Nuremberg Tribunal: "Principles of International Law"
"Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Nuremberg Tribunal. Adopted by the International Law Commission of the United Nations, 1950:
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.
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.
Charter of the International Military Tribunal at Nuremberg, 1945:
Section II, Article 8: "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
Robert Jackson, U.S. Attorney General and Chief Prosecutor at Nuremberg, Closing Address: "One of the chief reasons the defendants say there was no conspiracy is the argument that conspiracy was impossible with a dictator. The argument runs that they all had to obey Hitler's orders, which had the force of law in the German State, and hence obedience could not be made the basis of an original charge. In this way it is explained that while there have been wholesale killings, there have been no murderers. This argument is an effort to evade Article 8 of the Charter, which provides that the order of the Government or of a superior shall not free a defendant from responsibility but can only be considered in mitigation."
Mort Kondracke, Editor of Roll Call, yesterday: "I think one of the most important statements that Barack Obama has got to make right soon is that there will be no punishments or purges or witch hunts of people in the intelligence community for what was done during the Bush administration."As Charles [Krauthammer] said, "the country was kept safe ever since 9/11. There has not been an attack. These people did what they did under orders and with patriotism. And Obama should make it clear that none of them is going to be held to account for what they did. That the U.S. doesn't consider itself bound by the principles which we advocate and impose on the rest of the world isn't news. And I personally consider it far more important to pursue the criminality of the top political officials who authorized war crimes than it is to pursue lower-level intelligence officials who carried it out."
Still, it's striking to see someone so explicitly repudiate one of the defining Nuremberg principles, which subsequently became the cornerstone of international law, by arguing that intelligence officials who tortured people should have the Leader immediately bestow full immunity on them. Why? Not because what they did was legal or justified, but because "these people did what they did under orders and with patriotism." As Salon notes today, human rights groups have documented that close to 100 detainees have died in U.S. custody as part of the "war on terror," while "at least three dozen people believed to have been held in secret remain unaccounted for, their fate and whereabouts unknown." Yet "following orders" and "did-it-with-patriotism" are sufficient to render them immune.
That's all part-and-parcel of the broader trend whereby we now believe that the U.S. President is empowered to do anything and order anything - from declaring someone an "enemy combatant" to proclaiming torture techniques to be legal - and that the mere fact that he does so makes it legal. It's the classic Nuremberg defense - though now (at least for ourselves) we expressly embrace it rather than emphatically reject it.
The most notable aspect of the December 31 letter sent by the DOJ's Criminal Division to NSAwhistle-blower Tom Tamm was the DOJ's declaration, in the very first sentence, that it was still investigating disclosures regarding what it officiously called "the Presidentially-authorized NSA program" - as though the mere fact that the President ordered it has some sort of legal significance, that the fact that it was "Presidentially-authorized" made it proper, even though a 25-year-old law said that what the President ordered was a felony offense.
That same mentality - that if the President orders it, then it's deemed legal, even if it's a crime - was also the basis for the sole "concern" expressed by Nancy Pelosi when told that the NSA was spying on Americans without the warrants required by law: "I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting." And that same "just-following-orders" defense was the prime basis for immunizing lawbreaking telecoms who "did what they were told" by The Leader. This was Sen. Kit Bond's perfectly illustrative rendition of this mentality when explaining why telecom immunity was justified: "I'm not here to say that the government is always right, but when the government tells you to do something, I'm sure you would all agree that I think you all recognize that is something you need to do." A more collective explicit embrace of the "just-following-orders" defense is hard to imagine. If the President orders it, you do it, and it's legal and right.
Then again, if you examine virtually any of the various arguments made by our political and media elites as to why investigations and prosecutions of Bush officials should not be pursued, you'll find an explicit repudiation of at least one -- and probably more than one -- of the four above-listed core international law principles that were universally adopted in the wake of Nuremberg. There's probably something healthy about that. A nation is defined not just by its actions but also by the principles it affirms and rejects. And the only way to argue that Bush officials shouldn't be held accountable for the crimes they ordered and authorized is to make clear that one does not actually subscribe to these core principles of Western justice. There's value in having our political establishment be forced to declare that so openly."
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