Everything Hitler Did was "Within the Law"

Normally, any discussion that brings up Hitler or the Nazis has reached a level of hyperbolic absurdity that it cannot be continued. But in any discussion of International Law as it relates to the Geneva Conventions, there is no way to avoid talking about the Nazis.

This is because their trials at Nuremberg provided the international precedents under which the world has been living for the past sixty years. The Nazis gave birth, if you will, to our modern understanding of conduct that is unacceptable even in a time of war - any war. And it must be remembered too that the United States played the central role in defining what these crimes were. We sent a U.S. Supreme Court Justice to prosecute these men, and to make the case to the world that a new set of values must be imposed in order to preserve civilization. And through Justice Jackson's efforts, we executed those men for violating laws of humanity.

This is important because the main defense of the war criminals at Nuremburg was that they had no reason to think they were breaking any laws, domestic or international. After all, their own legal officials had told them everything they were doing was permissible. Perhaps we could disregard this bit of history, and the hyperbole and emotions any mention of the Nazis evokes, had our President not started this conversation. But by requesting legislation from Congress that will redefine our understanding of the Geneva Conventions as it applies to our country, he has made the discussion unavoidable.

Having argued for years now that the Geneva Conventions did not apply to prisoners captured on a battlefield in Iraq, the Administration has now been told otherwise by the Supreme Court. This ruling was not a shock to anyone outside the insulated "we make our own reality" bubble in which the President's administration operates. But it seems to have been a genuine shock to them. So much so that it made them realize, for the first time, that the conduct they had been pursuing would theoretically subject them to war crimes prosecutions. And so they have gone to Congress asking for retroactive protection, and for Congress to re-write the "American Interpretation" of the law.

John McCain was particularly scornful of this approach, because he he knows what it leads to. Every nation can "redefine" international law against torture and war crimes until it is rendered completely meaningless. And of course, it brings up sad, but inevitable comparisons to the conduct of Germany in World War II - because they did the same thing.

Now, before I go on, I need to make something clear: when I say that everything Hitler did was "within the law" I am not implying that George Bush is like Hitler, or that his administration is on a par with the Nazis. As infuriating and dangerous as our political situation is, nothing this administration has done yet comes close to that kind of depravity, nor does anyone aspire to it.

That said, the Nazis provide the single best legal precedent for why our nation is skirting dangerously close to destroying the laws that have held the world together for more than a half century. The Nazis too argued that they did not know they were violating the law. They had the judges and lawyers to prove it. And we prosecuted those legal officials for the criminal advise they gave, and the reprehensible conduct they legitimized under color of German law. That they destroyed judicial independence in their country (as many argue we are currently attempting to do by circumventing the FISA courts), was not considered a defense. It made them that much more guilty. In short, the manipulation of the legal system to give "cover" to violations of international law was considered no defense - and condemned them in the eyes of the world.

There is an excellent analysis of this currently up at newsrack blog, and reading it struck a chord in me because I had just finished watching Ted Koppel's Discovery Special entitled The Price of Security. During this show, there was a chilling exchange between Ted Koppel and an assistant Attorney General, in which he kept justifying the reprehensible conduct of our administration as being supposedly lawful.

And when Tedd Koppel pointed out that the law clearly said otherwise, he snapped back that everyone thinks they're a legal expert. When Ted Koppel pointed out that a judge had said he was wrong, the administration's representative snapped back that it was just one judge. When Koppel rejoined that it was a Federal Judge whose ruling was binding, the man defiantly asserted that they would appeal.

This exchange was telling, because it displays not ignorance of the law - but an arrogant determination to define the law any way the executive sees fit, carelessly discarding anyone else's interpretations, even though the executive branch is the least capable, and least entitled to do so.

And their efforts to manipulate the justice system to justify conduct that we all know is unacceptable - and have always known is unacceptable - because they now deem that we are facing a greater threat than say, the Cuban Missile Crisis, invites criticism.

They are going over the edge and taking our country with them.

The definition of torture does not change because lunatic right wing lawyers like Alberto Gonzales and Jon Yoo say so. International law does not change because the administration bullies their lackeys in Congress to say so. And our Orwellian insistence that our illegal and immoral conduct is being done "under the law" will not be our salvation.

In fact, it is making a mockery of our values, and who we are as a country. It will ultimately undermine the law, our democracy and our standing in the world.