an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yesterday I attended a tribute to Harold R. Tyler, Jr. at the New York City Bar. Tyler was a legendary figure in his own lifetime, a man of sardonic wit but also an overpowering kindness and humanity. I have never met a man who had a more powerful sense of justice or moral right and wrong. He was the veritable Jungian archetype of a judge. But his greatest service to the nation consisted, under President Ford, of restoring the reputation of a badly tarnished Justice Department in the period just after Watergate when America was undergoing one of its periodic crises of confidence. Tyler was also proud of another US institution: the Army. He served in the artillery in the Second World War, and his father had been a distinguished officer in the Great War.
When I began speaking publicly about questions relating to the Geneva Convention about two years ago, I got a visit from Judge Tyler, not an uncommon occurrence since he was my office next-door neighbor. “I don’t much like to talk about this,” Tyler said, “but in the waning days of World War II, I was taken prisoner by the Germans. I kept thinking to myself: if it weren’t for the fact that we treat the soldiers we take prisoner well, they probably would have shot me. So in a sense I have to thank the Geneva Conventions and our Army traditions for the fact that I’m alive today and didn’t die on that day in Germany. In the end it’s not really a question of some fancy international convention, it’s a question of what’s right and keeping faith with those who wear our service uniform. We have some powerful traditions, and this is one of them. It’s worth fighting for.” But as I subsequently learned, Tyler, with his typical modesty, told only half of the story. In fact, he persuaded the Germans who captured him to surrender and to be his prisoners of war, a feat which brought him to the immediate attention of his commanders. That demonstrates not only extraordinary advocacy but also another important aspect of the American tradition of humane treatment of detainees: it can push a beleaguered foe to surrender.
I am told that he recorded a full account of these incidents as part of an oral history project, which should be published shortly. It will surely make for fascinating reading. Posted
by Scott Horton [link]
This is an excellent anectdote... I can't help but wonder how many insurgents are determined to fight to death, to never be captured alive knowing what they face at our hands. Can you picture the scenes at the end of Operation Desert Storm if the mass of Iraqi soldiers surrendering had thought for a moment they faced torture. There can be no doubt that the rather famous images of long lines of Iraq pow's would have been very different under the terms by which our detainees are being held in these times.
I have a great uncle who was an infantryman in the german army during WWII. He and his unit fought after they knew Berlin had fallen, actually hoping to hold off Soviet forces until American troops arrived, planning to surrender to them. They were going to fight soviet troops to the absolute death, since they convinced that if captured by the soviets, they would face certain torture. Ironicly, in the end they did surrender to what they thought were american troops, only to discover that had surrendered to soviet troops disguised as american soldiers.
He survived as a german POW in the soviet union. According to his account, he was shipped back to berlin when he was to stubborn to die, and to sick to work. A man over 6 feet weighed in at about 130 pounds when he got out of a boxcar in berlin that had been packed full with returned german POWs, most of whom had died on the trip, weakened from torture, work, and starvation.
According to him, at one point during his time as a POW in the former soviet union, a russian guard gave him a half a potato in a moment of pity. He and that guard were both beaten, and he then could no longer perform labor, which was when he was returned to berlin.
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