[Peace-discuss] Nuremberg and Abu Garaib

[ppatton at uiuc.edu]

A Nuremberg Lesson
Torture Scandal Began Far Above 'Rotten Apples.' 

 
by Scott Horton 
  
"This so-called ill treatment and torture in detention 
centers, stories of which were spread everywhere among the 
people, and later by the prisoners who were freed … were not, 
as some assumed, inflicted methodically, but were excesses 
committed by individual prison guards, their deputies, and 
men who laid violent hands on the detainees." 

Most people who hear this quote today assume it was uttered 
by a senior officer of the Bush administration. Instead, it 
comes from one of history's greatest mass murderers, Rudolf 
Hoess, the SS commandant at Auschwitz. Such a confusion 
demonstrates the depth of the United States' moral dilemma in 
its treatment of detainees in the war on terror. 

In past weeks, we have been treated to a show trial of sorts 
at Ft. Hood, Texas, starring Cpl. Charles Graner and other 
low-ranking military figures. The Graner court-martial and 
the upcoming trial of Pfc. Lynndie England are being hyped as 
proof of Defense Secretary Donald Rumsfeld's explanation for 
the Abu Ghraib prison tortures: A few "rotten apples" — not 
U.S. policy or those who created it — are to blame. 

Graner entered a "Nuremberg defense" — arguing that he was 
acting on orders of his superiors. This defense was rejected 
in Ft. Hood as it was in Nuremberg 60 years ago, when Nazi 
war criminals were found guilty of crimes against humanity. A 
misled American public can choose to see in the Graner 
verdict the proof of the "rotten apples" theory and of the 
notion that Graner and the others acted on their own 
initiative. But what it should see is a larger Nuremberg 
lesson: Those who craft immoral policy deserve the harshest 
punishment. 

Consider the memorandum written by Alberto Gonzales — then 
the president's attorney, now his nominee for attorney 
general. He wrote that the Geneva Convention was "obsolete" 
when it came to the war on terror. Gonzales reasoned that our 
adversaries were not parties to the convention and that the 
Geneva concept was ill suited to anti-terrorist warfare. In 
1941, General-Field Marshal Wilhelm Keitel, the head of 
Hitler's Wehrmacht, mustered identical arguments against 
recognizing the Geneva rights of Soviet soldiers fighting on 
the Eastern Front. Keitel even called Geneva "obsolete," a 
remark noted by U.S. prosecutors at Nuremberg, who cited it 
as an aggravating circumstance in seeking, and obtaining, the 
death penalty. Keitel was executed in 1946. 

Keitel's remarks were made in response to a valiant 
memorandum prepared by German military lawyers who argued 
that the interests of Germany's soldiers, and the interests 
of morale and good order, would be served by adhering to the 
Geneva treaty. Secretary of State Colin Powell, echoing the 
opinions of the Joint Chiefs of Staff and U.S. military 
lawyers, sent Gonzales a letter that hit the same notes. 

Rumsfeld and the White House would have us believe that there 
is no connection between policy documents exploring torture 
and evasion of the Geneva Convention and the misconduct on 
the ground in Guantanamo Bay, Iraq and Afghanistan — 
misconduct that has produced at least 30 deaths in detention 
associated with "extreme" interrogation techniques. But the 
Nuremberg tradition contradicts such a contention. 

At Nuremberg, U.S. prosecutors held German officials 
accountable for the consequences of their policy decisions 
without offering proof that these decisions were implemented 
with the knowledge of the policymakers. The existence of the 
policies and evidence that the conduct contemplated in them 
occurred was taken as proof enough. 

There is no doubt that individuals like Graner and England 
should be held to account. But where is justice — and where 
are the principles the U.S. proudly advanced at Nuremberg — 
if those in the administration and the military who seem most 
culpable for the tragedy not only escape punishment but in 
some cases are slated for promotion? 

Next week, the world will commemorate the liberation of 
Auschwitz. A memorial prayer for the death camp victims will 
be read at the United Nations. German Foreign Minister 
Joschka Fischer will attend to acknowledge that the 
depravities at Auschwitz were not the work of a few "rotten 
apples" but the responsibility of a nation. Such a courageous 
assumption of responsibility should provide a model for the 
United States, which can still act to salvage its tradition 
and its honor. 

Scott Horton is a New York attorney and a lecturer in 
international humanitarian law at Columbia University. 

 
__________________________________________________________________
Dr. Paul Patton
spring semster 2005
Visiting Assistant Professor
Department of Biology, Williams College
Williamstown, MA
phone: (413)-597-3518

Research Scientist
Beckman Institute  Rm 3027  405 N. Mathews St.
University of Illinois at Urbana-Champaign  Urbana, Illinois 61801
work phone: (217)-265-0795   fax: (217)-244-5180
home phone: (217)-344-5812
homepage: http://netfiles.uiuc.edu/ppatton/www/index.html

"The most beautiful thing we can experience is the mysterious.  It is the
source of all true art and science."
-Albert Einstein
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