In “The Torture Lawyers” published at 51 Harv. Int’l L.J. 193 (2010) and available in Scholarship@Cornell Law, Cornell Law Professor Jens Ohlin examines the use of the justified necessity and excused necessity defenses by government agents who engaged in acts of what many consider to be torture during the Bush Administration. Professor Ohlin then discusses why Bush Administration attorneys who advocated the use of torture and may be considered accomplices in torture cannot successfully use these same defenses under the “flow-down” theory. To counter the objection that attorneys cannot be prosecuted simply for giving advice, Professor Ohlin examines two cases from the Nuremberg trials:
- Prosecutor v. Altstoetter et al. (the Justice Case), in which members of the German Justice Ministry were charged with giving legal effect to Nazi statutes and decrees that stripped the right to due process of law from many groups and individuals throughout Germany and German-controlled territories.
- United States v. von Weizsaecker et al. (the Ministries Case), in which members of Nazi ministries, including the Foreign Policy Office, were charged with war crimes stemming from their advisement of Nazi leaders regarding the deportation of Jews to concentration camps and other actions.
For other work by Professor Ohlin, see his faculty publications page. I recommend the following:
- “The Law as Cruelty: Torture as an International Crime,” 6 Journal of International Criminal Justice (guest editor with G. P. Fletcher) Special Issue, (2008); and also
- Defending Humanity: When Force is Justified and Why (with G. P. Fletcher) (Oxford University Press, 2008).
