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Unpublished Paper
Eichmann Defenses
ExpressO (2012)
  • Kyron J Huigens, Cardozo School of Law

Some members of the administration of George W. Bush authorized the torture of detainees in their “Global War on Terror,” and members of the armed forces and intelligence services performed this torture. In this essay, I will argue that these officials – the Bush cohort, as I will call them – did not choose torture, with due deliberation, as the lesser evil of two evils. Their words and acts betray a belief that they had a duty to to the American people that overrode their duties under national and transnational criminal law; that the performance of this duty required them to torture; and that the moral extremity of this act was itself exonerating. This is morally indistinguishable from Adolph Eichmann’s defense – at his trial in Israel, in 1961, for genocide and crimes against humanity – that his crimes should be viewed in a favorable light, as the diligent performance of a duty owed to the German people.

Hannah Arendt described Eichmann’s conscience as having been inverted by Nazi ideology, and she was taken to be suggesting that he should be excused because of this disability. In fact, she described the Nazis as relieving themselves of the burdens of conscience, and condemned them for it. Similarly, able scholars have lately suggested excuses of conscience for officials who torture, without actually offering their analyses as defenses for the Bush cohort. But their arguments are as easily subject to misinterpretation as Arendt’s was. The Bush cohort were not engaged in civil disobedience, and nor should they be exonerated under Christian morality, as the work of these scholars suggests. Their only viable excuse of conscience is a claim of conscientious objection – a defense that has never been recognized in criminal law, for sound rule of law reasons. In any event, a substantive conception of conscience – seen not as a faculty that might malfunction, but instead as an act that entails a responsibility for self-examination – distinguishes the Bush cohort from the genuine conscientious objector. The Bush cohort’s wholesale failures of conscience are no more an excuse than Eichmann’s inverted conscience was.

Apologists for the Bush cohort will dismiss this essay as an exercise in name-calling. I hope, instead, to give things their proper names. The Bush cohort found it necessary to re-name torture “enhanced interrogation.” They confused their oath to protect and defend the constitution and laws of the United States with a vague, martial duty to “homeland security.” This corruption of language is a symptom of a disease: an authoritarian hostility to constitutional democracy. This language is used to politicize crime, exploit fear, and license oppression. To call the Bush cohort’s defenses what they are – Eichmann defenses – might go some way toward restoring honest language in a dangerous time.

  • torture,
  • Bush administration
Publication Date
July 25, 2012
Citation Information
Kyron J Huigens. "Eichmann Defenses" ExpressO (2012)
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