Agreed. Good post KS. (wow, did I just write that? ;-)

Interesting diavlog. I am very grateful that the USA has not signed the ICC treaty. I fear Kevin's view which ultimately criminalizes any act of war. There is no way I would like to see the US intervention in Iraq brought under criminal scrutiny. The invasion of Iraq was an act of war subject to political accountability, and is in principle no different than other wars: WWII, WWI, the Civil War, the Revolutionary War. Nobody thinks that participants in those wars should be criminally liable. The Guantanamo inmates are properly classed as illegal combatants - POW's in every respect except that they have no chain of command that ultimately goes back to their political masters. I very much hope that they are not brought into the American criminal justice system - they are not criminals, but instead soldiers captured on the battlefield, and people who if returned to the battlefield will cause us great harm.

An international regime of "peace and reconciliation" is simply going to be impossible to achieve so long as 'freedom' is left out of the mix. When 'freedom' is balanced against 'peace' across a consensual standard of justice, then, and only then, will a lasting 'peace and reconciliation' be achieved. By including 'freedom' in the grounding of systems of justice, the conundrum of 'freedom fighters'--"rebels"--committing terrorism will be addressed. Don't see how the interposing of esteemed 'freedom fighters' for 'terrorists' will ever be resolved by solely holding 'peace' to be the ultimate goal. Freedom and peace are not synonymous; freedom is a moral, while peace is an ideal (Kant). Freedom (human rights) is pro-active, while peace is passive. Both freedom and peace express the desire to be left alone, but whereas peace states its desire to be left alone as a request, freedom states its desire to be left alone as a threat. The predator will carefully avoid a life-threat, and will easily--with impunity--ignore a request. To the extent that the ICC and the UN continue to emphasize peace rather than human rights, peace will be ephemeral (Kant again). This is a good diavlog, by two bright and dedicated men. However, if freedom and peace balanced

This is what BHTV is all about. Yesterday we get the great "skepticism science" diavlog and now this. Thank you, Bob (and everyone else) for continuing to bring such high-quality content to this site. --Uncle Eb

Very interesting diavlog. Not really satisfied with Heller's explanation for why he would not defend Hitler.

Quoting kidneystones: Nothing better demonstrates a commitment to human rights and rule of law than a vigorous defense of those charged with reprehensible crimes.

Saddam Hussein did not receive much of a trial and the smuggled video of his execution by a gang of chanting, leather-jacketed thugs did, IMHO, more international damage to US credibility than a hundred pictures of bombed out buildings and civilian casualties.

Rule of law is a treasure in a world where most only dream of peaceful, fair elections.

Well said. What gave the above even more meaning and force, I think, was Kevin's answer when asked, "Would you defend Hitler?" His answer, that he would not, but not because of the heinousness of the crimes, but only because of the personal conflict that would cause diminished capability, and would want someone else less conflicted to do the job vigorously, was impressive. This is something to think about when dealing with the people we have locked up now, in Gitmo and Bagram and probably elsewhere. Overall, a very good diavlog. Thanks to Kevin and Mark both.

Quoting dankingbooks: Interesting diavlog.

I am very grateful that the USA has not signed the ICC treaty. I fear Kevin's view which ultimately criminalizes any act of war. There is no way I would like to see the US intervention in Iraq brought under criminal scrutiny. The invasion of Iraq was an act of war subject to political accountability, and is in principle no different than other wars ...

Leaving aside the issue of the whole war, don't you think you've ducked part of the question here? What about zooming in, and taking a look at individual events? To the larger question of the ICC itself, I grant that if the US signs on that there could be a rash of unmerited charges filed as one way for other countries and groups to battle the US. However, I do think that we would do well to figure out a way to be a part of international law. We will gain in the long run if we are seen as us acknowledging that we do not hold ourselves above the same rules we expect others to obey.

Quoting hurt: Very interesting diavlog. Not really satisfied with Heller's explanation for why he would not defend Hitler.

Interesting. As I noted above, I found this one of the most impressive parts of the diavlog. Can you be more specific about what left you unsatisfied?

Leaving aside the issue of the whole war, don't you think you've ducked part of the question here? What about zooming in, and taking a look at individual events?

I think countries such as the US or Britain (or China or India) have sufficient civilian control over their military that they can be expected to hold their own citizens accountable for crimes (as opposed to acts of war). I believe the US has generally done this - we have well defined rules of engagement, and we take the prosecution of renegade soldiers seriously - witness Abu Ghraib. We have a free press and enough citizen watchdogs that a serious coverup is really impossible. The ICC has no role here.

Quoting dankingbooks: ...I believe the US has generally done this - we have well defined rules of engagement, and we take the prosecution of renegade soldiers seriously - witness Abu Ghraib...

If we took that as seriously as you imply I think Karpinski would have suffered more than demotion to colonel, and people above her in the chain of command would have felt a hell of a lot more heat than they did. The worst punishment any officer suffered was a fine and getting effectively kicked out of the military. In other words, everybody sentenced to any jail time was enlisted. That was a disgrace and far from what I would call a serious consideration of the matter. Even your choice of the word "renegade" attempts to blame lower ranks and whitewash the culpability of the officer corps.

Quoting dankingbooks: I think countries such as the US or Britain (or China or India) have sufficient civilian control over their military [...]

The ICC has no role here.

More or less, I buy that. (Although I'm sure I could dig up a few people from around the world who wouldn't.) But what about the other half of my question, that by joining the ICC, the US shows itself to the rest of the world not to be holding itself above the rest of the world and international law, whose behavior the US is always passing judgment upon? I think it's worth it for that reason alone. [Added] After reading Jeff's reply, I now want to withdraw my offer to buy your first part, too. But let's leave it as stipulated, for the sake of the other half of the question.

How seriously is this sort of allegation taken by the US Military? More from Wikipedia:

Carolyn Wood CPT. Wood was head of the 519th Military Intelligence Battalion from Fort Bragg. In August 2002, nine interrogation techniques not approved by military doctrine or included in Army field manuals were added after Chris Mackey and his team turned over the detention unit in Bagram to the 519th Military Intelligence Battalion. Chris Mackey had trained with Wood before she got her command at Bagram. He says that while he was “gravely disappointed” when he found out about her changes to the interrogation rules, he understands what might have been going on. “After she took over, the stakes got very high,” he says. “We went from losing three or four soldiers a month to scores of them. She must have been under a tremendous amount of pressure.”“But there was horrible incompetence at the leadership and oversight level. People were aware of what we were doing because we were open. [The prison] was practically a Disney ride, with lots of higher-ups and officials coming through. But the common response we got was, Aren’t you kind of babying

His answer, that he would not, but not because of the heinousness of the crimes, but only because of the personal conflict that would cause diminished capability, and would want someone else less conflicted to do the job vigorously, was impressive. This is something to think about when dealing with the people we have locked up now, in Gitmo and Bagram and probably elsewhere.

I was not that impressed with the Hitler answer. The whole premise of an international court is that prosecutions transcend particular religious, political and ethnic identities. In other words, everyone (or no one) is a Jew in a Hitler prosecution and everyone (or no one) is a Tutsi in the Rwanda genocide. I understand Kevin's feelings, but the Hitler answer still seems to contradict the very principles he's defending in the Karadzic case.

Wonderment, I don't know if you are reffering to a specific difference between say US justice and International Law (ICC etc.) but I would say that the standard that should be the ultimate goal to strive for would be a system where an attorney would recuse himself if he didn't think that he could effectively put aside biases that might prevent him from serving the needs of his client. I just don't see how that is a bad thing, in any hypothetical circumstance save one where there is literally NOBODY who would defend the accused. If I were the accused I would want the best representation possible. Heller's consideration of his own feelings and bias, gets us closer to this goal, not further from it.

Wonderment, I don't know if you are reffering to a specific difference between say US justice and International Law (ICC etc.) but I would say that the standard that should be the ultimate goal to strive for would be a system where an attorney would recuse himself if he didn't think that he could effectively put aside biases that might prevent him from serving the needs of his client.

I agree in general about recusals for conflict of interest or a strong bias. But I don't think "I am Jewish" justifies the recusal. If you really believe that genocide is genocide is genocide, i.e., a crime against humanity, you are participating in a trial for the sake of humanity, not for the sake of Jews or Rwandans or Bosnians. I would also apply this principle in some ordinary criminal cases. For example, I would not expect a woman to refuse to defend a rapist because women were the victims of the alleged crimes. It would be disturbing to me if a black prosecutor recused himself in a case with black victims of an alleged hate crime. On the other hand, if the rape victim were

Quoting Wonderment: I agree in general about recusals for conflict of interest or a strong bias. But I don't think "I am Jewish" justifies the recusal. If you really believe that genocide is genocide is genocide, i.e., a crime against humanity, you are participating in a trial for the sake of humanity, not for the sake of Jews or Rwandans or Bosnians.

I would also apply this principle in some ordinary criminal cases. For example, I would not expect a woman to refuse to defend a rapist because women were the victims of the alleged crimes. It would be disturbing to me if a black prosecutor recused himself in a case with black victims of an alleged hate crime. On the other hand, if the rape victim were the prosecutor's sister, I would accept the conflict of interest.

I interpreted Kevin's point as a tacit admission that it's almost impossible to be objective in the particular case of Hitler. To imagine facing the iconic personification of monstrous anti-Semitic brutality just isn't a good test case for this principle, I think.

I hear what you're saying Wonder, but I would still leave it at the discretion of the person whose hands will ultimately hold the fate of the accused's defense.

But I don't think "I am Jewish" justifies the recusal.

But if the lawyer feels so strongly about his/her Jewish heritage, then I think it is justified, and in fact their duty to take that into account. As to your rape example, I would say that many women lawyers would have no problem defending a rapist, but I know some who would. I'm just saying that I think the proper approach is to err on the side of whatever is best for the defendant's rights. I would also agree with Jeff, that the Hitler example is (as is often the case with Hitler hypotheticals) not a great benchmark. In the real world there seems to be many lawyers who are willing to defend even the most horrible criminals. I'd rather have them defended by someone who isn't suffering a crisis of conscience because of the deeds of their client if they can find a lawyer that fits that bill.

Wonderment: Eb and Jeff already said pretty much what I would have said. Just to be precise, the most impressive thing to me about what Kevin said is that he acknowledged there were practical limitations to his philosophy of the accused being entitled to the best possible defense. I won't argue about whether his reason for feeling as though he'd be unable to do his best work for Hitler was worthy or not; what's important to me is that he recognizes he would have had this diminished capability (as I think he put it). However justifiable or not "because I'm Jewish" might be as a reason, the key for me is he recognizes it exists if you come up with the most extreme case. When you say ...

Quoting Wonderment: The whole premise of an international court is that prosecutions transcend particular religious, political and ethnic identities.

... I completely agree, but I view this premise as more likely to be implemented in the real world if it's acknowledged to be a system comprised of human beings, each of whom has his or her own limitations. And to this ...

Quoting Wonderment: ... the Hitler answer still

I absolutely agree with the sentiment that even the most loathsome of 'leaders' deserve a strong and able defense; clearly, this is one of the principles that we liberals believe in. However, I can't help but feel that there is something, well . . . creepy . . . about lawyers who take it on themselves to defend people accused of war crimes, genocide etc. That is to say: while I understand the principles at work, I still can't grasp what would motivate someone to want to defend an Adolf Hitler, Saddam Hussein, or Kim Jong Il. When push comes to shove, I would be on the side of the victims, not the perpetrator.

Quoting nikkibong: I absolutely agree with the sentiment that even the most loathsome of 'leaders' deserve a strong and able defense; clearly, this is one of the principles that we liberals believe in. However, I can't help but feel that there is something, well . . . creepy . . . about lawyers who take it on themselves to defend people accused of war crimes, genocide etc. That is to say: while I understand the principles at work, I still can't grasp what would motivate someone to want to defend an Adolf Hitler, Saddam Hussein, or Kim Jong Il.

When push comes to shove, I would be on the side of the victims, not the perpetrator.

There is one aspect that may make it interesting for some to "defend" these people: having the opportunity to understand their evil mind. But that's my very professionally biased opinion.

Quoting nikkibong: I absolutely agree with the sentiment that even the most loathsome of 'leaders' deserve a strong and able defense; clearly, this is one of the principles that we liberals believe in. However, I can't help but feel that there is something, well . . . creepy . . . about lawyers who take it on themselves to defend people accused of war crimes, genocide etc. That is to say: while I understand the principles at work, I still can't grasp what would motivate someone to want to defend an Adolf Hitler, Saddam Hussein, or Kim Jong Il.

When push comes to shove, I would be on the side of the victims, not the perpetrator.

Think of it as being on the side of potential victims of out-of-control prosecutions. If the system can be abused for a war criminal, then everybody should be extremely frightened of being accused of war crimes. Balanced, objective process is one of the most important protections we have.

Quoting nikkibong: [...]

What Jeff said. If a principle doesn't apply to one, it becomes possible that it doesn't apply to some, and then many, and then most. Rules is rules. It's part of what is meant by "civilization."

My thanks to everyone -- especially wonderment -- for their intelligent comments on my interview. I have posted a long discussion of the ethics of defending Hitler at Opinio Juris; feel free to check it out and, should you be so inclined, respond.

Kevin--you beat me to it. I'm glad folks enjoyed this one. Thanks again to Kevin. People should really check out his blog. It's always a fascinating read. Till next week, guys and gals.

My thanks to everyone -- especially wonderment -- for their intelligent comments on my interview. I have posted a long discussion of the ethics of defending Hitler at Opinio Juris; feel free to check it out and, should you be so inclined, respond.

Thank you, Kevin. I greatly look forward to reading the discussion at Opinio Juris.

Thanks to you both for checking in.

Thank you Kevin and Mark for the great diavlog. Kevin, I thought this quote pretty much summed up your argument perfectly (from Opinion Juris piece):

It is not enough for a defense attorney to have an abstract commitment to the idea that every defendant deserves a skilled and zealous defense. Nor is it enough for a defense attorney to represent a defendant because he believes that, no matter how skilled and zealous the defense, an acquittal is unimaginable. On the contrary, a defense attorney has to be able to say to himself “my commitment to the idea that every defendant deserves a skilled and zealous defense is so strong that I will be able to live with myself if, as a result of my representation, my client is acquitted.” If he cannot say that — and mean it — he has no business representing that defendant.

Well said.