Robert L. Sharp: Difference between politics, law

May 9, 2009 

The problem with the law is it's so inflexible and gets in the way of pragmatic political solutions.

For instance, regarding torture, "The president has ruled out prosecution for CIA officials who believed they were following the law. He believes that people in good faith were operating with the guidance they were provided," said Rahm Emanuel, the White House chief of staff.

Well, that makes a lot of sense; after all they were just following orders.

Obama kicked the can down the road when he said it would be up to his attorney general to determine whether "those who formulated those legal decisions" behind the interrogation methods should be prosecuted.

Oh, this is trickier. Especially regarding the Justice Department lawyers who wrote those memos claiming that practices such as "waterboarding" were actually within the law. And how far up would one go to identify who approved those memos and practices?

The Obama administration has to be careful they are not seen to be out for the blood of Bush administration officials and are charged with the hubris attributed to Winston Churchill: "History is written by the victor."

"I think there are a host of very complicated issues involved here," the president said. "I think that we should be looking forward and not backwards. I do worry about this getting so politicized that we cannot function effectively, and it hampers our ability to carry out national security operations."

Still, as a victor, one of the better-known judgments of the Nürnberg (Nuremberg) Trials of Nazis after World War II was to deny the defense, "I was just following orders."

This judgment is enshrined in Principle IV recognized in the Charter of the Nürnberg Tribunal:

"The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

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