Nuremberg and the Torture Memos: An American Dilemma

JURIST Guest Columnist James Friedman of the University of Maine School of Law says that despite the potential political cost to President Obama of investigating the torture memos released by the former Bush administration, failure to act on the memos may take an even more costly toll on our identity and well-being as a nation.

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One often comes across references to the “Nuremberg principles.” While there is no fixed meaning to this phrase, I think it is most often used to connote that neither official governmental office nor superior orders constitutes a defense to charges of war crimes or crimes against humanity.

At a philosophical level Nuremberg represents a rejection of the Germans’ defense of legal positivism. To put it simply, the Tribunal held that Nazi offenses were so egregious that even if they were “legal” when committed under the law of the Third Reich, the defendants should have known that mass murder and other atrocities were contrary to the “law of civilized nations.”

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I realize the enormous political cost to the Obama administration of a public inquiry or criminal investigation of officials of the previous administration. The dilemma is that to ignore U.S. memos authorizing torture may do greater damage to our identity and well-being as a nation. To paraphrase Justice Brandeis, we would be tacitly endorsing “men of zeal without understanding.”