“Whoever can dominate the street will one day conquer the state, for every form of power politics and any dictatorship-run state has its roots in the street.”-Joseph Goebbels, Nazi Party Minister of Propaganda, Nuremberg rally, 1934
“The goal is to dominate the street.”-US President Donald J. Trump, June 1, 2020[1]
Without getting into the complex legal aspects ofan agent provocateur, one simple summary statement is useful to acknowledge: The American president’s public behavior on June 1 2020 was purposefully incendiary and patently unlawful. On that now-unforgettable day, Donald J. Trump, by ordering police, special operations military, national guard and US Secret Service elements to forcibly clear a path for his photo-op walk to the nearby St James Church, crossed another critical line of presidential malfeasance. Here, rather than restrict deployed law-enforcement elements to their proper Constitutional and statutory roles, Trump commanded these agents (1) to actively incite citizen wrongdoing, and (2) to exploit all such cynically engineered derelictions for his own presumptive political benefit.
Let us be candid. In matters of US and international law, it doesn’t get much worse than this. By his brazenly willful wrongdoing, Trump’s commands on June 1 carried an obvious and prospectively irreversible potential for personal injuries and death. This lamentable potential was further exacerbated by opaque deployments of “unmarked” US Special Force elements into selected parts of Washington DC, and by Secretary of Defense Mark Esper’s corollary injunction to “dominate the battlefield space.”
The “battlefield?” In this case, it referred not to some distant area of hostilities, but to city streets of the nation’s capital. Americans, of course, are unaccustomed to such patently twisted meanings.
What are the relevant facts behind such problematic executive branch behaviors, by the Department of Justice as well as Department of Defense? Prima facie, on June 1, 2020, Donald Trump’s personal security detail, then operating under impermissible cover of tear gas, rubber bullets and flash bang grenades, systematically provoked otherwise compliant and unthreatening peaceful demonstrators.[2] The US federal government behavior in this Goebbels-style incident was more than “just” unnecessary or inappropriate. It was grievously illegal, including plainly evident violations of Nuremberg Principles.[3]
As these Principles are now a part of authoritative international law,[4] the agent provocateur behaviors also represented variously serious violations of U.S. law.[5] Significantly, inter alia, the Nuremberg Principles [6] require military, police and security officials to oppose any leaders’ orders to willfully injure innocent people or to commit any other verifiable crimes of state, including incitement to riot or insurrection. Such commendably high expectations are routinely ignored in authoritarian or tyrannical regimes, but this fact is not exculpatory for the United States.
Markedly different in this US matter of June 1, 2020, was that certain “peremptory”[7] rules of international ambit and applicability were being systematically ignored or manipulated by an American president.
When citizens of any proper democracy engage in observably peaceful protest, there exist no per se arguments for challenging presumptions of citizen innocence or for justifying civilian mistreatment by national executive authorities. Aware of this in the June 1 St. James Church visitation incident, some Members of Congress called upon US Secret Service Director James M. Murray and certain others to appear before the House of Representatives to explain their wrongful behaviors on June 1. In time, perhaps, the American public will be told what it ought to have been told from the start about what had actually taken place.
In addition to multiple legal derogations, it was a national humiliation for the United States to have rendered itself comparable to Adolph Hitler’s Sturmabteilung (SA), and later to the Stosstrupp-Hitler (SSH) or Schutztaffel (SS).[8] Increasingly, however, the law-violating behaviors of US President Donald Trump in these matters have lent palpable credence to such an irremediable humiliation. These significant derogations cannot simply be covered up or whispered away.
Already done, they cannot be undone.
Apropos of the Nuremberg Principles of international law, since 1950 an unalienable part of the laws of the United States, all persons are obliged to resist crimes of state. Though the June 1, 2020 incident did not rise to any determinably high level of criminal behavior, it remains legally worrisome for the United States on several intersecting levels. This is due to the president’s conspicuous indifference to assorted peremptory norms of human rights law, and to the unwillingness of individual agents provocateurs to resist what then amounted to injurious and universally prohibited crimes of state.
Although these US crimes were relatively minor, they nonetheless represented willful violations of individual legal responsibility for federal agents of law enforcement. Noteworthy, too, is that the wider context of these officially committed and incited wrongdoings centered on properly law-based protests against racism and human rights violations here in the United States. It follows that these illegal behaviors of an American president and his pertinent agencies were not “merely” violative of peremptory Nuremberg Principle obligations. They also represented unjustifiable interference with an authoritative body of codified and customary human rights norms.[9]
Looking to the future, the President of the United States should more determinedly guide all federal agencies on a proper path of law-respecting conduct. Under no circumstances should this path involve transforming the respective agents “in play” into US agents provocateurs. By definition, any such transformation would critically defile and undermine America’s most elementary principles of justice.
Going forward, the goal of an American president should be not to “dominate the street,” but rather to allow or facilitate all otherwise permissible expressions of US civilian protest. If there should still remain any doubts about this core obligation, one need only recall that Donald Trump’s selected words were an exact literal replication of Nazi Minister of Propaganda Joseph Goebbels’ 1934 rally comments for the Third Reich. Is this in any way a proper model for the United States?
[1] The startlingly close verbal congruence of the Goebbels and Trump statements is most markedly worrisome here. Inter alia, it is difficult to believe that the US President’s pertinent speech writer was unaware of Goebbels’s exact words. More than likely, these words were deemed by him an appropriate model for Donald J. Trump.
[2] In this connection, the fact that this provocation was systematic rather than merely random or visceral has various pertinent legal implications. In essence, this “systematic” quality makes the associated dereliction more egregious.
[3] See: Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, Adopted by the UN International Law Commission, 2 August 1950. UN Doc. A/1316, 2 Y.B.I.L.C. 374 (1950).
[4] International law, which is a part of US law, is itself ultimately deducible from Natural Law. According to Blackstone, this is the reason why the Law of Nations is necessarily binding upon all individuals and all states. Each state and its leaders are expected “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law . . . .” WILLIAM BLACKSTONE, PUBLIC WRONGS, in COMMENTARIES ON THE LAWS OF ENGLAND, Book 4 Ch. 1 (Philadelphia, J.B. Lippincott & Co. 1893). Though assuredly not known to President Donald Trump or even to his closest and most senior legal advisors, Sir William Blackstone’s Commentaries represent the core foundation of all subsequent US law.
[5]In precise words of Mr. Justice Gray, delivering judgment of the US Supreme Court in Paquete Habana (1900): “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction….” (175 U.S. 677(1900)) See also Opinion in Tel-Oren vs. Libyan Arab Republic (726 F. 2d 774 (1984)).Further, the specific incorporation of treaty law into US municipal law is expressly codified at Art. 6 of the US Constitution, the so-called “Supremacy Clause.”
[7] Under international law, a peremptory norm is “a norm accepted and recognized by the international community of States as a whole from which no derogation is permitted….” See Art. 53 of Vienna Convention on the Law of Treaties; entered into force, 27 January 1988.
[8] Over the twelve years of the Third Reich, other here-relevant bodyguard organizations were created: The Fuhrerbegleitkommando (FBK), the Leibstandarte SS Adoplh Hitler (LSSAH), and Reichssicherheitsdienst (RSD). At Nuremberg after the War, he behavior of these Fuhrer protective units were considered together and with other Nazi institutions with regard to both Crimes of War and Crimes Against Humanity.
[9] For authoritative sources of international law, see art. 38 of the Statute of the International Court of Justice: STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, Done at San Francisco, June 26, 1945. Entered into force, Oct. 24, 1945; for the United States, Oct. 24, 1945. 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N., 1052.Court of Justice: STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, Done at San Francisco, June 26, 1945. Entered into force, Oct. 24, 1945; for the United States, Oct. 24, 1945. 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153, 1976 Y.B.U.N., 1052.