Criminalizing Politics

Spanish prosecutors are considering bringing criminal charges against six former Bush Administration officials, including ex-Attorney General Alberto Gonzales. The investigation is based on a year-old complaint, but the New York Times quotes an anonymous Spanish official saying "it was 'highly probable' that the case would go forward and that it could lead to arrest warrants." This was widely reported as an attempt to sanction the alleged use of torture on Guantánamo Bay detainees.

Nonsense. The Spanish are targeting legal advice given to the Administration by its own lawyers. The complaint's first charge says (my rough translation from Spanish; Google automatic translation here):

The accused here are all American lawyers and jurists during the previous U.S. Administration, and--depending on the positions they occupied--actively and decisively participated . . . in the development, adoption and implementation of a framework or body of positive law that . . . gave legal cover . . . to protect people who participated in illegal torture.

Basically, this group of attorneys knowingly and maliciously used their legal skills to give advice that violated clear legal ethics standards (both domestic and international) and conspired to create a new code of conduct that was both morally wrong and merely a legal cloak to promote, practice and abet torture in various forms.

Douglas Feith is one of the accused; he was Under Secretary of Defense for Policy from July 2001 until August 2005. He's already on record as committed to compliance with international treaties. And his analysis of the Spanish inquisition was in Friday's Wall Street Journal:

The allegation is not that any of us tortured anyone. And it is not that any of us even directed anyone to commit torture. The allegation is that, when we advised President George W. Bush on the Geneva Conventions and detainee interrogations, our interpretations were wrong -- in the view of the disapproving Spaniards. According to the complaint, these wrong interpretations encouraged the president to make decisions that led to torture.

The Spanish magistrate apparently believes that it can be a crime for American officials to offer the wrong kind of advice to a president of the United States and, furthermore, it can be a crime punishable by a Spanish court. This is a national insult with harmful implications. . .

What if a Spanish magistrate doesn't like the legal analyses prepared by U.S. officials on other subjects, such as nuclear weapons, or the death penalty, or atmospheric pollution, or border security with Mexico? Any of these matters could be the basis for a claim by a creative European jurist that a U.S. official is taking a position contrary to international law as interpreted by right-thinking Europeans.

It seems clear that the goal of this judicial exercise is to carry a political disagreement into criminal courts and thereby to intimidate U.S. officials. If Spanish officials decide to carry the prosecution forward, then Americans who know that their views run contrary to those of various Spanish or other European activists would have to think twice about voicing those views -- or stay out of U.S. government service altogether -- if they want to avoid being threatened with arrest in Europe.

The American people can tolerate this only if they are willing to forfeit the right to make their own laws and policies. This is not a left-versus-right political issue. It is a question of preserving the American constitutional system of government in which U.S. officials are answerable for their opinions and advice to the American people -- but not to foreign criminal courts.

Which is exactly what the left wants.

Criminalizing legal advice would be crazy--among other things, it makes a hash of attorney-client privilege and undoubtedly would force future advice to be oral. The Spanish suit would be founded on supposed "universal jurisdiction" that is both nonsensical and contrary to long-standing limits to sovereignty. And then there's open questions about the scope, definition and legality of the supposed torture. So this latest anti-American effort is more evidence that transnational law groupies--who worry that U.S. Constitutionalism might be "too deeply unsettling to world order"--are nuts.

I said last year:

How America fights global terror -- including conditions of detention and methods of interrogations -- is a crucial public policy issue. It's unquestionably a legitimate topic for debate--which is why we have elections. . . but call off the lawyers.

Since then, we've held an election. And the new guy won. But that's not good enough for lefties.