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Some reflections on Justice and the Enemy

In November 2009 Attorney General Eric Holder announced that he would put Khaled Sheikh Mohammed on trial in Manhattan and immediately drew protests from New Yorkers who did not relish a return visit of al Qaida in any fashion.


January, 2012

In the ensuing row, my editors at PublicAffairs, who had published my defense of the overthrow of Saddam Hussein, Allies: The U.S., Britain, and Europe in the Aftermath of the Iraq War, in 2004, called and said, “William your father was Chief Prosecutor at Nuremberg. Write a short sharp book saying that was how we dealt with the monsters then – here’s how we should do so now.”

I blithely thought, Why not? It would be nice to write a little of my father, whom I loved and admired, and Nuremberg was a part of my growing up. I used to listen to fragile 78 rpm records of my father’s speeches for the prosecution. I found his descriptions of Nazi crimes chilling.

I am not a lawyer and so I found the book much harder than I expected. But it is now complete and just published — Justice and the Enemy: Nuremberg, 9/11 and the Trial of Khaled Sheikh Mohammed.

What I have tried to do is to put the proposed trial of Khaled Sheikh Mohammed into the context of Nuremberg. I have sought to explain the extraordinarily difficult dilemmas that would have faced any US Government after the horrific attack of 9/11 — particularly in light of bin Laden’s repeatedly stated ambition to acquire and use WMD against the world.

During the 2008 Presidential campaign, Barack Obama, who constantly attacked President Bush for his policies in the war on terror, praised Nuremberg. He said that “part of what made us different was even after these 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 were are but also about the rule of law.”

I agree with Obama that Nuremberg was a success and should not be dismissed as “victors’ justice.” But what he failed to acknowledge was that the defendants at Nuremberg had far fewer rights than those at Guantanamo under the Military Commissions created by President Bush. Indeed, were a Nazi transported by time machine from Nuremberg to Guantanamo he would be astonished by the privileges and safeguards which were suddenly available to him.

The most fundamental is this: at Nuremberg there was no right of appeal against the judgement of the Military Tribunal. By contrast anyone convicted at Guantanamo can appeal all the way to the Supreme Court. In other words he will have all the safeguards of anyone convicted in an Article III court. That is worth remembering in the months ahead as reformed military tribunals come under sustained attack from the left and from powerful human rights organisations.

That is another huge difference from 1945. At that time none of the human rights organisations that are so influential today even existed. Apart, that is, from the US Armed Forces and their democratic partners. The US military was then, and still is today, the greatest defender of human rights that the world has ever seen. Think of the millions rescued from tyranny by American forces throughout the 20th century – and in the first ten years of this decade. Without the extraordinary commitment of American blood and treasure the world would not have enjoyed any such stability as it finally won during the century of totalitarians and mass graves.

I live in London and believe very strongly that we Europeans are shockingly casual about the debt we owe those mostly young men and women from all over the United States. And that is why I fear Obama’s refusal to accept the concept of American exceptionalism. Without American commitment, a free Europe will be under serious threat. The last one hundred years have shown that only America has the power and the optimism to defeat the forces of nihilism, whether they are fascist, communist or radical Islamist.


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