David Rupel / Seattle Post-Intelligencer & Editorial / St. Petersberg Times – 2006-10-07 22:54:10
US Must Follow Nuremberg Code
David Rupel / Seattle Post-Intelligencer
(October 6, 2006 ) — Perhaps it was by some quirk of Intelligent Design that Congress passed the law legitimizing the Bush administration’s right to do whatever it chooses to detainees (short of rape and mutilation) almost 60 years to the day of the verdicts at Nuremberg.
Two of the Nuremberg trial defendants, Field Marshall Wilhelm Keitel and Gen. Alfred Jodl, were sentenced to death on October 1, 1946, in part, for delegating Hitler’s infamous “commando order.” Hitler ranted that allied commandos who attacked German troops by stealth were not soldiers but common criminals. Gangsters, he added, were not covered by the Geneva Convention.
Substitute the word “enemy combatants” for “gangsters,” and the Bush administration’s approach is certainly rooted in precedent. Moreover, the law doesn’t abandon the Geneva Convention. It merely allows leeway in interpreting old-fashioned notions about what constitutes torture.
A second strike against Keitel dealt with his role in carrying out Hitler’s “Night and Fog” decree. Under this directive, suspected resistance sympathizers were whisked away by night to places where no one would ever learn of their fates.
Substitute the word “insurgents” for “resistance” and this, too, has a familiar ring. In the wake of Abu Ghraib, the US Army estimated that between 70 percent and 90 percent of those rounded up had done nothing.
Worse, Republicans in Congress maintain that any objections to these breaches of international law and basic decency “coddle” terrorists. For obvious political reasons, advance word is that trials in some cases could begin in synch with next month’s elections.
The Nuremberg Charter enumerated four crimes. In highlighted form, these were:
• Conspiracy to wage war of aggression;
• Actual launching of aggressive war;
• Killing, plundering and destroying in a war not justified by militarily necessity; and
• Crimes against humanity.
Arguably, the invasion of Iraq fails to rise to the level of crimes against humanity revealed at Nuremberg. As long as the world draws a moral distinction between shoving children into gas chambers versus chalking up their unintended deaths in an unnecessary war to “collateral damage,” that debate will continue.
But the first three counts speak for themselves. And I submit that at least some who were hanged at Nuremburg were less guilty of war crimes than the people who brought us Iraq.
Julius Streicher, for one, was executed on general principles. Although a loathsome sort, no evidence was presented linking Streicher to specific murders or the war.
However, the tribunal concluded that publishing his vicious anti-Semitic tabloid constituted a crime against humanity because it incited others to murder. In truth, it differed more in focus than in content from some anti-Islamic vitriol heard nowadays from stage right.
Supreme Court Justice Robert Jackson, chief US prosecutor, affirmed that the legacy of Nuremberg should be that the Germans stood trial not because they lost the war — but because they started it.
The jury of history is out on whether he was correct. Until that verdict is final, holding these detainees without charge or having them tried by hand-picked “military commissions” serves only to incite global terror and lower America’s credibility even further.
If there is any evidence of crimes, why not allow these detainees to be judged by an independent international body, as was done with such painstaking circumspection 60 years ago at Nuremberg?
David Rupel is a retired state employee who lives in Olympia, Washington.
American Show Trials
Editorial / St. Petersberg Times
FLORIDA (October 1, 2006) — In the play A Man for All Seasons, Sir Thomas More and William Roper, the man who wishes to marry More’s daughter, have an exchange about the evenhanded application of law.
More says that he would extend the protections of the law even to the devil. Appalled, Roper retorts that to get at the devil he would “cut down every law in England.” More replies, “Oh? And when the last law was down, and the devil turned ’round on you, where would you hide, Roper, the laws all being flat? … I’d give the devil benefit of law for my own safety’s sake.”
More’s point of view had always been America’s point of view. Our country gave alleged evildoers of every stripe the benefit of due process. It was a point of national pride and a shining example of how America lived up to its reputation for securing liberty. It also was the only way to ensure that the right people — the truly guilty people — were the ones being punished. By giving them due process we enshrined it for ourselves.
But in passing legislation on the interrogation and trials of suspected terrorists, Congress has switched allegiances. Our nation now stands with Roper.
To get at those we suspect of terrorism, the constitutionally grounded protections that have defined us as a nation for more than 200 years have been seriously diminished.
– Until now, no one could be held indefinitely upon the order of the president without having access to the courts to challenge the legality of that imprisonment. Now Congress has handed the president the power of monarchs. The legislation bars the courts from hearing habeas corpus petitions from “unlawful enemy combatants,” who are essentially defined as anyone the president so designates.
– Until now, no evidence obtained by waterboarding or dousing a naked detainee with cold water and leaving him to contract hypothermia could be introduced in court. Now, evidence garnered through abusive or coercive means before Dec. 30, 2005 (the date Congress passed the Detainee Treatment Act) is considered valid as long as a military judge agrees.
The legislation includes numerous other ways in which traditional due process protections have been weakened or abandoned. Under the new law, the use of hearsay evidence is permitted; the right to a speedy trial has been eliminated; and sharp limits have been imposed on judicial review.
If one of the purposes of establishing military commissions was to demonstrate to the rest of the world that the United States still believes in fair trials and the rule of law, this legislation won’t fool anyone. It is largely a codification of the president’s deeply flawed tribunal system. The world will call them American show trials.
There was a moment during the Senate’s machinations over the legislation when it seemed that a group of moderate Republicans would force through changes that would comport more with our national values. Sen. John McCain and two other Republican senators fought to protect the terms of the Geneva Conventions and to prevent the use of secret evidence. Republican Sen. Arlen Specter led a fight to retain habeas corpus rights.
But in the end, only a concession barring the use of secret evidence was approved before senators fell into line behind the president’s demands. Only one Republican member of the Senate, Lincoln Chafee of Rhode Island, voted “no,” while 53 voted “yes.”
As for Democrats, there were 32 courageous “no” votes, while 12 supported the measure. To Florida’s shame, both senators, Republican Mel Martinez and Democrat Bill Nelson, voted “yes.” We expected better from Nelson, but perhaps his vote should not have come as a surprise. After all, he would ban desecration of the American flag at the expense of the freedoms it represents.
One of the measure’s worst aspects is that it hands the president the discretion to interpret the Geneva Conventions relative to prisoner treatment. By preventing the courts from ruling on cases involving breaches of Common Article 3 of the Conventions, Congress is effectively giving the president unilateral authority over interrogations beyond some explicitly prohibited acts.
This is the president who sent prisoners to secret CIA prisons, presumably so they could be abused, whose staff generated a memo providing legal cover for torture, who fought Congress’ efforts to bar cruel treatment of prisoners and who refuses to acknowledge that simulated drowning is a form of torture. Bush has proven that he cannot be trusted to uphold the Conventions, but now they will be in his hands.
With passage of this legislation, Congress has given Bush powers he once usurped — such as imprisoning people without charge. On habeas corpus and other points, the legislation will no doubt be legally challenged. Once again it will be left to the courts of this country to protect the fundamentals of our system of justice.
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