Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed Hardcover – 10 Jan 2012

I thought this very well-researched book by a man
eminently qualified on the subject was interesting
and timely considering the evil that exists, and
is growing, in today's world.

William Shawcross looks at Khalid Sheikh Mohammed, military tribunals (and their alternative) and the precedents provided by Nuremburg. Very well-written, Justice and the Enemy looks at the issues involved in an honest way: do we really want to give unlawful combatants operating from foreign countries access to American rights and justice systems? Do we prosecute those who commit "war crimes" (direct terrorist action) but leave alone who knowingly finance and provide necessary infrastructure to commit such crimes? How perfect does the military tribunal system have to be?

Shawcross discusses al-Qaida and its sympathizers (like Major Nidal) in blunt terms, but he does not give the Bush administration a pass either when it comes to the prosecution of the captured enemy non-combatants. Shawcross provides information conveniently neglected by the mainstream media when it comes to so-called torture of detaines and their treatment at Guantanamo Bay, not to mention the amnesia they have when it comes to KSM not only admitting to his role in 9/11 but bragging about it. Shawcross pulls no punches when he talks about the ACLU and CCR involvement with defending detainees. Everyone deserves legal counsel, but not slobbering liberal lawyers like Lynne Stewart, who assisted the Blind Sheikh involved in the First World Trade Center Bombing in getting instructions to his terrorist cohorts on the outside. To be honest, it sickens me to see Cheryl Bormann, a U.S. attorney who enjoys equal rights afforded to American women, wearing a hijab for the PRIVILEGE of defending this scum.

We are fighting a war. As Justice Jackson (who is quoted in this book) pointed out, in wartime enem access to the courts cannot be used to their strategic advantage. Jackson, who would preside at Nuremberg, was discussing a now long-forgotten incident in WWII in which Nazi sabotuers were landed via U-boat, captured and tried by military tribunal. NOT the civil courts, even though those courts were functioning and some of the defendents were American citizens who went to Germany to fight. This is what's known as a "precedent." Most were later hanged.

The book looks at the attempts by the Obama administration to do a change of venue and have civil trials for KSM and other detainees in NYC. This was a disaster. What amazes me is why the Obama administration would even consider moving detainees from Guantanamo Bay to a venue guaranteed to be a media circus (not to mention a serious security issue). The only conclusion I can come to is that Obama felt he could get credit for taking the detainees out of the EEEEEEVIL clutches at Gitmo... even though Holder himself had visited there several times (at least once while I was there) and KNEW that the facility was not the orange jump-suit jungle prison perpetually displayed in the media.

A thought-provoking book, this is a must-read for anyone interested in the legal side of 9/11.

I picked up this book in the library, as it had a good title, and covered a topic I find interesting: how we judge people who don't fall easily into a catagory: specifically terrorists. They are not civilians, nor are they enemy soldiers, yet they are combatants. Unfortunately, as I started the book, I found it superficial. For example, his very brief summary of Islamic radicalism was limited to the point of being useless. It was essentially one brief chapter, with relatively few references, mainly secondary or tertiary sources. He briefly states a few well known facts, and then draws a comparison between Islamic radicalism, and Nazi totalitarianism.* It didn't matter too much initially, as the chapter was not particularly important with respect to the meat of the problem: how do we deal with the terrorist justly. Unfortunately, he then moves on to discuss the Bush administration's decisions on the detention and interrogation of suspects. Here, he again relies heavily on a limited quantity of secondary sources. (Including Jack Goldsmith's book, which you should read if you are interested in these issues.) His manner of argumentation is more of the hand waving variety, rather than the carefully reasoned and documented arguement. For example: He makes a number of statement about the value of the interrogation of Abu Zubayda, that directly contradict statements made by multiple sources including an FBI agent involved in the interrogation. That would be fine if he documented his disagreements, and provided sources for his statements. However, he basically says that the interrogation was a success only after torture was applied. He doesn't seem to realize that this view of the utility of torture has seriously been called into question by a number of reliable sources and in particular in the very case he cites. And basically the book proceeds in this fashion. He edits out or give a summary dismissal to points that are controversial that he really should address head on. This weakens the effect of his arguement. Mr. Shawcross is a good writer, and easy to follow. But in the end, I felt that I had heard his main points concerning torture, detention, military tribunal vrs court trials in the popular press with equal clarity and detail. (To be fair, I had also read a number of his sources, and some of the information may come from there.) I did find his discussion of the developement of the Geneva Protocols interesting and his point that they are in some ways outdated probably quite correct. If you haven't been following these issues, this book probably would provide a quick and easy introduction to one side (call it the hawk side) of the arguement. But if you are looking for a carefully researched and argued book about these topics, this book ain't it.
*Brief rant: Why does every person who we consider evil get compared to the Nazis? Hitler and the Nazis conquered Western Europe, attempted to exterminate the European Jews (killing millions in the process), and ethnically cleanse large numbers of Slavs. Not to mention the medical experiments, treatment of homosexuals etc. This kind of institutionalized totalitarian evil has been (to my mind)equaled only by Stalin and possibly Mao. Maybe Pol Pot too, I defer to Mr. Shawcross on that. But people compare Mr. Santorum, Mr. Obama, Sadam Hussain, and Osama Bin Laden to the Nazis. (Not to mention most liberals, thank you Mr. Goldberg.) At many levels, there just isn't a serious comparison, and to do this misunderstands the seriousness of what the Nazi's accomplished. Yes, all of these people share some characteristics in common with the Nazis, but so do you and I. Lets try to describe what we see, an limit the absurd comparisons which are mainly used to attract attention. Sorry.

The author takes on the Left for its coddling of terrorists, especially in the US and Europe. He argues correctly that the Nuremberg trials were established to punish Nazis, not to give them due process, and maintains that Islamic terrorists be treated the same way. He makes the case for "enhanced interrogations" of terrorists because such techniques work. Simple common sense at a time of great liberal silliness.

The author devotes a good deal of space to what to do about KSM, the mastermind of 9/11. The liberals want a civilian trial in lower Manhattan; conservatives want a military trial in Gitmo. The correct answer would be to clear mid-town Manhattan for an hour and drop KSM from the top of the Empire State Building so that he can feel the dread experienced by those who jumped from the WTC. Common sense at a time of silliness.

Events move faster today than they did in the 1940s -- or do they? In the case of eight Nazi saboteurs sneaking into the U.S. in 1942 and the trial of Nazi war criminals in Nuremberg in 1945-47 not so much, says William Shawcross in "Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed" (PublicAffairs, 256 pages, index, notes, $26.99).

Shawcross, a British journalist and the son of Britain's lead prosecutor at Nuremberg, provides precedents for a military commission for trying imprisoned senior Al Qaeda plotter Khalid Sheikh Mohammed (KSM). In today's complicated world the trial of the 9/11 mastermind and admitted murderer of American journalist Daniel Pearl raises issues-- logistical, legal, and ethical--emblematic of the challenge posed to all nations and the international community.

Shawcross elegantly considers the issues surrounding the pending trial of Khalid Sheikh Mohammed and asks: How does society deal lawfully with the lawless?

Since the Nuremberg Trials, lawful nations have struggled to impose justice around the world, especially when confronted by tyrannical and genocidal regimes. But in Cambodia, the USSR, China, Bosnia, Rwanda, and beyond, justice has been served haltingly if at all in the face of colossal inhumanity. International Courts are not recognized worldwide. There is not a global consensus on how to punish transgressors.

Shawcross ponders a federal trial which would reward a confessed war criminal like KSM the rights of a U.S. citizen to which he is not entitled. Or would a military tribunal be appropriate -- legally, militarily, or morally? On pages 65-70 Shawcross discusses the 1942 secret military tribunal convened by President Franklin D. Roosevelt that tried
eight German saboteurs who landed on Long Island and Florida that resulted in the unanimous Supreme Court decision Ex parte Quirin, 317 U.S. 1 (1942). Ex Parte Quirin upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius saboteurs in the United States.

Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States. (An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney. The term ex parte is used in a case name to signify that the suit was brought by the person whose name follows the term.)

The eight men involved in the case were Ernest Peter Burger, George John Dasch, Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel. Haupt was a U.S. citizen.

All were born in Germany and all had lived in the United States. All returned to Germany between 1933 and 1941. After the declaration of war between the United States and the German Reich in December 1941, they received training at a sabotage school near Berlin, where they were instructed in the use of explosives and in methods of secret writing. They were captured in June 1942, soon after they landed in New York and Florida.

President Franklin D. Roosevelt convened a secret military tribunal on July 2, 1942 which sentenced the eight men to death. They were represented by counsel. Dasch and Burger were given prison terms -- and were later released -- and the remaining six were executed by electrocution on August 8, 1942 in Washington, D.C. Dasch and Burger were released from prison in 1948 and deported to Germany. Dasch spent the remaining years of his life trying to return to the U.S. One time, a visa application was sent to J. Edgar Hoover by the State Department on Dasch's behalf. Hoover stated that the idea of giving Dasch a visa was "outrageous" and promptly denied it. Dasch died - still in Germany - in 1992.

Justice was speedy in those days! By the way, I always point out in any reference to J. Edgar Hoover in World War II that he opposed the internment of about 112,000 Japanese-Americans ordered by FDR through Executive Order 9066, issued Feb. 19, 1942. It was a rare alliance of Hoover and civil libertarians, as well as First Lady Eleanor Roosevelt, who publicly opposed the internment, which I consider to be a racist decision.

Shawcross draws heavily upon the Nuremberg War Crimes Tribunal, which has drawn criticism from revisionist historians who label it "Justice of the Victors". Books about Nuremberg could fill dozens of shelves, but Shawcross provides the essentials in his book. The presiding judge at Nuremberg was U.S. Supreme Court Associate Justice Robert Jackson who, in 1942, wrote a concurring opinion on Ex Parte Quirin upholding the President's right to convene military tribunals, which Shawcross says influenced President George W. Bush's views on the subject.

Unlike so many British and European journalists, Shawcross is essentially pro-American. On page 150 he discusses the vitriolic anti-American and pro-Islamic statement from a group called the Center for Constitutional Rights (CCR) in response to a federal court verdict in the New York City trial of Tanzanian national Ahmed Khalifan Ghailani, the first Guantanamo prisoner brought to the U.S. to be tried in a federal court. The trial of Ghailani is often considered to be a precedent for the trial of KSM, although the Obama administration still hasn't decided what kind of a trial KSM will get.

Ghaliani was accused of having been part of the Al Qaeda's deadly bombings of the U.S. Embassies in Dar es Salaam, Tanzania and Nairobi, Kenya in 1998. Convicted and sentenced to life imprisonment, Ghaliani's trial was blasted by the far left CCR: "CCR questions the ability of anyone who is Muslim to receive a truly fair trial in any American judicial forum post 9/11....If anyone is unsatisfied acquittal on 284 counts, they should blame the C.I.A. agents who tortured him."

Shawcross calls the CCR statement "worse than nonsense -- it was a deliberate anti-American smear from a powerful left-wing organization..." The CCR is not the only organization practicing what he calls "lawfare" which Shawcross defines (Page 103) as "the use (and sometimes misuse) of law as an asymmetrical weapon of war"; the American-based Human Rights Watch (HRW), founded in 1988 by PublicAffairs co-founder Robert L. Bernstein, who has disavowed many of its recent views, also comes in for criticism.

In an article in the New York Times in October 2009, Bernstein stated that the HRC had abandoned fairness in the Middle East "and was seeking to turn Israel into a pariah state." Shawcross notes (Page 198) that between 2000 and 2010 the HRW published more reports "on abuses of human rights in Israel than in Iran, Libya, Saudi Arabia, Syria and Algeria." The HRW blasted the capture and killing of Osama Bin Laden last year, along with reliable anti-Israel and anti-American academic Noam Chomsky who denounced Bin Laden's killing as "the political assassination" of an "unarmed victim." Shawcross notes that Bin Laden considered Chomsky and Jimmy Carter two Americans that Bin Laden liked "to quote with approval".

Shawcross also discusses (in Chapter 6, beginning on Page 125) the case of the accused Fort Hood, Texas shooter, Maj. Nidal Malik Hasan, who on Nov. 5, 2009 killed 13 and wounded 30 at the gigantic army base in central Texas. Rather than exhibiting "Islamophobia" -- whatever that is -- the U.S. Army repeatedly ignored warning signs that Dr. Hasan, an army psychiatrist, had gone over to the dark side of radical islam. Fort Hood Chief Circuit Judge Colonel Gregory Gross has set a trial date of March 5, 2012, for Hasan's court martial, where he faces the death penalty if unanimously convicted by a 12-member jury of U.S. military officers.

Addressing the red herring subject of "Islamophobia" Shawcross points out (on Page 172) that "according to the FBI hate crimes statistics, from 1996-2009 not one Muslim was killed in an anti-Islamic or Islamophobic in the United States. By contrast, in recent years Christians have come under increasingly brutal assault from Islamist extremists in many Muslim countries, including Iraq and Egypt."

Shawcross has written an outstanding book that should be read by anyone concerned about the lack of concern by the mainstream media and the current administration on radical islamists and their fellow travelers in this country. Shawcross has pretty much dismissed Great Britain and Europe holding any discussion on that danger, since it's considered very politically incorrect to address Islamist issues.