It’s not just Spain, apparently. The Washington Post’s Craig Whitlock finds that “European prosecutors are likely to investigate CIA and Bush administration officials on suspicion of violating an international ban on torture if they are not held legally accountable at home.”
Some European countries, under a legal principle known as universal jurisdiction, have adopted laws giving themselves the authority to investigate torture, genocide and other human rights crimes anywhere in the world, even if their citizens are not involved. Although it is rare for prosecutors to win such cases, those targeted can face arrest if they travel abroad. Martin Scheinin, the U.N. special investigator for human rights and counterterrorism, said the interrogation techniques approved by the Bush administration clearly violated international law. He said the lawyers who wrote the Justice Department memos, as well as senior figures such as former vice president Richard B. Cheney, will probably face legal trouble overseas if they avoid prosecution in the United States.
One point on which the European lawyers all agree: the release on Thursday of a set of Justice Department memoranda explicitly approving a series of torture techniques including waterboarding will make prosecution in European courts into child’s play. The Europeans also all agree on another thing: the United States has a duty to investigate and prosecute these cases, and they would all prefer that it do so.
A contrary view comes in the current Newsweek from the dynamic duo of Evan Thomas and Stuart Taylor. In their last joint effort (“What Would Cheney Do?”), they attempted to persuade readers that Barack Obama was going to “do the right thing” and continue all the national security policies of Dick Cheney, starting with the use of plenty of rough stuff with prisoners. The series of pointed attacks that Cheney subsequently launched on the Obama administration well reflects the accuracy of this prediction. This week they take on Yale law dean Harold Koh, attacking his conclusion that the Iraq War was unlawful–although it’s now difficult to find international lawyers with a different view on this point, including most of those who initially supported it. For the Newsweek pair, the fact that there was no basis for the claimed threat of WMDs apparently makes no difference and can’t be allowed to stand in the way of the Bush Doctrine. This sort of thinking has little following in the country outside of a handful of Beltway chatterboxes. Koh’s real sin according to the Newsweek writers is that he “could erode American democracy and sovereignty” by supporting adherence to international law. They ridicule the notion of universal jurisdiction for war crimes. But Thomas and Taylor miss some fundamental points, starting with the fact that no nation historically has been a more enthusiastic or aggressive advocate of universal jurisdiction than the United States, a point reinforced yesterday when a Somali teenager was hauled before a federal court in New York for acts of piracy. The prohibitions on piracy and the enforcement of the laws of war are the historical lynchpins of the universal jurisdiction concept.