Nuremberg and American Exceptionalism

The egregious Chris Matthews is a real "tough guy" in interviewing "guests" until they begin to compare American actions to those of various unclean regimes in recent history.  His childlike belief in the uniqueness of the United States and its status as the "city on the hill" causes him to break out in a skin rash at the thought that we might have done some really base things in "moments" of unguarded and banal ordinariness.

He is not alone in this reaction.  Recently one Jeffrey Smith, General Counsel of the CIA in the Clinton era defended career CIA "officers" on the Newshour on the basis that they were following orders and defending the national interest and therefore should be held blameless for anything they did under orders (waterboarding, walling, nakeding, hosing down with fire hoses, etc.)  There have been various repetitions of this basic message in the media recently. 

I don't have a quarrel with the Obamanian decision to avoid prosecuting people from the Bush Administration for war crimes connected with Iraq.  I understand the evident decision.  Politically, such prosecutions would sharply divide the country and probably hurt the Democratic Party in the mid-term elections in 2010 or the genral in 2012.  More importantly, a precedent of prosecution of members of a previous administration is likely to lead to retaliation on an unending basis.  I understand the decision but I don't like it.

"I was ordered to..." has been a a discredited and unacceptable basis for a defense in war crimes trial since the trials of the Nazis at Nuremberg.  "Things were tough..." is an equally discredited defense.

What are we saying?  Is it our position that international law applies to eveyone but us and that it does not apply to us because we are "special?"

Are we that childish?   pl

Comments

[Richard Armstrong]

Oh please, Colonel.

Your basic question is whether or not prosecution of war criminals would harm the United States.

Just to name two examples, both France and Germany continuted such proescutions nearly a decade afer the end of wwII.

The United States of America is either a nation of liberty and laws or it is not.

If we, as a nation are unable to prosecute war criminals whatever their motives, good or bad, then we are not a nation of laws.

The behavior of those under the Bush administration regarding to torture requires extreme scrutiny either by our legal system or the international courts available.

We, as a people need to choose whether or not we we are America.

Yes, I am an idealist. And so I believe were our founders.

[blowback]

Is it our position that international law applies to eveyone but us and that it does not apply to us because we are "special?"

For many Americans including Bush, Cheney, Rumsfeld, Rice, Limbaugh, Hannity, O'Reilly, Coulter,..., yes it is!

I would add that it is also true for many European countries as well.

[blowback]

Further to my previous post, the odious regime in North Korea claims it will follow "international law":
North Korea has said that it would allow the reporters consular access and treat them according to international law.

[Rider]

""I was ordered to..." has been a a discredited and unacceptable basis for a defense in war crimes trial since the trials of the Nazis at Nuremberg. "Things were tough..." is an equally discredited defense."

And of course this ultimately cuts down into adherence to the rules of engagement and the issue of military discipline.

[fnord]

"Is it our position that international law applies to eveyone but us and that it does not apply to us because we are "special?""

Apparently. Wich of course means the death of the whole international law concept.

[Redhand]

The damage that George Bush's presidency has inflicted on our international reputation, our sense of who we are, and the rule of law in this country is simply astounding.

Being an old dog, the precedent of Watergate continues to make sense to me, for a couple of reasons.

First, President Nixon was clearly implicated in the crime of obstruction of justice. Many other co-conspirators were prosecuted and punished, but the criminal head-of-state was given a pardon by his hand-picked successor: "our long national nightmare is over."

Fortunately, Ford was punished by the electorate for this in the following election, so there was at least a semblance of political justice in the outcome.

Here, the crimes of the president and vice president are incomparably worse -- authorizing torture in violation of domestic and international law, and fundamental norms of proper human conduct -- and the outgoing president's party equates American primacy of the rule of law through lawful prosecutions http://tpmdc.talkingpointsmemo.com/2009/04/bond-no-you-guys-are-running-a-banana-republic.php?ref=fpjr2>with the actions of a banana republic.

As Josh Marshall at TPM notes, in fact the people behaving "like a banana republic" are the very same Republicans rallying around a criminal former president. Think of the Republicans http://www.talkingpointsmemo.com/archives/2009/04/this_analogy_isnt_close_to.php>as a "junta party."

Our system is one of laws, but ultimately it depends on those elected to public office taking seriously their oaths to "take care that the laws are faithfully executed" and to "support and defend the constitution of the United States." We are now reaping the bitter fruits of a president and vice president who ignored their oaths completely.

The second Watergate parallel comes from Dick Cheney, whose m.o. in office was to "restore the power of the executive branch that was undermined by Watergate." In a perverted way, the constitutional crisis we now face -- presidential impunity for past crimes -- is the fruit of Cheney's decades-long desire to "get even" for Watergate by "restoring" presidential power. The man makes Dr. Strangelove look sane.

Now that Obama has caved on a commission to investigate the crimes of the former administration the only way out of the impunity problem is for Holder to appoint a special prosecutor: preferably a Republican with an impeccable record of integrity and a reputation for letting the chips fall where they may. (Pardon me for being partisan but I am hard pressed to come up with a suitable Republican for that job right now. Any ideas?)

If we don't pursue justice (not the BS "retribution" talking point that the junta party spouts) the damage to the rule of law in our country will be severe and all but permanent.

[Bill Wade, NH, USA]

RedHand says:

" (Pardon me for being partisan but I am hard pressed to come up with a suitable Republican for that job right now. Any ideas?)"

Ron Paul comes to mind.

PL says: " Politically, such prosecutions would sharply divide the country and probably hurt the Democratic Party in the mid-term elections in 2010 or the genral in 2012. More importantly, a precedent of prosecution of members of a previous administration is likely to lead to retaliation on an unending basis. I understand the decision but I don't like it.

I think prosecuting those responsible would unite the country. We can look to the rest of the world and say, "yes, we are a nation of laws". Being that I find both sides of the fence guilty, one side for initiating torture and the other for coddling Bush, I don't understand why there would be future and on-going retribution. Hang some (figuratively) from both sides.

It's like the current Harmon "affair", except now you don't hear a peep about it from the Republicans this time (shouldn't they be jumping all over this thing?), there's no real opposition/outrage from either side whether it's about torturing people or acting against the best interests of the United States.

[MRW.]

What are we saying? Is it our position that international law applies to eveyone but us and that it does not apply to us because we are "special?" Are we that childish?

Yes.

I like this from David Bromwich on Huffington Post and the rest of his essay is as good as this (Phil Weiss also highlights this):

The Bill of Rights outlaws torture, explicitly, in two of its ten amendments, the fifth and the eighth. All Americans ought to know this; and President Obama might take the opportunity to say it some day: it could not hurt his position. "No person," says the fifth amendment, "shall be compelled in any criminal case to be a witness against himself." Torture is compulsion; its purpose, when used as evidence in a military tribunal, is to compel the prisoner to serve as a witness against himself. As Leonard Levy points out in Origins of the Bill of Rights, the history of this particular right lies in the horror of the American founders at the arbitrariness of Roman law and its legacy of ex officio oaths and coerced confessions. The non-conforming Protestants whose spirit animates the Constitution were looking to assure that nothing in the history of this country would resemble the Star-Chamber proceedings under Charles I. The language of the eighth amendment is even plainer: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Writes Levy: "Cruel and unusual punishment referred to methods of punishment as well as their severity; they had to be as swift and painless as possible and in no circumstances involve a lingering death or any form of torture." Any form of torture: let those words stand alone against the hairsplitting sophistries of John Yoo and Jay Bybee

[jon]

The US is not precisely identical to other nations. That does not excuse us from following our own laws, and the international laws and treaties that we are signatories to. To do otherwise is to court becoming unreliable, a pariah, or failed state.

There is competitive value in believing that we are not bound by our history and present circumstances. The US is, to a large degree, the product of imagination and innovation. There is a difference between believing that we can be better, and believing that we are not bound by inconvenient laws. We have ample evidence of how this is honored in the breach. And also the examples of the linkage between expediency, ends justifying the means, and the banality of evil.

I imagine that Obama would prefer to have the entire torture issue go away, as he has a variety of other pressing issues on his plate. That does not mean that he indifferent to torture or other lawless activities.

Obama seems to be maneuvering skillfully, so that torture prosecutions can occur. He is being Lincolnesque in seeking to permit changing circumstances to require him to do something that he would personally like to do, but cannot yet find sufficient political acceptance. Those torture memos need not have been released. Photos and other materials seem to be on their way to release. The political ground is shifting, and not by accident.

Nuremburg prosecutions demonstrated that responsibility for actions lies all along the chain of command, from developing policy, to carrying out orders. However their are gradations of responsibility, depending on what your position is and how you acted. I have sympathy for those at the sharp end of the spear, who were under tremendous pressure from their superiors, who faced sanctions for not carrying out orders, and who thought that what they were doing was necessary and legal. I have no sympathy for those issuing orders, who knew the greater truth, who dismissed advice on the illegality and ineffectiveness of torture. Did Lyndie england deserve trial for what she did at Abu Ghraib? Yes. But the true responsibility stretches out above her and to the Pentagon and further.

If those who developed policy and issued orders do not have the personal courage and integrity to step forward and admit their guilt, then they will have to be brought to trial. This should be treated like an investigation of a drug gang or mafia family. Scoop up the little fish, and offer them clemency and compassion for bringing in the bigger fish. Repeat until all those with command responsibility have been brought to justice.

I can see Obama not wanting this to dominate his presidency, or preventing him from accomplishing other objectives. What will be discussed at length will be revolting, and there is a tendency to blame the messenger. This is also an opportunity to contrast the depravity of torture to the government and policies that Obama will instill. At any rate, he is now in a position to say, "I really didn't want to, but Congress, the citizens, and the import of facts I did not previously have now require that we make a full accounting, and a clean break."

[Ken]

The rule of politics always trumps the rule of law -- especially in multinational matters involving national security.

[trstone]

Why is the USA trying to extredite an 89 yo man to Germany for war crimes?
Isn't it time to look forward not back?

[Ken Roberts]

One of the great finds of my days browsing in the library stacks was to encounter the bound copies of the Nuremberg trial reports. Now they are available online. See http://www.loc.gov/rr/frd/Military_Law/NT_major-war-criminals.html

It's appealing that the tribunal's motto appears to be Reverentia Legum. Just so.

I realize things take time, there is an argument that the federal administrative mechanisms are not yet under control in only 3 months, after 8 years of perversion, and a long game is being played. But international observers, even from as close as English Canada, do not apprehend all the nuances. We check in from time to time and ask if the US has made any progress last month or so in restoring the rule of law not men. Just yesterday a story hit the wires about abuse of authority by the Sec Treasury, and that surely will have an effect on willingness to cooperate in financial affairs. Progress towards a law-based social order must be apparent not just actual.

[Matthew]

Isn't "exceptionalism" the belief that your nation is unique? This belief is adopted by all powerful nations. Doesn't China think it is special?

The fact that we believe we are exceptional is ironically unexceptional.

[Cieran]

I think this lies at the heart of the matter:

Politically, such prosecutions would sharply divide the country and probably hurt the Democratic Party in the mid-term elections in 2010 or the genral in 2012.

The country is already sharply divided, and failure to prosecute won't do anything to help on that front, so there's no net downside risk to holding Bush, Cheney, and their ilk accountable for their considerable lapses in judgment. The folks who will howl about prosecutions are already howling about "socialism" and "enhanced interrogations", and letting them howl about something meaningful will be a welcome change.

But the Harman affair demonstrates that there is bipartisan risk associated with getting to the bottom of these various messes that have been inflicted on this nation, and the political calculus will likely turn out to be a failure to hold anyone accountable, lest the blame spread to Democratic figures in addition to the usual GOP suspects.

But that's tantamount to putting party affiliation before the responsibilities of citizenship, so a failure to prosecute amounts to a tacit admission that our current crop of so-called leaders are party members first, and Americans second (or third, in the case of Joe Lieberman). Thus we do not risk becoming a banana republic: we instead risk becoming the USSR.

[William P. Fitzgerald III]

pPat Lang,

Of course America is special! However, so is the United Kingdom, France (try saying La France, in a slow and sonorous way, when next in Rheims and you'll see eyes brighten and shoulders straighten), Germany, Japan (land of the gods), and so forth. But, if we're all special, then none of us is. I think I just refuted my opening sentence.

Our founding fathers, those who wrote the constitution, were not idealists but, rather, empiricists. They were interested in what would work. The result is that we have a government of laws, and the law has its own logic, based on the finding of fact, rules of evidence, and the like and once the process is set in motion it acquires a momentum of its own. Should we begin that process, I don't see a good result. As has been suggested, the classic investigatory commission with the task of identifying mistakes and recommending remedial measures has to be the way forward. I'm using the word, "mistakes", as a euphemism for all sorts of behavior, including crimes.

The tension among politics, law, and justice is tricky to deal with and this conundrum
is a perfect example.

WPFIII

[Cato the Censor]

"Politically, such prosecutions would sharply divide the country and probably hurt the Democratic Party in the mid-term elections in 2010 or the genral in 2012."

I personally do not beleive that any such prosecutions would alienate anyone other than hard-core rightwing types who already think that Barack Obama is a foreign-born Marxist who wants to put all of them in concentration camps. Politically, this doesn't seem like such a downside since the damage has already occurred.

As the enormity of the crimes committed by the Bush/Cheney regime continues to emerge (waterboarding prisoners hundreds of times over short months? to what possible end?), it is my sincere hope that this country will for once do what's right and put these criminals in prison where they belong.

[b]

Are we that childish?

Yes.

[Nancy K]

I'm sure i am very naive but it seems that once we realize that we (the US) have done something wrong, we need to admit it and then change it. We don't lie and try to rationalize and cover up. This is a basic rule parents teach their children, and maybe it is one we need to get back to.

[William R. Cumming]

Ihad a small role in inventing "national security" as a law school subject leading to and contributing to several of the four editions of texts on the subject by Dycus & Raven-Hansen et al. My focus for assistance to those outstanding law profs was the domestic impacts of the National Security State created in large part because of fears (many justified by the Soviet Union and the atomic/nuclear era). What was my purpose? Many competent but bored small town to big city lawyers at some point decide to enhance their resume and economic prospects by becomeing elected officials, Mayors, Governors, Congressmen and Senators, maybe even Presidents. Not sure whether more Generals or Lawyers elected President and some both. Anyhow my hope was that they might having completed a course usually elective have some sense that the National Security State had as its premise the US Constitution, a document written to some degree during times of emergency. And at least were sensitive to the implications of that formidable national security state on domestic affairs. I understand it is now the most popular elective course in the law schools wherein it is taught.
Where does this leave US? Well the tangles of Watergate, Iran-Contra are only the revealed tip of the iceberg. Truman has substantial doubts about the creation of the CIA. AS a representative of the so-called "Common Man" I can fully understand why. Staffed orignally by off-spring of what I like to call immigrants from Europe it was that common history that led to sympathy and knowledge of W.Eurpoean norms and governmental processes and systems, for better or worse. Also languages. That background came in handy during the wars of the 20th Century. Will it still be the case for the wars of the 21st? Drawing early conclusions we are partly in those wars because the depth of our knowledge (especially mine) of the Islamic world prior to and maybe even now was and is incredible. Is it the "Koran" or "Quran"?
Personally I think we are 'Not' being childish becaues WE KNOW WE VIOLATED INTERNATIONAL TREATIES AND NORMS and both parties are deeply implicated. We do need to know why the checks and balances failed even if not to determine guilt or innocence. That is why I want this subject pursued. Can even violations of international law, international norms, and even the US Constitution be allowed to continue without doing our best to meet those standards. It would have a chilling effect, but joining the ICC would be exactly the chilling effect on US desire to conduct war and diplomacy that probably is the "Waterboarding" necessary to get the US to where it should be as the oldest and richest democracy (republic) and a principal world leader in helping the human race achieve what could be achieved. In this case I don't think I am wrong.

[linda]

colonel, how could you question the astute contribution to political analysis that tweety provides day after day after day... tweety was also one of those enthralled by the 'evidence' that torture works as laid out by '24'.

and poor bob baer who had to sit thru an extraordinarily retarded segment the other day.:

MATTHEWS: Let‘s talk about one last thing, which is fascinating to me, as, like most of the people of our generation, I was fascinated by the film “Manchurian Candidate.” Who wasn‘t? I mean, certainty, that was a film about assassinations of presidents, frightening, right-wing, left-wing, all these moles.

And, by the way, there‘s Laurence Harvey. He played an American soldier who was brainwashed when he was a prisoner in the Korean War, a prisoner of the Chinese communists, who used brainwashing, we called it at the time, to try to convince a guy to do—and they did. They got him so conditioned that he was going to act as an assassin.

BAER: Well...

[lina]

Shortly after 9/11, I remember a question from a reporter to President Bush about something the administration was about to do being a violation of international law. He mockingly replied "international law? -- wait, let me call my lawyer."

You may recall, he got reelected handily in 2004.

Are we childish? More like poorly educated and brainwashed. The average American is clueless about the Geneva Conventions and doesn't know Thomas Paine from Otto the Orkin Man.

The Obama administration has to find a way to prosecute criminals without the effort consuming his presidency. I have no idea how that would be done, but to ignore it all and hope it goes away is unrealistic.

[Fred]

Mr. Ratner is correct in pointing out that ALL the information needs to be presented to the public. And towards the end of the Newshour interview: If you can break the law and torture people in the name of national security, there's no end to breaking the law.
As for Mr. Smith, former CIA official: "I believe the president was correct when he says that those officers of the CIA who operated within the guidelines that were approved by the Department of Justice should not be prosecuted."
Since 'just following the approved guidelines' is now the policy are we going to issue an apology to those convicted and punished at the Nuremberg trials? In the future when members of a foreign government follow the guidelines of their government and do these things (torture) to US citizens then the American people should accept that not only were they 'just following orders' but they were also following the example set by the American people through the actions of their constitutionally elected representatives?
This just becomes surreal. We issue a firearm to every police office in America, if they fire it they area all investigated and held to account. The Authority to use force is delegated, the responsibility rests not just with the individual using that firearm but also with the leadership who set and implement that policy.

Let me cut short a quote from Ed Rollins,
"Fortunately, because of the enormous talents of many federal agencies comprised of extraordinary Americans who work very hard at their jobs.."
A briefing was presented to President Bush in August 2001 entitled Bin Laden determined to strike in US."
Neither torture nor warrantless wiretaps were needed to develop this accurate and timely information.

[Eric Dönges]

What are we saying? Is it our position that international law applies to everyone but us and that it does not apply to us because we are "special?"

That is exactly what you're saying, just like every other country on the globe - the only difference is that you can get away with it for the foreseeable future.

Richard,

Just to name two examples, both France and Germany continuted such proescutions nearly a decade afer the end of wwII.

I don't know about France, but scores of people important in post-war Germany where never prosecuted, their Nazi past covered up until they where safely retired or dead. And I'm willing to bet money that had it been solely up to the German people, there wouldn't have been any prosecutions at all.

The United States of America is either a nation of liberty and laws or it is not.

It's not, and likely has never been. As in all other human societies, the ruling class does not have to follow the rules that apply to ordinary people - that's the entire point of belonging to the ruling class in the first place.

[Nightsticker]

Colonel Lang,

I am a little more sanguine than some of your correspondents about the outcome of all this. I think some kind of justice will be meted out.
(1) There are serious and credible allegations of violation of Federal Law [the Torture Statute, Title 18, part 1, Chapter 113C].
(2) Experience has shown that it very difficult to forever prevent investigation of allegations of serious crimes and then very difficult to forever prevent the judicial process from starting up and then grinding away till it reaches the end.
(3)Persons who try to prevent or impede the process frequently run afoul of another set of laws [conspiracy, obstruction of Justice, perjury, etc]. It would not be at all surprising if some torturers went to jail for "lying to the FBI". That is what is known as a "5 and 5" [$5K fine, 5 years in jail].
(4) There are more perpetrators, victims, interested parties,public interest,etc than there are in most situations. Torturers are vulnerable in more ways than most criminals. They are vulnerable in US and foreign courts. They are vulnerable to both criminal and civil actions. They are vulnerable to reprisal by victims and kinfolk of victims.
(5)There are all sorts of persons in the IC and DoD who we have not yet heard from whose testimony or other evidence could cast more light on things that were done and who did them. These persons are ticking time bombs;some of them will go off.It is not likely that these revelations will help the torturers.
(6)The torturers are vulnerable to betrayal and exposure by everyone who knows secrets and who has a motive to talk [divorcing spouse, passed over military officer,
disgruntled secretary,courtmartialed NCO,fired IC employee etc].

This has gone too far to be put back in the bottle. And out of the bottle it can't be ignored.

Nightsticker
USMC 65-72
FBI 72-96

[Arun]

Dear Col. Lang:

Obama's statements are only his opinion. The DOJ is supposed to be non-political and is supposed to undertake investigations and prosecutions based on legal reasoning, and not on the President's statements or wishes.

The legal reasoning is also simple. Waterboarding has been illegal in the US since 1898 or so, and has been prosecuted. It is torture under various international treaties that the US has ratified, and is illegal under those laws as well. The law obliges the DOJ to undertake an investigation. (Neither Congress nor the President need take up their valuable time with this investigation. DOJ lawyers or an independent counsel can do the job.)

If the application/non-application of the law is a political decision, then this Republic is greatly vitiated.

-Arun