Bush Trials: What lawyers can and can't get away with

Many lawyers believe that their knowledge of the law places them beyond its reach. After all, they spend their lives inventing elaborate means for their clients to circumvent justice.

But there are some things a lawyer just can't do. The Justice Trial, one of the trials at Nuremburg after World War II, set the limits. According to Douglas O. Linder,

"prosecutors had to show that the defendant consciously furthered...human rights abuses."

Among those on trial were judges who sentenced Jews and other Nazi victims to death. Eventually, again according to Linder,

“the police were given carte blanche to punish all 'criminal' acts committed by Jews without any employment of the judicial process.”

Those accused were not only judges, but also members of the Ministry of Justice who wrote decisions that made such treatment legal under German law. They were not necessarily members of the Nazi party. Instead, they were frequently

“ultraconservative nationalists who were largely sympathetic to Nazi goals.”

The men on trial had not participated in the worst excesses of the Nazi regime. In comparison with others who were more directly involved, they were minor figures. Some had sentenced hundreds to death, some had only facilitated the transfer of prisoners to the SS. But the court at the Nuremburg trials concluded that their crimes were just as great, because

The prostitution of a judicial system for the accomplishment of criminal ends involves an element of evil to the State which is not found in frank atrocities which do not sully judicial robes.

Crimes against humanity are defined in the War Crimes Act of 1996 to be violations of the Geneva Conventions, that is, crimes

...committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health.

Among those specifically protected by the Conventions are prisoners of war. Notice that the Convention doesn't get bogged down defining torture. It could be inhuman treatment or willfully causing great suffering. It is clear the delegates to the convention forsaw the likelihood that someone might try to define torture narrowly in order to avoid prosecution. It is just as clear that they made the definition very broad so that there was no room to weasel out.

John C. Yoo, in his capacity as Deputy Assistant Attorney General in the Office of Legal Council(OLC), gave the opinion that members of the US government, including soldiers, need not regard the War Crimes Act as binding because the President was given the sole responsibility for waging war by the constitution and later court rulings. He failed to acknowledge that the responsibility for treatment of prisoners of war was given to the Congress, both by the Constitution and subsequent court rulings. Therefore, his opinion, submitted as a memo to the Attorney General, could be considered to consciously further human rights abuses, which the Nuremburg Justice Trial set as the standard for determining guilt.

Jack Goldsmith took over the OLC in 2003. He withdrew the memos written by Yoo, writing that he was

“astonished by the deeply flawed and sloppily reasoned legal analysis”

But its ideas informed Bush administration policy for 2 years, while an unknown number of prisoners were tortured in accordance with its faulty legal reasoning, an unknown number of innocents locked up without a trial, and an unknown number of people killed. Yoo performed exactly the same function for the Bush administration that those jurists had provided to the Third Reich: He gave their crimes the color of law.

Furthermore, Yoo's action sullies the reputation of the United States. It turns us from a 'City on the Hill', whose existence inspires the world, into a pariah, the butt of insults from our friends as well as our enemies. Instead of using our strength to help the weak, we torment helpless individuals already in our power and deny hold them indefinitelyl. How can we boast of our liberties and rights when we have so clearly abandoned them?

So what should be done? Should we, as many suggest, investigate the Bush administration to find the truth? Or should we punish the wrongdoers and set an example for future apparatchiks of what happens when someone robs another of their rights and dignity as human beings?

Look at it this way. John Yoo is currently enjoying the rights and privileges of a successful party hack. He is a tenured professor at one of the country's most prestigious law schools. His case was referred by the OPR to the Bar Association for possible disciplinary action. But he won't even need to give up teaching if he is disbarred. So what penalty will he suffer?

The jurists on trial at Nuremburg committed similar crimes, some worse, some not so bad. Some served life sentences, some were acquitted. But the important thing is, they were brought to trial. The people whose rights they violated had their day in court.

Just as we should never forget the Jews and gentiles who died in the holocaust, we should not forget the people who suffered torture because someone thought it was a good idea and John Yoo was a willing stooge.