War Crimes Accountability And Justice

Judgment at Nuremberg and American Torture

Michael Zucker:

"There are those in our own country who today speak of the protection of country, of survival. A decision must be made in the life of every nation ... when it seems that the only way to survive is to use the means of the enemy to rest survival upon what is expedient."

That's lead Judge Dan Haywood, played by Spencer Tracy, in the powerful 1961 film "Judgment at Nuremberg", speaking for the panel that tried the film's four fictional defendants who had been high level judges in Hitler's Germany. Those judges had subverted the rule of law by rendering decisions based on what served the political ends of the Nazi regime. "A country (is) what it stands for when standing for something is the most difficult," Haywood says in summation.

The film has particular relevance today since we've been engaged in the issue of the legality, morality, and efficacy of using our past enemies' inhumane interrogation methods against our current enemies. As the Stanley Kramer production examined the soul of the German people that emerged from its dark days under Hitler, the discussion in America in 2009 goes to the heart of who we are as a people.

Oscar-winning screenwriter Abby Mann's primary message was that the rule of law presumes that humans charged with its interpretation and administration owe their allegiance to it and not to government officials. That message resonates in the conclusions of the Senate Armed Services Committee Detainee Treatment Report that was released in April.

The report discloses that while interrogating detainees, we adopted techniques that were used by the Chinese Communists during the Korean War to elicit FALSE confessions from American prisoners. […]

The legal structure that the use of these techniques violated includes our signing (under President Reagan) the Convention Against Torture; Common Article 3 of the Geneva Convention Relative to the Treatment of Prisoners of War that was unanimously ratified by the U.S. Senate in 1955 and that specifically prohibits torture; and two additional covenants joined by the United States in 1992 and 1994.

The War Crimes Act (1996) that criminalizes torture and other grave breaches of the Geneva Conventions, the Torture Act (2000), and laws enacted during the Bush/Cheney years reinforce the legal underpinning.

In 2006, the sitting judge advocates of our military services unanimously told the Senate Judiciary Committee that waterboarding was inhumane and illegal. In November 2007, four retired military judge advocates wrote to Senator Patrick Leahy that "cruelty and torture is neither justified nor legal in any circumstance", that "Abu Ghraib and other notorious examples of detainee abuse have been the product...of a self-serving and destructive disregard for the well-established legal principles applicable to this issue", and that "waterboarding detainees amounts to illegal torture in all circumstances. To suggest otherwise ... (is) an affront to the law and the core values of our nation."

Mr. Levin's committee concluded that when Justice Department officials John Yoo, Jay Bybee, and Alberto Gonzales argued in 2002 that torturing prisoners was not against the law, they "distorted the meaning and intent of anti-torture laws (and) rationalized the abuse of detainees..." and that a GTMO legal review justifying a GTMO command request to use aggressive techniques similar to those in SERE training was "profoundly in error and legally insufficient."

"Judgment's" Dan Haywood said, "Under a national crisis ... even extra-ordinary men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination." That delusion is exemplified by Bush Administration people having directed American practice of torture in order to pursue political objectives. For example, on May 14, former NBC investigative producer Bob Windrem told MSNBC that a trail leading out of Dick Cheney's office carried the "suggestion" to the field in Iraq that interrogators should waterboard an Iraqi intelligence officer to elicit information about a non-existent link between al-Qaeda and Baghdad, even though that officer had already become cooperative under normal interrogation methods.

In May 2007, General David Petraeus told us "Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they are frequently neither useful nor necessary... What the (detainee) says may be of questionable value..." On May 30 on Fox, in a coincidental echo of Judge Haywood, he said "I don't think we should be afraid to live our values. That's what we're fighting for, it's what we stand for..."

Just how far we have strayed from those values should be disclosed over the next few days when the CIA releases previously redacted information about Al-Qaeda detainee statements that say they were mistreated. According to a June 9 statement by Senator Sheldon Whitehouse (D-RI), who has had access to the interrogation program, "The record is bad; we've been misled about nearly every aspect of this program; ...the story line that we have been sold is false in every one of its dimensions."