Bush, You, Me And War Crimes

The issue of “war crimes” committed during the Bush administration is becoming the third rail of American politics. Nobody, least of all Obama, seems to want to touch it. He seems to be backing and filling on some of the questions surrounding it. With good reason, I may add.
First of all, let’s get one thing straight: The phrase “war crimes” is in itself almost a criminal redundancy. War itself is a crime. Therefore just about ANYTHING you do waging war is likely to be a criminal act in terms of what is generally considered decent behavior in human society.
There’s the normal, like shelling or bombing a city that has civilians in it—Berlin, London, or Tokyo. There’s blockading and starving a civilian populace. There’s executing civilians for remaining loyal and helpful to their own government. All in the normal business of warfare.
Then there’s the slightly less usual aspects of the warfare business. Whether it’s a tired GI shooting some German POWs to keep from having to walk them miles back to the holding area, or Sherman burning down every civilian piece of property he could find from Atlanta to Savannah, it happens in every war.
War crimes generally tend to be things done by the losing side. Imagine if the Confederacy had won—would they have hanged Sherman? How about General Amherst sending Small Pox infected blankets to the Indians so he didn’t have to fight them in open battle? Or US cavalry burning stocks of Indian food so they’d starve over the winter?
Or Napoleon slaughtering POWs so he wouldn’t have to waste precious resources feeding them? Or Belgian atrocities in the Congo at the dawn of the Twentieth Century? Or Caesar and Joshua wiping out whole populations, man, woman and child?
I could go on and on. Every one of these had an apparent military necessity behind it. Nearly every one of these contributed materially to the perpetrators’ ultimate victory in war. I repeat, war is, by its very nature, a criminal activity. To single out individuals as criminals (usually because they lost) and punish only those is a bit on the hypocritical side.
When I entered law school (I never finished because a year taught me I didn’t want to be a lawyer), one of the deans threw out questions to incoming first year types. He picked me to ask what I thought of the Nuremburg War Crimes Trial. I replied that it was a “kangaroo court”.
Horrified, he turned to the next student with a more innocuous question. I still regret not replying that “a fool asks a question and will not stay for the answer,” but I sat down quietly. I find myself in quiet moments still repeating the answer I never got to make.
(Let’s make this clear—Nazi crimes were wicked and horrible beyond most peoples’ imagination; my quarrel is with the venue, and the failure of those involved as combatants and victims not to recues themselves. And with the dangerous precedent that was set.)
Under American rules of jurisprudence, the victim of a crime may NOT be seated as a juror in the trial of the perpetrator, let alone sit as judge and jury! The arresting officer –who may well have been wounded in the apprehension of the accused—may not sit as judge or jury either. That happened at Nuremberg.
The verdict in such a trial if it occurred in any American court would be tossed out. I doubt if appellate judges would need to deliberate for more than a few moments. The Nuremberg verdicts could NEVER have survived Constitutional scrutiny in this country. In America, every criminal—however heinous—is given the chance to be acquitted. However wicked, the Nazi leaders had none.
With Russians, French, British and Americans all trying the rustlers for “stealing their cattle” (bombing their cities, killing their POWs, violating all sorts of laws of war), you have a classic case of what is called a “kangaroo court”. That’s a court without valid jurisdiction, going into the case with a presupposition of the guilt of the defendants—grossly improper under American criminal procedure.
In fact, under American law, those who executed the Nazis would be liable for criminal prosecution themselves. There are those pesky issues like “change of venue,” “unbiased jurors” and a judge who has no personal stake on the outcome of the trial.
Admittedly you would have to find unbiased judges and jurors among some completely isolated tribes in New Guinea or the Amazon Rain Forest—but that’s just one of the things that make police work difficult and, just incidentally, protects us from genuinely unwarranted prosecution. The Constitution can be SO inconvenient at times. We justified the legal travesty of Nuremberg because it was war.
Let’s get back to the issue of Bush and his alleged crimes. We—you and I and all Americans—are involved. We were scared after 9/11. We asked our President to make us safe, to protect us. He did his best (and we initially cheered) by his lights. We all saw the attack as an act of war.
Since he was fighting a war—in which there are always criminal activities on both sides—a lot of what he did wasn’t very nice. It bordered on; it may have crossed over into, the criminal. As the French put it so well, if cynically, “C’est la guerre”.
Try Bush for trying to protect us with tactics we would not normally permit in peace time, and for what are you going to try the next President who finds it necessary to protect us? You want to dig up Roosevelt for fire bombing Axis cities? (After all, the British began bombing civilian populations in 1939—before Germany dropped a single bomb on Britain.) How about an in absentia trial of Lincoln for what he directed Sherman and Sheridan to do?
We could nail Andrew Jackson on “ethnic cleansing” that resulted in thousands of innocent deaths. Or Truman for unleashing the atom. And so forth and so forth.
Someday, God forbid, we may seriously lose a war. We have established the precedent at Nuremberg that American generals who fight ferociously to defend us may be tried and executed for war crimes.
Blame Bush for being stupid, for misreading the evidence, for not listening to those who warned against Iraq, for indulging in wishful thinking, for carrying some anti-terrorist policies to the point of cruel absurdity, if you will. Be very, very cautious about using the term “war crimes”.
The president or general you inhibit may let some truly nasty person kill you.