Spain’s ‘Universal Jurisdiction’ Power Play


Andrew C. McCarthy

As the U.S. government’s myriad intrusions radically transform our economy, few seem to notice the dangerous progress of the international Left’s assault on American sovereignty. Without firing a shot, transnational progressives are further along than the Soviet Union could ever have reasonably hoped to be, notwithstanding Lenin’s prescient understanding that we would willingly participate in our own demise. In the Left’s sights is the very concept of the American people’s right of self-defense.

The New York Times reports that a Spanish court is considering filing human-rights charges, and issuing arrest warrants, against former attorney general Alberto Gonzales and five other Bush administration officials. The putative defendants did not carry out a single belligerent act, conduct a single interrogation, or direct the operation of any military or intelligence agents actually engaged in hostilities.

What these former White House, Justice Department, and Pentagon attorneys did do was to wrestle with complex, largely unsettled questions about the parameters of American law. Unlike their demagogic critics, they were engaged in a serious attempt to set the margins of permissible coercion, under wartime circumstances, against detainees who flout the laws of war, who are not covered by the Geneva Conventions’ prisoner-of-war provisions, who are schooled in counter-interrogation techniques, who had just murdered nearly 3,000 Americans in a sneak attack, and who were promising more of the same.

War is a political exercise, not a legal one. The lawyers targeted by the Spanish “investigation” were not in the chain of command issuing directives to our war-fighters. They were asked to weigh in because the United States is a decent country. President Bush and the executive-branch officials who actually were in the chain of command wanted the opinion of their lawyers before making decisions about the handling of enemy combatants. But those decisions, and the orders later based on them, were not the lawyers’ decisions; they were the commander-in-chief’s. What’s more, they were political decisions, not legal ones.

For all its bombast about enforcing the Geneva Conventions, the Left has never actually wanted them honored — just cherry-picked. As written, the conventions expressly hold that disputes are to be resolved diplomatically. Controversies about compliance were never meant to be fodder for lawsuits, much less to be legal weapons in the arsenal of lawless barbarians. Had our diplomats had any inkling, when the conventions were adopted in 1949, that they were surrendering national-security decisions to politically unaccountable federal judges, let alone to foreign tribunals whose strings are pulled by perfervid anti-Americans, the conventions would never have been signed.

But they were. Now, in the hands of the Left’s bottomless ranks of barristers, they have evolved into a cudgel, more effective than any armed force, for beating down our defenses. That cudgel is wielded under the auspices of an abstraction portentously called “the rule of law,” which in fact is simply the whim of a post-sovereign professoriate in the service of savages.

The program includes another favorite weapon: the concept of “universal jurisdiction.” The most fundamental building block of international law is the consent of sovereign nations to be bound by it. In contravention of this principle, universal-jurisdiction theory holds that certain wrongs are so heinous that the offending actors may be “brought to justice” in the courts of any country, at any time. It matters not where the offenses occurred or whether the allegedly offending nation has consented to submit to the alien court’s jurisdiction. Nor does it matter how remote — or non-existent — is the interest of the nation purporting to invoke jurisdiction.

And it’s not just a European power-grab. American courts are as responsible as any for this travesty, having revived an “alien tort” doctrine, dormant for nearly two centuries, to prosecute torture and other crimes that occurred outside our borders and affected none of our nationals. Now, as many of us have been predicting, the worm is turning. All that remains is for anti-American progressives to further pervert the “law of nations” — once finite but now endlessly malleable — so that, one by one, incidents related to national defense are judicially recognized as human-rights violations and war crimes.

So who is the heroic “human-rights” activist behind the effort to criminalize the provision of legal advice to America’s commander-in-chief? The complaint was filed by one Gonzalo Boye, whom the New York Times charitably describes as a “Madrid lawyer.” Unmentioned is how Boye came to be a Madrid lawyer. He obtained his law degree in a Spanish prison. According to reports in the Spanish press (read here), Boye, a Chilean, was a member of the terrorist Revolutionary Left Movement (MIR) when, in collusion with the ETA, Spain’s Marxist-Leninist Basque terrorist outfit, he participated in the abduction of a Spanish businessman, Emiliano Revilla.


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