Apparently Ed Whelan thinks that mocking his critics is much better than responding to them. I don’t think I’ve had someone use my name to mock my character since, oh, I don’t know, sixth grade. I guess to Ed Whelan, of all the Charlie Browns, I’m the Charlie Browniest.
In fairness, Whelan later rewrote the post and replaced it with this (hence the link to Opinio Juris for the original text), and is now criticizing me for not having read two more of his posts. You can find them here and here.
In fact, I had read the first but not the second, and inserted the wrong link. My bad, Ed. But what do you expect? I’m such a blockhead, after all. Sorry it caused you to get all sixth grade on my ass. So permit me to replicate the paragraph from the post I had not read, in which you summarize your argument:
So let’s look at the overall transnationalist game on customary international law: The left-wing academics and NGO activists who populate international conferences will work together to generate and popularize supposed new norms of CIL on matters of interest to them—for example, hate speech, health care, and various other economic, social, and cultural “rights.” Activist judges appointed by Presidents Obama and Clinton (and, alas, some appointed by Republican presidents) will hasten to recognize these new norms as rules of federal common law that (whether or not Congress would have had the constitutional authority to enact them) override inconsistent state laws and that the judges will be ready to enforce against non-compliant presidents. The only available recourse for pesky citizens who still believe in the system of representative government that our Constitution creates will be congressional action to override the new CIL norms, action that would require a veto-proof majority in both houses of Congress while President Obama or any Europeanist successors of his are in office. Such action will be made all the more difficult as the cultural elites clamor for Americans to show proper deference to international law and the federal judiciary.
There are a lot of straw men here — for example, Whelan’s suggestion that transnationalists want to ban hate speech. I don’t know whether he’s correct — I haven’t read every law review paper on the subject, and certainly European human rights law bans hate speech. But that’s not the same thing as Koh or other American transnationalists advocating it. In my personal experience with Koh, he has been a passionate defender of the first amendment.
Another funny thing: those “pesky citizens who still believe in the system of representative government” that Whelan claims to be defending? A majority voted for Barack Obama and for a Democratic-majority Congress. Is Whelan suggesting that they were ignorant of Obama’s views? But wouldn’t such a conviction make him a member of the cultural elite he claims is anti-democratic and anti-representative?
Uh oh. It looks like we’re moving into brain lock territory again.
Finally, for all of Whelan’s ominous rhetoric, not once in his two CIL posts does he cite a single example of a case where, to use his scenario, elites generate and popularize new CIL norms, activist judges hasten to recognize these norms, and Congress subsequently passes (or fails to pass) legislation that overrides the new norm. Not one example. And come on, Ed, it’s not like those Clinton-appointed (and Republican-appointed, as you yourself note) judges have been in hibernation.
I have to wonder. Is this really about Koh? Or is it about Whelan’s own public service? After all, Whelan was in the Office of Legal Counsel during the very period that the Justice Department’s Office of Professional Responsibility has now said OLC attorneys failed to cite legal precedent and existing case law:
A Department of Justice investigation into the legal work John Yoo and two other former DOJ officials performed for the Bush administration was harshly critical of the former agency attorneys for failing to cite legal precedent and existing case law in legal opinions they prepared for the of Bush administration on a wide-range of controversial policy issues, including torture and domestic surveillance, according to several legal sources who have been briefed on the contents of the still classified report.
Moreover, the report prepared by H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility (OPR), that carefully traced the genesis of one part of an August 2002 memorandum prepared by Yoo and signed by his boss Jay Bybee that provided the Bush administration with the legal justification to authorize interrogators to subject suspected terrorists to outlawed techniques, such as waterboarding, was drafted after the brutal method was used against one prisoner at least a month earlier, these sources said.
To be explicitly clear, Whelan was not one of those whose performance was criticized. But it is worth noting that one of the reasons his then-colleagues’ actions are now under investigation is the allegation that they ignored “legal precedent and existing case law.” If I’m not mistaken, that is a variation of the exact same thing that Whelan suggests Koh wants to do by “imposing” international law.
I have not been a regular reader of Whelan’s blog. Perhaps I missed the posts where he agreed with the OPR report, but a quick review of the NRO archives didn’t turn up anything.
Then again, I’m a blockhead not a lawyer. What do I know?
Image: First Peanuts comic strip, October 2, 1950, via Wikipedia.