Let's look this thing in the eye once and for all.
   --Arundhati Roy

The final argument advanced by the Administration, as well as some human rights advocates, is that the war was morally justifiable as a humanitarian intervention to defend the Iraqi people from mass slaughter by Saddam's brutal regime. However, the doctrine of humanitarian intervention cannot be applied retroactively to morally justify war as a means of punishing a political leader for past atrocities, such as Saddam's killing of more than 100,000 Kurds in the Anfal campaign, which occurred almost fifteen years before the invasion. Because it is essentially a principle that permits the defense of others, the doctrine of humanitarian intervention, like the concept of self-defense, requires actually occurring or imminent large-scale killing to justify the use of military force. Criteria proposed in 2001 by an international commission of legal scholars and practitioners would permit humanitarian intervention to defend a vulnerable population from "large scale loss of life" or "large scale 'ethnic cleansing'" that is either actually "occurring" or "imminently likely to occur." Human Rights Watch, applying these criteria to the Iraq war in its 2004 World Report, concludes, "That was not the case in Saddam Hussein's Iraq in March 2003.... despite the horrors of Saddam Hussein's rule, the invasion cannot be justified as a humanitarian intervention."

Freedom and democracy for Iraq are "worth fighting for, dying for and standing for," President Bush declared in a November 2003 speech, but no one asked the Iraqis who were killed in the war whether they were willing to sacrifice their lives as part of a demonstration project to create a democratic revolution in the Middle East. The very minimum that people have a right to expect from any effort to graft democracy onto their nation is that the donor nation honor the principle of no extermination without representation.

Denouncing the war a week after the invasion, Kofi Annan, in an unusually candid interview with New York Times reporter Felicity Barringer, said the UN Security Council authorized "disarmament, not mass murder." American criminal law defines murder as the purposeful or knowing killing of a human being without justification or excuse. If, as the relevant law and facts prove, the President's decision to invade Iraq cannot be justified or excused as a war of liberation or an act of self-defense or humanitarian intervention, then the killing of thousands of innocent people in Iraq fits the legal definition of murder and conspiracy to commit murder. While there are various legal and political obstacles to actually prosecuting the President--either in an international tribunal or an American court--we should not shrink from saying that taking the country to war was the wrong thing to do, not merely in the sense that the Administration's prewar claims about WMD were "wrong," but in the same sense in which mass murder is wrong.

"Each age and place has its own style of evil," Time essayist Lance Morrow observes in his book Evil: An Investigation. The history of radical evil up to now has been primarily a story of world-class criminals, each with his own method of mass killing, internment, expulsion and terror. What is unique about the kind of evil the Bush Administration has brought into the world is that a global law-enforcement campaign to bring a world-class criminal to justice has itself become a vast criminal enterprise. It is one of the bedrock principles of the rule of law that a law-enforcement officer cannot break the law as a means of enforcing the law. "For my part, I think it is a less evil that some criminals should escape than that the government should play an ignoble part," Holmes wrote in a famous dissent that announced a constitutional principle of "lesser evils" that would eventually become prevailing law. The principle was most eloquently articulated by Justice Louis Brandeis: "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

The capture of Saddam Hussein, who may have killed as many as 300,000 people, ends a twenty-four-year reign of terror and might finally bring a measure of justice to the Iraqi people. But what would we think of a police chief whose war against crime resulted in killing thousands of innocent bystanders in the course of apprehending a criminal suspect, even a criminal as despicable as Saddam? The officer who breaks the law, who becomes a law unto himself, like the out-of-control cop played by Michael Chiklis in the FX cable drama The Shield--"Al Capone with a badge," to borrow a line from the script--is more dangerous than the criminal and, like the American guards who committed the horrific abuses at Abu Ghraib prison, becomes a criminal himself. The false charge that Saddam was reaching for his weapons of mass destruction when US troops attacked bears an uncanny resemblance to the pretexts for the use of deadly force that document a long and shameful history of incidents of police misconduct in cities across America. The evil of this President, once acclaimed for his "moral clarity," is the evil of police violence on a global scale--the evil of the law-enforcement officer who regards himself as above the law and thereby undermines the very foundation of law and morality.

If, in the 2004 presidential election campaign, voters were to compel the candidates to confront the profound moral and legal questions raised by the use of military power that needlessly extinguished the lives of children, of entire families, of great numbers of ordinary Iraqis who had as much of a right to live as we do, there might ultimately emerge a nonpartisan basis for a national consensus about the war, in much the same way that a universal accord has developed in the United States about the immorality and illegality of police conduct in violation of an individual's civil liberties. While there will always be disagreement about the way we should wage the war on terrorism, as there will be about the way we should fight the war on crime, a global form of law enforcement that unnecessarily kills thousands of innocent people to punish or prevent crimes for which they bear no responsibility is plainly and simply wrong.

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