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Will We Pass Our Nuremberg Trial, or Will We Protect Our Little Eichmanns?

doj-detail.thumbnail.jpgThe "torture memos" released Thursday show us how America’s gulags systematically and deliberately committed torture — a war crime — under explicit policies of the Bush White House Office of Legal Counsel. President Obama’s decision to release the torture memos is a major step forward for the rule of law. The memos describe a major chapter in depravity. They also show that highly educated professionals in law, medicine, and psychology willingly, actively participated in implementing torture — a war crime — along with CIA and military personnel. Under international treaties the US has ratified, we are obligated to prosecute torture — a war crime. When Obama announced Thursday that he would not prosecute line officers who were just following orders "in good faith" to commit torture — a war crime — he ensured America will continue to violate international human rights law. He also kicked the Nuremberg Principles in the teeth. What will we do?

Outside of the Bushies’ DOJ or Harvard Law, regular people know "just following orders" is not a valid defense for war crimes. Using fancier words, Nuremberg Principle IV states the same thing:

"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."

Just in case Harvard Law doesn’t cover the Nuremberg Principles, we need to remind Obama:

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor 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.

Oh, and. . .

Principle VI

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


(b) War Crimes:

Violations of the laws or customs of war which include, but are not limited to…. murder or ill-treatment of prisoners of war…

Jeebus, the Greatest Generation is still up and walking around. Why would we want to bury the Nuremberg Principles? The UN Convention against Torture partially implements those Principles, our Senate’s ratified the Convention, and Obama’s predecessor signed it. Is abrogating the Convention the "change" Obama held out?

And what does Harvard Law teach, anyway? Why does Obama keep needing remedial lessons? Today, the UN’s Special Rapporteur On Torture joined Glenn Greenwald and other Constitutional scholars in reminding the former Con Law lecturer:

The US would be in breach of international law if it does not prosecute CIA officials for torturing alleged terrorists, the United Nations’ monitor on torture Manfred Nowak said in a newspaper interview published Saturday in Austria. The UN Special Rapporteur on torture was reacting to the announcement by US President Barack Obama that CIA operatives who used harsh interrogation tactics authorized by the Bush administration should not be held responsible.

"Like all other contracting states to the UN convention against torture, the US has committed to conduct criminal investigations of torture and to bring all persons to court against whom there is sound evidence," the Austrian human rights expert was quoted as saying by the daily Der Standard.

Nowak said he did not think the president would not go so far as to issue an amnesty law for CIA operatives. Therefore US courts could still try torture suspects.


Before bringing alleged torturers to court and compensating their victims, it was important that an independent entity investigate the matter, Nowak said.

Looks like Nowak’s covering all his bases. Good thing — maybe Harvard Law also forgot to teach about the independent counsel.

Sadly for all of us, as well as for all of the victims, a whole lot of Americans willingly created America’s network of abductors, torturers, jailers, and secret prisons. As retired ex-FBI agent Daniel Coleman told Jane Mayer, in The Dark Side, "Torture has become bureaucratized." Mayer reports that Coleman, who was the FBI’s first case agent assigned to Bin Laden, watched the network form:

The CIA, Coleman said, liked rendition from the start. "They loved that these guys would just disappear off the books and never be heard of again" he said. "They were proud of it."

Along with the prison guards and torturers and secret police types and lawyers, America’s Gulag – Our Gulag – requires doctors and psychologists and nurses. Today Joby Warrick and Peter Finn describe how physicians and psychologists freely and deeply participated in torture:

. . . the long-concealed Bush administration memos released Thursday. . . . show a steady stream of psychologists, physicians and other health officials who both kept detainees alive and actively participated in designing the interrogation program and monitoring its implementation. Their presence also enabled the government to argue that the interrogations did not include torture.

A couple of weeks ago, Mark Danner revealed the Red Cross’ secret official report (to the CIA’s general counsel, natch) on Our Nation’s Gulag concluded:

Medical officers who oversaw interrogations of terrorism suspects in CIA secret prisons committed gross violations of medical ethics and in some cases essentially participated in torture. . . .

Duh. As if any of the "doctors" involved, or their fellow torturers, didn’t already know.

As if we didn’t know. For years, Amy Goodman and Pacifica told anyone who’d listen. So did journalists like Jane Mayer, Seymour Hersch, Mark Danner, Joby Warrick, and their peers. So did LHP and many others here at FDL, as well as other progressive blogs. So did Steven Miles, M.D. in "Oath Betrayed: America’s Torture Doctors". So did Frank Donoghue and Physicians For Human Rights.

Like Good Germans, most Americans didn’t speak out or object. We failed to peaceably prevent war crimes our fellow citizens willingly committed on a massive scale, in our name.

Will we fail our Nuremberg Test, reject the UN Convention Against Torture, and join Obama in complicity with our little Eichmanns by protecting them from trial for their direct and indirect participation in torture? Or will we finally abide by the rule of law and try America’s official torturers as the Convention demands? When Dr. Torture comes marching home again, do we want him treating our kids, or do we want his license surrendered?

Now that we can all see America’s Gulag, which Nuremberg will we choose: the Rallies, or the Principles?

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Kirk Murphy

Kirk Murphy

terrestrial obligate aerobe with endoskeleton (bony) and bilateral symmetry.

chordate, bipedal, warm-blooded, mammalian, placental (origin), opposable thumbs.

not (yet) extinct.

indigenous habitat: California Live Oak.

current habitat: Central California Coast (most northerly aspect).... 'northwest of the new world, east of the sea'

potential habitats: all potential habitats critically endangered (due to global climate change).

ailurophilic - hence allergic rhinitic.