newsrackblog.com

a citizen’s journal by Thomas Nephew

Blogged.com

Department of followups: obliteration, Altstoetter, UPDATE: Zimbabwe

Posted by Thomas Nephew on May 11th, 2008

An occasional review of further developments in stuff I’ve written about before.

  • Past diminishing and well into negative returns…, April 24, 2008 — Responding to Senator Clinton’s threat to “obliterate” Iran if it were to attack Israel,* Iranian cleric and “Assembly of Experts” member Ahmed Khatami said:

    A disreputable American (presidential) candidate has said that if Iran attacks Israel, she will obliterate Iran if she is the president. I tell the American people, it is a shame for them that their presidents are servants of Israel without any willpower.

    What they are saying recently is just psychological war. However, if the crazy people in Washington or Tel Aviv take any military action, the Iranian nation will hit them with such a slap that they will not be able to get on their feet again.

    We are observing the siege of Shiite Sadr City in Iraq. It seems Americans would like to make what happened in Gaza happen in Sadr City too. We can only conclude that America is fighting Islam.

    What the “slap” would be is left to our imaginations, but Americans are now presumably in the collateral damage crosshairs if Iran chooses to retaliate for any American military action. A corollary to “violence begets violence” is “reckless, foolish talk begets reckless, foolish talk.”

  • Practice to deceive, April 22, 2008 — In prior posts I’ve echoed the suggestions of legal scholars like Scott Horton and Philippe Sands that the Nuremberg “Judges” or “Justice Trial”, a.k.a. U.S. v. Altstoetter, is a precedent for trying lawyers like John Yoo and David Addington for war crimes based on giving the color of law to illegal acts. However, writing at “Balkinization,” New Zealand legal historian Kevin Jon Heller argues otherwise:

    The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

    The key difficulty, Heller believes, is that none of the Altstoetter defendants merely gave legal advice; rather, all were also part of the Nazi legal machinery denying habeas corpus to prisoners and issuing verdicts. Heller asserts that the NMT (Nuremberg Military Tribunal) arguably convicted all the defendants for their deeds rather than their legal advice:

    … the mode of participation they use to convict a defendant -– ordering, aiding and abetting, joint criminal enterprise, etc. -– and often even fail to identify which of the defendant’s acts discussed in the judgment they consider criminal. [...] … individual responsibility required the prosecution to prove “that a defendant had knowledge of an offense charged in the indictment . . . and that he was connected with the commission of that offense…

    Related posts at “Balkinization” include Marty Lederman’s setup for Heller, “What, if Anything, Does the Nuremberg Precedent Tell Us About the Criminal Culpability of Government Lawyers?,” acknowledging the potential relevance of Altstoetter, and “What’s the Relevance of Altstoetter, Anyway?” following Heller’s piece which reiterates Lederman’s skepticism about the propriety of Altstoetter-based criminal charges against Yoo et al for their “aspirational” readings of U.S. and international law, rather than an inquiry into whether constitutional obligations were breached.**

    However, Lederman also acknowledges Scott Horton’s comment about Heller’s post. There’s much more in Horton’s comment, but one part makes a point I made in “Practice to Deceive” — that the way in which the advice and directives were concealed argues for knowledge that said advice was criminal in nature:

    Philippe Sands’s key finding — if there is just one — is that the bottom up narrative that the Administration puts forward surrounding the introduction of torture techniques is a sham. He follows the story to its roots, and he finds that it is, to the contrary, a “top down” story, with a number of lawyers engaging in an elaborate scheme to cover it up with the paper trail that starts with the Diane Beaver memoranda. Key to this unraveling is the story of the senior lawyers’ trip to GTMO at the launch of the process, a trip about which Haynes repeatedly lied. Now it’s possible to explain this from a PR angle focused on domestic politics, which undoubtedly was a major focus of the White House throughout, but a prosecutor could just as well make the case that this shows recognition and belief that the scheme was essentially criminal (or presented substantial likelihood of criminal culpability) and thus needed to be concealed.

  • Zimbabwe: enough is enough, April 10, 2008 — The repression of Zimbabweans following their election of Morgan Tsvangirai (contested by Robert Mugabe’s ZANU-PF party and state apparatus) continues unabated — but so far at least without the logistical resupply of a ship full of weapons sold by China to the Zimbabwean government. The An Yue Jiang was not allowed to dock in South Africa, Namibia or Angola — generally thanks to union activism in those countries.But Nell Lancaster (“A Lovely Promise”) points to a recent article at Sokwanele *** alerting readers that the government of Malawi may be the weak link in the chain of refusals to allow the ship to offload its deadly cargo. As the Sokawanele author Hope puts it, the case is important because (a) political violence in Zimbabwe continues, (b) the case has proven to be something people outside Zimbabwe can get involved in, and (c)…

    it is also forcing countries in the region to ‘nail their colours to the mast’, so to speak. In the open glare of the public eye, this story shows us which nations are concerned for the safety of the Zimbabwean people, and which ones are more concerned with the loyalty to the Zanu PF regime.

    The Malawi embassy in Washington, D.C. can be contacted at (202) 721-0274. Embassy e-mail addresses I’ve found include embassy@malawi.com.tw (Taiwan) and mwiun@undp.org (UN); several others are listed here.

    =====
    * Clinton’s remarks to Chris Cuomo (emphases added): whatever stage of development they might be in their nuclear weapons program, in the next 10 years during which they might foolishly consider launching an attack on Israel, we would be able to totally obliterate them.” Like him or not, Khatami is justified to consider this, on careful consideration, as a (reckless) threat of nuclear retaliation by Clinton for a nonnuclear attack — even if, in a subsequent interview with Keith Olbermann, she conditions a U.S. nuclear response on an Iranian nuclear attack on Israel. In another interview with Andrea Schaefer, she claimed “facts on the ground have changed” since October 2007 (before the release of an NIE denying an active Iranian nuclear weapons program was underway) — and considered the notion of Iranian theocrat undeterrability plausible enough to repeat without qualification on national TV.
    ** Lederman thus at least implicitly concedes the possibility and potential propriety of impeachment proceedings against Yoo (and possibly the president) by Congress. As may or may not be well known, one of the consequences of a conviction for an impeachable act is that the convicted person may not hold federal office again. Both impeachment and conviction are thus useful and possible after that person has held federal office.
    *** The word means “Enough is Enough”; the site chronicles Mugabe’s repression and democratic resistance to it in Zimbabwe.

    NOTES: (1) Khatami remark link is to a Real News Network video clip, transcript, and translation of Khatami’s remarks. (2) Nell has an earlier post about the An Yue Jiang here.

3 Responses to “Department of followups: obliteration, Altstoetter, UPDATE: Zimbabwe”

  1. Nell Says:

    Your point, and Horton’s, reinforces my reaction to Brad DeLong’s petition to the president of the Berkeley faculty senate for an inquiry into Yoo’s actions and possible responses by the university.
    Which is that 1) university action is the wrong place to begin holding Yoo accountable and 2) even if university action were the right approach, DeLong’s petition appallingly grants legitimacy to the views of those for whom there are valid exceptions to the laws against torture (which, at the time of Yoo’s actions, admitted of no exceptions whatsoever).
    The crime for which Yoo needs to be held accountable is his wilful effort to “legalize” something he knew could not be legalized. The way in which DeLong’s petition characterizes Yoo’s actions does its very best to muddy that point. It operates, as DeLong so often does, by establishing degrees of huffy outrage.

  2. Thomas Nephew Says:

    I agree with you that turning the tenure fight into the central front on Yoo is weak beer; on the other hand, it’s not as if that precludes prosecution — and it might be a feasible goal for DeLong. So good for him for trying. But I also agree that DeLong skates too close to conceding that torture of even KSM or other AQ inner circle figures is legitimate in any sense. His point, he says, is different — that Yoo authorized any and all torture on presidential say-so, not “just” ticking bomb, “high value detainee” torture. I’m not as familiar with DeLong as you are; maybe that’s why I feel like cutting him some slack and just calling those parts of his letter unfortunate and awkward.
    Also — this echoes thoreau’s response to you at “Art of the Possible” — I think DeLong is trying to land a big fish on a weak fishing line. The whole letter is couched in “value of debate” and “mustn’t prejudge but” etc. terms, which may have had the same intent. Once the panel was convened, stronger statements could be made aplenty; until then, DeLong may feel, an importuning, nearly obsequious letter full of academic hems and haws and maybes was his best, slim chance.
    And Drummond’s ridiculous, disgraceful reply (proposed panel in itself defamatory!? UC Berkeley lacks the expertise to judge the issues?!) may bear him out. Drummond, it turns out, is a hack who’ll say any stupid thing he wants because he knows apparatchiks don’t have to make sense, they just have to say no.

  3. Nell Says:

    Good points. I’m probably not much more familiar with DeLong than you, and I’m sure I’m biased because my reading of his blog is weighted heavily toward the occasions when people to his left disagree with him. (How I miss Max Sawicky.)
    But he’s liberal of a particular kind, one whose style in argument is to make distinctions (many of which seem arbitrary) and declare that x is not his style, y is dubious, but z and everything beyond it is completely beyond the pale, requiring denunciation and shunning by all decent people etc.

Leave a Reply

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong> -- (comment rules)