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  • Obama’s New Nuremberg Defense

    Posted by Shannon Love on April 22nd, 2009 (All posts by )

    The Nazi defendants at the Nuremberg trials must be down in Hell kicking themselves for not thinking of this [h/t Instapundit]:

    White House chief of staff Rahm Emanuel said over the weekend the administration did not support prosecutions for “those who devised policy.” Aides later said he was referring to CIA superiors who ordered the interrogations, not the Justice Department officials who wrote the legal memos allowing them.Then came Obama’s comments Tuesday when a reporter asked him if he backed prosecution for those who devised the interrogation policy. He had already shot down the idea of prosecuting any of the CIA agents who carried out the interrogations on grounds they were following the law at the time.

    Wow, so the standard now is that you’re off the hook for crimes against humanity if the lawyers told you it was okay? Sweet! Does that work for other crimes as well?

    The original Nuremberg defense rested on the premise that soldiers could not be held legally responsible for following the orders of the duly constituted political authority of their country. That defense has been rejected for over 70 years. The legal standard is that “crimes against humanity” are simply illegal regardless of the political authority that authorized them. Do we really want to open a loophole that says it’s okay for soldiers and other agents of the state to commit crimes against humanity if their legal department gives them the green light?

    Obama wants to have his political cake and eat it too. Given his years of opposition to “torture” and the Left’s deep psychological need to punish those who disagree with them, Obama has to hold somebody accountable for carrying out enhanced interrogations. However, the public won’t support going after the soldiers, officers and agents who actually conducted the interrogations. Putting Bush and the other elected officials on trial would be a political nightmare which could backfire badly. To get around these problems, Obama has hit on the idea of prosecuting some largely anonymous lawyers instead. 

    I think Obama believes that the general public holds lawyers in general in disregard and will not become angry if he targets them alone. He can make these lawyers the scapegoats for “torture” and thereby throw some red meat to his most radical supporters, while at the same time taking himself off the hook for bald-faced hypocrisy. The trials will be stamped in the public imagination instead of his continued use of the majority of Bush’s intelligence methods. He can create a marketing campaign around the illusion that he has corrected Bush’s doctrines, while at the same time using Bush’s techniques to fend off a politically damaging terrorist attack. 

    Obama is clearly trying to pull a slick trick with a leftist’s standard disregard for the long-term consequences of his actions. What will happen long term if we establish a legal precedent that holds the lawyers who create legal justifications for acts responsible for those acts, instead of those who order and carry out the acts? Could we hold corporate officers responsible for financial misconduct as long as they have an opinion from their legal department saying it was okay? Would lawyers give honest legal advice to anyone if they feared that they and they alone would be held responsible for the actions of others?

    (Such a tactic could also backfire politically if Bush or Cheney steps forward to claim responsibility instead of the lawyers. Given Bush’s long-recognized sense of loyalty, it’s a definite possibility.)

    Hanging the lawyers is nothing but a cheap political stunt with dire long term consequences. It reveals that Obama stands firmly in the leftist tradition of hysteria and hypocrisy about America’s supposed war crimes. 

     

    4 Responses to “Obama’s New Nuremberg Defense”

    1. FortWorthGuy Says:

      We shall call this “the Emanuel defense”! Catchy name and it has sort of a spiritual quality about it too.

    2. Shannon Love Says:

      FortWorthGuy,

      We shall call this “the Emanuel defense”!

      Heh, I like that.

    3. Joshua Says:

      The original Nuremberg defense rested on the premise that soldiers could not be held legally responsible for following the orders of the duly constituted political authority of their country. That defense has been rejected for over 70 years. The legal standard is that “crimes against humanity” are simply illegal regardless of the political authority that authorized them. Do we really want to open a loophole that says it’s okay for soldiers and other agents of the state to commit crimes against humanity if their legal department gives them the green light?

      Maybe not, but I wonder if this might not have an unintended salutary effect. As it stands now, if a soldier is ordered to do something he thinks might be a CAH, he basically has two choices:

      (a) comply with the order and merely risk eventual prosecution and punishment for a crime against humanity, or

      (b) refuse the order and all but guarantee swift punishment from his own superiors, perhaps even summary execution, for refusing the order.

      The dilemma here, of course, is that choice (a) is dictated not only by military discipline, but by the soldier’s rational self-interest. He may not relish the idea of committing a CAH on the enemy, but he probably won’t be willing to go to military prison or take a bullet in his brain on the spot from his own CO for the sake of sparing the enemy. They are, after all, the enemy. Furthermore, even if he follows the order there is no guarantee that he will be prosecuted for it. Maybe the war crimes tribunal will decide his actions didn’t rise to the level of a CAH – or maybe postwar conditions (read: victor’s justice) will turn out such that there is no tribunal at all.

      What is needed here, that the Nuremberg precedent doesn’t provide, is a way to allow the soldier to both not commit the CAH and avoid punishment from his superiors for not following an order to commit the CAH. In other words, to make (b) the more palatable of the two choices from the soldier’s perspective. Merely having a lawyer vet the military’s tactics before battle is obviously far from a perfect way to accomplish this, but it still strikes me as better than nothing.

    4. Shannon Love Says:

      Joshua,

      American soldiers have long had the right to refuse orders they believe to be illegal. Any contingency that a reasonable person would consider an actual crime against humanity e.g. intentionally killing civilians, are considered illegal acts under American military law. Most of the accusations of military misconduct in Iraq were actually made by military personal. Those accusations resulted in convictions at a much higher rate than accusations from other sources.

      The real threat of atrocities comes not from fear on the part of soldiers but from there constant need to act on incomplete information. Unlike in the movies, soldiers do not have a god-view of the battlefield. A soldier really only has information about his immediate environment but in order to fight effectively they have to coordinate with all the other soldiers they can communicate with. (This situation has improved a lot with net centric warfare with provides near global information to individual soldiers.) Military training focuses on teaching people to act on the basis of incomplete information by following orders. This makes it easier for corrupt officers to order soldier to commit illegal acts. The soldiers at first just assume that the officer has information that the solider does not.

      Once a solider apprehends that they have committed or witnessed an illegal act, they have the legal responsibility to report it to the judge advocate general. This was done several times in Iraq. I don’t think we need any knew legal standards to prevent war crimes. I think the “Emanuel” defense would just provide cover for corrupt soldiers who intentionally commit crimes.