Negating Nuremberg

by Martin Harris

For those of us who came of age in the post-WWII decades, the lessons of the 1945-6 Nuremberg trials of Nazi civilian and military criminals were mostly theoretical: none of us could envisage getting caught up in such governance or armed-forces behavior as they had practiced from 1932 to 1945. But one lesson was quite immediate for us as we entered various military, government, and corporate hierarchies on our career paths: “I was just following orders” is no defense or excuse for executing unlawful ones. In the US military, we junior officers were instructed at some depth on the Uniform Code of Military Justice, and those Articles –90, 91, 92, 134– which proscribe lying to or misleading of a superior officer, refusing a lawful order, and obeying an unlawful one. To the best knowledge of your Humble Scribe, the UCMJ isn’t specific on lying or misleading to others at the order of a superior officer, but the repeated references to lying and misleading as “obstructions of command”, and to the twin obligations to execute lawful (but not unlawful) orders make it clear that US government employees in uniform may not use the “good soldier” excuse which was so clearly rejected at Nuremberg. As Nuremberg fades into (mostly untaught in public school, any more) history, so, apparently, does the illegitimacy and illegality of the “good soldier” obeying unlawful orders.

Recent cases in point; multiple instances of Admin 44 executives and spokesmen saying things to media and public which were quickly proven false, things which, as highly intelligent and well-informed staffers, they clearly knew or should have known, were falsehoods at the times of dutiful recital. Think the “awful videos” of SoS emerita Clinton; the “not something I would do” denials of AG Holder: the “no targeting by the IRS” assurances of ex-Commissioners Miller, Shulman, and in-office Tax-Exempt-Section Chief Lerner; or the personal-credibility-shattering words of Prez 44 spokesman Carney, as they obey their boss’s (unwritten, of course) orders to, at best, mislead or confuse. All of the above have recently been described as “good soldiers” by the Main Stream Media as even its own most Admin-ideology-friendly writers and talkers have been forced to recognize the depth of these three current Executive-Branch-management scandals. These are UCMJ crimes for which an over-compliant junior officer would find himself up for, at the very least, an Article 15 procedure for violations of the lying, misleading, obstruction, and lawful-orders-only requirements.

For young adults, at the bottom of command hierarchies in the military or corporate worlds as they start their careers, refusing an unlawful order isn’t easy. Promotions and even paychecks are at risk. In the urban renewal years of the 60’s, we in the front-line design trenches knew full well that some of our reports and designs, based on taking properties by force of law from one set of private owners to award them at bargain prices to another, better-politically-situated set, were un-Constitutional and unlawful in essence, even if technically legal per recent SCOTUS decisions, but we went along, with our orders-from-above, to get along with our bosses and clients and keep our jobs. More recently, the same behavior by team-player, upwardly-ambitious, super-compliant government staffers in such States and Vermont and New York, and in such disciplines as educational facility planning and development planning and permitting, has been painfully visible: in Vermont, for example, think the various school-expansion capacity-increasing projects still being built, even while classrooms are typically half-filled (reduced class size policies will cause that) and overall enrollments continue downward (sound mathematical projections have been misleadingly ignored) and think such bending-of-the-rules as enabled the construction of the new Addison County courthouse in a standing-water wetland which, if privately owned, would never have been permitted.

For the top-level executives and spokesmen in Admin 44, the “I’m a good soldier because I really need this job” excuse doesn’t apply: they’re not really young any more, not just embarking on their professional careers, not paycheck-and-job vulnerable as they start families and aspire to upper-middle-class life-style adoption; any of them could have refused any unlawful order (or not-so-subtle pressure) to lie and mislead in Congressional hearings, press conferences, or public appearances, and even if de-fenestrated for their honesty, would have made an easy status- and economically-painless transition to any one of a number of sympathetic Washington think-tanks or Ivy League campuses. They didn’t. Why they didn’t and don’t (and as similar smaller-scale incidents in Vermont—think the multiple assertions by education careerists and experts, all of whom know better, that K-12 “excellence” has already been achieved– have shown) can’t be proven but can be theorized.

One theoretical dog which won’t hunt is the “I didn’t know” excuse. These “good soldiers” were hired for their knowledge, insight, skills, and productivity; they’re not even on the GS-1 to GS-15 employment/pay scale, but in the more elevated Executive Schedule and Senior Executive Service pay-and-benefits schedules. The ignorant, willfully or otherwise, don’t normally qualify. One dog which will is the “coalition-of-the-willing” concept: these are folks who share a common ideology (in these cases, Progressive) a common (upper-cohort) socio-economic status, and, perhaps most importantly, a common impetus to earn continuous peer-approval which requires doing and saying what the group considers “authentic”, even when each individual in it, silently doesn’t. For us excluded-from-high-level-political-circles types, directly observing the culture and behavior of this species in its preferred habitat isn’t feasible; but a very-nearly-comparable anthropological diorama can be observed at your neighborhood art exhibition, where highly-informed and technically-skilled professionals who can analyze in depth the differences and similarities between, say, works by Rubens and Piranesi, can be seen and heard declaiming to each other in the brie-and-chablis aficionado cluster on the “simply marvelous, don’t-you-know” paint-spatters of Jackson Pollack or the multiple-soup-can labels of Andy Warhol.

The UCMJ doesn’t catch all governmental miscreants; think the Corps of Engineers brass and spokesmen who told us things about, and got funding for, projects in stream channelization and levee construction which they have since had to, quite literally, de-construct, like the Kissimmee River work in Florida– but it doesn’t catch any at all in the out-of-uniform branches because, for example, it has no legal standing in or jurisdiction over Admin 44. Present disquieting events, which illustrate the contemporary negating of Nuremberg, wouldn’t be unfolding if it had and did.