Periscope Depth

believe in me, I’m with the high command

Guys (and I mean Thoreau over at Unqualified Offerings and Brad Hicks of Livejournal). Seriously.

Thoreau

[Philippe] Sands reports that the military commissions act of 2006 may increase the likelihood of a future foreign war-crimes prosecution for those in the torture chain-of-command. Sands glosses a European prosecutor saying that “it would make it much easier for investigators outside the U.S. to argue that possible war crimes would never be addressed in their home country.”

Hicks

So I’m hoping that those of us who’d like to see almost the entire top ranks of the Bush administration brought up on charges somewhere, ideally at Nuremberg or The Hague but at the very least in front of a US federal court, on war crimes and crimes against humanity charges, not just liberal activists but some very serious and non-partisan constitutional scholars, I’m hoping that we manage to keep the pressure on [Ashcroft] about this.

No member of the Bush Administration, from the Commander-in-Chief down to Harriet Myers, will ever stand trial before a war crimes tribunal. Not one of them. Not ever. Thinking otherwise comes from a foolish urge.

The very notion of a war crime itself dates back only eleven decades, if that. You can pin the origin of the concept to the first Hague convention of 1899, but the principles then established only got a test run following the first World War. So you don’t have to look through centuries of precedent to find some obscure decision – a fairly superficial reading of Twentieth Century history will get you up to speed.

I don’t mean to say that the human race didn’t have a notion of “war atrocities” before 1917. Every king, commander and warlord had a deeply ingrained sense of things that Just Were Not Done. But people did them anyway. The first example that leaps to my mind: in the Battle of Agincourt, lord Ysambert d’Agincourt attacked the rear baggage train of King Henry V, slaughtering the unarmed peasants and page boys guarding it. Shakespeare’s Henry V depicts this rather tragically, and the melodramatic grief and vengeance that Hal suffers at seeing the carnage. But Shakespeare, partisan and patriot, omits Henry’s next order [EDIT: includes Henry’s next order anyway]: to slaughter all French prisoners in retribution. If either side revisited these incidents after, they did so at the signing of the new treaty in 1415, not before any sort of court.

(thanks to Grenacia in comments for the correction)

We have understood implicitly, for centuries, something that Robert McNamara only recently made explicit in the Errol Morris documentary Fog of War:

[Curtis] LeMay said if we lost the war that we would have all been prosecuted as war criminals. And I think he’s right. He, and I’d say I, were behaving as war criminals. LeMay recognized that what he was doing would be thought immoral if his side has lost. But what makes it immoral if you lose and not immoral if you win?

Let me make clear what Thoreau and Brad get wrong: no one will ever prosecute the victors.

Empirical data alone backs that up. If the U.S. did not stand trial at Nuremburg for Tokyo, or Dresden, or Manzanar, or Hiroshima, then nothing that the Bush Administration has done will get them called on the carpet.

But even without a century of precedent we can figure this one out from our armchairs. Say that President Bush and his employees knowingly violated tenets of the Geneva Convention. Who will charge them? Who will issue the summons? Who will force them to attend? What sanctions will be levied should they fail to appear? America has no challenger on the world stage when it comes to military might. The U.S. Government can not be compelled; they do the compelling.

“Okay, Professor,” you say, “my long-dormant fantasy of Cheney in shackles before Spencer Tracy can never come to pass. But what about a federal prosecution? Couldn’t a U.S. prosecutor charge Ashcroft or Rumsfeld or Gonzales or their subordinates?”

Again, this will never happen. For one thing, the Bush Administration has already laid a shaky, spurious but thorough legal framework to cover themselves. The Opposition Party has controlled Congress for over a year now* and mounted no serious challenges to it. I can speculate as to a number of reasons why:

  1. For career politicians, prosecuting an exiting official, elected or appointed, sets a horrifying precedent. When you retire from office, you’re supposed to step into a world of ghostwritten book deals, lucrative speaking engagements and the occasional Viagra commercial, not a jail cell. “Christ … if they got him, they could come after me next term!”
  2. The Opposition Party likes the precedent that the Ruling Party has set in bizarre legal roller coasters and would not want to dismantle the ride without trying it first. “So executive privilege protects anything I order my lawyers to do … and I’m justified in using executive privilege because I acted on the advice of my lawyers! Brilliant!” (Please note: not making this up)
  3. The Opposition Party does not have any actual objections to anything the Ruling Party has done, and only claimed such in order to win an election. I hesitate to endorse this level of cynicism but I have to offer it as an option.

But again, all of this we can arrive at through reason as such. The machinery of empire will not dismantle itself. A federal prosecutor, whose role only exists through a complex network of appointments, confirmation hearings and internal memoranda, will not turn around and attack that network for being complex. A war crimes tribunal will not press charges against the country that gives them most of their business in the first place. If you want the bastards out, you’ll never hit them from the voting booth.

President Bush took advantage of the immense machinery of state to order several inhumane acts under the cover of bureaucracy. He joins a long list of Presidents – both Opposition and Ruling party – who have done the same. His only failing, aside from giving torture the blessing of the American flag, killing a few thousand Iraqi civilians and displacing tens of thousands more, and putting into place a program of domestic surveillance that later villains may use to more villainous ends?

He got caught. Oops.

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* Please don’t talk to me about how tenuous their majority is. If Republicans in the Senate could threaten to nuke a filibuster, the Democrats can as well. The talk I regularly hear about how important it is that the Democrats build support, not alienate voters, not appear weak, etc., makes the Democrats sound more like the Party of Political Expediency and less like the Party of Principle. Which, I have to emphasize, I have no problem with. I just wish you’d stop calling them the latter.

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