The Magazine

The New Spanish Inquisition

Judge Garzón launches a crusade.

Apr 13, 2009, Vol. 14, No. 29 • By JEREMY RABKIN and MARIO LOYOLA
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There is a comical aspect to Garzón's conceit. The phenomenon of European courts crusading to enforce international norms arose partly to fill the vacuum created in countries where legal systems had been gutted by war, dictatorship, or corruption. It should be enough to point out that the American legal system functions adequately--but to put things in full perspective, it functions much better than the Spanish one. The Spanish system carries long-term case backlogs that would be a political embarrassment in the United States. American legal education is also vastly better than Spain's. And as for rigorous legal reasoning--let's just say that the Inquisition is not what it used to be.

This case portends a ticklish problem for America's Democrats. During the 2008 campaign, Barack Obama abetted the impression that torture and other crimes had been committed during the Bush years. But if he thinks that waterboarding is torture, why isn't he launching prosecutions now? Because he wants to look forward and not backward? Is that a sufficient justification for casting aside his constitutional duty to see that the laws are faithfully executed? Is it a sufficient basis for casting aside international norms where crimes against humanity have been committed? Spanish courts are not likely to think so--and their interpretation of "aiding and abetting" is very expansive.

If Spain's recent moves against Bush officials are problematic for Obama, Spain's current proceedings against Israeli officials are even more so. In January of this year, another Spanish judge, Fernando Abreu, accepted a complaint alleging crimes against humanity for the targeted assassination by Israel of a Hamas terrorist leader in his home in Gaza in 2002--an attack in which 14 other Gazans were killed. The implicated Israeli officials have been warned not to travel to Europe.

The problem for Obama is that the United States under his administration has been conducting identical attacks against terrorists in Afghanistan and Pakistan with no more concern for collateral casualties. Now he has to worry that his own advisers and officials might be unpleasantly surprised by sudden arrest warrants when they travel to Europe.

Democrats have in recent years grown fond of using the legal arguments of foreigners, even foreign enemies, to increase their leverage against domestic political opponents. The Democrats' reflexive use of international law for short-term political gain is resulting in a steady erosion of America's acknowledged sovereign rights. And if Obama does not put his foot down on this new foreign intrusion into our system, a new front in the conflict with terrorists will open--in antagonistic courtroom proceedings around the world. Alas, Obama has decided to appoint as the State Department's new legal adviser Yale law school dean Harold Koh, who champions transnational law-enforcement because, as he puts it, "sovereignty has declined in importance." But that's tantamount to saying that democracy has declined in importance: Only sovereign nations can be self-governing.

In the end what the Garzón case highlights is the need for bipartisan vindication of U.S. sovereignty. The Spanish courts are not trying to punish Bush officials for personal or even partisan misconduct. They are seeking to punish official U.S. government conduct in the course of public duties carried out within the world's most legalistic and transparent system. Worst of all, those officials are being targeted not for decisions they made themselves, but only for what they are alleged to have believed at the time. If Spanish courts start treating heresy as an international crime, Republican officials won't be the only ones facing indictment.

Jeremy Rabkin is a professor of law at George Mason University and the author of Law Without Nations. Mario Loyola, a fellow at the Foundation for Defense of Democracies, is a former adviser in the U.S. Senate and at the Pentagon.