(updated below - Update II)
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Nuremberg Tribunal. Adopted by the International Law Commission of the United Nations, 1950:
Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
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.
Section II, Article 8: "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires."
One of the chief reasons the defendants say there was no conspiracy is the argument that conspiracy was impossible with a dictator. The argument runs that they all had to obey Hitler's orders, which had the force of law in the German State, and hence obedience could not be made the basis of an original charge. In this way it is explained that while there have been wholesale killings, there have been no murderers.
This argument is an effort to evade Article 8 of the Charter, which provides that the order of the Government or of a superior shall not free a defendant from responsibility but can only be considered in mitigation.
I think one of the most important statements that Barack Obama has got to make right soon is that there will be no punishments or purges or witch hunts of people in the intelligence community for what was done during the Bush administration.
As Charles [Krauthammer] said, the country was kept safe ever since 9/11. There has not been an attack. These people did what they did under orders and with patriotism. And Obama should make it clear that none of them is going to be held to account for what they did.
That the U.S. doesn't consider itself bound by the principles which we advocate and impose on the rest of the world isn't news. And I personally consider it far more important to pursue the criminality of the top political officials who authorized war crimes than it is to pursue lower-level intelligence officials who carried it out.
Still, it's striking to see someone so explicitly repudiate one of the defining Nuremberg principles, which subsequently became the cornerstone of international law, by arguing that intelligence officials who tortured people should have the Leader immediately bestow full immunity on them. Why? Not because what they did was legal or justified, but because "these people did what they did under orders and with patriotism." As Salon notes today, human rights groups have documented that close to 100 detainees have died in U.S. custody (.pdf) as part of the "war on terror," while "at least three dozen people believed to have been held in secret remain unaccounted for, their fate and whereabouts unknown." Yet "following orders" and "did-it-with-patriotism" are sufficient to render them immune.
That's all part-and-parcel of the broader trend whereby we now believe that the U.S. President is empowered to do anything and order anything -- from declaring someone an "enemy combatant" to proclaiming torture techniques to be legal -- and that the mere fact that he does so makes it legal. It's the classic Nuremberg defense -- though now (at least for ourselves) we expressly embrace it rather than emphatically reject it.
The most notable aspect of the December 31 letter sent by the DOJ's Criminal Division to NSA whistle-blower Tom Tamm (.pdf) was the DOJ's declaration, in the very first sentence, that it was still investigating disclosures regarding what it officiously called "the Presidentially-authorized NSA program" -- as though the mere fact that the President ordered it has some sort of legal significance, that the fact that it was "Presidentially-authorized" made it proper, even though a 25-year-old law said that what the President ordered was a felony offense.
That same mentality -- that if the President orders it, then it's deemed legal, even if it's a crime -- was also the basis for the sole "concern" expressed by Nancy Pelosi when told that the NSA was spying on Americans without the warrants required by law: "I am concerned whether, and to what extent, the National Security Agency has received specific presidential authorization for the operations you are conducting." And that same "just-following-orders" defense was the prime basis for immunizing lawbreaking telecoms who "did what they were told" by The Leader. This was Sen. Kit Bond's perfectly illustrative rendition of this mentality when explaining why telecom immunity was justified:
I'm not here to say that the government is always right, but when the government tells you to do something, I'm sure you would all agree that I think you all recognize that is something you need to do.
A more collective explicit embrace of the "just-following-orders" defense is hard to imagine. If the President orders it, you do it, and it's legal and right.
Then again, if you examine virtually any of the various arguments made by our political and media elites as to why investigations and prosecutions of Bush officials should not be pursued, you'll find an explicit repudiation of at least one -- and probably more than one -- of the four above-listed core international law principles that were universally adopted in the wake of Nuremberg. There's probably something healthy about that. A nation is defined not just by its actions but also by the principles it affirms and rejects. And the only way to argue that Bush officials shouldn't be held accountable for the crimes they ordered and authorized is to make clear that one does not actually subscribe to these core principles of Western justice. There's value in having our political establishment be forced to declare that so openly.
UPDATE: Time's Joe Klein, who, back in 2002 -- when Bush was overwhelmingly popular and powerful -- viciously mocked those who were objecting to the treatment of Guantanamo detainees and vehemently denied that the U.S. was torturing anyone, has now -- with a disgraced and powerless George Bush on his way out the door -- changed his mind completely and decided that the Bush administration's torture of detainees was its "most despicable act." That's the modern American journalist for you: reverence for politically powerful officials and criticism only for those perceived as powerless.
In any event, Klein reports:
There is, I'm told, absolutely no interest on the part of the incoming Obama Administration to pursue indictments against its predecessors. "We're focused on the future," said one of the President-elect's legal advisers. Fidell and others say it is possible, though highly unlikely, that Bush et al. could be arrested overseas — one imagines the Vice President pinched midstream on a fly-fishing trip to Norway — just as Augusto Pinochet, the Chilean dictator, was indicted in Spain and arrested in London for his crimes.
Whether Bush officials will be investigated and prosecuted is a decision that, at least in theory, will be made by the DOJ and Eric Holder. But there are obviously close Obama advisers offering the same excuses, based on the same warped mentality, as Mort Kondrake. "We're focused on the future." So does that mean that the Obama administration won't prosecute any criminals for crimes they committed "in the past" -- or is it only high-level political criminals who will receive this "focused-on-the-future" amnesty?
UPDATE II: Joe Klein responds here. He accuses me of being "monomaniacal on the subject of civil liberties." He once before called me a "civil liberties extremist." I'm not sure why he thinks those are insults. I actually consider them compliments, and even incorporated the latter phrase -- "civil liberties extremist" -- into every speech and presentation I've given since then (always credited to Klein), to explain how one is perceived these days if one opposes torture, believes in the warrant requirement, and thinks that high political officials should be actually bound by our laws and punished when they violate them.
In any event, Klein makes other arguments in his defense -- including his proud citation to an article he wrote in 2004 condemning Abu Ghraib (courageous!) -- which I'll leave to readers to evaluate [note that, contrary to Klein's claim, the OLC opinion asserting that Geneva protections do not apply to Guantanamo detainees, Alberto Gonzales' memo dismissing Geneva protections as"quaint," and Bush's formal decision declaring Geneva protections inapplicable to Al Qaeda and Taliban detainees occurred before -- not after -- Klein's February 4, 2002 Guardian article mocking those who thought there was something to be concerned about with regard to treatment of detainees. Moreover, worldwide horror concerning Guantanamo was common when Klein wrote that article (indeed, it was that horror which he was deriding). Klein's attempt to depict himself as some sort of crusader for proper treatment of detainees is a bit difficult in light of those facts, and given that he wrote: "I would actually prefer [Guantanamo detainees] be dressed in pink tutus"].