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committed on U.S. soil.  As attorneys Lee Casey and David

Rivkin Jr. point out in Commentary, the relevant case here

is Ex parte Milligan (1866).67  During the Civil War, U.S.

government officials arrested several anti-war politicians

in Indiana, including Lamdin P. Milligan.  Fearing that weak

support for the war in Indiana would lead to an acquittal by

an Indiana jury, President Andrew Johnson denied the politi-

cians a civil trial and tried them in a military court.

Milligan appealed.  The Supreme Court unanimously found in

his favor, stating, "The Constitution of the United States

is a law for rulers and people, equally in war and in peace,

and covers with the shield of its protection all classes of

men, at all times, and under all circumstances."68  Since

the military court was not "part of the judicial power of

the country" under Article III of the U.S. Constitution, its

verdict was judged invalid.  If the same legal reasoning

applies to the ICC, any ICC judgment against an American who

committed an offense in the United States will likely be

judged unconstitutional because the ICC is clearly not an

Article III court of the United States.

The Clinton Administration's Response

Wary of all of those problems, the Clinton administra-

tion has pushed for the creation of a court in which any

permanent UN Security Council member (e.g., the United

States) can stop the referral of a criminal case to the ICC

prosecutor.  But as Siddharth Varadarajan of the Times of

India points out, that position "is tantamount to granting

the US (and all 5 permanent Security Council member states)

veto rights over any investigation of war crimes committed

by itself or its allies."69  Many proponents of the court

are opposed to the U.S. position and argue that the ICC

prosecutor should be able to investigate situations on his

or her own initiative and not be solely dependent on a

referral by the Security Council.

In August 1997 the UN delegation from Singapore pre-

sented a compromise that would require the Security Council

to take an affirmative decision to delay ICC proceedings

once they had been initiated by the prosecutor's office.

The UN delegation from Canada offered an added stipulation

that the decision to stop an investigation must be renewed

every year.  In March 1998 Argentina and Germany proposed

that the prosecutor may initiate an investigation after

obtaining authorization from the Pre-Trial Chamber by show-