Obama’s ignorance or mendacity 1

 This from Power Line:

Speaking at a town hall meeting in Pennsylvania last Saturday, Obama addressed the Supreme Court’s Boumediene decision granting Guantanamo detainees the right to challenge their confinement through habeas corpus proceedings in federal court. Obama asserted that the "principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process – that’s the essence of who we are." He explained:

I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.

John and I derived some precepts for trial lawyers from the Nuremberg trial in "Lessons from the cross-examination of Hermann Goehring." In the course of researching that article I was reminded that the Nuremberg trial was conducted before a military commission composed of representatives of the United States, Great Britain, France and the Soviet Union. The most prominent surviving Nazi leaders were brought for trial before the Nuremberg tribunal in late 1945. Winston Churchill had proposed, not unreasonably, that they be summarily shot. The victorious allies nevertheless subsequently agreed that they would be brought before a military commission to be convened pursuant to the London Agreement of August 8, 1945.


In Boumediene, the Supreme Court disapproved of the system of military commissions Congress had adopted at the Supreme Court’s urging. Obama to the contrary notwithstanding, the Nuremberg defendants’ "day in court" occurred before the kind of tribunal the Supreme Court found constitutionally inadequate in Boumediene.

The Nazi war criminals were given no access to American courts. Their rights were governed by the charter annexed to the London Agreement. Here is the fair trial provision of the charter:

In order to ensure fair trial for the Defendants, the following procedure shall be followed:


(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.

(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.

(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

The charter provision on the appeal rights of the Nuremberg defendants was even shorter and sweeter. There were no appeal rights. Article 26 provided: "The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review."


In short, the procedural protections afforded the Guantanamo detainees under the statute before the Supreme Court in Boumediene substantially exceed those accorded the Nuremberg defendants. Obama’s unfavorable comparison of the legal treatment of the Guantanamo detainees with that of the Nuremberg defendants suggest either that he does not know what he’s talking about, or that he feels free to take great liberties with the truth.

Posted under Commentary by Jillian Becker on Thursday, June 19, 2008

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This post has 1 comment.

  • The NAZIs were members of a lawfully constituted government and military. They wore the uniform of their country and were captured during a declared war and were classed as POWs. As grotesque as their crimes were, they did follow the rules of war when conducting military to military operations. Nevertheless, they got more than they deserved with the trials.

    The Guantanamo inmates are ‘detainees’ and no one is sure what that means. There has been no declaration of war and nothing has been legislated to replace it. The detainees did not belong to a uniformed lawfully constituted army. Some were taken prisoner in battles, others were essentially sold into captivity by neighbors with a grudge.

    However they were detained, the crimes of which they are accused were not committed on US soil and not always against US citizens or US military personel. Such crimes, if that’s what the actions were, are not usually prosecutable in US civilian courts.

    I don’t know what the classification of these men should be, but it isn’t POW, criminal, or civilian combatant. Though not an organized army, jihadis are hostiles involved in combat with a commnand organization. Nothing we current have fits the circunstances. If Congress is not going to do its duty by declaring war, then the government should legislate what it is and how to treat the hostiles.