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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.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 David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts When Lawyers Are War Criminals
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Sunday, October 08, 2006
When Lawyers Are War Criminals
Scott Horton
To the memory of Helmuth James von Moltke
Comments:
A just outcome would be for the next administration to employ Lt. Charles Swift in the AG's office for the specific purpose of prosecuting administration officials for their war crimes. What a beautiful ending that would be...
Scott's paper is beautifully crafted, the Nazi comparison is apt, the acts it analyzes are criminal, and von Moltke is a hero. I wonder if the rogue Bush administration - and its lawyers - are not also guilty of the central charge which Jackson levelled against the Nazis at Nuremberg. "We must persuade the German people," he said, "that their leaders are on trial not because they lost the war but because they started it."
Article 2, secton 4 of the UN Charter bars aggression by one state against another. The Supremacy Clause (Article 6, Section 2) of the Constitution makes treaties signed by the United States the highest law of the land. In the first Gulf War, Saddam Hussein aggressed against Kuwait. But in the second Gulf War, the United States and Great Britain launched an unprovoked attack against a nearly helpless country, whose leadership was in fact cooperating with the UN (for instance, in destroying the Al-Samud missiles some of which went further - something like 120 km. - than the UN required). Now the idea of preemption could perhaps be stretched, given the possibility of massive destruction in cities by small groups armed with chemical, biological or nuclear weapons - to suggest that a state that aids such a group is, as it were, about to aggress against the innocents who would be victimized. But Saddam had destroyed his weapons (given to him by the United States) and was an enemy of Al-Qaeda. The claims alleged by the Bush administration for engaging in the War were lies, dating back long before 9/11. Thus, the idea of "preemption" was not in play. Further, the war was not "a war of choice" as is sometimes said critically; it was the crime of aggression. If one adds to this the massive detention of civilians and implementation of torture, the idea of "humanitarian intervention" also does not justify - and is in fact perverted by - the American-British occupation. The invasion of Iraq had nothing to do with the murder of 3000 Americans of 83 nationalities on September 11th by Al-Qaida. It has everything to do with the decade-long machinations of a small group of people, centered around Wolfowitz, Rumsfeld and Cheney, who did not care a whit for international law or facts. Nuremberg, the UN Charter, the Geneva Accords, the American Constitution and modern American law all, prima facie, bar the criminal conspriacy - a conspiracy of the highest officials of the US government (probably only exempting Colin Powell who apparently tried to resist the war and is on record as resisting torture of prisoners of war). Even the rotten, retroactive "Military Commisions Act" and near control of the Supreme Court (4 votes) may not be enough, in the intermediate run, to stave off indictments (it will certainly not be safe for former officials, if the government leaves power, to travel abroad}. As Scott's argument implies, the ramming through of this dishonorable Act before the mid-term election smells of fear. The word tyranny as a more apt name for " commander in chief power" has occurred to many. It may take a fight for even the forms of American democracy to survive the Bush administration's onslaught on the rule of law. Alan Gilbert
Thank you, Mr. Horton, for your brave and lucid analysis.
In a recent interview, Bob Woodward said that Nixon’s administration was involved in criminal activity, while Bush II’s isn’t. That is a lie, meaning a deliberate distortion of the truth. However, the reason I’m mentioning this fact as a comment to this post isn’t to scorn Woodward, but to point out what I believe underlies Woodward’s lie, something which, in my opinion, is the main reason why history’s first democratic nation and the world’s present and sole superpower has been capable of kidnapping, torturing and killing thousands of *suspects* without any kind of legal consequences for the inducers of such crimes. The reason is twofold: Such a morally repugnant policy can be put to practice basically undisturbed for so many years because (1) the existing legal framework has become obsolete, and (2) public opinion has been successfully manipulated to the point that the significant majority doesn’t consider state-sponsored terrorism a basic flaw of the system but, rather, a simple and necessary evil.
Scott Horton: In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn.
This is beauty, the kind of thing 2ls like me thirst for as we try to keep our eye on the ball, not of the money we can take, but of the contributions we can make. Thank you, for the quote and the post.
It might be interesting to compare Moltke to Carl Schmitt, for whom extralegal powers had an irresistable attraction, and who blamed the Weimar Republic for not exercising them.
I quoted much of this piece at my blog w/out commenting here, but let me say "thanks" for sharing this with us.
Had the Repubs dared to allow anything like normal debate on the MCA, opinions like Prof. Horton's might have been heard, & made a real difference.
One of the first acts of the Bush administration was to 'un-sign" the International Criminal Court (ICC) treaty.
Clinton had signed the treaty - not expecting it to be ratified without some changes, but Bush rejected it completely. Bush has subsequently made "Article 98" agreements with over 100 countries, pressuring them against using the ICC against US government and military personel, contractors, nationals, etc. 9:05 PM
Trackback:
This post is discussed at American Constitution Society Blog http://www.acsblog.org/news-and-announcements-3084-monday-roundup.html Noli irritare Leones http://notfrisco2.com/leones/?p=2218 Law & Society Blog http://www.lawsocietyblog.com/archives/304 Global Clashes http://www.globalclashes.com/2006/10/the_best_of_yes_1.html Talk Left http://talkleft.com/new_archives/015989.html Law of Criminal Defense http://www.lawofcriminaldefense.com/
The arguments in this paper should be exposed to a very wide audience so that they can be fact-checked and rebutted by those that disagree with it. John Woo recently posted a lengthy piece in the NYTimes and it underwent that very type of scrutiny. This merits similar treatment. If this paper withstands such scrutiny, it merits a very large audience indeed. If it does not, then all readers of this paper and of this blog should be pleased to learn that our political leaders have not made the same errors of judgment as those committed by the German Justice Department 60 years ago.
A just outcome would be for the next administration to employ Lt. Charles Swift in the AG's office for the specific purpose of prosecuting administration officials for their war crimes. What a beautiful ending that would be...
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To the memory of Helmuth James von Moltke
“In France, innumerable summary executions occur, even as I sit here writing. Each day certainly more than a thousand people are killed, and thousands of German men experience murder as a matter of routine. And yet all of that is child’s play compared to what’s going on in Poland and Russia. Can I learn about this and just sit at the table in my heated apartment and drink tea? Don’t I establish my complicity simply by doing nothing? What will I say in the future, when someone asks me: and what did you do during this time?” Online Pharmacy
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Books by Balkinization Bloggers ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |