Psst… the “Nuremberg Defense” Didn’t Work

This is the start of an article from today’s Wall Street Journal that I’ll interrupt below for a tangent, although it’s worth your time to follow the link and read the rest.

Bush administration lawyers contended last year that the president wasn’t bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn’t be prosecuted by the Justice Department.

The advice was part of a classified report on interrogation methods prepared for Defense Secretary Donald Rumsfeld after commanders at Guantanamo Bay, Cuba, complained in that with conventional methods they weren’t getting enough information from prisoners.

The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities. In a , draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used. The complete draft document was classified “secret” by Mr. Rumsfeld and scheduled for declassification in .

The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. But at its core is an exceptional argument that because nothing is more important than “obtaining intelligence vital to the protection of untold thousands of American citizens,” normal strictures on torture might not apply.

The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the “necessity” of using such methods to extract information to head off an attack, or “superior orders,” sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no “moral choice was in fact possible.”

I’ve seen this weird backwards-world description of the so-called “Nuremberg defense” pop up a in a couple of places lately. The description in this Wall Street Journal article is typical.

It’s grotesquely ironic, since the principles adopted by the war crimes trials in Nuremberg were designed precisely to dismiss this sort of “following orders” defense. Calling this the “Nuremberg defense” is kind of accurate, in that it was a popular excuse attempted as a defense at the trials. But the way this term is being used now carries the implication that this defense was enshrined as a valid one by the Nuremberg tribunal — when exactly the opposite is true.

Here’s the part of the Nuremberg principles from which the Journal’s quote about moral choice comes:

This was clarified elsewhere in the Nuremberg judgment:

As you can see, it says exactly the opposite of what the Wall Street Journal describes as the “Nuremberg defense” — and the legal position of the Dubya Squad’s lawyers.