Ruling on pretrial motions yesterday, a military judge designated Abu Ghraib prison as a “crime scene,” which means the prison must be preserved. That frustrates George Bush’s generous if belated offer to tear down the prison, though if past be prologue, he wouldn’t have done it anyway.

The judge also compelled the two top generals—John Abizaid, chief of Central Command, and Ricardo Sanchez, chief commander in Iraq—to supply depositions. The defense is also to have access to Geoffrey Miller, formerly of Guantanamo, Thomas Metz, commander of the Multinational Corps, and Barbara Fast, chief of coalition intelligence operations. Donald Rumsfeld and George Bush got off scot free—for the moment.

Strangely missing from the list, at least as reported, is Brig. Gen. Janis Karpinski, who was in charge of the military police overseeing the prison. Gen. Karpinski, a reservist, was suspended back in January, and has since made statements to the press indicating that she doesn’t intend to be the fall-guy for anybody’s military. I would have thought the defense would want her testimony.

Meanwhile, defense counsels are speaking to the media on behalf of their clients and resurrecting the “Nuremberg defense”—that the soldiers were acting on orders from higher-ups and are therefore not culpable.

Womack, Graner's civilian lawyer, said he could prove the MP and military intelligence commanders "were aware of everything that was being done."

And besides,

"We can't have American soldiers in a war zone questioning the legality of orders," ...

Defense counsel Bergrin said,

"One of the last things my client heard before deployment to Iraq last year was a speech by Bush saying that the Geneva Conventions don't apply in the war on terrorism."

And Bergrin wants to question President Bush because

"we know as a matter of fact that President Bush changed the rules of engagement for intelligence acquisition."

The Nuremberg defense was rejected at Nuremberg and hasn’t fared very well ever since. Nevertheless, it’s about the only defense these defendants can make, so they make it.

I thought it would be instructive to learn what the Nuremberg tribunal actually said about the “Nuremberg defense.”

From “International Law Applied to Individual Wrong-Doers,” Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 64 – 66:

Defense Counsel have urged that the responsibilities resulting from International Law do not apply to individuals. It is a fallacy of no small proportion that international obligations can apply only to the abstract legal entities called States. Nations can act only through human beings, and when Germany signed, ratified and promulgated the Hague and Geneva Conventions, she bound each one of her subjects to their observance.
...
Further arguing the proposition of individual non-responsibility for their clients, several defense counsel have submitted that this trial in effect represents a trial of the victors over the vanquished. This objection dissolves so quickly under a serious glance that one wonders if it was presented reflectively.... The defendants are in court not as members of a defeated nation but because they are charged with crime. They are being tried because they are accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation. The doctrine that no member of a wronged community may try an accused would for all practical purposes spell the end of justice in every country. It is the essence of criminal justice that the offended community inquires into the offense involved.

The opinion also alludes to "The Ten Commandments for Warfare of the German Soldier" which was printed in every soldier’s paybook –

1. While fighting for victory the German soldier will observe the rules of chivalrous warfare. Cruelties and senseless destruction are below his standard.
   
   
2. Combatants will be in uniform or will wear specially introduced and clearly distinguishable badges. Fighting in plain clothes or without such badges is prohibited.
   
   
3. No enemy who has surrendered will be killed, including partisans and spies. They will be duly punished by courts.
   
   
4. P.O.W. will not be ill-treated or insulted. While arms, maps, and records are to be taken away from them, their personal belongings will not be touched.
   
   
5. Dum-Dum bullets are prohibited; also no other bullets may be transformed into Dum-Dum.
   
   
6. Red Cross Institutions are sacrosanct. Injured enemies are to be treated in a humane way. Medical personnel and army chaplains may not be hindered in the execution of their medical, or clerical activities.
   
   
7. The civilian population is sacrosanct. No looting nor wanton destruction is permitted to the soldier. Landmarks of historical value or buildings serving religious purposes, art, science, or charity are to be especially respected. Deliveries in kind made, as well as services rendered by the population, may only be claimed if ordered by superiors and only against compensation.
   
   
8. Neutral territory will never be entered nor passed over by planes, nor shot at; it will not be the object of warlike activities of any kind.
   
   
9. If a German soldier is made a prisoner of war he will tell his name and rank if he is asked for it. Under no circumstances will he reveal to which unit he belongs, nor will he give any information about German military, political, and economic conditions. Neither promises nor threats may induce him to do so.
   
   
10. Offenses against the a/m matters of duty will be punished. Enemy offenses against the principles under 1 to 8 are to be reported. Reprisals are only permissible on order of higher commands.
    
    

Hmmh. High marks for attitude; low marks for execution.

As T.S. Eliot observed in The Hollow Men,

Between the idea
And the reality
...
Falls the Shadow.

As in the military of the Third Reich, it appears that between American ideals—both military and cultural—and the reality of our occupation of Iraq and Afghanistan quite a shadow has fallen.

Let us hope that the Nuremberg defense does not finally prevail.