Much of this week's controversy (now aborted, thanks to Senators Schumer and Feinstein) about the Attorney General-nominee's rather flaccid answers on the issue of whether waterboarding constitutes "torture" dwell on the legal predicament Mukasey would be placed in if he, as the chief law enforcement officer in the country, were to label the CIA's favorite tactic of the Spanish Inquisition as being beyond the pale. Now that he's not being forced, under penalty of Senate rejection, to take a position, the Bush Administration can go back to whatever it was doing before, and the "highly trained professionals," as the President calls them, need not worry about having to answer in a U.S. court for practicing their arts.
But another alternative exists, notwithstanding any evasions that may play out in the American judicial system. The Hague Convention has criminal courts precisely designed to investigate and punish activities, such as war crimes, torture, genocide and other breaches of the Geneva Conventions, acts that may have been perfectly legal in the countries they were committed in, and although the Bush Administration refused initially to recognize the court, any future President will not be so bound.
Sending Bush or Cheney to the docket at the Hague may be tough for the American public to swallow, no matter how unpopular they may be, but I'm not certain they same will hold true for the torturers and mercs whose activities are currently held to be beyond the reach of American justice. It would have the added advantage of any mooting any last-second pardon that may come out of the White House in 2009. A presidential candidate (Hillary? Edwards? Obama?) who expresses a willingness to sign on to the International Criminal Court, and waive any injunction on Americans being charged as defendants, will be taking a more relevant position on ensuring that a war such as this one never be sought again. [link via Matt Yglesias]