Harold Hongju Koh, a Yale law professor and a former assistant secretary of state in the Clinton administration, said the retraction of the signature on the treaty would be a profound error.
"The result is that the administration is losing a major opportunity to shape the court so it could be useful to the United States," Mr. Koh said. "Now that the court exists, it's important to deal with it. If the administration leaves it unmanaged, it may create difficulties for us and nations like Israel."
He described the opportunity as similar to the United States Supreme Court's 1803 decision in Marbury v. Madison that courts could subject the other branches of government to its jurisdiction, decisively defining its role in the new nation.
"This is an international Marbury versus Madison moment," he said. [NY Times, May 5, 2002]
Apparently Koh thinks that the US Supreme Court seized authority over the other branches of government in the 1803 case Marbury v. Madison, and that the ICC should similarly declare its superiority over sovreign nations.
Koh is misreading Marbury v. Madison.
In Marbury v. Madison, the Court was asked to do something that it believed to be contrary to the US Constitution. The Court pointed out that its judges take an oath to the Constitution, and it declared that it did not have the power to do what it was asked.
The ICC would take away rights that Americans currently enjoy. If President Bush respects his oath to the Constitution and follows the logic of Marbury v. Madison, then he will continue to keep the US out of the ICC.