Terror on Trial: Legal proceedings against violent extremists are a crucial defense of our civilization
Legal proceedings against violent extremists are a crucial defense of our civilization, writes William Shawcross, whose father was a prosecutor at Nuremberg.
Expect to hear a lot about Nuremberg in the months ahead. The war-crimes trials of leading Nazis, begun in that German city in 1945, will form an important subtext as we approach the trial of Khalid Sheikh Mohammed, the accused mastermind of 9/11, and his associates. The pretrial proceedings at Guantánamo may start as soon as March.
Since 9/11, America’s attempt to balance justice and national security has drawn protests both at home and abroad. Some of the criticism has been fair, but much of it ignores the dilemmas that any administration would face in dealing forcefully with 21st-century terrorists who, unlike the defendants at Nuremberg, have not yet been defeated. Few things are harder for democracies than to render justice to enemies whose aims are both irrational and non-negotiable.
The trial of Khalid Sheikh Mohammed will be historic. It will address not just a group of thugs but the enduring human phenomenon of evil. Mutable and persistent, evil has not been discouraged by the progress of reason or the taming of nature. Evil reinvents itself in every age and is reinvigorated by mankind’s inevitable immaturity. Like the fascist ideology that the democratic world fought in the 1940s, the dogma of al Qaeda (and of the extremist Shiite dictators of Iran) is despotic, anti-Christian, anti-Semitic and nihilist. Like the Nazis, they cannot be appeased.
On the campaign trail in 2008, Barack Obama invoked Nuremberg. He had studied the tribunal in law school and referred to it in the context of the Supreme Court decision in the case of Boumediene v. Bush, which gave Guantánamo detainees the right to challenge their detention in federal court. Mr. Obama praised the opinion and linked it to the respect for due process, which he said, Nuremberg had exemplified. “During the Nuremberg trials, part of what made us different was even after those Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court, and that taught the entire world about who we are.”
To which the most appropriate response is—up to a point. The top Nazis captured in 1945 were indeed given “their day in court.” But that court was a unique military tribunal, created specifically for the circumstances after V-E Day. The defendants were far better protected than they would have been in any Nazi court (or Soviet court, for that matter), but they certainly did not enjoy the rights of defendants in the U.S. The idea that top Nazis should have the same protections as those afforded to Americans by the U.S. Constitution never occurred to the jurists devising the rules for Nuremberg.
To some, Nuremberg will always be an example of “victors’ justice.” I believe that view is wrong and that the tribunal (where my father, Hartley Shawcross, was the chief British prosecutor) was a necessary and successful exercise of law. At Nuremberg, our civilization developed a vehicle to anathematize men imbued with evil.
Justice Robert Jackson, the chief U.S. prosecutor and the architect of Nuremberg, put it well when he spoke of the regime that the accused at Nuremberg had served: “Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.”