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<div class="header reader-header" style="display: block;"> <font
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href="https://theintercept.com/2018/03/15/washington-breaks-out-the-just-following-orders-nazi-defense-for-cia-director-designate-gina-haspel/">https://theintercept.com/2018/03/15/washington-breaks-out-the-just-following-orders-nazi-defense-for-cia-director-designate-gina-haspel/</a></font>
<h1 class="reader-title">Washington Breaks Out the “Just
Following Orders” Nazi Defense for CIA Director-Designate Gina
Haspel</h1>
<div class="credits reader-credits">Jon Schwarz - March 15, 2018<br>
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<p><u>During the Nuremberg Trials</u> 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.</p>
<p>Ever since, this justification has been popularly
known as the “Nuremberg defense,” in which the accused
states they were “only following orders.”</p>
<p>The Nuremberg judges rejected the Nuremberg defense,
and both Jodl and Keitel were hanged. The United
Nations International Law Commission later codified
the <a
href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/52d68d14de6160e0c12563da005fdb1b/3a0ef64882993569c125641e004ab014?OpenDocument">underlying
principle</a> 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.”</p>
<p>This is likely the most famous declaration in the
history of international law and is as settled as
anything possibly can be.</p>
<p>However, many members of the Washington, D.C. elite
are now stating that it, in fact, <em>is</em> a
legitimate defense for American officials who violate
international law to claim they were just following
orders.</p>
<p style="display: inline;" class="readability-styled">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.</p>
<p>Haspel <a
href="https://www.propublica.org/article/cia-cables-detail-its-new-deputy-directors-role-in-torture">oversaw</a>
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 <a
href="https://www.huffingtonpost.com/sam-husseini/what-both-sides-are-ignor_b_6315678.html">informed</a>
<a
href="https://www.libertarianinstitute.org/blog/gina-haspel-lied-us-iraq-war-ii/">speculation</a>
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.</p>
<p>John Kiriakou, a former CIA operative who helped
capture many Al Qaeda prisoners, <a
href="https://www.democracynow.org/2018/3/14/she_tortured_just_for_the_sake">recently
said</a> 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 <a
href="https://www.motherjones.com/politics/2012/01/john-kiriakou-cia-leak-investigation/">convoluted
case</a>, Kiriakou <a
href="http://investigations.nbcnews.com/_news/2012/10/22/14626249-ex-cia-agent-pleads-guilty-to-leaking-identity-of-covert-operative?lite&ocid=msnhp">pleaded
guilty</a> to leaking the identity of a covert CIA
officer to the press and spent a year in prison.)</p>
<p>Some of Haspel’s champions have used the exact
language of the popular version of the Nuremberg
defense, while others have paraphrased it.</p>
<p>One who paraphrased it is Michael Hayden, former
director of both the CIA and the National Security
Agency. In a <a
href="http://thehill.com/opinion/national-security/378378-we-need-gina-haspel-at-the-cia">Wednesday
op-ed</a>, 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.”</p>
<p>Hayden later said <a
href="https://twitter.com/GenMhayden/status/973994954522595329">on
Twitter</a> 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 <a
href="https://www.therenditionproject.org.uk/documents/torture-docs.html">notorious
memos</a> 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.</p>
<p>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, <a
href="https://www.usatoday.com/story/news/2018/03/13/gina-haspel-trump-nominee-first-woman-leader-cia/419547002/">said
Brennan</a>, 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.”</p>
<p>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.”</p>
<p>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.”</p>
<p>Hurd also told Blitzer, “You have to remember where
we were at that moment, thinking that another attack
was going to happen.”</p>
<p>This is another defense that is explicitly
illegitimate under international law. The U.N.
Convention Against Torture, which was <a
href="http://www.presidency.ucsb.edu/ws/?pid=35858">transmitted</a>
to the Senate by Ronald Reagan in 1988, <a
href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx">states</a>
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.”</p>
<p>Notably, Blitzer did not have any follow-up questions
for Hurd about his jarring comments.</p>
<p> </p>
<p>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, <a
href="http://www.cnn.com/TRANSCRIPTS/1803/13/cnr.06.html">she
said</a>, “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.”</p>
<p>Last but not least there’s Rich Lowry, editor of
National Review, who issued a ringing defense of
Haspel in Politico, <a
href="https://www.politico.com/magazine/story/2018/03/14/gina-haspel-bork-rich-lowry-217639">claiming</a>
she was merely acting “in response to what she was
told were lawful orders.”</p>
<p>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 <a
href="https://twitter.com/i/broadcasts/1ZkKzVvDdEZKv">asked
him</a> to respond to “the counterargument” that
“these policies were signed off by the Bush
administration. … They were considered lawful at the
time.”</p>
<p>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.”</p>
<p>(Thank you to <a
href="https://twitter.com/jeanbilly545/status/973979444930105344">@jeanbilly545</a> and
<a href="https://scotthorton.org/">Scott Horton</a>
for telling me about Hurd and Paul’s remarks,
respectively.)</p>
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