Justice and the Enemy

by William Shawcross

  This was an absurd situation that had come about because the Obama administration had put Guantanamo “off the table” for new detainees—while Congress had legislated to prevent any present detainee in the camp to be brought to the U.S. for federal trial.13 Each position is too firmly fixed in stone. What is needed now is flexibility. As the new chief prosecutor, General Martins, said, “military commissions and federal courts are both lawful and appropriate forums for trying crimes committed during this long conflict.”14

  The trial of Khalid Sheikh Mohammed will address not just a group of thugs but the enduring human phenomenon of evil. Mutable and persistent, evil has not been discouraged by the progress of reason or the taming of nature. No two eras are the same, nor are the threats they face identical. Evil reinvents itself in every age, and is reinvigorated by mankind’s inevitable immaturity. Like the fascist ideology that the democratic world fought in the 1940s, the dogma of Al Qaeda and of the Shiite extremist dictators of Iran is despotic, ruthless, anti-Semitic, anti-Christian, and totalitarian.

  Since the 1990s, Islamists inspired by bin Laden have been responsible for the murder of thousands and thousands of people all over the world. We are reminded of their war against the world almost daily—from the mass murders on 9/11 itself, through the hideously repetitive suicide bombings which can be plotted almost anywhere, to the recent beheading of United Nations workers in Masar-i-Sharif in Afghanistan as revenge for the public burning of a Koran in Florida. In June 2011 the Pakistani Taliban kidnapped an eight-year old girl, strapped a bomb under her clothes, and tried to get her to carry out a suicide attack. She had the presence of mind to call for help from the soldiers she was supposed to kill along with herself.15

  Such odious violence should be intolerable. But it has become part of the background noise we believe we have to endure, as we do the imminent danger of Islamist attacks on public places and on the airplanes on which we travel every day. Enemies like this cannot be appeased any more than Hitler could be appeased. They must be fought and defeated. This will never be easy. It is worth recalling Reinhold Niebuhr’s warning that “we take and must continue to take, morally hazardous actions to preserve our civilization.”16

  President Bush’s global War on Terror—criticized but continued in large part by President Obama—had essential successes. It destroyed the core of Al Qaeda, and bin Laden himself, and no doubt helped prevent another massive attack on the United States. But the war has not ended. In June 2011, the U.S. government confirmed that Al Qaeda remained “the preeminent security threat to the United States.” On September 30, 2011, the Obama administration had a resounding success in diminishing that immediate threat. A CIA-controlled drone above Yemen fired a Hellfire missile that killed Anwar al-Awlaki—Al Qaeda’s most effective propagandist, whose direct involvement in plots against the United States had led the U.S. government to target him even though he was a U.S. citizen. Killed in the same strike was another American jihadist, Samir Khan, editor of the internet magazine Inspire, which encouraged English-speaking Muslims around the world to take up “lone wolf” jihad. As we have seen, each of them had skillfully exploited the internet and played vicious roles in inciting terror against “infidels” throughout the world.ah

  President Obama said that the successful attack was “further proof Al Qaeda and its affiliates will find no safe haven in Yemen or anywhere around the world.” He was correct—following only months after the death of bin Laden himself, such attacks demonstrated the success of his intense, high-tech, small-footprint war.

  The administration argued, persuasively, that it possessed all the necessary legal authority to act as it did. Al-Awlaki was playing an operational role as part of the enemy forces covered by the September 2001 AUMF legislation; he had long been on notice that he was regarded as such; he had made no attempt to surrender; he was hiding in a country where neither that government nor the U.S. was able to arrest him. As for the idea that al-Awlaki’s citizenship should give him protection from U.S. government attack, it is worth recalling that in the 1942 case of Ex Parte Quirin (described in Chapter 3), two of the Nazi saboteurs were U.S. citizens. The Supreme Court ruled then that “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of belligerency.”

  Obama was praised by his critics. The Wall Street Journal called his expansion of the drone campaign “his most significant national security accomplishment. . . . The administration deserves congratulations and thanks.”17 Former vice president Cheney, in an interview with CNN, called the killing “a good strike.” He approved of the fact that the Obama administration was “tough and aggressive in defending the nation and using some of the same techniques that the Bush administration did.”

  Fierce criticisms of Obama’s action came from the left and from human rights organizations. In New York, the Center for Constitutional Rights (CCR), which had attempted to use the federal courts to protect al-Awlaki, called it an “assassination” and said it was “the latest of many affronts to domestic and international law.” Michael Ratner, the president of CCR, called the killing “extra-judicial murder.”

  By contrast, Professor Robert Chesney said he believed that the government had the right to target al-Awlaki because they deemed him to be a threat to the United States and lacked the ability to arrest him. But the killing did raise important legal and moral issues. Chesney pointed out that al-Awlaki was an easy case. “What about the next case, in which it’s someone we’ve never heard of and all the government’s information is classified? . . . What if they’ve got the wrong guy?”

  In a related vein, John Bellinger III, former legal adviser to the State Department and the National Security Council from 2001–2009, argued that the U.S. must beware losing the support of its allies, none of whom had endorsed the U.S. policy or legal rationale governing the use of drones. Bellinger argued that one of the first Bush administration’s biggest mistakes “was adopting novel counterterrorism policies without attempting to explain and secure international support for them.” Unless the Obama administration could persuade its allies that its drone policy was responsible, legal, and supportable, it would risk “having its largely successful drone program become as internationally maligned as Guantanamo.” This is indeed a danger, and it is another crucial area in which Obama needs to show real leadership.18

  I have stressed throughout this book that arguments over the proper application of law and the administration of justice are not only inevitable but also healthy in such fraught times as have followed 9/11. John Brennan, the president’s chief counterterrorism adviser, said in the summer of 2011 that, “We seek nothing less than the utter destruction of this evil that calls itself Al Qaeda.”19 That is a proper ambition, indeed, the only proper ambition—but to achieve it demands not just courage and skill in the use of American firepower but also self-confidence, courage, and unity in the democratic world. In the twentieth century all totalitarian threats were, in the end, defeated by American leadership of the Western alliance. But in summer 2011 there seemed, for the first time since 1945, a danger that the United States and Europe could lose the will and ability to sustain their united defense of freedom. This was partly because 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 difference was particularly marked between Presidents Reagan and Obama. Reagan’s assertions of American exceptionalism, and the power of America to pursue the spread of freedom around the globe, were inspirational to those oppressed by totalitarian regimes—they helped lead directly to the fall of the Berlin Wall. By contrast, Obama refused to offer support for the Iranian protesters gunned down by their clerical masters in 2009. Two years later he seemed uncertain how to respond to the admittedly complicated series of upheavals that were loosely called the Arab Spring. Such apparent ambivalence did not help the U.S. in the Arab world. Indeed, a Zogby poll in July 2011 showed that in many Arab countries, the U.S. under
Obama was now even more unpopular than in the last year of the Bush administration.20ai

  In the summer of 2011, this apparent weakening of traditional American leadership, combined with financial emergencies in both Europe and the United States, was leading to strategic defense cuts and reconsideration of Western commitments.

  This was dangerous—democracies must be self-confident and strong enough to defend themselves against the forces of tyranny. Many Europeans refuse to acknowledge that without American support, Europe risks repeating the fatal weaknesses of the 1920s and 1930s. If American power is withdrawn, the world will finally realize how much they owe to the most benign hegemony ever created. The French philosopher Pascal Bruckner put it well: “The perpetual peace to which Europe aspires has its source not in Europe but in the United States.... If America were to collapse tomorrow, Europe would fall like a house of cards; it would return to the tergiversation it showed in Munich in 1938 and be reduced to a deluxe sanatorium ready to allow itself to be torn apart, piece by piece, by all sorts of predators.”21

  Despite George Orwell’s misgivings, at Nuremberg our civilization designed a vehicle to anathemize men imbued with evil. Nuremberg is a precedent on which the United States can build with pride.

  As I have noted, the long series of criminal assaults by Al Qaeda and its associates on the world have had their most appalling sustained impact on the Muslim peoples. Many millions of Muslims, from Afghanistan to Nigeria, have suffered the consequences of bin Laden’s war. But it is clear from the optimism demonstrated across the Arab world in 2011 that Muslims, like anyone else, seek freedom from despotism—not the sectarian totalitarianism that Al Qaeda imposes.

  Evil struck America on September 11, 2011, with vast consequences that are still being played out. The United States held firm in the face of that brutal, reprehensible attack, but it has made mistakes. That is no surprise—as Churchill famously said, “War is a catalogue of blunders. . . .” America’s errors in the war that was thrust upon it have been broadcast in endless, unforgiving loops around and around the world.

  In his 1973 essay “The Problem of Dirty Hands,” which I quoted above, Michael Walzer cites Max Weber’s analysis of the fate of the politician who decides he has to authorize torture to save lives. “His choices are hard and painful and he pays a price not only while making them but forever after.” A high price is paid by countries, too. Guantanamo and “enhanced interrogation” almost certainly did help the U.S. government save lives in the early post–9/11 crisis.aj But each proved immensely costly to the reputation of the United States, as well as to President Bush. More recently, President Obama’s inability to close Guantanamo and his increasing reliance on killing by drones was likely to further alienate opinion in many parts of the world.

  President Bush and President Obama were both honorable leaders; they had different perceptions of the world but, confronted with the nihilism of Al Qaeda, each faced similar, painful, and overwhelmingly sad choices between lesser evils. Sympathy for both presidents is more appropriate than condemnation.

  This continuing crisis is not of America’s making. It stems, to a substantial extent, from the struggle within the Muslim world for the soul of Islam. As this book went to press, the liberalizing potential of the “Arab Spring” was far from realized—indeed the region was racked with instability and violence. At the same time, Al Qaeda and its Salafist Jihadist associates continued their pitiless campaign of mass murder across the world.

  Whatever America’s mistakes since 9/11, its strength is that it is a nation of laws founded on individual liberty. It is the world’s strongest and most vital democracy and its errors are being constantly corrected. In the question of justice for the enemy, the subject of this book, there is every reason to believe that the nation and its courts—military and civilian—will continue to interpret the law in an exemplary fashion, and with the defendants enjoying far more rights than their predecessors did at Nuremberg.

  I have written this before, but in an age where anti-Americanism is so easy, so fashionable, and so widespread, it needs repeating: America’s commitment and sacrifices have, since the beginning of the twentieth century, been essential to the world’s ability to resist nihilism. That is still true today. America needs the consistent support of its allies. Only America has the power and the optimism to defend the world against what really are the forces of darkness.

  ACKNOWLEDGMENTS

  Many people have helped me on this book, in many different ways. They include:

  Marc Abramowitz, Mort Abramowitz, Kenneth Anderson, Anne Applebaum, Gerard Baker, John Barrett, John Bellinger, Peter Berkowitz, Paul Berman, Nigel Biggar, Michael Burleigh, Christopher Caldwell, Carole Corcoran, Devon Cross, Michael Doran, Charles Duelfer, Eric Edelman, Charles Elliot, Jordana Friedman, Victor David Hanson, Roger Hertog, Christopher Hitchens, Thomas Joscelyn, John Lloyd, Andrew McCarthy, Alexander Meleagrou-Hitchens, Alan Mendoza, Larry Morris, Philip Mudd, Michael Mukasey, Douglas Murray, Melanie Phillips, Seamus M. Quinn, Carlos Rivera, Robin Simcox, Tim Spicer, Anthony Smith, Bret Stephens, Amir Taheri, Strobe Talbott, George Weidenfeld, Benjamin Wittes, Juan Zarate. I thank them all very much indeed. And I commend www.lawfareblog.com, created by Benjamin Wittes, as an invaluable resource for any study of law and war today.

  I have relied heavily, at times, upon the works of several prominent scholars whose expertise far outweighs my own. Notable among those are Gary Bass, author of Stay the Hand of Vengeance; Michael Burleigh, author of Blood and Rage; and Terry McDermott, author of Perfect Soldiers. I can only hope I have faithfully represented their views and have given proper credit where due.

  I was greatly helped in London by the excellent research work of Julia Pettengill, and towards the end, Stephanie Leutert did invaluable research under great pressure in the United States. Lynn Nesbit was, as always, my kind agent. At PublicAffairs, it has been a pleasure to work again with Peter Osnos, old friend and quondam colleague from Saigon; Clive Priddle was once again a gifted and supportive editor; Melissa Raymond and Susan Weinberg were much more tolerant of my delays than I deserved and Marco Pavia was a skilled and adaptive copy editor.

  My family, and in particular my wife Olga, had a lot to tolerate in the course of my writing this book.

  My grateful thanks to everyone. Any mistakes are of course my own.

  WILLIAM SHAWCROSS

  London, July 2011

  NOTES

  INTRODUCTION

  1 Der Spiegel online, “The Long Road to Eichmann’s Arrest: A Nazi War Criminal’s Life in Argentina, April 1, 2011,” quoted by Norman Geras, April 3, 2011, normblog.com.

  2 D. J. R. Bruckner, “Talk with George Steiner,” New York Times, May 2, 1982, www.nytimes.com/1982/05/02/books/talk-with-george-steiner.html.

  3 Ibid.

  CHAPTER 1—PRECEDENTS

  1 The official transcript of the daily proceedings in court. Trial of the Major War Criminals before the International Military Tribunal: November 14, 1945–October 1, 1946, 22 Volumes (Nuremberg: International Military Tribunal, 1947).

  2 White House News Release, “Roosevelt’s Statement on Punishment of War Crimes,” August 21, 1942.

  3 Cordell Hull, The Memoirs of Cordell Hull, Vol. II (Whitefish, Montana: Kessinger Publishing, 2010), 1289–1290.

  4 Winston Churchill, Closing the Ring (New York: Houghton Mifflin Company, 1951), 330.

  5 Morgenthau Diary, Vol. 1 (September 4, 1944), 448; quoted in Gary Bass, Stay the Hand of Vengeance (Princeton: Princeton University Press, 2000), 152.

  6 Ibid., 490; ibid., 153.

  7 Ibid.

  8 Bass, Stay the Hand, 154.

  9 Ibid., 170–172.

  10 Anne Tusa and John Tusa, The Nuremberg Trial (London: BBC Books, 1995), 63.

  11 Hartley Shawcross, Life Sentence (London: Constable, 1995), 90–92.

  12 Ibid.

  13 “Aid Memoir from the International Conference on Military Trials,” Yale Law School: Lillian Goldman Law
Library, April 23, 1945, http:avalon.law.yale.edu/imt/jack02.asp.

  14 Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956), 716; quoted in Bass, Stay the Hand, 25.

  15 Tusa and Tusa, Nuremberg Trial, 69.

  16 Justice Robert Jackson (speech to the American Society of International Law, Washington, D.C., April 13, 1945); quoted by Andrew C. McCarthy, National Review online, February 4, 2010.

  17 Shawcross, Life Sentence, 94.

  18 Ibid., 93.

  19 Ibid., 94–95.

  20 “Minutes from the International Conference on Military Trials,” Yale Law School: Lillian Goldman Law Library, June 29, 1945, http:avalon.law.yale.edu/imt/jack17.asp.

  21 Tusa and Tusa, Nuremberg Trial, 72.

  22 Ibid., 77–78.

  23 Francis Biddle, In Brief Authority (Garden City, NY: Greenwood Press, 1976), 385.

  24 Tusa and Tusa, Nuremberg Trial, 89.

  25 Trial of the Major War Criminals before the International Military Tribunal: November 14, 1945–October 1, 1946, Vol. 2, 100.

  26 Ibid.

  27 Ibid.

  28 Ibid.

  29 Robert E. Conot, Justice at Nuremberg (New York: Harper and Row Publishers, 1984), 337.

  30 The Rt. Hon. Lord Shawcross, “Robert A. Jackson’s Contributions During The Nuremberg Trial” (lecture to the American Bar Association), (New York: Columbia University Press, 1969).

  31 Shawcross, Life Sentence.

  32 See http:www.crimesofwar.org/a-z-guide/persecutions-on-political-racial-or-religious-grounds.

  33 Hannah Arendt, Eichmann in Jerusalem (New York: Penguin Books, 1994), 221.

  34 Bass, Stay the Hand, 205.

  CHAPTER 2—CRIMES

  1 Justice Jackson’s closing address, Trial of the Major War Criminals before the International Military Tribunal: November 14, 1945–October 1, 1946, Vol. 19 (Nuremberg, 1947), 400, www.loc.gov/rr/frd/Military_Law/NT_major-war-criminals.html.