It amazes me that Barack Obama, who taught constitutional law at the University of Chicago Law School for more than a decade, would be unaware of the legal controversy surrounding Nuremberg and the commotion it caused within the U.S. Supreme Court. If Obama taught the U.S. Constitution to his students the same way the Reverend Jeremiah Wright preached to his congregation then heaven help us all.
One of the obvious implications of last week’s Supreme Court decision, which granted inmates at Guantanamo Bay the right of habeas corpus to appeal their detention, is that if Osama bin Laden were captured alive by U.S. forces, the al Qaeda founder could end up in a U.S. civilian court afforded all the protections of law abiding American citizens.
When Barack Obama was asked about this on June 18th, he suggested that Osama could be adjudicated in the manner of the Nazi War Crime Tribunals at Nuremberg. Obama argued, “I think what would be important would be for us to do it in a way that allows the entire world to understand the murderous acts that he’s engaged in and not to make him into a martyr and to assure that the United States government is abiding by the basic conventions that would strengthen our hand in the broader battle against terrorism.”
The following day, John McCain replied on his website giving Obama a short history lesson. McCain wrote, “Unfortunately, it is clear Senator Obama does not understand what happened at the Nuremberg trials and what procedures were followed. There was no habeas at Nuremberg and there should be no habeas for Osama bin Laden….By citing a historical precedent that does not include habeas, he sends a signal of confusion and indecision to our allies and adversaries and the American people.”
It also signifies that Barack Obama does not understand 20th Century history. Yet this should hardly come as a surprise. Up until a few weeks ago, Obama thought it was the Americans, not the Soviets, who liberated Auschwitz.
How did the Nuremberg Trials come about in the first place? They came about when Nazi Germany surrendered to the Allied powers in May 1945. The last time I checked Osama bin Laden is the founder of al Qaeda, a terrorist organization and not the head of state or head of any government. How does an entity that is not a nation state (although harbored by some) enter into an instrument of surrender? Terrorist organizations like al Qaeda have changed the terms of war as we understand it.
Nuremberg was prosecuted and adjudicated by an international team consisting of lawyers and judges from the United States, Great Britain, France and the Soviet Union. If Obama thinks Osama has the right to be heard in a U.S. civilian court does he also think we should involve lawyers and judges from other countries into the proceedings?
Or does Obama think Osama should be tried in an international forum like, well, Nuremberg? The Allies chose to conduct the tribunals in Nuremberg because that is where the Nazi Party was founded. Under those circumstances, wouldn’t be more appropriate for bin Laden to be tried in Kabul rather than in a civilian court in New York City?
It also must be remembered the Nuremberg trials were not universally praised at the time they occurred. Many questioned the legitimacy of such a proceeding. The Chief Prosecutor for the United States was Robert H. Jackson, who took a leave of absence as an Associate Justice of the Supreme Court to participate at Nuremberg. In May 2003, when the Robert H. Jackson Center was being dedicated in Jamestown, New York, the late Chief Justice of the Supreme Court William Rehnquist gave the address. Rehnquist, who began his legal career as a clerk for Jackson at the Supreme Court after graduating from law school at Stanford University, drew attention to the criticism of the proceedings. He pointed out that there were objections to a Supreme Court justice acting as a prosecutor. Jackson’s colleague, William O. Douglas, thought Jackson’s appointment violated the separation of powers and that Jackson ought to resign from the bench.
Rehnquist also discussed the objections to the very nature of Nuremberg:
The second issue was whether or not this sort of trial – not only the prosecutors, but also the judges – coming from the victors, would be in fact if not in form a “kangaroo court”….Legal scholars also questioned whether the whole idea of such a trial where there was no existing body of law did not violate the principle embodied in the ex post facto prohibition in the United States Constitution. That provision requires that before criminal liability may attach to a person for a particular act, a law making the conduct criminal must have been on the books before he committed the act.
(www.supremecourtus.gov/publicinfo/speeches/sp_05-16-03.html)
Rehnquist also mentioned that Harlan Fiske Stone, who was Chief Justice of the Supreme Court during Nuremberg, did not look kindly upon Jackson’s conduct overseas. While Justice Stone could have cared less what happened to the Nazis he wrote, “(B)ut it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime.”
Rehnquist further noted that Stone was miffed that Jackson had not informed him of his appointment until it was announced publicly by President Truman.
The Nuremberg Trials were an unprecedented response to an unprecedented calamity. Similarly, the military tribunals at Guantanamo Bay are an unprecedented response to an unprecedented calamity. The United States is fighting a war against an Islamic fundamentalist organization that does not fight under the rules of engagement and instead carries out acts of terrorism against innocent civilians on a mass scale. The United States must adapt to those unprecedented circumstances through innovative methods of adjudication.
It amazes me that Barack Obama, who taught constitutional law at the University of Chicago Law School for more than a decade, would be unaware of the legal controversy surrounding Nuremberg and the commotion it caused within the U.S. Supreme Court. If Obama taught the U.S. Constitution to his students the same way the Reverend Jeremiah Wright preached to his congregation then heaven help us all.
Kangaroo courts are one thing. But they are better than the alternative the British and Soviet leaders were proposing – summary execution. The people who aren't going to be convinced – ever – will regard them both the same way, but people who actually care about evidence can decide for themselves if a court is a leaping marsupial or not.
I'm not worried about bin Laden getting "all the protections of law abiding American citizens." Given the evidence against him, a conviction would be inevitable. (If you disagree, go ahead, propose a detailed legal strategy that'd protect him.) But it would show that we are utterly different in kind than the thugs who behead people on videotape for imagined culpability.
I am pleased to see that Mr Ingles has at least brought some rationale to this article.
Mr Goldstein seems to suggest that because Hitler and his government were actually part of a ‘state’ that some special treatment should be accorded them compared to bin Laden. I don’t know if Mr Goldstein is aware that several millions died as a result of a head of state having the power accorded him by such a position – perhaps we are fortunate that the likes of bin Laden are not ‘heads of state’.
History, as I recall it, recounts the German nation exterminating 6 million Jews, causing a world war that killed tens of millions more, and reducing the human species to less than slugs. The only reason that Hitler and the German people were able to execute such atrocities on such an enormous scale is that we have such things as government, and people who pay uncritical homage to the actions of their governments.
History tells us that virtually all atrocities this world has witnessed are a result of one person, or group of people, being granted power that no human being should have without very strict controls on the exercise of that power (which no government today has).
To compare bin Laden to the Nazis is simply silly. The only way such a comparison can be made is if we compare Nazism to Islam, but I expect that few have the courage to make that comparison – that would require courage – something lacking in all this rhetoric.
Terrorism has been around for a long time, well before bin Laden made his debut – the IRA, PLO, ETA, and numerous others. Their methods were the same as today’s terror mongers. And what did we do?
So why address the real issue when we have Obama?
The Obama/Osama rythmic references are really quite pathetic even if, like me, I can't stand Obama, or at least, not as much as I can't stand McCain.
Joseph BH McMillan http://www.freedomvrights.com
Ray & Joe
Let me remind you that it was Obama that brought up the Nuremberg trails, not Mr. Goldstein. I argee with Aaron that Obama's comments are off base. So we catch bin Ladin, then what? 1. Shoot him on the spot? 2. A trail in military court, then shoot him? 3. A trial in L.A. Superior Court, Judge Lance Ito presiding, found inocent, goes off to play golf and hunt for the real perps?
Dear Mr Ivanovich,
Perhaps you are right about the United States Judicial system – perhaps all guilty people are freed, and the innocent sent to prison. My experience of US courts is limited, but I have more faith than you seem to have.
And I don’t seem to remember Americans advocating the sort of summary and ‘innovative’ justice you appear to be proposing when it came to Irish terrorists killing innocent people. All we saw then were bleeding-hearts about courageous Irish ‘freedom fighters’ not getting a fair crack at the justice whip (even though they got far more than they ever deserved – because of American support).
And do you not remember all the bleeding hearts when it was claimed (or discovered) that Thatcher had instituted a shoot-to-kill policy in respect of these Irish terrorists?
Then, it seems, ‘justice’ for terrorists was paramount – terrorists could not get enough of it from those Americans who fantasized about the quaint, ‘freedom-loving’, IRA killers.
And as a result of US support, today IRA terrorists strut around Parliament in Britain, get invited for ‘talks’ in Downing street, and are feted in the United States as great heroes. It makes my stomach turn. It’s like bin Laden strutting around Congress, and visiting the WH for negotiations.
And Mr Goldstein refers to McCains’s statement about “Habeas” at Nuremburg. It seems that neither Mr Goldstein nor McCain have the faintest idea of what “Habeas” actually means. There was no need for “Habeas” at Nuremburg because the Defendants were charged, had lawyers who had access to the evidence against their clients, and defended them in a Court of Law. The Rehnquist quote in the article refers to an entirely different legal principle – that people cannot be charged with an offence that was not criminal at the time it was committed. All Nuremburg goes to show is that justice is in the eye of the victor.
Basically, the whole article is nothing more than a ridiculous attempt to link the surname of Obama with the first name of bin Laden while demonstrating a total ignorance of basic legal principles.
Joseph BH McMillan http://www.freedomvrights.com
Did I say "all guilty people are freed, and the innocent sent to prison"? I don't think so! But it's true that I don't have much faith in the court system in this country.
"Basically, the whole article is nothing more than a ridiculous attempt to link the surname of Obama with the first name of bin Laden while demonstrating a total ignorance of basic legal principles."
If that's all you took from the piece, then I think the total ignorance is on your own part, with all due respect. Don't worry – nobody's smearing Osama Bin Laden's good name by associating it with Barack Obama's. Try and pull yourself away from the holy altar of political correctness and keep your comments relevant to something substantive instead of making up boogeymen to fight in the name of idiocy – there's plenty of people on the left to do the job for you.
Now, in regards to your comments: Osama Bin Laden (I'm going to warn you right now that I may use Barack Obama's name later in this paragraph – as juvenile and petty as that may be) being given access to American civil courts is not even remotely the same thing as Nuremberg in any way, shape, or form. Nuremberg was not an American court. It was not subject to American laws, customs, or judicial oversight. Nuremberg was an international court. Those being tried at Nuremberg did not have Habeas corpus rights **IN AMERICAN COURTS**. This is relevant, because our multiethnic, utterly Christian and wholly American (and goddamn anybody who says otherwise) foreign policy savior ("Barry O." we'll call him henceforth, in the interest of racial and ethnic sensitivity) said:
"I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. *Now the Supreme Court upheld that principle yesterday.*" (emphasis added)
The Supreme Court did nothing of the kind. The decision of the SCOTUS to allow foreign fighters access to United States civil courts is utterly and completely different than the creation of an international court for the trial of high profile Nazis by the dominant three parties after world war II. The difference between the two can be illustrated by a domestic terrorist versus an international war criminal. Let's take a practical example: Timothy McVeigh, being a citizen of the United States, and having committed a terrorist act inside the United States, against the United States, was tried in a United States civilian court, with all of the constitutional rights that citizenship of the United States entails. Osama Bin Laden, on the other hand, is not a citizen of the United States, has committed no crime inside the United States, but nevertheless is acting in a military (or at least quasi-military, even by Raymond Ingles standards) capacity against the United States. If he is captured, he should not have Habeas corpus rights within United States civilian courts. He is not a civilian, he is not a domestic criminal. He is the head of an international military (or quasi-military) organization that engages in acts of terrorism and unlawful combat.
If Barry O. wants to try Osama Bin Laden in an international court of justice, with his "rights" determined by a panel of international actors, THAT is a parallel to Nuremberg. Trying him in civilian court with the full rights of an American under the constitution is something else entirely. The former does not affirm or give precedence to the latter. Barry was incorrect. Barry, 0. Reality, 1.
Also, just in the interest of clarity, Habeas corpus is defined thusly:
"the name of a legal action, or writ, through which a person can seek relief from unlawful detention of himself or another person."
Nuremberg defendants were afforded no such opportunity – their detention was deemed lawful ahead of time by the very parties that would create the court that would try and sentence them. Unnecessary indeed. In any case, if one defines Habeas corpus as "Defendants were charged, had lawyers who had access to the evidence against their clients, and defended them in a Court of Law.", then one is using an incorrect definition. I guess then that we can add Mr. McMillan to the cadre of people involved in this discussion who "haven't the faintest idea of what “Habeas” actually means.". Besides of which, all of the components described above are present in a military tribunal as well, basically dissolving the justification for trying international terrorists in domestic civilian courts.
The type of court Osama bin Laden is tried in is utterly irrelevant anyway, is it not? Who exactly are we trying to impress? Will it somehow add legitimacy to the trial in the eyes of the international community who sympathizes with anti-American terrorists, or the anti-American terrorists themselves, if Osama Bin Laden is convicted by a civilian jury rather than a military tribunal judge, or a panel of American-appointed pinheads on an "international court"? For thinking, rational people, no explanation is necessary. For insane zealots, no explanation is possible. Here's hoping we save ourselves the headache and just kill the piece of crap in the course of military operations.
Dear Mr Mulligan, I think we can at least agree on the sentiments expressed in your ultimate sentence.
The Writ of Habeas Corpus as you describe it is what we could call the layman’s definition. The way “unlawful detention” is challenged is by a person being brought before a court of law so that the court can examine the cause of his detention, and determine whether it is justified.
A person’s detention, in any civilized country, is governed by that country’s judicial system. ANYONE within the jurisdiction of a country can avail themselves of the legal procedures of that country. Otherwise, if your analysis were correct, I could be arrested in the United States (or elsewhere and taken to the US) for no reason whatsoever (because I am not American), the key thrown away, and I would be denied any redress (and yes, I’m sure you may think that wouldn’t be such a bad thing!). So if, for example, my diatribes against Islam were construed as somehow supportive of the likes of bin Laden, I could then be arrested on my arrival in the US (or snatched from my tent in France or Spain), and thrown into some prison somewhere with absolutely no ‘procedural right’ to challenge my detention.
We can, of course, get all emotional about the types held at Gitmo (and I wish we had simply killed them on the battlefield, if that is where they found them), but we can’t have it both ways. If we subscribe to the idea that people have some ‘inalienable rights’ then we can’t start picking and choosing which people have those rights, and in what circumstances they are allowed to exercise them. That would render them less than useless. In fact, Amendment IV specifically refers to people “held to answer for a capital, or otherwise INFAMOUS crime.” And I don’t see that the proviso to that Amendment applies in the present case.
You in fact read me totally wrong. All my writings warn of the dangers that a ‘rights obsessed’ society, judiciary and government present to our freedom. The SCOTUS decision simply confirms my warnings.
I usually fall into the Scalia camp of thinking, but on this occasion I think even that camp had to do some fancy footwork to try and avoid the provisions of the Constitution and Bill of Rights, and all those lofty Treaties that we in the West thought were just ever so clever when we drafted and subscribed to them – the Geneva Conventions, that is.
Perhaps the problem is not the Court’s decision, but the Constitution. Perhaps we are requiring the “man to wear still the coat which fitted him when a boy,” as Jefferson described those who pay “sanctimonious reverence” to the Constitution.
But if there is to be a change to the way things are done to deal with the danger, then it should be the People who make that change – by way of amending the Constitution – not by Executive or Legislative dictate.
Once that precedent sets in, we have what is commonly known as dictatorship. And though some may be comfortable with that sort of government under the present Administration (and Congress), you may just come to regret granting such power when someone less in tune with you political ideology gets into power.
You may just end up with someone described by Nietzsche as one “who would picture the unexceptional and unconditional aspects of 'will to power' so vividly that almost every word, even the word 'tyranny' itself, would eventually seem unsuitable, or a weakening and attenuating metaphor.”
So my point is actually very simple – the Constitution and Bill of Rights are fundamentally defective, so let’s get round to addressing that issue to avoid Scalia’s predictions of “devastating” and “disastrous consequences” of the Court’s decision – rather than name-calling Obama to rhyme with Osama.
Joseph BH McMillan http://www.freedomvrights.com
Dear Mr Ivanovich,
My apologies if I put words into your month. I just thought it not unreasonable to assume that if the likes of bin Laden would be found ‘innocent’ in an American court, before an American jury, that American juries must be unable to identify the guilty, so they are set free. The converse to that must mean that the innocent are incarcerated, because American penitentiaries are stuffed full of convicts. Just goes to show how assumptions can play tricks on us. But at least I got the part right about you not having faith in US Courts.
As the SCOTUS decision (the subject to this article and debate) shows, there is a serious problem with the whole system. I don’t know enough about you or your thoughts to assess your suggestions on how to fix the mess, but I have tried to put forward my own recommended solutions.
As I have argued, the Constitution should be subjected to a set of clear and simple Principles (10 of them) which would guarantee the collective and individual freedom of the People. Those Principles are modeled on the Ten Commandments.
All branches of government (including the Judiciary) would have the prime objective and responsibility of implementing those Principles, and protecting the freedom of the People.
So, as in the case under consideration, the task of SCOTUS would have been to determine whether granting the detainees (or terrorists as I prefer to call them) access to the courts would, or could, threaten the freedom of the People as defined by the Ten Principles of Freedom – and not to determine whether any ‘rights’ of these scumbags had been, or are being, infringed.
The focus would be entirely different – protecting the freedom and security of the People v. protecting the ‘rights’ of a bunch of terrorists. As I say in my book, I wouldn’t have a problem with according these people SOME procedural rights (like let someone look at their case to determine whether their continued detention served the purpose of protecting the American People and their freedom), but not to pander to their ‘rights’.
Unfortunately, I can’t explain the arguments in depth in such a short Comment, but I’d be happy to send you a complimentary copy of the book if you would be interested in looking at the arguments further.
Joseph BH McMillan http://www.freedomvrights.com