U.S. Intellectual History Blog

Leon Panetta and the Nuremberg Defense

“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.

9 Thoughts on this Post

  1. Ben–Excellent post. I am incredibly frustrated that so few people seem to be pursuing prosecution of the Bush administration for its criminality, mostly on the faulty notion that the election was the best way to wipe the slate clean. The executive branch, no matter which party controls it, seems like the worst place to look for such prosecution. Even if an Obama presidency is unlikely to continue the official policy of torture, for instance, it does not want to set the precedent of an incoming presidency prosecuting the outgoing one, since eventually he will be the outgoing president. That, and political expediency demand Obama “move forward.” But surely we can expect more of Congress. Here we should look to the Church Committee hearings (1976), which, although not sweeping, did a lot to slow down the culture of secrecy, of the “if the president does it it’s not illegal” mentality. We need one, two, many Church committees. AH

  2. Excellent point, Andrew. I agree that the Executive Branch is probably not the ideal venue for such an investigation. Unfortunately, under both Republican and Democratic hands, Congress has spent eight years indicating its unwillingness to act as a serious check on Executive Branch misbehavior.

  3. I am not sure that I agree with any rush to prosecute Bush or members of his former administration for torture, and certainly not for the political decision of going to Iraq, which was theirs to make. While Ford’s decision can be rightly criticized, consider another counter-example: the impeachment of Bill Clinton, which only a few years later seems (at least to me) not merely misguided, but a stain on our democratic tradition.

    It would be difficult for me to see a Bush prosecution as anything other than a Democratic version of the Clinton action. This is not because I in any way think banging an intern or lying to a grand journey is as serious a crime as torture, but because both cases admit of relatively little public outrage or demand for such an action. I cannot think of a Democrat who ran in the recent elections on the platform of prosecuting former administration officials, or a journalist or activist who has any significant public following on this issue. Prosecuting members of the Bush administration would be so controversial and take so many resources that the machinery of government would grind to a halt for probably a year or more: bringing about such a result without a mandate would appear as nothing other than the elevation of political gamesmanship above the responsibilites of public office.

    This position does not in any way suggest that these offenses are not serious ones. To me, this lack of outrage or concern with how the “war on terror” affects anyone but ourselves reflects a huge problem with the American nation, one that goes beyond the specific issues discussed here. There are few fresh ideas in politics, the opposition party either does not oppose or does so in a frivolous and irresponsible manner, religion and “morality” are more often used as a tool to hurt others than a reminder to care for them, and our culture encourages an overstimulation that breeds vapidity and selfishness. Under such circumstances, no one gets too worked up about the torture of those we never see and with whom we cannot identify. To me, that is the real problem. I don’t know how to solve it, but I don’t think that a prosecution will do anything other than exacerbate it.

    Having said all that, I did read what I think is a very interesting, responsible and realistic assessment of a way to proceed in this regard by Scott Horton in the December Harper’s. He considers the ups and downs of Federal prosecution, international tribunals, and “truth and reconciliation commissions,” ultimately recommending, if I recall, a modified version of the last one. I think this link will work for non-subscribers, but if it doesn’t I can get a .pdf version and send it to anyone who is interested: http://harpers.org/archive/2008/12/0082303 .

  4. I suppose I think that what was wrong with the impeachment of Bill Clinton was not that Republicans lacked public support for it (which they did), but rather that it was wrong on the merits.

    I actually think there would likely have been more support for impeaching President Bush during the last two years of his presidency than there was for impeaching Clinton. Bush was a vastly less popular president and there was significantly more public outrage about his administration (not that you’d know it from the media coverage). Once again, however, I don’t think that polling data ought to guide decisions about impeachment.

    On the other hand, impeachment is, in its very nature, a political process. And though I think it would be terribly upsetting to our Constitutional system if decisions whether or not to impeach became wholly guided by poll numbers, a consideration of poll numbers in any political process is understandable.

    Federal–or international–prosecutions, on the other hand, should not be political processes. While I certainly take your point, Mike, that there’s always a danger that prosecutions will be seen as purely political, letting such concerns guide the decision about whether or not to prosecute amounts to kind of heckler’s veto. Allowing decisions about prosecutions–of former public officials or anyone else–to be determined by the level of public outrage is a big step in the direction of mob rule.

    All that being said, I wouldn’t rush to prosecute anyone. I would rush to investigate, however, while leaving open the possibility of prosecution should circumstances warrant it.

    This is, in fact, close to what Scott Horton argues for in the excellent article to which you linked: a commission followed by the appointment of some sort of special prosecutor if the commission determined that prosecutable crimes had occurred.

  5. we do lots of things that we find, to some degree, to be morally reprehensible because we are ‘ordered’ to do them. Sometimes ‘that’s the law’ really *is* a good reason to do something that we, personally, think is wrong. There is a kind of moral absolutism implied in criticizing all such compromised actions in terms of nuremberg that i find troubling.

    Although I agree that the Bush administration has been nothing short of catastrophic for the US and the world, I do not think there should be prosecutions. I also think that there is a very fine line to walk between remembering the lessons of the holocaust (themselves open to interpretation–Bush et al. used anti-appeasement rhetoric to justify the invasion of Iraq), and simply invoking it in contemporary politics in order to accumulate rhetorical points, and essentially smear the other guy. It’s important to retain perspective: a trial of the Bush administration collectively, or of individuals within it, would *not* be the Nuremberg trial because, contrary to what certain far-left commentators say, Bush was not like Hitler, and contemporary American imperialism is not the same as fascism.

    It is, I think, therefore muddying the waters considerably, and ignoring basic methodological principles of historical study, to suggest that these same words, “i was ordered to do it,” (or, what amounts to the same thing, “it was the law”) are the same kind of defense here and now, as they were there and then.

  6. I think you are misunderstanding my point, Eric. I certainly don’t believe that the crimes of the Bush administration rise to the level of the Holocaust; I’m not sure anyone does. But this issue is a red herring. Nuremberg Principle IV does not in any sense suggest that the actions in question need to be remotely comparable to the Holocaust in order for it to be operable. And the principle that the orders of a superior cannot serve as a “get out of jail free” card for the accused has never been dependent upon the magnitude of the crime.

    What’s at stake here is not whether or not somebody finds an order to be personally morally wrong. The question is whether an action that violates international and U.S. law can be rendered legal merely because a superior ordered it. To argue that it can be is the Nuremberg Defense. And that’s the idea to which Panetta was committing the Obama administration.

    My argument is not, incidentally, dependent upon the belief that prosecutions should take place (and in fact, as I say above, while I strongly believe that investigations should take place, whether or not prosecutions should take place should depend on what those investigations uncover). It’s possible that no CIA officers violated U.S. law and that no CIA officers should therefore be prosecuted.

    What I object to is the notion that CIA officers who violated US law should be absolved from legal responsibility because they were ordered to do so. And I’m troubled by the fact that this principle (as well as the related one that the President cannot simply determine on his own what is and is not legal), which was once widely understood in this country to be an important aspect of the rule of law, has been trampled upon with so little notice.

  7. Let me add that one of the reasons that I mentioned the Abe Foxman incident from the eighties was to point out that the our media and our political class were deeply disturbed at the invocation of the Nuremberg defense in a case that involved wrongdoing not only far less serious than the Holocaust, but far less serious than what the Bush administration is accused of (i.e. counting the number of Jews in the Bureau of Labor Statistics).

  8. I shouldn’t have been so aggressive; and I should say that my (poor) reaction only speaks to the importance of the issue, and your clarity in posing it.

    I see two linked, but distinct issues, and I mashed them together in my response. The first is invocation of the holocaust in contemporary political debate (which, I think it must be admitted, calling something ‘the Nuremberg defense’ certainly constitutes). I’m deeply suspicious of this. Although you yourself are not making the analogy, there certainly are those who do.

    The peculiar thing about Nuremberg itself is that if there was ever a state in which order and law were completely confounded, it surely was the Third Reich.

    We have international law, and also we have supposedly trans-historical human rights. We feel quite comfortable with trying Nazis on such grounds.

    Yet, and this is the other point, is it not also the case that within certain limits orders *are* laws in the US as well? There are of course clear violations of US law, of which there have been plenty associated with our current set of wars and covert operations. Some of these violations are being prosecuted, many no doubt won’t be. But let’s admit that there is ambiguity, and that orders (force) decides that ambiguity. We elected a president, and the president was the sovereign ‘decider’ on the exception. (It seems to me that Bush was being Schmittian in an odd way when he called himself the decider). His word, about some things, in some situations, is law. This does not put the president above the law, does not exclude him or (perhaps one day) her from it, but it does, I think, force us to see the law as more multi-dimensional and ambiguous than it is often suggested that it is, especially in ‘wartime’ situations. Law is supposed to be above power and immediate politics, but obviously it isn’t.

    What a long response to a response. Very interesting post.

    Let me gratuitously quote from an essay by Harry Harootunian in boundary 2 from 2007, in order to explain my sensitivity to the possible equation of Bush and the Nazis: “What the current conjuncture reveals is the spectacle of a second coming of fascism…whereby the state seeks to implement expansion to consolidate empire behind claims to provide security for domestic society and the rest of the world against the threat of terror…Who today could honestly say that the recent revelations (and photographs) disclosing the depths of depravity committed by American soldiers in Iraq against alleged prisoners and civilians are different in kind from the acts of Nazi race hatred in the 1930s? After all, the state doesn’t need an explicit racial policy to carry out mass murder and genocide.”

    This kind of rhetoric (although Harootunian doesn’t think it’s just rhetoric) makes it yet more difficult to effectively combat the institutional causes of the excesses of the US government in recent decades. You say that the US has in general failed to come to terms with its past. In what was no doubt a disproportionate response, I meant only to suggest that dragging attempts to justify what has become an absolute crime into the 21st century perhaps only make such coming-to-terms more difficult.

  9. Thanks for your clarification, Eric! Those are excellent points.

    Let me respond to (what I think is) the (slightly) simpler one first. I think your description of Bush (perhaps that should be Cheney/Addington) as “Schmittian” is apt. But neither US nor international law are Schmittian. And my contention is that they should remain un-Schmittian. This goes back to the Nixon principle that “when the president does it that means that it isn’t illegal.” Is that the case? Should that be the case? I think there used to be a consensus in this country that it isn’t and shouldn’t. I should add that, personally, I think it shouldn’t. And I think a fair reading of our Constitution and of international law would suggest that it isn’t. I fear that Panetta’s testimony (and the non-reaction to it) suggests that there is now a consensus among our nation’s leaders that it is and it should.

    Now to the more complicated question of the Holocaust, Nazism, and the term “the Nuremberg Defense,” which I’m going to further complicate.

    First of all, Nazism was about a lot more than simply the Holocaust. As Peter Novick has argued, it took years for the Holocaust to be seen as the signal crime of Nazism. At the main Nuremberg Trials, for example, “Crimes Against Humanity” was fourth among four indictments, the first three being:

    1. Participation in a common plan or conspiracy for the accomplishment of crimes against peace.

    2. Planning, initiating and waging wars of aggression and other crimes against peace.

    3. War crimes.

    Today the Kellogg-Briand Pact seems like a quaint and failed attempt to keep the peace; in 1945, it was still front and center in the indictment against Nazism.

    All that being said, I entirely agree that claims that the Bush administration was “fascist” are largely sophisticated examples of Godwin’s law. They generate much more heat than light. I think we can generally discuss the (de)merits of the Bush White House without invoking Nazi Germany.

    In the case of the Nuremberg Defense, however, we have a term that is well established in international law and has a very specific, narrow meaning. Especially since I brought up the public view of the Nuremberg Defense, I think it’s entirely appropriate to point out the extent to which the name partakes of the Nazi analogy and derives much of its pejorative power from it. This is in part the moral of the Abe Foxman anecdote that I related. Foxman stood by the former Nixon official who counted Jews in the Bureau of Labor Statistics, but apologized for saying that he was just following orders. That, I think, is the power of the Nazi analogy at work.

    Nonetheless, the term “Nuremberg Defense” is pretty standard at this point. It would be a paradoxical result of its naming that, out of some sort of fear of over-analogizing to Nazism, we refused to note when people like Panetta invoked it. Allowing the Nuremberg Defense to exculpate war criminals would be bad independent of the fact that Nazis invoked it.

    Finally, let me disagree with you on what amounts to a side-point in this conversation…but a very important point in the larger context of the discussion of contemporary history.

    I join historians like Peter Novick and Inga Clendinnen in feeling that the treatment of the Holocaust as an absolute crime–something unique and almost sacred–is both bad history and dangerous politics.

    This is a side-point in this conversation because I agree with you that there is absolutely nothing (so far as we know) that the Bush administration did that justifies Holocaust analogies in this case.

    But I don’t think the Holocaust is fundamentally different in kind from any other historical event. There is no general reason that one shouldn’t analogize to the Holocaust when appropriate. And one should always be careful about how one uses historical analogies. (I should add that this last series of thoughts about the Holocaust in general is just a sketch; I’m aware that I’m asserting things without fully arguing for them. There’s obviously a much more complicated debate lurking here.)

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