Trying Them Everywhere But Here

By Matt Zeitlin

Michael Walzer has a nice essay at TNR — actually, it’s a condensed version of a lecture he recently gave at the University of Chicago — on the trials of political leaders. The historical stuff is all quite interesting but the meat of the lecture is his conclusion about what to do with a figure who isn’t quite Charles I or Louis XVI: George W Bush.

The English had no qualms with trying this guy from crimes committed in political office

Charles I: Political leader who faced trial for political crimes

When Lincoln suspended habeas corpus, and when Franklin Roosevelt ordered the internment of Japanese-American citizens, and when Bush and Cheney authorized the torture of suspected terrorists, they were acting for what they thought was the public good, not for any personal good. And the best way of dealing with actions of that sort, if we believe them to be wrong, is to “throw the rascals out” in the next election and find some decisive way to repudiate their policies.

So perhaps we are not a community of absolutely equal citizens. (Absolutism is always a problematic position.) If I capture and torture somebody, I should be tried and punished. If the president orders that done, not just to somebody, but to many bodies, acting, so he says, in the name of national security, his only punishment is political defeat: we should organize in opposition to his policies and vote against him as soon as we can.

So Walzer pretty clearly comes out against prosecuting Bush, and presumably other high ranking policy makers, for their role in formulating and sanctioning a policy that allowed torture and, hence, the violation of both American and international laws. Now, this is a reasonable view. Just because you believe that the Bush administration did bad, illegal stuff doesn’t hold you to a fiat justitia, ruat caelum view where you must have trials to preserve justice and the rule of law. Political actors acting for political reasons are different in substantive, meaningful ways from normal citizens acting for private reasons.

All that being said, what’s happened since the Bush administration has been swept out of office has hardly been satisfactory.  Bush, Cheney and the rest were going to be out of office in January, 2009 no matter what, so the revelation of a torture policy didn’t really hold out the possibility of hurting them politically. Of course, the Obama administration could have pursued something in between full-on war trials and doing nothing, like a truth and reconciliation style approach, but leaving that to the side, perhaps we need to think of some mechanism that has a reasonable deterrent effect against Presidents implementing a torture policy that won’t run afoul of Walzer’s point.

Here, I think, foreign courts can play a role. Let’s just assume that every time something like the Bush-Cheney torture policy happens, the next administration won’t really do anything in regards to punishing the perpetrators. But if Europeans like Baltasar Garzón (and, of course, judges from other nations) aggressively pursed claims against American leaders after they left office, then,  while the next group of torturers was in office, there could be some deterrent effect in knowing that they won’t be able to travel outside the U.S. Obviously, there are bound to be all sorts of complications from actions like this and it’s far from clear that such a legal environment would actually change the thinking of a Cheney, Addington or Yoo, and it’s unlikely that poorer countries that are more subservient to the U.S. would antagonize us by doing this. But there clearly needs to be some way besides regular elections to impress upon executive branch officials that flagrantly breaking the law — even if they really think that doing so will make the country safer and won’t benefit them in any way — is not something they can get away scot-free with.