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A Tale of Two Tribunals

11/29/01

On December 15, 2000, Sen. Patrick Leahy addressed the U.S. Senate: “I rise today to voice my strong support for the International Criminal Court….the Court is strong enough to bring war criminals to justice and provide a deterrent against future atrocities….I agree with President Clinton when he stated that, ‘nations all around the world who value freedom and tolerance [should] establish a permanent international court to prosecute…serious violations of humanitarian law.’”

Unmoved by his speech, the Senate never ratified the treaty. But as a parting gift, Bill Clinton committed us to the global tribunal with a stroke of his presidential pen - a feat accomplished by his earlier inking of Executive Order 13107 which allows for implementation of unratified UN treaties.

Fast forward eleven months. After the Sept. 11 attacks revealed that terrorists live among us, the Bush Administration recalled Washington, Johnson, and FDR’s wartime prerogative and on Nov. 15 announced the creation of military tribunals to try terror suspects. Upon hearing the news, the same senator so concerned about “serious violations of humanitarian law,” (plowing planes into buildings should qualify) immediately ascended his soapbox. But this time, instead of offering another ode to deterrent justice, he accused the White House of governing by “fiat” and the Attorney General of “setting aside our criminal justice system.” He’s holding hearings calling Ashcroft to account.

Apparently Mr. Leahy has a taste for irony. He cheers an international court empowered to try American citizens, but condemns military trials for accused terrorists. A slight contradiction? At least.

Under the ICC, once 60 nations sign on, prosecutors from nations with no notion of constitutional protection can try any action falling under the amorphous “crimes against humanity.” The immediate targets: American troops who march off in defense of their country, never guessing that the nation whose uniform they wear has signed away the right to defend them. Consider the bomb that mistakenly fell on a Kabul suburb in the early days of our Afghan operation, killing four and injuring eight. Should the global court find harm “to civilians or damage to civilian objects or widespread, long-term damage to the natural environment…[which] would be clearly excessive in relation to the concrete and direct overall military advantage anticipated,” our servicemen could be liable. Those ruling on their culpability would be chosen by the same moral beacons that dumped the U.S. off the U.N. Human Rights Commission and top the State Department’s list of “state sponsors of international terrorism.” Thus rogue states have greater power to police the U.S. response to international terror than liberals will allow our own leaders in our own country.

Judicial malfeasance is afoot, but John Ashcroft is not its author. Wartime tribunals comport with our history and transgress no constitutional constraint. Foreign terrorists accused of attacking the United States rightfully come under our jurisdiction. Conversely, the International Criminal Court subsumes our Bill of Rights, subjects our citizens to a regime with no legitimate authority over them, and cripples our ability to make war. If hearings must be had, rather than dragging the Attorney General in for a Salem-style grilling, this misbegotten treaty would be a far better subject. Sen. Leahy would merely have to reverse the headlines on his hit lists.

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