- The Washington Times - Friday, April 17, 2009

COMMENTARY:

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. What is really at risk of prosecution here is American exceptionalism, and everyone knows it, from Judge Garzon himself to the high-minded here and in Europe who long to use international law to constrain U.S. power. In fact, if any American engages in criminal behavior - as decided by our democracy - we are perfectly capable of handling it.

Nonetheless, the United States is doing a pretty good job of constraining itself, unnecessarily, self-destructively and without assistance from helpful Spanish Inquisitors.

Piracy off Africa and elsewhere, such as the Straits of Malacca, has grown recently, and the international response has been wholly inadequate. When the United States raised possible NATO action against the Somali pirates, our allies demurred for fear that military action would bring accusations in European Union judicial bodies that we are committing human rights violations against the pirates and their camp followers.

Secretary of State Hillary Rodham Clinton said that, prior to the rescue, we were consulting to see “what further steps the international community believes should be taken.” Of course, the U.N. Security Council has already authorized using force against the pirates in Resolution 1851, not that it was necessary to begin with.

Sunday’s unilateral U.S. military action (and France’s similar assault the day before), should be only first steps. Nonetheless, we still face a world turned upside down when U.S. officials, in a government doing the most globally to combat terrorism and proliferation, are subject to criminal investigations by a treaty ally, while Platonic guardians in European Union institutions protect international pirates.

Unfortunately, the Obama administration seemingly agrees philosophically with this inversion. Far from trying to correct the anomaly, the president’s docility is provocative, both to pirates at sea and pirates dressed as inquisitors.

The United States should be actively explaining to Spain that launching any formal investigation will be considered an unfriendly act, a point all Europeans need to understand. We should tell them unemotionally, but unequivocally, that this has got to stop, and now.

Similarly, the Somali pirates should be told to stop, and now, or face further military action. Dealing with pirates is not a matter of grand juries and subpoenas, for it is not a law enforcement matter. As Justice Felix Frankfurter once wrote, due process is only that process that is due, and the pirates have already had more than enough.

John Bolton is the former permanent U.S. representative to the United Nations. He is a senior fellow at the American Enterprise Institute and author of “Surrender Is Not an Option: Defending America at the United Nations” (Simon & Schuster, 2007).

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