President Obama's decision to spare CIA torturers from prosecution stands the Nuremberg principles on their head. "Good Germans" who were only following orders' are not exempt from the bar of justice. Individuals must be held responsible for war crimes and crimes against humanity.
Justice Robert Jackson, Chief United States Prosecutor at the Nuremberg Trials, declared in his opening statement to the Tribunal that the men charged "represent sinister influence that will lurk in the world long after their bodies have returned to dust. They are," he said, "living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power."
The arrogance and cruelty of CIA officers who torture and brutalize helpless prisoners is not expunged because "they carried out their duties relying in good faith upon legal advice from the Department of Justice." Attorney General Holder says it's "unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," but he fails to note these very CIA agents requested said authority in order to engage in what all but the most insidious parsing of legal thought recognizes as torture.
As Jackson said, "it was under the law of all civilized peoples a crime for one man with his bare knuckles to assault another." When awakened, he said, "Plain people, with their earthly common sense, revolted at such fictions and legalisms so contrary to ethical principles..." He declared to the world that "civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive."
How we cheapen ourselves today. "Enhanced interrogation," "coercive techniques" and "harsh treatment" pretend torture is not torture. By what moral or ethical standard does a rational person determine that smashing a shackled human being's head into a wall is legal, let alone acceptable? It has been clear from before Nuremberg that the duty of the individual is to refuse to commit an illegal act, even if so ordered by one's commanding authority.
Yet, "... nothing will be gained by spending our time and energy laying blame for the past," says our president, missing the point entirely. As a constitutional scholar, he above all should understand that impunity for torturers gnaws at the wound of injustice and denies healing.
As Jackson said, "Crimes always are committed only by persons. ... The Charter (of the Tribunal) recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states." "International Law," he went on, "is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. The law, so far as International Law can be decreed, had been clearly pronounced when these acts took place."
The pressures on a new president are intense, of course, but for the Obama Administration to demean justice based on what can only be understood as political calculus is deeply disheartening. At a minimum, one would hope that the price exacted from the "intelligence professionals" involved in this dehumanizing exercise would be immediate dismissal.
And as for their superiors, we might look again to Jackson, who made clear at Nuremberg that he was not indicting a nation. Instead, he condemned a group that "was not put in power by a majority ...", which "came to power by an evil alliance between the most extreme of the ... revolutionists, the most unrestrained of the ... reactionaries, and the most aggressive of the ... militarists."
Were President Obama to say he would not prosecute those who committed torture under color of law but would instead proceed against those who authorized it, one might see the logic in his position. Absent consequences for either the authors or the perpetrators of this outrage, however, we are left with what was described in another context as "law without justice, inviting charges of hypocrisy and double standards."
President of the board of Death Penalty Focus and Co-Chair Emeritus of the Southern California Committee of Human Rights Watch, Mike Farrell is the author of 'Just Call Me Mike: A Journey To Actor and Activist" and "Of Mule and Man."