Is the nation state threatened?

"Is the Nation State Threatened?" This question, though apt, may fail to convey how dire the threat to sovereignty truly is. It might be better to ask, "Is the Nation State Terminally Ill?" Are we witnessing the death march of sovereignty, and with it democratic self-determination?

The question resonates on each side of the Atlantic. That militant Islam is at the core of this question presents, in both the United States and the United Kingdom, a double irony. First, Jihadists flatly reject central tenets of Western liberal democracy: separation of religion and politics, freedom to choose any, or no, religion, freedom to make laws that contradict scripture, equality of Muslims and non-Muslims, and of men and women. Yet, as we debate the enduring tension between liberty and equality, Jihadists have somehow come to embody the very rights against government intrusion they would ruthlessly deny upon supplanting western governments with the hegemonic Caliphate of their dreams.

Relatedly, the radicals of Dar al-Islam are unabashed about their hostile intentions toward the sovereign states of what they tellingly call Dar al-Harb, the realm of war. Because this is so--because, to borrow Justice Antonin Scalia's memorable phrase, "this wolf comes as a wolf"--jihadists are, in reality, the sheep's clothing for the more deadly wolf in this equation: the interlocking networks of primarily Western elites so perceptively identified by the Hudson Institute's John Fonte as "transnational progressives."

It is no secret that this internationalist movement is composed of nongovernmental organizations NGOs), officials of the United Nations and other international organizations; multinational corporations; and ideologically compatible officials and bureaucrats operating within nation states. Nor is there anything novel in the observation that international law is its hammer-and-chisel for sculpting a post-sovereign nirvana, through the efforts of lawyers, judges, and law professors in the movement's vanguard.

What is new, however, is that transnational progressivism has become not merely a prominent jurisprudential current but, in fact, the dominant ideology of American and British courts. With the potent combination of a seismic shift in public attitudes away from democratic self-determination and toward oligarchic juristocracy (or rule by courts), as well as a sweeping infrastructure of so-called "international human rights law," this movement is now poised to realize much of its goal: A world in which the nation state, the organizing geopolitical paradigm and engine of human progress since the Treaty of Westphalia, substantially gives way to a post-sovereign order of global governance led by supra-national tribunals (or tribunals that, though nominally "national," pledge fealty to the higher calling of "humanity"). Like other utopian projects, the end of this one is tyranny.

The U.S Supreme Court's June 2006 decision in Hamdan v. Rumsfeld should by now have brought this perilous state of affairs into sharp relief. Instead, the challenge to sovereignty has been obscured by another surge in the five-year-old controversy over the detention and trial of unlawful enemy combatants captured during the War on Terror. The Hamdan majority, moreover, dealt elusively with the potentially revolutionary international-law underpinnings of its decision.

Salim Hamdan, the personal driver and bodyguard of Osama bin Laden, was apprehended in Afghanistan after military operations began there in 2001. President Bush, meanwhile, authorized the Defense Department to try captured alien terrorist operatives by military commission (rather than court-martial or trial in the civilian justice system). Such commissions have a rich pedigree--having been employed for war crimes by General George Washington during the Revolutionary War, as well as by Lincoln, Wilson, and FDR, among other wartime presidents. Hamdan was among the first captives referred for a commission, and was charged with membership in the al Qaeda war crimes conspiracy.