Superb read: When Lawyers Are War Criminals

[tpsbmam]

http://balkin.blogspot.com/2006/10/when-lawyers-are-war-criminals.html

The piece at the link is long but well worth reading. Scott Horton's revival of Nazi history, the Nuremberg trials, and the current actions of the Bush administration/Gonzales is dead on. Below are just a couple of snips...I highly recommend reading the whole piece.

<snip>

....In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

<snip>

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that 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, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

[hobbit709]

1. United States v. Altstoetter:

That should be asked of gonzo every time he appears somewhere

[Mnemosyne]

2. "Moltke envisioned harsh prosecutions of politicians and lawyers

Moltke was quite a guy! All bold is mine.

More from article:

snip>

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943.


snip>

The Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, "not farmers or factory workers," they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were "recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war." That is to say, they were customary international law. Further, the United States charged, this decree "would probably cause the death of human beings," grounding a charge of homicidal intent.

snip>

At Nuremberg, Justice Jackson promised that this process would not be "victor's justice." He said "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." Powerful words. A moral compact. Did the Bush Administration seek to repudiate Jackson's commitment? This can be answered quite clearly: yes. But did they succeed? That is less clear. But before getting to that point, I want to deconstruct some myths that the Administration has generated to obscure their entire process.



And a reply to Scott Horton's article that makes an excellent point:


snip>

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.
# posted by randomopinion : 8:06 AM



Gonzo the Torturer - War Criminal with the worst of them.