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Prosecuting War Crimes for Today and the Future

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Lawrence Velvel
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·         Hollywood (i.e., The John Wayne syndrome)

·         The South's military culture coupled with its political power

·         Massive standing military forces and the added possibility of a draft

·         Public gullibility

·         The tenets of religious fundamentalism

·         Nearly uncontrolled nationalism

·         The fact that leaders' families face no risks

·         Lack of accountability  

Because of these reasons we have, over the course of our history, fought, often repeatedly, the Indians, the French, the British, the Barbary States, the Mexicans, each other (in the Civil War), the Spanish, the Germans, the Japanese, the Chinese, the North Koreans, the Russians (at the end of World War I and in the air over Korea), the Viet Namese, the Panamanians, the Serbs, the Iraqis, and many others as well, such as the Haitians and the Grenadians.  There are few other peoples who can "boast" such a historical record of wars, except perhaps imperial Rome and imperial Great Britain. 

So the idea that in future we will not repeat the mistakes of Iraq would appear, on the basis of cultural factors and history, to be as likely to prove forlorn as the idea that World War I was the war to end all wars or the idea that we would not repeat Viet Nam.  The forlornness is only the greater because American politicians, media and citizens continue to see the world as a place that could require military action against countries ranging from middle eastern theocracies and/or autocracies, like Iran, to China.  Any politician who took a different position, a more pacific position, would be derided as "soft," and probably could not win election. 

What to do then to try to increase the possibility that America will not get into more misbegotten wars in the future and, if it does get into war, will not torture people, kill prisoners, spy on its own citizens, and commit other atrocious acts.  There is only one thing to do:  that is to hold American leaders to account for their actions so that in future other leaders will not repeat the actions for fear that they will likewise be held to account.   

But domestic politics has proven useless in holding our leaders to account -- Lyndon Johnson retired to his ranch, George Bush was reelected and will retire to his, Nixon received a pardon and went back to San Clemente, McNamara became the long time President of the World Bank, Kissinger became richer and richer (and secretly advised Bush and Cheney on Iraq), nobody expects Rumsfeld to suffer, Wolfowitz was given a sinecure (which he blew) at the World Bank, lawyers who facilitated the misdeeds, such as Jay Bybee and John Yoo, are federal judges or professors at leading law schools. 

Because domestic politics are obviously useless for holding the guilty accountable, we must try to do what was done in the 1940s to the leaders of nations who committed evil; we must try to do what was done to the German and Japanese leaders from top Nazis and Tojo right down to lawyers and judges.  We must try to have them held accountable in courts of law.  And we must insist on appropriate punishments, including, if guilt is found, the hangings visited upon top Germans and Japanese. 

America's Chief Prosecutor at Nuremburg, Justice Robert Jackson, said we were invoking principles that would govern our nation as well as our defeated enemies.  We must attempt to make a truth teller of Jackson, instead of allowing our leaders to make a liar of him. 

Today, there is no accountability for our leaders, nor do their own families face death on the front lines as occurred during the Civil War (when several Cabinet officials' sons or brothers faced battle) and World War II (when one of FDR's sons participated in extraordinarily dangerous missions in the Pacific).  Today there are, rather, only very different factors -- factors that make it easy and safe for leaders to fight wars:  there are half trillion dollar appropriations, huge standing military forces which the President orders into combat all around the world at the proverbial drop of a hat, a compliant Congress that refuses to do its duty, and an incompetent, if not venal, mainstream media.  Not unless leaders fear prison or the gallows for actions that violate law will there be anything to check the next headlong rush to war for allegedly good reasons that later prove false, as with Mexico, Spain, Viet Nam or Iraq, a headlong rush to war regardless of whether it occurs under a McCain (who never met a war he didn't like), an Obama, or someone whose name has not yet surfaced, and regardless of whether the headlong rush were otherwise to occur one year from now or five years from now or twenty years from now or thirty years from now.   

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.
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