Balkinization  

Thursday, May 01, 2008

John Yoo and the Justice Case

Marty Lederman

Guest Post by Kevin Jon Heller
Senior Lecturer, University of Auckland Faculty of Law

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:
Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.
I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. 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.

Before delving into the details of the case, it is important to note that reading NMT judgments can be an exercise in frustration, because they are far less legally precise than the judgments issued by modern international tribunals. In particular, the Tribunals rarely specify 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. The latter flaw is particularly troublesome when trying to apply the legal principles articulated in the Justice Case to Yoo’s situation, because –- as explained below -– none of the defendants in the case were acting simply as legal advisors to the Ministry of Justice. As a result, we can only speculate whether the Tribunal would have convicted any of the relevant defendants if they had held a position of authority similar to Yoo’s.

The Justice Case itself, which was held in Nuremberg between March and December 1947, involved 16 defendants who were associated in various capacities with the criminal-justice system in Nazi Germany. Some were judges and prosecutors in the Nazis’ infamous Special Courts and People’s Courts; others were officials in the Reich Ministry of Justice. The crux of the prosecution’s case, according to Telford Taylor, the NMT’s Chief Prosecutor, was that the defendants were guilty of “judicial murder and other atrocities, which they committed by destroying law and justice in Germany and then utilizing the emptied forms of legal process for persecution, enslavement, and extermination on a vast scale.” Particularly relevant to Yoo’s situation is Paragraph 13 of the Indictment, which alleged that the Ministry defendants were criminally responsible for their involvement in the execution of Hitler infamous “Nacht und Nebel” decree (for background on the decree, see Scott Horton’s post here):
The Ministry of Justice participated with the OKW and the Gestapo in the execution of Hitler’s decree of “Night and Fog” whereby civilians of occupied territories who had been accused of crimes of resistance against occupying forces were spirited away for secret trial by certain Special Courts of the Justice Ministry within the Reich, in the course of which the victims’ whereabouts, trial, and subsequent disposition were kept completely secret, thus serving the dual purpose of terrorizing the victims’ relatives and barring recourse to any evidence, witnesses, or counsel for the defense. The accused was not informed of the disposition of his case, and in almost every instance those who were acquitted or who had served their sentences were handed over by the Justice Ministry to the Gestapo for “protective custody” for the duration of the war. In the course of the above-described proceedings, thousands of persons were murdered, tortured, ill-treated, and illegally imprisoned.
The Tribunal had little difficulty concluding that the Night and Fog decree had “no legal basis either under the international law of warfare or under the international common law as recognized by all civilized nations” (1131). The primary issue, then, was which of the defendants could be held criminally responsible for the war crimes and crimes against humanity committed pursuant to the decree. According to the Tribunal, such 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” (1093).

Three of the defendants in the Justice Case held positions in the Ministry of Justice that involved, among other things, giving legal advice to the Reich Minister: Wolfgang Mettgenberg, who was Representative of the Chief of the Criminal Legislation and Administration Division; Guenther Joel, who was Legal Adviser for criminal prosecutions; and Wilhelm von Ammon, who was Ministerial Counsellor of the Criminal Legislation and Administration Division. All three were convicted of war crimes and crimes against humanity and sentenced to 10 years imprisonment.

There is, however, a fundamental problem with citing these convictions as precedent for prosecuting John Yoo or other Bush Administration attorneys who “merely” advised that certain conduct was lawful: namely, that Mettgenberg, Joel, and van Ammon were not only legal advisors to the Reich Minister. On the contrary, all three men possessed considerable political authority, as well -– and repeatedly used that authority to actually enforce the Night and Fog decrees.

Mettgenberg

Mettgenberg’s case is the clearest. According the Tribunal, “he exercised wide discretion and had extensive authority over the entire plan from the time the Night and Fog prisoner was arrested in occupied territory and continuously after his transfer to Germany, his trial, and execution or punishment” (1128). Indeed, Mettgenberg’s involvement in giving effect to the Night and Fog was so extensive that the Tribunal did not feel the need to linger on specific actions, mentioning only a few of the most notorious:

• Mettgenberg travelled with von Ammon, his subordinate, to the Netherlands to ensure that Night and Fog cases would be transferred to Germany for trial. Until that trip, cases falling under the Night and Fog decree had been tried by German courts in the Netherlands, in violation of the decree (1042).

• In response to a question from the Wehrmacht about the status of 224 alleged spies arrested in France, Mettgenberg drafted a circular decree for Himmler that ordered application of the Night and Fog decree (1047).

• Mettgenberg initialled a letter from the Ministry to People’s Court justices and chief prosecutors ordering Night and Fog procedures to be applied to nationals of countries not occupied by Nazi forces, an obvious violation of international law (1050).

• Mettgenberg, along with von Ammon, answered objections to the transfer of Night and Fog cases arising in France to Breslau by insisting that the transfer take place. Mettgenberg later informed Himmler that the transfers had gone forward (1052).

Joel

Joel was involved in Night and Fog cases, but in his role as the Chief Public Prosecutor of Westphalia in Hamm from August 1943 to March 1944, not as Ministerial Counsellor. “The high office which he held required him to supervise and properly handle Night and Fog cases filed in the courts where he was chief prosecutor” (1138) -– a significant task, given that the Special Courts in Hamm and Essen tried more Night and Fog cases than all of the other Special Courts combined (1137). Joel failed to prevent the prosecutors under his authority from applying the illegal Night and Fog decree -– a discretionary power that he could have and should have exercised -– making him criminally responsible, via command responsibility, for the resulting crimes: “[i]n law, Joel must be held to have had the responsibility of these cases” (1137).

The Tribunal also convicted Joel for his criminal activities as Ministerial Counsellor, but those activities did not include giving legal advice. Instead, he was convicted for using his “authority and duty to review penal cases from the Incorporated Eastern Territories after the occupation of Poland” (1140-41) -– a judicial role, not an advisory one -– to give “final authorization” to nearly 100 illegal death sentences imposed by German courts between 10 September 1942 to March 1943 (1142).

Von Ammon

Although most scholars who cite the Justice Case focus on von Ammon, he was not simply a legal adviser to the Reich Minister. On the contrary, as the head of the Night and Fog subdivision within Mettgenberg’s division, he “held an executive position of responsibility involving the exercise of personal discretion” (1134) and was “in charge of Nacht und Nebel procedure from 1942 until the end of the war” (1133).

Von Ammon made liberal use of his discretionary authority to ensure that the Night and Fog decree was enforced throughout the occupied territories. Some of the lowlights:

• Von Ammon independently assigned Night and Fog cases to the various Special and People’s Courts (1041).

• Von Ammon personally reviewed all Night and Fog indictments and sentences and sought the Minister’s decision concerning the execution of all death sentences (1041).

• As mentioned, von Ammon travelled with Mettgenberg to Netherlands to stop German courts from trying Night and Fog cases in occupied territory (1042).

• Von Ammon attended a conference in Poland about the possibility of transferring Night and Fog cases from the Netherlands, Belgium, and Northern France to Special Courts for trial; obtained the relevant Gauleiter’s approval for the transfers; and signed (along with Mettgenberg) the resulting decree ordering the transfers (1051).

• Von Ammon initialled a Ministry directive to various prosecutors and judges ordering them to turn over defendants found not guilty by the People’s Court to the Secret Police for detention for the remainder of the war (1052).

• As noted, von Ammon and Mettgenberg ordered Night and Fog cases arising in France to be transferred to Breslau for trial, despite objections from the local authorities (1052).

• Von Ammon personally approved forcing Night and Fog prisoners who had served their sentences or had been acquitted to labor in munition factories within Germany, a direction violation of international law (1062).

* * * *

As these examples indicate, Mettgenberg, Joel, and von Ammon did not simply advise their political superiors that they could legally authorize the commission of actions that qualified as war crimes and crimes against humanity under international law. The defendants personally authorized the commission of those crimes. In other words, Mettgenberg, Joel, and von Ammon were among the political superiors who made the discretionary decisions that were necessary to implement the Night and Fog decree. It is thus difficult to argue that their convictions stand for the proposition that, to quote Scott Horton again, “lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals.” On the contrary, the Tribunal never -– literally never -– singled out a specific legal opinion offered by any of the Ministry defendants as being even partly responsible for their convictions.

Indeed, the only specific discussion of legal advice in the Justice Case seems to imply that “merely” giving such advice, no matter how erroneous or damaging, does not give rise to criminal responsibility. That discussion concerns a letter written by Herbert Klemm -– the State Secretary of the Reich Ministry of Justice, whom the Tribunal convicted and sentence to life imprisonment -– stating that Germany’s juvenile law would not apply to Poles, Jews, and Gypsies. Although the Tribunal’s judgment is unclear on this point, it appears that Klemm argued at trial that the letter was a legal opinion, not a statement of Nazi policy, and could thus not be considered criminal. The Tribunal rejected that argument, concluding that the letter was not, in fact, simply a legal opinion:
This Tribunal does not construe that letter as a legal opinion but as an expression of Party policy, submitted through the Party Chancellery to the Ministry of Justice... it can hardly be construed as a legal opinion as to gypsies in view of the statement therein made that a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking (1095).
To be sure, the Tribunal does not specifically say that a legal opinion could never give rise to criminal responsibility. Nevertheless, the quoted passage appears to draw a very clear distinction between offering an erroneous legal opinion, which is not criminal, and choosing to implement an illegal government policy, which is.

Does all of this mean that the Justice Case completely exonerates government lawyers who advise their political superiors that war crimes or crimes against humanity are lawful? That is a difficult question. It is certainly possible that the Tribunal would have been willing to convict one of the defendants in the Justice Case for giving such advice to the Reich Minister, particularly if that advice had been a necessary precondition for the creation and enforcement of policies that qualified as war crimes and/or crimes against humanity. Nothing in the judgment itself, however, directly supports that conclusion. Moreover, at a bare minimum, I think the Tribunal would have required the prosecution to prove that the defendant gave the legal advice knowing that the actions he approved actually violated international law. That requirement is implied, I believe, in the Tribunal’s repeated insistence regarding the Night and Fog decree that “[a]ll of the defendants who entered into the plan or scheme, or who took part in enforcing or carrying it out, knew that its enforcement violated the international law of war” (1038).

The Justice Case, in short, provides far less support for prosecuting government lawyers like Yoo than scholars have assumed, at least insofar as their role in promoting torture and illegal detentions was actually limited to providing legal advice. At most -– and I believe that the argument is unacceptably speculative -– the Tribunal’s judgment suggests that a government lawyer is liable for war crimes and crimes against humanity committed pursuant to his legal advice if he knew that certain actions violated international law, but nevertheless failed to inform his political superiors of that fact. Whether Yoo would be a criminal under that standard, I leave for others who know far more about his actions to decide.

BIBLIOGRAPHIC NOTE: all citations are to III TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (William S. Hein & Co. ed. 1997)

Comments:

Professor Heller:

Were there any conspiracy counts among the charges against Mettgenberg, Joel and Von Ammon? If so, could you tell us what they involved?
 

Bart,

They were originally charged with conspiracy to commit numerous war crimes and crimes against humanity, but the Tribunal -- as did all of the Tribunals at the NMT -- dismissed the conspiracy counts, holding that conspiracy was not an independent substantive crime under Control Council Law No. 10. As a result, they were only charged with participation in a common plan or enterprise, what we call today joint criminal enterprise (JCE). The difference is that JCE is a mode of participation in a crime, not an independent crime, and thus requires the common plan to actually result in the commission of war crimes or crimes against humanity.
 

Professor Heller:

Thank you for the post and your kind response.

There has been a great deal of discussion here as to whether Professor Yoo could be liable under a theory of criminal conspiracy and I was curious whether the Justice Case could provide any authority for or against that proposition.
 

OK, Yoo did not conspire to commit war crimes, as that is defined under the law.

However, what a low standard!

If I follow the legal analysis here, we can conclude: Yoo is (hurray!) not as bad as Nazi war criminals (yes!), at least as far as what can be proven in a court of law (wow!)

If this isn't the lowest standard for high office, I don't know what is. OLC has a duty a bit higher than not being war criminals.
 

Just to be clear, I am not saying that the Justice Case rules out ever prosecuting Yoo and the other government lawyers. Their actions might well have been criminal; indeed, I tend to agree with Scott Horton and Philippe Sands that at least some of them were. Moreover, I can imagine — counterfactually — a situation in which the NMT would have convicted a government lawyer of complicity for giving his political superiors advice he knew full well violated international law. My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others.
 

"My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others." --KJH

I completely agree. I think using Nuremberg is an emotionally satisfying, but legally empty gesture.

Absent further information, Yoo is completely impregnable to any conspiracy approach prosecution.
 

This is very helpful information, Professor Heller. Is it your view that the prosecutions here rested on the minimum misconduct necessary to convict? Or is this simply a case in which the tribunal never had to reach the harder questions?
 

Ah, I missed the last sentence in the Professor's last comment. I think I have the answer.
 

This comment has been removed by the author.
 

Sorry, hit publish rather than edit.

I would suggest you read Jordan Paust, Beyond the Law, or invite him to post here from the University of Houston as he would significantly differ with Kevin and Marty's analysis.

I would also say that the point being made here does not go far enough.

"The Tribunal rejected that argument, concluding that the letter was not, in fact, simply a legal opinion:

This Tribunal does not construe that letter as a legal opinion but as an expression of Party policy, submitted through the Party Chancellery to the Ministry of Justice... it can hardly be construed as a legal opinion as to gypsies in view of the statement therein made that a special regulation will come into effect which will prevent the German Criminal Code for juveniles from applying to gypsies and those of gypsy descent merely because a definite regulation is lacking (1095)."

The role of an OLC opinion in our government as the statement of law binding on the Executive is a significant aspect of the Yoo case that makes this not merely an opinion up or an opinion down but an operational document (an act) to further the conspiracy to torture.

In addition, the opinions (on the theory the opinions are post hoc rationalizations of things that went before or pre hoc "cram downs" to help those below accept to do the torture) are operationalized documents.

Put kindly, they are frauds.

The work of Yoo and others in furthering the National Security Principals conspiracy to torture and other crimes is prosecutable in US domestic law as the means available to vindicate the international law rule that US v Alstoetter is concerned with.

Obviously, the crimes do not track directly with Alstoetter but the may in fact be easier to create in US domestic law rather than in international law. Look at how far we are pushing conspiracy law in cases like Padilla for example.

The key to the domestic prosecution is that it vindicates the international law rules (treaty and customary international law on torture etc) through the relevant domestic US law.

With all due respect, I believe Kevin and Marty underestimate the US v Alstoetter, have spent years in denial about the seriousness of what has gone on or the nature of the acts of these lawyers in their legal opinions. And we still do not have all the opinions in place.

Also, I do not believe this is a case of just "legal minds may differ". Rather this is a more straightforward case of bring the evidence to the prosecutor, empanel a grand jury, issue an indicment, have a trial, and get the conviction.

Let a jury see this and decide on guilt or innocence.

Again sorry for the error ib the previous post. I never know how to delete these things.

Best,
Ben
 

"Three questions necessarily arise out of the announced intention to use tribunals. First, are such bodies still legal under international law? The short answer is that they are, but only under certain circumstances and for the trial of certain individuals. The United States may only use tribunals to try captives subject to GPW if the tribunal applies current standards for U.S. courts-martial. Since tribunals are not, in themselves, illegal under U.S. law, they can satisfy international requirements.

"Second, and more important, are the procedural and evidentiary standards applied to World War II tribunals, which were incorporated either directly or by implication into Commission Order 1, still valid under current international law? The answer to that question is a most definite no. They meet neither the standards of the GPW, nor the current requirements of international law as evidenced by human rights conventions and the rules of various currently existing and developing bodies for the trial of international crimes and war criminals.

"Finally, and of particular interest to those asked to participate in such tribunals as convening authorities, judges, juries, prosecutors, or otherwise, does participation in a trial of a POW that applies those World War II standards in itself constitute a war crime? Again, the answer is almost certainly yes. Not only does United States v. Uchiyama provide precedent for this conclusion, but the GPW makes it clear that violation of a POW’s right to a trial is a war crime." (Citations omitted.)

Evan J. Wallach, AFGHANISTAN, QUIRIN, AND UCHIYAMA: DOES THE SAUCE SUIT THE GANDER?, Army Law., November 2003, at 18, 30, available at:

http://www.pegc.us/archive/Journals/Wallach_TAL_uchiyama.pdf
 

The role of the defendants was more than issuance of an opinion. From the decision: "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 ". p. 1030.(I have a copy from a web site, www.mazal.org, and use its pagination.)
 

Ben,

I agree that the role played by an OLC memo in an administration is a peculiar thing. In fact I'd never known a thing about it until the torture and surveillance stories broke. It seems quite an enabler; maybe not self-executing, but what difference should that make?

But I see no conflict with Mr. Heller's basic point. To the contrary.

To delete a post, go to your unwanted comment in the list to the left of where you type your post. There you'll see a trashcan, just for you -- no one else sees it. Click to delete.
 

Benjamin Davis:

[Occasional Observer writes]: To delete a post, go to your unwanted comment in the list to the left of where you type your post. There you'll see a trashcan, just for you -- no one else sees it. Click to delete.

Just to be clear, it shows on the "Post A Comment" page, not on the "see comments" or "see more" pages.

Cheers,
 

"Let a jury see this and decide on guilt or innocence."

At a minimum, "let a jury" of public opinion "see this and decide on guilt or innocence" regardless of what a tribunal may do.
 

We should always stress in going into this that the point of this exercise is not to compare John Yoo and his colleagues with the Nazis, but rather to distill the operating international law principles governing lawyers who dispense advice to governments in a war setting. (It's worth a passing note that the Justice Case distinguishes itself from several other Nuremberg cases in that many of the defendants were career justice employees who were late-comers to the party, i.e., became party members after the Machtergreifung, when party membership was obligatory for those holding higher government posts). We should also note that this trial was one of the U.S. cases, not one of the international cases, for reasons which Telford Taylor and others have described -- namely that the British and French were cold to the idea of trying the lawyers, fearing this would raise uncomfortable issues for themselves in their colonial rearguard mode.

Aside from the unwarranted flattery, this is a very good post-- with good criticism -- that does a solid job of summarizing some important details of the Altstoetter case. It's regretable that much of the material from the case is difficult to access and research, and that the case record itself is rather rambling. But Kevin has done a good job of assembling and summarizing key parts of it.

I agree with Kevin that the evidence relating to the Nacht- und Nebelerlass defendants (NNE), especially von Ammon, is key for this point. Of course in the case of Altstoetter proper, the conviction did in fact turn specifically on three letters. But Kevin is correct that the defendants were all involved in the Justice Ministry's actual administration of the program. We need to be much more careful in distinguishing what the Justice Ministry's role was in this program. And I don't agree with him as to the role of the legal opinions. The NNE was a counterinsurgency program designed to give military and occupation security authorities the power to apprehend civilians believed to be engaged in behind-the-lines attacks on Axis troops the authority to "disappear" persons without the need to go through the legal formalities that international law at the time would have required of an occupying power dealing with civilians. The internal records from the High Command (OKW) show that attacks on soldiers by civilians behind the lines of the East Front (especially in occupied Soviet territory) were the immediate inspiration. The original memoranda talk about a new kind of enemy which was fully disguised within the civilian population and was ideologically motivated and driven. These conclusions are correct -- as CPSU documents reveal the party's organization of such a terror campaign against German soldiers. As the proposal emerged from OKW, military and security authority was to be plenary and to rest on executive war-making notions. Von Ammon objected that this approach was a violation of the principle of legality, and he and his colleagues insisted that a process of adjudication be introduced; he also noted the need to arrange for wills, for the custody of children of the "disappeared" and the like. This was the role of the legal administration with respect to NNE. As Detlev Vagts has pointed out, the bulk of von Ammon's proposals were ameliorative in nature.

The NNE program, and the court's treatment of it in Altstoetter, has frequently been cited as the first international law authority on the concept of "disappearings," which is a more modern crime against humanity. But an essential element of "disappearings" is that the person is treated outside the established legal regime (either that provided by the criminal justice system or the laws of armed conflict). The thrust of von Ammon's position was to recognize this and to insist that a substitute judicial process be provided. This contrasts rather sharply with views articulated by the Bush Administration with respect to the "extraordinary renditions" program, for instance.

But his clearest offense was providing the legal rationale for evasion of the requirements of international law, for instance by providing for the projection of German domestic law into occupied territory. (Even on this point, note that von Ammon was very concerned about the operation of the special judicial process in occupied territory; he wanted the detainees to be transferred to Reich territory.)

The tribunal's view was that von Ammon and his colleagues should have properly advised on the limitations of international law. They did not do so. If we had to put von Ammon's mistakes on legal interpretation side-by-side with Yoo's, the comparison would be very much in von Ammon's favor, I think. That's largely a result of the fact that many of the violations which the Tribunal noted really became crystalized after World War II, and at the time of the Justice Case were fairer game for argument than today.

Still, I am not trying to curry any sympathy for von Ammon -- just the contrary, I think he got off lightly with his seven years served -- but to make the point that the administration of the Justice Ministry's plans was not the largest failing.

On the other hand, it did constitute an overt act in a sense in which the mere rendering of an opinion may not, also a significant point.

The bigger issues here are the JCE issues, which go to the notion introduced in the charge of "foreseeable" damage, among other things.

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. In fact the key participants had been warned repeatedly at that point that regardless of their curious views about the laws of war, a large majority in the legal community would take a different perspective and could well view their conduct as criminal. This advice was clearly propelling their conduct.

The other striking parallel with the facts surrounding the NNE, which came out only with the examination of the records of the international law department at OKW at the close of the process, is that the German military lawyers had taken almost exactly the same stance that the American JAGs took on the Bush Administration's detainee initiatives. They argued stringently for firm application of Geneva and Hague standards and said that this was driven by enlightened self-interest, i.e., to protect German soldiers. These views were overruled on the grounds that this was a "new kind of warfare" in which the principal foe, and the foe in the cross-hairs of the NNE, was terrorist in nature.

Several of the senior JAGs have now described to me their direct dealings with Yoo in which they stressed criminal liability as the major concern. Yoo's response was consistently that he could "fix the problem" by getting the Criminal Division to issue get-out-of-jail cards for all concerned. And this puts Yoo a step closer to the implementation of a plan and a step away from the issuance of a detached opinion.

However, what we need now is to get to the bottom of all these carefully obscured dealings. It's clear that will never happen before the Bush Administration leaves office, but after it's gone, getting a clear picture of the lawyers' dealings should be a priority.
 

Thanks for the heads up on the trashcan. Think I should get my glasses checked as this was the first time I saw it.
Best,
Ben
 

benjamin davis said...

The work of Yoo and others in furthering the National Security Principals conspiracy to torture and other crimes is prosecutable in US domestic law as the means available to vindicate the international law rule that US v Alstoetter is concerned with.

As it becomes clearer that there is no legal authority nor evidence for a criminal conspiracy charge against Professor Yoo for simply writing a memorandum of law, you are the second professor to suggest that Yoo may have liability under a theory of what is called "incitement" (encouraging a third party to commit a crime) under English common law.

Such an incitement theory has far more potential merit than conspiracy.

Does anyone know if the federal criminal code has a provision analogous to the English common law crime of incitement?

If so, has an attorney ever been found criminally culpable for incitement by intentionally providing erroneous legal advice with the purpose of encouraging the client to commit a crime?

Professor Heller, was there an incitement charge in the Justice cases?
 

scott horton said...

We should also note that this trial was one of the U.S. cases, not one of the international cases, for reasons which Telford Taylor and others have described -- namely that the British and French were cold to the idea of trying the lawyers, fearing this would raise uncomfortable issues for themselves in their colonial rearguard mode.

This interesting observation begs the question of whether US trial courts will be receptive to trying lawyers for the "war crime" of rendering a legal opinion arguing that an act of the Executive is not prohibited under law. If the trial court entered an opinion which agreed with the lawyer and was then reversed on appeal, would the trial judge then be as criminally liable as the attorney?

Punishing lawyers for their opinions appears to be a very pernicious business.
 

bart depalma said:

Punishing lawyers for their opinions appears to be a very pernicious business.

I would expect you, as a lawyer, to have that opinion.
 

Punishing lawyers for their participation in war crimes is no different than punishing them for particpation in any other form of organized crime.
 

Thanks to Kevin Jon Heller for this excellent post. I am delighted that he is writing a book on the second round of Nuremberg trials, and look forward to reading it. I've long thought that they are more interesting than the first round, because they aimed to judge the culpability of various "collaborator" sectors of Nazi society (doctors, lawyers, industrialists). As far as I know, there is no book about them in English (although I gather that Telford Taylor had hoped to write one).

I have two questions about this post:

1. According to Jack Goldsmith's THE TERROR PRESIDENCY, p. 22, five lawyers (Gonzales, Addington, Haynes, Flanigan, and Yoo) constituted "the War Council," which Goldsmith describes as "a secretive five-person group with enormous influence over the administration's antiterrorism policies....It would plot legal strategy in the war on terrorism...." Goldsmith does not say that the War Council actually executed its own strategy, as did the Nuremberg lawyers; but he does make it sound as if they did much more than simply provide legal advice. Does this alter your view of how applicable the Alstoetter precedent is?

2. I don't have Alstoetter in front of me, but I recall that it included in its compilation of evidence the Richterbriefe written by Reich Justice Minister Otto Thierack - letters to German judges giving his opinions about how cases ought to have been decided. The letters stated that they were not meant to dictate how judges should decide cases, because that would violate the independence of the judicial role, but they were clearly meant to offer a substantial nudge. The letters included such opinions as that it was an error to allow a Jew to win a civil case. Thierack killed himself before he could be included in the Alstoetter prosecution. My question is whether the Tribunal had anything to say about the possible criminality of the Richterbriefe. I ask this because it might be relevant to the question of whether a mere opinion by the attorney general could itself be criminal. The Richterbriefe were the closest thing at Nuremberg I can recall to pure AG opinions.
 

“that a defendant had knowledge of an offense charged in the indictment . . . and that he was connected with the commission of that offense” (1093)."

Given the penchant for Principals to travel to Guantanamo and other sites of detention, I wonder whether motivation of the destruction of torture tapes is to erase evidence of knowledge and connection....
 

TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, Vol. III, Case No. 3, The "Justice Case", United States against Josef Altstoetter, et al. (1947); available at the Mazal Library HERE.
 

As far as I know, there is no book about them in English

Does Lifton's The Nazi Doctors deal with the Doctor Trials at all?

I have wished I had time and wit to research & write an imitation of Lifton, The Nazi Lawyers, on the worthies mentioned in Heller's (very fine) post, as well as Hans Frank and others of his ilk.
 

charles gittings said...

Punishing lawyers for their participation in war crimes is no different than punishing them for particpation in any other form of organized crime.

Would you care to offer any examples of attorneys representing criminal organizations who have been criminally convicted for providing a legal opinion to their client?

As an aside, mob attorneys have far more to worry about than a potential criminal prosecution if they give bad advice which ends up getting their client thrown in prison.
 

Lisa's bro observes: "As an aside, mob attorneys have far more to worry about than a potential criminal prosecution if they give bad advice which ends up getting their client thrown in prison."

Might John Yoo have heard: "As an aside, OLC attorneys have far more to worry about than a potential criminal prosecution by giving bad advice to the President that his Administration has requested rather than legally well grounded legal advice."

(I understand the nuance of the aside regarding mob lawyers whose clients demand guarantees of no jail time from their lawyers. Consider what the consequences might have been to his career if Yoo had not please his clients.)
 

David Luban: good memory on the Richterbriefe. This is from page 1017-8 of the Alstoetter case from the Mazal library:

"Space does not permit the citation of other instances of this form of perverted political guidance of the courts. Notwithstanding solemn protestations on the part of the minister that the independence of the judge was not to be affected, the evidence satisfies us beyond a reasonable doubt that the purpose of the judicial guidance was sinister and was known to be such by the Ministry of Justice and by the judges who received the directions.

1018
If the letters [the Judges' Letters] had been written in good faith with the honest purpose of aiding independent judges in the performance of their duties, there would have been no occasion for the carefully guarded secrecy with which the letters were distributed. A letter of 17 November 1942 instructs the judges that the letters are to be "carefully locked up to avoid that they get into the hands of unauthorized persons. The receivers are subject to official secrecy as far as the contents of the judges' letters are concerned."

"In a letter of 17 November 1942 Thierack instructs the judges that "in cases where judges and prosecutors are suspected of political unreliability they are to be excluded in a suitable manner from the list of subscribers to the Judges' Letters." "
 

Something that appears important to me is the way many of the actors in the Bush torture scandal consciously deceived others -- including other government officials with security clearances -- as they developed the policy. I believe this is evidence of bad faith and knowing criminality -- "consciousness of guilt" -- by, variously, John Yoo, William Haynes II, Douglas Feith, and David Addington. I provide examples here: "Practice to deceive."
 

mr. nephew .. your post elsewhere dovetails nicely with scott horton's pst here ..which in part says:

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. In fact the key participants had been warned repeatedly at that point that regardless of their curious views about the laws of war, a large majority in the legal community would take a different perspective and could well view their conduct as criminal. This advice was clearly propelling their conduct.


ah .. deception ...
 

Scott Horton: you start out by saying that the point of this exercise is not to compare John Yoo and his colleagues to the Nazis (btw, I think that for many of the commenters here, that is precisely the point). Apparently this is to spare the Nazis from guilt by association, since you believe that their actions compare favorably to Yoo’s. To reach this conclusion, you conceptualize the Nazi actions against civilians in the occupied eastern territories as part of Hitler’s own war on terror. Now I am sure that you would acknowledge that there is some degree of moral distinction between the millions of civilians killed by the Nazis and the waterboarding of a handful of AQ operatives, but really it’s hardly worth mentioning.

I am sure that we could have a fascinating discussion about the legal principles underlying Nuremberg and whether those could arguably be applied to Yoo and other lawyers in the OLC. We could have a similar discussion about hundreds of other actions by the US Government since WWII. (Some here can hardly wait to explain how the Supreme Court violated international law when it decided Bush v. Gore).

Here is my point. Nuremberg was based on an extra-legal decision by the Allies to convene a tribunal with jurisdiction over alleged crimes committed by the Axis powers. Whether this was a good idea or not is a matter of debate. Personally, I incline to the British view that the Nazis should have been shot without benefit of trial. Regardless, Nuremberg’s jurisdiction did not extend to the Allies, which included such well-known respecters of international norms as the Soviet Union. Let me hasten to add (before Mark Field explains it to me) that I understand the difference between the “substantive law” supposedly applied at Nuremberg and the jurisdiction of that tribunal. Nonetheless, I have difficulty with the idea of a substantive law that can only be enforced once one posits a tribunal created to prosecute an identified group of malefactors. It is a bit like saying that once the revolution comes and the Constitution is repealed (stop smiling, Professor Levinson), all the corporate executives will be tried for their “crimes against the people.”

Perhaps if you are a legal advisor to the next Administration, you will recommend the formation of an international tribunal with jurisdiction over international law violations by the US. To be on the safe side, you might want to limit that jurisdiction to the Bush Administration (or maybe Republican administrations). Nonetheless, you might want to start your legal defense fund now, in case the Administration after that takes a dim view of your recommendations.
 

As to MLS' comment, the "extralegal" nature of Nuremburg is clearly open to debate, and was at the time.

Roughly, my understanding is that there was an argument that there was law in place, and some sort of equity judgment was made to create a tribunal to gain relief pursuant to it. I'd note btw that the law of conspiracy (which France really didn't care for) was weaker at the time than now, which seems relevant to this general conversation.

As to justice, just shooting them -- w/o a trial (which led to many short sentences and some outright acquittals) with the additional knowledge and sense of fairness (which many Germans, including the German people, respected) it offers is a bit absurd as a "better" path for someone who implies Nuremberg was arbitrary.

Likewise, Philippe Sands and others support a true int'l tribunal of justice that applies to all. The U.S. is wary of such a tribunal. As to the realities of "winner's justice," Nuremburg was surely not some unique exception.

I don't really think attorney general offices even make a consistent habit of really evenly handling out prosecutors, including against powerful individuals. You know, like drug users among the latter's families.
 

"The most serious disagreement, and one on which the United States declined to recede from its position even if it meant the failure of the Conference, concerned the definition of crimes. The Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when committed by the Nazis. The United States contended that the criminal character of such acts could not depend on who committed them and that international crimes could only be defined in broad terms applicable to statesmen of any nation guilty of the proscribed conduct. At the final meeting the Soviet qualifications were dropped and agreement was reached on a generic definition acceptable to all.

"The agreement and charter of London, as finally signed by representatives of the four conferring powers on August 8,1945, has been formally adhered to by 19 additional nations: Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela, and Yugoslavia. The principles of the charter thus constitute the solemn judgment of 23 governments representing some 900 million people. In addition, the principles of the Nuernberg trial have been given general approval by the General Assembly of the United Nations.

"The principles of the charter, no less than its wide acceptance, establish its significance as a step in the evolution of a law-governed society of nations. The charter is something of a landmark, both as a substantive code defining crimes against the international community and also as an instrument establishing a procedure for prosecution and trial of such crimes before an international court. It carries the conception of crime against the society of nations far beyond its former state and to a point which probably will not be exceeded, either through revision in principle or through restatement, in the foreseeable future. There is debate as to whether its provisions introduce innovations or whether they merely make explicit and unambiguous what was previously implicit in international law. But whether the London Conference merely codified existing but inchoate principles of law, or whether it originated new doctrine, the charter, followed by the international trial, conviction, and punishment of the German leaders at Nuernberg, marks a transition in international law which calls for a full exposition of the negotiations which brought it forth.

"Three broad categories of acts are defined as criminal in this code. The first, crimes against peace, consists of planning, preparing, initiating, or waging a war of aggression or a war in violation of international undertakings, or participating in a common plan or conspiracy to accomplish any of the foregoing acts. The second category, war crimes, embraces violations of the laws and customs of land and sea warfare, including plunder, wanton destruction, and all forms of mistreatment of inhabitants of occupied territories and prisoners of war. The third class of offenses, crimes against humanity, consists of murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with crimes against peace or war crimes, whether or not in violation of domestic law of the country where perpetrated. The most significant results of applying these definitions as the law of nations are to outlaw wars of aggression and to lift to the level of an international offense the persecution of minorities for the purpose of clearing the road to war.

"The charter also enacts the principle that individuals rather than states are responsible for criminal violations of international law and applies to such lawbreakers the principle of conspiracy by which one who joins in a common plan to commit crime becomes responsible for the acts of any other conspirator in executing the plan. In prohibiting the plea of "acts of state" as freeing defendants from legal responsibility, the charter refuses to recognize the immunity once enjoyed by criminal statesmanship. Finally, the charter provides that orders of a superior authority shall not free a defendant from responsibility, though they may be considered in mitigation of punishment if justice so requires. The codification of these principles and their adoption by so many nations would seem to close the chapter on that era when all wars were regarded as legally permissible even though morally reprehensible. It ushers international law into a new era where it is in accord with the common sense of mankind that a war of deliberate and unprovoked attack deserves universal condemnation and its authors condign penalties. It is quite evident that the law of the charter pierces national sovereignty and presupposes that statesmen of the several states have a responsibility for international peace and order, as well as responsibilities to their own states. It would be idle to deny that this concept carries far-reaching implications.

"Nor will the ultimate influence of this doctrine of international responsibility depend on its merits alone. If the nations which command the great physical forces of the world want the society of nations to be governed by law, these principles may contribute to that end. If those who have the power of decision revert to the concept of unlimited and irresponsible sovereignty, neither this nor any charter will save the world from international lawlessness."

Robert H. Jackson, REPORT OF ROBERT H. JACKSON, UNITED STATES REPRESENTATIVE TO THE INTERNATIONAL CONFERENCE ON MILITARY TRIALS, preface, available HERE.

See also CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL (London 1945), available HERE.
 

Joe's and Charles Gittings' responses to MLS were so devastating that I'll add only this:

before Mark Field explains it to me

I'm very confident that you understand perfectly well what precedent consists of.
 

Personally, I incline to the British view that the Nazis should have been shot without benefit of trial.

What use have I for 'law' when bullets are in generous supply?

Let the largest and most war-like amongst us rule. That is all.
 

Joe- my reference to the “extra-legal” character of Nuremberg related to the establishment of the tribunal. There is a debate about whether the substantive law applied by this tribunal existed prior to the tribunal’s creation, or existed at all, but I don’t think that there is a controversy about the fact that the tribunal itself existed solely by agreement of the victorious parties, and that its jurisdiction was limited to the activities of the defeated Axis.

Charles- the excerpts you cite are very helpful and interesting. Justice Jackson was clearly expressing the hope that the broad categories of prohibitions he identifies would become more than merely accepted international standards or customs (which unquestionably they are), and would become, in some sense, real law. What he seems to be talking about is the idea that the great powers will band together and enforce these prohibitions, particularly the ban on aggressive war and genocide, against the rest of the world. Whether such a system, had it been realized, would constitute a legal system in a meaningful sense is debatable. In any event, as the dead of Cambodia, Uganda, Rwanda, and elsewhere can attest, this system has never come to be.

We can debate whether it is either practical or desirable to establish a real system of international law to enforce the prohibitions identified at Nuremberg. But to suggest that we create such a system, or a special tribunal, to address the actions of John Yoo and his colleagues strikes me as more than a little bizarre. Sure, we could tolerate all the wars, genocides and other atrocities that have occurred since WWII, but a poorly reasoned legal memo is a bridge too far? I think selective prosecution would be far too mild a term for such an approach.

Mark- I figured.

Mattski- in case you weren’t aware, no one actually rules this world. The neo-cons thought they did, but I think they have been disabused.
 

But that's exactly the point MLS: the IMT Charter is US law in the only sense that matters, Article VI of the Constitution, and there is no need to convene an international tribunal to do what our own courts can do for themselves.
 

there is no need to convene an international tribunal to do what our own courts can do for themselves.

As others have pointed out, there are good reasons for our own courts to deal with the problem. It would be precisely the failure to do so which would leave our citizens at risk of international tribunals exercising jus cogens jurisdiction. If we really want to protect our own citizens, the best way to do that is to demonstrate good faith efforts to address these acts ourselves.

Just to be clear, this does NOT require convictions (this isn't Gitmo). It DOES require a full investigation into the facts by the executive and an honest treatment of the legal issues by the judiciary. The key point is to satisfy everyone that justice has been done, not to jail a bunch of people.
 

Charles and Mark- I am not quite sure what you are saying. Obviously, a US court can enforce domestic criminal laws, such as the torture statute, but this has nothing to do with Nuremberg or international law.

You may be saying that Nuremberg or international law precedents could have a bearing on the construction of a particular US statute. So, for example, a US court might find that international precedents that pre-dated the enactment of the torture statute had a bearing on congressional intent with regard to that law. I am sure that this is possible, although it would seem to have little relevance to Yoo’s potential criminal liability.

Or you could be saying that US courts can directly enforce obligations established at Nuremberg in the form of criminal prosecutions against individuals. This strikes me as extremely far-fetched, although perhaps I missed the explanation of how such a thing would be possible.

Lets say a US President orders our military forces to attack another country (I know, you really have to stretch the imagination on that one). Are you saying that the President and all of the participating military forces could be prosecuted in a US court for violating the ban on aggressive war? I find this more than a little hard to believe. The only thing harder to believe would be that the OLC lawyer who advised the President that the action was legal could also be prosecuted.

Just to be clear, I was fighting John Yoo and his pernicious theories of executive power long before most people had heard of him. I support a full congressional investigation with regard to the legal advice that he gave, and I think that once OPR files its report, a legal ethics proceeding may be called for as well. However, I do not think that any of these actions, or any potential criminal proceeding, should be conducted in order to preempt or assuage a hypothetical international tribunal. In fact, if a foreign or international tribunal were to assert jurisdiction over Yoo’s activities, this would constitute, IMO, a serious affront to US sovereignty.
 

I do not think that any of these actions, or any potential criminal proceeding, should be conducted in order to preempt or assuage a hypothetical international tribunal. In fact, if a foreign or international tribunal were to assert jurisdiction over Yoo’s activities, this would constitute, IMO, a serious affront to US sovereignty.

The only point I was making was that the US should pre-empt any such assertion of jurisdiction by foreign courts by handling the matter itself. I see criminal proceedings as a way to avoid the very problem that you also want to avoid. (Again, to re-emphasize, the criminal proceedings don't have to end in conviction to attain this result, they simply have to be seen as legitimate, good-faith efforts.)

If we fail to act on our own and our citizens then do become at risk of arrest by courts exercising jus cogens jurisdiction, I'm not sure I'd consider it an "affront" to US sovereignty. For one thing, we're really in no position to complain about this post-Nuremberg, post-Noriega, and post-Guantanamo. For another, that's the price nations sometimes pay when they fail to comply with jus cogens norms on their own.
 

very enlightening discussion gentlemen .. it's not exactly "clear as a bell" .. but i appreciate the light you're all attempting to shine here ..
 

"we're really in no position to complain about this post-Nuremberg, post-Noriega, and post-Guantanamo"

True enough, which is why I question whether they were good ideas in the first place.

There is an inconsistency between the idea that we have the right and obligation to restore democracy to Haiti, guarantee human rights for Kosovo and liberate the Iraqi people, on the one hand, and the idea that we are not accountable to the international community, on the other.

However, the reverse is also true. If one believes that US officials are legally accountable for alleged international law violations, then it is difficult to explain why the US doesn’t have the authority, and perhaps the obligation, to bring folks like Saddam Hussein and Kim Jong Il to justice. And if we are going to extend this dubious principle to people like John Yoo, whose international law violations, if any, are trivial in comparison, then we have established a framework for perpetual war of all against all.
 

However, the reverse is also true. If one believes that US officials are legally accountable for alleged international law violations, then it is difficult to explain why the US doesn’t have the authority, and perhaps the obligation, to bring folks like Saddam Hussein and Kim Jong Il to justice. And if we are going to extend this dubious principle to people like John Yoo, whose international law violations, if any, are trivial in comparison, then we have established a framework for perpetual war of all against all.

A very fair point. I'm not sure there's a perfect answer to this problem, but I'd suggest at least two important factors:

1. Jus cogens jurisdiction should seldom, if ever, be exercised through aggressive wars (Iraq) or war/kidnapping (Noriega -- I'm being charitable and treating the Noriega case as one of jus cogens when that's not really clear). If the alleged perpetrator visits the country or if extradition proceedings are followed, then I see no problem.

2. Military actions need to have the approval of recognized, relevant international or multi-national organizations, not ad hoc coalitions formed for that express purpose. I may be being overly inclusive here, but I was inclined to think that NATO's approval of the Kosovo action was sufficient, and I could imagine similar cases elsewhere. UN approval is problematic for a number of reasons, but may represent an a fortiori case.
 

in case you weren’t aware, no one actually rules this world. The neo-cons thought they did, but I think they have been disabused.

That's kind of true, in a sense. But to a much greater degree it's absurd. There's a whole lot of ruling going on. The basic problem with your position, MLS, is that you amply manifest 'no confidence' in humanity to manage it's affairs. You are left with no strategy other than sowing obfuscation and worshipping brute force.

There is an inconsistency between the idea that we have the right and obligation to restore democracy to Haiti, guarantee human rights for Kosovo and liberate the Iraqi people, on the one hand, and the idea that we are not accountable to the international community, on the other.

Whose ideas are you juxtaposing here? In particular, who is championing the idea that we are not accountable to the international community?

Further, don't pretend that principle makes no allowance for discretion. We can believe in human rights (we do!) without indiscriminately buying into the idea of preemptive war. We can believe in human rights (we do!) and still think that the invasion of Iraq was a colossal and egregious error. There is such a thing as wisdom. George Bush's hideous lack of it proves little except that the process by which we choose our leaders is dangerously in the thrall of the wealthy.

And if we are going to extend this dubious principle to people like John Yoo, whose international law violations, if any, are trivial in comparison, then we have established a framework for perpetual war of all against all.

No. 'Perpetual war of all against all' is the operative ideology behind your remarks. Don't project it onto your intellectual adversaries. We are arguing for the supremacy of the law. You are throwing out chaff to muddy the discussion. Perhaps I'm mistaken, but I didn't think there was a movement here to drag Yoo before an international tribunal. Rather, the argument is that Yoo should be accountable to US law first and foremost. International law is relevant to the extent that it provides reinforcement and context for our law.
 

Professor Heller,

Your overall thesis is that the Altstoetter defendants were not merely advisory but also and mainly executive participants in war crimes, and that their convictions are precedents for the latter form of participation.

But didn't the Nazi system erase distinctions between the judicial and executive branches on purpose, and made the law less an instrument to protect the people than one to consolidate and utilize Nazi power?

If so, I'm not sure how much force your argument has re Yoo et al. Altstoetter et al also implemented the laws and policies they themselves promulgated and developed; in a totalitarian state, officials both made up the rules and told others to implement them. Guilty verdicts for such officials may be precedents for advice-as-war-crime or implementation-as-war-crime, regardless of whether the official involved did more of one or the other.

While I haven't made the study of it you have, I did look around in the Altstoetter trial archives, and wrote (in A fortiori) that one of the defendants was arguably called to account for knowing complicity in and authorization of torture, in his capacity as a Justice Ministry secretary. From the Tribunal's verdict against Herbert Klemm (Mazal Library): "..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."[...]


Ie, Klemm routinized the processing of "verschaerfte Vernehmungen" -- enhanced/sharpened interrogations. While it's not exactly the same thing, of course -- nothing ever is -- this seems to me to be a reasonably close analogue to Yoo's role of providing a fig leaf legal imprimatur for torture. As I wrote in my post: 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.
 

mark field said:

Jus cogens jurisdiction should seldom, if ever, be exercised through aggressive wars (Iraq) or war/kidnapping (Noriega -- I'm being charitable and treating the Noriega case as one of jus cogens when that's not really clear). If the alleged perpetrator visits the country or if extradition proceedings are followed, then I see no problem.

War crimes trials are nearly always the result of offensive military operations which conquer the offending nation and capture the offending parties.
War crimes trials are the justice of the conqueror.

Actual war criminals cannot be relied upon to turn themselves into some toothless international tribunal. Instead, without military action, war criminals can be relied upon to continue their crimes.

This is why treating war as a criminal justice matter is a joke.
 

This comment has been removed by the author.
 

"Instead, without military action, war criminals can be relied upon to continue their crimes."

Compare this to the situation where State A declares war against State B with actors in State A committing war crimes against State B; that State A is the conquering nation. In such a case, can the military action by State A be relied upon to commence war crimes against State B? Does State A have immunity as the victor?
 

"Bart" DePalma says:

War crimes trials are nearly always the result of offensive military operations which conquer the offending nation and capture the offending parties.
War crimes trials are the justice of the conqueror.


This expressed view does much to explain why "Bart" has no problems with torture, etc.

The way his world works, "might makes right", and there are no morals and no 'higher law'.

Many people would disagree with this dystopian assessment, but "Bart" is free to hold it. What he is not free to do is to suggest that it is a majority view, much less a consensus one.

FWIW, I'd point out that WWII was hardly an "offensive military operation[]", and that the Nürnberg war crimes trials (unlike the 'kangaroo courts' of the maladministration) went out of their way to make themselves not only fair but to be seen to be fair. This was hardly "victor's justice", and "Bart" does the fine legal professionals that put these together a disservice in suggesting otherwise.

Cheers,
 

It's trivial to observe the law has no power beyond our capacity to enforce it, or equally, that criminals aim to defeat or evade the law.

Bart's problem is clear enough: he thinks the law is just a game that predators play for profit and pleasure, on the theory such activity represents "democracy" and "freedom" in some meaningful sense. The only thing that matters to Bart here is that he gets to be a "winner", where winning is whatever result he thinks is most advantageous to him, no matter how dishonest, silly, or vile the results.

As for the jurisdiction to prosecute these crimes, we have all that we need in the law; what we lack are honest, competent prosecutors -- a condition which will hopefully improve after the fall elections. There are a number of federal statutes that apply besides the torture statute. The one thing we don't have a statute for are crimes against peace per se, but those could be tried under US law by a military commission, or in the alternative, by Elizabeth de la Vega's idea (see HERE)of charging it under the conspiracy statute.

And while the invasion and occupation of Iraq is clearly the Bush administration's worst crime, it isn't their only one: there are plenty of lesser charges. Add up all the arguments of the apologists, and what it boils down to is that they think they have a viable defense. I think they are neo-fascist fanatics and liars -- let them tell it to a jury.
 

shag from brookline said...

BD: "Instead, without military action, war criminals can be relied upon to continue their crimes."

Compare this to the situation where State A declares war against State B with actors in State A committing war crimes against State B; that State A is the conquering nation. In such a case, can the military action by State A be relied upon to commence war crimes against State B? Does State A have immunity as the victor?


In reality, yes.

The Soviets perpetrated massive war crimes against Poland after they invaded along with Germany in 1939. You did not see any of the Soviet perpetrators of Katyn and the like on the dock at Nuremberg.

This is why soft power is nothing without hard power to back it up.
 

arne langsetmo said...

"Bart" DePalma says: War crimes trials are nearly always the result of offensive military operations which conquer the offending nation and capture the offending parties.
War crimes trials are the justice of the conqueror.

FWIW, I'd point out that WWII was hardly an "offensive military operation[]", and that the Nürnberg war crimes trials (unlike the 'kangaroo courts' of the maladministration) went out of their way to make themselves not only fair but to be seen to be fair. This was hardly "victor's justice", and "Bart" does the fine legal professionals that put these together a disservice in suggesting otherwise.


1) Our involvement in the European Theater of Operations was one long offensive operation conquering North Africa and Western Europe. We conquered Germany and Italy and captured their war criminals through force of arms.

2) Nuremberg was most certainly victor's justice. You did not see Americans being tried for the Dresden firebombing or for allowing thousands of German POWs to starve to death in our custody because we would rather feed French civilians. Nor did you see Soviets being tried for the massive ethnic cleansing and rape of East Germany.

Time to get real.
 

charles gittings said...

It's trivial to observe the law has no power beyond our capacity to enforce it, or equally, that criminals aim to defeat or evade the law.

That is incredibly naive.

You cannot have justice without a means to enforce it, either in our domestic civilian criminal justice system or in an international war crimes tribunal. You need police for the former and the military for the latter.
 

"Bart" DePalma:

IC you just ignored the first part of my last comment. You have no reply; we understand that.

[Arne]: FWIW, I'd point out that WWII was hardly an "offensive military operation[]", and that the Nürnberg war crimes trials (unlike the 'kangaroo courts' of the maladministration) went out of their way to make themselves not only fair but to be seen to be fair. This was hardly "victor's justice", and "Bart" does the fine legal professionals that put these together a disservice in suggesting otherwise.

1) Our involvement in the European Theater of Operations was one long offensive operation conquering North Africa and Western Europe. We conquered Germany and Italy and captured their war criminals through force of arms.


The Nürnberg war crimes trials weren't just the Yoo Ess of Freakin' Aye in action, and we weren't the only ones fighting WWII, despite any hallucinations (or convenient lapses of memory) you might have to that effect, "Bart". My parents might be able to explain to you what an invasion and occupation is ... except they have better things to do than school the intentionally stoopid.

Putting WWII in the same category as, say, Iraq, would be a severe blunder.

2) Nuremberg was most certainly victor's justice. You did not see Americans being tried for the Dresden firebombing or for allowing thousands of German POWs to starve to death in our custody because we would rather feed French civilians. Nor did you see Soviets being tried for the massive ethnic cleansing and rape of East Germany.

Go eff yourself, "Bart". This is just dishonest and insulting. Not to me, but to the good soldiers and dedicated and principled lawyers that actually tried to do the right thing. Yes, they hanged the perps, many of them. Those that hanged almost assuredly deserved such, if anyone deserves hanging. They let some off too. To equate the difficult post-war conditions and the resultant human suffering with the actions of the Nazi top brass is despicable. I think that if you have any morality left in you, you would take that back immediately ... oh, right ... forgot, you don't have any morality, as we keep seeing, in particular on this thread.

There are some that might think that the firebombing of Germany (and Japan; don't forget Curtis LeMay's tactics) might have been a war crime. Perhaps, but that would best be settled by a court. That's how we do things. And perhaps the result would have been different in the aftermath of the GC4 and other post-war developments.

And are you truly arguing now that any Soviet excesses were fine; they were just doing what they thought was "necessary", and being victorious is all that matters?!?!?

I for one am perfectly able to say that the massacre in the Katyn forest was a crime as well. You have placed yourself where, to defend the maladministration, you would let that pass. If there were a God, She would not have mercy on your soul ... you would have made a fine Nazi.

Cheers,
 

[charles gittings]: It's trivial to observe the law has no power beyond our capacity to enforce it, or equally, that criminals aim to defeat or evade the law.

["Bart"]: That is incredibly naive.

You cannot have justice without a means to enforce it, either in our domestic civilian criminal justice system or in an international war crimes tribunal. You need police for the former and the military for the latter.


No. Charles Gittings is under no misunderstanding here, and certainly hasn't made any such claim. What's naïve is to think that power (or force) without law is all that there is. Now who could be so naïve?!?!? Hmmm, let me see.....

Cheers,
 

for allowing thousands of German POWs to starve to death in our custody because we would rather feed French civilians

Much like your claims of WMD being moved from Iraq to Syria, this is pure fantasy.
 

All: The ENTIRE transcript (1200 pages) of the Nuremberg Judges' Trials can be read online here, nicely organized:

http://www.mazal.org/archive/nmt/03/NMT03-C001.htm

(Mazal.org has all of Nuremberg.)
 

This a follow-up to the quotation of Justice Jackson posted earlier on this thread. The following is from Telford Taylor, THE ANATAMOY OF THE NUREMBERG TRIALS, Alfred A. Knopf (New York, 1992), page 65:

"By Wednesday, July 25 [1945], the parties were well on their way to agreement on all points except the definition of crimes to be charged in Article 6 of the Charter, and here the matter of disagreement was an important question of principle which at first appeared to be intractable.

"The question was whether or not the Charter should follow the American draft in providing, by language binding on the Tribunal, that initiating an aggressive war was a crime under international law. To this the Russians and the French were strongly opposed, and a revision of the American draft was submitted by the Russians that provided:

'The Tribunal shall have power to try any person who has directed or participated in ... any or all of the following acts ... namely:

'(a) Aggression against or domination over other nations carried out by the European Axis in violation of the principles of international law and treaties ...'

"The ensuing paragraphs (b) and (c), dealing with atrocities against the civilian population, murder and ill-treatment of prisoners, and other violations of the laws of war, did not contain the phrase 'carried out by the European Axis.' Thus, the necessary implication was that aggressive war was a crime only when carried out by European Axis defendants, while the laws of war were general laws applicable to all, regardless of nationality." (Emphasis added.)

In short, the dispute was about 'crimes against peace', not war crimes or crimes against humanity, and absent agreement on that point, the United States was unwilling to proceed. Indeed, Justice Jackson went so far as to propose that each of the four major allies try their Axis prisoners separately in their own courts.

Note that war crimes and crimes against humanity were regarded as fairly well- established. The United States has recognized 'the law of nations' from the outset, having been explicitly established on natural law principles, and has played a leading role in the development of international humanitarian law. The 1899 / 1907 Hague Conventions were developed from the Lieber Code (1863), issued as General Orders No. 100 by the US War Department. Long before that, Charles I of England had been tried, convicted, and executed for what were essentially crimes against peace and crimes against humanity -- his treason was incidental; see:

* The Charge against the King [January 20, 1648/9]... HERE.

* Geoffrey Robertson, JOHN COOKE - A LIFE IN BRIEF, Counsel (2005.09)... HERE.

And the priniple is clearly stated by the Martens Clause of the Preamble to Hague II 1899 / Hague IV 1907:

"Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience."
 

You cannot have justice without a means to enforce it, either in our domestic civilian criminal justice system or in an international war crimes tribunal. You need police for the former and the military for the latter.

Bart, can you say, "blockhead?"

Suppose I agree with you. You're quite right that we can't have justice, in principle, without the means to enforce it. But here's one for you: We cannot have justice without the desire for justice.

Means of enforcement are a necessary, not sufficient, condition. Sadly, there are people on this earth whose interest in justice doesn't extend any further than acquiring the means of enforcement. I'd put you firmly in that category.

Would you like proof of my proposition? Let's look at the US invasion of Iraq. We had the means to decapitate Saddam's regime. And that's virtually all we had. We didn't have the consent of the civilized world, we didn't have a genuine casus belli, we didn't have an understanding of the peoples or the histories of the region, we didn't have an appreciation for what probably would go wrong. At least the Executive did not.

And you would trust these clowns with justice??
 

A salute to Charles Gittings, whose lucid prose and scholarship are extremely edifying.

I'm reminded that not long ago Bart evaded an interesting question put to him by Mr. Gittings,

"Are you a Christian?"
 

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