Talk Of The Nation
03:00 PM EST, January 11, 2012 Wednesday
Nuremberg, Tribunals
and 'Justice And The Enemy'
Hartley Shawcross,
William Shawcross
NEAL CONAN:
Toward the end of the
Second World War, the Allies faced questions about what to do with senior
Nazis. The United States proposed a military commission. Soviet
leader Joseph Stalin agreed that the grand criminals ought to face trial
before they were shot. British
Prime Minister Winston Churchill preferred summary justice, but he
lost office as the war ended.
The new Labour
government appointed Sir Hartley Shawcross as chief British
prosecutor. He delivered his opening statement at Nuremberg on
November 20, 1945.
HARTLEY SHAWCROSS: And
so we believe that this tribunal, acting with complete and judicial
objectivity, will provide a contemporary touchstone, an authoritative and
impartial record to which future historians may turn for truth and future
politicians for warning.
NEAL CONAN: A new
book, "Justice and the Enemy," looks to Nuremberg, to
the Tokyo trials, and to more recent precedents as we approach
the start of the trial of alleged 9/11 mastermind Khalid Sheikh Mohammed.
What does the history
of war crimes trials tell us about how to proceed against the mass murderers of
al-Qaida?
journalist and author William
Shawcross joins us from our bureau in New York. The name is no
coincidence. He's the son of the chief British prosecutor at Nuremberg.
His new book is "Justice and the
Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed."
NEAL CONAN: And are
there more differences between these two cases or more similarities?
WILLIAM SHAWCROSS:
Well, there are a lot of similarities. although Nuremberg was a success, it was
sometimes denounced as victor's justice. I think it was not that. It was a
success and it dealt, as Roosevelt and Truman wanted to do, in a judicial and
proper manner with the appalling criminals of the Nazi regime who survived the
end of the war and were captured.
Nonetheless, there
were restrictions on their defendants - on those defendants' rights. And in all
the debate about Guantanamo and military justice in the United States today, I
think it's worth making the point that any Nazi in the dark at Nuremberg who
was suddenly transported by time machine to Guantanamo would be astonished at
the privileges and the access to human rights lawyers and the amazing efforts
that were made on his behalf by the military defendants - the defense lawyers
in Guantanamo. None of that existed in Nuremberg.
It was a fair trial,
but the defense lawyers were all Nazi lawyers who were seconded by the
occupying authorities, the British and the Americans and the Russians and the
French. But the law has gone a long ways since then. And the Guantanamo
defendants, Khalid Sheikh Mohammed and the others, will have much more
chance of their day in court than the Nazis did.
NEAL CONAN: Yet you
pointed out that one of the key elements of a trial is that should a defendant
be found not guilty, he gets to go free.
WILLIAM SHAWCROSS:
That's right. And Justice Jackson, who is one of the heroes of my book, if you
like, who is the Supreme Court justice who was asked by Roosevelt and then
after Roosevelt's death by Truman to become the chief American prosecutor,
said: You must never put a man on trial unless you are prepared to see him walk
free.
And rather oddly, both
Attorney General Eric Holder and President Obama have said in the last three
years, somewhat injudiciously, I feel, that Khalid Sheikh Mohammed will never
walk free, that he will be found guilty.
And there's no doubt
in my mind that Khalid Sheikh Mohammed is a vicious, murderous thug who should
be found guilty. But that is for the courts to decide. And I have absolute
confidence that the court in Guantanamo, as it is now constituted, will provide
a very fair trial for him and his al-Qaida cohorts.
NEAL CONAN: Yet it's
been made clear if he should, for whatever reason, be found not guilty, if evidence
were not allowed into court for whatever reason, he would not be set free.
WILLIAM SHAWCROSS:
That is a predicament for the U.S. government. And I think it was a mistake for
senior U.S. government officials to say that whatever happened, he would not be
set free. And it is indeed a predicament.
But I think the
evidence is overwhelming that he will be found guilty. And so he, in my view -
I'm not a lawyer, I'm a layman, but I've studied this case and others - I think
he should be found guilty and I'm confident that under American law he will be.
And the chief
American prosecutor - Robert Jackson's successor, if you like - is a
remarkable American officer, General
Mark Martins, who until recently has been administering the law of - the
rule of law campaign in Afghanistan, trying to bring law through Afghan
judges and prosecutors and defenders to Afghanistan - to villages in
Afghanistan throughout the area controlled by the United States.
And he's a very fine
man. And he's now been appointed chief prosecutor, as I say, direct successor
to Justice Robert Jackson. It's a remarkable position to be in.
And I heard, actually,
a lecture he gave in New York last week - last night - in which he spoke very
eloquently to the New York Bar Association about the way in which justice will
be done and be seen to be done in Guantanamo. And I think that he's a very fine
prosecutor and that one can have confidence that in his hands the prosecutions
will be carried out both robustly and judiciously and fairly.
NEAL CONAN: You
mentioned a hypothetical time machine that would whisk those Nazi defendants
from Nuremberg to Guantanamo. One thing they would also be astonished by is the
amount of time that has passed. That trial in Nuremberg started in the same
year the war ended. It happens to be, just as a coincidence, 10 years to
the day since the first prisoners arrived at Guantanamo.
WILLIAM SHAWCROSS:
You're absolutely right. And justice delayed is often said to be justice
denied. And it has been a very long time, too long a time. That is correct. And
part of it is because of the way in which the first military courts set up
by the Bush administration were overturned by the Supreme Court in
the famous case of Hamdan vs. Rumsfeld. And then the 2006 act was also brought
into - reformed military commissions were brought and question by another
Supreme Court judgment.
And then when Obama
came into office he originally said we will have no military commissions,
no military trials whatsoever. And he had - throughout his time as senator and
as campaigning for the presidency, he had condemned much of the Bush
administration's policies during the war on terror, including the use of
military tribunals.
Now, however, he
has come to the same position as President Bush on most of these
issues and forced to accept the reality of military commissions in some
cases. Not in all. Most of the terrorist cases will probably still be carried
out in federal courts, but there will be some cases - like Khalid Sheikh
Mohammed - which the administration has decided - rightly I think - should be
conducted in military commissions.
NEAL CONAN: How do
they make that decision, who goes to federal court and all the
rights guaranteed there, and who goes to a military court with
slightly fewer rights?
WILLIAM SHAWCROSS:
Well, very slightly fewer, actually. And the important thing about the military
courts now is that anyone convicted
in a military court in Guantanamo will have the right of appeal right up to the
Supreme Court. So he has basically the same rights of appeal as anyone
convicted in a federal court. So that I think is a vastly important
safeguard. In
Nuremberg, there were no
rights of appeal whatsoever. The judgment of the tribunal was final.
One should point out
that in Nuremberg, of the 22 people who were on trial, I
think it was 14 were sentenced to death, six or seven were given long
imprisonments, and two or three were released. So justice, I think, was done fairly in
Nuremberg, and I'm sure it'll be done here the same.
But the question you
raise is a very interesting one - who will go to a military commission and who
will go to a federal court. And Attorney
General Holder made a rather bizarre, I thought, suggestion two years
ago that anyone who had attacked, for example, the U.S. military abroad,
like - as in the case of the USS Cole, the naval vessel which was blown
up in Aden Harbor by an al-Qaida bomb and 19 U.S. sailors were killed - they
would go the military court.
But if terrorists
attacked within the United States, killing civilians, they would
go to a civilian court, a federal court, which seemed to me to be
slightly bizarre.
It encourages
terrorists to attack civilians rather than military installations.
Simeon is on the line
with us from Rochester, New York.
SIMEON: Oh,
hello.
NEAL CONAN: You're on
the air. Go ahead, please.
SIMEON: Hi. I was
thinking that perhaps one of the most
perhaps interesting paradigms for understanding what you're talking about is the
decision of the Israeli government to bring Adolph Eichmann to trial in the early 1960s, who was the
architect of the Final Solution, rather than allowing him to be executed.
And it seems that that
was a tremendous moral victory. It helped educate the rest of the world in
terms of the horrors of the Holocaust. And it really vindicated the rule of
law. So perhaps that might be a useful precedent.
WILLIAM SHAWCROSS: He
was executed, but I think you're absolutely right that the Eichmann trial was a
very important one and it did establish even more of the documentary evidence
against the Nazis.
One should note in
that context that the Nuremberg trial itself had produced massive amounts of
evidence. The Nazis had been extraordinarily, absurdly fanatical book
bureaucrats, as well as everything else, and they kept extensive records
of their crimes.
And Justice Jackson,
when he arrived in Paris a few months after the VE Day in the summer of 1945,
was astonished by the amount of material that the U.S. Army had already
gathered in Paris to reveal the Nazi war crimes. And that material has been
essential, ever since 1945, in helping historians form the history of the Nazi
regime from the 1930s to 1945.
NEAL CONAN: "The
Man in the Glass Booth," that's the Eichmann trial, where we first heard
the phrase, from Hannah Arendt, about the banality of evil.
WILLIAM SHAWCROSS:
That's correct. Yes. And, I mean, it was a famous book. There's another book
actually, which I discovered while I was doing this research for mine. A rather
remarkable little novella by a Jewish - German Jewish British philosopher
called George Steiner, who wrote in the late 1960s.
Well, actually, no,
I'm sorry. It was in 1981. he wrote a little book called, "The Portage to
San Cristobel of A.H," meaning Adolf Hitler, which is a conceit in which
Nazi - anti-Nazi Israeli hunters find Hitler deep in the South American jungle
and bring him out. And they put him on trial in the jungle and Hitler makes an
extraordinary speech in his own defense.
NEAL CONAN: This is
TALK OF THE NATION from NPR News. I'm Neal Conan.
On a trip to Cambodia
in 1980, William Shawcross visited what he calls the grim symbol of mass murder
in the 20th century - a mass grave. For Shawcross, the sight recalled for him
the voice of his father at Nuremberg, reading the diary of a German engineer
that recounted in horrific detail the sight where Jewish victims were shot in a
Ukrainian town. You can read more from that diary entry and an excerpt at our
website.
Throughout his book
"Justice and the Enemy," Shawcross considers precedents like
Nuremberg and Cambodia to look for lessons to inform the trial of Khalid Sheikh
Mohammed coming up in a few months time.
.
Just before the break
you were talking about that extraordinary speech Adolf Hitler gives in that
fictional book. As it turned out, it was Hermann Goring, the former head
of the Luftwaffe, who gave a performance on the stage at Nuremberg,
which was just what Winston Churchill was concerned about. And indeed, what we
have every reason to expect Khalid Sheikh Mohammed will try to do in
Guantanamo.
WILLIAM SHAWCROSS:
Yes. You're absolutely right. That has been one of the concerns about Khalid
Sheikh Mohammed, that he would be like Goring who dominated the proceedings
by the force of his personality at Nuremberg. And Khalid Sheikh Mohammed
is said to be a, sort of, equally a master demagogue as well as a mastermind of
terror. And it is felt that he will try to dominate the proceedings as well.
It's not clear yet,
what his plea will be. Will he plead guilty or will he plead not guilty and
refuse to defend himself and ask for immediate execution and martyrdom. There
are all sorts of questions that General Mark Martins, the prosecutor, is going
to have to deal with, many of which have not yet surfaced even.
And if he does decide
to grandstand, he'll have to be controlled by the judges. If he decides to be
mute in court and refuse to enter any plea and to defend himself, then I'm sure
that the court will insist that his defense, nonetheless, be played out in
full.
NEAL CONAN: Another
difference between the military commission in Guantanamo and a civilian trial
for Khalid Sheikh Mohammed, the passage of time, but also if the defense at a
trial of anyone in a civilian court said he has been tortured by the
prosecution, the case would be thrown out for prosecutorial misconduct.
WILLIAM SHAWCROSS:
Well, that's not quite correct. What happened, there was a trial of a man
called Ghailani who was
implicated in the terrible bombings - the al-Qaida bombings of U.S.
embassies in east Africa in 1998. And his trial took place last year in
Manhattan. And he had been harshly interrogated.
And the judge - Judge Kaplan - in the case, said
all the fruits of the poisonous tree - by which he meant the information
that had come out as a result of his harsh interrogation - will not allowed
in this case. And it was not allowed.
And nonetheless,
he was, even in a federal court, convicted.
In the case of - he
wasn't convicted of mass murder, as he should've been, I believe, but he was
convicted of destroying government buildings, which wasn't very satisfactory,
has to be said, to the families of the victims.
Nonetheless, it was a
conviction and the judge gave him the maximum sentence, quite rightly, as a
result of it. in the case of Khalid Sheikh Mohammed, General Martins has made
clear that he was, as we all know, he was subjected to enhanced
interrogation...
NEAL CONAN: Waterboarding,
yeah.
WILLIAM SHAWCROSS: And
he was one of the three al-Qaida people who was waterboarded...
NEAL CONAN: That we
know of.
WILLIAM SHAWCROSS:
...during the Bush administration. We know that. And he produced a lot of
information. He sort of told - he became a sort of instructor,
apparently, to the CIA, as a result of this enhanced interrogation -
which many senior officials have said led to the defanging of many al-Qaida
plots and eventually helped to track down bin Laden.
Anyhow, General
Martins has made absolutely clear that none of that information which came out
as a result of his waterboarding will be allowed in court. And all the - the
defense will have to rely upon information derived independently and nothing to
do with that enhanced interrogation.
NEAL CONAN: Let's get
another caller in. This is Jack. And Jack's on the line from Nashville.
JACK: Yeah, I would
just say that I would not share your guest's certainty that justice and the
rule of law will prevail. And I would point to what happened at the end of
World War II when Japanese war criminals were not tried because of
political reasons, in terms of wanting to utilize them in a future
Japanese government.
NEAL CONAN: Which
ones? There were trials in Tokyo.
JACK: Yeah. Well, in
the particular case I'm referring to a movie was made out of it. It was called
"Blood Oath" in Australia. And there was a Japanese colonel or
general who commanded a POW camp. And he had beheaded a fairly large number of
American and Allied POWs - mostly Australians, but some Americans also. And
essentially he was given a pass at the end of the war because - and later
became a part of the Japanese government.
NEAL CONAN: I'm not
familiar with that case, I have to say, Jack. But, William Shawcross, there
were many war crimes trials held, not just in Tokyo, but indeed in the
Philippines as well.
WILLIAM SHAWCROSS:
There were. And it's an odd thing, but the Japanese war crimes trials, the
Tokyo tribunals, never had the same impact, either in Japan or in - they weren't so successful, I think, as
Nuremberg.
And this is partly,
perhaps, because in Germany, despite the horrors of Nazis - and
there was a - Germany is, after all, one of the most civilized countries in the
history of the world. And there was a sort of - there was an agreement to
accept the judgment at Nuremberg, a sort of widespread public acceptance
of it. And in Japan, that was not the case. And there's no
question that the Japanese tribunals were less successful than the
Nuremberg.
JACK: And my
questioning, of course, relates to the behavior of our government in choosing
to not prosecute some of the war criminals for political reasons, relative to
their future designs for building a Japanese government.
WILLIAM SHAWCROSS:
Well, I don't know the particular case that you're referring to. But I think
that the important thing is that both in Japan and in Germany, the United
States rule, or occupation, after the war created a - particularly in Germany,
but also in Japan - created far better and more democratic societies than
either country had ever known.
NEAL CONAN: Let's see
if we can go next to - this is Colin. Colin with us from San Francisco.
COLIN: Good morning.
My concern with the commissions, no matter who the judges are, is that they are
still judges, particularly military judges, who are career officers, whose
incentives probably are not going to be inclined towards a finding of innocence
or not guilty.
This is a problem
with legitimacy that seems to be the same problem that the
British government had with prosecuting IRA terrorists in the 1980s,
that the suspects did not have the right to a jury trial. Are we really going
to have a perception of legitimacy to the whole proceedings if detainees do not
have the same right to a jury trial that U.S. citizens enjoy?
NEAL CONAN: In
Northern Ireland, Williams Shawcross, the concern was that juries would be
intimidated by the Irish Republican Army, among others, and thus the
special courts that were set up there. But they did, indeed, come in for
considerable criticism.
WILLIAM SHAWCROSS:
They did. And I think that the British government, in effect, discontinued
them. In the case of these trials in Guantanamo, the defense lawyers
and the judges are military men, anyone convicted there will still have
the right of appeal through the federal criminal civil process. that is a
great safeguard.
in all the military
trials that have taken place so far since 9/11, the defense lawyers
assigned to the terrorists on trial have all been extremely diligent on
behalf of their clients.
On the contrary, the
Supreme Court judgments that were reached against the government in the
middle part of the last decade after 9/11, were all forced - taken all the way
to the court, if you like, by military defense lawyers.
NEAL CONAN: Colin,
thanks very much.
(Ex parte Quirin)
in fact, military
commissions where the trials were held completely in secret.
WILLIAM SHAWCROSS:
Absolutely. .. these eight Nazi saboteurs, all of whom who'd lived in the
United States in the 1930s and then gone back to Germany. And two
of them were American citizens. They were landed by submarine on the
coast of Long Island and Florida in 1942, and they were rounded up pretty
quickly. Two of them actually surrendered and gave information on the others.
But Roosevelt was absolutely furious and demanded a military commission and
basically demanded execution.
He said to his
attorney general, Francis Biddle, he said I want one thing clearly
understood, Francis. I won't give them up. I won't hand them over to any U.S.
marshal aimed with a writ of habeas corpus. Understand?
but the Supreme Court
judge, the special military commission set up to try them to be legal,
and they were tried and found guilty very quickly. And of eight, six
were executed, and the two who had surrendered and turned in the others
were given long sentences.
…
WILLIAM SHAWCROSS: I
think that the civilian courts have shown themselves to be able to deal with
most of these cases now. And it has been difficult. There's - one of the
cases that I quoted just now, Gailani,
it was nearly lost. That
government's case was nearly lost because one
recalcitrant juror held out. He was called the famous phrase from
movies and everything else, of a rogue juror. And one juror on that - in that
jury wanted to find him, Gailani, not guilty on every charge.
And in the end, the
compromise was that he was not - he was found not guilty of murdering
several hundred people - mostly Africans it has to be said, not American
citizens - who were killed in the bomb blasts in Kenya and Tanzania, but found guilty
only of blowing up government - damaging government buildings, which is a
bit of an absurd situation. And I think in the military court, he probably -
though one doesn't know this - had been found guilty of the real crime that he
was involved in, which was mass murder.
….
DONALD: I wonder if
your author could possibly connect the dots and I'll just reference, I'll, I
guess, channel an old cliche that justice is now written by the winners. And
I'm referring - and I told your screener about a wonderful volume by John
Maynard Keynes called "The Consequences of the Peace," about how
the German terms of surrender in World War I literally led to Hitler's rise.
By the same logic - and I'm playing devil's advocate here - Noam Chomsky
has referenced this many times, the brutality of despotic regimes supported by
us for oil and how you literally view justice in that context. Thanks. I'll
take my answer off the air.
WILLIAM SHAWCROSS:
Well, that's a difficult question. I'm not a great admirer of Noam Chomsky. I
think his anti-Americanism is frankly grotesque. I have a very different view.
I think the United States, despite as you say the support that we give you and
we, the British, and all of Western Europe and all of the whole democratic
world give to regimes like the Saudi regime because we are dependent upon oil,
I, nonetheless, I think the United States has done immense good in the world in
the last century.
Indeed, in 1945, you
could say that the U.S. Army was the greatest human rights organization that
the world had ever seen. It did release millions of people from tyranny and
slavery. And I think that the U.S. Army continues to do that, and millions of
people all over the world since 1945 have been freed by the U.S. Army and the
blood and treasure spilt by Americans. And I think it's a tribute, which is not
adequately and often enough pay to the United States.
It's very fashionable in
the rest of the world to criticize America for its mistakes, which, of course,
have been made and there were mistakes made following 9/11. But - there's no
question about that. But there is no greater guarantee of peace and progress in
the world than the United States, in my view.
NEAL CONAN: William
Shawcross, let me ask you a question that might seem a little bit off the
point. You first came to attention with a wonderful book called
"Sideshow," about the war in Cambodia conducted by the United
States, including the so-called secret bombing, B-52 carpet
bombing of...
WILLIAM SHAWCROSS:
Areas of Cambodia.
NEAL CONAN: but that
helped lead to the rise of Khmer Rouge who then went on to commit
terrible atrocities in Cambodia. Nevertheless, we had Henry Kissinger on this
program talking about his most recent book a few months ago. A listener called
him on that.
And he said, why is
this different from what President
Obama is doing now with drone attacks in Pakistan? And you might argue
a difference of scale, a difference of greater accuracy in the case of the
drones. But as a matter of principle, what's the difference?
WILLIAM SHAWCROSS:
Well, I think that's a really important question. And if you - President
Bush was hated throughout the world and attacked by Senator Obama and
others on the left for not only enhanced interrogation but for -
almost all of the policies in the war on terror. And since Obama came
to power, he has - and the promise to close down Guantanamo, which he's not
done, and promised to stop military trials, which he has not done, he has
adopted almost all of Bush's policies, except he doesn't detain suspects
and interrogate them harshly or properly. He kills them by drones.
And this is an
extraordinary difference. And it's astonishing to me that until recently there has been so little protest about
it. I'm quite sure that most of the people whom are targeted by drones
are terrorists plotting appalling atrocities in the wilds of Pakistan and
Afghanistan, and they can't be reached any other way.
I don't have a terribly - I
don't believe that the use of drones is wrong per se, but I do believe that if President Bush had used drones to
kill terrorists and terrorist suspects, and inevitably bystanders with
the same enthusiasm that President Obama has shown, he would - it would not have been tolerable
either to the American opinion-formers of The New York Times and other great
papers or within Europe itself. And it seems to me the tolerance that has been
extended to President Obama on this - over this policy is - which would
certainly not have been extended to President Bush, is an extraordinary
example of how personality and
political largesse can define people's perceptions of morality.
