Want to Prosecute the Lawyers? Cite Ministries — Not the Justice Case
Scholars who believe that the individuals who wrote the OLC memos authorizing torture should be criminally prosecuted — as I do — normally cite the Justice Case, decided by the Nuremberg Military Tribunal (NMT) in 1947, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Last year, I wrote a long post for Balkinization explaining why I believe that, in fact, the Justice Case provides much less support for that proposition than most scholars assume. As I said then, nothing in the Tribunal’s judgment prohibits prosecuting a government lawyer for giving erroneous legal advice — but nothing in the judgment supports it, either. That is, of course, a critical distinction when one is arguing that a case has precedential value.
There is, however, another NMT case that does provide significant support for prosecuting the authors of the OLC memos: United States v. von Weizsaecker et al., better known as the Ministries Case, in which a number of government ministers, state secretaries, and high-ranking members of the Nazi party were convicted of crimes against peace, war crimes, and crimes against humanity. The critical defendants are Ernst von Weizsacker himself, who was the State Secretary in the Foreign Office, and Ernst Woermann, who was the Undersecretary of State and head of the Political Department in the Foreign Office. The two defendants, who were the Nazi government’s primary legal advisers, were convicted of crimes against humanity for approving SS actions that they knew violated international law.
The crimes in question involved the deportation of 6,000 Jews from France to Auschwitz in March, 1942 (p. 496*):
On 9 March 1942, Eichmann of the SS wrote the Foreign Office that it was intended to deport to Auschwitz 1,000 French and stateless Jews who had been arrested in France in 1941, asking if there was any objection.
On 11 March, the SS again wrote the Foreign Office that was desired to include 5,000 more Jews from France. On the same day Luther wired the German Embassy in Paris, forwarding the request and asking for comment, and Paris replied, “no objection.”
On 20 March, Rademacher, by order, informed the SS that the Foreign Office had no objections to these 6,000 Jews being deported. This was initialed by Woermann and von Weizsaecker, and contains the latter’s comment, “to be selected by the police.”
The Tribunal had little trouble convicting von Weizsaecker and Woermann for their involvement in the deportations. First, it concluded that Woermann — and by implication von Weizsaecker, his superior — knew that the deportations violated international law (pp. 497-98):
Neither claims that there was any legal justification for this deportation or suggests it was other than a flagrant violation of international law and of the provisions of the Hague Convention…. The defendant Woermann… knew that it was in violation of every principle of international law and in direct contradiction of the Hague Convention.
Second, the Tribunal held that because the defendants knew that the deportations violated international law, they had an absolute duty as the Reich’s legal advisers to object to the deportations when the SS asked them to assess their legality (pp. 958-59):
The Foreign Office was the only official agency of the Reich which had either jurisdiction or right to advise the government as to whether or not proposed German action was in accordance with or contrary to the principles of international law. While admittedly it could not compel the government or Hitler to follow its advice, both von Weizsaecker and Woermann had both the duty and the responsibility of advising truthfully and accurately…
We have no doubt that Hitler and the Nazi police organizations had planned and desired to do what was finally done, namely to deport these unfortunate Jews from France to their death in the East. This does not negative the importance of the fact that before the act was committed inquiry was made of the department of the Reich, whose duty it was to pass and advise upon questions of international law, as to whether or not it had any objection to the proposal. The only advice it could give within its sphere of competence and the only objection it could raise from an official standpoint was that the proposed program did or did not violate international law… If the program was in violation of international law the duty was absolute to so inform the inquiring branch of the government…
Unfortunately for Woermann and his chief von Weizsaecker, they did not fulfill that duty. When Woermann approved the language “the Foreign Office has no misgivings” and von Weizsaecker changed it to the phrase “has no objections,” which phrases so far as this case is concerned are almost synonymous, the gave the “go ahead” signal to the criminals who desired to commit the crime.
The parallels between the Foreign Office’s role in the SS deportations and the OLC’s role in the CIA’s torture regime are uncanny. Nothing is lost if we simply substitute “Yoo, Bybee, and Bradbury” for “Woermann and von Weizsaecker,” “OLC” for “Foreign Office,” and “torture” for “deportations.”
Indeed, in one critical respect, the case against the authors of the OLC memos is even stronger than the case against von Weizsaecker and Woermann. The latter’s criminal participation in the deportations consisted solely of omissions – failing to point out that the deportations violated international law. The former’s criminal participation in the CIA’s torture regime, by contrast, consists of both acts and omissions, because Yoo, Bybee, and Bradbury not only failed to point out that the torture regime violated international law (and US law, as well), they crafted legal arguments to conceal the illegality of that regime.
Scholars who want to see the authors of the OLC memos prosecuted, in short, should cite Ministries instead of the the Justice Case. The Justice Case does not rule out such prosecutions, but it also does not support them. Ministries, by contrast, explicitly holds that knowingly providing erroneous legal advice is criminal.
* BIBLIOGRAPHIC NOTE: all citations are to XIII TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10 (William S. Hein & Co. ed. 1997).