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Awhile back, Digby wrote she feels the torture debate slipping away. I'd like to try and put this in context. This was always going to be tough. It is a fight worth fighting, but nowhere in the world has the still potent previous ruling order ever rolled over and taken their lumps for the crimes they committed while in power without a massive fight. While we may make references to Nuremburg, the most important difference there was that the Nuremburg trials were an act of imposing international law on Germany and Japan after conquering them. This is an attempt to have domestic law enforcement mechanisms go after the leaders of the previous government for their official policy. In the US, I don't believe such a thing has been done. Worldwide, it isn't so common either.
Watergate is not an apt comparison either. Nixon's motivies were clearly about personal advancement. He wasn't ordering buildings firebombed and journalists murdered to "protect" America, he was cheating in the competitive game of politics. Further, he acted guilty and had been stupid enough to tape himself. The war crimes of the Bush Administration exist in a different realm, because they mostly lack a personal benefit motive on the part of the players involved. They are still all over television brazenly defending what they did and attacking Obama for not continuing all of it. It is still possible for them to claim all this was done to defend the nation, for the greater good and so on. Nixon's claims of this sort were not credible. For whatever reason, time and again personal failings bring down the scandal avalanche in a way that other illegality does not. No doubt part of this is the pernicious US domestic news media, but not all of it. People just seem to viscerally loathe bright line personal corruption in a way that makes, say, $90,000 in a freezer a much bigger deal than 90,000 (or 900,000) dead innocent Iraqi civilians. It's a serious challenge for the long term viability of democracy.
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| None of this is "as it should be" in any ideal sense. I'm just trying to describe how things sit. The nice theoretical accountability mechanisms in the US Constitution are fine, but actually bringing down very powerful people on the basis of ethical principles, even with bright lines like "the rule of law" has always been very difficult. The United States is over 200 years old, and has only successfully impeached a single-digit number of officials, and forced only 1 President to resign. Even Jefferson Davis didn't spend very much time in prison. This has never worked as designed.
Looking around the world, some have pointed to the recent conviction of former Peruvian President Alberto Fujimori. It's clearly exceptional in recent world history. He was chased from office to the point of Peru's Congress rejecting his (faxed) resignation so they could remove him from office themselves (a fate Nixon should have shared). Despite all the human rights abuses, the precipitate cause of his downfall was a key underling of his being caught on camera bribing members of congress. His domestic support had utterly (and rapidly) collapsed in a way Bush's never did. Even so, his case is a hopeful exception to the norm, perhaps there are lessons there which might be applied elsewhere.
In Bosnia and Herzegovina, a domestic court has been established for prosecuting war crimes that took place during the civil war. As this OSCE report from 2005 notes though:
Moreover, monitoring has revealed the courts' reluctance to conduct effective prosecutions against defendants who held positions of power during the war and remain influential. Narrow interpretations of the facts and a lack of willingness to conscientiously explore the full circumstances have resulted in a number of
notable not guilty verdicts. Although 2004 saw several guilty verdicts and the imposition of lengthy prison sentences, a significant majority of these convicted defendants were low-ranking military personnel. OSCE monitoring also indicates that cases are processed less effectively and robustly where the defendants are
members of the majority local community and where the prosecution witnesses are from the minority.
(ii)
During the past decade, both France and Italy have wrestled with potential criminality of top officials. Both managed to obtain legal immunity. Chirac's supposedly ended when he left office, but he has not been charged as yet. Berlusconi, incredibly, is back as Prime Minister of Italy and has passed a second immunity bill for himself.
Consider Northern Ireland. British troops killed 13 people in the Bloody Sunday massacre (yes, the one U2 sings about), and as of today, no one has been prosecuted, and only the second inquiry into the event has yet to release their report. This is about events that took place in a liberal western democracy in 1972. Similarly, no one has been prosecuted for ordering the "Shoot to kill" policy that was reputedly followed by RUC and SAS forces in Northern Ireland. These weren't "war crimes" per se, but they were murders by state officials acting in an official capacity.
The past couple years have seen the governments of Canada and Australia apologize to their indiginous populations for crimes committed by the european dominant governments toward them. It is highly unlikely either country (or the US) will ever prosecute anyone for the various atrocities perpetrated on the aboriginals. Most of the perpetrators are dead anyway.
The US Senate just got around to apologizing for slavery. Need I go on?
Simply, nation-states are generally crummy at prosecuting themselves for systemic widespread criminality. In fact, this as all the more reason to need a powerful and active International Criminal Court. Self-enforcement is clearly not working.
No, if liberals prevail, and senior members of the Bush administration are investigated and prosecuted for war crimes by US authorities, that will be a remarkable feat of progress. It will be historic and noteworthy. Not doing so will just be the status quo, and not just in the US.. It will not spell the abject failure of the Obama Presidency, except perhaps its failure to succeed beyond the ken of dozens of other world governments put in similar situations after periods of madness.
But keep pressing. Lots of seemingly unwinnable fights were in fact won, for the betterment of all. Slavery was legal and normal almost everywhere not so long ago, until ethical people started to realize it was wrong, and a great evil. How difficult that must have seemed to the first people who began to organize against it. A break through would be splendid, but despair isn't the right reaction to failure on this front. After all, Henry Kissinger is still a free man, it's not even the first time in living memory that senior officials in an administration committed outright war crimes and didn't face any consequences for it. Hopefully, this time it will change. |
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