Learning from the Legacy of Telford Taylor

Learning from the Legacy of Telford Taylor

We all know the adage that those who ignore history are condemned to repeat it. In a recent op-ed, Mark Shulman of Pace Law School shows how if only the Bush Administration had remembered history, they may have repeated it.

Shulman, who besides being a lawyer also has a doctorate in history and a particular expertise in military history, explains how the legacy of Telford Taylor, one of the Nuremberg prosecutors, could have been a guide to avoid the pitfalls of the current administration’s detention and interrogation policies.

The op-ed was published on May 23rd, the tenth anniversary of Taylor’s death. Shulman reminds us that Taylor used humane methods when interrogating Nazis prior to the trial. But, more than that, Shulman also highlights how Taylor’s experiences at Nuremberg informed his ongoing legal career and his devotion to the rule of law:

Having spent the 1940s witnessing the effects of a government that held itself above the law, Taylor dedicated the remainder of his long life to ensuring a robust rule of law, evenly applied.

During the McCarthy era, he defended the First Amendment rights of Communists. In the 1960s he appeared before hostile Southern courts to defend the Freedom Riders from persecution. In 1970 he decried both North Vietnam’s heinous treatment of POWs and the indiscriminate U.S. bombing campaigns.

He wrote, “The laws of war do not apply only to the suspected criminals of vanquished nations. There is no moral or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street.”

Throughout his career, Taylor promoted a strong America guided by wise policies and robust institutions. His final report from Nuremberg concluded: “By prudent military preparedness, by unflagging efforts to lay the groundwork for international society and the rule of law among nations, and by constant improvement in the economic and social foundations of our own democracy, we may hope at one and the same time to undermine these destructive and tyrannical forces and obviate the necessity for a victory by force of arms.”

Contrast Taylor’s words and actions with those of so many senior adminsitration lawyers. And then imagine if history had, in one small way, repeated itself: if the War on Terror had actually inspired in the the current administration an increased commitment to the rule of law, both domestic and international. But unfortunately that is an alternate history to our own.

Shulman’s whole essay is well worth the read. Especially by those who do (or hope to) wield power.

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Benjamin Davis
Benjamin Davis

Persons may also wish to take a gander at the April 13, 1945 address of then Justice Robert Jackson to the American Society of International Law available at The Rule of Law Among Nations. Below is a quote from him about the nature of courts that are going to try war criminals as well as a response to those who are cynics about international law. I have no purpose to enter into any controversy as to what shall be done with war criminals, either high or humble. If it is considered good policy for the future peace of the world, if it is believed that the example will outweigh the tendency to create among their own countrymen a myth of martyrdom, then let them be executed. But in that case let the decision to execute them be made as a military or political decision. We must not use to forms of judicial proceedings to carry out or rationalize previously settled political or military policy. Farcical judicial trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people.Of course, if good faith trials are sought, that is another matter. I am not… Read more »

Diplomatic Gunboat
Diplomatic Gunboat

I would lift a glass with you, to such as these.

And that Providence might grant us a few more such.