I just got through listening to Keith Olbermann's "Special Comment," and I agree with him.
This is not an either/or; and it does not resolve by making it one.
The first line of assault, and the one consider the trump card, in this discussion, is the Nuremberg trials. Mr. Olbermann used it at the end of his comment, as the final, inviolable legal and moral truth by which all countries must abide. He's right. He's also wrong.
The problem with the "Nuremberg example" is that most of us know those trials from the movie, not from the trial transcripts. By the same token, we know the "Scopes Monkey Trial" from the movie, not from the court transcripts; and we are, by and large, wrong about that trial (and about the meaning of that movie). The trials at Nuremberg did not establish a higher moral authority that is sacrosanct and must be followed and adhered to by all legal systems. It did not put "God" into the legal system as the final arbiter of right and wrong, with a standard we all agree to and from which no one can aver without moving away from the Platonic "Good" that "Nuremberg" inevitably represents in these discussions. No, the judgment at Nuremberg did not establish a unitary moral standard which all legal systems are bound to obey. What it established was a humane and respectably systematic exercise of power by the conquerer over the conquered. Once upon a time in Europe, this was done by slavery and sowing the ground with salt, or simply destroying the indigenous government and annexing the property, or setting up a puppet regime. I'm no historian of World War I, but the received wisdom is that the Armistice led almost directly to Nazi Germany, and the Allied powers at the end of World War II were determined not to see that happen again. Thus Nuremberg, in part to remove the claim that the Allied Powers were simply punishing Germany...again.
At those trials, the defense of the vanquished was that, given this unique attempt to apply law to their actions, the law must shield them, since they were "only following orders." No, said the conquering powers, that will not defend you. But listen to what John Dean said, moments before Mr. Olbermann's "Special Comment." He said the 3rd Circuit Court of Appeals remanded for new trial two of the Watergate burglars because H.R. Haldemann issued a legal opinion that what they were doing was a national security matter, and so "legal." That, the Court said, was a valid defense.
Why? Doesn't that violate the sacred principal of Nuremberg? No, it doesn't. Because that's not the sacred principal of Nuremberg. And it's not the principle any government has ever applied to itself since Nuremberg, or ever will.
When Augusto Pinochet was finally brought to justice, it was by Spain, not Argentina. Spain was applying Spanish law, in the precedent of Nuremberg, to a criminal. When South Africa imposed "Truth and Reconciliation Commissions" on the former employees of the former government of South Africa, they were applying new laws by a new government. They were applying them to criminals, but they were not applying them to members of their own government. No country since Nuremberg has ever applied the principle of "only following orders is no defense" to members of its own government, for a very simple reason: no government would ever so willingly commit such hari-kari.
Governments do not change when Presidents take office, anymore than they change when Britain or Israel hold parliamentary elections. We speak, especially in those cases, of a new Prime Minister forming a government, but we do not mean a government ab initio. We mean the leadership has changed; but the government has stayed the same. Nuremberg was not imposed by Germany on Germans; it was imposed by France, Russia, England, and America, against Germans. And it was imposed in lieu of more brutal punishments, perhaps because the destruction of Germany from Allied bombings was punishment enough. Nuremberg did not establish the principle that all governments must adhere to a moral model that means they cannot require their members to act in ways others will deem illegal, or that such members cannot defend themselves against their own government on the grounds that they were "only following orders." It established that countries can enforce universal standards against citizens of other countries, but it did not establish that as a universal principle all governments must adhere to, even at the risk of their own existence.
Governments simply will refuse to function that way.
If you knew, in your job, that you had to ultimately make a decision, every day, in every case, as to what would later be deemed legal, and what would not, or you would have to quit on a moment's notice or later be prosecuted for your actions, would you take the job? You may answer that lawyers do that; but they don't. Lawyers have an obligation as officers of the court to uphold the law; it's the price for being licensed, for being allowed to step "beyond the bar" of the courtroom and address the court on behalf of a client. Lawyers also have the power and training to interpret and understand the law, and so the obligation to apply it properly. Others, who rely on that lawyer, may be punished for their actions (the IRS won't let you off the hook because you have a legal opinion they disagree with), but criminal punishment will not be an absolute certainty, nor can it be. If it is, government itself grinds to a halt, and only fools work for the government. Lawyers, as I say, have a higher obligation; but with great power comes great responsibility. If a lawyer tells you, a CIA operative, a Marine, that it's legal to treat the prisoner that way, will you do it if you're thinking: "But what if it isn't later?" And it may be that it is, but how do you know?
That's the situation as the law sees it. These legal memos were, as John Dean said, terrible legal reasoning. But who determines that? The Marine, the CIA officer? Or the lawyer? If I tell you I've reviewed the memos, and there is no sound legal reasoning in them, how do you know I'm right, if you are not a lawyer? If you can't rely on a lawyer's opinion, what's the point of the law? It simply becomes what anyone says it is.
As it did in this case. Hard cases make bad law. And this is very, very bad law. But it isn't made better by prosecuting every CIA, or NSA, or Military intelligence, agent or officer or even grunt level Private, who can in some way be held culpable for doing what he or she was told was legal and permissible and even necessary. Nor is it a "defense" of torture to say so. But the government that told you the orders you followed were legally given, cannot later bar you from raising that point in your defense when that same government decides those orders were illegal. Indeed, raising that defense is not raising the Nuremberg defense. Because if it were, then you are indeed a helpless pawn in a game of Administrations. And no government will survive long that treats is employees, that treats essentially the government itself, in that manner.
Perhaps here I should point out that I agree with the comment made in the NPR story this morning, that these memos were not legal memos, but political ones. But how do you, as a layperson, know that if I, a lawyer, don't tell you? It's my legal opinion these are not legal memos, that they betray political, not legal, reasoning. 'Round and 'round it goes, and how do we get out of it? Perhaps by establishing universal jurisdiction and appealing to the example of the Nazis:
One former CIA official speaking on background said that level of detail shows how carefully tailored the program was.But the Nazis didn't prosecute the Nazi's for following orders. Governments don't punish their personnel for doing what they were told to do, unless those governments are functioning as dictatorships, where all the power of government accrues to the hands of a few, and the rest are at the mercy of those few. This doesn't excuse torture in the least. But it does point up the weakness in the system.
"I agree with that," said former CIA official Hitz, "but so were all of the experiments that were done by the Nazi doctors during the time of the Holocaust. They kept excellent records of the body temperature of the prisoner and all that stuff; it didn't make it any less torture."
So how do I agree with the "Special Comment"? I agree that Obama's defense of his actions so far, "looking forward, not backward" is so paper-thin as to be transparent. It may be a feint, a way of putting off any more criticism from Republicans in the Senate (who are still blocking the nomination of Dawn Johnson to the Office of Legal Counsel. Ms. Johnson has been outspoken in her desire to see those who wrote these memos, and followed them, prosecuted. And the memos came from: the Office of Legal Counsel. Wheels within wheels? Perhaps. At least the GOP thinks so.). It may in, in other words, a recognition that the Office of President is not an office of absolute power, nor should absolute power ever be wielded against anyone. That's what torture, at bottom, is about.
We're back here again, where tygers roam. It is our righteousness which makes us so sure they must be punished; and the punishment must come from us. I was told yesterday it was my "theology" that was leading me to defend torturers. It is nothing of the sort, and I do not defend them. But I am mindful of the words of Jesus to his disciples:
Some who were there at the time told him about the Galileans, about how Pilate had mixed their blood with their sacrifices. he answered them, "Do you suppose that these Galileans were the worst sinners in Galilee, because they suffered this? Hardly. However, let me tell you, if you don't have a change of heart, you'll all meet your doom in the same way. Or how about those eighteen in Siloam, who were killed when the tower fell on them--do you suppose that they were any guiltier than the whole population of Jerusalem? Hardly. However, let me tell you, if you don't have a change of heart, all of you will meet your doom in a similar fashion." (Luke 13:1-5, SV)So, do I suppose the torturers were any worse offenders than I am? Hardly. Do I suppose the only punishment for them is one meted out by the government? Hardly. Do I even suppose that will redress their crimes, or prompt a change of heart in others similarly situated? Hardly.
But do I like this conclusion? Hardly.
Here endeth the lesson.