Stardate 20020930.0512

(On Screen): They still don't get it. The Europeans still show no sign of understanding what the Bill of Rights means to us.

The EU has been working hard on trying to find some sort of compromise with Washington on the International Criminal Court, because the US has been going around making bilateral agreements with various nations, some candidates for EU membership, that those nations will not prosecute any American in the ICC.

The guidelines also include a guarantee from the United States that Americans accused of abuses will at least be tried in their own country and that there would be no reciprocal immunity for citizens of ICC signatories.

Sorry, we cannot promise to try civilians just because someone in Europe says so. May I introduce you to a very good friend of mine? It's the Fifth Amendment, and it says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.

A Grand Jury has to actually see sufficient evidence to demonstrate a good reason for trial, and the indictment it brings must be for violation of US or State law. No American court can try someone for violating a legal code enacted in Europe which has not been passed by Congress and signed by the President, nor can anyone be tried without an indictment.

We can promise a Grand Jury investigation, but we cannot promise a trial. The decision about trial is up to the Grand Jury.

The problem is and always has been that the charter of the ICC may include clauses that make "illegal" things which under US law are not illegal. (It already contains several such.) If an American is accused of such a "crime" and sent here, no trial can take place. No Grand Jury would return an indictment, because no crime under Federal or State law could be shown to have been committed, and the ICC charter isn't law as far as a Grand Jury is concerned.

Why are the Foreign Ministers of the EU member nations having such a hard time understanding the idea that we cannot and will not compromise on constitutional guarantees of rights?

One diplomat said the compromise plan may appear to be a climbdown, but it demonstrated the EU's ability to forge a common position on a thorny foreign policy issue.

"Without this Britain and Italy might have gone their own way. How unified would we have looked then?" the diplomat said.

So they courageously compromised on the idea that the US Bill of Rights is an inconvenient archaism that should be run through a shredder.