A 'World Turned Upside Down'? U.S. Now a Judicial Target for Defending Lawful Commerce

The Washington Times (Washington, DC), April 17, 2009 | Go to article overview

A 'World Turned Upside Down'? U.S. Now a Judicial Target for Defending Lawful Commerce


Byline: John Bolton, SPECIAL TO THE WASHINGTON TIMES

The Spanish Inquisition's reawakening and the unchecked rise of piracy off Somalia may not, at first glance, seem to have much in common. In fact, however, these phenomena represent an inversion of historic Western priorities and a decline in our collective resolve and instinct for self-defense.

Sunday's daring rescue of U.S. freighter Capt. Richard Phillips notwithstanding, the West's evident confusion is causing enormously dangerous consequences.

The shared element between excessive Spanish moralism, the contemporary version, and pirates with impunity is the concept of universal jurisdiction and how that concept has been recently transmogrified.

From ancient times, it was legitimate to use military force against hostes humani generis, the enemies of mankind. Now, the high-minded not only reject that perspective, but perceive the real common enemies to be on our side of the barricades.

The Romans understood well that pirates operated beyond any legal order and that due process for pirates consisted in destroying them. Well into the 19th century, when the common enemies concept expanded to cover slave traders, law on the high seas came largely in the form of the British Royal Navy, and later our own. This naval jurisdiction derived from their global reach and their willingness to do civilization's hard work.

Today, however, under the rubric of universal jurisdiction, the Grand Inquisitor, present throughout Europe but especially active in Spain, now targets those he considers far more dangerous than pirates. Hijackers? Suicide bombers? Nuclear proliferators? No, Spanish magistrate Baltasar Garzon is stalking men in dark, pinstriped suits: six American lawyers, former Bush administration officials, who opined on the proper treatment of captured terrorists. Their crime is disagreeing with Judge Garzon's interpretation of international law, which is now apparently an indictable offense in Spain.

Judge Garzon seeks to criminalize opinions, not actions, opinions expressed inside our government, which has a democratic, constitutional heritage far older than Spain's.

Although international law acolytes offer many legal-sounding arguments for allowing publicity-hungry Spanish bureaucrats to translate their personal moral superiority into criminal prosecutions, in fact this is nothing but politics.

Merely in practical terms, Judge Garzon's investigation is bizarre. Spain is far from the purported crime scene (the halls of official Washington); it has no access to key witnesses and documents; and its courts have no more competence to decide international politico-military matters than any other courts - which is to say, not much.

Something more fundamental is at stake, especially in the targeting of U.S. officials, rather than, say, North Korean leaders who have starved their fellow citizens for generations. …

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A 'World Turned Upside Down'? U.S. Now a Judicial Target for Defending Lawful Commerce
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