Allan Gerson: Lessons From Nuremberg
[Allan Gerson, a former deputy-assistant attorney general and counselor for international affairs in the Reagan administration, is involved in the representation of 9/11 families in their lawsuit against various Saudi financial institutions.]
The Obama administration’s remarkable decision to hold the trial of Khalid Shaikh Mohammed and other masterminds of 9/11 in a civil court in New York, rather than use the conventional military tribunal structure, rests on one fundamental pillar: It is the moral thing to do. It will demonstrate to friends and foes alike that unlike the Bush administration, the Obama White House is truly committed to the rule of law.
Across the globe, or so the scenario goes, viewers will be riveted to TV screens as they witness American justice: the application of the full panoply of procedural rights of due process accorded to the ordinary criminal now applied, for the first time, to the evildoers of 9/11.
In fact, a trial in New York is likely to have exactly the opposite effect, demonstrating that the decision to bypass the military tribunal apparatus lacks any moral force. Moral force, as articulated in prevailing international law nearly since its inception, requires that we distinguish acts in times of war from those in times of peace. In times of war, the balance shifts. Individual civil liberties can be curtailed in order to fend off imminent harm. Military tribunals have traditionally been set up for this purpose, distinguishing the ordinary criminal who acts outside the law from the soldier who abides by a code of conduct at odds with our own core beliefs.
In moving the proceedings away from a military tribunal to a federal court we destroy this fundamental moral distinction between belligerents and nonbelligerents. The families of the victims of 9/11 rightfully believe that their loved-ones died as a result of wartime acts. They rightfully believe that radical Islam had declared a global jihad against the United States. They rightfully believe that the key defendant, Khalid Shaikh Mohammed, was a key soldier in that war, and that he was no ordinary murderer, but a war criminal.
If, in fact, 9/11 was an act of war, then by definition a military tribunal is the appropriate venue for trying war criminals. This has never been the responsibility of civilian courts. Thus, whether the Bush administration’s call for a war on terrorism was indeed technically a war is of no relevance. What is relevant is that radical Islam declared war on the United States; that 9/11 was the deliberate expression of their wartime agenda; and that its perpetrators, under U.S. and international law, were nothing less than war criminals.
Reasons cited by Attorney General Eric Holder and other proponents of a shift from military tribunals fail scrutiny. The contention — implied or implicit — that military tribunals are closed proceedings and that a civilian trial, by contrast, is open, is simply not true. The most open military tribunal of all time was the one convened at Nuremberg in 1946; it held 403 public sessions of the trial of major Nazi war criminals.
Moreover, there were no restrictions on access by the press, including cameras. As concerns present-day military tribunals, there is no prohibition in their governing laws on being fully open to the public...
Read entire article at NYT
The Obama administration’s remarkable decision to hold the trial of Khalid Shaikh Mohammed and other masterminds of 9/11 in a civil court in New York, rather than use the conventional military tribunal structure, rests on one fundamental pillar: It is the moral thing to do. It will demonstrate to friends and foes alike that unlike the Bush administration, the Obama White House is truly committed to the rule of law.
Across the globe, or so the scenario goes, viewers will be riveted to TV screens as they witness American justice: the application of the full panoply of procedural rights of due process accorded to the ordinary criminal now applied, for the first time, to the evildoers of 9/11.
In fact, a trial in New York is likely to have exactly the opposite effect, demonstrating that the decision to bypass the military tribunal apparatus lacks any moral force. Moral force, as articulated in prevailing international law nearly since its inception, requires that we distinguish acts in times of war from those in times of peace. In times of war, the balance shifts. Individual civil liberties can be curtailed in order to fend off imminent harm. Military tribunals have traditionally been set up for this purpose, distinguishing the ordinary criminal who acts outside the law from the soldier who abides by a code of conduct at odds with our own core beliefs.
In moving the proceedings away from a military tribunal to a federal court we destroy this fundamental moral distinction between belligerents and nonbelligerents. The families of the victims of 9/11 rightfully believe that their loved-ones died as a result of wartime acts. They rightfully believe that radical Islam had declared a global jihad against the United States. They rightfully believe that the key defendant, Khalid Shaikh Mohammed, was a key soldier in that war, and that he was no ordinary murderer, but a war criminal.
If, in fact, 9/11 was an act of war, then by definition a military tribunal is the appropriate venue for trying war criminals. This has never been the responsibility of civilian courts. Thus, whether the Bush administration’s call for a war on terrorism was indeed technically a war is of no relevance. What is relevant is that radical Islam declared war on the United States; that 9/11 was the deliberate expression of their wartime agenda; and that its perpetrators, under U.S. and international law, were nothing less than war criminals.
Reasons cited by Attorney General Eric Holder and other proponents of a shift from military tribunals fail scrutiny. The contention — implied or implicit — that military tribunals are closed proceedings and that a civilian trial, by contrast, is open, is simply not true. The most open military tribunal of all time was the one convened at Nuremberg in 1946; it held 403 public sessions of the trial of major Nazi war criminals.
Moreover, there were no restrictions on access by the press, including cameras. As concerns present-day military tribunals, there is no prohibition in their governing laws on being fully open to the public...