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Summary Justice

A courtroom isn’t the best place to put history on trial.

Mar 8, 2010, Vol. 15, No. 24 • By CHARLOTTE ALLEN
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Say what you will about Ramsey Clark, Saddam’s lawyer—and there is plenty to say about this career anti-American blowhard who has advocated bringing criminal charges of genocide against President George H.W. Bush and impeaching his son George W. Bush, as well as never having heard of, much less met, a terrorist who didn’t arouse his sympathy—infringement of the right to counsel and the right to a proper written indictment would have been regarded as intolerable had Saddam been an ordinary accused multiple felon in a downtown courthouse in the United States. Mind you, we are not talking here about military proceedings against suspected enemies captured abroad, as at Guantánamo, but about trials of citizens in civilian courts presided over by judges ostensibly dedicated to imposing a more just standard of justice than prevailed under the regimes that the various defendants once represented. 

The problem, as Laughland points out, is not so much the gross procedural and jurisdictional irregularities that have marked nearly all these trials, but the fact that such proceedings are not really trials at all but political dramas whose double aim is to get rid of troublesome characters with some semblance of legality and establish by powerful moral symbolism the legitimacy of the government that succeeds them. Hence the book’s opening with the trial and death sentence of Charles I, “the paradigm for all future trials of heads of state.” Charles is customarily regarded as a despot who invoked the medieval divine right of kings to justify a rule of tyranny against a Parliament that stood for nascent constitutional democracy. In the words of 1066 and All That, Charles and his dashing Cavalier supporters were “Wrong but Wromantic” while Charles’s Puritan deposer, Oliver Cromwell, and his parliamentary Roundheads were “Right but Repulsive.”

In fact, says Laughland, the Puritans who tried Charles for treason after winning the civil war of 1648 were not only repulsive but wrong as well. At his trial Charles never claimed to be above the law by reason of divine right but rather that, as head of state, he was immune from criminal prosecution because his acts were acts of state. (This identification of the ruler with the state persists to this day in Britain, where criminal prosecutions are filed, at least nominally, by the queen.) Charles declared memorably: 

For if Power without Law may make laws, may alter the fundamental Laws of the kingdom, I do not know what subject he is in England that can be sure of his life, or of anything that he calls his own.

While Cromwell’s Parliament claimed to abrogate this principle of sovereign immunity by declaring that the law treated all—even the king—equally, Laughland points out that Parliament merely transferred ultimate sovereign power from the king to itself. He writes:

This is inevitable: all political systems repose, in the last instance, on such unimpeachable authority, and in spite of all the rhetoric about overcoming the logic of sovereignty, it is in fact impossible to escape it. Anyone who tries to do so is simply like a dog chasing its own tail.

For that reason, judicial efforts to hold former heads of state accountable for their sovereign acts in criminal court have yielded outcomes that, when not outright monstrous—the the trial of Louis XVI in the Terror, Communist prosecutions for pro-Nazi sympathies of political moderates who were in fact anti-Nazi—are logically ludicrous. Laughland describes the trials of the leaders of France’s Third Republic by the Pétain regime in Vichy for engineering France’s capitulation to the Germans in 1940, trials that were followed at war’s end by the trials of Pétain and his Vichy underlings on nearly identical charges

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