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"Bring the Criminals to Justice"?

In 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 Bugliosi.

2. There should be a trial for violation of other U. S. laws, such as torture.

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 in turn.

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 guilty verdict.

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? 

And isn't 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 crime. Some 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 World War.

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 other crimes.

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 election.

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 involvement ended.

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 collapse.  

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 economic growth.

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.

Keith Akers
July 4, 2009 (slightly revised July 9, 2009)