Nuremberg Overturned

By Steve Hynd

John Byrne at Raw Story points to a WaPo report saying there will be no prosecutions in the case of 98 destroyed interrogation videotapes - evidence of probable war crimes.

[Federal prosecutor John] Durham appears unlikely to secure criminal indictments against Rodriguez and other agency operations personnel involved in the conduct, the sources said. In recent months, the prosecutor has focused special attention on CIA legal advisers who reviewed court directives and on agency lawyers who told Rodriguez that getting rid of the recordings was sloppy and unwise but that it did not amount to a clear violation of the law, the sources said. Durham has obtained internal e-mail messages and memos that detail the sometimes jarring or unpleasant substance of the interrogations chronicled on the destroyed tapes, they added.

"We were just following orders" and "we were told it was legal" were two defenses specifically repudiated by the Nuremberg Trials of Nazi war criminals after World War Two. Now they've become the stock reasons for coverups and lack of enforcement of federal law, alongside the Decidering power of the President. And this from a Democratic administration who promised to roll back the excesses of the previous one. Shameful.

Update: Scott Horton writes (h/t Sully):

in what legal system is it proper for the target of an investigation to destroy evidence of crimes? Torture is a criminal act, and the tapes most likely captured evidence of crimes. This evidence would also have been critical for purposes of assessing the reliability of confessions or other information secured from persons who were tortured. The evidence was sought in the New York FOIA litigation and in other court cases, and it would have been essential for any prosecution of the persons covered. But more importantly, it would serve as essential evidence in the forthcoming prosecutions of the Bush Administration torture conspirators.

A Department of Justice investigation is now underway into CIA destruction of evidence. But at this point we have every reason to suspect Justice Department complicity in the schemes, especially given reports that approval for the destruction was sought through legal channels. The Justice Department made false representations to at least one court on this subject already (as the AP report noted), and given the obsession with secrecy that has crept into the new administration, it’s very difficult to credit statements coming out of the Justice Department on the subject.

This news makes the case for an independent commission of inquiry still more compelling. It also builds the case for a special prosecutor to look into matters surrounding torture. The new prosecutor must be a person of stature and gravity on a par with the attorney general himself, must be seen as above the political fray, and must be given the resources and manpower to fully investigate the affair–including the increasingly obvious role played by the Justice Department.

Hell Yeah! Horton knows his Nuremberg precedents. In a repost of the text of his 2006 speech to an ASIL conference on the Nuremberg Trials he wrote:

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

And get it wrong they did.