Rabkin in Weekly Standard: Reviving the Inquisition

A move last week by Judge Garzón of Spain to forward a complaint against former Bush officials to the prosecutor of Spain's national trial court sets a dangerous precedent, says Professor Jeremy Rabkin. Calling the complaint a "naked attempt to criminalize the legal advice given within the Bush administration," Rabkin terms it a "sloppy and systematic distortion of the public record."

Rabkin advises that use of international law for short-term political gains has the effect of eroding America's acknowledged sovereign rights, and he argues for bipartisan vindication of U.S. sovereignty. He cautions that if foreign intrusion into our legal system is not stopped, then antagonistic courtroom proceedings will become the next battleground for terrorists.

The New Spanish Inquisition, The Weekly Standard, April 13, 2009. By Jeremy Rabkin and Mario Loyola.

"The complaint, nearly 100 pages long, is a sloppy and systematic distortion of the public record. Among its key misstatements is the following: 'On February 7, 2002, the President signed a new memorandum in which it is established that no Taliban or Al Qaeda prisoner can be considered a prisoner of war, and therefore, to them would not be applied the guarantees contained in common article 3 of the four Geneva Conventions.'

"But the White House memorandum's finding as to prisoner-of-war status was based on the fact that both the Taliban and al Qaeda flagrantly ignore the laws of war, and the Supreme Court has turned down every opportunity to disagree. But in any case the memorandum's finding as to Article 3 had nothing to do with this: By its terms Article 3 applies only to conflicts 'not of an international character,' which the White House reasonably interpreted as a reference to things like civil war.

"The complaint further accuses Douglas Feith of authoring the 'juridical analysis' used as a basis for denying all detainees all the protections of the Geneva Conventions. This propagates one of the many false claims advanced by Philippe Sands in his book Torture Team: Rumsfeld's Memo and the Betrayal of American Values (2008). These claims have been debunked as fraudulent on the basis of the very documents and interview transcripts that Sands used in his 'research.' It is a particularly sad charge, because - as the Garzón complaint itself acknowledges elsewhere - Feith in fact had argued in favor of applying the Geneva Conventions to the Taliban generally, a recommendation that Bush accepted.

"The complaint, then, is a naked attempt to criminalize the legal advice given within the Bush administration, but the complaint's drafters can't even manage to explain what that advice was without one mistake after another. No matter. That advice is held to be the source of "all errors and crimes," as the bishop of Almería said of the Freemasons in 1815."

Read the article