His central thesis is that subjecting these miscreants to the criminal justice system is untenable, unworkable, and inappropriate. He postulates that while their actions may well have been illegal and criminal, they do not rise to the level of crimes committed by the likes of a Hitler or a Stalin. His argument seems to be quantitative rather than qualitative.
He writes:
But should the high and mighty get off when ordinary people committing the same crimes would go to prison? The answer is that they are not the same crimes. Administration officials were not thieves lining their own pockets. Theirs were political crimes committed by persons whose jobs were to exercise the powers of government on our behalf. And the same is even truer of the lower-level officers who followed their orders. And what about Nuremberg and the trial of the Japanese war criminals? Were those a mistake, too? Not at all. Those were crimes against whole populations in wars of aggression. An analogous point holds for the criminal leaders of Rwanda, Serbia and Sudan.
And,
If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.
I am stunned by the ease with which he dismisses the crimes, which he readily admits are crimes, by applying some sort of arbitrary body count number to define the level of criminality. This is moral relativism at its worst. It seems the professor has some number in mind as to determining when does "mass killings" end and "genocide" begin? His amoral crassness is astounding. Yes, some crimes are more enormous and heinous than others. But shear numbers must not be the determinate as to whether or not a person is to be held criminally liable for his actions.
He also seems to believe that loss of power and status is more than sufficient punishment for these individuals.
Our veneration of the rule of law makes us believe that courts and procedures and judges can put right every wrong. But we must remember: our leaders, ultimately, were chosen by us; their actions were often ratified by our representatives; we chose them again in 2004. Their repudiation this Nov. 4 and the public, historical memory of them is the aptest response to what they did.
One can only hope that Professor Fried was not one of President-elect Obama's former teachers.
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