December 28, 2003
War and Justice

In separate cases, U.S. Courts of Appeals for the Second Circuit and Ninth Circuit ruled that "enemy combatants" should be granted lawyers and due process. Up to now, President George W. Bush and Attorney General John Ashcroft have played fast and loose with the laws of war and bent the rules to suit them. For the fallen Iraqi dictator, the president has called for a trial that meets international standards, yet here at home "enemy combatants" face primitive military tribunals.

 From "Bush Can't Have it Both Ways"

Bush will soon learn that, in the unpredictable realm of political justice, he cannot have it both ways. The Bush administration would be wise to heed the warning of German legal theorist Otto Kirchheimer: "Justice in political matters is more tenuous than in any other field of jurisprudence, because it can so easily turn to mere farce."

Since 9/11, the administration has declared that "enemy combatants" captured in the "war on terrorism" will be tried before traditional military tribunals following cautious precedents laid down by the U.S. Supreme Court in the 1942 Quirin case dealing with Nazi saboteurs who landed on Long Island, and the 1946 case of the fallen Japanese general Tomoyuki Yamashita. The "dirty bomber," Jose Padilla, presented an unusual case: He was both an American citizen and an aspiring al-Qaida terrorist. Arrested on U.S. soil, Padilla was declared an "enemy combatant" and held for close to two years without charges and without seeing his lawyer.

No less an authority on war crimes than Marine Lt. Col. Gary Solis, who formerly taught the law of war at West Point, argued that "even a 'bad man' has rights." Judge Stephen Reinhardt of the Ninth Circuit concurred: "Even in times of national emergency - indeed, particularly in such times - it is the obligation of the Judicial Branch to ensure the preservation of our constitutional values and to prevent the Executive Branch from running roughshod over the rights of citizens and aliens alike."

It is one thing to play legal games with small fry like Padilla and Guantanamo Bay inmates, but soon the Bush administration will face real challenges and hostile international public opinion in the trial of Hussein. The captured Iraqi leader is the most significant single war-crimes defendant since Herman Goering took the stand at Nuremberg in 1946. Compared to Hussein's use of poison gas against Iranians and his own people, Slobodan Milosevic, now on trial in the Hague, is a relative small fry.

How ironic that the president who singlehandedly rolled back most of the international legal gains of the 1990s is now calling for a trial that will bear "international scrutiny." While a legitimate trial for Hussein could firmly establish his guilt in the eyes of his countrymen, any trial designed to "educate" the Iraqi people could quickly turn to farce as trials cannot be asked to teach historical lessons. Trials, at best, can only establish legal guilt or innocence.

The idea that war-crimes trials can "re-educate" societies is based upon the assumption that the Nuremberg trials did more than punish the guilty and exonerate the innocent - that they also transformed Nazis into law-abiding democrats. Neither assumption stands up to the analysis of a new generation of scholars. German historian J"rg Friedrich contends that the Nuremberg trials caused many to embrace their fallen leaders: "Yet although their guilt was proven beyond a reasonable doubt, the public simply chose not to believe it. The wedge of criminal guilt that was meant to be a wedge between the public and the defendants turned out to form a link between them."

The Bush administration has entered the high-stakes arena of political justice, a place where law, politics and public opinion oscillate in a constant state of flux and the line between "blasphemy and promise" is a very fine one.

Posted by tstubbs at December 28, 2003 10:13 AM
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