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NOTE FROM BILL MOYERS: The author of this article is over 100 years old. He is the last living American prosecutor from the Nuremberg trials where Nazi perpetrators were brought to justice for their atrocities against humanity. Read his warning and read my interview with the legal scholar, James Whitman, on his book, Hitler’s American Model: The United States and the Making of Nazi Race Law.
Think upon the fragility of the rule of law and the importance of America standing firmly behind it.
Given the death toll from COVID-19 and the continuing public outcry over police brutality in the United States, it may have gone largely unnoticed that on June 11, President Trump issued an executive order targeting the International Criminal Court (ICC), the Hague-based war crimes tribunal that the United States has refused to join.
The order, which has prompted harsh condemnation from the international justice community and other concerned stakeholders, comes on the heels of a recent ruling by the ICC authorizing an impartial investigation into war crimes and crimes against humanity alleged to have been committed by the various parties to the conflict in Afghanistan.
The order seeks to impose economic and US travel sanctions on any foreign person “directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute” personnel of the US or our allies without prior consent of their respective governments.
In announcing the sanctions, Secretary of State Michael Pompeo accused the ICC of being “highly politicized” and a “kangaroo court.” He said that the ICC would have done well to “do the right thing and kill the investigation.” Given that Pompeo was a director of the CIA when that agency is reported to have been complicit in the commission of war crimes committed by Afghan operatives, his views may perhaps come as no surprise.
As the sole surviving prosecutor from the Nuremberg Trials, I believe a few words are in order about what the ICC is and what it is not. Contrary to the current administration’s anti-ICC rhetoric, the court is neither unaccountable nor anti-American. It is a treaty-based organization whose statute has been ratified by 123 countries, including 27 of our 28 NATO allies.
In January 2011, James Tomsheck, then a top internal affairs investigator inside US Customs and Border Protection, attended a meeting of about 100 senior CBP leaders in a hotel in Irvington, Virginia.
Amid the sanitized splendor of the hotel ballroom, he vividly recalls hearing the nation’s then highest-ranking border patrol agent, David Aguilar, laying out his vision for the future. Border patrol, the former CBP deputy commissioner said, was to become the “marine corps of the US federal law enforcement community”.
Another leading CBP figure remarked that border agents were not required to adhere to the same constitutional restraints on the use of force as other law enforcers. “We are not cops,” he said.
Fast forward to this month, when Tomsheck absorbed with mounting foreboding the images of federal officers – led by border patrol agents – wielding teargas and flash bangs against protesters in Portland, Oregon.
As news circulated of demonstrators being shot in the face with “less lethal” munitions, and of unidentified masked agents in camouflage strong-arming civilians into unmarked vans, the nightmare scenario Tomsheck had heard expressed by his bosses almost a decade ago – of border patrol becoming a nationwide militarized force operating outside constitutional constraints – was becoming real.
“Border patrol has always seen itself as a militarized force, and that aspiration is now being enabled by the current administration,” Tomsheck told the Guardian.
On Thursday, Trump ramped up his threat to send border patrol agents into US cities to tackle what he claims is an epidemic of violence and anarchy sweeping urban areas. He told Fox News he was prepared to send in 75,000 federal officers, warning: “We’ll go into all of the cities, any of the cities. We’re ready.”
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