Published by PublicAffairs (2012)
Reviewed by Wells C. Bennett
William Shawcross’s widely-noticed new book, Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheik Mohammed, asks the following: how does a civilized society bring justice to mass murderers, al Qaeda and its adherents, when it has not already killed them, but holds them captive in its hands? The title suggests an answer. “Nuremberg is a precedent,” Shawcross says, “on which the United States can build with pride.” He thus sets up the year-long International Military Tribunal proceedings as a lens through which to view the current debate over terrorism trials. The examination is elegant and fast-reading. Most of the book is a detailed legal history, starting with the origins of militant Islam and continuing through 9/11, America’s and other countries’ responses, and ending with recent events like the deaths of Osama bin Laden and Anwar Aulaqi. The rest comprises Shawcross’ own claims – chief among them, his argument that the “problems the U.S. government has faced since 9/11 in bringing its enemies to court are far more difficult than its critics, at home and abroad, are prepared to acknowledge.”
Many things make Justice and the Enemy a worthy read, starting with the author’s recitation of the history. Having some subject matter background, but lacking extensive knowledge of the war crimes trials, I learned a great deal from Shawcross’ trove. (The author’s personal biography adds a special touch: he is the son of Hartley Shawcross, Britain’s former Attorney General and its representative on the Nuremberg prosecution team.) And though the book overwhelmingly approves of the Nuremberg trials, Shawcross also includes some unflattering anecdotes. Attorney General Francis Biddle and War Secretary Henry Stimson recommended that a military tribunal preside over the trials of alleged war criminals. But their ultimately successful proposal improved greatly on the less-salutary original views of Churchill, as well as Dwight Eisenhower and Josef Stalin, all of whom at one time or another advocated for summary execution of high-ranking Nazis. Shawcross also illustrates the moral-authority-stripping effect of the Soviets on the prosecution. Indefensibly, and over the other Allies’ objections, the U.S.S.R.’s contingent charged German soldiers for the Katyn massacre – an event that later was conclusively proven to have been the work of the NKVD.
Justice Robert Jackson is a major player in Shawcross’ story, for obvious reasons. The book mentions some episodes that occurred before Jackson’s appointment as Chief Prosecutor, but that also contributed to his Nuremberg legacy: his diplomacy ultimately brings the Allies to agree on the use of an international court, and he insists that any judicial proceedings allow for the possibility of acquittal. The most dramatic parts, though, come from the courtroom. Citing his father, Shawcross tells us that Jackson’s cross-examination of Herman Goering was regarded as ineffective, and ultimately required the last-minute intervention of Jackson’s British counterparts. Here is Shawcross fils quoting Shawcross pere, as the latter delivers his two-day closing argument to the Tribunal: “And so, after this ordeal to which mankind has been submitted, mankind itself –struggling now to re-establish in all the countries of the world the common simple things – liberty, love, understanding – comes to this Court and cries, ‘these are our laws – let them prevail.” This and similar things make up the backdrop in Justice in the Enemy, and Shawcross lays them out elegantly.
This allows for the author’s broader comparisons – one being a side-by-side of the Nuremberg defendants and the men who would fill the dock at Guantanamo. During the Second World War, Shawcross tells us, the Nazis and radical Muslims at times relaxed their incompatible worldviews just enough to make common cause in especially rabid anti-Semitism: Radio Berlin broadcast the sermons of the Grand Mufti of Jerusalem, who asked his listeners to kill Jews and said that doing so would please God. Shawcross also recounts Jackson’s observations about Herman Goering, who strove to dominate his trial at Nuremberg – much as, Shawcross speculates, KSM would wish to convert his war crimes trial into a self-aggrandizing, propagandistic display.
A narrower, procedural comparison is woven throughout Justice and the Enemy as well. Shawcross correctly points out that time-traveling Nazi defendants would likely prefer to be tried by military commission these days, the latter forum affording significantly more in the way of procedural protections than the Nuremberg tribunal ever did. In this way, the author suggests that complaints about the present-day commissions’ fairness are wrong: Shawcross believes that though hardly perfect, the Nuremberg trials were fair and at bottom, a good idea, and likewise today's military commissions. But strong as that sense is in the book, that does not imply, Shawcross is careful to note, that the gradual strengthening of military commission procedural protections overall is somehow a bad thing, just because today's processes are considerably more defendant-protective than those of historical Nuremberg.
Neither does he imply that the United States should scrap its domestic courts, civilian or military, and recruit some Allies with which to hold a Nuremberg-like session for al-Qaeda defendants, with procedural protections deemed acceptable in 1945. Shawcross is not invoking Nuremberg as a call to return to the past; he accepts that our sense of process has moved on in its specifics. Shawcross is, it seems, less about making Nuremberg the actual template, and much more focused on using Nuremberg as a means of countering various attacks on America’s legal response to terrorism through military trials. Nuremberg provides legitimacy for a process today that is at once military in venue but nonetheless legitimate and law-governed.
Justice and the Enemy is in some places given to oversimplification. This is more than merely the lawyer’s automatic complaint. And there is some irony in this, after all, given that Shawcross shows that many complaints about the United States’ counterterrorism polices are themselves quite ham-fisted and oversimplified, if not wildly off-base. One example of his complaint of absurd adherence to proceduralism, but which ultimately might be thought to swing back on him, is the excursus on KSM’s background and early terrorist activities. He repeats the claim (familiar to readers of Lawfare) that federal criminal procedures obligated prosecutors to turn over a list of co-conspirators to the defendants in the Blind Sheik case dating back to the 1990s and the first attempt on the WTC; and that once handed off, the list quickly made its way across the globe to bin Laden and alerted him to the United States’ tracking efforts. But Shawcross neglects an extensively researched report by other federal prosecutors, however, which concluded that the criminal rules – had they been properly invoked – actually could have shielded bin Laden’s name from disclosure; he might fairly reply, of course, that "had they been properly invoked" does not alter what actually happened, which is that bin Laden's name was released. The 1990s Blind Sheik trial certainly convinced then-Judge Mukasey that federal courts were not fit for processing terrorism cases.
Who wins this particular exchange? It is hard to say; nonetheless one must note that Justice and the Enemy repeatedly chides some in the human rights world and on the political left for leaving out what Shawcross sees as inconvenient but nevertheless important information. He writes that, despite professing admiration for Justice Jackson, Attorney General Eric Holder had, in predicting KSM’s eventual conviction and death sentence, “perhaps forgotten” Jackson’s admonition about never putting a man on trial unless you can tolerate his acquittal. Critics of the military commissions also, according to Shawcross, “rarely mention” that the Supreme Court has final authority to review commission judgments, a fact that – as Shawcross sees it – undercuts their other objections to the commissions. Still, Shawcross would do better to be as unsparing in his examination of the early military commissions as he is in assessing the federal courts as venues. Though he acknowledges the reasons one might reasonably prefer civilian terrorism trials over military ones, Shawcross says many of the touted-as-successful federal prosecutions in fact involved minor players, who were apprehended in the United States and convicted of non-terrorism offenses. He also suggests that the prosecution’s burden to turn over exculpatory evidence would be lesser in a federal forum than in a military one, and that military commissions can better guarantee the safety of their members than federal courts can safeguard their civilian jurors.
That is fine as far as it goes. But on a comparative basis, Shawcross goes somewhat easier on the commissions, especially the first-generation ones established by President Bush’s military order. He acknowledges, for example, that the Defense Department’s “bureaucratic nervousness” contributed to the slow pace of commission prosecutions. However, Shawcross goes on to say that a bigger cause for the delay was “the ACLU and other such organizations . . . [which] used every legal device to undermine [the commissions].” That eyebrow-raiser is superficially true. But it is also quite incomplete, considering that early-era commission rules compelled the ACLU and other groups – often taking cues from military defense counsel – to challenge the commissions in the first place. (Disclosure: in law school, I provided research support to the Commissions’ Office of the Chief Defense Counsel; in private practice, I also assisted in preparing a letter which various human rights groups submitted to the Defense and State Departments, in connection with the Omar Khadr case.)
Likewise, I also didn’t see anything in the book about the commissions’ delay-causing internal squabbles, such as the widely-reported exchange between the Chief Prosecutor and the General Counsel for the Department of Defense, in which the latter allegedly said that there could be “no acquittals” at Guantanamo. These are smallish details. But they tend to complicate Shawcross’ argument that the sluggish commission docket should be mostly attributed to the Gitmo bar and their time-sucking lawsuits. He might or might not be right about that. But his case is marred in that he does not prosecute the two sides equally vigorously for their failures and hypocrisies; national security conservatives do better and pro bono law firms or human rights attorneys do worse. Likewise Attorney General Eric Holder, whose failed pursuit of a federal trial for KSM, and congressional testimony regarding the trial and other counterterrorism matters is sharply scrutinized. The point is not some artificial “balance”: but there is a fairer reading of the facts, on the details.
As for President Obama, Shawcross (along with everyone else these days) notes that he was against military commissions in one form until he was for them in another. In the epilogue, Shawcross worries that the United States and Europe had, by summer of 2011, lost some of the will needed to maintain a stout and united defense against terrorism. This was in part because, Shawcross says, “America now had a President who did not always articulate his predecessors’ faith in America’s power to do great good in the world.” The President’s alleged limpness in this regard could be contrasted with President Reagan, whose persistent appeals to freedom “were inspirational to those oppressed by totalitarian regimes.”
Is it quite that simple? For Shawcross, it is enough that, unlike President Reagan, President Obama refused “to offer support for the Iranian protesters gunned down by their clerical masters in 2009.” That much simply does not sustain Shawcross’ charge against the President, or mark a drop in American resolve. And, since Shawcross raises the issue, isn't the story is more complicated than “Reagan: Steadfast in Defense of Freedom versus Obama: Sometimes Equivocal in Defense of Freedom”? This president extended American support to the Libyan opposition - enough, in fact, to implicate the War Powers Resolution and ultimately to speed the collapse of the Qaddafi regime. For all its purported constancy, too, Reagan’s foreign policy also sometimes took on a more morally complex and less inspirational, less “freedomish” dimension: Cf. Iran-Contra. All of which is to say, passing remarks in Justice and the Enemy can be oversimplified and distracting, even unfair in the small things. Again, I suspect that this derives from Shawcross’ brimming desire to knock down what he sees, overall quite rightly, as persistent and unfair criticisms of the United States; one sympathizes but does not exculpate.
In any case, lingering imbalance on small things does not take away from the book’s great strength, which is to grapple honestly and utterly without obfuscation with some of the day’s toughest questions of terrorism law and policy. Shawcross repeatedly reminds the reader that they cannot be easily resolved. The book explicitly accepts the premise behind the Lawfare project that national security and the rule of law frequently involve tradeoffs and tragic choices. Consider, for example, the diverse mix of opinions distilled in the book on the exceedingly controversial matter of interrogation – among others, Douglas Feith, the late Christopher Hitchens, our own Benjamin Wittes, and the Oxford moral theologian Nigel Biggar. The author himself advances no specific claim about optimal interrogation policy, and does not draw any legal boundary line. He instead offers up these contending viewpoints and, along the way, acknowledges the horrible options confronting a President who believes that a potentially unlawful interrogation is necessary in order to learn information with which to avert a catastrophe. That situation comprises, in Shawcross’ words, a “dilemma of the lesser evil.”
The same virtue-of-impurity, ethics-of-tragic-choices, is evident in Shawcross’ ultimate conclusions about terrorism trials. Despite his great admiration for the International Military Tribunal, he stoutly refuses to propose a military-only or federal-only paradigm, and instead argues that, going forward, “military and federal courts are both needed.” This does not merely reflect Shawcross’ interest in maintaining the flexibility necessary to combat a multifaceted threat, though he makes it quite clear that he does. It also reflects Shawcross’ understanding of the current procedural setup. Shawcross recalls that in Ghailani, testimony procured through coercion also could have been excluded by a military commission, much as it had been during the defendant’s federal trial. And Shawcross also identifies the legally, politically and diplomatically corrosive scenario, in which a defendant is acquitted but nevertheless detained under the laws of war. That is always a possibility, as Judge Kaplan said in Ghailani, and will be so regardless of whether the government opts for a federal or military forum. My hunch is that Shawcross would think that it is something of a dodge to pretend that the residual detention question will simply go away if the government opts for one type of trial over another.
At the book’s end (a scrupulous reviewer for Lawfare should note) Shawcross acknowledges contributions by Benjamin Wittes, Kenneth Anderson, and John Bellinger, and he commends Lawfare (which the book repeatedly cites) as an authoritative source on national security law.