Left fringe musings on torture and war crimes

Criminals? As yet not tried in a court of law ...

Now I know what I am: according to columnist Tim Rutten in the Los Angeles Times, I am member of "the lacy left fringe of American politics" because I'd like to see criminal trials of leaders who have made widespread torture of prisoners a feature in their permanent war. He knows better:

Part of the hysteria over [hearings] that you see in places like the Wall Street Journal editorial pages stems from an anxiety that congressional inquiries, like that of Levin's committee, will lead to indictments and possibly even war crimes trials for officials who participated in the administration's deliberations over torture and the treatment of prisoners. ...

...actually pursuing them would be a profound -- even tragic -- mistake. Our political system works as smoothly as it does, in part, because we've never criminalized differences over policy. Since Andrew Jackson's time, our electoral victors celebrate by throwing the losers out of work -- not into jail cells.

The Bush administration has been wretchedly mistaken in its conception of executive power, deceitful in its push for war with Iraq and appalling in its scheming to make torture an instrument of state power. But a healthy democracy punishes policy mistakes, however egregious, and seeks redress for its societal wounds, however deep, at the ballot box and not in the prisoner's dock.

This is a conclusion that Rutten can only arrive at by assuming that justifying torture is just a "policy" argument, not a question of law. He clams to be repudiating torture, but he sweeps under the rug the little matter of treaty obligations and the pre-Bush Universal Code of Military Justice, as well as numerous constitutional impediments to cruel treatment of persons without legal process. The memos of a Yoo and obfuscations of a Gonzales are all a "no fault" intellectual exercise, if a misguided one, in Rutten's world.

It is simply not true that lawless behavior in pursuit of policy objectives has no history of being punished in our country. In the Watergate era, Presidential advisors H.R. Haldeman and John Ehrlichman did stand in the dock and end up in prison for conspiracy and obstruction of justice committed to enhance Richard Nixon's power. One of Bush/Cheney's stooges, Lewis Libby, would be doing time now after being convicted of highhandedly violating the law, if the present President had not given him a "get out of jail free" card. There's plenty of history of executive lawbreakers being tried and convicted.

And the evident crimes of the current lot dwarf the legalistic grounds on which prosecutors have been able to get convictions of previous generations of wrongdoing U.S. politicians. An aggressive war of choice, dishonestly entered upon ... that's Nuremberg territory, conduct that led to the execution of the German general staff in 1946.

If Rutten weren't in the business of justifying the unjustifiable, he could have made reference to a much more interesting case against war crimes trials that is emerging within the community of human rights advocates, especially those concerned with Africa. In the U.S. blogosphere, Helena Cobban, has written from this perspective. A recent column from the Canadian Globe and Mail gives the flavor of the argument.

JOHANNESBURG — In the first, electric days after Robert Mugabe lost the opening round of Zimbabwe's presidential election, it seemed as though he might simply accept defeat and step down. ...He opened secret negotiations with the opposition Movement for Democratic Change (MDC) on a deal that would guarantee his party a share of power, provide him with a peaceful retirement and, crucially, make him immune to prosecution for crimes committed during his long and troubled tenure.

The MDC was amenable, and a tentative optimism took hold of Zimbabwe. But then, six days after the March 29 vote, Mr. Mugabe emerged from a long meeting with his "politburo" in Harare, vowing to fight a run-off election and saying he'd soon be sworn in for a sixth straight term. ...

"The Old Man is staying," a senior member of his ZANU-PF party told The Globe and Mail, "because I'm not ending up in The Hague."

That is, Zimbabwe is now suffering through another violent election which Mugabe will win by whatever vicious means are necessary because of the developing practice of bringing particularly violent African kleptocrats before international criminal courts. The article goes on to cite the prosecution of Charles Taylor for his instigation of the Sierra Leone civil war (that's the one where in addition to rape, the combatants went in for cutting off the limbs of children) and the international court in Arusha, Tanzania, that can't seem to move against Rwandan perpetrators of genocide. In Uganda, critics of human rights law enforcement say that indictments are prolonging Joseph Kony's vicious insurgency. The Globe and Mail author, Stephanie Nolen, says that Africans have a different solution for their evil doers.

When people survey the civilians of northern Uganda, those who have lived through the war for more than a generation, justice barely registers as a priority. They want peace. Prosecution is also fine -- until it starts getting in the way.

When nearly 3,000 Ugandans were polled by the International Centre for Transitional Justice last year, they listed their top priorities as peace, health care, education for their children and the ability to farm their land. A mere 3 per cent chose justice. Asked what should be done with those responsible for major human-rights abuses, more than half said they wanted "forgiveness, reconciliation, or reintegration for LRA leaders." Just 22 per cent said they wanted them tried, and, if convicted, sent to prison. Asked if they favoured peace with amnesty or peace with trials, 80 per cent of respondents chose peace with amnesty.

"What constitutes justice for people is not necessarily prosecution," says Moses Okello, a Kampala-based expert in international human-rights law. ... "We're not saying that accountability is not important, but it can also take the form of taking responsibility for the livelihood of the families of the aggrieved."

I'd have to listen to a lot more Africans before I felt entirely comfortable with the argument presented here. I don't want to be party to any idea that there is one standard of justice suitable to be applied to first world wrongdoers and another for the poor societies of Africa. But there is also a plausible argument here for peace first, then, perhaps much later and less rigorously, justice.

So what about our own Bushite evildoers? Those injured -- Iraqis, Afghans, miscellaneous Arabs, millions of U.S. citizens who expected Constitutional liberties -- never got due process. And most of them -- and most of us -- do simply want the nightmare over with. But then, the U.S. perps should get trials. Maybe we, the angry left fringe, are wrongly convicting them without trial. Bringing the Bush perps into court is a worthy long term struggle and one I can work for.

But here's where I can go along with Rutten and the African skeptics: I don't care so much whether they go to jail. What matters is to permanently get these authoritarians out of U.S. politics. The leading criminals of the Bush era got their start with Nixon, pressed on to take roles in Reagan's Iran-Contra shenanigans, and crept back into power with the Bush/Cheney regime. They are repeat offenders against the rule of law.

During the 1980s, like many U.S. progressives, I put a lot of work into supporting Central American populist governments that the U.S. called "communist." One of the bravest, smartest acts of the insurgent Nicaraguan Sandinistas in 1979 when they chased out their U.S.-backed dictator was to let his private army, the Guardia Nacional, run away over the borders. These were not nice people. The GN had raped, tortured and murdered wantonly under their protector. But the Sandinistas knew that the country was small, that every individual GN man was someone's uncle or even brother, that nothing would be gained by vengeance. So they let them go -- and that act launched a Sandinista era full of hope.

Trouble was, the GN survivors were not permanently outside Nicaraguan politics. Because the U.S. wanted to ensure the independent populists in power couldn't succeed, the C.I.A got to work recruiting the forces of the former dictator to trash the schools and clinics built by the Sandinistas. Pretty soon Nicaragua was back at war; war wore folks out and the U.S. had a great victory over a bunch of poor peasants who thought they should govern their own country.

So, however we do it, some people's activity and influence need to be permanently excluded from the U.S. political stage. As of now, it looks like a Democratic "alternative" will win big this November. That's good.

The recent vote on the FISA bill suggests that some of the Democrats we'll have in power if that happens are already shaping their votes to try to avoid revealing their complicity in the Bush regime's lawlessness. That's not good, but better that their complicity shows. These Democrats need to go, permanently, too.

The struggle ahead is long. But again, a look at some history: with the complicity and encouragement of Henry Kissinger, another U.S. war criminal, General Pinochet overthrew, killed and tortured Chilean democracy on the other September 11 -- in 1973. He remained in power as a military dictator until 1990. Chileans only got him out with a promise of amnesty, of impunity, for the Chilean military. That is, the society cut a deal -- go away and we won't prosecute your crimes. Yet opponents kept up the demand for some kind of justice and by 2006, Pinochet died at 91 while under house arrest as a result of multiple indictments for his crimes.

White people haven't had to try to sustain that kind of long, disillusioning struggle for a modicum of unsatisfactory justice in this country. As that sentence implies, African Americans have done little else. Are the rest of us ready to take up the long struggle? Is there anything else to do?