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Jaruzelski charged with leading an armed criminal organization:

Poland's former communist dictator, General Jaruzelski, has been criminally charged with leading "a crime related armed organization." That organization, of course, was the government of Poland.

To some people, the notion that a government could be a crime organization would seem strange; for example, Richard Nixon once declared "If the President does it, it's not illegal." One of the ways in which the Roman Empire showed its inferiority to the Roman Republic was by espousing the notion that the Princeps was above the law.

The better view, however, is the rule of law also applies to the government, and that governments can indeed degenerate into criminal organizations. In The City of God, Augustine wrote: "If justice be taken away, what are governments but great bands of robbers?" He told a story attributed to Cicero.

Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, "What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor."
(The story appears in a section of Cicero's Commwealth from which several pages of the original text have been lost, and only the final sentence remains.)

The same point was also made, centuries before, by the great Jewish scholar Philo of Alexandria. And as Don Kates, explained in an excellent article in Constitutional Commentary, the American Founders (and their British intellectual influences, such as Blackstone and Locke) thought that the right of self-defense was applicable against either a small band of criminals or against a larger groups of criminals which called themselves a "government."

Justin (mail):
::pauses for dramatic irony::
4.13.2006 9:39pm
logicnazi (mail) (www):
Uhh, I think this analysis ignores some pretty important differences between law and justice.

Clearly law has something to do with the actual words written down in law books. It is not valid to argue that blasphemey is against the law because ultimately blasphemy is unjust and against the law of god. Even if you are a religious judge and believe that blasphemy is against the law of god it would be wrong to suppose that what is just/right/part of divine law is the same thing as what human law must be.

If we take this seriously this general did not violate the law unless he violated what the government said was the law at the time. This is entierly possible, plenty dictatorial regimes claim to allow all sorts of freedoms but don't really and I would love the irony of him being punished on one of these fake PR laws.

However, as a practical matter publishing people in situations like this is purely a matter of vengence. The law they are being punished under is not a genuine general principle or means of deterance it is something scraped up after the fact to punish someone the people feel has done wrong. It won't have any deterance effect so it doesn't really seem any different than pure revenge.
4.13.2006 10:17pm
Ken Arromdee (mail):
If we take this seriously this general did not violate the law unless he violated what the government said was the law at the time. This is entierly possible, plenty dictatorial regimes claim to allow all sorts of freedoms but don't really and I would love the irony of him being punished on one of these fake PR laws.

It seems like that is indeed what's going on. From the link:

"This time will be different, say the IPN prosecutors, as Jaruzelski is being charged with breaking his own communist constitution, evidently proving his intentions."
4.13.2006 11:41pm
Dilan Esper (mail) (www):
I tend to agree with Kopel's position. It bears mentioning, however, that as a matter of positive law, Heads of State hold some level of immunity from prosecution and suit for their official acts (in this country, see Nixon v. Fitzgerald; with respect to other countries' leaders, the Ninth Circuit case of In re Ferdinand Marcos Human Rights Litigation discusses the concept and its limitations).

One thing about that Nixon quote. Even if one believes in head of state immunity in its strongest sense, that doesn't mean that everything the head of state does is LEGAL, as Nixon implied. Rather, it means that the President cannot be prosecuted for his or her illegal acts. This is a distinction that a lot of the defenders of Bush's wartime policies, for instance, or Reagan's violation of the Boland Amendment in the Iran-Contra scandal like to blur. There's plenty of situations, especially in foreign policy, where there is no effective check on the President's power. However, the President nonetheless swears an oath to follow the law, even if the President only has to answer to his or her own conscience when the President does not follow the law.

The point is, things like the Convention Against Torture are binding against the President-- contra John Yoo and others-- even if they cannot be enforced against the President when violated.
4.14.2006 6:12am
Smitty18 (mail):
So could you claim self defense if you assasinated your Senator on the belief she was a criminal goon?
4.17.2006 4:15pm