No War Crimes Trials

In the comments on a post on another blog, I was challenged with the following question, which while fringy in origin strikes me as being the sort of thing which requires a post-length answer if it’s going to be answered at all. (I’ve put together the content of a couple comments in the following summation.)

Given the statement by president-elect Obama’s incoming Attorney General that waterboarding is torture, shouldn’t one want to see “everyone in the Bush administration who authorized torture” sent to the Hague to stand trail for war crimes?

My short answer is, “No.” And I think there are a number of interesting reasons for saying this.

1) To start out, I think the whole idea of an international war crimes tribunal is troublesome and overused. We created the structure in the wake of World War II because we wanted to be able to hang Nazis and Japanese leaders without seeming like we were simply engaging in victor’s justice. And yet at a practical level, we pretty much were engaging in victor’s justice. (Which is not to say that those hung did not, in the main, deserve it.) I’m a lot more comfortable with individual countries being responsible for justice (as Iraq did with Hussein) than I am with attempting to administer it on an international level. Further, there’s a slightly dangerous prescident with our history of trying local strongmen such as Milosevich: It drastically increases the incentives for rulers who behave badly to hold onto power by any means necessary. Galling though it may be, it may well be best except in the most extreme circumstances to allow ex-dictators to retire on their Swiss bank accounts rather than prosecuting them for war crimes. So even apart from the question of applying such justice to the Bush administration, I’d question the wisdom of having an international tribunal at all.

2. War crimes are generally considered to be violations of the “laws of war”, which are considered to be in force during conventional conflicts between recognized countries. The half dozen or less people waterboarded and otherwise subjected to extreme forms of interrogation were not soldiers of a legitimate state, they were stateless terrorists. So it’s highly questionable that one could even define those acts as “war crimes”.

3. When it comes to severity, the “crimes against humanity” of which the Bush administration can be accused with any seriousness are peanuts on the world scale. 4-6 presidents over the last century could probably be accused of worse. While we certainly strive to avoid all wrongs when prosecuting a war, it’s pretty standard for even the “right” side to do wrong things. And it seems to me that if we are to have engines of international justice, they should only be used in the most incredibly egregious circumstances (as was done after WW2) not every time anyone does something wrong. Just because something is wrong does not necessarily mean that one must prosecute it as a crime — something I think applies at all levels of society.

4. We have never yet reached a point where a presidential administration has turned around and prosecuted key members of its predescessor. To move in that direction would, I think, signal a very bad turn for our country. Looking at other historical examples, the Roman Republic especially, once the machinery of justice starts being used to take revenge on one’s political opponents (and I think given the relative severity of the Bush administration’s actions, as discussed above, one could not think of it as anything other than political revenge to ship people off to the Hague) the country comes apart very quickly. (One of the key reasons Julius Caesar marched his armies on Rome was because his political opponents refused to grant him the traditional immunity from prosecution for his actions while consul, and planned instead to try him as soon as his legal term in office was over.)

If anyone thinks this analysis is overly partisan, seeing as I am a Bush supporter (given the alternatives), ask yourself: Why is it that the incoming administration shows absolutely no interest in prosecuting the Bush administration? I’m pretty sure that the answer is that they are smart, and have exactly the above concerns in mind.

16 Responses to No War Crimes Trials

  • Just because something is wrong does not necessarily mean that one must prosecute it as a crime — something I think applies at all levels of society.

    Unbelievable! What a telling line. You are using EXACTLY the logic of pro-choice america here, PRECISELY to provide an escape from criminal consequences for war crimes including the direct and willful killing of innocent persons which THE CHURCH KNOWS is just a morally grave as the killing of babies in the womb. Aside from the other disgusting, glaring moral mistakes you make in this post from a Catholic point of view, this is perhaps the most severe and transparently demonstrates your double-standards and obvious non-commitment to anything remotely resembling a “pro-life” position.

    I dunno… hard to say which is the most severe. That, or your idiotic notion that war crimes committed against non-soldiers don’t matter as much. Um, the definition of war crimes INCLUDES crimes against non-soldiers.

    We have never yet reached a point where a presidential administration has turned around and prosecuted key members of its predescessor. To move in that direction would, I think, signal a very bad turn for our country.

    Or maybe this idiotic idea, that countries should always “stay the course” and never fix their problems. My country, right or wrong is essentially what you are saying here.

    f anyone thinks this analysis is overly partisan, seeing as I am a Bush supporter (given the alternatives), ask yourself: Why is it that the incoming administration shows absolutely no interest in prosecuting the Bush administration?

    The fact that the Obama administration does not want to prosecute Bush does not mean that their reasons are the same as yours.

    This has to be one of your most outrageous and poorly thought-out posts yet.

  • And what the hell do you mean by “fringy in origin”??

  • And what the hell do you mean by “fringy in origin”??

    As in, it’s only the most politically fringy elements who have suggested with any seriousness that members of the Bush administration be tried for war crimes.

    Unbelievable! What a telling line. You are using EXACTLY the logic of pro-choice america here

    Actually, no. Pro-choice advocates generally insist that abortion isn’t wrong, not that it is but shouldn’t be punished. And actually, the “wrong but not punished” point is one normally used by pro-lifers when talking about how to outlaw abortion — except in a few rather extreme cases. Few people suggest life in prison or execution as the penalty for abortionists and women who abort their children. Generally it’s just suggested that abortion be banned as a medical procedure. This means that pro-lifers are also advocating not prosecuting a crime to the fullest extent possible.

    PRECISELY to provide an escape from criminal consequences for war crimes including the direct and willful killing of innocent persons which THE CHURCH KNOWS is just a morally grave as the killing of babies in the womb.

    The question I was addressing was whether members of the administration should be tried for waterboarding a half dozen terrorists in Guantanamo. That was what I stated in post. If you wanted me to write a post about addressing another situation, you could ask. But this post is about whether Cheney and such should be tried for authorizing waterboarding of “enemy combatants” — which if they were POWs would be against the Geneva Conventions.

    Or maybe this idiotic idea, that countries should always “stay the course” and never fix their problems. My country, right or wrong is essentially what you are saying here.

    No, I’m saying it’s bad for a country’s stability when the engines of justice are used as a political weapon. Perhaps as an anarchist you think the common good is served by a country collapsing into civil war, chaos, or dictatorship, but since I’m personally against those things I think there’s a very strong case for being prudent about these things.

    The fact that the Obama administration does not want to prosecute Bush does not mean that their reasons are the same as yours.

    Well, that’s certainly true. Do you have another theory?

    This has to be one of your most outrageous and poorly thought-out posts yet.

    Given how incorrect I generally find your political and moral thinking to be, I have to admit I find that somewhat encouraging. Perhaps I’ve written something truly reasonable!

  • “No, I’m saying it’s bad for a country’s stability when the engines of justice are used as a political weapon.”

    Quite right Darwin. As you pointed out prosecutions for political purposes were one of the prime factors in the fall of the Roman Republic. Once members of poltical parties realize that losing an election also means losing one’s life and liberty, it is a very short step to civil war.

  • As in, it’s only the most politically fringy elements who have suggested with any seriousness that members of the Bush administration be tried for war crimes.

    Simply not true.

    No, I’m saying it’s bad for a country’s stability when the engines of justice are used as a political weapon.

    So you’re assuming that anyone interested in prosecuting Bush for war crimes is doing so as a “political weapon” and is not interested in justice. That quite the easy way to dismiss the idea without at all taking seriously the crimes of the Bush administration. Why would folks interested in prosecuting Bush be interested in using a “political weapon” against him, apart from the actual context of his administration? Do you think those who oppose Bush simply don’t like how he looks? Don’t like his ties? Don’t like Texans? Are you nuts? People who oppose Bush oppose him because of his policies which have killed thousands upon thousands of innocent human beings. You need to take that seriously in your moral reasoning, and you don’t. To you, some human beings simply don’t matter.

    Could you just admit that you don’t actually think the Bush admin. committed war crimes. THAT’s why you don’t think he should be prosecuted for any. Right?

    Given how incorrect I generally find your political and moral thinking to be…

    Perhaps as an anarchist you think the common good is served by a country collapsing into civil war, chaos, or dictatorship, but since I’m personally against those things I think there’s a very strong case for being prudent about these things.

    If that’s how you characterize my “political and moral thinking” (being in favor of civil war, chaos, and dictatorships) then you have no idea what anarchism is, nor have you read any of my comments very closely. In fact, if you think I am in favor of any of those three things, it would be entirely fair to say you are incredibly… what other word is there but stupid.

  • Michael,

    You are using EXACTLY the logic of pro-choice america here, PRECISELY to provide an escape from criminal consequences for war crimes including the direct and willful killing of innocent persons which THE CHURCH KNOWS is just a morally grave as the killing of babies in the womb.

    1. This is incorrect on it’s face in that the Church recognizes that abortion and euthanasia are the most grave evils becuase they are an attack the most innocent by those who should be protecting them. This is found in many documents, particularly “Evangelium Vitae”:
    58. Among all the crimes which can be committed against life, procured abortion has characteristics making it particularly serious and deplorable. The Second Vatican Council defines abortion, together with infanticide, as an “unspeakable crime”.54

    But today, in many people’s consciences, the perception of its gravity has become progressively obscured. The acceptance of abortion in the popular mind, in behaviour and even in law itself, is a telling sign of an extremely dangerous crisis of the moral sense, which is becoming more and more incapable of distinguishing between good and evil, even when the fundamental right to life is at stake. Given such a grave situation, we need now more than ever to have the courage to look the truth in the eye and to call things by their proper name, without yielding to convenient compromises or to the temptation of self-deception. In this regard the reproach of the Prophet is extremely straightforward: “Woe to those who call evil good and good evil, who put darkness for light and light for darkness” (Is 5:20). Especially in the case of abortion there is a widespread use of ambiguous terminology, such as “interruption of pregnancy”, which tends to hide abortion’s true nature and to attenuate its seriousness in public opinion. Perhaps this linguistic phenomenon is itself a symptom of an uneasiness of conscience. But no word has the power to change the reality of things: procured abortion is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth.

    The moral gravity of procured abortion is apparent in all its truth if we recognize that we are dealing with murder and, in particular, when we consider the specific elements involved. The one eliminated is a human being at the very beginning of life. No one more absolutely innocent could be imagined. In no way could this human being ever be considered an aggressor, much less an unjust aggressor! He or she is weak, defenceless, even to the point of lacking that minimal form of defence consisting in the poignant power of a newborn baby’s cries and tears. The unborn child is totally entrusted to the protection and care of the woman carrying him or her in the womb. And yet sometimes it is precisely the mother herself who makes the decision and asks for the child to be eliminated, and who then goes about having it done.

    It is true that the decision to have an abortion is often tragic and painful for the mother, insofar as the decision to rid herself of the fruit of conception is not made for purely selfish reasons or out of convenience, but out of a desire to protect certain important values such as her own health or a decent standard of living for the other members of the family. Sometimes it is feared that the child to be born would live in such conditions that it would be better if the birth did not take place. Nevertheless, these reasons and others like them, however serious and tragic, can never justify the deliberate killing of an innocent human being.

    The Holy Father cautions against attempts to diminish the the seriousness of abortion relative to other evils.

    2. This is incorrect because there is no evidence that the US ever intended to cause the death of innocent persons, and clearly have taken massive and extremely risky steps to avoid that. Do you really believe that if the US had used it’s airpower indiscriminantly against Iraq that there would be ANY people left alive in Baghdad??? Are you unfamiliar with the extent of damage that can be caused by even conventional weapons? The largest US conventional weapons would kill aroun 10,000 people per strike in a city like Baghdad. It is clear that civillian casualties were not intended.

    That, or your idiotic notion that war crimes committed against non-soldiers don’t matter as much. Um, the definition of war crimes INCLUDES crimes against non-soldiers.

    You are deliberately misinterpretting Darwin’s point, yet he shows incredible restraint in the face of such an offensive response. Obviously offenses against non-combattants are war crimes, on the other hand actions against unlawful combattants are not war crimes as such, terrorists are not protected by the Geneva Convention for several reasons nor would they be afforded the same protections under natural law:

    1. They are not signatories to the Geneva Convention so by definition it does not apply to them.

    2. Morally they are murderers and not soldiers, they also have information on future terrorist operations.

    Of course they are still protected by natural rights, but most natural rights are not absolute. They can be punished (unlike POWS who can not be punished) for their actions, and they can be compelled to reveal informations about terrorist attacks (unlike POWS who can not be compelled to reveal any information beyond their identity). The means to compel them to reveal information is limited by morality of course, but it is not clear which particular means would be moral and which would not. The Obama nominee for AG is not a definitive source for such conclusions, nor has the Church declared any of the means authorized by George Bush to be immoral. No declaration by a competent authority has declared these means to be illegal… period.


    Darwin:
    As in, it’s only the most politically fringy elements who have suggested with any seriousness that members of the Bush administration be tried for war crimes.

    Michael:
    Simply not true.

    Stunning response. Cite one non-fringy element that is proposing prosecution?

    People who oppose Bush oppose him because of his policies which have killed thousands upon thousands of innocent human beings. You need to take that seriously in your moral reasoning, and you don’t. To you, some human beings simply don’t matter.

    What a foul thing to say about a fellow blogger. With such a stunning regard for innocent human life, I trust that you opposed Obama because the policies he has enacted (via legislation), supports, and promises to enact which kill millions upon millions of unborn babies….

    God Bless,

    Matt

  • I think ideally that legal violations committed by outgoing administration officials would be prosecuted like other legal violations. But that’s not how it works in the U.S., and I think there are very sound reasons for this.

    The first is that changes of power are traumatic enough without the threat of punishment for those leaving office. The second is that it would be difficult to ensure just and impartial investigations in the type of frenzy such trials and prosecutions would cause. The third is that a precedent of prosecution would create a number of undesirable incentives prior to the transition for every ensuing administration (e.g. purging records, or even resistance to the transition in worst cases). And notice, the worse an administration was ethically, the more incentives they would have to engage in these behaviors.

    There may be some circumstances where such prosecutions were necessary; but waterboarding of prisoners signed off on by the leaders of both parties (high ranking Democratic congressional officials signed off on these methods also), does not approach that threshold imo. Particularly when placed in the context of the last half century of U.S. history, when many of the Presidents have signed off on analogous tactics without even the mention of prosecution. It would be great in the abstract if every crime was punished fairly (and that we had fair laws for punishing them), but that’s not the world we live in. Sometimes we don’t prosecute people who have broken the law because it might do more harm than good. That does not mean we condone their actions, or shouldn’t condemn them; it means that in practice we’ve made the prudential judgment that prosecuting some crimes is not beneficial to society (as Augustine observed about prostitution).

  • I was hearing some interesting reports today, apparently the practice of extraordinary rendition originated under Bill Clinton, when the great one’s Secretary of State was the First Lady, his AG (the one who now declares water boarding a crime) was deputy AG, and his CIA director was chief of staff and his Treasury Secretary (head of the IRS) was evading taxes (alright this last one has nothing to do with torture, but it’s a riot).

    http://www.fas.org/irp/offdocs/pdd39.htm

    I guess if we’re hauling in G W we should add Bill Clinton, and his administration too? Of course, that would leave Obama’s administration a little light.

    Oh, and since, as pointed by John Henry, that the Democrat house and senate leaders all signed off, then they should be charged as well.

    God Bless,

    Matt

  • What a foul thing to say about a fellow blogger.

    Wasn’t aware that there was some kind of blogger’s fellowship code to which I need to adhere. Is there a handshake?

    Seriously. It ain’t “foul” if it’s true. I would not hesitate to tell a “fellow blogger” who had utter disregard for unborn human life that some human beings simply didn’t matter to him or her. And I don’t think you would have a problem with me saying it.

    In the case of DC, it’s not “foul” because it is simply true. If the human lives involved mattered at all to him, he would clearly denounce the actions of George W. Bush. There is no possible way to deny the utter disregard and willful destruction of human life that his administration has been responsible for (in the tradition of a long line of “fine” presidents, but clearly in a class by himself). He is more concerned with defending Bush than he is defending human life.

    With such a stunning regard for innocent human life, I trust that you opposed Obama because the policies he has enacted (via legislation), supports, and promises to enact which kill millions upon millions of unborn babies…

    I certainly did oppose and still oppose Obama when it comes to his views and his policies on abortion.

    I guess if we’re hauling in G W we should add Bill Clinton, and his administration too?

    I am all for adding Clinton to the list.

  • Michael,

    just because you disagree with someone’s interpretations of a leaders intentions doesn’t justify accusing him of such grave immorality as to not care for human life. That accusation is completely baseless.

    With such a stunning regard for innocent human life, I trust that you opposed Obama because the policies he has enacted (via legislation), supports, and promises to enact which kill millions upon millions of unborn babies…

    I certainly did oppose and still oppose Obama when it comes to his views and his policies on abortion.

    But since he agrees with you on lesser issues, you’re happy that he was elected?

  • Its simple: there won’t be a trial or investigation because the Democrats will want the same wiggle-room to immorally use their power.

    The surprise of this next year will not be how much changes…it will be how little things change. The first 100 days will be full of superficial bones thrown to the liberal base.

    Its why there has been no investigation to into wire-tapping and other post 9/11 decisions- it would reveal the Democrats (like Pelosi) to be complicit in the government’s disregard for civil rights/liberties.

  • But since he agrees with you on lesser issues, you’re happy that he was elected?

    “Happy”?

  • clearly in a class by himself

    Ever heard of FDR?

  • I think John Henry’s comment above does a good job of summarizing and expanding on my view. I’d especially highlight his point:

    There may be some circumstances where such prosecutions were necessary; but waterboarding of prisoners signed off on by the leaders of both parties (high ranking Democratic congressional officials signed off on these methods also), does not approach that threshold imo. Particularly when placed in the context of the last half century of U.S. history, when many of the Presidents have signed off on analogous tactics without even the mention of prosecution.

    The assumption that I’m working here is that the “war crimes” of which the Bush Administration could legitimately be accused would be of inhumane treatment ordered during the interrogations of a fairly small number of Al Qaeda suspects in Guantanamo. If, as Michael seems to, I thought that the Bush Administration had been routinely ordering the slaughter of thousands of innocent civilians, I might have a different view on this. But I disagree with Michael on that matter of fact.

    The reason I suggested that an attempt to prosecute the Bush administration for war crimes would smack of political revenge through the justice system (and would thus be massively destablizing for the country) is that the accusations against the administration which strike me as credible (using harsh interrogation tactics and having a poorly thought out system of bringing people in without being sure what to do with them afterwards) do not strike me as being at all more severe than the bad choices which other recent presidents have made in some of their foreign policies. (And given how much they’ve been involved in, the small number of really bad choices is not necessarily the major theme of their foreign policies either.) If Bush is a slam dunk for the Hague, than I would have to assume that at a minimum FDR, Truman, Eisenhower, JFK, LBJ, Nixon, Reagan and Clinton would have been triable as well — which basically means every president in the last 60 years except the least remarkable one-termers, and in those cases it may be that I just don’t know enough.

    Trying every president for war crimes doesn’t sound to me like something that would be good for the country as a whole. And so no, I don’t support it.

    Now, I can see why Michael objected to my comments saying:

    If that’s how you characterize my “political and moral thinking” (being in favor of civil war, chaos, and dictatorships) then you have no idea what anarchism is, nor have you read any of my comments very closely.

    While he surely knows that some anarchists do support civil war and chaos (which tend to lead to dictatorships, so doubtless the anarchists don’t explicitly support those) I realize that he does not support them. My point, however, was to point out that making a routine of prosecuting outgoing administrations would result in precisely those things. If Michael is strongly in favor of prosecuting the Bush administration (and unsurprisingly, I must admit that I do find Michael a rather “fringy” political thinger — one pretty much asks for then when calling onself an anarchist) then I would assume one of the two following to be the case:

    1) Michael disagrees with me on a matter of fact, in that he thinks that Bush had committed crimes far in excess of all or nearly all past US presidents. I don’t see how one could maintain this, but it is quite possible he does.

    2) Michael does not think the above, but he believes that one can make a habit of political prosecutions without the above results occuring. I think he’s clearly wrong on this, which is why I made the rhetorical attempt to make clear to him the implications of his suggestions.

  • Well, I for the most part agree that it would be a travesty to hand our outgoing president over to an international tribunal, for many reasons, most of them noted above. On the other hand, I do think there’s room to continue to argue for a case for prosecution. Personally, I don’t believe Bush should be prosecuted for his administration, but there are aspects that deserve some thought.

    First, arguments about the Iraq War still rage hot. As Catholics, I feel we are practically obligated to believe that the Iraq War did not meet the just war doctrine. No matter our fears of the weapons Saddam was amassing, no matter the continual defiance of U.N. resolutions (some of which carried the consequence of military reprisal, from what I understand), and no matter the atrocities he committed against his own people. I know, that’s quite a list, and because of it I have long held out that the Iraq War, at the very least, was legal by international standards. But just because something is legal…

    Second, the use of even “harsh interrogative techniques” that fall short, in theory, of the standard of “torture”, are worrisome. I’m of two minds on the issue, and not even talking about waterboarding here. On one hand, we know that physical and even emotional and psychological discomfort are viable options for the treatment of prisoners, especially as a punitive/corrective measure geared towards impressing on the prisoner the extent of his crimes. How that squares with trying to extract information or confessions out of a person, I’m not so sure about.

    The optimal condition, as I see it, is to offer a reprieve from what is regular punishment in return for information. If we are offering to stop rounds of sleep deprivation, slapping, and forced nudity in exchange for information, then those activities would have to be part of normal punishment, even when there is no need to interrogate the prisoner. That’s not something I think any of us would agree to. To deliberately add those in just for the sake of obtaining information is something I simply can’t accept.

    So where does that put us in relation with Bush? That he has been more of a “might-makes-right”, “end-justifies-the-means” type president in regards to our war on terror (though I know many will argue there is simply no other way to fight this war) is disappointing. From a moral perspective, I think Bush deserves to answer for what he has done in that regard. That, I am content to leave between him and God. From a legal perspective, though, given the precedent of other presidents, given the legal jargon which justified the Iraq War, and so on, I don’t believe there’s any case whatsoever against Bush. Even in those areas where we can all agree that Bush overstepped the lines of justice and morality, there is simply not a legal case against him.

    That is not to say that we can’t fight to make it so that future presidents cannot overstep into realms of injustice and immorality. I think we should. We need to reclaim the high ground and stay there. (Or, if we have to move, only to even higher grounds.) In regards to Bush, I think this one of the realms where we are called to do the hard thing. Never forget, but still forgive.

  • Breaking News:
    Al Qaeda Cell Killed By Black Death Was Developing Biological Weapons

    It seems to me very important that we use every moral means possible to prevent these terrorists from killing millions of people to further their cause. It would be deeply immoral to not use every moral means. I don’t believe it is acceptable to err ALWAYS on the side of caution as to whether or not a tactic is moral, but necessary sometimes to use means which we find offensive, and which approach the line of immorality but do not intentionally cross it.

    I’m not saying we shouldn’t question the use of any particularly offensive tactic, or wring our hands over it, but sometimes we will just have to live with it, pray that we have not erred in either direction, and forgiveness where we have. If that means that we are unpopular, so be it.

    God Bless,

    Matt

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