At the close of World War II, the Allies faced a grim challenge: how to deal with senior Nazi officers who perpetrated mass killings during the war. British Prime Minister Winston Churchill preferred summary justice, while the United States proposed a military commission — the option that carried the day.
British journalist William Shawcross has a unique perspective on the Nuremberg trials. His father, Hartley Shawcross, served as the United Kingdom's chief prosecutor.
In Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed, William Shawcross says the Nuremberg trials of Nazi leaders after World War II created a template for the trial of future war crimes — including how to treat those who orchestrate terrorist attacks.
In his book, Shawcross considers the case of Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11 attacks who will be tried in a military commission this year. And while Shawcross admits that military tribunals have weaknesses, he says there is no better mechanism for bringing Mohammed to justice.
On the similarities between the Nuremberg trials and the Khalid Sheikh Mohammed case
"There are a lot of similarities. But the main thing ... is that although Nuremberg was, I think, a success, it was sometimes denounced as victors' 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 ... 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."
On the principle of 'innocent until proven guilty'
"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."
On the decision to take a case to a military rather than federal court
"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 ... who will go to a military commission and who will go to a federal court? 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 ... they would go to a 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 ... almost encourages terrorists to attack civilians rather than military installations."
On the long delay between Mohammed's capture and the planned trial
"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."