“The United States cannot have it both ways. If Germans after World War II were responsible to higher laws, then the American soldiers guilty of slaughtering women and children at My Lai should also have been responsible. The designing of [nuclear] weapons at Lawrence Livermore Lab that could end all life on earth is evil, an abomination and a crime against humanity. We, too–you, I and all of us-- must answer to that higher law.”
-- Court statement of a protester against the arms race before being sentenced, 1983.
During the 1980s, I was a lawyer for many Americans who were arrested protesting U.S. military and foreign policies. Many were impelled to protest not out of any desire to break the law, but out of a vision deeply rooted in lawfulness, and in a belief that their country had strayed from any path that could be understood as lawful. Their views echoed those of the Americans who, in the aftermath of the terrible chaos of World War II, sought to articulate a new set of principles–the Nuremberg principles–that would hold the people who wield state power to account. In the words of Robert H. Jackson, U.S. Supreme Court justice and chief U.S. prosecutor at the Nuremberg war crimes tribunals, “[i]f the nations which command the great physical forces of the world want the society of nations to be governed by law, these principles may contribute to that end. If those who have the power of decision revert to the concept of unlimited and irresponsible sovereignty, neither this nor any charter will save the world from international lawlessness.”
Those protesters were motivated by profound feelings of personal responsibility, even though they were “only” ordinary citizens. Whether one agrees with their stand on the issues or not, it is sobering to compare their commitment and sense of public duty with the behavior of the highest officials of the United States government today. We are seeing instead a collective flight from responsibility by those who sold us the Iraq war and set policies which unleashed atrocities.
Even more disturbing is the legal vision used to justify our current course. Lawyers for the executive branch maintained that the President and those who follow his orders are above the law. Thus, in their view, “[in] order to respect the President’s inherent constitutional authority to manage a military campaign against Al Qaeda and its allies, Section 2340A [prohibiting torture] must be construed as not applying to interrogations undertaken pursuant to his Commander-in-Chief authority.” This argument claims precisely the kind of “unlimited and irresponsible sovereignty” which the World War II generation well understood as the path to “international lawlessness.”
The alacrity with which our most powerful institutions in the post 9-11 climate cast aside what many thought were fundamental precepts of the international order of the past half century may tell us more about the fragility of our legal and moral commitments than we want to know. Aggressive war, “utterly renounced and condemned as an instrument of policy” by the Nuremberg generation (Justice Jackson’s words again), quickly was enshrined as policy in the President’s National Security Strategy of the United States. So too went the Geneva Conventions and other treaties painstakingly developed to place some limits consonant with human dignity on the savage impacts that warfare has on ordinary people who are ordered to take up arms, or who merely are unfortunate enough to live in war’s path. Our government now regards these laws as a corporation might treat some minor regulatory impediment–as just one more factor in the cost-benefit analysis, as technicalities to be violated when advantageous and then papered over with layer upon layer of lawyers’ arguments and high-powered public relations campaigns.
The integrity of our moral and legal principles can best be judged by our adherence to them when we are faced by the kind of crisis that makes them most difficult to uphold. This is, of course, something a law student learns in the first few weeks of a constitutional law class. We learn, for example, that our commitment to freedom of speech only has meaning if we will passionately defend the right of others to say things that we detest. The same holds true, and is perhaps even more important, for the rules governing when and how our government may make war. It is in the very nature of things that the decision to go to war will be taken in a climate of fear and vengefulness, and it will be easier in that climate to loosen one after another moral, cultural, or legal restraint on war’s violence. If feelings of fear and vengefulness are not already widespread, a regime that wants to take us to war will do everything in its power to instill them. At such moments, governments typically invoke their powers as defenders of the realm to place their actions beyond question. But it is precisely at such moments that the State’s claim that it is lawfully exercising power must be scrutinized most carefully.
State lawlessness almost inevitably begins, as it did after the 9-11 attacks, with an “emergency” suspension of the rules that limit State power. The conventional view is that law comes only from the State. Law is as strong as the State, and as weak. But this view leaves us with few legal resources when governments descend into lawlessness. In the end, it means that law is what the most powerful can get away with. It gives us no hope for law– and little for any kind of civilized existence–when those who control the state are lawless.
An alternative view holds that law is created by human communities– as is the State itself. Law begins with a story of who we are as a community -- where we came from, where we want to go -- and a moral vision that is consistent with this narrative. The State elaborates one such vision into rules, and conjoins them with force: Obey these rules, as interpreted by the State, or suffer the consequences meted out by its courts and police. In this way, the State and its agents demonstrate their commitment to their particular version of our shared normative vision, and our shared story. In the words of legal historian Robert Cover, they stand ready to “write their bloodier texts in the bodies of the inmates of the penal colony.”
But as Cover also reminds us, while the State may have a monopoly on legitimate force, the responsibility for interpreting the collective moral vision embodied in our laws lies with all of us. The responsibility to make real commitments in the service of that vision is ours as well. When people risk arrest and imprisonment by nonviolently protesting what they believe to be the lawless acts of their government, they are not merely “breaking the law.” They are seeking to embody an alternative vision of lawfulness, by living consistently with their own understanding of our continuing story as a community, and of the rules by which both citizens and State must live if that story is to ring true. In this view, we always are bound to our understanding of who we are as a society, and to the normative vision that sustains it. Law is as strong as the social movements and communities we build for ourselves, measured by our shared commitment to the values our vision of lawfulness aims to incarnate.
Those moments of resistance that are labeled “civil disobedience,” can, therefore, be better understood as dramatic commitments to a different kind of obedience, to our intentions to live consistently with our vision of our community and our laws. But all of us are faced every day with moments when we can choose to make some commitment, perhaps at some risk, to the society we want to live in and the values necessary to build and sustain it. The most common choice is to speak up or remain silent. Are we willing to say what we truly believe when speaking to a friend, a co-worker, or a stranger about what is happening in the world? In the professional worlds of law and politics, we often find ourselves choosing between arguments grounded in principles we believe in, and those which the political and legal “experts” tell us are likely to prevail in legal or legislative forums. In those contexts, principles too often are dismissed as utopian or treated as instruments, to be taken up or discarded in accordance with propaganda techniques honed with focus groups and tested with polls. Those of us who don’t have access to focus groups or polls often will slant our arguments to fit with “mainstream” opinion and the positions put forward by “pundits.” So we commonly find people who believe that war is wrong arguing only for kinder and gentler, more rule-observant warfare, and people who believe that the pursuit of global military domination is wrong arguing only for a less risky and more efficient mix of weapons and tactics to achieve it.
Against this background, we cannot be surprised when young soldiers, in the face of danger and acting under orders from their superiors (and unspoken pressure to “get results”), lose their moral compass. When we wonder how so many could have made choices we see as being clearly unprincipled, we must first ask ourselves this: In the society that raised them, how often do we hear about such principles, and how often do we see people take even small risks to act consistently with them? Further, we must recognize that the transgressions of a government that has sunk deep into lawlessness will not be redeemed by a few court decisions reining in, for the moment, the worst of its excesses. Neither would it be enough to remove or punish the officials directly responsible for this lawless war and its atrocities. Instead, we need a searching examination of how we as a country came to a place where those in power can justify almost anything in the name of “national security,” and where many of us appear willing to accept the killing and torture of others without limit if we can be convinced it may make us “more secure.”
The Nuremberg principles cryptically foreshadowed Cover’s insight that we all make our law together. To say that there are times when we can be punished for unlawful acts, even when we act with State sanction, implies as well a universal responsibility to interpret the law and to commit to what is truly lawful, rather than simply to what the State declares is lawful. In Cover’s words, “[t]he normative universe is held together by the force of interpretive commitments--some small and private, others immense and public. These commitments--of officials and of others--do determine what law means and what law shall be.”
Refusing to act in the service of our legal interpretations changes not only the meaning of the law, but the meaning of our story, of our history. Our government lied to us and to the world to justify an aggressive war. It now appears likely that our government’s highest officials promulgated policies, and “legal” rationales to defend them, that resulted in the torture and killing of prisoners. If we fail to do everything in our power, consistent with our vision of lawfulness, to hold them to account, then even the meaning of Nuremberg will darken. It will become harder to understand those trials so many years ago as a step in the realization of a universal normative and legal vision. Instead, the sentences meted out to the Nazi leadership will look more like revenge killings of an emerging global superpower, bent on establishing a world in which it rules through force while standing above the law.
We hear from American politicians that the torture and killing of prisoners is “not consistent with American values.” But those who suffered in cells at Abu Ghraib, in shipping containers in Afghanistan, in metal cages in Guantanamo, and in the shadowy network of American “detention facilities” worldwide are witnesses to the path we truly are on– a path that stretches back through U.S.--assisted death squads throughout the Americas and covert CIA assassination programs in Vietnam. Telling ourselves stories about who we are is not enough. We must act to make our principles real, or face the fact that our national myths are just that.
Andrew Lichterman is a long-time San Francisco Bay Area peace and environmental activist. He also taught law at alternative institutions for many years, and as an attorney has represented peace and environmental activists in a variety of settings. More of his work can be found at www.al.marginalnotes.org.