THERE WAS AN UNCOMFORTABLE PAUSE in the three-way telephone conversation between Chief White House Legal Counsel Birnbaum, the Deputy Solicitor General, and the Chief Counsel for the Secretary of State.
“I know this is a sensitive issue—very touchy and very volatile—but I think we have to bring it up. What’s the president’s approach going to be on implementing the American Serviceman’s Protection Act?” the State Department counsel asked.
There was another pregnant pause, and Birnbaum cleared his throat. Then he started in.
“Okay. Let’s address the ASPA. I think…” he cleared his throat again. “I think the president is of the mind not to use the full authority he has under the ASPA. At least not yet.”
“In other words, what you’re telling us is, the president is not going to send troops into The Hague to shoot up the prison and effect the rescue of Colonel Marlowe?” the Deputy Solicitor General said sardonically.
“Let me assure both of you,” Birnbaum continued, “that the president believes that he has the authority to do exactly that under the specific provisions of the American Serviceman’s Protection Act. The language is very clear in the supplemental appropriations bill that was signed into law in August 2002. And we believe that it provides the president with all the authority he needs to, and I quote from the language of the act, ‘free any citizen of the U.S.…being held’ by the ICC in The Hague. The language is clear. Direct. And unambiguous.”
“But of course, there are national political and geopolitical problems he has to deal with in using that authority,” the State Department legal counsel said.
“How about the president’s authority under the ASPA for a less drastic remedy? The Act also provides that the United States may withdraw military assistance from Mexico because of their participation in the ICC.”
“Well, let me just tell you State’s position on that,” the legal counsel from the State Department said. “There’s been a political sea change down there. First, there’s the protest Mexico made back in 2003 over our executing three Mexican citizens convicted of murder. But then there’s the fact that the Independent Revolutionary Party may well beat the sitting president in the next election. And they are vehemently anti-American. They don’t care about military assistance from the United States. As a matter of fact, they want to kick all our DEA agents out.”
“Not only that,” Birnbaum added, “but there’s also the whole oil bonanza issue down there.”
“Oil bonanza?” the Deputy Solicitor General asked.
“Well, let me put it to you this way,” the White House counsel continued. “Our intelligence has substantiated a massive deep-water oil discovery off the shore of Mexico. Our neighbor to the south is about to become the second Saudi Arabia. And I’m sure each of you received the briefing memo yesterday, indicating how this case might be impacted by the OPEC oil embargo. The American public is going to freak. And here we have a potential oil partner in Mexico, one who could rescue us, in terms of oil supply, over the next few years. So, just exactly how hostile are we going to get against Mexico over one United States Marine Corps colonel?”
“Well, that’s more than a rhetorical question,” the Deputy Solicitor General noted. “Do we want to sacrifice our potential oil-trading relationship with Mexico over one American colonel who is on trial for war crimes because he was hunting down terrorists—terrorists, I might add, that tried to kidnap our Secretary of Commerce? I didn’t hear anybody venture an answer on how that equation is going to play out.”
There was another pause in the conference call. Finally, Birnbaum broke the silence.
“My friends, I just give legal advice to the president. That is both the limitation, and the consolation, of my job. Ultimately, this may be a matter for the president—and the president alone—to decide.”
The three government lawyers had all heard the same thing, though it was never said in so many words. As the diplomats, the lawyers, and the bureaucrats scrambled to make the best of a difficult situation, the granite-hard reality of politics—with its inexorable gravitational force—would ultimately take over.
And when that happened, despite all the head-shaking, regretting, and lamenting, the irresistible temptation would be to find the ultimate political antidote.
A sacrificial lamb. Perhaps even one that used to wear a uniform.