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.