You Are the Prosecuting Attorney....

Discussion in 'Too Hot for Swamp Gas' started by shelbygt350, Apr 28, 2014.

  1. shelbygt350
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    shelbygt350 Well-Known Member

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    Here is the case:

    You have been retained to prosecute a man for his involvement (ample evidence in hand) in the murder of hundreds of thousands of Jews. It is post 1945. You are in Germany. You are a USA attorney.

    After you present all of the facts of what he did in the mass murders, the Defense attorney raises the following counter points and defense:

    (1) The execution of Jews was "legal" in the nation/society of Germany during the time period the defendant did so.

    (2) One nation, or a group of nations, or even another society, does not have the right to impose its laws on another. Thus, what is illegal in USA, can be legal in another country, and logically, the USA courts cannot cross national borders and impose its laws. Examples include Prohibition, speed limits, voting rights, abortion, divorce, etc.

    For example, the current (at that time) segregation of whites and blacks in schools, in USA, is illegal in Egypt. Egyptian Govt cannot enter USA and prosecute USA citizens.

    (3) Following ones own country's laws, as directed, is 'legal' even though it maybe unacceptable to another. Victory in a war does not automatically provide for the imposition of a different set of morals on the defeated country.

    (4) To not obey the directives of the Government and leadership of Germany, pre 1945, would in essence have been "illegal", therefore, what is illegal yesterday cannot be deemed legal after the fact and visa versa.

    (5) As a citizen of a nation, the defendant is required to follow the laws of that nation. That applies to all citizens of all nations in the world. By what authority does another nation have the right to impose, retroactively, another set of laws on a citizen of another nation?
  2. channingcrowderhungry
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    channingcrowderhungry Well-Known Member

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    I think you are trying to apply sane thought to the insanity that is war. Whether legal or illegal at the time, as the saying goes, "to the victor go the spoils." In this case the spoils include prosecuting Crimes Against Humanity as defined by the London Doctrine after the war. So to answer your question, I would say the authority to prosecute is the same authority one nation derives from all subsequent actions it takes upon victory of war.
  3. rivergator
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    rivergator Well-Known Member

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    was it legal in Germany?
  4. MichiGator2002
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    MichiGator2002 VIP Member

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    This is sort of the legal ethics discussion that actually played out in the Nuremberg trial -- who is a legitimate authority? What is the applicable body of law to which the accused is and was subject? Are such trials just victor's justice dressed fancy?
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  5. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    I do admire the attempt to give even the Nazi's due process, and the "following the law" defense didnt really work, nor did it for Eichmann in Jerusalem. They probably could have hung Nazis and war criminals indisriminantly and no one really would have objected too much.

    Also, seems like quite a bit of the killing (the Einsatz Gruppen, the Death camps, the mass executions) were done outside of Germany (and quite deliberately so), in places perhaps not under German civilian law during the chaos of war and occupation. But whatever the case, declaring a class of people enemies of the state, and then liquidating them because they are thus guilty of treason is probably not in keeping with the spirit of the "rule of law."
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  6. Lawdog88
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    Lawdog88 Well-Known Member

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    Of course. As well as the history, the victor writes the rules, which have retrospective application.

    But they were good ones in this case, and besides, everybody kind of, sort of, knew them anyway, even if they hadn't actually been written down.

    IOW, close enough for government work.
  7. shelbygt350
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    shelbygt350 Well-Known Member

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    Whose "rule of law" ?

    Assume he did murders inside borders of Germany (sorry, I was not specific).

    If "to the victors go the spoils" then was it ok for North Vietnam to torture and keep USA servicemen in slavery during and after Vietnam war?

    Also, if so, then what is occurring in Crimea is ok ? Ditto Saddam vs the Kurds?
  8. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    Nuremburg was a military tribunal, not an application of international law, which can be quite fickle because the most powerful nations tend to not be very commited to the idea of international law (usually only when it suits them). Which is why Slobadan Milosevic can be tried in the Hague and why Bush/Cheney or Putin will never stand trial for breaking international law in invading Iraq or Crimea.
  9. shelbygt350
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    shelbygt350 Well-Known Member

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    Let's go back to the original question. If "you" are the prosecuting attorney, what do you present after the defense has presented the above ?
  10. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    I present this:
    Notice that crimes against humanity maintains that domestic law is no "out."
  11. shelbygt350
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    shelbygt350 Well-Known Member

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    Under whose Authority? In other words, under whose authority is that Tribunal and Agreement established? Was it established pre 1935? or after WWII?

    Is it a vote of leaders of nations? Is the authority thus based on a vote?

    What is a crime against humanity? Is "humanity" all people, or just those over 21? Does it include people who harm a nation?

    I am curious as to how to overcome the defense.
  12. MichiGator2002
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    MichiGator2002 VIP Member

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    My seminar on Nuremberg was in part done by Judge Bork, and a major point of discussion was whether or not the process and body of law applied was, in and of itself, a natural law argument.
  13. shelbygt350
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    shelbygt350 Well-Known Member

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    What is a "natural law" argument?
  14. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    3 people were aquitted in the Nuremburg trials (I believe they were all civilians) - you could look at their cases. Basically , the evidence against them was not very strong WRT the definitions of the crimes as outlined, and they could produce exculpatory evidence that in some cases they acually did not promote aggression against Jews or other nations (so no paper/audio trail), or even did things that delayed or worked against such efforts.
  15. shelbygt350
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    shelbygt350 Well-Known Member

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    Let's go back to the original question- how does the prosecuting attorney defeat the defendant's attorney defense as listed above?
  16. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    You mean a narrow defense only along the lines that a) the court lacks juristiction or b) by claiming they were simply following civilian laws in their country? The answer is that they don't have to, because that is not a valid defense against those charges. The same reason you cant plead insanity if you are not adjudicated as insane. The court wont recognize the defense. Also why Cliven Bundy's defense of not recognizing the federal government does him no good either when he violates federal law.
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  17. MichiGator2002
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    MichiGator2002 VIP Member

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    Natural law theory is that, like natural rights, there is a body of law that is established in human nature and that of the natural world. St. Thomas Aquinas wrote about it as one of four layers of law bridging the distance in authority between God and man (in descending order -- eternal, divine, natural, and human). What your hypo and what Nuremberg lacked was clarity of human law, so the discussion stemmed from whether they were de facto applications of natural law.
    Last edited: Apr 28, 2014
  18. shelbygt350
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    shelbygt350 Well-Known Member

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    You are the Prosecuting Atty.....what do you present to overcome their defense argument.

    You state it is not a valid defense....not valid as to why, under whose authority does it make those laws which were once legal in Germany, illegal?

    Prosecute it..overcome the defense. I have a hint of what/where you are going, but dont have my arms around it.
  19. shelbygt350
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    shelbygt350 Well-Known Member

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    Was the Prosecution's assertion (or yours if you were the Prosecutor) that, logically, there is a Law from God that supersedes the laws of nations and man? That a nation's laws must first come from this Higher Authority?

    Is that what you mean?
  20. wgbgator
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    wgbgator Sub-optimal Poster Premium Member

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    What I'm saying is that if I am stepping into the role of the prosecuting atty, then I don't have to contend with that argument at all, because its not one the court will recognize or allow you to make (which is admittedly, very convenient for me). Moreover, if you are the defense atty, and that is the only argument you present (in contempt of court, basically), you have not only not given your client an effective defense, but you have probably hung your client as well.
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