Tuesday, September 21, 2004

Nazi Views. American Views. American Actions.

Dear Colleagues:

In view of the ease with which Lyndon Johnson, Richard Nixon and George W. Bush took this country into war, or kept it in war, by means of distortions, exaggerations and outright lies, it was startling to have learned recently that the comments below were made by, of all people, Herman Goering. He made them in his cell at Nuremberg in a conversation with an American psychologist, G.M. Gilbert, who recounted them in a 1947 book entitled Nuremberg Diary (Farrar, Straus & Co., pp. 278-179), (the italics in the quotation are mine):

    We got around to the subject of war again and I said that contrary to his attitude, I did not think that the common people are very thankful for leaders who bring them war and destruction.
    "Why, of course, the people don’t want war," Goering shrugged. "Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece. Naturally, the common people don’t want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship."
    "There is one difference," I pointed out. "In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare war."
    "Oh, that is all well and good, but, voice or no voice, people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."
Recently, The Chronicle Of Higher Education carried a lengthy story about several conservative professors who, it is said, have a hard time of it because they have few or no compatriots in their institutions or are assailed by liberal students. One of the stories was about a Berkeley law professor named John Yoo. Yoo was one of the authors of the memoranda saying that the Commander-in-Chief has the authority to authorize torture notwithstanding the contrary rules of domestic and international law, and that his authorization would immunize the persons who engage in torture. These memoranda were, of course, disgraced almost as quickly as they became public. But that a law professor would write them, however politically conservative he may be, is itself a disgrace, and that Berkeley would keep such a person on its faculty after his action became known is equally a disgrace. Generally I am all for having more conservatives on faculties, and there are several in our school’s small group of faculty members, but this fellow Yoo should be cashiered forthwith. He is not a mere conservative but, in effect, is some kind of fascist. (Nor is it easy to understand how The Chronicle could pick such a person as someone who is "put upon" by the liberal camp. What’s the matter with those people at The Chronicle anyway?)

In connection with the position espoused in the infamous memos of which Yoo was one of the writers, it is, at minimum, interesting to have read something that István Deák recently wrote in The New York Review of Books in a review of a book with the self explanatory title of The Origins of the Final Solution: The Evolution of Nazi Jewish Policy, September 1939 - March 1942. Discussing the horrible murders of Jews and Russian civilians, often by the German army, and the agreement of top army leaders with policies of extermination, Deák said the following (again the italics are mine):

The army high command, again surrendering to Nazi leaders, agreed that the urisdiction of the military courts should be restricted to internal army matters, and that no officer or soldiers could be held responsible for killing a Jew or a Russian civilian.
That no officer or soldier can be held responsible for killing Jews or Russians sounds remarkably like saying the Commander-In-Chief can authorize torture despite legal strictures, and immunize the torturers, does it not? Perhaps this makes it clear why I say that, in view of his memos, John Yoo is some kind of fascist. Berkeley should be ashamed of itself for not firing him.

Yoo’s case, by the way, makes an interesting contrast with the plagiarism case of Harvard Law Professor Charles Ogletree. Those who read this blog know that this author has severely criticized what Ogletree did, especially his apparent use of others -- his assistants -- to write parts or all of his book for him. I think his conduct merits the utmost censure, and apparently Harvard may take at least some action in his case. But tell me: just how is what Ogletree did worse than a law professor writing memoranda saying that the Commander-in-Chief can authorize torture, and immunize the torturers, despite the contrary strictures of both domestic and foreign law? It is obvious, of course, that the two situations differ in many respects, and call differing values and ideas into play. But the question I ask is not how are they different or the same. It is, rather, how is what Ogletree did worse than what Yoo did? Especially since Americans did engage in torture.*
*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

    Via E-mail
    September 23, 2004

    Dear Mr. Grandel:

    Thank you for your e-mail. I appreciate your having taken the time to reply to my posting, and shall post your reply as well as this response.
    I am afraid that it is now well established that Bush and his colleagues vastly exaggerated and distorted the WMD situation regarding Iraq, even if they did not lie outright in the sense that they themselves may have believed what they were saying (albeit believing what you are saying because you want to believe it is quite a different thing from believing it because evidence compels the belief). In addition, several other countries were far more cautious than our government about forming the judgment that Iraq had WMDs. So sad to say, you see, Goering’s comment that leaders can drag countries into war on false claims is all too true of America, not just other countries. And you have not forgotten, have you, that Lyndon Johnson dragged us into war by telling fictions about supposed attacks on American destroyers?
    As for Professor Yoo, there are some things that even lawyers shouldn’t do. Claiming the Commander-in-Chief can ignore the law by authorizing torture with impunity is surely one of them. Placing the Commander-in-Chief above the law was, indeed, one of the reasons given in the Declaration of Independence for the break with England. Do you think a law professor should be able to argue with impunity, and with serious effects in the real world rather than just as some professional abstraction, that a Commander-in-Chief can break the law by authorizing torture? If so, why not outright murder? Why not whatever he wants? As for democracy, it would be gone.
    I do not know what penalty would be appropriate for Professor Ogletree. Conceivably it could depend on whether his actions were common among professors or were, rather, those of an outlier. But whatever penalty may ultimately prove to be warranted in Ogletree’s case, there are, as said, some things that beyond doubt are not forgivable, even for a lawyer. Urging the Commander-in-Chief that he can ignore the law -- a position which is the first step toward destroying civilian control and democracy -- is surely one of them. Perhaps you may be aware, incidentally, that military lawyers were, for several reasons, one of the groups most outraged by the memos that Yoo co-wrote.
    Again, I appreciate the fact that you took the time to reply to my postings.

    Sincerely yours,
    Lawrence R. Velvel, Dean

      ----- Original Message -----
      From: Troy E. Grandel
      To: velvel@mslaw.edu
      Sent: Tuesday, September 21, 2004 9:55 PM
      Subject: Nazi Views. American Views. American Actions.
      Dear Dean Velvel:

      I read your recent post, and I think you very wrong in both parts.

      While interesting, the Goering quotes are irrelevant. With these quotes, you seem to be saying that all of us are just doing President Bush‘s bidding, and that he is just dragging us along into war. Goering said that if a leader says that people are being attacked, the people will be dragged into war. The problem is that Bush didn’t just say we are being attacked, we were attacked. Remember 9/11? 9/11 may not have involved Iraq directly, but, if Bush lied to us about Iraq, then so did Clinton, the United Nations and every major intelligence service in the world, all of whom said that Iraq had WMDs. Bush did not just tell us Iraq was ignoring UN resolution after UN resolution; Iraq did ignore those resolutions. Your linking Bush to the Nazis just doesn’t work.

      No wonder conservative professors are in fear. You advocate that Berkeley fire Professor Yoo, yet he did nothing illegal; he simply acted as an attorney and argued a point of law. You just don’t like his conclusions. And, are his conclusions not protected by freedom of speech? Nothing changes since some “torture” was actually committed. Do you really feel that humiliating some prisoners is even remotely similar to the torture that Hussein used to commit? Also, the individuals responsible for the Abu Ghraib torture are being prosecuted, so it is a moot point anyway. Professor Ogletree committed an act that, if he were a student, would probably get him expelled. It is an act of extreme dishonesty. Joe Biden’s presidential campaign was destroyed one year due to plagiarism. Plagiarism is a serious matter. For a professor, let alone a law professor, to have such an ethical breach is reprehensible, yet you do not seem to be calling for Harvard to fire him. It seems that you are operating with a double standard.

      Very truly yours,

      Troy E. Grandel

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