This may be a another “Quote of the Day” post, but it is primarily a story about how our well paid American journalists, pundits and other assorted members of the commentariat have failed us miserably in the current debate on torture, or to be blunt, the lack thereof.
Case in point: Megan McArdle is a paid journalist who writes the aptly named “Asymmetrical Information” column for Atlantic.com the online edition of Atlantic Monthly. She took offense at a Glenn Greenwald column at Salon.com which made the well reasoned and well documented argument that the American media has essentially ignored the revelations about the role played by John Yoo, now a professor at Boalt Hall, the School of Law at the University of California, Berkeley, but previously a lawyer with the Department of Justice who wrote the now infamous 81 page “torture memorandum” in 2003 which was used by the Bush administration to justify the use off what it blithely referred to as “enhanced interrogation techniques” with respect to people it held in detention as “enemy combatants.”
Despite that euphemism, everyone else with a shred of conscience and half a brain clearly recognized that what Yoo’s memo justified was torture and abusive treatment in violation of American law, both statutory and the 8th Amendment constitutional prohibition against cruel and unusual treatment. The actions Yoo tried, and failed, to justify (but which Bush authorized anyway) were also clearly violations of various “quaint” international laws including the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, a UN sponsored treaty signed by former President Reagan and approved by the Senate, thus making it the law of this land. The one we like to call the land of the free and the home of the brave. You know, the United States of America, that Shining City on the Hill, that exceptional moral guide and template par excellence for the rest of the world.
Glenn rightly pointed out that as of April 5th, over the prior 30 days there had been 102 stories in the media that mentioned John Yoo and torture. By contrast, over that same period of time, there had been 1,043 stories that referred to Obama and bowling, 1,607 that referred to Obama and patriotism, and 1,079 that referred to Clinton and Lewinsky (a story from ten years ago that was suddenly again more newsworthy than any discussion of torture because it involved Bill Clinton). Glenn found this incredible disparity in the media appalling, as do I. Ms. McArdle, on the other hand, took Glenn to task for daring to accuse “[o]ur nation’s coddled, insulated journalist class” (Glenn’s words) of having misguided priorities when it comes to making decisions about which stories are newsworthy. In her April 7th column she said the following in defense of her “profession:”
Americans care more about [Obama] than John Yoo because, well, John Yoo isn’t running for president. Indeed, if one in ten Americans had even heard of John Yoo, I would be shocked, because most people don’t care about minor government functionaries, no matter how pivotal their role may be in screwing up the world.
One wonders how she knows that more American care about Obama’s bowling scores than torture perpetrated by our government. Is she psychic? Does she do extensive polling on the issue? Of course, maybe more Americans care more about Obama and phony stories regarding his bowling prowess and alleged lack of patriotism because that is what journalists and their news organizations have chosen to emphasize in their reporting. After all, it’s well known that the media’s reporting about Iraq has diminished substantially over the last two years based on no other reason than that the poohbahs of the journalistic class have decided Americans don’t want to know anything about Iraq anymore other than the “happy news” put out by Pentagon PR types and other Bush officials.
Yet the above cited statement, bad as it is, wasn’t the quote from Ms. McArdle that really caught my eye, and made me see red. No that came in the comments section of her subsequent column on April 8th, a column in which she again tried to portray Glenn Greenwald as a naive boob for criticizing her defense of journalistic integrity in choosing to focus on trivial and ultimately inconsequential stories rather than substantive issues such as torture. You see, Megan McArdle doesn’t believe citing the Nuremberg trials is relevant to any discussion regarding the significance of the torture perpetrated by the Bush administration and justified by the great legal mind of John Yoo, because in her “understanding” most international law experts consider the Nuremberg trials nothing more than “show trials.”
Here is the context. An individual using the pseudonym “wj” in attempting to clarify the importance of John Yoo’s involvement in the Bush torture regime, posted the following comment to her April 8th column:
[Y]ou might want to check out the judgements made in the war crimes trials after WW II.
Those who “just gave legal advice” which justified actions which were held to be war crimes were held to be among those responsible for said war crimes. And the tortures (or, if you prefer, “enhanced interrogation techniques”) done following Yoo’s legal analysis were among the actions held, there, to be war crimes.
Ergo, following legal precedent established by the United States, Yoo could be convicted of war crimes. You may not like it. You may think the judgements half a century ago were wrong, and the Nazi torturers should not have been convicted. But that’s how it is.
Here is Megan McArdle’s brief but oh so “knowledgeable” response to the above comment:
Mmmm . . . I am in no way unhappy with the outcome of Nuremberg, but my understanding is that most international lawyers regard them basically as show trials. I’m not sure they’re a great example to use.
Posted by Megan McArdle | April 8, 2008 1:48 PM
Consider that for a moment. Megan McArdle, on no other authority other than her “understanding” of what most international lawyers think essentially compares the Nuremberg Trials, one of the seminal events in the history of human rights and the development of international law, as nothing more than “show trials” not worthy of being raised in any argument as to the culpability of John Yoo with respect to enabling the Bush administration to pursue its policy of the deliberate use of torture. Ms. McArdle claims no particular proficiency in legal matters (she says she covers economic policy, implying that economics is her area of expertise), yet she feels comfortable comparing the Nuremberg Tribunal and the trials of the leading Nazi officials after the end of World War II to show trials!
To paraphrase an old SNL routine, Megan you Ignorant Idiot! You don’t know show trials from the hole in your apparently vast and empty brain case. Here’s a brief description of a real show trial held in the former Soviet Union under Stalin for your edification:
An old Bolshevik, Krestinsky had been a member of the first Politburo. Under Lenin, he served for a time as secretary of the Central Committee. The exchange in the courtroom on 2 March is worth quoting. At this stage in the proceedings, the President of the Court, V. Ulrich is asking the accused whether they plead guilty to the charges. All reply in the affirmative until:
The President: Accused Krestinsky, do you plead guilty to the charges brought agalnst you?
Krestinsky: I plead not guilty. I am not a Trotskyite. I was never a member of the bloc of Rights and Trotskyites, of whose existence I was not aware. Nor have I commltted any of the crimes with which I personally am charged, in particular I plead not guilty to the charge of having had connections wlth the German intelligence service.
The President: Do you corrobarate the confession you made at the preliminary investigation?
Krestinsky: Yes, at the preliminary investigation I confessed, but I have never been a Trotskyite.
The President: I repeat the question, do you plead guilty?
Krestinsky: Before my arrest I was a member of the Communist Party of the Soviet Union (Bolsheviks) and I remain one now.
The President: Do you plead guilty to the charge of participating in espionage activities and of participating in terrorist activities?
Krestinsky: I have never been a Trotskyite, I have never belonged to the bloc of Rights and Trotskyites and have not committed a single crime.
On the following day, Krestinsky pleaded guilty to the charges:
Krestinsky: Yesterday, under the influence of a momentary keen feeling of false shame, evoked by the atmosphere of the dock and the painful impression created by the public reading of the indictment, which was aggravated by my poor health, I could not bring myself to tell the truth, I could not bring myself to say that I was guilty. And instead of saying, “Yes, I am guilty,” I almost mechanically answered, “No, I am not guilty.”
Krestinsky: In the face of world public opinion, I had not the strength to admit the truth that I had been conducting a Trotskyite struggle all along. I request the Court to register my statement that I fully and completely admit that I am guilty of all the gravest charges brought against me personally, and that I admit my complete responsibility for the treason and treachery I have committed.
Vyshinsky preferred to be on the safe side. Krestinsky was executed . . .
You see at a show trial no evidence is necessary because the defendants invariably confess their crimes! And why do they do this? What causes them to fore go any purported rights they supposedly have to defend themselves in Court against the charges in the indictment by the State? The answer is so easy that I think even Megan McArdle can understand it:
There is no doubt that torture was used to force confessions. Though by no means uncommon earlier, torture only became an approved method of examination during the investigations leading up to the first Moscow trial. On 29 July, 1936, an official, albeit secret, document was drawn up, sanctioning the use of “all means” to extract confessions. Krestinsky’s submission was clearly the result of a night of brutal torture. Naturally, psychological torture in the form of threats to relatives and the arrest of family members also played their part in the confessions.
You see in a “show trial” the guilt of the defendant is predetermined. Whatever means necessary to ensure a guilty verdict are employed, whether that includes the use of torture to extract confessions, the use of fraudulent evidence or the denial of the usual rights accorded to criminal defendants in civil societies, such as the right to cross examine witnesses called by the prosecution, the right to present their own witnesses in their defense or the right to a counsel of their own choosing. Now let’s examine the procedures under which the Nuremberg trial were conducted. They can be found in Article 16 of the Charter of the International Military Tribunal established as the basis for the Nuremberg Tribunal:
In order to ensure fair trial for the defendants, the following procedure shall be followed:
(a) [The] Indictment shall include full particulars specifying in detail the charges against the defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the defendant at a reasonable time before the Trial.
(b) During any preliminary examination or trial of a defendant he shall have the right to give any explanation relevant to the charges made against him.
(c) A preliminary examination of a defendant and his trial shall be conducted in, or translated into, a language which the defendant understands.
(d) A defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of counsel.
(e) A defendant shall have the right through himself or through his counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution….
And indeed, these procedures were followed to the letter at each trial which was conducted at Nuremberg. In fact, most defendants pleaded not guilty, were given prior access to the evidence against them, cross examined prosecution witnesses, presented their own witnesses in their defense, and often testified themselves on their own behalf. Very few defendants confessed, and there is no evidence that torture was ever employed by the Allied powers to extract confessions.
And surprise, surprise, the Nuremberg Tribunal did not convict every defendant charged with war crimes or crimes against humanity. Of the initial 18 high Nazi officials charged with the most egregious crimes, three were actually acquitted. Let me belabor that point. Defendants indicted and brought before the International Military Tribunal were acquitted. Show trials do not end in acquittals. Ever.
As for the legacy of Nuremberg, McArdle is wrong about that, as well. Indeed, in 1950, the United Nations International Law Commission adopted the Nuremberg Principles as the standard for future trials of individuals who commit war crimes and crimes against humanity. Here they are for Megan McArdle’s further education:
Under General Assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to “formulate the principles of international law recognized in the Charter of the Nüremberg Tribunal and in the judgment of the Tribunal.” In the course of the consideration of this subject the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nüremberg principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles (see Yearbook of the International Law Commission, 1950, Vol. II, pp. 374-378).
Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
Any person charged with a crime under international law has the right to a fair trial on the facts and law.
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
(b) War crimes:
Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.
Instead of being an insignificant event, the Nuremberg trials were essential to the furtherance of that body of international law which concerns itself with war and other crimes against humanity. Indeed, it was a seminal event in world history. Here is an excerpt from a speech given by Judge Philippe Kirsch, President of the International Criminal Court, on the occasion of the 60th anniversary of the Nuremberg trials, regarding their continuing relevance to our times:
This weekend we are marking the 60th anniversary of the judgment of the International Military Tribunal at Nuremberg. This Tribunal was followed by a series of trials carried out by the Allied powers in postwar Germany. We are here because together the Nuremberg trials constitute a historic moment in the development of international law. They were important in their own right as a response to the atrocities of the Second World War. At the same time, it would be right to say they gave rise to a new system of international criminal justice. This system includes national courts, ad hoc international and mixed tribunals and now the International Criminal Court. All of these institutions have their roots in Nuremberg. […]
The Nuremberg trials rested on two fundamental principles.
The first principle is that individuals can and should be held accountable for the most serious international crimes. The judgment of the Nuremberg Tribunal famously declared, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Ensuring accountability is important in itself, but it is also important because allowing impunity for widespread or systematic atrocities can have serious consequences for
The second principle is that individuals should only be punished through a fair trial which safeguards the rights of the accused. Here of course, we are reminded of Robert Jackson’s statement to the Tribunal: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”
The Nuremberg trials also declared many other important principles of procedural and substantive law. However, it is these two fundamental ideas – accountability and fair trials – which were at the core of the meaning of Nuremberg. These two ideas subsequently became the basis for the legacy of Nuremberg Trials.
It is these two fundamental principles established by the Nuremberg trials, which the Bush administration has attempted to evade, both in its treatment of the detainees it holds around the world, and also with respect to it’s use of torture against those detainees. Fair trials have never been offered to the detainees, only the bare bones of a “show trial” procedure in which evidence from confessions obtained by torture is permitted, and the rights of the “defendants” have been so eviscerated as to be meaningless.
However, even worse, has been the Bush administration’s attempts to avoid accountability for its actions in violating both American and International law with respect to its treatment of these detainees, many of them innocent civilians caught up in the sinister net of the Bush administration’s approach to fighting the so-called war on terror. America is now hated around the world as never before, because of those policies, policies for which John Yoo’s legal work at the Department of Justice both enabled and offered legal justifications.
This is the fundamental reason why Yoo’s story is so important, both in and of itself, and as part of the current coverage of the ongoing Presidential campaign. For Yoo’s actions formed the legal basis for the Bush administration’s use of torture techniques such as physical beatings, stress positions, sleep deprivation, exposure of prisoners to extremes of heat and cold, sexual humiliation and other worse actions such as the rape, sodomy and “extraordinary rendition” of those whom it held in captivity to countries where even worse punishments are administered in aid of “intelligence gathering.” “Enhanced interrogation techniques,” by the way, previously practiced by the KGB, the secret security arm of the Soviet Union, as described by Alexander Solzhenitsyn in his classic and damning examination of the Soviet Union’s justice system and its vast array of secret prisons and concentration camps to which political prisoners were consigned for punishment, The Gulag Archipelago.
And I, for one, happen to think that the presidential candidates ought to be asked about this story and what they intend to do about it if they are elected President, rather than the trivial slop we are currently being offered up on a daily basis by America’s finest political journalists. Slop such as, to quote two particularly recent and ridiculous examples, Hillary’s hunting prowess and Obama’s asking for orange juice instead of accepting a cup of coffee at a campaign stop. For the life of me I can’t see how those “news items” are of greater import than the issue of torture.
So Ms. McArdle the next time you attempt to deny the importance of the news story about the Bush administration’s torture regime, and in particular the actions of “minor functionaries” like John Yoo who made that regime possible by giving legal and political cover to monsters like Dick Cheney and George Bush, it behooves you to get your facts straight. That’s what journalists, even journalists who are nothing more than mediocre pundits/hack columnists at best, are supposed to do, isn’t it?