The Nuremberg Defense Applies. Two reasons why it didn't then but does now.

[onetwo]

1) The Nuremberg Trials were held by an international coalition. Other countries naturally aren't going to recognize directives issued by the offending government. Prosecution of the Bush war crimes will be carried out by the same entities from which the deemed-illegal orders originated and were endorsed. A successful outcome will necessarily be based on the premise that there are situations where direct orders/clearance/assurance from the same "people" that are now prosecuting are not to be followed. Basically, a "Why did you listen to me?" argument (yes, this applies even when the actual individuals in charge are different). Not a good way to protect the integrity of these entities or trust in concepts like "chain of command" going forward, leading to the following:

2) There was no desire to protect the legitimacy of Nazi German government institutions. However, prosecution for the lower level actors in the Bush administration that simply followed orders sets a dangerous precedent that will justify insubordination in wartime and decrease the reliability that orders will be followed in situations where "tough" decisions have already been deliberated and made by higher-ups. This is key. Especially in wartime, it is important that those who receive orders are reasonably confident that they can perform their duties without fear of legal repercussions and, in situations where things are questionable, they can trust the judgment of a high-level agency like the USDOJ. Convictions for lower-level people invariably mean that lower-level people in current and future administrations can be prosecuted for simply "following orders," even if those orders originate with the Commander-in-Chief and are supported by the DOJ. That's a problem.

When a company underperforms, who's typically the first to go: rank-and-file employees or management?

Going after Bush and those who issued the order to torture -- that can make sense. However, this weird bloodlust to get anyone and everyone involved with the torture policy is irrational.

[leftstreet]

1. Ah...corporate speak

The US is not a 'company' and Obama is a President, not a CEO.

FFS

[onetwo]

4. More like "lawyer-speak." This is the law we're talking about.

Things like precedents matter. In a perfect world where everyone is 100% in tune with the spirit of the law, a precedent like this might not be of material concern. But in reality when everyone seems to have their own definition of what is and isn't legal/constitutional, it may become problematic to get people to do anything the least bit controversial for fear of prosecution by future administrations. It's a problem that will start right from this very White House.

[Supersedeas]

10. you make some great points

[onetwo]

14. Thanks. The last thing we need

is an increasing number of ideological arguments gumming up the basic operation of government. At some point, we need to ensure that people in government can safely follow an order. After all, illegal directives are far and away the exception and not the rule.

[depakid]

24. It is indeed- and there's a whole body of law that's developed

since the principles were set out in the "leading case."

[ananda]

2. Because we say so and we rule..

.. we make our own laws and rules..

we don't need no stanky conventions
or international human rights agreements.

[Nicholas D Wolfwood]

3. To answer your queston: "who's typically the first to go?"

The answer would be it depends on who's the first to notice the problem and from where the problem stems. If the problem gets so bad that it reaches the CEO's and/or shareholder's attention, management goes first. If middle management figures out the problem first, rank and file goes first.

Basically, the immediate underlings of the first person with any common sense to see that there's a problem. Also, anyone below that person could be at risk as well, depending of course on the problem.

At any rate, it's a bit of a simplistic question, but I catch your drift. In this case, the problem obviously got all the way to the shareholders (voters) without being corrected. One way or another, that means the CEO and the highest level of management (in this case, it would be Bush and his cabinet/CIA brass) would/should be held culpable because they didn't see and correct a problem on their watch and/or encouraged the practice.

[onetwo]

9. Good point. And we agree.

Bush and friends should be held culpable. It's the odd reaction to Obama/Holder's unwillingness to convict the rank-and-file that prompted this post.

The Nuremberg Defense only applies to the "order-followers" and I think it's a satisfactory defense for any countryperson being prosecuted by his own.

[WeDidIt]

5. Bullshit

The Nuremburg Defense NEVER applies.

Under Article VI of the consitution, treaties are the supreme law of the land.

Under the Geneva Conventions (treaties), the Nuremburg Defesne is NEVER valid.

[onetwo]

7. You're seeing black and white where there are shades of grey.

Ordinarily, you would be correct -- orders clearly illegal would never be followed and those who followed would be prosecuted to the fullest extent of the law. But we're not talking about hardcore torture where people's toes were getting cut off one at a time. Up until very recently, the discussion was whether these actions even constituted torture. Though I certainly don't agree, there are some out there that still argue that interrogators were simply making their detainees "uncomfortable" and that they never inflicted permanent harm.

The torturers got a second opinion from a reasonably credible source (the DOJ) and they OK'd it. The torturers did exactly what you would expect them to do in a questionable situation.

[Jim Sagle]

8. Go away.

[onetwo]

11. We consider intent in determining punishment or even whether to prosecute.

Based on the evidence currently available, it appears that the people who actually committed the acts did so in good faith that their actions were legal in this country. The people who should be put on trial are those who deceptively led them to that belief. Are you arguing otherwise?

[Jim Sagle]

13. There IS no argument. Those who commited those acts knew they were wrong.

Pretending otherwise is an abuse of language.

[onetwo]

15. Clearly not everyone knew since some deemed it worthy to get a second opinion.

As they should've. Even if you disagree with another's definition of torture, you have to acknowledge that differing definition exists and may not be completely unreasonable. Where's the line between simply "making someone uncomfortable" and full on torture? It can be debated.

[Bluenorthwest]

19. Precedent you say? But your history is lacking

The US excectued Japanese for waterboarding during WW2. We established the precedent. We killed them for it.

[Arctic Dave]

6. I have to say that by not following through with punishment is this.

There were clear and defined laws prior to what was executed and these people, if they have been in service for any length of time, should have known what they were doing was illegal. At anytime regardless of what was put in front of them, they could have refused to obey a known illegal order. Even though someone wrote a "quick change" differing opinion to justify the policy, having a long standing fundamental precedence should have raised their eyebrows about legality.

I think I'm sounding clear about this? Let me know if it comes off spotty.

oops, forgot to spell check before sending. blush.

[onetwo]

18. Good point, but one thing.

We know that torture is illegal. But, from a legal standpoint, do we know that their actions were torture? As FrenchieCat points out, not yet.

Nobody's arguing that those who gave the orders should be allowed to go scot-free. Certainly not me. However, I don't think the order-followers should be prosecuted retroactively for the practical reason that it will undermine the CiC and DOJ (and possibly other parts of government) going forward. An extreme example -- imagine granting the ability to certain people in government to effectively "filibuster" any somewhat-controversial order that comes across their desks on the grounds that they are unclear about its legality/constitutionality. It already happens, but imagine how much more rampant it will be if people of a previous administration actually go to jail because a later one perceived things differently. You're in the Obama White House and you don't want to do X because President Romney/Jindal/Palin in 2016 may possibly prosecute you for it. Admittedly an extreme example (none of those guys will ever see the Oval Office except as a visitor ;)), but hopefully I've made my point.

[Arctic Dave]

26. You created a really good post.

I read what FtC had to say and she made great points. I would like to throw out another question. How do we know this was all top down interaction and not a back and forth between interrogator and command.
Scenario:
Interrogator learns of phobia and and wants to exploit it. Say a fear of heights. He call his chain of command and has them write a opinion saying that it is not torture because everyone but the detainee knows he won't be thrown off the building, out of a helicopter, etc. In this scenario I would say that the the rank and file had just as much input to the opinions as the legal team writing them.

Lots of "what ifs", but hey, what else do we have to do on a Friday. :)

[FrenchieCat]

12. You are correct, in that the Bush Administration's DOJ interpretation

of Section 3 of the Geneva Conventions have not yet been judged officially illegal by any acceptable judicial body, and that has to come first, before those who followed that intepretation can be prosecuted.

That's what a lot of angry folks miss...That you can't prosecute for doing something if that something has not been ruled illegal, and although many think that it has been judged illegal,
it has not as of today.

That is why the focus of any investigation at this point must be with what the Bush administration and its DOJ did FIRST. Without a ruling on that, the rest is moot.

[onetwo]

16. That is an excellent point.

Not to defend the other side, but there is an absurd rush to round up everyone in sight and dole out the guilty verdicts like candy.

The Obama/Holder approach of initially filing an action with the court of public opinion is by far the best way to begin to attack this issue while the legality of the conduct described is established.

[EFerrari]

17. The problem is that when CIA started the torture, it was illegal.

The memos weren't even written yet. So, no. FIRST, the CIA tortured.

Not to mention, torture was still illegal no matter what came out of BushCo's corrupt inJustice Department.

It is still illegal today.

[onetwo]

20. Legally, the actions have not yet been officially classified as torture.

[EFerrari]

21. Yes, they were when we signed onto Geneva. n/t

[onetwo]

22. Wouldn't you consider the Pres and USDOJ credible arbiters between the agents and intl law?

You may be right (will do more research). But could you blame them for not refusing when the absolute highest levels of government told them it was OK? That's a very tough judgment.

[EFerrari]

23. They have a political burden on top of their legal one.

That's very true. :)

[mix]

25. The CIA tortures.

It has for over 50 years...the CIA knew it was engaged in illegal practices, that is why they sought a "golden shield" to protect themselves AFTER the torture began.

You are utterly mistaken to claim that "legally, the actions have not yet been officially classified as torture."

Geneva Article 3.

Watch the documentary linked below.