Christopher is right to remember Jackson's very powerful words. Let's recall them exactly:

If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. And we are not prepared to lay down the rule of criminal conduct against others which we would not be willing to have invoked against us. We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.

That really does go directly to the challenge we face today, doesn't it? America's credibility in prosecuting in 1946 rested on its firm undertaking to uphold the rules it articulated in that prosecution. There is no comparing America's mistakes in the war on terror with the crimes against humanity committed by the Axis Powers. But it's also clear that the Bush Administration has moved back from a number of very bright-line commitments that prior American administrations--start with Lincoln's--made with respect to the treatment of prisoners in war time. The challenge America faces now is to regain its credibility on that issue.

The question of universal standards is also very important. Countries always quibble over the interpretation of legal norms and treaties; that's the nature of human discourse and of diplomacy. But Nuremberg established the idea that there were a handful of these legal rules that were so fundamental that no state would be let off the hook with legal niceties--remember the German defendants at Nuremberg, in an argument that recalls many pages of memoranda by John Yoo, argued that the Soviet Union had not followed in the footsteps of Imperial Russia in embracing the Geneva Conventions, so it was not entitled to the benefit of those conventions. The Tribunal said essentially, "technically correct, but no matter." Most of those core rules that came out of Nuremberg had to do with the protection of prisoners--people who were hors de combat. Conservative legal scholars like Jack Goldsmith scoff at international law, but if you look at the book that Jack wrote with Eric Posner on international law, try and find their discussion of international humanitarian law. There isn't any. That's because it defies all the simplistic generalizations they make at the outset of their book; it "doesn't fit the model." So they'd prefer to wish it into oblivion, apparently.

Somehow the Bush Administration fell onto a very dangerous track, thinking that if it had sufficiently clever lawyers, it would reason its way out of any commitment. So, I agree with Christopher--universal standards may never be realized in some sort of absolute way, but the community will form an agreement about the core rules. And one of them is that you can't torture. No exceptions.

In the debate over the Military Commissions Act, one of the earliest objections raised by Senators McCain and Graham, quite rightly, was the risk that the Bush Administration was crafting a U.S. view of Geneva that was very distant both from the prevailing view in the world and the historical U.S. view taken by American administrations up to that time. From the military professional's perspective, you simply can't keep changing these rules--certainly not in such a sweeping way--without confusing the people who are supposed to apply them. From the policy maker's perspective it puts too much risk on U.S. actors, meaning they might take conduct that the world community--or at least a number of important players in that community--would see as criminal. One of the changes that was negotiated in the MCA addressed this to some extent. As one of McCain's aides told me, the redefinition of war crimes in the MCA meant that there would be war crimes as to which the statute did not grant explicit enforcement authority. This conduct was still a war crime, and might still be prosecuted by others. And when we look at the MCA and the changes in definition that the Administration sought, it's clear that they were running a jigsaw through the statute trying to avoid prosecutions for waterboarding, hypothermia, long-time standing, the use of psychotropic drugs and other acts of torture that they had embraced. They were trying to protect themselves from prosecution. At some point, sooner rather than later, the next administration will have to disentangle us from the enormous mess that Bush Administration created. The accountability of Bush policy makers is a part of that picture.