Attorney General Eric Holder said it before, and he said it again yesterday (emphasis added):
The men and women in our intelligence community perform an incredibly important service to our nation, and they often do so under difficult and dangerous circumstances. They deserve our respect and gratitude for the work they do. Further, they need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals.
And with these words, Holder baptized the infamous OLC memos as legally binding doctrine that validates the conduct of anyone who wishes to offer the same defense put forward by the defendants at Nuremberg: "Befehl ist Befehl," or in English, "an order is an order."
As one who has explored my own German heritage in depth, Nuremberg is quite familiar to me, and I can recognize "Befehl ist Befehl" in whatever language Holder would care to use to express it. That he would invoke it on behalf of agents of my own government is beyond odious.
Supreme Court Justice Robert Jackson, chief US prosecutor at Nuremberg and one of the architects of those proceedings, would be in tears to hear these words coming from one of those who followed in his footsteps as Attorney General of the United States.
Contrast Holder’s words above with those of Justice Jackson in his opening statement at the Trial of the Major War Criminals at Nuremberg on November 21, 1945 (Vol. 2, pp. 104-105):
It is my purpose to open the case, particularly under Count One of the Indictment, and to deal with the Common Plan or Conspiracy to achieve ends possible only by resort to Crimes against Peace, War Crimes, and Crimes against Humanity. My emphasis will not be on individual barbarities and perversions which may have occurred independently of any central plan. One of the dangers ever present is that this Trial may be protracted by details of particular wrongs and that we will become lost in a "wilderness of single instances". Nor will I now dwell on the activity of individual defendants except as it may contribute to exposition of the common plan.
The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.
Quite a difference, don’t you think? Holder says "never mind the planners and their orders — just go after those who went beyond their orders." As bad as that is, the comparison gets worse. . . .
Again from Jackson (p. 112), we get a picture of the kind of crimes he was talking about:
Secret arrest and indefinite detention, without charges, without evidence, without hearing, without counsel, became the method of inflicting inhuman punishment on any whom the Nazi police suspected or disliked. No court could issue an injunction, or writ of habeas corpus, or certiorari.
All this was set up with orders, memos, and legal opinions, listing procedures to be followed and directing the efforts of those lower down the chain of command, many of them secret but well documented within the circles of power. Sound familiar?
More Jackson (p. 144):
International law, natural law, German law, any law at all was to these men simply a propaganda device to be invoked when it helped and to be ignored when it would condemn what they wanted to do. . . . Of the criminal nature of these acts at least, the defendants had, as we shall show, clear knowledge. Accordingly, they took pains to conceal their violations.
Why does the DOJ’s classification of the OLC memos and their efforts to keep them away from the prying eyes of those in Congress charged with oversight until well after the fact come to mind? Why would an OLC opinion stating that the president has the unilateral power to withdraw from treaties [pdf] be classified at all?
Back to Jackson (p. 150):
Of course, the idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.
The Charter [Articles 7 and 8] recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility.
Yesterday’s statement by Holder repeated his grant of personal immunity to those in lower ranks who followed orders, and earlier repeated statements by the Obama administration have made it clear that they don’t want to investigate the higher-ups in the Bush administration for fear of being seen as politicizing the work of justice and for fear of having their political agenda elsewhere derailed by the furor over such an investigation. In so doing, the Obama administration has taken the careful work of the most impressive judicial tribunal in history, and the legal doctrines outlined by one of the giants of the US legal system, and overturned them both.
Sir David Maxwell-Fyfe, British Deputy Chief Prosecutor, and de facto day-to-day head of British legal team at Nuremberg, described the actions of those at the upper levels of the chain of command like this (August 29, 1945, vol. 22, pp. 235-236):
They carried out orders which on the admission of many of them bit deep into the remnants of their consciences. They knew that they were doing what was wrong, but they now say "Befehl ist Befehl"–an order is an order.
All decent men find it difficult to blame others for absence of moral courage–they are only too conscious of their own failings in that direction. But there comes a point when, faced with crimes which are obvious murder or barbarity, there is a higher duty. . . . Great captains are not automata to be weighed against a rubber stamp. I need not traverse the history of our military figures–the philosophy of Montrose, the brooding thoughts of Marshal Ney, the troubled heart of Robert E. Lee in 1861–to find examples. Two of the greatest names in German military history spring to one’s mind: Von Clausewitz leaving the Prussian Army to serve in that of Russia; Yorck von Wartenburg making his decision of neutrality–both put what they deemed the needs of Europe and humanity above the orders of the moment. How much more clear and obvious was the duty when the work of drafting, issuing, and carrying out [various specific orders] meant the defiling of every idea which every soldier cherishes and holds dear; when–as all of them who ever served upon the Eastern Front could see with their own eyes–they were asked to support and co-operate in a calculated system of mass-extermination and utter brutality.
Great captains are not automata, and neither are great legal officers. Justice Jackson and Sir Maxwell-Fyfe understood that; Attorney General Holder apparently doesn’t.
Spencer talked about this a couple of weeks ago, noting how very bad an idea it would be for an investigation to ignore what he called "the climate of command responsibility within which any interrogator operated." But at least some of the interrogators knew their Nuremberg history, as Marcy noted at the end of her working thread on yesterday’s document dump:
One officer expressed concern that one day, Agency officers will wind up on some "wanted list" to appear before the World Court for war crimes stemming from activities [redacted] Another said "Ten years from now we’re going to be sorry we’re doing this … [but] it has to be done."
Attorney General Holder now sits in the upper levels of the chain of command, and he is being confronted with exactly the kind of "higher duty" question when it comes to investigating not simply the underlings who exceeded their authority but the very people who granted the authority in the first place. Sadly, he prefers to let the rubber stamp of authority rule over the needs of the nation to hold those in authority to account.
I guess this means he won’t be using my opening statement for the prosecution in the trial of US v. Bradbury, Bybee, and Yoo. Perhaps it might come in handy if (or when?) the House Judiciary Committee opens impeachment hearings on Judge Bybee. Oh, Mr. Conyers . . .