“I believe that water-boarding is torture and that it’s wrong. More importantly, the President has expressed the same opinion. Having said that, I also believe, as the President has indicated, that those individuals who operated pursuant to a legal opinion that indicated that that was proper and legal ought not to be prosecuted or investigated.” – Leon Panetta at his Confirmation Hearing as CIA Director before the Senate Select Committee on Intelligence, February 5, 2009.
“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.”– Principle IV Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950.
Ever since the post-World War II Nuremberg trials, the idea that orders from a superior relieved a war criminal of legal responsibility has been held in contempt by the international community. Indeed, the so-called Nuremberg Defense – “I was just following orders” or “Befehl ist Befehl” (“An order is an order”) – was made explicitly invalid by the Charter of the Nuremberg Tribunal. And unlike many other principles of international law, the notion that “I was just following orders” is no excuse has largely been enshrined in U.S. political culture.
To give one example: in 1988, it was discovered that Frederic Malek, then an adviser to George H.W. Bush had, while working for then President Richard Nixon, done a headcount of Jewish officials at the Bureau of Labor Statistics, which Nixon had suggested was controlled by a “Jewish cabal.” Abe Foxman, head of the Anti-Defamation League, had defended Malek from accusations of antisemitism, arguing that he was only “carrying out instructions of an individual who had some of those feelings.” Foxman’s statement was widely seen as outrageous. Calling Foxman’s words “purely astonishing,” columnist Mary McGrory argued that Foxman had “used the Nuremberg defense in Malek’s behalf.” Eventually Foxman issued a public apology. Not for his defense of Malek, whom he stood by, but rather for the way he had framed that defense. “It was an unfortunate comment that I said, an unfortunate use of the term, especially for a Holocaust survivor,” said Foxman, who had survived World War II in Nazi-occupied Poland.
Even in this last decade, when the Bush administration called the Geneva Conventions “quaint” and significant public intellectuals contemplated “torture warrants,” the Nuremberg Defense retained its sense of impropriety. For example, on May 11, 2004, in the wake of the Abu Ghraib scandal, conservative columnist George Will noted that the lawyer for a soldier charged in the investigation “probably will offer…the Nuremberg defense” and that “this should deepen Americans’ queasiness.”
Yet last week, Leon Panetta, President Obama’s nominee to head the Central Intelligence Agency, appeared to promise that the Nuremberg defense will be accepted by the incoming administration. So long as individual CIA officials were operating pursuant to a legal opinion of the Bush administration, Panetta promised, they would not be charged with war crimes, even for engaging in activities that Panetta himself believes are banned as torture under international law. Given all that we know about the creativity and flimsiness of the Bush administration’s legal findings regarding interrogation techniques, Panetta’s comment would seem to also enshrine another dubious and formerly repudiated legal principle, Richard Nixon’s declaration that “when the president does it that means that it is not illegal.”
As surprising as the Obama administration’s seeming endorsement of the Nuremberg defense might be, the media silence about it has perhaps been more even more amazing. Outside of a few bloggers, there has simply been no analysis of Panetta’s position in light of the Nuremberg Principles.* Why doesn’t Panetta’s testimony deepen the American media’s queasiness?
Our media’s inability to recognize, and recoil from, the notion that “Befehl ist Befehl” in this case has to do with our nation’s larger failure to engage in another, more positive, German principle: Vergangenheitsbewältigung or “coming to terms with the past.” In the aftermath of major political scandals such as Watergate and Iran-Contra, our political class has felt that putting the past behind it is more important than holding the guilty responsible. Thus Gerald Ford’s decision to pardon Nixon has come to be seen as one of the highlights of his brief presidency, widely praised after he passed away two years ago. And the perpetrators of Iran-Contra were also left unpunished, while the scandal itself was soon forgotten (except, perhaps, by those, like then Congressman Dick Cheney and his aide David Addington, who penned the Congressional Minority Report in defense of the Reagan Administration’s actions).
In the case of both Watergate and Iran-Contra, the guilty administration was succeeded by an administration of the same party. One might—wrongly I think—conclude that their decisions to paper over the criminal actions of the recent past were purely partisan. In this regard, the Obama administration provides an interesting potential contrast. But although he was explicitly elected to undo much of what occurred in the last eight years, Barack Obama has so far shown every sign of behaving exactly as did Ford and Bush 41, putting a priority on “looking forward” rather than coming to terms with the recent past. The problems with this approach are not simply theoretical. Nor do they merely involve issues of international law. Our politics since the mid-1970s have been haunted by our unwillingness to root out the people and the principles behind Watergate and the other scandals of the Nixon White House. And many of those most responsible for the last eight years have connections to Iran-Contra. I hope that Panetta’s implicit invocation of the Nuremberg defense on behalf of the CIA does not indicate that Obama will continue to follow Gerald Ford and George H.W. Bush down the path of forgetfulness, for if he does, our long national nightmare may continue still.
* Though it’s always hard to prove a negative, a LexisNexis search on “Panetta Nuremberg” for the last week yielded not a single hit.