The Legacy of Nuremberg and Lawyers as War Criminals

Must read of the day: When Lawyers are War Criminals: Remarks delivered by Scott Horton at the ASIL Centennial Conference on The Nuremberg War Crimes Trial, Bowling Green, OH, Oct. 7, 2006.

On the Military Commissions bill:

I want to ask today: What has this legislation done to the legacy of Nuremberg? Has it granted impunity to persons who committed war crimes? Is that impunity effective, and might it have unintended consequences?

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.

On impunity:

The Military Commissions Act seeks to accomplish its objective of granting impunity through three tools. First, it redefines "war crimes" into a series of specifically chargeable offenses, of which two, "torture" and "cruel treatment" are most important for these purposes. Second, it makes the restatement of these crimes retroactive to September 11, 2001. Consequently, a series of criminal offenses under the War Crimes Act will disappear retroactively when the Act goes into force. Third, it strips courts of jurisdiction over habeas corpus petitions and forbids litigants to cite the Geneva Conventions and related international and foreign law in those courts, in an effort to blind the courts to the law which the Constitution obligates them to enforce.

The initial draft makes clear that the White House sought impunity for crimes arising as a result of the use of three techniques that the Bush Administration (and, from the remarkable working of one of Bush's press conferences, Bush himself) authorized and which constitute grave breaches under Common Article 3: waterboarding, long-time standing (or as it was called by its NKVD inventors, in Russian: stoika) and hypothermia or cold cell. The use of these techniques is a criminal act. The purported authorization of these techniques is a criminal act. The larger effort to employ them constitutes a joint criminal enterprise.

Go ahead, read the whole thing. I'll include one more quote -- the conclusion:

The legacy of Nuremberg and the solemn undertaking that Justice Jackson gave for the United States at the opening session, are under assault by the Bush Administration, which has embraced a radical world view that rests on a cult of power and a disdain for law. And fundamentally, this Administration has a notorious allergy against accountability in any form. But this conference is evidence that the spirit of Nuremberg has not been extinguished in the United States. And indeed, the flickering candle that was lit at Nuremberg has developed into principles which form the heart of the international legal order. We bear witness to those principles with this conference.

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    Re: The Legacy of Nuremberg and Lawyers as War Cri (none / 0) (#1)
    by scribe on Mon Oct 09, 2006 at 02:00:56 PM EST
    For those who were disputing over why the Administration took some revenge on Commander Swift, by forcing him from the service, the following quote is revelatory :
    These [the Admin's] lawyers adopted a mantra, namely, to quote Alberto Gonzales, that the Geneva Conventions were "quaint" and "obsolete," and did not apply to a "new kind of warfare." In so doing, they thoughtlessly moved in the same paths traversed by lawyers in Berlin sixty years earlier. Indeed, at the General Staff trial, the world public learned for the first time of the valiant struggle of Moltke when one of his memoranda was put into evidence. It pleaded in forceful terms for respect of the Geneva Convention rights of enemy soldiers, civilians and irregular combatants on the East Front, mustering a series of arguments that bear remarkable similarity to a memorandum sent by Colin Powell to President Bush sixty years later. And in the margins, in the unmistakeable pencil scrawl of Field Marshall Keitel, were found the words "quaint" and "obsolete." This was cited as an aggravating factor justifying a sentence of the death against Keitel. The Bush Administration apparently assumed that the court system would toe the political line they had drawn. It was clearly taken by surprise when the Supreme Court, in Hamdan, knocked the legal props out from under the Administration's detainee policy, validating the positions taken by the senior legal officers of the nation's uniformed military services and the State Department, which had opposed the Administration on this grounds.
    So, when Justice Kennedy mentioned the Geneva Conventions and the War Crimes Act in his Hamdan concurrence, he was (as I and others noted at the time) making a pointed reference and warning to the Administration. His warning was that the policy they chose (not created - the Nazis had done that, and the Repugs were merely following their footsteps) was taking them down a course to where these members of the Admin would, some day, place their lives on the line for their actions. It's just that simple - because Commander Swift had the courage - moral and physical - to take on his case and defend his client, he's shown the Admin not only to have no clothes, but to be in truth a criminal enterprise. And that, to these folks, is intolerable. For standing up for the principles of law, Moltke was murdered by the Nazis. For standing up for the principles and letter of the law, Swift's career was murdered, no less surely, by the Admin. And Haynes, Bybee and others, wrongdoers all, were rewarded. This also puts more context to the browbeating Haynes gave to the heads of the various services' JAG Corps, demanding they sign on to supporting the Torture Bill and locking them in a room until they did. Like in a criminal gang, where one has no standing until as an initiation the gang members hand one a gun and point out a target. Kill the target, become a member of the gang through complicity in the crime. Refuse to kill the target, the gang kills you. That is what passes for a governmental administration today - the morals and ethics of a street gang or, as John Dean has noted, La Cosa Nostra. A fine pass we've come to, and, I worry, there is yet worse to come.

    I've read alot about WWII and my mother was a girl in France when the Nazi's came. My grandfather, a policeman, helped the underground. I read about the trials. I probably know a hell of alot more than Bush. We are talking about someone who is incurious about the world. He knows nothing of history or the meaning of his position. He sees torture as his will. Like when he branded pledges at the frat house. This is the kind of minds that is driving our government today. 50% of the people who voted for him did so because he'd be fun to have a beer with. This is a man who did not know why he wanted to be president and asked why he should care about N. Korea. He is vain and immature. Iraq is a world statement to his daddy issues. He whipped congress to do as he wanted and then proceeded to act alot like what is ascribed to Kim Jung Il. petulant, spoiled, strutting, arrogant, ect. Nuremburg is something he has no concept of.

    Re: The Legacy of Nuremberg and Lawyers as War Cri (none / 0) (#3)
    by cpinva on Mon Oct 09, 2006 at 09:14:59 PM EST
    scribe, i must disagree. not, mind you, that you might not be correct in your assertion, but that you have no concrete evidence to support it. all is speculation, absent the records of the THREE promotion boards that determined if swift would be promoted. were i mr. bush, i would be concerned about the nov. 7 elections. while it's politic to say that no actions against the administration will be taken, if a dem majority is achieved, it may not be the right thing to do for the country. to recover some semblance of national honor, this administration must be called to account.

    Re: The Legacy of Nuremberg and Lawyers as War Cri (none / 0) (#4)
    by scribe on Tue Oct 10, 2006 at 09:10:48 AM EST
    CPinVa: Your "you ain't got no facts without the three promotion boards' records" is purely a Repug talking point. A subtle one, to be sure, but still a talking point. This operates on several levels. First, let's get rid of the canard that Swift was non-selected for "commander" because he was not up to command. In the services, there are several different promotion boards - line officers, medical officers, JAG officers, and Chaplains come to mind. In that context, Swift would have been considered for promotion only against the other JAG officers up for promotion. And his skills as a lawyer would have been deeply relevant - probably the most heavily weighted. Command ability, while relevant, would not be determinative. Translate the concept to the promotion of, say, doctors, and you'll see the point. One would want people with some command skill for high ranks as doctors, but their ability to command would be seriously compromised if they couldn't practice medicine without killing their patients - subordinate doctors would not respect them, and you can't command those who don't respect you. Everyone involved agrees Swift was not only a skilled lawyer, but a tenacious one, devoted to winning for his client, and widely respected in and out of the military. He won at the Supreme Court. Doing that is something which every lawyer will put - with a bullet - on their resume for the rest of their life. Even having a piece of a brief that won before the Supreme Court will go on the resume. That's a fact of life and it's no different for a military lawyer. Second, claiming "we can't know" is a dodge: the promotion board process is designed to be opaque, so as to prevent intra-service politics from interfering - there were many examples in history of personalities and intra-service politics both thwarting the careers of otherwise excellent officers and yielding unwarranted promotions to the inept-but-connected. All the personnel files on all the officers would have to be open to review to recreate the boards, because the boards are tasked with choosing a certain number "X" of suitable candidates for promotion, and the best "X" files would have to be gleaned from the pile. And that won't happen, because officer evaluations and personnel files are protected against disclosure by law. More likely is that one of Swift's senior raters - his boss' boss - was directed by (or figured it would please) his higher up(s) to check the box marked "do not promote" on Swift's evaluation(s). Regulations specify when and why that box can be checked, but regulations are malleable and the same higher ups are the ones who can wield the hammer to change the regs, assuming they saw the need. One needs to remember that, ab initio, Swift was ordered by a superior to take a bad plea deal for Hamdan. Plead him guilty and be done with that terrist scum. That would have required Swift to abandon any pretense of being a lawyer for a client and instead become one of those selling out their profession for career success. Returning to my earlier metaphor, Swift was handed the gun and told to shoot Hamdan, if he wanted to be part of the street gang, knowing that if he refused, the gang would kill him. He upheld the principles of his profession. Once that "do not promote" box is checked, there's little hope. The best result Swift could have hoped for would be to bring an administrative proceeding to "correct his records", followed by a successful hearing before an ALJ to remove the evaluation from his file. Being successful in doing so would also result, ironically, in removing from his file (and consideration) the evaluation covering some of the most important work he had ever or would ever do. His record would just have a blank spot for that time period. Of course, the same higher-ups control and appoint the ALJs who would be hearing the case. So, one can guess the result of any proceeding. And, there's no guarantee he'd be promoted without the evaluation for those time periods in the file. His work was too successful and he was too notorious from it for members of the promotion board to be ignorant of who he was and, assuming the evaluation had been removed, why there was a blank spot in the record. They have powers of deduction, too. So, it is fair to say that the higher-ups in the DoD took revenge on Swift for winning in Hamdan. It is also fair to say that they come out the worse for it - they cashiered an honest lawyer to save their own hides.

    I so clearly remember being scolded by the Executive Officer on the USS Albany along with other membbers of a Courts Martial for being too "easy" on an enlisted defendent after the trial. Hi actions were completely in violation the the UCMJ in letter and intent. And they pretend that there is no "Command Influence...". The military is, in fact, a separate society that has only a parasitic relationship to the larger culture and operates outside of the :Rule of Law" to the extent that it can. I understaND Lcdr Swift's problem - been there, done that - and if you are not a favored son, you are out without respect to ability or any other factor.