The problem: The nation has been on a war footing for years. Elected leaders believe it is full of sleeper cells of subversives. Officials in the capital decide that torture should be applied to detained subversives (whether to spread terror among their fellows, extract intelligence, or produce confessions is unclear). But law enforcement officers are uneasy about applying "more rigorous interrogation" techniques. Although the judicial system doesn't seem to mind that defendants show up in court bearing obvious signs of torture, the officers are bureaucrats in a legal and political culture that has always esteemed the Rule of Law. (Indeed, the political party in charge was elected on a law-and-order platform.) What to do?
The solution: a confidential memorandum, the joint product of the highest officials in the intelligence and justice departments, setting forth in extraordinary detail when certain techniques could be applied, the specific equipment to be used in such interrogations, the number of times certain techniques could be used on certain categories of detainees, and so forth - and specifically promising immunity from prosecution when the rules are followed scrupulously.
The place: Not Washington, DC circa 2002-2005, but rather Nazi Germany, June 4, 1937.
The memorandum, issued by the Reich Ministry of Justice, followed a meeting of several Justice Ministry lawyers and public prosecutors with several high-level Gestapo officials. I'll let it speak for itself:
To: Chief Public Prosecutor in Düsseldorf .
Subject: Mistreatment of Political Prisoners
Meeting at the Reich Ministry of Justice on June 4, 1937
It has been recognized by government leaders at the highest levels that more rigorous interrogations are necessary and indispensable. In such cases, it would be nonsensical to prosecute the officers carrying out the interrogation for exceeding their authority. However, public prosecutors must carry out the letter of the law and have no possibility of choosing to prosecute or not as they may judge fit ... At present, we thus have a situation which cannot continue: a deficient sense of what is right on the part of judicial officers; an undignified position for police officers, who try to help matters by foolish denials [that torture has taken place in court proceedings]. The purpose of this meeting is to discuss the possibility of relevant limits. There followed a discussion of individual questions:
Question 1: For which offenses are more rigorous interrogations permissible?
There was general agreement that, in principle) interrogations of this kind may be undertaken in cases where charges involve the immediate interests of the state. ... chiefly treason and high treason. Representatives of the Gestapo expressed the opinion that a more rigorous interrogation could also be considered in cases of Jehovah's Witnesses, explosives, and sabotage. ... It was unanimously agreed that charges under paragraph 175 of the Criminal Code [that is, charges of homosexuality] should not be considered as grounds. A more rigorous interrogation is, as a general principle, never permissible in the case of foreigners. ...
Question 2: Nature of corporal punishment?
As a general principle, in more rigorous interrogations only blows with a club on the buttocks are permissible, up to 25 such blows. The number is to be determined in advance by the Gestapo (see Question 3). Beginning with the tenth blow, a physician must be present. A standard club will be designated, to eliminate all irregularities.
Question 3: Who may order a more rigorous interrogation?
As a general principle, only Gestapo Headquarters in Berlin. Local state police stations must obtain permission in advance from Berlin. Without permission a more rigorous interrogation may not be conducted.
Question 5: What assurance exists that innocent persons will not be interrogated with the more rigorous measures?
This question is answered by the measures named under Question 3.
Question 6: How are judicial officers to deal technically with cases:(a) in which permissible corporal punishment has been inflicted under the terms stated above? If an office of public prosecution receives a complaint, it contacts the state police and confirms that permission was granted (by the Gestapo Berlin). If said permission is shown to have been given, no charges are pressed, and a formal announcement should be made: "Investigation has shown that a criminal act was not committed."
(b) in which corporal punishment has been inflicted that is not permissible under the terms stated above?
If it transpires that permission was not obtained, commence investigation immediately and report at once to the Central Office of Public Prosecutions [in Berlin]. ...
(I first saw this memo several years ago in Deborah Lucas Schneider's translation (which I've altered a bit above) of the excellent Ingo Müller, Hitler's Justice, at pages 178-180; the original is in Ilse Staff, ed., Justiz im Dritten Reich (1964; 2d ed. Frankfurt: Fischer Taxhenbuch-Verlag, 1978, pp. 106-).
I realize that, as a matter of principle, there is a strong bias against making Nazi analogies to any events happening in our modern world (sometimes described in internet discussion groups as "Godwin's Law"). But here we have: (1) a system set up to allow torture on certain specific individual detainees, (2) specifying standardized equipment for the torture (apparently down to the exact length of the club to be used), along with physician participation to ensure survival of the victim for the more several applications, (3) requiring prior approval of the use of torture from the central authorities in the justice department and intelligence agency in the capital, so as to ensure that (6) the local field officers actually carrying out the abuse are immune from prosecution. About the only significant difference between the OLC memos released last week and this one is that, remarkably, the above categorically states that non-German citizens should "never" be subject to such abuses (question 1), and that torture that exceeds the limits shall result in investigation for criminal prosecution (question 6(b)).
Of course, putting Godwin's Law to one side, the most enduring principle that our global civilization has extracted from the tragedy of the Third Reich is the notion that we must never allow such things to happen again. It's quite difficult to see how we will ever be true to that principle without insisting on personal accountability to the law on the part of those who authorized and carried out torture in our names. We can write as many statutes and sign as many treaties as we want banning torture, but, as the last eight years have shown, when officials feel that there is no chance that their own freedom will ever be in jeopardy from future criminal prosecutions for violating those laws, they will show no compunction in carrying out abuses at the direction of their superiors.
--April 21, 2009