When Lawyers Are War Criminals

Below is a must-read now that the Congress has passed the Military Commissions Act.

Remarks delivered by Scott Horton at the ASIL Centennial Conference on The Nuremberg War Crimes Trial, Bowling Green, OH, Oct. 7, 2006.

I've noted the salient points below, but you can read all of it here. What that man in the White House and the government lawyers have demanded of Congress and what Republicans and the enabling Democrats in Congress, most of whom are lawyers themselves, have given them on a silver platter is pure mendacity and a clear threat to all of us; I cringe at what it means for our country - it tears at the very foundation of American Justice.

In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. [...] 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 [Robert] 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?

These are questions [...] that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system.

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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. But before getting to that point, I want to deconstruct some myths that the Administration has generated to obscure their entire process.

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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 wording 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.

The Act does not alter the fact that these practices are outlawed by Common Article 3. However, by creating a series of specifically chargeable crimes that weave and bob through the historical offenses, the drafters apparently seek to make it more difficult to prosecute these offenses in US courts.

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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.