But we live in a different age. Legitimacy, it seems, and especially political legitimacy, now also issues from the point of a pen--at least that wielded by a prosecutor and judge. I have suggested that this new form of political power--clothed in the seeming neutrality of "law" and its ministers, might actually veil substantially partisan agendas, and in that effort undermine the legitimacy of democratic states. See Larry Catá Backer, The Public Prosecutor and the Subversion of the Republic: A Reverie on Senator Ted Stevens Just Past Time Rehabilitation Law at the End of the Day, April 2, 2009. When, as is sometimes the case, such power is wielded by the judicial and prosecutorial apparatus of the state (or of the international community) at the instance of concerted efforts by an international network of civil society to intervene, on behalf of their members, in the political affairs of states, it suggests a paradox and a usurpation of a different sort. By end running the political process in face of direct action through the courts, it seeks to participate in governance from a more privileged position than that accorded to other citizens or stakeholders of democratically constituted states--and ironically enough, all in the name of law and democratic principles.
But, either way asserted, this is also a very old old power, at least in the English speaking world. Its genesis can be traced to the trials of various royal personages during the late Tudor period and reached something like modern form in the judicialization of the execution, first of Charles I in 1649, after trial, and then in 1660-61, upon the Stuart Restoration, the judicialized executions of those responsible for the trial and conviction of Charles I. See Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (New York: Pantheon Books, 2005). The complexity of the issues raised--and their continued lack of conceptual resolution, were nicely described by Mr. Robertson:
In 1945 the trial of Charles I cast a shadow over the US plans to put the Nazis on trial. Churchill, an admirer of Cromwell, believed the trial had been a mistake: the King had exploited it to secure his own martyrdom. . . . So he proposed the same solution use din 1662 . . . : the top Nazis would be 'outlawed' by name and once captured would be executed as soon as their identity could be verified. Truman and his legal advisers, objected. . . . . So there was a deadlock over whether the Nazi leaders should be put on trial at all. Stalin had the casting vote, and he loved show trials--so long as every defendant was shot at the end.Id., 361. ("From this unpromising beginning, the Nazi leaders went to Nuremberg to face a new jurisdiction--that of international criminal law." Id.).
On March 17, a group of lawyers representing the Association for the Dignity of Prisoners, a Spanish human-rights group, filed a complaint in Spain's National Court against Gonzales and five other former officials, including Under Secretary of Defense Douglas Feith and the Justice Department's John Yoo, for violating international law by creating a legal framework that permitted the torture of suspected terrorists. On March 29, the complaint became public after Garzón, who had been assigned the case, sent it to the prosecutor's office for review, a step seen by many familiar with the court as a sign that the judge will soon agree to investigate the case.Lisa Abend, Will a Spanish Judge Bring Bush-Era Figures to Justice?, Time, March 31, 2009.
The Spanish judicial apparatus now seek to reach into the United States, in the name of law (as it sees it), and with a sense of the power of a judicial network now grown bolder and more full of its place in the global order, perhaps either contribute to the power of law over individuals without respect to territorial sovereignty and in the name of a policy that sees everything, including politics, subsumed beneath law. Or it might contribute to an accelerated undermining of the international order through the partisan application of apparently neutral law and legal process for political purposes--law serving as a veil over lawlessness. History has suggested both can exist simultaneous.
The Spanish eagerness to clean up American 'mistakes' suggests that both will be likely. There is both vision and arrogance in the stand the Spanish are taking. And not just in this case. "It is a step on a path that Garzón and other judges in the same court have been down many times before. Spain's National Court is perhaps the world's leading practitioner of universal jurisdiction, a legal principle that holds that in crimes of exceptional gravity, the right to render judgment is not limited to the country where the crime was committed." Id.
It took Stalin and Truman to make the modern framework of international judicialization of political action. It will take Mr. Garzón and the apparatus of the Spanish judiciary to remind us that the internationalization of politics through law continues to resemble its parents--combining the veiled lawlessness of law with a precisely drawn judicial structure and the vindication of law's form. The prosecution of the former American Administration officials--cynically calculated to bring in the middle level fish and avoid the difficulties of actions against the former President and Vice President of the United States (or even a cabinet minister--Mr. Rumsfeld) suggests the Stalinist tendencies of these affairs to generate show trials for political ends (measured in effect to cause only a calculatedly precise level of political tension).
No doubt there's a bit of strategy in aiming at Yoo and Feith (the complaint also brings charges against William Haynes, former general counsel for the Department of Defense; Jay Bybee, of the Office of Legal Counsel at the Justice Department; and David Addington, Dick Cheney's chief of staff). "Politically, going after lower-level officials is a lot more palatable than going against a former President and Vice President," says international-law professor Robert Goldman, director of the War Crimes Research Office at American University.Abend, Will a Spanish Judge Bring Bush-Era Figures to Justice?, supra. The use of the action to refine a consensus within international law of the limits of interrogation and the consequences of exceeding those limits, suggests the American tendency to contain tyranny within the superior structures of law, or at least to manage lawlessness and mitigate its effects. See Larry Catá Backer, Preserving the Sheep in Contests for Control Among the Shepard's: The Emerging Shape of International Humanitarian Law Based Management of Conflict Law at the End of the Day, March 15, 2009.
In either case, this is not the last time political figures will be brought to an obliging court, relying on available law, to apply the patina of judicial process to determinations of a political nature. And it will be political because of the discretion involved in selecting prosecutions, and the participation of global elements of civil society who, acting independently on the basis of their own political objectives, will move that action forward in the only forum in which they can assert a political power equal to that of states--the courts. In the future, the leaders of the great powers--the United States, China, Brazil, India--will have to fear prosecution for political decisions, interventions and actions as much as the occasional tyrant from small but violent states. See, e.g., Opiyo Oloya, Omar Bashir's Indictment is a Writing on the Wall, The New Vision (Uganda), March 10, 2009 ("By issuing the arrest warrant for Bashir, the ICC is flexing its muscles and telegraphing its jurisdiction over the conduct of sitting heads of state). Mr. Garzón seeks to put the heads of a number of American heads on pikes fashioned from out of international law. He should remember, as the prosecutors of Charles I did not, that the scales of this sort of justice is both blind and patient. In the process, the power relationships among states, civil society, politics and law will change. Perhaps Churchill was right; but he was no manager, and the age of the judge, even that of the national judge now detached from the state, has arrived. It is only its shape and scope that remains to be determined.