NICARAGUA'S U.S. LAWYERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00587R000200740035-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 1
• Document Creation Date: December 22, 2016
• Document Release Date: June 25, 2010
• Sequence Number: 35
• Publication Date: September 30, 1985
• Content Type: OPEN SOURCE

Sanitized Copy Approved for Release 2010/06/29: CIA-R
ARTICLE
ON PAGE
Jeane J. Kirkpatrick
N
i
WASHINGTON POST
30 September 1985
caragua's U.S. Lawyers
At the Hague, Nicaragua's case against
the United States' government continues to
display some unusual characteristics.
It is the first time-old hands say-that
lawyers and witnesses have opposed their
own country in the World Court. The court,
after all, deals with issues between govern-
ments, not persons. Heretofore, govern-
ments have relied on their own nationals to
represent them and citizens have supported
their governments. Now, Managua is accus-
ing the United States of major violation of
international law for organizing, funding and
directing the anti-Sandinista forces (the con-
tras), and for mining Nicaragua's ports.
To press its case against . the United
States government inside the International
Court o Justice, Me government of Nicara-
gua has etained an international team
headed Americans and has called Amer-
ican witnesses to support its case. This
development is the more interesting be-
cause of the issues involved and because one
o the Americans representing Nicaragua is
ram naves, a Harvard law protessor who
served as top legal adviser to tile State a-
partment during the Kennedy administra,
tion, ail of the American witnesses,
David Mac Michael, helEa
to -secret clear-
ance as a contract employee of the CI as
recent v as 1983. The other American wit-
ness is Michael J. Glennon, a professor of
law at the University of Cincinnati.
The United States is refusing to partici-
pate in the proceedings on grounds that the
issue before the court is not a'narrow or
technical legal question but U.S. policy to-
ward Central America and more specifically
toward Nicaragua. Such political questions
are not deemed justiciable by United States
courts and have heretofore not been seen a,
falling within the jurisdiction of the World
Court. The issue, U.S. attorneys insisted,
is an inherently political problem that is not
appropriate for judicial resolution." This
gives the unprecedented role of the Amer-
ican lawyers and witnesses on the Nicara-
guan team an additional political dimension.
What are they doing there?
Prof. Glennon claims that he is "acting in the
highest tradition of the American people" and
that he had "a responsibility to make available
relevant information in his possession." How-
ever, he does not explain how he acquired the
responsibility or to whom it is owed.
It is possible that the attorneys believe that
representing Nicaragua before the World
Court is no different from representing an ac-
cused criminal before an American court. But
it seems unlikely given the broadly political
character of the issues involved.
It is also possible that the Americans' in-
volvement on Nicaragua's team is simply
one more affirmation of the American faith
that political problems between nations can
be settled by supranational judicial means.
However, this too is'unlikely.
Real naivete is required to believe that the
International Court is today a nonpolitical
body. Its judges loosely "represent" the
world's various political and regional groups.
They are nominated by the U.N. Security
Council and are elected by one of the world's
most political bodies, the General Assembly of
the United Nations. Fewer than one-third of
the nations of the world accept the court's
jurisdiction. Almost all of that one-third have
filed reservations limiting jurisdiction. On non-
technical questions, the court's views broadly
reflect the politics of the General Assembly.
But if Chayes and his colleagues do not
believe that the World Court can be counted
on to function nonpolitically, what then are
they doing?
I believe that they along with the Nicara-
guan government are seeking to change U.S.
policy and that they regard their appearance
before the court as it legitimate act to that
end. Chayes said as much when he noted that
U.S. policy toward the Sandinistas is "under
continuous discussion" and that an "authori-
tative statement" by the court could affect
the debate (The Washington Post, Sept. 8,
1985). What should the rest of us think of
this form of political action?
We regard it as legitimate for Americans to
represent a foreign government's interests in
Washington, provided that they register as
agents and otherwise obey our laws. But the
Washington lobbyist for a foreign government
seeks to influence American policy directly as
it is being made, while counsel and witnesses
for Nicaragua cooperate with a foreign gov-
ernment to undermine the legitimacy of exist-
iltg U.S. government policies. They do this in
the name of "higher" loyalties that presum-
ably override a citizen's obligation to support
decisions made through normal democratic
processes. Glennon invokes these "higher"
values when he claims to act in the "highest
tradition of the American people."
Does such a tradition exist?
We may be in the process of forging one.
Traditionally, citizens of a democracy have it
right to participate in making policy and an
obligation to accept the resulting decision.
Acceptable political behavior in a democracy
has not featured collaboration with foreign
powers in the policy process. However, the
boundaries of acceptable political action and
STAT
of dissent were stretched during the Vietnam
war by those who marched under the Viet
Cong flag and worked on North Vietnam's
behalf. Boundaries are being stretched again
in the Hague. And elsewhere.
More and more actual and potential ad-
versaries are invited into our political
process-Hezbollah hijackers, Sandinista
ministers, Soviet spokesmen, whomever.
We have put our foot firmly down on a slip-
pery slope where distinctions between one's
country and its adversaries, citizen and
alien, loyalty and disloyalty fade and disap-
pear. And any side is made to seem roughly
equivalent to any other. It is all relative.
Or is it?
In the effort now under way at the Hague.
the government of Nicaragua seeks to deprive
the United States of control over important
aspects of its foreign policy. It is curious that
such a course would appeal to Americans.
w 1985. Los Angeles Tlnte* syndicate
Sanitized Copy Approved for Release 2010/06/29: CIA-RDP91-00587R000200740035-3