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Should Officials Be Tried For War Crimes?

December 8, 2008 – As a new group of leaders takes over the helm of the federal government, the question of whether their predecessors should be held accountable for alleged war crimes still lingers among authors, scholars and journalists.

Lawyers Michael Ratner, president of the Center for Constitutional Rights, and Stuart Taylor, a National Journal columnist and Newsweek contributing editor, sat down with law professor David Vladeck on Nov. 20 to talk about whether high-level government officials should be investigated, and if necessary, prosecuted for post-9/11 torture policies.

“That will send a message that we don’t torture anymore, nor will we torture in the future,” Ratner said at the Law Center panel discussion.

Ratner’s recent work, The Trial of Donald Rumsfeld: A Prosecution by Book, alleges that high-level officials of the Bush administration “ordered, authorized, implemented and permitted war crimes,” including torture.

He contends that new laws and executive orders against torture won’t work if administration lawyers are allowed to twist them to justify abusive conduct.

“This just wasn’t misinterpretations of the law,” he said. “This was a war on law itself.”

But Taylor asserted that any officials who might face prosecution for their actions should be pardoned when it comes to war crimes and torture. Investigations and prosecutions, he said, would “tear the country apart” at a time when the incoming president will have many other problems to solve. And there was no evidence, he maintained, that high-level officials acted with criminal intent when they were relying in good faith on the advice of government attorneys.

“It would be illegal and unconscionable for the same Justice Department that authoritatively advised people that waterboarding, within careful limits, does not violate criminal law to turn around and say, ‘Come to think of it, it did violate the criminal law, now that the administration’s changed,’” Taylor said.

The lawyers agreed, however, that the “torture memos” drafted by administration lawyers in 2002 to justify mistreatment of detainees were indefensible.

“(The Office of Legal Counsel) was not giving independent counsel. They were shaping their memos … to fit a policy that had already been determined,” Ratner said.

Responding to questions from Vladeck, Ratner said he believes that certain administration lawyers involved in the matter had greater culpability than the high-ranking political or military officials they advised.

When asked, Ratner said he could, in fact, draw limited parallels to the Nazi lawyers of World War II. He said those lawyers had rewritten the law to empower Nazi soldiers in occupied countries to seize anyone suspected of collaboration, try them in secret military tribunals and punish them without oversight of any civilian authority.

“The legal principle that came out of that … is that you can’t give unwarranted legal advice where the foreseeable result of that advice will be the commission of crimes,” he said. “The lawyers were part of this group, cabal, every word that you want to use -- that got together and decided, ‘we want to interrogate people in a certain way.’”

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