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October 09, 2006
Walking in the Shoes of Moltke and Jackson or Yoo and Gonzales?
by de sententia
"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?"- Helmuth von Moltke, in a letter to his wife, Oct. 19, 1941
You have probably never heard of Helmuth James Graf von Moltke. He was a lawyer for the German defense ministry during World War II, and ultimately executed for opposing Hitler. As Scott Horton, chairman of the International Law Committee for the New York City Bar Association recently noted, Moltke "represents the ethical pinnacle of [the legal] profession." Long before US Supreme Court Justice Robert Jackson laid the groundwork for the Nuremberg Trials, Moltke developed a plan for holding German leaders accountable for violations of the Geneva Convention and international law. What led him to plot the ultimate trial of his countrymen and its duly elected leader? Writing to his family, Moltke stated that he stood before the court "...not as a Protestant, not as a great landowner, not as an aristocrat, not as a Prussian, not as a German...but as a Christian and nothing else."
For some of you, this may sound like a broken record: another post on torture. Readers of my blog know that it is all that I have been writing about lately, but it is the 'still voice within' that tells me I need to speak out. Maybe that is why I identify with Moltke.
Horton's article focuses on lawyers as war criminals, and compares and contrasts those lawyers who facilitated Hitler's arguments that the Geneva Convention did not apply to the German government's actions, with those lawyers working on behalf of the Bush administration. The fundamental question Horton addresses is whether we lawyers will follow in the footsteps of Moltke and Jackson, or Yoo, Addington, and Gonzales.
As I lawyer, I find the question an appropriate one. No, I do not think that Yoo, Addington or Gonzales will be facing a court of law anytime soon. As an African proverb states, "until the lions have their historians, tales of the hunt will always glorify the hunter." There will come a time when we all will have to answer for our actions. Ironically, before the United States granted itself immunity for its actions in its treatment of civilians and prisoners, the likelihood of another country seeking to hold the United States accountable for its treatment of detainees in a criminal proceeding was very low. Now that the United States has granted itself immunity, however, the likelihood of prosecution will increase. As Horton notes, the United States has used the efforts of those who seek to grant themselves immunity for their actions as evidence of a broader conspiracy to commit war crimes, justifying intervention. It is a paradox that is most certainly lost on the Bush administration.
The United States owes much to Montesquieu for postulating the theories of government that we put into practice when this nation was founded. He is one of my favorite political philosophers, and his warnings on government color my thinking. He once said that "there is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice.” Lawyers have a moral and legal obligation to refrain from word splitting and making distinctions without difference when it comes to fundamental questions of law relating to the protection of civilians and detainees. Tyranny in the name of justice is perpetrated when the president can lock up an individual, even an American citizen, without charge and without access to courts, simply by describing them as an "enemy combatant" in the so called global war on terror.
This is not the first time anyone has argued that the Geneva Convention does not apply, or that the actions of our leaders are immune from prosecution for violations. As citizens, lawyers, or parents, we can choose to follow the example of Moltke, or we can choose to follow the example of John Yoo, David Addington, and Alberto Gonzales. We can reaffirm law as one of the building blocks of civilization, or we can attempt to distinguish the law from covering our own actions. Moltke serves as an example for us all.
Posted by de sententia at October 9, 2006 04:14 PM
Comments
The Geneva Convention applies, even AFTER the Bush regime has excused itself & aforehand for what it may yet execute. The problem is that it says it is acting for us, which is why we must not be complicit. The first job of ANY next administration will be to dismantle the Bush edicts & restore the Rule of Law that checks & balances provide, even guarantee. How much worse lawyers might be complicit here may be in the area of "word splitting" which is different than parsing, a function of linguistics stemming from the verb root up. It is less a question of torture than it is in making law a tool of convenience; once done, it can then be applied to a host of areas by precedent. Lawyers may be more complicit, although surely not all, and citizen voters who refuse to see the evidence provided & military personnel who obey an illegal order are no better. The more one "plays ball," the more indelible his stains. An example now surely is the question of winability: more than 65% of ALL Americans disapprove of the war & its conduct, especially with the lies, deception & duplicity amuk. Yet, "stay the course" as it applies to continued illegalities may be a place for a balk by partisans, & their combined numbers in voting tallies may not represent their intent. It takes courage to pull the ballot lever, more than some can muster. Likewise, to create a paradox for this illicit regime is wasted effort. We may read of crimes the occupied citizens commit in killing their fellow citizens; yet, we have no 'moral high ground' to oppose their actions or impose our order when we are there for their oil [and they know it]rather than a high sounding but tinny democratic imposition from without. Democracy at the end of a bayonet will never succeed, and that was & is our dilemma.
This is NOT the first regime/administration that declared itself above the Rule of Law, but it's not what we as a people are about or our politics at its best either. We need to say so and in NO uncertain terms. We have NO war on terror, just a sham declaration, and that does not justify taking international law into one's hands.
Montesquieu is an important contributor to our democracy, but so is Tom Paine and many others. One of Reinhold Niebuhr's efforts in the political science field is LOVE, POWER & JUSTICE and certainly apropos, especially as he applies the Christian Ethic with Law. If von Moltke said he ultimately had to stand as a "Christian and nothing else," Niebuhr can help us even more as we put the mirror to our country's actions. .....and to ourselves.
Posted by: Arden C. Hander at October 9, 2006 11:30 PM
Arden,
65% of Americans disapprove of the war. But less than 50% of Americans voted in the last presidential election. It takes more than courage to vote: it takes access and belief. Access to voting registration and the ballot box, and belief that representative democracy works. Both have been undermined by the Bush administration, and neither has been given the focus its needs by any administration since the first step was taken in passing the Voting Rights Act (and no, renewing this does not equal taking the next step).
In a time when voter turnout is very low, but the stakes are very high, politics becomes a game of playing to your big money donors while talking to your exteme base, whether its the religious Right or the Dean/Lamont bloggers. This double-face produces money for ads, which then mobilize the extremes of the political spectrum to go vote. (Especially in primaries, the only opportunity we have to direct the monopoly of political power in the Dems and Repubs.)
Speakign of voting, lets hope the Dems retake at least one house of Congress in a few weeks. If so, then we can start to talk about bringing Bush and Co. to justice. Congressional hearings on Iraq, Gitmo, Katrina, and wire-tapping are an essential step to bringing the truth to light, raising public awareness, forcing Bush's hand the next two years, and guiding the next administration to a more just policy.
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