By Scott Horton
Special to the Huffington Post
September 09, 2009

Two newly-obtained documents show how American diplomats during the Bush administration worked tenaciously to incorporate what is commonly known as the Nuremberg Defense into a new international convention addressing enforced disappearances.

The rejection of the notion that government agents could avoid liability for crimes by arguing that they were simply following orders had been a bedrock principle of the American government ever since shortly after the end of World War II, when that defense was employed during the Nuremberg war-crimes trials.

But the new documents, obtained by the ACLU through Freedom of Information Act litigation, show how State Department officials tried to establish what they called "the good soldier defense" -- in this case, the right of government agents charged with seizing and holding people in violation of international law to claim as a defense that they acted in good faith based on representations as to the legality of the conduct they were undertaking.

American officials found themselves "virtually alone" at the negotiating table with this position, facing criticism from long-established allies, the documents show. The efforts occurred in the context of a proposed "Convention on the Protection of All Persons from Enforced Disappearances" in 2004 and 2006. The documents are available here and here.

Previously released documents show how Bush administration lawyers in the Department of Justice's Office of Legal Counsel gave government agents legal cover to conduct a variety of actions, including torture, that critics say were flatly contrary to domestic law.

"What the OLC memos did on a domestic basis, these documents show American diplomats attempting to do on the international stage," said Joanne Mariner, an analyst at Human Rights Watch with expertise on the U.S. extraordinary renditions program.

The documents show that the diplomats struggled against the prohibition on "disappearings" in other ways as well. They sought an exception from the requirement that it be incorporated in specific criminal legislation, arguing that this was difficult for a federal state to do since criminal law was largely the responsibility of the states. They also opposed the idea that a state be required to disclose basic information about prisoners it holds.


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