The Torture Memos: Berlin, 1937 Version
The problem: The nation has been on a war footing for years. Elected leaders believe it is full of sleeper cells of subversives. Officials in the capital decide that torture should be applied to detained subversives (whether to spread terror among their fellows, extract intelligence, or produce confessions is unclear). But law enforcement officers are uneasy about applying "more rigorous interrogation" techniques. Although the judicial system doesn't seem to mind that defendants show up in court bearing obvious signs of torture, the officers are bureaucrats in a legal and political culture that has always esteemed the Rule of Law. (Indeed, the political party in charge was elected on a law-and-order platform.) What to do?
The solution: a confidential memorandum, the joint product of the highest officials in the intelligence and justice departments, setting forth in extraordinary detail when certain techniques could be applied, the specific equipment to be used in such interrogations, the number of times certain techniques could be used on certain categories of detainees, and so forth - and specifically promising immunity from prosecution when the rules are followed scrupulously.
The place: Not Washington, DC circa 2002-2005, but rather Nazi Germany, June 4, 1937.
The memorandum, issued by the Reich Ministry of Justice, followed a meeting of several Justice Ministry lawyers and public prosecutors with several high-level Gestapo officials. I'll let it speak for itself:
Confidential!To: Chief Public Prosecutor in Düsseldorf .
Subject: Mistreatment of Political PrisonersMeeting at the Reich Ministry of Justice on June 4, 1937
It has been recognized by government leaders at the highest levels that more rigorous interrogations are necessary and indispensable. In such cases, it would be nonsensical to prosecute the officers carrying out the interrogation for exceeding their authority. However, public prosecutors must carry out the letter of the law and have no possibility of choosing to prosecute or not as they may judge fit ... At present, we thus have a situation which cannot continue: a deficient sense of what is right on the part of judicial officers; an undignified position for police officers, who try to help matters by foolish denials [that torture has taken place in court proceedings]. The purpose of this meeting is to discuss the possibility of relevant limits. There followed a discussion of individual questions:
Question 1: For which offenses are more rigorous interrogations permissible?
There was general agreement that, in principle) interrogations of this kind may be undertaken in cases where charges involve the immediate interests of the state. ... chiefly treason and high treason. Representatives of the Gestapo expressed the opinion that a more rigorous interrogation could also be considered in cases of Jehovah's Witnesses, explosives, and sabotage. ... It was unanimously agreed that charges under paragraph 175 of the Criminal Code [that is, charges of homosexuality] should not be considered as grounds. A more rigorous interrogation is, as a general principle, never permissible in the case of foreigners. ...Question 2: Nature of corporal punishment?
As a general principle, in more rigorous interrogations only blows with a club on the buttocks are permissible, up to 25 such blows. The number is to be determined in advance by the Gestapo (see Question 3). Beginning with the tenth blow, a physician must be present. A standard club will be designated, to eliminate all irregularities.Question 3: Who may order a more rigorous interrogation?
As a general principle, only Gestapo Headquarters in Berlin. Local state police stations must obtain permission in advance from Berlin. Without permission a more rigorous interrogation may not be conducted.
...
Question 5: What assurance exists that innocent persons will not be interrogated with the more rigorous measures?
This question is answered by the measures named under Question 3.
Question 6: How are judicial officers to deal technically with cases:(a) in which permissible corporal punishment has been inflicted under the terms stated above? If an office of public prosecution receives a complaint, it contacts the state police and confirms that permission was granted (by the Gestapo Berlin). If said permission is shown to have been given, no charges are pressed, and a formal announcement should be made: "Investigation has shown that a criminal act was not committed."The Gestapo will receive a copy of [this memo] from the Ministry [of Justice], whereupon it is to act on them immediately ... and issue instructions to state police stations. The Ministry of Justice will for its part then issue instructions to public prosecutors.(b) in which corporal punishment has been inflicted that is not permissible under the terms stated above?
If it transpires that permission was not obtained, commence investigation immediately and report at once to the Central Office of Public Prosecutions [in Berlin]. ...
(I first saw this memo several years ago in Deborah Lucas Schneider's translation (which I've altered a bit above) of the excellent Ingo Müller, Hitler's Justice, at pages 178-180; the original is in Ilse Staff, ed., Justiz im Dritten Reich (1964; 2d ed. Frankfurt: Fischer Taxhenbuch-Verlag, 1978, pp. 106-).
I realize that, as a matter of principle, there is a strong bias against making Nazi analogies to any events happening in our modern world (sometimes described in internet discussion groups as "Godwin's Law"). But here we have: (1) a system set up to allow torture on certain specific individual detainees, (2) specifying standardized equipment for the torture (apparently down to the exact length of the club to be used), along with physician participation to ensure survival of the victim for the more several applications, (3) requiring prior approval of the use of torture from the central authorities in the justice department and intelligence agency in the capital, so as to ensure that (6) the local field officers actually carrying out the abuse are immune from prosecution. About the only significant difference between the OLC memos released last week and this one is that, remarkably, the above categorically states that non-German citizens should "never" be subject to such abuses (question 1), and that torture that exceeds the limits shall result in investigation for criminal prosecution (question 6(b)).
Of course, putting Godwin's Law to one side, the most enduring principle that our global civilization has extracted from the tragedy of the Third Reich is the notion that we must never allow such things to happen again. It's quite difficult to see how we will ever be true to that principle without insisting on personal accountability to the law on the part of those who authorized and carried out torture in our names. We can write as many statutes and sign as many treaties as we want banning torture, but, as the last eight years have shown, when officials feel that there is no chance that their own freedom will ever be in jeopardy from future criminal prosecutions for violating those laws, they will show no compunction in carrying out abuses at the direction of their superiors.
--April 21, 2009
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For if only this one time, the elite must suffer the will of the people, Jail is require here, nothing else will suffice. these crime scream out from history to us, Lives lost in the present and in the past say to us that this cannot stand .
Godwin sounds like a nazi.
There may have been a time when the charge of "nazism" was dredged up for every infraction or alleged infraction by the state. As a result, it began to elicit rolled eyes and became a marker of hyperbole. The consequence of over use has now gone too far in the other direction, to the point where, evidently, any comparison with nazism means your point is worthless. This is unfortunate, because, if nothing else, the example of the nazis is a warning to all peoples for all time that, left unchecked, man's inhumanity knows no bounds.
The parallels are clear and soberly made. The nazis were masters of using legalese to hide heinous brutality; the Bush administration, while pikers by comparison, read from the nazi playbook and acted accordingly. We either prosecute them, or the crimes stick to us.
At the risk of violating Godwin's Law myself, I'd venture to say that the parallels between the Bush administration and the Third Reich extend frighteningly beyond merely the torture memos. On some level, I'm surprised that at some point Cheney didn't emerge from his secret bunker and reassure us that covert elements of the civilian population had "invited" us to invade Iraq.
Outstanding, if somewhat chilling post. I've linked to you in my blog, Left, Right, and Centered: http://lef
On the heels of hearing of the declassification of some of these memos, I was coincidentally taking a group of college students to the U.S. Holocaust Memorial Museum in D.C.
I am not a scholar of the Holocaust, nor of Nazi Germany--for all intents and purposes, I am merely a layperson--but as I made my way through the initial section of the main exhibit, I was repeatedly struck by the similarities between the rise of the Nazi party and the actions of our previous administration. Even back in the days following 9/11, the phrase "Homeland Security" made my blood run cold. These recently released memos, though not offering new "news" so much as a black and white illustration of the lengths to which the Bush II administration would go simply to justify inhuman treatment of so-called "enemy combatants" in the name of culling valuable intelligence, simply beg for the comparison Kadidal has offered in this article.
Another commenter suggested reading Wolfe's Letter to a Young Patriot. I second that suggestion. It too is rather chilling, to put it mildly.
This should be required reading for every school kid and Republican in the nation. And the two links submitted by FalconerHK should be posted on the front page of Huffpost. And, I agree, why didn't more of us listen in 2003
Very sobering.
If you'd changed the names and dates I would have thought John Yoo had penned that memo.
Any president can find stooges like Yoo or Bybee to pen favorable memos. That is why prosecution and punishment must be carried out. To what extent this goes without being punished it will be more likely to be repeated in the future.
If a selling a dime bag of crack on a streetcorner in New York gets a man put away for 10 years, authorizing torture and torturing should be worth at least a century in the pen. But then we all know the game is tilted in favor of the wealthy and their bootlickers in America, so the torturers will probably get off with light sentences.
Thank you for an excellent article, Mr. Kadidal.
I understand we prosecuted both Germans and Japanese for employing some of these same Interrogation tactics. Are there transcripts? It would be interesting to read the words of Allied prosecutors trying these same acts.
The trials are termed "The Nuremberg Trials". The transcripts are out there, but I don't know if they are online.
http://en.
I heard Thom Hartmann explaining on his show how the USA tried Japanese soldiers for waterboarding after World War II, and even executed one individual for this War Crime. Thom's usually very well researched when saying such things.
Though there are many books on the trials, one that includes large portions of transcripts that is not too lengthy is "The Nuremberg War Crimes Trial 1945-46: A Documentary History" by Michael R. Marrus. ISBN: 0-312-13691-9
Even so, they only approved brief beatings, not waterboarding, and certainly not 183 times in a month.
The strange thing is that there is no history on the Gestapo's effectiveness, but the Luftwaffe's interrogation of allied pilots was highly effective. That program was so effective the Air Force hired the guy in charge of it to help them make their own interrogation program more effective.
How much physical coercion was involved? Absolutely none.
Very good point.
Wow, great research Mr Kadidal, I was not aware of that document, very apropos.
An interesting note:
On Thursday/april 23, President Obama and Eli Wiesel, will be at the Rotunda of the Capitol for the Holocaust Museum's national Days of Remembrance ceremony, whose theme is: Never Again: What You Do Matters.
In light of the 'Nuremberg Defense' for those who torture and make it 'ok' to torture, i wonder what can President Obama possibly say??? The Nuremberg Trials was the LEAST the world could do to bring justice and to proclaim those acts are evil. He realllllly can't say "never again". How would his words sound, "Yes, what they did was bad. But we need to look forward." And the talking heads 'supporting' President Obama say, " We should not act out of vengence and looking for retributio
Well the difference this time is that we - meaning the US - are the bad guys this time, and that just stings a little too much for some folks to bear. If left to their own devices, do you think the Germans would have prosecuted their own officials? I doubt it. They probably would have said... well, the same things some folks here are saying now... "just let it go", "pursuing this is just vengance of one party on another" etc.
Its a bitter pill to swallow, not to mention a SERIOUS hit to our collective national pride, to admit that we allowed our government to support torture. Hey I get it, we were pissed about 9/11, and this is America, where we don't take no crap from anyone. You mess with us, we'll kick your ass, and then give you food and help clean up after the mess we made. We're kinda psychotic like that. But that is no excuse for allowing government
We are supposed to be better than that. We like to think that we are, but we've collectively had a big wake-up call with all of this, and the ONLY way to regain our moral footing is to investigate and prosecute those responsible, even if it leads to GW himself.
Thank you verrry much Shayana Kadidal for pointing out the similarities to Nazi behavior in a public media. That said, I go further to say:
Using the rationale that the architects of torture, as well as the torturers and interrogators using harsh techniques should not be arrested and prosecuted because they were following the law (laid out by our government) does NOT fool the world. Even a blind man can see this is a simple variation of the defense used at Nuremberg. The world knows and the American people know that was an evil and contrived legality with no justice. In their hearts, these people knew then and know now what they did denigrated their captives as objects and therefore treated them inhumanly. The architects of torture considered the captives as objects, not human beings. So did the torturers, the interrogators using the harsh techniques and all the supporting medical personnel. Should the American government pursue this course of action, i.e. no investigation and possible prosecution, then it screams for the entire world to hear,
* we not interested in moral leadership
* we forgot the lessons of Martin Luther King calling for justice
* we are like Nazi Germany because we follow, without conscience, the laws and regulations of the government; and therefore are not responsible for our actions.
The first time I heard America referred to as the "Homeland" (years ago) I thought to myself, My god, thats what Hitler said. And truthfully, as an activist, I saw many many parallels with that administration.
The bush/cheney regime plagiarized and borrowed a lot of different programs from that era not just the torture bit. It's frightening that so many people in America still to this day think it is ok and needed to garner some kind of needed information from prisoners.
This is and was not the America I was brought up in. My America was appalled at any form of torture.
When I was young and living in Glendale AZ I could not imagine why the Germans allowed Hitler to create concentration camps and torture prisoners. I figured they must be evil in their hearts, and that is what I was told in school and from my father. Now I understand: they were afraid of their own government, and for good reason. Consider this scenerio: suppose we had no term limits on the President and Bush/Cheney could rule America so long as they could continue to fix the elections. Where would we be now, morally and legally? Our children would be wearing brown shirts and taught to turn in their neighbors. Not much different than now, except we changed the color of the shirts.WE HAD SECRET PRISONS AND SECRET TORTURE CHAMBERS!! Why aren't we trying to change the government? Why are we pretending that Obama will not use the unlimited weapons that Bush left him? For the same reason the Germans pretended the death camps were just prisons and the Jews were evil in their hearts. We fired a white dictator and hired a black dictator and called that "change we can believe in." God help us all.
I agree with you. This is not the America I remember either. It's a grotesque, unseemly caricature of what once was America. The America I remember was hijacked. I'm frankly astounded by the continuing rationalizations and inability to call things by their rightful names -- even within the new administration.
i.e. "vengeance" and "retribution" substituted as synonyms for justice. I expected far better than this.
Thank you for pushing against the all-encompassing milk & cookies monster. The massive social, political and corporate pressure to never, ever, make comparisons between Bush's fascist totalitarian regime and Hitler's.
Of course they're similar. In fact, Bush's crew took a lot of their moves directly from the nazi's playbook.
Anyone who wants to see how this is affecting you, not just a bunch of arabs in a far-off country, should get on YouTube and look up Naomi Wolf's 10-Steps.
Not only has your government dipped into Hitler's playbook on torture, they've looked long and hard at the broader possibilities of controlling an entire society - and they've taken steps in that direction.
Its not over yet and it won't be restricted to so-called terrorists.
Don't believe me. Do some reading.
Naomi Wolf woke me up. I will never again be complacent politically.
The Polish Ghettos were disarmed years before thats why the Jews were such easy targets.
All through history people that get disarmed suffer soon after.
Why the weather is funny;
http://www
The Jews were never armed. Stop trying to make this about the right to buy guns, guns, more freaking guns!!!
What would it have changed, except the number of dead germans and their collaberators, ( ukranians, bellorussians, poles, etc.)?
I don't see it hurting their odds at resistance, but at the same time I doubt resistance would have been highly effective.
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