American Diplomats Advocated 'Nuremberg Defense'

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

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.

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