Too big to jail? Can the U.S. prosecute an ex-President?

Should democratically elected leaders be tried for war crimes if there's reasonable cause to believe they may have committed them?

Michael Walzer of Princeton surveys 350 years of killing kings (and hanging Nazis) and concludes: almost certainly not. Reviewing the conditions under which past regimes have put their predecessors or war opponents on trial and executed them, he notes that all constitute radical rejection of the deposed or defeated enemy -- i.e., that trials occur after regime change (obviously enough -- in a way, Walzer seems to see his mission as laying bare what should be obvious). Democracies,Walzer argues, are different -- and the consequences of treating the policy decisions of predecessors as criminal are dangerous.

Walzer issues a warning that should be brooded on seriously. But he draws conclusions that even he is uncomfortable with, and that in my view should be repudiated.

Here is the warning:

we should think very carefully before we do anything that raises the stakes of democratic politics—and putting your opponents on trial after they lose an election would certainly raise the stakes. There is a narrowly prudential argument against doing that (in addition to the broader prudential argument that I have been making): if we raise the stakes for them, they can raise the stakes for us. Paraphrasing Saint-Just, we might say that nobody can rule innocently: there will always be reasons for a trial. There will always be political maneuvers or policy decisions that violate the law or that can be made to look as if they violate the law. And once the game gets serious in that way, anyone holding office would have a very strong incentive to do whatever was necessary to win the next election. Winning some and losing some would then look like a fool’s politics. It would be very dangerous, I think, to start down this path.
The opposing argument, of course, is the argument of the Gironde: political leaders are not, and should never be, inviolable. We are a political community of equal citizens; no one is exempt from the law. This is a very strong argument, and I do not have a principled response. I want only to suggest that the advocates of absolute justice do not understand how fragile democratic politics is—even in the world’s oldest democracy—and how dependent it is on the willingness of incumbents to leave office.

Here are the I think unacceptable conclusions:

I do not mean to deny the responsibility of political leaders for what we might call personal crimes. Not at all. A president who takes bribes (or who commits rape or murder) should be impeached or defeated and put on trial, without regard to his or her office. But it makes sense to treat political crimes differently. Impeachment should be possible here too, but trials are best avoided. When Lincoln suspended habeas corpus, and when Franklin Roosevelt ordered the internment of Japanese-American citizens, and when Bush and Cheney authorized the torture of suspected terrorists, they were acting for what they thought was the public good, not for any personal good. And the best way of dealing with actions of that sort, if we believe them to be wrong, is to “throw the rascals out” in the next election and find some decisive way to repudiate their policies.

But we might reconsider here the British position in 1945—which may be more relevant to post-election than to post-war justice. The fate of democratically elected leaders is indeed, in Sir John Simon’s words, “a political, not a judicial, question.” It has to be worked out, one way or another, through the political process.

But the people that Churchill called “subordinate” criminals could conceivably be brought to trial—for specific illegal actions—without dangerously raising the stakes of democratic politics. I am very uneasy with this position, since it violates the principle of equality before the law. But the violation is common—consider the trials that followed the My Lai massacre and the abuse of prisoners at Abu Ghraib; and it may serve the rule of law, even if inadequately. It targets only people who are not subject to democratic (that is, electoral) repudiation.

So perhaps we are not a community of absolutely equal citizens. (Absolutism is always a problematic position.) If I capture and torture somebody, I should be tried and punished. If the president orders that done, not just to somebody, but to many bodies, acting, so he says, in the name of national security, his only punishment is political defeat.

This is almost willfully unprincipled: Walzer opposes the practical dangers of treating public policy as potentially criminal to the core republican concept of equal justice for all.  Objections:

• It is simply an outrage to justice to punish the underlings who carry out orders while letting the policymakers who generated those orders go free. To affirm, as Western society has since Nuremberg, that those who follow criminal orders are guilty depends on the principle that those who give the criminal orders are also guilty.

• The United States and other signatories to the Geneva Conventions and the UN Convention Against Torture have bound themselves to treat leaders who institute torture as criminals. The UN Convention Article 4 states: "Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture."

• Failing to investigate allegedly criminal policies and prosecute them if due cause is found by established procedure, or to at least institute some judicial process that adjudicates their alleged criminality, validates those policies (Walzer does admit of the possibility of truth commissions).

• Personal crimes are not more worthy of punishment than state crimes.

All that said, I feel the weight of Walzer's warning, and I fear the consequences of criminal prosecution of Bush administration officials as much as he does -- perhaps more than I fear the consequences of failing to deter torture by failing to prosecute.   And it should not be forgotten that Walzer does draw a line beyond which democratically elected officials should be prosecuted for criminal policies:

If the president’s violations of the law or the Constitution aim at the creation of a tyrannical regime, if it is his own political enemies, not actual enemies of the republic, that he is arresting and torturing, or if he is systematically confusing these two, then we have to find a definitive way to defeat him or to overthrow him. And as part of that process, or after it, a full-scale trial might well be the best available means not only of doing justice, but also of demonstrating, to paraphrase Henry Stimson, our determination to extirpate tyranny and all its fruits forever

But think about that phrase, "actual enemies of the republic." Is not the whole point of the rule of law that we do not know who the "actual enemies" are until they are accorded due process?  To deny that process, to assert the executive's absolute power over suspects' bodies and their ultimate fate, is to "systematically confuse" not only the categories of those who have forfeited a large measure of their freedom and those who have not, but what also the degree to which the state can lawfully assert power over any individual in its custody. Walzer, in the end, asserts that it's not that criminal to abuse those dubbed "enemies of the state" as long as they're not the executive's "own political enemies."At least, such abuse is not criminal enough to prosecute. 

But such abuse opens the door to the kind that Walzer does find worthy of prosecution. If the executive can dub anyone an "enemy of the state," i.e. an "enemy combatant," and thereby deny that person all rights of due proccess, the executive has arrogated the right to do whatever it likes to whomever it likes, plain and simple.

Perhaps Walzer's distinction does not disappear entirely: there remains the question of whether the President (or more broadly, the executive branch) does indeed persecute personal political enemies. But once you allow the power to designate an enemy without rights, i.e. an "enemy combatant," arguably you destroy the legal basis for determining that such power of designation has been abused. An enemy combatant is "legally" whoever the President or his subordinates say is one.

Finally, I would question whether Walzer's distinction between regime change and a change of administration within a democratic regime always holds in quite the way he would have it.  He writes:

Trying kings for treason, or prime ministers and war ministers for aggression or “crimes against humanity,” may involve understandings of treason, aggression, and humanity different from those that once prevailed, but these understandings have been vindicated by revolution and war. The trials enact a new consensus about domestic or international justice. But there is no new consensus, about the foundations of the political order or about the policies of the last administration, after a democratic election. Instead, the defeated party, in opposition now, defends what it did in government, insists on the rightness of its own ideology, and plans for the time when it can return to power and do the same things again.

The question we're facing, though, is what happens if a democratically elected government violates an old consensus -- that is, breaks laws and violates taboos and norms of governance of long standing?  Then the democracy is on dangerous ground until the consensus is reasserted.  The question remains: how best to reassert the old consensus?

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