"Bring the Criminals to Justice"?
an April 29 Salon.com article, Garrison Keillor wrote an opinion
piece in which he argued against trying to prosecute Bush administration
officials for their actions while in office. "Let war crimes be
bygones," he said. "We donít need to round up a few Bush-era
criminals to settle political scores. We just need some truth, and then
we need good train service."
"Retribution is not smart politics," he adds, because if we
did go forward with prosecutions, "the healthcare system would go
unfixed, schools would crumble, basic public services would deteriorate,
all so that the left could have at the right." He adds that the
electorate knew, more or less, what they were getting in 2004: "So
go talk to the voters of Ohio about war crimes."
This is an interesting argument: prosecution of Bush officials for
their crimes is not likely to be politically effective. It is
essentially the line that President Obama is taking, too. But how
justified is this stance? And what does it mean?
Initially, I was outraged at his article, as were a lot of Salon
readers. With sometimes thoughtful, sometimes impassioned, sometimes
insulting rhetoric, most of the 320 letters Salon received attacked
Keillorís article. They discussed the importance of the "rule of
law," their outrage at torture, and made references to the
Nuremberg trials. In fact, Keillorís thesis was so unpopular, that
there was a sub-topic in the letters thread over whether the whole thing
was satire. The prevailing point of view was that Keillorís article
wasnít satire, but the point was debated.
As I thought more deeply about this, though, I am reluctantly
reaching the opinion that Keillor is right and that the letter-writers
were wrong. O. K., I have to admit, while I did scan all 320 letters and
read a number of them, I did not thoroughly study every last letter. But
my conclusion is that I think that the dissenters to Keillorís
position have missed an essential problem here, which Keillor raised and
made part of his argument: successfully prosecuting the wrong-doers in this case is
essentially impossible for political reasons.
In fairness to the letter writers, Keillor did not make this point
very well. He implied that prosecutions could go forward, but
only at a terrible political cost. In fact, such prosecutions could not
succeed at all, and Keillor should have made this explicit. It is
not a question of "high-speed trains versus political trials?"
Rather, effective prosecutions are just not going to happen, even with Obamaís
full support. We would do better to go for full exposure of what they
did, and make it a political issue ó that at least is possible. But
prosecutions and a guilty verdict will not happen and could not have happened, period. Thatís
why Obamaís not even thinking about it.
What we need from those suggesting prosecutions is a plausible
political plan for carrying them forward. Instead of complaining about
the impossibility of prosecutions, at least in the near term, we should
ask ourselves, what does the political impossibility of prosecuting
Bush for war crimes say about America? And what are we going to do about
it? That is the real question. So while I agree with Keillor on how
we should handle the issue of war crimes trials, I draw very different
conclusions about what we should do.
Prosecutions are Politically Impossible
To see why it is politically impossible, letís suppose the
opposite. Letís suppose that Obama laid down the rule of law from Day
1 of his term in office. "Bring the criminals to justice,"
says Obama, and he sets this as a high priority for his administration.
And we are talking about the real criminals, namely Bush, Cheney,
and Rumsfeld, not some underlings in the Department of Defense
somewhere. Then what?
First of all, what precisely would be the charge against Bush and
Cheney? I can think of three possible approaches:
1. There should be a trial for murder ó murder, that is, of the U.
S. soldiers sent to Iraq ó as suggested by former prosecutor Vincent
2. There should be a trial for violation of other U. S. laws, such as
3. There should be a trial for war crimes, modeled along the lines of
the Nuremberg trials after the Second World War.
The problem is, that all of these politically impossible. By that, I
do not mean that the political cost is high and that Obama would have to
sacrifice the rest of his political agenda for it. I mean rather, that
it would be physically impossible to bring Bush to trial and get a
conviction in the United States, even with the full support of the Obama
administration. To see why, letís look at each of these alternatives
A Murder Trial
A trial for murder, which has been suggested by Vincent Bugliosi in
his book The Prosecution of George W. Bush for Murder, is one
approach. Bush lied, people died: therefore, as a direct consequence of
Bushís actions and statements, people were killed. Bush is therefore
guilty of murder. While this is theoretically interesting, it is too
conceptually difficult for any U. S. jury and if you imagine a jury of 5
Democrats, 4 Republicans, and 3 Independents, you will never get a
The reason is that you have to show not just that Bush lied us into
the war, but that the war itself was not justified. In other
words, what Bugliosi really wants ó and has to prove ó is that Bush
committed war crimes. If the Iraq war is not itself a war crime,
then the prosecutionís case falls apart.
Despite Bushís lies, the Iraq war might still be justified. Maybe
there were some other good reasons to invade Iraq. Maybe Saddam Hussein
was a tyrant and a murderer himself. Maybe we should be overthrowing
dictatorships on general principles. The prosecution has to go one step
further: to prove murder, you have to say that Bush lied, and the
war was not morally justified. Only if launching the war itself
was a crime, could Bush be charged with murder ó but this is
essentially a war crimes trial, the charge being "aggressive
war," not a trial for murder in the ordinary sense.
We could easily imagine Roosevelt, in his speech to Congress after
Pearl Harbor, telling some lies. Maybe he exaggerates the number of dead
at Pearl Harbor, maybe he even covers up his own administrationís
complicity in allowing the attack on Pearl Harbor to happen. Would that
make the Second World War an unjustified war? Obviously not. Lying in
itself does not make the invasion of Iraq wrong.
In fact, we can imagine (counter-factual) scenarios in which Iraq
would be seen by almost everyone as a justified war. Imagine that in
January 2002, Al Qaeda smuggles an atomic bomb into Iraq without Saddam
Husseinís knowledge. Bush knows it and has proof. But for security
reasons, Bush does not want to share this information with Congress or
the public, so he cooks the intelligence in order to get his invasion.
Weíd have the same evidence against Bush in this hypothetical case
that we actually had: "Bush lied, people died"; but most
people would still say that the war was nevertheless justified.
In most jurorsí minds, you would still have to establish that the
war in Iraq is itself a war crime; and that turns us to option #3 below,
a war crimes trial.
Violation of Other U. S. Laws
Well, wasnít U. S. law violated? What about the authorization of
torture and eavesdropping? Donít we have laws against torture and
arbitrary wiretapping? Didnít Bush violate these laws? It is
interesting and puzzling that it is relatively easier to suggest trials
for torture of a small number of people, when a trial for murder of
hundreds of thousands seems to be out of reach. However, I don't
think that prosecution of Bush for violating U. S. torture laws is
likely to succeed, either.
Bush could plausibly claim that what he was doing was in fact legal.
He was, after all, the executive, charged with enforcing the laws. Isnít
the President is the commander in chief? And isnít killing, normally illegal, all right in an
otherwise justified war? If weíre making an exception for killing, why
couldnít torture also be a possible exception?
terrorism an exceptional set of circumstances? He could argue that
the persons being tortured were "illegal combatants" and
therefore not covered by the Geneva conventions or U. S. law. And if Congress failed
to impeach Bush, and the voters re-elected him, then doesnít this
validate the basic legality of his executive decisions?
A jury, no matter what the judgeís instructions, is likely to fall
back on common sense. Common sense says that war is an
"exceptional" situation in which normal laws do not apply. The
President is in an unusual situation as the executive, dealing with
conflicting imperatives. Moreover, the "war on terror" seems to be different from a
conventional war like the Second World War. Bush might ask rhetorically what everyoneís response would be if
torture had exposed, say, a plot to blow up Washington, D. C. with an
atomic weapon. Bush could point to what other leaders did during
wartime, such as Lincoln and Roosevelt. Didnít they sometimes
contravene the law? Can mere violation of the law in a time of war, in
and of itself, make the commander in chief guilty?
Like the law about murder, the law against torture seems to be
malleable in times of war. The mere fact that an act is illegal would
weigh in the juryís mind over the fact that this is wartime. This
would create doubt as to whether such a trial was really just an attempt
to second-guess policy decisions by the commander-in-chief ó a
political trial, disguised as a criminal trial.
Of course, the prosecution could make a different sort of argument.
You could have to argue that torture itself is always a war
things, like razing whole towns and killing the inhabitants,
concentration camps, genocide, and torture, are prohibited even in
war, even in a "war on terror," regardless of the laws. But in this case, we have to establish
that what we have in Bushís case is an example of the things that are always
prohibited even in war, not a case of the things which are permissible
in war, or are permissible against "illegal combatants." What we are talking about ó once again ó is essentially a
war crimes trial.
What About War Crimes?
We now come to the third alternative, a war crimes trial. This,
actually, is what Bush should be brought to trial for. This cuts away a
lot of the side issues over whether, technically, Bush violated U. S.
law. A war crime is a war crime: it doesnít matter even if Congress
approved of it, the Supreme Court agreed, and Bush got 99% of the votes
in freely-held elections. If there are laws making war crimes illegal,
then all the better, that gives us the means to have a war crimes trial;
but technically, it doesnít matter what U. S. law is. What matters is
the Nuremberg precedent.
At Nuremberg, no one had to get into the intricacies of Nazi or
German law, and ask whether the attack on Poland or the concentration
camps were in accordance with German law. It was what it was: a war
crime, self-evident to humanity in the wake of the horrors of the Second
But there is another unsettling precedent, the precedent of Vietnam.
Here was a lot of the same thing that went on in the Second World War.
It was not on nearly the same scale, but a lot of the same things that Hitler
did were imitated on a smaller scale. It was an illegal war, brought
about with lies about the Gulf of Tonkin and without an official
declaration. About a million perished, including over 50,000 Americans.
In the wake of Vietnam, first Nixon was pardoned, but to balance that
out, the people who had left for Canada to avoid the draft were also pardoned. There was a practical policy of exactly what Keillor is
advocating: "let bygones be bygones." There were no war crimes
trials, except for a few underlings like William Calley.
It seems unlikely that Obama would follow the Nuremberg precedent,
but letís assume otherwise for the purpose of argument. Letís
suppose that Obama announces that he is going to bring Bush, Cheney, and
Rumsfeld to trial for war crimes. Well, for starters, there goes your
domestic agenda. Probably gone also is your foreign policy agenda.
Probably, in fact, get ready for the whole country to be ripped apart.
In fact, your "security" agenda may become physical protection
from the various competing factions, for or against Bush, that will be
unleashed in the country. There is a possibility that we could create
another civil war in the United States.
But letís suppose that Obama applies all the screws, restores
order, puts down the riots, and holds a trial anyway. If you have a
truly representative jury of 3 Democrats, 2 Republicans, 4 independents,
and 3 nonvoters, it is unlikely you will get a guilty verdict anyway. If
you canít get a guilty verdict, then prima facie you have a reason for
not holding the trial, no matter what the justice of the situation.
Therefore, somewhat reluctantly, I believe that Keillor is right; it
does not make sense to pursue prosecution of Bush for war crimes or any
The Germans and the Nuremberg Principle
Letís take a deep breath and think about the situation. The
question is not about the political feasibility of a war crimes trial
ó it appears to be a given that it is not feasible. What is in
question is what is the problem, really? And what are we going
to do about it?
After Nuremberg, many people were completely shocked at the depravity
of the crimes committed by the Nazis. Some questioned, even, whether it
was not impossible for the German people to know about at least some of
these crimes. They demanded answers to questions like, "Why didnít
you do something?" A lot of people asked: was it the German leaders
who were guilty of war crimes, or was it the German people?
At the time, a lot of ordinary Germans who were asked these types of
questions said things like, "well, you donít understand what the
situation was in Germany at that time." They talked about the Great
Depression, they talked about the racist demagogues, they talked about
their humiliating defeat in the First World War, and they pointed out
that the majority of German voters never supported Hitler in any free
Americans were not satisfied with these answers, and the general
reaction was, "thatís no excuse!" After a while when the
Germans could see that they werenít getting any sympathy or
understanding, they just clammed up and stopped talking about it
altogether, and for the next half-century dialogue on this subject
ended. I have studied the Second World War in some depth, and while I
have no sympathy for the Nazis, after seeing what is happening to
America today, and seeing our total inability to deal with our own
problems, I have a lot more sympathy for the Germans.
Keillor is, in effect, answers the same corresponding question, when
he says, "So go talk to the voters of Ohio about war crimes."
Is it the American leaders who are guilty, or the American people? And
if it is the American people, then who, precisely, is going to bring
Bush to justice?
We therefore have the following facts about our society:
1. It is wicked. This is evident from the fact that our
society has produced the Vietnam War and the Iraq War, in which hundreds
of thousands of innocent people died.
2. It is corrupt. This is evident from the fact that these
things can happen, and not only is there no way for good citizens
to prevent them from happening, but there is also no way for society to
correct them or prevent them from happening again. First we have
Vietnam, and then we have Iraq about 30 years after our Vietnam
3. It is decaying. I hadnít mentioned this so far, but it is
pretty evident from the upward spiral of debt, the dependence of the
country on cheap foreign labor, the dependence of the economy on
imported oil (which likely peaked in July 2008), global warming, and
environmental destruction generally. Because we need a "growing
economy" to get ourselves out of debt, and because such a growing
economy would merely make our dependence on oil and foreign imports even
greater, the continued existence of the Republic becomes more and more
problematic. We are facing economic, political, and social
Now, what are we going to do? Do we still want war crimes trials?
While serious enough, the real issue is not the crimes of Bush and
Cheney. The real issue is that these crimes are just the symptom
of the problem.
What exactly is happening to our country? Are Vietnam and Iraq
simply two very bad mistakes that America has made? Or are they in fact
symptoms of a more underlying problem, or set of problems? How is it
possible that all this evil could come forth from people that we know,
who grew up with us, and speak the same language?
As an American, I think I can be generous. Americans are no
more guilty of the crimes of Bush and Cheney than Germans were guilty of
the crimes of Hitler, or Russians of the crimes of Stalin. That is
to say: these things happen. We need to understand them and reject
them, but retribution is not the first thing we need to think
about. Changing ourselves is what we should work towards.
I could make a few suggestions:
1. We should stop thinking of America as the exception to rules which
everyone else must obey.
2. We should stop our devotion to a materialistic culture based on
3. We should move towards a society of "enough," equality
with other nations, and cooperation based on the knowledge that humans
are destroying our planet with our actions.
I know, this is pretty short for a revolutionary program; we need
more detail. Iím working on it! But ask yourselves: how likely are any
of these things, or anything like them, in a decaying and corrupt
society? How likely are even the more modest things which Keillor
professes a liking for: restoring public education and restoring decent
train service to the Midwest?
I wish President Obama and Garrison Keillor luck, and I would
certainly appreciate better train service between Denver and Chicago, a
trip I make about once a year. But we are not going to get that much
from a corrupt, decaying society, and it's hard to say how much is
served by continuing to talk to people, however well-meaning, who act as
representatives of this order. At best we will only get a few
scraps as our society and culture continue their downhill slide rather
more quickly than they, or most anyone else, suspects.
We must change our society and culture, not just in piecemeal ways by
cautiously seeking consensus, but through radical and
difficult-to-imagine new policies. Yes, perhaps, we should bring the
criminals to justice. But first, letís get on with the business of
totally transforming society.
July 4, 2009 (slightly revised July 9, 2009)