Administration Invokes Nuremberg Defense

On April 16, the Department of Justice released a series of four Bush administration memoranda issued by the Office of Legal Counsel concerning the legality of “coercive interrogation” (read: torture) but effectively pardoned government officials from accountability for past actions. President Obama announced that the government would not prosecute CIA officers who engaged in illegal behavior because the Bush administration had claimed it to be legal.

Included in these memos is acknowledgement of the application of Survival, Evasion, Resistance, Escape (“SERE”) techniques and the involvement of CIA psychologists in interrogations.  SERE techniques were designed during the Cold War to train US soldiers in resisting Soviet interrogation techniques.  These techniques were then reverse engineered [1] for use in devising American interrogation procedures used in the War on Terror.   Documents show that the use of “cramped confinement,” “stress positions,” “sleep deprivation,” “insects placed in a confinement box,” and “the waterboard” were authorized techniques.  The documents attempt to draw an artificial and subjective line between “pain” and “suffering,” defining torture as an act that causes “severe pain” and note that sleep deprivation is therefore not torture.  Disturbingly, the documents further show the complicit nature of mental health experts in these interrogations as well as the creation of the techniques.

No proof that these interrogations brought about usable intelligence has ever been provided by government officials.

We already knew all that.  The real story is in how President Obama has chosen to follow up on these activities which several former administration officials, and most scholars, have called torture [2].   Obama commented that “this is a time for reflection, not retribution.”  According to the administration, the CIA officials who committed these crimes were acting on legal advice from their superiors that authorized their behavior. 

However, that was not a valid defense at Nuremburg nor should it be one now.  It is because of Nuremburg that the Uniform Code of Military Justice states that only the “lawful” orders of superiors must be obeyed.  The government recognizes that its employees can make moral decisions in the face of corrupt orders.  Such actions to excuse the failure to make a moral choice are not new and were also used to excuse soldiers for their behavior at My Lai and, more recently, Abu Ghraib.

Transparency is important – but it must be joined with accountability by holding individuals responsible for their actions.

Image by flickr user takomabiblelot [3]used under a creative commons liscence.

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