Scott Horton / Los Angeles Times – 2005-01-24 09:22:37

http://www.latimes.com/news/opinion/commentary/la-oe-horton20jan20,1,3028883,print.story?coll=la-news-comment-opinions&ctrack=3&cset=true

(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’s Nuremberg Defense
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.

Hitler’s Wehrmacht Chief Called the Geneva Accords ‘Obsolete’
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, US 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 is a New York attorney and a lecturer in international humanitarian law at Columbia University.