"war crimes"? Are you people TRYING to lose this election?

Can we be smart about f-p for once, just once? We're at war. There's not a chance in hell that the US public will support prosecuting a US administration for "war crimes." There's every likelihood the continuing with these MoveOnner stunts will dilute our core message, piss off a million or so national security Democrats in FL and other swing states, and lose an election we should have won easily.

"On some level it's strange to think that the next president should deliberately set out to ratchet down the power of the White House relative to Congress (at least a little), but after Bush, it doesn't seem like such an outlandish proposition."

I can think of one current Democratic candidate that might recognize the need to restrain the power of the presidency.  I can also think of one current Democratic candidate that would not.

There with you Tep.

Why not, for once, LEARN from the Republicans.  It is not necessary to always and constantly talk about what you want to do.  Sometimes - especially in the middle of a crucial election - discretion IS the better part of valour. (And, Tep, that's why Obama's lack of specificity might be good, in these circumstances.)

The US has bigger problems, WAY bigger problems, than prosecuting Colin Powell for alleged war crimes.  Focus on the essentials:

Abroad:

* End the War in Iraq.

* Win the War in Afghanistan.

* Try to regain the trust of the world (few sabers rattled and no more "shock and awe").

* Rebuild damaged alliances; build new ones; win over enemies; don't piss of friends.

* Address - intelligently - the threat of a nuclear-armed Iran led by a millenarian lunatic and a kleptocratic armed forces.

* Don't get into bed, ever again, with zealots and extremists out of an "enemy of my enemy is a friend" policy.

At home:

Health care.

Fair taxes.

Smart regulation.

Infrastructure.

Poverty.

Education.

A new GI-Bill.

Re-building the American family.

Dealing with race and multiculturalism.

...

Of all of these problems that require IMMEDIATE attention, why focus on Rumsfeld, for heaven's sake?  Slow news?  SLLS (suicidal liberal lemming syndrome)?

Unfrackingbelievable ...

Tep,

At what point did Josh or any of the people he cites suggest making this a campaign issue? The question is how this should be handled further down the road.  The practical problem with going after Bush administration members, legally or otherwise, is that it would alienate Republicans for a long time to come, generating a great deal of backlash and hindering any Democratic President's agenda.  The broader issue of how to make sure that power isn't abused this way in the future.

These 'war crimes' arguments are much ado about nothing.  The jokers in question were elected and re-elected by the public.  Why on earth would the public sanction a criminal investigation against fair and square elected representatives of themselves.  

War crimes would become a campaign issue whether we wanted them to or not because the Republicans would make them one. John McCain would offer some tough military talk protecting the Bush folks and everything would crumble on our side. If any serious Democrats (read; not Kucinich) even tried something like this, it wouldn't matter whether Hillary or Obama were touching the issue. Republicans would just push the issue onto them.

The reason we lose is because we're afraid to stand up for anything, we boot lick so Rush doesn't say mean things.  We lose because we lack the spine to passionately defend our beliefs and to lead, not because we're not blood thirsty enough.

tep,

From your "anything that happens is bad for the Dems" posturing (McCain-Romney is unstoppable!) concern to the Fawlty-esque "Whatever you do, don't mention the war!" hysteria here, I'm really beginning to worry about you. I guess it's convenient that you've already got your "reasons" lined up when/if the Democrats lose an election that is seven months away. But at this point you might consider joining the Connecticut for Lieberman Party - that seems to be where your heart really is.

Anyway, to get to the actual issue at hand and not the "war crimes as campaign issue" fantasy:

The next administration will have to do SOMETHING to answer for the abuses of the Bush admin, if only to prove to other nations - particularly our allies - that we aren't hell-bent on destroying the world in order to save it. Oh, and to remind everyone that the American ideal isn't dead, despite Dick Cheney's best efforts to kill it. That should be a priority, too, because, well, this actually is a great country and we have a lot to live up to. Does that mean prosecution for war crimes? In a perfect world it might, but in reality that won't happen. As that Balkinization post says, the rank partisanship would be too much to bear. The nuts in the GOP (and their enablers like Joe Lieberman and others) are the ones with all the guns, after all.  So, yes - a thorough investigation of all the lawbreaking and lawbending and torture and arrogance and venality. An accounting of who did what, why it was morally wrong and/or strategically stupid, how we'll make sure it won't happen again and what we've learned from it. Bring it.

I fear that in this era of "24" and glorified violence in every form of media entertainment, the American public will NOT draw conclusions which Nuremberg lawyers would recognize as moral or even based on "enlightened self interest".  The Bush Admin's actions fit right into the coarseness of our current culture, of which Bush's faux swagger is both symptom and contributing cause.  A report such as Tushnet suggests is probably part of the right approach, but to elicit a beneficial outcome for American freedom (and our standing in the world), the approach will also require a full-court public education effort explain and convince people WHY the behaviors are both morally wrong AND counter to America's national interest.  Conservatives haven't successfully peddled their bile for the last 30 years because their stuff was naturally attractive to people -- they sold it by constantly drilling it and explaining to the point of drowning out any counter discourse.  To counter that, we MUST take the pains to explain and persuade the public WHY this is wrong, and not just expect they will draw the right conclusions.  Owing to the Republican succes in combating the establishment of an American "safety net", most Americans deal with too many stresses and demands on their time to be able to deeply consider these issues -- Democrats need to provide detailed guidance on WHY they should conclude that the Bush Admin's actions are akin to war crimes, and WHY such actions should be completely prohibited PROSPECTIVELY.

eharder2: Nixon was elected four times to high executive office; if he had not been pardoned by Ford, rest assured he would have been charged.  Mere election does not absolve the elected from future criminal pursuit, if indeed they engage in criminal conduct.  Ordering torture orseeking and receiving bogus legal opinions that sanction torture, if done to Americans, would be criminal and if a President or a Governor did either of these things, of course he or she would be pursued.  In any event, last time I checked, Powell, Rice, Rumsfeld, Gozales, Myers and Addington were not elected officials.

Whether it's wise to launch a War Crimes investigation or wise to bring it up right now is a different issue.  

AlanSP: the issue is not whether this should be a campaign issue.  Rather, by bringing up the question one risks MAKING it a campaign issue.  McCain Ad: "America is at war.  American hero John McCain will tackle America's enemies abroad and real problems, like health care and poverty at home.  And what do the Democrats want to do?  Launch a divisive prosecution of elected officials for doing their duty ...".  Please, don't be distracted.  Focus on the essentials.

alexharris  said:

Conservatives haven't successfully peddled their bile for the last 30 years because their stuff was naturally attractive to people -- they sold it by constantly drilling it and explaining to the point of drowning out any counter discourse.

Funny, the thing that drilled national security into my head was watching the world trade towers fall 8 blocks away from where I was.

icarsur: I agree with your point.  However, at the end of the day I think we'll find that this administration acted within the bounds of the public mandate and therefore criminal prosecutions will lack public support.  

eharder2: I don't mean to belabour the point - especially as you already agreed with me ;-) - but I am trying to understand what you mean by "public mandate".  The lynch mob is the most cogent and concise expression of a "public mandate"; whether it is legal, constitutional, permissible, condonable, acceptable, moral, ethical, etc. is a different issue.  

In 2000, when Mr. Bush was elected, there was no "public mandate" whatever for a war, torture of prisoners, effective suspension of the American constitution and so on; in 2004, there might have been a mandate for something - hard to figure out - but whether a vote for Bush in 2004 translated for an active support by the American public of Abu Ghraib or Blackwater is a conclusion I, for one, am not prepared to draw.

Sure, Jack Bauer is popular with a large segment of the American people (and at least one US Supreme Court Justice), but I wonder why Republicans are not running on "Four More Years of Yoo and the Gang" if indeed the public mandate for torture were so strong.

At a minimum, however, I think we agree that talk of prosecution for war crimes is not good electoral politics.

AlexHarris: Agree that Democrats (and right thinking people and lawyers and law professors and activists etc.) should go out there and educate the American people about the ins and outs of torturing prisoners of War.  Hell, I think we should require McCain to talk about his ordeal each time he votes in favour of Bush's torture policies.  The question simply is whether you get into that discussion NOW and therefore distract yourself and the average voter from the bigger problems that affect America, or rather let Congress sort this out in due course once the first flurry of bills have passed and it and the Democratic President have shown themselves capable of providing good government.

When in doubt about the wisdom of distractions, recall Gays-in-the-Military.

When really in doubt, remember Veterans for Swiftboat.

"in 2004, there might have been a mandate for something - hard to figure out - but whether a vote for Bush in 2004 translated for an active support by the American public of Abu Ghraib or Blackwater is a conclusion I, for one, am not prepared to draw."

Obviously impossible to be concrete about this but that's basically the conclusion that I'm drawing.   My feeling is that the public will not be inclined to prosecute these guys since at some level they feel complicit.  Just my hunch...but maybe there is polling data out there that will shed light one way or the other.  

Given the increasing intrusions on civil liberties over, say, the past 50-plus years and the past 8 under the Bush crowd, anyone here ever think you can ever trust any administration, Democratic or Republican, again?

Nixon got away with it. Reagan got away with it.

The Church report and others made their points. And then it all ramps up again. Cameras everywhere. FISA. Other electronic and communications surveillance. Screwing habeas corpus and for that matter the whole Constitution. And we've just let it happen. Talking and complaining hasn't worked.

The Bush crowd must be loudly and clearly held responsible for its crimes -- it should be impeachment, but at least with crimiminal charges brought once it's out of office. Would be nice to see them all in jail. But of course it won't happen.

"it's absurd to expect individual CIA agents to judge for themselves what interrogation techniques are permitted by law."

Really? So America argued at Nuremberg for an "absurd" principle? Because that's what we argued: "I was just following orders" -- let alone "I was just following my superiors' legal advice" -- is no defense for crimes against humanity. Or is Josh's point here that it's absurd to expect America to honor its own stated principles? (He's probably right that it's absurd to expect that it realistically will, but why is it absurd to think that it should?)

Bravo LISAH and JSmith - standing ovation.

I just can't believe the writer of this blog entry used the euphemism "enhanced interrogation techniques".

JSmith, it is a matter of scale. At Nuremberg the issue was a policy of mass extermination. In the case of Bush's gang, we're talking about torturing a few prisoners. I'm not condoning torture at all, but you can't say they are equivalent. If Rumsfeld had ordered summary executions then your argument would apply.

As for the general issue, I think it is a fine idea for the Democratic candidate to state unequivocally that we will not torture, and that we will ban techniques like waterboarding. I think McCain has voted on the anti-torture side in most if not all of the votes in the Senate -- he knows what it is about and he'll be on the same side as the Democrats on this issue.

I agree with others that, politically speaking, bringing up any claim of "war crimes" is a bad idea, and even pushing an investigative commission is not a great idea because of the partisan distraction. It may be worth doing at some point, but it's not a central issue to campaign on.

It most definitely is worth doing. I'd pencil in Jan. 21, 2009 as a good start date.

Actually, Jeff Frey, the Nuremberg Tribunal's authority also extended to "ill-treatment of prisoners of war," not just grand policies of genocide. My understanding of the law on this is that it's been evolving over the decades; the "I was following orders" defense is essentially banned where the issue is genocide or other mass-scale war crimes, but has some limited application in cases of individual misconduct: It won't be accepted as an absolute defense but might figure as a mitigating circumstance, and it won't fly where the conduct ordered is "manifestly illegal" regardless of what the superior said. So the CIA interrogators, if charged, would have to argue that the illegality of torturing prisoners isn't "manifest." That would be a weak argument, I would think, made still weaker by the fact that they weren't "following orders" like soldiers in uniform but rather choosing interrogation techniques on their own within the superiors' guidelines.

Again, what will actually be done about all this is another matter, but I do think it's an overstatement in the original post to call it "absurd" that American officials should be held to standards that the U.S. itself helped establish. I also think the next president will be under some pressure to vindicate American principles after the utter trashing they've taken at the hands of the present criminal regime. And I think some of those interrogators might want to reconsider booking vacations in countries that are signatories to the Geneva Conventions and the International War Crimes statutes. Not everyone in the rest of the world accepts the premise that Americans should be a law unto themselves (go figure).

JSmith, I'll certainly accept your point about Nuremberg, although I strongly suspect that the tribunal would not have been convened (or drastically limited in scope) if not for the existence of the truly horrible crimes. That is, I think they started at the worst level of crimes and then had to draw the line further down as to what would be subject to the tribunal. But I haven't researched that, so I'll gladly accept correction on that point if you know more about the decisions behind setting up the tribunal.

I agree with you that our government put CIA interrogators and other people on very shaky ground. But I would be very surprised if any prominent ex-government officials were arrested overseas. Even with legal justification, nobody wants to piss off the US unless they have an ironclad case. But they might really want to do it.

Having spent most of the last 7 months overseas, I think there will be a significant positive jump in world opinion about the US on Jan 21, 2009. All the new President has to do to earn that is tell the country and the world clearly that he (or possibly she) is not going to be another G. W. Bush. Europeans (and New Zealanders) for the most part like Americans and like the US but they hate Bush with a passion. Although they do wonder if we really are off our rockers given that we re-elected him in 2004. But if the next President follows Bush's policies and practices, then we could be tarnished for a long time.

I can't believe no one's brought up Henry Kissinger yet.

It is of course a ridiculous idea to be talking about war crimes here--tep and icarusr have done their usual splendid job of saying why. I would only add, why not instead Robert Mugabe? Or the leaders of Sudan, Burma, etc, etc,?  Naaah. To hard, and not nearly as appropriate for life-style politics and electoral fashion statements.

Robert Powell, give us a break. You can't be too dense to understand why we're talking about the U.S. administration's war crimes in this thread and not Robert Mugabe's. OK, if I'm wrong about that (denseness, I mean), then here's why: (1) We're responding to a post that dealt with the U.S. government's actions, not Zimbabwe's, and (2) most of us here are citizens of the United States, not of Zimbabwe, Sudan or Burma, so the actions of American officials implicate us and are -- at least going forward -- somewhat more under our control than are the actions of foreign leaders. We're SUPPOSED to get involved in discussing and passing judgment on the actions of U.S. officials -- that's called "democracy" and "eighth-grade civics" -- even as we can ALSO condemn the actions of foreign tyrants and call for them to be brought to justice too; the two positions are not mutually exclusive.

And actually there's a third point: U.S. officials are more powerful, by orders of magnitude, than Robert Mugabe ever was in his wildest dreams. Their actions help shape the entire world in ways that his never could; indeed, it is only because American leaders of the past have been considerably more enlightened than the present crew, and because they used their power to help create the present international order, that there's even a framework within which foreign tyrants are (at least sometimes) brought to answer for crimes against humanity. Some of us are concerned that that framework is in jeopardy if the leaders of the world's most powerful nation, the nation that once took the lead in creating that very framework, become tyrants themselves, and we are further worried -- here's the point of the current discussion -- that if there's no consequence for their tyrannical acts, then the tyranny is more likely to continue or be reproduced in the future. (Conservatives should understand that principle; it's the same one on which they predicate all their calls for the death penalty, long prison sentences and other punitive "law & order" policies against garden-variety criminals.) In any case, even if we're wrong about that danger, it's just elementary ethics to focus more concern on ethical misconduct that can affect more people or that operates on a bigger scale, and on conduct you have a chance of directly influencing, than on lesser cases, however bad those may be in their own right.

Jeff Frey, having spent eight months of 2007 abroad myself, I agree with other comments. Also I wouldn't deny what you said about Nuremberg: The real animus of the prosecutions came from the "big-ticket" crimes. As to the realistic possibility of prosecution over the current outrages, I too doubt that a foreign government would order the arrest of a U.S. official, but remember what happened to Pinochet: It was a local magistrate in Spain who issued the warrant that got him arrested. I could easily imagine a scenario where some odious character, not necessarily one of the top people but, say, a deputy CIA director or something, got picked up somewhere to the overwhelming applause of the public in some foreign country. The leaders of that country might be hard-pressed to just let him or her go, no matter how much they would want to. (I think there may in fact be arrest warrents pending in Italy for the CIA clowns involved in kidnapping Sheik Whatsisname there, agents who were too stupid to conceal their identities or prevent their cell-phone calls from being tracked.)

Sorry, Jeff, I meant: I agree with YOUR other comments. (Would be nice to have a preview feature on this board.)

JSmith, I think you are right about the CIA agents who kidnaped that guy in Italy. I think we can assume they will not be posted to Italy, or vacationing in Florence anytime soon.

Smith--

I am far too dense to understand your description of the Bush Administration, with all its faults, as a "tyranny", and its actions, even some of the more stupid ones, as "war crimes".

I'm not sure about the post you're responding to, but the one at the top of the page here says, "...I'm not advocating that Democrats make "prosecuting Bush war crimes" a campaign issue (that would be suicidal), and even as a matter of law I'm suspicious of the idea."

Me too. I certainly agree with you that "Some of us are concerned that that framework is in jeopardy...", but  for those of us whom I consider sensible the concern is that attempts to confront international crimes of the gravest nature such as launching wars of aggression, genocide, the development and use of wmd's, support for mass-murder terrorism, and the operation of totalitarian police states by means of institutionalized torture, are made significantly more difficult by the hysterical narcissism that sees actions by the US to do so as "illegal".

Robert P., if I understand you correctly, you simply don't think that the U.S. should be held to the same moral standards as other nations. In other words, you're a moral relativist, then? Or do you just never read the newspapers, and therefore have no idea what U.S. officials have been up to for the past several years?

You certainly don't understand me, and not only me, correctly.

If the US was held to "the same moral standards as other nations" we wouldn't even be having this conversation. The US is held to a much higher standard than any other nation now or in the history of nations.  This is probably a good thing overall, but it shouldn't be allowed to distort reality to the extent it seems to for those who imagine we are not operating at a much higher level of both "moral standards", and accountability, than any other major international player ever.

Well, Robert, that is flatly absurd. U.S. officials arrogate to themselves the right to do all sorts of things that they would and do condemn when done by anyone else. This clown John Yoo, legal architect of the torture regime, has publicly claimed that the president could legally authorize the torture of CHILDREN. Even Mugabe probably didn't go so far as to flatter himself that his criminal acts were high-minded expressions of Constitutional principle.

For the last several years, too, this crew has explicitly argued that international treaties which the U.S. not only signed and ratified, but in some cases was the driving force behind, should bind other nations but not the U.S. That was the Bush Administration's stated position with regard to the Geneva Conventions, and it was so transparently lawless that even the right-wing Supreme Court didn't buy it. The Administration has also claimed a right to hold citizens incommunicado and without charges or trial, even as the State Department regularly issues reports condemning exactly those same practices in other countries. As to accountability -- again, on numerous issues they've asserted extraordinary new rights, unprecedented in 200 years of American history, to act in secrecy and without having to brief Congress or explain themselves even to Americans, let alone the rest of the world.

These people are moral relativists of the highest order, utterly incapable of imagining that there's such a thing as a neutral rule that should apply in the same way to everyone -- even when that had otherwise been the official U.S. position for decades. If the U.S. is being held to "the highest level of 'moral standards,'" as you claim, then great! Let's see some practical consequence of that.