'Nuff said

(Taking context-optional note of thought-provoking quotes)

'What is punishment for a person who is capable to do such horror, such horrible things to living people? I cannot imagine that that person has a soul or conscience or heart. ... He simply wouldn't feel it. ... What kind of punishment could you give to a person like that?'

-- Los Angeles-based, octogenarian artist Elisabeth Mann, a survivor of Auschwitz-Birkenau and other Nazi camps, on why, as CNN reported, "she's uncomfortable with the ongoing attempts to deport to Germany for trial John Demjanjuk, an 89-year-old Cleveland, Ohio, man allegedly linked to mass killings at Sobibor, a death camp in Poland." Her son and others quoted disagreed with her, in a story published this week of Holocaust Remembrance Day.

Obama OKs extraterritorial prosecution of torturers

Yesterday's 3 posts had such an interesting and cleverly embedded thread running through them that I'd like to review them today.
► First, Ruth Bader Ginsburg (right) is quoted as saying:

'What happened in Europe was the Holocaust, and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values.'

► Second, "Those Memos"; and
► Third, news of John Demjanjuk (below left, at his trial in Jerusalem in 1988) accused of commiting war crimes in Poland during World War II.
If you click on the link to President Obama's explanation of why he released "those memos," you read,

'I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer.'

I am troubled by this reasoning: it implicitly admits that the techniques constitute torture, but studiously avoids the issue of torture's illegality in both domestic and international law.
I am further troubled to read:

'[a] democracy as resilient as ours must reject the false choice between our security and our ideals,'

yet

'[t]his is a time for reflection, not retribution .... We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.'

Is it true that "a democracy as resilient as ours" could not survive the "disunity" that might be worsened by prosecuting those responsible for torture? We certainly didn't worry about any negative effects on German or Japanese unity that might have come from denying foot soldiers the defense that they merely "carried out their duties relying in good faith" on their superiors. Yet intelligence officers may rest assured that they may indeed rely on their anonymity and the defense of superior orders.
Perhaps even more troubling is the juxtaposition of Obama's assertion that the interrogation techniques described in the memos "do not make us safer" with his offer of immunity to the "unsung" "men and women of our intelligence community [who] serve[d] courageously": "because of their sacrifices, every single American is safer." ??!!##??!! What were they sacrificing as they tortured people, other than their/our ideals, law, the dignity of their victims and their own humanity?
So by releasing "those memos," Obama is reminding us, in Bader Ginsburg's words, that popularly elected representatives can not always be trusted to preserve the system's most basic values. At the same time, by not prosecuting our own Demjanjuks, he is reminding us that popularly elected representatives can not always be trusted to preserve the system's most basic values. Worse, he is admitting defeat in the struggle to balance our security and our ideals. In short, he is saying that this sort of thing has always and will always happen.
So much for that "Never Again" badge I wore in high school.
Then I thought some more about this "disunity" business.
Maybe Obama thinks that prosecuting Americans for international crimes such as torture and war crimes would increase anti-international law and anti-International Criminal Court sentiment among Americans, and he's hoping to increase support for "internationalism" by not prosecuting. But this could be avoided by prosecuting under domestic statutes. So maybe he thinks that we should only prosecute foreign torturers and war criminals, like the Nazis and Japanese.
Then it hit me: candidate Obama heard from the Center for Constitutional Rights (CCR) with respect to Guantánamo.
He may be aware that CCR's case against former Defense Secretary Donald Rumsfeld was dismissed because the German prosecutor saw no reason to believe that Rumsfeld would escape justice in the United States. By announcing in the press that he will not prosecute, Obama has just given the green light (image credit) to the German prosecutor and any other foreign or international court that might be willing and able to do prosecute any Americans responsible for torture at least between September 11, 2001 and January 20, 2009: the United States is, in the words of the ICC Statute (art. 17), "unwilling . . . genuinely to carry out the ... prosecution." And since the Supreme Court still supports the Ker-Frisbie doctrine (illegal capture does not make prosecution illegal), William Schabas's April Fool's post is no joke after all.
Of course, it just might be that U.S. prosecution of those responsible for torture and other violations of human rights during the previous administration's "war on terror" might help end that "war" by providing justice to some of its victims and thereby contribute to undoing some of the harm that has been done. That might really protect Americans' safety and help the nation turn the page and get on with rebuilding unity, the economy, the educational system, health care, social welfare, etc.

On April 18

On this day in ...
... 1961, in Casablanca, Morocco, national liberation groups in lusophone Africa (map credit) -- Angola, Cape Verde, Guinea-Bissau, Mozambique, and São Tomé and Príncipe -- joined together to form tThe Conference of Nationalist Organizations of the Portuguese Colonies, or CONCP. This a common front in opposition to Portuguese rule disbanded in the mid-1970s as the affected colonies won independence.
... 1988, a 3-judge Israeli court found John Demjanjuk guilty of war crimes that it ruled he had committed while a prison guard for the Nazis at the Treblinka death camp in Poland during World War II. (Prior IntLawGrrls post.) The capital case against the Ukraine-born man said once to have been known as "Ivan the Terrible" eventually was thrown out for lack of sufficient evidence, and the defendant then returned to the United States, where he'd worked in an Ohio car factory before retirement and before his 1986 extradition to Israel. Proceedings against him did not end, however; early in this month a U.S. immigration judge stayed a deportation order that if executed would result in the transport of Demjanjuk, now 89 years old, to Germany to face possible prosecution. Then, this Tuesday, the U.S. Court of Appeals for the Sixth Circuit issued an emergency stay pending review of Demjanjuk's challenge to transfer on grounds that he is too ill. (David Shankbone photo credit)

(Prior April 18 posts are here and here.)

On July 29

On this day in ...

... 1968 (40 years ago today), media coverage focused on a new encyclical entitled Humanae Vitae, in which Pope Paul VI (right) rebuffed the recommendation of a majority of a Pontifical Commission, and thus "confirmed a ban on the use of contraceptives by Roman Catholics." Among the pope's "the most controversial" acts, it was reaffirmed in 1995 by a successor, John Paul II. This year's anniversary has stirred the issue again: among those commenting are "[m]ore than 50 dissident Catholic groups from around the world," which last week published, in an Italian newspaper, "an open letter asking Pope Benedict XVI to lift the church's ban on birth control." This group focused on HIV/AIDS as a reason for change; other commentators cited opposition among Catholic laypeople, sometimes by "majorities exceeding 80 percent," as well as links between overpopulation and global warming. Meanwhile, in the Philippines, Manila's archbishop supported the ban with this argument:

'If there is discipline in the marital bed, then there is discipline in the streets, there is discipline in schools, there is discipline in the government.'

... 1993 (15 years ago today), an Israeli appellate court overturned the conviction of John Demjanjuk. The court found insufficient evidence to support charges that Demjanjuk had committed war crimes as "Ivan the Terrible, a gas chamber operative at the death camp Treblinka, in Poland." Demjanjuk had been extradited to Israel by the United States. On his return, the United States undertook to deport him; however, no country has agreed to accept the Ukraine-born man, who'd immigrated to the United States in 1951. Earlier this month, a Spanish court announced that it would proceed with a war crimes action against Demjanjuk and 3 others. Initiator of the suit -- brought pursuant to the principle of universal jurisdiction -- was the NGO Equipo Nizkor. (credit for 1987 photo of Demjanjuk on trial in Israel)