I do not see how, given the strong case brought in Nuremberg on these grounds that "mere orders or permissions are not exculpatory," that President Obama can justify relieving the CIA of its crimes. It will be seen by many world-wide an act of political cowardice! But there is, perhaps, a supervening context.
Around the planet flashes the news that President Barack Obama's administration will not pursue the perpetrators of water-boarding inside the CIA. The explanation is that they conducted themselves "in good faith," even though many of them would have or should have known that water-boarding was an act falling under the definition of torture in international law-and expressly understood by the United States government after WWII to be torture-since we prosecuted both German and Japanese for conducting water-boarding. Yes it is true that those prosecuted by the U.S. were also charged with other, more heinous acts of violence against American and Allied prisoners. The Uniform Code of Military Justice signed into law by President Harry Truman preserved much of the legal art under which the Axis prisoners were prosecuted, and among these was the concept of "lesser included offense," which also exists in common civil and criminal law. Under the rationale of "lesser included offense"
the common law crime of larceny requires the taking and carrying away of tangible property from another person, with the intent to permanently deprive the owner of that property. Robbery, under the common law, requires all of the same elements, plus the use of force or intimidation to accomplish the taking. Therefore, larceny is a lesser included offense in the offense of robbery, as every robbery includes a larceny as part of the crime. Assault is also a lesser included offense of robbery, just as battery is necessarily a lesser included offense to murder, and false imprisonment is usually a lesser included offense to kidnapping. --WikipediaThe crime of water-boarding either is or is not a lesser included offense of outright torture. The point is that in reliance upon the authorizations given by the U.S. Department of Justice under Attorneys General Ashcroft and Gonzales, written by John Yoo and others, CIA operatives were given to understand that, in the circumstances of the prisoners being essentially stateless and therefore not classifiable as typical (or even presumptive) enemy combatants, the CIA's understandings of past international law were no longer "operative." Of course, I disagree with this idea. In the Nuremberg trials the criticism is often raised that not everything prosecuted was a statutory crime before the war. Thus, the concept of "precedent law" emanating from Nuremberg is shaky in the respect that no subsequent trials have been able confirm the reasoning that went into the establishment of the heinous acts as de jure war crimes. This is all the mitigation and extenuation I can muster for the position that CIA was "innocent" by virtue of Justice telling them they believed "aggressive interrogation," like water-boarding, to be a lesser and/or under-established war crime or even morally defensible as former Vice President Cheney believes. Among the other forms of reasoning that emerged from Nuremberg was the notion that there is a universal moral standard which all men and women of conscience would understand in situ as over-ruling the kind of permission or direct orders that led to war crimes, or in this case to "aggressive interrogation" and water-boarding. (We know not what else we have done and have had only glimpses of, but understand that there were painful and humiliating assaults on matters of personal conscience and religion). I do not see how, given the strong case brought in Nuremberg on these grounds that "mere orders or permissions are not exculpatory," that President Obama can justify relieving the CIA of its crimes. It will be seen by many world-wide an act of political cowardice! Having said that, it should be pointed out that focusing in on the Justice memos, but off-loading the burden of pursuing CIA and Army and Blackwater, etc., concentrates the moral imagination on that smaller group of people, who in fact were relied upon for completely true, honest, and expert advice on the matters of interrogations. Moreover, with the Spanish indicting these very people, what President Obama has done is draw a curtain around CIA, (which he could not afford to have pilloried in the planetary public), leaving the John Yoos and Alberto Gonzaleses, David Addingtons, et al, hanging out more or less to dry. We shall see. JB
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