It isn’t quite true these days that, to cite that over-quoted Monty Python sketch, “nobody expects the Spanish Inquisition.” Case in point: Phillipe Sands, a British lawyer with Cherie Blair’s London firm. Last year, he published a book claiming that when the Bush administration came to an end, six of the president’s top-level advisors would face charges in international court.
Sure enough, now Spanish judge Baltasar Garzon wants to charge those six senior policy advisors with “giving legal cover” to alleged torture at Guantanamo Bay, Cuba.
In a document released on March 29, Garzon names former attorney general Alberto R. Gonzales; William J. Haynes II, former general counsel for the Department of Defense; John C. Yoo, the former Justice Department lawyer who, according to the New York Times, “wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions”; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; David S. Addington, chief of staff and legal advisor to Vice President Dick Cheney; and former under secretary of defense Douglas J. Feith. Garzon charges that the men advised President Bush to ignore Geneva Conventions protocols regarding prisoner interrogation.
Based on the doctrine of “universal justice,” Spanish courts enjoy jurisdiction beyond national borders in cases involving alleged torture and war crimes. Garzon says he is filing this case in the name of five Spanish citizens, former prisoners who claim they were tortured at Gitmo.
Garzon gained international notoriety when he filed similar international indictments against onetime Chilean dictator Augusto Pinochet, as well as Osama bin Laden. The judge is also currently under investigation himself, for failing “to report that he would be paid [approximately $200,000] during a U.S. sabbatical [at New York University] while drawing his salary in Madrid.” Neither is he universally admired among the Left: Noam Chomsky and Salman Rushdie condemned the judge for shutting down the world’s last Basque language newspaper in 2003, due to its supposed, but never proven, ties to ETA terrorists.
Frank J. Gaffney Jr. is president of the Center for Security Policy and condemns Garzon’s reliance on “transnational law” to interfere with U.S. foreign policy decisions and retroactively “punish” unpopular administrations.
If Garzon’s indictment against the six former Bush administration advisors is permitted to move forward, says Gaffney, “It would criminalize internal U.S. policy-making deliberations, with profound implications for U.S. sovereignty. If allowed to run its course, this prosecution would have a profoundly chilling effect on the willingness of subordinates to provide a president with advice, or perhaps even to serve in government.”
And according to Steven Groves of the Heritage Foundation’s Margaret Thatcher Center for Freedom, the idea that this surreal Spanish indictment might be taken seriously is not beyond the realm of possibility, but he also believes the Obama administration will refuse to cooperate.
The legacy of the Bush White House is “an issue they want to put behind them,” Groves told Pajamas Media. “They are not supporting the Leahy truth commission either.”
Questions about what President Bush did or didn’t approve of during his time in office “aren’t what the Obama administration wants to focus on. They see it as a distraction.”
Beside, says Groves, to cooperate with the Garzon indictment would set “a damning precedent, the kind of thing that happens in a third-world country, where the new government punishes officials from the previous one.”
Cooperation with Garzon could come back to haunt Barack Obama, Groves points out, since four or eight years from now, another ambitious international jurist could just as easily bring similar charges against members of Obama’s circle.
Groves also points out the uncomfortable fact that President Clinton claimed universal jurisdiction in order to prosecute former Pinochet henchmen, “so we can hardly cast stones for another country doing the same thing,” although obviously, Garzon is targeting “policy wonks, not torturers.”
Should the White House “go on the offensive, they should decry these ‘politically charged indictments’ and condemn the very idea that you can bear criminal responsibility for a legal opinion offered to the president. Otherwise you will have these six officials scared to travel in Europe,” says Groves.
Both Groves and Frank Gaffney raised concerns about a development that at first seems tangential to the Garzon indictment, but in fact offers possible clues to how the new president will handle this troubling situation and others like it: Obama’s recently announced choice of Harold Koh as the top lawyer in the State Department.
Gaffney says that Koh, the dean of Yale Law School, “has been an unalloyed enthusiast for transnational law” and the “lawfare” being practiced by anti-American activists and provocateurs. A study of Koh’s writings reveals that he “favors U.S. submission to the International Criminal Court, enabling that tribunal to have the right tomorrow to take up the sort of foreign prosecutions of Americans contemplated by Spain’s Judge Garzon today.”
Gaffney points out that a number of justices currently sitting on the Supreme Court “believe that this country should be ruled by something other than the Constitution of the United States,” adding, “few of us know that such an assault on our sovereignty is afoot.” During the 2004 election campaign, Democratic candidate John Kerry famously said that American military interventions should be subject to a “global test” and was roundly applauded on the Left — further evidence that notions of “universal justice” are already mainstream among the nation’s elite.
Gaffney and Groves warn that the appointment of Harold Koh to such a high-level position would further legitimize and entrench creeping transnationalism within the American legal system.