Le·gal In·sur·rec·tion

Whether waterboarding should have been used on 9/11 mastermind Kalhid Sheikh Mohammed and two other top al-Qaeda operatives is a legitimate issue. Jay Bybee and others gave legal opinions with which many people disagree, but I have yet to see anyone present a convincing argument that Bybee actually was so clearly wrong in his application of a specific U.S. criminal statute to a stipulated set of facts that his conduct was either unethical or criminal.

Nonetheless, I understand and appreciate the point made by critics who argue that the U.S. never should employ an interrogation method which even "might" constitute torture under U.S. and international law. This is a value judgment, not a moral absolute, unless these critics are willing to sacrifice a U.S. city for this value.

What is not acceptable to me, however, is the increasing use of analogies to Nazi Germany. Here are some examples:

• The Torture Memos: Berlin, 1937 Version
• Nazi-Lite: the John Yoo Torture Memo
• Bush’s torturers follow where the Nazis led
• "The Bush Administration used the same type of euphemism that the Gestapo used to label what was effectively torture..."
• The Nuremberg Principle
• "The presence of the doctors at the torture black sites recalls nothing so much as the doctors and scientists at the Nazi concentration camps of WWII."
• "If just saying sorry will suffice, the Nazis could have gotten away with murder."
• "I would be interested in seeing an actual count of how many times that defense was used during the Nazi trials at Nuremberg."
• Dick Cheney - Proud Nazi
• "The torture memos are filled to the brim with great stuff, things that would make any good Nazi very proud."

Why are the Nazi analogies being used? Because it is effective at demonizing your opponent through gross hyperbole. Thus, Israelis who attempt to stop suicide bombers from blowing up restaurants or Hamas from firing rockets at Israeli cities, routinely are labeled Nazis by the Iranian Mullahs, leftist academics, and a bevy of third-world dictators. It is the power to define others so that there is no real debate. Which is why the memos have been labeled the "torture memos" which begs the question from the start.

Let us not forget why some Nazi judges and prosecutors were tried and convicted of war crimes. It was not because they misapplied a statute, or gave a faulty legal opinion. It was not, as reflected in the opening statement of then Brigadier General Telford Taylor, because the conduct of the defendants was a "dishonor to their profession" or "violat[ed] constitutional guaranties or withholding due process of law." Rather, the Nazi judiciary was an integral part of the premeditated extermination of entire peoples (Jews and Gypsies, for example) and groups (homosexuals, for example):

The defendants and their colleagues distorted, perverted, and finally accomplished the complete overthrow of justice and law in Germany. They made the system of courts an integral part of dictatorship. They established and operated special tribunals obedient only to the political dictates of the Hitler regime.

They abolished all semblance of judicial independence. They brow-beat, bullied, and denied fundamental rights to those who came before the courts. The "trials" they conducted became horrible farces, with vestigial remnants of legal procedure which only served to mock the hapless victims....

In summary, the defendants are charged with judicial murder and other atrocities which they committed by destroying law an[d] justice in Germany, and by then utilizing the emptied forms of legal process for persecution, enslavement, and extermination [on] a vast scale."

And scale matters. A pickpocket and Bernie Madoff are both thieves, but hardly comparable. Someone who kills once in the heat of anger, and a serial killer who methodically plans his crimes, are both killers, but hardly comparable. It is the false logic of extrapolation, which takes a limited number of extraordinary events and argues as if the events were the norm.

By making false comparisons through extrapolation we cheapen the horror of crimes committed on a vast scale. Stretching those comparisons to involve people who likely committed no crime, makes the cheapening all the worse.

And intent matters. The Nazi judges intended to destroy civil society. The authors of the interrogation memos, and those who relied on their advice, were hoping to preserve civil society from attack by suicidal fanatics who, even during interrogation, bragged that more attacks were on the way.

Were the authors of the memos influenced by this context? We delude ourselves if we think legal analysis is completely divorced from the world in which it takes place; certainly the analysis being applied with hindsight by critics is influenced by politics and hatred of Bush dating back to the 2000 election. The practice of "extraordinary rendition" started under the Clinton administration, but there is no call to put members of Bill Clinton's Justice Department on trial.

Upholding the Constitution is not a suicide pact, and neither is protecting civil society. As former Supreme Court Justice Robert H. Jackson wrote:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

We can have an honest debate over what we are willing to do, or not do, to protect ourselves against al-Qaeda, but not if one side continually invokes Nazi Germany. That is not a debate.

-------------------------------------------
Related Posts:
Maybe Jay Bybee and Jamie Gorelick Should Be In The Dock Together
Which City Would You Sacrifice?
Further Proof Liberal Bloggers Need To Study History

Follow me on Twitter and Facebook