Making the Case for Prosecution

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In the latest Boston Review, Elaine Scarry makes the case for prosecuting Bush and Cheney for their crimes after they leave office, arguing that failing to do so will encourage the view that respect for the rule of law is simply a matter of personal preference. I'm skeptical about the criminal law as it's currently conceived; neither retribution nor deterrence nor rehabilitation seems to me to provide independent justification for the kinds of things the criminal justice system does--I'd prefer a system focused on restitution, restraint, and reconciliation. But it seems to me that Scarry is nonetheless right to stress that something needs to be done. Clearly, the craven Democrats in Congress can't be counted on to act, and Bush and Cheney have likely learned a lesson from the experience of Augusto Pinochet and will therefore avoid travel to countries with developed legal systems. But perhaps a local prosecutor, inspired by Vincent Bugliosi's arguments, will opt to file charges. We can hope, at any rate, that we won't be allowed to forget how unjustifiable and how terrible have been the abuses of human rights by this administration, both in the United States and abroad.

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