President Bush is correct to refer to the proposed military trials of the six alleged terrorists as similar to the Nuremberg trials of several Nazis. In both cases, the law is made a farce.
In the case of the Nazis, if the Allies wanted vengeance, and they did, they should have rounded up the Nazi leadership and shot them. That, at least, would have been an honest act of vengeance. Instead, they set up a propaganda farce at Nuremberg and pretended they were going to provide a fair trial to the defendants.
The trouble was, the Nazis were German citizens, and they had not violated any laws of Germany, since the criminal government had twisted the laws, as all criminal governments do, to fit its acts. The Allies, to remedy that, dreamed up some laws that had hitherto not existed. They said that launching a war of aggression was a crime. If that’s the case, George W. Bush had better stay out of the reach of any international tribunal, because that’s exactly what he did in Afghanistan and Iraq.
Then they said that there was such a thing as a crime against humanity. Since humanity encompasses the whole human race, and since no Nazi crime was ever committed beyond the reach of the German army, which was confined to Europe and, for a short time, North Africa, obviously the Nazis were not guilty of that. Most historians say the Germans killed about 12 million people, including the Jews in the Holocaust. Since 55 million people died in the war, who killed the other 43 million? I suppose they could be called "collateral damage."
All I’m saying is that it was a mistake to disguise vengeance in the robes of the law. Doing so made a farce of the rule of law, and we are paying for it today. We are now stuck with an international tribunal free to charge anyone with "crimes against humanity" on a purely arbitrary basis. Practically, that means any petty leader unfortunate enough to lose a war can find himself on trial. Some Israeli leaders, for example, are afraid to travel in Europe, lest they be arrested and charged with war crimes.
As for the alleged terrorists, Bush has turned a simple matter into another legal farce. If these men are prisoners of war, they are entitled to the protection of the Geneva Conventions. If they are criminals (and the attacks on New York and Washington were certainly crimes under American law), they are entitled to the protection of the Constitution. This is the option Bush should have chosen, because we try, convict and execute criminals with the protection of the Constitution on a regular basis. Providing constitutional rights does not mean giving someone a free pass.
So Bush is going to try these men as "enemy combatants" by a military tribunal, which will not even give them the protection of the Uniform Code of Military Justice. It will be another legal farce. They will be convicted. They will be executed. And the rule of law, already battered in America, will suffer another wound.
There are some lines in a play in which a man is cautioned against cutting down the protection of the law to get at his enemies. "I would cut down a whole forest to get at my enemies," he says. "Oh, and when they come for you, where will you hide?" replies the other man.
That’s the point. When we uphold the rule of law, we are acting in our self-interest, not in the interest of criminals or terrorists. We can nail them with the rule of law, but if we destroy the rule of law, we make ourselves vulnerable to injustice. It’s not just a terrorist who can be arrested and held incommunicado for an indefinite period of time. It’s anybody the government thinks is a terrorist.
The rule of law is all that stands between us and the worst kind of government by the worst kind of people.
