Thursday, June 09, 2005


The Opening Salvo Of The Lawfare Offensive

If successful, damage to the US war effort could be immense

Mudville Gazette points to yet another important story ignored by our media:
(Spanish) Judge Santiago Pedraz will file a request for interrogation to the United States in accordance with the request established by “Journalists Without Borders.” Pedraz intends to interrogate three American soldiers, Sergeant Thomas Gibson, Captain Philip Wolford and Lt. Colonel Philip de Camp in regards to the death of Spanish reporter Jose Couso. ... Spanish Minster of Justice, Juan Fernando Lopez Aguilar, stated Wednesday that the current administration will help the judge to the extent of its capabilities. Aguilar went on to lament the United States' "resistance" to putting its soldiers under the disposition of "third country," though he stated that this is a "constant element in their foreign policy.";
This is absolutly outrageous! The Bush administration must act swiftly and aggressively to quash this nonsense, lest it set any dangerous precedents. They should make it clear that foreign judges and prosecutors have absolutely no business whatsoever investigating matters such as these and forcefully demand Spain cease all such inquires immediately. They should also make it clear to the world that any judge in any country who issues an arrest warrant for any American under these circumstances committing an act of war against the US and we will respond accordingly. The warrant-issuing judge should expect - at a minimum - to face extradition to the US, along with anyone else involved.

There is no room for compromise on this. It is absolutely vital that Bush administration handles this precedent setting case properly. Lawfare against us is inevitable and we must limit its potential scope as much as possible.

In response to several posts in the comments section:

The Lockerbie bombing comparison is faulty and my rhetoric is hardly over the top. The bombing case was a deliberate, premeditated act of terror against civilians committed by covert agents of the Lybian dictatorship. No legal system that I'm aware of makes allowances for covert infiltration of military personnel or permits blasting a civilian airliner full of people out of the sky. It was mostly treated as a international criminal matter rather than an act of war. I never cared for this approach and it seems ever more wrong with the passage of time.

The actions of the Spanish judge are unprecedented and dangerous to US interests. He is asserting jurisdiction over US military personnel deployed in an internationally recognized combat zone, the implication being that the US military legal system is incompetent, an unprecedented assertion which must be rebutted full force. Otherwise, we've conceded that foreign courts second guessing the actions of our military in this way is acceptable. Ultimately, this will lead to our foreign policies being challenged in foreign courts and the legal harassment of our citizens, soldiers and diplomats the world over.

These are the precedents I most fear. How can we possibly create military rules of engagement to satisfy hundreds of different legal systems? Or even one "international" standard defined arbitrarily by unaccountable, self-appointed authorities that may be completely at odds with our cultural and political traditions or national security necessities? Moreover, why should we have to? Whose values are most important when evaluating threats and determing how we'll defend ourselvesves? What gives individuals the right to challenge American foreign policy by harassing our citizens, soldiers and diplomats in alien courts? I could go on and on.

Think of the implications on military morale and recruiting if our soldiers have to continually fear having to defend themselves foreign courts, possibly at their own expense. Why should they be required to consult an attorney before traveling abroad or making overseas investments? Why should our citizens live with this constant threat of harassment, legal uncertainty, asset forfiture or the possibility of imprisonment? They shouldn't. It's completely unwarranted and the US should use all means at its disposal to see that they don't.

Think of just a few of the diplomatic implications. How can our country formulate effective foreign and national security policies if we are constantly defending our past actions? We will never be able to look foreward or accumulate any diplomatic capital or goodwill under these circumstancesces. Launching any diplomatic or military offensive will be tremendously more complicated, if not impossible. For example, any potential ally could be constrained by a politically motivated investigation (possibly initiated by judge in a third country) of US actions of one kind or another timed to make the domestic political cost of supporting the US prohibitive. Again, I could go on and on.

Our enemies and opponents are trying to create a new legal regime designed specifically to constrain American freedom of action. We simply cannot let this happen and must nip it in the bud. We are fighting a war and we cannot tolerate these efforts any longer. If we allow such a legal regime to come into effect, lawfare would become a legitimate and probably a highly successful tactic against us - we could be effectively paralyzed. Any action we take is bound to be legaly controversial to someone somewhere. How could we possible defeat a transnational enemy under these circumstances? And what ultimately becomes of American sovereignty?


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