What would a successful AK mean?/One interesting perspective

[lupinlore]

No: HPFGUIDX 142880

> Alla:
> 
> I didn't interpret the narrative about this event as sympathetic or 
> even undestanding the necessity durin the war. The person who allowed 
> to use Unforgiuveables was Barty Sr., whose reign was not fair and 
> just, no?
> 
> I was not feeling that narrator aproves what Barty did at all. I 
> don't think that this is a solid support for Avada Kedavra even as 
> necessity based.
> Just my interpretation of course.



To take this discussion in a slightly different way, I was in 
Washington the other week and happened to have lunch with someone who 
was once a high-ranking criminal lawyer in the Army's Judge-Advocate 
General's (JAG) office in the Pentagon.  His specialty was prosecuting 
soldiers accused of murder, as well as preparing the prosecution for 
war crimes trials.  It turned out that he was a mild HP fan (mainly 
from reading the books to his grandchildren)and was familiar with the 
situation at the end of HBP.  Out of curiosity, I asked him how he 
would approach this situation as a military lawyer.

Now, we should be aware up front that he is openly and admittedly an 
advocate of a very particular philosophy of military law - he has come 
out of retirement to work in a non-profit group aimed at decrying 
recent trends in military law, Abu Ghraib being the thing that brought 
him back into the arena.  He also openly despises the CIA and other 
intelligence agencies and admits that one of the main purposes in his 
present activity is to argue against allowing special exceptions to the 
law for intelligence gathering and covert activities.  So, take his 
comments as coming from someone with a very open and admitted bias for 
certain kinds of legal theories.  Also take it that he was very amused 
by the question (he thinks that HP on the whole is very silly and 
really not appropriate for anyone over the age of eleven), but did try 
to answer in good faith.

In any case, given what we know about what happened on the tower (as 
opposed to what has been theorized about it), his belief was that 
conviction probability would be essentially 100%, and in fact expressed 
the belief that no experienced defense lawyer would even try to mount a 
defense on the available evidence (always assuming their isn't some 
twist like a fake AK waiting to be sprung) and would almost certainly 
plea-bargain to avoid a death penalty, which would be essentially 
guaranteed if a conviction was handed down by a military tribunal.

Okay, not surprising.  But then I asked him about the various theories 
out there.  That is, fake AK, etc.  His response was rather stern, 
saying that if Snape was indeed the proximate cause of Dumbledore's 
death, such arguments as Dumbledore dying already, etc., are irrelevant 
and constitute no legal defense.  The only possible defense he would 
allow were those put forth by Pippin.  I.E. if Dumbledore died as part 
of an accident in what was planned as an elaborate ruse not involving 
deadly force.  If Snape attempted such a ruse without Dumbledore's 
consent then the charge would probably be reduced to manslaughter.  
When I asked him whether the facts of the situation would have any 
bearing (i.e. being surrounded,wartime, greater good, etc.) his 
response was once again unequivocal, no defense.  Such factors might be 
accepted as mitigating factors in the determination of punishment, but 
not as having relevance or admissability with regard to guilt.

Then I got to the real heart of the argument: What if Dumbledore 
ordered/asked Snape to kill him as part of an intelligence/covert 
operation? His response was immediate and uncompromising -- being 
ordered to do something, even if you are a soldier, policeman, or 
member of a covert/intelligence organization, constitutes no defense in 
western or international law to performing an illegal act, which 
killing Dumbledore would most definitely be.  Once again, such a factor 
might be accepted as a mitigating circumstance when it comes to 
determination of punishment, but not certainly as having any relevance 
or bearing on the question of guilt.  He offered the opinion that, were 
we talking about an American military tribunal in any case, if Snape 
were to plea bargain to avoid the death penalty and offer the "orders" 
mitigation in the penalty phase, he would probably receive a sentence 
of twenty years in federal prison, mitigated from life without parole.

Then he said something very interesting.  He said that one of the most 
bedrock principles of western military law is that orders to violate 
the law of war (i.e. killing a non-legitimate target which Dumbledore 
would be) are themselves a crime.  Therefore, if Dumbledore did indeed 
order Snape to do that, Dumbledore would himself be charged with the 
crime of issuing an illegal order.  The fact that Dumbledore himself 
was the target would be immaterial (and indeed, he said that, Hollywood 
movies aside, hiring someone to kill you has been determined in 
precedent to be a crime).

Finally I offered the UV self-defense theory.  He got a good chuckle 
out of that one, as of course their is no such thing as a UV.  However, 
he did say there were cases where covert operatives had claimed that 
committing a crime was necessary to preserving their cover, thus 
preserving their lives.  His response was unequivocal - no defense.  
Although it is possible that such people might not be prosecuted, that 
is a political question.  Legally (and as far as he is concerned, 
morally) such claims and indeed such facts are irrelevant to guilt.  
Once again, they might be admitted for mitigation of punishment, but 
are not pertinent to the question of guilt.

So, that is the view of one military lawyer -- albeit a military lawyer 
with no great respect for JKR's work and one who does have a very 
definite philosophy about how the law applies to intelligence 
gathering/covert action.  To sum up, the only possible defense he could 
see that would result in anything less than a murder conviction was 
that the whole thing was a non-lethal ruse that went south in a big 
way.  The popular theories constitute no defense, although they might 
be allowed as mitigation of punishment once guilt is determined.  
Indeed, the most popular theory, that Dumbledore ordered/asked/begged 
Snape to kill him, not only is no defense but would very possibly 
result in the prosecution of Dumbledore for issuing an illegal order.

So for what it's worth.  But it is interesting.


Lupinlore