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With NATO engaged in the military occupation of Kosovo, President Clinton has announced a policy of intervention in other civil wars that do not endanger our own national security. Yet, some lawyers (of which I am one) believe that our president has defied the Rule of Law, waged unconstitutional wars, violated the War Powers Act, and committed War Crimes.

A lawyer (with whom I disagree) is now even trying shamelessly to incite American soldiers to rebel. Reminiscent of his 1960s opposition to the war in Vietnam, former Attorney General Ramsey Clark currently heads “The International Action Center.” In a recent publication entitled “Appeal To Troops” the Clark group “urges all anti-war and anti-imperialist forces to find ways to deliver this message to the rank-and-file troops of the U.S. military.” The message includes:

 

    President Clinton and the Pentagon generals have put you in danger … Kosovo is Vietnam … During that war, the Pentagon had ordered — a burn all, kill all assault on the civilian population. Atrocities like that also led many U.S. soldiers to drug addiction, suicide and mental breakdowns. But there were other U.S. troops who resisted the war. Hundreds of thousands refused to go into aggressive action. Others refused to fight. Some actively organized their buddies against the war. Some felt the war so unjust that they went over to the other side. …

     

The appeal is based in part on precedents that were established in 1945 at Nuremberg. The tribunal for Nazi war crimes asserted two doctrines that later became enshrined in the United Nations charter and protocols. First, the waging of a non-defensive, aggressive war is a “crime against humanity.” Second, subordinates who commit crimes ordered by their superiors are guilty. Two decades later the precedents became a controversial international issue. As reported by the South Carolina chapter of ACLU:

 

    The years 1968 and 1969 were the beginning of a great growth for the American Civil Liberties Union. … Several factors contributed to this sudden burst of interest in the ACLU. … One factor was the rise of the civil rights movement. … Another factor was an anti-war case set in Columbia, South Carolina.

    A dermatologist who spent his off-duty hours as a civil rights activist, Dr. Howard Levy refused to train Green Berets for duty in Vietnam because they were killers of peasants and murderers of women and children. When he was court-martialed for failure to obey a lawful order, Levy called ACLU Southern Region Director Chuck Morgan, for help. Arguing in Levy’s defense that a doctor is morally bound not to train people for war crimes, Morgan was accused by the presiding judge of intimating that Green Berets were committing war crimes in Vietnam.

    Instantly, the case turned into a trial of the United States’ conduct of the Vietnam War. John-Paul Sartre telegraphed his support from Paris and Bertrand Russell’s office offered its files. Famous people including Dr. Benjamin Spock and Robin Moore, author of The Green Berets, came to Columbia to testify in the trial.

    The judge rejected the allegations of murder and torture by the Green Berets, found no evidence of war crimes, and sentenced Levy to three years in prison. While the ACLU had lost one of its most dramatic cases, it had also marked what some later would say was the beginning of the ACLU’s transition from neutral defender of civil liberties principles to liberal political partisan … and anti-war protesters and the organization’s membership began to swell.

     

Later, in his memoirs, Morgan wrote, “In 1973 the ACLU was the liberal community. … ACLU members ran the Americans for Democratic Action and the American Association of University Professors.” He described how he could not convince ACLU’s board of directors to pay for a full-page newspaper ad that then cost $12,500. It was titled, “Why It Is Necessary To Impeach President Nixon — And How It Can Be Done.”

Morgan then persuaded General Motors heir Stewart Mott to underwrite it. According to Morgan, “that profit making, membership-gaining advertisement taught some in the ACLU to trust the people.”

In the same year the ACLU also successfully lobbied Congress to override President Nixon’s veto and adopt the War Powers Resolution, In the words of the ACLU’s legislative counsel its purpose was “To ensure that U.S. troops are not sent into hostilities without congressional authorization, except in cases where a national emergency is created by attack upon the United States.”

In 1974, ALCU, with the assistance of the AFL-CIO, ADA, and AAUP, successfully lobbied the House Judiciary Committee to adopt three articles of impeachment. One charged Nixon with “making false or misleading statements for the purpose of deceiving the people of the United States.” None charged Nixon with any advance knowledge of the commission of felony by a subordinate.

With the election of President Carter, ACLU and its associates lobbied to grant “amnesty” for anti-war protesters who violated draft laws. Then Morgan went into private practice. He
counseled the Tobacco Institute on how to cope with cancer litigation and also defended Sears-Roebuck against charges of civil rights violations. To explain his transition, Morgan told his friends, “After doing good for so many years, I decided it was time to do well — in the old-fashioned American way.”

In the 1960s, conservatives chastised liberals for inciting soldiers to disobey orders — and civilians to burn draft cards, get themselves arrested for civil disobedience, or flee to Canada. These days, consistent with its “transition from neutral defender of civil liberties principles to liberal political partisan,” ACLU and its backers oppose the election or appointment of conservative candidates for legislative, executive, and judicial offices.

In the recent Clinton impeachment proceedings, ACLU did not apply the same standards to perjury that it applied in 1974 to President Nixon’s non-perjurious lies. Although ACLU now supports the affirmative action recruitment into the armed forces of underprivileged ethnic minorities, it does not lobby for increases in their low pay. ACLU no longer reaches out to defend patriotic soldiers who refuse to commit war crimes.

Also, ACLU now takes a difference stance on war crimes than it took in the Levy case. On April 28, 1999, ACLU issued a press release stating:

 

    The military action in Kosovo ordered by President Clinton violates the Constitution and the War Powers Resolution because it was not authorized by Congress … [but] the ACLU takes no position on the merits of the use of force in Kosovo.

     

It was not until after the Levy case that the War Powers Resolution was adopted. Yet, in opposition to the Vietnam war, Morgan and Ramsey Clark had not flinched from denouncing war crimes against non-Caucasian civilians in Vietnam and Cambodia.

Today, our soldiers have the possibility of a stronger case than Levy. After reviewing the history of the Nuremberg trial, Vietnam, Cambodia, Sudan, and Kosovo, an American with deep moral convictions might well refuse to fight in a non-defensive war that involves the killing of civilians. Unlike at Nuremberg, not only are international laws violated but so too are the Constitution and laws of the United States.

In President Clinton’s case a question arises whether as commander in chief he has sufficient moral authority to order our armed forces into combat — since he goes unpunished for acts that would result in the court martial of a soldier. In addition, as recently described by President Carter, the bombing of Yugoslavia reflected an amoral unawareness that “even for a superpower, ends don’t always justify the means.” It also involved, “The use of cluster bombs that are designed to kill humans and are condemned almost universally by other nations [and caused] the senseless and excessively brutal destruction of civilian life.”

President Carter further noted, “Although formidable commitments are being made in the Balkans, where white Europeans are involved, no such concerted efforts are being made by leaders outside of Africa to resolve the disputes [among non-Europeans]. This gives the strong impression of racism.” It also suggests a form of selective-prosecution that is denounced domestically by ACLU as “racial profiling.”

Today, under its 60s generation American and British leaders, NATO has undergone a transition like that of the ACLU. Until Kosovo, NATO was a purely defensive force. Its leaders now vow to fight future non-defensive wars — to end ethnic culture wars within the borders of single sovereign nations. The unanswered question that remains is, Will the ACLU or Ramsey Clark provide free legal defense to a soldier with more legal reasons to rebel than those of Dr. Levy?


Jerry Zeifman is the author of “Without Honor: The Impeachment of President Nixon and the Crimes of Camelot.” Send comments to jzeifman@yahoo.com.

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