APRIL 28, 2009 --

The Obama administration seems to be inching towards war crimes indictments against officials who served in the Bush administration. Apparently the alleged war crime would be the “torture” of prisoners held at Guantanamo Bay. It is not clear at this time, however what the alleged torture consisted of – other than “water-boarding.”

An article in The New York Times traced the alleged torture at Guantanamo back to the Spanish Inquisition. Thus far, however, there have been no suggestions that the Guantanamo defendants were placed on the rack, whipped, mutilated or put on fire. (Previously we heard about humiliations to prisoners held in Iraq.)

Senator Diane Feinstein, chairperson of the Senate Intelligence Committee, reportedly wrote to President Obama asking that prosecutions be held off until her committee investigates the matter.

(LPR is not aware of a constitutional provision allowing a congressional committee to screen evidence that could be used at trial – unless the “separation of powers” principle is to be superseded by “merger of powers” principle.

LPR doubts that a member of the Bush administration, accused now of war crimes, could get a fair trial. And after a committee probe – would a fair trial be more likely?

It has been reported that a member of the Obama administration sees war crimes trials as necessary to place distance between this administration and its predecessor. One argument maintains that disclosure of memoranda about torture serves the cause of transparency in government.

Will the Obama White House provide transparency of actions by the Clinton administration, including the 1993 siege and assault on the Branch Davidian compound in Waco – a siege that included tactics to deprive everyone in the compound, including children of sleep.

(LPR does not expect Republicans to note: many lives were lost, including children, when the Branch Davidian compound was crushed, literally; how many lives were lost at Gitmo?)

Do the American people need war crimes trials to know that this administration is different from its predecessor?

There was opposition in the U.S. to the Nuremberg trials after World War II. Indeed, although it may be known that Supreme Court Justice Robert Jackson was a prosecutor at Nuremberg, perhaps it is not as well known that Chief Justice Harlan Fiske Stone—presiding over the court that included Justice Jackson-- viewed the trials as “a fraud.”


One criticism of the Nuremberg trials was that they were no more than vengeance from the winning side.

Wait a minute.

It is the winning side of the last presidential election that seems to be thinking about putting the losing side on trial. A principle could be emerging: no Republican administration is above the law as determined by a Democratic administration.

True, as of April 23rd, how this will come out no one knows. Perhaps, however, George Bush, eventually, will be put on trial for the murder of Saddam Hussein.