Editorial: Activist judges not limited to U.S.

Americans not only have to be on guard against judicial activism here at home, but also an aggressive version overseas. Our domestic courts routinely bypass the legislative process and unelected judges take it upon themselves to decide such controversial issues as gay marriage and eminent domain, but European judges are busy redefining international law. That could be an even bigger problem, as it threatens to undermine the United States’ ability to act as a sovereign nation.

Speaking recently before the Federalist Society, Homeland Security Secretary Michael Chertoff warned that “judicial modesty” — a sense that there are limits to what a court can do — is largely absent inEurope, where “customary international law,” largely defined by the writings of international law experts (in other words, foreign academics) has already clashed with one nation’s right to defend itself.

In 2004, Chertoff noted, the International Court of Justice “waded into a thicket” when it ruled that the wall Israel built on the West Bank specifically to keep out suicide bombers was a violation of international law because the Israelis could not link ongoing terrorist attacks to any specific state.

And according to prevailing legal notions, “it doesn’t matter when the U.S. refuses to ratify a treaty — we’re still bound by customary international law,” Chertoff added, which also mandates that “a critical element of federalism — specific acts of Congress — are just an impediment to be brushed aside.” In other words, activist international courts are attempting to exercise jurisdiction over sovereign nations, whether the people or their leaders like it or not.

So far, the U.S. has resisted such pressures. But they come at a particularly bad time in the global war on terror when Western democracies need to be cooperating with each other.

Following the Sept. 11 attacks, Congress mandated the collection of personal data from airlines as a way to prevent terrorists from entering the country. As Chertoff correctly pointed out, deciding who comes in — and who doesn’t — “is a core power of any sovereign nation.”

However, in May the International Court of Justice annulled a 2004 agreement that provides U.S. authorities electronic access to 34 data fields from all trans-Atlantic flights because the information is collected in Europe — even though the passengers are headed for the U.S. An interim agreement continuing the program was signed last month, but Chertoff says Europeans still believe they’re entitled to determine how the U.S. uses the information, including names of passengers, reservation dates, billing information and travel itineraries. If links are found to terrorist groups, the individual is immediately placed on a “no fly” list.

“If you don’t want to give up the information, then you don’t need to take the trip to the U.S.,” DHS Assistant Secretary Stewart Baker said last month, succinctly laying out the American position. Though the European Community temporarily caved in to Washington’s demands, Chertoff worries that the “activism on steroids” exhibited by international courts and U.N. committees will continue to chip away at U.S. sovereignty.

And the fact that the Supreme Court has begun to cite “international law” in some of its rulings instead of the Constitution the justices are sworn to uphold is cause for further alarm.

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