brainrow

I was just watching an episode of the PBS program American Experience, about the Nuremberg war crimes tribunal after World War II. During his cross examination of Hermann Goering, Robert H. Jackson, the chief counsel for the United States and a Justice of the U.S. Supreme Court, asked the following question:

You did prohibit all court review, and considered it necessary to prohibit court review of the causes for taking people into what you call protective custody. That is right, isn’t it?

Goering answered, in a roundabout way, that Jackson was correct.

You know, this situation reminds me of something more recent. Gitmo, perhaps? Or was it Tom Delay, bemoaning the existence of judicial review in the Washington Times?

I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that’s nowhere in the Constitution is that Congress didn’t stop them. The reason we had judicial review is because Congress didn’t stop them. The reason we had a right to privacy is because Congress didn’t stop them.

Or perhaps it reminds me of the Bush Administration’s determination to skip constitutionally-mandated warrants for their domestic wiretaps. There are just so many things to choose from, when looking for examples of official unwillingness to be constrained by law.

This little exchange from the Nuremberg transcript sends a shiver down my spine, for some reason:

MR. JUSTICE JACKSON: Was it also necessary, in operating this system, that you must not have persons entitled to public trials in independent courts? And you immediately issued an order that your political police would not be subject to court review or to court orders, did you not?

GOERING: You must differentiate between the two categories; those who had committed some act of treason against the new state or those who might be proved to have committed such an act, were naturally turned over to the courts. The others, however, of whom one might expect such acts, but who had not yet committed them, were taken into protective custody, and these were the people who were taken to concentration camps.

Brrrrrrrrrrr!!!