Posted by: distributorcap | April 26, 2009

Nuremberg for the Defense

The recent release of CIA memos that graphically details US government directives in prisoner of war (POW) torture, has caused a great deal of controversy and sparked vitriolic debate. The rancor lined up (as expected) straight along partisan lines, with the right vehemently defending the Bush policies and the left demanding justice. The fact that Bush and Cheney pursued a legal justification for their policy torture should come as no surprise to anyone. It is actually quite amusing (a term I use loosely) to watch the shock and surprise from the media as these revelations have been made public. What a bunch of phonies.

What is not phony is the fact President Obama stated he has no intention to go after the people who actually inflicted the Bush/Cheney led policies of torture on POWs. He is giving them the benefit of a “get out of jail free card” without any public debate. What is still left up in the air is the potential prosecution of those who formulated, justified and institutionalized these policies. On this, President Obama has been vague and changing.

It is frightening that we actually have government officials (like Senators Bond, Ensign, Representatives Bachmann, Thornberry, Pence among many others) that are going out of their way to defend (or spin) policies of torture for purely political reasons, even if it obviously goes against every principle this country has stood and fought for. It seems that many of the defenders of torture and apologists for Bush/Cheney have conveniently forgotten there was a time 60-odd years ago that US-led international court proceedings did not allow politics to pre-empt basic human rights. We as a country did not permit institutionalized criminal activity and rights abuses to be chalked up to “just following orders.” Loyalty to a political cause could not triumph loyalty to human rights.

Sadly that appears to have changed according to the rules of 21st century American politics. Defending (or sweeping under the rug) the abuses by party leaders like Bush, Cheney and their henchmen have become more important that defending the basic human rights we claim to live by. And the media’s lack of calling people out for their hypocrisy has made a big problem even more cancerous.

As a nation the professed laws and principles, the US was one of the countries that demonstrated how vital and essential it was after the defeat of Germany in 1945 to not let war crimes get swept under the rug or passed off as somebody else’s fault. At the International Military Tribune for War Crimes in Nuremberg, the Americans were very careful and explicit in not allowing prisoners a “get out of jail free card”. The Allies would not allow anyone to use “just following orders” as an excuse for war crimes. There would be no Nuremberg Defense.

This included torture.

After the defeat and unconditional surrender of Germany in 1945, the victorious allies held of series of tribunals to prosecute the leaders of the National Socialist Party. The most prominent of these was the trial of the highest Nazi military and political principals before the International Military Tribunal from November 1945 to October 1946.

The process of creating an International Military tribunal had never been attempted before. Some people argued for immediate military execution without a trial. The primary reasons given for pursuing immediate justice as opposed to a long trial were both political and emotional – to move on with the de-nazification and rebuilding of Germany, to prevent the rehashing of the tragedies of the war from dragging on, and finally to prevent the potential of turning the Nazi leaders into martyrs. The Allied governments knew the trials would be controversial and fraught with many unknowns. In the end they agreed that the best road to take was one of due process and openness, even if it looked like victor’s revenge.

As a result of the Nuremberg Trials, a several sets of guidelines that laid out the definition of international law were established. These include the Universal Declaration of Human Rights in 1948 and the Geneva Convention in 1949. The US is a party to both of these.

Another set of principals structured from the tribunals was the Nuremberg Principles adopted by the UN General Assembly in 1950. Again, the US is a party to this document. I urge you to read them, especially number IV.

They are:

Principle I
Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.

Principle II
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Principle III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.

Principle IV
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. [This is known as the Nuremberg Defense – “I was just following orders”].

Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI
The crimes hereinafter set out are punishable as crimes under international law:

  • Crimes Against Peace: Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances. The participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned.
  • War Crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
  • Crimes against Humanity: Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

As a signor of many international treaties regarding torture, human rights abuses and as a party to the Nuremberg principles – in seems pretty clear what we have to do.

If the Obama Administration does not pursue the truth, we are in essence negating the very authority we have tried to espouse. We have a duty to get to the truth and expose all the offenses, even if no one actually goes to prison. For the US to continue on as a society that proclaims moral authority, righteous behavior and acts a model to the rest of the world, we have no choice.


  1. Obama wants to frame torture as “mistakes”. The corporate media are framing the desire for justice as an obsession of the “far left”.We are witnessing the manufacturing of consent to “look forward”. Unless we see real courage from congress and real justice from the Department of Justice, our government will continue its rogue outlaw status. Where are the “tea parties” against torture, anyway? Most Americans just don’t care that much. We are an empire of apathetic citzens who will be shocked when the karmic wheel finally turns on us.

  2. This isn’t Obama’s call. This is up to the Justice Department at this point. There is at present no need to get riled up. Now if the AG does nothing about the matter then that’s a different story. The U.S. could never scream about the human rights abuses of other countries if this gets swept under the rug.

  3. On Jan 11, 2009 Pres. Obama said this: “We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth,” Obama said. “And obviously we’re going to be looking at past practices, and I don’t believe that anybody is above the law.”That’s what he said before he took office.. No he didn’t come out and say he was FOR prosecution, but he did go on to say in that same interview it would be up to AG Holder to do any investigations and determine if any prosecutions would go forward.. just as it should be up to him. I really don’t see how that has changed much from what he is saying now. That’s from This Week with George.. and it is easily available. He can’t look too happy or excited about wanting them prosecuted or it will really look like a witch hunt, but he has to be dancing in his quarters at night over it. I am sure most Democrats are.. Not that we, as a country did these awful things, but that it was the Republicans by and large that did it. It could just as easily been the Democrats that did it and I am sure there was some complicity on the part of the Democratic minority in the Congress, and if there was and it can be proven, they should go down just like the rest. That’s just how I feel about it. Torture is wrong.. I don’t care who did it, or for what reason. It is wrong, morally, criminally, ethically wrong. Besides that it doesn’t work. All you get is crap information… They all need to be stuck under the jails and air piped to them for a long, long time.

  4. Thank you, DC, for putting this together for the previously inattentive.I’ve taught in my business classes that no one should be surprised at what has happened since the “revolution of 1994’s Contract on America” because what Newt and DeLay had in mind then was to replace Democratic representatives with uneducated Rethugs who had never studied history or had any reason to think that what they were ordered to do by the rightwingnuts was anything but what the new American Empire required in order to “justly” reign over the world and bring the spoils of “freedom’s triumph” home.None of this should be a surprise to readers of even recent history.It was planned by the power players who brought us the rightwing “Morning of Terror in America,” dawning in 1980 with Reagan’s surprise appearance onto the scene as a savior for the rightwing after Carter’s attempt at bringing the first peace initiatives between the Israelis and Palestinians to a successful conclusion. They couldn’t have that, of course, and all the rest just seems to have sprung full blown from their Zeus’ brow.It seems that many of the defenders of torture and apologists for Bush/Cheney have conveniently forgotten there was a time 60-odd years ago that US-led international court proceedings did not allow politics to pre-empt basic human rights. We as a country did not permit institutionalized criminal activity and rights abuses to be chalked up to “just following orders.” Loyalty to a political cause could not triumph loyalty to human rights.

  5. D’Cap.. yes I am on Facebook.. that widget on the left side top of my blog is to my page on there. But, other than that, just under my name Annette Sousley is how to find me.

  6. botton line–we can’t be a nation that respects the law and treaties only when it’s convenient and/or politically expedient. it really is a simple, and as complicated, as that.

  7. Another thorough and well researched post. I have to say that nonnie says what I would want to – and far more clearly and succinctly.

  8. Hi Cap;To you and me and the other commenters this is an obvious hypocritical white washing.Where does it stop? If the guy on the street tortures someone he is in jail.Now the guy on the street has a legal argument. In common law, they have to be careful, for what is generally accepted in society makes a difference.You can’t clean up your house if someone with diarrhea lives in the attic.

  9. Another excellent post. And if these monsters are not punished–in some form or another–then I worry about what happens when the next republican assumes the highest office (and yes, it will happen). Knowing that W et al. got off scott free might make then feel that they can push things even farther and the torture will be used on us.

  10. this is an amazing post…you should write to the Whitehouse and site this….all of it….I too have been reading and pondering this ALOT- it was all I could think on as I looked the Photos and read the Red Cross report and the 232 Armed Service report…and tonight I had another terrible thought- wasn’t the whole point of the Nuremburg trials – an effort to make certain that due to the very public process- that it would NEVER ever happen again- such flagrant Crimes against Humanity….wasn’t that the Point …( and Justice for the perpetrators ?)we must keep writing and calling the whitehouse on this….we must….thank you for this excellent post and keeping us focused and making us a little wiser…

  11. It just points to how far the country has swung to the right over the past 40 years. As Sully points out, Ronald Reagan championed the UN Convention on Torture as recently as 1984.Now you have polls that show that only 25% of the U.S. population believes torture is wrong in all cases. 25%???? How are we any better than our worst enemy?US Split on TortureIf people don’t think that 25 years of Cable News punditry shows are having an effect on American audiences, this should give us pause. They are nothing but propaganda and what’s scary is that propaganda is working. The whole frame of reference of what is right and wrong as a society has shifted.

  12. Hi toujoursdan;I wasn’t aware of the numbers of people who support torture, but it doesn’t surprise me.There were many who supported the Holocaust as well.I remember talking to a member of the former Wehrmacht in the eary seventies.He missed the days of glory under the reign of Adolf.Sad but true.

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