Justice and the Enemy: The Case for Guantanamo

Critics of military courts sometimes complain that the accused have far less rights than in the federal system. This is not so. Any Nazi defendant transported by time machine from Nuremberg to Guantanamo would be stunned by the rights, privileges, and safeguards to which he was now entitled.
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Pre-trial proceedings against Khaled Sheikh Mohammed and other 9/11 suspects held in Guantanamo are likely to begin as early as March. As arguments continue to rage today over Obama's reversal of his commitment in 2009 to put these suspects on trial in U.S. federal courts, distinguished author and historian William Shawcross offers a defense of Obama's decision. In an excerpt from his just-released book, JUSTICE AND THE ENEMY: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed, Shawcross draws lessons from the famous trials of Nazi war criminals, over which his father, Hartley, presided as lead prosecutor.

THE JUDGMENT OF evil is never simple. When considering the case of Khalid Sheikh Mohammed, the so-called "mastermind" of the 9/11 attacks on America and of many other murders around the world, I recalled the work of the philosopher George Steiner, who has written at length on the consequences of Nazi crimes.

In 1981, Steiner caused a sensation by creating a novella--The Portage to San Cristobal of A.H.--in which a group of Jewish Nazi hunters discover Hitler, deep in the Amazon jungle, three decades after the end of the Second World War. Many prominent Nazis had indeed fled to South America after their defeat in May 1945; the most important to be discovered was Adolf Eichmann, whom the Israelis kidnapped and spirited to Israel in 1960.

In Jerusalem, Eichmann was put on trial, found guilty, and hanged. Hannah Arendt, writing of that trial, famously spoke of "the banality of evil." By this controversial phrase she did not mean that the evil acts of mass murder of Jews for which Eichmann was responsible were commonplace. Rather she felt that it was not the presence of hatred in Eichmann that drove him to send so many people to their deaths, but the absence of imagination. It was the juxtaposition of evil deeds and the failure to make judgments that Arendt called "banal."

Eichmann himself maintained after his arrest that he was merely following orders and that he had abdicated his conscience in order to follow the Fuhrerprinzip. But that was not true. In 2011, the German news magazine, Der Spiegel, published an investigation of Eichmann based on what it said were "formerly confidential, secret and top-secret documents." These included taped conversations Eichmann had with friends in Buenos Aires before the Israelis caught him. On one occasion he boasted of his crimes, "I was no ordinary recipient of orders. If I had been one, I would have been a fool. Instead, I was part of the thought process. I was an idealist." His only regret was in not having murdered all the Jews. "We didn't do our work correctly," he said. "There was more that could have been done."

In the case of the Fuhrer himself, Steiner began to wonder: What if Hitler, as well as Eichmann, had actually escaped his Berlin bunker, had gotten himself to Latin America, and had lived there, hidden, ever since? If, like Eichmann, he was finally discovered, how should he be dealt with--how should he be tried for his crimes?

Steiner, himself a refugee from Nazi Europe, had always been preoccupied by the power of language. He was haunted by an early 1920s photograph of Hitler "standing like a beggar, with a torn raincoat in front of him, and no one is listening to him. But then 10 people listened, and then a million. . . . " Hitler's eloquence had been overwhelming and within 10 years it had propelled him to be master of Germany and then of Europe, "and, had he, for example, decided to woo his Jewish atomic scientists, he might well have been master of everything."

Steiner began to write The Portage in 1975, at a time when stories of the horrors perpetrated by the Khmer Rouge were being reported by refugees from Cambodia. He asserted that the book sprang "out of my thinking about the horror and terror of the Holocaust. I insist on this, because this novel is also about Cambodia and Vietnam, El Salvador and Burundi, and so on. My feeling is that one has to grapple with the abyss if one can."

In the novella, the Jewish team discovers Hitler and starts to carry him out of the jungle to civilization. But rumors that the Fuhrer has been found flash around the world, as fast as was already possible in
those innocent pre-Internet days. The powers who won the war -- the United States, the Soviet Union, Britain, and France -- all begin to ponder the implications of Hitler's return. Fierce arguments begin over where and how he should be put on trial -- and under what jurisdiction. Deep in the jungle, Hitler's Israeli captors have similar debates. What should be done with him? Burn him at the stake? Set him free as a beggar in Israel itself ?

In violent rainstorms, the search party's radio breaks down. They have to decide whether to sit out the weather and then deliver Hitler as planned to San Cristobal, or whether the risk of their captive
being stolen from them, either by some nation or some media emperor, is too great. They understand that once the world knows that Hitler is being brought out of the jungle, airfields will be dug, roads
bulldozed through the trees. "And a million television cameras. And a Hilton. . . . they'd come like locusts. And take him from us. That's the whole point. They'd take him to New York or Moscow or
Nuremberg. And we'd be lucky if they allowed us to stand in the anteroom peering over a million heads."

Instead, they decide to conduct their own trial, complete with judge, prosecution, and defense attorneys selected from their own party. Remarkably, Steiner gives Hitler almost the last word: The climax of the
book is Hitler's self-defense. It was from the Jews, he declares, that he learned everything. "To set a race apart. To keep it from defilement. To hold before it a promised land. . . . My racism is a parody of yours, a hungry imitation. What is a thousand-year Reich compared with the eternity of Zion?"

Steiner's Hitler insists that he was not the originator of evil in our time--Stalin, he points out, "had perfected genocide when I was still a nameless scribbler in Munich." Stalin killed 30 million people--far
more than he, Hitler. "Our terrors were a village carnival compared with his. Our camps covered absurd acres; he had strung wire and death pits around a continent. . . . How many Jews did Stalin kill, your saviour, your ally Stalin? Answer me that . . . Stalin died in bed and the world stood hushed before the tiger's rest. Whereas you hunt me down like a rabid dog, put me on trial (by what right, by what mandate?)."

Finally, "Hitler" claims that he, the persecutor of the Jews, was also their benefactor; the Holocaust was the principal reason they were able to create Israel. "Perhaps I am the Messiah . . . whose infamous deeds were allowed by God in order to bring His people home."

As his speech ends, Teku, the party's Indian tracker, leaps to his feet and shouts, with startling vagueness, "Proved." As he does so, raucous drumbeats break the air above the clearing where the trial is taking place. The first helicopter from the ravenous world has arrived.

The book caused angry debate when it was published--comments ranged from "masterpiece" to "obscene"--and Steiner was criticized for, inter alia, giving the last word to Hitler. In his own defense, Steiner pointed out that Milton does not provide a real answer to the eloquence of Satan in Paradise Lost; nor does Dostoyevsky rebut the overwhelming speech by the Grand Inquisitor in The Brothers Karamazov. Steiner also pointed out that he gave the name Teku to the Indian tracker because "it is the Hebrew word used in the Talmud to say that there are issues here beyond our wisdom to answer or decide."

Thirty years later, Steiner's discomfiting meditation on the ambiguity of dispensing justice in an imperfect world seems to have anticipated many of the questions raised in the national and international debates over the best way to bring justice to the leadership of the Al Qaeda terrorist

Brought to trial, Steiner's Hitler was supremely unrepentant. He used the dock as a pulpit from which he not only defended himself but also preached, brilliantly. With his inversion of good and evil, he outwitted his accusers and compounded the victimization of those he had killed. That fictional spectacle anticipated the perversity that many Americans feared would result if, as the Obama administration originally wished, Khalid Sheikh Mohammed went on trial in a civil court in lower Manhattan. The mastermind of the September 11, 2001 attacks on America was also a master demagogue. He would seize the opportunity to inspire his followers around the world to continue Al Qaeda's campaign of mass murder against the American people.

On May 2, 2011, the debate over how to bring America's enemies to account was thrown into even sharper relief when a team of U.S. Navy SEALs carried out a lightning raid in Abbottabad, and killed bin Laden. "Justice has been done," said President Obama. Not everyone agreed.

Since 9/11, America's attempts to balance justice and national security have drawn criticism at home and abroad. Some has been fair but much of it ignores the difficulties and dilemmas that the U.S. government faces in dealing appropriately with 21st-century terrorists while fulfilling its principal obligation to protect the lives of its own citizens.

The arguments continue to rage today over Obama's decision to reverse his commitment in 2009 to put Khaled Sheikh Mohammed and other 9/11 suspects held in Guantanamo on trial in the federal courts on the US mainland. Instead, the administration decided last year that they would be tried in Guantanamo in the military commissions system, as reformed by Congress in 2009

Pretrial proceedings are likely to begin as early as March. The Chief Prosecutor in the Military Commissions is General Mark Martins, a distinguished military lawyer who has most recently been the commander of the Rule of Law Field Force-Afghanistan. This is an excellent choice -- Martins has thought long and hard about military commissions, their history, and their utility in today's difficult circumstances.

He has a hugely important and difficult task. In many ways he is the direct successor of Justice Robert Jackson, the Chief U.S. Prosecutor at the Military Tribunal in Nuremberg, where the leading Nazis were tried at the end of the Second World War. But in some ways his task is more difficult than that of Jackson, because then there was broad consensus on the ways in which the war criminals were judged. Not so today.

In a recent speech to the New York City Bar Association, General Martins talked of the need for pragmatism in deciding how best to enhance the security of the U.S. and the safety of the American people. The most effective and sustainable instruments "are ones that are constrained and guided by our core values, including the rule of law." Martins is determined that those tried in Guantanamo shall have, and shall be seen to have, totally fair trials.

He argues that both the federal courts and the military commissions have a role to play in terrorism cases. In many, if not most, cases the federal courts would be the most appropriate forum, but in cases of violations of the rules of war, the reformed military commissions would have the edge. Critics of military courts sometimes complain that the accused have far less rights than in the federal system.

This is not so -- in fact the two systems are remarkably similar. In the military commissions as in the federal courts, "The accused is presumed innocent. The prosecution must prove his guilt beyond a reasonable doubt. The accused has: the right to notice of the charges; the right to counsel and choice of counsel; the right to be present during the proceedings; the right against self-incrimination; protections against use of statements obtained through torture or cruel, inhuman or degrading treatment; the right to present evidence, cross examine witnesses, and compel attendance of witnesses in his defense, and so on. Most important of all he has the right to appeal against any guilty verdict through the federal civilian court of appeals and ultimately all the way to the Supreme Court.

Any Nazi defendant transported by time machine from the dock in Nuremberg to that in Guantanamo would be stunned by the rights, privileges, and safeguards to which he was now entitled. Most basic of all, there was no right of appeal at Nuremberg. As General Martins said, "Like our forebears [at Nuremberg], we are not seeking "victors' justice," but justice consistent with the rule of law and our longstanding values and ideals."
I am confident that the trial of Khaled Sheikh Mohammed et al, conducted by General Martins, will be seen to be fair and appropriate. It will protect both the rights of the defendants and the security of the United States and its people.

Like Nuremberg it will address not just a group of thugs but the enduring human phenomenon of evil. No two eras are the same, nor are the threats they face identical. Evil reinvents itself. Like the fascistic ideology that the democratic world fought in the 1940s, the dogmas of Al Qaida and of the Shiite extremist dictators of Iran is despotic, ruthless, anti-Semitic, anti-Christian, and nihilist. They are responsible for the murders of thousands and thousands of people and almost every day we are reminded by the latest car bomb or suicide bomber of their war against the world.

It is important to recall that the vast majority of their victims are other Muslims and to remember that their demands are non-negotiable. They cannot be appeased, any more than the Nazis could be appeased. They must be fought and defeated. This will not be easy. It is worth recalling Reinhold Niebuhr's warning that "we take and must continue to take, morally hazardous actions to preserve our civilisation."

Mistakes have been made by the U.S. since 9/11. That is no surprise -- as Churchill famously said, "War is a catalogue of errors." But America's errors in the war that was forced upon it have been broadcast in endless, unforgiving loops around and around the world. It is a tribute to the United States that fair criticisms are absorbed not rejected.

There is every reason to believe that the nation and its courts, military as well as civilian, will continue to interpret the law in exemplary fashion, with the defendants enjoying far more rights than their predecessors did at Nuremberg. Enormous care has been taken to ensure that that is so -- and America has the right to be proud of that, as well as of so much else.

Adapted from JUSTICE AND THE ENEMY: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed by William Shawcross. Published in January 2012 by PublicAffairs, a member of the Perseus Books Group.

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