by AndrewMc | 4/17/2009 11:22:00 AM

In 1945 and 1946 the victorious Allied countries held a series of trials amidst the rubble of the German city of Nuremberg. The defendants were a particular vicious group of Nazi leaders who had been responsible for the atrocities carried out in the name of the German people. There was little disagreement about what had occurred—the Holocaust, medical experiments, slave labor, and other horrifying crimes.

There was some high-placed criticism of the trials, notably from Chief Justice Harlan Stone, and Justice William O. Douglas. Some pointed out that because the trials were run by the Allies, and allowed for no appeal, there was not true impartial justice. Others pointed out that some Axis leaders were being tried for violating treaties to which they were not signatories.

Whatever the criticisms the trials proceeded, and resulted in some acquittals, some jail terms, and some executions. For the most part Nazi defendants never denied that the various atrocities occurred. Some denied that they themselves had taken part, others denied that they were not the primary actors in whatever had taken place. Allied lawyers and judges took these pleadings into account and rendered judgments.

However, there was one line of argument that the Allies rejected out of hand—“I was only following orders” (or Befehl ist Befehl). This came to be known as the Nuremberg Defense. In response the Allies issued what is called Nuremberg Principle IV, which states that “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

For decades this has been the operating principle for military trials involving possible war crimes. William Calley and 26 men involved in a massacre at My Lai claimed that they were only following orders. For a variety of reasons William Calley was the only one convicted, and indeed he made the claim that he had been following orders, as did his men. Some have seen this as a reversal of the Nuremberg Principle, although others argued that it did not.

The recent decision by the Obama administration to forgo charging CIA agents who tortured captives in Afghanistan, Iraq, and at Guantanamo Bay, Cuba, represents a thorough repudiation of the Nuremberg principle that has supposedly guided our military and government personnel for decades.

At its core, this principle states that no person is bound to follow an order from a superior that is clearly illegal, whatever the justification for that order might be. It would seem to also encompass a situation where an official is told by a superior that an illegal order or action was legal. Some might quibble that President Bush’s legal team brought forth a legal justification, and therefore torture became legal. This is debatable, and an investigation would clarify matters, and would certainly help set guidelines for the future.

Except that Attorney General Holder stated that "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”

Following with "This is a time for reflection, not retribution," President Obama is, in essence, saying that the rule of law in the United States is less important than some nebulous effort to put the sins of the past administration behind us.

Clearly—whether you see yourself as secular or religious—these were sins. Set aside the fact that numerous intelligence officials have said that the United States gained no valuable information through the torture, and that what they did gain they already knew, the torture techniques are of a type that the United States has not only signed treaties outlawing, but has also prosecuted people from other countries for practicing. Even now one of the former leaders of the Phnom Penh is on trial for war crimes, including waterboarding. When they do it, it's torture. When we do it, it isn't.

Regardless, it is always fashionable among politicians to say “we’ve strayed away from the original intent of the Founders. If only we could be more like they wanted us to be, this country wouldn’t be in the mess it’s in. That style of complaining even has its own literary genre--the jeremiad--invented by the Puritans.

Those Puritans were a strange bunch, by our own standards. To join the church you had to stand in front of the congregation and catalog your sins. Each and every one of them, stretching back as a far as you could remember. As a community, too, the Puritans felt that in order to cleanse the community of its sins, it was necessary to catalog those sins and perform some kind of repentance. The jeremiad comes from that.

In form, the jeremiad involved an acknowledgment that the current misery suffered by the community was the result of a series of corporate sins. There was usually a call for some kind of repentance.

In his attempt to “put the sins of the past behind us,” President Obama is missing the chance to stand before the community of the world, catalog the our sins (torture), and issue a call for repentance (through a Special Prosecutor). This would reinforce both the idea and practice of the rule of law in the United States, as well as reaffirm the core founding value of being a City on a Hill to which other nations can look as a moral beacon.

That President Obama has chosen to do otherwise by negating Nuremberg Principle IV is a grave mistake.

Labels: , , ,



Blogger Ahistoricality on 4/17/2009 12:19 PM:



There's a jurisdictional problem, as I understand it: while it's true that in military and international law NP IV stands fairly unchallenged as the dominant theory, within US law itself there is, I believe, a fairly clear exception that's been carved out for members of the executive branch operating under what they believe to be legitimate legal authority. This is why the lawyers - Yoo and Bybee -- are getting so much attention: having issued their opinion as members of the OLC, it is, actually, binding on the executive branch and does provide legal cover under US law for actions taken which fall under that opinion.

This ignores, of course, the idea that international treaty supercedes domestic law -- which is pretty damn unpopular in the US as a principle -- and the possibility that properly constituted international courts could (maybe should) be the proper venue for handling crimes against humanity anyway.

And I'm no lawyer, so I could be entirely mislead on this by what I'm reading in the political press.


Blogger Valtin on 4/20/2009 1:38 AM:

NP IV is alive in U.S. jurisprudence. For one thing, the obligation to refuse an illegal order is written into the Uniform Code of Military Justice.

In the end, it doesn't matter because the Nuremberg Defense was written out of both Geneva and CAT. The latter is enshrined in U.S. Code 18 Ch. 1, Sec 3:

"Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.
Except as otherwise expressly provided by any Act of Congress, an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years."

The offense against the U.S. is torture, in U.S. Code 18, sec. 2420