Thursday, February 19, 2009

If you're going to shield war criminals from investigation and prosecution,

at least be honest about it:

It cannot be emphasized enough that those who are arguing against criminal investigations for Bush officials are -- whether consciously or implicitly -- arguing that the U.S., alone in the world, is exempt from the laws and principles which we've been advocating and imposing on other countries for decades. There is simply no way to argue that our leaders should be immunized from criminal investigations for torture and other war crimes without believing that (a) the U.S. is and should be immune from the principles we've long demanded other nations obey and (b) we are free to ignore our treaty obligations any time it suits us.

It's just as simple as that: one must embrace both of those premises in order to argue for a bar against criminal investigations. And that's particularly true for those who argue that Bush officials should not be held liable for what they did either because (a) DOJ lawyers said it was legal and/or (b) Congress provided retroactive immunity to the torturers. As documented below, those are two of the most common and most universally discredited excuses in Western justice.

That fact may not lead anyone to change their minds about investigations and prosecutions, but those who are arguing for immunity for Bush officials ought to at least be honest and admit that they don't care about our treaty obligations and the principles we spent decades advocating for others because those rules -- for whatever reasons (e.g., we're special; we have too many other important things to do; we're the strongest and so nobody can make us do anything) -- don't apply to us. Those who oppose criminal investigations and prosecutions should acknowledge that this is what they believe (or at least are willing implicitly to embrace). Why pretend otherwise?

My emphasis added. That said, no matter how much of an intellectual contortionist your typical Beltway elite might happen to be, ultimately there is no getting around the very simple fact that the approach the US is using to shield its previous regime from potential criminal investigations has historically fallen flat:
One of the principal arguments made even by well-intentioned anti-investigation advocates is that it would be wrong to prosecute Bush officials for torture because (a) DOJ lawyers authorized those tactics as legal and (b) Congress provided retroactive war crimes immunity when it enacted the 2006 Military Commissions Act. This argument -- that prosecution is unfair because the torturers' government authorized and legalized the torture -- is one that has been raised by most war criminals in the past, and emphatically rejected by the Nuremberg Trials (which the U.S. led) and the War Crimes Tribunal against Serbian leaders (which the U.S. praised and supported). To raise that argument in order to justify immunity for Bush officials is, by definition, to believe that the U.S. is exempt from the most basic rules of justice which it has long demanded be applied to other nations.
Ultimately, if the Obama regime chooses to go the way of barring investigations at home, bullying other nations out of investigations, and trying to sweep the whole mess under the rug, he and his cronies had best get used to the idea that no matter how cool, slick, and personable they may come across, they're opening themselves up to a Pandora's Box of blowback down the road.

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