There will, of course, be those who say that even if a precedent for punishment is established, future leaders will ignore the possibility of criminal punishment. Not so. Even the current crop of leaders were very concerned that they might be legally held to account, notwithstanding that American leaders have never before been held to account. It was the fear of being held to account in courts even though this had never happened before that led the Executive to commission exonerating legal memoranda from the John Yoos and their ilk in the Department of Justice and the Pentagon. For George Bush, Richard Cheney, Don Rumsfeld and Henry Kissinger to swing, or even for them to spend years in jail, would be a powerful lesson to future American leaders. It is not amiss to note that leaders of Germany and Japan from the end of World War II until today have never advocated the kinds of policies advocated by generations of their predecessors. There are several reasons for this, but one cannot discount the importance of the leaders' knowledge that their predecessors swung in the 1940s.
There are also those who will say that American courts will never call this country's leaders, or their minions like John Yoo, to account. That almost surely is true now and will likely remain true for at least ten or twenty years, even though library stacks and internet servers already are fairly bulging with books, journal articles, internet essays, legal complaints, newspaper articles and other materials showing that horrendous crimes have been committed, and more evidence of and reasons for guilt are in process of being written down. (Our courts are unlikely to act because, unlike in Germany or Iraq, our courts will be branches of the same government which committed the horrible acts, and will include deeply conservative political and judicial supporters of the acts.) But, as we have already seen in the last few years, in Italy, Germany and France, there are courts, and there also are international tribunals, that will prosecute these people, either in person if they dare venture abroad so they can be caught there, or in absentia if necessary. Even trials and convictions in absentia of current leaders would send a powerful message to future ones. And who knows, perhaps someday in the distant future even American courts may be willing to punish the criminal miscreants, or to at least admit that serious crimes have been committed (just as American judges ultimately admitted defacto, decades later, the horribly miscreant nature of the internment of Japanese Americans in World War II).
There will also be those who say, as is so typically American, that we should simply put Iraq behind us, should not seek "revenge" upon those responsible for it, and should just get on with life. But that was said about Viet Nam in its day, helped lead to Iraq, and was largely responsible for the pardon of Nixon which taught American leaders like Bush and Cheney that they can evade punishment for horrible actions. The "forget the past and get on with life" philosophy should not be indulged now any more than we indulged it with the Germans and Japanese. Otherwise we will get more Viet Nams and more Iraqs because leaders will know they can get away with anything, will suffer no consequences to themselves.
In his own time, in the vast cauldron of the Civil War, Lincoln said that the battle of today is not for today alone, but for a vast future. That is equally true of the necessity of bringing to book the men who have led us to disaster twice in one lifetime, in Viet Nam and Iraq. The battle to impose criminal responsibility upon them is not for today alone, but to safeguard a vast future. Otherwise the future will be threatened by Executive lawlessness undertaken because of knowledge that leaders need fear no personal consequences, the future will be threatened by the possibility of more Viet Nams, more Iraqs, more violent denials of basic civil liberties because leaders -- especially leaders of a militaristic or highly conservative cast of mind -- will know they need fear no personal consequences.
It is for all these reasons that I have called a conference to be held in Andover, MA on September 13 and 14, 2008. The conference is entitled Planning For The Prosecution Of High Level American War Criminals. The Conference is not intended to be only a discussion of violations of law that have occurred. Although discussions of ideas and facts showing violations of law will take place, library stacks and the internet are, as said, already bulging with materials showing violations (although in the last analysis decisions on violations will be made by judges if leaders are brought to justice). The Conference, rather, is intended to also be a planning conference, one at which plans will be laid, and necessary organizational structures will be set up, to pursue the guilty as long as necessary and to the ends of the earth in order to bring them before the bar of justice. The underlying law and facts will be discussed in the context of laying plans to pursue the guilty in courtrooms so that in future there may be no more Viet Nams, no more Iraqs.
The topics which will be discussed, and subjects on which plans will be laid, already include the following:
1. Brief introductory remarks stressing that the crimes and misconduct have now occurred twice in forty years -- in Viet Nam and then again in Iraq -- and that the high level perpetrators need to be punished (as occurred at Nuremberg and Tokyo in 1946) in order to ensure that people will not do these things again (as the Germans and Japanese have not committed their crimes again).
2. A discussion of his recent book, The Torture Team, by Philippe Sands, including how Executive Branch lawyers failed in their duties (yet remained in power or gained soft landings (as, e.g., federal judges and professors at leading law schools).
3. What domestic and international crimes were committed, which facts show crimes under which laws, and what punishments are possible.
4. What high level Executive officials (and federal judges and legislators too, if any) are chargeable with crimes.
5. What international tribunals, foreign tribunals and domestic tribunals (if any) can be used, and how to begin and prosecute cases in front of them.
6. What cases have already been brought, with what results and the reasons for the results.
7. What must be done to make the question of prosecutions an issue in the 2008 political campaign and to have the question become a significant subject in the media and on the internet.
8. Creating an umbrella coordinating committee with representatives from the various -- and increasing number of -- organizations that are involved in cases.
9. Creating a Center to keep track of and organize compilations of relevant briefs, articles, books, opinions, facts, etc.
10. The possibility of having a Chief Prosecutor's office ala Nuremberg.
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