By Ken Krayeske • 11:25 AM EST
Until I met a man Al Jazeera called a war criminal, I was going to write about Hartford’s Hooker Day parade – the march of Mayor Mike's legions – which is happening this Sunday afternoon, October 26 at 3 p.m. on the corner of Allyn and High Streets.
The Hooker Day parade was one of the first events I covered when I moved to Hartford 10 years ago. I remember seeing people dressed in tie-dyed haz-mat suits beating on five gallon drums and people on bicycles and students carrying signs about "lernin" and going to "skool" in Hartford’s oppressed system.
What fun, celebrating Thomas Hooker's march of independence from the Massachusetts Bay Colony to start his own corporate board of governance to protect his religious views.
But I had a mid-course correction once I sat in the New York City Bar Association headquarters in mid-town this past Saturday, October 18 for a conference hosted by the American Branch of the International Law Association.
Some of the sessions were sleepers, but my ears perked right up the moment Attorney Eric Blinderman said that Al-Jazeera had labeled him a war criminal for his role in creating the Dujail tribunal that resulted in the execution of Saddam Hussein.
Michael Newton, another architect of the Iraqi High Tribunal, wrote Enemy of the State, a book about his experiences in the trial. Newton, a professor from Vanderbilt, was a full-fledged advocate of the tribunal, and said it was a positive international development.
To start the panel, Miranda Sisons, a Middle East expert at the International Center for Transitional Justice, asked whether or not the U.S. had thrust a poison chalice on the Iraqi people with the trial.
Blinderman's budding corporate law career veered when he received a call from a colleague asking for a resume. That peer took the cv to Donald Rumsfeld’s people, who hired Blinderman to advise Iraqi pro-consul L. Paul Bremer. Blinderman, a Democrat, opposed the war, and is a Democrat, but he said the Bush Administration never asked of his political proclivities.
He wanted to see justice done in Iraq, and the rule of law restored. In his capacity as Executive General Counsel Of the Coalition Provisional Authority, Blinderman helped set up the war crimes tribunal for Saddam Hussein from scratch.
Newton and Blinderman helped locate a coutroom, educate Iraqi judges and offer advice about how to try one washed-up dictator. The shuttled around Iraq in Blackhawk helicopters exhuming bodies at mass graves and interviewing witnesses.
It sounded exciting, but at the same time, the crimes they described Hussein committing made me think of American attacks on Fallujah, the jails in Abu Ghraib and the massacre at Haditha. Could the trial have been a due process fig leaf for Hussein's hanging?
Blinderman and Newton spent the better part of an hour justifying the trial. It brought to justice a butcher. It brought Iraq into the 21st century of international jurisprudence. Iraqi judges under Saddam had no concept of developments like the International Criminal Court, or the International Criminal Tribunal on Yugoslavia.
Blinderman and Newton oversaw the translation of a massive body of global war crimes trials into Arabic. Millions of taxpayer dollars went into this venture. And they hammered compromises to include Iraqi voice in the process. And in fact, the only way it could have been done was in Iraq with Iraqi judges because no other countries cooperated (perhaps because of distaste for the American invasion), and Iraqis hate the United Nations.
In the end, Blinderman said he is sick to stomach about the way that Hussein's ignominious fate turned him into a martyr, and that Iraqi government interference politicized the what they hoped would be a fair trial.
Yet he found merit in it, because it managed to try both the low level Baath party operatives who did the finger pointing and the engineers of it like Hussein. Newton maintained that the trial's legitimacy rested on the fairness of the proceedings and the substance of restoring the rule of law in Iraq.
Jennifer Trahan, now a visiting lecturer at Columbia University, was an Iraq Prosecutions Consultant and did work for Human Rights Watch on the Iraqi High Tribunals. She railed on the injustice of the Anfal trial, which dealt with a different series of crimes against the Kurds. Hussein started as a defendant there, but was dropped after his execution.
Anfal, like Dujail, had its flaws. The most glaring was the appellate process. The trial judge wrote a 963-page decision, meandering and poorly organized but well-analyzed, and somehow, the appeal judge only wrote a 30-page brief confirming the decision.
When they were all done, the floor opened to questions. I raised my hand and asked:
"So, gentlemen, thank for your hard work. Now that you have learned how to set up a war crimes tribunal, how soon before you apply your expertise to capturing and trying the war criminals of the Bush Administration, those like George Bush, Condoleeze Rice, Donald Rumsfeld, Paul Wolfowitz, John Bolton, responsible for the illegal invasion of a sovereign nation?"
And don't forget Dick Cheney, said the woman in front of me.
The political will isn't there in America for it to happen, Newton said.
Blinderman agreed, and noted that the political reality of war crimes in America depends upon the domestic constitutency, and he quoted Ohio Congressman Dennis Kucinich's idea that the hardest thing for an incoming president to do would be to set up a war crimes trial for the Bush administration.
Not only is there no jurisdiction here or in Iraq to prosecute Bush because we are not signatories to the ICC, but the crime of aggression remains undefined in Article 14 of the ICCPR, according to Jennifer Trahan.
We prosecuted both the Nazis and the Japanee from crimes of aggression at the end of World War II, but we never listed the elements of aggression, Trahan said. So even if we had jurisdiction over Bush, we wouldn't have a solid legal foundation on which to prosecute him.
Okay. After the talk ended a few minutes later, a ghost writer named Kevin approached me. "Great question," he said. "They didn't answer it."
"I know," I said. "I didn't expect them to. My goal was to pose the question on a rhetorical level, and let people in that room know what we are thinking about."
"Sure, that's good," he said. "But there is an answer to your question."
"What?" I asked.
"Kidnapping," he said. "Kidnapping is a crime in any jurisdiction, whether its Iraq, or America or anywhere else. Bush and his administration oversaw the extraordinary rendition program, which amounts to kidnapping. Go with what you got. They can be prosecuted for kidnapping."
Wow, I thought. How simple an answer. Clearly, the logistics on this one will be hard to work out. But there is a basis for obtaining justice under international law which we as members of a civil society can begin to aim for when the Bushistas get out of office.
Incidentally, reporter Seymour Hersh said that war crimes trials will never happen for Bush and Cheney. He told the UK's Guardian this week: "'They've got away with it, categorically; anyone who talks about prosecuting Bush and Cheney [for war crimes] is kidding themselves," Hersh said.
We may not prosecute Cheney in his lifetime, but it would be nice to get Bush and Rice and others.
Suppose we can't nail the Bushes when they travel overseas. Suppose the Kissinger problem isn't applying to them. No judges will levy a charge. Or suppose we got the Connecticut state legislature to pass raised bill 1247 from January 2007.
This doozy of a bill is basically a backhanded stab at making Connecticut a signatory onto international war crimes treaties. "The Superior Court shall have jurisdiction of any civil action for a tort committed in violation of the law of nations or a treaty of the United States," says the bill.
Rep. Mike Lawlor and Sen. Andrew MacDonald shuffled it out of the Judiciary Committee in 2007, but leadership buried it at the bottom of the calendar, suffocating any hope of life for bringing Henry Kissinger to justice in his adopted home state.
But as Newton and Blinderman said of Iraq, to reestablish the rule of law, we will need to have due process and fair trials here.