Thursday, April 7, 2011

The Decline of American Justice and the Lessons of Nuremberg

That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason. . . . The real complaining party at your bar is Civilization. . . . [It] asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude.
– Robert H. Jackson, Chief Prosecutor, Nuremberg Trials
In 1945, with the victory over Nazi Germany complete and the leading architects of the war in captivity, the Allies were powerfully tempted to impose vengeful retribution. Treasury Secretary Henry Morgenthau Jr. urged that all captured Nazi leaders be executed immediately. British Prime Minister Winston Churchill initially advocated a policy of summary execution, suggesting that Acts of Attainder would circumvent legal obstacles.

In the end, justice and the rule of law triumphed. Following a series of negotiations between the United States, Britain, France, and the Soviet Union, an international court was established in which to hold public trials of European war criminals charged with crimes against humanity. The first such trial commenced on November 20, 1945, before the International Military Tribunal in Nuremberg, Germany, as the world witnessed the 20th century’s most resolute attempt to achieve justice without vengeance. Those charged – 24 high-ranking German officials and dignitaries (two died before trial; one was tried in absentia) – were granted a presumption of innocence, legal counsel to assist in their defense, judicial objectivity, and procedural fairness. Over the course of ten months, the prosecution systematically presented evidence of German war crimes with full public disclosure of the European Holocaust. Eleven more trials were held over the next four years and, from 1945 – 1949, over a hundred defendants were charged and tried at Nuremberg.

The Nuremberg trials demonstrated with certainty that only when the rule of law is paramount can justice legitimately be achieved. “We will not ask you to convict these men on the testimony of their foes,” declared Supreme Court Justice Robert H. Jackson, who served as Chief Prosecutor at Nuremberg, in his opening statement. "The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated." The evidence of the defendants’ guilt in the first Nuremberg trial included 485 tons of diplomatic papers secreted in the Harz mountains, Hermann Goring’s art loot, Alfred Rosenberg’s hidden files, and Luftwaffe records that had been stashed in a salt mine. A German soldier’s home movie showed soldiers clubbing and kicking naked Jews. In one scene, naked women are forced into a ditch, then made to lie down as German soldiers, some smiling for the camera, shoot them. An American film documented the liberation of the concentration camps at Bergen-Belsen, Dachau, and Buchenwald; courtroom observers watched in horror the frightful images of skeletal survivors, stacks of cadavers, and bulldozers shoveling victims into mass graves.

The international panel of judges at Nuremberg established that there were certain crimes for which an accused could not defend on the basis of obedience to superiors; that there were some crimes so atrocious and so counter to the laws of humanity that individuals must be held personally responsible, even if their country had approved or required those actions. Eleven of the most despicable Nazis, including Hermann Goering, second in command to Hitler and the highest figure in the Nazi hierarchy to issue a written memo detailing “the complete solution to the Jewish question”; Wilhelm Frick, author of the Nuremberg Race Laws; Hans Frank, Governor-General of occupied Poland, nicknamed “the Jew Butcher of Cracow”; Ernst Kaltenbrunner, highest surviving SS leader; and Alfred Rosenberg, Minister of the Eastern Occupied Territories and racial theory ideologist, were adjudicated guilty and sentenced to death. Eight others were sentenced to lengthy prison terms.

Nuremberg has stood the test of time in part because the trial was not always smooth sailing for the prosecution – fair and contested trials rarely are – and though successful, the outcome was not pre-determined. The defendants were charged with a criminal conspiracy lasting 26 years (1919 – 1945), but the judges effectively limited their verdicts to hard evidence and held only 19 of 22 defendants guilty, and only for actual wartime crimes beginning September 1, 1939. The court’s rulings essentially eliminated close to one-third of the prosecution’s evidence. Three defendants were acquitted (each of whom were subsequently charged by German prosecutors with committing German war crimes). The overly expansive conspiracy and the prosecution’s heartfelt attempt at imposing a broad application of collective guilt were rejected. But the public nature of the trial and the permanent record it established has been open to examination ever since. The Nuremberg trials created a definitive and irrefutable record of the Holocaust and the atrocities committed during the reign of the Third Reich.

The triumph of Nuremberg stands in sharp contrast to the decision this week of Attorney General Eric Holder and President Obama, both of whom capitulated to congressional pressure and caved to the notion that there exist two classes of American law. In reversing its decision to try Khalid Sheikh Mohammed (KSM) in a U.S. District Court subject to the procedural protections afforded all criminal trials, the Obama administration has surrendered to fear mongering and to those who lack faith in American justice. All of the unpersuasive claims have prevailed – that open trials are too dangerous, too expensive, and too uncertain; that they will radicalize the enemy; that too many secrets will be spilled. By deciding to prosecute KSM in a military tribunal that lacks transparency and the basic evidentiary and procedural protections of the U.S. federal court system, the administration has backtracked on a principled and courageous stand that sought to uphold the Constitution and the rule of law.

The history of Guantanamo Bay and its secret military commissions attests a lack of confidence in the American system of justice. The presumption of innocence, the right to counsel, the right to confront adverse evidence – bedrock principles of evidentiary and procedural fairness upon which our constitutional republic was founded – have been compromised for the sake of a guaranteed outcome, guilt at all costs. The paramount concern at Gitmo, and in preventing KSM and others from being tried in civilian courts (for crimes that occur on U.S. soil against U.S. citizens), is to ensure that the alleged terrorists are indefinitely detained regardless of the nature and quality of evidence that may or may not exist in each individual case. It violates everything our democratic heritage stands for, an ironic rebuke of the very ideals that were attacked on 9/11.

We seem to be demanding a system of justice more akin to Alice in Wonderland:

“No, no!” said the Queen. “Sentence first – verdict afterwards."
“Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!”
“Hold your tongue!” said the Queen, turning purple.
“I won’t!” said Alice.
“Off with her head!” the Queen shouted at the top of her voice.
That an accused cannot be tried in an American court of law because there exists the possibility that, if given a fair trial, he or she might be acquitted, or convicted of a lesser charge – a possibility heightened in the case of the remaining Gitmo detainees, because some evidence against them is inherently unreliable and likely inadmissible, obtained as it was through torture and coercion – is anathema to American jurisprudence and our founding principles. There are presently 172 detainees remaining at Gitmo. What specifically have they done? What is the evidence against them? Your guess is as good as mine. It goes against everything this country stands for. If KSM is guilty of what we accuse him of, then we should not cower from granting him a public and fair trial, before a judge and a jury, and prove his culpability to a sufficient degree of certainty. While there may be cases in which a military-style tribunal is appropriate, for criminal acts of terrorism committed on U.S. shores, we must be true to our constitutional values or forever risk their permanent dilution.

Politics and the judiciary are a bad combination. By cutting off funding for the transfer of Gitmo detainees to federal prisons on the U.S. mainland, Congress has tied the administration’s hand (Republicans and Democrats are equally at fault here), leaving it with little room to maneuver. To sweep the most fundamental principles of justice under the rug simply because we have labeled the detainees terrorists, without requiring reliable proof and a fair and open proceeding, is an embarrassment to American notions of justice and decency.

The fact remains that an open and transparent system of justice is the best guarantor of a fair trial. At Gitmo, most of the detainees have been held without charge for several years, many denied the right to counsel and the right to know the nature of the evidence and charges against them. This is America? Absent a transparent judicial process, one is left to wonder whether there exists hard evidence against many of the remaining detainees.

As we learned from Nuremberg, the most effective means to undermine the extremists is to expose their crimes for the entire world to see, in a neutral and public setting. The Nuremberg trials were a classic case. Nothing more effectively educated the world to the evils of genocide than the trials of Goering, et al., at Nuremberg in 1945-1949, and of Adolph Eichmann, the bureaucrat who engineered the Holocaust, in Jerusalem in 1961. As The New York Times editorialized earlier this week, “How fitting it would have been to put the [9/11] plot’s architect on trial a few blocks from the site of the World Trade Center, to force him to submit to the justice of a dozen chosen New Yorkers, to demonstrate to the world that we will not allow fear of terrorism to alter our rule of law.” That the federal courts have successfully convicted hundreds of terrorists since 9/11, and that federal prisons safely hold over 350 convicted terrorists, apparently means little to the pandering politicians. But the President’s decision to backtrack on what had been a principled stand represents a missed opportunity to showcase American justice and prove to the world that we are not afraid of our Constitution; that even when victimized on our own shores, we remain willing and able to provide justice for all.


  1. Mark,

    You got me to thinking. Not about trying Khalid Sheikh Mohammed in civilian court; that’s pure insanity, but about your use of the Nuremberg Trials to justify that position. Now I knew very little about the trials before your post and have only scratched the surface since, but I find that what I have learned leads me to believe the opposite: that the military tribunals at Nuremberg and throughout the history of this country provide ample justification for continuing to use them today in our Overseas Contingency Operation (a.k.a. War on Terror).

    You mention that the Nuremberg court came about after negotiations between the victors: United States, Britain, France and the Soviet Union, but two points should be added. The first is the obscenity of allowing the Soviet Union, led by Joseph Stalin, to have a part in the dispensing of justice against those who committed crimes against humanity. If Hitler was the Antichrist, then Stalin was Lucifer himself. The second point is that the negotiations resulted in the melding of the different legal systems of the four countries into one set of rules for the trials.

    One result of this amalgamated rulebook was that the defendants did not have the right to a trial by jury. Another rule was that the court “…shall not be bound by technical rules of evidence.” The first trials ended on October 1, 1946, and the hangings commenced on October 16, 1946, suggesting that the defendants were also denied the right to appeal.

    This was not classic American justice, but it was war justice. The defendants enjoyed the “presumption of innocence, legal counsel to assist in their defense, judicial objectivity, and procedural fairness.” As we have discussed previously, there are rules for peace and rules for war. There are indeed “two classes of American law” and the Constitution explicitly provides for it.

    Now let’s look briefly at the Department of Defense, Military Commission Order No. 1, signed off by the great American and Secretary of War, Donald H. Rumsfeld, on March 21, 2002. This order provided the rules for military trials of terrorists and except for one slight change, it is faithfully “American” in its procedures. Examples include the following:

    The prosecutor may be a military lawyer or an attorney from the Department of Justice appointed by the Attorney General.

    The terrorist has the right to retain the services of a civilian attorney.

    Guilt must be established beyond a reasonable doubt.

    The terrorist must have access to the evidence against him, as well as any evidence that tends to exculpate him.

    The terrorist does not have to testify and no inference of guilt can be made from his refusal to testify (as if any terrorist could resist such an opportunity).

    The trial of the terrorist shall be open to the public and the press.

    The terrorist is protected from double jeopardy.

    Following a guilty verdict, a review panel, consisting of three military officers (one with experience as a judge) and possibly civilians shall review the trial proceedings to assure its integrity.

    The Secretary of Defense will then review the trial record and the review panel’s report and forward his recommendations for disposition to the President.

    The difference between military and civilian court is that the verdict of guilt in a military trial requires a two-thirds vote, not unanimity, except in the case of a sentence of death, which then requires a unanimous vote.


  2. So you see, in military trials, terrorists do enjoy “(t)he presumption of innocence, the right to counsel, (and) the right to confront adverse evidence.” Nowhere in the world would a terrorist receive this level of due process (certainly no American would be treated as well in any other country). Military trials do, indeed, embrace the “most fundamental principles of justice.”

    You also try to draw a parallel between the war crimes of the Nazis and the war crimes of the Islamists, stating that just as the Nuremberg Trials brought to light the crimes against humanity committed by Germany, so too would a civilian trial expose to the world the horrific crimes committed by Muslim Terrorists. The problem with that, of course, is that the Nazis tried to cover up their crimes, while the Islamists post their crimes on YouTube. Imagine the collective jaw dropping of the jurors when they are first exposed to the videos of the planes crashing into the World Trade Center towers! On the off chance they may have caught that video during their morning coffee back in 2001, the prosecutor might show a picture of a beautiful 18 year-old Afghanistan woman with a hole in the middle of her face where her nose was before the Taliban cut it off for the crime of leaving an abusive home. Wait, that was already on the cover of Time Magazine in August 2010. They could show a video of a beheading, but, there again, the terrorists have already publicized their barbarity, forgetting only an opening credit beginning with, “A film by Khalid Sheikh Mohammed.”

    The truth is Al-Qaeda would gladly pay the costs of putting terrorists on trial in American civilian courts. Hell, Osama himself would probably surrender if he could be guaranteed a public trial. We accomplish nothing by giving our enemies free publicity. Unfortunately, the President and the Attorney General have already aided and abetted our enemies by showering them with much coveted attention, despite, ironically, the initial wishes of the terrorists, including Khalid Sheikh Mohammed. Let’s not forget that this whole mess was engineered by an administration that started off the day with KSM and others prepared to plead guilty and do the rope dance. By lunch, Mr. Holder had convinced them that a civilian trial would be more advantageous to their jihad but by dinner he had “backtracked,” denying the killers an opportunity to praise Allah next to the hole in the ground which will forever be sacred land to millions of American-hating radical Muslims.

    The idea that the dynamic duo was motivated by principle in this disaster is countered by their own words and actions. A civilian terror trial made perfect sense at a time when the president was apologizing to the world for the crimes of America. The trial would have been the perfect echo chamber with defense attorneys and defendants ratcheting up the president’s rhetoric. Now that he’s kicked off his reelection campaign it would not help to pursue a decision that almost all of Congress and a majority of Americans think is madness. As for the Attorney General, a man making decisions based on principle would not have the flexibility to say that the decision to try KSM in civilian court will be the defining event of his career and then follow that claim by saying that it doesn’t matter where the trial is held, followed later by a hissing fit blaming Congress for ruining what should have been the Trial of the Century.

    (Continued. . .)

  3. Further evidence that politics trumped principle are the various remarks by Obama, Holder and others in the administration that a guilty verdict and death sentence in civilian court were forgone conclusions and even if, by some freak of nature, the O.J. Simpson jury was reconstituted at KSM’s trial and he was acquitted, the government wasn’t about to let him go. Liberals always fret, or used to under another administration, that America was constantly creating more terrorists. Put underwear on a terrorist’s head: more terrorists; pretend to drown them: more terrorists; kill the sheep herder next to the terrorist by mistake: more terrorists; liberate 50 million Muslims: more terrorists. But imagine the horde of Muslims getting in touch with their inner jihadist after watching the underdog KSM battling the Great Satan in the bowels of hell that is America, fighting by Satan’s own rules and emerging victorious only to have President Obama pull his crossed fingers from behind his back and exclaim, “Just kidding!”

    And just before this “principled stand” to “showcase American justice,” the (gulp) New York Times reported in 2009 that President Obama was “considering a change in the law for the military commissions . . . that would clear the way for detainees facing the death penalty to plead guilty without a full trial.” The Gray Lady explained that this would get around the need to air the “details of brutal interrogation techniques” and allow KSM and others to “achieve their stated goal of pleading guilty to gain what they have called martyrdom.” Heart breaking, isn’t it? They came so close to getting it right, but then those damn principles had to flare up like hemorrhoids.

    So now a question on principles: Why is it that President Obama, Attorney General Holder and a liberal blogger can be principled and courageous when advocating for civilian trials for terrorists, but congressmen of both parties and millions of Americans are unprincipled and engaged in “fear mongering” when they hold a different opinion?

    And now if you could clear up one thing for me: Despite the administration’s promises of convictions in a civilian trial, you state that the reason military trials are preferable is because the administration wants to make sure they are guaranteed a conviction. This makes even less sense when we recall that you’ve already acknowledged that civilian courts are more successful than military courts at convicting terrorists. Might there be other reasons for pursuing military trials? You list some of those reasons: too dangerous, too expensive, too uncertain and that they will radicalize the enemy, but then you declare that these concerns are “unpersuasive” without justifying that conclusion in any way. As the brave and all too lonely Congressman Peter King (think Winston Churchill for years yelling “The Nazis are coming! The Nazis are coming!” while everyone dismissed and demonized him) has stated that Attorney General Holder “never discussed the security implications with New York City Police Commissioner Ray Kelly. He'd never consulted with the New York State Police. And he clearly never checked with the federal agency charged with securing federal buildings, whose director testified that the agency didn't have sufficient resources to secure the trials for more than two weeks.”

    (Continued. . .)

  4. So. . .

    “Too expensive.” Check.

    “Radicalize the enemy.” See above and “Check.”

    “Too uncertain.” There are no guarantees in any court of law, but just for giggles: “The first former Guantánamo detainee to be tried in a civilian court was acquitted on Wednesday of all but one of more than 280 charges of conspiracy and murder in the 1998 terrorist bombings of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania.” New York Times (boy, two times in one post-I’m setting myself up here, aren’t I?)

    “Too dangerous.” We are talking about terrorists who fly planes into skyscrapers, fill cars and shoes and underwear and toner cartridges with explosives. A trial in Metropolis without Superman is inherently more dangerous than a trial ON AN ISLAND. So I’m going to go with “CHECK” (and “PERSUASIVE”).

    There are lessons to be learned from the Nuremberg Trials and chief among them is this: Use the weapon our enemy fears the most. For the Nazis it was exposure of their crimes for the world to see. For today’s fascists, however, it is anonymity. The only press KSM should have gotten might have read something like this:

    “Khalid Sheikh Mohammed, who pleaded guilty in December to masterminding the 9-11 attacks, was executed today. His body will be buried in a shallow, unmarked grave in the middle of a pig farm. In other news President Obama continues yet another Bush Era War on Terror policy by extending the . . .”

    Rich R.

  5. Rich,

    Your points about Nuremberg underscore why I had to think hard about the comparison of the Nuremberg trials to the treatment of our detainees in Guantanamo. What ultimately convinced me that it was an apt comparison was primarily the public and transparent nature of Nuremberg vs. Guantanamo, as well as the swiftness with which justice was administered at Nuremberg. Very impressive accomplishments, particularly considering the international and collaborative nature of those trials.

    The Rumsfeld memo sounds fine. Unfortunately, his list of procedures was not effectively implemented in practice (or perhaps he set forth exceptions to many of those procedures?). Thus, the Supreme Court in 2006 (Hamden v. Rumsfeld) ruled that the Bush military commissions were illegal and unconstitutional. The primary reason? The specially created tribunals permitted military judges to exclude detainees and their civilian counsel from major portions of their trials, and to prohibit them from ever learning of the evidence against them during those portions. The rules also allowed military prosecutors essentially to offer any evidence in support of the charges, including hearsay, unsworn statements, and coerced confessions. This combined lack of procedural fairness, according to Justice Stevens (who wrote for the majority), violated the American common law of war, the Uniform Code of Military Justice, the "rules and precepts of the law of nations," and the Geneva Conventions.

    The main point I wanted to make concerning the Nuremberg trials, however, was as I wrote in my essay, "an open and transparent system of justice is the best guarantor of a fair trial." The public nature of a trial permits the world to judge for itself whether justice is or is not achieved. Secret military commissions, by contrast, do not permit scrutiny and examination of the historical record.

    What precisely are we afraid of concerning a public and transparent judicial proceeding (civilian or military)? Radicalizing the enemy? Can the radical jihadists become any more radicalized? Is exposing the evidence of their crimes somehow tacitly or otherwise supporting their cause? I think not. Did exposing the Holocaust at the Nuremberg trials support or refute Nazi propaganda? To ask the question is to answer it.

    I am not opposed to the establishment of certain special rules that may be necessary to effectively try the Gitmo detainees -- e.g., some leeway on evidentiary admissibility, protective orders, security arrangements, etc. But the secret nature of the commissions and the fact that hundreds of detainees were held without charge or trial for several years, many denied counsel for a substantial period of time and denied the right to see the evidence against them, does our nation a disservice.

    I also believe that the commissions have been proven far less effective than federal courts in prosecuting terrorists. According to Justice Department statistics, the Bush administration ultimately released over 500 detainees without ever charging them with a crime (Obama has approved 126 for release, also with no charges brought). Moreover, while there are 355 individuals convicted in federal courts of terrorism related charges since 9/11 who remain in U.S. prisons (0 escapes), only six Gitmo detainees have ever been convicted of anything at military commission trials. The yearly cost to U.S. taxpayers of a federal prisoner is $27,251. The annual cost per captive at Gitmo: $650,000. It costs over $150 million per year to operate Guantanamo ( -- with source citations). All of which suggests to me that vengeance, not justice, is what most concerns those who wish to deny a transparent and fair judicial proceeding to the detainees. This is not the American way.