Tribunals trump U.S. courts: NAFTA's unconstitutional courts are beginning to override our freedom and independence. They must be abolished.

Judicial usurpation." "Activist judges." "Renegade courts." These have become familiar political epithets expressing the exasperation millions of Americans feel over outrageous federal court decisions. In recent years, federal judges have been acting as super-legislators, reordering society according to their whims and unconstitutionally striking down validly enacted state laws on issues such as school prayer, immigration, abortion, the death penalty, pornography, flag burning, and the Ten Commandments. As obnoxious as many of our courts' actions have become, however, we still retain within our constitutional system the means to remedy these judicial excesses.

But what are we to do about foreign courts that attempt to exercise the same kinds of judicial usurpation? That would never happen, right? We would never allow it! Unfortunately, we have allowed it. Or, rather, our government has allowed it in our name.

Most Americans are completely unaware that the North American Free Trade Agreement (NAFTA) established courts called tribunals to adjudicate conflicts between commercial enterprises and the national, state, and local governments of Canada, the United States, and Mexico. These NAFTA tribunals operate under the aegis of the United Nations Commission on International Trade Law and the World Bank's International Center for Settlement of Investment Disputes. And they already are having a profound and subversive impact on our legal system and are set to completely erode our national sovereignty.

Unknown and Unaccountable

From the beginning of the NAFTA debate in the early 1990s, THE NEW AMERICAN warned that NAFTA's Chapter 11 creating the tribunals represented a dagger pointed at the heart of American sovereignty. The political, commercial, and media advocates of NAFTA dismissed the concern as a ridiculous bogeyman. But the bogeyman has proven to be real. The reality of this bogeyman was not admitted in "respectable" circles, however, until the appearance of a March 11, 2001 article in the New York Times by Anthony DePalma, entitled "NAFTA's Powerful Little Secret."

"Their meetings are secret," DePalma wrote. "Their members are generally unknown. The decisions they reach need not be fully disclosed. Yet the way a small group of international tribunals handles NAFTA's secret tribunals operate under the aegis of the World Bank (above) and the UN. Former Congressman Abner Mikva (inset) now serves as a NAFTA judge, along with lawyers from many other countries. disputes between investors and foreign governments has led to national laws being revoked, justice systems questioned and environmental regulations challenged. And it is all in the name of protecting the rights of foreign investors under the North American Free Trade Agreement."

Three years later, in an April 18, 2004 article entitled "NAFTA Tribunals Stir U.S. Worries," the New York Times lifted the lid a bit more on the NAFTA judicial Trojan horse. The Times piece by Adam Liptak reported:

   After the highest court in Massachusetts
   ruled against a Canadian real
   estate company and after the United
   States Supreme Court declined to hear
   its appeal, the company's day in court
   was over. Or so thought Chief Justice
   Margaret H. Marshall of the Massachusetts
   court, until she learned of yet
   another layer of judicial review, by
   an international tribunal. "I was at a
   dinner party," Chief Justice Marshall
   said in a recent telephone interview.
   "To say I was surprised to hear that
   a judgment of this court was being
   subjected to further review would be
   an understatement."

Overriding U.S. Judicial Independence There are now dozens of suits filed in NAFTA tribunals and soon there are expected to be hundreds. Of particular interest in the Times piece are the comments of several experts on the surprise nature of this stealth attack. "This is the biggest threat to United States judicial independence that [few people have] heard of and even fewer people understand," said John D. Echeverria, a law professor at Georgetown University.

"It's basically been under the radar screen," said Peter Spiro, a law professor at Hofstra University. "But it points to a fundamental reorientation of our constitutional system. You have an international tribunal essentially reviewing American court judgments."

Our Founding Fathers intended that the U.S. Congress, not an international tribunal, would be authorized to regulate trade with foreign nations. They stated this quite specifically, in Article I, Section 8 of the Constitution, which states: "The Congress shall have power to lay and collect taxes, duties, imposts and excises.... To regulate commerce with foreign nations." (Emphasis added.) Congress does not have the power to delegate that responsibility to the president, to a NAFTA tribunal, or to any other entity.

Prof. Robert Pastor and the Council on Foreign Relations, the most influential internationalist-minded organization in the country, have called for replacing NAFTA's current ad hoc tribunals with a "Permanent Court" that "would permit the accumulation of precedent and lay the groundwork for North American business law." It was Pastor who advised President Clinton on drafting the NAFTA side agreements on environment and labor standards.

Those agreements have now spawned calls to establish additional tribunals to deal specifically with those issues. And the multitude of initiatives that have been launched under President Bush's Security and Prosperity Partnership (SPP) will pave the way for still more of these unconstitutional institutions. Those who love America should not rest until NAFTA is repealed and its unconstitutional tribunals are rendered null.