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RIVKIN, Robert S. - War Crimes, Bush’ Lawyers and the U.S. Military

This article is based on a paper presented to the Bilingual International Colloquium, Université de Savoie, Chambéry, France, in April 2006

Article published on 9 July 2006

by r-c.
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It would be unseemly for someone (like myself) whose distant relatives died at Auschwitz, to exaggerate the parallels between the mindset of Hitler’s lawyers and that of Bush’s lawyers. I have tried not to do that. For one thing, there is a huge difference between the situation facing the tradition-minded military lawyers who served in the Third Reich and the contemporary American military lawyers whose sense of honor and decency was offended by Bush’s political hacks. The Americans knew they would be protected if they blew the whistle and sought help outside the system. Moltke and Stauffenberg had no equivalent safe haven to which they could turn. In the Third Reich, there was no independent bar association or American Civil Liberties Union.
Nevertheless, there are four significant parallels between what happened in the Third Reich and here in the United States. 1) Ideologically driven lawyers in both systems decided the Geneva Conventions did not apply; 2) those same groups of lawyers justified evasions of established legal doctrines on the ground that the nation’s Leader had unchallenged power to mandate changes in the law; 3) these lawyers either assumed or argued for total immunity from criminal prosecution for human rights violations of those targeted as especially dangerous “enemies” of the state; 4) Finally, it was the career military lawyers in both systems who tried to put the brakes on rampant distortion of legal doctrine.

In the United States, of course, the Bush Administration was forced to retreat after the Abu Ghraib scandal broke. We are not yet a fascist state, and are not likely to become one — now that U.S. citizens have begun to resist the Bush Administration’s fear-mongering, and to understand the ugly reality of its lawlessness.
One law professor, Stephen Holmes, himself a critic of Bush’s torture policies, suggests that comparisons of Bush administration policy with that of the Nazis are “wildly implausible.” [1] Let the reader judge that for himself.

Since emerging victorious from World War II, the United States has been considered by some people around the world as a beacon of democracy and protector of human rights. President George W. Bush is rapidly destroying what remains of this image of America, though many U.S. citizens still consider it to be the world’s foremost protector of freedom and constitutional due process. I believe they are deluded. Under the current Bush Administration, U.S. government policy has evolved, to put it mildly, into a regime with authoritarian, and I would argue, even fascistic tendencies. [2]

If you want to lose your audience in the U.S., you draw comparisons between the Bush regime and the Third Reich. Such comparisons are considered to be “over the top” — downright hyperbolic. I believe that Americans will become more receptive to these comparisons as increasing evidence of the Bush Administration’s lawlessness emerges. (They still refuse to declassify documents relevant to the torture debate on the alleged ground of “national security.”) This article documents the chilling parallels between how Hitler’s lawyers argued against human and procedural rights for select categories of people, and how Bush’s lawyers have done the same thing for so-called “unlawful combatants” — meaning Osama bin Laden terrorists and Taliban fighters. Both Hitler’s lawyers and Bush’s lawyers did it for the same purported reason — security for society at large.

Americans have forgotten (if they ever knew about) the 1967 Mai Lai massacre of innocent Vietnamese civilians by American troops. Americans in general don’t want to believe that the torture and abuse committed by American soldiers upon Iraqi civilian detainees at Abu Ghraib prison and elsewhere, [3] were the inevitable results of policies emanating from the highest levels of their government. But they were. Americans prefer the Administration’s spin on Abu Ghraib, that it was due to poor military supervision and the excesses of “a few bad apples.” But then, most Americans don’t read the foreign press, progressive news sources in the U.S. or the essays of law professors.

Before analyzing how the Bush lawyers twisted the established law to justify criminal behavior, I should first describe briefly the state of military law before September 11, 2001. That will lead to a better understanding of why Bush’s legal sycophants shocked even conservatives and career military officers.


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