Thursday, January 12, 2012

Gitmo and Nuremberg

Talk of the Nation  [ Excerpts]

In Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed, William Shawcross

"Nonetheless, there were restrictions on ... those defendants' rights. And in all the debate about Guantanamo and military justice in the United States today, I think it's worth making the point that any Nazi in the dark at Nuremberg who was suddenly transported by time machine to Guantanamo would be astonished at the privileges and the access to human rights lawyers and the amazing efforts that were made on his behalf by ... the defense lawyers in Guantanamo. None of that existed in Nuremberg.
"It was a fair trial, but the defense lawyers were all Nazi lawyers who were seconded by the occupying authorities, the British and the Americans and the Russians and the French. But the law has gone a long ways since then. And the Guantanamo defendants, Khalid Sheikh Mohammed and the others, will have much, much more chance of their day in court than the Nazis did."
 In the case of these trials in Guantanamo, I think the important thing to stress, again, is that anyone convicted in Guantanamo in a military tribunal, where, you're absolutely right, the defense lawyers and the judges are military men, anyone convicted there will still have the right of appeal through the federal criminal civil process. So I think that is a great safeguard.
Also, I think one should point out that in all the military trials that have taken place so far since 9/11, the defense lawyers assigned to the terrorists on trial, or the alleged terrorists on trial, have all been extremely diligent on behalf of their clients. They have not been craven. They have not been saying, I won't get promoted if I do my job properly.
On the contrary, the Supreme Court judgments that were reached against the government in the middle part of the last decade after 9/11, were all forced - taken all the way to the court, if you like, by military defense lawyers.

"The important thing about the military courts now is that anyone convicted in a military court in Guantanamo will have the right of appeal right up to the Supreme Court. So he has basically the same rights of appeal as anyone convicted in a federal court. So that, I think, is a vastly important safeguard. In Nuremberg, there were no rights of appeal whatsoever. The judgment of the tribunal was final.
"One should point out that in Nuremberg, of the 22 people who were on trial, I think it was 14 were sentenced to death, six or seven were given long imprisonments, and two or three were released. So justice, I think, was done fairly in Nuremberg, and I'm sure it'll be done here the same.
And in all the debate about Guantanamo and military justice in the United States today, I think it's worth making the point that any Nazi in the dark at Nuremberg who was suddenly transported by time machine to Guantanamo would be astonished at the privileges and the access to human rights lawyers and the amazing efforts that were made on his behalf by the military defendants – the defense lawyers in Guantanamo. None of that existed in Nuremberg.
And the chief American prosecutor - Robert Jackson's successor, if you like - is a remarkable American officer, General Mark Martins, who until recently has been administering the law of - the rule of law campaign in Afghanistan, trying to bring law through Afghan judges and prosecutors and defenders to Afghanistan – to villages in Afghanistan throughout the area controlled by the United States.
And he's a very fine man. And he's now been appointed chief prosecutor, as I say, direct successor to Justice Robert Jackson. It's a remarkable position to be in.
And I heard, actually, a lecture he gave in New York last week - last night - in which he spoke very eloquently to the New York Bar Association about the way in which justice will be done and be seen to be done in Guantanamo. And I think that he's a very fine prosecutor and that one can have confidence that in his hands the prosecutions will be carried out both robustly and judiciously and fairly.

"Justice delayed is often said to be justice denied. And it has been a very long time, too long a time ... And part of it is because of the way in which the first military courts set up by the Bush administration were overturned by the Supreme Court in the famous case of Hamdan v. Rumsfeld ...
"And then when Obama came into office, he originally said we will have no military commissions, no military trials whatsoever. And ... throughout his time as senator and ... campaigning for the presidency, he had condemned much of the Bush administration's policies during the war on terror, including the use of military tribunals.
"Now, however, [Obama] has come to the same position as President Bush on most of these issues and [has been] forced to accept the reality of military commissions in some cases — not in all. Most of the terrorist cases will probably still be carried out in federal courts, but there will be some cases, like Khalid Sheikh Mohammed, which the administration has decided — rightly, I think — should be conducted in military commissions."
SHAWCROSS: Well, that's not quite correct. What happened, there was a trial of a man called Ghailani who was implicated in the terrible bombings - the al-Qaida bombings of U.S. embassies in east Africa in 1998. And his trial took place last year in Manhattan. And he had been harshly interrogated.
And the judge - Judge Kaplan - in the case, said all the fruits of the poisonous tree - by which he meant the information that had come out as a result of his harsh interrogation - will not allowed in this case. And it was not allowed.
And nonetheless, he was, even in a federal court, convicted. In the case of - he wasn't convicted of mass murder, as he should've been, I believe, but he was convicted of destroying government buildings, which wasn't very satisfactory, has to be said, to the families of the victims.
Nonetheless, it was a conviction and the judge gave him the maximum sentence, quite rightly, as a result of it. in the case of Khalid Sheikh Mohammed, General Martins has made clear that he was, as we all know, he was subjected to enhanced interrogation...

SHAWCROSS: I think that the civilian courts have shown themselves to be able to deal with most of these cases now. And it has been difficult. There's - one of the cases that I quoted just now, Gailani, it was nearly lost. That government's case was nearly lost because one recalcitrant juror held out. He was called, you know, the famous phrase from movies and everything else, of a rogue juror. And one juror on that - in that jury wanted to find him, Gailani, not guilty on every charge.
And in the end, the compromise was that he was not - he was found not guilty of murdering several hundred people - mostly Africans it has to be said, not American citizens - who were killed in the bomb blasts in Kenya and Tanzania, but found guilty only of blowing up government - damaging government buildings, which is a bit of an absurd situation. And I think in the military court, he probably - though one doesn't know this - had been found guilty of the real crime that he was involved in, which was mass murder.

COLIN: Good morning. My concern with the commissions, no matter who the judges are, is that they are still judges, particularly military judges, who are career officers, whose incentives probably are not going to be inclined towards a finding of innocence or not guilty.
This is a problem with legitimacy that seems to be the same problem that the British government had with prosecuting IRA terrorists in the 1980s, that the suspects did not have the right to a jury trial. Are we really going to have a perception of legitimacy to the whole proceedings if detainees do not have the same right to a jury trial that U.S. citizens enjoy?
CONAN: In Northern Ireland, Williams Shawcross, the concern was that juries would be intimidated by the Irish Republican Army, among others, and thus the special courts that were set up there. But they did, indeed, come in for considerable criticism.

SHAWCROSS:  You're absolutely right to bring it up, because these eight Nazi saboteurs, all of whom who'd lived in the United States in the 1930s and then gone back to Germany. And two of them were American citizens. They were landed by submarine on the coast of Long Island and Florida in 1942, and they were rounded up pretty quickly. Two of them actually surrendered and gave information on the others. But Roosevelt was absolutely furious and demanded a military commission and basically demanded execution.
He said to his attorney general, Francis Biddle, he said I want one thing clearly understood, Francis. I won't give them up. I won't hand them over to any U.S. marshal aimed with a writ of habeas corpus. Understand?

SHAWCROSS: Well, that's a difficult question. I'm not a great admirer of Noam Chomsky. I think his anti-Americanism is frankly grotesque. I have a very different view. I think the United States, despite as you say the support that we give you and we, the British, and all of Western Europe and all of the whole democratic world give to regimes like the Saudi regime because we are dependent upon oil, I, nonetheless, I think the United States has done immense good in the world in the last century.
Indeed, in 1945, you could say that the U.S. Army was the greatest human rights organization that the world had ever seen. It did release millions of people from tyranny and slavery. And I think that the U.S. Army continues to do that, and millions of people all over the world since 1945 have been freed by the U.S. Army and the blood and treasure spilt by Americans. And I think it's a tribute, which is not adequately and often enough pay to the United States.
It's very fashionable in the rest of the world to criticize America for its mistakes, which, of course, have been made and there were mistakes made following 9/11. But - there's no question about that. But there is no greater guarantee of peace and progress in the world than the United States, in my view.

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