Sunday, October 08, 2006
When Lawyers Are War Criminals
To the memory of Helmuth James von Moltke
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.
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.
This post is discussed at
American Constitution Society Blog
Noli irritare Leones
Law & Society Blog
Law of Criminal Defense
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.
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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?”
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