Trying Saddam Hussein
International Law, NGOs, and the Death Penalty

January 15, 2004

Unedited transcript prepared from a tape recording

Proceedings:
MS. PLETKA: [In progress] --that interests us here today is the manner in which nongovernmental organizations, the United Nations, and other activists have seized upon the capture of Saddam Hussein to press the question of the death penalty. One of the questions that we ask in our invitation is whether or not it is a good idea to choose Saddam Hussein to be the poster child of the anti-death penalty movement at this particular moment.

Without further ado, because, frankly, this is not my issue at all, I'm going to introduce our panelists here today. You do have a complete bio for each of our panelists on your seat. But in short, we have--and please forgive any bad pronunciations; I'm going to go in alphabetical order--we have with us today Hadley Arkes, who is the Edward Ney Professor of American Institutions in the Political Science Department at Amherst University; Walter Berns, who researches political philosophy, constitutional law, and legal issues as a resident scholar here at the American Enterprise Institute. Ken Roth is not with us today because, unfortunately, the snow that didn't hit us last night did hit New York. He made a very valiant--I would say over-the-top valiant effort to get here and was unable to make it. But Tom Malinowski, who is the Washington advocacy director of Human Rights Watch, has very graciously agreed to sit in for him this morning. Thank you very much for doing that. And Larry Rothenberg is a fellow at the Center for Strategic and International Studies and director of their Globalization 101 project.

I also want to make a special note to thank Brian Hook and the Federalist Society for the enormous amount of work they did in putting together this panel. We're really, really very grateful.

Final housekeeping note: Larry will speak for 15 to 20 minutes maximum, and will be interrupted if he goes any longer than that, and then we'll move to our panelists, each of whom will speak for about 5 to 10 minutes. And then we'll turn to the audience for questions.

So without further ado, Larry.

MR. ROTHENBERG: Thanks very much, Dani.

First of all, I also want to thank American Enterprise Institute, the Federalist Society, and particularly Brian Hook, for putting this panel together and for their support and encouragement in writing the paper, "International Law, American Sovereignty, and the Death Penalty," some copies of which will be made available this morning and I think will also be available on the Federalist Society and the AEI website later. And also, I want to thank my fellow panelists.

I'm going to focus this morning--because our topic is a little larger than simply the death penalty in United States and international law, I'll focus on trial for Saddam Hussein, the death penalty issue in that, and also the issues of international versus domestic sovereignty that come up in that context and the influence of NGOs and the international community regarding both the trial and the death penalty. And I'll draw some larger conclusions for U.S. foreign policy in the international legal system.

I'm going to start by talking a little bit about the crimes that Saddam has been accused of and then I'll talk about why an Iraqi tribunal, with the death penalty, is the best way to vindicate justice for the crimes that he committed. And then I'll talk a little bit about the larger issues, as I mentioned.

First of all, the crimes are what we consider the standard crimes in international law, which would be war crimes, crimes against humanity, and genocide. They're pretty well established in customary international law, at least since Nuremberg and the Tokyo tribunals after World War II. They also have been spelled out in the Rome Statute of the International Criminal Court and in the Iraqi Special Tribunal statute, which is available on the website of the Coalition Provisional Authority. In fact, that statute basically draws entirely on the Rome Statute. So the elements of the crimes are very well established in international law.

And the facts are also pretty well established. Saddam was responsible for at least 300,000 murders and hundreds of thousands more tortures, and perhaps as many as a million people were ultimately killed by his regime. Those include people who were victims of genocide--the Kurds, the Shiite marsh Arabs in the south of the country, and also smaller minority groups such as the Assyrians and the Chaldeans and the Yazidis, all of whom were persecuted on the basis of their group, which would constitute genocide. Also crimes against humanity, which is defined as a large-scale mass organized campaign of murder, torture, disappearance, and so forth, which doesn't have to be based on identifying people as a group, so that would cover the political prisoners and purges of the Baath Party, and so forth. And finally, war crimes, which include things like his use of chemical weapons against Iran, in his invasion of Iran, and also various abuses of POWs and civilians in his invasion of Kuwait.

And the question is, what's the best way to try Saddam for these crimes. Of course, one threshold question is what's the point of having a trial if we know he's guilty? And I suppose, barring a change of venue to Berkeley or Cambridge, he will be found guilty. But the question, of course, is what is the purpose of trying Saddam. And there are many purposes in holding a war crimes tribunal; it's not just to establish guilt. It would also be things like providing catharsis for the victims, which I view as one of the most important issues and one of the main reasons for having it in Iraq itself. Another reason is to establish a record for history, to expose what Saddam's regime was. And that provides an element of catharsis not only for the victims but also for the rest of the Arab and Muslim world and the international world. I think the fact is, especially in the run-up to this war and the effort to depose him, many people just wanted to ignore the nature of his regime. And I think that that has to be exposed. That will be a very salutary effect of a trial.

In one sense, then, this would be a show trial. But it will be a good show trial. Not all show trials are bad. Nuremberg was a show trial. The Tokyo tribunals were a show trial. In many ways, the trials going on in the Hague and in Arusha, Tanzania, for the Rwanda and Yugoslavia are show trials. So simply saying it's a show trial or even saying it's victor's justice is not necessarily a bad thing.

Now, the International Community--that's with a capital I and a capital C--including NGOs, the U.N., and various European mainly governments, have insisted that the trial should be internationalized--if not on the model of an ad hoc tribunal at the Hague, such as for the criminal tribunal for Yugoslavia, at least some kind of heavy international involvement with experts from around the world, with judges who are appointed from around the world, and with the imprimatur, if you will, of international law. Another model for doing that would be a purely domestic tribunal under domestic Iraqi law. And a third model for doing it would be some kind of a mixed tribunal.

Now, about 10 years ago or more, when the first ad hoc tribunals were created--the international criminal tribunal for Yugoslavia and for Rwanda--these were purely international, held outside the territory of where the crimes occurred; and in many ways had very little legitimacy and still have little legitimacy with the people. In a sense, my view, really, is that these were experiments on behalf of the international community and NGOs, who were trying to progressively develop international law and were less about providing vindication for the crimes and justice for the victims of those crimes in those cases. And as a matter of fact, they have over the course of the last 10 years lost a lot of their legitimacy, and many people, including those who originally supported them, have recognized that they did not meet their goals.

And so there was a movement in the last few years to try to moderate this purely international idea. And so, for example, courts in Sierra Leone have been up there and tended to be mixed; and there was an idea of a mixed tribunal for Cambodia, although for various political reasons, it doesn't seem likely that a tribunal will be set up there because the situation is still very volatile politically and in a military and security context.

Having said that, however, even the tribunal in Sierra Leone is mostly dominated from outside. It's going to be an international tribunal with some domestic involvement.

The proper option, in my opinion, and the one that actually appears to be the one that will happen, is a mostly domestic Iraqi tribunal with some international involvement. And if you look at the statute of the special criminal tribunal that the Iraqis have published, it not only permits but in fact requires that there be international involvement, that there be prosecutors and investigators selected from outside. And I would expect that one of the ways they will do that is to call upon experts from around the Muslim and Arab world; for example, Egyptian and Jordanian justices or judges to assist, there could be Pakistani prosecutors, there might be an Indian Muslim investigator, and so forth. And that would give it the sense of "international legitimacy" that the international community has been insisting can only be provided by an international tribunal.

I think the most important thing here is not that this tribunal have international legitimacy, but that it have domestic legitimacy. As I said, the main point in having one of these tribunals is vindication of the victims and acknowledgement of their suffering and to provide a measure of healing for their society. Although we can say in a theoretical sense crimes against humanity and genocide and war crimes are crimes against the international community as a whole, we can't forget the fact that it was Iraqis who were actually killed. And as much of an interest as I have as a fellow citizen of the world and somebody who is concerned for the human rights of individuals around the world, the fact is it didn't happen to me, it didn't happen to my neighbors, didn't happen to my friends, didn't happen to my loved ones. And I think that my views of what should happen--and I mean "my" in the sense of all of us sitting in this room and everybody else around the world--should not be those that determine how the Iraqis deal with the man who ravaged their society for three decades. So domestic legitimacy is the most important issue.

Along with that, I would add that the appropriate punishment is the death penalty. Now, again, a threshold question is can there really be any punishment that's appropriate for the crimes that Saddam committed. And again, in a theoretical sense, one could say, well, no. But in a practical sense, you have to have some kind of punishment. If we were to day--and sometimes anti-death penalty people do say this--well, you can never bring back the victims, so it's just revenge. Well, yes, but, you know, you can never bring back the dignity of a rape victim, but we don't say to somebody, okay, just promise not to do it again and go on your way. We always punish crime, and we do it partly for deterrent effect, partly for moral effect. But the fact that we can never in some theoretical sense actually right the wrong and make whole the victim does not mean that we shouldn't try and get as close to it as we can.

In my opinion, the only thing that comes close to an appropriate punishment for murdering 300,000 people and torturing others and throwing some people live into industrial shredding machines and cutting off people's ears and tongues and raping their wives and daughters in front of them is the death penalty. If it were up to me, Saddam would be executed 300,000 times--once for every victim. And I won't go into the sort of moral arguments for that--there are other panelists who will do that. But it is my opinion.

More importantly, though, I'd add that the real issue here is who gets to decide that. Is it the Iraqis themselves or is it the international community--is it those NGOs? And like many people, I find it incredibly ironic that the international community, which, in the first place, opposed the war, should come in after the war and say, well, now that it's all over, now that there are 300,000 dead Iraqis, now that American and British soldiers have risked their lives and died to overthrow this person, we're the ones who are going to take care of the legal issues. Before the war, they said "national sovereignty," you can't invade another country. Now, after the war, they're saying, oh, well, now that the country's been invaded, we're going to engage in judicial imperialism and not let them try their own criminals.

And I would add, along those lines, that you have to question, in fact--as I mentioned before--even the legitimacy of the international criminal tribunal for Yugoslavia and Rwanda. Because the fact is that those were ex post rationalizations of the failure of the international community to do anything to stop the genocides that were going on in the first place. And everybody recognizes it. I really don't think that's a debatable point. Indeed, the international criminal tribunal for Yugoslavia was set up while these crimes were going on, as a fig leaf for failing to send in military troops. And as we all know, the war there really only ended in 1995, when the United States added support to the Croatian offensive against the Serbs and NATO got involved. Military force is what ended that war, not international law.

And in Rwanda, in particular, it's very ironic that at the end of the day, the Security Council voted 14-1 in favor of the creation of an international tribunal for what happened there. The 1 vote was the state of Rwanda itself, the new government, which had, purely by coincidence, been given one of the rotating seats on the Security Council. And the Rwandans opposed it because they thought it should be under their control. And one of the issues in that was the death penalty, because the international tribunal was not going to have the death penalty and the Rwandans wanted it.

So the larger issue here is, really, who gets to decide. And this gets to the sort of larger theme both of my paper and of what Dani was talking about, is that there is a conflict between international law and national sovereignty, and even democracy itself. It is, in my view, entirely inappropriate for nongovernmental organizations, which are themselves anti-democratic and not accountable, to start telling governments what they should be doing within their sovereign borders. It is particularly inappropriate for people from other cultures, from other parts of the world, with other traditions, to tell people, for example in the Middle East, that you cannot execute somebody who's committed these crimes when, for example, the death penalty has been part of Iraqi national law since the creation of the state in 1921 and is part of the Sharia Islamic law.

So I think there really is a conflict here, and it's a conflict that has played out in other areas both in the international community generally and between the United States and the international community. And the debate about how to try Saddam and what sentence he should face is really just part of that and perhaps the most pressing at the moment.

I just want to finish with one quote. This is from Jed Rubenfeld in a recent article. He's a professor from Yale Law School. He says, "There is among international lawyers a hazy notion that the emergence of the international community in the world of law and politics is itself a democratic development. The unfortunate reality, however, is that international law is a threat to democracy and to the hopes of democratic politics all over the world." And it certainly is to the Iraqis.

MS. PLETKA: Larry thank you very much. I have to confess that is the first time we've had Sharia law invoked here as a positive precedent. But that said, thank you for a very interesting presentation.

Tom, I'm sure you have a lot to say in response, so why don't we turn to you and go forward.

MR. MALINOWSKI: Thank you very much. And thank you, Larry. I think we may not be quite as far apart on some things as you may think. But let me try to address a few of the points that you made. I think it would be more entertaining and interesting if we were quite that far apart.

First of all, a word on how my organization, Human Rights Watch, gets into this whole business. We were the organization that, over a decade ago, essentially dug up the first concrete evidence of Saddam's worst crimes; namely, the Anfal genocide against the Kurds in the north in 1991, after the first gulf war, when the Kurds took control of their part of Iraq, captured literally tons of Iraqi secret police documents--which we helped, with the assistance of the U.S. military, get out of Iraq--and provided, really, the first smoking-gun evidence of not only what happened in the north but of Saddam Hussein's responsibility for what happened and that of his chief lieutenants, such as the famous Chemical Ali. And ever since then, we have been trying to find some way to bring Saddam to account before whatever kind of court could take this case and hold him accountable for this and so many other crimes.

And now we've got an opportunity to do that, and it's a wonderful thing. And I think I would agree with Larry that the stakes are incredibly high in getting this right and doing it the right way. They're high because of the victims themselves, because there are hundreds of thousands of Iraqis who deserve to see justice done, who want to see and deserve to see this man face his victims and answer for his crimes before a court of law. They are extraordinarily high because this trial, above all, is going to establish whether or not Iraq is actually governed by the rule of law, whether it is in fact a democratic society of laws and not of men. And it's vital, as Larry pointed out, because it's an opportunity to convince the world--in many cases, a very skeptical world--that no matter how people felt about the war, whether they were for it or against it, no matter what they think about the United States, Saddam Hussein was indeed a monster who committed monstrous crimes and who deserves not to be in power but to be in prison. And I think that's a vital thing and profoundly important from all kinds of points of view.

And for all these reasons, I think we can all agree that this is going to be not just an ordinary trial but, in many ways, the trial of the millennium. And to use a term of art that I learned when I was in the State Department, we cannot afford to screw it up. It's got to be done right. And it's got to meet the absolute highest possible standard of fairness, justice, due process. It has to be unassailable at the end of the day. It's going to have to convince Iraqis that the rule of law is being established in their country. It's going to have to convince people all around the world, in the Arab world, in Europe, in the United States, that this process is not political, that it is a fair judicial process. Otherwise, we're not going to accomplish the goals that I think we all agree a trial of Saddam Hussein and, again, some of his key lieutenants needs to accomplish.

Now, how do you do that? I think there's a bit of misperception about where the international human rights groups and the international community--whatever that means--stands. There is not a strong belief among serious people who have looked at this that there has to be a purely international trial of Saddam Hussein--a trial in someplace like the Hague or in Europe or outside Iraq. We did that with the Yugoslav tribunal and the Rwanda tribunal, as you mentioned, Larry. There were some good reasons for doing it that way. In Yugoslavia there was a war going on in the region when the trial was set up and it was really impossible to have a trial in Sarajevo when the bombs were falling on Sarajevo, and it was an international conflict, and so forth.

But this is a different case. I think virtually everyone who's looked at this agrees that the trial should be in Baghdad. And again, I think virtually everyone, and certainly including Human Rights Watch, believes that the Iraqi people and their elected representatives need to have ownership of this trial. This was their country, they're the victims. They need to have a sense that they are in the lead in reestablishing the rule of law in their country. So we don't want a trial overseas conducted entirely by the United Nations.

But that doesn't mean that it's necessarily a good idea to have a trial that is run by a court that is entirely nominated and dominated by the present Iraqi authority, the Iraqi Governing Council. And there are several very pragmatic issues that I think we have to consider in coming to that judgment.

Number one, there's an issue of competence. These trials, as much as we may be convinced, as much as we may know in our heart of hearts that Saddam Hussein is guilty--and Larry, I went to Berkeley, and I think he's guilty--these are extraordinarily complex cases. We know that from the last 10 years of prosecution of leaders who have committed genocide and war crimes around the world. We're talking about crimes that were committed across many fronts, several conflicts over 30 years involving hundreds of thousands of victims. It is not an entirely simple matter to take all of this evidence that's scattered around mass grave sites in Iraq and to tie it to the police officers and military officers who actually committed those crimes, to tie them in turn to the leadership of the country and ultimately Saddam Hussein giving the orders. It can be done, and we all know where the evidence ultimately leads. But to have a trial that is seen as fair and seen as meeting the highest standards, it has to be done well. It has to be done right. And that's going to require a lot of expertise that the Iraqis simply don't have yet. They will have it, hopefully, by the end of this process, but they don't have it yet.

Another issue is legitimacy. The pool of judges and jurists and prosecutors from which one can draw in Iraq consists entirely of people who were either members of the Iraqi regime or brutalized by the Iraqi regime--not necessarily a group of people who have the emotional distance from what happened to create the perception of an entirely fair trial. Those who were in Iraq during Saddam's period, the lawyers and jurists there, include many people who I'm sure are very, very decent, committed people who want to see this done right. But they have no experience, in our interviews with these folks, of any trial that's lasted more than a day or two. That's simply the way things worked in Iraq under Saddam Hussein.

And then there's the IGC itself, the Iraqi Governing Council. This is not an elected Iraqi government. It may be the best Iraqi government that we can have right now at this stage of the occupation, but it's not elected, it doesn't answer to the Iraqi people. It is a government that is entirely appointed by the United States. And so in many respects, it lacks legitimacy among the Iraqi people, the kind of legitimacy that Larry wants to see this process have.

And it's certainly a bad sign that, since this Iraqi tribunal law was adopted, a number of members of the governing council have been quoted as saying things like, well, we can take care of this in a matter of weeks. We can have the trial, we can convict him, we can execute him. And it leads me to wonder where their primary interest is getting this done right or getting this done before their existence as a governing council expires. In other words, many of them may see this as a political process, something really exciting and important that they want to see happen on their watch, rather than something that they want to see happen in the right way. And that's something that troubles me a little bit.

Now again, what is the answer? I think Larry suggested in his menu of options where many organizations like mine come down in terms of what we would advise, and that is to see a mixed tribunal along the lines of what has been set up in the last couple of years in the country of Sierra Leone--in other words, an Iraqi-led tribunal in which a significant proportion of the judges and prosecutors and investigators are Iraqis but that also draws on judges and prosecutors from the international community, particularly Arab jurists who've got experience in international war crimes trials, of which there are quite a few. A court that would, essentially, combine the best of all possible worlds, that would be in large degree Iraqi and would therefore appeal to the Iraqi people, but which would also gain legitimacy and expertise from having been embraced and in part established by the international community. That's a model that I think works; it's a model that we have, and a model that I think creates the right balance between all of the different constituencies that need to be satisfied.

Now, a few final words just on the death penalty, since it's one of our subjects here. I fully agree that this is something that can't be imposed on the Iraqi people, and I think this is a real straw man in your paper, Larry. I don't think anyone is talking about demanding that the Iraqi people do this in some way or other or imposing a model on them. We can't do it even if we wanted to do it. We're just a bunch of NGOs who advise, who have opinions. And I think that's the nature of this forum--we all have opinions about how this should talk place. Ultimately, the Iraqis have to decide.

But in advising them, I think I would argue that even folks who would support the death penalty in some circumstances ought to be troubled by the notion of the death penalty in Iraq right now, for two reasons. Number one, if you impose the death penalty, if you have the death penalty even as an option in this trial, you are going to split the coalition that supported the United States and Iraq right down the middle. The United Kingdom would have a tremendous problem supporting any kind of judicial process, for example, in which the death penalty was an option. If you want to give Tony Blair another great birthday present for supporting the United States and the war, this is about the worst one that I can think of, having to explain to his public the spectacle of an execution of Saddam Hussein, which would be tremendously unpopular among our allies. And as a practical matter--it's not just a political problem for them--it would be impossible for them to support the process of justice, the investigations and the trial, financially and with experts and investigators if the death penalty were allowed. Which means that the United States would foot the bill entirely.

The second issue here, I think, is it's a question of what kind of society Iraq is going to have. Keep in mind that for the last 30 years Iraq was governed by the death penalty. It was governed by a culture of death and retribution and revenge. That was the solution to every problem in Iraq. And I would argue that if you want this country to turn the corner, if the Iraqi people want to build an entirely new society that is different in a revolutionary way from what they had before, one of the best ways they can do that is to establish a government that no longer claims for itself the right to kill its own people, even under the most extreme circumstances.

And again, for a government that is establishing a very, very fragile democratic system, that is only beginning to experiment with the rule of law, I think one might also be troubled about introducing the death penalty right at the outset in such a system when we don't yet know how fair and how established the rule of law is going to be in Iraq.

So again, for all those reasons, I think even if you support the death penalty in some cases, I think you ought to have questions about whether it's the right thing to do in Iraq right now. We can't tell the Iraqi people that this is the way they have to go, but we can certainly advise them, based on our own best judgment and experience, that it may be the best way to go.

I think, you know, finally I would just say, as we approach all these issues, we really need to take our own personal ideology out of it and think pragmatically. You know, whether we are outraged by the notion of international law and international tribunals or we think that they're the way to go in all cases, I think we ought to sweep those polemical arguments off the table and just think pragmatically about the best solution in this very, very fragile situation in Iraq, where the stakes are so absolutely high for the rule of law in this country, more broadly in the Arab world, and the success of the U.S. mission there.

Thank you.

MS. PLETKA: Thank you, Tom. I was worried that you weren't going to say anything controversial. Thank God we let you go on for that extra couple of minutes.

I'm going to turn now to Walter Berns.

MR. BERNS: I think Professor Rothenberg, in the paper that he wrote for this panel but did not have time today to deliver, in that paper he said everything that has to be said about the international law and the death penalty. The consequence of it is, or the conclusion that I would draw from it and he drew from it, there is nothing in international law that prevents Iraq from executing Saddam Hussein after a trial.

I would add only one thing that he didn't emphasize in this paper, and that has to do with use of the term "the right to life" in these international law instruments. I would assume that it has to mean--that it does mean and it has to mean exactly what it means in American legal documents. For example, the Declaration of Independence speaks about, in a sense, the natural, the unalienable right to life, but the Constitution of the United States doesn't use the term "unalienable" right to life; it speaks in the Fifth Amendment and then again in the 14th Amendment of the right not to be deprived of life without due process of law.

What this means is that the natural right--in this case, the right to life--is substituted or is replaced by the civil or constitutional right, and it has to be done for reasons that our founders spoke of. I quote from Federalist 2 here, one sentence in Federalist 2. We know that was written by John Jay. He says, Nothing is more certain than the indispensable necessity of government, and it is equally undeniable that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with the requisite powers.

In short, you want government, you may be guided by the unalienable right to life, liberty, and the pursuit of happiness, but these rights, almost all of them, have to be surrendered to the government so that the government can execute its powers. And that's what's happened to the right to life, and I think that's how that right must be understood in these international instruments.

Most of my remarks that will follow have to do with the legitimacy, the validity of the death penalty. I presume I was asked to appear on this panel--and I don't thank anybody for putting me here--because I'd written a book on the death penalty some 25 years ago called "For Capital Punishment." And I was persuaded when I wrote that book, in the course of writing it, of the legitimacy of the death penalty. People say it's immoral, but I would point to, and in the book did point to, the fact that in four or five places in the American Constitution references are made to the death penalty, suggesting its legitimacy. And I would hold that people like George Washington, James Madison, Alexander Hamilton, Gouverneur Morris, et cetera, are as moral or as sensitive to moral considerations as anybody who has anything to do with these international instruments, these--well, international commissions and so forth who devise these treaties and set up these international panels to decide to set up trials for and punish those who commit these crimes.

That's a difficult way of saying--I should have said it much better by simply saying Washington, et cetera, were moral beings and they knew what they were talking about. And I draw the conclusion that, from that alone, there's nothing wrong with the death penalty. I would also point out that the Bible does not say thou shalt not kill. It says thou shalt not murder. And there's a difference.

Now let me add to this a few personal remarks about how I came to conclude that the death penalty is a legitimate and moral punishment. My business was really constitutional law, and I was not a criminologist. And I had not come to any conclusion about punishment or as to the purposes of punishment before I sat down to write the book. I knew there was disagreement among criminologists as to punishment, the purpose of it, whether it was intended to rehabilitate the criminal or to deter other criminals or to pay him back or pay them back for what they did. I knew that paying back, that is to say retribution, was held in ill repute by criminologists, who regard it as a fancy word for revenge, and revenge was understood to be a barbaric thing. On the other hand, I knew that Homer, the Greek poet, for example, referred to vengeance as the sweetest of things, sweeter even than honey. And if Homer could look at that in that light, I think we might revise our understanding of what we're doing here.

At any rate, I decided, as I say, that the death penalty was valid, and I was led to that conclusion only by the phenomenon of Simon Wiesenthal, that man who for 30 years--an Austrian Jew originally, but for 30 years after the war devoted the rest of his life, really, to hunting out--hunting and finding the Nazi war criminals who had escaped the end of the war and disappeared into the world community. This seemed to me to be a very singular thing for anybody to do, and I wondered why he was doing it. And he said it was necessary to bring these people to trial, to justice. All right, fair enough. Bring them to trial, impose justice on them, but then what? Why? Why punish them? Why punish Obersturmbannfuerher--I think that's right--Obersturmbannfuerher--anyway, Adolph Eichmann; or Franz Steingoffman [ph], or, finally, Martin Bormann--these Nazi criminals who escaped into the world? They should be hunted down, they should be brought to justice, but why punish them? To rehabilitate them? To deter others--for example, to deter Saddam Husseins in the future from doing what they did, these Nazis? It's preposterous.

It makes sense to only think of retribution: paying them back. How in the world else do you pay someone back for what these people did? And paying them back has to do with justice. And one of the conditions of justice is anger. And anger is--here I refer to Aristotle and rely on him--anger means it starts by, it's triggered by the harm done to one, or the unjust harm done to one, and the prospect of paying him back. If you think of how angry you have been on various occasions--you run into a door, and what do you do, you kick it, when you're foolish, because you somehow attribute to the door the cause of the pain you feel. You don't come back later to exact revenge on the door because you realize that's foolish. Or you're bitten by a dog. You might immediately react in anger at the dog by kicking the dog, but you don't, if you're sane, think of coming back and exacting revenge or retribution on the dog. Why not? Because you realize the dog is not a rational being. You do this with respect to human beings precisely because they are rational beings and you understand that they, as rational, are responsible for what they do.

And you then realize, if you think about anger, starting with Aristotle's understanding of it, you realize that there is something to be gained by exacting that punishment. It satisfies something in your soul. And it satisfies--and we're talking about the Iraqi people, it should satisfy their understanding of things. If this person, Saddam Hussein, is punished, it does something good to the community to exact retribution on these people.

At any rate, I concluded, in the course of writing that book 25 years ago, a book entitled, "For Capital Punishment," the moral case for it, that there's nothing immoral about capital punishment. On the contrary, it is the most moral of punishments, for the reasons I've suggested.

Now, as to whether this can be done in a trial in Iraq, that's something else. I only say I do not think it would be wise to have an international community in a trial similar to Nuremberg, where we had the absurd situation of a Russian exacting punishment on the Nazis for doing what the Russians were doing in spades. And in this case, where would this international tribunal come from? Surely, if we can find Arab jurists, that would be something. I do not think it would be well advised to put a French jurist on this panel because France was a long-standing ally of Saddam Hussein. And I think Russia would be--for the same reason, I wouldn't put any Russian on the panel.

I understand the difficulties of making this trial. My case today is only--what I wanted to say only was there's nothing wrong with exacting the penalty of death, and there's every good reason to do it. Thank you.

MS. PLETKA: Thank you very much.

Professor Arkes?

MR. ARKES: We're pressed for time. I told Danielle I may have to use an old device of mine and compress this talk Hebraically by omitting the vowels.

I'm touched and honored to be on this panel with Larry Rothenberg, my former student, whose life and work have really been woven into this problem in the deepest way. The last time I was at a panel with Larry, it was something orchestrated with the collaboration of our dear friend and his gifted teacher, [inaudible] Montague.

Larry was too delicate to mention, but I think I might, that his own father had been killed by an assailant years ago, and that has affected Larry with an awareness of this question that runs beyond the experience of most other people. He's had an awareness of the lingering injury felt by the families of victims [sound glitch] sharpened his concern for the moral questions involved here--the questions that can't be evaded or put aside in the facile way in which they've been persistently put aside these days.

In the academy we have this curious thing in the academy right now, the better campuses, of this moral outrage about capital punishment on parts of students and faculty who've moved decisively away from a commitment to moral truths to dickering with the recent fashions in nihilism. Richard Posner has remarked on this most curious of combinations, that some people at the colleges and universities who reject capital punishment unequivocally as a moral matter also defend with the same intensity the right of a woman to destroy a child in the womb at every stage of the pregnancy, for virtually every reason, in fact even without the need to render a reason. So we have here the curious willingness to accept the most sweeping license to kill the most innocent of beings for wholly private reasons, even reasons that may not rise above convenience, but now apparently a willingness to affect with a certain kind of sanctity the lives of the most heinous killers.

I've suggested to people at different times that people on my side might be willing to accept a political settlement of this kind, that we'll be willing to waive most of the executions in the country if people on the other side would be willing to forego those private executions done for wholly private reasons. But it seems that the passion to persist in that unrestricted right to abortion at any stage far exceeds the passion to protect people from capital punishment. But as I say, it's conceivable that people on my side could waive most of those executions, and yet, for a certain class of cases, it is simply arguable on principle that no other punishment could possibly be adequate.

I recall being at a dinner in Detroit about 25 years ago with a young black woman who had seen, the year before, her own husband knifed and killed on the street below--a dental student coming back for dinner. And she told me that night that that very day the young man who killed her husband was being released. And she said, "That's what the life of my husband was worth: one year." For some kinds of wrongs, a certain class of killing, we find ourselves speaking [inaudible], words over Adolph Eichmann, you've done something so wrong that the rest of us should not be obliged to share the Earth with you.

I pointed out a few years ago, in a debate I had with Jesse Jackson in New York, that we almost never hear jokes on late-night television about the deaths coming out of the Holocaust--except perhaps from Mel Brooks. But for a year on late-night television we were hearing jokes about--jokes springing from the trials arising over the murders of Nicole Brown Simpson and Ron Goldman. And I thought the inference was unmistakable, that there was something laughable about their deaths that was not laughable about the deaths in the Holocaust. And so my line has been that our willingness to take the question of capital punishment seriously marks our willingness to treat with the same seriousness the lives of the people lost now as the lives of those uncles and aunts and grandparents who perished in the Holocaust.

Now, Walter has written compellingly on the issue of capital punishment, and I'll leave most of that aside. But I would join him in making the argument that retribution is the only defensible moral ground to justify capital punishment, that deterrence is plausible but it cannot supply the moral ground of justification.

But I put that aside to get to the main weight of my concerns here, the problem that's presented to us as people invoke international law in order to proclaim the wrongness of the death penalty for Saddam Hussein. And I've been taken with some of the preciosity of what we're hearing just after the capture of Saddam Hussein, the commentary from so-called specialists in the Middle East who are arguing that we're offending the Arab world by demeaning Saddam Hussein. And if we recall the emergence of the Baathist regime during that bloody coup d'etat back in 1958 and the aftermath, with the murdered monarch and his murdered prime minister being mutilated and drawn through the streets, we recall that this is not a country or a region or a culture that's been, shall we say, overly sensitive to what is demeaning in the treatment of enemies and losers. Their inclination, rather, has been to make unmistakably clear to the populace, in lessons vivid and memorable, just who is in charge and who has been most unambiguously discredited, condemned, vilified.

But the deeper and more interesting question arising here is just what premises, what principles of political life are people talking themselves into, or what principles that they're talking themselves out of, as they argue for an international forum, a forum more likely, in their view, to reject capital punishment.

There was a telling lesson here years ago with some orthodox Jews in New York who preferred to risk losing their causes in the rabbinic courts to winning their cases in the civil courts, for apart from the win or the loss in their case, they thought that a deeper loss would occur if they indicated through their choice of forum that, on things truly decisive in their lives, they considered the civil law more truly sovereign in their lives than the Jewish law expounded by the rabbis.

That kind of question should be kept in mind here. When people argued that the trial of Saddam Hussein has to be shifted to a different venue outside of Iraq, did they imply that some other people had a more rightful claim to weigh the guilt and punishment of Saddam Hussein than the people in families who had suffered under his murderous rule? Or was it not so much another people as another set of institutions, even institutions detached from a people, a nation, a political order--a set of courts, shall we say, detached from a system of laws containing a --

[Flip tape.]

MR. ARKES: -- or locale, perhaps in Geneva, perhaps in Amsterdam, but an institution applying a law not guided by an executive making decisions as to what cases are worth prosecuting or an executive who may issue pardons, an institution applying a law not laid down by a legislature reflecting the community, legislators who bear a direct responsibility to the people who live under the laws that they are legislating. That is, are the partisan of this scheme imagining a set of laws detached from the very ground of government by consent or from the very notion of government that draws its just powers from the consent of the governed?

The partisans of this cause to bring Saddam Hussein into an international forum are seeking to attain what they regard as a just end, but for the sake of attaining that end they would ask us in America to overturn those critical premises of natural rights or natural law with which America began. And that's no accident, because--I don't speak for Tom, but most people making this argument, who show a passion for the international fora in these things, are not people who usually credit the notion of natural law, of moral truths that hold in all places, moral truths that spring from the very nature of human beings and which promise to be the same in all places where that nature remains the same. The people who make this argument, you know, don't usually insist that there are objective moral truths, they--for the partisans of this new international regime, things are counter to international law to the extent that people, rather like themselves, meeting in international conferences, sign resolutions or conventions condemning capital punishment.

But in that case, international law proclaims the wrongness of capital punishment only if there's been a consensus in the signing of these conventions. And clearly, plainly, there has not been. Even if all countries in the European Union regarded capital punishment as wrong, not all countries and not all members of the U.N. do.

But even if some of these conventions or international agreements did condemn capital punishment, Chief Justice Marshall reminded us years ago in the case of The Antelope, that international law is international before it is law; it presupposes an interstate system marked, as he said, by the perfect equality of nations. In that sense of equality, no one can rightfully impose a rule on another, he said; each nation legislates for itself; its legislation can operate on itself alone; as no nation can prescribe a rule for others, none can make a law of nations. That is to say, if law is but a convention, if it becomes law only because each nation has signed on to it, it does not become a law for the nations that have not.

Now, none of this is to deny--as I move to my conclusion--none of this is to deny on my part or to deny in the least that there are in fact real principles that command our respect across cultures. If I thought that there was such a principle stamping the wrongness of capital punishment, my commitment to end the practice would not have to rely on the least on whether Libya and Syria happen to agree with me. I do happen to think that there is such a principle that enjoins us to protect the lives of innocent beings in the womb. But I also understand that my task is to persuade people in different countries to preserve the laws they've made themselves to protect those innocent lives. The same task must befall the people who would persuade us of the wrongness of capital punishment. There is no low door under the wall here, no facile way of invoking international law and using it as a way of getting around those natural moral reflexes that Walter was referring to, those natural understandings of most people that for certain egregious wrongs capital punishment is the only punishment measured to the seriousness of the crime.

The final irony here may be put in this way: The people who have rejected natural law and appealed to moral truths have condemned themselves to live in a world of positive law--the law that is law only because it has been posited and enacted by people in particular places. In that setting, the standards of right and wrong must depend decisively on the opinions of right and wrong that are held in any place. By that sovereign test, the partisans of these international fora have clearly lost the argument, or at least they have not yet won it; and they must be made to make their way not by appealing to courts filled with their friends or people drawn from the same social circles, but by persuading ordinary folks who persist in thinking that, even in this age of the rule of courts, we still insist on the right to consent to the terms of principle on which we are governed and those laws under which we live.

MS. PLETKA: Thank you very much. What we'll do now is turn to questions. And many familiar faces here, so you know the rules of the game. If you would be kind enough to, first of all, raise your hand, wait for the microphone to come to you, say who you are, and, as always, put your statement in the form of a question, we would be very grateful. And I think everybody on the panel, except me, is going to be taking questions today. So why don't we go ahead and start.

QUESTION: Good morning, I'm Meredith Buell [ph] with Voice of America. I address this to the entire panel, whoever would like to address it.

Last week, the Pentagon declared Saddam Hussein a prisoner of war, therefore governing his treatment and potential trial by the Geneva Conventions. Those that are expert on the conventions suggest that this therefore requires that Saddam Hussein either be tried by an international body or be tried by the occupier, in this case the United States. What does this--and Secretary Rumsfeld this week has said this designation could be changed. But I am interested that if it is not changed, what impact does this have on those people who favor some sort of Iraqi involvement in the trial of Saddam Hussein?

MR. MALINOWSKI: I'll take that briefly. I saw a reference, I think in the Washington Post, to precisely what you're referring to, that somehow the Geneva Conventions forbid a domestic trial of Saddam Hussein if he's a POW. And that's just not true. There's nothing in the Geneva Conventions that would prohibit--that would require an international trial or a trial by the coalition. I happen to think that a trial with international participation is a good idea, for other reasons. But there's no implication of Saddam's status as a POW that comes into play here.

MR. ROTHENBERG: At the risk of again agreeing with Tom, that is true. He's a POW until the end of the conflict. In fact, one could say that the conflict ended when he was captured, and so the United States, under the Geneva Conventions, could try him for war crimes committed during that conflict. But if they choose not to, they simply declare the conflict over, he's no longer a POW, and then they turn him over as Citizen Saddam Hussein, former dictator, to the Iraqi Governing Council, which then tries him for previous crimes.

QUESTION: David Nichols [sp] is my name. I'm interested in exploring the views of the members of the panel by asking a slightly different question, which is that if Saddam Hussein is guilty of the murder of hundreds of thousands of people, why or why not would it be justifiable to torture him?

MR. MALINOWSKI: That's an easy one for me. Hopefully, Larry will agree, and I'm going to give him a chance to agree that it would be wrong to torture Saddam Hussein.

MR. ROTHENBERG: You know, just for the fun of disagreeing with you, I may.

MR. BERNS: If I may add a word to that. We don't torture, because of what it does to us. Somehow it demeans us, and we don't do that. Okay?

MR. ROTHENBERG: Yeah, actually--

MR. BERNS: We've left the question, if not the death penalty, what is the appropriate punishment, presuming that he is found guilty--imprisonment? Where? Exile? In France, maybe? We have to raise that question: If not the death penalty, what is the appropriate punishment? And I think you'd find that you cannot find any appropriate punishment other than the death penalty here.

MR. MALINOWSKI: Well, let me maybe disagree, since I hope we do all agree that a civilized, law-abiding society does not torture its prisoners. And if there's any institution in this country that has an interest in upholding the prohibition against torture of prisoners of war, it's the U.S. military, which would be the first rightly to be outraged if any American were to be imprisoned and tortured overseas by a foreign policy--as Iraq in fact did to American POWs in the first gulf war.

In terms of what's the appropriate punishment, well, of course the appropriate punishment is precisely what Saddam Hussein doesn't expect, which is to be put in prison and kept there for the rest of his natural life. I think, you know, President Bush has said that Saddam should get the ultimate punishment, and I think it's an open question what the ultimate punishment is for this man. I would argue that taking someone who was god in his country for 30 years and putting him in a dark cell in some prison in Iraq, in which he's going to be confined for the rest of his life, with absolute certainty until his death, would in fact be the ultimate punishment. And it's the last thing he expects to happen to him.

MR. ROTHENBERG: I just want to agree a little bit and then get on to some more fun disagreements, and important disagreements.

Yeah, even I would oppose torturing Saddam Hussein, mainly because there's nothing to get out of it and it would damage our sense of ourselves. I think there's an interesting question as to whether in the case of a terrorist who knows where a ticking time bomb is, whether he can have moderate physical pressure applied to him in order to prevent death--which I think would be the only possible reason, for lack of anything else, to use torture. But torture as a form of punishment or retribution in any way I think is inappropriate. And if, as Professor Arkes said, there are in fact certain norms that are agreed across the world, including, as Tom points out, the United States, it's that torture is absolutely wrong. And in fact, one of the most important human rights agreements is really the International Convention Against Torture.

But in terms of what the best punishment is, here we'll get down to an important issue regarding what Tom said earlier about the ability of the international community to impose on Iraq anything. Now, the fact is that the international community does try to impose its will through the way it interprets and the rhetoric it uses regarding international law. And so you see among groups like Human Rights Watch and Amnesty International and others the claim that customary international law at least is moving towards outlawing capital punishment.

Now, I think that's wrong as a factual matter. But in any event, one of the important elements of this is that in fact the next issue, once the international community has -- it's convinced itself that international law bans capital punishment; once they start to convince other people and states, they will start working on life without parole. It is a fact, and I quote this in my paper and you can look at the EU website for their policies on punishment, the EU believes that "imprisonment should be kept to a minimum." And Mexico, for example, does not have life without parole and in the last couple of years has started to refuse to extradite to the United States people who might face life without parole.

What constitutes the ultimate punishment is continually being ratcheted down. And from a slippery-slope or salami-slicing argument, one can say that capital punishment for the worst offenders, the worst of the worst--and Saddam certainly counts for that--should be held out there, because once we start ratcheting that notion of ultimate punishment down, eventually we will be in the position, as I only half-jokingly referred to before, of smacking someone on the wrist and having them promise not to do it again.

And second of all, as a practical matter, it happens in this country--it happened most recently--an interesting issue was President Clinton's pardon of Puerto Rican nationalist terrorists who killed a number of people in New York in the 1960s. And as one of his last acts, President Clinton pardoned them. And they had actually hesitated on whether they were going to renounce violence. So Clinton was almost going to pardon someone even if they didn't promise not to do it again.

And what happens in these circumstances, about 30 years after the crime people say, well, you know, Saddam, he's an old man, he's suffered enough, he shouldn't have to die in prison, and the voices of the victims in those circumstances are muted, partly because they want to put it behind them. And I think saying that we can sentence him to the ultimate punishment, which is life in prison, saying that now is setting us up for 30 years from now providing mercy. Professor Arkes mentioned his Hebraic method of speaking; I will quote from the Talmud, that when one is kind to the cruel, one ends up being cruel to the kind.

MR. ARKES: I'm tempted by that notion of torture. I have an idea of compelling him to sit for 18 hours a day watching reruns of Peter Jennings--though he might find that more buoyant, you know, "things are going badly over there especially since Saddam was captured."

But another question is raised. You know, we long ago decided to end executions as public entertainments. So even those of us who accept capital punishment may still think there's something quite indecorous about cultivating in the public a kind of sadistic pleasure in the suffering of others. But it's plainly possible--and I raise this question for Larry--that, in the conditions of Iraq now, the government there may decide that this is a very important lesson to be taught, and they may in fact argue for a public execution--and a hanging, not a discreet thing in which we simply let him take the hemlock at his own discretion. What do you anticipate about something of that kind?

MR. ROTHENBERG: Um--

MR. ARKES: See, well, I could hear the argument this is the meaning, once again--

MR. ROTHENBERG: Yeah, I--

MR. ARKES: --and yet missing the political--the significance of the way he is tried and the way he is punished.

MR. ROTHENBERG: Yeah, to be frank, I hadn't thought about that as a realistic possibility, except that it is true that in Saudi Arabia beheadings are public.

MR. ARKES: There you go.

MR. ROTHENBERG: I'm personally a little queasy about that notion. But again, my main reaction to that would be leave it to the Iraqis to decide.

MR. BERNS: I have a final word--I hope a final word--on this question of punishment. It ought to be something we think about. What is a better way of seeing to it that Saddam Hussein doesn't come back, or someone like Saddam Hussein doesn't come back and govern Iraq: putting him to death, or putting him in prison where he's a focus of a rallying for the Baathist people? Do we give him visitors privileges? How frequently do we allow people to visit him, and to what extent is that not likely to cause people to rally to his cause? We ought to consider that when we think about punishment.

QUESTION: Hi. My name is Patrice Holerbach [ph] from the Scripps Howard Foundation Wire. I'm curious, for those who advocate the death penalty, how you would define torture. Because I believe--I cannot remember the name of the case right now, but a European court decided that just being on death row was a form of torture in itself. And perhaps somebody can recall that case and maybe address that.

MR. MALINOWSKI: Larry's addressed this in his paper.

MR. ROTHENBERG: Yeah, it's in the paper, the case called Soering v. U.K. And it was an issue of whether the U.K. should extradite back to Virginia Jens Soering, who I believe was a German national, to face the death penalty. And the court ruled that--the European Court of Justice, the ECJ, ruled that even though it admitted that a lengthy appeals process was part of a necessary and legitimate means of ensuring justice, even though it admitted that was the case, still, staying on death row was a form of torture. And I suppose the only response to that is would they prefer a short time on death row? You know, as I think anybody, really, would recognize, you need a long term on death row in order to ensure that justice is done so that the prisoner has all of his legitimate appeals. And of course you would then--if you accepted the argument in the Soering case, then you would, of course, allow a prisoner himself to extend his own appeals in order to extend the time that he's on death row and then claim "I should be off death row because the appeals are taking too long." So I think as a practical matter there are a lot of real ironies in that.

And I would also point out that people who make those sorts of arguments are ones who I would assume would be most inclined to argue that the 1996 Antiterrorism and Effective Death Penalty Act, which did in fact limit the federal habeas corpus review of death sentences, was unfair because it limited death row appeals.

MS. PLETKA: I'd like to actually ask a question since everybody's asking very legalistic questions and I have a very political curiosity here. Tom, you talked a little bit--you actually had the most political take on some of these things when you talked about splitting the coalition over this question of whether we execute Saddam, and the birthday present for Tony Blair. And I wonder, the word "legitimacy" has not come up as often as it usually does in such discussions about Iraq. We usually hear that quite a lot. But I wonder if you think, and then maybe others would like to comment on your answer, whether or not the prospect of executing Saddam Hussein actually detracts--and we could say "detracts further," perhaps--in the eyes of the international community from the legitimacy of the war.

And sort of a bit of a follow-on question as well, because I'm interested in the perspective. If that is indeed the case, does that therefore mean that further such enterprises, military operations to seek out Osama bin Laden or to deal with Syria or Iran or wherever it is that we're often asked here, are those a priori now delegitimized because of the possible prospect that some bad guy will in fact be executed at the end?

MR. MALINOWSKI: Look, I mean, there are two ways that we're focusing on this argument about the death penalty. I think when we debate the death penalty, we usually debate it from the gut. And we've heard a lot of arguments from the gut on both sides. And I could talk for hours about why from the gut I think it's absolutely wrong, with all respect to those who from the gut think that it's the only just punishment. But there are extraordinarily important pragmatic arguments here that also need to be considered, especially since we are not going to resolve the fundamental moral arguments about the death penalty using Saddam Hussein's case. No one is going to be convinced, as a practical matter, on either side.

And what are those practical realities? One of them is, and it's an objective fact with however we may feel about the death penalty, that large parts of the world, including close U.S. allies, both the leadership and the public, strongly oppose the death penalty. They're revolted by it, as a matter of fact. And so therefore the legitimacy, first of all, of a trial that inevitably leads to the death penalty will be undermined to some extent by the fact that Saddam is executed at the end. Which is a problem, because I think we all agree that one of the purposes of the trial is to convince the world that Saddam Hussein was indeed a monster who deserves to be held accountable. And that goal will be undermined if the death penalty is the result.

And then as you suggested, there will be--it will further deepen divisions over the legitimacy and the justness of the war itself and make it even more difficult for the United States to cooperate with its allies in future military endeavors.

Again, if you're for the death penalty, you might recoil at that notion and think that it's absolutely wrong for the Europeans to feel this way. But I think any practical politician, any practical diplomat has got to take into account that this is an objective fact and that those will be consequences, and that has to be weighed--not as the only factors, but as important factors in rendering a decision on this issue.

MR. ROTHENBERG: I would add there--you mentioned practical or pragmatic considerations, but Walter pointed out that there are in fact very practical and pragmatic considerations for executing Saddam. I mean, if he is put in a jail somewhere, he will sit there and plan his comeback. And instead of thinking of himself as the inheritor of the glory of Nebuchadnezzar and Saladin, he'll think of himself as the next Napoleon, with a better shot at winning his Waterloo. I think leaving Saddam alive, as a practical and pragmatic matter, would cast a shadow over the future of Iraq, which--I didn't address this before, but I think is another practical argument in favor of his execution.

But I do think that the moral issues here do matter, and I think that on the question of Saddam himself and on the question of the death penalty itself and the status of the death penalty in international law, it gets down to the worst of the worst, as one analyst has put it. If you don't execute Saddam, who do you execute? And it really comes down to it, that there were people who opposed, in Europe and some people in the United States, who opposed the execution of Timothy McVeigh. The guy planted a car bomb in front of a building, and he knew that there were children in it. If you don't want to execute Timothy McVeigh, you don't want to execute Saddam Hussein, I think that is in fact a serious moral issue. And perhaps even the reason we're having this discussion today is that the case of Saddam really highlights very importantly this issue. I don't think we've ever really had anybody, except perhaps McVeigh, that we could argue in such sharp relief these issues. And I think that's important.

MR. BERNS: Your question, Danielle, allows me to say something I've intended to say from the outset. And I take great pleasure in saying this, so I thank you for that.

I assume that there's some connection between religious belief and moral sentiments. And if questioned on that, I would quote George Washington from his farewell address. I also assume that there's some connection between religious belief and churchgoing--some connection. And I also assume, and will demonstrate that shortly, that there's some connection between moral sentiments and favoring the death penalty.

My evidence: There is no country in the Western world where people go to church more frequently and more regularly than the United States. Fifty-eight percent of Americans go to church every week, they say. Well, how does it stand in other countries? Thirty percent in the Netherlands, 20 percent in West Germany, 24 percent in Britain, 17 percent in France--the church is essentially dead in France and has been for some years, and 10 percent in Sweden, the liberals' favorite country on the face of the earth.

These are countries also that are opposed to the death penalty. Where does the death penalty have its greater percent of advocates in this country. Well, in Jacques Chirac's Texas cowboy country. And what is the percentage of people who go to church in the South or in Texas? I don't have the figures on that, but the last time I saw it, it was something like 80 percent.

I would therefore draw a connection between churchgoing, moral sentiment, and the death penalty. The more religious you are, the more moral you are; the more moral you are, the more likely you are to support the death penalty. There is evidence of that. And if the French don't like it, too bad.

MR. MALINOWSKI: Well, just one brief aside. I think the pope would disagree with you on that question.

MR. BERNS: That is true. And I've heard all kinds of pious Roman Catholics say to the pope: too bad.

MR. ARKES: Just a small item on this. I just want to make a point that I never argue from the gut because I can't expect other people to share my gastrointestinal tract. And the gurglings of the gut do not produce propositions, that is with subjects and predicates. I don't think anything I offered was in that vein today. But I am curious about the fact that, Tom, you were invoking mainly considerations of prudence, not necessarily arguing about the wrongness of the penalty--of course, you take that as given--but urging us to be prudent about the distribution of opinion now in England and France. And I think, well, what about the new passion for multiculturalism? What about this new passion for tolerance of cultures that may diverge from your own? Don't you think you'd invoke that for the people now in power over there, and perhaps point out to them that they have indulged that disposition for tolerance when they look at bloody coup d'etats in other countries, when they're willing to talk about stability in Saudi Arabia without being overly fastidious about the terms of governance in certain places? And perhaps it all ought to be attended by an apology now for having executed Charles I.

MR. MALINOWSKI: Okay, well, maybe--let me answer here. I have no idea where multiculturalism fits into this, and I think we're off on all kinds of tangents here.

I am no apologist for the Europeans who, in many cases, supported Saddam's regime and have been very lax in confronting similarly repressive regimes around the world. That's not the issue here. The issue is one that I don't think that any responsible leader of the United States can evade, and that is are you going to get the kind of international support that the Bush administration is very actively seeking for this process of justice in Iraq if there is a death penalty? It's not the only consideration, but it is one.

And in terms of the moral arguments, for me they are a given. I mean, I could go on and on. One point I'd like to make, I've never understood, I've never comprehended how conservatives can be for the death penalty. I am in some respects a conservative myself, in the sense that I believe in what I think is the fundamental tenet of conservatism, and that is that the powers of government should be limited in certain ways. And if you believe that, I don't understand how you can say that government should have the ultimate god-like power to decide who lives and who dies. I don't want to live under a government that can declare my life to be illegal through a judicial or bureaucratic process. And that's something I frankly just never comprehended, both intellectually and in a gastrointestinal way.

MS. PLETKA: We're not going to get into this debate.

MR. ARKES: [Inaudible.]

MS. PLETKA: No, because in fact we have another conference in this room coming up in two minutes. I think we have covered a very wide gamut of topics here today, and I thank our panelists very much--Larry, in particular, for the presentation of the paper, which is available outside and which I think will be available on our website as well. It should be available at ngowatch.org.

Again, thank you to the Federalist Society and to Leonard Leo and to Brian Hook, and to everybody here today. And with that, we are closed. Thank you.