Monday, October 09, 2006

Legislating a war crime is a war crime

International lawyer Scott Horton in his Remarks delivered at the ASIL Centennial Conference on The Nuremberg War Crimes Trial, Bowling Green, OH, Oct. 7, 2006 concludes that when America is brought to justice by the world, and he speaks of it as a certainty, the lawyers who have made war crimes the policy of a nation will be found guilty of those crimes in an extraordinary degree.

"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

Professor Horton starts with the premise that

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

I urge you to read Professor Horton's calm but inexorable analysis of the shameful and barbaric Military Commissions Act of 2006 in its entirety at Balkinization, but I will reprint this terrifying yet reassuring conclusion here:

If the consequence of the Act is to immunize those who authorized these techniques from prosecution, is that lawful? The US position, articulated most recently in connection with Yugoslavia's efforts to immunize its military leaders, was that any such act would only provide evidence of a broader conspiracy to commit war crimes. Consequently, the grant of immunity is ineffective in the contemplation of the international community; moreover, those involved in purporting to grant immunity may thereby be roped into a charged joint criminal enterprise.

So. The Military Commissions Act of 2006 is a war crime, and any legislator who voted for it is a war criminal. Senator Stabenow, to my immense disappointment, voted for it; the rest of the names are here (Senate) and here(House of Representatives). I hope I live long enough to see them tried at the International Court of Justice.


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