Saturday, June 12, 2004

An American at the Hague?

Jon Tepperman of Foreign Affairs wrote about the possibility of the Bush Administration personnel ending up in the dock at the Hague for thier role in the torture scandal in Iraq. It points up the possibility of an line of attack for the Kerry campaign. Why aren't they pursuing it vigorously? The Administration is wounded by this scandal. Why not move in for the kill?

I think it is likely that Kerry is a afraid to push too hard on the issue of Bush's potential criminality. He is hoping that the Bush Administration will be destroyed by the the CIA, the Pentagon, and the professionals of the Justice department in this, and other scandals. His is not an entirely unrealistic viewpoint. Kerry's criticism tends to make the whole affair look political when it is not, giving the Republicans a rhetorical lever they surely wished they had - they can hardly claim partisanship by the CIA or the Pentagon without looking like fools. This is why their rhetorical ire is reserved for 'liberals' who are outraged by the torture pictures, or, more properly, the torture itself. Better that Kerry relies on proxies like Gore to let the faithful know how he feels (note that Kerry refused to repudiate anything Gore said when asked about Gore's speech) and continue letting Bush beat Bush.

Additionally, Kerry has by his own admission either witnessed, and failed to halt, or possibly participated in events in Nam which he himself considered to be war crimes at the time. Any war crime accusations from Kerry simply invites the GOP attack dogs up that old dark alley - not a good move. Better to wait for the election to install him, and allow the dregs of BC04 to be hauled off to a special UN tribunal, to be tried for Iraqi war crimes. Kerry would likely pardon Bush and Cheney under US law to be sure that executive immunity for 'acts of state' are not endangered by a criminal trial under US law, unless he's impeached before the end of his term, of course. Although I do not pretend to understand all the legal motives for pardoning a President accused on a criminal activity who is willing to resign, certainly one is that there is no where in the US he could get a fair trial. It not at all clear, however, whether the President can pardon anyone for crimes against humanity, protecting him from international justice; it is unlikely he can.

Kerry should keep his hands clean of the whole affair, and negate the charges of political motivation which would be the certain response to his involvement. As much as I think it is time for a US President end up in jail for crimes committed while in office, it shouldn't be a US jail.

The one exception to clemeny I can forsee is if Bush tries to forstall justice by pardoning his confederates who could implicate him, or, indeed, pardon himself before stepping down, as Nixon contemplated doing. Kerry, as the preseumptive next President, should work with Congress at that point pull out all the stops to prevent such a gross abuse of the pardon power. Allowed to pass unchallenged, such use of the pardon power could place the President permanently above the law if allowed to take root in American constitutional tradition. Better to precipitate a Constitutional crisis now than allow such a precedent to fester and spring forth to destroy the Republic, turning it into naked distatorship at some future date.

Along the same lines, all members of the Bush Administration who are convicted of crimes in U.S. courts or international tribunals, or are pardoned for their crimes, should be impeached post-term. This is a controversial practice, as yet untried in the U.S., though widely accepted in England. Post-term impeachment would prevent the criminals of the Bush Administration from ever holding elective or appointed office again. Given that the Bush II Administration recycles so many of the convicted and alleged criminals of the Reagan and Bush I administration, the wisdom of disqualifiying certain 'bad-apples' from ever holding a public trust again is self-evident. People like Poindexter, Armitage, and Negroponte should not be tolerated in public service. And certainly people like Wolfowtiz, Libby, Cambone, Perle, Feith, and their ilk should never turn up in a future Republican Administration. These people are unfit to serve and should be barred from creeping back into power. Post-term impeachment is the only way to ensure that they won't.

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