Friday, December 21, 2007

Saving your face, losing your pants

Israeli Supreme Court president Justice Aharon Barak debated US Court of Appeals' Richard Posner on the subject of whether it is the judiciary's task to "protect democracy", including the rights of an enemy population, during wartime.



Posner argues that democracy is preserved by elected officials doing the will of the electorate. Barak on the other hand, "explained that judges must intervene in real time in executive and military decisions even when those decisions are reasonable. As defenders of human rights, judges, he claimed, are better situated than politicians and military commanders to distinguish right from wrong."

My only thoughts on the matter are that both Posner and Barak assume jurisdiction over the battlefield, which if they came to think of it, only obtains when their nation is victorious or dominant. None of their judgments would have any effect if the enemy wins. All discussions about "democracy" or "human rights" would be moot in a situation where a totalitarianism is left triumphant.

Barak's "duty to defend human rights" would be logically valid when an abuse threatens democracy within his country itself; thereby rendering any victor in the battlefield a totalitarian. But, if the abuses posed comparatively slight dangers to democracy but significantly increased the risk of loss to a totalitarian enemy, then actions which advantage the foe actually have the effect of undermining the 'human rights' he claims to protect. It would be nonsense, for example, to have turned loose Henrich Himmler's SS on the grounds of protecting their human rights because that would in turn have reduced the human rights of countless others who these criminals would have killed, tortured or incarcerated. There is no net human rights benefit to judicial acts which significantly increase the probability that people like Adolph Hitler, Pol Pot or Osama Bin Laden win in the battlefield.

20 Comments:

Blogger Mad Fiddler said...

Wrtechard,

As happens so often, you have placed your finger precisely on the critical point that the two learned jurists ignore.

It is endlessly fascinating to see how the classical training --- perhaps more accurately, "conditioning" --- of our culture's most intellectually gifted sages still leaves them blind to the limits of their own logical processes.

12/21/2007 02:10:00 PM  
Blogger Buckhead said...

It was not always this way.

Justice Frankfurter's concurrence in the famous Korematsu case:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully." Hirabayashi v. United States, supra at 93; and see Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 426. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as "an unconstitutional order" is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. "The war power of the United States, like its other powers . . . is subject to applicable constitutional limitations", Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156. To recognize that military orders are "reasonably expedient military precautions" in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447; 155 U.S. 3, and Monongahela Bridge Co. v. United States, 216 U.S. 177. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.

12/21/2007 03:31:00 PM  
Blogger RWE said...

In 2002 in Federal Court in D.C. a law firm filed a lawsuit on behalf of those incarcerated in Auschwitz in WWII on the basis that the U.S. could have stopped the carnage there by bombing the rail lines leading to the camp.

Aside from the technical aspects of such a bombing effort (and we could not have bombed the rail lines going to that camp until too late to do any good) or the question of whether it would have stopped the Nazi “final solution” even discussing the issue in legal terms opens a real can of worms.

For example, what if such a bombing program would have delayed the winning of the war? Would those who languished in other concentration and POW camps have a basis to sue? And those who nearly starved to death in places such as Holland, would they be able to sue because those going to Auschwitz received favoritism? And what about the American lives that would have been lost on such missions – just where in the oath of office they took does it say they have to help stop killings that could not be considered as a threat to the U.S.?

Injection of such legal considerations into war making is the equivalent of requiring a thesis from each soldier on how many angels can dance on the head of a pin. Except that this pointless argument will cost lives and imperil only those who possess the moral underpinnings to care.

12/21/2007 05:00:00 PM  
Blogger Mad Fiddler said...

My understanding is that U.S. courts have NEVER had the power to go forth and initiate proceedings in any case.

Or non-case.

In United States jurisprudence, even the Supreme Court of the United States (SCOTUS, as some obsessive acronymists like to sling it about) is obliged to patiently await the slow progress of a contested issue through the labyrinth of the lower courts, until all other appeals have been exhausted. Only when the case is finally brought to them can the wise ones pose their questions to the litigants, and finally publish their decision and its corresponding dissenting view.

Hmmm. Actually, I've heard that some cases have been allowed to leapfrog directly to the U.S. Supreme Court, by-passing some intermediate levels.

Can someone please clarify this, even by pointing to a site with information?

Thanks

12/21/2007 06:34:00 PM  
Blogger Zenster said...

All discussions about "democracy" or "human rights" would be moot in a situation where a totalitarianism is left triumphant.

A vital point that the Liberal Left contorts itself far beyond even the most complex origami in order to avoid noticing.

12/21/2007 06:47:00 PM  
Blogger Wadeusaf said...

According to Posner "I try to avoid using words like justice, fairness and human rights. I don't like these words because they are empty and used as substitutes for grappling with hard realities." Given their ignorance of military affairs, judges should be modest in their judgments."

I am in favor of grappling with hard realities.

12/21/2007 09:44:00 PM  
Blogger Utopia Parkway said...

None of their judgments would have any effect if the enemy wins. All discussions about "democracy" or "human rights" would be moot in a situation where a totalitarianism is left triumphant.

In which war fought by the US in the past 100 years would a US loss have resulted in totalitarianism in the US?

Are you suggesting that the laws of war should be ignored?

At any rate, they are talking about international law, which still obtains even if totalitarianism is left triumphant, as long as the entire international system isn't destroyed. If a war criminal happens to win his war he still is liable for prosecution.

The real question here has to do with whether international law should be superior to national law. The lawyerization of war has injected lawyers into the decision process so as to protect civilians and also the soldiers from committing breaches of international law and international humanitarian law.

In theory the legislature could pass laws protecting soldiers from the possible crimes mentioned in international law. In fact I don't really know if such laws would be legal. I guess Barak would say no.

The theory of international law and international humanitarian law isn't necessarily bad. It's the practice of it that has caused problems.

12/21/2007 10:27:00 PM  
Blogger Wretchard said...

World War 2

The Cold War

12/21/2007 10:36:00 PM  
Blogger Utopia Parkway said...

World War 2

The Germans weren't going to be goose-stepping down fifth ave. Trafalger Sq, and the Champs Elysee, certainly. We weren't going to elect Lindburgh president.

The Cold War

It's stretching a point. As it wasn't really a hot war the lawyers weren't interfering on a daily basis with command decisions. Do you think Kennedy or Reagan asked their lawyers whether it would be legal to drop the big one on Moscow?

12/21/2007 10:46:00 PM  
Blogger davod said...

If you want to read what lawyers at the coal face think what their role should be then this December 20 Jerusalem Post article Lawyers won Israel Lost is timely.

The article includes some of the testimony of the Israeli Attorney General and Military Advocate General to the investigation of the recent conflict with Lebanon/Hesbolah.

I hesitate to quote from the article because I think it needs to be read in full by everyone interested in this issue.

However, a brief glimpse:

"...In their testimonies both men shared their perception of the war as a great victory of lawyers in their campaign to "lawyerize" - or assert their control - over Israeli society.

In his opening statement, Mazuz extolled the war as "the most 'lawyerly' in the history of the State of Israel, and perhaps ever." He explained, "The process didn't begin in Lebanon 2006. It… is a gradual process of 'lawyerizing' life in Israel.

...It is not that the internalization of the lawyers' approach has made the IDF or the Israeli government any more moral or law abiding than they have always been. Israel has never targeted civilians and has always sought to protect innocent civilians from harm even when they shelter enemy forces.

What has changed is the focus of military and political leaders in conducting war. Before the advent of legal dominance, commanders and political leaders devoted themselves to winning wars. Today they concentrate their efforts on avoiding criminal indictments..."

12/22/2007 02:23:00 AM  
Blogger Buckhead said...

The Terrorist Surveillance Program, the Rendition Program, the detentions at Guantanamo, the harsh interrogations, and the funds transfer surveillance program (name escapes me) were all undertaken pursuant to the authority granted by Congress to the Executive to wage war against al Qaeda and affiliated groups.

As Frankfurter noted in Korematsu, Congress granted the Executive the authority to wage war in WWII with the idea of winning. In that era, the Court stood aside and said basically, it's none of our business.

Today, however, the legal assaults on the exercise of the powers granted to wage the war, and the ridiculous judicial second guessing are a radical departure from the previous relationship of the judicial and executive branches during time of war.

The very idea that the military has to come to some fat pasty guy in a robe in Washington, D.C. to get permission to listen to a cell phone call of an enemy combatant in Iraq that is holding US soldiers captive is the most insane thing I've ever heard of. Jonathan Swift would have thrown down his pen in frustration, his imagination having been trumped by events.

The legal war against the war is an extension of the political war against the war, in which the left, in order to defeat the hated GWB, would gladly hand the enemy a victory they could not possibly attain otherwise. The Courts will blather on about saving the Constitution and the Rule of Law, and international norms, but that's all window dressing for advancing the underlying political agenda, which is to hand Bush a defeat.

12/22/2007 05:26:00 AM  
Blogger Zenster said...

Jonathan Swift would have thrown down his pen in frustration, his imagination having been trumped by events.

That's some very tasty writing there, buckhead!

12/22/2007 01:22:00 PM  
Blogger Marzouq the Redneck Muslim said...

Mad Fiddler,

I concur.

Merry Christmas and Salaam eleikum Y'all!

12/22/2007 02:34:00 PM  
Blogger Marzouq the Redneck Muslim said...

Buckhead & Davod,

Looks like lawyers are being used as a 4GW tool of the enemy. Crazy.

WadeUSAF,

Agree with your statement.

Merry Christmas (Happy Birthday Jesus), Salaam eleikum again Y'all!

12/22/2007 02:43:00 PM  
Blogger whiskey_199 said...

Utopia -- a German victory would have guaranteed (in conjunction with the Empire of Japan), Nazi soldiers goose-stepping down Pennsylvania Avenue. The combined resources would have crushed the US.

This is why Liberals are stupid. International Laws and "human rights" are luxuries of the rich and powerful. NOT something a nation in a fight for survival can afford. It's like "Bear" Grylls in "Man vs. Wild" illustrating what disgusting thing you can eat/drink to survive -- survival means doing anything you have to in order to survive, including things you'd never choose otherwise.

Israel's "lawfare" is a measure of both the relatively unimportant aspect the Lebanon conflict (nuclear Iran + Hezbollah and Syria = mortal threat to Israel) and the "luxury" Israel perceives it has with respect to Hezbollah NOW. Hezbollah in and of itself, absent Iran-supplied nukes, cannot threaten Israel.

However, that "lawyerization" could simply go away like restraints in a survival situation if leadership feels it's a choice between getting nuked or nuking.

12/22/2007 05:09:00 PM  
Blogger always right said...

Wrtechard,

That is precisely why the congressional hearing on the CIA destroyed tapes are so "chilling". In 2002, who among us did not think we would get attacked (worst than 9/11) again? Kept us safe was the top priority then. That was why the selected four (who knew the interrogation) their only concern was if the measure was "tough enough" to extract information. The current hearing sets bad precedence, who knows what it will lead to? After how many years, will the congress hold hearings of ex-vets who have gripes with their officers, Rumsfeld, or POTUS Bush on conducts during the war?

In which war fought by the US in the past 100 years would a US loss have resulted in totalitarianism in the US?

Are you suggesting that the laws of war should be ignored?

In which war fought by the US in the past 100 years have we engaged in an enemy that is not a traditional enemy?

Which laws of war should be applied? Therefore, we can know which to ignore.

As for the international laws under discussion, please also tell me which laws the enemy observed and ignored.

12/23/2007 05:46:00 AM  
Blogger davod said...

"However, that "lawyerization" could simply go away like restraints in a survival situation if leadership feels it's a choice between getting nuked or nuking."

In Israel the problem will not go away until they are nuked or suffer horrendous casualties. The parliament is fractured on this issue and a good proportion of the citizens believe lawyers are the way to go.

This is why the recent Lebanon experience and lawyers is so timely for the US. The lawyers response shows what the aim is and where we could end up. At least some in Justice and JAG are still on the side of winning, while a good proportion are probably for international law. There is a difference.

12/23/2007 06:19:00 AM  
Blogger Utopia Parkway said...

International Laws and "human rights" are luxuries of the rich and powerful. NOT something a nation in a fight for survival can afford...survival means doing anything you have to in order to survive, including things you'd never choose otherwise.

That's what Saddam thought. He lost anyway.

However, that "lawyerization" could simply go away like restraints in a survival situation

So what you're saying is that the lawyerization of war hasn't tied our hands.

In the original opinion piece by Caroline Glick she posits that lawyerization of the 2006 war in Lebanon was part of Israel's reason for losing. I don't buy it. There were too many other causes of failure on Israel's part to explain why the IDF didn't completely prevail. I also don't really think they lost, although they certainly didn't do as well as they could have.

In the US wars in Afghanistan and Iraq which failures have been caused by the increased lawyerization of war?

The only example I can think of is the failure to fire a hellfire missile on OBL in the early days of the Afghan war because a lawyer, apparently in the command center, prevented it. That was certainly a stupid thing.

Was it right for the tripartite powers at the end of WWII to prosecute the German war criminals in the Nuremberg trials? Or should we just have rounded up all the German officers over the rank of, say, captain and just shot them?

12/23/2007 12:28:00 PM  
Blogger davod said...

"Was it right for the tripartite powers at the end of WWII to prosecute the German war criminals in the Nuremberg trials? Or should we just have rounded up all the German officers over the rank of, say, captain and just shot them?"

Are you suggesting the lawyers were the ones who came up with the solutions which lead to Nuremburg?

12/24/2007 09:17:00 AM  
Blogger Zenster said...

utopia parkway: The only example I can think of is the failure to fire a hellfire missile on OBL in the early days of the Afghan war because a lawyer, apparently in the command center, prevented it. That was certainly a stupid thing.

You left out that well-attended Taliban funeral. With over one hundred terrorists in attendance it was a classic target-rich environment.

12/26/2007 06:30:00 PM  

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