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Friday, October 09, 2009

And the Nobel Peace Prize Goes to . . . David Addington, Jay Bybee, and John Yoo?

Last weekend, in addition to a brief stopover at a conference at some college in New Haven, I participated in a conference at Amherst College titled "Prosecuting Bush, Cheney and Rumsfeld: What Does the Rule of Law Require?"  As the news release I've linked to relates, the proceedings will be published, fairly quickly, in a book by NYU Press.  In addition to the chance to hang out with my co-blogger Steve Vladeck, I very much enjoyed talks by Claire Finkelstein of Penn (on whom I commented), Nasser Hussain, and others (although I was sad to miss Stephen Holmes's talk.)  The conference was not about whether Bush or any members of his administration violated the law, which would not in my view be a productive discussion.  Rather, the question was, if we assume that they did for purposes of argument (and only for that purpose, in my view, rather than out of some settled assumption), then does the vindication of the rule of law require their prosecution?  My answer was "no," for reasons I develop in a paper that I'll post on SSRN at some point.  Others disagreed in various ways, although that does not mean anyone thought that outcome was either desirable or costless.  

I raise this because of today's news about the Nobel Peace Prize, which Rick has already blogged about.  I am not one of those who gives any special weight to the Peace Prize, so it is largely a matter of indifference to me, although I share what appears to be the common consensus of both the left ("No, really?") and the right (No, really?!?, with a couple of expletives thrown in) on this one.  Like Patrick Swayze jokes, it just seems too soon (not that I think it is somehow obvious that it will be any more suitable later on).  

But it may shed light on arguments about the necessity, particularly for international diplomacy, of taking action against members of the Bush administration for alleged law violations on their watch.  Some of the panelists argued in non-consequentialist terms that prosecution was necessary to vindicate the rule of law, but consequentialist strains crept into their arguments, and one of those was that America's standing in the world had fallen as a result of the torture memos and the behavior they helped underwrite, and that some positive legal action was necessary to restore that standing and thus the efficacy of international law and human rights regimes.  But if Scandinavians are going to just start hurling medals at Obama before his administration has barely begun, and while it is still far from clear what steps he will take either to alter or to redress past administration policies with respect to the war on terror, does that not suggest that prosecution is unnecessary, at least on these sorts of consequentialist grounds?

Posted by Paul Horwitz on October 9, 2009 at 11:42 AM in Paul Horwitz | Permalink


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