Orders Are Orders - Befehl ist Befehl

Now, where have we seen this defense before? I remember. It was in Nuremberg, Germany, right after WW-II. This was the defense of the Nazis accused of the most ghastly crimes imaginable. "Orders are orders," they claimed, one after the other.

That was Germany under the Nazi regime. Those crimes could not possibly happen here in the U.S. We Americans respect individual rights. There is no way a Nazi-like nightmare could occur anywhere in the world at the hands of U.S. employees—civilian or military.

The Bush administration declared certain interrogation techniques to be legal. The U.S. Justice Department did not consider such "enhanced" techniques torture under U.S. law. So, CIA employees—staffers and contractors—who participated in such interrogation techniques were not engaged in torture.

That is, until the U.S. Congress and the Justice Department retroactively did declare such techniques to be torture. How is this possible? Doesn't our constitution protect U.S. citizens from ex-post-facto legislation? Apparently not—at any point in the future, the U.S. Congress could declare illegitimate any currently legitimate orders issued by our executive branch.

We saw this many years ago during the Iran-Contra crisis. CIA chiefs of station received orders from CIA Headquarters to conduct certain operations. These operations supported the Executive Branch's policy of covertly aiding the Nicaraguan Contras. Not one CIA chief believed for a moment that these orders were anything but legal. The CIA does not select its chiefs of station on the basis of their ability to engage in legal parsing. The CIA expects its chiefs of station to manage the conduct of espionage operations.

I know of Latin America-based chiefs of station called to Washington. They went, expecting to receive applause for their operational successes. Upon arrival, CIA lawyers told them to prepare to hire legal defense; they were likely to be indicted for violating U.S. law—Congress had passed legislation making it illegal to support the Nicaraguan Contras. And this was precisely what CIA Headquarters had required of its Latin America stations. CIA chiefs of station lost all their savings; they lost everything they had saved for their kids' college education, for their retirement. They lost it all. That the Justice Department did not indict any of these chiefs of station was little satisfaction. These CIA employees were completely broke. They learned a lesson the hard way. CIA lawyers existed for one purpose only, to defend the Agency, not its employees.

The CIA Director recently announced that the Agency lawyers will defend any CIA employees charged for having employed enhanced interrogation techniques against al Qaeda terrorists. Let's hope this will cause our attorney general to rethink his effort to indict CIA employees. How can we have one agency of the U.S. government defending its employees against accusations brought by another U.S. government agency?