John Keegan, the eminent historian of warfare, writes that the trial of Saddam Hussein poses difficult questions of law and morality. Saddam may be responsible, as seems to be the case, for as many as a million deaths. He ordered mass killings of Iraqis, and hundreds of thousands were killed in the war with Iran under his direction. But, Keegan asks, cannot such actions be legally covered as undertaken for "reasons of state"? The problems of prosecuting a legitimate head of state, no matter how odious his deeds, goes way back. Among a few Anglo-Catholics, Charles I of England is revered as a saint. Charles put the matter nicely a few days before he was deprived of his head: "I would know by what power I am called hither ... and when I know by what lawful authority, I shall answer. Remember, I am your king, your lawful king, and what sins you bring upon your heads, and the judgment of God upon this land, think well upon it, I say, think well upon it, before you go further from one sin to a greater; therefore let me know by what lawful authority I am seated here, and I shall not be unwilling to answer. In the meantime I shall not betray my trust." Saddam may never have heard of Charles I, but he offered the same challenge to the judge of the tribunal earlier this week. "I am the legitimate president of Iraq. Who are you?" We have been here before in more recent history. Keegan writes: "In 1945, the Allies, confronted by the difficulty of trying Hitler, were forced in effect to make up a whole new body of law in order to prepare the Nuremberg Indictment. It was a great relief to them when news of his suicide came, since they were thereby saved from the difficulty of trying a legitimate head of state." The laws made up for Nuremberg were, of course, severely compromised by the participation of the Soviets who were at the very time engaged in the massive crimes against humanity of which the Nazi defendants were accused. Keegan, writing in the New York Sun, ends up on the limp note that the man in the street thought the defendants at Nuremberg got what they deserved and we can hope that the same judgment of "the street" will vindicate the trial, conviction, and possible execution of Saddam and his henchmen. Thus are we urged to resign ourselves to the maxim that the victors write history and the victors make the law. People who have no sympathy whatever for Saddam may be inclined to think we should try to do better than that.
An article in Christianity Today takes Christians to task for not speaking up against the U.S. military's abuse of prisoners in Iraq and elsewhere. This problem has been addressed in the pages of FIRST THINGS, but it is true that few moral theologians and ethicists seem to be addressing the hard questions about where lines are to be drawn between, for instance, legitimate interrogation and inhumane treatment that falls under the ban against torture. The U.S. military has conducted numerous investigations into allegations of abusive treatment of prisoners, and a few soldiers have been severely disciplined. There are, it seems, almost daily news reports of additional allegations. Many of them are suspect because they are marked by a distinct animus against the Bush administration and its policies. Yet, if even a quarter of the reports are legitimate, one has the sense that responsibility must extend higher into the ranks than is suggested by disciplinary actions to date. But that is only my sense of the thing, and I may well be wrong. The Christianity Today article is certainly wrong when it says that the U.S. approves of cruel and unusual punishment of prisoners because it does not recognize the applicability of international agreements condemning cruel and unusual punishment. A country may reject an agreement or its applicability for many reasons without approving of what the agreement condemns. But it is true that the voices of Christian moralists have been curiously muted on these questions. The usual partisan voices ranting against U.S. policy in general or, on the other side, suggesting that "anything goes" in a just cause don't count.