Friday, December 7, 2007

A little history...

Let's take a little peek at history...

United States v. Altstoetter: Lawyers As War Criminals
Concerned about the level of resistance faced by German troops in the occupied territories, Hitler instructed Field Marshall Keitel to issue a special decree authorizing extraordinary measures pursuant to which political suspects would simply "disappear" to special detention facilities and might face summary court proceedings. The death penalty appears as the punishment most frequently contemplated. The decree, issued on the same day the Japanese attacked Pearl Harbor (December 7, 1941) and as the German drive on Moscow stalled and the Soviet counteroffensive had begun, is known as the "Night and Fog Decree" (Nacht- und Nebelerlass), a reference to the covert action it authorized. Contemporaneous documents make clear that it was motivated by the high level of casualties German soldiers were sustaining behind the front in occupied territory. Pacification of this territory was given a high priority.

A team of Justice Department lawyers worked with Keitel and his team at the German General Staff (OKW) on the drafting of the decree and further steps for its implementation. This included a series of highly particularized rules setting out how such detainees were to be treated by police, justice officials and others. The rules specified how such individuals would be permitted to make wills, issue final letters of farewell, what would be done with children born to detainees and how their death could be recorded in the registry. Other lawyers prepared parallel orders creating special secret courts and detention facilities for those interned under the Nacht- und Nebelerlass. These courts were crafted under domestic German law and thus constituted a projection of German law into the occupied territories.

These arrangements flouted the protections of the Hague Convention, specifically the right of "family honor, lives of persons" and the right "to be judged under their own laws." To the extent applied against uniformed service personnel, they also violated the Geneva Convention on Prisoners of War of 1929. However, the Justice Department lawyers advanced the view that the Hague and Geneva Conventions were inapplicable because their adversaries did not subscribe to these documents. This decree was applied brutally, and with particular force in France. A total of at least 7,000 persons were detained; a large number of them perished.

The Justice Department lawyers justified these acts as steps available to an occupying power in order to protect its troops against terrorist acts or insurgency. Further, the occupied territories could be divided, roughly, into three categories: (i) areas directly incorporated into the German State (for instance, Austria, Alsace-Lorraine, the Eupen-Malmédy region of Belgium, Danzig and portions of Poland); (ii) areas under German occupation and direct administration (such as Bohemia and Moravia); and (iii) areas under puppet régimes (such as Hungary and Slovakia). As for the first, they asserted the right to treat persons found within those territories under German law. As to the second, they claimed the right as occupier to promulgate new rules and orders, and to derive them from Germany. As to the third, they relied on the acquiescence of régimes like Vichy France and Hungary. Their positions on these points were at least colorable from a legal perspective.

The Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, "not farmers or factory workers," they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were "recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war." That is to say, they were customary international law. Further, the United States charged, this decree "would probably cause the death of human beings," grounding a charge of homicidal intent.

After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years' imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.

The Present Crisis
Between the fall of 2001 and early 2004, US Government lawyers engaged many of the same issues and took decisions very close to those taken by von Ammann and his colleagues in the German Justice Department. In particular, the Nacht- und Nebelerlass has a close cousin in the United States extraordinary rendition project on a policy plain, though we should quickly note two essential distinctions: the total throughput in human terms has been dozens, not thousands of persons, and it has not involved death sentences, though not a few persons (to be exact: 98) have died in incarceration under circumstances suggesting that torture was involved, if they were not indeed tortured to death. These 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 thoughts that these rules were "quaint" and "obsolete," they reflected the "outmoded notions of chivalric warfare." This was cited as an aggravating factor justifying a sentence of 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. The Hamdan decision presents a straight-forward interpretation of the Geneva Conventions, finding that Common Article 3 was applicable to detainees in the War on Terror who did not qualify for prisoner of war protections. This position is also identical to the view embraced by the organized bar in the United States in 2003, in a series of reports that warned the Administration that its legal reasoning was both radical and isolated. But the most striking aspect of the Court's opinion was its forceful and repeated references to the War Crimes Act of 1996. There is little doubt that the Court was concerned that the Administration's policies were not just inconsistent with Geneva, but in fact potentially criminal under American law.

Scott Horton, Balkinization(Oct. 8, 2006)

Now, a little update, courtesy of Sen. Whitehouse and Emptywheel...

As soon as (or even before) Mukasey came in as AG, the OPR investigation into the legal opinions that justified the warrantless wiretapping was reopened. When it was reopened, Marty Lederman was skeptical that OPR would get very far:

According to a DOJ spokesperson, the OPR investigation will instead focus on two questions: whether DOJ attorneys "adher[ed] to their duty of candor to the court [presumably the FISA Court]"; and whether those attorneys "complied with their ethical obligations of providing competent legal advice to their client." (NOTE: "Officials said it was unlikely that either of the inquiries would address directly the question of the legality of the N.S.A. program itself : whether eavesdropping on American soil without court warrants violated the Foreign Intelligence Surveillance Act.")


Thus, since John Yoo apparently was doing exactly what his client asked him to do, it is difficult for me to see how he could be said to have provided "incompetent" legal advice or to have breached a duty to a client who understood, and approved, exactly what the lawyers were doing.

But after an interesting discussion, he makes one caveat:

P.S. I should add that OPR might uncover information that demonstrates distinct ethical or other legal lapses -- such as a smoking gun showing that John Yoo and OLC did not really believe the advice they were giving; or evidence that OLC intentionally declined to seek the legal views of others within the Department because it knew that such views would undermine the office's desired conclusions; or evidence that DOJ and others provided fraudulent misrepresentations to telecoomunications providers in order to induce their cooperation; or, of course, evidence that DOJ lawyers dissembled to the FISA Court. It would be entirely appropriate for OPR to investigate, report and condemn such conduct. I just don't quite see the value in OPM evaluating the bona fides or "competence" of OLC's legal advice.

What if, I wonder, OLC had entirely rewritten the Constitution? What if it was more than just saying (as Marty describes), "that the President has an article II authority to disregard FISA" and instead saying, "the President has an article II authority to interpret article II authority as he sees fit"? Or, as Sheldon Whitehouse described it:

  1. "I don't have to follow my own rules, and I don't have to tell you when I'm breaking them."
  2. "I get to determine what my own powers are."
  3. "The Department of Justice doesn't tell me what the law is, I tell the Department of Justice what the law is."

Is that something that qualifies as a distinct legal lapse?

These legal opinions are--as we speak--under review. I have no clue if the sheer audacity of these opinions counts as something within OPR's mandate. But they may well rise to that level.

Wednesday, November 28, 2007

Fluff and Fold...

*sigh* The MSM's persistent desire to launder Shrub's dirty codpiece has consistently proven they have no apparent qualms in regurgitating the WH memes... There is some light at the end of the tunnel, albeit, dim light...

To Wit:

Modo writes in her New York Times opinion column that Rice is running "a seat-of-the-pants operation, which seems designed to rescue the images of a secretary of state and president who have spent more time working out in the gym than working on the peace process. . . .

"After subverting diplomacy in his first term, now W. does drive-by diplomacy, taking a playboy approach to peace. He wants to look like he's taking the problem of an Israeli-Palestinian treaty seriously when his true motivation is more cynical: pacifying the Arab coalition and holding it together so that he can blunt Iran's sway.

"When they invaded Iraq rather than working on the Palestine problem, W. and Condi helped spur the greater Iranian influence, Islamic extremism and anti-American sentiment that they are now desperately trying to quell."

Those who are praising the summit are doing so without much enthusiasm.

The Wapoo editorial board writes: "The considerable skepticism that surrounds the new talks is justified. Yesterday's meeting resembled the Madrid peace conference arranged by the first Bush administration in 1991, a festival of speeches followed by negotiations that soon bogged down. Yet 16 years later there are some encouraging differences, starting with the far clearer commitment of the Israeli and Palestinian leaders to make peace."

David Ignatius writes in his Washington Post opinion column: "Something real did happen in Annapolis. The process that began Tuesday may not lead to peace, but that doesn't mean that Annapolis was simply a gaudy, empty show. . . .

"Critics talked for months about how the conference wouldn't happen and wouldn't matter anyway. Well, it did, and it does. A peace process, with all its ambiguity and occasional sophistry, is underway."

The USA Today editorial board writes: "Even at the best of times, issues that Bush and Rice want to resolve by the end of next year -- how to divide Jerusalem, how many Palestinian refugees should be allowed to return home -- are hard and solutions have been elusive.

"Even so, the Mideast peace process has always been about years of frustrating toil punctuated by sudden breakthroughs. By rolling up their sleeves and getting everyone back to the bargaining table, Bush and Rice have taken the first vital step on a journey that eventually may look more promising."

The NY Times editorial board writes: "In his opening speech, President Bush, assured Israel and the Palestinians that 'America will do everything in our power to support their quest for peace.'

"We hope that he means it -- and that he makes that clear to all those White House aides who keep extolling the virtues of not getting too involved.

"If there is any hope of pulling this off, Mr. Bush and his secretary of state, Condoleezza Rice, will have to invest their time, their reputation and their best arm-twisting, including offering bridging proposals to nudge both sides beyond their long-fixed positions. There's no chance at all if Mr. Bush goes back to the sidelines.

Friedman writes in his New York Times opinion column: "President Bush said in opening the Annapolis conference that this was not the end of something, but a new beginning of Israeli-Palestinian negotiations. You won't need a Middle East expert to explain to you whether it's working. If you just read the headlines in the coming months and your eyes glaze over, then, as the Israeli columnist Nahum Barnea put it to me, you'll know that Annapolis turned the ignition key 'on a car with four flat tires.'

"But if you pick up the newspaper and see Arab and Israeli moderates doing things that surprise you, and you hear yourself exclaiming, 'Wow, I've never seen that before!' you'll know we're going somewhere."

The LA Times editorial board writes: "Where there is even the faintest hope, we must protect and nourish the fragile embryo of peace."

H/T Froomkin

Tuesday, November 27, 2007

A Tale of Two Sides...

Let's hear it for Photo-ops... In Annapolis, Shrub had wonderful pix taken of himself with Olmert and Abbas shaking hands, ooh, I'm getting all warm and fuzzy... Not! Let's see what the other sides, had to say about it...

From the BBC: "In Jerusalem, Israelis gathered at the Western Wall on Monday to protest against the conference. Israeli opposition leader Benjamin Netanyahu labelling the meeting 'a continuation of one-sided concessions'."

Next, Hamas' reaction;
Hamas controls the internal affairs of the Gaza Strip and says it will not be bound by anything decided in Annapolis. In Gaza on Tuesday thousands of people joined a rally protesting against the talks, many of them chanting 'Abbas is a traitor' and 'We will not recognise Israel'."

I think Bibi nailed it... It appears to be headed down the same dismal road as Oslo, and the myriad others that litter the landscape of Israeli/Palestinian relations...

Monday, November 26, 2007

Mr Flynt goes to Washington...

Hmmm... Has the shoe dropped? Did Sen. Lott truly retire to 'spend more time with the family', the oldest cliche in DC? Or did he retire to head off the Lobbying restrictions that are about to be imposed upon all Senators and Reps this Jan... The latter makes the most sense, but, I really think Mr Flynt has a little something to do with it... As he had stated previously to Cavuto, 'a shakeup is about to hit DC'... Since he has a fetish for hypocrisy, the #2 Repug Senator would certainly fill the bill... Stay tuned...
Update 1: HUSTLER Magazine has received numerous inquiries regarding the involvement of Larry Flynt and HUSTLER in the resignation of Trent Lott. Senator Lott has been the target of an ongoing HUSTLER investigation for some time now, due to confidential information that we have received.
Not definitive yet, but...

News, Politics, and other Fuckery...

Aloha, Ya'll!
I shall attempt to give a daily rundown on my beggarly views of the News, Politics and other Fuckery that catches my fancy. I'll endeavor to entertain, educate, and enlighten. I'm beholden to no one, so I'll strive to give the unvarnished truth as I see it! Please feel free to comment! I'm a liberaltarian, so I'm inclined to bash Bushco at every available opportunity. That'll certainly keep me busy, at least until 20 Jan. 2009...