some judges as well as lawyers.

A weakly reasoned federal Appeals Court decision in the apartheid case has the additional defects of thumbing its nose at the Supreme Court and insulting the current, democratically elected government of South Africa, which is led by victims of apartheid.

American Isuzu Motors v. Ntsebeza is a class action purporting to represent all of the more than 20 million black South Africans who were held down by the brutal apartheid regime between 1948 and 1994. The claimed $400 billion would come from more than 50 of the big American and multinational companies that usually end up in the dock when plaintiffs’ attorneys are looking for deep pockets to pick.

Lawyers led by Michael Hausfeld of Washington, D.C., and Paul Hoffman of Los Angeles have accused these companies of "aiding and abetting" international law violations dating back 60 years simply by selling products and doing other business in South Africa during apartheid.

The sprawling scope of the lawsuits, and the self-indulgence of the justices, account for the embarrassing lack of a six-justice quorum: Four of the nine recused themselves because of stockholdings in or other ties to defendant companies. This outcome was especially scandalous because the justices could easily avoid most such recusals by selling their individual stocks (tax-free, under a 2006 law) and reinvesting in broad stock index funds.

Apartheid was monstrous. But even on the debatable assumption that the companies were wrong to do business under it, this case is no remedy. Rather, it rubs salt in apartheid’s wounds, according to South Africa’s current government. Specifically:

The lawsuits will do victims little or no good. The more than 20 million surviving blacks who lived under apartheid are unlikely to get more than a couple of quarters apiece, if anything. The $400 billion claim is frivolous. Even the most fecklessly PC judges are not going to order a vast reparations program for 20 million South Africans at the expense of (mostly) U.S. consumers. And even if Hausfeld and Hoffman succeed in using burdensome court-approved fishing expeditions and inflammatory publicity to extort nuisance settlements of, say, $20 million, that would come to about 50 cents for each "plaintiff," assuming that legal fees and costs consume the usual 30 to 60 percent.

They will penalize no human wrongdoer. The defendants include none of the leaders or supporters of the apartheid regime, and none of the corporate chieftains who did business in South Africa under apartheid. In any event, whether right or wrong then, these executives are retired or dead now.

They will deter more beneficial than harmful conduct. While timely lawsuits against real wrongdoers can deter future misconduct, that’s not likely here. Not many companies are interested in aiding and abetting human-rights violations. The conduct likely to be deterred is the private-sector trading and investing that our government has long encouraged to engage the many foreign countries whose governments have–like our own–been accused of human-rights violations.

The money comes from us all. The companies’ defense costs and any damage payments would not come from corporate big shots. Rather, in the aggregate such costs are spread to us all in the form of higher prices and insurance premiums; of downward pressure on the stockholdings of the big pension funds and tens of millions individual investors; and of lost jobs, when companies are hit really hard or bankrupted, as more than 60 have been by the asbestos-litigation scam. (See my January 3, 2004, column, p. 8.)

These are among the reasons both the State Department and South Africa’s current, black-run government strongly urged dismissal, with the latter asking the courts not to "intrude upon and disrupt our own efforts to achieve reconciliation and reconstruction" and warning that the case could "discourage much-needed direct foreign investment in South Africa." Then the Supreme Court suggested, in an extraordinarily pointed footnote in another case, that perhaps the apartheid lawsuits should be dismissed. And federal District Judge John Sprizzo did dismiss them.

But in October, Judges Robert Katzmann and Peter Hall of the U.S. Court of Appeals for the 2d Circuit, in New York, brushed aside all these warnings and used an expansive interpretation of the cryptic 1789 Alien Tort Statute to reinstate the apartheid lawsuits. Their strained reasoning–ably shredded by Judge Edward Korman’s dissent and denounced as "judicial imperialism" by South African President Thabo Mbeki on the floor of Parliament–is emblematic of the lengths to which some judges will go to keep worthless litigation alive. Now the case will probably drag on for years, consuming countless millions of dollars in legal costs and irritating both South Africa and our best allies, whose companies are among the defendants.

Perhaps it should come as no surprise that two titans of the plaintiffs’ securities bar–now headed for prison–were systematically paying kickbacks to recruit "name plaintiffs."

The apartheid lawsuit is one of dozens seeking to pervert the Alien Tort Statute to mulct companies for ordinary commercial conduct in countries accused of human-rights violations. Caterpillar, for example, was sued for selling bulldozers that Israel used to destroy suspected Palestinian terrorists’ homes. (The case was dismissed.) "The American bar is actively soliciting alien plaintiffs" to try out novel theories, State Department legal adviser John Bellinger noted in a recent speech. Because so many federal judges have smiled on such suits, Bellinger added, foreign governments increasingly regard the U.S. judiciary "as something of a rogue actor."

Meanwhile, countless cases in other fields also score high on the Index of Completely Worthless Lawsuit Indicators. Examples:

• Lawyers have recruited a coastal Eskimo village in Alaska and others harmed by weather patterns arguably caused by global warming to sue a bunch of big companies for the combined effects of carbon emissions by the entire human race, and for seeking to sow doubt about the threat.

• Officials in Rhode Island and elsewhere are teaming with trial lawyers to extort billions of dollars from the paint industry for sales of lead-based pigment and paint that ended more than 50 years ago. These lawsuits would not compensate a single victim of lead poisoning. Their ostensible purpose is to force the companies to pay to strip lead paint from hundreds of thousands of buildings. In fact, this strategy is not the best way to prevent lead poisoning, and little paint-stripping needs to be–or will be–done. And a recent Rhode Island health department report shows a dramatic decline in unhealthy lead levels in children.

• Most of the shareholder class actions that have taken hundreds of billions of dollars from companies in the past 25 years are a court-supervised "extortion racket," as professor Lester Brickman of Yeshiva University’s Cardozo Law School has explained. They do little or nothing to penalize or deter wrongdoers. Rather, they "transfer wealth from current shareholders of a company to previous owners of the stock. Since many investors at a moment in time are both present and previous owners of various stocks, the net aggregate effect … is to transfer wealth from shareholders’ left pockets to their right pockets less the billions of dollars in fees paid to the class-action lawyers."

Perhaps it should come as no surprise that the two titans of the plaintiffs’ securities bar, William Lerach and Melvyn Weiss, formerly of mega-firm Milberg Weiss, were systematically paying kickbacks to recruit "name plaintiffs," so as to beat other lawyers to the courthouse door when companies’ stocks dropped. Lerach and Weiss are now headed to federal prison, as is Richard (Dickie) Scruggs, the billionaire Mississippi trial-lawyer kingpin who got caught trying to bribe a judge.

And perhaps it should come as no surprise that Lerach told The Wall Street Journal that the lawyers in his field routinely paid kickbacks to clients. He called it an "industry practice." This industry is rotten.

This article appeared in the Saturday, May 17, 2008 edition of National Journal.

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The principle is that while the president should have power during an extraordinary emergency to temporarily disregard outdated laws that may impede his ability to protect American lives, that power should lapse once he has had time to seek appropriate congressional changes in the laws.

I call this the emergency-powers principle. Its logic has been overlooked by many Bush critics as well as supporters in assuming their respective positions: that the eavesdropping program either was illegal from the outset (as critics claim), or has always been legal and will always be immune to congressional regulation (as defenders claim).

The better view is that Bush was right to start the eavesdropping program (assuming that the still-secret details show the need for it) during the post-9/11 emergency — but was wrong to keep its existence secret and to resist congressional regulation.

Although various laws give the president extraordinary powers during emergencies, no general emergency-powers principle is spelled out in the Constitution or in any judicial decision that I can find. But the principle is implicit in the Framers’ division of powers between Congress and the president.

It is also compelled by common sense. In the days and weeks after the 9/11 attacks, the administration had reason to fear that more attacks might be imminent. It also had cause for concern that the Foreign Intelligence Surveillance Act — badly outdated by new communications technologies and by the vastly enhanced terrorist threat — might make it unduly difficult to find the plotters.

The commonsensical response to this situation was pithily (and thus anonymously) articulated to me by a senior Clinton administration lawyer: "If I had been advising the president on September 12, the legal doctrine that I would have invoked is, ‘Mr. President, f**•FISA.’ "

So perhaps we should not fault either the National Security Agency’s immediate initiation of new surveillance that stretched its previously cautious interpretation of FISA or the president’s subsequent order that the agency disregard some of FISA’s clear requirements.

Remaining secret are the details, the precise timing, and Bush’s exact actions. But it appears likely that the administration’s timetable was too fast to allow for advance consideration by Congress. Even the rushed enactment of the USA PATRIOT Act (including several FISA amendments) took 46 days, during which the NSA should have been pulling out all the stops to find terrorists.

But contrary to Bush critics such as Sen. Russell Feingold, D-Wis., and to many Bush defenders, the premise that the president’s emergency powers justified disregarding FISA in the wake of the 9/11 attacks does not require the conclusion that he was free to disregard FISA forever.

Feingold, who claims that the Bush program was illegal from the start, has suggested that otherwise, "FISA is a dead letter, all of the supposed protections for civil liberties contained in the reauthorization of the PATRIOT Act … are a cruel hoax, and any future legislation we might pass regarding surveillance or national security is a waste of time and a charade."

Many Bush defenders use somewhat similar logic. They leap from the premise that Bush was surely right to trump FISA after 9/11 to their usual conclusion that he has virtually unlimited "inherent" wartime power to disregard any and all laws that he considers inconvenient.

(Bush defenders also argue that Congress’s post-9/11 vote authorizing a military response implicitly amended FISA to give him sweeping surveillance powers.)

So it is that Feingold and other critics, fearing that the president will become too strong for years or decades to come, would make him too weak to deal effectively with emergencies. And Bush’s defenders, fearing that the president will be too weak to deal with emergencies, would give him virtually unlimited powers for as long as he says that the nation is at war.

The emergency-powers principle should quiet critics’ fears by making it clear that allowing the president extraordinary powers in an emergency does not mean that he retains those powers after Congress has had time to consider a response.

(For a more ambitious proposal to create an "emergency Constitution" without resorting to the prescribed amendment process, see Before the Next Attack, a recent book by professor Bruce Ackerman of Yale Law School.)

This logic marries the Framers’ plan to make Congress the pre-eminent policy maker — in time of war as well as peace — with their understanding that only the president would be able to react to unanticipated crises with the necessary dispatch.

The Constitution assigned to Congress both the legislative power and the power to initiate wars. (See my August 31, 2002, column, "An Invasion of Iraq Requires the Approval of Congress.") It assigned to the president both the executive power and the command of the armed forces. This included the power to "repel sudden attacks" when there is not time for Congress to deliberate and vote on a course of action, as James Madison said in his notes taken at the 1787 Constitutional Convention.

The emergency power to repel sudden attacks necessarily includes the power to conduct whatever surveillance may help anticipate such attacks before Congress has had time to react. But this does not mean that presidential power trumps congressional power indefinitely in all matters of foreign intelligence surveillance.

Rather, it means that when emergency conditions convince the president that congressional restrictions on his powers are dangerously outdated, he should be able to temporarily suspend compliance. But he should also have a corresponding duty to notify Congress of his actions; to seek new legislation ratifying them; and to comply with any restrictions that Congress attaches to the new legislation (assuming a congressional override of any veto).

This is what President Lincoln did after unilaterally suspending the writ of habeas corpus in April 1861 to round up Confederate sympathizers in Baltimore who had been helping a Southern army that threatened Washington. He later persuaded Congress, the body vested with power to suspend the writ, to ratify what he had done.

President Bush, on the other hand, hid his decision to disregard FISA for more than four years — until it leaked — from all but a handful of congressional leaders, who were sworn to secrecy. This despite FISA’s explicit provision allowing wartime "electronic surveillance without a court order" for only 15 days "following a declaration of war by the Congress." Bush has also resisted calls for new legislation subjecting his program to congressional and judicial oversight. And his lawyers have suggested that any restrictions on his surveillance powers would be unconstitutional.

By these actions, Bush has violated any reasonable understanding of the Constitution’s system of checks and balances.

The appropriate congressional response would be to amend FISA to adapt the 28-year-old statute to technological change and the heightened terrorist threat. The amended version should be fully binding on the president unless and until some new emergency again exposes previously unanticipated problems.

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb," as Justice Robert Jackson wrote in a famous 1952 concurrence.

A corollary, in my view, is that when the president temporarily suspends compliance with an arguably outdated expression of Congress’s will, he must at the same time ask Congress to update it and must comply with any updated version.

In this case, it is unclear whether an updated version is in the offing. Despite considerable bipartisan agreement that Bush has overreached, the issue has had little resonance with voters. So Congress may end up acquiescing.

That would be a shame. On a range of issues — also including indefinite detention without due process, torture, and the claimed power to launch pre-emptive invasions without congressional approval — Bush has reached for presidential powers that are both broader than necessary to fight terrorism and dangerous to our constitutional system.

As Justice Jackson warned, "I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems…. We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent that power from slipping through its fingers."

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Now unfolding on Bush’s watch is another genocide — so the administration has called it — in Darfur, the rebellious western province of Sudan. Government-backed Arab militias known as the Janjaweed have killed at least 70,000 black villagers — with estimated deaths ranging above 300,000 — have raped thousands more, and have driven some 2 million into refugee camps, many in neighboring Chad. Sudan’s government has also sent its air force to bomb rebels and civilians in Darfur.

What has President Bush done to stop the slaughter in Sudan? Until recently, more than any other world leader, even according to human-rights groups that habitually assail U.S. policies. The administration was instrumental in bringing about the December 31 "permanent cease-fire" in the other Sudanese conflict between the Khartoum regime and rebels in the south, which had claimed 2 million lives since 1983. It has also pressed — in vain — for international sanctions to force Sudan to stop the killing in Darfur.

But the body count continues to rise, at an estimated 10,000 a month. And now human-rights advocates fault the administration — as do some more-conservative voices — for vowing to block a proposal to authorize the International Criminal Court, at The Hague, to investigate war crimes in Darfur. The administration is pushing instead for the creation of an ad hoc, regional court, an idea dismissed by many as doomed to delay and ineffectiveness.

No court would be as effective as direct military intervention, an arms embargo, or tough economic sanctions. But the world has balked at such costly steps. The only peacekeepers in Texas-sized Darfur so far are some 1,000 lightly armed African Union troops, much too small a force to have a serious impact. So by default, much of the world sees the ICC as the best hope for at least putting Sudanese leaders in fear of prosecution.

A special U.N. investigative commission recommended in late January that the Security Council authorize the ICC to investigate "crimes against humanity" in Darfur. (The ICC would have no jurisdiction without a Security Council vote, because Sudan has not ratified the 1998 treaty creating the court.) The commission stopped short of finding "genocide," an especially uncomfortable word for European leaders who — for all their human-rights rhetoric — have not lifted a finger to stop the atrocities. France and China seem more interested in protecting their Sudan oil investments, and Russia in protecting its Sudan arms sales.

The Bush administration has shown more seriousness. But now, much of the publicity about Darfur has shifted from Janjaweed massacres, Sudanese complicity, and European cynicism to the Bush administration’s increasingly obsessive crusade to strangle the ICC.

Some background: The Clinton administration supported the creation of a permanent international tribunal to punish flagrant human-rights violators whose own governments support or condone their activities. But U.S. negotiators sought to require a Security Council vote before any ICC investigation could begin, to rule out politically motivated prosecutions of U.S. officials or former officials. Other ICC founders rejected any such limitation on its jurisdiction as unnecessary and unwarranted. Clinton signed the ICC treaty anyway to signal U.S. sympathy for its goals. But he declined to submit the treaty to the Senate for ratification unless and until it could be amended to meet U.S. objections.

Bush, on the other hand, has displayed ever-greater hostility to the ICC. He "unsigned" the treaty in May 2002, a few months before the ICC opened for business. His administration has pressed allies and aid recipients for bilateral commitments never to surrender U.S. nationals to the ICC, under any circumstances, and has withheld tens of millions of dollars in aid from more than 20 countries that have refused to sign such commitments.

Pierre-Richard Prosper, Bush’s ambassador at large for war crimes, took this hostility even further by announcing on January 27 that the U.S. would block any ICC investigation of Darfur because "we don’t want to be party to legitimizing the ICC."

Such talk carries what began as a prudent wariness of the ICC past the point of ideological fixation. As Jack Goldsmith, who was a high-level, Bush-appointed Justice Department official until last summer and now teaches international law at Harvard Law School, wrote in a January 24 Washington Post op-ed: "The United States has never opposed ICC prosecutions across the board. Rather, it has maintained that ICC prosecutions of non-treaty parties would be politically accountable and thus legitimate if they received the imprimatur of the Security Council. The Darfur case allows the United States to argue that Security Council referrals are the only valid route to ICC prosecutions and that countries that are not parties to the ICC (such as the United States) remain immune from ICC control in the absence of such a referral."

Such an approach, Goldsmith added, "would signal U.S. support not only for the United Nations but for international human rights as well, at a time when Washington is perceived by some as opposing both." It might also add leverage to U.S. efforts to shame France and others into approving economic sanctions.

Goldsmith seems right. But that’s not quite the end of the argument. Apart from the risk that the ICC might someday pursue Americans, Prosper told National Journal’s Corine Hegland (see NJ, 1/22/05, p. 215), the ICC is a bad instrument for redressing the wounds of war-torn societies. Rather, argued Prosper, local governments have a responsibility to step in that "should not be taken away from them."

Such is the rationale underlying the administration’s proposal that the U.N. and the African Union create a regional court to investigate the Darfur atrocities. It would be located in Arusha, Tanzania, at the headquarters of the ad hoc U.N. tribunal that is still prosecuting suspects in the 1994 Rwanda genocide.

The regional-court approach is also championed by Ruth Wedgwood, who teaches international law at Johns Hopkins University. "The African Union is interested in strengthening its human-rights institutions, and it’s a particularly poor time to tell them that Africa isn’t capable of handling prosecutions for genocide, even with international assistance," she stresses. A regional tribunal, Wedgwood adds, may have more credibility among Africans and a better chance of getting custody of Sudanese defendants. The ICC, on the other hand, "could be limited by the U.N.’s official view that the events in Darfur are not genocide," and the court "already has a full agenda with investigations in the Congo, Central African Republic, and Uganda."

Indeed, some other experts say, for the European-dominated ICC to be hauling people from yet another African country to be jailed and tried at The Hague might smack of colonialism.

All true. But the same Prosper who now cites the Rwanda tribunal as a model assailed it in 2002 for lack of professionalism, inefficiency, unwarranted expense, and interminable proceedings. He demanded that it close down by 2008 regardless of whether suspects in the Rwanda genocide remain at large.

Don’t bet on a new tribunal run mainly by the African Union — most of whose member governments are hardly known for competence or integrity — to do much better.

Only the ICC is ready, willing, and able to start investigating war crimes in Darfur now. And only the ICC — which was originally conceived by Americans as well as many others as a permanent institution to handle precisely this sort of case — has the international clout and the staying power to put much fear into the Sudanese officials who are responsible for these atrocities, and who could call them off.

These officials might not fear an ad hoc, African-run tribunal likely to close up shop within a few years. But according to human-rights activists who have toured the region, Sudanese officials are very much afraid of the ICC, which could dog them for the rest of their lives.

After-the-fact prosecutions might seem a pale substitute for direct action — or even a largely symbolic exercise designed to expiate the world’s guilt. But "ending the impunity," says Jemera Rone, Sudan researcher for Human Rights Watch, is a key to ending the killing.

Doing something beats doing nothing. And nothing is about what the United States and the world are doing now to stop the genocide taking place before our eyes. On Bush’s watch.

The post Opening Argument – Genocide in Darfur: Crime Without Punishment? appeared first on Stuart Taylor, Jr..

It’s unclear whether any president could have prevented this, short of war. But it’s hard to imagine anyone doing much worse than Bush has done. Looking to the future, would John Kerry do better? The answer may turn on a blood-curdling choice: Would it be better to pin all our hopes on peaceful negotiations that seem less than likely to stop North Korea from building a vast nuclear arsenal? Or should we threaten — and, if necessary, launch — pre-emptive bombing attacks that could lead to another all-out Korean war and even the nuking of South Korea and Japan?

Bush set his course on North Korea in March 2001, when he slapped down Secretary of State Colin Powell for having sensibly said that the administration would continue President Clinton’s carrot-and-stick negotiating strategy with North Korea. Instead, seeing the Clinton approach as capitulation to nuclear blackmail, Bush put talks with North Korea into the deep freeze. In the process, he humiliated visiting South Korean President Kim Jae Dung, whose own "sunshine" policy was closely linked to Clinton’s. Bush later included Kim Jong Il’s odious tyranny in his "axis of evil.""We don’t negotiate with evil; we defeat it," Dick Cheney reportedly said in one key meeting on North Korea. That hard-line approach would have made sense if Bush had a strategy for defeating or dictating terms to North Korea. But Bush had no such strategy. No carrot, no stick, no nothing, except for a half-hearted, multilateral negotiating process that went nowhere for more than three years. Meanwhile, North Korea has mocked the Bush administration’s March 2003 threat that it "would not tolerate" a North Korean nuclear arsenal by announcing that it is building one.

Bush finally changed course this June. Yielding to intense international pressure, he offered to provide a "provisional" nonaggression guarantee and economic aid in exchange for North Korea’s dismantling its nuclear programs. But this may be too little, too late. By becoming militarily bogged down and diplomatically isolated in Iraq, while North Korea has been arming itself to the teeth, Bush has put America in a far weaker bargaining position than before."At various points during the escalating North Korean crisis, the Bush administration’s position has seemed confused, reactive, or vacillating, [a] defiant but nonetheless largely passive posture of refusing to give in to North Korean blackmail," according to an article in the August 30 Weekly Standard co-authored by Nicholas Eberstadt of the American Enterprise Institute. This from an expert who shares the Bush hard-liners’ conviction that North Korea is extremely unlikely to disarm voluntarily.So John Kerry had good reason to blast Bush on September 12 for letting "a nuclear nightmare" develop in North Korea.

White House press secretary Scott McClellan’s standard retort — that the Clinton administration had been "duped" and its policy had "failed" — was less than convincing.

Compared with the Bush approach, the Clinton policy was a roaring success. It was forged during the crisis of 1993 and 1994. North Korea, which was already believed to have reprocessed enough
spent fuel from its Yongbyon nuclear complex to make bomb-grade
plutonium for one or two nuclear bombs, ejected International
Atomic Energy Agency inspectors and prepared to make more bombs.
While implicitly threatening a pre-emptive military attack,
Clinton saw negotiation with the evil and duplicitous North
Korean regime as the least bad option. His administration worked
out a deal, the "Agreed Framework," in October 1994. North Korea
agreed to freeze its nuclear program and open its nuclear
facilities to inspectors. In return, the U.S., South Korea, and
Japan would supply North Korea with fuel oil and two relatively
safe light-water nuclear reactors to generate electricity.This agreement had a troubled history, with North Korea
engaging in provocations, including missile tests and exports;
with suspicions that it might be cheating (to nobody’s great
surprise) on its nuclear commitments; and with work on the
light-water reactors falling far behind schedule. By the end of
the Clinton administration, evidence was accumulating that North
Korea might be secretly enriching uranium from which bombs could
be built.

All this, plus the North Korean regime’s
atrocities against its own people, helps explain Bush’s loathing
for Kim Jong Il and his distaste for the Clinton policy. The
uncompromising Bush approach seemed superficially vindicated in
late 2002, when — confronted with evidence by a State
Department envoy — Kim’s regime defiantly admitted that it had
been enriching uranium. This violated both the Agreed Framework
and the Nuclear Nonproliferation Treaty. The U.S. then suspended
talks and fuel-oil deliveries. And North Korea withdrew from the
nonproliferation treaty and (it has said) resumed reprocessing
fuel rods into plutonium and making nuclear weapons.But Clinton’s Agreed Framework did freeze North Korea’s
reprocessing of fuel rods into plutonium and nuclear bombs —
the most urgent danger — for eight years. Otherwise, "North
Korea could today have 50 to 100 nuclear weapons," as William J.
Perry, who was Defense secretary from 1994 to 1997, wrote in a
July 2003 op-ed. That would have been more than enough to tempt
North Korea to export nukes to terrorists or others. It could
also have provoked a dangerous regional arms race, in which
Seoul, Tokyo, and even Taiwan might have gone nuclear, and the
collapse of the nonproliferation regime. Now these dangers have
again become pressing.

Bush has done some things
right. He has engaged China, Russia, Japan, and South Korea in
multilateral talks to increase the pressure on North Korea and
share the burdens. And as noted above, since June, Bush has
adopted a variant of the Clinton carrot-and-stick diplomacy that
he had previously disdained.

Kerry has suggested that
he would be more effective in negotiations than Bush. That’s
certainly worth a try. But "unless the United States can find a
way to cause Kim Jong Il to fear a unilateral military attack,
no negotiated settlement is likely to prove possible," writes
Graham Allison in his new book, Nuclear Terrorism: The Ultimate
Preventable Catastrophe. That’s very bad news, if true.Allison, a Harvard professor, high-level Clinton Defense
Department alumnus, and Kerry supporter, says the president
should not only offer an unambiguous nonaggression pact and
major economic assistance, but also threaten that unless Kim
Jong Il agrees to disarm, "the United States [will destroy]
North Korea’s known nuclear facilities in a precision-bombing
campaign" — and, if Kim retaliates, will destroy his regime as
well.

Many other experts, Democratic and Republican
alike, say that such a pre-emptive attack on North Korea "is not
a practical option and would be very, very dangerous," in the
words of Joseph Cirincione, of the Carnegie Endowment for
International Peace. An all-out war in Korea would take hundreds
of thousands or even millions of South Korean lives and many
thousands of American lives.

Allison’s candidate, Kerry, seems unlikely to implement Allison’s suggested strategy.
Indeed, for those who want to scare North Korea straight, Bush
may be a better bet. The president — notwithstanding his
passivity so far on North Korea — seems by nature and
reputation far more likely than Kerry to launch a pre-emptive
attack and thus to be credible in threatening one.The most likely scenario is that given the strategically weak
position into which Bush has maneuvered us, neither Bush nor
Kerry would go to war to disarm North Korea — and North Korea
knows it. For the same reason, the price of bribing it to
promise nuclear disarmament has no doubt gone up.

The situation in Iran, the other axis-of-evil regime that is racing
to go nuclear, is much the same. "Because it lost time and
squandered resources," as James Fallows wrote in the October
Atlantic Monthly, "the United States now has no good options for
dealing with either country. It has fewer deployable soldiers
and weapons; it has less international leverage through the
‘soft power’ of its alliances and treaties; it even has less
intelligence, because so many resources are directed toward
Iraq."

Such is the legacy of the president who says
he is building "a safer world."

The post Opening Argument – Bush Has Botched North Korea. Would Kerry Do Better? appeared first on Stuart Taylor, Jr..

Critics in Europe and elsewhere also assail the U.S. for refusing to submit to the jurisdiction of the new International Criminal Court, ostensibly created to bring genocidal monsters like Pol Pot and notorious war criminals to justice. But the Bush administration’s wariness of the ICC seems vindicated by the ICC chief prosecutor’s publicly expressing an itch to go after multinational executives who do business with regimes that, in his judgment, have used the proceeds to facilitate atrocities. Meanwhile, some ICC enthusiasts dream of prosecuting U.S. commanders for civilian casualties in war zones.

The conservative backlash against such stuff is understandable. But the backlash has gone too far, with many conservatives scoffing at the idea that the U.S. should ever heed international law or honor inconvenient rulings by international tribunals. At a time when much of the world sees America as an international scofflaw, and when we need the world’s help to protect ourselves from terrorism at least as much as the world needs our help, this attitude is self-defeating.

It’s past time for the Bush administration to show respect for the legitimate demands of international law. One big test will be its so-far-noncommittal response to a debatable but quite defensible March 31 decision by the 58-year-old World Court — formally known as the International Court of Justice, and not to be confused with the ICC — in a lawsuit by Mexico against the U.S. on behalf of more than 50 Mexicans on death row in various state prisons.

The Vienna Convention on Consular Relations of 1963 requires that foreign nationals be notified, at the time of their arrests, that they are entitled to call and meet with their home country’s consular officials. Consulates can be helpful in finding lawyers, notifying relatives, gathering exculpatory evidence from home, and otherwise. But state and local officials are often unaware of this treaty obligation and fail to give the required notice to many defendants. Mexico urged the World Court to rule that this lack of notice in itself denies fair trials to all such defendants, and that their convictions and sentences must therefore all be overturned.

The court rejected this argument. Instead, it ordered the U.S. to provide for judicial "review and reconsideration of the convictions and sentences" on a case-by-case basis, to determine whether the consular violations "caused actual prejudice" to the fair-trial rights of any of these Mexicans (or other foreign nationals). In most or all such cases, any such hearings would probably end in rulings that the trials were fair and the executions could proceed. And even if some death sentences were overturned, none of the Mexicans would go free as long as their guilt is clear.

This is not to deny that the World Court’s decision presents vexing constitutional and political issues for the administration. President Bush may lack constitutional power simply to order governors or state courts to delay executions and hold new hearings. A 1996 act of Congress bars lower federal courts from holding new habeas corpus hearings in these cases. The Supreme Court has been unreceptive to such appeals. Rick Perry, Bush’s successor as governor of Texas, has already, in effect, told the World Court to go jump in a lake. And that’s what Bush’s conservative base would want him to tell the court.

But this is a case in which keeping the nation’s promises is more important than pleasing the Republican base or expediting executions. Bush and his aides can and should forcefully urge state officials to waive any objections to the new hearings called for by the World Court. If that fails, the Justice Department can and should tell state courts and, ultimately, the U.S. Supreme Court that this country has explicitly consented to comply both with the consular convention and with the World Court’s interpretation of it; that such treaties are "the supreme law of the land," binding on "the judges in every state" under Article VI of the Constitution; that the World Court’s decision is legitimate; and that international law — or, at a minimum, comity — therefore calls for deference to it.

If, on the other hand, the Bush administration dismisses or disregards the decision, the denunciations of U.S. lawlessness will reach a new crescendo, especially in Mexico, where the case is a cause celebre. And the denouncers will have a point.

Unlike the ICC, which claims the unprecedented, politically unaccountable power to prosecute and imprison anyone in the world who is accused of committing or assisting certain grave crimes, the World Court hears only lawsuits between nations that have consented to its jurisdiction. The U.S. has done so since 1946. The Reagan administration partially withdrew that consent in 1985, because the World Court was entertaining what the U.S. deemed an illegitimate lawsuit by Nicaragua over the U.S. mining of its harbors and arming of the Contra rebels. But the U.S. has never withdrawn its explicit consent to comply with the World Court’s interpretation of the consular convention.

And for good reason. The consular convention is the same treaty on which U.S. nationals who find themselves in foreign jails depend for access to U.S. consular officials — perhaps the only hope of seeing daylight anytime soon in some precincts. This is also one of the treaties that the U.S. invoked in winning the May 1980 World Court decision ordering Iran to release its American hostages. (Iran ignored the ruling, which — like all of its rulings — the World Court had no practical power to enforce.)

This is the third case in which the World Court has faulted the U.S. for violating the consular rights of arrested foreign nationals who ended up on death row. In all such cases, U.S. courts, including the Supreme Court in 1998, have held that the defendants could not raise alleged consular violations in appealing their murder convictions and death sentences, because their original lawyers had neglected to raise the issue at their trials — a doctrine known as "procedural default."

In the 1998 decision and another in 1999, the Supreme Court summarily rejected last-minute appeals to delay the executions of two death row inmates despite interim World Court rulings that they should be kept alive until that court had time to resolve lawsuits by the inmates’ home countries — Paraguay and Germany, respectively — against the United States. The World Court proceeded with Germany’s lawsuit and held in 2001 that, contrary to the 1998 Supreme Court decision, use of the procedural default doctrine to bar appeals in such cases itself violates the consular convention, by denying an adequate remedy for the original lack of notification.

Then came Mexico’s lawsuit, which was fully litigated at The Hague and produced the more definitive, so-called Avena decision on March 31, with the lone American judge joining the 14-to-1 majority. The World Court reaffirmed its 2001 decision and rejected the State Department’s argument that the right to seek gubernatorial clemency is an adequate remedy for consular violations. But the court did not give Mexico everything it wanted. Not only did it refuse to find the convictions and sentences invalid; it also rejected Mexico’s argument that any confessions or other evidence obtained from prisoners before notification of their consular rights must be excluded from future trials.

American critics nonetheless assail the World Court decision as an overly aggressive, even outrageous, effort by America-bashing death-penalty opponents to interject foreign judges into routine state court criminal proceedings. In my view, however, it is not unreasonable to ask that — before putting foreign nationals to death over their own governments’ objections — the U.S. and its courts provide an opportunity to prove that they would not have been convicted or condemned but for U.S. violations of their consular rights.

Even though the guilt of most or all of these prisoners is not in doubt, such hearings would be worth the time and effort. In some cases, Mexico and other governments might be able to show that, if given timely notice, their consular officials could have found enough mitigating evidence to persuade trial juries not to vote for death. More important, the U.S. government might be able to show that it takes its treaty obligations seriously. 

The post Opening Argument – It’s Time for Bush to Take Our Treaty Obligations Seriously appeared first on Stuart Taylor, Jr..

The most publicized example has been Justice Anthony M. Kennedy’s majority opinion last June in Lawrence v. Texas, striking down all state laws that made gay sex a crime. In expanding the "liberty" protected by the 14th Amendment’s due process clause, Kennedy cited (among other things) a British Parliament vote in 1967 repealing laws against homosexual acts and a European Court of Human Rights decision in 1981 that such laws violated the European Convention on Human Rights.

Scalia grumped in dissent that Kennedy had ignored "the many countries that have retained criminal prohibitions on sodomy." He also invoked Justice Clarence Thomas’s assertion in a previous case that the Court "should not impose foreign moods, fads, or fashions on Americans."

But Kennedy had a plausible reason for looking abroad: The late Chief Justice Warren E. Burger’s concurrence in Bowers v. Hardwick, the 1986 decision that Lawrence overruled, had claimed that homosexual conduct had been outlawed "throughout the history of Western civilization." It was fair game for Kennedy to point out some recent history pointing in the opposite direction.

More troubling, in my view, was a 2002 decision (Atkins v. Virginia) that said imposing the death sentence on a mentally retarded murderer violated the Eighth Amendment’s ban on "cruel and unusual punishments," in part because such sentences are "overwhelmingly disapproved" by "the world community." This assertion — which Justice John Paul Stevens based on a single brief by the European Union in another case — was a transparent effort to compensate for the fact that the "national consensus" that Stevens purported to discern against executing retarded criminals simply did not exist: The laws of 20 of the 38 capital-punishment states still allowed such executions.

Also troubling was Ginsburg’s concurrence in another June 2003 decision, Grutter v. Bollinger, which upheld the use of racial preferences in university admissions. Joined by Justice Stephen Breyer, Ginsburg began by noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allows the theoretically temporary "maintenance of unequal or separate rights for different racial groups" — a regime that Ginsburg suggested should continue for decades. Then she cited analogous provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, which — Ginsburg noted in a speech a few weeks later — "sadly, the United States has not ratified."

If an international agreement that the United States has refused to ratify can be invoked as a guide to the meaning of the 136-year-old 14th Amendment, what will be next? Constitutional interpretation based on the sayings of Chairman Mao? Or Barbra Streisand?

In addition to importing foreign law to resolve purely domestic cases, Ginsburg suggested in the same speech that she wants to apply the Bill of Rights extraterritorially and enforce the "rights of any human being," anywhere in the world, in cases involving the U.S. government. She did not say whether she would carry this to the point of ordering U.S. forces overseas to give Miranda warnings to the likes of Khalid Shaikh Mohammed, the suspected mastermind of the 9/11 attacks, who was captured in Pakistan last March.

One of the charms of foreign law is that there is so much to choose from. In a 1999 dissent suggesting that a death sentence should be struck down because of a delay of more than 20 years in executing the condemned man (Knight v. Florida), Breyer cited as "useful, even though not binding," the views of the supreme courts of Zimbabwe and India, as well as the European Court of Human Rights. To be sure, the Supreme Court of Canada and the U.N. Human Rights Committee had reached the opposite conclusion. But Breyer knew which conclusion he liked.

In future cases, perhaps, justices who want to narrow the First Amendment’s guarantee of religious freedom may cite France’s recent legislation banning all students from wearing religious symbols in public schools, the main purpose of which was to strip Muslim girls of their head scarves. And the Netherlands will come in handy for any justices who want to declare a constitutional right to same-sex marriage, assisted suicide, recreational marijuana, or prostitution.

For believers in the originalist approach to constitutional interpretation, the only question in such cases should be "the understanding of the ratifiers of the Bill of Rights in 1791 [and of other constitutional provisions], not the current views of foreign nations," in the words of Robert H. Bork in his 2003 book, Coercing Virtue: The Worldwide Rule of Judges. To Bork, the foreign-law fad is simply another gambit by a Court that is determined to act as a continuing constitutional convention.

Conservatives are not alone in worrying about the dangers to our democracy of importing laws and constitutional principles crafted by intellectual elites abroad. "Since World War II, much of ‘old’ Europe has been pursuing an anti-national, anti-democratic world constitutionalism that, for all its idealism and achievements, is irreconcilable with America’s commitment to democratic self-government," writes professor Jed Rubenfeld, of Yale Law School, in the Wilson Quarterly. Rubenfeld adds, "When the international community throws down the gauntlet over the death penalty in America while merely clearing its throat about the slaughter in Yugoslavia, Americans can hardly be blamed if they see a sign that an anti-American agenda can be expected to find expression in international law."

But while it’s fun to mock the excesses of judicial one-worldism, and while it’s important to guard against the anti-democratic drift of such thinking, the trend is not all bad.

For starters, the notion of constitutional interpretation as a purely historical inquiry into the Framers’ intentions has been pretty thoroughly buried, for a long time, by the Supreme Court and the vast majority of legal scholars. Almost everybody, including Bork and Scalia, supports judicial "interpretations" that are really revisions of the Constitution in at least some cases. For better or worse, extratextual and ahistorical methods of discerning (or inventing) constitutional principles and values are the norm, not the exception.

This should not be carried to the point of imposing upon Americans the principles and values of other nations, as the Court did in Atkins. But within reasonable bounds, Supreme Court citations of foreign law can serve at least three worthwhile purposes: shedding empirical light on what might be the real-world impact of a decision following a foreign court’s approach to a common problem; enhancing the persuasiveness of the Court’s opinions to those who see international consensus as a badge of legitimacy; and displaying what Thomas Jefferson called "a decent respect to the opinions of mankind," a phrase regularly invoked by judicial internationalists.

Most of the justices regularly travel abroad and hobnob at conferences with judges, lawyers, and professors from around the world. And they regularly hear complaints like the one by a prominent London barrister, who asserted at a 2000 American Bar Association convention in London that "your system is quite certain it has nothing to learn from us," because the U.S. Supreme Court so rarely takes account of European court decisions.

Bork dismisses such complaints in his book as "insolent foreign browbeating." But there is more to them than that. We have long held out our own Constitution and our independent judiciary as models for other nations. Many of these nations have followed our example so enthusiastically that their judges regularly cite our Supreme Court’s decisions as guides to interpretation of their own constitutions. It is understandable that they should expect American justices and judges to return the compliment, at least by giving respectful consideration to their constitutional decisions even when our own Constitution requires different answers.

At a time of unprecedented fear and resentment of the United States around the globe, we desperately need all the help we can get in the war against terrorism. That alone is a good reason for the Court to take pains to show respect not only for the rule of law but also for the work of foreign and international courts. It should, in the words of Justice Ginsburg, display "a spirit of humility" vis a vis world opinion. But it should display more humility vis a vis the American electorate too. 

The post Opening Argument – Should Foreign Law Be Used to Interpret Our Constitution? appeared first on Stuart Taylor, Jr..

At least 90 percent of those lost jobs went to China, Kendall says, as did three Fortune 500 computer companies that had been his biggest customers. The main reason for these American job losses is not China’s cheap labor or any other efficiency-based advantage, Kendall stresses. It is that China is cheating on international trade norms by manipulating the value of its currency, the yuan (or renminbi), which it has pegged to the dollar at the artificially undervalued rate of about 8.3 yuan/dollar, rather than letting it float, or pegging it closer to its true value in international currency markets.

The layoffs at Kendall’s two family-owned companies, Mack Molding and Mack Technologies, are representative of the 2.6 million manufacturing jobs that American workers have lost since March 2000, as the trade deficit with China has soared above $100 billion a year. Manufacturing and labor groups attribute these hammer blows to our economy in substantial part to China’s pegging of the yuan at what economists estimate to be 15 percent to 40 percent below its market value.

As my colleague Bruce Stokes detailed last week (see NJ, 10/4/03, p. 3056), the undervalued yuan puts American, and other, manufacturers at a disadvantage by effectively subsidizing cheap Chinese exports and creating a tariff-like barrier to imports. This has spurred bipartisan pressure in Congress — and so-far feeble efforts by the Bush administration — to persuade China to revalue.

Some economists and multinationals that profit from Chinese-made products have countered that getting Beijing to revalue the yuan would make little difference, that China will never yield to pressure anyway, and that sudden revaluation could cause economic turmoil both here and in China. Stokes makes a strong case that these are "myths," and that the United States should push China to revalue.

But Stokes also echoes some of the pessimism that pervades discussion of the future of American manufacturing, when he writes that it is "probably true" that even if China revalues, "it won’t improve the overall U.S. trade imbalance," because "production will merely shift to other low-wage countries." That may well be right. But count Don Kendall, who has created hundreds of jobs over the past 29 years, as a dissenter from the pessimistic view that our relatively high wages doom our manufacturing sector to a slow death — if not a fast one.

"I think there’s absolutely a future," he says. "The advantage that we have in this country is that we invent the stuff that the rest of the world uses. The stuff that’s easy to make will be made abroad, but we can always make the stuff that’s most difficult to make. I am in favor of free trade. I think it helps manufacturing in this country. But if our trading partners are able to break the rules, they can really hurt us." Kendall says his Chinese competitors pay their workers 20 cents per hour, about 1 percent of the $21 an hour in combined wages and benefits that he pays. But "the labor differential has always been there, and that’s not why we’re losing this business," he says.

"It costs more to ship a server from China to the U.S. by air — which they have to do for reasons of time — than the labor savings, because assembly labor is only about 2 percent of the cost of the finished product. And we can be quicker because we’re closer to the market. But still, their price is about 20 to 30 percent under our price. The reason is that their currency is out of balance." If the yuan were revalued by, say, 30 percent, the Mack companies could start making computer servers and other discontinued products again, eventually bringing back most of those 1,000 laid-off workers, Kendall says. But if the current situation continues, the workers’ skills will atrophy and those jobs will be gone forever.

China’s currency policy violates the spirit, and arguably the letter, of World Trade Organization, International Monetary Fund, and domestic law provisions designed to prevent countries from manipulating currency values in order to gain competitive advantage. But the legal remedies are cumbersome, and the Bush administration has hesitated to invoke them, partly because many U.S. companies have interests in cheap Chinese imports, and partly because we desperately need China’s help with the North Korean nuclear threat.

Sens. Charles Schumer, D-N.Y., Lindsey Graham, R-S.C., and others have proposed hitting all Chinese imports with a 27.5 percent tariff, if necessary, to combat what Schumer calls "unfair play by China" that is causing "the free-trade consensus in this country to fall apart." This bill is a legally problematic sledgehammer. But it may take a sledgehammer to get anything done.

Some economists maintain that low-cost, subsidized imports from abroad always confer large benefits upon American consumers that outweigh the harm to American workers whose jobs move overseas. If China wants to subsidize our consumption, in this view, we should lie back and enjoy it. I don’t buy it. Sure, subsidized imports are good for consumers in the short run. But in the long run, if we become ever-more dependent upon imports for an ever-higher percentage of the goods we consume, with an ever-weaker manufacturing base, with ever more of our people relegated to low-paying service jobs that produce little or no export income to pay our debts, and with ever-more-gargantuan trade deficits, the world will eventually lose confidence in America as a safe place to invest. Capital will flee to more-productive nations. And both our standard of living and the technological leadership on which our national security depends will inexorably decline.

Don Kendall’s optimism that we can avoid such a decline is rooted in his own companies’ success in "growing and adding people every year" since 1974, when he took over at the age of 26 upon the sudden death of his father. Mack Molding was a small plastics company then, with about 200 employees in two small Vermont towns, and it was near bankruptcy because of the OPEC oil embargo and recession.

Mack survived. It expanded into making computer housings, then entire computers and other high-tech equipment. It acquired plants in the Carolinas, Massachusetts, and New York. It bought out the Sun Microsystems manufacturing operation in 1993. Kendall created Mack Technologies as a corporate umbrella for high-tech product lines, including cellphones and airline instrument panels, as well as computer products. Mack Molding moved into making disposable medical products and plastic office furniture. While foreign imports — especially from post-NAFTA Mexico — invaded some markets, the Mack companies kept growing by making more-sophisticated products requiring superior technology and quality control.

But the past three years have been a different story. No amount of innovation has been able to create jobs as fast as the undervalued yuan has wiped them out. "We’ve never had to lay people off before," Kendall says. "It’s been very difficult. I know a lot of these people personally. I live in the same community with a lot of them. They’re getting laid off for no fault of their own."

Meanwhile, some of Kendall’s competitors have given up on their U.S. plants and followed the multinational giants to China. Kendall bought one company about six years ago that has a plant in Scotland that now employs 15 people (down from 70), and another last November, that has plants in Mexico and in Melbourne, Fla., that now employ 200 (down from 700) and 60 (down from 300) people, respectively.

Next stop: China? Probably not, Kendall says. "It would be quite easy to do, actually," he explains. "But I view China as not an ally of ours. I don’t really want to be doing business in a country that’s not our friend. And here, I get to know a lot of the people who work in these factories. That doesn’t seem possible with a factory that’s 10,000 miles away." Besides, he adds, "if we lose our ability to produce, we’ll eventually lose our ability to consume, because we’ll all be working minimum-wage jobs flipping burgers."

The post Opening Argument – Why the Jobs Went to China — And How to Get Them Back appeared first on Stuart Taylor, Jr..

Many conservative hawks inside and outside the administration stress that the U.N. has been useless much of the time, as in Kosovo, and worse than useless some of the time, as in Srebrenica, Bosnia, where some 7,000 Bosnian Muslims were murdered in July 1995 while U.N. "peacekeepers" idled nearby. France and Russia are seeking to keep the U.N. embargo of Iraq alive as leverage "to get some Iraqi affirmation of their odious debts and oil contracts from the Saddam era," editorializes The Wall Street Journal. And with Libya’s repressive, blood-soaked government chairing its Commission on Human Rights and Saddam’s Iraq recently in line to head its May-June Disarmament Conference, the U.N. is often downright grotesque.

From such reasonable premises some U.N. critics draw a dangerous conclusion: that, in the words of columnist Charles Krauthammer, the United States should "just ignore" the U.N., should keep it out of Iraq, and should let it "wither away." The administration has not said that, but has taken an unwisely uncompromising approach, at least in its efforts to freeze Hans Blix and his team of U.N. inspectors out of the so-far-strikingly-fruitless hunt for banned weapons in Iraq. The exclusion of these independent inspectors is widely seen around the globe, especially in the Arab world, as designed to facilitate the planting of chemical or biological agents or other phony evidence. While administration officials dismiss such suspicions as preposterous, much of the world does not.

The Bush approach strikes Anne-Marie Slaughter, dean of Princeton’s Woodrow Wilson School, as "needlessly antagonistic and horrifically short-sighted in terms of our own objectives." I agree. Adds Slaughter in an interview, "We have created a situation in which it is so politically popular to oppose us that we are generating new adversaries for ourselves. If we were willing to work through the U.N., we could accomplish all the same objectives with virtually all the same people but with a completely different profile-in terms of [showing that] it’s not about oil, it’s not about U.S. imperialism, it’s not about Israel, it’s a global effort to find weapons of mass destruction and provide for the humanitarian needs of the Iraqi people."

For all of the U.N.’s grotesqueries, the hard reality is that its imprimatur is seen by many millions of people all over the world as essential to legitimate American actions that those people would otherwise oppose, and have opposed. U.N. approval was critical to winning support both for the post-9/11 war in Afghanistan, where Bush was glad to let the U.N. take most of the responsibility for nation-building, and for the first Gulf War, in 1991. We did not need the U.N. in order to win the war in Iraq. But we need all the help we can get to win the peace.

This does not mean that the United States should yield its hard-earned right to "significant dominating control" (in Colin Powell’s words) of Iraq’s political and economic reconstruction until such time as the U.S. is good and ready to do so-which, some officials have suggested, may be only a matter of months away. And it is not to suggest that we let Hans Blix take over the hunt for banned weapons.

But unless Bush seeks reasonable compromises with Blix and the U.N., he will aggravate distrust of America abroad to the point of harming our national security. For example, the already-widespread suspicions that the real motive for invading was commercial advantage will solidify unless we help put Iraq’s oil wealth under some kind of international trusteeship until Iraq has a working government and allow foreign companies to compete for contracts.

The U.N.-Blix imprimatur is especially critical to showing the world that Bush and his top people were honest when they vowed that their primary reason for invading was that they knew Saddam was amassing an arsenal of chemical and biological agents. I believed them then and still do (although I’m getting nervous). But if the world ends up doubting Bush’s truthfulness on a matter of such towering importance, it will be an utter disaster for America’s international standing.

We do not need Blix to find the evidence. But we do need independent verification, which Blix is best qualified to provide. Even if American investigators find tons of nerve gas, anthrax, or other smoking guns hidden outside Baghdad, much of mankind will suspect that they were planted unless Blix vouches for our claims. And Blix will be a lot more likely to do that if he and his inspectors are invited to move freely around Iraq, to do their own independent searches and find their own witnesses, and to accompany American investigators when they search new sites.

But the administration sees no role for Blix or his team "for the time being or for the foreseeable future," John D. Negroponte, the U.S. ambassador to the U.N., said on April 23. This at a time when the U.S. seeks resumed inspections by the U.N.’s International Atomic Energy Agency of North Korea’s nuclear facilities.

As a reporter asked White House spokesman Ari Fleischer, "What is the downside of having a hundred or so [U.N.] people in Iraq looking for weapons of mass destruction? Isn’t that more eyes on the problem?"

Fleischer did not have much of an answer. A candid response might go something like this: "We want complete control because we always want complete control, and because with it we can secure all the banned weapons and prove our claims that Saddam had them. Blix might slow us down or get in the way of our efforts to pressure Iraqi scientists to disclose what they know. His inspectors might-intentionally or otherwise-tip off hostile intelligence agencies or Iraqis about where we plan to look. They might endanger confidential informants by leaking their identities. Besides, Blix was unhelpful before the war and now accuses us of having presented the U.N. with shaky intelligence. If we let him in, he might cast doubt on the veracity of our informants or investigators."

But the notion that cooperating with Blix would or could substantially impede our own search for banned weapons seems fanciful. What is he going to do-run around Iraq scooping up and hiding tons of artillery shells loaded with nerve agents, anthrax, and uranium-enriching gas centrifuges?

Blix could not possibly do that even if he tried. After all, there are supposed to be lots of banned weapons scattered around Iraq. There are many more American investigators than there would be U.N. inspectors. Blix could not restrict the Americans’ movements. A standing invitation for Blix’s people to accompany American investigators whenever they search for banned weapons could be accompanied by a warning that they will be left behind if they move too slowly. And the U.S. could work out reasonable restrictions on U.N. inspectors’ access to any U.S. informants who want anonymity.

What if we never find much because the smoking guns were destroyed or moved to Syria before the invasion, as U.S. investigators have been told by an Iraqi informant, according to Judith Miller of The New York Times? That scenario strains credulity at best. How could Saddam have gotten rid of vast quantities of banned weapons in such a hurry while preparing to be invaded? What would have motivated him to go to such lengths to prevent American occupiers from finding smoking guns after his death or removal? And who would believe us if the Iraqi witnesses on whom we rely were kept away from Blix and completely dependent on and controlled by the U.S. and Britain?

The goal here is to find evidence that will be believed. And the policy of excluding Blix seems almost perversely calculated to inspire disbelief. Indeed, it seems so self-defeating as to suggest either a disturbing lack of confidence that Saddam had very many banned weapons, a petty vindictiveness, or a mindless determination to compromise on nothing until France and Russia agree to end the embargo. I prefer the latter theory. In any event, such a gratuitously hostile posture toward the U.N. will, if continued, make it more and more difficult to keep the support even of our closest ally, Tony Blair’s Britain. And if we lose Tony Blair, we will be isolated indeed.

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President Clinton in 1998 bombed Iraq despite the objections of two permanent Security Council members, Russia and France. He also sent bombers to stop Serbia’s "ethnic cleansing" of Kosovar Albanians in 1999, over Russia’s objection and thus without Security Council approval. These and dozens of other theoretically illegal (mostly unjustified) military attacks by other nations around the world over the past five decades reflect "geopolitical realities too strong for a legalist institution to withstand," as Michael J. Glennon writes in the May-June issue of Foreign Affairs.

Any vestige of the Security Council’s claim to be the guarantor of international peace and security has now been wiped out by its paralysis in the face of the radically new strategic threats that have become so apparent in recent years. These are the mortal danger to America and the rest of the civilized world posed by efforts of hostile despots to obtain nuclear and biological weapons (or the capacity to make them) and the related risk that such weapons could fall into the hands of jihadist terrorists bent on destroying Western civilization. These realities have made the U.N. Charter’s foundational rule against any nation’s military intervention in any other sovereign state’s internal affairs-affairs once thought to include the state’s right to make or buy whatever weapons it chose-into a dangerous anachronism.

Now President Bush has shattered with finality the illusion that the U.N. Security Council had any real power to enforce the limits on military intervention that were spelled out in the U.N. Charter. Meanwhile, the rupturing of NATO’s unity over Iraq eliminates that tattered alliance as a fallback source of international legitimacy.

Does this mean that Bush recognizes no legal restraints at all on America’s use of its unmatched military power? That he claims a right to go to war against any nation that displeases him or stands as an obstacle to his designs? That international law is dead, and has now been buried by the same United States that has long purported to be its champion?

That is the fear voiced by much of the world. It may also be the hope of some neoconservative hawks, who seem to like the international law of the jungle just fine, as long as us good guys carry the big stick.

Bush should prove them wrong. He should seize his moment of military triumph as an opportunity, not only to threaten rogue states that sponsor terrorism and that seek nuclear and biological weapons, but also to reassure allies and potential allies. This he can do by specifying in some detail a vision of international law that eschews wars of aggression while retaining the freedom to confront today’s grave new strategic perils.

This does not mean letting the U.N. keep us from helping Iraqis choose a decent government or from deciding when to use military force. But it does mean pledging and demonstrating scrupulous adherence to the letter and spirit of generally accepted international rules that retain their validity, such as the Geneva Conventions and the prohibition of aggressive wars. It also means being generous in victory, both to nations that denounced our invasion (excepting the ones that aided our enemy) and to the innocent Iraqi civilians who have been hurt, and whose family members have been killed, as unintended consequences of our military operations. And it means helping the U.N. and other international institutions do the things that they do tolerably well, such as providing humanitarian relief and verifying American discoveries of weapons of mass destruction-discoveries that will otherwise be widely dismissed as phony.

But those who condemn Bush for using pre-emptive force without Security Council approval are unrealistic and (in many cases) hypocritical. "We are at a moment in world affairs when the essential ideas that govern statecraft must change," Philip Bobbitt writes in his stunningly original book, The Shield of Achilles: War, Peace, and the Course of History. "For five centuries, it has taken the resources of a state to destroy another state…. This is no longer true."

As President Bush said in his "National Security Strategy of the United States," in September 2002: "Now, shadowy networks of individuals can bring chaos and great suffering to our shores for less than it costs to purchase a single tank," and seek to "turn the power of modern technologies against us" by attacking us with doomsday weapons covertly obtained from unknown sources.

It is largely to prevent such a catastrophe that President Bush has asserted the right not only to target states that sponsor terrorism but also to "act pre-emptively" to disarm or depose hostile regimes that seek to threaten us with nuclear or biological weapons. The latter policy cannot be squared with the U.N. Charter’s aspirational language that authorizes use of military force in self-defense only "when an armed attack occurs." But this does not make the invasion of Iraq illegal. Aside from Saddam Hussein’s unique history of violating Security Council resolutions, the "armed attack" rule’s literal meaning has been so widely disregarded and has become so inadequate to our self-defense needs, that the rule retains little if any force as international law.

The U.N. also cannot act to prevent genocide and crimes against humanity within states, as it has demonstrated in Rwanda, Kosovo, and elsewhere. And the unanimous support of NATO’s members for the bombing of Serbia and Kosovo (a Serbian province) implicitly recognized that the U.N. Charter’s doctrine of absolute territorial sovereignty-which contained no exception, even for genocide-had been qualified by evolving principles of international humanitarian law.

Today’s world is simply too dangerous, and in some places too barbaric, for America to give any international body a veto over its use of military force. We need not be embarrassed to say so, because our own interest in preventing rogue nations and terrorists from plunging the world into nuclear anarchy is entirely consistent with the interests of other civilized nations.

But those other nations do not trust America to use its unmatched power responsibly and wisely. And we will need their trust. In Bobbitt’s words, "There’s not enough force in the world to rule over 200 states that hate us, nor can we defeat terrorism without widespread and genuine cooperation. We should take this opportunity to set clearly articulated standards for intervention." Such standards would make the Bush Doctrine less alarming to states that we have no intention of attacking. China, for example, "must know that an intervention to rescue Hutu civilians in Burundi or to trap Al Qaeda leaders in Afghanistan is not preparation for intervention on behalf of Tibetans," says Bobbitt.

Bush could begin by pledging to abide by the following rules (mine, not Bobbitt’s), which seem implicit in his September 2002 "National Security Strategy."

The United States will use military force only:

1. When dictated by urgent, specifically defined self-defense needs, including the need to disable anti-American terrorists or to pre-empt acquisition of nuclear or biological weapons by despotic rogue regimes;

2. As part of a coalition of states to enforce Security Council resolutions or to halt ongoing, pervasive violations of international humanitarian law; or

3. As a carefully limited and proportionate response to threats to other vital interests unrelated to profit, commercial advantage, or acquisition of territory or resources.

Bush could also demonstrate adherence to the spirit of these rules by pledging, more explicitly than he has, to use Iraq’s oil and other assets solely for the benefit of the Iraqi people. And, of course, by finding those Iraqi weapons of mass destruction.

In time, perhaps, a great-power consensus may emerge, recognizing such self-imposed rules as universal principles well-adapted to current strategic realities. The objective, as Bobbitt says, should be "saving, rather than sacrificing, international law."

Correction: In my April 12 column, I erred in saying that data in a Century Foundation study suggest that white and Asian college applicants rejected because of racial preferences may be less affluent on average than the black and Hispanic students thereby admitted. The study’s authors have informed me that their data do not support this assertion. It was an incorrect and unwarranted inference on my part from their statement that basing admissions solely on grades and test scores would increase socio-economic diversity. I regret the error.

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