Defense of the Nurenberg Defense
Harvey Silverglate, a civil liberties attorney and a board member of the Massachusetts ACLU, made an unapologetic argument for the I vas only following orders defense in yesterday's Boston Globe, apparently by rewriting US and international laws on torture, all by himself:
[H]owever disturbing the DOJ torture memos are, they are far from anything seen in the Nazi and Soviet eras. They approve the infliction of terror and pain, but not disfigurement and death.
Funny, I must have missed that hair-slicing footnote in Article 3 of the 3rd Geneva Convention, which describes prohibited acts against prisoners of war (emphasis mine):
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; ...
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
Silverglate continues:
A CIA agent, operating in good faith, could readily consider such DOJ advice to be a binding legal opinion that he could safely follow.
Ah, there it is — the good ol' I vas only following orders defense. Too bad Silverglate was born a few decades too late to help these waterboarders:
As a result of such accounts [of Japanese soldiers waterboarding US prisoners], a number of Japanese prison-camp officers and guards were convicted of torture that clearly violated the laws of war. They were not the only defendants convicted in such cases. As far back as the U.S. occupation of the Philippines after the 1898 Spanish-American War, U.S. soldiers were court-martialed for using the "water cure" to question Filipino guerrillas.
And then Silverglate makes this assertion (incredulous emphasis mine):
And in our legal system, based on an ancient Anglo-Saxon moral and legal tenet incorporated into our own criminal codes, a wrongdoer may be punished only if he knowingly and intentionally committed an act that he believed to be illegal.
Is that true? I'm no lawyer, but I've always heard that ignorance of the law is no defense. If it is true, we owe apologies to all the families of those obedient Germans we punished at Nurenberg.
Comments
I'm afraid to say that Harvey must have thought since they were Arabs it was ok.
Posted by: Lev | April 26, 2009 05:53 PM
That wouldn't surprise me, Lev. His argument makes no sense.
Posted by: abi | April 26, 2009 07:44 PM