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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Nuremberg at Sixty: Is Jackson's Poisoned Chalice Now at Bush's Lips?
For the last twenty years, it’s been common practice among law professors to view modern human rights law, and in a sense the entire international law system, as something that started with the gavel that convened the first of the Nuremberg criminal tribunals. That gavel fell sixty years ago today. These tribunals gave force to the concept that international law was not just about relations between nations. International law also created obligations for individuals, who could be subject to trial and severe sanction. America was the most aggressive proponent of this course, and the American prosecutor, Justice Robert Jackson, was extremely conscious of what this meant for his country. “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.”
Today it seems that Jackson’s poisoned chalice truly is pressed to the lips of the United States, or more particularly, those of George W. Bush. The Bush Administration has retreated from the country’s traditional embrace of international law, and continues to view even its most basic commitments – such as the Geneva Conventions – with contempt. While John McCain has mustered a vote of 90 – 9 in the US Senate in support of a return to the traditional view, Bush remains defiant and threatens a veto. Why the adamant opposition?
Can it be that the Nuremberg legacy provides the answer? If any single consideration stands in the way of the Administration’s embrace of the McCain Amendment, it might well be what Andrew Sullivan calls “concern for immunity from prosecution for past actions and decisions.” Nuremberg set some clear principles, and many of them had to do with the mistreatment of those held in prisons in wartime. A concept of ministerial liability for pervasive abuse was established, and this was based on notions of command responsibility. Another case established that those who write legal memoranda which counsel government officials and the military to ignore the Geneva and Hague Conventions can be prosecuted and imprisoned – as in fact a number of German Justice Ministry officials were in the case of United States v. Altstoetter.
Many in the Bush Administration seem to have a very curious understanding of Nuremberg. Rather than leading a new movement to overturn the international legal system that started at Nuremberg, a number of key Bush officials are more likely to be the Pinochets of the next generation – blocked from international travel and forever fending off extradition warrants and prosecutor’s questions. Notwithstanding a sovereigntist assault, sixty years later the principles of Nuremberg seem as robust as ever – and likely to create lasting troubles for those who would deny them. Posted
by Scott Horton [link]
“The Bush Administration has retreated from the country’s traditional embrace of international law, and continues to view even its most basic commitments – such as the Geneva Conventions – with contempt. While John McCain has mustered a vote of 90 – 9 in the US Senate in support of a return to the traditional view, Bush remains defiant and threatens a veto.
“Why the adamant opposition? Can it be that the Nuremberg legacy provides the answer?”
The defendants denounce the law under which their accounting is asked. Their dislike for the law which condemns them is not original. It has been remarked before that: "No thief o'er felt the halter draw with good opinion of the law."
Robert H. Jackson Nuremberg, July 26, 1946
(Closing Argument for the United States of America; Trial of the Major War Criminals Before the International Military Tribunal; The Avalon Project : Nuremberg Trial Proceedings Vol. 19 Day 187; URL http://www.yale.edu/lawweb/avalon/imt/proc/07-26-46.htm.