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Old 11-29-2006, 12:10 PM   #34 (permalink)
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To everyone who cited the US military oath as justification to obey all orders; there is a fair rebuttal to your arguments, early in the second quote box in my last post.

Deltona Couple, I may have used "too wide of a brush to paint you with", and I apologize. We do agree on a number of things, but I think that you should consider that I am not demanding rejection of any order by a soldier as a minimum requirement of my support for their service in Iraq, or for that matter, in Afghanistan. I am only looking for a shift in the sentiments of too many of them...that they behave less like a "battered wife". (as in; thank you for the slap across my cheek, sir....may I have another?). They can do that by showing political support for Mr. Bush in lesser numbers, by reducing to a small minority the number of troops who believe that their "service" in Iraq is "payback" to Saddam for his role in the 9/11 attacks, by refusing to clap and cheer when ordered to assemble en masse to provide an audience for a Bush "media op"....props who appear at one of his speeches, or by questioning policy....by heaven forbid....voting for non-republican candidates in elections...., and by say....1/2 of one percent of them refusing orders to go to Iraq the first time, or the fifth time.....refusing to reenlist, refusing to enlist....

I guess it comes down to my reaction that it would be so much easier to "support the troops", if they didn't "seem", en masse, to "like the mission", so much. I react with revulsion to my perception of their unquestioning and unbridled "enthusiasm", for what they have been ordered to do in Iraq, and to an extent in Afghanistan. Am I the only one, who is familiar with, what I take to be a common expression among our troops....a bastardization of the new version of the Vietnam era mission, of "winning"...."hearts and minds"?

For those of you unfamiliar with what some of our troops say of this "mission"....(does it matter much, if it is said in jest, or in all seriousness ?) <b>"hearts and minds" = "one in the heart and two in the head"</b>.

Ubertuber, I think that you'll have to do better....you initially responded to my postings with very strong words...

.....and roachboy, as usual, you "get it"....this post's for you.....

<b>Was Goering correct in stating, in reaction to death sentence, that it was "only victors' justice", is that the level that some of you relegate our American society to, today?</b>
Quote:
http://existentialistcowboy.blogspot...indicated.html
Tuesday, January 03, 2006
Victor's Justice: How Bush “Vindicated” Hermann Goering!

The United States insisted upon war crimes trials at the end of World War II although Winston Churchill favored summary executions. It has been recently learned that Churchill favored electrocution for Hitler, whom Churchill called a “gangster”. The other war criminals, he said, should be summarily shot.

Justice Robert Jackson, a Roosevelt appointee to the Supreme Court, meanwhile nurtured hopes that a war crimes trial at Nuremberg would establish an international legal standard for the due process of international laws. Jackson had noble and idealistic hopes that Nuremberg might prevent another Holocaust and future wars of naked aggression. More recently, however, the GOP and George W. Bush specifically, have seemingly vindicated Hermann Goering, who pooh poohed the very concept of international law. He called it "victor's justice".

The Nazi attitude toward the concept of “war crimes” is precisely the attitude that is lately articulated by the GOP and, in fact, by my own congressman. More specifically, in both letters and in statements made by aides, the position of my congressman is that no international convention binds the United States in any way. It is, I’m told, a violation of U.S. sovereignty. Yet, it was the United States who insisted upon having trials and it was the United States that actively supported what are now known as the Nuremberg Principles. In fact, the U.S. is bound to those principles by treaty. Moreover, U.S. Codes —Section 2441 specifically —bind U.S. citizens (that includes Bush) to the Principles of Nuremberg:

TITLE 18 > PART I > CHAPTER 118 > § 2441
§ 2441. War crimesRelease date: 2005-08-03
(a) Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
...

If the GOP position prevails, George Bush will have vindicated Hermann Goring! How fitting for a President who, like Hitler, considers that he is “the” law.

The litmus test is the party attitude toward truth. Like Goering and the other Nazis charged at Nuremberg, the Bush attitude toward truth is simply put: truth is merely whatever works for the good of the party.

Even Schacht showed that he, too, had adopted the Nazi attitude that truth is any story which succeeds. Confronted on cross-examination with a long record of broken vows and false words, he declared in justification and I quote from the record: "I think you can score many more successes when you want to lead someone if you don't tell them the truth than if you tell them the truth."

—Summation for the Prosecution by Justice Robert Jackson, Nuremberg War Crimes Trials

Karl Rove is comfortable with this philosophy: if the people buy it, it's true. Earlier: a story repeated three times is true.

Advocating the importation of “electric chairs” from the United States, Churchill called Hitler “… the well spring of evil”. But, like Hitler, Bush ordered and carried out the attack and invasion of a sovereign nation upon a pack of lies. Hermann Goering’s position, however, explains why Bush may never be similarly charged: “victor’s justice”!

Therefore, the GOP hopes to merely reframe the debate by adopting Goering's defense; i.e. the Nuremberg Principles are not recognized by Bush and his gang. Similarly, King Charles I did not recognize the right of Parliament. Likewise, Hermann Goering never recognized the authority of Nuremberg.

As a showdown between Congress and the Bush administration on the issue of wiretaps seems imminent, another inexorable conflict will one day have to be resolved. Will we affirm the rule of law –or will we prove Goering right? If Goering is upheld –and Bush is just the man to do it –we might as well resort to the “state of nature” and live in the jungle. We might as well deny Bush’s crimes as if they had never taken place:

It is against such a background that these defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: Say I slew them not. And the Queen replied, Then say they were not slain. But dead they are... If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.

—Robert Jackson, U.S. Chief Prosecutor, Nuremberg War Crimes Trials
Quote:
http://williamkaminsky.wordpress.com...al-if-you-win/

“But what makes it immoral if you lose and not immoral if you win?”
August 10th, 2005

[Belated Thoughts on the 60th Anniversary of the Atomic Bombings of Hiroshima and Nagasaki]

.....and if–more importantly–you’re now willing to partake in some moderate emotional masochism, then let me commend to you the following excerpt of Errol Morris’s stunning 2003 documentary on Robert McNamara, The Fog of War. Better than anything I’ve ever seen, it conveys the brutal emotional truth behind the cold, hard statistic that in the five months leading up to the atomic bombings of Hiroshima and Nagasaki, US firebombing campaigns on 67 Japanese cities directly killed at least 175,000 civilians and burnt to the ground the homes of at least 8,000,000.

The excerpt is entitled Lesson 5: Proportionality should be a guideline in war. In it, McNamara’s words alone do a good job of conveying the magnitude of the devestation wrought on the civilian population of Japan in the months leading up to the atomic bombings for McNamara conceives of a chilling set of analogies between Japanese and American cities.

McNAMARA: I think the issue is not so much incendiary bombs. I think the issue is: In order to win a war, should you kill 100,000 people in one night, by firebombing or any other way? LeMay’s answer would be, clearly, “Yes.”

[Speaking rhetorically] McNamara, do you mean to say that instead of killing 100,000—burning to death 100,000—Japanese civilians in that one night we should have burned to death a lesser number or none and then had our soldiers cross the beaches in Tokyo and been slaughtered in the tens of thousands? Is that what you’re proposing? Is that moral? Is that wise? Why was it necessary to drop the nuclear bomb if LeMay was burning up Japan?

And he went on from Tokyo to firebomb other cities. 58% of Yokohama. Yokohama’s roughly the size of Cleveland. 58% of Cleveland destroyed. Tokyo is roughly the size of New York. 51% of New York destroyed. 99% of the equivalent of Chattanooga, which was Toyama. 40% of the equivalent of Los Angeles, which was Nagoya. This was all done before the dropping of the nuclear bomb, which, by the way, was dropped by LeMay’s command.....

.....McNAMARA: Proportionality should be a guideline in war. Killing 50 to 90% of the people in 67 Japanese cities and then bombing them with two nuclear bombs is not proportional in the minds of some people to the objectives we were trying to achieve. [Bill’s Note: This 50-90% figure is not to be taken literally. See endnote for context.] I don’t fault Truman for dropping the nuclear bomb. The U.S.-Japanese War was one of the most brutal wars in all of human history. Kamikaze pilots, suicide, unbelievable. What one can criticize, is that the human race prior to that time and today has not really grappled with what I’ll call “the rules of war”. Was there a rule then that said you shouldn’t bomb, shouldn’t kill, shouldn’t burn to death 100,000 civilians in a night? LeMay said, <b>“If we’d lost the war, we’d all have been prosecuted as war criminals.” And I think he’s right. He’d, and I’d say I, were behaving as war criminals. LeMay recognized that what he was doing would be thought immoral if his side had lost. But what makes it immoral if you lose and not immoral if you win?</b>

.......[William Kaminsky responds to a question from a reader of his blog entry:]So, at my first level of analysis, I’d say the situation with the US bombing campaign against Japanese cities is:

1) Systematic killing of noncombatants is a war crime, period.

2) However, systematic killing of noncombatant populations with an aim to prevent further war crimes especially further systematic killing of other noncombatant populations by the government under which the first group of noncombatants unfortunately lives may be judged a justifiable war crime. And given the incredibly bloody record of Imperial Japan in the 30’s and 40’s, I would say area bombing of Japanese cities, in general, was a justifiable war crime.

My second level of analysis, however, would get specific. Was every act of area bombing committed on civilian population centers justifiable? In this case, I really do feel McNamara and Morris analogy between US and Japanese cities is helpful. If, God forbid, I lived in some bizzaro universe where the US went on a massive imperialistic campaign against its neighbors, intentionally killing millions of noncombatants in the process, then I could understand if other nations bombed *major* US cities like New York, Los Angeles, Chicago, and Boston in an attempt to bring the US to heel as quickly as possible. But what about “minor” US cities. Wheeling, West Virgina? Lincoln, Nebraska? Kenosha, Wisconsin? Granted the line is fuzzy, but once these other nations started killing women and children in Kenosha, I’d submit that the line’s might well have been crossed.....
....and this is where an "exercise" like this one, ulitmately takes our argument. How is consistancy to be maintained?:
Quote:
http://www.law.duke.edu/journals/djc...3p389.htm#B115
III. HISTORY AND SOURCES OF THE LAW...

....A. U.S. National Law....

....Subsequent attempts at American codification were heavily influenced by the writings of Lassa Oppenheim, a British international law scholar, and Great Britain's 1912 handbook on the rules of land warfare.83 Oppenheim wrote the 1912 manual, completely revising the earlier 1903 version, and incorporated his belief that obedience to orders is a complete defense. He once wrote:

If members of the armed forces commit violations by order of their Government, they are not war criminals and cannot be punished by the enemy . . . . In case members of forces commit violations ordered by their commanders, the members cannot be punished, for the commanders are alone responsible.84

In 1914, the United States revised Lieber's General Orders 100 and published the first U.S. manual relating to the law of war. The document was heavily influenced by its British counterpart and Oppenheim.85 While the U.S. courts moved gradually from an absolute liability approach to the moderate approach of accepting the defense so long as the offense was not clearly illegal, the military wholly adopted the complete respondeat superior defense in its early manuals. The Rules of Land Warfare reflected Oppenheim's absolute defense approach and instructed:

Individuals of the Armed Forces will not be punished for these offenses in case they are committed under the orders or sanction of their government or commanders. The commanders ordering the commission of such acts . . . may be punished by the belligerent into whose hands they may fall.86

The U.S. military fought WWI and WWII under this complete defense rubric, despite attempts after WWI to hold German war criminals personally liable for their wartime acts.87 In 1934, the United States published a new edition of the Rules of Land Warfare, [*pg 404] which reaffirmed the original version's respondeat superior approach.88 The version did not require that orders must have been reasonable, legal, or within the scope of the superior's authority, but instead fully exempted soldiers from prosecution if they were following orders.89 In 1940, the military released another version, FM 27-10. This document's paragraph 347 on superior orders replicated the 1914 and 1934 standards.90 As the end of WWII approached, however, the Allies began contemplating punishing Axis leaders including those who might have committed battlefield crimes.

The desire to punish Axis war criminals provided the catalyst for changing the military's respondeat superior approach to the defense of obedience to superior orders. The United States realized that it could not continue to sponsor the absolute defense if it intended to deny it to Axis defendants.91 The military consequently again revised its field manual on November 15, 1944 to revert to a pre-1914 position where obedience to superior orders was no longer an automatic and complete defense.92 The manual now read, "[h]owever, the fact that the acts complained of were done pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defense or in mitigation of punishment."93 The end of WWII marked the end of a forty-year experiment by the military with a respondeat superior defense.

Following WWII, Congress enacted the UCMJ which became effective on May 31, 1951.94 While none of its provisions deal with the defense of superior orders as such, the Manual for Courts-Martial (MCM)95 contained a specific provision relating to the defense of superior orders, providing that:

[T]he acts of a subordinate, done in good faith compliance with his supposed duties or orders, are justifiable. This justification does not exist, however, when those acts are manifestly beyond the [*pg 405] scope of authority, or the order is such that a man of ordinary sense and understanding would know it to be illegal.96...

B. The defense before the Military Commissions

The current U.S. administration has a real opportunity to shape how the defense of obedience to orders is treated in customary international law. Eventually, the DOD must develop a policy determin-[*pg 414] ing whether to allow the defense before military commissions. Nearly every other judicial institution created to try war crimes has addressed the issue.150 Failing to develop a policy simply leaves the decision to the individual commission members, and it is doubtful the DOD will leave such a decision to the members.151 The DOD is not constrained by international law, which will support a decision either to allow the defense or to impose absolute liability on the defendants. <b>The remainder of this paper will argue that the defense should be permitted exactly as it is for U.S. servicemen: obedience to orders is a defense so long as the order was not itself manifestly illegal. ....</b>

.....The experience following WWII was very similar. As discussed above, <b>the judges at Nuremberg also considered whether defendants acted pursuant to superior orders even though the Charter was explicit in stating that superior orders was not a defense.</b>160 The results of the trials before the ICTY again demonstrate that jurists have a tendency to recognize the defense de-[*pg 416] spite statutes to the contrary.161 Any reasonable commission member would recognize the compelling rationale for accepting the defense as a valid challenge to mental culpability and implicitly allow the defense of superior orders.......

V. CONCLUSION

<b>Determining whether or not to punish a person for a war crime when they claim to have been following orders is both a difficult legal and moral issue.</b> A state may adopt an absolute liability approach and hold each individual responsible for his acts regardless of whether the defendant knew the illegality of his acts or could have realistically altered his conduct. Alternatively, a state may offer an absolute defense of obedience to orders which promotes military discipline while allowing some atrocious crimes to go unpunished. States may wish to strike a balance between the absolute liability approach and the respondeat superior approach and permit a defense of obedience to orders except in circumstances where the underlying order was clearly illegal to a reasonable person. This hybrid approach has emerged several times throughout history, but by no means does international law require a state to adopt such an approach. The United States has adopted the manifest illegality doctrine for prosecuting U.S. servicemen, largely because that approach promotes both discipline and the supremacy of law.

Presently, the United States finds itself in the difficult position of needing to address how the defense of obedience to orders should [*pg 418] apply to defendants tried for terrorism before U.S. military commissions. The United States is not bound by any overriding law, and is not concerned with promoting discipline within the ranks of terrorist organizations. Accordingly, one might believe that the Bush Administration will disallow the pleading of the defense before military commissions. The United States is guided, however, by reason and a desire to promote the supremacy of the law. The United States should recognize the fundamental tenets of criminal law and allow the defense of obedience to orders as a legitimate means of demonstrating a defendant's lack of mental culpability.

The Bush Administration now possesses a valuable opportunity to influence the development of customary international law. <b>The United States should take the lead in annunciating the defense of superior orders under international law by providing it to defendants before military commissions.</b> By according commission defendants the same doctrinal defense that is permitted in U.S. domestic law and under the ICC, the Administration will signal to the world that it is serious about procedural justice as well as fighting terrorism. The reaction to the tragedies of September 11th may cause a desire to reject the defense altogether in favor of an absolute liability approach, but historical evidence suggests that jurists recognize the legitimacy de facto even when it is not recognized de jure. The Bush administration would be wise to allow the defense before military commissions. James B. Insco
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