War Crimes Trials: From Nuremberg To Guantanamo Bay

On Wednesday 12 December 2012, William Shawcross CVO delivered the Jim and Janette Bain Occasional Lecture for 2012. William Shawcross is an internationally acclaimed writer, author and commentator who was appointed Chair of the UK Charity Commission in July 2012. Shawcross has written widely on politics and history, and his work includes Dubcek (1970), Sideshow: Kissinger, Nixon and the Destruction of Cambodia (1979), The Shah’s Last Ride (1989) and Deliver Us From Evil: Warlords and Peacekeepers in a World of Endless Conflict (2001). Among his broadcasts are the three-part BBC television series Monarchy (1995) and Queen and Country (2012). William Shawcross is also known for his biographies of Rupert Murdoch and the Queen Mother, Queen Elizabeth. His most recent works in 2012 are Justice and The Enemy – Nuremberg, 9/11, and The Trial of Khalid Sheikh Mohammed  and  Counting One’s Blessings  which is an edited collection of the letters of the Queen Mother, Queen Elizabeth.

INTRODUCTION BY GERARD HENDERSON

Thanks for coming along tonight, in the middle of December, on the occasion of The Sydney Institute’s second Jim and Janette Bain Occasional Lecture.  It’s great to have William Shawcross back at the Institute at this significant event.  He has spoken at The Sydney Institute a number of times – and in 2004 delivered our Annual Lecture.

It’s a quarter of a century since Jim and Janette Bain provided a generous financial contribution which made possible the creation of The Sydney Institute.  It’s appropriate that all of us should recognise the Bains’ generosity and good judgment – and it’s great to see Jim and Janette here tonight.

Katharine Birbalsingh gave the inaugural lecture in this series last year.  I will briefly introduce our 2012 lecturer.  William Shawcross is a prolific journalist and writer whose work includes biographies of Alexander Dubcek, Rupert Murdoch and the Queen Mother – along with books on Indo-China, peacekeeping and foreign policy. Mr Shawcross, who was recently appointed chairman of the Charities Commission in Britain, has also presented programs for BBC Television.  His visit to Australia, as a guest of The Sydney Institute, coincides with the publication of his two most recent works –  Justice and the Enemy: Nuremberg, 9/11 and the trail of Khalid Sheikh Mohammed and Counting One’s Blessings: The Selected Letters of Queen Elizabeth.

 Tonight William Shawcross will talk to The Sydney Institute on the topic “War Crimes Trials: From Nuremberg to Guantanamo Bay”. William Shawcross – welcome back.

WAR CRIMES TRIALS: FROM NUREMBERG TO GUANTANAMO BAY

WILLIAM SHAWCROSS

First of all I would like to give my thanks to Jim and Janette Bain, who created The Sydney Institute, and in particular this lecture series from which I am the lucky beneficiary. And to Gerard and Anne Henderson, who have run the Institute so brilliantly and who have been such good friends to me since I first came to Australia in 1988 researching a book on Rupert Murdoch.

In fact I am happy to say that I can boast that I am the only person who has written books about Rupert Murdoch, al-Qaida and the Queen Mother. Most of my speech tonight is about the grim choices that al-Qaida and Islamism force upon us. But I should like to begin with a few quotations from Counting Our Blessings, my collection of the Queen Mother’s letters which has just been published here.

She loved Australia and came here many times. On her first visit in 1927 ,her husband, Bertie, opened the new Federal Parliament in Canberra. For those of you who saw the King’s Speech it was just before they came on this trip to Australia that the Duchess of York, as she then was, found Lionel Logue to help her husband, the Duke, overcome his terrible stammer. Lionel Logue, as the King’s Speech has shown, was a wonderful help to the Duke and the film was fairly accurate I think. Anyhow, the Duke came and his wife with him on that trip in 1927.

Elizabeth loved Australia ever after. She wrote to her mother-in-law, Queen Mary, in April 1927, halfway through her Australian trip and she wrote of their visit to Sydney:

Politics, mama are very bad in New South Wales. The premier is cordially loathed by all classes. He never appeared except when we landed and I expect he will very soon be thrown out. Most of the ministers are disgruntled Englishmen with a grievance and none of the better class of Australians will touch politics. It seems a great pity but perhaps a sense of responsibility will grow in time. We had the most delightful time in Queensland with wonderful weather. The People were so nice and friendly even though they are called “The Bolshie” state.

In 1958, the Queen Mother went back to Queensland, and elsewhere in Australia, and she wrote to Princess Margaret. This is just three years after Princess Margaret had broken off her unhappy relationship with Peter Townsend. The Queen Mother wrote:

I’ve been staying, Darling, on a sheep station called Coochin Coochin with three glorious maiden ladies called the Miss Bells. They were heaven. Rather over-excited and never drew breath and they had some very, very beautiful nephews all called Bill. The real country Australian is really a knockout. He is very tall with long legs encased in tight trousers, blue eyes, a drawl and a Stetson. They’re too charming for words and an American Cowboy is a mere nothing compared with them.

You can see why I enjoyed compiling her letters. She wrote like that all through her life, with a sense of joie de vivre and optimism which was just marvellous. On the day war was declared she wrote a four page note to herself, which I found in the Royal Archives,  (I’m changing the mood here, as you will see from jollity to war) saying that the day the war began, on 3 September 1939, she and the King had listened to Prime Minister Chamberlin’s broadcast. She wrote:

I could not help tears running down my face but we both realised that it was inevitable. If there was to be any freedom left in our world we must face down the cruel Nazi creed and rid ourselves of the continual nightmare of force. We prayed together, we prayed with all our hearts that peace would come soon. Real peace. Not a Nazi peace.

War, said Churchill, is “a catalogue of blunders”.  That is certainly true in the war against Islamist terrorism.

But while regretting and learning from our mistakes, we should remember the warning of Reinhold Niebuhr, that “we take and must continue to take, morally hazardous actions to preserve our civilisation”.

It is also important to recall that this war with fundamentalism was not started by the West, by democratic societies. It was begun by Islamist fundamentalists, Shia and Sunni. It took strength from the Iranian revolution of 1979 which brought Ayatollah Khomeini to power. This was a true revolution and in my mind a catastrophe for the world. It was a victory for political Islam, both Shiite and Sunni, and a rebuke for the West.

There is much in common in bin Laden’s vision of hatred and death and that expressed by Khomeini in 1984 who said: “…To allow the infidels to stay alive means to let them do more corrupting. [To kill them] is a surgical operation commanded by Allah the Creator…War is a blessing for the world and for every nation. It is Allah himself who commands men to wage war and to kill.”

The Iranian regime has exported terror ever since. To those who claim that the Western world is nonetheless to blame for all the ills of the Muslim world, there is a simple answer. No.

Over the last half century, the overwhelming majority of Muslims killed around the world have been murdered by other Muslims. In East Pakistan, now Bangladesh, in the Iran-Iraq war of the 1980s, in the Algerian civil war, in Darfur and other parts of Sudan, in Iraq after the overthrow of Saddam, in Pakistan, in Afghanistan and in Syria today, Muslims have killed Muslims. This cult of death has been described by the British philosopher Roger Scruton as “a last ditch attempt to rescue Islam form the cult of nothingness by showing it can still demand the ultimate proof of devotion.”

It is in this context that 9/11 occurred and it is in this context that I wrote this book, Justice and the Enemy, to try and examine the way in which the West can bring justice to those determined only to destroy it – some of whom, including the architect of 9/11 Khalid Sheik Mohammed, are in Guantanamo today.  One must always remember that all wars involve choices between lesser evils.

Since 9/11, America’s attempt to balance justice and national security has drawn protests both at home and abroad. Some of the criticism has been fair, but much of it ignores the dilemmas that any administration would face in dealing forcefully with twenty-first century terrorists who, unlike the defendants at Nuremberg, have not yet been defeated. Few things are harder for democracies than to render justice to enemies whose aims are both irrational and non-negotiable.

On the campaign trail in 2008, Barack Obama invoked Nuremberg. He had studied the tribunal in law school and said;

During the Nuremberg trials, part of what made us different was even after those Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court, and that taught the entire world about who we are.

To which the most appropriate response is – up to a point. The top Nazis captured in 1945 were indeed given “their day in court”. But that court was a unique military tribunal, created specifically for the circumstances after V-E Day. The defendants were far better protected than they would have been in any Nazi court (or Soviet court, for that matter), but they certainly did not enjoy the rights of defendants in the US. The idea that top Nazis should have the same protections as those afforded to Americans by the US Constitution never occurred to the jurists devising the rules for Nuremberg.

To some, Nuremberg will always be an example of “victors’ justice”. I believe that view is wrong and that the tribunal (where my father, Hartley Shawcross, was the chief British prosecutor) was a necessary and successful exercise of law. At Nuremberg, our civilisation developed a vehicle to anathematise men imbued with evil.

Justice Robert Jackson, the chief US prosecutor and the architect of Nuremberg, put it well when he spoke of the regime that the accused at Nuremberg had served: “Civilisation can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.”

The scale and nature of the threats from fascism and Islamist extremism are different, but that same problem persists today. In trying both to prevent further atrocities by Islamist extremists, and to deliver justice to those detainees suspected of such crimes, President Obama has found himself, like President Bush before him, faced with decisions that test our ideals.

As a senator and a presidential candidate, Barack Obama criticised almost all of Mr. Bush’s decisions in the “war on terror.” Two days after his inauguration in January 2009, he ordered Guantánamo shut within a year, and that November his attorney general, Eric Holder, insisted that the main 9/11 suspects at Guantánamo, including Khalid Sheikh Mohammed, would be not be put on trial in military court in Guantanamo, as President Bush had intended. Instead they would be tried in federal court in Manhattan.

Since discovering the complexities of fighting Islamist terror, President Obama has reversed many of his earlier positions. In March 2011, he signed an executive order allowing terrorist detainees to be held indefinitely at Guantánamo. He also agreed that KSM and other prisoners there would be tried there after all.

Brig. General Mark Martins is to perform the task that Justice Robert Jackson did at Nuremberg. He was appointed last June to be the chief prosecutor of the military commissions, which were reformed by act of Congress in 2009. This was, by all accounts, an inspired choice. A former infantryman who has thought deeply about the history of military tribunals, General Martins recently won widespread praise for his work as commander of the Rule of Law Field Force in Afghanistan.

General Martins pointed out recently that the military courts, as now reformed, “incorporate all of those fundamental guarantees of a fair and just trial that are demanded by our values”. Anyone accused in them enjoys far more protections than the Nazi defendants had in 1945 – indeed, more than in many respected criminal justice systems around the world.

The rules prohibit the use of any statements obtained as a result of torture, or of cruel, inhuman or degrading treatment. Most importantly, anyone convicted also will have the ultimate safeguard under American law – the right of appeal, all the way to the Supreme Court. Referring to Nuremberg, General Martins says that the new military tribunals cannot:

… make decisions to please the public or the Congress. Like our forebears, we are compelled to step back from ‘victor’s justice’. This is what the rule of law is about. Sometimes various people or interests will not be happy. But in the end we can only do the right as we see the right…and trust that our efforts will stand the test of time.

When al-Qaida attacked civilisation on 9/11, murdering some 3000 people and changing the world for the worse, the US was taken by surprise. There was a desperate and understandable search for intelligence on bin Laden’s network, inspired by fear that the next attack would involved WMD as bin Laden himself had threatened.

The US had to respond quickly. When the Taliban refused to expel al-Qaida, US Special Forces invaded Afghanistan and the Taliban were quickly removed from power.  But the US detained hundreds of foreign fighters from al-Qaida and had nowhere to detain them. The government decided that Guantanamo was the least worst place.

That may have been true but Guantanamo became a long term curse for the US image around the world, even though conditions there have been greatly improved. Bush tried to close it and got numbers down from about 800 to 250. Obama promised to do so. He has reduced the number of inmates further to about 160. But the camp is still open because few states agreed to take back their nationals helped there, often deeming them too dangerous.

Alongside Guantanamo itself, the greatest post 9/11 controversy affecting the US has been the allegations of torture. The Bush administration insisted that the exceptional circumstances post 9/11 merited exceptional methods of interrogation  which they called “enhanced interrogation techniques”. Of these the most controversial of all was waterboarding.

There is a common belief that this was widespread. In fact enhanced interrogation was carried out on some 30 people and waterboarding on only three prisoners. US officials of both the Bush and Obama administrations have claimed that it yielded hugely important information, including that which led to the ultimate discovery of bin Laden himself. A forthcoming Senate report may reveal whether or not that is so. The former head of Britain’s MI6, Eliza Manningham Buller, acknowledged the importance of the “life saving information” acquired – though she still condemned the methods as torture.

On the other hand Nigel Biggar, Regius Professor of Moral Theology at Oxford, has argued that if violent force in war is justified in pursuit of peace – if a man can legitimately shoot his enemy:

…then what’s so wrong with verbal threats, sleep deprivation or even waterboarding? Can’t these too be administered without sadistic pleasure or malice, and in proportion to what’s necessary to obtain life saving information? I imagine that they can. In which case, their proper name is aggressive interrogation rather than torture.

Former President Bush was robust. “Damn right we waterboarded KSM,” He said in 2010.  “I’d do it again to save lives.” There is always the ticking time bomb scenario – the American jurist Alan Dershowitz has suggested a warrant should be obtained for torture expected to save lives. It’s once again the dilemma of the lesser evil. Is torture, or waterboarding, every justified in trying to save lives?

In a 1973 essay, the philosopher Michael Walzer described the politician who decides that he has to authorise torture to save lives. “His choices are hard,” Walzer wrote, “and he pays a price not only while making them but forever after.”  Certainly that is true of President Bush and of America itself. President Bush stopped enhanced interrogation, including waterboarding. President Obama denounced the methods and threatened to put on trial those American officials involved. But the realities of government and the continuing terrorist assault forced him to change his attitude.

Instead of waterboarding three suspects in order to acquire intelligence, President Obama has killed hundreds of suspects by drones in Pakistan, Afghanistan, Somalia, Yemen.  That has certainly disrupted plots and saved lives. But intelligence dies with those suspects. And I wonder which is better, more moral? Waterboarding Khaled Sheikh Mojammed and then putting him on trial, or killing hundreds of his accomplices by drone?

In four years, Obama has killed seven times more terrorist suspects by drone attack than President Bush did in eight years. Criticism is now growing, but President Obama has received none of the international opprobrium that President Bush endured. The American historian Victor Davis Hanson has asked what happened to the voices on the left who denounced Bush and Vice President Cheney as war criminals who shredded the constitution to fight imaginary terrorists:

That the venomous opposition to those policies ceased abruptly after Obama embraced them is not just proof of partisan cynicism, but seems to indicate that the measures were necessary and effective.

In the context of drones, let’s consider the extraordinary case of Anwar al Awlaki.

On 30 September 2011, drones high above Yemen targeted a car carrying Anwar al-Awlaki, a radical Islamic preacher – and an American citizen. A Hellfire missile killed Awlaki and another American jihadist travelling with him. Barack Obama said afterward that the successful attack, coming less than five months after the killing of Osama bin Laden by the US Navy’s SEAL Team Six, was “further proof al-Qaeda and its affiliates will find no safe haven in Yemen or anywhere around the world”.

There is no question that Anwar al-Awlaki was a remarkably dangerous man. Born in New Mexico to Yemeni parents in 1971 and largely educated in the US, he spoke mellifluously and possessed a deep understanding of Western popular culture. He was an avid reader of Charles Dickens no less. His sermons were designed to encourage individual Muslims around the world to launch “lone wolf” attacks against all “infidels” and to persuade American Muslims to rise up against their government.

Over the Internet, Anwar al-Awlaki personally instructed Major Nidal Malik Hassan, the American Muslim soldier who murdered 13 of his colleagues and wounded 30 more in a rampage at Fort Hood in November 2009. In Yemen, he met and personally helped to train the young Nigerian so-called “underpants bomber”, Farouk Abdulmutallab, who came close to blowing up a Northwest Airlines flight over Detroit on Christmas Day 2009.  The passengers were saved only because the bomb failed to ignite. Awlaki also groomed, over the internet, a British Muslim, Rajib Karim, who worked for British Airways, and instructed him to place a bomb on a flight to the US Rajib Karim was arrested before the plot went far.

Later in 2010, Anwar al-Awlaki’s group, al-Qaida in the Arabian Peninsula, managed to get two bombs, disguised as printer cartridges, onto cargo planes bound for US. They were discovered and defused en route – thanks only to a Saudi double agent working undercover with al-Qaida.

By this time, the US government had decided that it had enough evidence to designate Anwar al-Awlaki an active terrorist threat who could be targeted. American human rights groups have argued that his citizenship should give him protection from attack. But, in 1942, two Nazi saboteurs who were US citizens were executed after the Supreme Court ruled that the US citizenship of “an enemy belligerent does not relieve him of the consequences of belligerency”.

Since 9/11, drones have provided a vast revolution in warfare. They have multiplied, as missile platforms and observers, and their technology is still rapidly advancing. Soldiers can now launch drones from backpacks, and the Pentagon is experimenting with drones the size of dragonflies. At the same time their use is proliferating across the world. At least 40 countries now have them in their arsenals. They will become increasingly controversial.

THE ARAB SPRING AND ISLAMISM TODAY

The battle against al-Qaida and Islamist terrorism is now taking place in the context of what has been called the Arab Spring.  But that phenomenon now seems to be degenerating into a new kind of wintry desolation.  The United States and its allies are now at another difficult moment in its fight against terrorism and violent extremism.

Thanks to the post 9/11 Bush policies, mostly continued by Obama, the al-Qaida core has been degraded and is finding it more difficult to raise money, train recruits, and plan attacks. But recent events in the Middle East and Africa add additional dimensions to America’s counterterrorism challenges. How serious are the current array of threats? What will it take to meet them? What’s next in the fight against international terrorists?

In the last two years, militant jihadi groups have proliferated across the Arab world.  From Egypt to Libya to Syria the demands for democracy have allowed the rise not only of the Muslim Brotherbood, but also of militant extremists. In Benghazi such a group (as yet unidentified) seems almost certainly involved in the murder on 9/11 this year of the US Ambassador, Chris Stephens, a man who had devoted himself to creating democratic progress in Libya.

And in Syria, the US has just decided to label one of the most effective groups amongst those trying to overthrow President Bashar al Assad –  Jabat al Nusra – as a terrorist group. This greatly complicates US support for the opposition and has aroused protests from other members of the anti-Assad movement.

It’s a huge quandary for the US. The longer the conflict in Syria persists the more likely that radical support will grow. There is a real danger that whereas Iraq imploded into Sunni-Shia bloodletting after the removal of its dictator, Saddam, Syria may explode, damaging Lebanon, Jordan and Israel.

Barack Obama came into office having famously said that on his election the oceans would cease to rise. His personality has been so powerful. His attempts to reach out to the Muslim world have been largely ignored. Some polls show that the US is even more unpopular in the Mid East today than under President Bush. That is not Obama’s fault – anti-Americanism is the default setting in the Middle East. As well as far too many other parts of the world.

Look at Egypt, the greatest nation in the Arab world, and the original incubator of the Muslim Brotherhood. The fact that the US dumped Mubarak with almost indecent speed did not stop Egyptian voting by a two to one margin for Islamist parties in the subsequent election. Two thirds of these votes went to the Muslim Brotherhood and one third went to the even more extreme Salafist totalitarians, bin Laden’s ideological comrades.

Egypt has recently been riven with riots as a large proportion of the population protests against the clear authoritarian tendencies of the Brotherhood President Mohammed Morsi.  But Morsi is a 9/11 conspiracy theorist and has said, “When you come and tell me that the plane hit the tower like a knife in butter, you are insulting us.”

In the meantime, the country teeters on the edge. With its principal industry of tourism in steep decline, it is subsisting more than ever on US aid. It cannot afford to abrogate its treaty with Israel, but it deals with the Jewish state through increasingly gritted teeth. The Israeli embassy in Cairo was attacked and almost sacked. The Sinai has become a gangster wonderland with bands of al- Qaida and others roaming it and threatening Israel.

Egypt, the fulcrum of the Middle East, may now be about to vote for an Islamic constitution. This will be have huge consequences. Votes for the Brotherhood and Islamists  are votes against all the things that the Arab Middle East desperately needs, the rule of law, secular education and the liberation of women. Instead the Islamists want sharia law, sharia education and the continued subjugation of women. That is a recipe for continued disaster and no social progress in the Middle East.

Libya is the one Arab country where the Islamists have not done well in elections. But al-Qaida and other Islamist groups are now active there and a new phrase has been developed to describe the consequences of Gaddafi’s fall – the Libyan after party.

Secret U.S.-blessed Qatari arms shipments to Libyan rebels last year, intended for use against Gaddafi, have ended up in the hands of Islamist militants. And masses of Gaddafi’s own weapons have been looted and dispersed. The al-Qaida North Africa affiliate, AQIM, is now considered one of the best armed and wealthiest of the Qaida franchises across the world. The full extent of the damage caused by “the Libyan after party” is slowly becoming clear, as bad news from northern Africa, particularly from Mali, continues to trickle in.

Flooded with weapons and veterans from Libya, the northern half of Mali has become a Texas-sized Saharan safe haven for al-Qaida and affiliates. They have imposed sharia law. Newly galvanised young men from across the region are drawn to the fighting, which threatens to destabilise much of West Africa.

A bit further south of Mali, Nigeria is being undermined by an Islamist group called Boko Haram which claims links to many al-Qaida affiliates including AQIM. In Nigeria, it specialises in blowing up Christian churches and murdering their congregations. Last Sunday an Islamist suicide bomber drove an SUV packed with explosives into St Rita’s Catholic Church killing 8 people and wounding over 100 some grotesquely.

Christians, like Jews, are being attacked all over the Arab world – in Egypt last Sunday a mob of Salafists attacked Christians as they left St George’s church after mass. In Iran four secret churches in houses were attacked and the Christians arrested and denounced as “a network of criminals” spreading “Zionist propaganda”.

Looming over all these problems is the grim shadow of the country with which I began tonight. Iran. There is a clear and terrifying choice. Accept the nuclear arming of the most fanatical government on earth which openly boasts is ambition to destroy another member of the United Nations, Israel and defeat its Islamic rivals such as Saudi Arabia, or insist that that is a concession too far. This is a tragic choice, but I have no doubt that a nuclear Iran will create even greater catastrophe for the world than the vicious ideology of death that has controlled it since 1979.

What we confront in all these issues is the enduring human phenomenon of evil.   Mutable and persistent, evil has not been discouraged by the progress of reason or the taming of nature. 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-Qaida (and of the extremist Shiite dictators of Iran) is despotic, anti-Christian, anti-Semitic and nihilist. Like the Nazis, they cannot be appeased. Throughout the twentieth century such evil was confronted and, in the end defeated, under the essential leadership of the United States.

There is much talk of the end of American hegemony and the emergence of a much more fractured world with the emergence of powerful new competitors, in particular China, as well as India, and perhaps Russia, Brazil and others.

Despite his embrace of such weapons as drones, President  Obama has rarely expressed the same confidence in US leadership in the world as most of his predecessors. This is troubling.

I personally hope with all my heart that the United States will remain the crucial part of the jigsaw of international politics and relations. Despite the blunders to which Churchill referred, the United State has been the most benign hegemon the world has ever seen. It is a nation of laws, the world’s most vital democracy and America’s commitment and sacrifices have been since the beginning of the twentieth century, essential to the world’s ability to resist nihilism.  That is as true of the war as against Islamic fundamentalism as that against fascism.

Democracies need power to sustain them.  If American power declines, to be replaced by far more cynical actors like the present governments of China or Russia, we really will see how much we 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 American 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.

If American power and leadership are withdrawn from the world, our children will suffer.