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.

The Search for Meaning on 9/11: Missing the Wisdom of Abraham Joshua Heschel

I suggest that the most significant basis for meeting men of different religious traditions is the level of fear and trembling, of humility, of contrition, where our individual moments of faith are mere waves in the endless ocean of mankind’s reaching out for God, where all formulations and articulations appear as understatements, where our souls are swept away by the awareness of the urgency of answering God’s commandment. . . .
--Rabbi Abraham Joshua Heschel

As I write this, our nation prepares once again to commemorate the tragedy and loss experienced on September 11, 2001. During the past nine years, we have embarked on two wars, buried over 5,660 American soldiers, and we continue to deploy more than 150,000 troops in Iraq and Afghanistan. We are embroiled in a national debate over the meaning of religious freedom and the limits of the First Amendment. Muslim-Americans throughout the country feel under attack, blamed unfairly for the atrocities of their most radical brethren. Plans to build mosques in several states are opposed by vocal mobs chanting anti-Islamic slogans, mirroring the controversy over the proposed Islamic community center near Ground Zero. A lunatic fringe, led by a fundamentalist “preacher” in Florida, disgracefully talks of burning the Koran (their plans canceled for now), thereby insulting and inflaming the world’s Muslims.

My oldest daughter, Jennifer, was born twenty years ago today. On her eleventh birthday, the meaning of September 11 was forever altered and serves now as a timely reminder that our lives are short, the search for meaning more urgent, as the world is so much grander than each of us. This year, as well, September 11 overlaps with the Jewish High Holy Days, starting with Rosh Hashanah, which calls upon Jews the world over to engage in further reflection and contemplation. What better time, then, to turn to Abraham Joshua Heschel – rabbi, theologian, social activist, and mystic, widely admired by Christians and Jews alike – for counsel and guidance in these troubled times.

Although he died in 1972, I believe we need Heschel’s prophetic voice now more than ever. So much of what he said in his lifetime is relevant today. For the families of those who lost loved ones on 9/11 and for others seeking to make sense of it all, Heschel’s experience in the Holocaust – he lost two sisters at Treblinka and his mother died of a heart attack when the Nazis came to her door – and his words of spiritual healing and enlightenment despite these experiences, speak deeply. Unlike many of his contemporaries following World War II, Heschel never blamed God for the Holocaust. God did not commit the evil perpetrated in the concentration camps and gas chambers, he argued. It was, rather, the depravity of human beings acting in defiance of God and of faith. Heschel contended that God suffered with the victims, and would today teach us that the atrocities and evil committed on 9/11 were inflicted not by God, nor by Islam, but by nineteen fanatics who misinterpreted their religion and blasphemed God.

If Islam committed any crime on 9/11, it was the same crime committed by Christianity during the Holocaust – that of silence, the failure of peace-loving Muslims to speak out with sufficient force against the misguided members of their faith, far too many of whom believe that the Koran requires acts of martyrdom and violence against perceived infidels. “The opposite of good is not evil,” Heschel declared often, “the opposite of good is indifference.” Heschel understood that only human beings could challenge injustice, that God needed humans to correct the wrongs in society. Having lived through the rise of Hitler in Germany, he was all too aware of the capacities of mass silence and indifference. “How many disasters do we have to go through in order to realize that all of humanity has a stake in the liberty of one person? . . . In a free society, some are guilty, all are responsible.”

Of course, Heschel was a man of action and not merely words. He fought all forms of anti-Semitism, campaigning for the rights of Soviet Jews and lobbying the Pope during the Second Vatican Council in the early 1960’s to renounce church teachings that demeaned Jews or anticipated their conversion. He fought racism and segregation, marching arm-in-arm with Martin Luther King, Jr., from Selma to Montgomery in 1965. If history were any guide, he would today have spoken forcefully against the rising tide of Islamophobia in the United States.

Heschel saw the divine in every person and emphasized the holiness and sanctity of every human being. “We are called upon to be an image of God . . . and the task of a human being is to represent the Divine, to be a reminder of the presence of God.” Heschel believed that what ailed modern society was the lack of a personal awareness of God. He spoke convincingly of encounters with the mystery of the “divine” that is both within each of us and beyond us; that “discloses unity where we see diversity; . . . peace where we are involved in discord.”

Heschel connected with the civil rights movement of the 1960’s and with King in particular because he believed, like King, that the God of the Bible struggles with us, suffers with us, and is affected by how human beings treat one another. “God stands in an intimate relationship to the world,” Heschel believed, and thus God “has a stake in the human situation.” Because God is “intimately affected” by the treatment human beings afford each other, “God is never neutral, never beyond good and evil.” The political implications of Heschel’s theology are clear: created in God’s image, we are each a reminder of God’s presence; when we engage in acts of violence and murder, we commit such acts against God’s divine likeness. “Whatever I do to man, I do to God,” Heschel explained. “When I hurt a human being, I injure God.”

In an age when religion divides people and nations, Heschel emphasized the common underpinnings of faith. Although profoundly devoted to his own tradition, he believed deeply that people of different faiths must talk to one another in a spirit of humility and respect, not to change or convert the other, but to better understand one another. “We must choose between interfaith and internihilism,” he often said, “No religion is an island.” Although most of Heschel’s ecumenical dealings were with Catholics and Protestants, shortly before his death he flew to Rome (against his doctor’s orders) to attend a conference of Jewish, Christian, and Muslim leaders on the future of Jerusalem. “It is important to remember now,” Heschel said, “that, while I have prayed from the heart for Muslims all my life, I have never prayed with them before, or been face-to-face with them to talk about God . . . we must go further.”

Rabbi Arthur Green, a professor at Brandeis University and former president of the Reconstructionist Rabbinical College in Philadelphia, has explained that Heschel

. . . [L]iked to tell the Hasidic tale of Rabbi Raphael of Bershad who invited a group of disciples to come share with him in a ride in his coach. “But there is not enough room!” a disciple cried out, “the rebbe will be crowded.” The master replied: “Then we shall have to love each other more. If we love each other more, there will be room for us all.” Heschel understood that all of humanity rides in that coach, one that can be either the divine chariot of God or the crowded, sealed railway car. The choice, he insisted, is a human one, and we who have escaped the terrors of hell are here to help all our fellow humans make that choice. [From the essay Abraham Joshua Heschel: A Memoir]

Heschel taught that God depended upon humanity to repair and heal the world. The God of the Bible was like the parent of all humanity, “who cannot stand to see the suffering of God’s children.” For Heschel, it was very simple. God needs his children to take care of each other.

For a society obsessed with non-stop consumerism and technologically driven noise, Heschel taught the value of the Sabbath as a sanctuary in time, when “we are called upon . . . to turn from the results of creation to the mystery of creation.” The concept of the Sabbath urges a day of rest, reflection, study and prayer that is essential to the dignity of human beings and the nourishment of the soul. “The modern man does not know how to stand still, how to appreciate a moment, an event for its own sake.”

Throughout his life, Heschel remained devoted and secure in his Jewish faith, though he openly acknowledged the depth and beauty of other faith traditions. He gave us the tools for religious dialogue, believing that no one possessed a monopoly on the truth. It was clear to Heschel that people of different faiths needed one another. His interfaith involvements extended beyond his alliance with King and the civil rights movement, and included his work with the Catholic Church during the Second Vatican Council, and a visiting professorship at the Union Theological Seminary in New York City, where he developed a close kinship with the great Protestant theologian Reinhold Niebuhr. Heschel understood in all of these encounters that, although their religious beliefs and practices differed, all lived in the presence of God. “There is no human being,” Heschel said in 1961, “who does not carry a treasure in his soul; a moment of insight, a memory of love, a dream of excellence, a call to worship.”

Regardless of one’s age, race, religion, or ethnicity, Heschel believed we must never lose sight of our humanity, for we all possess a soul, a spirit, a heart, and a mind, and it is imperative that we use them. His wisdom transcended generations, cultures, and religions, and the quest for common ground inspired his theology. “Oceans divide us, God’s presence unites us,” he said. “God is present wherever man is afflicted, and all of humanity is embroiled in every agony wherever it may be.”

Because Heschel spoke so eloquently on Christian-Jewish relations and the need for dialogue, I am certain that, were he alive today, he would have spoken with equal passion about Christian-Jewish-Muslim relations. To Heschel, each and every person was sacred. “To meet a human being is an opportunity to sense the image of God, the presence of God.” His voice is sorely missed in today’s world; if only the power of his words could be felt by the likes of radical jihadists, intolerant fundamentalist preachers, and others who remain closed to sharing, learning, and listening to people of different cultures and faiths. “Unless we learn how to help one another, we will only weaken each other.”

He opposed religious parochialism. “Should we refuse to be on speaking terms with one another and hope for each other’s failure? Or should we pray for each other’s health, and help one another in preserving our respective legacies, in preserving a common legacy?” For Heschel, as for us all, the answer is obvious: “The world is too small for anything but mutual care and deep respect; the world is too great for anything but responsibility for one another.”

Steven Spielberg: The Power (and Limits) of Empathy

The National Constitution Center in Philadelphia announced recently that, on October 9, Hollywood director Steven Spielberg is to receive the 2009 Liberty Medal, awarded “to men and women of courage and conviction who have strived to secure the blessings of liberty to people the world over.” Upon reflection, Spielberg is a fitting recipient of the Liberty Medal. Many of his best works, including Schindler’s List, Amistad, and Saving Private Ryan, underscore the triumph of freedom over tyranny. In 1994, inspired by his experience in making Schindler’s List, Spielberg created the Survivors of the Shoah Visual History Foundation (now the Shoah Foundation at the University of Southern California), which preserves video and oral histories of Holocaust survivors from around the world. Immensely successful and fabulously wealthy, Spielberg has contributed much of his wealth and talent to improve the lives of others.

Spielberg’s work in such films as Schindler’s List and Saving Private Ryan exemplify the best in historical filmmaking. Through the magic of the big screen, Spielberg enables us to visualize historical atrocities and the tragic events of our past in a manner that does justice to the facts, yet permits us to imagine, feel, and in some small way, experience the events. Such is the power of empathy in Spielberg’s films – allowing us emotionally to identify with those seemingly beyond our reach. Spielberg’s talent as a director and producer has touched millions of people, simultaneously entertaining and teaching. While there are many fine documentaries and books on the Normandy invasion, the Holocaust, the barbarity of slavery, and other human tragedies, Spielberg’s movies succeed at getting us to watch and experience on a larger scale. His films force us to live for a moment in the hearts and minds of those portrayed on the screen.

Of course, no film is fully capable of conveying the absolute horror and evil that was the Holocaust. Perhaps because it did not try to do too much – Schindler’s List avoids melodrama and sentimentality and portrays the evil perpetrated in Nazi Germany in a matter-of-fact, ordinary manner – Spielberg succeeded where others failed. The film limits its focus to the story of Oskar Schindler, a flawed German Catholic factory owner and Nazi-party member who, after benefiting from the Nazi war machine and Jewish slave labor, is eventually moved by act of conscience to protect and rescue 1,200 Polish Jews from almost certain death. Spielberg compels the viewer to identify, intellectually and emotionally, with the depth of human suffering that occurred, not abstractly or statistically (6,000,000 gassed to death), but individually; to children and family members, men and women, young and old – to people for whom you cannot help but care and feel a sense of kinship. He does this without explaining the Holocaust, and without forcing us to deal with the grotesquely overwhelming nature of it all.

Although Schindler’s actions are in the end heroic, his transformation into a man of virtue is gradual and ambiguous. His pragmatism and ability to compromise for the sake of profit and self-interest is resistant to his growing awareness that something has gone terribly wrong in his privileged German society. When he witnesses from a hillside, while riding horses with his mistress, the Nazis’ vicious liquidation of the Krakow ghetto – a scene portrayed by Spielberg with a sickening reality – Schindler only then begins to realize that the men and women working in his factory will have no future unless he acts, at no small risk to himself. Such is the inconvenient truth of heroism. Though Spielberg filmed Schindler’s List in black-and-white, in one famous scene, he used red to distinguish a little girl in a coat. The red coat symbolizes Schindler’s awareness – he has finally opened his eyes – of the cruelty perpetrated by the Nazis. Later in the film, the little girl is seen among many dead victims, recognizable only by the red coat she is still wearing.

If the film has any failing, it is the inability to explain how or why someone such as Commandant Amon Goeth, sadistically and brilliantly portrayed by Ralph Fiennes, could kill and torment his victims with such brutal yet ordinary callousness. In one scene, Goeth casually picks off Jewish workers with a rifle from his balcony, betraying not a tinge of moral guilt. The film also fails to explain how so many ordinary Germans and Poles could see, know, and participate in what was happening, yet fail to resist or come to the aid of their fellow citizens. How Nazi soldiers could so cruelly separate mothers from children, picking and choosing among thousands of frail men and women, slave labor in one direction, certain death in another, without any apparent moral or spiritual doubt. (Elie Weisel, survivor of the Auschwitz and Buchenwald death camps, has recalled that the German officers who conducted the daily work of the concentration camp at Auschwitz received weekly communion in the Catholic Parish church). While Schindler’s List portrays the brutality and banality of mass killings and eliminationist anti-Semitism with stark realism, it does not attempt to explain why any of this was allowed to happen. Yet that is all part of Spielberg’s genius. The savagery of genocide and the horrors of the Holocaust so defy our everyday experience, it is impossible for most of us to wrap our minds around it; Schindler’s List enables us, in a small but significant way, to imagine the evil, not as ancient history or mythic tragedy, but as acts of everyday, ordinary people. Such is the power of empathy.

The power to create empathy, however, even for something as unimaginable as the Holocaust, has its limits. One need only examine the decade following Schindler’s List to see that, even a film as empathetic and powerful as Spielberg’s masterpiece fails to influence human behavior and the response of policymakers. In 2002, Professor Samantha Power of the John F. Kennedy School of Government at Harvard University wrote A Problem from Hell: America in the Age of Genocide (Basic Books, 2002), a brilliant book that explains the repeated indifference, ignorance, and failure of imagination that has been U.S. policy in response to genocide in the Twentieth Century. On page 503, she focused her attention on recent inaction:

Despite broad public consensus that genocide should ‘never again’ be allowed, and a good deal of triumphalism about the ascent of liberal democratic values, the last decade of the twentieth century was one of the most deadly in the grimmest century on record. Rwandan Hutus in 1994 could freely, joyfully, and systematically slaughter 8,000 Tutsi a day for 100 days without any foreign interference. Genocide occurred after the Cold War; after the growth of human rights groups; after the advent of technology that allowed for instant communication; after the erection of the Holocaust Museum on the Mall in Washington, D.C.

Power could have added that the genocides in Rwanda and the Sudan, and ethnic cleansing in Bosnia, each occurred after the release of Schindler’s List to critical acclaim and seven Academy Awards. Despite constant refrains of “never again,” the world has rarely given genocide the moral attention it deserves. The Turkish massacre of Armenians in 1915, the Holocaust of 1939-1945, the mass killings by Pol Pot in 1975, the slaughter of tens of thousands of Rwandans in 1994 – in each instance, Americans and the world failed to act. We did so, not because we were ignorant of what was happening, but simply because we lacked the will to act and were not prepared to invest the military and financial resources, and domestic political capital, needed to stop it.

In almost all of the genocides and human tragedies of the 20th century, there existed protesters and screamers, individuals of courage and conviction who spoke out and pleaded for U.S. and world leaders to commit its resources and power to prevent further atrocities. In most cases, the screamers were ignored, or not believed, or dismissed because the facts could not be instantly verified. In her book’s conclusion, on page 516, Power asks some crucial questions:

. . . [H]ow many of us who look back at the genocides of the twentieth century, including the Holocaust, do not believe that these people were right? How many of us do not believe that the presidents, senators, bureaucrats, journalists, and ordinary citizens who did nothing, choosing to look away rather than to face hard choices and wrenching moral dilemmas, were wrong? And how can something so clear in retrospect become so muddled at the time by rationalizations, institutional constraints, and a lack of imagination? How can it be that those who fight on behalf of these principles are the ones deemed unreasonable?