Sacrificing His Core Supporters in a Race Against Defeat
At the time "The New Sovereigntists" appeared in Foreign Affairs in late 2000, scholarly defenses of unilateralist constitutional doctrines were making a splash in the legal academy and with Republican think-tank agonists waiting for their turn in the White House. Soon after, the Bush administration whisked sovereigntist scholars and fellow travelers into key positions at the departments of State, Defense, and Justice and gave them wide latitude to put their anti-internationalist agenda to work.
The results have been unfortunate. The administration has thumbed its nose at international law and it is now paying the price. Its nakedly unilateralist rhetoric drove its decisions to "unsign" the founding treaty of the International Criminal Court, terminate the anti-ballistic missile treaty, and continue to stiff-arm the Kyoto protocol. These positions, along with less publicized ones on the international regulation of small arms and biological weapons, were already roiling the international community, when the attacks of September 11, 2001, dramatically upped the ante.
The Iraq chapter, undertaken on only the flimsiest of international law justifications, has also borne sovereigntist markings from its conception. But it is the controversies surrounding the detention of Iraqi, Taliban, and al Qaeda adversaries that have put the doctrine's implications in harshest relief. A series of internal administration legal memoranda asserted, in effect, that international law standards relating to torture and other humanitarian norms did not apply to the United States. Although the memoranda (several of which were drafted by leading sovereigntist legal scholar John Yoo, who was on leave at the Justice Department from the University of California) purport to argue the law on its own terms, they are almost transparently driven by the sovereigntist premise that international law is more fiction than reality.
That premise is increasingly unsustainable. Boxed in by intensifying international condemnation on one side and admonishing U.S. Supreme Court rulings on the other, the Bush administration is now softening its tough talk regarding the detainees at Guantánamo. Although a handful of detainees may face prosecution before military commissions, more are likely to be quietly released in coming months. On the home front, meanwhile, use of the "enemy combatant" designation to end-run constitutional protections is unlikely to be extended beyond three individuals who will now get their day in court.
Far from proving the triumph of sovereigntism, the war on terrorism is demonstrating that, along with the rest of the international community, the United States will have to bend to international norms -- sooner or later.