In his statement regarding the release of the shocking Department of Justice memos justifying America’s use of torture during the interrogation of terrorism suspects, President Obama said, “In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.”
I was entirely comfortable with the president’s decision, but I wondered about his silence regarding those who provided the legal advice. The country would not benefit from a prolonged legal proceeding against the CIA and other personnel who did the waterboarding and the other heinous acts described in the memos. Even the American Civil Liberties Union apparently agreed: In a recent e-mail soliciting support, Anthony Romero, the ACLU’s executive director, wrote, “We need your continued support to make sure those who broke the law by authorizing these heinous crimes are brought to justice.” In other words, it is those who authorized the crimes rather than those who directly perpetrated them who should be brought to justice.
That would be no small thing, since those who authorized the crimes include not only senior Department of Justice officials but also, it more than seems, the prior vice president of the United States; former secretaries of defense, justice and state, and, quite possibly, the previous president himself.
But whatever the disposition of future investigations and prosecutions, there is a very different issue raised by President Obama’s original formulation. It was simply too close to “I was just following orders” for comfort. Does there not come a point at which a soldier, or an interrogator or anyone whose conventional responsibility is to do as told is required instead to withhold consent? And: Is there a point at which an underling may say that an order, no matter how auspicious its source, is manifestly illegal?
The current issue is complicated by the flow of authority. The authors of the Department of Justice memoranda were responding to queries from agents in the field, some of whom seemed to be pressing for expansive definitions of the permissible while others were counseling restraint. CIA headquarters was also involved in managing what the agents did. And the actual perpetrators, it turns out, were contract employees; the torture was outsourced. So while ultimate responsibility for the “legal authorizations” is clear, the rest — who was ordering whom, and under what authority — is murky.
Which brings me back to the issue of moral responsibility. Here there is a mountain of precedent, going all the way back to the 15th century and accelerating rapidly after World War I. The claim of subalterns that they were “only” following orders had special prominence at the Nuremberg trials, so much so that the claim is now known as “the Nuremberg defense.” And the claim figured prominently in Israel’s early years, both at the Kafr Qassem trials and the Eichmann trial.
Kafr Qassem, 1956: On the eve of Israel’s invasion of Sinai, a special curfew was imposed on those areas of Israel inhabited by Israeli Arabs. No one was permitted out of doors between 5 p.m. and 6 a.m. On the first day of the curfew, some Arabs were away from home when the restrictions were announced. When they returned to Kafr Qassem, where they lived, Israeli border police, in line with the orders they’d received, opened fire and killed 48 of them — 19 men, 6 women and 23 children.
It took two years, but finally 11 border policemen were indicted and eight, including the two officers in charge, were convicted of murder; the Nuremberg defense was explicitly rejected. Still, punishment of the eight turned into a bad joke: The original sentences of the two officers were for 17 and 15 years in prison. On appeal, these were reduced to 14 and 10 years. Then the army chief of staff reduced them to 10 and 8 years; Israel’s president reduced them to 5 years each and, finally, the Committee for the Release of Prisoners ordered the remission of one-third of the prison sentences, resulting in all the convicted persons being released from prison by November 1959, 13 months after their convictions.
Later, during the Eichmann trial in 1961, the Israeli court could and did draw on the Kafr Qassem precedent in rejecting Eichmann’s effort to introduce the Nuremberg defense. (And Eichmann, of course, was hanged, the only instance of capital punishment in Israel’s history.)
But all that is not adequate as analogy to the current American case, since we are now dealing with orders proclaimed to be legal by the very people charged with deciding what “legal” means in specific circumstances. It is those people who argued that the Geneva Conventions were not applicable and who went on to provide and even encourage a free ride to “harsh treatment” and torture. It makes no difference that they may have been searching for ways to justify the express policy preferences of their own superiors, since they were charged with providing expert and independent interpretation of legal requirements under the Constitution and applicable international law.
The president has now apparently come to the right, albeit awkward, conclusion: He does not rule out the possibility of action against the key former Justice Department officials. Though Obama has repeatedly said that he vastly prefers to face forward rather than backward, he seems to understand that to take a pass in the face of what the memos revealed is no longer, if ever it was, an option. For what (read: who?) would then stand in the way of future legal officers yet again relaxing the definition of torture, denying the relevance of Geneva?
Still, awkward: What happens if and when the former officials who drafted the memos plead “superior orders,” and point to Dick Cheney as the lead culprit?
Why does the Forward repeatedly not only publish, but feature this anti-Israel, extreme-left crackpot, Fein?
Mr. Obama: I have had it with you and your administration, sir. Your conduct on your recent trip overseas has convinced me that you are not an adequate representative of the United States of20America collectively or of me personally. You are so obsessed with appeasing the Europeans and the Muslim world that you have abdicated the responsibilities of the President of the United States of America. You are responsible to the citizens of the United States. You are not responsible to the peoples of any other country on earth. I personally resent that you go around the world apologizing for the United States telling Europeans that we are arrogant and do not care about their status in the world. Sir, what do you think the First World War and the Second World War were all about if not the consideration of the peoples of Europe? Are you brain dead? What do you think the Marshall Plan was all about? Do you not understand or know the history of the 20thcentury? Where do you get off telling a Muslim country that the United States does not consider itself a Christian country? Have you not read the Declaration of Independence or the Constitution of the United States? This country was founded on Judeo-Christian ethics and the principles governing this country, at least until you came along, come directly from this heritage. Do you not understand this? Your bowing to the king of Saudi Arabia is an affront to all Americans. Our President does not bow down to anyone,=2 0let alone the king of Saudi Arabia. You don’t show Great Britain, our best and one of our oldest allies, the respect they deserve yet you bow down to the king of Saudi Arabia. How dare you, sir! How dare you! You can’t find the time to visit the graves of our greatest generation because you don’t want to offend the Germans but make time to visit a mosque in Turkey. You offended our dead and every veteran when you give the Germans more respect than the people who saved the German people from themselves. What’s the matter with you? I am convinced that you and the members of your administration have the historical and intellectual depth of a mud puddle and should be ashamed of yourselves, all of you. You are so self-righteously offended by the big bankers and the American automobile manufacturers yet do nothing about the real thieves in this situation, Mr. Dodd, Mr. Frank, Franklin Raines, Jamie Gorelic, the Fannie Mae bonuses, and the Freddie Mac bonuses. What do you intend to do about them? Anything? I seriously doubt it. What about the U.S. House members passing out $9.1 million in bonuses to their staff members – on top of the $2.5 million in automatic pay raises that lawmakers gave themselves? I understand the average House aide got a 17% bonus. I took a 5% cut in my pay to save jobs with my employer. You haven’t said anything about that. Who authorized that? I surely didn’t! Executives at Fannie Mae and Freddie Mac will be receiving $210 million in bonuses over an eighteen-month period, that's $45 million more than the AIG bonuses. In fact, Fannie and Freddie executives have already been awarded $51 million – not a bad take. Who authorized that and why haven’t you expressed your outrage at this group who are largely responsible for the economic mess we have right now. I resent that you take me and my fellow citizens as brain-dead and not caring about what you idiots do. We are watching what you are doing and we are getting increasingly fed up with all of you. I also want you to know that I personally find just about everything you do and say to be offensive to every one of my sensibilities. I promise you that I will work tirelessly to see that you do not get a chance to spend two terms destroying my beautiful country. Sincerely, Every real American
What would happen if Israel put the architects of Oslo on trial, and their supporters. Does Mr Fein have the blood of a thousand Israelis on his hands by his relentless support of the Oslo accords, even when it was clear that the Palestinians were not living up the their end of the deal? Len Fein and the Israel elite think that people like David and Naama Appelbaum, the Dolphinarium massacre, the Park Hotel seder massacre and others are untermenschen, but I doubt their families agree. Mr Fein, I suggest you go to the nearest sink, and try to vigorously scrub Appelbaum blood of your hands, just like Lady Macbeth
Suppose someone in the Department of Justice wrote a memo that purported to justify murdering prisoners, and on that basis a CIA contractor murdered a prisoner. It would be clear that both the contractor and whoever issued the order to murder would bear legal responsibility, notwithstanding the memo. Why is legal responsibility for torture approached differently?
President Obama has been succeeding in reestablishing the world’s willingness to cooperate with us. He is doing this for our benefit, not for the world’s, and I am grateful.
Mr. Real American – First, since it has escaped you, the first part of Judeo-Christian is Judeo not Christian. Further, since you invoke the Constitution, try reading it. Second, by Constitutional provision, America is a secular nation, not a Christian nation. Third, the authors of the Constitution did not so much draw on Judeo-Christian tradition as they drew on the writings and experience of pre-Christian Greeks. Fourth, Fanny and Freddy and AIG bonuses were a matter of private contract negotiated during the Bush administration, and the sanctity of private contracts is one of the property rights protected by American law. Finally, President Obama hasn’t been saying that all Americans are or have always been arrogant, just most of the Bush administration and the know-nothings who have the arrogance to sign themselves “Every real American.”
Mr. Nimrod Tal – Dr. Fein has been constantly concerned with securing the lives and the livelihoods of living Israelis. The rest of us will leave the fate of the dead to you.
Mr. Real American, whether President Obama really bowed to the Saudi king, or, being taller, simply bent toward the shorter monarch to converse with him better is debatable. Because you are not a fan of our current president, you obviously gravitate toward the former point of view. However, let's not forget the adulation shown by the both Bushes, 41 and 43, toward the Saudi rulers. Few presidents have kissed a certain portion of the anatomy of the House of Saud with greatly regularity and shamelessness than the Bushes, father and son.
no one was hurt. the three who were waterboarded were in cahoots to murder on mass more americans.the CIA used exclusively to elicit vital information from known terrorists such as al-Qaeda leader Abu Zubaydah we have a moral obligation to stop them before they kill more innocent lives- even if we have to kill them- (they are considered a rodef) and all that was done to them was "frighten them"= poor babies!!!!- those who are gentle with cruel are ultimatley cruel to the gentle-i side with the poor people of north korea, the poor people who have their freedoms taken away from them, by chavez, or castro- and certainly have crocodile below is rabbi brackman's excellent article A question of morality US president's decision to bar violent interrogations of terrorists leads one to wonder if Mr. Obama understands what morality really is Published: 04.25.09, 21:02 / Israel Jewish Scene
A former Shin Bet officer told me that he left the service because he found administering the harsh interrogation techniques needed to gain life saving intelligence from detainees difficult. It would be inappropriate for me to divulge the exact interrogation practices he described but suffice to say, that besides for waterboarding, they were not that different in nature to those in the recently declassified CIA memos. In fact Israel officially claims that it reserves the right to use what it terms as "moderate physical pressure" during interrogations. Meanwhile President Barack Obama said this week that the Bush Administration’s approval of harsh interrogation techniques while dealing with terrorists reflected a temporary loss of American “moral bearings.” Clearly in Mr. Obama’s view any country, including Israel, which officially uses physical interrogation processes to protect the lives of its citizens, is immoral. Now it is obviously abhorrent and repugnant to use harsh interrogation methods when there is no present danger or threat to innocent life. But Mr. Obama’s comments were concerning interrogation procedures the CIA used exclusively to elicit vital information from known terrorists such as al-Qaeda leader Abu Zubaydah. This leads one to wonder if Mr. Obama understands what morality really is. Moral obligation to save lives In Jewish law there is a provision known as “rodef” or pursuer. This is where a bystander is obligated to do whatever it takes to save the life of one being perused by a murderer even if it means killing the pursuer (see Sanhedrin, 73a). Whilst this law has experienced some negative publicity over the years the fundamental moral principle behind it is sound. The concept is simple: each individual, when the opportunity arises, has a moral obligation to do whatever they can to protect and save the lives of innocents. It is perfectly reasonable to apply this moral truth to the case of terrorists withholding information that, if shared, will prevent future terrorist attacks and mass murders. Clearly that terrorist is in collusion with killers and is aiding and abetting mass murder. There is therefore a moral obligation to use all means, including the use of force, to elicit vital information from such a person. Unbelievably, Jay Bybee, the federal judge who rendered a legal opinion allowing these techniques in the case of an al-Qaeda leader, is now under siege by politicians and activists who want his head to roll. They want to punish him for having the moral courage to do what was necessary to protect the American people. We live in a dangerous world Clearly in an ideal world none of us would want to inflict any pain on a fellow human being. But we are living in a world where people want to kill us en masse. Saying that using limited physical pressure to protect us against such people is immoral is beyond belief and, at best, demonstrates a shallow understanding of morality. We live in a dangerous world on so many levels. Tragically with the rise of a US President and Congress that lacks the moral clarity and courage to do what is necessary to protect its own people, the world just became a lot more precarious.
The force of Rabbi Brackman's article cannot be denied. However, since, given two Jews there are three opinions, I hope that another Talmud scholar comes forward with an opposing drosh. I am not a Talmud scholar, but I believe that Rabbi Brackman has overlooked several salient points.
Was torture necessary, and did it work? Many responsible military and intelligence experts say no.
Does American use of torture expose American troops to torture? It does, perhaps many more than are exposed to terrorist acts.
Are the families and supporters of the tortured dissuaded from committing terrorist acts? No, in fact, they resolve to be avenged and commit more.
Has Judge Jay Bybee sworn to make moral judgments? No, he has sworn to uphold American law, and torture is illegal.
Does torturing betray the American ideal? Yes, and defending this ideal is the only justification for asking young service men and women to risk their lives.
If it is moral for Israel to torture to protect Israeli lives, is it moral for Hamas to torture in order to protect Palestinian lives?
I have read Amnesty International reports of how and why the Israeli government tortured Palestinian journalists, and I called the Israeli embassy to get their side.
They were not tortured because the Israelis needed information to prevent attacks. They were (as the Israeli embassy admitted to me) not accused of any involvement in violence whatsoever. They were tortured because the Israeli government wanted them to confess to crimes that they had not committed.
For example, Ribi al-Aruri had been working with Jewish journalists on a left-wing newspaper, Ha-Nitzotz. The Israeli government was trying to get Aruri to falsely implicate his Jewish colleagues. He refused.
The Israelis handcuffed Aruri's hands behind his back, suspended him by the wrists from the ceiling, and left him there for a day. Then they repeated it for another day.
This was exactly the same torture the Nazis used against Jews. This was exactly the same torture that the Spanish inquisition used against Jews to get them to confess that they used the blood of Christian children to make matzohs.
That's when I realized that the Israelis were indeed acting like Nazis.
Israeli intelligence officers have repeatedly claimed that they tortured terrorists who were withholding information that could prevent terrorist attacks. Whenever anyone has investigated those claims, it turned out that they lied. There was an article about one such case in Slate. When the reporter called the officer back to check the story, he admitted that he lied.
(Dick Cheney's similar claims have also turned out to be lies.)
So Israel is lying to us, the American Jews. And Israel is using the same tortures against the Palestinians that the Nazis used against us.
What does the Talmud tell us to do in a case like this?
We were not using torture when attacked on 9/11 or during prior attacks on us by radical islam.Israeli officers didn't make fanatics blow themselves up along with innocent people.How disgraceful to compare America or Israel to nazis neither is trying to wipeout people,prisoners when released are healthy.
Amnesty International was reporting Israeli torture in the 1980s, and the Israeli supreme court ruled that it was acceptable.
Both the Nazis and the Israelis suspended prisoners by their wrists from the ceiling. If you think that's disgraceful, you should address your complaints to the people who did the suspending.
Both the Nazis and Norman are busy with hate-propaganda.
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