On May 2 Truman appointed Robert Jackson as chief counsel to prepare the indictment of the Nazi leaders for atrocities and war crimes. Jackson felt strongly that it had to be scrupulously fair. "You must put no man on trial before anything that is called a court if you are not willing to see him freed if proven not guilty."
His opening statement set the tone for the trials:
"That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason.... We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."
Most, but not all, of the 21 defendants were convicted.
Some observers say that US government employees who carried out acts that the United States had previously called torture (when done by employees of other governments) should be left in peace because they were following orders.
But Holder should recall the testimony of William Keitel, the ranking officer of the German Army: "I took the stand that a soldier has a right to have confidence in his state leadership, and accordingly he is obliged to do his duty and to obey." The Nuremberg tribunal sentenced Keitel to death by hanging.
Article 8 of the London Charter that established the Nuremberg court made clear that obedience to an order from a superior to commit a crime is not a defense but can be considered only in mitigation of punishment. Since Nuremberg, following orders has ceased to be a valid defense in international law. Until 2001, the United States firmly and rightly adhered to that standard.
If the rule of law is to have any meaning at all, then lawyers must function within accepted boundaries of the legal discipline. Those boundaries are very large, but they are not unlimited.
