Filed under: Human Rights and Torture
In order to argue that the possibility of senior Bush Administration officials being indicted for war crimes in European countries (cf. Scott Horton) is a naive fantasy, Megan McArdle constructs an even naiver fantasy:
Seizing US officials and trying them for war crimes will be perceived by most of the American public as an act of war. An Obama administration that became complicit in this would find itself wistfully hoping that they could, perhaps someday, get their approval ratings up to those enjoyed in the later Dubya years. There would be not inconsiderable pressure to invade Spain to get them back.
Seizing David Addington, John Yoo and Douglas Feith and trying them for war crimes will not be perceived by most of the American public as an act of war. Nobody elected these guys. Most of them worked for Cheney, not for Bush. The only people in the US public who are invested in these guys’ reputations are the 24% of Bush dead-enders, and probably not even that — these are after all the misguided and evil advisers who corrupted Bush, led him astray, and messed up his otherwise noble Iraq policy. Donald Rumsfeld is practically persona non grata in conservative circles these days. So this is just tone-deaf. Barack Obama’s approval ratings would drop, but not significantly, if he failed to take strong steps against a European country that prosecuted David Addington, on strong evidence, for having crafted the policy of torturing detainees that was carried out on a number of European citizens, among others.
There are, in fact, people who are very strongly invested in preserving impunity for senior US officials (as opposed to hapless grunts on the ground) who have committed war crimes. But those people are officials in the US military and government bureaucracy. They’re the ones who have a perfectly logical and very strong interest in ensuring that no matter how sick or flagrantly illegal are the banally evil decisions they make in the comfort of their Washington offices, they will never be held to account for them. And they have the power to ensure that their interests in this regard are protected. For this reason, Megan is correct that it is highly unlikely that senior US officials will ever be arrested in European countries on these charges, but she’s wrong about how the question plays out.
That we would do so [invade Spain] seems farfetched. What does not seem so unlikely is that the US would almost have to pull out of any organization that supported this action, up to and including the UN. We are still the country of Monroe and Roosevelt.
By now I think we’ve gotten into fantastical territory. No indictment of a private US citizen who was never an elected office-holder is going to induce the US to pull out of the UN, which is in any case completely organizationally irrelevant to a decision by Spain to enforce, say, the Convention Against Torture by arresting David Addington.
The adjective “farfetched” has its place here, but it comes much earlier in the narrative. It is farfetched that things will come to the point where US officials are arrested on war crimes charges in Europe. Such an event creates huge diplomatic complications and headaches, and tremendous electoral risks for political parties in all countries involved. Everyone is going to try to avoid letting things get to this point. One excellent way to do that might, for example, be for the relevant European country to make its arrest warrant public well ahead of time, establishing perfectly clearly that David Addington is not allowed to fly through Barcelona. The US government might communicate to Mr. Addington that while it is not about to honor an Interpol warrant for his arrest, it is also not about to infringe on Spain’s right to decide whom it wants to arrest under its own interpretation of international laws regarding gross violations of human rights, be that person Charles Taylor or David Addington. By the time the issue arises, Addington will not be a US government official, he will be a lawyer in the private sector. It seems doubtful to me that he is going to want to play chicken with a jail sentence. With no-fly lists, it may be possible to avoid even the possibility that Addington could end up on a flight through Spain or a European country honoring such an indictment.
…The result, therefore, seems almost certain to be some sort of horrific blow to the power of all these international institutions, which become fundamentally irrelevant if the United States does not participate. America provides most of the military force that supports those institutions; even when they are not our troops, it is our air support, our logistical support, our sea power that stands behind the boots on the ground. The public political pressure in Europe will undoubtedly be just as strong for these actions as the pressure here will be against them. It will only be after the damage is done that Americans will realize it is sometimes convenient to have allies, while Europeans belatedly discover that internationalism doesn’t just run on solemn conferences and soft power. Not to mention how cute they’ll all look trying to hem in Russian expansionism without the implicit threat of the American troops now stationed in their countries…. The US flatly cannot be brought to heel in this manner, while other nations can. Shall we enjoy the righteous satisfaction of expressing our moral outrage, at the cost of severely eroding the international community’s ability to encourage peace in the rest of the world? Only if you think that American politics is so overwhelmingly important that it overrides trivial considerations like dead Bosnians.
This isn’t plausible, and by the end it turns, I feel, rather morally bankrupt. Look, US officials are not going to be arrested for war crimes in Europe. In the incredibly unlikely event they are, it would be because it had been determined in advance that nobody in the US cares about them, in which case the political consequences Megan claims fall. In either case, the US is not about to pull out of the UN, certainly not because of the prospect that Germany might arrest David Addington for deciding to torture German citizens. To wave about the ludicrous specter of an American pullout from the UN on such farfetched grounds as a reason for opposing European indictments of the American officials who created the US’s torture policies is a profoundly back-asswards move.
Because what’s really sinister about the argument Megan is making is that she’s essentially saying that because a significant percentage of the American public doesn’t think that the US should abide by international law, and because the international community collapses when not led by the US, international law itself can only function properly if the US is in fact held exempt from it. The past 8 years have demonstrated that this is the opposite of the truth. First, when the US withdraws peevishly from the international community, other countries work around it, move ahead, and wait for a more congenial American regime to be elected (cf. global warming). Second, American-backed international human rights law enforcement has been deprived of legitimacy precisely because of America’s refusal to abide by international human rights law and its refusal to prosecute its own officials when they violate that law. The specter of Saddam Hussein being tried by an American-organized court just as mid-level US officers were being exonerated of responsibility for torturing Iraqis in Abu Ghraib was all any Milosevic, Karadzic or Mladic ever needed to back up the cry of “victor’s justice” in the eyes of most of the world.
So that’s what makes the “trivial considerations like dead Bosnians” line really objectionable. First of all, I’m not clear which Bosnians Megan thinks the US saved the first time around. Second, I’m not clear how exactly she thinks in the future the US is going to lead some international coalition to stop genocide when its credibility has been blown to hell precisely by its open scorn for international law (particularly those “quaint” Geneva Conventions). And finally, the idea that letting David Addington go unpunished for crafting a policy of torturing Muslims, while maintaining plausible deniability, is the only way we can punish Radovan Karadzic for crafting a policy of torturing Muslims, while maintaining plausible deniability, is really pretty gross. The world would be a sick place indeed if this were true; fortunately, it isn’t.
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