Bush and Hitler: What The `Torture Memos' Reveal

"In the Spring of 1941, as Nazi Germany was preparing to invade the Soviet Union, Adolf Hitler issued an infamous edict which has become known as the "Commissar Order," to govern the conduct of German armed forces on the Eastern Front. This order provides a largely-unnoticed precedent for the "legal" rationalizations found in a number of hitherto-secret Bush Administration legal memoranda, which have recently come to light.
As is documented in William L. Shirer's The Rise and Fall of the Third Reich, Hitler outlined this policy during a meeting with the heads of the three armed services and key army field commanders early in March 1941: "The war against Russia will be such that it cannot be conducted in a knightly fashion. This struggle is one of ideologies and racial differences and will have to be conducted with unprecedented, unmerciful, and unrelenting harshness. All officers will have to rid themselves of obsolete ideologies.... German soldiers guilty of breaking international law will be excused. Russia has not participated in the Hague Convention and therefore has no rights under it."
On May 13, 1941, Field Marshal Wilhelm Keitel, the head of the Armed Forces High Command, issued an order in Hitler's name, severely limiting functions of the military courts martial system, and virtually giving immunity to German forces for war crimes against Russians: "With regard to offenses committed against enemy civilians by members of the Wehrmacht, prosecution is not obligatory, even where the deed is at the same time a military crime or offense." Yhe army was explicitly instructed to go easy on any such German offenders, "remembering in each case all the harm done to Germany since 1918 by the 'Bolsheviki.' "
Underlying such orders was the legal philosophy set forward by the "Crown Jurist of the Third Reich," Carl Schmitt, whose writings have unfortunately undergone a revival in the United States in recent years. Schmitt contended that, in times of emergency and crisis, the actions of the Leader were not subordinate to justice, but constituted the "highest justice." In passages which remind one of the legal defenses of "necessity" and "self-defense" posed by John Ashcroft's Justice Department (DOJ) today, Schmitt wrote: "All law is derived from the people's right to existence. Every state law, every judgment of the courts, contains only so much justice, as it derives from this source. The content and the scope of his action, is determined only by the Leader himself."
President George W. Bush's counsel, Alberto Gonzales, addressed a memorandum to the President on Jan. 25, 2002, about four months into the "war of terrorism." Gonzales noted that Bush had called the war against terrorism "a new kind of war," which "renders obsolete" and "quaint" some of the provisions of the Geneva Convention on the treatment of prisoners of war. And Gonzales warned the President that he and other officials stood in potential danger of being prosecuted for war crimes; he suggested steps that could be taken by Bush to set up "a solid defense to any future prosecution"—most importantly, to declare that the Geneva Convention did not apply to the war against Taliban and Al-Qaeda in Afghanistan."