Transcript of David Rivkin’s appearance on BBC’s Newsnight, May 18, 2011
Episode: “Trial of bin Laden”
Host Jeremy Paxman: Now if a suspect is taken alive, the next question is, “How would you try them?” There seem three obvious choices: military tribunals as was just mentioned; within some national jurisdiction, like a federal court; or in an international court. In a moment we’ll be discussing with advocates of these options: Clare Algar, from the organization Reprieve, which has represented a number of Guantánamo detainees; Sir Geoffrey Nice, who prosecuted [Slobodan] Miloševic in The Hague; and by David Rivkin, the former White House legal counsel. We’ll also be joined by Ben Ferencz, who was a prosecutor at the Nuremburg Trials…
David Rivkin on BBC
David Rivkin, how does it seem to you? I mean these are international crimes.
David Rivkin: Well, these are international crimes or they are violations of international law. They are violations of the law of war both relative to who has legal authority to initiate the use of force and how you do that. With all due respect to Mr. Nice, in every war you have an aggressor and you have victims of aggression. This is a war by al-Qaeda and the Taliban and Mr. bin Laden…primarily against the United States and a few of our allies. I cannot disagree more profoundly about the symbolic consequences of taking this kind of crime out of international jurisdiction. Let me just briefly address them in turn: First of all, the victim justice proposition quite frankly is something you can throw at any court. Do you think the Yugoslav tribunal or the tribunal in the Far East following World War II or the Nuremburg tribunal were not victim justice circumstances? Of course they were. But to the extent that we are a civilized people operating in an accountable and legally proper fashion, that premise is discredited.
Any time a state prosecutes a criminal there is no equality of arms between the criminal caught by the police. There is always that angle. You don’t escape that. And believe me, lots of African countries view ICC [International Criminal Court] as very much an instrument of victim justice. So that does not matter.
But the important thing is this: every venue you’ve discussed – an international tribunal, a military commission or a national court, could have successfully prosecuted bin Laden. But that is not the issue. The real issue for choosing how you prosecute is what symbolic message are you trying to send about the nature of the problem, who are the main victims, and whom are you trying to impact? And the fact that this is a war, an illegal war, waged unlawfully, primarily against the United States, an act of war, not just an act of terrorism, would have been tremendously appropriate for that person to be prosecuted in a military commission… Every proponent of international tribunals, be it ICC, be it the Yugoslav tribunal, typically acknowledge that they are the tool of last resort. You go to international bodies if you cannot have a national institution that is capable of rendering justice, or a regional one. That’s how its always been justified. Sort of a knee jerk reflex to say, ‘lets go to international institutions’ when an American criminal justice system or American military justice system is perfectly capable of rendering justice – very nicely, thank you – to me makes no sense.
Paxman: Let me ask just David Rivkin: The fact is politically it’s convenient all around if people, unfortunately, die in the business of their arrest, isn’t?
Rivkin: Well, the word “arrest” is inappropriate, and let me try to clarify since mine is the lonely voice here extolling the virtues of military commissions. How you try somebody is not driven only, driven exclusively, by a period of providing due process to the accused. That would happen in any venue in a civilized country – domestic, civilian, military, international. How you try somebody tells you a great deal about what that person did and you are sending a message to your own people, to your friends, to your allies, to your enemies. It’s very important – one of my colleagues a few minutes ago referred to the fact that Usama bin Laden killed 3,000 people and maimed 6,000. That is, forgive me, an utter trivialization of what he’s done. He’s not a garden variety criminal. He’s a war criminal. He’s waged unlawful war.
The reason to go the military route is to underscore, much as a lot of people don’t seem to appreciate it, these are acts of war. These are not just acts of terrorism. Terrorism is a different problem. So, to try them would’ve been very symbolically appropriate and I have no doubt he could’ve been convicted in all venues. But that is not the most important issue. And the people who are pushing so hard against military commissions, in my opinion, are not primarily motivated by a desire to provide due process, but a stubborn desire to deny that this is war because war, unfortunately, has fallen out of favor among civilized societies. It would be a great thing if it had fallen out of favor among the bad people too. Unfortunately, it has not…
Would it elevate Hitler to treat him as a war criminal? That’s nonsense. A war criminal is worse than any kind of garden-variety municipal criminal. The notion that waging war makes you inherently honorable is utterly inconsistent in military history…
Paxman: I just want to put the point to David Rivkin: Wouldn’t it be sending a rather powerful political message to put a man who committed such an outrage against a civil society on trial in a normal court?
Rivkin: You keep saying the word “normal”, and let me be very clear: There is nothing abnormal, irregular, unlawful about military bodies. We try our own people (Paxman tries to interject) – let me finish – we try our own soldiers who are guilty of misconduct in courts martial for centuries, both we and Britain, and most other civilized countries have tried unlawful military combatants in military commissions. There’s absolutely nothing irregular about it. And the process we would’ve followed would’ve been impeccably proper and correct. And I just, by the way – those commissions were not just created by George W. Bush. They were created by the Congress of the United States and the president, both political branches acting together, and they were reaffirmed by the Obama administration who, after two years in office, has come to appreciate certain realities better – than he did while running for office…
Clare Algar: But it doesn’t . . . it doesn’t have a great success rate, whereas the federal criminal courts have had a success…
Rivkin: Because people like you have been fighting – (Algar tries to interject) because, forgive me, people like you have been fighting against it the last nine years trying to throw every roadblock – it’s somewhat hypocritical to turn around and say, “Well…
Algar: It’s a due process issue.
Rivkin: It’s not a due process issue…
Can I pose a question to Mr. Ferencz? Just one question: Would you have been happy…
Ben Ferencz: Well, if I can finish the sentence, yes.
Rivkin: Forgive me. Forgive me. Would you have been happy if Nazi war criminals were prosecuted by you in a civil court and tried, not for horrendous war crimes and crimes against humanity, because those things would not have been in the jurisdiction of that court, but let’s say for multiple, repetitive murders? Would that have been a good thing in your opinion?
David Rivkin Online 