Gaming Spain and Universal Jurisdiction

In the course of discussion with journalists at the Brookings Institution meeting I mentioned below, one interesting side question arose.  In the course of the debates over Bush administration lawyers, and now Pelosi and the CIA, Republicans have publicly (and perhaps increasing numbers of Democrats privately, as the Pelosi debate gains strength) argued that Democrats should be careful what they wish for in the way of referrals for prosecution, truth commissions, etc., because it could come back to bite them, too.    I’ve made the argument myself, in the New York Times Room for Debate blog; John Bolton made it a couple of weeks ago in an op ed in the Washington Post, and so have many others.

The strategic gaming weakness of this argument has always been that the threat of legal action is not necessarily symmetrical as between Democrats and Republicans.  Possibly it is in the case of purely domestic actions; possibly not.  Here, however, I want to leave aside the question of symmetrical threat in the purely domestic context – and focus on the threat that comes from abroad.  I would guess that for many pushing US domestic processes, the real threat lies in indictment or the threat of one in Europe.  Actually, I don’t guess – I’ve had the conversation many times in the past couple of years and very possibly so have you.  Someone has likely said it somewhere here on OJ – the real threat is not being able to travel abroad and that will be John Yoo’s presumably ignominious fate as the Obama administration washes its hands of protecting former officials from threats of prosecutions for their official acts.  People are pretty familiar with the argument, whatever they think of it; I unsurprisingly do not wish it well, but that is not actually what interests me in this post.

Republicans have said, with a certain ominousness, that this (meaning the threat of European prosecution) will wind up applying equally to the Obama administration as to the Bush administration.  They conceive of it as a game of tit-for-tat.  Investigate us for interrogations and, even leaving aside Pelosi, eventually “someone” – read a future Republican AG Holder will investigate you for targeted killings.  Or not the Republican AG – because when the bloom is finally off the rose of the Obama administration, Europeans might decide that targeted killing using Predators in Pakistan warrants prosecutions, similar to what Spanish prosecutors have been dancing around for some time now in the case of Israel.  Again, John Bolton said exactly this in his op ed, and I have probably said as much somewhere or other.  As Bolton put it:

[F]irm and public statements are necessary to stop the pending Spanish inquisition and to dissuade others from proceeding. The president must abandon his Ehrlichman-like policy and pronounce unequivocally that Spain should take whatever steps are necessary to stop Garzón.

Otherwise, in four or eight years, like Mary Robinson before them [re Kosovo], future second-guessers will decide, say, that U.S. drone attacks in Pakistan constitute war crimes, and that former commander in chief Obama must be hauled before the bar of some mini-state to stand trial. After all, his decisions involve risking civilian deaths, not just shoving terrorists into a wall (and no protective neck braces, either).

Will President Obama’s successor vigorously dispute the legitimacy of foreign prosecutions, or will she follow the current Obama policy and let the foreign investigation proceed, perhaps even to trial? Obama and his advisers should think carefully about that second scenario — now.

But is the Republican assertion of symmetry true?  Or, better said, is it rational as an anticipation of European behavior?  It seems like a pretty straightforward game sequence to me, and one in which Republicans are playing a weak hand if they think the game is escalating tit-for-tat.  It isn’t tit-for-tat, it’s an alliance game.  Consider:

• If Europeans target only Republicans (read Bush administration or, more broadly, the next Republican administration), then Democrats ally with them to endorse the threat of European prosecution.  The Democratic role would be to block any strong US government effort to prevent prosecution of its former officials, or USG move to force Europeans to back down from even making the threat.  
• If, however, Europeans were to adopt the arguably principled position and go after both Republicans and Democrats (e.g., Pelosi, but also Obama officials if targeted killing were the next favored subject for prosecution), then Democrats would be much more likely to ally with Republicans as Americans and block European action.
•  Result?  Europeans have much more alliance leverage if they target only Republicans and signal that Democrats and the Obama administration are exempt.  It is an instantiation of a broader point that on a variety of matters, Democrats think of their natural allies as the Europeans rather than Republicans and, for the Europeans, vice-versa (and perhaps not unrelated to Peter’s thesis about the decline of intra-American citizenship-solidarity, at least among American political elites, on certain core value and cultural issues).

Whatever one thinks of the merits of the positions, morally or legally, it is hard for me to think this is not the underlying strategic logic.  Certainly it’s what I think about every time I have offered the principled symmetry argument and wonder when someone is going to raise this obvious strategic objection.  But maybe I’m wrong about the strategic logic.  I invite comments particularly on the abstract question of the rationality, or not, of the strategy.  And also on whether anyone has any evidence one way or another to suggest that European and/or Democratic commentary or behavior tends to confirm or disconfirm the thesis.  No rants, please.