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.