[News] Washington Breaks Out the “Just Following Orders” Nazi Defense for CIA Director-Designate Gina Haspel

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Thu Mar 15 11:23:03 EDT 2018


https://theintercept.com/2018/03/15/washington-breaks-out-the-just-following-orders-nazi-defense-for-cia-director-designate-gina-haspel/ 



  Washington Breaks Out the “Just Following Orders” Nazi Defense for CIA
  Director-Designate Gina Haspel

Jon Schwarz - March 15, 2018
------------------------------------------------------------------------

_During the Nuremberg Trials_ after World War II, several Nazis, 
including top German generals Alfred Jodl and Wilhelm Keitel, claimed 
they were not guilty of the tribunal’s charges because they had been 
acting at the directive of their superiors.

Ever since, this justification has been popularly known as the 
“Nuremberg defense,” in which the accused states they were “only 
following orders.”

The Nuremberg judges rejected the Nuremberg defense, and both Jodl and 
Keitel were hanged. The United Nations International Law Commission 
later codified the underlying principle 
<https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/52d68d14de6160e0c12563da005fdb1b/3a0ef64882993569c125641e004ab014?OpenDocument> 
from Nuremberg as “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.”

This is likely the most famous declaration in the history of 
international law and is as settled as anything possibly can be.

However, many members of the Washington, D.C. elite are now stating that 
it, in fact, /is/ a legitimate defense for American officials who 
violate international law to claim they were just following orders.

Specifically, they say Gina Haspel, a top CIA officer whom President 
Donald Trump has designated to be the agency’s next director, bears no 
responsibility for the torture she supervised during George W. Bush’s 
administration.

Haspel oversaw 
<https://www.propublica.org/article/cia-cables-detail-its-new-deputy-directors-role-in-torture> 
a secret “black site” in Thailand, at which prisoners were waterboarded 
and subjected to other severe forms of abuse. Haspel later participated 
in the destruction of the CIA’s videotapes of some of its torture 
sessions. There is informed 
<https://www.huffingtonpost.com/sam-husseini/what-both-sides-are-ignor_b_6315678.html> 
speculation 
<https://www.libertarianinstitute.org/blog/gina-haspel-lied-us-iraq-war-ii/> 
that part of the CIA’s motivation for destroying these records may have 
been that they showed operatives employing torture to generate false 
“intelligence” used to justify the invasion of Iraq.

John Kiriakou, a former CIA operative who helped capture many Al Qaeda 
prisoners, recently said 
<https://www.democracynow.org/2018/3/14/she_tortured_just_for_the_sake> 
that Haspel was known to some at the agency as “Bloody Gina” and that 
“Gina and people like Gina did it, I think, because they enjoyed doing 
it. They tortured just for the sake of torture, not for the sake of 
gathering information.” (In 2012, in a convoluted case 
<https://www.motherjones.com/politics/2012/01/john-kiriakou-cia-leak-investigation/>, 
Kiriakou pleaded guilty 
<http://investigations.nbcnews.com/_news/2012/10/22/14626249-ex-cia-agent-pleads-guilty-to-leaking-identity-of-covert-operative?lite&ocid=msnhp> 
to leaking the identity of a covert CIA officer to the press and spent a 
year in prison.)

Some of Haspel’s champions have used the exact language of the popular 
version of the Nuremberg defense, while others have paraphrased it.

One who paraphrased it is Michael Hayden, former director of both the 
CIA and the National Security Agency. In a Wednesday op-ed 
<http://thehill.com/opinion/national-security/378378-we-need-gina-haspel-at-the-cia>, 
Hayden endorsed Haspel as head of the CIA, writing that “Haspel did 
nothing more and nothing less than what the nation and the agency asked 
her to do, and she did it well.”

Hayden later said on Twitter 
<https://twitter.com/GenMhayden/status/973994954522595329> that Haspel’s 
actions were “consistent with U.S. law as interpreted by the department 
of justice.” This is true: In 2002, the Office of Legal Counsel at the 
Justice Department declared in a series of notorious memos 
<https://www.therenditionproject.org.uk/documents/torture-docs.html> 
that it was legal for the U.S. to engage in “enhanced interrogation 
techniques” that were obviously torture. Of course, the actions of the 
Nuremberg defendants had also been “legal” under German law.

John Brennan, who ran the CIA under President Barack Obama, made similar 
remarks on Tuesday when asked about Haspel. The Bush administration had 
decided that its torture program was legal, said Brennan 
<https://www.usatoday.com/story/news/2018/03/13/gina-haspel-trump-nominee-first-woman-leader-cia/419547002/>, 
and Haspel “tried to carry out her duties at CIA to the best of her 
ability, even when the CIA was asked to do some very difficult things.”

Texas Republican Rep. Will Hurd used the precise language of the 
Nuremberg defense during a Tuesday appearance on CNN when Wolf Blitzer 
asked him to respond to a statement from Sen. John McCain, R-Ariz.: “The 
Senate must do its job in scrutinizing the record and involvement 
of Gina Haspel in this disgraceful program.”

Hurd, a member of the House Intelligence Committee and a former CIA 
operative as well, told Blitzer that “this wasn’t Gina’s idea. She was 
following orders. … She implemented orders and was doing her job.”

Hurd also told Blitzer, “You have to remember where we were at that 
moment, thinking that another attack was going to happen.”

This is another defense that is explicitly illegitimate under 
international law. The U.N. Convention Against Torture, which was 
transmitted <http://www.presidency.ucsb.edu/ws/?pid=35858> to the Senate 
by Ronald Reagan in 1988, states 
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx> that “no 
exceptional circumstances whatsoever, whether a state of war or a threat 
or war, internal political instability or any other public emergency, 
may be invoked as a justification of torture.”

Notably, Blitzer did not have any follow-up questions for Hurd about his 
jarring comments.

Samantha Winograd, who served on President Obama’s National Security 
Council and now is an analyst for CNN, likewise used Nuremberg defense 
language in an appearance on the network. Haspel, she said 
<http://www.cnn.com/TRANSCRIPTS/1803/13/cnr.06.html>, “was implementing 
the lawful orders of the president. … You could argue she should have 
quit because the program was so abhorrent. But she was following orders.”

Last but not least there’s Rich Lowry, editor of National Review, who 
issued a ringing defense of Haspel in Politico, claiming 
<https://www.politico.com/magazine/story/2018/03/14/gina-haspel-bork-rich-lowry-217639> 
she was merely acting “in response to what she was told were lawful orders.”

Remarkably, this perspective has even seeped into the viewpoint of 
regular journalists. At a recent press conference at which Kentucky 
Republican Sen. Rand Paul criticized Haspel, a reporter asked him 
<https://twitter.com/i/broadcasts/1ZkKzVvDdEZKv> to respond to “the 
counterargument” that “these policies were signed off by the Bush 
administration. … They were considered lawful at the time.”

It fell to Paul to make the obvious observation that appears to have 
eluded almost everyone else in official Washington: “This has been 
historically a question we’ve asked in every war: Is there a point at 
which soldiers say ‘no’? … Horrendous things happened in World War II, 
and people said, well, the German soldiers were just obeying orders. … I 
think there’s a point at which, even suffering repercussions, that if 
someone asks you to torture someone that you should say no.”

(Thank you to @jeanbilly545 
<https://twitter.com/jeanbilly545/status/973979444930105344> and Scott 
Horton <https://scotthorton.org/> for telling me about Hurd and Paul’s 
remarks, respectively.)

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