Why the reflexive embrace of the "Nuremberg defense"?

[Kurt_and_Hunter]

I don't much care whether individual CIA operatives are prosecuted and were anyone to land in prison without Bush and Cheney going to prison the net effect would be more injustice than justice. And Bush and Cheney aint' going to prison.

So I am not upset about the administration signaling a disinclination to prosecute the actual torturers, despite the fact that a person who doesn't recognize torture on its face and resign rather than following unlawful orders--no matter what sort of paperwork is proffered--is far from innocent.

I am, however, genuinely puzzled by comments in many threads on the topic that accept the infamous "Nuremberg defense," stating it as obvious that people who were only following orders should not be targets of prosecution.

In the Nuremberg trials the defense that "I was only following orders" was dismissed. It had to be since alternative was to say, "Hitler's dead, everybody else was following orders so I guess that wraps it up." Almost everybody involved in the Holocaust, for instance, was following orders. You were told, "increase the number of people gassed to x this week," and you did. And if you didn't you might be shot for not doing so.

We know from Vietnam and Iraq, sometimes it is "okay" to follow orders that lead, directly and predictably, to massive civilian casualties. Sometimes it is even "okay" (apparently) to intentionally shoot-to-kill wounded enemy soldiers in uniform rather than accepting their surrender. (We all saw it on CNN...)

Do I want 5% or 10% of Americans who have served in Iraq to stand trial for war crimes of which they are probably guilty? No, I don't. Like I said, this stuff is not as easy as it seems. And the Nuremberg defense raises difficult questions. In a world where it is sometimes considered okay to bomb cities what does "lawful order" mean?

So yes, this stuff is tricky. And when you dig into these questions things that seem obvious prove surprisingly hard to express as "bright line" law. (The Holocaust is so extreme that we don't ned to draw the line to know it's on the wrong side of it.)

But since the phrase, "I was only following orders" is infamous as the quintessential invalid defense for war crimes like torture then why do so many embrace the framework as obvious without any seeming burden of irony? It a phrase that one just doesn't use without recognizing it's history... like "separate but equal."


On a related note: Obama deserves much credit for releasing the memos in the face of what seems to have been substansial oposition.

[DJ13]

1. I predict your post will garner no replies by those you describe

Its easier to cower in a crowd than to stand up and defend the indefensible.

K&R!

[Egnever]

15. Nostradamus you ain't!

[DJ13]

25. LOL!

Wow.

[stray cat]

2. I would like to see those at the top investigated first

even in Nuremberg they went after the leadership and not the privates

[ErinBerin84]

3. I would prefer him to prosecute the top

but the rhetoric, the "we need to look forward" etc makes me think it's not gonna happen.

[quakerboy]

16. How do you get to the top

without starting at the bottom?

[jberryhill]

35. Easy... and I've seen this in action....

I've seen tax attorneys be convicted for fraud by the IRS for giving their clients bad opinions, on which the clients relied, and in which situation the client's reliance on the opinion was a defense.

Good tax attorneys are very careful with their opinions, because they know whose ass is on the line for rendering a defective one.

[quakerboy]

40. It would seem to me

that your example changes a main premise here. In your example, the client has to defend their action, and would rather give up their tax attorney than take the hit themselves.

If we start by telling the client with the IRS problem that they will not be held responsible for any mistakes or have to pay any fines no matter what they tell us or don't, but we could really use their help as we think that the tax attorney who got them such a great deal on their taxes might be indulging in a bit of fraud, and can they help us out with this, you might have a whole different scenario on your hands, no?

[jberryhill]

43. The client isn't needed...

If the client produces the opinion on which they relied, the client has a defense.

We have the opinion here. We don't need the client's testimony or anything else to go after the attorney. The client already has the defense, and in this situation we are talking about an ironclad defense against DoJ prosecution - because it was a DoJ opinion on which the reliance defense is based.

In a situation where there is a reliance defense, that's the way it works. The attorney is on the hook for rendering a defective opinion with knowledge that the client was going to rely on it.

[quakerboy]

45. I can buy that

So, what are the chances it will get followed up on? Will we prosecute those who gave the defective opinion?

[jberryhill]

46. Well that's the 64 thousand dollar question....

I hate to be holding out the sort of hope that "birthers" cling to with their successive fail on their bizarre issues of the president's citizenship issue.

This administration is not going to do anything without considerable deliberation and concern for potential forward consequences.

To take one example (and without wanting to open a different can of worms) the Church commission took up the issue of intelligence abuses during the 60's and 70's, and it has been later suggested that impenetrable barriers between foreign and domestic intelligence contributed to lack of coordination prior to 9/11.

Now, I'm certainly not suggesting that torture is something that should be left open. But if the obvious hole here - and a recurring one involving relations between the president and the DoJ - can be plugged with some security, then the language about "traditions" in the administration statement becomes interesting. One of the historical strengths of the US political system is that we don't engage in criminal prosecutions of prior administrations like some banana republic. The problem here is that the Bush administration was more like a criminal enterprise than a government. Still, the imperative to prosecute will have to be compelling across the political spectrum in order to avoid the sort of retributional politics that led to the impeachment of Clinton over utter nonsense.

[jberryhill]

50. And I should add...

on the "banana republic" thing.

The political perception across the spectrum of American politics, of whether a prosecution is warranted, is an important consideration, even where a prosecution is genuinely warranted.

In the "court of my mind", there have already been a number of convictions, to be certain.

[underpants]

4. because the Chewbacca defense seemed too obvious?

Cochran
Ladies and gentlemen of this supposed jury, Chef's attorney would certainly want you to believe that his client wrote "Stinky Britches" ten years ago. And they make a good case. Hell, I almost felt pity myself! But, ladies and gentlemen of this supposed jury, I have one final thing I want you to consider. Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!
Gerald Broflovski
Damn it!
Chef
What?
Gerald
He's using the Chewbacca defense!
Cochran
Why would a Wookiee, an eight-foot tall Wookiee, want to live on Endor, with a bunch of two-foot tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! Look at me. I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, you must acquit! The defense rests.<1>

http://en.wikipedia.org/wiki/Chewbacca_defense

[Guy Whitey Corngood]

7. That is so offensive

to the Ewoks.... :evilgrin:

[uponit7771]

5. What choice do we have now? Fire the whole CIA? You'd have to fire those who knew also...

...

[DevonRex]

12. That's true.

[ecstatic]

6. Their actions were less clear cut than what happened in the Nazi days

don't you think?

Murdering someone due to race/religion = WRONG, no matter what.

Waterboarding someone because a lawyer and Cheney said it would stop the next terror plot... A little more room for interpretation.

:eyes:

[denem]

8. Unless the people are informed of the reality of that

undertaken in their name, the will not demand justice. The first real domino is Rummy.

[Supersedeas]

9. One example for further consideration: "A detainee 'may be walled one time (one impact

with the wall) to make a point or twenty or thirty times consecutively when the interrogator requires a more significant response to a question," and "will be walled multiple times" during a session designed to be intense. From Bradbury Memo, 5/10/05, P.14

At what point does an interrogator have enough discretion to be responsible for his own actions, despite what is "authorized"....after the 10th walling...12th...15th...22nd...28th...??

Apparently, the interrogator has the discretion to determine:
a. when a more significant response is required,
b. when a response from a 'walled' detained is less than significant, and
c. when a lack of a significant response justifies one and up to thirty wallings.

At what point has enough discretion been granted to an Agent to say that an interrogator has crossed the line in their zeal to obtain "what the interrogator considers"..."a significant response"??

Just one of many questions that the Memo ought to reveal.

[DevonRex]

10. Why the rush to label it as the Nuremberg defense? There are striking

differences in the situations, the biggest being that Hitler and all his henchmen were intentionally and knowingly exterminating the Jews, the gypsies, the homosexuals, and any other group they deemed as less than human.

[Canuckistanian]

11. They should at least release the names

The victims deserve to know who their assaulters were.

And if the government won't prosecute, they can be sued for damages in a civil suit.

[MasonJar]

13. Would you feel the same if you or your children were the ones slammed

against the wall or waterboarded or hung by the arms naked? I know I wouldn't, so I don't. Many of those prisoners were totally innocent and no one bothered to find out which ones. Even the guilty should have been treated as specified by the Geneva Conventions. WE SIGNED THAT TREATY. It is, therefore, the law. Obama is honor bound to prosecute because he swore an oath (twice) to follow the Constitution.

[Egnever]

14. The difference is

THe attorney general of the united states told them it was not only not torture but perfectly legal.

[Kurt_and_Hunter]

20. I accept that answer

It's not an answer to my question as such, which regards the psychology of some DUers, but if they cannot be prosecuted for anything it moots the point.

So I accept that. Your point is sound.

But since a lot of folks who believe prosecution is an option are saying it is clever, admirable, chess vs, checkers, etc. to not prosecute the underlying question remains.

[jberryhill]

36. A valid point

This situation was intentionally crafted the way it is by the Bush administration.

If they had been this clever with other matters under their charge, this country would not be so screwed up.

[chill_wind]

22. But even they didn't buy it. They knew that was bullshit.

And here's why:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x5473047

[Kurt_and_Hunter]

27. In fairness, legal insurance is equally useful if you don't expect to be convicted

It costs the same to go through a legal proceeding, whatever the outcome or merits

A lot of Clinton people wished they'd had it for whitewater, travel-gate, Lewinsky, etc., even though the whole thing was a witch-hunt.

[chill_wind]

32. True, but they realized they ordinarily had the "world's biggest law firm"

But they knew there was nothing ordinary or guaranteed in their legal protection in this territory, given enough exposure.

Robert M. McNamara Jr., the CIA's general counsel from 1997 to November 2001, said he advised station chiefs to buy the insurance. "The problem is that we are the victims of shifting winds here," McNamara said he told the officers. "I can't sit here and tell you in all cases that I will be able to defend you."

[jberryhill]

37. The CIA GC, no.... The DoJ AG, yes

His position as GC essentially made him "inside counsel", and (as much as this turns my stomach to say) not professionally independent from goings on in his own agency.

[Mojorabbit]

57. I understand the legal point you are making

but the people doing the torture knew it wasn't really legal. The whole set up was just playing games with words to enable breaking the law. The whole elaborate designation of enemy combatants, all of it to skirt the law. It breaks my heart that we have come to this.

[Egnever]

59. Sure its wrong but it doesn't change the fact that they are shielded

this was done deliberately by shrub and his band of thugs. Fortunately the people who did the shielding are not so well protected.

Also releasing these memos gives lots of ammo to international courts should they decide to do something about it. I am thinking spain is real happy right now.

[Perky]

17. I don't think Nuremburg is applicable

this was done, because DOJ cleared the use. THat is different then an office in the field ordering genocide or torture. I think there is a huge difference here.

[Kurt_and_Hunter]

21. That is a good point

It's not an answer to my question as such, which regards the psychology of some DUers, but if the torturers cannot be prosecuted for anything--as seems likely--it does moot the point.

So I accept that. Your point is sound.

But since a lot of folks here who believe prosecution is an option are saying it is clever, admirable, chess vs, checkers, etc. to not prosecute the underlying question remains. And the fact that the phrase "following orders" has tripped off so many (one hopes very young) keyboards without irony remains noteworthy.

[jberryhill]

18. It's not a Nuremburg Defense

The DoJ cannot render a legal opinion stating "X is lawful" and then turn around and prosecute someone for doing X.

This is not exactly a situation of "following an unlawful order".

The DoJ officials responsible for the opinions have engaged in practice violations and there may be some hooks to get them.

But, otherwise, the Rule of Law can be a bitch.

Further - the Nuremburg prosecution was not the government involved in the underlying crimes, which is why that was not an "express opinion of authority charged with enforcement" situation.

You cannot, in the US, get a conviction in a case prosecuted by the DoJ wherein the defendant was told by the US AG that the action was lawful. It is a valid defense under US law.

If you don't like US law, then I don't know what to say to that.

To put it another way, the Nuremberg defendants were not prosecuted under Nazi law, either.

[Kurt_and_Hunter]

23. I agree with you. Thanks for noting the difference.

If the torturers cannot be prosecuted for anything--as seems likely--it does moot the point.

So I accept that. Your point is sound.

(It does not, however, explain the glut of "they were only following orders" sentiment from people who also make clear they believe prosecution is an option but one that is wisely, and volitionally, avoided.)

[jberryhill]

28. There are some questions, however

Concerning the chronology of the opinions and the actions, and also concerning the scope of the opinions relative to the actions.

[jberryhill]

38. Agree on your parenthetical....

...but I'm willing to bet that one of the reasons this is taking so long in the first place is that there are some legal Rubik's cubes that need to be played with here.

However, voiding the "reliance" defense in this instance would also do long-term institutional damage.

This, of course, is why government illegality is like a cancer.

[stevenleser]

41. That is interesting. I did not know that. Do you have a link to relevant

case law where a defendant cited US AG approval of their actions as a defense? I'd like to use that for an upcoming article on the subject.

[jberryhill]

52. The ACLU discusses the defense and its limitations

As I've noted, "good faith reliance", scope, and chronology matter.

You might want to read the whole thing, but the ACLU touches on this subject here:

http://www.aclu.org/safefree/torture/39060prs20090318.html


The application of the "advice of counsel" statutory defense depends on the facts of any possible charge against a particular defendant. While the OLC opinions and the statutory defense may be an effective defense for some potential defendants, the OLC opinions and the statutory defense will be less effective, or completely ineffective, for other potential defendants. In particular, persons who might not be covered by the "advice of counsel" defense include: persons who engaged in torture or abuse prior to the issuance of the OLC opinions; persons who did not rely on the OLC opinions; persons who knew the OLC opinions did not accurately reflect the law; persons who are lawyers or were trained as interrogators on applicable law; persons who acted outside the scope of the OLC opinions; or any persons who ordered the OLC opinions drafted specifically for the purpose of providing a defense. The determination of the likely effect of the statutory defense would depend on the facts of a particular instance of alleged torture and abuse. There is no immunity, and certainly nothing that should cut off a criminal investigation before it even starts.


Now, please note the last sentence of the ACLU report that I've highlighted. They say that the reliance defense should not "cut off a criminal investigation before it even starts."

However, we are not in a position to know what the DoJ has or is "investigating". We would only know that if and when an indictment is issued as a result of any investigation. The ACLU statement goes a bit far in assuming that investigations are not ongoing.

However, the administration statement on this matter expressly refers to "good faith" in connection with reliance - which in a single phrase captures the limitations the ACLU discusses at length, and which are all part of a good faith analysis.

But reliance on official opinion is a standard defense. Here is a common crim law outline on the subject:

http://www.lexisnexis.com/lawschool/study/outlines/html/crim/crim18.htm

§ 18.02 Reasonable-Reliance Doctrine (Entrapment by Estoppel)



Under both the common law and Model Penal Code, a person is excused for committing a criminal offense if he reasonably relies on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense.


"Official Statement" – For a statement of the law to be "official," it must be contained in:


1.) a statute later declared to be invalid;
2.) a judicial decision of the highest court in the jurisdiction, later determined to be erroneous; or
3.) an official, but erroneous, interpretation of the law, secured from a public officer in charge of its interpretation, administration, or enforcement, such as the Attorney General of the state or, in the case of federal law, of the United States.


Even if a person obtains an interpretation of the law from a proper source, that interpretation must come in an "official" manner, not an offhand or informal manner. For example, a person may rely on an official "opinion letter" from the state Attorney General, formally interpreting the statute in question.


If you want a case citation:

http://en.wikipedia.org/wiki/Entrapment#Entrapment_by_estoppel

As described in United States v. Howell, 37 F.3d 1197, 1204 (1994), the defense "applies when, acting with actual or apparent authority, a government official affirmatively assures the defendant that certain conduct is legal and the defendant reasonably believes that official."

It is a form of entrapment because first the DoJ says "it's legal", and then you get indicted by the DoJ for doing what the DoJ told you was legal.

[jeanpalmer]

49. So if a DOJ lawyer gives a directive

to a CIA operative that it's legal for him to kill members of dissident religous sect, then the CIA operative can kill them and not be prosecuted? Or if he gets a directive from the President to the same effect, then the CIA operative is off scot-free? It seem that at some point the law would look at the CIA guy and say, "I don't care what you were told by anyone, your conscience should have told you what you were doing was illegal." For example, if these CIA agents had been authorized to torture that might lead to death, and in fact prisoners were killed, would the DOJ be prevented from prosecuting? I have a hard time believing that. There has to be an exception for conduct so shocking that the torturer knew or should have known that the conduct, and the directive authorizing it, was illegal. And the government, though authoring the memo, could prosecute.

[jberryhill]

51. The DoJ doesn't give directives....

The DoJ issues opinions.

Yes, you are entitled to rely on the opinion of the official charged with enforcement of a criminal law as to the criminality of your proposed course of action.

The law doesn't really care about anyone's conscience. The law cares about the law.

Let me give you an example. You are walking down the street and you see an infant crawl out of its stroller, and the mother doesn't notice. You see that infant crawl along the sidewalk and fall into a six inch deep puddle and begin to drown. You remark to yourself "Gee, that's too bad, that kid is going to drown" and you go about your business. The kid drowns.

Under the law, you are fine. You had no duty to do a dog gone thing.

Do not rely on law to provide you with your morality. The law is perfectly fine with utter moral monsters.

Now, again referring to the administration's statement. In referring to reliance on DoJ opinions, the administration refers to reliance "in good faith".

That is a qualifier on the reference to reliance there. I would interpret "reliance in good faith" to indeed refer to a subjective state of mind as to whether the opinion satisfied the actor's personal "laugh test" in view of the action under consideration.

But the law doesn't care about your conscience if you are asserting the defense of reliance on opinion of the relevant authority.

[mopinko]

19. because we don't want to see "a few bad apples" prosecuted

so that the thing can be swept under the rug.

[Kurt_and_Hunter]

24. Actually, starting low on the totem pole is the usual procedure.

You turn the foot-soldiers states' evidence against the kingpins.

[TheKentuckian]

30. Usually, the top people in a crime organization

don't brag on TV and write lots of memos about there dirt. This isn't a typical situation.

[mopinko]

31. usually

but that is not how it has worked so far. lindsey england, et al were scapegoats.

[LastLiberal in PalmSprings]

26. Do we no longer hold people accountable for their actions?

If I read this right, (1) the CIA torturers shouldn't be prosecuted because they were just following orders, and (2) Bush/Cheney shouldn't be prosecuted because they weren't personally present when the torture their memos authorized was carried out.

Christ, I've heard better logic from a 4-year-old at my wife's preschool!

Have we finally crossed over to where no one in government or corporate America is responsible for anything they do? Was this the dream of our nation's founders? It sure isn't the America I learned about in high school social studies class.

[jberryhill]

29. No you do not read it right

Relying on an AG's opinion is a legal defense far older than this situation, and the question is whether you want to follow the rule of law or not.

[amborin]

33. those who've studied the holocaust say that explaining

why so many 'ordinary' germans followed orders and participated in the holocaust is very complicated

many had the opportunity to not follow orders.....

anyway, do you know that the cia operatives said they were simply following orders?

maybe they were not following orders but actively believing in what they were doing?

it seems that, regardless of whether they were following orders or acting willingly, the result is the same: it would totally disrupt the cia to investigate and attempt to prosecute

and the real cuplprits---Bush,Cheney, Rummsfeld, etc....would always be scott free

[chill_wind]

34. And a little more inconvenient truth

about some of the chronology..

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x5473057

[jberryhill]

39. The chronology matters, yes /nt

[amborin]

44. but is ashcroft's word reliable?

[jberryhill]

56. That's a totality of the circumstances question

If the DoJ tells you "X is legal" and you do X, then isn't the word "entrapment" going to leap to your mind when the DoJ tries to prosecute you?

Because that's what we're talking about here.

[stevenleser]

42. The easy way out for just about everyone, and perhaps only prosecutorial option open...

is for another country to go to the world court and request an investigation into this. If US AG authorization is an absolute defense in US law, you have to go outside the US to get justice on this.

[jberryhill]

54. That is correct

The defense is "absolute" so long as the chronology, scope, and good faith limitations are met.

But, the AG decision would not be binding on a prosecution by a body other than the DoJ.

You have nailed it.

[geek tragedy]

47. Under traditional application of criminal law, if

a high ranking government attorney gives you a legal interpretation, you're entitled to follow it without incurring criminal liability.

[Mojorabbit]

58. But doesn't congress make the laws?

The AG doesn't make the laws. We had laws in place to prevent this. All this legalize is making my head spin. I should have been asleep hours ago.

[geek tragedy]

60. Just because doing something is in fact illegal doesn't

mean you can be sent to jail for it.

[dflprincess]

48. Because it's Americans who broke the law?

But only with the best of intentions. :sarcasm:

If someone at the IRS were to give me bad advice and I take a deduction I shouldn't take - does that mean I won't have pay any back taxes and interest?

[jberryhill]

55. If someone *with authority* at the IRS gave you that advice, yes

You would be fine.

Otherwise, it is entrapment.

The IRS specifically disclaims the reliability of their telephone help line advice and also disclaims the specific reliability of their own information circulars.

Read the fine print on that advice.

[mmonk]

53. Because we have no principles as a nation

and we drown ourselves in propaganda and hypocrisy.

[TankLV]

61. BULLSHIT post from a BULLSHIT poster - but we've come to expect this from YOU!!!

IT'S NEVER OK TO EXCUSE OR TRY TO EXCUSE TORTURE!!!

and the "I was just following orders" defense was rulled ILLEGAL DECADES ago - and it's still INVALID today!!!

you don't know what you're spewing...

I can't believe you're still trying to make EXCUSES for TORTURE and TORTURES and WAR CRMINIALS!!!

FUCK YOU!!!

I am so fucking sick of ASSHOLES here trying to defend the INDEFENSIBLE!!!

[PeaceNikki]

62. Who are the assholes? Obama? Holder? Feingold?

:shrug: