By INVESTOR'S BUSINESS DAILY | Posted Thursday, September 10, 2009 4:20 PM PT Justice: As if fighting a war in Afghanistan isn't hard enough, ambitious global prosecutors have rolled into Kabul looking to charge U.S. troops. Intentional or not, such legalism will sap U.S. morale as it did in Vietnam.
At about the time NATO's new secretary-general, Anders Fogh Rasmussen, warned NATO's European members against an early pullout, Luis Moreno-Ocampo, the top prosecutor of the International Criminal Court, whose body is charged with looking for international war criminals, announced he was looking for new "clients" from anyone with a grievance in Afghanistan.
At a briefing Wednesday in The Hague, Moreno-Ocampo said he had launched a new war crimes inquiry, seeking information about "torture" especially â€” a European obsession â€” and had already mined the human rights groups for stories. He added he was also "very open" to more information from foreign governments.
Oh, he'd been evenhanded in his Monday-morning battlefield quarterbacking of course, promising he'd prosecute both Taliban and NATO troops as moral equals.
But it doesn't take a genius to know what the spotlight-loving attorney (who once launched his own reality TV show back in Argentina) is really after: Americans in the dock as war criminals.
The atmosphere that makes a prosecutor like Moreno-Ocampo ambitious enough to go after Americans instead of a real monster like, say, Fidel Castro, can only occur when the West's will has weakened, as Rasmussen warned.
After all, if a war to defend our civilization can be reduced to a series of police-brutality cases, then Afghanistan isn't about victory.
This is underscored by Washington's conflicting aims.
Though our president has rightly boosted the number of troops in Afghanistan, he's created a climate of doubt by declaring the war on terror an "overseas contingency operation" and stating he doesn't believe in "winning." It's poison for morale and gives momentum to the kind of bureaucratic, legalistic and defeatist thinking that preceded our bitter pullout in Vietnam.
Moreno-Ocampo's entry into Afghanistan is a sign that legalism has begun to overtake victory as a goal, at a time when our Taliban foes still believe in victory.
On the battlefield, our troops are increasingly constrained by legalistic rules of engagement.
Case in point: On Tuesday, four U.S. Marines and seven of their Afghani allies walked into a well-planned ambush and were killed in the Kunar province near the Pakistani border.
"We are pinned down. We are running low on ammo. We have no air. We've lost today," Marine Maj. Kevin Williams, 37, told his Afghan counterpart, responding to the latter's repeated demands for helicopters, McClatchy Newspapers reported.
Rules of engagement condemned them to die because they couldn't get air cover.
According to McClatchy: "U.S. commanders, citing new rules to avoid civilian casualties, rejected repeated calls to unleash artillery rounds at attackers dug into the slopes and tree lines â€” despite being told repeatedly that they weren't near the village."
Meanwhile, all pullout talk condemned those U.S. troops, too.
Ground intelligence sources who might have warned them were reportedly more fearful of Taliban retaliation than convinced that American troops would be able to defend them, given the weakening will of the West. They opted to survive.
Now, the latest legalistic block against winning is an international prosecutor looking for NATO troops to prosecute.
Back in 2002, President Bush told the ICC that there wouldn't be any of that, and he rescinded the U.S. signature from the Rome Statute that would have opened the door to that. Today, there's a legal battle going on at the ICC to make U.S. troops subject to doing it and there's no signal from the White House that it will stop it.
Don't think Moreno-Ocampo won't do it. His history as a prosecutor suggests an affinity for publicity over justice, which is just what the anti-American crowd wants.
Back in 2008, he ambitiously charged a sitting president, Omar Hassan Ahmad al Bashir of Sudan, with genocide, using a public application for an arrest warrant instead of a sealed warrant. The latter would have been more likely to bring justice to Darfur's victims. He went for the TV cameras instead.
Someone like that won't hesitate for a minute to make a big show of putting U.S. troops in the dock for "war crimes" no matter what the impact in Afghanistan. That's defeat.