this is about an hour and ten minutes. >> good evening and welcome to today's meeting of the commonwealth club of california, the place where you are in the know. i am sure of the commonwealth board of governors, and your chair for today's program. please nominate -- please now

make sure that all sulfone, the d.a.'s demand other noisemaking devices are turned off. i did not turn mine of, so i will do that now. we will get underway in just a minute, but first elected to you about some upcoming programs. next wednesday, march 20th, jennifer grant all gulf war michigan to the former michigan governor and posed for of course currency will discuss the political landscape. professor and director of yale university's comparative commission laboratory who is also known as the monkey whisper will discuss with the behavior of monkeys reveals about human behavior when it comes to decision making. this will be a 6:00 p.m. program, also here at the club in san francisco. for more informations on all of our of the programs please visit the commonwealth club that

award. my pleasure to extend a special welcome for any common will of members here this evening to be to we have any members? if we do, please raise your hand. okay. if you're not yet a member to raise a great time to join. before we begin the program i am pleased to let you know that our moderator for tonight's audience question. we will be abraham sofer, george p. shultz distinguished scholar and a framed -- senior fellow at the hoover institution and the nordic @booktv the tortilla international law. also teaches transnational law at stanford law school. previously served as legal adviser to the state department under president reagan and s u.s. district judge in new york v. now on to the program. there are question cards. please write down any questions you have for a professor john

yoo. those, of course, will be collected during the program also want to remind you that teaming globalization is on sale, and he will be pleased to sign then immediately following the program. the commonwealth club is a nonpartisan organization, and we estimate our speakers be allowed to make their remarks without interruption. we encourage you to write and submit questions. and will now pause for one moment and then begin the program for our radio television and. stock fund good evening and look into tonight's meeting of the commonwealth club california. the place where you're in an el reedy confine this on the internet at commonwealth club of toward. i'm skipper roads, pastor of the commonwealth clubs board of directors and your chair for today's program.

i am not pleased to introduce her today speaker. a law professor of the university of california at berkeley and co-author of the new book "taming globalization", the u.s. constitution, and the new world order. during the administration of president george w. bush our speaker served as a deputy assistant attorney general in the office of legal counsel at the u.s. department of justice where he worked on issues involving foreign affairs, national security, and the separation of powers. during this time he wrote the administration's first decisions on prisoners' detention, habeas corpus, military commissions, and the geneva convention. he received much attention for

writing controversial memos on the treatment of prisoners. he also previously served as general counsel of the u.s. senate judiciary committee from 1995-1996. he originally joined the both of faculty at uc-berkeley in 1993 and. >> for justice clarence thomas of the u.s. supreme court. our speaker has received a research from uc-berkeley and the rockefeller foundation. a business dollar at the american enterprise institute. this in addition to his latest book, "taming globalization", he is the author of the powers of price and peace, the constitution and foreign affairs after 911. whir by other means and insider's account of the war on chair and crisis and commend him , the history of the

executive's power from george washington to jurist of the bush . el losel and his be a in american history. please give a generous commonwealth club welcome to professor john you. [applause] >> i would like to thank the commonwealth club for asking me to return to speak about "taming globalization." i was last year two years ago to speak about prices and demand. him i had a wonderful time then in a glad to be back again. i am also very honored that the commonwealth club invited her -- by, and just a brand so fair to moderate question,

. i cannot imagine a more qualified and icky commentator. i don't know whether he will agree with anything are some of it or much of it, but i really look forward to his questions. a great honor to have someone that is, is a negative experience. also judge and legal adviser to the state department's. every job i've ever had in my career he did me several levels better. so i look forward to his comments and questions. i would be remiss if i didn't mention my co-author who is not here, a professor at was cool and the origins of the book are that gillian and i went to a conference together. just by chance we get papers that said almost exactly the same thing just by chance which began the genesis for this book. let me briefly describe a case and explain how that point --

that capsule is a lot of the seas in "taming globalization." a kayseven mexican national who cross the border and committed murder . capital murder. sentenced to death by the state court in texas domestic cortexes. he was not, however, given his warnings under the vienna conventions which required that when an alien is arrested in the united states he be given warnings that he can seek access disconsolate committed assistance from translators and so on . texas refused to reconsider its decision even though it had not provided these warnings as required by treaty. the state of the country of mexico went to the international court of justice to seek relief same the united states said it violated istria obligations. the international court of justice about against the united states. the united states had, in fact,

violated obligations and issued an order to the united states to halt the execution and the other aliens on death row in the united states who also were in the same situation. president bush issued an order to the governor of texas. adjusting to the address but of a letter. president bush issued an order to governor rick perry asking him -- effectively ordering him to stop the execution so that the united states to come into compliance with the vienna convention and the international court of justice decision. texas refused to obey it and actually was sued in the supreme court and ultimately the u.s. supreme court refused to stop the execution. mr. medina was executed shortly thereafter. in that decision the supreme court said that even though the united states has signed the vienna convention their required these kinds of warnings,

congress still had yet to do something. congress had to act to put it into effect. until congress did that the courts were not going to get into the business of enforcing the treaty, even in a death penalty case when someone was on death row. and one case, very complicated, but that one case summarizes a lot of issues in this book. the first is that globalization, although we use the phrase a lot , has caused a lot of changes in our political and legal system. when we say globalization we mean a few things. one is that easy and rapid and cheap movement of goods, capitol, and people across national borders. for example, in the united states millions of millions across our borders every year coming in and out of the country billions of dollars of goods and services also cross our borders.

in the last -- the economic report of the president a few years ago 30 percent of american gross national product is either related to imports are a -- exports. of course billions of dollars move with the press a button between accounts here and abroad. globalization refers to these 18 cases and the rise of the internet and the creation of new kinds of networks that make it extremely easy and cheap for people to communicate and for things abroad to affect us here at home and away they did not use to 50 years ago or even 25 years ago. if you look today at the american stock market, then move up and down in reaction to what is happening in greece. whether greece will be able to pay back its bonds, a direct and immediate impact on the dow jones. that is something that probably would not have happened 34 years ago.

the speed and quickness and speed is of communications makes that possible. however, the first to admit the globalization is not an undiluted good. globalization expecting sap pr -- possible. transnational criminal networks pollution, terrorism. impressed paula of these problems use the same channels of international commerce and communication to move around the world just as this, capitol, and people do. that has sparked by think, in our view to my response which is to try to create regulatory regimes that control these new types of globalization. we call in the book global governance. people refer to it as many different things, but the basic idea is it is outside the power of a single nation state to

effectively regulate any of these things anymore. it used to be the power of one country to affect most of the goods, services, and capital and to control problems like pollution and crime that occur within its borders. today because of the ease of transportation, communication, because of globalization is outside the power of most nation states to effectively regulate these new types of problems. so what you have is a rise of a new kind of governance, global governance. it has two features. one is that international agreements now try to regulate worldwide to effectively regulate something international law has to have a scope that it did not use a half. for example, to regulate chemical weapons worldwide the chemical weapons convention regulates the production, storage command existence of every kind of chemical in the

world no matter who possesses it , even chemicals held by research laboratories, industry, private persons fall under the ambit of the chemical weapons convention. so one thing you see is broad scope their reaches well into a nation stay in a way that international law did not before the second thing is the rise of new kinds of international institutions that are neutral and independent from the control of any one country. in fact, there will be able to do their job unless they have those characteristics because in order effectively to regulate enforce these new kinds of international law institutions have to be seen as outside the control of any single country. so you have the rise of things like not just the united nations and the security council and the international court of justice which i just mentioned, but things like the chemical weapons convention has a secretary or

the world trade organization has new forms of courts and new forms of regulatory bodies that sits outside the control of any one country but also have because of that independence a kind of power that international institutions to have before. it used to be i think fair to say that into nassau institutions were more directly under the control of a few nations are some nations. now they are seen as being independent the venations. so just to give you an example, the united states and other countries in the world were ever to reach an agreement about global warming, you would have both of these characteristics to be effective, have to be able to reach into energy production and use in the country in ways the federal government today is our regular here at home, even maybe to the scent of regulating lough domestic or on energy usage and at the same time would have to

create international institutions that would have to decide how much each country was allowed to produce in terms of energy, how much pollution it was allowed to make and also to measure whether people in violation and to issue sanctions, no one would trust that institution if it was directly under the control of the united states. it would lose its legitimacy in independent functions and the regime would not function unless you have an answer @booktv dependent institutions separate. so i don't feel and i don't think we feel like these are extremely controversial descriptions of what's going on. still at the early stages. it has been going on in excel rating. our view is that as globalization ties the united states and our economy and society tighter you will see more and more of these kinds of agreements and institutions. the problem of our view is not that these are done at the international level.

the question for us and for the book, "taming globalization," is how the united states political and legal system responded. can the united states cooperate with these international institutions, new kinds of regimes and how does it do it? that is the fundamental tension and the issue. as you can guess, my description , some of the new kinds of regulations and institutions are intentioned with the way the united states traditionally exercises public power. particularly the prices of congress, especially over control of domestic law and plays like taxation, but also the practice of the executive branch and of the judiciary. to give one example, when the treaty regulates an issue this standard doctrine amongst many scholars and many people who work in this area, treaties are

not limited by the same restrictions they have for federalism that apply to congressional statutes. there is a famous case called missouri versus holland were back in the 1920's it was thought that congress could not regulate -- could not regulate and protect species of birds, endangered species reasons. the court and the lower court struck down statues that tried to protect birds. the united states entered a treaty with canada called the migratory bird treaty and it was implemented by congress and a law called the migratory bird treaty act where congress did exactly the same thing that the court said it could not do under its domestic powers. in missouri versus holland the supreme court said the united states could do that in the federal government powers could be broader to regulate things domestically that it could not do the normal congressional

statute. another example would be in the separation of powers. if the courts play the same role they play with international affairs that would domestic affairs the powers of the courts will grow. called into areas and that is traditionally have not been involved with. because international law and international regimes in these international institutions are affecting more and more things that used to be under the control of the national government or states it will by nature draw the course into the kind of delicate decisions about politics and foreign affairs that they used to try to stay out of. the overall attention is between these new kinds of engineers of corporations, this new kind of institution which is a reasonable and understandable response to globalization and the traditional principles that had underlying the as its

contribution in the separation of powers and federalism and we think some deeper principles behind the constitution. so globalization tries to produce a theory on approach to solve this problem and some specific solutions. in fact among when we were thinking about it it reminded us a lot of what happens during the new deal. what we want to do is avoid what happened in the constitutional confrontation that occurred in the new deal years. one way to look at what happened is that the economy nationalized. the markets were consonant wide. our society became more national, and the constitution and the weight the course of about it in particular was still regional. for example, famously the supreme court would only allow congress to regulate a good when it crosses a border, but it would not allow the congress to

regulate the manufacturing of that good or the sale of that, only when it crossed the border could congress regulated. the supreme court also blocked independent administrative agencies. it would not allow for the creation of a neutral federal agencies to regulate things like communication with the railroads to the security markets. and so when the great depression occurred and president roosevelt introduced things, approaches to governance at the domestic level which are similar to what is being tried in the national level, the supreme court blocked him for several years in the early 1930's. constitutional law would not really come to except the national scope of the economy and the national scope of congress's powers until the famous confrontation between fdr and the supreme court in the beginning of president roosevelt's second term. only because president roosevelt trend to pass the court and the

supreme court's which dispositions on these questions of independent agencies and the powers of congress and effectively after that point allowed the federal government to regulate nationally and allowed the federal government to create independent institutions was only under the pressure of that kind of political attack that the constitutional tension was solved. and so one thing we hope is that in writing this book that we can see these issues coming down the road earlier than occurred in the 1930's and hopefully figure out doctrines which allow us to escape the same kind of confrontation that in the end did much harm both to president roosevelt and the executive branch and to the supreme court and its independence. how do we do that? one is that we think that the united states constitution basic structures for government, the separation of powers and federalism should be maintained

in the exact same way they apply domestically as they do to foreign affairs and things like trees, international organizations and international regimes. because we think that those structures are an important aspect of what we call the constitution theory of popular sovereignty, the idea that the constitution and our country and the sovereignty and legitimacy in the government comes from the bottom up, not the top down. the constitution is the contract between the people in the government and that the government can only exercise power in the way that the people delegate it to the federal government through the constitution. and so the separation of federal powers and federalism are the two men restrictions and regulations of how the government to enact. but it can't be changed. we can't treat foreign affairs as a gap in those principles is because it involves foreign affairs our national-security.

because the people through the constitution only give the national government the ability to act under those kinds of structures, they ought to apply equally to globalization or to domestic affairs. secondly, the way that him principle can be implemented is that the political branches, the branches that are elected, president and congress should have the primary role for figuring out how debt except, implement, and enforce international law in our country, rather than the courts. we think that congress, including the house, should decide win international obligations, international institutions can have a direct effect in the united states. the most democratically accountable branch of government should be involved whenever the federal government asks us as private individuals to change

our behavior, legal status and relationships in response to international agreement. i think this makes a lot of sense for a democratic accountability reasons because the most elected branches of the ones that are most accountable and the ones that are most transparent. we think it also makes the most sense for reasons of function, congress and the president control the main resources of the country, in charge of conducting foreign affairs, and it makes the most sense therefore urge the most capable branches of our government to be given the charge a responsibility for dealing with an important matter such as globalization and foreign affairs. we think it produces a least distortion to our constitutional structure. no matter how you come out on whether president and congress powers should divide, no matter how you come out on with the federal government powers versus the state government powers should balance, our only argument is that should be the exact same division and same balance when it comes to

globalization. if you do that in globalization and the effort to respond to is not distort the american political system. it does not distort our constitutional system. so let me close by just mentioning briefly some of the applications and then i would love to take your questions and comments. first, one thing we propose is that the supreme court actually get things right in the case mentioned at the beginning. it should be up to congress to decide how the united states should live up to international agreements like the vienna convention right to see your council. the legislature is strictly elected by the american people. we don't think that courts should try to implement agreements like that directly without the guidance of the most popular branch of government who we would say that trees

generally should not be considered automatically effective within our legal system until the president and the congress have a chance to figure out how this should work in coherence with the rest of our legal system and these principles of federalism and the separation of powers. second, we think that when it comes to the interpretation of international law enforcement, again, we think that the court should try to reduce the role and that the president and congress have an obligation and responsibility to enhance the role. it should be up to not just the president and congress to do what they do, but the courts to try to defer to the decisions of the congress and the president. again, that makes the decisions more democratic in deciding what types of international law and international regulation we can accept in our country. we also think that makes it more transparent and accountable. if people think the supreme court got things wrong and that we should stop the panel the

executions in the country so that for aliens so that they can receive their rights to me with their consulate and have translators and someone, that they can ask where demand members of congress pass a statute to change that rule. if it is up to just the supreme court there is really no way for people, the normal electric to make its views known and have it affect government policy. a third area we think is that the states should have a reinvigorated role in foreign affairs. i would like to mention the case , a particular interest of california people, the normal electorit to . you remember, once the commissioner but insurance. california in response to the permission that came out in the mid-90s, life insurance companies had not paid out insurance policies to holocaust victims.

california passed a law dodgers the state of california passed a law saying any insurance company that did business in california that have these policies should publish the information so that people could find whether these policies were due to their families and ask them to collect. there one more information produced. remarkably the supreme court struck down the law because it said it was inconsistent with federal policy about resolution of claims by holocaust survivors in our view that went too far. in our view, there should still be a space for states to act in matters involving foreign affairs and globalization. one point we think is quite right is that this is inevitable . a lot of things which are in the primary control, crime for example inevitably going to

affect foreign affairs and we will be affected by foreign affairs. impossible to exclude this case these days from of voice and from regulation of foreign affairs because globalization means international affairs are everywhere. the second thing is we also think the states should play reinvigorated roles because the states served more directly accountable and responsive to the citizens. states will react much faster and have better information and they're closer to the ground when it comes to government policy. so we think that might lead to more effective and flexible foreign policy if we look to states to try to carry out some efforts to respond to globalization. so let me just close. underlined three basic reasons before i go to questions. that did not need to give you a

promotion. one is we think globalization should not result in a change in the basic way the american system makes and enforces laws. second, as with domestic policy most of these decisions should be reserved for the political branches, the president and congress because they are the most accountable, because they're more transparent, and because there are most responsive to popular wishes. third, we think that the solutions makes sense because it is to the advantage of the united states in terms of the functional ability of the branches of government that the executive branch and the legislature have the ability to marshal society's resources and act more quickly and to set nationwide policies that are more rational than a single judge or a single set of courts

which tend to act more slowly withstand only see a small slice of a problem and which have a difficulty in changing their course and point of view. let me close by saying that in our view this will lead to a more healthy american foreign policy, one that focuses on the real commitments that the united states makes and how best to live up to them rather than making promises which the country never keeps because congress never steps up to pass laws or because the president never appears to enforce international law. instead we leave things to the courts. thank you very much for bearing with me. thank you for braving the terrible weather we had in san francisco today. valley forge your questions and comments. [applause] >> had been to have to stay up there. >> okay. >> also, i will start with a question of my own.

then i will arrange the questions from the audience in a way that will start with the most relevant of your book and work your way -- work our way from there on. my first and most general comments relates to what i perceive to be an assumption on your part that globalization has caused a huge change in the way america operates that needs somehow to be constrained or we are in desperate trouble. my perception of it is a very different, that is very limited powers plus certainly no powers of enforcement because we can blocked every decision in the security council that most everything is nonself executing, as you recognize in the book. these sweeping plans about

international law largest projected. they are raised and pushed very emphatically, but merely rejected by people because they just go beyond what really is customary international law. the global governance that really matters consists lawyers lee not of the political agencies in the u.n., but of the specialized agencies which operates in a very professional and objective manner, such as the international maritime organization, the international civil aviation organization, the who, the international postal union, organizations that have been around for it, some of them over 100 years. weigh before the u.n. these organizations operate in ways that are very consistent with tremendous difference to sovereign powers of the state

members by having either consensus requirements bear a state, if a single state wants not to be part of some global system that just popped out of a new rule . the rules actually adopted in these organizations, and there are hundreds of them like the international maritime organization i know has set 75 trees. you could call them trees that have been adopted are drafted by expert committees appointed by the individual national governments. maritime experts from the u.s. participating in these very professional out of which the u.s. could of which shows. so i am reminded by your book,

the assumptions of very famous law professor from harvard named amanda had sent to the international law community of america just goes well law over. they just loved hudson. the american society of international law has named a price september. hudson went around the world before the first -- right after the first world war telling everyone that the world was going to be governed by a single government essentially, that it was inevitable, everything was moving to the international sphere. there was an international bureaucracy being created to legislate some of the things you refer to more recently. hudson was saying before the catastrophic second world war in the whole destruction of the league of nations, which she did not predict it'll.

heat up the league of nations was huge success. so i sort of suggest that i would like to get your reaction that maybe you have overstated the problem and that it isn't a matter of taming globalization as we haven't, but avoiding globalization as some will have a and as -- and also of taming judicial overreach, which is a reality. i mean, based on the last sections of your book. that was my -- >> it's a great question. >> a little bit expensive. >> no, the more the better. never say no to a judge. current or former. i think you are quite right. the kind of global governance we are portraying has not been fully realized yet.

there isn't this global government in place now that regulates everything and the international institutions everywhere on every subject. and i think the system you describe it for specialized areas would be fully a acceptable with american constitutional system with the united states would not be bound by anything unless it consented to or you have consensus rules in the specialized areas and that you would wait on the president and congress to fulfill the obligations rather than try to make them directly enforced in the united states. but i think we are between there and global government. i will point out a few examples. i'm curious to what you think of them. so first, secretary of defense leon panetta testified before congress last week if not a week and a half ago. he was asked whether the united

states might consider intervening in syria to help the rebels, just as the united states did in libya. primarily with our force, the air force and supplying arms. the secretary panetta said that the united states legally could not intervene in syria because the u.n. security council had not authorize the operation as it did in libya. as a member, the obama administration waited three weeks to get the un security council before intervening. we have a debate. we can always talk about whether mr. panetta is also correct when he said we don't need congress's permission, but the u.s. permission. there you have the secretary of defense publicly saying that we need the permission of one of these neutral independent international organizations to give its approval before the united states can do something.

another one is in the alien tort statute litigation that has been going forward against american corporations, the supreme court has a case right now called the coble case where the question is , of foreign governments violates international law and the treatment of its own citizens and allegedly does so to help make it easier for corporation to run a refinery or build a mine or something, does that mean that -- does that mean that the courts can't directly interpret international law and then apply them? the third feature is the supreme court's recent use of foreign law which i think would tried to address a the end of the book and is a really interesting striking phenomenon. in several cases over the last few years the united states supreme court has actually gone

and look that foreign law and international law and said that our interpretation of the constitution is, in fact, some what guided by what the other countries in the world doing. not because the international has its own force. that was the case in many in, but just because things like to process, things like search and seizure, things like equal protection, interpreted bigger parts of our constitution taking to counter other countries. a remarkable thing. and i just read in the "wall street journal," the world trade organization, last example of global governance, a little farther ahead. the old nation state sovereignty , the wto is just recently, the analysis illegally give billions in subsidies to boeing in the production of its latest airliner, the dream liner the united states, i believe the u.s. trade representatives immediately sent a response that the united states will react and

congress and the stick their parents are expected to take action to end the subsidies right away in compliance with the wto judgments. so, you know, i don't think that the global governance we have now is as ineffective as the league of nations. rather, i think is exercising greater powers on more subjects. the first to admit we are not at the point where the u.n. decision to take direct effect in the country, but farther along towards that. our hope is to identify something we think is exhilarating and that before we take the plunge into it that we pause. how do we make it consistent with our constitution? i'm curious to see what you think of those examples, if those are inconsistent with your view or are actually examples where we are farther along in global governance perhaps. >> i am not going to -- the tigers, i have questions from the audience, and i will get to that.

i think your points are also legitimate. i don't think panetta met when he said. the alien tort law, i would simply say, i think they have not gotten around to what the law really was intended to do and they eventually will. that is that it does not apply abroad at all and never was intended for that as far as i read history. intended to protect diplomats here from what tort and provide a remedy for the. the supreme court is reliant on foreign law. i think they overdid it. they have cut back, and i think your comments and all the other comments low. i think the wto point is more in line with what we -- where are differences might be. the wto has a provision, for example. i think it is article nine. the united states can simply invoke its national interest and avoid allowing the wto to pass

on any question. the only consequence of that is that reciprocity applies as in all other international things. other states to do the same thing. states constrain themselves in using that power, but in terms of giving up our sovereign rights, we have their the ability to simply jerks' something out of their hands if we don't want them to pass on it no, everyone knows boeing has been subsidized. so has the european airline. know what we are all trying to s cut back on the subsidies. the wto itself does not have the power to order effectively a reduction in subsidy. the remedy that they in effect allow is a reciprocal punishment by the other states, the other affected states. so even there there is sort of a

respect still for the sovereign power of the state members. you know, i just think that your points are very good. i just think, perhaps, you don't give enough weight to the qualification people like uni, because i was part of that draft, would draft into these institutions in order to avoid them running roughshod over american sovereign rights. so let me get to the first question here. you can actually, obviously, anything a said. though one question i thought that was really very much a part of your book relates to the eu. would you go into that a little bit? de e you another example of

globalization or is it more like real federal government being formed? what powers should day you have over the u.s.? of these rulings that are emerging from the you antitrust division, all these things, is this part of the globalization run amok kind of thing and what is your reaction to that? >> a great question, and i wish we had thought of it and addressed in the book. unfortunately we wrote the book before the current crisis in the european union that we had. if we had written and a little later, the analogies have really come to mind. a great question. i guess -- and i can't speak for my co-author. i think the european union is definitely response of globalization. an earlier one, and it actually in my mind points to some of the perils of we are trying to identify. one of the main criticisms that you hear about the european

union from europeans is that there is a democracy deficit with the european union. this is a phrase the european kim up with. much of the policy that is made over at the european union does not come from any kind of proportional representation or an assembly votes on a new rule or a new standard. instead it is a system where a lot of the authority is vested in what is called the european commission which are essentially bureaucrats who set the standards for the european union on a lot of various, initially trade, but it has expanded to a lot of other areas now. they make the judgments for the european union about whether an american merger is a violation of antitrust for which there would call competition law. it is very difficult for the electorate in this country to change the policies of the european union.

we see that now. the tension between democratic constitution with accountability and transparency verses efforts to rely on independent not accountable officials to exercise sweeping powers as a response to globalization and its transfer. you see that now in the problems of the european union is having with regard to the financial problem in a country where you have decisions that are being made at the european union level about how to handle the greeks debt problem and the ones that are coming down the road with portugal and spain and italy in a way that is never put any kind of popular vote in europe. you have an enormous amount of discontent in europe where these of elected officials are telling the people what the remedy is going to be for the financial problem. it might actually be against the wishes of their own population.

i guess one way, we should not go down the european union report. that doesn't mean it is impossible to cooperate. not possible to do with globalization, but we have to do it consistent with our own constitutional democratic values . part of what we are seeing in europe i would think is because they did not incorporate any more directly democratic element to the european union. i see that with people in germany now talking about not supporting or billing increase. and so we will be interesting to see. nobody knows whether the european union is going to survive this problem and the shape that it is a now. we would say one of the reasons it does not survive is because it ousted democracy interest earned in accountability as the core principles. >> thank you. another set of questions that you have seek to have your opinion on the united nations.

what to use bank of the united nations ? how can it be strengthened in terms of creating globalization that is more effective and more consistent with our constitutional system? >> i would say the united states has a love-hate relationship. we are one of the countries to help founded in the city of san francisco where we are meeting tonight. at the same time the united states has often in the area that the united nations is, perhaps, most discussed in this country, often used force abroad without the permission of the united nations since its founding. if you remember, there have only been a handful of times that the united nations has approved foreign conflicts, far short of the number of was the united states has actually been involved with since 1945. on the other hand the united

nations has performed some very useful functions. sometimes we ignore when we criticize the united nations for restricting the united states ability to use force. the nato countries. for example, the united nations is a useful forum for the conduct of diplomacy as long as it does not try to bias oresteia that diplomacy. sometimes i worry that it does that with regard to the palestinian and israeli problem. initial former countries can come together in debate and try to reach a diplomatic solution, it's a very powerful function. i also think when the united nations perform some of the specialized functions that you mentioned earlier in discrete areas account perform an important focus for the cooperation of other -- countries for specific issues, so one should not, for example, understate the you in the achievement in the area of international health.

food security and relief, education and so on. the question is whether all that needs to be done by the same institution. does the need to be one united nations suggested be an umbrella and supervise all these other functions or as some have suggested, whether it might be better for the u.n. to have -- to sort of decentralized and more discreet institutions. for example, the united states does not like the way the u.n. approach is the israeli-palestinian problem what is now like the way the u.n. is attempting to restrict its ability to use force, that does not mean that you have to also oppose the u.n. very worthy achievements and efforts in the area of health and disease and relief. unfortunately, and you work done this much more directly than i did, senator jesse helms custodies of the united states to the un because of dissatisfaction with the united nations where the icc decisions,

you have the effect of hardening a lot of things that the u.n. does. and so one way to solve that might be for the un to evolve into several discrete institutions. second thing i will say, at least in my view, sometimes with the u.n., quite inconsistent with notions of justice were improving global welfare. a work of mine over the last few months. very much struck by the war on kosovo and the libyan intervention. you may remember, the war on xhosa though, president clinton led a coalition of countries to intervene to stop ethnic cleansing in the balkans. the u.n. explicitly did not approve the intervention into goes of o. i think looking back on it most everyone would think that the

intervention of the native coalition in the balkans was a very good thing, both for the balkans and the world. but under international law as many people currently interpreted, the u.n. has to approve all uses of force of self-defense coming international law actually becomes a barrier, an obstacle to the achievement of improving the welfare of the peoples of the world. one could reinterpreted you in charter so that it does not mean that which some have, i think, try to do. it may be that the un security council system is obsolete. the kind of challenges that we have, particularly when two of the five permanent members that can veto any use of force are dictatorships, china and russia which often do not have an interest in allowing intervention to stop civil wars and terrible humanitarian disasters.

the one example that i am really left with is our failure to intervene in rwanda where a small detachment of american troops could have stopped european and united states troops could have stop the genocide that killed about a million people and in part because the u.n. would not approve it. >> well, it is interesting to see that you are advocating a little bit more globalization in that area. so i just wanted to remind everyone that we are listening to the commonwealth club of california radio program. our guest today is uc-berkeley law professor john yoo, who is discussing teaming globalization and the issues related to globalization and the law within the united states constitution. there are a couple of relatively technical and i think very good questions that are worth raising with you. there is one general political

one that i think in fairness we should raise even though it is not directly pertinent. let me do the to short technical ones. one is the impact of the voluntary compliance which seems to be quite common now where presidents simply avoid the political process by announcing that they're going to voluntarily comply with some international treaty or international agreement. and the other is, are you really serious about giving states this veto in the absence of federal legislation overriding them? don't you think that will interfere with the effective implementation of perfectly democratically obtained rules? >> those are both excellent questions. the first one, voluntary compliance, not something we

address in the book, but a publish and op-ed in the new york times us friday about this. they're really growing phenomenon where presidents who feel that senate approval of the international agreements, very hard to get congressional implementation of an agreement instead say that the united states will voluntarily comply with some kind of treaty or international agreement but not submitted. this is done by presidents of both parties. in the peace we noted that president obama is doing that right now with the european led effort to create an arms control regime for aerospace. president bush i think did the same thing with regard to some of the agreements with a rock, particularly with basing rights and how many troops will be left . president clinton did it with the abm treaty after the soviet union went out of existence. president clinton said the

united states was still comply even though the other country we signed a treaty with wind out of existence. this is something that has happened, but i think it's going to happen more and more. in part the political reaction to the senate being more difficult and slower in making international agreements. the problem we had with it is that at some point a president who says the united states is going to act a certain way that happens to cooperate with other countries can lead into a binding commitment that we think ought to be one that is submitted to the senate. and we could argue it in the peace. we were not defining clear lines about where the west. we want people to be aware that presidents to do this may start to intrude. and some of the things we're talking about, wanting to have some kind of directly accountable and transparent democratic means for approving international agreements that

we're going to implement. we just don't think presence can avoid that whole process just by saying i'm going to do everything as if we had signed the treaty, but i'm not going to put my signature on it. that is to formalist innovation of this constitutional system. i agree, of very hard question at the margin to say when does this unilateral presidential action become an agreement that should be submitted to the senate were submitted to the congress. dissing question, i guess i am serious. it was not a trick to say that we think that the states should have a greater role in foreign affairs. in part i think this is inevitable because for example, the many cases self, because of the ease of movement into the country, aliens are going to commit crimes just like citizens do, and they're going to come into contact with the criminal justice system. probably impossible for the federal government to create a world for a separate criminal

code for aliens on the one hand when the states regulate crime for everybody else. don't have the resources to enforce that kind of law, does not have the ability to make all the decisions that would be involved. think about the decisions, how you would define the crime that would be consistent throughout the country. one thing, it is inevitable because of globalization that states have to regulate foreign affairs. there is no way to escape it. so we think that unless the federal government intervenes and actually passes a law weather is a judicial decision or some other law for exercise of federal power, you have to default to something. one thing that troubles us, you have a lot of scholars and international lawyers to argue that, no, you shouldn't just use the background state rule. federal courts should make up their own rule. this is a gap in our constitutional system. constitutional system.

i know it isn't directly related to what you have been talking about and analyze in the book but it is part of it, and they do -- many of the people in the audience would like to have your perception of executive power. what is the role of the president in all these issues. >> i know you and i have academic debate between ourselves about the role of the executive in war. >> we do. one of the few areas we disagree. >> i don't want to make at it secret. one of the books that most influenced me was your book on war powers. has a view that congress should authorize offensive use -- stop me if i mischaracterize --

congress must authorizes offensive use of force. >> when congress says the president cannot do something, he cannot general -- generally cannot do it. that the president does not have the power to disregard the affirmative act of congress. >> my view, it's not a secret, on executive power. it does have some -- does have some influence on the themes in this book, but it's not a core issue. i think the constitution created the presidency to actually play a larger role when it comes to foreign affairs and national security. actually, the role we most associate with the president today is political leader, and the head of the government, and the setter of policies, is something that the framers would not have expected for domestic policy. they thought that the president would play that role in foreign policy. not because the president would have a unique claim it to, but

they gave it to the president because the executive branch is best structured to do that. so, that's why the presidency is one person. there were proposals, and there were state examples where the executive branch was multiple people but the framers thought the president ought to be one person because that would me then executive branch could work more quickly. and the understood that might mean the president might make mistakes, but they thought the balance was better to act with speed and swiftness and secrecy and decision as the federalist papers called it. however, i think that this is a power that really is directed abroad, and threats from abroad, and it fluctuates so in periods of our history when he don't have a significant threat, the united states is not heavily involved in foreign affairs, to me it seems the president's

constitutional powers recede, and they have historically receipted during those times but when there's emergencies and crieses like the civil war or the 9/11 attacks or world worldi and world war ii, and that's in keeping with the framers original minds. one of the major defects of the constitution, articles of confederation, didn't have that single executive who could respond quickly to a crisis. and then after time, either the emergency crisis goes away or becomes more stabilized, there is ample space for congress to act and the courts get involved, and we have seen that in the last 10-11 years now. >> if the audience is interesting in following up on that, they can. i wanted to end with one question that i think will give you a chance to go to the heart of some of your arguments. and that is, if the constitution

itself provides for a treaty power and a process whereby treaties are passed and adopted, and then reserved to the house of representatives the power to fund things, and most of the treaties have to be enforced through legislation, why isn't that a sufficient constitutional structure to justify treaty-making and globalization through treaty-making? >> i quite agree with that, actually. i think that's -- if that were the system that worked, going forward with responses to globalization, i would be quite happy. so the idea would be the united states can sign treaties, make what agreements it wishes as part of the effort to respond to globalize yeah, but the house still retains its fundmental check in the power of the purse and the power of legislation. the problem is you see efforts -- that's the system

that seems to have worked in the country for almost 200 years. that reserves in the most directly lifted branch, the moment accountable branch we vote for every two years. the primary responsibility to deal with these issues, and if we don't like what they do, we can quickly and easily vote them out of office. the problem to me, anyway, is these responses to globalization and the kinds of things we're talking about, what is really happening, you see efforts to go around or evade that structure. so the supreme court, using foreign law, international law, to interpret the due process laws, the house is not involved. hold american companies -- foreign companies accountable for the actions of foreign governments and also the house decides that. so, the worry i have is that the system that we are developing to deal with globalization promoted

by use of international institutions and the broad treaties, is actually trying to figure out ways to get around that structure. and that goes back to your question. that's actually the request about the european union. the problem we have is the -- the check of most democratic functions is impeded. i think that what is happening in europe now should be a warning to news the united states of a way to pursue these questions that might contain the seeds of a disaster. >> thank you very much. >> well, let me just say our thanks to john yoo, professor at uc berkeley law school, and co-author of the new book, which is strongly recommend, it's beautifully analyzed, full of very, very useful information, "taming globalize yeah,

international law, the u.s. constitution and the new world order." we also thank our audience here, and on television, radio, and the internet. now this meeting of the commonwealth club of california, the place you're in the know, is adjourned. [applause]

>> my connection to this foundation goes back quite some years. i have -- with great honor and boasting i use a lot of the works of robert let kerr in my own research and writing. his work has been particularly helpful for me in terms of my own attempts to think about both political and economic liberation for african-americans. the united states is an incredible place. it stands out among other nations and in the world. and i recently had an opportunity to be reminded of

how great this place is at my family reunion in alabama. actually in the city of atmoore alabama. the county is the county that my family's plantation was so i stand before you as a descendent of slaves from the bradley plantation in alabama. slavery reconstruction, jim crow, the civil rights movement, this is my family's story. of struggling andin for humanity and freedom and a contact and a culture that was saturated with injustice and the dehumanization. what is so amazing about this narrative, this story, is that

not only does my family know where the plantation is, in the county, we now own it. and there are members of my family currently living on it, as free people, who have property rights to it, codified and protected by the rule of law. now, how many countries in the world is it possible to have a group of people who were once slaves on a piece of property, few generations later actually owns the property. they were being enslaved on. does this make this place absolutely amazing? yes, of course. we notice the progress in our country by having a black family in the oval office. there are not too many countries

around the world where you would see subdominant cultures rise to that level, that status, in just a few generations after movements like the civil rights movement. it's amazing to me that -- and i personally am delighted to think about, what is it about this country, what is it about our founding principles that allows someone like myself to be a descendent of slaves, to be standing in front of a group of people, having earned a ph.d. standing in front of the heritage foundation backdrop, speaking to you about my second book. to me at it an amazing narrative about the potential of freedom and liberty and economic empowerment this country

actually offers to those who have the opportunity to take advantage of it. so, i named me book "black and tired" on purpose. one, because i am black. if you can tell. and so i want to remain connected to the history of my own family, the story of rising to success in spite of incredibly traumatic and wounding and painful experiences in this country. because the hopes and dreams and aspirationes versus institutions values, principles, that created the conditions that put me here today, are being sabotaged and erode by those who have good intentions but often do not think about the consequences of public policies decisions because they have different views on the human person and human dignity