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Posted by on Mar 9, 2011 in Breaking News, International, Law, Politics, Society, War | 0 comments

The Rule of Law

Ben Ferencz was Chief Prosecutor at the Nuremberg trials — not the initial set of trials that took place in 1946 under the auspices of the International Military Tribuanl (the Chief Prosecutor for those was Robert Jackson) — but a second set of about a dozen trials that focused specifically on the Einsatzgruppen, which were basically death squads that murdered roughly a million Jews, Gypsies, and some others, before Hitler’s Final Solution was fully implemented.

Ferencz shares a portion of an exchange he had, in court, with a former senior Nazi officer about these killing squads:

The lead defendant, Dr. General Otto Ohlendorf, explained why it was that he reported that 90,000 Jews had been eliminated, they never used the word “murder” – He calmly declared that it was necessary in self-defense…

“What do you mean, ‘self defense’? Germany attacked Poland, Norway, Holland, Sweden, and France, etc. Nobody attacked Germany. Where’s the self-defense?”

“Well,” he said, “we knew the Soviets were planning to attack us, so we had to attack them in self-defense.”

“Well, why did you kill all the Jews?”

“Well, everybody knows the Jews were in favor of the Bolsheviks, so you have to kill all the Jews too.”

“Why the little children? Why did you kill all the little children?”

“Well, if they grow up and they become enemies of Germany when they find out what happened to their parents that would be dangerous a threat to our long-range security, so we’d better get rid of them too.”

He was saying to me, “Don’t you see the logic of it all?” And so he explained that.

I said, “Didn’t you have any qualms about killing all these people, little children and all that?”

“No,” he said, “because we relied on the head of state, Hitler. He had more information than I had, and he told us that the Soviets planned to attack, so it was necessary in presumed self-defense.”

In our military jargon, we call such assaults a “preemptive first strike”, The US military policy today does not preclude first strike by the United States in order to prevent a presumed attack from another side. That Ohlendorf argument was considered by three American judges at Nuremberg, and they sentenced him and twelve others to death by hanging. So it’s very disappointing to find that my government today is prepared to do something for which we hanged Germans as war criminals.

This is a small portion of a speech Ferencz was invited to give by David Swanson. Swanson’s website,, is the new incarnation of AfterDowningStreet. I urge TMVers to read the entire speech. Ferencz’s points are unfortunately always relevant, but especially so now that Pres. Barack Obama has signed an Executive Order which makes the system of indefinite detention without charges and without trial at Guantanamo a permanent American institution — thus simultaneously retaining one of the most egregious outrages of the Bush administration, and breaking one of the central promises of Barack Obama’s presidential campaign.

Not that Obama didn’t break this particular promise long ago — this Executive Order just makes it official. And of course the enemies of civil liberties and the rule of law on the right are thrilled:

As [has] happened over and over, while progressives and civil libertarians are furious about the new Order, former Bush officials and right-wing Warriors are ecstatic. The anti-Muslim McCarthyite Rep. Peter King (R-NY) issued a statement this morning, as quoted by The Post, which lavished Obama with praise: “I commend the Obama Administration for issuing this Executive Order. The bottom line is that it affirms the Bush Administration policy that our government has the right to detain dangerous terrorists until the cessation of hostilities.” That perfectly captures the legacy of Barack Obama on civil liberties.
As always, the most harmful aspect of the Obama legacy is that he has converted what were once controversial right-wing Bush policies into unchallenged bipartisan consensus, to endure indefinitely and without any opposition from either party. …

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