The transnational attack on America

Andrew McCarthy:

As the U.S. government’s myriad intrusions radically transform our economy, few seem to notice the dangerous progress of the international Left’s assault on American sovereignty. Without firing a shot, transnational progressives are further along than the Soviet Union could ever have reasonably hoped to be, notwithstanding Lenin’s prescient understanding that we would willingly participate in our own demise. In the Left’s sights is the very concept of the American people’s right of self-defense.

The New York Times reports that a Spanish court is considering filing human-rights charges, and issuing arrest warrants, against former attorney general Alberto Gonzales and five other Bush administration officials. The putative defendants did not carry out a single belligerent act, conduct a single interrogation, or direct the operation of any military or intelligence agents actually engaged in hostilities.

What these former White House, Justice Department, and Pentagon attorneys did do was to wrestle with complex, largely unsettled questions about the parameters of American law. Unlike their demagogic critics, they were engaged in a serious attempt to set the margins of permissible coercion, under wartime circumstances, against detainees who flout the laws of war, who are not covered by the Geneva Conventions’ prisoner-of-war provisions, who are schooled in counter-interrogation techniques, who had just murdered nearly 3,000 Americans in a sneak attack, and who were promising more of the same.

War is a political exercise, not a legal one. The lawyers targeted by the Spanish “investigation” were not in the chain of command issuing directives to our war-fighters. They were asked to weigh in because the United States is a decent country. President Bush and the executive-branch officials who actually were in the chain of command wanted the opinion of their lawyers before making decisions about the handling of enemy combatants. But those decisions, and the orders later based on them, were not the lawyers’ decisions; they were the commander-in-chief’s. What’s more, they were political decisions, not legal ones.

For all its bombast about enforcing the Geneva Conventions, the Left has never actually wanted them honored — just cherry-picked. As written, the conventions expressly hold that disputes are to be resolved diplomatically. Controversies about compliance were never meant to be fodder for lawsuits, much less to be legal weapons in the arsenal of lawless barbarians. Had our diplomats had any inkling, when the conventions were adopted in 1949, that they were surrendering national-security decisions to politically unaccountable federal judges, let alone to foreign tribunals whose strings are pulled by perfervid anti-Americans, the conventions would never have been signed.

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The conventions were a contract, yet the transnationals are trying to turn them into what would otherwise be an invalid unilateral contract binding only on one side of a conflict. Since al Qaeda is not a signatory to the conventions it is not bound by them, but neither should be anyone in conflict with al Qaeda. Al Qaeda makes no pretense of compliance. Like all Islamic religious bigots it ignores the requirements that would put them at a disadvantage such as wearing uniforms or avoiding attacks near noncombatants.

But there is also something fundamentally wrong with the proposition that lawyers giving their interpretations of documents can be prosecuted for those opinions. This should be very shaky ground for the ACLU and other defenders of terrorist. Should they be prosecuted if their work frees terrorist who go on to engage in mass murder of US civilians? Should judges in Spain who prosecute American attorneys they disagree with be prosecuted for acting as the useful idiots of al Qaeda? In the jury of public opinion they certainly should.

What we are looking at is a leftist lawfare attack designed to second guess those in the arena after the danger has been defeated.