Can You Criticize The Bush Administration on Gitmo Without Criticizing the Soldiers?

At the end of WWII many of the Nazi’s being tried in the Nuremberg Trials employed what became known as the Nuremberg Defense. Generally speaking, the Nuremberg Defense consists primarily of the accused seeking to absolve themselves of all responsibility for their crimes by claiming that “they were following orders from a superior authority.”

It is generally recognized that this is not a valid defense as long as the accused knew the order to be unlawful, or a person of ordinary sense and understanding would have known it to be unlawful (see Rule 916. Defenses in the MANUAL FOR COURTS-MARTIAL UNITED STATES, page 111). In fact, this view has been held for so long that the members of the United States military know that they have a specific duty to not follow unlawful orders. This standard is right and proper, however it has the effect of saying that if the accused knows that a particular order is unlawful and they still choose to obey that order that they are as guilty of the crime as are their commanding officers. Hence, in a court of law they can and should be tried for their crimes.

Most people (but apparantly few Democrats) understand that the torture and murder of millions in the Nazi Death Camps was unlawful, that the murder of millions in the Soviet gulags was unlawful, and that the murder of millions by Pol Pot in Cambodia was unlawful. So when someone like Senator Durbin seeks to create a moral equivalence between our actions at Gitmo and the actions of the Nazis, the Soviets, and Pol Pot he is, in effect, saying that the men and women of the U.S. Military at Gitmo are committing war crimes against humanity.

The legal precedent described above does not leave much room for being selective in one’s remarks. Even if the Democrats and Senator Durbin truly believe that the administration’s policies at Gitmo are the moral equivalent of mass murder and genocide, then legally speaking the men and women stationed at Gitmo must also be guilty of the crimes that they presumably recognize that they are committing. If they can be held legally responsible for their actions then I do not believe that Senator Durbin can simply claim that he is only directing his allegations at the administration. He is making accusations which would, legally speaking, apply to anyone and everyone who is involved in those crimes.

Any other position on the part of Senator Durbin and the Democrats who seek to give him cover would, in effect, be minimizing the pain and suffering caused by the likes of the Nazis, the Soviets, and Pol Pot by effectively saying that those who had suffered should have no legal redress against those who actually carried out the abuses. In other words, this would be like saying to the Jews who survived the concentration camps that they could only hold Hitler himself responsible for their suffering and could not seek charges against those who actually inflicted that suffering such as “Ivan the Terrible,” a particularly sadistic Nazi guard who ran the gas chambers at the Treblinka death camp in occupied Poland.

I, for one, believe in the rightousness of the average American Soldier. I believe that they stand for freedom and justice for all, and I believe that if they were ordered to do something that they truly felt amounted to the moral equivalent of mass murder and genocide that they would stand up and refuse to carry out that order.


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