[THS] Scott Horton: American Diplomats Advocated Nuremberg Defense

[Peter Webster]

http://www.huffingtonpost.com/2009/09/01/american-diplomats-advoca_n_274039.html

American Diplomats Advocated "Nuremberg Defense"

First Posted: 09- 1-09 01:28 PM   |   Updated: 09- 1-09 02:53 PM

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.



About Scott Horton


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.