Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Monday, April 18, 2005

Private contractors liable for Nazi war crimes -- Will US defense contractors be held to the same standard?

Are America's contractors having second thoughts? Recall that under the laws of war, a contractor can be held liable for contributing to a criminal enterprise that substantially deprives others of rights, or violates international law.

Today, it appears as though the United States government has issued materially false and misleading statements about the basis for war; and whether or not personnel have committed war crimes.

Specifically, before the US Supreme Court, the US Solicitor General stated that the US did not engage in torture. However, the subsequent video evidence showed this not to be the case. There have been people convicted of war crimes.

Let us to turn to the post WWII Nuremburg Trials. Recall, the contractors who contributed to the criminal enterprise were later convicted.

  • If the United States in the post 9-11 world issues misleading information, or makes statements to the media that are false, how far does the liability fall?

  • Can private contractors who know, or should know, of a flagrant violation of international law be held liable for contributing to this criminal enterprise?

  • Is it unlawful for an advertising agency located in Chicago to pretend not to know about war crimes, all the while knowingly issuing false statements that there is "no problem," and their management failing to take necessary steps, in the face of the widespread allegations of war crimes, to properly ensure the statements are factual?

    This is not to suggest that a specific advertising firm working for the Department of Defense is engaged in criminal activity. But the question arises: How far does the liability go, and can an individual advertising executive be held criminally liable if they fail to ensure that the public statements they issue in the media are factual, accurate, and adequately represent the true state of the facts on the ground.

    I would hope that advertising companies like Leo Burnett, when reviewing the suitability of contracts and work for DoD, consider the post 9-11 legacy and decide whether DoD meets LB's standards of ethics.

    Just as LB hopes to influence those adults who influence a decision to enlist, so too does the public enjoy the right to influence those contractors deemed to provide material support to an enterprise which is contrary to international law: War crimes in Abu Ghraib, Afghanistan, and Guantanamo.

    An ad agency does not enjoy a superior right to advocacy that it might like to deny others: That of influencing those who directly or indirectly support mechanism and organizations engaged in war crimes.

    In my view, there are substantial questions about the veracity of DoD claims and whether there exists a pattern of conduct designed to mislead the public prior to the invasion of Iraq.

  • Does an advertising agency like Leo Burnett have absolute immunity?

  • Can an advertising company like Leo Burnett be held criminally liable for war crimes if their efforts substantially contribute to an arguably unlawful war?

  • Could a contractor like Leo Burnette working for DoD be found, as was in the Nuremburg Trials, to have made and contributed a substantial, material amount to an arguably unlawful war?

    We have yet to decide. But it is absurd that in the days of "never forget" about the Holocaust, many are quick to ignore the lessons of the past and pretend that "it doesn't apply."

    I would hope that all carefully examine the legacy of the Nuremburg Trial and carefully examine whether your conduct meets the standard of being above reproach. I am not persuaded that a machine linked DoD can mobilize a nation for war, unless there are many willing to go along with that effort.

    Yet, I find it disturbing that reasonable questions remain unasked; and reasonable inquiry is not done all in the name of "not rocking the boat."

    Sometimes a boat needs to be rocked, especially when it continues to transport self-described "patriots" to the shores of Hades.

    George Washington, when he crossed the Delaware, did not anticipate that his own country and constitution would be destroyed in the name of advancing freedom.

    But little did we imagine that contractors, in the wake of Nuremburg, might hope to plead the, "We didn't know"-defense to what otherwise is closely associated with a national mobilization.

    Yet, will a contractors' contribution to an illegal enterprise be factored in to the advertising awards? I think this should be factored into the judging.

    If the advertising industry will not regulate itself in re ethics and the contributions to enterprises which arguably violate the laws of war, history and the courts may utlimately be the final arbiter.

    I would hope that DoD contractors and advertising agencies speak out about war crimes, and make it clearly known their position.

    In turn, I hope they take affirmative steps to act on these statements, and not merely say one thing for the sake of ratings or to appease the DoD contract managers, all the while doing something which is later found to be substantially supporting an enterprise engaged in war crimes.

    The contractors only enjoy immunity from prosecution if their side wins on the battle field. But we saw in Europe that early victories are not immunity nor an absolute defense when the forces of justice and accountability arrive on the scene.

    That day is coming. Let us hope that DoD contractors choose the right side of history. Choose wisely. There are no medals for second place. Just jail time.