Yoo, Addington and the Reich Ministry Justice case
I've been thinking a bit more about Obama's historic Executive Order banning torture yesterday and in particular this bit:"From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2 22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document, Army Field Manual 34 52 issued by the Department of Justice between September 11, 2001, and January 20, 2009."Did Obama just put Yoo et al on notice that they're open to war crimes charges and let those in the CIA, Justice Dept. etc. who didn't speak out against their orders know that there's no legal cover in any of the Bush legal team's judgements?
The relevant case history and precedent would be the Justice Trial at Nuremberg - which raised the issue of what responsibility judges and posecutors might have for enforcing grossly unjust but arguably binding laws - and especially Nuremberg's United States v. Altstoetter, also called the Reich Justice Ministry case.That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.That quote from the linked explanation of the Reich Ministry Case and how it would apply to John Yoo, David Addington and others is by Scott Horton and appears on "Balkanization" blog. His co-blogger there, Marty Lederman, has recently been appointed to be Obama's Deputy Assistant Attorney General in the Office of Legal Counsel. Two guest bloggers at balkanization have also accepted senior postions in Obama's OLC.
War Crimes Trials Ahead?
It sure is beginning to look like there could be...