Re: A Nuremberg Lesson

----- Original Message -----

From: Horton, Scott (x2820)
To: 'Dean Lawrence R. Velvel'
Sent: Friday, January 21, 2005 2:15 PM
Subject: RE:

Dear Dean Velvel, Since this evolved, in a sense, from an email I sent you, I thought you might want to see it:

The Los Angeles Times
COMMENTARY
A Nuremberg Lesson
Torture scandal began far above 'rotten apples.'
By Scott Horton

Horton is a New York attorney and a lecturer in international humanitarian law at Columbia University. January 20, 2005

"This so-called ill treatment and torture in detention centers, stories of which were spread everywhere among the people, and later by the prisoners who were freed … were not, as some assumed, inflicted methodically, but were excesses committed by individual prison guards, their deputies, and men who laid violent hands on the detainees."

Most people who hear this quote today assume it was uttered by a senior officer of the Bush administration. Instead, it comes from one of history's greatest mass murderers, Rudolf Hoess, the SS commandant at Auschwitz. Such a confusion demonstrates the depth of the United States' moral dilemma in its treatment of detainees in the war on terror. In past weeks, we have been treated to a show trial of sorts at Ft. Hood, Texas, starring Cpl. Charles Graner and other low-ranking military figures. The Graner court-martial and the upcoming trial of Pfc. Lynndie England are being hyped as proof of Defense Secretary Donald Rumsfeld's explanation for the Abu Ghraib prison tortures: A few "rotten apples" — not U.S. policy or those who created it — are to blame.

Graner entered a "Nuremberg defense" — arguing that he was acting on orders of his superiors. This defense was rejected in Ft. Hood as it was in Nuremberg 60 years ago, when Nazi war criminals were found guilty of crimes against humanity. A misled American public can choose to see in the Graner verdict the proof of the "rotten apples" theory and of the notion that Graner and the others acted on their own initiative. But what it should see is a larger Nuremberg lesson: Those who craft immoral policy deserve the harshest punishment. Consider the memorandum written by Alberto Gonzales — then the president's attorney, now his nominee for attorney general. He wrote that the Geneva Convention was "obsolete" when it came to the war on terror. Gonzales reasoned that our adversaries were not parties to the convention and that the Geneva concept was ill suited to anti-terrorist warfare.

In 1941, General-Field Marshal Wilhelm Keitel, the head of Hitler's Wehrmacht, mustered identical arguments against recognizing the Geneva rights of Soviet soldiers fighting on the Eastern Front. Keitel even called Geneva "obsolete," a remark noted by U.S. prosecutors at Nuremberg, who cited it as an aggravating circumstance in seeking, and obtaining, the death penalty. Keitel was executed in 1946. Keitel's remarks were made in response to a valiant memorandum prepared by German military lawyers who argued that the interests of Germany's soldiers, and the interests of morale and good order, would be served by adhering to the Geneva treaty.

Secretary of State Colin Powell, echoing the opinions of the Joint Chiefs of Staff and U.S. military lawyers, sent Gonzales a letter that hit the same notes. Rumsfeld and the White House would have us believe that there is no connection between policy documents exploring torture and evasion of the Geneva Convention and the misconduct on the ground in Guantanamo Bay, Iraq and Afghanistan — misconduct that has produced at least 30 deaths in detention associated with "extreme" interrogation techniques.

But the Nuremberg tradition contradicts such a contention. At Nuremberg, U.S. prosecutors held German officials accountable for the consequences of their policy decisions without offering proof that these decisions were implemented with the knowledge of the policymakers. The existence of the policies and evidence that the conduct contemplated in them occurred was taken as proof enough. There is no doubt that individuals like Graner and England should be held to account. But where is justice — and where are the principles the U.S. proudly advanced at Nuremberg — if those in the administration and the military who seem most culpable for the tragedy not only escape punishment but in some cases are slated for promotion?

Next week, the world will commemorate the liberation of Auschwitz. A memorial prayer for the death camp victims will be read at the United Nations. German Foreign Minister Joschka Fischer will attend to acknowledge that the depravities at Auschwitz were not the work of a few "rotten apples" but the responsibility of a nation. Such a courageous assumption of responsibility should provide a model for the United States, which can still act to salvage its tradition and its honor.

Scott Horton
1133 Avenue of the Americas
New York, NY 10036-6710
Tel: +1 212 336 2820 Fax: +1 212 336 2246 Mobile: +1 917 216 2319
email: shorton@pbwt.com

-----Original Message-----

From: Dean Lawrence R. Velvel [mailto:velvel@mslaw.edu]
Sent: Friday, January 21, 2005 1:38 PM
To: Undisclosed-Recipient
Subject:

January 21, 2005

Dear Colleagues:

The attached email on the use of history to shed light on the present was received from Professor Tony D’Amato of Northwestern University Law School. A brief response to the email follows it.

Response to Mr. Ellis:

President Bush's legacy is not at all what you or George Washington think it will be. Bush intends to establish permanent American military bases and airports in Iraq. These will not only project American power throughout the Middle East, but will also influence who will buy oil from the Iraqis and Kurds and at what prices. Bush has no interest in saving the Iraqis or removing violence from their country or even in declaring our victory there. Clinton's way of "brokering" the Israel-Palestine standoff was to offer enormous monetary bribes to both sides. Bush will do it much cheaper and more effectively; he'll simply rattle his military arm in Iraq and let the two sides figure out their own way out of their territorial dispute.

As much as I agree with each and every well-chosen reason Dean Velvel gives for bringing historical knowledge to bear upon current events, it has to be what I would call strategic historical knowledge. I think Niall Ferguson has it exactly right: a historian must inquire into the value of the things that people didn't do, and also the things they decided not to do, instead of just reporting the things they did. To focus on the latter, as nearly every historian does, is to adopt a seductive view of history as cause-and-effect, that is, everything that the historian reports as having happened becomes the cause of everything that the historian reports as having happened next.

This gives us at best an extraordinarily distorted one-dimensional linear view of a rich three-dimensional past. Indeed, to repeat one of my pet peeves, it is the reason why history is today so undervalued in the academy. Historians have painted themselves into a historiographical corner that forbids them to look at the past the way past historical players viewed it stragetically day by day, and instead view the past as a coherent narrative that can only be changed at the peril of losing an appointment in a history department by infuriating a tenured historian who has a vested interest in preserving his or her definitive account of the past.

Tony D'Amato


January 21, 2005

Dear Tony:

If I correctly understand one of your major points, you are saying that, in using history to shed light on current problems, one should consider not only what was done historically, but also what was not done, i.e., alternative roads in the wood not taken. This is called counterfactual history, of course. While historians tend to abhor it, I see nothing wrong with considering roads not taken as well as roads taken. So, if I correctly grasp your point, I agree with it.

I would, however, make an additional point. Counterfactuals can be a more reliable guide, one would think, if the counterfactual situation were also factual and successful at some other time or place, and if the course followed instead of the counterfactual one led to bad results. I may have made that sound complicated, but it is actually quite simple. (Geniuses make the complicated simple. I make the simple complicated.)

Here is a readily understandable example of what I mean. For the first few years of the Civil War in the east, Union generals time and again gave battle, lost, and retreated behind the Rappahannock for a few months, gave battle, lost, and retreated behind the Rappahannock again for a few months. Suppose one argues that the Union would likely have been successful earlier if a general had instead given continuous battle -- i.e., had maintained continuous contact with Lee’s army and never stopped fighting it until the rebels had no more men or resources. (Lincoln seemed to believe that something like this was the path to victory for the Union -- after one of the great early battles that ended in a defeat for the Union he said something to the effect that, if there were a battle like that every week, the Confederacy would soon be out of men. And continuous contact between opposing forces was, of course, the way of fighting in the world wars of the 20th century.)

The argument that the Union would have been successful earlier if there had been continuous contact is based on the counterfactual hypothesis of nonstop battle. In this example, the course actually taken early in the war -- intermittent fighting instead of continuous fighting -- produced bad results. The counterfactual situation -- continuous contact and continuous fighting -- was followed later, under Grant, and it produced good results -- it led to the destruction of Lee’s army and the defeat of the Confederacy. That continuous contact succeeded later lends strength to the argument that the course not taken earlier would have been successful if it had been taken earlier.

(I recognize that possibly cutting against this is another fact -- that the Union generals in the east, prior to Grant, suffered from varying degrees of incompetency. Yet, had a general who was a fighter actually done what Lincoln wanted -- had a general who was a fighter grabbed on to Lee’s army to incessantly "chew and choke" (as Lincoln later put it) until the end, it is reasonable to think that Lee and the Confederacy would have been finished off earlier due to much faster attrition. In any event, my point is not that success at another time or place proves the validity of a counterfactual, but only that it makes the counterfactual stronger.)

Sincerely yours,

Larry