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The German Reich Ministry of Justice issues a secret memo following a meeting of several Justice Ministry lawyers and public prosecutors with senior Gestapo officers. The participants discuss the fact that Germany has been on a war footing for years, and the leaders’ worry that the citizenry is riddled with sleeper cells of subversives. The solution: detaining and torturing subversives. It is unclear whether torture will be used to terrorize other subversives, to extract information, or produce confessions. German law enforcement officials are balky at applying “more rigorous interrogation” techniques. Though some judges seem unmoved by defendants appearing in court with obvious marks of torture upon their bodies, the law enforcement officers are bureaucrats in a system that has always respected the rule of law and the Hitler government was originally elected on a law-and-order platform. The memo is the product of the top officials in the Gestapo and Justice Ministry, and lays out detailed instructions as to when torture techniques can be applied, the specific equipment used in such interrogations, and how many times particular techniques could be used on certain categories of detainees. Perhaps most importantly, the memo promises immunity from prosecution to any German interrogator who follows the rules as laid down in the memo.
Specific Instructions - It reads in part: “At present, we thus have a situation which cannot continue: a deficient sense of what is right on the part of judicial officers; an undignified position for police officers, who try to help matters by foolish denials [that torture has taken place in court proceedings].… [I]nterrogations of this kind [torture] may be undertaken in cases where charges involve the immediate interests of the state.… chiefly treason and high treason. Representatives of the Gestapo expressed the opinion that a more rigorous interrogation could also be considered in cases of Jehovah’s Witnesses, explosives, and sabotage.… As a general principle, in more rigorous interrogations only blows with a club on the buttocks are permissible, up to 25 such blows. The number is to be determined in advance by the Gestapo.… Beginning with the tenth blow, a physician must be present. A standard club will be designated, to eliminate all irregularities.” Gestapo Headquarters in Berlin must give permission for more “rigorous interrogation[s],” the memo continues.
Drawing Parallels to Bush Administration Torture - The memo will be the subject of a 2009 article by Shayana Kadidal, the senior managing attorney of the Guantanamo project at the Center for Constitutional Rights. Kadidal will draw parallels between the Nazi torture authorization and similar legal justifications issued by the American government after the 9/11 attacks (see March 2, 2009 and April 21, 2009). Kadidal will write: “I realize that, as a matter of principle, there is a strong bias against making Nazi analogies to any events happening in our modern world.… But here we have: (1) a system set up to allow torture on certain specific individual detainees, (2) specifying standardized equipment for the torture (apparently down to the exact length of the club to be used), along with physician participation to ensure survival of the victim for the more several applications, (3) requiring prior approval of the use of torture from the central authorities in the justice department and intelligence agency in the capital, so as to ensure that (6) the local field officers actually carrying out the abuse are immune from prosecution.” (Kadidal 4/21/2009)
Most of the lawsuits filed against the US government and against a number of private telecommunications firms alleging illegal wiretapping of US citizens and foreign organizations (see January 31, 2006) are hampered by what legal experts call a “Catch 22” process: lawyers for the Justice Department and for the firms that are alleged to have cooperated with the government in wiretapping citizens and organizations argue that the lawsuits have no merits because the plaintiffs cannot prove that they were direct victims of government surveillance. At the same time, the lawyers argue that the government cannot reveal if any individuals were or were not monitored because the “state secrets privilege” (see March 9, 1953) allows it to withhold information if it might damage national security. Lawyer Shayana Kadidal, who is representing the Center for Constitutional Rights in another lawsuit on behalf of Guantanamo Bay detainees, says, “The government’s line is that if you don’t have evidence of actual surveillance, you lose on standing.”
One Lawsuit Has Evidence of Surveillance - But the lawsuit filed by Saudi charitable organization the Al Haramain Islamic Foundation (see February 28, 2006) is different, because the plaintiffs have an actual classified US document that they say proves their allegations. Kadidal says that because of that document, “[T]his is the only one with evidence of actual surveillance” and therefore has a much stronger chance of going forward. The Justice Department will not confirm, or deny, if anyone from Al Haramain was monitored either under the Terrorist Surveillance Program or any other government operation, but plaintiff lawyer Jon Eisenberg tells a judge in July 2007: “We know how many times [my client has] been surveilled. There is nothing left for this court to do except hear oral arguments on the legality of the program.”
Extraordinary Measures to Keep Document 'Secure' - Though the Justice Department has repeatedly argued that the Treasury Department document at the heart of the case is harmless and unrelated to NSA surveillance, it is taking extraordinary measures to keep it secure—it is held under strict government seal and remains classified as top secret. Even the plaintiff’s lawyers are no longer allowed to see the document, and have been forced to file briefs with the court based on their memories of the document. (Singel 3/5/2007)
Expert: Government Cannot Stop Case - The government probably does not have enough to derail the Al Haramain case, according to law professor Curtis Bradley. In August 2007, Bradley observes, “The biggest obstacle this litigation has faced is the problem showing someone was actually subjected to surveillance,” but the lawsuit “has a very good chance to proceed farther than the other cases because it’s impossible for the government to erase [the lawyers’] memories of the document.” (Elias 8/5/2007)
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