Why The Obama Justice Dept is reopening Controversial CIA Abuse Case

A few days ago, I asked why the Obama Justice Dept. was reopening the CIA abuse case. I wondered what they had to gain from investigating the people who kept us safe for eight years when  an overwhelmingly majority of Americans disapprove of it. There were some good suggestions in the comments. Jackstraw hinted ominously:

Hillary Clinton came out the other day and explicitly endorsed the world court and bemoaned the fact that the US is not a player in it … yet.

Today, in an NRO piece, Andrew McCarthy elaborated:

I believe the explanation lies in the Obama administration’s fondness for transnationalism, a doctrine of post-sovereign globalism in which America is seen as owing its principal allegiance to the international legal order rather than to our own Constitution and national interests.

Recall that the president chose to install former Yale Law School dean Harold Koh as his State Department’s legal adviser. Koh is the country’s leading proponent of transnationalism. He is now a major player in the administration’s deliberations over international law and cooperation. Naturally, membership in the International Criminal Court, which the United States has resisted joining, is high on Koh’s agenda. The ICC claims worldwide jurisdiction, even over nations that do not ratify its enabling treaty, notwithstanding that sovereign consent to jurisdiction is a bedrock principle of international law.

As a result, there have always been serious concerns that the ICC could investigate and try to indict American political, military, and intelligence officials for actions taken in defense of our country. Here it’s crucial to bear in mind that the United States (or at least the pre-Obama United States) has not seen eye-to-eye with Europe on significant national-security matters. European nations, for example, have accepted the 1977 Protocol I to the Geneva Conventions, while the United States has rejected it. Protocol I extends protections to terrorists and imposes an exacting legal regime on combat operations, relying on such concepts as “proportional” use of force and rigorous distinction between military and civilian targets. That is, Protocol I potentially converts traditional combat operations into war crimes. Similarly, though the U.S. accepted the torture provisions of the U.N. Convention Against Torture (UNCAT), our nation rejected the UNCAT’s placing of “cruel, inhuman, and degrading treatment” on a par with torture. By contrast, Europe generally accepts the UNCAT in toto.

As long as we haven’t ratified a couple of bad human-rights treaties, why should we care that Europe considers them binding? Because of the monstrosity known as “customary international law,” of which Koh is a major proponent. This theory holds that once new legal principles gain broad acceptance among nations and international organizations, they somehow transmogrify into binding law, even for nations that haven’t agreed to them. That is, the judgment of the “international community” (meaning, the judgment of left-wing academics and human-rights activists who hold sway at the U.N. and the European Union) supersedes the standards our citizens have adopted democratically. It is standard fare among transnational progressives to claim that Protocol I is now binding on the United States and that what they define as cruel, inhuman, and degrading treatment is “tantamount to torture.”

This is exactly why so many of us so objected to the nomination of Harold Koh to his powerful position in the State Dept.

The depressing conclusion:

Foreign charges would result in the issuance of international arrest warrants. They won’t be executed in the United States — even this administration is probably not brazen enough to try that. But the warrants will go out to police agencies all over the world. If the indicted American officials want to travel outside the U.S., they will need to worry about the possibility of arrest, detention, and transfer to third countries for prosecution. Have a look at this 2007 interview of CCR president Michael Ratner. See how he brags that his European gambit is “making the world smaller” for Rumsfeld — creating a hostile legal climate in which a former U.S. defense secretary may have to avoid, for instance, attending conferences in NATO countries.

The Left will get its reckoning. Obama and Holder will be able to take credit with their supporters for making it happen. But because the administration’s allies in the antiwar bar and the international Left will do the dirty work of getting charges filed, the American media will help Obama avoid domestic political accountability. Meanwhile, Americans who sought to protect our nation from barbarians will be harassed and framed as war criminals. And protecting the United States will have become an actionable violation of international law.

Disgraceful and despicable.