Thursday, January 29, 2009

Will Democrats Pursue A Legal Jihad Against Bush?

Last year, The Wall Street Journal had an article on how a Palestinian NGO was utilizing international jurisdiction against Israeli officials visiting foreign countries:
A Palestinian nongovernmental organization, or NGO, filed suit in Madrid, seeking arrest warrants against seven former Israeli officers allegedly involved in the 2002 targeted killing of Hamas leader Salah Shehadah in Gaza. Israel's foreign ministry warned the men against travel to Spain for fear of arrest while Madrid tried to defuse the tensions.

This lawsuit is just the latest front in the anti-Israel "lawfare" strategy -- the frivolous exploitation of Western courts to harass Israeli officials. The detractors of the Jewish state are increasingly using civil lawsuits and criminal investigations around the world to tie Israel's hands against Palestinian terror by accusing Jerusalem of "war crimes" and "crimes against humanity." In the process, the NGOs also subvert and interfere with the diplomatic relations of Western countries with Israel.
But you don't have to be Israeli--or go to Europe--to be harrassed:
Last year, When Joe Kaufman, an American activist and chairman of Americans Against Hate, traveled to Texas to lead a peaceful ten-person protest against the Islamic Circle of North America outside an event the group was sponsoring at a Six Flags theme park, he was served with a temporary restraining order and sued for defamation and harassment. What is particularly troubling about Kaufman's case is that the suit was filed against him, not by ICNA, but by seven Dallas area plaintiffs who had never previously been mentioned by Kaufman, nor had they been present at the theme park. This suit currently is being litigated.
Now it seems that this kind of tactic has caught the eye of people who are intent on going after President Bush. Philippe Sands has written Torture Team: Rumsfeld's Memo and the Betrayal of American Values. On the Amazon site, one of the comments outlines the book:
In one interview with an International Judge and Prosecutor, Sands quotes them as saying the Administration Principals and lawyers' attempt in the Military Commissions Act to immunize themselves from prosecution in the treatment of detainees before the passage of the Act was stupid and may come back to haunt them. In rejecting U.S. courts oversight of their cases they open themselves up to judgment by International Commissions and Courts. It could lead to a tap on the shoulder if the Principles visit other countries, much in the same way that Pinochet was arrested in Britain for crimes committed while he was the leader in Argentina. [emphasis added]
Eric Posner at The Volokh Conspiracy addresses the issue Will former Bush administration officials be prosecuted in foreign countries? He concludes:
All of this suggests that the hoped-for foreign trials of former Bush administration officials will not happen anytime soon. But this is not to say that such trials are impossible. Pinochet’s lawyers did not expect his apprehension in Britain. European countries have independent judiciaries, and they are capable of acting in ways that their governments—which, for reasons I explained in my last post, have no interest in prosecuting former Bush administration officials—disapprove. Still, the short, undistinguished history of universal jurisdiction so far might give pause even to crusaders like Garzón.
In an earlier post, Posner writes about the potential blowback on prosecuting Bush on the issue of torture--both for Democrats at home and for Europe:
Foreign states are in a difficult position, akin to the difficult position of the Obama administration. Just as domestic prosecutions risk exposing the complicity of Democratic politicians in the Bush administration’s interrogation policies, foreign international law claims would risk a similar sort of blowback, exposing and highlighting the routine CAT [Convention Against Torture] violations of foreign states. I am not just referring to European complicity in CIA renditions. Putting aside the European countries and a handful of other countries, virtually every state in the world engages in systematic torture of political opponents, suspected criminals, insurgents, and many others. Yet the legal sanctions being imposed on Russia, China, Indonesia, Egypt, and India are zilch. These facts strongly suggest that states do not regard routine CAT violations by other states, to say nothing of section 7 violations, as sufficiently important to warrant the diplomatic resources that would be necessary to remedy them. For this reason, if Obama has strong domestic political reasons for refraining from prosecuting Bush administration waterboarders, international law will not change his mind.
Personally, I find it a bit unseemly that the left wing finds itself inspired by Islamists--whether chanting anti-Israel slogans at rallies or planning on ways to get Bush or his staff arrested overseas.

Crossposted on Soccer Dad

[Hat tip: Instapundit]

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