a citizen’s journal by Thomas Nephew

Judgment at Nuremberg

Posted by Thomas Nephew on September 18th, 2006

Marty Lederman has been right about just about everything on the topic of the administration’s misguided aims and policies regarding its prisoners. So it’s only with great hesitation that I’ll say I think Lederman is wrong when he says providing legal immunity for past misconduct is not a major point of the current legislative proposals:

To the extent officials violated the standards of Common Article 3 with respect to Al Qaeda prior to June 29, 2006 (the date of Hamdan), they could not be prosecuted for such violations of CA3 (as incorporated in the War Crimes Act), even without the Administration’s amendment, because the President had determined that CA3 does not apply to the conflict with Al Qaeda, and due process would prevent any prosecutions for conduct undertaken in reasonable reliance on that presidential determination.

Lederman believes the main point is to keep options open for future cold cell/long time standing/ etc practicioners, not to shield past ones, arguing that reasonable people would assume that a presidential directive was ipso facto a legal directive.

The problem, I think, is that Lederman is thinking about the wrong war criminals. I can’t argue with Lederman about the prospects of some ethically challenged waterboarder at the CIA being tried for war crimes.

No, it’s the people at the OLC like John Yoo, and the people in the Pentagon like William Haynes II who need to be worried — they gave the criminal advice, they greased the skids by suppressing the countervailing views. It’s the civilian commanders who knew they ordered that advice a la carte who need to be worried — they reflected that advice right down the chain of command. I think this debate is at least in part about the very real prospect of indicting John Yoo and David Addington and Alberto Gonzales and William Haynes and Donald Rumsfeld for war crimes.

One important precedent might be USA vs. Josef Altstötter et al, 1947 — better known as the Judges Trial or Justice Trial, and best known as Judgment at Nuremberg. It was about whether judges and — more to my point — civilian justice officials could be held criminally liable for the reprehensible advice they gave and the criminal actions they took under color of law.

Back when there were still happy endings to questions like this, they could. From the verdict:

  • Paragraph 13 of count two of the indictment charges in substance that the Ministry of Justice participated with the OKW and the Gestapo in the execution of the Hitler decree of Night and Fog whereby civilians of occupied countries accused of alleged crimes in resistance activities against German occupying forces were spirited away for secret trial by special courts of the Ministry of Justice within the Reich; that the victim’s whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victim’s relatives and associates and barring recourse to evidence, witnesses, or counsel for defense.
  • Von Ammon is chargeable with actual knowledge concerning the systematic abuse of the judicial process in these cases. […]
    We find the defendant von Ammon guilty of war crimes and crimes against humanity…
  • Rothenberger not only participated in securing the enactment of a discriminatory law against Jews; he enforced it when enacted and, in the meantime, before its enactment, upon his own initiative he acted without authority of any law in denying to Jewish paupers the aid of the courts. […]
    He participated in the corruption and perversion of the judicial system. The defendant Rothenberger is guilty under counts two and three of the indictment.
  • By way of summary we may say that Schlegelberger supported the pretension of Hitler in his assumption of power to deal with life and death in disregard of even the pretense of judicial process. By his exhortations and directives, Schlegelberger contributed to the destruction of judicial independence. It was his signature on the decree of 7 February 1942 which imposed upon the Ministry of Justice and the courts the burden of the prosecution, trial, and disposal of the victims of Hitler’s Night and Fog. For this he must be charged with primary responsibility.
  • Etcetera…

The charges and circumstances of the “Judges Trial” were specific to their time and place. But the principles established were broad: the legal profession could and would be held culpable for its facilitation of war crimes and crimes against humanity. I think these cases show a a real resemblance to the methods of the current administration: law twisted into an instrument of wrongdoing, via loyalty to the commander in chief and all manner of subterfuge as long as necessary, and the cover of legal Latin, memoranda, gavels, and robes.

Not only do the “Night and Fog(Nacht und Nebel) decree, the directives it spawned, and other decrees like it look eerily familiar, but as Senator Durbin once pointed out, the outcomes of many of these “legal” efforts bear a very strong resemblance to eachother as well. Interestingly, the one charge the Nuremberg tribunal seems to have generally thrown out — conspiracy — may be quite appropriate as well in the current case.

In my (inexpert) opinion, it’s this as much as anything else that has been, shall we say, strongly motivating Bush et al ever since the Hamdan ruling this summer. That ruling raised Article 3 of the Geneva Conventions back to its rightful status as the supreme law of this land — and in so doing basically raised the question what to do about people like John Yoo and others who had provided patently weak legal cover for acting in definace of that supreme law.

Hence, after a lot of filing, sanding, and polishing, the latest, greatest administration — woops, McCain/Warner/Graham bill — has some key provisions every current and future Republican president can agree on. Jack Balkin points out :

It is still a very bad bill, eliminating judicial review and habeas corpus, and limiting criminal enforcement of Geneva Common Article 3 under the War Crimes Act (apparently Geneva CA3 is still law, but only “grave violations” of Geneva are criminally enforceable). Additionally (p. 82), the new bill says that “no foreign source of law can be used in defining or interpreting” America’s obligations under title 18 of the U.S. Code– i.e., the U.S. criminal code, which would include, presumably, the War Crimes Act and the anti-torture statute.

Thus are the Geneva Conventions to be officially rendered quaint — a museum piece, interesting to historians, but of no legal relevance to American conduct. Thus is America’s solemn word rendered forever suspect if it ever ratifies future human rights treaties — we’re Lucy with the football, the world is Charlie Brown running up to kick it.

But above all else, to the Bushies, thus are Bush loyalists to be immunized from the consequences of their devotion to their homeland and their divinely inspired leade. The administration’s preferred language. Notice the date:

This Act shall take effect on the date of the enactment of this Act and shall apply retroactively, including to any aspect of the detention, treatment, or trial of any person detained at any time since September 11, 2001, and to any claim or cause of action pending on or after the date of the enactment of this Act.

The McCain/Warner/Graham bill is more obfuscating, but looks like it accomplishes much the same thing for acts through December 30, 2005.

Thus will 9/11 change everything after all. For if no war crimes can be charged against the physical perpetrators of torture, I’m afraid none can be charged against those who gave the order, and none can be charged against those who developed the legal cover for that order.

I call on any vertebrate Democrats and Republicans to oppose any bill that immunizes anyone from war crimes of any definition since September 11th. The Lynndie Englands of this travesty shouldn’t be the only ones to have to take responsibility for what has happened to us. The John Yoos and David Addingtons should as well.

NOTE: My first introduction to the USA vs. Josef Altstötter et al case was from listening to British human rights lawyer and University College London law professor Phillippe Sands’ October 2005 debate with John Yoo. Sands’ remarks on this score begin around 14:00 minutes into the program.

2 Responses to “Judgment at Nuremberg”

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    […] complicity,” “life in prison” — The Mazal Library. PREVIOUSLY: Judgment at Nuremberg, 2006/09/18. EDITS, 11/15: subtitles added; 11/16: Judgment at Nuremberg link […]

  2. » Blog Archive » The Gonzales resignation: a strategic retreat Says:

    […] Comey objected to. Likewise, regarding torture, elements of the Military Commissions Act (MCA) may have had the purpose of insulating administration officials from legal, constitutional, and international law claims by […]

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