"defense of superior orders" is not a defense for war crimes

[MannyGoldstein]

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."

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

I guess the Nuremberg trials were unrealistic and naive.

[merh]

1. No, the naive ones are those that think we should buy that crap

or that the international world will buy it.

[TheKentuckian]

2. And even more naive are those it matters what is bought

This is not a conquered country. Without us there is no international law and if we break it then we veto all resolutions and tell the world to shut the fuck up. I'm not saying it should be like that, I'm saying that's how it is.

I also say a government cannot and should not be able to punish someone for obeying its own orders. Not once you reach the top level and have no greater authority to appeal to.

Nuremburg Principle IV is nonsense. International law cannot give you remedy so it is therefore moot.

[elleng]

3. I thinks its perfectly reasonable for Admin to decide

it will not try or challenge those who complied with 'orders' which had been 'approved.'

Its an entirely different issue whether they SHOULD have been 'approved,' and whether they would be approved today and in the future.

[MannyGoldstein]

4. So, In Your View, Torturing Prisoners Is OK - Better Than Quitting

I hope your view is not shared by many others.

[HamdenRice]

5. And do you believe every low level interrogator was prosecuted at Nuremberg?

Do you even know who was tried? Do you think every German soldier and prison guard who committed abuse against prisoners was tried at Nuremberg and convicted?

I'd love to hear what your factual understanding of this issue is.

[jewishlibrl]

7. In 1992, two guards were convicted for following orders to kill

Even after claiming they were following orders to kill.

Judge Theodor Seidel brushed aside arguments that what the guards had done was proper, even required, under the old East German law. "Not everything that is legal is right," he declared. "At the end of the 20th century, no one has the right to turn off his conscience when it comes to killing people on the orders of the authorities."
You might say that murder is not torture. But the principle that not everything that's legal is right applies to torture if you ask me.

http://www.nytimes.com/1992/01/26/weekinreview/ideas-trends-just-following-orders-nuremberg-now-berlin.html

[HamdenRice]

8. "following orders to kill"

You didn't answer the question. The administration's statement is not about murder.

It's about interrogators who tortured with OLC guidance.

How many low level German interrogators or prison guards who abused prisoners were prosecuted at Nuremberg -- or afterwards?

[jewishlibrl]

16. Nuremberg only took care of major cases; but the American Military Tribunal hung many prison guards

These are not big fish:



They were sentenced to death by us in Dachau.
So the crux of the matter is that these low level order followers did not escape justice. It is irrelevant whether they were brought to justice in Nuremberg or elsewhere.

Here we have The United States of America, led by FDR, hanging 19 guards to death because of war crimes in Dachau, Germany, and 60 years later we refuse to punish the same type of actions perpetrated by Americans this time around.

[stillcool]

6. Germany lost the war...

and how many people were tried at Nuremberg? Wasn't it 22? None of who were those that greatly profited from the war. Funny how those that did profit are the power base of our government isn't it?

[cliffordu]

13. IBM made billions on the card counting machines the Germans used to

keep track of all the people headed for the concentration camps and their final destinations.

All IBM execs got was richer and there were stock splits for the nice people holding IBM stock here in the states.

Congrats. Uncle Milton in Muncie was a war criminal by proxy because of his portfolio.

[stillcool]

17. I remember reading about the drug companies...

working with the defense companies. Pretty scary stuff. Come to think of it, I wonder why they haven't come up with some more innovative torture techniques.

[jberryhill]

18. "I wonder why they haven't come up with some more innovative torture techniques"

That's a really good question.

It may be that the "truth serums" were just as likely to produce unreliable results, but you'd think by now they would have figured out something more targeted. Making people feel really, really good for telling the truth would seem to be a lot more direct than making them feel bad for hiding it.

[jberryhill]

9. It is not the defense being asserted here, however

So bringing up the "Nuremburg Defense" misses the point.

The defense here is a Fifth Amendment entrapment defense.

The Nuremburg defendants were not being prosecuted by the German government.

What is being proposed here is a trial of civilian defendants by the same DoJ which rendered formal opinions stating their actions were legal.

Think about that for a minute.

I ask you if I can walk across your backyard. You write me a letter saying that I can walk across your backyard. I go ahead and walk across your backyard. You then sue me for trespassing.

Now, what do you think is going to be Exhibit A in my defense that you can't sue me?

We are talking here about a criminal prosecution brought by the same agency which said the actions were legal. How do you think that is going to fly?

It's not "just anybody" who rendered those formal opinions - it is the same entity which you want to prosecute people for relying on those opinions. So the upshot, henceforth and forevermore is "a formal opinion by the DoJ isn't worth doodly-squat". Cool. We can shut it down now and rent the space out.

[tomp]

11. no, that's not the analogy.

here's the right one:

you are in a position of authority over me. i ask you if i can assault mr. x. you say,"sure!" i assault mr. x. mr. x attempts to proscute me. i say to mr. x, "but my boss said it was ok. oh, and by the way, my boss is in charge of prosecutions."

[jberryhill]

15. Nope - it misses the point

"Mr. X" does not and cannot bring a criminal prosecution, only the DoJ can do that.

"and by the way, my boss is in charge of prosecutions." - that is also incorrect. The DoJ was not running the CIA, and was not ordering anything.

This is where the 'Nuremburg Defense' assertion breaks down.

Leaving aside the fact that CIA are civilians, I'm sure you know that it is not lawful to follow an unlawful order.

A lot of DU'ers don't seem to understand the "next step" when someone is concerned about whether an order is lawful. Certainly, it is not up to the individual to simply decide for themselves what orders are lawful or not - that's just another way of saying "everyone can do or not do what they feel like doing".

Instead, one goes to the top law enforcement authority in the US, which is by the way NOT running the CIA or ordering anyone to do anything. From the top lawyers in that department one gets a formal opinion stating that "X" is legal.

You are saying the individual's next step is to say, "Well, those are the folks that would prosecute anything, and they say it's legal, but I better get a second opinion." From whom? There is no more reliable opinion than the DoJ on whether the DoJ is going to bring a prosecution on the basis of a proposed course of action.

[tomp]

19. hair splitting semantics. it is you who are missing the point.

so instead of "bring a prosecution" substitute "seeks a prosecution" or "reports a crime".

the same person who has ultimate authority for the doj has ultimate authority for the cia. that would be the president. how convenient!

the opinion of the dept of justice is not law, so if the doj breaks the law, who goes after them? that would be obama. all roads lead to bush/obama. bush broke the law. obama is begging off.

is it illegal for the doj or the olc to interpret law to suit political purposes? i assert that it is.

[jberryhill]

20. Call it what you want... precedent calls it the Fifth Amendment

"the same person who has ultimate authority for the doj has ultimate authority for the cia. that would be the president. how convenient!


Structurally, no. The DoJ has appointees in it, but runs a legal operation under rules of professional independence.


"the opinion of the dept of justice is not law,"


No, it is not law. You are correct again. However, if the DoJ issues you an opinion - even an incorrect one - you are entitled to rely on it as an entrapment by estoppel defense. Are you suggesting that the DoJ could change its mind about, say, the XM/Sirius merger which it approved, and now sue XM for anti-trust violations?

Call it hair splitting if you want to, but while this is the only context into which you've run into a DoJ opinion, there are a lot of other everyday things that ride on the reliability of them.


"is it illegal for the doj or the olc to interpret law to suit political purposes? i assert that it is. "


And I wholeheartedly agree with you. Wherever did you get the notion that anyone did not agree with that proposition?

The culpability of the people in the DoJ who issued these opinions is an entirely different kettle of fish than whether people outside of the DoJ had a right to rely on those opinions. I'm going to guess you don't realize that yet, so you can beat that strawman all day long.

People accused of crimes have rights. We have a DoJ which recognizes that.

[tomp]

22. it's a vicious circle and could be considered conspiracy.

a corrupt doj issues rulings allowing people to get away with things they already intended to do or in fact had already done and perhaps asked for permission for. according to other arguments i've heard here, the doj has the obligation to defend government employees. it goes round and round. crimes have been committed and people seem to be getting away with them.

[jberryhill]

26. The DoJ attorneys cannot absolve themselves...

...and that's where the fabric comes apart if one pulls on the loose threads.

[tomp]

10. self-delete

[Imagevision]

12. I believe Obama is taking this too lightly - I really expected more... transparency? not cool.

[Life Long Dem]

14. It is if your tired of seeing the soldiers punished.

[yowzayowzayowza]

21. Yes they "were unrealistic and naive."

How many war criminals were prosecuted from the Allies? Precisely ZERO. Does that really reflect their behavior? The high dudgeon over the righteousness of the Nuremberg Trials is very very hollow.

[Danger Mouse]

23. History is written by the victors.

[Kaleva]

25. I doubt then we'll see any Dems charged

I talking about members of Congress who may well have been aware of what was going on but did nothing to stop it.

[Kaleva]

24. Those who follow orders are not always charged

There is an example of post WWII war crimes trials where members of the military and lower level politicians were exempted from prosecution. Only the top civilians in a position to give orders where charged with crimes.

[Supersedeas]

27. a codified defense: see 42 USC 2000dd-1 and 18 USC 2441(c)(3)

(a) Protection of United States Government personnel
In any civil action or criminal prosecution against an officer,
employee, member of the Armed Forces, or other agent of the United
States Government who is a United States person, arising out of the
officer, employee, member of the Armed Forces, or other agent's
engaging in specific operational practices, that involve detention
and interrogation of aliens who the President or his designees have
determined are believed to be engaged in or associated with
international terrorist activity that poses a serious, continuing
threat to the United States, its interests, or its allies, and that
were officially authorized and determined to be lawful at the time
that they were conducted, it shall be a defense that such officer,
employee, member of the Armed Forces, or other agent did not know
that the practices were unlawful and a person of ordinary sense and
understanding would not know the practices were unlawful. Good
faith reliance on advice of counsel should be an important factor,
among others, to consider in assessing whether a person of ordinary
sense and understanding would have known the practices to be
unlawful. Nothing in this section shall be construed to limit or
extinguish any defense or protection otherwise available to any
person or entity from suit, civil or criminal liability, or
damages, or to provide immunity from prosecution for any criminal
offense by the proper authorities.
(b) Counsel
The United States Government shall provide or employ counsel, and
pay counsel fees, court costs, bail, and other expenses incident to
the representation of an officer, employee, member of the Armed
Forces, or other agent described in subsection (a), with respect to
any civil action or criminal prosecution or investigation arising
out of practices described in that subsection, whether before
United States courts or agencies, foreign courts or agencies, or
international courts or agencies, under the same conditions, and to
the same extent, to which such services and payments are authorized
under section 1037 of title 10.

-SOURCE-
(Pub. L. 109-148, div. A, title X, Sec. 1004, Dec. 30, 2005, 119
Stat. 2740; Pub. L. 109-163, div. A, title XIV, Sec. 1404, Jan. 6,
2006, 119 Stat. 3475; Pub. L. 109-366, Sec. 8(a), Oct. 17, 2006,
120 Stat. 2636.)

-COD-
CODIFICATION
Pub. L. 109-148 and Pub. L. 109-163 enacted identical sections.
The section enacted by Pub. L. 109-148, but not the section enacted
by Pub. L. 109-163, was amended by Pub. L. 109-366, see 2006
Amendment notes below. The text of this section is based on the
text of section 1004 of Pub. L. 109-148 as amended by Pub. L. 109-
366.


-MISC1-
AMENDMENTS
2006 - Subsec. (b). Pub. L. 109-366, Sec. 8(a)(3), which directed
the insertion of "whether before United States courts or agencies,
foreign courts or agencies, or international courts or agencies,"
after "described in that subsection", was executed by making
insertion after "described in that subsection,", to reflect the
probable intent of Congress.
Pub. L. 109-366, Sec. 8(a)(1), (2), substituted "shall provide"
for "may provide" and inserted "or investigation" after "criminal
prosecution".

EFFECTIVE DATE OF 2006 AMENDMENT
Pub. L. 109-366, Sec. 8(b), Oct. 17, 2006, 120 Stat. 2636,
provided that: "Section 1004 of the Detainee Treatment Act of 2005
(42 U.S.C. 2000dd-1) shall apply with respect to any criminal
prosecution that -
"(1) relates to the detention and interrogation of aliens
described in such section;
"(2) is grounded in section 2441(c)(3) of title 18, United
States Code; and
"(3) relates to actions occurring between September 11, 2001,
and December 30, 2005."

[jberryhill]

28. Thanks for that cite

Illuminating.