NEAL CONAN, HOST:
This is TALK OF THE NATION. I'm Neal Conan in Washington.
Toward the end of the Second World War, the Allies faced questions about what to do with senior Nazis. The United States proposed a military commission. Soviet leader Joseph Stalin agreed that the grand criminals ought to face trial before they were shot. British Prime Minister Winston Churchill preferred summary justice, but he lost office as the war ended. The new Labour government appointed Sir Hartley Shawcross as chief British prosecutor. He delivered his opening statement at Nuremberg on November 20, 1945.
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SIR HARTLEY SHAWCROSS: And so we believe that this tribunal, acting with complete and judicial objectivity, will provide a contemporary touchstone, an authoritative and impartial record to which future historians may turn for truth and future politicians for warning.
CONAN: A new book, "Justice and the Enemy," looks to Nuremberg, to the Tokyo trials, and to more recent precedents as we approach the start of the trial of alleged 9/11 mastermind Khalid Sheikh Mohammed.
What does the history of war crimes trials tell us about how to proceed against the mass murderers of al-Qaida? Our phone number: 800-989-8255. E-mail us: email@example.com. You can also join the conversation on our website. That's at NPR.org, click on TALK OF THE NATION.
Later in the program, Ethiopia joins the invasion of Somalia. But first, journalist and author William Shawcross joins us from our bureau in New York. The name is no coincidence. He's the son of the chief British prosecutor at Nuremberg. His new book is "Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed."
And thanks very much for coming in today.
WILLIAM SHAWCROSS: It's a great pleasure. Thank you.
CONAN: And are there more differences between these two cases or more similarities?
SHAWCROSS: Well, there are a lot of similarities. But the main thing, I think, to say is that although Nuremberg was, I think, a success, it was sometimes denounced as victor's justice. I think it was not that. It was a success and it dealt, as Roosevelt and Truman wanted to do, in a judicial and proper manner with the appalling criminals of the Nazi regime who survived the end of the war and were captured.
Nonetheless, there were restrictions on their defendants – 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 military defendants – 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.
CONAN: Yet you pointed out that one of the key elements of a trial is that should a defendant be found not guilty, he gets to go free.
SHAWCROSS: That's right. And Justice Jackson, who is one of the heroes of my book, if you like, who is the Supreme Court justice who was asked by Roosevelt and then after Roosevelt's death by Truman to become the chief American prosecutor, said: You must never put a man on trial unless you are prepared to see him walk free.
And rather oddly, both Attorney General Eric Holder and President Obama have said in the last three years, somewhat injudiciously, I feel, that Khalid Sheikh Mohammed will never walk free, that he will be found guilty.
And there's no doubt in my mind that Khalid Sheikh Mohammed is a vicious, murderous thug who should be found guilty. But that is for the courts to decide. And I have absolute confidence that the court in Guantanamo, as it is now constituted, will provide a very fair trial for him and his al-Qaida cohorts.
CONAN: Yet it's been made clear if he should, for whatever reason, be found not guilty, if evidence were not allowed into court for whatever reason, he would not be set free.
SHAWCROSS: That is a predicament for the U.S. government. And I think it was a mistake for senior U.S. government officials to say that whatever happened, he would not be set free. And it is indeed a predicament.
But I think the evidence is overwhelming that he will be found guilty. And so he, in my view - I'm not a lawyer, I'm a layman, but I've studied this case and others - I think he should be found guilty and I'm confident that under American law he will be.
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.
CONAN: You mentioned a hypothetical time machine that would whisk those Nazi defendants from Nuremberg to Guantanamo. One thing they would also be astonished by is the amount of time that has passed. That trial in Nuremberg started in the same year the war ended. It happens to be, just as a coincidence, 10 years to the day since the first prisoners arrived at Guantanamo.
SHAWCROSS: You're absolutely right. And justice delayed is often said to be justice denied. And it has been a very long time, too long a time. That is correct. 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 vs. Rumsfeld. And then the 2006 act was also brought into - reformed military commissions were brought and question by another Supreme Court judgment.
And then when Obama came into office he originally said we will have no military commissions, no military trials whatsoever. And he had - throughout his time as senator and as 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, he has come to the same position as President Bush on most of these issues and 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.
CONAN: How do they make that decision, who goes to federal court and all the rights guaranteed there, and who goes to a military court with slightly fewer rights?
SHAWCROSS: Well, very slightly fewer, actually. And 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.
But the question you raise is a very interesting one - who will go to a military commission and who will go to a federal court. And Attorney General Holder made a rather bizarre, I thought, suggestion two years ago that anyone who had attacked, for example, the U.S. military abroad, like - as in the case of the USS Cole, the naval vessel which was blown up in Aden Harbor by an al-Qaida bomb and 19 U.S. sailors were killed - they would go the military court.
But if terrorists attacked within the United States, killing civilians, they would go to a civilian court, a federal court, which seemed to me to be slightly bizarre. It, sort of almost, encourages terrorists to attack civilians rather than military installations.
CONAN: We're talking with William Shawcross, author most recently of "Justice and the Enemy: Nuremberg, 9/11 and the Trial of Khalid Sheikh Mohammed." What do the precedents of earlier war crimes trials tell us about how we should proceed against the murderers of al-Qaida, 800-989-8255, email is Talk@npr.org.
Simeon is on the line with us from Rochester, New York.
SIMEON: Oh, hello.
CONAN: You're on the air. Go ahead, please.
SIMEON: Hi. I was thinking that perhaps one of the most perhaps interesting paradigms for understanding what you're talking about is the decision of the Israeli government to bring Adolph Eichmann to trial in the early 1960s, who was the architect of the Final Solution, rather than allowing him to be executed.
And it seems that that was a tremendous moral victory. It helped educate the rest of the world in terms of the horrors of the Holocaust. And it really vindicated the rule of law. So perhaps that might be a useful precedent.
CONAN: Eichmann was eventually executed. But go ahead.
SHAWCROSS: He was executed, but I think you're absolutely right that the Eichmann trial was a very important one and it did establish even more of the documentary evidence against the Nazis.
One should note in that context that the Nuremberg trial itself had produced massive amounts of evidence. The Nazis had been extraordinarily, absurdly fanatical book bureaucrats, as well as everything else, and they kept extensive records of their crimes.
And Justice Jackson, when he arrived in Paris a few months after the VE Day in the summer of 1945, was astonished by the amount of material that the U.S. Army had already gathered in Paris to reveal the Nazi war crimes. And that material has been essential, ever since 1945, in helping historians form the history of the Nazi regime from the 1930s to 1945.
CONAN: "The Man in the Glass Booth," that's the Eichmann trial, where we first heard the phrase, from Hannah Arendt, about the banality of evil.
SHAWCROSS: That's correct. Yes. And, I mean, it was a famous book. There's another book actually, which I discovered while I was doing this research for mine. A rather remarkable little novella by a Jewish - German Jewish British philosopher called George Steiner, who wrote in the late 1960s.
Well, actually, no, I'm sorry. It was in 1981. he wrote a little book called, "The Portage to San Cristobel of A.H," meaning Adolf Hitler, which is a conceit in which Nazi - anti-Nazi Israeli hunters find Hitler deep in the South American jungle and bring him out. And they put him on trial in the jungle and Hitler makes an extraordinary speech in his own defense.
CONAN: Well, we will hear more on that point in just a minute. But in any case, Simeon, thanks very much for the call. We'll continue with William Shawcross and the analogies and Khalid Sheikh Mohammed and Nuremberg. Stay with us. This is NPR News.
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CONAN: This is TALK OF THE NATION from NPR News. I'm Neal Conan.
On a trip to Cambodia in 1980, William Shawcross visited what he calls the grim symbol of mass murder in the 20th century - a mass grave. For Shawcross, the sight recalled for him the voice of his father at Nuremberg, reading the diary of a German engineer that recounted in horrific detail the sight where Jewish victims were shot in a Ukrainian town. You can read more from that diary entry and an excerpt at our website. Go to NPR.org, click on TALK OF THE NATION.
Throughout his book "Justice and the Enemy," Shawcross considers precedents like Nuremberg and Cambodia to look for lessons to inform the trial of Khalid Sheikh Mohammed coming up in a few months time.
So tell us, what do you think the history of war crimes cases tells us about how to proceed against the mass murderers of al-Qaida. Our phone number: 800-989-8255, e-mail: Talk@npr.org. You can join the conversation at our website as well. That's at NPR.org, click on TALK OF THE NATION.
William Shawcross, author of "Justice and the Enemy," joins us from our bureau in New York.
Just before the break you were talking about that extraordinary speech Adolf Hitler gives in that fictional book. As it turned out, it was Hermann Goring, the former head of the Luftwaffe, who gave a performance on the stage at Nuremberg, which was just what Winston Churchill was concerned about. And indeed, what we have every reason to expect Khalid Sheikh Mohammed will try to do in Guantanamo.
SHAWCROSS: Yes. You're absolutely right. That has been one of the concerns about Khalid Sheikh Mohammed, that he would be like Goring who dominated the proceedings by the force of his personality at Nuremberg. And Khalid Sheikh Mohammed is said to be a, sort of, equally a master demagogue as well as a mastermind of terror. And it is felt that he will try to dominate the proceedings as well.
It's not clear yet, what his plea will be. Will he plead guilty or will he plead not guilty and refuse to defend himself and ask for immediate execution and martyrdom. There are all sorts of questions that General Mark Martins, the prosecutor, is going to have to deal with, many of which have not yet surfaced even.
And if he does decide to grandstand, he'll have to be controlled by the judges. If he decides to be mute in court and refuse to enter any plea and to defend himself, then I'm sure that the court will insist that his defense, nonetheless, be played out in full.
CONAN: Another difference between the military commission in Guantanamo and a civilian trial for Khalid Sheikh Mohammed, the passage of time, but also if the defense at a trial of anyone in a civilian court said he has been tortured by the prosecution, the case would be thrown out for prosecutorial misconduct.
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...
CONAN: Waterboarding, yeah.
SHAWCROSS: And he was one of the three al-Qaida people who was waterboarded...
CONAN: That we know of.
SHAWCROSS: ...during the Bush administration. We know that. And he produced a lot of information. He sort of told - he became a sort of instructor, apparently, to the CIA, as a result of this enhanced interrogation - which many senior officials have said led to the defanging of many al-Qaida plots and eventually helped to track down bin Laden.
Anyhow, General Martins has made absolutely clear that none of that information which came out as a result of his waterboarding will be allowed in court. And all the - the defense will have to rely upon information derived independently and nothing to do with that enhanced interrogation.
CONAN: Let's get another caller in. This is Jack. And Jack's on the line from Nashville.
JACK: Yeah, I would just say that I would not share your guest's certainty that justice and the rule of law will prevail. And I would point to what happened at the end of World War II when Japanese war criminals were not tried because of political reasons, in terms of wanting to utilize them in a future Japanese government.
CONAN: Which ones? There were trials in Tokyo.
JACK: Yeah. Well, in the particular case I'm referring to a movie was made out of it. It was called "Blood Oath" in Australia. And there was a Japanese colonel or general who commanded a POW camp. And he had beheaded a fairly large number of American and Allied POWs - mostly Australians, but some Americans also. And essentially he was given a pass at the end of the war because - and later became a part of the Japanese government.
CONAN: I'm not familiar with that case, I have to say, Jack. But, William Shawcross, there were many war crimes trials held, not just in Tokyo, but indeed in the Philippines as well.
SHAWCROSS: There were. And it's an odd thing, but the Japanese war crimes trials, the Tokyo tribunals, never had the same impact, either in Japan or in - they weren't so successful, I think, as Nuremberg.
And this is partly, perhaps, because in Germany, despite the horrors of Nazis - and there was a - Germany is, after all, one of the most civilized countries in the history of the world. And there was a sort of - there was an agreement to accept the judgment at Nuremberg, a sort of widespread public acceptance of it. And in Japan, that was not the case. And there's no question that the Japanese tribunals were less successful than the Nuremberg.
JACK: And my questioning, of course, relates to the behavior of our government in choosing to not prosecute some of the war criminals for political reasons, relative to their future designs for building a Japanese government.
SHAWCROSS: Well, I don't know the particular case that you're referring to. But I think that the important thing is that both in Japan and in Germany, the United States rule, or occupation, after the war created a - particularly in Germany, but also in Japan - created far better and more democratic societies than either country had ever known.
CONAN: Jack, thanks very much for the call.
JACK: Thank you.
CONAN: Let's see if we can go next to - this is Colin. Colin with us from San Francisco.
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: They did. They did. And I think that the British government, in effect, discontinued them. 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.
CONAN: Colin, thanks very much.
In addition to Nuremberg - and Cambodia, you also talk about - one of the interesting cases you refer to is the trials of eight German spies and saboteurs who were picked up in the United States. Incompetent people, who were found very quickly after they were landed by submarine on Long Island. And it was President Roosevelt who insisted that these be military commissions. And, in fact, military commissions where the trials were held completely in secret.
SHAWCROSS: Absolutely. It's an extraordinary contrast with what happens today. 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?
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SHAWCROSS: And Biddle understood. And they - there was appeal made on their behalf to the Supreme Court, but the Supreme Court judge, the special military commission set up to try them to be legal, and they were tried and found guilty very, very quickly. And of eight, six were executed, and the two who had surrendered and turned in the others were given long sentences.
CONAN: Let's go next to Rob. Rob with us from Menlo Park in California.
ROB: Hi. How are you doing?
CONAN: Good, thanks.
ROB: Thank you. In reference to Eric Holder's suggestion that attacks against civilians should be treated in civilian court, Mr. Shawcross said that he felt he was worried that that might encourage terrorists to attack civilian targets. And I was wondering if he wanted to comment as to whether he felt that that meant civilian courts were more lenient or incapable of dealing with cases against civilians.
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.
CONAN: Rob, thanks very much.
ROB: Thank you very much.
CONAN: We're talking with William Shawcross. His new book, "Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed." You're listening to TALK OF THE NATION, which is coming to you from NPR News. And let's go next to Donald. Donald with us from Boerne in Texas.
DONALD: Oh, good afternoon. Great show.
DONALD: I wonder if your author could possibly connect the dots and I'll just reference, I'll, I guess, channel an old cliche that justice is now written by the winners. And I'm referring - and I told your screener about a wonderful volume by John Maynard Keynes called "The Consequences of the Peace," about how the German terms of surrender in World War I literally led to Hitler's rise. By the same logic - and I'm playing devil's advocate here - Noam Chomsky has referenced this many times, the brutality of despotic regimes supported by us for oil and how you literally view justice in that context. Thanks. I'll take my answer off the air.
CONAN: Thanks very much, Donald.
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.
CONAN: William Shawcross, let me ask you a question that might seem a little bit off the point. You first came to attention with a wonderful book called "Sideshow," about the war in Cambodia conducted by the United States, including the so-called secret bombing, B-52 carpet bombing of...
SHAWCROSS: Areas of Cambodia.
CONAN: ...areas of Cambodia, but that helped lead to the rise of Khmer Rouge who then went on to commit terrible atrocities in Cambodia. Nevertheless, we had Henry Kissinger on this program talking about his most recent book a few months ago. A listener called him on that.
And he said, why is this different from what President Obama is doing now with drone attacks in Pakistan? And you might argue a difference of scale, a difference of greater accuracy in the case of the drones. But as a matter of principle, what's the difference?
SHAWCROSS: Well, I think that's a really important question. And if you - President Bush was hated throughout the world and attacked by Senator Obama and others on the left for not only enhanced interrogation but for - almost all of the policies in the war on terror. And since Obama came to power, he has - and the promise to close down Guantanamo, which he's not done, and promised to stop military trials, which he has not done, he has adopted almost all of Bush's policies, except he doesn't detain suspects and interrogate them harshly or properly. He kills them by drones.
And this is an extraordinary difference. And it's astonishing to me that until recently there has been so little protest about it. I'm quite sure that most of the people whom are targeted by drones are terrorists plotting appalling atrocities in the wilds of Pakistan and Afghanistan, and they can't be reached any other way.
I don't have a terribly - I don't believe that the use of drones is wrong per se, but I do believe that if President Bush had used drones to kill terrorists and terrorist suspects, and inevitably bystanders with the same enthusiasm that President Obama has shown, he would - it would not have been tolerable either to the American opinion-formers of The New York Times and other great papers or within Europe itself. And it seems to me the tolerance that has been extended to President Obama on this - over this policy is - which would certainly not have been extended to President Bush, is an extraordinary example of how personality and political largesse can define people's perceptions of morality.
CONAN: William Shawcross, author of "Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed." He joined us from our bureau in New York. Thanks very much for your time.
SHAWCROSS: My pleasure.
CONAN: After a short break, we'll get an update on the African Union effort against the militant group al-Shabab in Somalia. Ethiopia has re-invaded. Stay with us. It's the TALK OF THE NATION from NPR News.