The Corner

The ‘American Officials Can Be Prosecuted Abroad’ Nonsense

The New York Times picks up one of the more farcical memes that has come out of the so-called torture report, namely that Americans involved in torture can be prosecuted abroad if the U.S. does not prosecute them at home. It quotes Steve Vladeck, a law professor at American University in Washington, saying, “If I am someone implicated in the torture report, I am thinking twice about traveling to Europe anytime soon.”

Well, any Obama-administration figures implicated in targeted drone attacks should also be thinking twice about traveling to Europe. This is because many European judges live in a fantasy land in which their opinion of what is illegal trumps the laws of the United States.

The NYT story focuses on what the International Criminal Court might do. But the “legal experts” quoted in the story somehow failed to mention that, unless the officials to be charged belong to a country that is a party to the treaty that created the ICC (which the U.S. is not), or the alleged crimes occurred on the territory of a country that is a party to that treaty (which is debatable in this case), an ICC prosecution can only be launched by a vote of the U.N. Security Council, where the U.S. has a veto. Earlier this year, Russia and China vetoed the referral of Syria to the ICC. And, unlike the U.S., Syria has actually and undeniably committed crimes against humanity, on a stupefying scale.

The real danger here is not the ICC, but rogue foreign judges armed with sealed indictments operating under a theory of “universal jurisdiction,” in which U.S. officials can be prosecuted in the domestic courts of, e.g., a European country. I addressed this at length in a 2009 article I wrote with Professor Jeremy Rabkin in The Weekly Standard, when a Spanish judge indicted several Bush officials for crimes against humanity:  

There is a comical aspect to Garzón’s conceit. The phenomenon of European courts crusading to enforce international norms arose partly to fill the vacuum created in countries where legal systems had been gutted by war, dictatorship, or corruption. It should be enough to point out that the American legal system functions adequately–but to put things in full perspective, it functions much better than the Spanish one. The Spanish system carries long-term case backlogs that would be a political embarrassment in the United States. American legal education is also vastly better than Spain’s. And as for rigorous legal reasoning–let’s just say that the Inquisition is not what it used to be. . . .

If Spain’s recent moves against Bush officials are problematic for Obama, Spain’s current proceedings against Israeli officials are even more so. In January of this year, another Spanish judge, Fernando Abreu, accepted a complaint alleging crimes against humanity for the targeted assassination by Israel of a Hamas terrorist leader in his home in Gaza in 2002–an attack in which 14 other Gazans were killed. The implicated Israeli officials have been warned not to travel to Europe.

The problem for Obama is that the United States under his administration has been conducting identical attacks against terrorists in Afghanistan and Pakistan with no more concern for collateral casualties. Now he has to worry that his own advisers and officials might be unpleasantly surprised by sudden arrest warrants when they travel to Europe.

Democrats have in recent years grown fond of using the legal arguments of foreigners, even foreign enemies, to increase their leverage against domestic political opponents. . . .

In the end what the Garzón case highlights is the need for bipartisan vindication of U.S. sovereignty. The Spanish courts are not trying to punish Bush officials for personal or even partisan misconduct. They are seeking to punish official U.S. government conduct in the course of public duties carried out within the world’s most legalistic and transparent system. Worst of all, those officials are being targeted not for decisions they made themselves, but only for what they are alleged to have believed at the time. If Spanish courts start treating heresy as an international crime, Republican officials won’t be the only ones facing indictment.

The Spanish case against the Bush officials was eventually dropped and Garzón was subsequently disbarred from practicing as a judge in Spain for unrelated reasons. It should be noted that many European countries have since passed laws limiting the reach of their judges operating on the basis of universal jurisdiction.

But just to be sure, Congress should pass a resolution characterizing any such prosecution of a current or former U.S. official as an act of war against the United States, and authorizing the use of force to rescue any officials detained in Europe. John Kerry has some really nice houses in Europe – it would be a shame if he can’t spend some time there after he’s done being humiliated by the White House.

This entire interrogation-report fiasco seems to have totally backfired on Senator Diane Feinstein, outgoing chairman of the Senate Intelligence Committee, which released the report on a party-line vote — a fact that in and of itself calls the report’s credibility into question. A vendetta against Republicans turned into a vendetta against Obama’s own CIA. Absolutely nothing will come of it beyond the spectacle of Democratic infighting, and the opportunity for Bush officials to once again make the case that they did the best they could under novel and difficult circumstances — this time with Obama officials in support. In fact, the White House has already contradicted Senator Feinstein on one key point: Obama’s press secretary said yesterday that it’s “unknowable” whether the intel gleaned from enhanced interrogations could have been obtained otherwise. 

Mario Loyola — Mr. Loyola is a research associate professor and the director of the Environmental Finance and Risk Management Program at Florida International University and a senior fellow at the Competitive Enterprise Institute. From 2017 to 2019 he was the associate director for regulatory reform at the White House Council on Environmental Quality.


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