Eric Holder's Hidden Agenda

The Investigation Isn't About Torture, But About Transnationalism

(National Review Online)  Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad.

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'This is an administration that is determined to conduct itself by the rule of law. And to the extent that we receive lawful requests from an appropriately created court, we would obviously respond to it."

It was springtime in Berlin and Eric Holder, a well-known "rule of law" devotee, was speaking to the German press. He'd been asked if his Justice Department would cooperate with efforts by foreign or international tribunals to prosecute U.S. government officials who carried out the Bush administration's post-9/11 counterterrorism policies. The attorney general assured listeners that he was certainly open to being helpful. "Obviously," he said, "we would look at any request that would come from a court in any country and see how and whether we should comply with it."

As the Associated Press reported at the time, Holder was "pressed on whether that meant the United States would cooperate with a foreign court prosecuting Bush administration officials." He skirted the question in a way Americans ought to find alarming. The attorney general indicated that he was speaking only about "evidentiary requests." Translation: The Obama administration will not make arrests and hand current or former American government officials over for foreign trials, but if the Europeans or U.N. functionaries (at the nudging of, say, the Organization of the Islamic Conference) want Justice's help gathering evidence in order to build triable cases - count us in.

Hue and cry followed Holder's decision this week to have a prosecutor investigate CIA interrogators and contractors. The probe is a nakedly political, banana republic-style criminalizing of policy differences and political rivalry. The abuse allegations said to have stunned the attorney general into acting are outlined in a stale CIA inspector general's report. Though only released this week - a disclosure timed to divert attention from reports that showed the CIA's efforts yielded life-saving intelligence - the IG report is actually five years old. Its allegations not only have been long known to the leaders of both parties in Congress, they were thoroughly investigated by professional prosecutors - not political appointees. Those prosecutors decided not to file charges, except in one case that ended in an acquittal. As I outline here, the abuse in question falls woefully short of torture crimes under federal law.

Americans are scratching their heads: Why would Holder retrace this well-worn ground when intimidating our intelligence-gatherers so obviously damages national security? The political fallout, too, is palpable. Leon Panetta, the outraged CIA director, is reportedly pondering resignation. President Obama, laying low in the tall grass on his Martha's Vineyard vacation, is having staffers try to put distance between himself and his attorney general. It is unlikely that many will be fooled: Both Obama and Holder promised their antiwar base just this sort of "reckoning" during the 2008 campaign. But the question remains, Why is Holder (or, rather, why are Holder and the White House) instigating this controversy?

I believe the explanation lies in the Obama administration's fondness for transnationalism, a doctrine of post-sovereign globalism in which America is seen as owing its principal allegiance to the international legal order rather than to our own Constitution and national interests.

Recall that the president chose to install former Yale Law School dean Harold Koh as his State Department's legal adviser. Koh is the country's leading proponent of transnationalism. He is now a major player in the administration's deliberations over international law and cooperation. Naturally, membership in the International Criminal Court, which the United States has resisted joining, is high on Koh's agenda. The ICC claims worldwide jurisdiction, even over nations that do not ratify its enabling treaty, notwithstanding that sovereign consent to jurisdiction is a bedrock principle of international law.

As a result, there have always been serious concerns that the ICC could investigate and try to indict American political, military, and intelligence officials for actions taken in defense of our country. Here it's crucial to bear in mind that the United States (or at least the pre-Obama United States) has not seen eye-to-eye with Europe on significant national-security matters. European nations, for example, have accepted the 1977 Protocol I to the Geneva Conventions, while the United States has rejected it. Protocol I extends protections to terrorists and imposes an exacting legal regime on combat operations, relying on such concepts as "proportional" use of force and rigorous distinction between military and civilian targets. That is, Protocol I potentially converts traditional combat operations into war crimes. Similarly, though the U.S. accepted the torture provisions of the U.N. Convention Against Torture (UNCAT), our nation rejected the UNCAT's placing of "cruel, inhuman, and degrading treatment" on a par with torture. By contrast, Europe generally accepts the UNCAT in toto.

#pageAs long as we haven't ratified a couple of bad human-rights treaties, why should we care that Europe considers them binding? Because of the monstrosity known as "customary international law," of which Koh is a major proponent. This theory holds that once new legal principles gain broad acceptance among nations and international organizations, they somehow transmogrify into binding law, even for nations that haven't agreed to them. That is, the judgment of the "international community" (meaning, the judgment of left-wing academics and human-rights activists who hold sway at the U.N. and the European Union) supersedes the standards our citizens have adopted democratically. It is standard fare among transnational progressives to claim that Protocol I is now binding on the United States and that what they define as cruel, inhuman, and degrading treatment is "tantamount to torture."

And the transnational Left has still another treat in store: its notion of "universal jurisdiction." This theory holds that individual nations have the power to prosecute actions that occur in other countries, even when they have no impact on the prosecuting nation. The idea is that some offenses - such as torture and war crimes - so offend the purported consensus of humanity (i.e., so offend left-wing sensibilities) that they may be prosecuted by any country that cares to take the initiative. In fact, many countries (the United States included) open their justice systems to civil suits against government officials - again, even if the country where the suit is filed has nothing to do with the alleged offenses.

So we come back to Holder in Berlin. Two months before the attorney general's visit, the U.N.'s "special rapporteur on torture" told German television that the Obama administration had "a clear obligation" under the UNCAT to file torture charges against former president George W. Bush and former defense secretary Donald Rumsfeld. The rapporteur was relying on documents produced because of American investigations - including a nakedly partisan report by the Democrat-controlled Senate Armed Services Committee.

Meanwhile, as I detailed here in March, Spain's universal-justice crusader Baltasar Garzón is pursuing his own torture case against Bush administration lawyers who weighed in on interrogation policy. Garzón is the Spanish investigating magistrate who, with the help of a terrorist turned human-rights lawyer, had Chilean strongman Augusto Pinochet arrested in England for crimes against humanity. The same terrorist-lawyer, Gonzalo Boye, is helping Garzón on the Bush case. The Brits, by the way, eventually decided not to send Pinochet to Spain, but not before the law lords ruled that they could, a decision enthusiastically hailed at the time by U.N. High Commissioner on Human Rights Mary Robinson, the former president of Ireland. That would be the same Mary Robinson of Durban infamy - the one President Obama just honored with the Medal of Freedom.

And then there is the Center for Constitutional Rights, a Marxist organization that for years has coordinated legal representation for terrorists detained at Guantanamo Bay. The CCR has been attempting to convince Germany, France, Spain, and other countries to file war-crime indictments against former Bush administration officials, including President Bush, Vice President Cheney, and Secretary Rumsfeld. In representing America's enemies, CCR has collaborated with many private lawyers, who also volunteered their services - several of whom are now working in the Obama Justice Department. Indeed, Holder's former firm boasts that it still represents 16 Gitmo detainees (the number was previously higher). And, for help shaping detainee policy, Holder recently hired Jennifer Daskal for DOJ's National Security Division - a lawyer from Human Rights Watch with no prior prosecutorial experience, whose main qualification seems to be the startling advocacy she has done for enemy combatants.

Put it all together and it's really not that hard to figure out what is going on here.

Transnationalists from outside and, now, inside our government have been ardent supporters of prosecutions against American officials who designed and carried out the Bush counterterrorism policies that kept this country safe after 9/11. The U.N.'s top torture monitor is demanding legal action, almost certainly as a prelude to calling for action by an international tribunal - such as the ICC - if the Justice Department fails to indict. Meantime, law-enforcement authorities in Spain and elsewhere are weighing charges against the same U.S. officials, spurred on by the CCR and human-rights groups that now have friends in high American places. In foreign and international courts, the terrorist-friendly legal standards preferred by Europe and the U.N. would make convictions easier to obtain and civil suits easier to win.

Obama and Holder were principal advocates for a "reckoning" against Bush officials during the 2008 campaign. They realize, though, that their administration would be mortally wounded if Justice were actually to file formal charges - this week's announcement of an investigation against the CIA provoked howls, but that's nothing compared to the public reaction indictments would cause. Nevertheless, Obama and Holder are under intense pressure from the hard Left, to which they made reckless promises, and from the international community they embrace.

The way out of this dilemma is clear. Though it won't file indictments against the CIA agents and Bush officials it is probing, the Justice Department will continue conducting investigations and releasing reports containing new disclosures of information. The churn of new disclosures will be used by lawyers for the detainees to continue pressing the U.N. and the Europeans to file charges. The European nations and/or international tribunals will make formal requests to the Obama administration to have the Justice Department assist them in securing evidence. Holder will piously announce that the "rule of law" requires him to cooperate with these "lawful requests" from "appropriately created courts." Finally, the international and/or foreign courts will file criminal charges against American officials.

Foreign charges would result in the issuance of international arrest warrants. They won't be executed in the United States - even this administration is probably not brazen enough to try that. But the warrants will go out to police agencies all over the world. If the indicted American officials want to travel outside the U.S., they will need to worry about the possibility of arrest, detention, and transfer to third countries for prosecution. Have a look at this 2007 interview of CCR president Michael Ratner. See how he brags that his European gambit is "making the world smaller" for Rumsfeld - creating a hostile legal climate in which a former U.S. defense secretary may have to avoid, for instance, attending conferences in NATO countries.

The Left will get its reckoning. Obama and Holder will be able to take credit with their supporters for making it happen. But because the administration's allies in the antiwar bar and the international Left will do the dirty work of getting charges filed, the American media will help Obama avoid domestic political accountability. Meanwhile, Americans who sought to protect our nation from barbarians will be harassed and framed as war criminals. And protecting the United States will have become an actionable violation of international law.

I'm betting that's the plan.

[noloyalisti]

Oh no Holder's agenda is he is a marxist-Leninist, socialist, fascist, Islamicist, anti-American, Muslim, religious theocrat communist. And be very, very afraid. If we let him enforce the law, we will get hit again. And we will run out of duct tape and plastic for the windows. Be scared, people. Help. Quick. Soon. Now. Please. Fast.

Oh yeah, he is black and also likes gays and hates guns. And white people. And Christians. And Christmas. And our way of life. Heeeeeeeeeeelp!!!!!!!!!!!!!!!

[didserve]

What kind of neocon bushit is this! Hey NRO take your duel passport holding trators back to what ever country they came from! The dont represent America ...maybe you can go to crawford texas!

[hamiltoningrate]

We need to re see the wonderful historical movie, MISSISSIPPI BURNING.

IN that movie, the FBI is following the rules, and the KKK - as a radical fanatic group - is killing and terrorizing the South, and the Black population . One character wants to play by the rules, ( insert so called "progressives " ) only to see the increased suffering of the people he is supposed to protect. The KKK was winning, evil as they were. Blacks were being hung. Homes were burned to the ground. Children killed, women raped and tortured. Years went by, and all was nearly lost, but the rules were being followed, to tyhe letter.

The decent people were demoralized, and afraid. Where was the protection their government was suppose to provide ?? Only for the KKK rights ??

Another FBI character - a man or morals and action - is so fed up, that he is about to quit, but at the last minute, he is asked to help... finally freed to "set things right" by whatever means possible. The people take heart. Help is coming.


(Historically True.)

Only when the FBI takes the gloves off, and begins the fight the KKK with intimidation, threats and violence, ( and yes , it is not pretty, one scene we see a KKK tied up and about to have is privates cut off, unless he talks, and tells the FBI who killed the innocent people of Mississippi ! ).... do we break the back of this evil organization. Please rent this MOVIE. IT IS A GREAT History LEsson.

It is far easier to be worried about the rights of the evil, than to confront them. It is far easier to ignore the rights of the innocent.

So too, with the Islamic Terrorists, ( just as we did with the KKK ) , we need to do what is right at this time to win.....if we just "play by the rules" we will be defeated.

Just as the people of the South in the 1960s deserved to be protected, so too do we as a nation , need that same use of force, use of torture, intimidation if we are to preserve of freedom, democracy and ironically,,,, the rule of law.

[hamiltoningrate]

This is disgraceful.


We ask these men and women to put themselves in harms way, in a foreign land, always in danger, and with very low pay, and we ask them to risk their life to protect ours.



/////////And now we are ready to crucify them on the alter of LEFTY politics ? Shame. ///////


Fine.....Let there be an open legal action with a jury, so be it .

/////// How did we elect the ENEMY ?

Part of the Constitution also says that the execuetive must protect us. This does nothing to protect us, and infact puts us in more danger, as who will be willing to take on the burden needed ? knowing that nut jobs LEFTists will be ACLU them to ruin their lives ???


/////This will mean the political end of the Democrats as the nation will side with the HEROES.

[presseyr]

"I believe the explanation lies in the Obama administration's fondness for transnationalism, a doctrine of post-sovereign globalism in which America is seen as owing its principal allegiance to the international legal order rather than to our own Constitution and national interests."

Remind me which part of the constitution directs us to torture people.

[r9119111]

bcpats:

You wrote, "And now, from inside our government he is trying to orchestrate prosecutions against American officials who designed and carried out the Bush counterterrorism policies that kept this country safe after 9/11."

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I've had about as much of this garbage as I can take. He is just doing his job. The GOP doesn't know what morality is. The GOP is nothing but a band of thugs who fashion themselves above the law and hide behind all sorts of lies and excuses. I say, "Do your job, Mr. Holder." Thank you.

[bcpats]

Holder is determined to let the world know just how the CIA works - - never mind that it might make the US more vulnerable because if any terrorist was to attack and caught.... they will know how/when or where to react - - but AFTER they've had Miranda rights read to them. The CIA agent investigating has more to lose than the terrorist that thinks he will meet 7 virgins when he dies. The CIA agent would be prosecuted, perhaps sent to jail. The agent would definitely be stripped of any dignity associated with his personal, emotional, professional or financial life. The US and CIA both stripped of any credibility.
Holder is still carving his niche, and not very delicately - - like with a chainsaw instead of whittling a bit at a time. His venom for revenge against ANYTHING Bush related and desire for transnationalism seems to have obsured his judgement or perhaps emboldened him to excercise and impose his views on everyone. And now, from inside our government he is trying to orchestrate prosecutions against American officials who designed and carried out the Bush counterterrorism policies that kept this country safe after 9/11.

[r9119111]

Under George Bush the rule of law was nothing more than a bad joke.

[platteman]

I just want to know how much money Holder got for the Rich pardon and now he is going after CIA people. Why has he not prosicuted the ACLU who photographed CIA operatives who were under cover and shown the terrorists pictures of these people, putting them, their families in danger for the rest of their lives?
Seems we got a double standard. Plame is outed by Armitage, they go ofter Scooter, other CIA people are now being outed and it is ok. Hyprocisy, nah, just doing their job, whatever that is!!!!!!

[bcpats]

In Holder's eyes, the ACLU is probably upholding "The Rule of Law", so in essence would agree.

[cougherss]

Eric Holder was Bill Clinton's deputy AG when the Clinton administration was sending suspected terrorists to Egypt etc., only to be brutally tortured and murdered. http://obamareport.blogspot.com/2009/08/eric-holder-accessory-to-murder-and.html
Hypocricy?

[thebob-bob]

Holder is doing everything out in the open, unlike the super secretive Bush/Cheney administration.

GW Bush knew he had to publicly state, "Americans don't Torture". He lied. The Bush Administration's "hidden agenda" was to subvert the Constitution, ignore American law (never mind what fredo gonzales said) and argue that , if the President did it, it was legal.

They admit they tortured and argue that, since (they believed) it worked, it was OK. They're going to jail.

[skyk-2009]

Hidden Agenda?? It's been so long since we had a fully independent Attorney General these Neocon's have forgotten what one is suppose to be like and about. Cheney is and will always be a War Criminal to the Rest of the World, that's already a given. The ONLY real issue here is if we are going to face THAT reality or try to deny it's there. The Confederate Party has that act, denying it's there, down to art form so that is already a given.

[luckyturqoise]

Is this how we show respect to our boy's? Mr Holder I suggest you get off you tush and go over their yourself,you are a disgrace to yourself

[rafterman1]

"Our boys" don't deserve respect when they violate the very core of what makes us American - justice and fair play.

[dwilson59]

rafterman1

Nothing is fair in war.

PS I dont know who said that but I like it

[skyk-2009]

luckyturqoise, let me guess? YOU never had the courage to put a Uniform of this nation on never mind wearing it into COMBAT! I have and let me tell you when you are faced with the possibility of being a POW, the Geneva Convention and our Laws on Torture mean an awful lot. Knowing that you can say, We're better than them has gotten an awful lot of us through some very rough times. Just think for 200 years we've been able to say, standing tall and proud, the United States DOES NOT TORTURE. Just think no American can say that anymore. You and Neocon's like you turn my stomach!! NO HONOR, NO MORAL, just defending your "Party"! Sure am glad I never had you at my back.

[skyk-2009]

dwilson59, REALLY? So what you are saying is that ALL those veterans who died to make the Geneva Convention a reality were just idiots. They had the courage to stand tall and say to the world, The UNITED STATES DOES NOT TORTURE IN THE WORST OF TIMES AND WE INSIST THAT THOSE WHO DO FACE JUSTICE! That is HONOR sport, something you cringing cowards will never understand. We didn't have to torture these people and doing so has cost us MUCH more than the Taliban or Bin Ladin could ever take. MUCH MORE!!

[misha256]

by popstom105 August 29, 2009 7:14 PM EDT
by 350AndClimbing August 30, 2009 8:56 AM EDT

The Geneva Convention through the US Constitution Article 6 is the law of the land and the Geneva convention applies to all foreign nationals (from illegal combatants, legal combatants, wounded, sick through civilians, and specifically women and children) under the rule of a foreign force whether in a declared war or not.

[quatermass2]

"The probe is a nakedly political, banana republic-style criminalizing of policy differences and political rivalry."

Let me be the first to call ******** on that. Torture is torture, and it is a crime in every civilized country.

[rocketjl]

I hope we are keeping all this in front of those gullible folks that voted this nut into office. Normal morons in government is one thing, but Obama and his cronies have got agenda that may well destroy the country. We need to start thinking about how to reverse all the damage Obama and the Democrats are doing. This is definately not what Teddy would want.

[rafterman1]

Ruin this country? Yes, I know neocons are worried that the white male power base that has ruled this country for over 200 years is coming to an end. And you are scared sh*tless.

[skyk-2009]

Anyone who even THINKS that Teddy had a problem ONE with our new YOUNG President is plain full of it. President Obama was handed the mother of all messes and now that we are starting to dig our way out of the worst economic meltdown since the great depression YOU want to reverse course? Are you drinking something Illegal??