Humberto Leal Garcia, Jr. is a Mexican citizen who was sentenced to death by a Texas jury in 1994 for rape and murder. Texas provided Garcia with court-appointed lawyers, but at no point during his arrest or trial did the state inform him of his right to contact the Mexican consulate, which could have provided him legal aid. This right is guaranteed by the Vienna Convention on Consular Relations, signed by the U.S., Mexico, and 171 other nations. In its treatment of Garcia, Texas was in violation of international law.

It is important to note what, exactly, Texas is being asked to do here. No one questions Texas’ right to try, convict and punish Garcia, who appears to have committed an horrific crime. Nor does Texas have any obligation not to impose the death penalty on Garcia under the Vienna Convention — once Garcia is convicted using appropriate legal procedures, Texas may kill him without violating this treaty.

Rather, Texas is simply being asked to allow Garcia to speak to someone from the Mexican government before it tries and kills him, and even this is too much for Rick Perry.

Perry can get away with thumbing his nose at America’s treaty obligations because of a 2008 Supreme Court decision holding that, even though Texas’ treatment of foreign nationals such as Garcia violates international law, our treaty obligation is not “self-executing” and therefore is more or less unenforceable by the individuals it is intended to benefit.

But Texas’ refusal to honor this treaty places Perry in some very lonely company. North Korea honored the Vienna Convention when it took two American journalists captive in 2009. Indeed, Euna Lee, one of those two journalists, believes that her access to U.S. officials “protected me from any physical mistreatment by my captors.” Likewise, Iran allowed consular visits when it captured two American hikers, although its record on this issue has been spotty at best.

Because of Rick Perry’s decision to flout international law, other nations have little reason to honor the Vienna Convention when Americans are imprisoned abroad. Why should they afford us treatment that we refuse to give to their nationals in the United States? And if other nations decide not to honor this treaty, they are unlikely simply to refuse to honor it when Texans are incarcerated. No one in Iowa, California, Maryland, or Kansas got to vote for Rick Perry, but the whole national will suffer because of his recalcitrance.

Spencer Ackerman has a fascinating piece out at the Washington Independent exploring the creation of a new Office for the Rule of Law and International Humanitarian Policy inside the Pentagon. This is the kind of thing that I think I ought to be cynical about since fundamentally international humanitarian law is about constraining what the Pentagon can do, and offices inside the Pentagon are about expanding what the Pentagon can do. But I’m having a bit of trouble staying appropriately cynical, since the office is apparently set to be headed by Rosa Brooks whose work I used to read very regularly before she joined the Obama administration and who I think is basically great.

I suppose it’ll probably only make trouble for her to bring up some of her better recent columns, but February 5 2009 on Afghanistan was good. In January of that year she had a trenchant piece on Gaza. I thought this was a fair take on the merits of prosecuting Bush administration policymakers. Basically, I’m a fan.

But what’s the office going to do? Ackerman reports:

Many of the office’s emerging responsibilities will center on entrenching respect for the rule of law and human rights as a core focus within the Defense Department. Previously, Pentagon officials who worked on those issues were spread throughout the policy directorate, in bureaus as disparate as Counternarcotics and Detainee Affairs, a reflection of the secondary — Brooks called it “ad hoc” — treatment the department has traditionally provided to humanitarian concerns. Karen Greenberg, the director of New York University’s Center on Law and Security, said the office needs to “restore the notion that the rule of law is there on the table no matter what.” Matthew Waxman, a deputy assistant secretary of defense for detainee affairs at the end of the Bush administration, added that “sometimes important strategic issues can fall into bureaucratic seams, and redrawing parts of the organizational map can help address that.”

As I said at the top, I think there’s ample reason for skepticism that this is really a big deal, but at a minimum it’s a move in the right direction.

At some point, though, critics of Goldstone’s work on the Gaza War are going to have to face the fact that whether or not they like what he’s said on this subject it’s just not the case that Israel’s been the victim of a frameup by white supremacists. For example, I take it that nobody is going to question the anti-apartheid credentials of Desmond Tutu and I don’t think Chait is going to endorse this or this or much anything else he’s had to say on the subject.

I posit that people who don’t like the Goldstone Report ought to actually think harder about international humanitarian law. The American right has a longstanding complaint on this score that international humanitarian law’s even-handed nature constitutes de facto unfair treatment of “the good guys.” Their point of view is that, in essence, you ought to look at a conflict, identify who the bad guys is (the Taliban rather than the US, Hamas rather than Israel), and focus your ire on the bad guy instead of nitpicking at the good guy’s conduct. Hawkish Arabs also join in this critique, though of course in their view it’s Israel who’s in the “bad guy” role. Personally, I don’t find this critique persuasive and I believe in international humanitarian law—just like Human Rights Watch does and Desmond Tutu does and Richard Goldstone does, which is why these organizations find themselves in the position of criticizing both Israeli and Palestinian conduct.

If you ask me, it would be much more plausible if people with liberal views on domestic policy and conservative ones on foreign policy would just join in the overall conservative critique. Instead, a lot of these people have tried to work out a not-so-plausible alternative view in which international humanitarian law is a good thing, but Israel just so happens to continually be victimized by sundry biased and/or unsavory figures. The simple fact of the matter is that adhering to international humanitarian law makes it very difficult to wage war, which I think is a good thing but many people disagree with that. This is an important debate, but it actually has nothing to do with anti-Israel bias or Goldstone’s alleged status as an amoral comformist.

But really if the United States were willing to some day come to its senses and join the International Criminal Court it seems to me that this would be a good venue in which to prosecute major international terrorists. Barring that, I think a regular criminal court will do. But part of working toward a long-term solution to the issue of safe havens ought to be a formal process by which an individual can be declared an international outlaw who all governments have a responsibility to apprehend and hand over for trial to an international court.

Since Human Rights Watch’s work in the Middle East and North Africa is driven by the organization’s anti-Israel agenda, clearly this letter urging Hamas leadership to take seriously the allegations made against their group in the Goldstone Report and to implement Goldstone’s recommendations can’t actually have happened. For that matter, since Goldstone himself was part of the very same vast anti-Israel agenda his own report can’t possibly have said that stuff.

That said, if we pretend that HRW really did issue the statement posted on their website, it highlights an interesting dynamic. Clearly, in the real world Hamas is not an organization that’s interested in human rights or the laws of war. But if you read the article you can see that Hamas is at least an organization that’s interested in pretending to be interested in these things and gets into a dialogue with human rights groups:

Prior to the vote, a Hamas Foreign Ministry adviser, Ahmad Yusuf, had said that Hamas “will try to do our best” to investigate rocket attacks against Israeli population centers. Yusuf also claimed that Hamas had only intended its rocket attacks to hit Israeli “military targets,” rather than Israeli civilians, and that “maybe some of these rockets missed their targets” because they were “primitive weapons.”

That’s pretty transparently nonsense:

In its letter to Haniya, Human Rights Watch recalled repeated statements by Hamas officials and fighters indicating an intent to direct the rockets toward civilian targets and asked Hamas to clarify its stance on the issue. A June 11, 2006 statement from the Izz el-Din al-Qassam Brigades, the Hamas armed wing, for example, said that in response to an Israeli attack that targeted Palestinian fighters, the group had carried out a rocket attack against the Israeli town of Sderot and would continue attacking Sderot “until its residents flee in horror. We will turn Sderot into a ghost town.”

The point here is that Hamas seems to believe that its own legitimacy and interests can, in fact, be damaged by the perception that it is violating the laws of war and attracting the disapproval of human rights monitors. What’s more, Hamas is clearly very interested in pressing human rights claims against Israel. But that, of course, opens them up to pressure to acknowledge the criticisms of their own conduct being made by those very same group. HRW grew out of the Helsinki Watch concept, which was aimed at holding the Communist Bloc to account for violations of agreements they had plainly signed in bad faith. At the time, that was regarded by many as a futile and pointless task, but in retrospect most people now acknowledge that their work was important and effective.

Human Rights Watch’s anti-Sinhalese agenda once again on display:

A US State Department report on possible violations of the laws of war in Sri Lanka made public on October 22, 2009 shows the need for an independent international investigation, Human Rights Watch said today. The report details violations of the laws of war committed by both government forces and the separatist Liberation Tigers of Tamil Eelam (LTTE) from January through May 2009.

“The US State Department report should dispel any doubts that serious abuses were committed during the conflict’s final months,” said Brad Adams, Asia director at Human Rights Watch. “Given Sri Lanka’s complete failure to investigate possible war crimes, the only hope for justice is an independent, international investigation.”

Note how they cleverly mask their partisan, one-sided agenda behind a pretense of criticizing both sides in a fair-minded way. Very insidious.

Pollack “responds” to my post with the observation that B’Tselem is critical of the UN Human Rights Council and also has some disagreements with the Goldstone report. But so what? I never mentioned the UNHRC. I’ll add that Richard Goldstone himself has criticized the UN Human Rights Council’s handling of his report. We can all agree—me, Pollack, Goldstone, B’Tselem, etc.—that the UNHRC’s record on Israel is not a good one*.

That said, I’ll circle back around to the point: Israel has obligations under international humanitarian law and human rights norms, obligations that it appears to have violated, and these obligations stand regardless of crimes on the part of Hamas. This observation has prompted a lot of ad hominem attacks, and a lot of smokescreens and huffy rhetoric, but basically nothing in the way of substantive defense.

I note that the argument has nothing in particular to do with Israel. When it comes to the United States of America, liberals generally think the US has human rights obligations and obligations under international humanitarian law. We think that part of being “the good guys” on the world stage is that we are obliged to do the right thing even if our adversaries don’t. Conservatives disagree with this—they think starting wars and brutalizing detainees, for example, are good ideas—and see human rights as basically a concept that should be opportunistically deployed for geopolitical advantage, and then cast aside the first time you want to start copying Chinese torture manuals. But American liberals who think the US should abide by human rights norms aren’t “anti-American.” Nor are American Jews who think Israel should abide by human rights norms “anti-Israel.”

Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields. These groups are supported by the government of Iran, which has openly declared its intention not just to destroy Israel but to murder Jews everywhere. This incitement to genocide is a violation of the Convention on the Prevention and Punishment of the Crime of Genocide. [...]

The organization is expressly concerned mainly with how wars are fought, not with motivations. To be sure, even victims of aggression are bound by the laws of war and must do their utmost to minimize civilian casualties. Nevertheless, there is a difference between wrongs committed in self-defense and those perpetrated intentionally.

For one thing, The New York Times really shouldn’t publish op-eds stating that “the government of Iran . . . has openly declared its intention . . . to murder Jews everywhere.” There are Jews in Iran, unmurdered, subject to the same repressive dictatorship as Iran’s Muslims, with its abuses duly cataloged and condemned by Human Rights Watch.

The argument in the second graf I quote is, huffing and puffing aside, all there is to Bernstein’s argument. He thinks that Hamas and Hezbollah “started it” and Israel is acting in self-defense, and that countries acting in self-defense should generally be exempted from international humanitarian law and human rights norms. This is a thesis a lot of people seem eager to embrace in the specific case of Israel, but few people seem prepared to defend as a general proposition or to apply as a general matter. People don’t defend it as a general proposition because it’s not defensible. For one thing, this just isn’t what international humanitarian law says. Just war theory has always recognized specific ethical obligations of combatants that are unrelated to the justice of their cause, and international humanitarian law does the same. After all, subjectivizing the obligations of combatants in the way Bernstein proposes would drain the standards of all force. All participants in all wars think that they’re the good guys and the enemy is the bad guys.

It’s the existence of independent standards that lets us say that it’s wrong and illegal of Hamas to lob rockets at Israeli towns, and to try to build a consensus around that point that’s independent of people’s views on all the different twists and turns of the Israeli-Arab conflict. But by the very same token Israel’s obligation to minimize civilians’ exposure to harm also exists independently of people’s views on all the different twists and turns of the Israeli-Arab conflict. To relativize combatants obligations to the merits of their underlying position would just reduce human rights and humanitarian law to politics, with everyone saying all their conduct was justified by the justice of their cause.

If people want to say that the whole quest to articulate objective human rights standards and international humanitarian law is inherently futile or misguided, then fine. But an awful lot of people who claim not to believe that seem to want to turn around and reject the underlying premises of the endeavor when it turns out that Israel—like its adversaries—sometimes violates those standards.

The Obama administration’s stated desire to get the world on track to eventual total worldwide nuclear disarmament starts in practice at the only place it really could start—the quest for a new bilateral U.S.-Russia treaty on bilateral weapons reductions. The Russians want such a treaty because in the short-term maintaining the U.S.-Russia nuclear equilibrium at a high level is a bigger burden on (relatively poor) Russia’s budget than on our budget. But the high equilibrium is a waste of our dollars as well, and it’s strongly in America’s interest to reduce nuclear proliferation as a general matter. But a lot of members of congress are queasy about the idea of a new treaty, basically because they’d rather listen to crazy people like Charles Krauthammer than see the basic logic of a win-win deal.

Josh Rogin reports on some of the negotiations with congress:

Senate Republicans are not completely unwilling to get behind a new nuclear reduction treaty, but they intend to bargain for concessions before supporting ratification. One key concession they will not get, though, is a revival of the Bush administration’s plan to build a new class of nuclear warheads known as the Reliable Replacement Warhead, according to the State Department’s top arms control official.

“I think there are a lot of people that still hope for the return of RRW and they are going to be sadly disappointed,” Ellen O. Tauscher, the newly minted under secretary of state for arms control and international secretary told The Cable in her first interview after taking up her post.

The RRW concept has some benefits if looked at very narrowly, but it’s by no means necessary to American security and would undermine the larger nuclear strategy toward which the administration is trying to move. Reviving the multilateral nuclear non-proliferation regime requires the United States to regain the confidence of non-nuclear states by demonstrating our own commitment to play by the rules. That means not developing new generations of nuclear weapons and instead moving forward on bilateral talks with the Russians. Press reports have repeatedly indicated that the Obama administration is divided on the RWW issue (with Robert Gates, in particular, being a fan) so it’s good to see a clear statement that they intend to stay on the right side of this.

Judge Richard Goldstone

Not really unexpected, but good to have on record:

The UN Fact-Finding Mission led by Justice Richard Goldstone on Tuesday released its long-awaited report on the Gaza conflict, in which it concluded there is evidence indicating serious violations of international human rights and humanitarian law were committed by Israel during the Gaza conflict, and that Israel committed actions amounting to war crimes, and possibly crimes against humanity.

The report also concludes there is also evidence that Palestinian armed groups committed war crimes, as well as possibly crimes against humanity, in their repeated launching of rockets and mortars into Southern Israel.

Presumably Judge Goldstone issued these findings motivated by his racist attitudes toward Jewish people, and threw in the stuff about Palestinians in an effort to cloud over his true agenda with false even-handedness.

Mushroom cloud over Nagasaki, Japan (wikimedia)

Isaac Chotiner reads one rosy tale too many about how the British responded to the Blitz without resorting to torture, and points out that humanitarianism was hardly the rule of the day in the 1940s:

Let’s just take one example: The Bengal Famine of 1943. Scholars still dispute what exactly caused the famine–and whether there were in fact sufficient amounts of food, amounts which went unused–but there can be denying that the Churchill government’s response to this disaster was, in the historian Peter Clarke’s word, gruesome. Upon learning that people were dying at a rapid rate (the total death toll was around 3 million) Churchill simply asked, in an infamous letter, why Gandhi had not yet starved. Eventually the government responded adequately, but this was of little solace to the millions of dead Indians.

Part of the story here is just Churchill’s boundless hatred for Gandhi. But it should be said clearly that today’s sense of outrage about the depredations of the Bush administration is in part about the nature of the depredations, and in part about the fact that our ethical senses have become more refined. World War II was something like the nadir of humane conduct in world history. Back then you could be deliberately targeting enemy civilians for mass death and still be the good guy in the war. Heck, you could be Stalin and still be the good guy. It was a bad time. What’s so disturbing about Bush isn’t so much that his misdeeds have reached an unprecedented level of badness, it’s that much of his conduct seemed to reverse a trend toward better behavior developing over time.

At last night’s press conference, Barack Obama made some news by conceding that the rise of a Netanyahu-Lieberman administration in Israel was not making the prospects for peace any better. That’s true enough, but it’s worth recalling that it’s not as if the previous Kadima-Labor government was really going the extra mile to show its commitment to a just resolution of the problem. The rise of the far-right in electoral politics reflects a general—and quite ugly—rightward turn in Israel more generally. Take this story, for example:

In testimony reported by Israeli news media and in interviews with The Times, Gaza veterans said rabbis advised army units to show the enemy no mercy and called for resettlement of the Palestinian enclave by Jews.

“The rabbis were all over, in every unit,” said Yehuda Shaul, a retired army officer whose human rights group, Breaking the Silence, has taken testimony from dozens of Gaza veterans. “It was quite well organized.”

The army, which conscripts almost every Israeli Jew at 18, has been dominated for most of its history by secular officers. But over the last 15 years, as secular Israelis have soured on the occupation of Palestinian territory, religious nationalists have taken over senior positions in elite combat brigades.

With them have come hundreds of volunteer rabbis, who teach at pre-military academies for religious youths and serve side by side with the troops.

Needless to say, the parallel growth in strength of the religious nationalists of Hamas doesn’t help matters either. Indeed, these two groups have been in a mutually beneficial embrace, both rising to power in their respective societies as both sink further into the mire. My hope would be that we can turn this trend around, but it may not be possible and the United States might have to ask itself what kind of relationship it can have with a country where this sort of doctrine is put forward in official settings.

When asked why that elderly woman was killed, a squad commander was quoted as saying: “What’s great about Gaza — you see a person on a path, he doesn’t have to be armed, you can simply shoot him. In our case it was an old woman on whom I did not see any weapon when I looked. The order was to take down the person, this woman, the minute you see her. There are always warnings, there is always the saying, ‘Maybe he’s a terrorist.’ What I felt was, there was a lot of thirst for blood.” [...]

Amir Marmor, a 33-year-old history graduate student in Jerusalem and a military reservist, said in an interview with The New York Times that he was stunned to discover the way civilian casualties were discussed in training discussions before his tank unit entered Gaza in January. “Shoot and don’t worry about the consequences,” was the message from the top commanders, he said. Speaking of a lieutenant colonel who briefed the troops, Mr. Marmor said, “His whole demeanor was extremely gung ho. This is very, very different from my usual experience. I have been doing reserve duty for 12 years, and it was always an issue how to avoid causing civilian injuries. He said in this operation we are not taking any chances. Morality aside, we have to do our job. We will cry about it later.”

One doesn’t know the extent of these things, but both of the people speaking here are describing orders that were given to groups of people, not just individual instances of bad conduct. Needless to say, there are atrocities and war crimes associated with every war, so there’s no indication that this was any worse than any other military’s conduct. But by the same token, there are atrocities and war crimes associated with every war. A lot of the stateside supporters of this Israeli action seemed completely blind to that reality, as they imagined the IDF somehow stepping pristinely through the most densely populated place on earth and perfectly plucking out Hamas villains rather than, say, gunning down old ladies. That, however, is not the way of the world. And the result is a military operation that’s responsible for orders of magnitude more civilians deaths than were the rocket attacks it was supposedly going to put a stop to.

Next up, we’ll see if the new Netanyahu/Lieberman era of Israeli politics leads to any serious inquiries into these allegations with accountability for the culpable. I wouldn’t say I’m optimistic about that, but it could happen.

Mark Goldberg brings us some very welcome news from the recently signed omnibus appropriations bill, the odious Nethercutt Amendment policy has been reversed. What’s the Nethercut Amendment? Well of course as is well known the Bush administration didn’t much care for the International Criminal Court. It wasn’t initially obvious, however, exactly how opposed to it they were. But not only did they refuse to participate in the ICC, they backed an amendment by Rep George Nethercutt that made it so that a country could only get foreign aid if it agreed to sign an agreement immunizing Americans against ICC prosecution. This was back in 2004, before it was clear that the key policymakers were so committed to this because they were actually in the midst of committing war crimes.

At any rate, this put a lot of countries in a tough spot. As Mark says:

A number of America’s allies declined to enter into these side agreements because they believed their obligations to the ICC prevented them from doing so. They were punished accordingly. Meanwhile, the administration, too, had chose between its opposition to the court and other — arguably more important — diplomatic and foreign policy priorities.

And now the policy is dead. And I, for one, won’t be missing it.

This is, of course, a broader problem with the modern right’s blanket hostility to international law. The train still moves forward without us, but it does so less effectively and in a way that we’re not able to influence. As the world’s dominant power, we can kinda sorta get away with this kind of behavior, but it works less-and-less well with every passing year and only accelerates our relative decline.

I’ve been thinking back on some of the online disputes I’ve been having about Israel’s attack on Gaza, and it occurred to me that what’s missing from a lot of this is context. Not further context of the Israeli-Palestinian conflict, but further context on the use of force in general. The main folks I’ve been arguing with — Jon Chait, Martin Peretz, Michael Goldfarb — are all guys who, I believe, think even in retrospect that support for the invasion of Iraq is nothing worth regretting. And certainly Peretz and Goldfarb were cheerleaders for the 2006 Israeli action in Lebanon, though I don’t remember what Chait thought.

For my part, I think having supported the Iraq invasion is very much worth regretting and over the past five years I’ve changed a lot of my thinking about national security policy and war and peace in general. I was skeptical of the merits of Israel’s attack on Lebanon, skeptical about Ethiopia’s invasion of Somalia, skeptical about Georgia’s attack on South Ossetia, and skeptical about Russia’s furious counter-attack on Georgia. Long story short, I’m strongly inclined to believe that political actors are much too eager to believe that the aggressive use of military force will accomplish their objectives, and also inclined to believe that political actors are much too eager to believe that bloodshed is morally justifiable.

But put in a different, more hawkish context, I’d say what Israel is doing in Gaza is certainly better-justified than what the United States did in Iraq. The threat of Hamas rocket fire wasn’t just a made-up pretext. And the operation seems a lot better-conceived than the one in Lebanon. So given our different prior commitments, I’m not sure I’m having any particularly seriously disagreements with those folks about the particulars of this armed clash or even the Israeli-Palestinian conflict writ large. Or, rather, I’m not sure that such disagreements are really the key drivers of disagreement about this specific thing.

Relatedly, something I’ve heard from fans of this attack is rhetorical questions along the lines of “what would the United States do if we were being attacked by rockets from Mexico or Canada?” Of course with such hypotheticals, it’s always hard to specify the issue correctly. I assume if someone shot a rocket across the Canadian border in the general direction of Seattle that the Canadian government would arrest the guy. But you actually don’t need to get very hypothetical to ask what the United States would do if people felt themselves threatened by foreign killers — we’d do exactly what we did in 2002-2003, namely engage in a panicky, counterproductive, and immoral overreaction driven more by emotion, ego, and politics than by sound thinking about the situation. So I don’t really find it surprising that Israel is reacting in this way.

By somewhat the same token, I do read in the comments section what I would regard as a disproportionate level of shock and appalledness from some quarters about Israeli activities as if this action is some kind of unprecedented outrage in human history. The real outrage is how common and banal, how unsurprising and thoroughly precedented it is.

Israel and Hamas both must respect the prohibition under the laws of war against deliberate and indiscriminate attacks on civilians, Human Rights Watch said today. Human Rights Watch expressed grave concern about Israeli bombings in Gaza that caused civilian deaths and Palestinian rocket attacks on Israeli civilian areas in violation of international law.

Rocket attacks on Israeli towns by Hamas and other Palestinian armed groups that do not discriminate between civilians and military targets violate the laws of war, while a rising number of the hundreds of Israeli bombings in Gaza since December 27, 2008, appear to be unlawful attacks causing civilian casualties. Additionally, Israel’s severe limitations on the movement of non-military goods and people into and out of Gaza, including fuel and medical supplies, constitutes collective punishment, also in violation of the laws of war.

Neither the Israeli government nor Hamas is the first outfit to flaunt the laws of war and they obviously won’t be the last. But I think it’s still important to call these things out, and I think it’s a real problem that the fraught nature of these issues seems to have persuaded a lot of bloggers to basically say nothing about the fighting. At a minimum, duly noting that there are human rights abuses being committed by both sides and that human rights abuses are bad isn’t so hard.

One issue that the incoming administration has on its plate is what to do with the various war criminals now kicking around as a result of the Bush-Cheney torture and detention policies. On the merits, I’d like to see forgiveness for implementers who were following what they were (falsely) assured were lawful orders and harsh measures for people on the policy level. In practice, it’s pretty clear that Don Rumsfeld isn’t going to wind up in jail. Michael Isikoff reports on the Obama campaign’s thinking:

Despite the hopes of many human-rights advocates, the new Obama Justice Department is not likely to launch major new criminal probes of harsh interrogations and other alleged abuses by the Bush administration. But one idea that has currency among some top Obama advisers is setting up a 9/11-style commission that would investigate counterterrorism policies and make public as many details as possible.

….”If there was any effort to have war-crimes prosecutions of the Bush administration, you’d instantly destroy whatever hopes you have of bipartisanship,” said Robert Litt, a former Justice criminal division chief during the Clinton administration. A new commission, on the other hand, could emulate the bipartisan tone set by Tom Kean and Lee Hamilton in investigating the 9/11 attacks.

I think the model being reached for here is something like the South African Truth and Reconciliation Commission. But as Kevin Drum says, on this plan “we’ll get the truth, but not the reconciliation, since I doubt that any of the perpetrators of this stuff are inclined to show the slightest remorse for what they did. I suppose that here in the real world this might be the most we can expect, but I don’t have to like it. And I don’t.”

I’m half inclined to say there should be neither truth nor reconciliation. Instead, George W. Bush should be kidnapped, drugged, flown to Spain in an unmarked plane, and wake up on the streets of Madrid tied up with a bunch of files and evidence pinned to his chest so Judge Garzón can sort the whole thing out. If anyone asks how that happened, deny knowledge and mention “executive privilege.” I dunno.

On a more serious note, I think it’s important to draw a distinction between simply declining to engage in war crimes prosecutions as a matter of prosecutorial discretion, and actually taking prosecution off the table. The latter should be done, if at all, only in exchange for confessions, expressions of remorse, and cooperation with investigations. The former may is probably the better part of wisdom for now, but many of the perpetrators can be expected to live for decades and absent something like a real Truth and Reconciliation Commission the door should be left open to doing something down the road if circumstances change. I don’t think it’s even remotely acceptable to just give a full retrospective stamp of approval on everything that was done during the Bush years merely because that might be the most convenient way to build legislative support for Obama’s domestic agenda.