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27 Jul

Interrogations and Prosecution

Let us sacrifice more underlings

Washington Post Editorial, Monday, July 27, 2009

Editorial

IN APRIL, Attorney General Eric H. Holder Jr. declared 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.” He was speaking, of course, of CIA operatives and other government interrogators who complied with the “torture memos” authored by the George W. Bush-era Office of Legal Counsel (OLC).

Mr. Holder was right to shield these interrogators from criminal prosecution. He is now confronted with a different question: What to do about those who may have gone beyond — perhaps far beyond — even what the OLC sanctioned?

We reject the distorted interpretations that underpin the OLC memos and that serve as legal justification for harsh interrogation techniques that either border on or constitute torture. But those who relied on the memos and shaped their behavior in the good-faith belief that they were following the law should not be subject to prosecution.

To the Washington Post,  I say that what you write is the infamous Nuremberg Defense

Let us stop right here and revisit Nuremberg.

The Nuremberg Defense is a legal defense that essentially states that the defendant was “only following orders” (“Befehl ist Befehl”, literally “order is order”) and is therefore not responsible for his crimes. The defense was most famously employed during the Nuremberg Trials, after which it is named.

Before the end of World War II, the Allies suspected such a defense might be employed, and issued the London Charter of the International Military Tribunal (IMT), which specifically stated that following an unlawful order is not a valid defense against charges of war crimes.

Thus, under Nuremberg Principle IV, “defense of superior orders” is not a defense for war crimes, although it might influence a sentencing authority to lessen the penalty. Nuremberg Principle IV states:

“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 defense is still used often, however, reasoning that an unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will still probably be jailed for refusing orders, and one who accepts one will probably be jailed for committing unlawful acts, in a Catch-22 dilemma.

Wilhelm Keitel, Alfred Jodl and other defendants of the Nuremberg trials unsuccessfully used the defense during their trials. The defense was employed during the court martial of William Calley following the My Lai Massacre in 1968. Some have argued that the outcome of the My Lai Massacre courts martial was a reversal of the laws of war that were set forth in the Nuremberg and Tokyo War Crimes Tribunals. Secretary of the Army Howard Callaway was quoted in the New York Times as stating that Calley’s sentence was reduced because Calley honestly believed that what he did was a part of his orders — a rationale that stands in direct contradiction of the standards set at Nuremberg and Tokyo, where German and Japanese soldiers were executed for similar acts.

Ehren Watada refused to go to Iraq on account of his belief that the Iraq war was a crime against peace (waging a war of aggression for territorial aggrandizement), which he believed could make him liable for prosecution under the command responsibility doctrine. In this case, the judge ruled that soldiers, in general, are not responsible for determining whether the order to go to war itself is a lawful order – but is only responsible for those orders resulting in a specific application of military force, such as an order to shoot civilians, or to treat POWs inconsistently with the Geneva Conventions. This is consistent with the Nuremberg Defense, as only the civilian and military principals of the Axis were charged with crimes against peace, while subordinate military officials were not so charged.

In 1996, the Nuremberg Defense was successfully used by Erich Priebke, although the verdict was appealed and he was later convicted[citation needed]. It was used with varying degrees of success by those involved in the Hostages Trial.

Based on this principle international law developed the concept of individual criminal liability for war crimes which resulted in the current doctrine of “command responsibility”.

“Command responsibility”, sometimes referred to as the Yamashita standard or the Medina standard, is the doctrine of hierarchical accountability in cases of war crimes.

The doctrine of “command responsibility” was established by the Hague Conventions IV (1907) and X (1907) and applied for the first time by the German Supreme Court in Leipzig after World War I, in the trial of Emil Muller.

The “Yamashita standard” is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted for atrocities committed by troops under his command in the Philippines. Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.”

The “Medina standard” is based upon the prosecution of US Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. (Medina was, however, acquitted of all charges.)

Source for the preceding: A Reading of History and :

The Truman Library

Nuremberg Trials

The My Lai Courts-Martial

Returning to the Editorial:

It is an entirely different story for those who went well beyond the often-extreme measures authorized by the memos.

In 2004, the Pentagon reported that 34 deaths had occurred in detention facilities in Iraq and Afghanistan; at that time, nine deaths were classified by military medical examiners as homicides. While the Defense Department has conducted several courts-martial of military personnel in abuse or death cases, the same level of scrutiny has not been applied to civilian personnel.

Take, for example, the case of Manadel Jamadi, an Iraqi insurgent captured in late 2003 and taken to the now-infamous Abu Ghraib prison. Navy SEALS delivered Jamadi “alive, kicking and shouting” to CIA interrogators, according to a Post account. Jamadi is believed to have died during the interrogation, while in CIA custody.

A Navy SEAL was court-martialed and ultimately acquitted for his role in the Jamadi case. Yet CIA operatives involved in the matter have thus far escaped accountability. This is inexcusable. Even under the warped logic of the OLC memos, interrogations are forbidden if they result in pain associated with organ failure or death. Jamadi’s interrogation clearly crossed that line.

The task before Mr. Holder is not an easy one. If he authorizes an investigation, he could be accused by some of criminalizing policy differences with his predecessors. He may also appear to undercut President Obama’s desire to leave the past behind and “look forward.” The attorney general must put political considerations aside. He should assign a career prosecutor to look at the facts and apply the law.

We continue to believe that an independent commission would best be able to shed light on a wide range of questions regarding detainee detention and treatment policy. It would help to ensure that such mistakes are never repeated. But some acts, including the violent deaths of detainees at the hands of U.S. personnel, must be investigated and addressed by law enforcement.

Glenn Greenwald’s article is especially germane to the last sentence above.

Full Article

“That, in a nutshell, is the twisted Washington mentality when it comes to lawbreaking:  when political crimes become so blatant and extreme that they can no longer be safely excused (Watergate, Iran-contra, Abu Ghraib), then it’s necessary to sacrifice some underlings who carried out the crimes by prosecuting them, but — no matter what else happens — the high-level political officials responsible for the crimes must be shielded from all accountability.  In ordinary criminal justice, what typically guides prosecutions is the opposite mindset:  namely, a willingness to immunize low-level soldiers in order to ensure that the higher-level criminals suffer the consequences of their crimes.  But when it comes to crimes committed by political officials in America’s Versailles culture, only the pawns are subjected to the rule of law while the monarchs and their highest royal court aides are immunized.”

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