Military Necessity, Torture, and the Criminality of Lawyers

  • Scott Horton
Conference paper


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  1. 1.
    Quoted in “Britain Accused of Creating Terror Fears,” The Guardian, June 11, 2005.Google Scholar
  2. 2.
    I. Kant, Grundlegung zur Metaphysik der Sitten (1785), p. 57 (author’s translation).Google Scholar
  3. 4.
    General Orders No. 100 to the Armies of the United States in the Field (“General Order”), Art. 15.Google Scholar
  4. 5.
    General Order, supra note 4, Art. 14 (emphasis added).Google Scholar
  5. 6.
    General Order, supra note 4, Art. 16 (emphasis added). Cf. I. Kant, Zum ewigen Frieden (1795), p. 6: “No state should permit the conduct of war through such practices as would make the confidence of the counterparty in a future peace impossible: this would include the commissioning of assassinations (percussores), the employment of poisons (venefici), the violation of terms of capitulation, fomenting acts of betrayal (perduellio) in the state against which war is waged, etc.” (author’s translation). It is remarkable that Kant’s list of proscribed acts is in many respects closer to today’s crisis than Lieber’s. Targeted assassinations have in fact reemerged as a tool for certain Machiavellian leaders.Google Scholar
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    General Order, supra note 4, Art. 34: “The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.” As Lieber subsequently noted, his concern ran not only to the rights of various Christian confessions, but also to Jews and to Muslims. The importance of freedom of religion in the conduct of war and creating appropriate conditions for peace was driven home to Lieber during his participation in the Greek wars of liberation in the Ottoman Empire in 1822–1825. He believed that it would be a particular act of folly to allow war to be waged on grounds of religious intolerance, and saw the religious wars which swept France and Germany in the seventeenth century as a demonstration of the nightmarish potential of such an approach.Google Scholar
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    See generally D. Hackett Fischer, Washington’s Crossing (2004).Google Scholar
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    “And such a state of things results speedily, too; for all growth, progress, and rearing, moral or material, are slow; all destruction, relapse, and degeneracy fearfully rapid. It requires the power of the Almighty and a whole century to grow an oak tree; but only a pair of arms, an ax, and an hour or two to cut it down.” (F. Lieber, supra note 10, p. 34).Google Scholar
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    See N. Lieber, The Use of the Army in the Aid of the Civil Power (1898), a work which carries many of Francis Lieber’s notions forward and which has great prescience with respect to issues of humanitarian intervention.Google Scholar
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    L. Friedman (ed.), The Law Of War: A Documentary History (1972), pp. 814–819.Google Scholar
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    B. Brecht, Gesammelte Werke, Bd. 17 (1967), p. 1176 at p. 1179: “The great political criminals must be exposed, and principally by exposing their ridiculousness. They are above all not great political criminals, but rather the perpetrators of great political crimes, which is actually something quite different.” (author’s translation). Brecht composed this work in a freezing Finnish winter, awaiting papers to travel to New York, where he hoped to stage it as an explanation to the Americans of the essential criminality of the Nazi regime.Google Scholar
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    “Memo Offered Justification for Use of Torture,” Washington Post, June 8, 2004, at A1.Google Scholar
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    American Bar Association, House of Delegates, Resolutions, August 5, 2004.Google Scholar
  18. 21.
    American Bar Association, Model Rules of Professional Conduct, Rule 1.2; Rule 2.1.Google Scholar
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    Report by the District of Columbia Bar Special Committee on Government Lawyers and the Model Rules of Professional Conduct, Washington Lawyer 1988, p. 53.Google Scholar
  20. 24.
    This legendary remark is quoted in McCandless v. Great Atlantic & Pacific Tea Co., 697 F.2d 198, 202 (7th Cir. 1983).Google Scholar
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    United States v. Altstötter et al., in Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. III (1949), p. 1086.Google Scholar
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    H. J. von Moltke, Briefe an Freya 1939–1945 (1995), p. 46 (author’s translation).Google Scholar
  23. 27.
    Keitel’s comment was written in the margin of a memorandum from Admiral Canaris seeking a proper application of the Geneva Conventions. It was submitted into evidence at his trial in support of a request for the death penalty. His full remarks read: “Die Bedenken entsprechen den soldatischen Auffassungen vom ritterlichen Krieg! Hier handelt es sich um die Vernichtung einer Weltanschauung. Deshalb billige ich die Maßnahmen und decke sie. K., 23.9.” (G. van Roon, Helmuth James Graf von Moltke: Völkerrecht im Dienste der Menschen (1986), pp. 258–259).Google Scholar
  24. 28.
    See, e.g., “A Nation Challenged: The Prisoners,” New York Times, January 12, 2002, p. A7 (quoting Rumsfeld: “These prisoners have no Geneva Convention rights”); “Geneva Conventions Apply to Taliban, Not Al Qaeda,” Defense-Link, February 7, 2002 (quoting Rumsfeld on “irrelevance” of Geneva Conventions). Rumsfeld also directed the introduction of interrogation techniques that violated the Geneva Conventions into the theatre in Iraq.Google Scholar

Copyright information

© Springer-Verlag Berlin Heidelberg 2007

Authors and Affiliations

  • Scott Horton
    • 1
    • 2
    • 3
  1. 1.Patterson, Belknap, Webb & Tyler, LLPUSA
  2. 2.Committee on International LawAssociation of the Bar of the City of New YorkNew York
  3. 3.Columbia University Law SchoolColumbia

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