Vindication of the Nuremberg Defense



I'm an attorney in the greater Washington, DC area. When not busy untangling obscure questions about the American healthcare system I spend my time pondering law and public policy, working on the perfect dead-lift form, and praying that my dedication to the Washington Redskins doesn't result in a heart attack.

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99 Responses

  1. Avatar J_A says:

    Thank you for writing this

    During the Haspel confirmation process, NPR interviewed a former National Security Agency. Basically his argument defending Gina Haspel was that she had been told by her superiors that the actions she, and those under her supervision, were taking, were legal and had been vetted at the highest levels.

    I was screaming at the radio for the interviewer to ask him “So, in other words, you think the Nuremberg Trials were wrongly decided, and the judgement should be reversed?”

    Apparently I didn’t scream loud enough, because at no point she thought about challenging this “Haspel was obeying lawful orders” thing, and just kept going to “but what about morality? Would somebody think about the morality?”Report

  2. Avatar Jaybird says:

    MinLove is misunderstood by almost everyone. It’s about fitting in.Report

  3. Avatar Kolohe says:

    The result is the effective removal of major decisions about what our government does from the democratic process.

    The only thing I disagree with this piece is here, in that it’s rule of law norms, which are generally anti-democratic, that keep the government from doing most of bad stuff it could do.

    If you put ‘should the CIA torture the bad guys to get information to keep Americans safe’, to a plebiscite in the early 00’s, I’d bet you’d probably see it passed. It would even be somewhat of a close run thing now, given how many votes Donald Trump actually got a couple years ago.Report

    • Avatar Jaybird says:

      should the CIA torture the bad guys to get information to keep Americans safe

      Change the wording.

      Should the CIA be allowed to grab a bad guy by the collar?
      Should the CIA be allowed to hold a bad guy’s face immobile, or slap the bad guy in the face?
      Standing about a foot away, should the CIA be allowed to slap the bad guy’s stomach with the back of the CIA’s hand?
      Should the CIA be permitted to threaten the bad guy with a firearm or electric drill?

      Throw something in there about a ticking bomb, if you want.Report

      • Avatar J_A says:

        Should the CIA be allowed to grab a bad guy by the collar?

        Let’s change the wording agaib

        Should the CIA be allowed to grab a guy they think is bad but they can’t be sure about it by the collar?

        Should the CIA be allowed to grab any random guy, just in case it happens to be a bad guy by the collar?

        The problem is not the collar grabbing (it is, but that’s a “will someone think about morality” problem)

        The problem is who decides the guy is bad, and how?Report

      • Avatar J_A says:

        Should the CIA be allowed to grab a bad guy by the collar?

        Let’s change the wording agaib

        Should the CIA be allowed to grab a guy they think is bad but they can’t be sure about it by the collar?

        Should the CIA be allowed to grab any random guy, just in case it happens to be a bad guy by the collar?

        The problem is not the collar grabbing (it is, but that’s a “will someone think about morality” problem)

        The problem is who decides the guy is bad, and how?Report

      • Avatar J_A says:

        Should the CIA be allowed to grab a bad guy by the collar?

        Let’s change the wording agaib

        Should the CIA be allowed to grab a guy they think is bad but they can’t be sure about it by the collar?

        Should the CIA be allowed to grab any random guy, just in case it happens to be a bad guy by the collar?

        The problem is not the collar grabbing (it is, but that’s a “will someone think about morality” problem)

        The problem is who decides the guy is bad, and how?Report

        • Avatar Chip Daniels says:

          Or better yet:
          Let’s change the wording once more:

          Should the CIA be allowed to grab a [white rural Carhartt jacket wearin’ pickup truck drivin’] guy they think is bad but they can’t be sure about it by the collar?Report

          • Avatar Stillwater says:

            “Man, that Carhart coat is nice. Looks brand new. Not speck of dirt or wear to be seen…. Why is that? You work for a living, don’tcha? Let’s go over those questions again, shall we?”Report

        • Avatar Mike Schilling says:

          Given how little outrage there is when ICE detains American citizens. I’d guess the answer is still yes.

          This is why we don’t place Constitutional protections to a vote.Report

          • Avatar Maribou says:


            Amen. I’ve said it before and will say it again, nothing was so chilling to me as to sit in a graduate level course on government information policy and listen to people *who were going to be managing major IT stuff*, some of whom already were, but who were generally relaxed, lovely, centrist-if-anything people with a variety of backgrounds, talk about how a few injustices and breaches of civil liberties were just a necessary part of keeping people safe. Specifically in the context of people, including American citizens being detained without charges (later found to be innocent) for months, and of torture. And of the erasure of evidence of same for people’s “peace of mind”.


            The three librarians in the class all pretty much lost it in the class forums that week…. self included.Report

    • Avatar Road Scholar says:

      Yep. This is why it’s a good thing that we have a constitution with a Bill of Rights. I’m generally a fan of democracy but I’m glad we also have something of a wall around it too.Report

    • Avatar InMD says:

      I hear what you and @jaybird and @road-scholar are saying, and I probably gave short shrift to the concept of rule of law. You’re all right; that’s an important component to this. I agree there’s a real question about whether any number of codified civil liberties
      could now (or maybe ever) win a popular vote.

      But I also think you’re being way too dismissive of the power of transparency. If the CIA/other powers that be are so sure their actions wouldn’t be at least controversial why destroy the tapes? Why all these efforts to classify damn near everything? Clearly someone with a stake in all this thinks it matters to keep people as minimally and selectively informed as possible.

      This is pure speculation but maybe there’s a parallel with the death penalty. I think it’s very likely that in addition to abuse/torture transparency would expose all kinds of incompetence and arbitrariness in the system. For those paying attention it already kind of has. Instead of ‘do I have a moral problem with torturing a terrorist’ the question might become ‘is the government sufficiently competent to get this right.’ I think the decline in executions over the last decade shows there might be something to that.Report

      • Avatar Jaybird says:

        The power of transparency? To do what? Provide Moral Authority?Report

        • Avatar InMD says:

          There’s no way to undo whats already been done. Maybe you’re right and it’s totally futile. Still, if that’s the case, and 6 Democrats were going to cross party lines to make this happen no matter what, I’d rather they did it after weeks of news programs airing actual footage of whatever went on in that prison. I’d rather give accountability a fighting chance than assume nothing can be done.Report

          • Avatar Jaybird says:

            Were the 6 democrats in question the ones up for re-election?

            (My argument is *NOT* that it’s totally futile. Heaven forbid! But if we need to bolster the load-bearing columns, we pretty much need to agree what they are, what we need to do to bolster them, and how bolstering them also involve bolstering things that we might have been pleased to see fall by the wayside in decades past. That is to say: this is an unintended consequence of actions taken in the past.)Report

            • Avatar InMD says:

              I guess I’m not quite following. Define load-bearing columns in this context.Report

              • Avatar Jaybird says:

                The argument, for example, that “following orders is no excuse!” does not seem to be operative anymore when, once upon a time, it was a statement of great moral clarity.

                We agree that that has fallen by the wayside, yes?

                Well, my argument is that it fell by the wayside as part of one of the threads that started getting pulled decades ago.Report

              • Avatar InMD says:

                Well I don’t want to idealize the past here. As Mark Van H put it below there was an aspect of victor’s justice to the Nuremberg trials themselves.

                I don’t think there’s some super secret formula, and I don’t think we’ll ever have a government where no one ever commits any form of misconduct. We have laws on the books. What we don’t have is a will to enforce them, or even the will to say that certain things are so bad that even if we aren’t going to prosecute we aren’t going to let you work in this field anymore or otherwise reward you.

                I don’t have a comprehensive solution for that. The best I can come up with is to get this into the marketplace of ideas with the hope that more people will care which in turn causes more policy makers to care. It’s not as though no one with credibility in the halls of power has ever made a stink about this, it just hasn’t been enough when it mattered.Report

              • Avatar Jaybird says:

                I think it’s tied to the question of our relationship to authority.

                For example, we have police in a different category than non-police. We see politicians in a different category than non-politicians.Report

              • Avatar Chip Daniels says:

                Well, “we” certainly don’t have any coherent frame of reference.

                The Bundy gang certainly has a different relationship to authority than a immigrant dishwasher.

                There exist different political systems in America, different constitutions and different levels of power and control depending on who you are.Report

              • Avatar Jaybird says:

                The assumptions that seem to be hidden in “The Bundy gang certainly has a different relationship to authority than a immigrant dishwasher” are the assumptions that I disagree with.

                It strikes me that you would agree with the statement that the Bundy gang and the immigrant dishwasher should both be the same in the eyes of authority.

                While I don’t see any more “authority” in the authorities than also happens to exist in the immigrant dishwasher.Report

              • Avatar InMD says:

                I think there’s something to that. We’ve internalized a lot of bad assumptions about who the authorities are and what they do. Scott Alexander’s review of Eichmann in Jerusalem comes to mind.

                One of the things he talks about at the end is a spectrum from susceptibility to Nazism on one end to being ungovernable on the other. I think he gets it mostly right about America being (currently) on the right side of that spectrum but this is one of those areas where I think we’re dangerously close to the other side.Report

              • Avatar George Turner says:

                The problem is that we want some of our enemy prisoners to think we brutally torture people even if we don’t. That greatly enhances success at getting information from them.

                Nazi Germany’s best interrogator used the threat of Gestapo interrogators using “other methods” to great effect on US prisoners. But he stuck to Nazi Germany’s approved military interrogation techniques, which of course didn’t include physical coercion.

                After the war the US military asked him to teach his methods, which we still use. He was also a renowned artist who’s work is on display at many famous US landmarks, including the California state capitol and Disney World. He was a great guy and US prisoners thought very highly of him.

                In contrast, Winston Churchill had Nazi prisoners brutally and endlessly tortured, yet the British methods were also quite effective.

                My cousin Heinz Eck, who was executed at Nuremberg, failed to use the Nuremberg defence even though that was exactly what we were looking for.

                But in the current case, the CIA might as well be the keystone cops because they won’t even deny a jihadist his prayer rug, nor will they question his religious beliefs, much less challenge them.Report

              • @george-turner Large parts of this are accurate and thus unobjectionable, but you need to leave out the implications that the US / CIA don’t torture people at the beginning and end next time. Not because anyone would have to but because you and I have talked before about patterns and not pushing the line of what is and isn’t acceptable to comment about Nazis, torture, and other such violent topics.

                This comment makes me uncertain that you remember where the line is.

        • Avatar Stillwater says:

          The power of transparency? To do what? Provide Moral Authority?

          This is a weird response given Inmd’s analogy to capital punishment.Report

          • Avatar Jaybird says:

            Given that the argument fundamentally rides on “the government does not have the competence to do X”, we’re in a place where it’s the “we cannot trust the government” people are arguing with the “what if we just got the right people to do X?” people.

            If the goal of transparency is to make the government less powerful and give it less ability to do things… well, we’re never going to see that happen.

            Not even if we elect Barack Obama himself and a huge wave of Democrats in the House and Senate to help back him up.Report

    • Avatar PD Shaw says:

      If you put ‘should the CIA torture the bad guys to get information to keep Americans safe’ . . ., I’d bet you’d probably see it passed.

      When the Convention Against Torture was debated for ratification, it was never intended to restrict America from doing what it was already doing, including psychologically coercive interrogation tactics being expanded on by the CIA in Latin America. The Reagan/Bush administrations worked with the Senate on adopting reservations, understandings, and declarations to the treaty to that effect, the primary one being that the treaty was not self-executing, and ultimately Congress would need to pass the law outlining what torture meant and how it would be enforced. The main equivocations that ended up in statute were the use of a “specific intent” element and defining mental harm in a limited way. Most of these points can be found in the law review article by John T. Parry, Torture Nation Torture Law He’s written quite a few and has concluded that Americans want torture debated in the framework of policy, not law.

      So, I think I agree with your point, I just think it happened around 1990.Report

  4. Avatar Saul Degraw says:

    I think this is an issue where the forces of good are largely doomed to be Cassandras wailing on the outside of the walls of power.

    I am not sure I can express my thoughts clearly in word but it seems to me that our foreign policy elites/”very serious people”
    (and this might be one of the few things that is bipartisan) is attracted to a United States where projects power through physical might and this includes CIA shenanigans and under the table stuff. The idea that the United States can be powerful via diplomacy, humane actions, etc is seemingly out of their world view. It is very much a worldview trapped in the Cold War and I don’t know how many generations it will take to break.

    I’m not an isolationist. I do think there are times when the United States can and should use their military power towards humane means and ends like helping evacuate refugees or sending in the Army Corps of Engineers to clean up a horrible natural disaster. But too many people are obsessed and think the United States needs to be in a not-so-quasi permanent war and this includes constant intelligence operations.Report

  5. Avatar Mark Van H says:

    Now we must prepare ourselves for the day when someone who isn’t foreign, and Muslim, or who can otherwise be compartmentalized in the American imagination as deserving, is tortured by a federal agency. Those torturers will be able to rest completely assured that they won’t be breaking the law. They’ll just be following orders.

    I imagine that the US Supreme Court will have something to say about that.

    I don’t think it’s likely that ‘enhanced interrogation techniques’ will be officially employed in the near future, but if it is there is no chance whatsoever that it will be used on US citizens.

    And the Nuremberg trials were political trials which didn’t exactly conform to high legal standards, otherwise, the defense of following orders would probably have worked for a lot of the convicted Nazis. The Nuremberg defense is a fairly solid one.Report

    • Avatar J_A says:

      I don’t think it’s likely that ‘enhanced interrogation techniques’ will be officially employed in the near future, but if it is there is no chance whatsoever that it will be used on US citizens

      *cough* José Padilla *cough*Report

    • Avatar InMD says:

      This strikes me as really myopic. I mean, Trump literally campaigned on bringing this stuff back. Even if there isn’t a big institutional push inside the agencies that would actually conduct it (which again, no one really knows), there’s no telling what crisis tomorrow or the next day or a year from now will suddenly ressurect ‘enhanced interrogation’ or something like it.

      Relying on the courts assumes that they even learn about it. If they do it will probably be well after the fact and certainly only after a lawsuit is filed. I suppose that after years and years of litigation maybe there’s a favorable judgment (though there are reasons to doubt that outcome). There are numerous reasons that litigation just isn’t a meaningful deterrent.Report

  6. Avatar Slade the Leveller says:

    Given how meekly the U.S. population has reacted to the establishment and continued operation of the TSA, is it any wonder that all the government has to do is make a public safety claim to be able to do just about whatever it feels like?Report

    • Avatar LeeEsq says:

      There has always been a law and order contingent in American society that really possessed little use for the 4th, 5th, 6th, 7th, and definitely 8th Amendments. The idea is that if your a good person, you should allow searches and cooperate with officials because you have nothing to hide. If you don’t cooperate, you are by definition not a good person and do not deserve protection.Report

    • Avatar Mr.JoeM says:

      Given how meekly the U.S. population has reacted to the establishment and continued operation of the TSA

      It is starting to look like the likely path forward on mass school shootings is TSAificaition. Being subjected to TSA like procedures daily will probably erode pushback on harsh treatment of people further as the current generations reach adulthood.Report

  7. Avatar Oscar Gordon says:

    Did anyone, at any time, truly gain valuable intel from the torture? My understanding is, at best, that any intel extracted was merely corroborative, and not new.

    Which makes me think that the purpose was not really about getting intel, and much more about breaking the man.Report

    • Avatar Saul Degraw says:

      I think you are right but our media portrays it as working and this causes a lot of Americans to believe that it works.Report

      • Avatar LeeEsq says:

        The long line of movies where misguided at best, actively malign at worse liberals and their concerns for civil liberties letting criminals get away with wrecking havoc on innocent Americans has taken a toll. The path to Haspel leading the CIA started with Dirty Harry. It helps that very few politicians ever won an election by promising to protect the civil liberties of people who find themselves on the wrong side of the law.Report

        • Avatar Maribou says:

          @leeesq Did that path start with Dirty Harry, or did the path to Dirty Harry start with the conflict about whether the Vietnam War was a good choice for America to engage in, or not (or whether the actions of the cops during Selma were okay or not, or etc)? I think starting with Dirty Harry is pretty far along the path already…Report

          • Avatar LeeEsq says:

            I’d really argue it started long before the Vietnam War but used Dirty Harry as a means for how the infection spread. There was always a decent portion of America that little to no use for civil liberties for people they don’t like.Report

            • Avatar Jaybird says:

              A good pop culture civlibmeter is the emphasis on prosecution vs. emphasis on defense.

              Matlock and Perry Mason vs. Law and Order or CSI.
              (Don’t know where to put police procedurals that emphasize police on there… like Dragnet or Adam-12… there were a lot of criminals but also a lot of people the criminals criminalized.)Report

              • Avatar LeeEsq says:

                Slate had a very good article years ago arguing that the real message of the Zodiac was that civil liberties, due process, and evidence are important. Just because everything you have points to a particular suspect, doesn’t mean you can go about doing anything you want to get an arrest or a conviction.Report

    • Avatar InMD says:

      As best I can tell it obtains confessions. Confessions to whatever the administer wants a confession to.

      Even if there was evidence it worked in some context I’d still against it, but I know that’s just crazy hippie talk.Report

      • Avatar Oscar Gordon says:

        Obtaining a confession implies the man was broken.

        As was said, it’s too inconsistent a method to be trusted, and the government should not be trusted to get it right often enough for it to be valuable as a way to extract intelligence.Report

      • Avatar LeeEsq says:

        Under Confucian penology, you could not convict a criminal without a confession. This was because Confucianists saw criminal law as having redemptive functions and admitting you did wrong was the first step to redemption. Torture was part of the Imperial Chinese justice system because they used it to get confessions.Report

  8. Avatar Chip Daniels says:

    What we know from history, is that oppression always starts with the marginalized people who are already hated and feared, and works its way inward.

    And even in the worst most oppressive regimes, there is a core of privileged people who never have to fear arrest or torture. These people support and sustain the regime and give it its strength.

    So hypotheses that imagine a future where middle class educated white people are waterboarded is the stuff of science fiction.

    In this discussion, immigrants and Black Lives Matter have the voice of authority and experience.Report

    • Avatar Maribou says:

      “So hypotheses that imagine a future where middle class educated white people are waterboarded is the stuff of science fiction.”

      For the record, that is 100 percent true about torture by society, but not by families. I’m not quite sure we were middle class, but my father used water torture on my brother, over and over. He tortured all of us in different ways. (And yes, I mean, specifically torture, not just relatively straightforward abuse.)

      I’m honestly not just being nitpicky or self-absorbed here (or at least I’m trying not to be) … I think it matters that there are plenty of privileged people who have to fear torture. I would bet that some of the privileged people supporting and sustaining this particular regime have personally experienced torture. I would even bet that some of the reason they are so damn supportive is that they themselves have experienced it and they are doing their subconscious best to make sure it never happens to them again, in a particularly corrupt and twisted way. I would not be surprised if that’s part of Trump’s pathology, or Haspel’s.

      Which doesn’t mean they are anything but 100 percent in the wrong. But the idea that they’re all in the wrong because they’ve been sheltered from the realities of torment is … I just don’t think it’s accurate. I think pain and suffering is the number one thing that leads people to replicate pain and suffering.

      I do think *indifference* to atrocity is a feature of privilege and shelteredness. But that’s subtly different from cheerleading it.Report

      • Avatar Maribou says:

        @chip-daniels I should say, I agree with your overall conclusions about who has the voice and the relevant experience about this.

        Just … elaborating, I guess.

        I don’t think we can separate domestic violence and state violence. There’s a lot of work been done on why not but I don’t have the energy to pull it into the discussion other than by feebly gesturing in its direction.Report

    • Avatar InMD says:

      I have to push back on you here. Torture is something thats been done across societies to all kinds of people in all kinds of circumstances since the dawn of civilization and probably before. Yes, as with any other bad or immoral policy, the most marginal members of a given society are most likely to take the brunt.

      But it has historically happened to nobility, political opponents, criminals (even rich, white ones), government critics, pamphleteers, people telling truth to power, and other people percieved as defectors. Treating the discussion as some kind of exercise in privilege checking takes the it in exactly the wrong direction.Report

      • Avatar Maribou says:

        @inmd By gum, you’re right. *shakes head* dunno why I was so swayed by Chip that I forgot all the myriad counterexamples.Report

      • Avatar Chip Daniels says:

        Well yes, Mary Queen of Scots was beheaded, but that doesn’t mean that everyone in England was treated the same.

        By the time we get to a place where Chip Daniels is picked up and tortured, we will have already gone through a long period in which marginalized and hated out-groups have long since suffered the same fate.

        [insert Dietrich Bonhoffer quote here]Report

        • Avatar InMD says:

          I don’t think its nearly that remote. I mean, if Edward Snowden got picked up in an airport would it really shock you to find out he was taken to a secret facility and subjected to some of these things? What about the treatment of Chelsea Manning who went into Quantico still as Bradley, a white guy from a respectable military family? Hell read about what law enforcement was allowed to get away with during Prohibition (the ‘third degree’) to suspects who would now mostly be called (derided as?) privileged cis white males. The intersectionality version of this is ahistorical because history didn’t start in America in the 1960s.

          Yes, I agree, we probably aren’t on the verge of torture becoming the norm in day to day law enforcement. If it did, people who are already disproportionately impacted by militarization, etc. would probably be disproportionately impacted by this, while those who mostly aren’t probably still mostly wouldn’t be. If I didn’t make that clear in the OP I am making it so now.

          What I don’t get is why its important for people making the same types of arguments against torture that have been made for centuries to defer to ‘the authority and experience’ of a defuse activist group that’s barely existed for 5 years and immigrants to the US generally, whatever those experiences may be.Report

          • Avatar InMD says:

            And by ‘defuse’ of course I meant diffuse. Damn autocorrect.Report

          • Avatar Chip Daniels says:

            I think what you are pointing out is that in every tyranny, the exception to the bubble of safety for the favored group are those who run afoul of the powers that be.
            Examples would be those members of the aristocracy who posed a threat to the power, like Snowden or Chelsea Manning.

            I don’t know why it is controversial to think that different classes of people get treated differently, that in fact justice is not blind and never has been.

            I don’t think it is possible in fact, to understand America without understanding the history of black people and their experience with our justice system.

            We see it right here where we speak about what the Constitution does, or what courts hold, all the while overlooking that Americans live under separate Constitutions, where the protections of the Bill of Rights can range from very strong to virtually nonexistent depending on who you are.

            This is also why abstractions about the size of government are irrelevant.
            Americans have, and want to have, government that is small and weak for us in the dominant class, while draconian for the lower classes.Report

            • Avatar Maribou says:

              @chip-daniels I would say that in American history, and perhaps even in the last 200 years of British history, torture is a tool used disproportionately by the rich on the poor, white slave owners on black slaves, lieutenants on enlisted, etc. I’d even go so far as to say that about any well-established imperial system, though I could be wrong. (Elizabethan Britain was not well-established, it was a chaotic mess of Catholic v. Protestant, two roughly equal parties. France during the Terror, also a chaotic mess.)

              In global history, torture and violence generally are the go-to methods for anybody at odds with anybody who has the (often momentary) power to use them. Competing guerrilla groups use torture on each other, and no one is particularly “dominant culture” in that context. There are a million such examples, as InMD says. (And intersectionally aware people are not generally ignorant of this, nor of history before the 60s, contra his claim…) And as I said, domestic abusers use those forms of coercion within families as well.

              Torture is one of the few things that I think is always and everywhere inexcusably wrong, though – I don’t even feel that way about killing, which I can occasionally see a good reason for – so I can see that I might be hyper-aware of it, or more likely to separate it out from other forms of violence.Report

            • Avatar InMD says:

              I don’t think any of this is wrong but I still don’t understand why anyone opposing torture needs to genuflect to some other group or groups about the issue. That’s especially so when it isn’t clear that support or sympathy for those groups ought to be a litmus test for common cause (and frankly, fuck litmus tests anyway).

              Is the argument that some BLM activist or one of the millions of immigrants in the country has made a good point on the subject? If so that’s great, post the link. By all means add to the discussion.

              Conversely, if you’re saying I shouldn’t have written this because I’m white and was born here, or that any of my arguments are less valid because of that.. obviously I’d have a different response. I’m certainly not going to defer to someone else’s (whose again?) ‘authority and experience’ (which experience exactly?) without a real compelling explanation of why that is.Report

              • Avatar Chip Daniels says:

                No, it isn’t to genuflect to some group or the other.
                Instead, it is to grasp why the “Law & Order” Dirty Harry mentality is so enthusiastically supported by Americans.

                Because for most white middle class people, the concept of being on the wrong end of the boot is almost inconceivable.
                Their entire life experience is with polite and professional cops, like you see on Law & Order, where if Mariska Hargitay gets a little rough with a suspect, you know its because he really is a pervert and fully deserving of it.

                The idea of the NYPD extracting false confessions out of the Central Park 5 is like some weird alternate universe where such things are un-possible.Report

              • Avatar LeeEsq says:

                The only times most White Americans come across with rough law enforcement is when dealing with Customs and Border Patrol, who can be a surly lot. Otherwise, its like your all buddies.Report

              • Avatar Dark Matter says:

                The only times most White Americans come across with rough law enforcement is when dealing with Customs and Border Patrol, who can be a surly lot.

                I am the only person I’ve ever spoken to who has had extremely nice, professional, friendly encounters with Immigration officials… and I gamed it so I don’t really count.Report

              • Avatar Maribou says:

                @dark-matter I’ve had plenty of those kinds of encounters, the good ones, if that counts, and without gaming it. US and Canada officials.

                I’ve also seen them perpetrate all kinds of abuses, admittedly never on white Americans. (The worst thing they ever did to me involved deliberately knocking my cat’s carrier with her in it off of the luggage cart three times – same officer every time, staring me in the face while he did it, smirking. Not actionable, nothing worth blinking at compared to what I’ve seen them do to other people let alone heard of, but vile nonetheless. She was ok, though shaken for a few days. )

                That said I’m pretty sure there are plenty of white Americans who’ve had violent and unpleasant encounters with law enforcement. There are not as many, there is a clear bias that matters, but there are still plenty of them. They just don’t vote, or live in tony suburbs.Report

              • Avatar Road Scholar says:

                I deal with Border Patrol briefly a few times a year. We have terminals along the border in CA, AZ, and TX. I roll up to the checkpoint in my truck, the guy asks me if I have any passengers, I say no. He asks me if I’m a citizen, I say yes (with my KS accent), and he waves me through.

                I’m assuming being a middle-aged white guy working for a major company helps.Report

  9. Avatar Dark Matter says:

    However, when a president is permitted to assassinate an American citizen abroad with no due process of any kind…

    We’re at war with Al Qaeda. He was a member. It’s legal to shoot combatants on a battlefield. It’s legal (and encouraged) for soldiers to do this without getting themselves killed. If a sniper can shoot him then a drone can too. “Battlefield” in this context means “anywhere we can’t just have him arrested or where we’d need an army to deal with him”.

    Google’s definition of “due process” is “fair treatment through the normal judicial system”. He didn’t get “due process” because he made it impossible for the “normal judicial system” to deal with him. He didn’t want due process because it’d include the legal system having control over the subject. We would have been thrilled to give him “due process” and he would have been horrified.

    If arresting him was an option then he would have been arrested. Since he’s made every effort to make that option impossible to the point where we need to send the armed forces in to deal with him, I don’t see why it’s supposed to be shocking that we did exactly that.

    Those torturers will be able to rest completely assured that they won’t be breaking the law.

    Define torture it in a way that we can put in a law. Now that you’ve written down the rules, expect people to follow them, this includes someone going right up to the edge of the line.

    That last part is where we have a problem. In the past we did define torture, and recently when our intelligence guys wanted to know where the lines were drawn, they went up to the line but not over (that’s the difference between them and people we arrested and charged who were doing their own thing).

    Up-to-the-line-but-not-over is still really ugly, and different people can look at that and insist it’s (common english definition) “torture”. Perhaps they’re correct and the lines weren’t drawn tight enough. Perhaps it’s a “I know it when I see it” situation where different people will give different answers. Perhaps the situation was just going to lead to ugly solutions by nature (objections to killing a combatant on a battlefield suggest this last).

    So, we need to decide what’s the least “destructive for democracy” way forward. The desired solution here seems to be to legally redefine Torture so it meets common sense definitions and apply those definitions retroactively.

    Allowing the retroactive changing of laws to punish political opponents seems like a really bad idea. If you think that’s not an ability Trump should have then you should be glad we didn’t give it to Obama.

    The Nuremberg trials determined that “just following orders” isn’t a defense when the orders are clearly illegal, but a lot of this argument runs into the “reasonable cop” issue. I.e. what is “reasonable” and what is “torture” when you’re a CIA interrogator dealing with Al Qaeda right after 911 and your job is to gather information which will save American lives? The good news is the law drew lines, that is also the bad news.Report

    • Avatar Maribou says:


      Do you think destroying evidence falls into “reasonable cop” territory? (cf InMD: “For that reason, Haspel’s complicity in the destruction of tapes documenting the torture of prisoners may be more heinous than overseeing a CIA black-site. These tapes would have allowed American citizens to see and understand what was, and for all we know still is being, done in our name. “) I find that hard to countenance.

      Or do you disagree that that happened?

      (I’m honestly not sure one way or the other if it did, myself – though PBS tends to be reasonably trustworthy as sources go so I lean towards it having happened – I’m just wondering what your basis is for ignoring that piece of InMD’s argument.)Report

      • Avatar Dark Matter says:

        Do you think destroying evidence falls into “reasonable cop” territory?

        1) I think what was considered reasonable and needed in 2001 was considered unneeded in 2005.

        2) I think WW2 would have been more interesting if the allies had chosen to have all of their secrets on the pages of the news while the war was going on. That includes every mistake, excess, and anything which could be spun as a propaganda victory including the civilians we blew to small pieces.

        In particular I think the war would have been very much more interesting if we’d given orders, had people double check them and run them past lawyers to make sure that we were serious, and then we’d arrested them after the fact for carrying them out because people not on the front line got squeamish.

        If it’s going to be official gov policy that we do this sort of thing on our operatives, then may I suggest deliberately setting on fire hundreds of thousands of civilians is a better place to start?

        • Avatar greginak says:

          In WW2 we certainly kept secret military actions. How we treated prisoners didn’t really need to be treated like time, course, altitude and planes involved in a bombing raid. This is comparing apples and rhinos territory. What was in the papers then and for years afterwards was outraged stories, correctly might add, about how the Japanese treated prisoners.Report

          • Avatar Chip Daniels says:

            Its also is worth noting that things like the laws of war and Geneva Conventions were promulgated precisely by the military commanders who would be bound by them.
            Because in those days, America wasn’t the Leviathan of nations, able to bully tiny nations at will.

            The laws were intended to protect American POWs from being subjected to things like waterboarding. Even if the GI knew where the ticking time bomb was.Report

          • Avatar Dark Matter says:

            What was in the papers then and for years afterwards was outraged stories, correctly might add, about how the Japanese treated prisoners.

            Sure, and it’s from those stories that we created laws on how to treat prisoners, and defined torture as “don’t maim or cause perm damage”. In effect if you were captured by the WW2 Japanese, you’d consider yourself lucky if you survived
            and EXTREMELY lucky if you were “only” treated like we’ve treated Al Qaeda.

            The death rate among Japanese POWs was 27 percent, compared to 4 percent for Allied prisoners held in German and Italian camps

            Nearly 50,000 U.S. soldiers and civilians became prisoners of wars. Nearly half were forced to work as slave laborers. About 40 percent of American POWs died in Japanese captivity (by contrast only 1 percent died in Nazi camps).

            Prisoners of war endured gruesome tortures with rats and ate grasshoppers for nourishment. Some were used for medical experiments and target practice.

            Allied prisoners liberated from Japanese POW camps looked like those liberated from Auschwitz. At the end of the wars Japanese soldiers at prisoner of war camps were told to behead, stab or shoot the 100,000 or so remaining Allied prisoners the moment an invasion began.

            During the little publicized Sandakan Death in March, 1941 more than 2,700 British and Australian soldiers were forced to march through the steamy jungles of Borneo only to be shot when they reached their destination. Six men escaped—they survived by eating birds and monkeys as well as bugs and crawfish—but only one man survived the war.


            • Avatar greginak says:

              We even had some thingees about how to treat prisoners back then.Report

              • Avatar Dark Matter says:

                We even had some thingees about how to treat prisoners back then.

                You’re comparing how we treated low level grunts in WW2 to how we now treat high level criminal prisoners who know what we want to.

                When it was useful, in WW2 we were willing to burn alive hundreds of thousands (millions?) of civilians. I suspect any high level criminal prisoner POWs who knew things would have been forced to talk (and more than likely, were forced to talk), we just wouldn’t have kept records.Report

              • Avatar greginak says:

                We captured officers in WW2. Rank didn’t make it ok to torture.

                Every terrorist ever just called. They owe you a solid for rationalizing anything anybody does in war ever. That does clarify things.Report

              • Avatar Dark Matter says:

                For every modern terrorist we used physical methods you want to retroactively describe as torture, in WW2 we burned alive tens of thousands of civilians.

                By WW2 standards, we’re choir boys.Report

    • Avatar Chip Daniels says:

      The Nuremberg defendants weren’t tried under the laws of Nazi Germany, because everything they did was perfectly legal according to their lawyers.

      They were tried under “international law” which is a flimsy construction “we know it when we see it” by the victors.

      Its entirely possible that Bush and Cheney could still yet be tried for war crimes under a similar construction. The fact that John Yoo signed a paper justifying it is specifically refuted by the Nuremberg Principles.Report

      • Avatar James K says:


        Its entirely possible that Bush and Cheney could still yet be tried for war crimes under a similar construction.

        I very much doubt it. Your government is far to powerful to have to worry about anyone holding it to account.Report

      • Avatar Dark Matter says:

        The Nuremberg defendants weren’t tried under the laws of Nazi Germany, because everything they did was perfectly legal according to their lawyers.

        Please source that the holocaust was legal in Germany.Report

        • Avatar Chip Daniels says:

          This is the entire lesson of the Holocaust, that it was legalized in small incremental steps from the Nuremberg Laws to the Wannsee Conference.

          By the time of the Wansee Conference, Jews had already been stripped of any legal standing. When Reinhard Heydrich gave the order, he was acting in the full legal power of his office as Obergruppenfuhrer of the Reich Main Security Office.

          There were no laws broken, no rogue commanders, no out of control gangs who did this. They were truthfully, obedient soldiers carrying out legal orders. No one disputes that.

          The judgement at Nuremberg was that their internal laws could not be used to exonerate them from international law.Report

          • Avatar Dark Matter says:

            Please source that the holocaust was legal in Germany.Report

            • Avatar dragonfrog says:

              Please do your own damn homework.Report

            • Avatar Maribou says:


              To look at the Wannsee Conference as illegal under German law, or at the subsequent carrying out of its decisions as illegal, while *possible*, and perhaps of some limited utility in very specific legal contexts (i believe there were actually a few post-war German prosecutors who successfully charged some soldiers under it), is also to demonstrate an enormous detachment from any common-sense meaning of what an internally-legal action in a country is.Report

              • Avatar Dark Matter says:

                This is like claiming anything Trump wants to do must be legal because the GOP controls the gov.

                Yes, the Nazi gov most certainly carried out the holocaust. Yes it was policy. But they seem to be acting like Saddam did in Iraq, i.e. where the law was a problem it was simply ignored.

                Afaict, Murder was illegal before, after, and during the holocaust.

                Now, granted, the moment we open that door and face that truth, it gets really, really messy. I think Stalin suggested executing 50k or so Germans, i.e. everyone involved.Report

              • Avatar Maribou says:

                “where the law was a problem it was simply ignored.”
                No, in Germany, as others have said and as you can read more about at the site I linked to just by following your curiosity a bit, there was a whole pattern of juridical decisions leading up to Wannsee that laid the groundwork for all different kinds of murders being perfectly fine, and in fact, the necessary thing to do, if they were for any number of ridiculous reasons including the “will of the local people” or equally empty stipulations. And for it being a dictatorship where Hitler’s directives overruled any other law.

                Beyond that, it really is a matter of you doing your own homework, I think. Or, perhaps, realizing that for most people, if the country passes enough laws and builds enough legal precedent saying “these murders don’t count because Jews”, it seems obvious to the point of taking offense at suggestions otherwise that the country has (horrifically) built into their rule of law that Jews can be murdered.

                It’s hard to believe and hard to take in, but it’s also hard to hear someone scoff at once you understand how very thorough the perversion of law really was.Report

    • Avatar DavidTC says:

      In the past we did define torture, and recently when our intelligence guys wanted to know where the lines were drawn, they went up to the line but not over

      Uh, no.

      18 U.S. Code § 2340 “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

      The UN Convention on Torture, which was also signed, has basically the same definition. There’s not some secret lines where you can water-torture someone exactly this much and not any more. It’s any severe pain or suffering a captor is causing on purpose. (As opposed to incidental required stuff like ‘handcuffed’.)

      There are precedents that say certain things are torture, aka, cause severe pain and suffering, and that’s about it. No one sits down and writes those as law. It’s just, historically, what has been regarded as those things.

      And the problem for your claim is that the US government immediately raced past any precedents, including things it described as torture in the past and had literally prosecuted as torture.

      For example, there’s a very clear precedent that ‘waterboarding’ is torture. (It’s literally in the name. The actual name of that technique is ‘water board torture’.) Likewise, there’s a clear predecent that sleep deprevation is torture.

      Solitary confinement is probably on the line, and stress positions sorta depend on the position and length of time.

      Causing prisoners to freeze to death because the CIA poured cold water on them and left them naked from the waist down? I’m…gonna call that one torture too.

      There is very little plausible legal argument that a lot of what they did was not torture in a legal sense. It’s not even close to being debatable. We’ve literally convicted people of the crime of ‘torture’, in the US, for the exact things the CIA did.

      The ‘loophole’ was that they did in such a place (On a military base outside the US), and to a class of people (Which they made up called ‘unlawful combatants’) that the laws against torture supposedly ‘didn’t apply’.

      Granted, the _military_ was still 100% aware the laws still applied, which is why the CIA was in charge of the torture.

      But this was all a lie: In reality, it’s illegal for US nationals acting under the color of law (Which the CIA, as jailers, would be operating under.) to torture people, period, under the 18 U.S. Code § 2340. (And for the record, we passed that law in 1994, just in case anyone suspects it’s a response to this.)

      There is no exception given for the military or the CIA, and, surreally, that law is one of the very few laws that explicitly applies to US Nationals doing it in non-US jurisdictions, the exact loophole supposedly used!

      If a US citizen gets hired as Mexican sheriff (Or whatever it has) and tortures someone under the color of law in Mexico, they can be charged in the US.

      Or, if, for example, a US citizen is part of the CIA, and, as part of their job (I.e, under the color of law) has prisoners that it orders tortured in, say, Cuba…

      There is no actual loophole here. There is no actual ‘the laws were vague’. The laws are incredibly, incredibly clear. The precedents are very clear. Everything is very clear. There was a lot of stuff done that was maybe torture, who knows. But there was also a lot of stuff done that _everyone agrees_ was torture.Report

      • Avatar Chip Daniels says:

        If it were not so dark a topic this would make me think of those hilarious kinds of elaborate parsing that adolescents do about uncomfortable subjects, like, “exactly what constitutes third base versus s-e-x” or “I am still a virgin because we did it in the butt“.

        They aren’t actually confused about the reality of the situation. They are confused about how to handle the discord between their idealized understanding of themselves, and their actual behavior.Report

      • Avatar Dark Matter says:

        Interesting… so we had high level lawyers/people do legal/logical backflips to get the answer they wanted. I suspect this happens more often than we’d like to admit. 7 Supremes (2 left, 5 right) had pretty nakedly self serving reasoning in Bush v Gore, then there’s the anti-gun movement’s insistence that the 2nd AM doesn’t give the right to have a gun.

        So we stepped over the torture line even after careful thought, vetting, and legal analysis. Perhaps went more than a little crazy after 911.Report

  10. Avatar Fortytwo says:

    SS: Alibi of a Nation by Gerald Reitlinger.Report

  11. Avatar Damon says:

    I had a similiar conversatoin with a then girlfriend about this….the whole school buss full of kids and torturiing the terrorist to find out where the bomb was on which buss. I lowered the number of kids and increased the captured terrorists. Tell me along those two lines where you say “stop”. She eventually summed it up with “anything we have to do to protect ourselves is ok with me”. I asked her, a jew, why that argument didn’t apply to the Nazi’s in ’42? She got pissed.

    I’ve had other people straight up tell me that “it’s not torture if we do it”. Bullshit. Just cause you get show shady lawyer to write a brief saying it’s not torture don’t make it so. It is. Haspel participated in the destruction of gov’t documents….our documents. For that alone she should have been drummed out of the service.

    And if the sudden vote switch by that politician who was against her then was for her, doesn’t convince you that the “deep state” exists, I don’t know what will.Report

    • Avatar DavidTC says:

      I asked her, a jew, why that argument didn’t apply to the Nazi’s in ’42? She got pissed.

      That exact same reasoning, BTW, is why the Convention on Torture very clearly and explicitly, right after it says ‘You cannot torture’, goes ahead and says ‘No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.’

      It’s a weird thing for a law to say, when you think about it. 1) You are forbidden from doing this. 2) No, you’re still forbidden _even if_ you have these specific Very Good Reasons. 3) Or any other Very Good Reason! 4) Even in an Emergency!

      This is, of course, because there are is always an Emergency, and there are always Very Good Reasons. Every nation that has ever tortured had Very Good Reasons and only did it in an Emergency.

      And, of course, while we’re talking about just following orders, that immediately is followed with ‘An order from a superior officer or a public authority may not be invoked as a justification of torture.’

      BTW, while I was copying and pasting from the Convention, I literally just noticed that Haspel arguably committed a war crime with merely the destruction of those tapes:

      Article 11:
      Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

      Of course, this is pretending that her destruction interfered with a hypothetical review, when it’s clear we simply don’t care. Nor do we care about prosecuting people who tortured, as required to do under Article 12.Report

  12. Avatar Mr.JoeM says:

    So far the only Americans punished for conduct in the War on Terror similar to some of the crimes described above were low-level enlisted men and women at Abu Ghraib prison in Iraq.

    Whether it was the intent or not, the net effect of this has been to make it quite clear that the crime was not the torturing. The crime was taking pictures and talking about it.Report