Better Than Hitler? Get Out of Jail Free!

I strongly endorse Dahlia Lithwick’s position in the debate in the Sunday Times about the prosecution of Bush administration war criminals. Making Lithwick’s argument stronger are the embarrassingly weak conclusions reached by Charles Fried. First, we get the “Dick Cheney is better than Pol Pot” gambit, which I suspect we’ll be hearing a lot more of and is certainly revealing in a way its users don’t intend:

If you cannot see the difference between Hitler and Dick Cheney, between Stalin and Donald Rumsfeld, between Mao and Alberto Gonzales, there may be no point in our talking. It is not just a difference of scale, but our leaders were defending their country and people — albeit with an insufficient sense of moral restraint — against a terrifying threat by ruthless attackers with no sense of moral restraint at all.

I trust that it doesn’t require extensive argument on my part for you to see how specious and dangerous the “if you’re not as bad as Mao, you should be exempt from prosecution for unquestionably illegal acts” argument is. Hilzoy says what needs to be said about this. The other standard is just as useless. If we’re going to exempt executive officials from facing consequences for illegal actions as long as they really think their actions are in the best interests of the country, we might as well not have any legal restraints on executive officials at all.

To top it off, Fried adds to this a collective guilt argument: “But we must remember: our leaders, ultimately, were chosen by us; their actions were often ratified by our representatives; we chose them again in 2004.” Poor Richard Nixon — if he had only knew that simply being re-elected should exempt him form facing consequences for any past or future acts! And like Brad DeLong, I must have forgotten all the times in which Fried publically asserted during the Clinton impeachment that because he had been elected twice he ipso facto couldn’t be guilty of anything.