How Bush's new torture bill eviscerates the promise of Nuremberg.

The law, lawyers, and the court.
Sept. 26 2006 5:15 PM

Forget Nuremberg

How Bush's new torture bill eviscerates the promise of Nuremberg.

(Continued from Page 1)

A compromise left the international status of Nuremberg law ambiguous—the tribunal's jurisdiction covered only the Axis countries, but nowhere does the charter suggest that the crimes it was trying were only crimes if committed by the Axis powers. Because of this ambiguity, the status of the Nuremberg principles as international law was not established until 1950, when the U.N. General Assembly proclaimed seven Nuremberg Principles to be international law. The American agenda had finally prevailed.

Well, forget all that as well. The Nuremberg Principles, like the entire body of international humanitarian law, will now have no purchase in the war-crimes law of the United States. Who cares whether they were our idea in the first place? Principle VI of the Nuremberg seven defines war crimes as "violations of the laws or customs of war, which include, but are not limited to ... ill-treatment of prisoners of war." Forget "customs of war"—that sounds like customary international law, which has no place in our courts anymore. Forget "ill-treatment"—it's too vague. Take this one: Principle II, "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." Section 8(a)(2) sneers at responsibility under international law. Or Principle IV: "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." Moral, shmoral. The question is, do you want the program or don't you?

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The Nuremberg trials presupposed something about the human conscience: that moral choice doesn't take its cues solely from narrow legalisms and technicalities. The new detainee bill takes precisely the opposite stance: Technicality now triumphs over conscience, and even over common sense. The bill introduces the possibility for a new cottage industry: the jurisprudence of pain. It systematically distinguishes "severe pain"—the hallmark of torture—from (mere) "serious" pain—the hallmark of cruel and degrading treatment, usually thought to denote mistreatment short of torture. But then it defines serious physical pain as "bodily injury that involves ... extreme physical pain." To untutored ears, "extreme" sounds very similar to "severe"; indeed, it sounds even worse than "severe." But in any case, it certainly sounds worse than "serious." Administration lawyers can have a field day rating painful interrogation tactics on the Three Adjective Scale, leaving the rest of us to shake our heads at the essential lunacy of the enterprise.

And then there is section 8(3), which says that "the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions." Section (B) makes it clear that his interpretation "shall be authoritative (as to non-grave breach provisions)."

On Aug. 1, 2006, The Onion ran a story headlined "Bush Grants Self Permission To Grant More Power to Self." It began: "In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers." It ended thusly: "Republicans fearful that the president's new power undermines their ability to grant him power have proposed a new law that would allow senators to permit him to grant himself power." How life imitates art! In the end, the three courageous Republican holdouts didn't want the president unilaterally trashing Geneva. Now it turns out that the principle they were fighting for was simply Congress' prerogative to grant him the unreviewable power to do so.

This article is based on an earlier posting at Balkinization.

David Luban is professor of law and philosophy at Georgetown University Law Center.

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