Prosecution as Opposition?
It seems to be something of a fad on the left these days to talk about Bush as a war criminal, and call for prosecution under international humanitarian law, even impeachment. For instance, about a month ago, a group called the Not In Our Name Statement of Conscience started a Bush Crimes Commission which held a mock indictment of Bush before an ‘independent commission’. Another group, found at Convict Bush and Cheney (why not Rumsfeld? Rice? Feith? Franks?) is ‘compiling clear and convincing evidence of High Crimes and War Crimes committed by George W. Bush, Richard Cheney and the Bush/Cheney Administration’.
Now it may very well be that they have broken all kinds of humanitarian laws, and many laws of war. But these various groups style themselves as political opposition, and this is where we have doubts. Law tells us if individuals have violated juridically enforceable rights. It is far less effective in addressing broader social relationships and underlying trends. Pat Fitzgerald may be able to figure out whether ‘Scooter’ committed perjury, but the nature of the law means that he will never hold a press conference to say if the Iraq invasion itself was illegitimate. In fact, the obsession with the legality of the administration’s actions runs the risk of over-personalizing the war on terror, and of substituting the conviction of a few widely loathed public figures for real change. This makes it a particularly weak form of political opposition, one moreover that reinforces the current lack of popular accountability. Without a meaningful opposition, the call for prosecution displays the frustrated hope that if the public can’t direct politics, maybe a judge or lawyer will. We shouldn’t hold our breath.
Now it may very well be that they have broken all kinds of humanitarian laws, and many laws of war. But these various groups style themselves as political opposition, and this is where we have doubts. Law tells us if individuals have violated juridically enforceable rights. It is far less effective in addressing broader social relationships and underlying trends. Pat Fitzgerald may be able to figure out whether ‘Scooter’ committed perjury, but the nature of the law means that he will never hold a press conference to say if the Iraq invasion itself was illegitimate. In fact, the obsession with the legality of the administration’s actions runs the risk of over-personalizing the war on terror, and of substituting the conviction of a few widely loathed public figures for real change. This makes it a particularly weak form of political opposition, one moreover that reinforces the current lack of popular accountability. Without a meaningful opposition, the call for prosecution displays the frustrated hope that if the public can’t direct politics, maybe a judge or lawyer will. We shouldn’t hold our breath.
5 Comments:
The distinction you draw between the political and the legal is too sharp and begs the question of the political functions of law. The laws of war, secrecy, limitations on executive prerogative, etc. embody the people's view of what is right and proper, deliberated upon in all sobriety and absent the passions induced by war, fear, or panic. You rightly lament the absence of "meaningful opposition" but fail to ask why this is the case. Might it not be that a people in the grip of such passions has forgotten its better instincts--those, precisely, encoded in laws enacted in calmer times? If so, the prosecution of leaders may serve an educational function: to remind "we the people" that we once held a different view, for example, of permitting the executive unilaterally to declare war as well as command the military. The recourse to law is not necessarily intended to substitute the will of judges for the will of the people; it is rather an attempt to recall the people to reason, to remind us what we believed before we lost our senses. It is a tool of political opposition, not an alternative to it.
Isn't the idea that the law is reason predicated on a false dichotomy of its own, or at least an extremely idealized view of law? Last time I looked at the laws on the books, they didn't make much sense to me, especially when it comes to restricting the president.
I thought the point was that, in this situation, it makes sense to draw a distinction between law and politics because holding Bush legally accountable for certain actions is not at all the same as criticizing the war on terror, or addressing basic social trends. It reduces criticism of institutions and social arrangments to matters of individual legal responsibility.
Indeed, making an issue of “war crimes” is very stupid in my view because it clearly shows that liberals have nothing in their arsenal. The bigger question that should arise is America’s somewhat romantic attachment to security issues. If America wasn’t going around pushing people, there would be no need for this zealous endorsement of “American security.” Moreover, when Americans are told “it is in the nation’s interest,” they don’t even bother looking at what is the “nation’s interest.” Clearly, it is alarming that America behaves the same way it used to during the cold war. To come to think of it, the debate during the cold war was that the Russians will dominate the world; I wonder if that can also be said for the United States.
Impeaching unpopular leaders may help the people rediscover their ability to hold political figures accountable, but more likely it will turn into a farce where the critique of why their actions are wrong will get spray-painted over with whitewash.
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