(All indented paragraphs are partial quotes from, or are based on portions of, the Judgment at Nuremberg film script, screen play by Abby Mann.)
Sixty-three years ago (1947), the United States conducted a trial examining the issue of individual complicity of justice officials in crimes committed while in the service of the German state. This trial was memorialized in a fictionalized film (1961), entitled, “Judgment at Nuremberg.” Considering recent statements made by former DOJ lawyer John Yoo and several others1 justifying (redefining) torture and the reach of executive power, it is disturbingly déjà vu to revisit the film. If we were to remake it today and title it “Judgment at Guantánamo” (or Abu Ghraib, or Washington, or [redacted] Secret CIA Prison), the script would have disquieting parallels—not in the degree of the crimes, but in the authoritarian, nationalistic mentality that leads one to justify uncivilized behaviors.
How far and deep, in the coming years, will these legal and constitutional factures run? Will we, in time, have our own “Ernst Jannings” confess:
My counsel would have you believe, we were not aware of torture. Of secret prisions. Of kidnappings, renditions, assassinations. Not aware?! Where were we?
Where were we when torture advocates began justifying it in the press—even in our very own Congress? Where were we when our newscasts and magazines published damning photographs? Where were we when torture logs were published? When witnesses testified before Congress or in publications? Where were we when advocates of justice and humanity cried out in warning? Were we deaf? Dumb? Blind?
My counsel says we were not aware of the extent of torture used. Not aware of deaths. Of secret prisions. Of kidnappings, renditions, assassinations. He would give you the excuse we were only aware of one or two unfortunate cases. Does that make us any the less guilty? Maybe we didn’t know the details. But if we didn’t know, it was because we didn’t want to know. Didn’t want to admit that many of our so-called enemy combatants were entirely innocent. Or even worse, discounted—justified—our own crimes because others’ crimes were so incomparably worse! Because our “good” intentions justified every means!
And will we, in time, have another Judge Haywood say:
The charge is that of conscious participation in a government-sanctioned system of cruelty and injustice in violation of every moral and legal principle known to all civilized nations. The tribunal has carefully studied the record and found therein abundant evidence to support beyond a reasonable doubt the charges against these defendants.
Defense Counsel, in their very skillful defense, have asserted that there are others who must share the ultimate responsibility for what happened. There is truth in this. The real complaining party at the bar in this courtroom is civilization. But this tribunal finds that the accused in the dock are responsible for their actions. Men and women who took part in the enactment of laws and decrees the purpose of which was the torture of human beings. Men and women who, in executive positions, actively participated in the enforcement of these “laws,” illegal under both U.S. and international law. The principle of criminal law in every civilized society has this in common: Any person who sways another to commit torture or murder—any person who furnishes the order for the purpose of the crime—any person who is an accessory to the crime is guilty.
Defense counsel further asserts that the defendants were exceptional lawyers and officials and acted in what they thought was the best interest of their country. There is truth in this also. But this trial has shown that under a national crisis ordinary, even able and extraordinary men and women, can delude themselves into the commission of crimes so heinous that they beggar the imagination. No one who has sat through this trial can ever forget them. How easily it can happen.
There are those in our own country too, who today speak of the protection of country—of survival. A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then it seems that the only way to survive is to use the means of the enemy—to rest survival upon what is expedient—to look the other way. The answer to that is: Survival as what? A country isn’t a rock. It’s not an extension of one’s self. It’s what it stands for. It’s what it stands for when standing for something is the most difficult. Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: Justice, truth, and the value of a single human being.
And will we, as a people, eventually come to say:
Judge Haywood, we wanted to tell you, we never knew it would come to what it did. You must believe it.
Only to hear our Judge reply:
It came to that the first time you justified the torture of another human being.
1. Including former VP, Dick Cheney and former senior adviser and deputy chief of staff, Karl Rove. See also, References section at http://en.wikipedia.org/wiki/John_Yoo for various writings and opinions.