Saturday, April 18, 2009

The Nuremberg Defense Revisited

The recent release of the G. W. Bush era so called "torture memos" calls for more than just exposure. Rep. Jan Schakowsky says she does not want to compare the argument that "CIA personnel acting on the legal advice of the Bush administration" involved in this sordid matter to "Nazi Germany" and the Nuremberg Trials, meaning what become known as the Nuremberg Defense - the notion that following orders excuses the ones executing them from responsibility. Such argument was dismissed by the judges in the Nuremberg Trials as they pointed out that regardless of orders one has always the capability of refusing to execute them on moral grounds, in what became known as Nuremberg Principle IV, that 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."

The main responsibility remains on the shoulders of the person giving the order, thus enabling the practice of the actions, but the executor will be accountable for his or her individual actions and judged accordingly. The manner in which the orders are executed and the context in which all happened are important and could mitigate to some extent the action of the executor, but it will not exempt him or her of responsibility. Comparing the CIA officials that carried out the orders to torture terrorists suspects to the Nazi officials that carried out the orders to torture prisoners of war is pertinent not because the Bush Administration was inspired by Nazism or was Nazi, that's just stupid, but because the principle of obeying orders is one and the same. In fact, the mitigating circunstances some of the german torturers invoked are more worthy of consideration, bear in mind that any german official that refused to participate in torture actions during the Nazi era would probably end up in a camp him or herself, which is hardly the case of any CIA official in the USA today. This does not take any responsibility off the actions of Nazi interrogators but in some cases could explain their actions, which are, obviously, still criminal.

Today's argument that bears similar grounds is not based on fear of the consequences to the executor should he or she have refused to act accordingly to the orders but on fear of the consequences to innocent people that might be saved should torture prove to be effective and was not used. So "I was afraid of what would happen to me if I did not obey" is now replaced by "I was afraid of what might happen to others if I did not obey". One may argue about the validity of both arguments and the extent of it's influence on the executor's actions, but no matter the conclusion the actions are criminal and they should have a consequence. To proclaim moral values and let their violators go unpunished is not enough today as it was not enough in 1945. Germany looked forward, moved past Nazism and became a civilized nation again, but the criminals were punished - and to this day are still being hunted and brought to justice. That is how the world knows such actions are not and will not be tolerated ever again.

I do hope the Obama Administration changes the aproach to this matter, because not doing so will leave the door open to future Administrations to do what was done under G. W. Bush. This problem transcends one particular Administration and we must make sure such actions will not happen again, not only during Obama's presidency but also in the future, no matter who the president will be.

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