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Will wonders never cease — discussions of war crimes on late night TV with millions watching. It happened when David Letterman interviewed Jane Mayer, author of “The Dark Side,” a book about the Bush torture presidency.

Letterman does a remarkable job with the interview — asks the questions a “24″ watcher might ask — but he didn’t shy away from going long the other way, with direct and repeated questions about war crimes. He might have skipped the “will never happen” part as unnecessary soothsaying, but other than that he’s put most of the network news teams out there to shame. Colbert, Stewart, Letterman: when the news “industry” is a joke, it takes jokers to bring you the news.

Via Avedon Carol; as she says, pass it on.

This is a scrupulous and ultimately devastating indictment of the British RAF bombing campaign in Europe and the USAAF one in Japan during World War II. These so-called “area” or (at least in Grayling’s book) “strategic” bombing campaigns had the purpose of creating maximum deaths among citizens of the enemy nation, and of thereby breaking the will and ability to continue supporting their nation’s war effort.

Grayling contrasts these campaigns with so-called “precision bombing” attacks — however inaccurate such bombing often was in practice. Examples of the latter include the RAF’s dam-buster or Peenemunde rocket production facility attacks, the USAAF’s attacks on Schweinfurt ball bearing plants, or similarly motivated and targeted attacks on oil and gas production facilities such as those at Leuna or Ploesti.

Instead, Grayling focuses especially on “Operation Gomorrah”, the mid-1943 attacks on Hamburg, as a hard case in that the war was not yet won as it arguably was in the more famous cases of Dresden, Hiroshima, or Nagasaki. Grayling finds (and rightly, in my view) that “Gomorrah” served no useful purpose and was immoral, conducted with a view simply to maximum casualties and destruction of civilian infrastructure.* The bombing raid and ones like it may well have qualified as a war crime even by standards prevailing before and after the war (including those employed at the Nuremberg trials).

Grayling conveys some of the horror and terror of that attack — streetcar glass melting, follow-on bomber crews able to feel the heat from the first attacks in their planes, at least 45,000 dead. (While Grayling draws on many sources, including W. G. Sebald’s famous “On the Natural History of Destruction,” one eyewitness account — “Der Untergang”,** by Hans-Erich Nossack — is an understated classic in its own right.) It should be noted that Grayling explicitly judges the Holocaust to be worse, but adds that has no bearing on whether “Gomorrah” and similar raids were crimes.

Not all of Grayling’s arguments are fully convincing, but to his credit he always considers and evaluates counterarguments. In the main example of this, he argues that morale was if anything hardened and war production was unaffected by area bombing. Yet he also notes that the German war economy had plentiful slave labor and had plundered Europe for raw materials, machinery, and production.*** To employ the kind of analogy Grayling frequently does, if the Nazis devised a machine that repaired factories and fed refugees, but was fueled by concentration camp corpses, would this “success” invalidate attacking those factories and cities? I’m unpersuaded in this respect; the case against “area bombing” ultimately isn’t one of efficacy, but of proportion and humanity.

Yet even by the RAF’s lights, Grayling is right to consider the pragmatic military arguments for and against area bombing; a staggering 55,000 RAF bomber crew members lost their lives in the campaign. Grayling disposes effectively of another argument — the diversion of military manpower and materiel (esp. the feared dual antitank/antiaircraft “88s”) to antiaircraft duty within Germany — by pointing out the same diversion would have happened for a “precision” bombing strategy focused on war industries.

As Grayling points out, this debate is far from academic or “merely” historical. US military doctrine still holds that economic (not merely military industrial) targets are fair game in war, and that weakening enemy civilian morale is a valid strategic goal of bombing. Both postulates appear to contravene elements of newer Geneva Conventions to which the US is not a signatory — but to which much the rest of the world is. Attacks on civilian targets, or undiscriminating attacks to which too many civilians will fall victim, may also be among the indictments of some US actions in Iraq, such as in Fallujah or Sadr City (quite aside from the necessity of the Iraq war in the first place). But those will be the topics of a different book.

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* Bomb payloads were calibrated to cause firestorms (hurricane-force winds caused by combined fires, incinerating and suffocating whole city neighborhoods) by inclusion of incendiary devices — and by the inclusion of delayed action bombs calculated to injure or kill firefighters. A version of the latter “one-two punch” tactic was also adopted by some terrorist suicide bomber team attacks in Israel and elsewhere.
** The title of Nossack’s book has been translated as “The End” in English editions. Fair enough, but the word is more complex than that; the literal meaning is “under going,” and Nossack uses it the way it is generally used: for the sinking of a great ship.
*** The explanation Grayling seems to prefer for the puzzling increases in German wartime production was that the Nazi command economy may have had a good deal of slack — room for efficiency improvements — before the war.

NOTE: This review was adapted and expanded from a version published to “Visual Bookshelf”/ReadingSocial; however, I may do more with LibraryThing as I figure out ways to integrate that here.
EDIT, 6/18: “(While Grayling draws…” sentence and ref. to 2d footnote added. Thanks, Nell.

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

Though we’ve never met, Marty Lederman, a Georgetown law professor who writes frequently for the blog “Balkinization,” is someone I hold in high esteem. As a former Office of Legal Counsel (OLC) lawyer in the Department of Justice, he has great insight into the procedures and importance of that agency. He has also been a passionate advocate against abuses of power by the Bush administration, and has been an particularly invaluable guide in the past years through the maze of treaties, statutes and legislation governing detainee treatment — and protecting their human rights.

Yet there is something quite dispiriting about some of what Mr. Lederman has written lately, specifically about legal accountability for war crimes. For what he seems to be saying is that there is none, not in this country at any rate. If I’m right about what he’s saying, and he’s right about what he’s saying, that’s a shame. If he’s not right, though, it’s a strange corner for him to have painted himself into.

The subject arose during Lederman’s discussion of Judge — and now Attorney General — Mukasey’s refusal to simply characterize waterboarding as torture. Lederman argued that “if one’s interpretative principles and legal analysis of the terms “torture” or “cruel treatment” lead to the conclusion that waterboarding is not torture or is not cruel, then a fortiori one must abandon those interpretive principles and that form of legal analysis.” (Emphasis in original). In a memorable comparison to the legal chestnut (I take it) of interpreting a law like “no vehicles in the park,” he writes,

…if, in parsing the “no vehicles” rule, one arrives at the conclusion that a souped-up Corvette may be driven through the center of the park, then that’s a pretty good clue that you need to find yourself some new interpretive principles. [...]

Waterboarding is the souped-up Corvette of the torture ban.

Lederman’s point was that, contra Ben Wittes’ article for The New Republic, Mukasey could indeed repudiate waterboarding as a “paradigmatic,” archetypal example of torture: “The bottom line is that the OLC legal analysis in support of waterboarding is indefensible — I think Ben would agree — and Judge Mukasey should simply say so.”

No prosecution for reliance on war crime advice
The gist of Wittes’ point however — and Lederman’s own point in an earlier post — was that since CIA operatives have acted in reliance on advice that waterboarding isn’t torture, Mukasey doesn’t want to pull the rug out from under them. Wittes agrees that waterboarding crosses a legal line, but understands Mukasey’s reluctance to before he’s read the latest, greatest OLC memo defending it:

…it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

Lederman believes this isn’t such a big problem, though. Why? Because

[t]here is no possibility — none — that the Department of Justice would ever prosecute anyone who acted in reliance on OLC’s legal advice about what techniques were lawful. (Such a prosecution would, in my view, violate due process to the extent such reliance were reasonable…)

What Lederman seems to be reporting — no, what he is reporting — from the legal profession to those of us gathered outside in the hallway, is that the “only following orders” dodge lives. “Judgment at Nuremberg” truly was only victor’s justice, it seems; the only way a CIA waterboarder will ever face justice is if she’s tried by a foreign country that has caught her and/or defeated us. I’m not saying I’m sure he’s wrong as a practical or legal matter — how could I? I’m just summing up the news for myself.

But that’s not the half of it.

No prosecution for giving war crime advice
I wrote in to suggest it wasn’t necessarily the waterboarders themselves whose plight concerned Mukasey or his handlers. No, it was those who gave those waterboarders the “souped up Corvette” advice: the Yoos, the Addingtons, the Bybees. The precedent, I suggested, was U.S. v. Altstötter, the so-called “Judges Trial” at Nuremberg establishing — at minimum, I think — that giving the color and imprimatur of law to what are plainly war crimes against humanity is itself a war crime against humanity. No again, Lederman replies

…unless there’s a smoking gun memo out there somewhere showing that John or others did not really believe the advice they were giving, and that they were simply trying to justify conduct that they knew to be unlawful, I think it’s inconceivable that DOJ would ever prosecute them, either. And I strongly suspect that there is no such smoking gun because John [Yoo], and Jay Bybee, did actually believe the advice they were providing was legitimate, possibly even “correct.” [...] …I think the providers of the 2002 and 2004 OLC advice probably believed in what they were writing. Or, in any event, there’s unlikely to be evidence to the contrary.*

Returning to Lederman’s first quote above, it turns out that “a fortiori” means “to the stronger” argument, i.e., “even more so,” so that Lederman was saying that a patently wrong conclusion should force abandoning the premises leading to that conclusion.

But surely it should do more than that for those of us watching such “conclusions” being drawn.

There is simply no way that you can in good faith conclude that “no vehicles in the park” means “souped up Corvettes are OK” — you are doing more than bending the rules, you’re breaking them. Likewise, there is simply no way that you can conclude in good faith that waterboarding is not torture. To employ another metaphor Lederman has discussed, secret torture analyses that speciously justified waterboarding and other horrors short of organ failure weren’t Yoo et al just getting “chalk on their spikes” — i.e., nearly going out of bounds in a football game. They were eluding tackles by running off the field, using their teammates on the sideline for blockers, and sneaking into the end zone for a touchdown. (Lederman says as much himself: “The chalk is but a distant memory there.”)

In such cases, Lederman’s prescription that brushes with the legal sidelines must at least not occur in secret is no longer sufficient — and he skids from calling waterboard opinions “souped up Corvettes in a no vehicles zone” to considering it critical whether people like Yoo and Addington believed in their own advice.

For my part, I think Yoo and Addington knew full well that they were gutting laws and a Constitution, not interpreting them, and I think they took pride in that rather than shame. But I also don’t much care whether they believed themselves or not, any more than a traffic cop cares whether I believed the traffic light wasn’t red when I ran it. Like me, even lawyers — and even lawyers at the OLC — are subject to law; like me, even lawyers — and even lawyers at the OLC — must face penalties when they cause laws to be broken, or there is no reason to believe that laws will be followed.

If lawyers like Yoo and Addington find themselves solemnly advising the executive branch that waterboarding is not torture — and drafting, signing, and approving documents with legal force to that effect — then “finding some new interpretive principles” is merely the first thing that should be done. A “fortissimiori,” such advice is a patent war crime — and the advisors should face the legal penalties.

Herbert Klemm — a fortiori, John Yoo
Consider, for example, Josef Altstötter’s co-defendant Herbert Klemm, who like almost all the defendants in the case was found guilty of “war crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, and plunder of property.” (Emphasis added.) Among the specific acts proven against Klemm was his knowing complicity in torture during a stint at the Reich Ministry of Justice:

…after transfer to Berlin in 1935, the defendant dealt with acts against the State and Party and, later, the malicious acts law. In this field prosecution could be ordered only by the Ministry of Justice with the permission of the office of the deputy of the Fuehrer, which later became the Party Chancellery. It was during this period that the following circular, dated Berlin, 18 October 1937, and initialed by Klemm, was issued (NG-310, Pros. Ex. 33):

1. Criminal procedures concerning more severe interrogations by the Stapo will be dealt with centrally by Chief Prosecutor Klemm. They are to be sent to the competent co-worker Prosecutor Winkler. [...]

Klemm’s sentence? Life in prison.

Klemm deserved that punishment — even though he worked in a system that had already bent and rewritten laws to the point where they were in themselves institutionalized crimes against humanity. But if Klemm deserved punishment for his deeds in that system, then a fortiori Yoo et al do for theirs in a system that had not — yet — reached such levels of depravity.

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* Lederman repeats this in a post today about the re-opened Office of Professional Responsibility (OPR) investigation of the OLC.

NOTES: “U.S. v. Altstötter” — Wikipedia “Justice Trial” entry; “knowing 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 added.

As thousands watched, 465 newly identified victims of the 1995 Srebrenica massacre were reburied Wednesday, reports the Guardian’s Almir Arnaut, bringing the total identified and reburied to over 3,000. For readers who may have forgotten, Arnaut explains:

Up to 8,000 Bosnian Muslims were killed by Serb forces who separated men and boys from women on July 11, 1995, and killed the males over several days. It was the worst mass slaughter in Europe since World War II.

Dutch peacekeeping forces assigned to guard the so-called “safe haven” of Srebrenica were arguably overmatched by besieging Bosnian Serb forces; at any rate, they certainly proved unwilling to continue to protect the community. Arnaut:

Some 15,000 men tried to escape the slaughter by fleeing over the mountains toward the safe town of Tuzla. They were hunted along their 65-mile walk and killed if caught. Hazim Mehmedovic was 3 years old at the time, and was carried along the path in his father’s arms.

Hazim, now 16, arrived a few days ago from Copenhagen, Denmark, where he is living with his mother. Survivors today live in 107 countries around the world as refugees, he said.

For the past few days, he walked the escape route the other way from Tuzla to Srebrenica and arrived for the anniversary.

“I don’t remember anything and wanted to see where it happened. The Serbs shelled our group and killed dad while he was holding me in his arms. Someone else, I don’t know who, carried me the rest of the way to Tuzla,” he says.

While the victims are dead and beyond caring, the story continues to enrage and disgust. Ratko Mladic and Radovan Karadzic — the military and political directors of the atrocity — remain at large. And in February, the International Court of Justice reprehensibly absolved Serbia of responsibility for the massacre — after refusing to subpoena documents plainly showing that the Bosnian Serb army was directed from and paid by Belgrade.

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MORE at this site:
06/04/2005: Video from Srebrenica massacre surfaces
07/12/2005: Srebrenica, 10 years later
02/26/2007: ICJ: Srebrenica was genocide. Serbian police were involved… …yet Serbia cleared of genocide (”reprehensibly” link above).
02/28/2007: Where’s Ratko? — includes specific ICTY charges against Ratko Mladic.
05/14/2007: Department of followups: …Bosnia (”refusing” link above)

UPDATE, 7/12: Mark Burgess (World Security Institute’s WSI Brussels Blog) reported in early June: “Survivors of the 1995 Srebrenica massacre are suing the United Nations and the Netherlands for what they say was a failure to protect civilians from Bosnian Serb forces.”

NOTE: The June 4, 2005 post is one of the most frequently visited posts at this site (via a Google image search to the video still), and the “outclick” to the video linked there is by far the single site people visit most often from here. I hope it’s not just rubberneckers or worse, but also people like Hazim who really need to know what happened.

Have you seen this man? He’s Ratko Mladic, the butcher of Srebrenica. The collective legal apparatus of Serbia, Europe, and the world need your help in finding him, because they apparently can’t find their own asses with both hands, a mirror, and all the lights on.

It’s been nearly a year since Serbia promised to deliver Mladic to the International Criminal Tribunal for the former Yugoslavia (ICTY) by the end of April 2006, following an extension of a deadline by the European Union in relation to Serbia’s application for accession to that body. In the following weeks, the noose seemed to tighten with several arrests of people suspected of supporting Mladic, but the deadline came and went. A flurry of reports like this one suggested that Mladic had been located in a former Yugoslavian republic a few weeks earlier, was cut off, and that a team of British MI-6, CIA, and Serbian BIA intelligence agents was on the case. But nothing happened.

What is Mladic charged with, exactly? From the amended Mladic indictment handed by ICTY prosecutor Carla del Ponte on October 11, 2002:

RATKO MLADIC

with GENOCIDE, COMPLICITY IN GENOCIDE, CRIMES AGAINST HUMANITY, and VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR, as set forth herein: [...]

25. As Commander of the Main Staff of the VRS,* General Ratko MLADIC, acting individually and in concert with other members of the joint criminal enterprise, participated in the joint criminal enterprise from no later than 12 May 1992 until at least 22 December 1996 in the following ways:

1. Planning, preparing, facilitating, or executing a campaign of persecutions, which included acts of genocide, within BiH,* by establishing control of the municipalities listed in Paragraph 36 of the indictment; attacking and destroying non-Serb towns and villages, as well as looting, destroying, and/or appropriating residential, commercial and religious properties in the municipalities; killing and terrorising the non-Serb inhabitants, and submitting them to cruel and inhumane treatment and conditions, including physical, psychological and sexual abuse, often in detention facilities; using non-Serbs for forced labour, including at front lines, and as human shields; imposing restrictive and discriminatory measures on the non-Serb population; and separating, deporting, and permanently removing non-Serbs who did not subjugate themselves to Serb authorities;

2. Planning, preparing, facilitating, or executing a protracted military campaign of artillery and mortar shelling and sniping into civilian areas of Sarajevo and upon its civilian population and institutions, killing and wounding civilians, and thereby inflicting terror upon its civilian population;
3. Planning, preparing, facilitating, or executing an operation to take UN military observers and UN peacekeepers as hostages following NATO air strikes on 25 and 26 May 1995;
4. Planning, preparing, facilitating, or further executing the campaign of persecutions, which included acts of genocide, after the capture of Srebrenica in July 1995, by forcibly transferring the Bosnian Muslim women and children from the Srebrenica enclave to Kladanj; capturing, detaining, summarily executing, and burying thousands of Bosnian Muslim men and boys from Srebrenica, all of whom were either separated from the group of Bosnian Muslim refugees in Potocari or captured from the column of Bosnian Muslim men escaping the Srebrenica enclave; and exercising command and control over an organised and comprehensive operation designed to conceal the execution campaign by exhuming bodies from the initial mass graves and reburying them, en masse, in isolated secondary locations; [...]

Most of this post was written in the summer of 2005, in anticipation of Mladic’s capture. As 2005 drew to a close, I kept dating it with a future date — “July 1, 2006″ … “December 31, 2006″ … “December 1, 2007″ — to keep it at the top of my drafts list as time passed.

But of course I was kidding myself. Now that Serbia has been acquitted of genocide by the ICJ (the acronym stands for “International Caricature of Justice“), I don’t see Mladic being turned over any time soon; any time ever, really. So my hat’s off to you, Ratko, wherever you are; if it’s a choice between you and the judges of the ICJ, at any rate, the better man has won.

There used to be a little Reader’s Digest section called “Laughter makes the world go round.” But that bit of pablum surely deserves a corollary when it’s people like Mladic doing the laughing. Like Hitler’s laughter at his Tischgespraeche, Mladic’s laughter somewhere today is slowing a shabbier, sadder world in its tracks.

You know what? I hope the ICTY doesn’t find Mladic — I hope the Bosnians do. But you know what else: wouldn’t it be just a complete disgrace — not to say disaster — if Al Qaeda did?

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* Abbreviations: “VRS”: Serbian Republic of Bosnia and Herzegovina/Republika Srpska; “BiH”: Republic of Bosnia and Herzegovina.

It occurs to me that the ICJ decision acquitting Serbia of genocide in the case of the 1995 Srebrenica massacres simply bookends the international commmunity’s deep involvement — even complicity — in those atrocities. The senior officers of a Dutch “peacekeeping” battalion assigned by UNPROFOR (United Nations Protection Force) to safeguard the town decided they didn’t want to be a tripwire and stood aside as Ratko Mladic’s forces occupied the doomed town. In their defense, it’s not clear what higher levels of UNPROFOR would have done, if anything, had the Dutch forces actually engaged the larger and better armed Bosnian Serb forces advancing into the enclave, bent on killing any men or boys left there. As David Rohde wrote in “Endgame“:

The international community partially disarmed thousands of men, promised them they would be safefuarded and then delivered them to their sworn enemies. Srebrenica was not simply a case of the international community standing by as a far-off atrocity was committed. The actions of the international community encouraged, aided and emboldened the executioners.

A survivor recounts what happened to his father, who had taken refuge with hundreds of other Srebrenicans on the grounds of the Dutch compound in Potocari, just north of Srebrenica:

My case is one of the most terrible in terms of the international community’s role. The Dutch major Robert Franken told me to explain to my father that he can remain on the base. My father asks what will happen to his younger son and my mother. Franken tells me: “Hasan, tell your father that if he does not want to stay, he can go too. And there’ll be no further discussion.” My father had three seconds to decide whether he wants to stay on the base, to go on living with his elder son, or go and die with his younger son and his wife. He chose to leave. A month ago, at the court in The Hague, Major Franken coolly states that he gave him a choice. What sort of choice?

– Hasan Nuhanovic, 15 July 2005, to the Croatian newspaper Globus, as cited in a 2005 article by Guido Snel.

It’s true that the blame for Srebrenica belongs belongs mainly with Ratko Mladic, Radovan Karadzic, and their followers; they are the ones who compelled Srebrenicans to make the bitter choices they did. But it’s also true that the Dutch peacekeepers in Srebrenica and their superior officers in Sarajevo and at the United Nations in New York had a duty to the world and their own honor to do better than they did. We’ll never know how much difference more courage might have made.

Likewise, now we’ll never know how much difference a little judicial courage might have made — only that thirteen judges failed to do their duty to the world and their own honor; far from assisting human progress, they have thwarted it. And not even at gunpoint, but in a comfortable courtroom in what were presumably well paid and (until now) highly honored positions.

Those judges may coolly reply that at they have done what international law and international justice demand. But Hasan Nuhanovic may well ask: what sort of law? what sort of justice?

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.

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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.

Organ harvesting in China: postscript and followup, 7/19/2006; The perfect crime against humanity?, 7/16/2006 — Respected South China Morning Post (SCMP) reporter Mark O’Neill picks up the Falun Gong organ transplant charge (his piece begins at 5:55 minutes into the podcast), and finds the Kilgour-Matas report “lends extra weight” to the allegations, as an SCMP anchor puts it. O’Neill’s print article is quoted on a China studies listserv:

The report, mainly based on testimony provided by Falun Gong practitioners outside China, concludes that the government and its hospitals, detention centres and courts have since 1999 put to death a large but unknown number of Falun Gong members, removing their hearts, kidneys, livers, corneas and other vital organs for sale at high prices to local and foreign patients. [...]

Three pieces of evidence are the most persuasive. One is official statistics that show a sharp rise in organ transplants since 2000. From 1994 to 1999, there were 18,500, and, from 2000 to last year, 60,000. A tripling of these operations does not prove the allegations, but the harvesting of Falun Gong organs would provide an explanation.

The second is the transcript of an interview by Mr Kilgour in the US with the ex-wife of a surgeon who said that, between the end of 2001 and October 2003, her husband removed corneas from 2,000 Falun Gong patients. [...]

The third piece of evidence pointing to the possibility of the harvesting is material from websites offering organ transplants.

Makin’ an honest living, 6/8/2005— Last year the Justice Department suddenly reduced damages it was seeking in a high profile lawsuit against the tobacco industry from $130 billion to — ahem — $10 billion. On July 20, Justice Department political appointee Robert McCallum was deposed about the incident after a June ruling compelling McCallum to do so. Former Justice Department official Sharon Banks — now working for the winner of that ruling, Citizens for Responsibility and Ethics in Washington (CREW) — charges McCallum misled Congress:

Eubanks said McCallum mischaracterized a court order in his statements to Capitol Hill, making it appear that U.S. District Judge Gladys Kessler criticized the government’s embrace of smoking cessation as a remedy in the lawsuit. McCallum cited the judge’s order in explaining why he reduced the government’s request.

Eubanks pointed out that the judge later rejected the tobacco industry’s arguments and allowed Eubanks’ expert witness to testify that the companies should pay $130 billion for smoking cessation.

McCallum claims an appeals court ruling requiring “forward looking” damages dealt a “body blow” to the Justice Department’s case. The DOJ’s Office of Professional Conduct says McCallum was not influenced by political motivations.

Race to save the Lord God Bird, 5/09/2005 — The Chicago Tribune’s Annie Bergman reports (”Birders find no new confirmation of rare woodpecker in Arkansas,” 5/18/2006):

Search teams exploring an Arkansas swamp for better evidence of the ivory-billed woodpecker said Thursday they had no new confirmation of the bird’s existence, and wildlife managers said there was no longer a reason to limit public access to the region.

“Certainly we’re somewhat disappointed,” said Ron Rohrbaugh of the Cornell University Lab of Ornithology in Ithaca, N.Y. “We’ve had enough of these tantalizing sounds and we still have a lot of hope that there might be a pair, especially in the White River area.”

Srebrenica, 11 years on, 7/11/2006 — Accused Serbian war criminal Ratko Mladic is still at large. But Serbia’s bid to join the EU is stalled until Mladic is arrested, and Serbian officials are scrambling to come up with an approach to do so. Even Hague prosecutor Carla Del Ponte seems to think this time it’s for real:

Facing pariah status, Serbia presented EU officials with an “action plan” for Mladic’s arrest earlier this month, hoping that a serious show of effort would placate del Ponte and persuade the EU to restart talks.

“Since the action plan was adopted, I think the political will to arrest Mladic exists for the first time,” del Ponte said. “I would like to see the operational plan and be involved.” [...]

The plan has not been made public but it is said to include a media campaign to convince Serbs that it is necessary to arrest Mladic, who is accused of orchestrating the siege of Sarajevo and the Srebrenica massacre of 8,000 Bosnian Muslims. A government survey published on Thursday showed 51 percent of those polled opposed Mladic’s extradition, 34 percent supported it and 15 percent were undecided.

To me, this seems more like a way to look like you care about catching Mladic than a way to actually catch Mladic. But what do I know.

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NOTES: Follow title links to earlier posts on this blog backgrounding the followups above. The McCallum items are from the AP and the Washington Post’s Pete Yost, respectively. The Mladic item is via a Reuters 7/29 article.
EDIT, 8/27: Listserv name deleted by request.

Zdravko Ljubas, published at Monsters and Critics:

Mourners gathered Tuesday in the eastern Bosnian village of Potocari, near the town of Srebrenica, for the burial of 505 victims of the 1995 massacre in that town.

During a commemoration titled ‘Do Not Forget!’ which marked the 11th anniversary of the massacre, 505 caskets wrapped in green were laid in fresh graves next to nearly 2,000 victims of the Srebrenica massacre buried in the Potocari Memorial Centre during the last three years.

Here’s my post last year on the subject. Another year on the lam for Mladic and Karadzic; basically, they’re getting away with it. But Serbia? Not so much — talks to join the European Union have ended. I guess holding on to a couple of raggedy thugs must be worth it to the whole country.