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An America Above the Law
15 October 2001
When George Bush Senior went to war over Iraq's invasion of Kuwait, he secured a mandate from the UN Security Council. Bill Clinton didn't bother with such a resolution when he decided to bomb Belgrade, and now the United States, although easily winning a vote at the Security Council condemning the attacks on New York and Washington, has decided not to ask for a resolution authorizing its bombing of Afghanistan.
Commentators the world over have been hailing the end of American isolationism. But peel off the outer skin and the same old America of the last decade is there - doing what it thinks is right, the way it wants, interpreting the laws of the world community as it sees fit, and then having the gall to say - which at least it didn't before this crisis - If you are not with me you are against me. Washington has failed to see that it would gain much more support from Saudi Arabia, Egypt, Pakistan, and even Iran if it secured the backing of the United Nations for its military campaign.
America has not gone to the Security Council for authorization for one simple reason: not because it fears a veto this time but because it doesn't want to give the international community any hostages to fortune. It wants to be free of any legal precedents or constraints that might make life difficult for it on another occasion. This is a different America from the president's father's generation, which fashioned the United Nations after the savagery of two world wars and who rather determinedly, if not always successfully, pursued the goals of strengthening the UN and other international institutions and limiting the growth of nuclear weapons, their testing, and their spread to new would-be nuclear powers.
Beginning with the Clinton administration, America adopted a thoughtless, even insouciant, attitude to the old responsibilities.
Outmaneuvered and undermined by a body of opinion centered on the Pentagon and the Republican Party, President Clinton bowed and bowed again to relentless pressure from the right for the United States to pursue single-mindedly its own short-term interest.
Nothing illustrated this more than the fight over the creation of an International Criminal Court to try war crimes wherever they occur. It would be the ideal institution to try captured members of Al Qaida, who could not expect today to find a jury in America that is not prejudiced against them.
Indeed, when the idea of the court was first floated in the early days of the Bosnian war, Clinton was an enthusiastic supporter of it. Yet by the time the final statutes had been drafted and the UN assembled an international conference to approve them, the White House, overwhelmed by a formidable Pentagon campaign, was compelled to somersault on its original full-blooded support, demanding impossible changes to the statutes that would have exempted all US military personnel from ever coming under the court's writ.
Thus today we confront an America with wide Western support applying the law its way. Faced with a horrendous crime against humanity, America may try to capture Osama bin Laden, in Bush's words, dead or alive. There is no public discussion of where to try him and certainly no push by America's allies to compel it to be more forthcoming on the subject.
Indeed, one suspects that the attitude of the Bush administration is at least as careless of legal principles as was its predecessor. Clinton's national security adviser, Samuel Berger, was quoted last week in The Washington Post in an article on an earlier attempt to capture bin Laden, as saying, In the United States, we have this thing called the Constitution, so to bring him here into the justice system I don't think was our first choice. Our first choice was to send him someplace where justice is more streamlined. Three colleagues of Berger made it clear what he meant: They hoped that the Saudi monarch King Fahd would order Mr. bin Laden's swift beheading.
All this is perturbing, to say the least. It suggests to the rest of the world that the United States has no confidence in its own principles and values and that law is there to be twisted and bent to serve immediate interests.
It is this attitude that provoked Spain's leading antiterrorist judge, Baltasar Garzon (who started the legal ball rolling against Augusto Pinochet in Chile and who has been a thorn in the side of ETA, the Spanish terrorist group) to write in an article in the Financial Times last week: We should not forget that we are dealing with a horrible crime, but the response nevertheless requires due process. In its haste to eliminate Mr. bin Laden, the West seems to have forgotten this fact. And that is serious.
More than any other occasion, this is the time to apply the law, work through the United Nations, and leave behind a legacy of fair and honest international practice that will attract the rest of the world to such values. At the moment there is a real danger of large parts of the world becoming cynical if not hostile to the West's so-called commitment to the rule of law and the centrality of human rights. The West, going to war, is shooting itself in the foot.