Tuesday, January 16, 2007
Retribution or responsiblity?
Update: January 17.
Charles Stimson apologized for last week's remarks about lawyers defending terror suspects.
BBC Report
Reuters report here.
So why did Stimson make the remarks in the first place?
Update 2.
Harvard Law professor Charles Fried zeroed in on Charles Stimson in an op ed piece in the Wall Street Journal, now reprinted on the Harvard site.
Fried was Ronald Reagan's Solicitor General and is considered a leading U.S. conservative lawyer:
In his article, Fried says:
That's what my original post was all about.
Original post begins-and stands.
There is a little known fact in the history of war crimes.
The first British war crimes trial in the Far East after the Second World War was for Japanese crimes against Muslim prisoners of war.
Muslim prisoners of war liberated by the United States Marine Corps.
A war crimes case that was first investigated by the Marines, before it was handed on to the British.
The British made sure that the Japanese accused got a vigorous defence.
How times have changed.
Last week, the New York Times and other American media reported the shocking story of how far some in the Bush administration are willing to go in dismantling centuries of Western democratic and legal tradition.
On January 13, 2007, the Times reported that Charles Stimson, deputy assistant secretary of defense for detainee affairs had told a Washington radio station that serves employees of the American government that he "was dismayed that lawyers at many of the nation’s top firms were representing prisoners at Guantánamo Bay, Cuba, and that the firms’ corporate clients should consider ending their business ties."
The Wall Street Journal made the same point in an editorial which the Times says "quoted an unnamed 'senior U.S. official' as saying, 'Corporate C.E.O.’s seeing this should ask firms to choose between lucrative retainers and representing terrorists."
Here is the summary of the story from Editor & Publisher.
Here is the UPI version of the story as it appeared in the conservative Washington Times.
More on Stimson later in this post. But perhaps Stimson and the conservative radio talk show host who made a Freedom of Information request for the list of law firms should learn something from history, which brings me back to Japanese war crimes.
The Muslim prisoners were among members of the British Indian Army, from the Frontier Force Regiment and the Hyberabad Infantry,who refused to join the pro-Japanese Indian National Army after the surrender of Singapore. They were put on board a "hell ship" and sent to the island of Babelthuap in the Palau Islands where they spent three years as slave labour for the Japanese.
When it came to the trial, the British made no secret of the political reasons that the case was the first to be tried. It was aimed at the population of India, which was soon to be independent.
The case was named for the senior Japanese officer in the case Gozawa Sadaichi and nine others.
(with Gozawa, the last name first in Japanese style). You can find a summary of the case on the University of California at Berkeley war crimes site.
A young British lawyer named Colin Sleeman was one of two named to defend the 10 Japanese and two years later published an account of the trial. For this post what he says about defence in such a trial is worth remembering
Sleeman reported that the his clients were "extremely favourably impressed by the kind of trial which they were getting. Gozawa Sadiachi freely admitted this himself and frankly agreed that had the position been reversed, the captives would have been shot out of hand just as their Japanese captors thought fit."
Sleeman concluded his introduction to the trial with these words:
In a second case, one I have written and blogged about before, where the Japanese waterboarded innocent British, Eurasian and Chinese civilians, Sleeman was the prosecutor; a man named Samuel Silkin defended.
The two together wrote an account of that trial and they concluded:
(My emphasis in both quotes)
Colin Sleeman went on to become a distinguished British judge who died in the summer of 2006. (Obituary from The Times here and The Telegraph here.)
Samuel Silkin became the Attorney General of the United Kingdom in the Labour governments from 1974-1979 and later a member of the House of Lords.
Some in the Bush administration would argue that eight centuries of legal tradition matters not because the accused are not from a belligerent power, a "participating nation."
That is wrong.
Whether or not they are uniformed members of a regular army or ununiformed guerrillas, insurgents and terrorists, the purpose of the trial, as Silkin and Sleeman pointed out, is that the law finds individual responsibility and holds those individuals to account.
And one, sadly, has to wonder if the law will ever hold to account those who are now authorizing and carrying out waterboarding in the name of freedom.
And certainly, since many prisoners at Guantanamo have been released, a good many still there could be innocent.
Sleeman was right in his stand that it is a fair trial, with a vigorous defence, that distinguishes our society from the others.
Back to Stimson.
After the Times articles, the Pentagon quickly disassociated itself from its deputy assistant secretary, as reported by an Associated Press report on the CNN website.
Blogger Andrew Sullivan has twice called for Stimson to be fired, here and here.
Sullivan says
That sounds familiar to me.
Here is what the late Lord Louis Mountbatten, then the Supreme Allied Commander in Southeast Asia, wrote in his introduction to Colin Sleeman's book on the Gozawa trial.
10:26 PM posted by Robin Rowland
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Update: January 17.
Charles Stimson apologized for last week's remarks about lawyers defending terror suspects.
BBC Report
Reuters report here.
"Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not," Stimson wrote in response to the furor over his remarks.
"I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs," he wrote.
So why did Stimson make the remarks in the first place?
Update 2.
Harvard Law professor Charles Fried zeroed in on Charles Stimson in an op ed piece in the Wall Street Journal, now reprinted on the Harvard site.
Fried was Ronald Reagan's Solicitor General and is considered a leading U.S. conservative lawyer:
In his article, Fried says:
How unfortunate that in this country we have plaintiffs' lawyers and defendants' lawyers, lawyers who represent only unions and others who represent only management. One looks with nostalgia at the British bar, where barristers will prosecute one day and defend the next.
That's what my original post was all about.
Original post begins-and stands.
There is a little known fact in the history of war crimes.
The first British war crimes trial in the Far East after the Second World War was for Japanese crimes against Muslim prisoners of war.
Muslim prisoners of war liberated by the United States Marine Corps.
A war crimes case that was first investigated by the Marines, before it was handed on to the British.
The British made sure that the Japanese accused got a vigorous defence.
How times have changed.
Last week, the New York Times and other American media reported the shocking story of how far some in the Bush administration are willing to go in dismantling centuries of Western democratic and legal tradition.
On January 13, 2007, the Times reported that Charles Stimson, deputy assistant secretary of defense for detainee affairs had told a Washington radio station that serves employees of the American government that he "was dismayed that lawyers at many of the nation’s top firms were representing prisoners at Guantánamo Bay, Cuba, and that the firms’ corporate clients should consider ending their business ties."
The Wall Street Journal made the same point in an editorial which the Times says "quoted an unnamed 'senior U.S. official' as saying, 'Corporate C.E.O.’s seeing this should ask firms to choose between lucrative retainers and representing terrorists."
Here is the summary of the story from Editor & Publisher.
Here is the UPI version of the story as it appeared in the conservative Washington Times.
More on Stimson later in this post. But perhaps Stimson and the conservative radio talk show host who made a Freedom of Information request for the list of law firms should learn something from history, which brings me back to Japanese war crimes.
The Muslim prisoners were among members of the British Indian Army, from the Frontier Force Regiment and the Hyberabad Infantry,who refused to join the pro-Japanese Indian National Army after the surrender of Singapore. They were put on board a "hell ship" and sent to the island of Babelthuap in the Palau Islands where they spent three years as slave labour for the Japanese.
When it came to the trial, the British made no secret of the political reasons that the case was the first to be tried. It was aimed at the population of India, which was soon to be independent.
The case was named for the senior Japanese officer in the case Gozawa Sadaichi and nine others.
(with Gozawa, the last name first in Japanese style). You can find a summary of the case on the University of California at Berkeley war crimes site.
A young British lawyer named Colin Sleeman was one of two named to defend the 10 Japanese and two years later published an account of the trial. For this post what he says about defence in such a trial is worth remembering
To be charged with the responsibility of conducting the defence, upon capital charges, of ten nationals of a State so lately our bitterest enemy and who were facing accusations of brutality and murder against members of the British armed force was as indeed as curious a position as that in which any two British officers could find themselves placed....
How a man can defend a prisoner whom he knows or feels, to be guilty? The answer generally is (and certainly was in the Gozawa case) that he does not know. As Dr. Johnson said: "A lawyer has no business with the justice or injustice of the cause he undertakes, unless his client asks his opinion and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the Judge..."
In a criminal case then, the duty of an advocate for the accused is, regardless of his personal feelings, "to protect his client as much as possible from being convicted, except by competent tribunal and upon legal evidence sufficient to support a conviction with which he is charged."
Sleeman reported that the his clients were "extremely favourably impressed by the kind of trial which they were getting. Gozawa Sadiachi freely admitted this himself and frankly agreed that had the position been reversed, the captives would have been shot out of hand just as their Japanese captors thought fit."
Sleeman concluded his introduction to the trial with these words:
It is, I think, fairly clear that the average citizen of this country wants to see the Japanese War Criminals disposed of summarily without too much delay or fuss, but I am not sure what his attitude would be if it were fairly put to him that by doing so he would be in grave danger of doing himself one of the chief things he fought against, namely killing innocent men in the general massacre. In any case it would certainly have harmful consequences in the future. It is hoped that when the future comes, the ordinary man will be glad that he did not allow his natural feelings of indignation and horror to override his principles; for emotions are a bad guide to conduct when long-standing principles are in question.
In a second case, one I have written and blogged about before, where the Japanese waterboarded innocent British, Eurasian and Chinese civilians, Sleeman was the prosecutor; a man named Samuel Silkin defended.
The two together wrote an account of that trial and they concluded:
To many the most important question which arises out of cases such as this: What is the purpose of trying and executing those involved and what benefit is likely to be secured? That the desire for retribution is an element in the answer to this question can hardly be denied. But that is not the most important factor. Wars in themselves are inhuman, but it is possible to temper their inhumanity with the rules, which are observed by participating nations. If the Double Tenth case served no other purpose it served this, that is had been clearly placed on record that no soldier or civilian of a belligerent power can excuse his individual conduct, howsoever offensive and repugnant to civilized morality it may be, by the plead he was forced to commit it in difference to the commands of his superiors. In wartime it is easy to lose sight of the principles of individual responsibility: it is the purpose of such trials to ensure that this responsibility is fostered and remembered.
(My emphasis in both quotes)
Colin Sleeman went on to become a distinguished British judge who died in the summer of 2006. (Obituary from The Times here and The Telegraph here.)
Samuel Silkin became the Attorney General of the United Kingdom in the Labour governments from 1974-1979 and later a member of the House of Lords.
Some in the Bush administration would argue that eight centuries of legal tradition matters not because the accused are not from a belligerent power, a "participating nation."
That is wrong.
Whether or not they are uniformed members of a regular army or ununiformed guerrillas, insurgents and terrorists, the purpose of the trial, as Silkin and Sleeman pointed out, is that the law finds individual responsibility and holds those individuals to account.
And one, sadly, has to wonder if the law will ever hold to account those who are now authorizing and carrying out waterboarding in the name of freedom.
And certainly, since many prisoners at Guantanamo have been released, a good many still there could be innocent.
Sleeman was right in his stand that it is a fair trial, with a vigorous defence, that distinguishes our society from the others.
Back to Stimson.
After the Times articles, the Pentagon quickly disassociated itself from its deputy assistant secretary, as reported by an Associated Press report on the CNN website.
Blogger Andrew Sullivan has twice called for Stimson to be fired, here and here.
Sullivan says
He should be fired, if the deep damage that this administration has already done to the rule of law in America is not to be compounded.
That sounds familiar to me.
Here is what the late Lord Louis Mountbatten, then the Supreme Allied Commander in Southeast Asia, wrote in his introduction to Colin Sleeman's book on the Gozawa trial.
I considered that nothing would diminish our prestige more than if we appeared to be instigating vindictive trials against individuals of a beaten enemy nation, on charges which even our own courts found themselves unable to substantiate.
Labels: Andrew Sullivan, Charles Stimson, Guantanamo, human rights, Japan, Singapore, slavery. slave, torture, United States, war crime, water torture, waterboarding, World War II
10:26 PM posted by Robin Rowland
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