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Why Being “Worst President Ever” Is Not Enough

By James Rothenberg and Otto Hinckelmann

06/06/07 "
ICH" -- -- Jimmy Carter recently said, as others have before him, that this is the worst presidential administration ever (then he softened it some). The White House, in typical form, questioned Carter’s “relevance”. Considering what Carter could have said, the White House got off easy.

An unbiased look at certain, singular actions of this administration is far more damaging. Beside it, the seemingly larger, and unprovable, “worst” claim becomes very much beside the point. The real point is not the administration’s relative standing; it is the unique blatancy of its criminality.

At the end of World War 2, German government leaders were tried at Nuremberg for some of their official activities between 1933 and 1945. These trials were deemed to have established precedents for defining as crimes certain official acts. Some of the acts committed by US government officials appear to fall under the Nuremberg precedents.

At this point many readers will recoil at the suggestion that the United States can be compared in any way to Nazi Germany. This attitude cannot possibly be healthy for the United States. It suggests that as long as we stay beneath the threshold of the freight cars and the gas chambers then we can safely ignore all similarities. Only by continuing to compare and evaluate our actions against the Nazi’s can we insure that we do not degrade ourselves to their moral level.

This very thought was on the mind of Supreme Court Justice Robert Jackson, chief prosecutor of the surviving Nazi leaders at Nuremberg, Germany. Jackson was sensitive that the trial not be seen as being purely vindictive. He knew that the larger purpose of the Nuremberg trials was to establish universal principles of morality applicable to individuals acting in their official capacity within a government. In the absence of this universality he and the other judges sitting in judgment of the defeated Nazis knew they would sink to the level of the Nazis before them. In Jackson’s view his own countrymen would be subject to the same standards as the Nazis in the dock.

As he eloquently put it: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

Then president Harry Truman gave his ringing endorsement: “I have no hesitancy in declaring that the historic precedent set at Nuremberg abundantly justifies the expenditure of effort, prodigious though it was. The [Nuremberg] precedent becomes basic in the international law of the future. The principles established and the results achieved place international law on the side of peace as against aggressive warfare.”

Bush administration officials responsible for Iraq (incidentally all surviving) repeatedly and dramatically represented Iraq as an imminent threat to the United States. This was a great lie. Ample proof exists of this, most famously (though not here in the States) the Downing Street Memos. The invasion took place without UN authorization (illegally according to Kofi Annan) and therefore was an outright act of aggression, the “supreme international crime,” the crime for which the Nazi defendants were condemned.

We have a modern version of the Nuremberg Tribunal, called the International Criminal Court. It was conceived as a way to bring war criminals to justice because crimes like these inevitably reach beyond borders, making it the world’s problem. Even though the United States played a strong role in elaborating the Statute of the ICC, there were elements in it which were considered disturbing. Namely, that it would apply to the US. So President Clinton signed the treaty but asserted he would not submit it to the ratification process. State Secretary Colin Powell announced the withdrawal of Clinton's signature on the grounds that making US officials and military personnel subject to the ICC could subject them to "frivolous lawsuits." We are outside its jurisdiction.

This certainly answers the question of why no member of the Bush administration will be considered a war criminal by the ICC, but it is hardly because of the popularly accepted notion of innocence.

One wonders about the future of the ICC as a force for justice in the world when the sole international superpower and its citizens are immune from prosecution. As part of its neoliberal model, the US pressures countries either to shun the ICC or to simply enter into Bilateral Immunity Agreements that exempt Americans from prosecution. Over 100 countries have graciously accepted the offer.

Attorney General Alberto Gonzales informs the Senate Judiciary Committee that, concerning the office of the Executive, there is no such thing as a bad inherent power. The highest legal officer in the land granting exemptions to the highest executive in the land (who remembers him when). One wonders if he's aware of the assertion of the Third Reich's leading legal scholar, Carl Schmitt, that Hitler had the authority to proclaim binding law because he embodied the will of the German people.

The difference between the totalitarian ruler and the democratic ruler is that the totalitarian can dispense with legal pretense. The similarity is that both can always find legal experts who will inevitably determine that the law permits the Leader to do what he thinks he needs to do.

Here are some questions we might consider in this age of immunity:

Does the US' exemption from the jurisdiction of the ICC exempt it from its obligations under the UN charter and does this also exempt its officials?

Does the legality of the execution of the Nazi officials rest on the failure of their legal advisors to provide them with the proper exemptions?

Does the legality of the execution of Saddam Hussein rest on similarly inadequate legal structures or is it legal because his military forces, in their defeat, were unable to guarantee his immunity?

The starting point for the observations made here was to take a critical, unbiased look at the factual situation. Doing so soon leads to a deeper examination of American institutions and a society that allows such criminality to flourish. That no government in history has ever voluntarily allowed itself to be judged for criminality is no reason for not doing it. To not raise the issue in the current situation is to be a "good German."

This is not the neoconservative’s war. This war belongs to Cornell University. To the Boston Philharmonic. To Sea World and the New York Yankees and the Yosemite National Park. Nothing’s exempt, because the fake dime-a-dozen exemption doesn’t work here – doesn’t remove the blood.

The specter of what this deeper examination logically culminates in explains in large degree the enormous resistance to initiating it. Or having a former president declare to the world that a great criminal act was perpetrated.

If a war crime was committed, it is elementary that those that aid and abet this crime are also war criminals. This includes the Congress when it repeatedly funds the operations which are criminal. It also includes the soldiers who carry out the orders of the war criminals. And, yes, to the extent that we don't publicly object to it, you and me.

Otto Hinckelmann

James Rothenberg

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