January 9, 2020
“Rule of Law” Lessons from Nazi Germany
By Thomas Oppel, special to Business 4 Protecting The Election
He is the last living Nuremburg trial prosecutor of Nazi war crimes following WW II. Ben Ferencz, 99, barely five feet tall, personally investigated and won convictions of 22 Nazi SS officers whose own reports provided the necessary evidence of their guilt in killing over a million innocent civilians.
That war should have rules may seem incongruous, but Ferencz and his legal colleagues at Nuremburg made clear that even at their most violent, humans must recognize certain boundaries of what is acceptable.
Good order and discipline are intrinsic to an effective military force. Its application is consolidated in the Uniform Code of Military Justice (UCMJ), intended to treat even the highest-ranking officers no differently than enlisted. That is foundational to the rule of law, which was precisely what, in an interview several years ago with CBS, Ferencz said he aimed to uphold, along with deterring similar crimes from ever being committed again.
One element of the UCMJ to protect the rule of law is a prohibition against “undue command influence.” In eight years as chief of staff to the Secretary of the Navy, I came across this principle many times. Even in the military, with its strict hierarchy, superiors must not deny or impede due process or make arbitrary decisions that disrupt or ignore basic rules of procedure or fundamental rights. Concurrently, subordinates are not required, indeed must not obey illegal orders.
Think about how you might react to a superior arbitrarily punishing or protecting someone based only on the good or bad opinion the superior has of that individual? What would happen to good order and discipline? Success or failure would then depend on favoritism, not merit. Loyalty transferred from company, country or cause to a cult of personality.
That is precisely what occurred when President Donald Trump repeatedly injected himself before and after the trial of former Chief Petty Officer Edward Gallagher, who was convicted last July of posing for pictures over the corpse of an enemy combatant he was accused of stabbing to death, but found not guilty of attempted and premeditated murder.
A commander in chief, who believes that he/she does not need to follow the rule of law in the military, will most likely perceive the same lack of constraint in other areas of government.
For the business community this should be of grave concern. If the President can arbitrarily prevent a military court from following the law on holding a service member accountable, what is to prevent that President from exercising that “above the law” approach in all executive branch agencies.
Such a President could use the mechanisms of government (ex. contracts, regulations, investigations) to help or punish businesses based on loyalty to the Oval Office. The value or quality of a service or product and the following of good business practices would no longer be important in dealing with government —only loyalty to the President would lead to favorable outcomes. Being a successful entrepreneur would then become less important compared to successful partisanship.
What protects us from the exercise of this kind of authoritarianism are elections in which absolute power in a democratic republic is with the people who can hold their representatives from City Hall to the Halls of Congress to the White House accountable. If a presidential, or any election, is determined by factors other than a fair vote thus nullifying the peoples’ power, then elected leaders can feel that the rule of law does not apply to them.
That is why we must take every step to assure that our elections are based on the rule of law, that they are fair and free from improper influence, domestic or foreign, and just as importantly, that the people have confidence in both the process and outcome of our elections.
Mr. Ferencz reminds us that the German officers who committed what a court of law in Nuremburg determined were not just crimes, but atrocities against humanity, were born and grew up in the civilized homeland of Wagner and Goethe.
“War will take otherwise decent people and turn them into murderous killers,” he says, even with the rules that stand to deter the worst. “If we are repudiating law as an instrument of policy, you’re dooming the young people of the forthcoming generation—if there is one.”
Mr. Oppel is the Executive Vice President of the American Sustainable Business Council. He previously served as Chief of Staff to Secretary of the United States Navy Ray Mabus from 2009-2017.
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