The Four Torture Memos, Eichmann, And The Obama Administration

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 Deventv. 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.

As we have stated previously, however, the German government does not accept that the tribunals of foreign governments can establish the rules governing what it is legal or not legal for the German government to do. Therefore, the decision in Van Devent v. Hohenzollern cannot govern German soldiers in the performance of their duty. In the present case, moreover, and regardless of what the Dutch court said can or cannot be part of state policy, it is clear that transporting Jews to Auschwitz is the state policy of the German Reich, in accordance with the will of the Fuhrer and the decisions of the Wansee Conference, which he has approved. It is equally clear, as stated in our memorandum of December 15, 1941, that it is Germany’s state and military policy to fight a war of annihilation against the Bolsheviki on the eastern front.

The mode of transportation to Auschwitz melds the two state policies: it transports enemies of the German people (the Jews) to Auschwitz for annihilation, sometimes after a suitable period of working in mines and factories for the Third Reich, while minimizing interference with the transportation of tanks, guns, ammunition, food, etc. to German troops fighting a desperate war against the Bolsheviki on the eastern front.

Because war against the Bolsheviki and annihilation of the Jews are both high state policies, and the transportation of the Jews is done in a way that carries forward that policy while minimizing interference with the policy of war against the Bolsheviki, it is our opinion that the transportation, as carried out, cannot and does not violate any rule of law.

Our opinion is limited to the facts as you have described them to us, and is not intended to cover any different or altered facts.

Please let us know if we can be of further assistance.

— Joseph Alstotter
Chief of Section of Legality

From the foregoing short invention, whose style, character, techniques and aims mimic many a legal memo and in particular mimic the four torture memos, one can readily grasp a lot. The short invented memo exemplifies the kind of language used in the four Department of Justice memos: formal, legalistic, bloodless, designed to camouflage the most horrible conduct in abstract formulations. It mimics the acceptance, use, and non-questioning of facts and arguments that have been provided by the persons who seek the legal opinions for their own protection. It mimics the torture memos’ use of legal materials to approve monstrous actions, which is done at phenomenal length in the four torture memos (as if extreme long-windedness can substitute for rightness). It mimics the transparent goal of trying to clothe the most awful actions in high sounding reasons of state in order to justify such actions under the law. It mimics the four memos’ (obviously guilt-caused) effort to escape responsibility as much as possible by saying it is confined to the facts given to the writer. It mimics the self referential technique of referring to prior memos from the same office which say the same things. It mimics the four memos’ claim that the most horrible acts are performed in a way that supposedly causes no pain — which the authors of the torture memos have no real way of knowing since they were not themselves subjected to the techniques nor even present to see their effects. It mimics the claim that acts are overseen by medical personnel. It shows how, as in the four memos, the techniques of writing and law can be used to justify the most horrific conduct while pretending to be an exercise in legitimate lawyering. It shows why the New York Times said, on Sunday, April 19th (as has been said here in part in previous postings):

These memos are not an honest attempt to set the legal limits on interrogations, which was the authors’ statutory obligation. They were written to provide legal immunity for acts that are clearly illegal, immoral and a violation of this country’s most basic values.

It sounds like the plot of a mob film, except the lawyers asking how much their clients can get away with are from the C.I.A. and the lawyers coaching them on how to commit the abuses are from the Justice Department. And it all played out with the blessing of the defense secretary, the attorney general, the intelligence director and, most likely, President Bush and Vice President Dick Cheney.

And it mimics the transparent fact, or at least it would if it had been written “for real” instead of only to enable readers to understand the nature of the torture memos, that the authors of the torture memos are monsters disguised as human beings.

Lawrence R. Velvel is Dean of the Massachusetts School of Law. He maintains the blog He can be reached at: The views expressed in this essay are solely his. Read other articles by Lawrence, or visit Lawrence's website.

8 comments on this article so far ...

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  1. Dale Emde said on April 27th, 2009 at 3:14pm #

    The first question I would ask Dean Velvel is, “Have you ever held and fired a weapon in defense of the United States of America? Secondly I would say that you personify the type of professor which infests the universities in the U.S. You’re almost as safe as a U.S supreme Court Justice. No danger of being fired so you dream up all sorts of accusations against this country to while away your soft and unsatisfactory existence. You are absolutely wrong on your conclusions.
    What would you say if I told you that I believe Bush and crew were involved with carrying out 9/11 and that the Federal Reserve must be dismantled or
    our end is near? Why don’t you enrich our knowledge on those two comments? Just don’t be so verbose. Dale Emde

  2. ron said on April 27th, 2009 at 5:07pm #

    Thank you for this…

  3. James Benjamin said on April 27th, 2009 at 6:47pm #

    Interesting thought experiment. Hopefully it’s a thought experiment that will reach a wide enough audience.

  4. mary said on April 28th, 2009 at 7:31am #

    HM Ambassador to Uzbekistan Craig Murray, until he was sacked, gave his evidence this afternoon on the existence of torture in that country and the complicity of the US and UK governments in its use. He fought long and hard to be heard. Here he is and the session lasts for an hour.

  5. Louise Heron said on April 28th, 2009 at 1:22pm #

    Does Dale Emde believe only those who have served in the military have a right to criticize torturers? I would like to read Dean Vevel’s comparison of the apologists of these tortures, including the propagandists/journalists such as Joe Scarborough (there are many), to those who were charged with war crimes in Nuremberg.

    Mr. Emde, we don’t need people serving in the military or the intelligence agencies who mistakenly believe that torturing people makes us safer, or that there is any moral justification for such depravity.

    If anyone thinks we shouldn’t look back and hold everyone–everyone!–legally accountable from top to bottom for the tortures, read Professor Ali Shalal’s testimony:
    He’s the iconigraphic symbol of the U.S. toture program. His guilt? He’s a Muslim professor of theology, and therefore he’s “anti-Semitic” and knows Osama bin Laden’s whereabouts and supports the resistance to U.S. occupation of Iraq. His torturers despise intellectuals as well and no doubt took extra glee in humiliating a professor who refused to give them the answers they demanded.

  6. Josie Michel-Brüning said on April 29th, 2009 at 6:39am #

    As a German woman I’m appreciating this article very much. Having in mind our own shameful history as well as what some of your journalists and politicians are publishing or saying in Congress sessions, for instance Anita Snow in “Miami Herald” or politicians in the “House Appropriations Subcommittee on State, Foreign Operations, and Related Programs” , see: Video:
    I’m not only frightened by what the Bush administration was able to carry out backed by the respective lobbies in your country, I am also fearing for Obama’s life, if he would plead for prosecuting those torturers.
    According to Anita Snow ( Apr. 21, 2009): “But Obama could suffer serious political fallout if he agreed to swap the so-called Cuban Five – communist agents who were convicted of espionage in Miami in 2001.”
    Meanwhile, the confessed murderers as Luis Posada Carriles enjoy impunity.

  7. mary said on April 29th, 2009 at 8:52am #

    Craig Murray is dejected today. There was not one mention of his appearance on Parliament yesterday in the s0-called mainstream media apart from a page on the BBC website hidden away in the Politics page and a piece on Radio 4 this morning.

    He writes about it here Nobody Can Hear You Scream

    and ends by writing –

    “I was trying to speak up for those who have no voice. I feel very strongly that I have let them down.

    Only their torturers heard their screams, and hardly anybody else heard my voice either.”

    Within the link there is a link to the YouTube version of his evidence.

    Josie – I do not think there is any chance of Obama pursuing those in the previous administration for their crimes against humanity. He will close Guantanamo but the horrors will continue in Bagram.

  8. Josie Michel-Brüning said on April 30th, 2009 at 3:14am #

    Thanks for the link, Mary!