In a powerful indictment of the current state of American public law, Harold Koh’s The National Security Constitution in the 21st Century serves as both a wake-up call and a roadmap for reform. Koh articulates a stark reality: international law, once a cornerstone of U.S. policy, has become a lightning rod for political controversy, leaving the nation’s legal framework vulnerable to manipulation by an ever-empowered executive branch.
Koh’s comprehensive analysis highlights the urgent need for Congress to reassert its constitutional role in war-making decisions, for judges to reintegrate international law into their interpretations of statutes, and for the executive branch to harmonize national security legal advice with international legal norms. His proposals shine a light on the disarray in the American legal system, where ignorance and fear surrounding international law have fostered an environment of hostility towards its principles.
The fallout from this hostility is profound. A reckless president could withdraw from critical treaties with little political consequence, effectively undermining U.S. influence on the global stage. Koh underscores that this erosion of international law not only jeopardizes national security but also dilutes the United States’ capacity to engage meaningfully with allies and enforce accountability among adversaries.
The implications of this ongoing “war on international law” extend far beyond political posturing. As Koh argues, the neglect of international law translates into a significant loss of strategic vision, diminishing America’s ability to lead on issues ranging from human rights to climate change. This abdication of leadership allows hostile powers to fill the void, threatening the very values that the United States has long championed.
To combat this troubling trend, a multifaceted approach is necessary. Legal education must prioritize international law, equipping future lawyers with the tools to navigate its complexities and apply it effectively in both domestic and global contexts. Furthermore, the executive branch must elevate international law expertise, particularly within the Office of the Legal Adviser, to ensure that U.S. foreign policy reflects a commitment to upholding international norms.
Koh’s The National Security Constitution is not merely a critique; it is a clarion call for reform. As America faces unprecedented challenges in the 21st century, re-engaging with international law is essential for safeguarding national interests and restoring the country’s standing in a rapidly evolving world. Only by embracing international law can the U.S. reaffirm its role as a leader in the quest for justice and stability on the global stage.
