All Posts Tagged With: "war crimes"

The Atlantic’s Ross Douthat has been “thinking about torture.”

I keep waiting, I think, for somebody else to write a piece about the subject that eloquently captures my own inarticulate mix of anger, uncertainty and guilt about the Bush Administration’s interrogation policy, so that I can just point to their argument and say go read that. But so far as I know, nobody has. There’s been straightforward outrage, obviously, from many quarters, and then there’s been a lot of evasion - especially on the Right, where occasional defenses of torture in extreme scenarios have coexisted with a remarkable silence about the broad writ the Bush Administration seems to have extended to physically-abusive interrogation, and the human costs thereof. But to my knowledge, nobody’s written something that captures the sheer muddiness that surrounds my own thinking (such as it is) on the issue.

Some difficult truths:

So as far as the bigger picture goes, then, it seems indisputable that in the name of national security, and with the backing of seemingly dubious interpretations of the laws, this Administration pursued policies that delivered many detainees to physical and mental abuse, and not a few to death. These were wartime measures, yes, but war is not a moral blank check: If you believe that Abu Ghraib constituted a failure of jus in bello, then you have to condemn the decisions that led to Abu Ghraib, which means that you have to condemn the President and his Cabinet.

Given this reality, whence my uncertainty about how to think about the issue? Basically, it stems from the following thought: That while the Bush Administration’s policies clearly failed a just-war test, they didn’t fail it in quite so new a way as some of their critics suppose … and moreover, had I been in their shoes I might have failed the test as well.

Ross’ very honest “thinking” about this issue was refreshing. He framed it beyond the typical partisan framework, rather framing the issue from a very personal, morally troubled, yet pragmatic viewpoint. His post is long but well worth the read and worth considering. The last sentence that I quoted above was a profound one…

… while the Bush Administration’s policies clearly failed a just-war test, they didn’t fail it in quite so new a way as some of their critics suppose …

This is one of those uncomfortable truths that many Americans don’t realize or choose not to accept. A careful analysis of our nation’s policies throughout our history will find far too many examples of immoral and unlawful policies and actions. One example Ross cites:

The use of the atomic bomb. I think it’s very, very difficult to justify Harry Truman’s decision to bomb Hiroshima and Nagasaki in any kind of plausible just-war framework, and if that’s the case then the nuclear destruction of two Japanese cities - and indeed, the tactics employed in our bombing campaigns against Germany and Japan more broadly - represents a “war crime” that makes Abu Ghraib look like a trip to Pleasure Island. (And this obviously has implications for the justice of our entire Cold War nuclear posture as well.) But in so thinking, I also have to agree with Richard Frank’s argument that “it is hard to imagine anyone who could have been president at the time (a spectrum that includes FDR, Henry Wallace, William O. Douglas, Harry Truman, and Thomas Dewey) failing to authorize use of the atomic bombs” - in so small part because I find it hard to imagine myself being in Truman’s shoes and deciding the matter differently, my beliefs about just-war principle notwithstanding.

While I completely disagree with this administration’s policies and actions, I realize that this is indeed not “quite so new.” Which goes to this starkly profound statement from Ross…

… and moreover, had I been in their shoes I might have failed the test as well.

And that’s the fundamental point. Given the same circumstances with the same responsibilities, any of us might have made similar decisions as Bush and Harry Truman. That’s because we as humans fail, especially when under extreme circumstances. And that’s why we have laws — to help us make the right decision when the right decision is the most difficult one to make in the midst of the worst of circumstances.

An analogy: If someone were to harm one of my daughters in any way, I undoubtedly would be consumed by rage. My fatherly instinct would be to exact pain and suffering in a proportionally magnified degree greater than that which was inflicted upon my child. What keeps me from unleashing this instinctive (and some would argue justifiable) revenge are laws and the consequences that come with those laws. And those laws are there to maintain a civilized and orderly society and to protect us all from our human failings — things like misidentified persons being wrongly caught up in regrettable, yet nonretractable retaliation (such as killing the wrong man whose later proven to be innocent).

As much as I abhor this administration’s policies and actions, I find myself among those who have no stomach for a major reckoning of those who made these disastrous decisions. What I do want, as a condition of immunity from future prosecution, is a full accounting of the decisions made, the orders given and the actions taken by all those involved as well as an acknowledgement that these were wrong and regrettable.

We have to learn from our mistakes. But we have to acknowledge them as mistakes before we can truly learn from them and take corrective action.

Glenn Greenwald wants to know:

Just ponder the uproar if, in any other country, the political parties joined together and issued a report documenting that the country’s President and highest aides were directly responsible for war crimes and widespread detainee abuse and death.  Compare the inevitable reaction to such an event if it happened in another country to what happens in the U.S. when such an event occurs — a virtual media blackout, ongoing fixations by political journalists with petty scandals, and an undisturbed consensus that, no matter what else is true, high-level American political figures (as opposed to powerless low-level functionaries) must never be held accountable for their crimes.

Scott Horton of Harper’s Magazine highlights a sobering analysis by a well-respected former war crimes tribunal judge and he discusses the ominous implications:

The most remarkable part of the report is certainly the forward written by Patricia Wald, one of the nation’s most respected retired federal appellate judges. Judge Wald has a credential that few of her colleagues share: she left the court of appeals to serve as a war crimes tribunal judge for Yugoslavia and she also served as a member of the Commission President Bush constituted to look at the false allegations of WMDs in Iraq. Judge Wald compared the current allegations surfacing about detainee abuse authorized by President Bush with the cases she examined coming out of the war in Yugoslavia—that resulted in the indictment and conviction of a number of political leaders in the Balkans. Here’s what she has to say:

There are bound to be casualties when any nation veers from its domestic and international obligations to uphold human rights and international humanitarian law. Those casualties are etched on the minds and bodies of many of the 62 former detainees interviewed for this report, many of whom suffered infinite variations on physical and mental abuse, including intimidation, stress positions, enforced nudity, sexual humiliation, and interference with religious practices.

Indeed, I was struck by the similarity between the abuse they suffered and the abuse we found inflicted upon Bosnian Muslim prisoners in Serbian camps when I sat as a judge on the International Criminal Tribunal for the former Yugoslavia in The Hague, a U.N. court fully supported by the United States. The officials and guards in charge of those prison camps and the civilian leaders who sanctioned their establishment were prosecuted—often by former U.S. government and military lawyers serving with the tribunal—for war crimes, crimes against humanity and, in extreme cases, genocide.

There should be no confusion about what is being said here. One of America’s most prominent judges–and one of our few judicial experts on war crimes–is saying that the factual basis exists to charge officials of the Bush Administration. The test is fairly simple: is the United States now prepared to apply to itself the same legal standards that the United States applied to political leaders in the former Yugoslavia? It is in the end a simple question of justice. And a question of whether the United States is prepared itself to live by the standards it imposes on others.