Invoking the Nuremberg defense for torture enthusiasts

The so-called Nuremberg defense, that one’s war crimes can be excused if one were following orders, was advanced during the trial of Nazis after World War II and was rejected. But as Jon Schwarz writes, the US is now advancing that same argument in defense of the people in the government who not only authorized and presided over ghastly torture practices that are undoubtedly war crimes, they showed every indication of having enjoyed doing so.

The Nuremberg judges rejected the Nuremberg defense, and both Jodl and Keitel were hanged. The United Nations International Law Commission later codified the underlying principle from Nuremberg as “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.”

This is likely the most famous declaration in the history of international law and is as settled as anything possibly can be.

However, many members of the Washington, D.C. elite are now stating that it, in fact, is a legitimate defense for American officials who violate international law to claim they were just following orders.

Specifically, they say Gina Haspel, a top CIA officer whom President Donald Trump has designated to be the agency’s next director, bears no responsibility for the torture she supervised during George W. Bush’s administration.

Haspel oversaw a secret “black site” in Thailand, at which prisoners were waterboarded and subjected to other severe forms of abuse. Haspel later participated in the destruction of the CIA’s videotapes of some of its torture sessions. There is informed speculation that part of the CIA’s motivation for destroying these records may have been that they showed operatives employing torture to generate false “intelligence” used to justify the invasion of Iraq.

John Kiriakou, a former CIA operative who helped capture many Al Qaeda prisoners, recently said that Haspel was known to some at the agency as “Bloody Gina” and that “Gina and people like Gina did it, I think, because they enjoyed doing it. They tortured just for the sake of torture, not for the sake of gathering information.” (In 2012, in a convoluted case, Kiriakou pleaded guilty to leaking the identity of a covert CIA officer to the press and spent a year in prison.) [My boldface emphasis-MS]

Haspel’s nomination is an utter disgrace. But given the bipartisan nature of US war crimes and the fact that Americans support the use of torture by a wide margin, I expect the senate to have no difficulty voting in favor of her appointment.

People sometimes wonder how ordinary Germans could have supported what the Nazis did and what it says about them. Future generations will ask the same about the US and the answer will be the same: if you frighten people enough, they will support almost any atrocity done by their government if they think it will ‘keep them safe’, however irrational and even absurd those fears may be.


  1. Lassi Hippeläinen says

    “Haspel oversaw a secret “black site” in Thailand”
    She wasn’t just following orders, she was giving them. Even if the Nuremberg defence were valid, she couldn’t use it.

  2. felicis says

    As I have said elsewhere, this is one of the greatest blemishes on the Obama presidency. Not only was she (and others) not prosecuted for war crimes, they weren’t even reprimanded or fired.

  3. cartomancer says

    Nuremberg proclamation? Pfft, everyone knows that the only valid tenet of international law was laid down in 416BC, when the Melians asked their Athenian overlords for clemency. As Thucydides put it (though the original Greek is less forceful than the popular translation):

    “The strong do what they want, the weak suffer what they must”.

  4. mnb0 says

    “The so-called Nuremberg defense, that one’s war crimes can be excused if one were following orders”
    I have never heard that this defense is called the Nuremberg Defense; in The Netherlands and in Germany it’s called “Befehl ist Befehl”- orders are orders. The protocol that was drawn up before the trials begun explicitly rejected this defense, so I think “the Nuremberg defense” badly misplaced.

    “if you frighten people enough”
    This answer is not good enough. After the war had ended the American Army organized a poll. Twenty percent of the Germans still favoured nazism. Another twenty percent thought it a good idea, but badly executed. They obviously had nothing to fear anymore. Indeed it was only the next generation of Germans who in the 1960’s started to question the involvement of the ordinary people.
    Another fact that isn’t covered by your answer is that members of the SS-Einsatzgruppe, who regularly shot jews, communists and partisants in Eastern Europe, were not punished when they decided not to get involved (anymore). Famous examples of Germans who obstructed the criminal nazi policies are Oskar Schindler (of course) and Wilm Hosenfeld (who was punished by the Soviets …..)

    Neither was persecuted by the nazis.

  5. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @Lassi Hippeläinen:

    Don’t get me wrong, I’m not defending Haspel. I believe she should be in jail. However, the form of your argument, “She gave orders so she wasn’t acting under orders,” is simply erroneous.

Leave a Reply

Your email address will not be published. Required fields are marked *