A reader named “Cynic” made a response to my post, The Atlantic Monthly on Yasir Arafat, which raised both a valid factual point and an argument that needs to be rebutted, to explain why it is wrong. Cynic wrote:

What is known and not discussed is that the State Department went along with the Arab League and the EU, in the 80s, and ???????elected???????? Arafat, and his PLO, as sole representative of the Palestinians.

Now had this not come about, how many lives could have been spared?
Imagine if the the families of the dead and the maimed could take legal action against those politicians/diplomats?
Maybe they could get Edwards to take this tort case? :-)

The factual point is true in the sense that governments, when faced with an insurgency movement, have to decide whether or not the insurgents have any valid claims, and if so, who can be recognized as a legitimate representative of these claims. In the case of the Palestinians, it was clear that they had some valid claims, but at the same time that all of the major organizations purporting to represent the Palestinians had been involved in terrorism. Arafat was chosen because
– (1) he and his PLO were at least rhetorically calling for peace and compromise, and
– (2) he genuinely had a significant following among Palestinians such that he might be accepted by them.
Although the decision to recognize Arafat as the leader of the Palestinians was in retrospect clearly a mistake, it was not entirely unreasonable given what was known at the time that the first Bush administration helped arrange the Madrid talks.

The danger here is in Cynic’s suggestion that U.S. officials and others could be sued for their decisions. As a matter of sovereign immunity, diplomats and others in similar positions cannot be sued in thier personal capcity for a decision to accept a foreign leader as legitimate. Were that the case, then U.S. sovereignty would be lost since officials could no longer make decisions based on what best served the national interest, but rather on the basis of what served the views of an international court and global legal activists. In order for there to a lawsuit there must be a legal system, and an international court which could haul American officials before it would put an end to the status of the U.S. as a free, sovereign state. Since our sovereignty is the whole point of Americans’ having a government, this is a principle which cannot be compromised.

And in case anyone is thinking that such a suit might respect U.S. sovereignty by being filed in a domestic U.S. court, this would violate the separation of powers principle, giving the judiciary control over foreign policy. It would therefore be unconstitutional.

Contributed by Kirk H. Sowell of Window on the Arab World, and More!