Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad.
'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.
By Andrew C. McCarthy
Reprinted with permission from National Review Online