Let me acknowledge up front that I have made an editorial decision to begin referring to the crimes of the Bush Administration as Crimes against Humanity and I accept that I become (if I wasn't already) a member of the Unserious People for the grave breach of etiquette by using such intemperate and direct language. I might upset conservatives and we cannot tolerate such things. So be it. Spade, meet description:
Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.[...]
The Bush Administration employed numerous forms of torture on people held in its custody, arguably the most egregious being waterboarding, and has openly admitted to using these techniques, and refused to repudiate their use in future. I won't recount the litany of other counts that should be part of some future indictment of Bush, but that alone is enough to put him in the Crimes against Humanity category. I also don't consider it germane for this discussion that America has not signed onto the Rome treaty. The Nuremberg Principles cover that eventuality amply, in that states who are not adherents to particular treaties are not immune from prosecution under them. Also, the Principles cover the criminal aspects of the Bush Administrations behaviour as being war crimes and Crimes Against Peace (the war of Aggression in Iraq) too. Hiding behind "we didn't ratify that treaty" is morally reprehensible anyway.
You may feel that the three admitted instances of waterboarding do not rise to the level of constituting a Crime Against Humanity or that it weakens the meaning of the term, normally applied to things like genocide for mere instances of torture. I don't agree. If this is allowed to stand and not castigated in the most emphatic terms, Bush will have normalized torture, and made the definition of torture so malliable as to be bereft of useful meaning. States will be able to torture without consequence so long as they don't call it torture. I am also battling against Democratic leaders who say things like:
Vice President-elect Biden, 12/21/08: "[T]he questions of whether or not a criminal act has been committed or a very, very, very bad judgement has been engaged in is--is something the Justice Department decides. Barack Obama and I are--President-elect Obama and I are not sitting thinking about the past. We're focusing on the future... I'm not ruling [prosecution] in and not ruling it out. I just think we should look forward. I think we should be looking forward, not backwards."
This too is normalizing atrocity. Just "bad judgement." Like McCain suspending his campaign or Clinton accepting oral sex from Monica. Oopsie. We have to avoid any temptation to write this down into safe language of "interrogations."
Now, onto the subject of the past, and whether we should focus on it or the future. We must walk and chew gum at the same time here, because the past is prologue and this isn't going away; you can't sweep rotting compost under the rug and pretend nothing is wrong. It stinks and will continue to do so until someone takes out the garbage. This is about the future. There will be other Republican presidents, and there are 191 other heads of government of formally recognized nation-states (e.g. they are UN members) any of whom may choose to apply the current defacto precedent set by George Bush. We're not debating some arguably arcane matter of historical interest here. This will (and is already) be of import to the decision making of world leaders.
PE Obama thinks perhaps that this whole issue is merely a matter of the past, and we can just agree to disagree and move on:
STEPHANOPOULOS: So, let me just press that one more time. You're not ruling out prosecution, but will you tell your Justice Department to investigate these cases and follow the evidence wherever it leads?
OBAMA: What I -- I think my general view when it comes to my attorney general is he is the people's lawyer. Eric Holder's been nominated. His job is to uphold the Constitution and look after the interests of the American people, not to be swayed by my day-to-day politics. So, ultimately, he's going to be making some calls, but my general belief is that when it comes to national security, what we have to focus on is getting things right in the future, as opposed looking at what we got wrong in the past.
But that is exactly what investigating and prosecuting these crimes will do: Get things right in the future. The United States of America used torture as a matter of policy from the highest level. The world's unquestioned sole superpower. It matters, and Obama choosing not to employ torture is not nearly enough to fix it, because torture shouldn't even be an option. Obama is setting up to put torture into the realm of politically unappealing but legal options like recess appointments or pocket vetoes.
I quoted Walzer above because he is discussing the moral imperative all citizens of democracies face in the decisions their leaders make. A lot of people are tempted to let this slide because they don't want to jeopardize any of the other laudable domestic policy goals like UHC or climate change. If it really is a matter of choosing between prosecuting Bush and meaningful, sufficient action on Climate Change I think there is a very fair argument for choosing the latter. I might even make that choice myself since the ensuing misery of unmitigated climate change will harm far more people than normalized torture will, but it is a false choice. Political capital is actually a renewable resource and exposing the crimes of the Bush administration is not just a moral imperative, but will shock the consciences of the populace and put Obama into the realm of great Presidents who did the hard thing because it was right.
Avoiding this is simply cowardice and will be remembered as such. Clinton's failure to investigate Iran/Contra is a serious blight on his record, and those crimes do not rise nearly to this level. Obama and the Congressional Democrats in fact have a great opportunity here to be well remembered by history for taking decisive action on this. To that end Conyers' bill HR.104 is an important first step. I do not believe it would be sufficient action on its own, but could lead to greater action (and it is better than nothing anyway).
Obama needs to clear the air on the crimes of the Bush administration. I hope what he is doing is posturing so that he (or Holder) can "reluctantly" appoint a special prosecutor due to the cloud that hangs over these events and hopefully the pressure put on him by us and Congress. To this day you can't discuss FDR without someone bringing up Japanese internment, and I think failure to properly address this will be remembered in similar lines. It's true that internment is something that FDR actually did (sin of commission) as opposed to the sin of omission we fear here from Obama, but then, Gray's principle makes Obama's responsibility to act much greater, since he has the most power to do something to ensure this never happens again. |
