Bush Can't Have Justice Both Ways

Bush Can't Have Justice Both Ways


By Peter Maguire


Peter Maguire has taught the laws of war at Columbia University and Bard College. He is the author of "Law and War: An American Story: and the forth-coming "Facing Death."

December 28, 2003


The discussion of an upcoming trial of Saddam Hussein was overshadowed by two appellate court decisions that serve as a sobering reminder to the Bush administration that presidential authority does not exist in a vacuum.


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Bush will soon learn that, in the unpredictable realm of political justice, he cannot have it both ways. The Bush administration would be wise to heed the warning of German legal theorist Otto Kirchheimer: "Justice in political matters is more tenuous than in any other field of jurisprudence, because it can so easily turn to mere farce."


Since 9/11, the administration has declared that "enemy combatants" captured in the "war on terrorism" will be tried before traditional military tribunals following cautious precedents laid down by the U.S. Supreme Court in the 1942 Quirin case dealing with Nazi saboteurs who landed on Long Island, and the 1946 case of the fallen Japanese general Tomoyuki Yamashita. The "dirty bomber," Jose Padilla, presented an unusual case: He was both an American citizen and an aspiring al-Qaida terrorist. Arrested on U.S. soil, Padilla was declared an "enemy combatant" and held for close to two years without charges and without seeing his lawyer.


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How ironic that the president who singlehandedly rolled back most of the international legal gains of the 1990s is now calling for a trial that will bear "international scrutiny." While a legitimate trial for Hussein could firmly establish his guilt in the eyes of his countrymen, any trial designed to "educate" the Iraqi people could quickly turn to farce as trials cannot be asked to teach historical lessons. Trials, at best, can only establish legal guilt or innocence.




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