Should the U.S. prosecute Bush officials for torture? Two views

Yes: The standards we hold others to also apply to us.

By Mark J. McKeon

On Sept. 11, 2001, when the twin towers were hit, I was sitting in a meeting in The Hague discussing what should be included in an indictment against Slobodan Milosevic for war crimes in Bosnia. I was an American lawyer serving as a prosecutor at the International Criminal Tribunal for the former Yugoslavia, and there was no doubt that Milosevic should be indicted for his responsibility for the torture and cruel treatment of prisoners. As the head of state at the time those crimes were committed, Milosevic bore ultimate responsibility for what happened under his watch.

While at The Hague, I felt myself standing in a long line of American prosecutors working for a world where international standards restricted what one nation could do to another during war, stretching back to at least Justice Robert Jackson at the Nuremberg trials.

Those standards protected our own soldiers and citizens. They were also moral and right. So I didn’t understand why, a few months after the attacks in 2001, the Bush administration withdrew its consent to joining the International Criminal Court. Wasn’t accountability for war crimes one of the things America stood for? Although staying with the court did mean that the United States would be subject to being charged in that court, how likely was that to happen? Surely we would never do these things. And, in any event, the court could only assume jurisdiction over a person whose own government refused to prosecute him; surely, that would never happen in the United States.

And yet, seven years later, here we are debating whether we should hold senior Bush administration officials accountable for things they have done in the “war on terror.”

In 2001 and the following few years, we at the international tribunal built a strong court case against Milosevic. We presented evidence that he had effective control over soldiers and paramilitaries who tortured prisoners, and did worse. And we watched as other heads of state were indicted for similar crimes, including Charles Taylor in Liberia and, of course, Saddam Hussein in Iraq.

At the same time, I watched with horror the changes that were happening back home. The events are now well known: Abu Ghraib; Guantanamo; secret “renditions” of prisoners to countries where interrogators were not afraid to get rough; secret CIA prisons where there appeared to be no rules.I tried to answer the questions from my international colleagues at The Hague about what was happening in and to my country. But as each revelation topped the last, I soon found myself without words.

I hope that the United States has turned the page on those times and is returning to the values that sustained our country for so many years. But we cannot expect to regain our position of leadership in the world unless we hold ourselves to the same standards that we expect of others. That means punishing the most senior government officials responsible for these crimes. We have demanded this from other countries that have returned from walking on the dark side; we should expect no less from ourselves.

To say that we should hold ourselves to the same standards of justice that we applied to Slobodan Milosevic and Saddam Hussein is not to say that the level of our leaders’ crimes approached theirs. Thankfully, there is no evidence of that. And yet, torture and cruel treatment are as much violations of international humanitarian law as are murder and genocide. They demand a judicial response. We cannot expect the rest of humanity to live in a world that we ourselves are not willing to inhabit.

Mark J. McKeon was a prosecutor with the International Criminal Tribunal from 2001 to 2004 and a senior prosecutor from 2004 to 2006.

No: Terrorists declared open-ended war against America.

By Thomas Sowell

It used to be said that self-preservation is the first law of nature. But much of what has been happening in recent times in the United States, and in Western civilization in general, suggests that survival is taking a back seat to the shibboleths of political correctness.

We have already turned loose dozens of captured terrorists, who have resumed their terrorism. Why? Because they have been given “rights” that exist neither in our laws nor under international law.

These are not criminals in our society, entitled to the protection of the U.S. Constitution. They are not prisoners of war entitled to the protection of the Geneva Convention.

There was a time when people who violated the rules of war were not entitled to turn around and claim the protection of those rules. German soldiers who put on U.S. military uniforms, in order to infiltrate American lines during the Battle of the Bulge, were simply lined up against a wall and shot.

Nobody even thought that this was a violation of the Geneva Convention. American authorities filmed the mass executions. Nobody dreamed up fictitious “rights” for these combatants who had violated the rules of war. Nobody thought we had to prove we were nicer than the Nazis by bending over backward.

Bending over backward is a very bad position from which to try to defend yourself. Nobody in those days confused bending over backward with “the rule of law,” as Barack Obama did recently. Bending over backward is the antithesis of the rule of law. It is depriving the people of the protection of their laws, in order to pander to mushy notions among the elite.

Even under the Geneva Convention, enemy soldiers have no right to be turned loose before the war is over. Terrorists –“militants” or “insurgents” for those of you who are squeamish– have declared open-ended war against America. It is open-ended in time and open-ended in methods, including beheadings of innocent civilians.

President Obama can ban the phrase “war on terror” but he cannot ban the terrorists’ war on us. That war continues, so there is no reason to turn terrorists loose before it ends. They chose to make it that kind of war. We don’t need to risk American lives to prove that we are nicer than they are.

As if it is not enough to turn cutthroats loose to cut throats again, we are now contemplating legal action against Americans who wrung information about terrorist operations out of captured terrorists.

Does nobody think what this will mean – for many years to come – if people trying protect this country from terrorists have to worry about being put behind bars themselves? Do we need to have American intelligence agencies tip-toeing through the tulips when they deal with terrorists?

In his visit to CIA headquarters, President Obama pledged his support to the people working there and said that there would be no prosecutions of CIA agents for prior actions. Then he welshed on that in a matter of hours by leaving the door open for such prosecutions, which the left has been clamoring for, both inside and outside of Congress.

Repercussions extend far beyond issues of the day. Whole nations that rely on the United States for their security see how easily our president welshes on his commitments. So do other nations, including those with murderous intentions toward us, our children and grandchildren.

Thomas Sowell is a senior fellow at the Hoover Institution, Stanford University.