Finally, today, we get at least an attempt at an explanation of President Obama’s dead-of-night decision on December 16 to grant Interpol — the international police force — immunity from American law. (See here and here.) Unfortunately, in the habit to which we’ve grown accustomed, the Obama administration itself didn’t provide the explanation. It comes from Interpol’s secretary general, Ron Noble, via an informative report by Valerie Richardson at Human Events. (Ms. Richardson, who quotes from my posts in her story, was good enough to call me for comment; I regret that, because of the press of other business, I didn’t retrieve the message until after I learned early this morning that her story was posted.)
The biggest problem with President Obama’s immunity grant is that it came without any explanation. The administration can’t or won’t explain why a president — whose administration is notoriously indifferent to American sovereignty — suddenly decided Interpol needed to be freed from the U.S. Constitution and other American law. Certainly, Interpol was not clamoring publicly for immunity; neither Noble nor any other Interpol official was heard to suggest that American law was interfering with some aspect or other of its operations.
To his credit, Noble at least attempts a post hoc rationalization for Obama’s move. Richardson writes:
Why does Interpol suddenly need diplomatic immunity? Noble explained that when President Reagan signed the original order, the organization didn’t have a permanent U.S. staff or office. That changed in 2004 with the opening of the Office of the Interpol Special Representative to the United Nations.
The revisions bring Interpol’s U.S. office in line with its other seven international offices, all of which already enjoy full diplomatic immunity. “It’s international custom that international organization are exempt from FOIA,” said Noble. “We’re no different than any other international organization.”
That doesn’t begin to cut it. An agency’s having a permanent U.S. presence is more of a reason to bind it by U.S. law, not a rationale for immunizing it. And Interpol apparently has had no difficulty operating under the Reagan-era restraints during the five years since its permanent office opened. Moreover, as Richardson points out, Interpol is not just “any other international organization”; it is an international law-enforcement organization. As I’ve explained before, “what prevents law-enforcement and its controlling government authority from becoming tyrannical” are the constraints of law — in the U.S., such provisions as the Fourth Amendment, the Freedom of Information Act, and other limitations of the Constitution and federal law that protect the liberty and privacy of Americans.
AMERICA: JUST ANOTHER COUNTRY
Advertently or not, however, Noble does tip us to President Obama’s thinking — and to why the administration clearly doesn’t want to discuss the matter any further. The issue is what Noble refers to as “international custom”; relatedly, this is about the game known as “customary international law,” so beloved by transnational progressives.
Here’s how the game works. International-law professors, jurists, and bureaucrats announce some piety that they think everyone should follow (e.g., the death penalty is an unconscionable human-rights violation). Once enough of them have followed it for long enough (in recent years, “long enough” seems to have become “ten minutes” . . . or the time it takes to announce these new international standards), the piety is deemed — at least by transnationalists — to be universally binding. In their view, it thus becomes the obligation of every nation to fall into line, changing their laws to whatever extent is necessary to do so. That is, the sensibilities of the “international community” (i.e., the elites of the global Left) void the democratic self-determinism of the American people.
In 1983, President Reagan thought about the issue of diplomatic immunity for Interpol and decided that the agency merited limited protection but, because it was a police force, not unqualified protection. Significant privileges and immunities, he determined, should be withheld: Interpol’s property and assets should remain subject to search and seizure, and its archived records should remain subject to public scrutiny. That made good sense. If it hadn’t made good sense, Congress could have enacted corrective legislation — and surely Interpol would have complained. Everyone, however, was content, and for over a quarter-century the arrangement has worked.
Nevertheless, as Noble points out, Interpol (which is headquartered in France) has seven other international offices. As its website explains, these are located in Argentina, Cameroon, Côte d’Ivoire, El Salvador, Kenya, Thailand, and Zimbabwe. These seven countries have decided to give Interpol unqualified diplomatic immunity. By President Obama’s transnationalist lights, this means an “international custom” has been established.
Given the sovereignty concerns raised during the confirmation hearing of committed transnationalist Harold Koh to become the State Department’s top lawyer, President Obama plainly does not want to tell the American people he thinks President Reagan’s executive order needs to be scrapped because that’s not how they do it in Cameroon. So he just scrapped it and hopes, if he doesn’t tell us why, we won’t care to figure out why.
This is surely another reckless gesture designed to eviscerate America’s special status and self-determinism — to make us just one of 192 other countries, no better, no different, no superpower. The president knows that Americans don’t share his view of America, which is a big reason behind his tumbling approval ratings. Saying out loud that we need to immunize Interpol — to put it above the U.S. Constitution — in order to be more like Kenya, Thailand, Zimbabwe, etc., would not go over well. That would bode ill for the administration’s agenda to subjugate the U.S. to such transnationalist schemes as the Law of the Sea Treaty and the International Criminal Court. Better to say nothing.
POLICE MUST BE REGULATED BY LAW
Ron Noble is a superb administrator with a well-deserved reputation for competence and scruples. If every cop and prosecutor in the world were Ron Noble, we’d have no reason to be concerned about abuse. But, as I’ve said before, we don’t rely in the United States on the personal integrity of law-enforcement officials to keep law-enforcement agencies in check. We rely on the checks provided by American law. The vast majority of the police and prosecutors I’ve met and worked with over the years are very honorable — they’d never intentionally authorize an illegal arrest or search. But that said, none of us would want to see the Fourth Amendment repealed on the theory that we don’t need it to keep honest people honest.
Noble tells Richardson, “The executive order gives Interpol no law-enforcement or investigative powers to engage in activities on U.S. soil . . . [including] searches, seizures or arrests in the U.S.” He’s right — but that misses the point. The executive order removes Interpol from all constraints of American law. To hear Noble’s comment, one would assume that enforceable legal rules bar Interpol from conducting police activity on U.S. soil. But the executive order removes the enforceability of any such rules. That the order is not a positive grant of new powers to Interpol is irrelevant. The point is that the order removes the negative legal restraints that block Interpol from conducting unauthorized police activity. And it’s cold comfort to argue, as Noble does, that Interpol has a strong record of respecting its traditional limitations. It is a fact of life that when governmental agencies and bureaucracies are suddenly unconstrained, they inevitably freelance into all sorts of activities previously closed to them.
If Interpol suddenly did start conducting operations that affected the liberty and privacy rights of Americans — whether on U.S. soil or overseas — it would now be immune from the provisions of law that can be invoked against, say, the FBI or the New York City Police Department. And if any American or official American entity — a private citizen, the FBI, a court, or Congress — wanted to inquire into what Interpol was up to, it would be unable to do so. The Obama order makes Interpol’s archives and other assets unreachable by search warrant, subpoena (administrative, judicial, or congressional), or the Freedom of Information Act.
Noble is basically saying: Trust us, we wouldn’t do anything we shouldn’t do, and on the rare occasions when we falter, we are accountable. He points out, for example, that even though Interpol has had the authority since 1983 to claim diplomatic immunity for its employees who commit law violations, it has never done so. It has allowed its people to be prosecuted. He is to be commended for that; one wishes countries with full diplomatic immunity would follow his example and not invoke immunity when their rogue diplomats ride roughshod over our laws.
Still, Noble is running a police agency. We are glad to have his goodwill, but we shouldn’t have to rely on it. I trust him, just like I trust FBI Director Bob Mueller, NYPD Commissioner Ray Kelly, and the heads of lots of law-enforcement agencies. But I wouldn’t remove the constitutional, statutory, and regulatory provisions on which we rely to keep these agencies in check.
We shouldn’t remove these provisions from Interpol, either. It is an unnecessary, reckless act. That it emulates the law of the Ivory Coast does not change that, which is no doubt why the Obama administration finds itself tongue-tied.
– National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).