To demonstrate our contempt for Nazism, now half a century in the past, we have just sent a man against his will to the Soviet Union and a living legal system where he has already been condemned to death in absentia. What a blow against totalitarianism!
Conservatives such as Patrick Buchanan and William Buckley argue that Karl Linnas might not have supervised the slaughter of innocents as a concentration camp commander in Estonia during World War II. In fact, the evidence is overwhelming. But the certainty of his guilt is beside the point. The point is that we are endorsing the Soviet system of justice by allowing it to act as our proxy.
In this country we don't punish a man, let alone kill him, because we're sure he's guilty. We punish him because he's been found guilty under a judicial ritual -- partly designed to determine guilt, partly designed to protect innocents, partly designed to serve other policy goals, partly designed for no logical purpose but honored as a ceremonial tribute to the ideal of blind justice -- which is one thing that distinguishes us from Nazis and communists.
The United States has the most overblown procedural protections for criminal suspects in the world. A foreign judicial system is not illegitimate simply because it lacks Miranda warnings, the exclusionary rule and the other paraphernalia of American justice. We have extradition treaties with other nations that use different systems. But we don't extradite people to the Soviet Union, for the obvious reason that its own judicial paraphernalia -- the secret police, the gulag -- offend our sense of decency.
Karl Linnas got the bum's rush because of the nice distinction between extradition and deportation. It's true that deportees get plenty of American-style due process. Linnas' case was heard 14 times in one court or another before he finally was pushed. But a deportation hearing is very different from a criminal trial. There is no jury. The standard of proof is lower. The 1978 Holtzman Amendment, which opened the door to these Nazi deportations, actually provides that a person can be deported for having "advocated" the persecution of innocent people.
A towering legal fiction makes all this possible. As a federal judge put it in the Linnas case, "Deportation of noncitizens from the United States . . . has generally been held not to constitute punishment." That includes forcibly shipping someone to a totalitarian nation where he has already been sentenced to death.
Not that Linnas deserves any better. But if justice is what Karl Linnas is getting, why can't we give it to him ourselves instead of deputizing the world's leading thugs? Answer: there are serious constitutional problems -- as there should be -- about punishing crimes committed long ago and far away. The Constitution forbids "ex post facto" lawmaking, meaning you can't outlaw behavior that occurred before the law was passed. Although Article I authorizes Congress "to define and punish . . . offences against the Law of Nations," this might not permit a law punishing criminal behavior in a foreign country with no connection to the United States.
Fortunately for our sense of justice, the Soviets are not so fastidious. I doubt that any of the American jurists who heard the Linnas case could tell you whether the Soviet law under which he's been sentenced to death was passed before or after he committed his crimes. Nor is it clear why Soviet justice should apply to acts committed during World War II in Estonia. Estonia was a free nation between the wars. It was alloted to Stalin in the Hitler-Stalin pact, annexed by the Soviets in 1940, occupied by the Germans in 1941 and reoccupied by the Soviets in 1944.
Present arrangements put us in the morally absurd position of not caring whether a Nazi war criminal in our hands is put to death without trial or permitted to loll on the beach, so long as whatever it is happens elsewhere. This, in turn, leads to the grotesque spectacle of American officials looking for a place to dump unwanted Nazis. We almost shipped Linnas to Panama. Yes, war criminals should be punished if possible. One solution would be some sort of international tribunal, which would try them under standards the civilized world could be proud of.
Meanwhile, though, I get suspicious of any American politician who makes a great hoo-hah about tracking down elderly Nazis and punishing them, other considerations be damned. This is too politically easy to be politically healthy. It's a freebie for liberals wishing to appear tough on crime, conservatives and Arab sympathizers who want to prove a lack of anti-Semitism. Punishing Nazis doesn't deter Nazism. It serves the abstract ideal of justice, which is important, but only if that ideal isn't also being disserved in the process.
In affirming Linnas' deportation to the Soviet Union, a federal circuit court wrote: "Karl Linnas's appeal to humanity, a humanity which he has grossly, callously and monstrously offended, truly offends this court's sense of decency." But one glory of the American system is that we treat people by our standards, not their own. Karl Linnas is scum. We should have made an example of him.