January 26, 2012 | 4:00 am
Posted by Jonah Lowenfeld
Imagine the following scenario: Your country is attacked. The attack comes suddenly, without much warning, a direct hit on the central seat of power. As fear and rage bubble just beneath the surface, a controversial political leader, who represents the preferred choice of maybe half of the country’s citizens, takes over the country’s most powerful office. The country’s very identity is under threat, the leader says, a threat from an enemy that must be defeated. This new leader declares a state of emergency.
You are a lawyer, and you watch as the leaders of your country enact new laws—the better to protect the people from this dangerous enemy, they say—and transform old ones, broadening and extending them in unprecedented ways. Police officers begin working more closely with the armed forces. In court, some people have lawyers; others are denied legal representation. For some unlucky defendants, detention can come at any time, without so much as an explanation of the charges against them.
This scenario describes the situation that faced attorneys and judges in Nazi Germany. On January 25, in his presentation “Law, Justice and the Holocaust,” historian William Meinecke, Jr., outlined the process by which, step by step, lawyers in Nazi Germany acquiesced to the policies set out by Adolf Hitler.
Forced to pledge allegiance to the Fuhrer, German defense attorneys turned on their clients, and pleaded for convictions. Low-level criminals—petty thieves, for instance—were given death sentences by obedient judges.
And some lawyers did even more to advance the Nazi agenda. In 1942, Meinecke said, a group of high-ranking Nazi officials met in Wannsee, where they devised the “Final Solution,” a regimented process that efficiently brought about the murder of millions of European Jews.
“Of the 15 who met at Wannsee,” Meinecke said, “nine had law degrees. Six had doctorates of law.” Why is it, the historian asked in a room full of lawyers, that the study of law is not a barrier to engaging in—or justifying—activities that are obviously illegal?
Meinecke has given this hour-long presentation countless times before, telling lawyers and judges around the world about how lawyers and judges in Nazi Germany engaged in gross miscarriages of justice in the name of protecting “the interests of the national community.”
At the University of California, Los Angeles Faculty Center, 150 people, most of them lawyers, listened to Meinecke recount the case of Jewish film director Henry Koster, who had the second half of his two-picture deal declared null and void on the basis of a clause that was intended to take effect if Koster died or became disabled.
Koster, whose name was then Hermann Kosterlitz, was very much alive and well in 1933, but with the Nazis in power, no film of his could ever be shown in Germany. The film company cancelled his contract, and three separate courts, including the country’s highest, found in their favor, against Koster.
Wednesday evening’s event was presented by the U.S. Holocaust Memorial Museum, Bet Tzedek Legal Services and the School of Law at UCLA. In his introduction, Stan Levy, a founder of Bet Tzedek, said that now is an appropriate time to talk about law and the Holocaust, since the pro bono firm was set to present an award to the museum for its assistance with its largest single initiative, the Holocaust Survivors Justice Network, at its gala the following night. Furthermore, Levy pointed out, this Friday, Jan. 27 has been established by the United Nations as Holocaust Remembrance Day.
But the event’s second component—a panel discussion with three legal experts responding to Meinecke’s remarks—was appropriately timed as well. UCLA Law Professor David Kaye pointed out a present-day legal gray zone—the U.S. detention center at Guantanamo Bay, marking its 10th anniversary this month.
Each panelist began by assuring their fellow lawyers in the audience that the legal justifications of Germany’s genocidal war against the Jews is not comparable to the use and/or abuse of law in the United States’ post-9/11 War on Terror. (Despite parallels hinted at in the first two paragraphs of this post, the two situations are more different than they are similar.)
But then they all attempted to explore what lessons might be learned from the failures of lawyers and judges to hold their ground against the Nazi-reformulation of Germany’s laws.
Attorney Charles E. Patterson, a partner in the Los Angeles office of Morrison Foerster, represents one of the detainees being held at Guantanamo.
“Your access to your client is carefully controlled,” Patterson said. “You have to show to what’s called ‘a privilege team’ anything you want to take in.” Anything he wishes to take back with him must be given back to that team upon exit. It’s up to the team to decide whether or not to return those notes at a later time, Patterson said.
“He knows nothing,” Patterson said of his client, a 30 year-old Saudi Arabian who has been at Guantanamo for 10 years. “But because he has a graduate degree in electrical engineering, the government is convinced there must be something connected to something.”
Loyola Law School Professor Laurie L. Levenson, who worked as a federal prosecutor for a decade before becoming a professor, presented to the audience evidence of the transformation of the “material witness law,” a U.S. law she said was established in the 1700s and had long been used sparingly, if at all.
“It wasn’t a favored mechanism,” Levenson said, explaining that the law gives prosecutors the right to detain individuals, even United States citizens, for an unspecified amount of time without charging them with a crime if their testimony is considered essential to the prosecution of a criminal.
After 9/11, though, use of the material witness law exploded. Many of those detained under the law were held for at least a week without being charged. Half of all those so-called material witnesses were never called to testify in a court proceeding.
“From my perspective, oftentimes laws are very neutral on their face,” Levenson said. “They can be used for good, and they can be used for not good, and the most important thing is that the public pay attention.”
In Nazi Germany, the record of lawyers and jurists was abysmal. UCLA Law School Dean Rachel Moran made this clear from the very start, by quoting from a passage from Elie Wiesel’s memoir, “Night.”
In one section, a young boy is hanged in the concentration camp.
“Where is God now?” a prisoner cries out. Wiesel writes that he believed God was hanging on the gallows.
For Moran, it wasn’t only the divine that was absent.
“The question,” Moran asked, “might equally have been, where is law now? And how did it come to this?”
By comparison, the degree to which lawyers like Patterson and others are raising alarm about the legal limbo of the Guantanamo detainees is encouraging. Moreover, even though Guantanamo shows no signs of being closed down anytime soon, some 800 other terror subjects have been prosecuted in United States Courts, Patterson said. Ninety percent of those tried were convicted.
“We can deal with the threats to our security without denying the accused the basic rights provided by our Constitution,” Patterson said.
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