Poking a Hornet's Nest

The news yesterday morning carried the story that John Demjanjuk, the man known to many as the guard "Ivan the Terrible" at the Sobibor death camp for 6 months in the summer of 1943, was found guilty of the murder of over 28,000 people there.

If you recall, Demjanjuk moved to Cleveland after WW2 and became a U.S. citizen. When he was finally tracked down, he was stripped of his citizenship and deported to Israel to stand trial. The FBI stated that the evidence of his crimes came from the Soviet KGB and could not be trusted. He had lied about his past on the citizenship application, however, and the decision of the INS was just.

In Israel, at his trial, there were no witnesses who could say that Demjanjuk had actively participated in any murders. A cruel guard, yes. A murderer, no. He was convicted and sentenced to death, but the conviction was overturned on appeal when evidence pointed to a different guard.

Charges were then quickly filed in a German court. The German court has now found Demjanjuk guilty of murder -- not because he had actually killed anyone, but because he was present as a guard in the camp at the time murders were committed. His was guilt by association.

Perhaps the lesson is that people should always act according to their conscience and not follow the crowd. The Nuremberg tribunals should have had a bigger impact on our society than they did; the principle that a person is responsible for his own actions regardless of the authority issuing orders became a basic tenet of American law. That was why the courtmartial of LTC Terry Lakin, for refusing to go to Afghanistan until he was shown valid proof that President Obama was indeed Constitutionally eligible to occupy the office and act as Commander-in-Chief, was so critically important.

That same President acted on information as to the whereabouts of a man who was wanted in the United States for the murders at the World Trade Center. He ordered the SEAL team to enter Osama bin Laden's compound, and, if bin Laden resisted capture, to kill him. The SEALs were simply following their orders. An accused (and self-confessed) murderer was put to death, and it seemed that all America rejoiced.

The Constitution of the United States was a unique document, designed to protect the individual from the overly exuberant exercise of democracy. It protected the individual from searches without a warrant (4th Amendment). It protected the individual from trial for a capital crime without indictment by a grand jury, and from being forced to testify against himself (5th Amendment). It provided that an accused criminal had the right to be tried before a jury and to confront the witnesses against him (Article 3 Section 2, and 6th Amendment).

America has rejoiced over the elimination of Osama bin Laden. In other parts of the world, however, questions are being asked as to whether or not his execution was carried out legally. Congress did not declare war on bin Laden, nor on Afghanistan, nor Pakistan. No grand jury indicted him for murder. The Prime Minister of Germany stated that she was glad bin Laden was dead; a German judge has filed criminal charges against her for violating a German law forbidding the encouragement of illegal acts. Could it be that the German judge has a better grasp of American law than our own President? Could it be that in following their Commander-in-Chief's orders -- and the democratic will of the majority of Americans -- the SEAL team violated their oaths to support and defend the Constitution?

Additionally, while the Constitution made the President Commander-in-Chief of the armed forces, Congress alone was given the power to declare war, raise an army, and call up the militia. It was also left to Congress alone to appropriate money and designate what it would be spent on.

A second headline in yesterday's news had to do with the NATO bombing of Muammar Gaddafi's compound in Tripoli, killing two journalists and their guide. Secretary of Defense Gates has said that the bombing of Libya serves no important United States interest, but that it has cost us $750,000,000. Congress has still not approved the bombing and the expenditure of the money. The American pilots flying for NATO are just following the orders of their Commander-in-Chief.

While the bombing was instigated by our NATO allies and some of the Arab League, much of the rest of the world, including the Russians and the Chinese, have been expressing their disapproval. Congress has not declared war on Libya, and no American grand jury has indicted Gaddafi of a capital crime. Could it be that the Russians have a better grasp of American law than our own President? Could it be that in following their Commander-in-Chief's orders, the American pilots have violated their oaths to support and defend the Constitution?

In the summer of 1943, John Demjanjuk never thought that his service as a guard, just following orders, would someday earn him a murder conviction. He didn't actually kill anyone. His big crime was that he was there and didn't object. Can America learn a lesson from that example? Will we someday, as a nation, stand before the Judge of the Whole Earth and answer for the fact that we were given a Constitution which we trampled under foot for the sake of revenge and self-righteousness?