The desire for a true rule of law exists somewhere, at least, even though they'll never rot in a prison cell.
A tribunal in Malaysia, spearheaded by that nation’s former Prime Minister, yesterday found George Bush and Tony Blair guilty of "crimes against peace" and other war crimes for their 2003 aggressive attack on Iraq, as well as fabricating pretexts used to justify the attack. The seven-member Kuala Lumpur War Crimes Tribunal—which featured an American law professor as one of its chief prosecutors—has no formal enforcement power, but was modeled after a 1967 tribunal in Sweden and Denmark that found the U.S. guilty of a war of aggression in Vietnam, as even more so, after the U.S.-led Nuremberg Tribunal held after World War II. Just as the U.S. steadfastly ignored the 1967 tribunal on Vietnam, Bush and Blair both ignored the summons sent to them and thus were tried in absentia.
The tribunal ruled that Bush and Blair’s name should be entered in a register of war criminals, urged that they be recognized as such under the Rome Statute, and will also petition the International Criminal Court to proceed with binding charges. Such efforts are likely to be futile, but one Malaysian lawyer explained the motives of the tribunal to The Associated Press: "For these people who have been immune from prosecution, we want to put them on trial in this forum to prove that they committed war crimes.
As Greenwald comments at the link, no "serious" person in the U.S. will take this seriously, if they even notice that it has happened, "[b]ut the only thing this Malaysian tribunal is doing is applying the clear principles of the Nuremberg Tribunal as enunciated by lead prosecutor and former U.S. Attorney General Robert Jackson in his Opening and Closing Statements at Nuremberg." Specifically: "The central crime in this pattern of crimes, the kingpin which holds them all together, is the plot for aggressive wars. The chief reason for international cognizance of these crimes lies in this fact." Because the prosecuting of war crimes, "if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment."
That sentiment is echoed in a column by attorney Eric Lewis in the New York Times this week on the specific issue of torture, the new favorite foreign policy hobby horse of Republicans:
Had President Obama shown the courage of candidate Obama, he would have strongly supported civil litigation under the Constitution against officials who authorized torture. The argument that it involves the courts in foreign policy or causes officials to be wary in their actions is nonsense. The ban on torture should be absolute; it is not a foreign policy or defense issue and it is salutary for officials to know that they will be held accountable for torture. President Obama should also have ordered candidate Obama’s “thorough investigation” to go forward, ideally through the criminal process. Perhaps the specter of potential indictments of senior officials made a president who wanted to be perceived as post-partisan queasy, but he should be made more queasy by a former president claiming it was “damn right” to order waterboarding.
When torture becomes another political choice, the debate becomes an empirical one about whether it works. [...] What the Bush administration experience showed was not that torture never works, but that the impulse to torture is ever present. Torture is always seen as a sad necessity, imposed with increasing frequency and brutality as panic and frustration increase. [...]
President Obama’s public commitment to ending torture is laudable and important. It is ludicrous to contend, as some do, that his administration is no different from that of his predecessor. But the problem as we look toward the 2012 election is that there is still no “clearly established legal right” for detainees not to be tortured. So when a new administration comes into office, whether that’s in 2013 or 2017, and finds itself in a panic after the next underwear or shoe bomber, it will still be able to find some eager apparatchik to write a memo that allows torture and promises immunity.
In that, the Malaysian tribunal's has meaning, even though it will have no force. It's a reminder that no one should be above the law. That's a reminder that will likely keep coming home to us, since the crimes of the Bush administration will not be resolved.