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The Four Torture Memos, Eichmann and the Obama Administration, Part III

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Headlined to H3 5/18/09

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This post has been written and posted in three installments that were significantly separated in time. The first, consisting of an invented Nazi legal opinion, was posted on April 23rd, the second, dealing with the new book "Hunting Eichmann," was posted on May 7th, and the third is being posted on May 18th.  Because of the separations between postings, I am reposting the first two with the third on May 18th.  Those of you who have read and remember the first two might want to skip directly to the third.  (Or you might want to reread or skim the first two to readily get a sense of the progression of ideas.)  

PART I

 

I have read the four memoranda that were recently released by the DOJ and authorized torture.  Permit me to invent a similar but short memo that will allow the reader, without reading the approximately 120 densely packed pages of the four memos, to grasp their style, their character, their techniques, their aims, and, inherently and avoidably, the nature of the people who wrote or signed off on them:  John Yoo, Jay Bybee and Steven Bradbury. 

  

To:       Reinhard Heydrich

 

From:   Joseph Alstotter, Chief of Section of Legality

 

Re:       Transportation

 

Date:    February 1, 1942

  

You have asked the legal opinion of the Section of Legality on a matter related to transportation.

 

You have informed us that the trains containing persons being taken to Auschwitz, mostly Jews, have cars in which the transportees are so numerous that they are forced to stand for the entire trip, which takes five days and eleven hours.  Because of the close packing of standing bodies within the cars, there is a lack of air:  the conditions are suffocating.  Although the transportees are allowed out of the car for fifteen minutes once every eight hours, when they are each fed half a bowlful of thin gruel by the side of the tracks, the conditions of transportation cause some of them to weaken so greatly that they suffocate inside the cars.  Or by somehow sliding to the floor (even though the close packing of the bodies causes some of their bodies to be held vertical for a period after they have already died), they become trampled to death.  Old women, old men, and young children, you inform us, are the ones most susceptible to dying by suffocation or by being trampled after sliding to the floor.

 

You further inform us that, when the trains stop once every eight hours and people get off to eat, there usually are a number of transportees who are too weak to get back on the train or who feign such weakness.  These individuals are quickly examined by a doctor who accompanies the train for this purpose.  If the examination shows them to be too weak to continue, they are shot and left by the side of the tracks.  Medical officers attest that the shootings cause no unnecessary or long lasting pain because the people are shot by pressing the muzzle of a pistol directly against the back of the head so that death is instantaneous. 

 

You have informed us that the train cars are packed as tightly as they are because of military necessity.  Our armies are fighting the Bolsheviki in a life and death struggle on the eastern front.  If we lose the war on the Bolsheviki front, Germany will be laid waste and will cease to exist as a nation.  There is therefore an overwhelming military necessity to use the railroad, one of Poland's few, to move a continuous stream of tanks, artillery, small arms, ammunition, food, etc. to our eastern armies.  Engines and cars are thus employed exclusively for that purpose, with the sole exception that once each week an engine and ten cars are used to transport Jews to Auschwitz.   This movement of the Jews is essential because they, like the Bolsheviki, are a bone in the throat to the German people and must be eliminated for Greater Germany to survive and prosper.  (Not surprisingly, they often are the leaders of the Bolsheviki.)  Transporting Jews to Auschwitz carries out a major policy decision of the Fuhrer and his advisers established at the Wannsee Conference in 1941 and set forth in appropriate prior memos from this office.

 

As you have explained to us, this railroad transportation of the Jews, as essential as it is, must be done in a way that minimizes interruption of, or interference with, the movement of supplies to our eastern armies.  The cars are therefore packed as tightly as they are, since otherwise three trains per week would be required instead of just one, with a corresponding adverse impact on the movement of supplies to our armies and a correspondingly enhanced risk of losing the war against the Bolsheviki, with the accompanying destruction of Germany.

 

** * * *

 

You have asked us, in light of these facts, to opine on whether the transportation of Jews to Auschwitz in this way is a crime against international law in violation of the rule laid down in the 1921 case of Van Devent v. Hohenzollern.  Our opinion on this question is required because, now that the United States, under the Rooseveltian Jewish cabal, has entered the war against us, a few officers and soldiers who are involved in the transportation of Jews have asked for assurance that this is legal, lest they be subject to punishment as war criminals should Germany unexpectedly lose the war.  You recognize that this kind of defeatism could be handled in the usual way, by shooting the offender or hanging him from a lamppost, but you think it would be better if it were possible to obtain an opinion from the Section of Legality holding that no crime is being committed and there can therefore be no punishment for any supposed violation of international law. 

 

It is our judgment that the transportation to Auschwitz, as you have described it to us, is not a crime, is completely lawful, and cannot be punished.  In Van Devent v. Hohenzollern, German soldiers had been fired on by partisans, who were not in uniform, as the Kaiser's armies moved through Belgium in 1914.  (The partisans would fire from roofs, windows, etc.)  In consequence, when the Kaiser's army would enter a Dutch town, it began to shoot three or four of the leading citizens -- the mayor and town councilmen, for example -- as a warning to other partisans of what would happen if German soldiers were killed by nonuniformed partisans. This expedient worked very well, since the shooting of German soldiers by partisans ceased.

 

Nonetheless, the Dutch court ruled in 1921 that the shooting of town leaders as a warning to potential partisans constituted a crime under international law. The court's reasoning was that an army going through enemy territory cannot shoot innocent people, or anyone under its control whether innocent or not. The court said that the shooting of innocents, or even of guilty parties without some form of suitable trial to establish guilt, cannot be part of state or military policy under international law, and necessarily is, instead, a crime, under international law.

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.
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