Friday, June 27, 2008


SCOTT HORTON, THE NEW REPUBLIC Yes, there are ample theoretical grounds for a war-crimes prosecution. But the action requires political will, which makes it quite unlikely to happen in the United States. First, the Bush administration has, under the legal stewardship of Addington, Alberto Gonzales, and John Ashcroft, taken a number of clever steps designed to make it difficult for any future prosecutor to charge them for war crimes. In fact, the administration's legal architects recognized from the outset that their dismissive attitude toward the law of war was not widely shared. Some of the earliest legal policy documents crafted by the administration were focused on avoiding or obstructing just such action by future prosecutors. . .

Second, leading figures in the Bush administration will loudly decry any effort to enforce the law of war against policymakers as an act of partisan political retribution. Still, it is quite possible that the key administration figures will have their records scoured very closely. Did they engage in acts that constitute a criminal violation of the public trust? Did they lie to Congress as it attempted to probe the detainee abuse issue?. . .

Is it likely that prosecutions will be brought overseas? Yes. It is reasonably likely. . . In the past two years, I have spoken with two investigating magistrates in two different European nations, both pro-Iraq war NATO allies. Both were assembling war crimes charges against a small group of Bush administration officials. "You can rest assured that no charges will be brought before January 20, 2009," one told me. And after that? "It depends. We don't expect extradition. But if one of the targets lands on our territory or on the territory of one of our cooperating jurisdictions, then we'll be prepared to act."

Viewed in this light, the Bush Administration figures involved in the formation of torture policy face no immediate threat of prosecution for war crimes. But Colin Powell's chief of staff, Colonel Larry Wilkerson, nails it: "Haynes, Feith, Yoo, Bybee, Gonzales and--at the apex--Addington, should never travel outside the U.S., except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In the future, some government may build the case necessary to prosecute them in a foreign court, or in an international court." Augusto Pinochet made a trip to London, and his life was never the same afterwards.

The Review has argued for some time that instead of pursuing impeachment, congressional Democrats should compile a comprehensive list of war crimes and other criminality on the part of the Bush administration that would be available to any prosecutor or any citizen seeking civil damages. Horton, a law professor, seems to have overlooked the effect a plethora of such actions throughout the country would have on the perps, regardless of the eventual legal outcome.


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