Justice and the enemyKaren Greenberg in Foreign Policy, May 15, 2012
by Karen Greenberg
On November 13, 2009, Attorney General Eric Holder announced that Khaled Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, would be tried in federal court alongside four co-defendants, reversing the 2008 Bush administration decision to try the 9/11 conspirators before a military commissions tribunal. On April 4, 2011, after an avalanche of criticism based on legal and security concerns, Holder sheepishly announced a reversal of policy. The country was now back where it had started: Khaled Sheikh Mohammed (KSM) would be tried by military commission at Guantanamo Bay. Perhaps because of the evident unease of the administration's turn about, ostensibly in response to political pressure, the debate over military versus federal tribunals for Guantanamo's High Value Detainees is still very much alive.
Recognizing this, William Shawcross's Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed joins the debate on the side of the military commissions. His somewhat standard reasoning begins with a relatively new, and somewhat flawed premise: that today's military commissions are but the current version of the "remarkable achievement" of the Nuremberg Trials, the international military tribunal which tried twenty-two Nazi defendants accused of war crimes and over which the American Supreme Court Justice Robert Jackson presided as chief prosecutor. Shawcross, whose father was the chief British prosecutor at Nuremberg, insists that at Nuremberg, "Justice was done." From the start, Shawcross sets up Jackson as his hero, the unquestionable voice of wisdom, carrying the message from Nuremberg to terrorism.
To justify his reliance on Nuremberg as the determinative precedent, Shawcross asserts a foundational principle - that al-Qaeda is but the most recent example of the evil that evidenced itself in the Nazi atrocities, an evil that "did not die" with the twelve men condemned to death at Nuremburg, an evil that "reinvents itself in every age" and that "struck America on September 11." From this, he extrapolates that, when it comes to al-Qaeda defendants, it is only right to try them by military commissions.
From the trial of Zacarious Moussaoui, who pled guilty in 2005 to charges of conspiracy in the 9/11 attacks, to the reading of Miranda rights, albeit after a delay, to the Christmas Day bomber, Shawcross echoes the oft-repeated opinion that in these cases, "justice was not done." No case, to his mind, has demonstrated this more clearly than the trial in 2010 of Ahmed Ghailani on charges of conspiring in the 1998 Embassy Bombings in East Africa. Taking place twelve years after the crime, during which time Ghailani was tortured at a CIA black site and held at Guantanamo, the Ghailani trial was the Obama administration's attempt to test the federal court system. When the jury found Ghailani not guilty on 284 of 285 charges, Holder's reversal became inevitable. Although Ghailani was sentenced to life in prison without parole, Shawcross is far from satisfied at what he considers a decision "perilously close to acquitting [Ghailani] altogether." He cringes at the notion that "either the government would have had to let him go," causing "immense strategic consequences," or they would have to "detain him despite the verdict of innocence." Justice Jackson, he tells us, would have agreed that terrorism detainees should not be released. Jackson, he reminds us, had opined that prosecutors "must never put a man on trial unless you are prepared to see him walk free," - a notion that Shawcross finds unthinkable in these cases, ignoring the fact that under Jackson's supervision, three of the Nuremberg defendants, were acquitted, and indeed, did walk free. Here, as elsewhere, Shawcross is shamelessly certain about prophesizing what Jackson would have done, telling us at one point that Jackson would have condoned not just the trial of KSM in a military tribunal but Obama's targeted killings policy as well. He cites Jackson on the matter of executing war criminals, "'If it is considered good policy for the future peace of the world, if it is believed that the example will outweigh the tendency to create....a myth of martyrdom, then let them be executed. But...let the decision to execute them be made as a military or political decision,'" not a judicial one. Shawcross's logic, shaped by its usefulness for his argument, fails to consider that Awlaki's crimes as well as bin Laden's were those which both the criminal justice system and Guantanamo had prosecuted, and that bin Laden, indicted in federal court, was already squarely within the trajectory of the criminal justice system.
Ultimately, Shawcross rests his position on the belief that terrorism defendants are categorically different from those accused tried in criminal proceedings. As such, they are undeserving of the precious protections offered by the U.S. Constitution. When it comes to terrorism, he cannot understand applying the age-old dictum, "it is better for ten guilty men to go free than to have one innocent man convicted." Why, he wonders, must "that generous principle" be extended to terrorists, those who would "murder their way to a destruction of the rule of law and its replacement by a sectarian dictatorship?" "The idea that the Nazis should have had the protections afforded to Americans by the United States Constitution never occurred to Justice Jackson or any of the other jurists involved in the tribunal." Showing no allegiance to political correctness, Shawcross goes so far as to ask, "Why is one religion being accorded so much more deference than all the others?" Here, it is not just Shawcross's logic which is faulty but his misunderstanding of the law which posits that guilt and innocence must be tested in a fair, evidence-based trial and that ideological leanings do not alter that access to the system of law.
For the untoward "generosity" on the part of those who defend the use of the federal courts and who seek to defend Guantanamo detainees, Shawcross blames the Left, specifically the Center for Constitutional Rights and the ACLU, both organizations which have been devoted to creating defense strategies for the Guantanamo detainees, largely through habeas petitions or aid to defense counsel at Guantanamo. In Shawcross's words, "Some of the lawyers, at times, seemed more concerned about the alleged injustices done to the detained terrorists than they did to those perpetrated by them." But it is not just the Left that he blames; the criminal justice system itself as well is to be blamed. Failing to distinguish law enforcement in terms of intelligence gathering and preventive police work from criminal prosecutions of terrorists accused of specific plots, Shawcross sees 9/11 as proof for his argument. "The very fact that 9/11 happened at all spelled failure for the law enforcement approach to terrorism." Viewed this way, denial of the right to hold trials in federal court seems almost like just punishment to Shawcross. Quoting Justice Scalia's dissent In the Boumedienne ruling which granted the detainees the right to habeas corpus, Shawcross reasserts his fears of the inadequacies of the legal system: the question of "'how to handle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails."
Those who came of age politically during the Vietnam War might find themselves surprised by William Shawcross's ready acceptance of policies that have consistently bypassed the legal system amidst secrecy, fears of exposure for illegal policies, and without regard for either expediency or efficiency. His 1979 book Sideshow provided an unparalleled contemporary critique of the foils of power gone wrong. Confident, immensely detailed, and persuasive, Sideshow was journalism in the service of opposition politics, and as such, became one of the seminal works on the Vietnam War. Now, nearly twenty-five years later, Mr. Shawcross has given us a book which is eons away from the spirit of his earlier work. Instead of a critique of those in power, Justice and the Enemy is a defiant embrace of decision-making that yields to political pressure whatever the stakes. Rather than see this books as a novel argument in defense of military commissions, Shawcross's book is perhaps best viewed as a reminder of the fading spirit of those determined to check the use of power in the name of national security.
Karen Greenberg is director of the Center on National Security at Fordham University's School of Law and author of The Least Worst Place: Guantanamo's First 100 Days.