Dorf on Law

Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends

Wednesday, December 27, 2006

What's With Ramsey Clark?

Since his days as a Justice Department lawyer in the Kennedy Administration and as Attorney General in the Johnson Administration, Ramsey Clark has become an object lesson in the flawed logic of "the enemy of my enemy is my friend." No doubt Clark became radicalized by his opposition to the Vietnam War, and came to see U.S. foreign policy as a force for ill in the world. I don't agree with that view in general, although liberal internationalists like myself would certainly concede that some U.S. military interventions have been unjustified, unwise and/or illegal under international law. But even if one takes the Clark (read Chomsky) view of American motives, that is hardly a reason to embrace all American enemies. Most critics of U.S. foreign policy should have learned this lesson the hard way in Vietnam, when some prominent anti-war activists embraced Ho Chi Minh's Communist Party, a totalitarian regime that was not qualitatively different from Stalin's Soviet Union or Mao's China.

Apparently, Clark learned no such lesson. To be clear, I have no quarrel with Clark's choice to represent radical anti-establishment figures. Such representation falls squarely within the honorable traditions of the legal profession. But Clark has gone much farther than mere zealous advocacy. He has actively identified with the causes of the unsavory characters he represents. Thus, Clark was quoted as saying of his client Slobodan Milošević: "History will prove Milošević was right. Charges are just that, charges. The trial did not have facts." Lately, he has taken not only to criticizing the procedures that were used to try and sentence his former client Saddam Hussein (which is fair enough), but to praising and excusing Saddam's actions while in power.

There are at least three plausible reasons one might have for objecting to the execution of Saddam. First, one might think that the death penalty is categorically immoral, even when imposed after a scrupulously fair trial that produced irrefutable evidence of monstrous crimes by an unrepentant evildoer. Second, one might legitimately question some of the procedures used in Saddam's trial. And third, on pragmatic grounds one might worry that executing Saddam will only make a martyr of him (although it seems at least equally likely that keeping him alive will inspire the hopes for a revival by his followers. Consider Napoleon.) But it should not count as an independent reason to oppose Saddam's execution that the original U.S. invasion of Iraq was illegal, even though it was in fact illegal. To borrow a concept from American constitutional criminal procedure, it makes no sense to treat Saddam's trial as the "fruit of the poisonous tree" of invasion, unless one is also prepared to invalidate every legal decision that has been reached by the Iraqi government since Saddam's overthrow.

President Bush and his congressional facilitators inflicted awful damage on the United States and thousands of Iraqis by starting this war. But that's no reason to whitewash the crimes of Saddam's regime.

4 Comments:

  • At 8:25 PM, Blogger Sobek said…

    I have a quick question on your FindLaw article. It seems to me (note my lack of citation) that where a country violates the terms of a peace treaty or armistice agreement, further military action is permissible. If true, it also seems that Saddam's firing on American planes -- in violation of the no-fly agreement reached at the end of Gulf I -- easily satisfies this requirement. The only remaining question would be whether Gulf I was justified, an argument I've never seen made.

    To be sure, even if this argument is valid, the violation is nothing more than a technical justification and a pretext, but as my old crim law professor noted, the law is technical.

     
  • At 10:36 PM, Blogger Michael C. Dorf said…

    By the time the U.S., Britain and other coalition members acted, the relevant UN Security Council resolutions made clear that the response, including the use of military force, to breaches of the Gulf I armistice, were to be determined by the Security Council itself, not by individual countries such as the U.S.

     
  • At 11:29 AM, Blogger Sobek said…

    Are those "relevant UN Security Council resolutions" the ones cited in your article, or were there others?

    Incidentally, I disagree with some of the non-legal arguments in your column, but for space reasons I think I'll comment on my own blog and send you a link.

     
  • At 1:45 AM, Blogger Octopus Grigori said…

    That's all fine, but I'd just like to note, for the record, the disturbing absence in the general commentary on TV and in the press about Hussein's execution, about the U.S.'s complicity with Saddam, and our active support of Saddam when he was our monster, helping to kill Iranians (of course, we also supplied the Iranians).

     

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