Here’s my proposal: war crimes shall remain war crimes unless and until they are lawfully made otherwise — we abrogate the relevant treaties, repeal the relevant statutes, amend the Constitution if necessary, etc., according to the established legal methods.
That’s essentially correct, but do it before the fact. The political system should set forth the rules under which it is acceptable to fight and bind themselves to it. If that means repealing Geneva, or asking for its amendment, or leaving the convention, then so be it. If if means telling the UN and the EU to take a hike, then so be it. The Bush memos now being denounced were an attempt to see how much wiggle room there was within existing statute; and the accusation is that the past administration interpreted the rules to their advantage. But if Bush made bad public policy, then open up the discussion so people can draw the line in the correct place. The first task is to get the CIA to release the relevant documents as Dick Cheney suggests and to openly tell the public how their safety is being ensured. Put the tradeoffs out in the open. The public can weigh the pros and cons of authorizing different levels of coercion with respect to compelling public interest. Is it OK to use drugs? Maybe under some circumstances. Is it OK to threaten coercion but not carry it out? Ditto. Is it OK to use electric shock? Not OK under any circumstances, then disallow that even if people die as a consequence of not doing it.
Cancer patients make decisions to lop off their parts of their face, breasts, arms and internal organs on the grounds that it may save their lives. And they take the chance even if they know they may still die. They play the odds. They do it after agonizing over the pros and cons. I know some people who’ve refused treatment, even if they might survive otherwise because for whatever reason, they didn’t want to do it. Patient choice is ok, but uninformed choice is not ok. No doctor talks about the “false choice between a mastectomy and cancer survival” in a vacuum of clinical evidence. But the political system talks about “false choice” and then bans the release of the evidence. There is probably no right answer, but there is a facing of the facts, or at least their weighing. Now what are the odds the political system will be so forthright?
