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Justice and the Enemy
Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed
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The war against Al Qaeda is a war like no other. Osama bin Laden, Al Qaeda’s founder, was killed in Pakistan by Navy Seals. Few people in America felt anything other than that justice had been served. But what about the man who conceived and executed the 9/11 attacks on the US, Khalid Sheikh Mohammed? What kind of justice does he deserve? The U.S. has tried to find the high ground by offering KSM a trial — albeit in the form of military tribunal. But is this hypocritical? Indecisive? Half-hearted? Or merely the best application of justice possible for a man who is implacably opposed to the civilization that the justice system supports and is derived from? In this book, William Shawcross explores the visceral debate that these questions have provoked over the proper application of democratic values in a time of war, and the enduring dilemma posed to all victors in war: how to treat the worst of your enemies.
ALSO BY WILLIAM SHAWCROSS
Dubcek: Dubcek and Czechoslovakia 1918–1968
Crime and Compromise: Janos Kadar and the Politics of Hungary since Revolution
Sideshow: Kissinger, Nixon, and the Destruction of Cambodia
The Quality of Mercy: Cambodia, Holocaust, and Modern Conscience
The Shah's Last Ride: The Fate of an Ally
Murdoch: The Making of a Media Empire
Deliver Us from Evil: Warlords, Peacekeepers, and a World of Endless Conflict
Queen and Country
Allies: Why the West Had to Remove Saddam
Queen Elizabeth, The Queen Mother: The Official Biography
For Anthony Smith, constant friend
Salus populi suprema lex.
The safety of the people shall be the highest law.
–Cicero, De Legibus, Book iii, sec. 3,
derived by tradition from the
Twelve Tables of Roman law
derived by tradition from the
Twelve Tables of Roman law
Laws are formed by the manners and exigencies of particular times, and it is but accidental that they last longer than their causes.
–Samuel Johnson, "Letter to James
Boswell," February 3, 1776
Boswell," February 3, 1776
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 AH—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." 1
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 ten people listened, and then a million. . . ." Hitler's eloquence had been overwhelming and within ten 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." 2
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 rainstor ms, 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 thirty 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." 3
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 movement.
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 twenty-first century terrorists while fulfilling its principal obligation to protect the lives of its own citizens.
This book seeks to examine how to bring justice to an enemy that, unlike at Nuremberg, has not been defeated and that demands nothing less than the destruction of the Western world.
THE TWENTIETH CENTURY WAS, amongst many other things, the century of mass murder. Totalitarians—Nazis and Communists—killed or caused the deaths of hundreds of millions of people around the world. The grim symbol of the crimes became the mass grave.
In the summer of 1980, I was taken by officials of the Cambodian government to see such graves.a These were a few miles outside the capital, Phnom Penh, and they contained the bodies of thousands of Cambodians who had recently been murdered by their Communist Khmer Rouge rulers.
The Khmer Rouge had been in power between April 1975 and December 1978. They had imposed a form of Maoist autarchy on the country and attempted to return it to what they called Year Zero, an agricultural society supposedly cleansed of all bourgeois and foreign influences. The human costs had been appalling—between one and two million people were thought to have died or been murdered. The Khmer Rouge leadership also made the fatal mistake of attacking their Communist neighbor, Vietnam, and at the end of 1978 the Vietnamese invaded to rid themselves of their troublesome former ally.
Some miles outside of the town, my guide and I were driven to a village where laughing children led us to a shocking exhibition. About six pits had been excavated; there were, villagers said, many more. Hundreds of skulls were piled together and limbs were in other piles. Many of the wrists were still tied together with cord or wire—the victims had been forced to kneel on the edge of the pits while Khmer Rouge soldiers clubbed them in the back of the head or shot them. Blindfolds still covered many skulls.
These murders had taken place at the end of 1978 as the Vietnamese armies swept in to overthrow the Khmer Rouge and install another Communist regime more to their liking. Flesh still clung to the hip joints and its terrible sweet rancid smell hung over the fields.
I had been conscious of such horrors since childhood but I had never before seen them with my own eyes. As a child, I listened to fragile 78 rpm records of my father, Hartley Shawcross, the chief British prosecutor at the Nuremberg Tribunal, speaking with gravity and scarcely-controlled emotion to the court.
On the 5th of October 1943, when I visited the building office at Dubno, my foreman told me that in the vicinity of the site, Jews from Dubno had been shot in three large pits, each about thirty metres long and three metres deep. About fifteen hundred persons had been killed daily. All of the five thousand Jews who had still been living in Dubno before the action were to be liquidated. As the shootings had taken place in his presence, he was still upset.
Thereupon I drove to the site, accompanied by my foreman, and saw near to it great mounds of earth about 30 metres long and 2 metres high. Several trucks stood in front of the mounds. Armed Ukrainian militia drove the people off the trucks under the supervision of an S.S. man. The militia men acted as guards on the trucks and drove them to and from the pit. All these people had the regulation yellow patches on the front and back of their clothes and thus could be recognized as Jews.
My foreman and I went directly to the pits. Nobody bothered us. Now I heard rifle shots in quick succession from behind one of the earth mounds. The people who had got off the trucks—men, women and children of all ages—had to undress upon the orders of an S.S. man, who carried a riding or a dog whip. They had to put down their clothes in fixed places, sorted according to shoes, top clothing, and underclothing.
I saw a heap of shoes of about eight hundred to one thousand pairs, great piles of underlinen and clothing.
Without screaming or weeping, these people undressed, stood around in family groups, kissed each other, said farewells, and waited for a sign from another S.S. man, who stood near the pit, also with a whip in his hand. During the fifteen minutes that I stood near, I heard no complaint or plea for mercy.
I watched a family of about eight persons, a man and a woman, both about fifty, with their children of about one, eight, and ten, and two grown-up daughters of about twenty to twenty-four. An old woman with snow-white hair was holding the one-year-old child in her arms, and singing to it and tickling it. The child was cooing with delight. The couple were looking on with tears in their eyes.
The father was holding the hand of a boy about ten, speaking to him softly. The boy was fighting his tears. The father pointed to the sky, stroked his head, and seemed to explain something to him.
At that moment, the S.S. man at the pit shouted something to his comrade, who separated off about twenty persons and ordered them to go behind the mound of earth. Among them was the family I have mentioned. 1
These words and images came from the diary of a German engineer, Herman Graebe, the manager of a German building firm in the Ukraine. They were part of the evidence produced by the prosecution at Nuremberg. Eventually I realized that rather than witnessing these terrible mass murders himself, my father had helped to bring the leaders of Nazi Germany to justice on behalf of the victims at Dubno and millions of others.
The men in the dock at Nuremberg were architects of a monstrous regime that almost engulfed the world. However, the evil they embodied did not die with them, and can be witnessed time and time again through the horrors of Cambodia and the attacks of September 11, 2001. But the story of Nuremberg shows how difficult it always is to treat properly those who commit hideous and unprecedented crimes.
The question of how to deal with Nazi war criminals had been discussed since at least 1942; in August of that year, President Roosevelt had warned that "the time will come when they shall have to stand in the Courts of Law in the very countries that they are now oppressing and answer for their acts." 2 In October 1943, at the Moscow Conference of foreign ministers, the matter came up for discussion amongst the Allies. U.S. Secretary of State Cordell Hull stated a clear opinion: "If I had my way," he said, "I would take Hitler and Mussolini and Tojo and their accomplices and bring them before a drumhead court martial, and at sunrise the following morning there would be an historic incident." 3
There was much support for such summary justice at that time. The Russians, unsurprisingly, were in favor; the British were equivocal. Anthony Eden, the British foreign secretary, insisted that all legal forms should be observed, though it is not clear quite what he meant.
When Roosevelt, Churchill, and Stalin met for the first time in Tehran in late November 1943, they discussed the fate of the Nazi leaders at the end of a well-lubricated dinner. Stalin proposed a toast "to the justice of the firing squad" for fifty thousand leading German criminals. Churchill demurred and Roosevelt, in an apparent attempt to lighten the conversation, suggested that perhaps forty-nine thousand would be adequate. In his memoirs, Churchill recalled that he had told Stalin that such mass executions were unacceptable. "'I would rather,' I said, 'be taken out into the garden here and now and be shot myself than sully my own and my country's honour by such infamy.'" 4
However, at the time, Churchill did believe that if the top Nazi leaders were captured by the Allies they should be subjected to summary justice. But he was thinking in terms of a handful, not thousands.
American attitudes in the middle of the war years were mixed. Henry Morgenthau Jr., the U.S. secretary of the treasury, persuaded Roosevelt to accept the quick execution of Nazi leaders. More radically, Morgenthau argued for the "re-pastoralization" of Germany so that it would never again become a powerful industrialized nation capable of creating an aggressive war machine, as it had done so swiftly after its defeat in 1918. He considered it "a question of attacking the German mind." 5
Morgenthau also proposed deporting millions of Germans: "It seems a terrific task; it seems inhuman; it seems cruel. We didn't ask for this war; we didn't put millions of people through gas chambers. We didn't do any of these things. They have asked for it." 6 When officials in his department questioned the wisdom of dismantling German industry, Morgenthau responded sharply, "Why the hell should I care what happens to their people? . . . For the future of my children and my grandchildren, I don't want these beasts to wage war." When his plan was denounced as immoral, he riposted, "I suppose putting a million or two million people in gas chambers is a godlike action." 7
There were other American leaders who (at least at times) shared Morgenthau's rage against the Nazis and Germany. In July 1944 (shortly after the D-day landings), Eisenhower expressed a desire to "exterminate all of the General Staff, perhaps some 3,500 people, as well as all of the Gestapo and all Nazi Party members above the rank of Major." He was prepared to allow the Soviets to carry out any such exterminations, except in the case of the Twelfth S.S. Panzer Division, which in June 1944 had killed sixty-four Allied prisoners of war. "I think that the American Army as a unit will handle the Twelfth S.S., every man they can get hold of. They are the men that killed our people in cold blood. . . . We hate everybody that ever wore a Twelfth S.S. uniform." 8
As the Allies became increasingly confident they would defeat the Nazis, their attitudes changed. When Morgenthau's ruthless if not unrealistic plans were leaked to the press in September 1944, Roosevelt was embarrassed. He sought advice instead from Henry Stimson, the secretary of war, who argued that America's own respect for due process demanded that war criminals be put on trial. So did Judge Samuel Rosenman, Roosevelt's special legal adviser; and so did Justice Felix Frankfurter of the Supreme Court.
Stimson was particularly influential. Mindful of Stalin's Tehran toast to the shooting of fifty thousand Germans, he feared mass revenge killings would tarnish the whole war effort. Concerned by the specter of mass vengeance against the German people, he suggested instead that the entire Gestapo should be interned and then put on trial "as the main instruments of Hitler's system of terrorism in Europe." The men and women running "the Hitler machine" should be punished, rather than the German people at large. 9
In January 1945, the president received a memorandum from Henry Stimson, Edward Stettinius, and Attorney General Francis Biddle proposing the creation of an Allied court to try the Nazi leaders for their "atrocious crimes" and for taking part in a "broad criminal enterprise." Significantly, they argued against civil courts and proposed a military tribunal, as this would be "less likely to give undue weight to technical contentions and legalistic arguments." Roosevelt accepted the proposal and took it with him to the meeting with Stalin and Churchill in Yalta in January 1945. There Stalin agreed that "the grand criminals should be tried before being shot." The British were alone in resisting any sort of trial of the Nazi leaders. 10
When Roosevelt suddenly died in April 1945, just days before victory in Europe, his successor, Harry Truman, enthusiastically endorsed the concept of a trial. Truman was the last U.S. president not to have a university education, but he was well-read in history. He saw that the trial would not only deliver justice to those Nazi leaders who could be seized, but would also establish a documentary record of all that the regime had done and prevent the rise of a new Napoleonic myth. At that time, it was hoped that Hitler, Goebbels, Himmler, Bormann, and Goering would all be captured and tried.
Churchill's preferred plan was to execute the leading Nazis.11 Just before V.E. Day, the British government submitted an aide mémoire that argued: "HMG assumes that it is beyond question that Hitler and a number of arch-criminals associated with him must, so far as they fall into Allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war." London considered the real charge against Hitler to be "the totality of his offences against the international standard which civilized countries try to observe." Any trial seeking to show the scale of Nazi crimes would be "exceedingly long and elaborate." Moreover, it would be seen by many as a "put up job" designed by the Allies to justify a punishment that had been pre-determined. "Hitler and his advisers—if they decide to take part and to challenge what is alleged—may be expected to be very much alive to any opportunity of turning the tables." 12
The British were also concerned about Hitler's pre-war aggression being one of the counts of the indictment in any trial. The belief in London was that Germany's unprovoked attacks on other countries "are not war crimes in the ordinary sense, nor is at all clear that they can properly be described as crimes under international law." The British feared that the defense could easily point to many recent precedents in which various countries had declared war and acquired new territory "which certainly were not regarded at the time as crimes against international law." 13
Such arguments were no longer persuasive in Washington. The War Department now proposed that the German leaders be charged not only with specific atrocities but also for their participation in a broad criminal enterprise.
On May 2, 1945, Truman offered Robert Jackson, a distinguished jurist and an associate justice of the Supreme Court, the position of chief prosecutor at the proposed tribunal and, after short reflection, Jackson accepted. It was an inspired choice, even though there were grumblings amongst the highest American legal circles that a justice should not step down into the arena of a trial—indeed Chief Justice Harlan Fiske Stone disapproved so much that he wrote about "Jackson's lynching party in Nuremberg." Stone's objections were to the use (or misuse) of law. "I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding as to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas." 14
Jackson, on the other hand, had long believed that aggressive war should be declared a crime. He was convinced that the courts had the authority to try those who waged such wars, if only steps were taken to give international law more force. And he also believed that the best should never be the enemy of the good. In 1941 he had argued that "the worst processes of the law" were better than none: "We cannot await a perfect international tribunal or legislature before procribing resort to violence, even in the case of legitimate grievance. We did not await the perfect court before stopping men from settling their differences with brass knuckles." 15
But Jackson also abhorred the idea of anything that could appear to be a show trial. By coincidence, on the day after Roosevelt died, Jackson made a speech in which he declared that it would be better to shoot the Nazi criminals rather than corrupt the process of law. He made one especially important point that resonates today: "You must put no man on trial under the forms of judicial proceeding, if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict." 16
- On Sale
- Jan 10, 2012
- Page Count
- 272 pages