Accidental Blogger

Charles Fried has a somewhat bizarre NYT op-ed about the change in administrations and the Abu Ghraib atrocities.  It's strange in that Fried starts off by conceding that high-level government officials authorized "torture and cruel, inhumane and degrading treatment" of detainees.  That is, officials such as those named explicitly by Fried — Alberto Gonzalez, Dick Cheney, and Donald Rumsfeld — committed war crimes.  (To the extent these actions were taken against U.S. citizens, they may not be war crimes but they are violations of U.S. domestic law — and more to the point, it's still torture, or at least cruel, inhumane, and degrading treatment.)

Next, Fried concludes that U.S. actors should not face criminal prosecutions.  He writes, "It is a hallmark of a sane and moderate society that when it changes leaders and regimes, those left behind should be abandoned to the judgment of history."  Note that he does not argue, as Jack Balkin does, that truth commissions should take the place of criminal prosecutions.  That is a fairly well-established and defensible position, although the U.S. is situated differently enough than, say, South Africa was that it is still problematic.  The possibility of truth commissions aside, for Fried prosecution which would be absurd, as far as I can tell, simply because the U.S. legal system is itself absurd, at least in the criminal law context where the defendants are important or publicly notable persons. 

His answer to the problem of treating important people differently is perhaps the most peculiar part of the op-ed.  (He seems to include lower-level officers, perhaps even all military personnel, in this category, although this is not entirely clear.)  Fried argues:

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.

There are two things going on here.  First, war crimes should not be punished because they are ostensibly committed in service of one's country.  This despite the fact that, as Fried previously acknowledged, torture is not justified simply because it is committed to protect one's country from attack.  Yeah.  Good luck defending both propositions at the same time.

Second is the notion that war crimes are qualitatively different than crimes against humanity, and that only the former can justifiably be punished.  This point isn't made explicitly — he in fact does not use the term crimes against humanity, and does not expressly refer to the Abu Ghraib atrocities as war crimes, although that is clearly what he means by reference to torture and cruel/inhumane/degrading treatment.  But rather than attempt to defend the contention that war crimes are less bad than crimes against humanity to merit only a verdict by history (and I would love to see him attempt to do so, especially using that language, which is clearly indicated here), he simply makes a Hitler comparison and asserts that the point isn't even worth discussing.

It is surely true that the Vice President is not der Führer, and the suggestion that no one who disagrees with Fried can see the difference between the two is insult and obfuscation, not a serious point.  What's left is apparently "not just a difference of scale" which somehow manages to look like precisely that: just a difference in scale.  The differences are (1) that Hitler, Stalin, and Mao waged wars of aggression and (2) the amount of moral restraint.  The first is at least debatable — if the U.S. invasion and occupation of Iraq was not a war of aggression in the sense that the Second World War was, the distinction is, to my mind, one of quantity ("scale") rather than quality.  The second is, by Fried's own terms, a mere difference of scale — high-ranking officials in the Bush Administration did not exercise enough moral restraint, but they did exercise more than Hitler and Stalin.

I'm not sure if action should be taken against the Bush Administration war criminals, or if so what form it should take; moreover, I think it highly unlikely that anything will happen.  But I am sure that if this is what we can expect to hear moving forward — torture apologism that emptily denounces torture — then I can do without hearing it, let alone reading it in what is ostensibly this country's best newspaper.  (To be fair, the Times also published an op-ed by Dahlia Lithwick arguing that the rule of law requires inquiry and prosecution.  Interesting that the Harvard law professor comes out looking like a hack, while the editor of an online magazine does not.)