JURIST Guest Columnist James Friedman of the University of Maine School of Law says that despite the potential political cost to President Obama of investigating the torture memos released by the former Bush administration, failure to act on the memos may take an even more costly toll on our identity and well-being as a nation….

In light of the current controversy concerning the responsibility of certain lawyers in the Bush administration for the torture of detainees, it is worth recalling with some particularity the war crimes trials the United States initiated after World War II. A primary purpose of the trials was to articulate values fundamental to the United States.

The first trial of the Germans at Nuremberg was held before the International Military Tribunal (IMT) from November 1945 to October, 1946. This was the trial of the “major German war criminals,” the surviving leaders of Nazi Germany. As Justice Robert Jackson, Chief American Prosecutor, put it, this was the first international criminal assize of governmental leaders in history. The Charter of the Tribunal charged with waging aggressive war, war crimes, and crimes against humanity. The charges were established by the Charter of the Tribunal. The case was entitled United States v. Goering, et al.

One often comes across references to the “Nuremberg principles.” While there is no fixed meaning to this phrase, I think it is most often used to connote that neither official governmental office nor superior orders constitutes a defense to charges of war crimes or crimes against humanity.

At a philosophical level Nuremberg represents a rejection of the Germans’ defense of legal positivism. To put it simply, the Tribunal held that Nazi offenses were so egregious that even if they were “legal” when committed under the law of the Third Reich, the defendants should have known that mass murder and other atrocities were contrary to the “law of civilized nations.”

Less famous than the trial of the major war criminals before the IMT were a series of trials held before American Military Tribunals, also at Nuremberg, from October of 1946 to May of 1949. These eleven cases, known as the Nuremberg Military Tribunal (NMT) cases, were brought against lesser known figures in the Nazi bureaucracy as well as private persons who committed war crimes or crimes against humanity. The prosecutions were brought under Allied Control Council Law No. 10 which closely tracked the definitions of criminal conduct under the Charter of the International Military Tribunal. Torture was categorized as a crime against humanity as well as a war crime under both the IMT Charter and Control Council Law No. 10.

Recently two of the NMT cases, “The Justice Case” (United States v. Alstotetter,) and “The Ministries Case” (United States v. Von Weisaecker) have been subjects of renewed interest among legal scholars. “The Justice Case” involved the prosecution of individuals in the Reich Ministry of Justice for a variety of atrocities including everything from theft of Jewish property to death sentences for individuals who had opposed Hitler to mass murder. In sum, certain defendants were convicted for what the American court called “the perversion of law and justice.”

“The Ministries Case” also involved lawyers. Defendants Von Weizaecker and Woermann were high ranking legal advisers in the foreign office who advised the German Foreign Office that the deportation of French Jews to Auschwitz was lawful. The American Military Tribunal convicted Von Weizaecker and Woermann of crimes against humanity for their disastrous legal advice.

The reason for the renewed interest in these cases has been the declassification over the last several years of legal memorandums written by lawyers of the Bush administration authorizing torture as a lawful means of interrogation. The first and perhaps most notorious memo is dated August 1, 2002. This memo was requested by Alberto Gonzales, then the President’s lawyer. Mr. Gonzales wished to know what constituted permissible interrogation techniques in light of the prohibition against torture in the U.S. criminal code (18 U.S.C. 2340-2340A) and the prohibitions contained in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, a multilateral treaty that had been ratified by the United States. The memo was written by Justice Department lawyer John Yoo and signed by then Assistant Attorney Jay Bybee. The memo constituted a formal legal opinion of the Office of Legal Counsel (OLC) of the Department of Justice.

Another memo, recently declassified, was written in May of 2005. This memo justified waterboarding as a lawful means of interrogation by CIA employees. It was written by Assistant Attorney General Steven G. Bradbury, again as an opinion of the Justice Department’s OLC.

John Yoo’s 2002 memo was bizarre. Its most notorious conclusion was that for an interrogator’s act to constitute torture it must cause pain “equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function, or even death.” Any physical abuse short of this was legally permissible.

What was as remarkable as Yoo’s definition of torture was the legal authority he cited for the definition. He relied upon West Va. Univ. Hosps., Inc v. Casey, 499 U.S. 83 (1991). The issue in the West Virginia case was not torture, but the scope of coverage under Medicaid reimbursement. This non sequitur citation was consistent with the quality of Yoo’s legal arguments more generally.

He concluded in Part V of the memo that federal laws such as the anti-torture statute were unenforceable against executive branch officials as they would interfere with the President’s ability to wage war. Mr. Yoo did not speak to the language of the Constitution in Article One, section 8, clause 14 which states that Congress shall have the power “To make Rules for the Government and Regulation of the land and naval Forces.” Nor did he address issues of military law.

Yoo’s torture memo was withdrawn as an OLC Opinion by Jack Goldsmith in 2004 before Goldsmith resigned from the Justice Department. Torture did however occur during the period when the OLC Opinion was in effect. Given the quality of Yoo’s legal reasoning, it is hard to conclude Yoo’s memo was written in good faith.

Unfortunately U.S. torture of detainees did not stop in 2004. I mentioned the Bradbury memo of 2005 because the controversy over waterboarding apparently continues. Bradbury concluded that waterboarding is a lawful form of interrogation under certain circumstances. There is no reference in the Bradbury memo to U.S. convictions of Japanese officers after World War II for waterboarding American POWs.

One could go on about other Bush Justice Department memos, but my point is a simple one. The United States stood for very different values in the Nuremberg prosecutions after World War II. These values were more in line with Lincoln’s sensibilities as Commander-in-Chief, when he refused to engage in reprisals for Southern war crimes against Union prisoners of war. The question now is: shall we remain who we have professed to be?

I realize the enormous political cost to the Obama administration of a public inquiry or criminal investigation of officials of the previous administration. The dilemma is that to ignore U.S. memos authorizing torture may do greater damage to our identity and well-being as a nation. To paraphrase Justice Brandeis, we wou
ld be tacitly endorsing “men of zeal without understanding.”

James Friedman is Professor of Constitutional Law at the University of Maine School of Law. He previously served as Distinguished Visiting Professor of Law at the United States Military Academy, West Point.
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