Posted by MataHarley on 24 December, 2009 at 2:36 pm. 37 comments already!


It’s Chrismas Eve, and instead of sugar plums dancing in my head, I can’t get Wordsmith’s post about Obama’s latest Executive Order out of my mind. It is like a kid getting his first jigzaw puzzle… my mind twists and turns with the repercussions.

I’ve been pondering the implications… since pondering and speculation is all we can do at the moment. I’ve also been searching codification docs, old EOs, wondering if this is business as “usual” or what. I am also seeing many blogs are misinformed, thinking INTERPOL is a newly added organization to the immunity list of IOIA. Not true. So let me fill you in on a few basics.

Granting immunities under the International Organizations Immunities Act of 1945 since EO 9698 in 1946, plus various subsequent EOs adding designated organizations to that list isn’t unusual. It lies within POTUS power to alter any varying degree of that immunity under that Act. We are not talking about an infringement on the Constitutional powers by the Executive Office here. That argument should fly right out of the window.

The IOIA, from what I understand, differs from the blanket immunities granted to sovereign nations under the FSIA (Foreign Sovereignty Immunities Act) by granting immunities to the designated int’l organizations in two distinct classes: international organizations as one class, and their property and assets as the other.

Reagan’s original EO 12425 added INTERPOL… but included many limitations in the second property/asset classes – some specificially as it related to search and seizure of property, customs duties and federal internal-revenue importation taxes.

Clinton amended Reagan’s original EO, granting additional immunity not originally included for INTERPOL’s property/assets with his EO 12971 on Sept 15, 1995.

From what I can see, Obama has pretty much made it a clean sweep with his current EO, granting what constitutes absolute immunity for all INTERPOL property and assets. What this final extension of immunity does provide is a lockbox on all INTERPOL property, assets and files… well out of the reach of our country’s FOIA. This becomes even more bizarre coming from a POTUS who prefers to import enemy combatants, thereby bestowing Constitutional rights the moment they set foot on our borders, and thereby allowing courts almost unfettered access to classified intel.

So if you’re Obama, why open one door to Constitutional rights access, and slam the other Constitutional rights door shut? Or better illustrated, using McCarthy’s question… why does INTERPOL need that additional immunity?

The simple answer is… they don’t. But Obama does.

Fact is, INTERPOL’s increased immunity mitigates a great deal of Obama’s responsibility in some key areas of pesky campaign promises.

I will somewhat agree with ThreatsWatch’s Steve Schippert that this could conceivably extend to INTERPOL arrest of Americans on our soil. But if SCOTUS could conjure up Constitutional rights for those who were captured and held on foreign soils, nor were subjects of extradition, it’s going to be extremely tough for them to figure out a way to deny Constitutional rights to an American citizen, arrested on US soil by an int’l police organization.

SCOTUS examination is always a case by case examination of specific events as they relate to law. But INTERPOLs increased immunities extend to protecting them and *their* assets from search and seizures. It does not not allow them to do unConstitutional search and seizures upon American citizens solo. The stroke of an EO pen cannot usurp that unmistaken able Constitutional right… at least as it stands today.

But Schippert may have lead me to the Obama benefits as a motive when he elaborates on Obama’s lukewarm opines on the Int’l Criminal Court. Clinton signed us on, Bush removed us. Obama’s been hesitant, saying it’s “premature”. Schippert makes a good case for Obama’s delays not being related to sovereignty concerns, but “image”… a subject that this arrogant WH occupant remains consumed with daily.

Even if Obama did sign the Rome Statute, ratification by Congress is still required to cement that relationship as legal and prosecutable to the fullest treaty extent. Obama is fast running out of charisma chips with the public. His best chance for any successful ratification would be with/through the current Congress… who’s make up after 2010 is in no way guaranteed to be as acquiescent to his demands.

I also have to assume that Obama’s calculated move is not meant to be an alternative supporting intel arm of the now-defunct “war on terror”. In fact, it makes such info more removed, and more difficult to use in a military tribunal. Thus I chip away at the more obvious “no gain” motives.

But there are two possible motives gleaned after reading Curtis Bradley’s May 2002 article in The American Society of Int’l Law. This was shortly after the Bush admin had announced it’s intent not to ratify the ICC treaty. The below paragraph is what set my mind a’whirl:

Nevertheless, there may be at least two ways in which the Administration’s announcement will have legal significance. First, Article 86 of the Rome Statute provides that parties to the treaty shall “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court,” and other articles in the treaty provide that the Court may formally request even nonparties to provide assistance to the Court and to surrender suspects to the Court.

One possible effect of the Administration’s announcement will be to preclude an argument that the United States would be violating its duty not to defeat the object and purpose of the treaty if, in some future case, it rejects a request for assistance by the Court. In fact, the same day that the Bush Administration made its announcement, Pierre-Richard Prosper, the State Department’s ambassador for war crimes, stated that the Court should not expect assistance from the United States.

Another possible effect of the Administration’s announcement concerns the Court’s jurisdiction. Article 12 of the treaty allows the Court to exercise jurisdiction over the nationals of non-party countries if the crime is committed in the territory of a party country. The Administration’s announcement might remove any basis for parties to the treaty to argue that the United States, by signing the treaty, has waived objection to the trial of US citizens in this situation.

This posits two very specific avenues of benefits for a hands-off INTERPOL, and even a possible re’signatory status – even if not ratified – on the ICC treaty. The first allows this POTUS to cooperate with this int’l court system by sending Americans accused of war crimes elsewhere to stand trial, while effectively telling the nation that his hands are “tied”.

What better way for Obama to accomplish his promise to seek “justice” upon the prior administration – from President Bush to any defense department personnel in his sights – to appease his far left base, and still do the traditional Pontius Pilate washing of hands of guilt?

The second is this just may be a great dumping ground for future enemy combatants… alleviating this POTUS of the repercussions of an unsuccessful and controversial prosecution in the US federal justice system.

Both potential “int’l law” scenarios are a win win for the Obama extreme left base – a group feeling they’ve been abandoned by a “central” Obama. To this day, they thirst for Bush’s blood, and those in his administration. Obama can use the int’l court system and regulations to virtually hand them Bush’s head. Voila… a surprise campaign promise fulfilled.

As for Gitmo, for a POTUS who’s greatest skill is voting “present” and passing the buck of responsibility to others, Obama would be grateful not to fill up the cell blocks of a new “Gitmo” located on US soil if he could simply pass them off to the ICC. He again washes his hands of any ill-treatment in the hands of international authorities. If this is the case, there will be some new ROE following soon.

Time will perhaps reveal more what the Obama admin has planned with this subterfuge. Until then, were I the former admin members, I’d be keeping a watchful eye over my shoulder. But what I am most sure about is this Executive Order is not to benefit INTERPOL – who has functioned for decades without these immunities. Executive Order #13524 is all about the power of “appearing powerless” in the court of public opinion.

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