Re: The Four Torture Memos, Eichmann, And The Obama Administration. Part II.
May 7, 2009
Re: The Four Torture Memos, Eichmann, And The Obama Administration. Part II.
On April 23rd I posted the first part of a three part essay that deals with the torture practiced by the American government. Since then I have been preoccupied with other matters; thus Part II was not written until now. Because there has been a two week hiatus, the first part is being reposted, along with the second part. Those of you who previously read the first part may wish to simply skip over it and go directly to Part II.
April 23, 2009
Re: The Four Torture Memos, Eichmann, And The Obama Administration.
I have read the four memoranda that were recently released by the DOJ and authorized torture. Permit me to invent a similar but short memo that will allow the reader, without reading the approximately 120 densely packed pages of the four memos, to grasp their style, their character, their techniques, their aims, and, inherently and unavoidably, the nature of the people who wrote or signed off on them: John Yoo, Jay Bybee and Steven Bradbury.
To: Reinhard Heydrich
From: Joseph Alstotter, Chief of Section of Legality
Date: February 1, 1942
You have asked the legal opinion of the Section of Legality on a matter related to transportation.
You have informed us that the trains containing persons being taken to Auschwitz, mostly Jews, have cars in which the transportees are so numerous that they are forced to stand for the entire trip, which takes five days and eleven hours. Because of the close packing of standing bodies within the cars, there is a lack of air: the conditions are suffocating. Although the transportees are allowed out of the car for fifteen minutes once every eight hours, when they are each fed half a bowlful of thin gruel by the side of the tracks, the conditions of transportation cause some of them to weaken so greatly that they suffocate inside the cars. Or by somehow sliding to the floor (even though the close packing of the bodies causes some of their bodies to be held vertical for a period after they have already died), they become trampled to death. Old women, old men, and young children, you inform us, are the ones most susceptible to dying by suffocation or by being trampled after sliding to the floor.
You further inform us that, when the trains stop once every eight hours and people get off to eat, there usually are a number of transportees who are too weak to get back on the train or who feign such weakness. These individuals are quickly examined by a doctor who accompanies the train for this purpose. If the examination shows them to be too weak to continue, they are shot and left by the side of the tracks. Medical officers attest that the shootings cause no unnecessary or long lasting pain because the people are shot by pressing the muzzle of a pistol directly against the back of the head so that death is instantaneous.
You have informed us that the train cars are packed as tightly as they are because of military necessity. Our armies are fighting the Bolsheviki in a life and death struggle on the eastern front. If we lose the war on the Bolsheviki front, Germany will be laid waste and will cease to exist as a nation. There is therefore an overwhelming military necessity to use the railroad, one of Poland’s few, to move a continuous stream of tanks, artillery, small arms, ammunition, food, etc. to our eastern armies. Engines and cars are thus employed exclusively for that purpose, with the sole exception that once each week an engine and ten cars are used to transport Jews to Auschwitz. This movement of the Jews is essential because they, like the Bolsheviki, are a bone in the throat to the German people and must be eliminated for Greater Germany to survive and prosper. (Not surprisingly, they often are the leaders of the Bolsheviki.) Transporting Jews to Auschwitz carries out a major policy decision of the Fuhrer and his advisers established at the Wannsee Conference in 1941 and set forth in appropriate prior memos from this office.
As you have explained to us, this railroad transportation of the Jews, as essential as it is, must be done in a way that minimizes interruption of, or interference with, the movement of supplies to our eastern armies. The cars are therefore packed as tightly as they are, since otherwise three trains per week would be required instead of just one, with a corresponding adverse impact on the movement of supplies to our armies and a correspondingly enhanced risk of losing the war against the Bolsheviki, with the accompanying destruction of Germany.
** * * *
You have asked us, in light of these facts, to opine on whether the transportation of Jews to Auschwitz in this way is a crime against international law in violation of the rule laid down in the 1921 case of Van Devent v. Hohenzollern. Our opinion on this question is required because, now that the United States, under the Rooseveltian Jewish cabal, has entered the war against us, a few officers and soldiers who are involved in the transportation of Jews have asked for assurance that this is legal, lest they be subject to punishment as war criminals should Germany unexpectedly lose the war. You recognize that this kind of defeatism could be handled in the usual way, by shooting the offender or hanging him from a lamppost, but you think it would be better if it were possible to obtain an opinion from the Section of Legality holding that no crime is being committed and there can therefore be no punishment for any supposed violation of international law.
It is our judgment that the transportation to Auschwitz, as you have described it to us, is not a crime, is completely lawful, and cannot be punished. In Van Devent v. Hohenzollern, German soldiers had been fired on by partisans, who were not in uniform, as the Kaiser’s armies moved through Belgium in 1914. (The partisans would fire from roofs, windows, etc.) In consequence, when the Kaiser’s army would enter a Dutch town, it began to shoot three or four of the leading citizens – the mayor and town councilmen, for example – as a warning to other partisans of what would happen if German soldiers were killed by nonuniformed partisans. This expedient worked very well, since the shooting of German soldiers by partisans ceased.
Nonetheless, the Dutch court ruled in 1921 that the shooting of town leaders as a warning to potential partisans constituted a crime under international law. The court’s reasoning was that an army going through enemy territory cannot shoot innocent people, or anyone under its control whether innocent or not. The court said that the shooting of innocents, or even of guilty parties without some form of suitable trial to establish guilt, cannot be part of state or military policy under international law, and necessarily is, instead, a crime, under international law.
As we have stated previously, however, the German government does not accept that the tribunals of foreign governments can establish the rules governing what it is legal or not legal for the German government to do. Therefore, the decision in Van Devent v. Hohenzollern cannot govern German soldiers in the performance of their duty. In the present case, moreover, and regardless of what the Dutch court said can or cannot be part of state policy, it is clear that transporting Jews to Auschwitz is the state policy of the German Reich, in accordance with the will of the Fuhrer and the decisions of the Wansee Conference, which he has approved. It is equally clear, as stated in our memorandum of December 15, 1941, that it is Germany’s state and military policy to fight a war of annihilation against the Bolsheviki on the eastern front.
The mode of transportation to Auschwitz melds the two state policies: it transports enemies of the German people (the Jews) to Auschwitz for annihilation, sometimes after a suitable period of working in mines and factories for the Third Reich, while minimizing interference with the transportation of tanks, guns, ammunition, food, etc. to German troops fighting a desperate war against the Bolsheviki on the eastern front.
Because war against the Bolsheviki and annihilation of the Jews are both high state policies, and the transportation of the Jews is done in a way that carries forward that policy while minimizing interference with the policy of war against the Bolsheviki, it is our opinion that the transportation, as carried out, cannot and does not violate any rule of law.
Our opinion is limited to the facts as you have described them to us, and is not intended to cover any different or altered facts.
Please let us know if we can be of further assistance.
Chief of Section of Legality
From the foregoing short invention, whose style, character, techniques and aims mimic many a legal memo and in particular mimic the four torture memos, one can readily grasp a lot. The short invented memo exemplifies the kind of language used in the four Department of Justice memos: formal, legalistic, bloodless, designed to camouflage the most horrible conduct in abstract formulations. It mimics the acceptance, use, and non-questioning of facts and arguments that have been provided by the persons who seek the legal opinions for their own protection. It mimics the torture memos’ use of legal materials to approve monstrous actions, which is done at phenomenal length in the four torture memos (as if extreme long windedness can substitute for rightness). It mimics the transparent goal of trying to clothe the most awful actions in high sounding reasons of state in order to justify such actions under the law. It mimics the four memos’ (obviously guilt-caused) effort to escape responsibility as much as possible by saying it is confined to the facts given to the writer. It mimics the self referential technique of referring to prior memos from the same office which say the same things. It mimics the four memos’ claim that the most horrible acts are performed in a way that supposedly causes no pain – which the authors of the torture memos have no real way of knowing since they were not themselves subjected to the techniques nor even present to see their effects. It mimics the claim that acts are overseen by medical personnel. It shows how, as in the four memos, the techniques of writing and law can be used to justify the most horrific conduct while pretending to be an exercise in legitimate lawyering. It shows why the New York Times said, on Sunday, April 19th (as has been said here in part in previous postings):
These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.
It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away with are from the C.I.A. and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the defense secretary, the attorney general, the intelligence director and, most likely, President Bush and Vice President Dick Cheney.
And it mimics the transparent fact, or at least it would if it had been written “for real” instead of only to enable readers to understand the nature of the torture memos, that the authors of the torture memos are monsters disguised as human beings.
I recently read the 2009 book by Neal Bascomb called Hunting Eichmann. I learned a lot I had not previously known; the lack of knowledge was due both to my own failure to read (or to remember if I did read) and to the failure of the mass media to focus on or write about matters it should focus on and write about (or broadcast).
So it was all news to me that after World War II the Church participated in sneaking Nazis out of Europe -- getting them to Argentina, for example -- via so-called “ratlines.” The very worst of the worst, like Eichmann and Mengele, escaped Europe this way. The idea that the Vatican was involved in this is mind boggling, hardly believable. Yet it happened apparently.
It was also news to me that there was a large, a huge, number of Germans in Argentina after the war, many apparently being Nazis and many apparently being involved in hiding Nazis or helping them to hide. From reading Bascomb’s work, it seems obvious, moreover, that lots of the Germans in Argentina knew Eichmann was there and exactly who he was. Eichmann even had weekly meetings for awhile with one fellow, a Dutch writer who had been in the SS, to extensively relate (and, where necessary, dredge up) his recollections for purposes of an eventual biography and magazine series.
One sort of understood previously that there were a lot of fascists in Peronista Argentina, but one did not know that the Argentine government was aware of but denied that Mengele was there.
Being weaned on a diet of propaganda about the greatness and value of Konrad Adenauer and his West German Government, one did not know that former Nazi officials were one-third of his cabinet, a quarter of the legislature (the Bundestag), much of the civil service, the judiciary and the foreign ministry, numbered eight ambassadors, included Hans Globke, who was Adenauer’s national security adviser, a major figure in West German intelligence, and it’s chief liaison with the CIA, but who had also been the writer of the Nazi interpretation of law that had “stripped German Jews of their citizenship,” and also included Theodore Oberlander, a former Waffen SS officer “who had once demanded the extermination of the Slavic people” but (ironically) was now Adenauer’s minister for refugees.
Perhaps it is little wonder that there had been an outbreak in anti-Semitic acts in Germany in the late 1950s and a party with pro-Nazi sympathies was gaining ground then.
Naturally, Adenauer, and Germany had no interest in revelation of the Nazi pasts of so many German officials. So, though one hadn’t known it until now, the German government had no interest in catching Eichmann or in seeing him brought to trial. For this might have caused all the German Kurt Waldheims to be revealed (if you remember Waldheim).
Nor did one know that the United States had absolutely no interest in catching Eichmann. During the 1950s the U.S. was completely absorbed in the Cold War and in stopping the Russians. Many former Nazis who had worked for Eichmann were spying for us, the CIA had ties to Globke, and though Bascomb doesn’t mention it, we were using the Nazis’ rocket scientists, like Wernher von Braun, to build our ICBMs. (One wonders what future historians will one day say about this. Do you, by the way, remember Tom Lehrer’s lines: “I just send them up. It’s not my business where they come down, says Wernher von Braun.) There was no American desire to catch a horrendous Nazi war criminal whose arrest and trial might put a spotlight on America’s ties to Nazis.
Nor, remarkably enough, did Israel have much of an interest in trying to find Eichmann. Its clandestine service, the now feared Mossad, was at the time relatively new and tiny. It could not check out every rumor which arose -- there were many, mostly wrong -- about the alleged whereabouts of Eichmann, Mengele, Bormann and other Nazi criminals. Israel faced existential threats from Egypt and other Arab countries; the state and the intelligence service had to deal with those. The Holocaust was a subject too painful to discuss for the quarter of the population who were survivors; they rarely spoke of it and did not want to focus on it.
That a few people -- Simon Wiesenthal, German prosecutor Fritz Bauer (who was Jewish) and some others -- persevered in looking for Eichmann in the face of the disinterest of various countries is a fairly remarkable story. But they did persist, and eventually word reached Israel’s Prime Minister, David Ben Gurion, of a solid tip that Eichmann was in Argentina and of precisely where he was located. Ben Gurion authorized the Mossad to capture him and bring him back to Israel to stand trial.
Ben Gurion knew that it was necessary not to allow the world, or the Israelis themselves, especially the young, to forget what the Nazis had done, and to remind the world to be on guard against future repetitions. “The world,” as Bascomb puts it, “would be forced to remember the assembly line of death that the Jews had faced -- and it would be reminded that such horrors must never be allowed to be repeated.”
When the Israelis had Eichmann in captivity, he made some points (as he had to the Dutch writer) that stick with one. As has become proverbial for the Nazis, he insisted he had done the right thing because he was simply following orders. He did not himself make the decisions for death, he insisted, but was commanded to carry them out and did as he was ordered. ‘“[A]s a recipient of orders, I had no choice but to carry [them] out.”’ He had thereby served the cause of the German people, and was proud that he had done his job well. As he told his Dutch biographer with regard to Holland: “‘I sent my boxcars to Amsterdam and most of the 140,000 Dutch Jews were directed for the gas chambers at Bergen-Belsen, Sobibor and Auschwitz . . . . It went beautifully!’”
Eichmann’s trial had various effects, some perhaps foreseen by Ben Gurion. Let me quote from Bascomb:
David Ben-Gurion had achieved his ambition. The trial had a profound impact on Israel. It unified the country in a way it had not been unified since the 1948 war. It educated the Israeli public, particularly the young, on the true nature of the Holocaust. And, after sixteen years of silence, it allowed survivors to openly share their experiences. The trial also reinforced to Israelis that a sovereign state for Jews was essential for their survival.
As for the rest of the world, the Eichmann affair rooted the Holocaust in the collective cultural consciousness. The intensive coverage and the wave of Eichmann biographies and fantastic accounts of his capture contributed to the process.
* * * * *
The Holocaust was finally anchored in the world’s consciousness -- never to be forgotten -- by the outpouring of survivor memoirs, scholarly works, plays, novels, documentaries, paintings, museum exhibits, and films that followed in the wake of the trial and that still continues today. This consciousness, in Israel and throughout the world, is the enduring legacy of the operation to capture Adolf Eichmann.
* * * * *
Bauer and his fellow West German prosecutors arrested a host of former Nazis implicated in the atrocities, including several of Eichmann’s deputies. Right up to his death in 1968, the Hesse attorney general cracked down on German fascist groups and campaigned vigorously to unseat former Nazis from power, including Globke. He continued to prosecute war crimes, most famously in the 1963 Auschwitz trials.
I would add my understanding (which is correct, is it not?) that the Eichmann trial caused German youth to begin asking their elders the now proverbial question “What did you do during the war?” i.e., began the questioning, of prior actions, which helped importantly in making Germany the free, peaceful and democratic nation it is today.
In America the Eichmann trial seems to have had an enduring legacy, comprised of vastly increased attention to the Holocaust by both Jews and non-Jews. This is captured in the second of the two quotes above, the one which begins “The Holocaust was finally anchored in the world’s consciousness.” Perhaps it has not been sufficiently anchored in the world’s consciousness, because we have since had other mass slaughters in the former Yugoslavia, Darfur and Rwanda. And those who oppose Israel for going too far seem not cognizant that the “race memory” of destruction -- for millennia, actually -- is likely one of the things driving Israel (at least in my (perhaps limited) opinion). But notwithstanding that its memory was not sufficient to stop later holocausts in Yugoslavia, Darfur and Rwanda, the Holocaust is lodged deeply in much of the world’s memory now, as is the idea that the Eichmannesque justification, the Naziesque justification, that one was just following orders is not permissible, is no justification, when people do evil.
Thus, one of the lessons of Hunting Eichmann is that much that was valuable occurred when something was done which several nations had had no desire to see done - - neither Germany, nor the US, nor even Israel had had much of an interest in catching and trying Eichmann and, in some instances, as Bascomb discusses, had resisted or declined efforts to pursue him because leaders or officials of the nations had thought pursuit, trial and punishment of Eichmann would not fit national interests. History has shown, I believe, that the leaders and officials who thought this, who resisted or declined efforts to bring this evildoer to justice, were wrong.