Roll call vote at Nuremburg?

September 16, 2006 2:24 PM

Members of Congress are thus on notice that minimum due process guarantees under customary international law must not be denied when Congress attempts to articulate what forms of procedure a military commission should adopt.... Such denials are war crimes.

Can a vote be a war crime?
posted by orthogonality (35 comments total)

In the Commonwealth, at least, members of legislative bodies are protected, by parliamentary privilege, from any criminal or civil proseuction for activities performed in the commission of their duties as legislators. This includes voting. An MP who voted to execute all men of a certain race, or to invade another country and kill every person within its boundaries regardless of age, or some other egregious activity, cannot be prosecuted or sued for it.

I don't know if American legislators have this protection, but I think they should.
posted by solid-one-love at 2:50 PM on September 16, 2006

Link's dead for me. Got an alternate?
posted by mr_roboto at 2:52 PM on September 16, 2006

So in other words, individuals within a country signed onto international law must abide by that international law. I'm sure the next logical step is to argue that, just because the nation prohibits murder, individuals within the nation must not murder.
posted by Tuwa at 3:07 PM on September 16, 2006

Bill Frist will be prosecuted for war crimes right after Henry Kissinger is.
posted by gsteff at 3:11 PM on September 16, 2006

solid-one-love--What, then, do you think should happen to a legislator who votes to exterminate Jews, or blacks, or Mexicans, or what have you? Should he be allowed to serve out the rest of his term and retire to his home in the country? I'm not trying to be snarky here, I'm honestly trying to figure out what you think should be done with a person like that.
posted by EarBucket at 3:30 PM on September 16, 2006

In the USA, the Congress routinely excuses itself from being subject to the laws that it passes to regulate others. So the net effect would probably be equivalent to that in the Commonwealth.

However, things might get a bit dicey if any of those Congresscritters decide to go on a junket to some chocolate-making country with a higher regard for civil rights. Just like Kissinger can't travel abroad.
posted by adamrice at 3:37 PM on September 16, 2006

"We're just following orders" (from the President).
posted by Blazecock Pileon at 3:38 PM on September 16, 2006

EarBucket: Not to be too harsh, but if one person votes for something illegal, they will be judged by their constituency. If a majority votes for something illegal, it's no longer illegal*

Look at it another way. Imagine a despotic prime minister who wants to tighten his grip on power. DPM has his party (who is in the majority) vote to make all votes against his policies illegal. Presto, no more pollitical opposition. - The legislative privilege is there for a reason.

*with the exception of laws which contravene the constitution that is.
posted by Popular Ethics at 3:52 PM on September 16, 2006

Solid-one-love:

Yes, the Speech or Debate Clause of the Constitution (Art. I, Sec. 6, Cl. 1) provides absolute immunity from civil and criminal liability for legislators acting in their legislative capacity. But don't quote me on it, IANAL.

"The legislative privilege, protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation of the 'practical security' for ensuring the independence of the legislature." Justice Harlan, U.S. v. Johnson, 383 U.S. 169, 178 (1966).
posted by facetious at 3:54 PM on September 16, 2006

At this point the term "war crime" has been so badly misused and distorted as to be rendered useless for any kind of meaningful discussion. It sometimes seems as if there's hardly anything anymore which won't be called a "war crime" by someone out there -- at least if it's the United States or Israel that did it.

A word means what it's used to mean, and at this point the common use of the term has reduced "war crime" to little more than an epithet.
posted by Steven C. Den Beste at 5:13 PM on September 16, 2006

A word means what it's used to mean, and at this point the common use of the term has reduced "war crime" to little more than an epithet.

This is, of course, spectacular nonsense. The article, and this thread, is about applying actual legal insight to the legal definition of a war crime, and asking if there's honest legal argument that legislating something that is legally classified as a war crime would fall under committing said act. And yet, in a country that prints entire books accusing people who oppose the President or others of "slander" and "treason," hosts countless websites accusing major newspapers of being terrorist sympathizers, and equates opponents of policies committed by, for example, Israel and the U.S. as you so mentioned, of appeasing terrorists and fascists, you deign to pick this moment as an instance of hyperbole? kthxbye.
posted by XQUZYPHYR at 5:25 PM on September 16, 2006 [3 favorites]

SCDB: You might try here.

This is nothing more than an extension of the President's idiotic argument that the Geneva Convention, perfectly clear for six decades, is suddenly "too vague." His supporters have also been known to talk about Constitutional "gray areas."
posted by EarBucket at 5:45 PM on September 16, 2006

It sometimes seems as if there's hardly anything anymore which won't be called a "war crime" by someone out there -- at least if it's the United States or Israel that did it.

Like using white phosphorous or cluster bombs on civilians ? Oh, my, to be calling those petty wrist slaps war crimes so debases the definition of the phrase.
posted by y2karl at 5:49 PM on September 16, 2006

The idea, of course, is to pretend that torture is something that polite people can "agree to disagree" about, as Mr. Bush said the other day. It's like preferring Elvis over the Beatles, or noir over Westerns. They're hoping that if they repeat this reprehensible idea enough, people will come to accept it as a difference of opinion, rather than being something that divides the sane from the madmen.
posted by EarBucket at 5:58 PM on September 16, 2006 [4 favorites]

Oh, and an excellent piece on why definitions are so important to the President and those who still support him here.

"I did not torture that man, Khalid Sheikh Mohammed."
posted by EarBucket at 6:05 PM on September 16, 2006

solid-one-love--What, then, do you think should happen to a legislator who votes to exterminate Jews, or blacks, or Mexicans, or what have you?

Nothing. I think that legislative independence is more important than prosecuting legislators for voting evilly.

Should he be allowed to serve out the rest of his term and retire to his home in the country?

Yes. And because that's the way it's worked in the Commonwealth for hundreds of years, this is not a particularly controversial viewpoint.

I'm a big ol' leftie, but this is one of those issues where I am an arch-conservative.
posted by solid-one-love at 6:12 PM on September 16, 2006

And because that's the way it's worked in the Commonwealth for hundreds of years, this is not a particularly controversial viewpoint.

Really? How many times has the Parliament authorized genocide?
posted by EarBucket at 6:22 PM on September 16, 2006

MCs would presumably be protected from US prosecution by either the speech-and-debate clause or the immunity clause, or even general principles of legislation.

But in the only circumstances I can think of where an MC or ex-MC would be called into court for war crimes as a result of their vote, this wouldn't matter.

On the one hand, maybe someone will militarily conquer the US, much like happened to Germany in the 1940s. In which case, war crimes are whatever the conquering power says they are, and they'll imprison or execute anybody they want to.

On the other hand, maybe an MC or ex-MC is in some foreign country who doesn't like their vote very much. In which case, they probably don't give a shit whether the US constitution gives them any protection.
posted by ROU_Xenophobe at 6:28 PM on September 16, 2006

EarBucket: Not to be too harsh, but if one person votes for something illegal, they will be judged by their constituency. If a majority votes for something illegal, it's no longer illegal*

Dosn't mean they can't be charged in another country.
posted by delmoi at 6:47 PM on September 16, 2006

Dosn't mean they can't be charged in another country.

Indeed. Milosevic and Hussein's atrocities were both perfectly legal under the laws of their own countries.
posted by EarBucket at 6:53 PM on September 16, 2006

Really? How many times has the Parliament authorized genocide?

I'm trying and failing to parse your question as it relates to what I wrote.

If you're looking for a literal and not a rhetorical answer, I don't know how many times. Australia used to have a legal policy of wiping out aborigines, so it's greater than zero.
posted by solid-one-love at 6:54 PM on September 16, 2006

Sorry. My point, uneloquently made as it was, was that a Parliament that authorized widespread genocide would be one that would (hopefully) be unlikely to stand much longer--they'd face invasion and stand trial, a la Nuremburg. (I don't think the aboriginal situation counts, exactly, as nobody at the time really considered them human beings, so slaughtering them didn't arouse the same kind of horror that it would today.)

So anyway, agreed that, short of another World War or Frist and Boehner getting shipped off to the Hague, they're unlikely to be tried as war criminals. I don't think that means that, in the sense of international law, they're not guilty.
posted by EarBucket at 7:55 PM on September 16, 2006

Can a vote be a war crime?

Yes.

At this point the term "war crime" has been so badly misused and distorted as to be rendered useless for any kind of meaningful discussion. It sometimes seems as if there's hardly anything anymore which won't be called a "war crime" by someone out there -- at least if it's the United States or Israel that did it.

A word means what it's used to mean, and at this point the common use of the term has reduced "war crime" to little more than an epithet.
posted by Steven C. Den Beste

Yeah, words are meaningless and war crimes are like a T-shirt, everybody's got one.

Still, damned in [PDF] his own words means something Bugmenot.
posted by taosbat at 8:03 PM on September 16, 2006

So anyway, agreed that, short of another World War or Frist and Boehner getting shipped off to the Hague, they're unlikely to be tried as war criminals. I don't think that means that, in the sense of international law, they're not guilty.

Well, in the sense of Saudi Arabian law, most of us are guilty of heresy and pornography.

I agree that unless a country which legislates a so-called war crime is invaded and the legislators carted off to the Hague, it's pretty much just a philosophical exercise.

I am uncomfortable with the idea of war crime trials for leaders who are lawfully in power and impeachable. So: no problem with trying Hussein or Milosevic or Hess.
posted by solid-one-love at 8:22 PM on September 16, 2006

Fair enough. I'd be happy with impeaching the President and sending him back to his ranch, honestly. I'd like to see him swing for crimes against humanity, but I'd settle for removing the reins of power from his hands.
posted by EarBucket at 8:26 PM on September 16, 2006

Steven C. Den Beste writes "At this point the term 'war crime' has been so badly misused and distorted as to be rendered useless for any kind of meaningful discussion."

I'm sorry, but that's just bullshit, and you know it.
posted by clevershark at 2:38 AM on September 17, 2006

At this point the term "war crime" has been so badly misused and distorted as to be rendered useless for any kind of meaningful discussion.
posted by Steven C. Den Beste at 5:13 PM PST

No. If you can not figure out how to have a discussion about "war crime" and not have the conclusion resulting in condemnation of the present leadership in the United States does not mean the term "war crime" is "badly misused". It means that the result does not match your dogma.
posted by rough ashlar at 7:23 AM on September 17, 2006

At this point the term "war crime" has been so badly misused and distorted as to be rendered useless for any kind of meaningful discussion.

posted by Steven C. Den Beste at 5:13 PM PST


The crimes committed as part of an illegal attack on another country are by definition "war crimes".

What the hell else could they be?
posted by AsYouKnow Bob at 9:36 AM on September 17, 2006

What the hell else could they be?
posted by AsYouKnow Bob at 9:36 AM PST

Not a "war crime", because if you have a nation under the rule of law, and the law says "X happens when a war crime happens" X can't happen.
posted by rough ashlar at 11:32 AM on September 17, 2006

An MP who voted to execute all men of a certain race, or to invade another country and kill every person within its boundaries regardless of age, or some other egregious activity, cannot be prosecuted or sued for it.

They can, however, still be strung up with piano wire.
posted by stavrosthewonderchicken at 5:15 PM on September 17, 2006

Not that I advocate that sort of thing, of course.
posted by stavrosthewonderchicken at 5:15 PM on September 17, 2006

One of the more interesting of recent political links. thanks orthogonality.
posted by caddis at 5:21 PM on September 17, 2006

digby on the torture posturing--another of those war crimes we're committing-- ... The main reason I know this is kabuki is more than just instinct. It's because crap like this gives away the game:
Another irony lies in the fact that the congressional rules for interrogations that the Bush administration now seeks to embrace in the new legislation -- the Detainee Treatment Act of 2005 -- were vigorously opposed by the White House before their adoption by Congress. ...
posted by amberglow at 6:54 PM on September 17, 2006

The UK's Attorney General has weighed in. So has Reagan's Secretary of State.
posted by EarBucket at 9:27 AM on September 18, 2006

I think the president is on very firm ground here.
posted by taosbat at 7:36 PM on September 19, 2006