A Tale of Two Farces
Sudan's dictator roams free, but Bush officials are in jeopardy.
APRIL 2, 2009
Here's the match-up. In the right corner we have Omar al-Bashir, for 20 years the Islamist dictator of Sudan and the man most responsible for the death of hundreds of thousands of Darfuris. In the left corner we have six former Bush Administration officials who were given the task after September 11 of formulating America's response to the atrocities. Who do you think is in the greatest legal jeopardy?
This should be easy: Mr. Bashir was recently issued with an arrest warrant by the International Criminal Court for "crimes of genocide, crimes against humanity and war crimes in Darfur." More specifically, the court's prosecutor alleges that Mr. Bashir "masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity."
Yet thanks to the concept of "universal jurisdiction" (or "universal competence") the six Americans, including former Attorney General Alberto Gonzales, former under Undersecretary of Defense for Policy Douglas Feith and former vice presidential Chief of Staff David Addington, are the ones who may soon have to watch their back -- at least when they travel abroad.
That's because a hyperactive Spanish judge named Baltasar Garzón has begun the process of opening a criminal case against the six, following a complaint from a Spanish human rights group arguing they helped establish the legal framework that created the detention facilities at Guantanamo and the "torture" they allege took place there. According to the New York Times, an unnamed official said it "was 'highly probable' that the case would go forward and that it could lead to arrest warrants." In 1998, a similar warrant from Judge Garzón led to the house arrest in Britain of former Chilean strongman Augusto Pinochet, a stunt that did nothing except create a diplomatic headache for the government of Tony Blair.
This case would be absurd were the consequences less pernicious, and not merely to the former officials now in legal jeopardy. The idea that any magistrate, anywhere, is entitled to judge the legality of decisions -- or even merely the advice -- of foreign officials acting in good faith under the laws of their own elected governments makes a nonsense of centuries-old concepts of sovereign jurisdiction and democratic accountability. It also sends a chilling signal to any official, including those now in the Obama Administration, who must weigh the counsel they provide the President against the personal legal risks they may run once they are out of office because of that counsel.
Put simply, Mr. Garzón's intercession is a recipe for legal anarchy, compromised executive decision-making, and the diminution of American sovereignty. Nor does it help that the names of the would-be defendants seem to have been chosen pretty much at random: As Mr. Feith told the Times, "I didn't even argue for the thing I understand they're objecting to."
One reason Mr. Garzón may have chosen Mr. Feith is because he has been a special target of Senator Carl Levin (D., Mich.), who has all but encouraged foreign prosecutors to bring such charges against Bush officials. The goal of Mr. Levin, Senator Pat Leahy and Congressman John Conyers has been to promote the "torture" smears against Republican officials without having to take responsibility for any potential damage to U.S. security. If a foreign prosecutor or an allegedly independent "commission" does their dirty work, so much the better.
Now turn to Mr. Bashir, who on Sunday was given a warm reception by fellow leaders of the Arab League at their summit in Doha, Qatar. This is at least the second time Mr. Bashir has ventured out of Sudan since the ICC issued its arrest warrant, and it's clear he has nothing to fear from his fellow Arab potentates, none of whom have signed on to the ICC. But that only illustrates the fundamental problem of a court that has no jurisdiction in the places where the massive human rights violations it was created to punish typically take place. As for the countries that are signatories, the courts of Norway or New Zealand are more than adequate for dealing with whatever genocidaires may be in their midst.
These columns have long argued that it would be dangerous for the U.S. to become a party to the ICC. As a Senate candidate in 2004, Barack Obama offered merely that the U.S. should "cooperate" with the ICC "in a way that reflects American sovereignty and promotes our national security interests."
Now that he is President, he has larger obligations. One is to stand against foreign grandstanding that intrudes on America's rule of law. Another is to oppose Members of his own party, such as Mr. Levin, who are running political vendettas against former U.S. officials. We hope Mr. Obama will value the frank opinions of his own advisers enough to publicly condemn Judge Garzón's legal assault on honorable public servants who did their best to protect the U.S. from harm.
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