The Nuremberg Precedent and the Obama Admnistration

N. Mills: Torture and the Nuremberg Precedent

WE NOW have what the Central Intelligence Agency wanted kept secret: memos showing the Bush Justice Department authorized the CIA use of interrogation techniques ranging from waterboarding to facial slapping in order to get information from senior Al Qaeda operatives.

The CIA’s fears about the damage that could be caused by the memos are understandable. The memos with their “doublethink” read as if they were taken from George Orwell’s 1984.

Waterboarding: According to the Bush Justice Department, waterboarding by the CIA was permissible despite the fact that it “produces the perception of suffocation.” The “feeling of drowning,” Bush officials told the CIA, is legal because it “does not inflict physical pain” and because relief is almost immediate when the wet cloth “is removed from the nose and mouth” of the subject.

Facial slapping: It causes shock and humiliation, Bush Justice Department officials conceded. But it was legal for the CIA to carry out facial slapping because it “does not produce pain that is difficult to endure.”
Walling: Pushing an individual into a wall may hurt, Bush Justice Department officials told the CIA, but “any pain experienced is not of the intensity associated with serious physical injury.” Walling was thus all right in the end because “the sound of hitting the wall will actually be far worse than any possible injury to the individual.”

Attorney General Eric Holder has already declared that waterboarding is illegal, and it is safe to say that that the CIA, under its new director Leon Panetta, is going to be run very differently from the CIA in the Bush years. But the bigger question is, What is going to happen to the officials in the Bush Justice Department who made waterboarding, facial slapping, and walling business as usual? Senator Patrick Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee, has said the memos illustrate the need for an independent commission or inquiry.

The irony is that for the moment President Obama stands in the way of such an inquiry. “Nothing will be gained by spending our time and energy laying blame for the past,” he has declared. It is hard to imagine the president of the Harvard Law Review making such a statement. It is as if he has been blindsided by his well-known dislike of confrontational politics.

It is not simply the specter of Abu Ghraib that the Bush Justice Department memos evoke, but the specter of Nuremberg. This is not to say that the brutality sanctioned by the Bush Justice Department was equivalent to that of the Nazis, but it is to say that the Nuremberg precedent of holding government officials responsible for the human rights violations of their subordinates applies here.

The Bush Justice Department memos show that various forms of torture were authorized by government officials at the highest level. To back off from exposing how the Bush Justice Department gave the CIA permission to use such brutal interrogation tactics is to suggest that we cannot learn from the past. Today we are in a situation very much like the one Supreme Court Justice Robert Jackson described in 1946 when, in his opening statement at the Nuremberg Trials, he said that the brutality of Nazi Germany had “brought shudders to civilized people everywhere.”

For Jackson, it was crucial to prosecute those individuals who had carried out Germany’s crimes. On this matter, he was outspoken. “While it is quite proper to employ the fiction of responsibility of a state or a corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity,” he declared.

We may–just may–not want to go that far in the case of the Bush Justice Department. But if we don’t at least deal with the collective failures that occurred in the Bush Justice Department immediately following 9/11, we are setting ourselves up for a time when a future administration will see no risk in again sanctioning torture. This is a problem that the Obama administration cannot duck–no matter how much it would like to.

Nicolaus Mills, a professor of American Studies at Sarah Lawrence College, is author of Winning the Peace: The Marshall Plan and America’s Coming of Age as a Superpower.