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Lessons from Nuremberg by WILLIAM SHAWCROSS GEORGE

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Lessons from Nuremberg by WILLIAM SHAWCROSS GEORGE Lessons From Nuremberg By WILLIAM SHAWCROSS GEORGE ORWELL is usually a footsure chief American prosecutor and the driving guide across political battlegrounds. In late force behind the trials, told President Harry 1943, when the tide had turned in the Allies’ S. Truman that he had assembled more than favor, he wrote about postwar trials. Oddly, five million pages of evidence. The files of he advocated Hitler and Mussolini slipping the SS alone needed six freight cars to carry away. His verdict for them would not be them. Subsequently the tribunal published death unless the Germans and Italians 11 volumes of documents and 20 volumes themselves carried out summary executions devoted to the proceedings alone. The emi- (as they eventually did in Mussolini’s case). nent British historian Alan Bullock wrote of his excitement at reading through these He wanted “no martyrizing, no St. Helena records: whatever the arguments about business.” Above all, he disdained the idea justice, “from the point of view of the histo- of a “solemn hypocritical ‘trial of war crimi- rian the Nuremberg trials were an absolute- nals,’ with all the slow cruel pageantry of ly unqualified wonder.” Nuremberg was the law, which after a lapse of time has so essential in creating memory and senses of strange a way of focusing a romantic light responsibility, in Germany itself and far be- on the accused and turning a scoundrel into yond. a hero.” Nuremberg, lest we forget, was a military For once Orwell missed his step. The Allies tribunal with civilian lawyers and it offered did stage a trial of the Nazi war criminals, at far fewer protections to the Nazis in the Nuremberg. (My father, Hartley, was the dock than the military commissions at chief British prosecutor.) The trial had flaws. Guantánamo will give to Khalid Shaikh Mo- To some it will always seem to be “victors’ hammed and his co-defendants in the 9/11 justice” and it can be called hypocritical in attacks. Military justice worked then and it that the Soviet Union, guilty of many of its can work again today. own crimes against humanity, was an equal partner with the democratic prosecutors This is not the place to repeat the fierce and judges. disputes over President Obama’s decision last week to prosecute Mr. Mohammed be- But, over all, it succeeded very well. It was fore a military commission instead of a civil- solemn, as it should have been, and what ian court. What they show above all is that Orwell called “the pageantry of the law” there are no absolute truths; law is argu- was neither cruel nor slow — the trial be- ment. gan in November 1945 (remarkably this was only six months after the German surren- Many of the important Supreme Court de- der) and was all over by the following Oc- cisions in the war on terrorism have been tober. Would that anything could be done made by slim majorities, one way or anoth- so efficiently today. er. In such complicated areas it is rare to find unanimity. This is not surprising. Indeed, Most of the Nazi defendants were found such debate is a token of the vitality of guilty and executed, others were given less- American jurisprudence. er sentences and some were acquitted. Orwell’s fear that they would later be cast I understand why many people believe that in a romantic light and turned from scoun- in the hugely important, and hugely symbol- drels into heroes has not been realized. ic, case of Khalid Shaikh Mohammed, Amer- They are still seen as mass murderers. ica would be best served by justice being dispensed in an open federal court. But Nuremberg not only dispatched justice United States military law should not be swiftly, it also created a historical narrative dismissed. It has a distinguished history da- that has survived. Robert H. Jackson, the ting back to 1775; every year military courts dispense justice to thousands of Americans. American allies who benefit from American And don’t forget that the Qaeda detainees protection but cannot resist criticizing its in Guantánamo will all be presumed inno- processes. It would not be precisely mod- cent, their guilt must be proved beyond eled on the successful tribunal at Nurem- reasonable doubt, and each will have the berg, but it would follow in that hybrid tra- right of appeal all the way to the Supreme dition of using the best civilian and military Court. advocates, prosecutors and processes all carrying out their tasks in the full view of As far as Al Qaeda and its associates are the press. concerned, it does not make the slightest difference whether its members are tried in The trial of Khalid Shaikh Mohammed and federal or military courts — Islamists re- his co-defendants is of vital significance be- gard each as equally illegitimate. As Anwar cause it addresses not just a group of thugs al-Awlaki, one of Al Qaeda’s most promi- but the enduring human phenomenon of nent ideologues today, has said, Muslims evil. No two eras are the same, nor are the must not be forced to accept the rulings of threats they face identical. But evil is eternal Western courts; he insists that for Muslims and re-invents itself in every age. to abide by Western laws is to live like sheep “stripped from their right to live as In the 1940s the world confronted and, Muslims under the law of Islam.” with immense sacrifice, defeated the evil of fascism. The scale and the nature of the No form of Western justice will ever be threat is different today but true menace — accepted by Al Qaeda. But President from the attacks of 9/11 itself to the recent Obama could seek to make trials in Guan- beheading of United Nations workers in tánamo more accessible to the rest of the Afghanistan simply because a Koran was world. One should never forget that most burned in Florida — lurks patient and op- of the people killed by Al Qaeda around the portunistic. It cannot be appeased any more world are not Americans — the majority than Hitler could be appeased. are innocent Muslims caught up in Islamist killing sprees in Iraq, Pakistan, Afghanistan, Despite Orwell’s misgivings, at Nuremberg Somalia and elsewhere. our civilization designed a vehicle to anathemize men imbued with evil. And it Even on Sept. 11, hundreds of those killed created a historical narrative that proved were non-Americans. Britain lost 67 people invaluable throughout the decades since. that day. Their families, too, have an inter- The case against Khalid Shaikh Mohammed est in seeing justice done. They could also and his friends must develop a similar, vital assist. history of Al Qaeda to inform generations to come. Nuremberg is a precedent on The United States is well practiced at mili- which the United States can build with pride tary officer exchanges. Why not invite those in this new and essential trial. nations with a jurisdictional claim against Mr. Mohammed — those which lost citizens on 9/11 — to send cleared and qualified senior military lawyers to serve in the court at Guantánamo? This could be done after Congressional modification of the 2009 Mil- itary Commissions Act to determine in what roles they could serve. Britain, Japan and Ghana are three countries that could qualify. Such internationalization of the court in Guantánamo would call the bluff of those .
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