By Scott Horton
Special to the Huffington Post
Two newly-obtained documents show how American diplomats during the Bush administration worked tenaciously to incorporate what is commonly known as the Nuremberg Defense into a new international convention addressing enforced disappearances.
The rejection of the notion that government agents could avoid liability for crimes by arguing that they were simply following orders had been a bedrock principle of the American government ever since shortly after the end of World War II, when that defense was employed during the Nuremberg war-crimes trials.
But the new documents, obtained by the ACLU through Freedom of Information Act litigation, show how State Department officials tried to establish what they called "the good soldier defense" -- in this case, the right of government agents charged with seizing and holding people in violation of international law to claim as a defense that they acted in good faith based on representations as to the legality of the conduct they were undertaking.
American officials found themselves "virtually alone" at the negotiating table with this position, facing criticism from long-established allies, the documents show. The efforts occurred in the context of a proposed "Convention on the Protection of All Persons from Enforced Disappearances" in 2004 and 2006. The documents are available here and here.
Previously released documents show how Bush administration lawyers in the Department of Justice's Office of Legal Counsel gave government agents legal cover to conduct a variety of actions, including torture, that critics say were flatly contrary to domestic law.
"What the OLC memos did on a domestic basis, these documents show American diplomats attempting to do on the international stage," said Joanne Mariner, an analyst at Human Rights Watch with expertise on the U.S. extraordinary renditions program.
The documents show that the diplomats struggled against the prohibition on "disappearings" in other ways as well. They sought an exception from the requirement that it be incorporated in specific criminal legislation, arguing that this was difficult for a federal state to do since criminal law was largely the responsibility of the states. They also opposed the idea that a state be required to disclose basic information about prisoners it holds.
In a 2006 document, American diplomats argue that the new convention should not be a part of the law of armed conflict. This appears designed to lay the foundation for an argument that the prohibition of "disappearings" did not apply during war time, such as the "war on terror."
The effort to ban "disappearings" was of obvious concern to United States diplomats because of the CIA's extraordinary renditions program, under which individuals were seized through extralegal processes around the world and then held in secret prisoners known as "black sites" which the CIA set up in a number of cooperating nations.
Indeed, the program as the Bush Administration operated it appears to be precisely what the draft convention was designed to outlaw. Black sites have previously been identified in Poland, Romania, Lithuania, Morocco, Pakistan, Afghanistan and Thailand. The prisoners held in this system, were initially known as "ghost detainees" because they were held without disclosing their identity to the International Committee of the Red Cross. They were not held on criminal charges or in connection with any legal proceedings whatsoever. This brings their detention within the parameters of "enforced disappearances" covered by the proposed convention.
Before the Bush Administration, the United States viewed "enforced disappearances" as a crime--bringing criminal charges as early as 1946 against German military and government officials who implemented a program under which people were secretly seized and held outside of recourse to any legal process.
In his second day in office, President Barack Obama shut down the system of black sites and torture practices associated with them. He did not end the renditions program altogether, and the Huffington Post recently reported on the first Obama-era rendition. However, Obama and other leading policy-makers have indicated that renditions in the future would be for purposes of holding an individual to account under law, usually through criminal charges. A rendition undertaken for purposes of bringing the prisoner to account under legal charges would not violate the proposed convention on disappearances.
Domestically, the Bush Administration successfully resurrected the "good soldier" or Nuremberg Defense with respect to possible prosecutions relating to the mistreatment of detainees. Administration lawyers incorporated such provisions in the Detainee Treatment Act of 2005; and those provisions were also incorporated in the Military Commissions Act of 2006. The Bush proposals were enacted by Republican-dominated Congresses. Although President Obama has suggested that the Military Commissions Act should be repealed, he has not yet taken efforts to do so.
The U.S. legislation creates a defense in U.S. courts that would not be permitted under the proposed Convention, nor would it likely be recognized in courts outside of the United States. Under this defense, persons who participated in the extraordinary renditions program would be entitled to defend themselves by stating that they were informed that the program was legal. A series of once-secret memoranda prepared by the Justice Department's Office of Legal Counsel approving the extraordinary renditions program have recently been made public. Most of these memos have since been rescinded.
The documents reveal that the State Department opposed efforts to bar the Nuremberg Defense, as a matter of "procedural due process"--arguing that it would be unfair to potential government agents if they could not argue that they were simply following orders which they understood were lawful. Gabor Rona, international legal director at Human Rights First, and a former Red Cross lawyer in Geneva, said he was "not surprised that the U.S. found no allies on this issue. It's clear that the American diplomats were doing what they could to protect the Bush Administration's extraordinary renditions program--and what other nations would simply have called 'enforced disappearance,' just what this convention is designed to outlaw."
Rona also didn't think much of the justification that was advanced. "The Bush Administration's extraordinary renditions program involved kidnapping people and then engaging in wholesale violation of their procedural rights. Defending their negotiating position on procedural due process grounds lacks credibility." Mariner stated "this was a landmark effort to create a treaty requiring that enforced 'disappearances' be prosecuted. But the Bush Administration took positions designed to defend a program of enforced 'disappearances' from prosecution. This shows how isolated United States had become and how it had come to be motivated by defending an illegitimate policy, rather than making good international law."
Former State Department Legal Advisor John Bellinger declined a request for comment.
Scott Horton is a contributing editor at Harper's Magazine, where he writes on law and national security issues, and an adjunct professor at Columbia Law School, where he teaches international private law and the law of armed conflict. A life-long human rights advocate, Scott served as counsel to Andrei Sakharov and Elena Bonner, among other activists in the former Soviet Union. He is a co-founder of the American University in Central Asia, where he currently serves as a trustee. Scott recently led a number of studies of issues associated with the conduct of the war on terror, including the introduction of highly coercive interrogation techniques and the program of extraordinary renditions for the New York City Bar Association, where he has chaired several committees, including, most recently, the Committee on International Law. He is also an associate of the Harriman Institute at Columbia University, a member of the board of the National Institute of Military Justice, Center on Law and Security of NYU Law School, the EurasiaGroup and the American Branch of the International Law Association and a member of the Council on Foreign Relations. He co-authored a recent study on legal accountability for private military contractors, Private Security Contractors at War. He appeared at an expert witness for the House Judiciary Committee three times in the past two years testifying on the legal status of private military contractors and the program of extraordinary renditions and also testified as an expert on renditions issue before an investigatory commission of the European Parliament.