roachboy

1.

this would get into an extremely ugly area pretty quickly if there was a move against people who carried out torture--you'd end up with versions of the nuremburg defense---whaddya mean? i was just following orders.
i would expect that the political and institutional damage that would have been done was seen as outweighing the upside of positioning the united states as a country that actually does not torture because, you know, geneva convention, basic human rights--all that stuff which only really matters when adhering to them is a problem. when there's no pressure, when there's no crisis, it means nothing---well not nothing, but rather it is easy to adhere to such conventions and principles when there's no pressure from within not to.

and we all know that war crimes only happen in the context of regimes that loose wars. loosing a war is therefore the real crime.

so i think this decision is in principle kinda foul.

2.

at the same time, in pragmatic terms, i think the obama administration's systematic dismantling of the bush people's policy logic and legal framework that enabled this to happen is obviously a good thing. and the public repudiations of the policy a good thing.

but that isn't really the question.

=======

reframe.

if i may, i 'd like to try to open out the questions in the op a bit. this is complicated.

(a) *should* it in fact be the case that war crimes--crimes against humanity--are only actionable if a political regime looses a war.
what does that mean?
that there are no crimes against humanity possible by a "legitimate" regime?
but if it's functionally impossible to prosecute war crimes carried out by "legitimate"regimes, doesn't that amount to saying that there are no war crimes possible unless a regime looses a war?

and again--that means the real crime in our o-so-ethical global order is losing a war.
you want an example---think about the travesty that was the trail of saddam hussein.
now i'm not in any way arguing that he was not a brutal dictator--but think of the farce his trial was.
what clearer demonstration could you have that the crime really was loosing and the war crimes prosecution is in fact a mechanism used by those who win to break the political power of the regime they fought?

that seems fucked up.
doesn't it seem so to you?

what does that make a war crime?

o but it gets better:

(b) war crimes---crimes against humanity--are of an order that the legitimacy of a political regime that enacts them SHOULD be placed into serious question.

members of the political class within a given nation-state in a position like, say, obama's, find themselves trying to maintain the legitimacy of the system as a whole in significant measure because they occupy positions of power by virtue of it.

so they have no interest in triggering the kind of questions about legitimacy that would follow by prosecuting war crimes--torture is a war crime, extraorindary rendition arguably so, much of the treatment of prisoners arguably so, the separation of detainee from prisoner of war arguably so.

the reason that the legitimacy of a political regime that carries out such actions is placed in question fundamentally by any prosecution is simply that a political order in a modern state dovetails with a professional apparatus that is not politically appointed, that is permanent--the functionaries---and the prosecution of war crimes necessarily implicates not only the political leadership but the permanent apparatus of the state. there is something about the way things are done in the states IN GENERAL that is a Problem.

this seems to be the position the obama administration is basically arguing above--they aren't talking about state legitimacy though (why would they?)--instead they couch the argument in continuity of "national security"--but that's bullshit, really. but if you think about it, that they'd do this is expedient: why invite the questions that your actions are designed to avoid?


but this leads to a Problem.

(c) if that is the situation of, say, the obama administration (here as an example)--that they simultaneously want to condemn the practices of the bush people, dismantle their local conditions of possibility---but they also want to block basic questions as to the legitimacy of the political order itself which they now control...and if this is in general the position of ANY nation-state government---and this would be the basis for the argument that war crimes are only carried out by regimes that loose wars.

but there's another way to see this.
doesn't it follow that a national-level legal system, which is intertwined with the national-level legal system--is NOT in a position to make decisions about war crimes prosecutions?

should this be a question for the international war crimes tribunal to decide on?

if there were crimes against humanity, where is the iwct?



it's a tricky set of problems.
i'm not sure i've outlined them in the best way, but as i see it, there we are.

__________________
a gramophone its corrugated trumpet silver handle
spinning dog. such faithfulness it hear

it make you sick.

-kamau brathwaite