There is a great book I attempt to sell here from time to time. Justice at Nuremberg by Robert E.Conat.*

He quotes Hitler from time to time:

The enemy employs in partisan warfare Communist-trained fanatics who do not hesitate to commit any atrocity.  It is more than ever a question of life or death. If the fight against the partisans in the East is not waged with the most brutal means we will shortly reach the point where the available forces are no sufficient to control this pest. It is therefore not only justified but it is the duty of the troops to use all mean without restriction even against women and children as long as it insures success.

No German employed against the partisans will be held accountable for the fighting against them or their followers either by disciplinary action or by court-martial. 276

Now Conot is speaking specifically about the Ukraine and he goes on to say:

Every village from the vicinity of which resistance emanated was given the Lidice treatment--the men and boys lined up on one side, the women and children on the other and the women informed that, unless they pointed out the perpetrators, the men would be shot and the village burned.  More often than not, however, the guerrillas had no connection with the village and seldom did anyone know the identity of the guilty so that the inhabitants were helpless to avoid slaughter. (at 276)

But Conot, later on in his narrative, discusses one of the defendants at the Nuremberg trials, a rather skuzzy character named Jodl:

Jodl counted among his achievements the fact that Hitler had been dissuaded from his idea of renouncing the Geneva Convention. Advising against the renunciation, Jodle had written: "Just as it was a mistake in 1914 that we ourselves solemnly declared war on all the states which had for a long time wanted to wage war on us, and through this took the whole guilt of the war on our shoulders, so it would be a mistake now to repudiate openly the obligations of international law and thereby to stand again as the guilty party before the outside world. Adherence to the accepted obligations does not demand in any way that we should have to impose on ourselves any limitations which will interfere with the conduct of the war.(at 427)

Now one discerns the contradiction in these quotes rather easily. But I was struck by the fact that factions within Hitler's 'administration' felt the Geneva Convention meant something and that even Hitler never denounced it nor the treaties involved. So I conclude that even the mangiest most rotten human being in the twentieth century was too 'afraid' to denounce the Geneva Convention.

One of my favorite movies is Stanley Kramer's Judgment at Nuremberg, starring among others, Spencer Tracy, Marlene Dietrich, Burt Lancaster and Judy Garland. Tracy plays an old retired district court judge who is invited to participate in one of the many trials at Nuremberg following WWII. Check out this site: http://www.imdb.com/title/tt0055031/

There are so many wonderful facets of this 186 minute film that it is difficult to summarize. The  Allies go to Nuremberg and promptly set up house in the homes of German aristocrats. The city itself is in tatters and Conot does a more than fair job of describing the atmosphere there. But the film really does the job in black and white.

Tracy ends up meeting Marlene and has several conversations with her. As far as that subplot, Marlene becomes an apologist for the German people, and of course the German upper crust. Her character, especially towards the end defends her actions and the actions of her class by stating the obvious. How were we to know? I mean this was wartime.

I simply point out this tete-a-tete between the two because in real life Ms. Dietrich was a strong voice against the Nazis in every manner, shape and form. A real model of what Germans could be. This irony is one of the reasons I love the film, really.

Lancaster plays one of those experts in the Third Reich, Dr. Ernst Janning. Janning was a sociologist who would write books about the master race, defining how many degrees one had to be removed from Jewish heritage in order to not be considered a Jew.  His writings were supposedly filled with opinions as to how to handle the mentally ill, the mentally handicapped, and others who would be of no use to the Reich. Hence he is put on trial as a defendant for his responsibility in the Final Solution.

I am intrigued by this character and its relationship to a Kenneth Branagh film:

Conspiracy is a BBC / HBO television film which dramatizes the 1942 Wannsee Conference. The film delves into the psychology of Nazi officials involved in the 'Final Solution of the Jewish Question' during World War II.

The movie was written by Loring Mandel and starred an ensemble cast including Kenneth Branagh as Reinhard Heydrich, Stanley Tucci as Adolf Eichmann, and Colin Firth as Wilhelm Stuckart.

A secret meeting is held in order to determine the method by which the German government is to execute Adolf Hitler's policy -- that the German sphere of influence should be free of Jews, including those in the occupied terrorities of Poland, Latvia, Estonia, Czechoslovakia and France. As the film opens, various officials from different German agencies arrive and mingle at a lakeside villa in Wannsee, where Colonel Adolf Eichmann, SS Officer for Jewish Affairs, has meticulously planned the meeting. Among those present:

• Wilhelm Stuckart, a lawyer representing the Interior Ministry and co-author of the anti-semitic Nuremberg laws
• Friedrich Wilhelm Kritzinger, deputy head of the Reich Chancellery
• Gerhard Klopfer, a lawyer from the Nazi Party Chancellery
• Martin Luther, Foreign Ministry liaison to the SS
• Reinhard Heydrich, Heinrich Himmler's second-in-command in the SS, who begins by explaining the purpose of the meeting.

This made for TV (BBC & HBO) knocked my socks off and adds to the complete and utter remorse of Lancaster's character in Judgment. You see the Wannsee Conference is oftimes pointed to as the planning operation for The Final Solution. As the plot unfolds, a couple of the experts, the sociologists who had written these find books and studies filled with graphs and statistics; these books that defined who  Germans were and who the inferior residents of Germany were. 

The professionals become more than just disillusioned at this conference and see that their studies and their books were now going to be used to 'exterminate' millions of people.

This really underlines the struggle within the soul of Lancaster in Judgment. The remorse.

Now spurred on by KGB's recent blog, which is a real work, I went back to January 2002:

On January 25, 2002, White House Counsel Alberto Gonzales sent a Memorandum to President Bush regarding a presidential decision on January 18, 2002, (the White House has issued an Order to that effect, dated February 7, 2002, see below) that captured members of the Taliban were not protected under the Geneva POW Convention ("GPW"), to which the legal advisor to the Secretary of State had objected.  He advised that "there are reasonable grounds for you to conclude that GPW [the ] does not apply ...to the conflict with the Taliban." Mr. Gonzales argued that grounds for the determination might include:

    1) a determination that Afghanistan was a failed state "...because the Taliban did not exercise full control over the territory and people, was not recognized by the international community, and was not capable of fulfilling its international obligations" (see definition of statehood in Cpt. 1.3 and discussion in Kadic v. Karadzic, 70 F.3d 232, 244 to 245 (2^nd Cir, 1995) ) and/or

    2) a "determination that the Taliban and its forces were, in fact, not a government but a militant, terrorist-like group."

    Mr. Gonzales then identified what he believed were the ramifications of Mr. Bush's determination. On a positive note he felt they preserved flexibility stating that:

"The nature of [a "war" against terrorism] places a high premium on ...factors such as the ability to quickly obtain information from captured terrorists and their sponsors ... and the need to try terrorists for war crimes... [t]his new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners..."  He also believed the determination "...eliminates any argument regarding the need for case-by-case determinations of POW status." The determination, Mr. Gonzales said, also reduced the threat of domestic prosecution under the War Crimes Act (18 U.S.C. 2441). His expressed concern was that certain GPW language such as "outrages upon personal dignity" and "inhuman treatment" are "undefined' and that it is difficult to predict with confidence what action might constitute violations, and that it would be "...difficult to predict the needs and circumstances that could arise in the course of the war on terrorism." He believed that a determination of inapplicability of the GPW would insulate against prosecution by future "prosecutors and independent counsels." http://www.lawofwar.org/Torture_Memos_analysis.htm

Now take a close look at this part of Gonzales' argument. Remember, at this time we are in Afghanistan.  We are not in Iraq although the principles had been planning the invasion of that country for years (years prior to the 2000 election in fact)  and in fact were ready to proceed as early as September 2001. (See Paul O'Neil and Ron Suskind's book)

Afghanistan is being depicted as a non state. Now take a look at Hitler's quote in Conot's book, supra. I mean Hitler, who would not denounce the Geneva Conventions, makes an exception for the Ukraine in 1942.  And really for the same reasons. After all, at that time, the Ukraine is a failed state.

Now I can get into other areas here. For instance, lining up men, women and children and shooting them was not ordered by w.  It was ordered by Hitler.

But I tell you there is one difference, legally speaking, which I have hit upon in other blogs as have others. And that is 18 U.S.C. 2441 and related statutes. A treaty is a treaty is a treaty according the constitution once it is adopted by the Senate under the supervision of the President of the United States.

But we have statutes on point here and Hitler really did not.

Gonzo uses the judicial construct of 'vagueness' in order to justify what I call 'enhanced torture techniques"

I won't spend a lot of time on this point except as to say that statutory vagueness is a concept used IN CRIMINAL PROCEEDINGS. Decades ago attorneys would refer to vague statutes as the basis to arrest someone as:

Lurking with intent to loiter statutes.

What on earth do criminal proceedings have to do with the issue of torture?  Gonzo is clearly worried about criminal prosecution back in January of 2002.

Now I wish to tie this altogether now.  But one piece of news came to me per The Daily Beast this morning:

One sign that outsider CIA Director Leon Panetta is reversing the troubled agency's course? Weeks after President Obama took office, the CIA renewed its contract with the firm run by two psychologists who introduced waterboarding to the agency--that is until two months later, when Panetta fired them. In his first interview since taking the job, Panetta tells The New Yorker's Jane Mayer that, when he took over, he "wanted to be damn sure" that no one was on the payroll who could be prosecuted for war crimes. But once the agency was clean, he "didn't want to spend a lot of time dealing with the past and what mistakes were made." Panetta also says that he actually supported a truth commission to investigate the CIA's use of torture, at least until President Obama nipped the idea in the bud. Read it at The New Yorker

If you recall, in several of TheraP's blogs, there were already psychologists working for the CIA and for other government agencies who resigned rather than participate in any way, shape, manner or form in enhanced torture techniques.

So, per outsourcing, Rummy and others simply found shrinks who were prepared to so participate in such things.

Now the character played by Lancaster in Judgment, as well as the professionals outraged by the Final Solution in Conspiracy did not directly participate in the torture or extermination procedures of the German Reich. Yet, professionals like these characters were in fact prosecuted at Nuremberg.

I would also point out that Gonzo has attempted to rear his ugly head recently in order to have his image rehabilitated. He has stated that as White House Counsel in 2002, he sought the advice of the OLC, so we are to conclude that he is not responsible for his OWN MEMOS TO THE PRESIDENT.

Besides five foot tall female guards who simply 'followed orders', should we not take a closer look at the role that certain professionals played with regard to 'enhanced torture techniques'?

Like some attorneys and psychologists?

*Justice at Nuremberg, Robert E. Conot, Carroll & Graf Publishers, Inc., NY, NY 1983