Nuremburg is Not A Domestic Legal System

Legal issues aren’t necessarily my specialty, so it’s taking me a little while to go through the OPR’s report on possible malfeasance in the Bush DOJ, as well as various reactions to the report, but I can safely say that this framing from Paul Rosenberg is unambiguously stupid.

Judgment at Nuremberg was the sort of movie that helped me feel like I was not a freak when I was growing up.  It helped me feel that I was the real American, and bigoted wingnuts I ran into from time to time were the despicable un-American scum.

But now, Obama & his “Department of Justice” has effectively declared that those men were unjustly convicted.  They were right, and the men who prosecuted them were wrong.  They may have been guilty of bad advice, or bad legal decisions, but misconduct?  Come on!

This isn’t just a matter of “being on the wrong side of history.”  This is changing sides more than 60 years after the fact, on the great issue of what constituted good and evil in World War II.  Sure, we expect the sociopathic neocons to come down on the side of the Nazis, and clueless fratboy Bush to sign on with his signature, “Whatever.”  But Obama was supposed to be elected to clean up that mess.  To restore us to constitutional rule, at the very least.  Instead, he has given his impremature to reversing the judgment at Nuremberg.

Aside from the fact that Nuremberg wasn’t a domestic court, and that if it were it would have represented a clear violation of the Constitution’s prohibition against ex post facto laws, the larger point Rosenberg misses about Nuremberg is that it fundamentally represented the idea that there were different rules for “us” and “them.” While it’s certainly nice that World War II created new norms about the way wars should be fought, including the notion that civilian casualties should be avoided and human rights respected, no one tried to put the Soviets on trial with aiding the German conquest of Poland or enaging in their own aggressive war in Finland. Nor was Curtis Lemay dragged before any tribunals to account for the firebombing campaign against Japan or “Operation Starvation.” Lemay went on to rise through the ranks to the point he was able to argue for bombing missile sites in Cuba, which would have led to full blown nuclear war with the Soviets, and to call the resolution of the conflict without military action a “defeat,” before running for Vice-President on George Wallace’s ticket in 1968. Which, again, isn’t to discredit the Nuremberg trials, but if you’re trying to argue that we ought to hold ourselves to international standards concerning the conduct of warfare and human rights, Nuremberg isn’t exactly a great benchmark to use.