Wednesday, March 19, 2008

The "Nürnberg defence"

I posted previously on the maladministration claim that the "high-value" Guantánamo detainees would enjoy more rights than did the Nazis at the Nürnberg (Nuremberg) trials and the assassins of Abraham Lincoln. The claim is nonsense, of course, and even cursory scrutiny will show that.

Here is a (longish) round-up of articles by others that detail this nonsense as well:

Civil libertarian Nat Hentoff:

With preparations begun for the first military-commissions trial for detainees at Guantanamo -- six "high-level" prisoners who could get the death penalty -- the customary attacks on the fairness of the proceedings there are mounting here and abroad. Adding to the discord is the refusal of Brig. Gen. Thomas Hartmann, legal adviser for the military commissions, to exclude any evidence against the defendants that has been extracted through waterboarding.

Particularly troublesome to the Bush administration's continued insistence that there are careful standards of due process at Guantanamo Bay was the resignation last October of Col. Morris Davis, former chief prosecutor for the military commissions at Guantanamo. In an article for the Los Angeles Times (Dec. 10), he wrote he had "concluded that full, fair and open trials were not possible under the current system." Precipitating Davis' act of conscience was the supervisory appointment over him of Defense Department General Counsel William J. Haynes, long criticized for having been instrumental in authorizing what are euphemistically called "coercive interrogation techniques" on terrorism suspects, some of which are purportedly torture.

Before Haynes became Davis' supervisor, Davis, while still chief prosecutor, had told Haynes there might be some acquittals during the Guantanamo Bay trial. But, as Davis told The Nation (March 10, 2008), Haynes response was: "Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We've got to have convictions." Indeed, a military lawyer, Navy Lt. Cmdr. Charlie Swift, told me that when he was assigned to a detainee at Guantanamo Bay, he was ordered to represent him by obtaining a confession from him. This presumption of guilt at Guantanamo (not only in that case) hardly squares with how we describe our rule of law to the world.
More from Hentoff:
Davis recalls that Haynes told him that the forthcoming military commissions trial "will be the Nuremberg of our time" -- referring to the 1945 tribunals where the dread defendants included such prominent Nazis as Hermann Goering, Albert Speer, Joachim von Ribbentrop and Rudolf Hess.

In Sen. Christopher Dodd's superb book, "Letters from Nuremberg: My Father's Narrative of a Quest for Justice" (Crown, 2007), he quotes his father, Thomas Dodd, who became the No. 2 prosecutor in the American team at Nuremberg:
"Those of us who were privileged to serve at the Nuremberg Trial are proud of the entire proceeding. ... Every right of the defendants was scrupulously observed. They were given every possible opportunity to make every explanation and every possible defense.

"Witnesses were obtained for them merely at their request.

"Documents were made available, library facilities were at their disposal, and throughout every hour of the trial they were afforded every opportunity to answer every charge."
As others and I have reported, the procedures at Guantanamo -- by glaring contrast -- are the very opposite of those at Nuremberg.

The Nazis had vigorous lawyers waging their defense; they were able to talk to lawyers in private without a video camera watching; and all their correspondence and notes were not handed over to the military.
See my previous post for how these things are not afforded by the Military Commissions Act (MCA).
And that's only part of the utter mockery of due process at Guantanamo. But at Nuremberg, American prosecutor Thomas Dodd said of that trial: "This was a demonstration of judicial process honestly at work. I saw it take place -- this moral victory -- from day to day, slowly but surely in the dock and at the defense tables." But the Bush administration (reported in the Feb. 16, 2008, Economist) has actually authorized the State Department, "in a memo to American embassies," to suggest that the military commissions "be compared to the Nuremberg trials, partly because no one fussed when the Nazis got the death penalty and partly because, say the generals, legal protections (at Guantanamo) will be greater than at Nuremberg."
Saying it's so don't make it so....

Here's Chris Gelkin at OhmyNews International:
A four-page memo has been sent to all United States diplomatic missions instructing them to make the Nuremburg comparison in the event they were questioned about the legality of the death penalty requested by the prosecution in connection with the trials of the so-called Guantanamo Six.

There is no comparison. The Guantanamo trials will be held behind closed doors. The public will be denied the right to hear the evidence, or how that evidence was obtained. No television camera will record the examination and cross-examination of witnesses for the evening news.

A verdict will be announced, a sentenced passed -- and the world at large will be denied the right to know how it was achieved.

Nuremburg, on the other hand, was open to the public and newsreel cameras. To the best of any historian's knowledge, none of those on trial at Nuremburg was tortured in order to gain a confession. The accused were also presumed innocent until proven guilty, and as a consequence were offered legal rights and privileges they themselves had denied their victims.

No, not by any measure of comparison can the Gitmo trials be likened to Nuremburg.


A serious concern to human rights organizations, and apparently to Britain's Foreign Secretary David Miliband, are the unanswered questions regarding whether the confession of Khalid was obtained through the use of torture, specifically waterboarding.

The tribunal, or military court, has been instructed to ignore any evidence that may have been obtained through waterboarding or other "extreme interrogation measures" since the passage of the Detainee Treatment Act of 2005 -- but information gleaned by torture prior to this may be considered by the court.

Sheikh Mohammed was reportedly subjected to waterboarding in 2002 or 2003. So his half drowned, muffled confessions will likely stand. Any confessions or statements obtained thereafter were doubtless made with the possibly unstated but ever present implied threat of further torture.

Under these circumstances, anything Khalid said to his interrogators post-waterboarding is highly suspect and would normally be inadmissible in any court of law.

Here Jane Sutton at Reuters AlertNet quotes one of the original prosecutors at Nürnberg:
"I think Robert Jackson, who's the architect of Nuremberg, would turn over in his grave if he knew what was going on at Guantanamo," Nuremberg prosecutor Henry King Jr. told Reuters in a telephone interview.

"It violates the Nuremberg principles, what they're doing, as well as the spirit of the Geneva Conventions of 1949."

King, 88, served under Jackson, the U.S. Supreme Court justice who was the chief prosecutor at the trials created by the Allied powers to try Nazi military and political leaders after World War Two in Nuremberg, Germany.

"The concept of a fair trial is part of our tradition, our heritage," King said from Ohio, where he lives. "That's what made Nuremberg so immortal -- fairness, a presumption of innocence, adequate defense counsel, opportunities to see the documents that they're being tried with."

King, who interrogated Nuremberg defendant Albert Speer, was incredulous that the Guantanamo rules left open the possibility of using evidence obtained through coercion.

"To torture people and then you can bring evidence you obtained into court? Hearsay evidence is allowed? Some evidence is available to the prosecution and not to the defendants? This is a type of 'justice' that Jackson didn't dream of," King said.


The 2006 Military Commissions Act, which set revised rules for trying suspected terrorists at the U.S. naval base at Guantanamo Bay, Cuba, "sort of turns its back on Nuremberg," King said. "I don't think it's a credit to us to have this thing."

"The United States has always stood for fairness. That's the important thing. We were the ones who started war crimes tribunals and we're the architects. I don't think we should turn our back on that architecture."

And here's Scott Horton at Harper's Magazine:

Davis resigned because he felt the commissions system was rigged. He also filed a formal complaint over the improper role played by the convening authority’s legal advisor in the Hicks case. That complaint is in the process of investigation by the Department of Defense. Here is a memorandum posted to the Department of Defense’s website concerning the still pending investigation and the issues raised. Note that while Davis was not in a position to premise the complaint on Haynes’s involvement, that is the 800 pound gorilla in the room. But Davis was not the only, nor even the first prosecutor to resign. Three others–Maj. Robert Preston, Capt. John Carr and Capt. Carrie Wolf–asked to be relieved of duties after saying they were concerned that the process was rigged. One said he had been assured he didn’t need to worry about building a proper case; convictions were assured.

Of course, the number of defense counsel claiming that the system is stacked against them is legion. I surveyed the views of the defense lawyers, and the serious mistreatment they frequently faced at the hands of the Rumsfeld Pentagon, in this article.

Even the chief judge at Guantánamo, Colonel Ralph Kohlmann is plainly troubled by the military commissions arrangement. He wrote in a paper published in 2002 that “even a good military tribunal is a bad idea.” Col. Kohlmann argued that the “apparent lack of independence” of military judges would present “credibility problems.” Col. Kohlmann wrote these words before the obvious political manipulation of the Hicks case and before Haynes’s jiggered the command structure to place himself in control of the entire process. The “apparent lack of independence” of which he wrote has ballooned into a nightmarish reality.


Hartmann was quick to invoke the model of the Nuremberg trials, calling these proceedings a “modern Nuremberg.” In fact, the Nuremberg process is worthy of emulation and had the Bush Administration turned to its grand design, or even some of the other model international tribunals, most of the embarrassment that now surrounds the Gitmo moral swamp would have been avoided. Robert H. Jackson, arguably America’s greatest attorney general, was responsible for structuring those proceedings. He made clear throughout that he was guided by two concerns. The first was to do justice. And the second was to be damned sure that the public recognized that justice was being done. He accomplished both goals, and the result was a landmark international law and a point of pride for America.

But the military commissions crafted by the Bush Administration are an embarrassing stain compared to Nuremberg. One of the main reasons is that they have been crafted by political hacks out on a partisan agenda, and the experts who could have done a credible job–first among them the military lawyers in the JAG corps–have been ignored or overruled at each turn. The ability of defense counsel to conduct a meaningful defense has been impeded, with gains coming grudgingly only after the Supreme Court overturned the first, colossally incompetent structure in Rasul. Most menacingly, the specter of torture hovers over the current military commissions proceedings, with the acknowledgement that many of the defendants were subjected to techniques which the entire world (excluding only the Bush Administration) considers to be torture.

There will be no justice in Guantánamo. Just an inevitable 'retribution'. And a political show for the Dubya maladministration's benefit.


At 9:38 AM, Blogger JNagarya said...

Nicely, beutifully done, Arne. You have a way, with your humor as counterpoint, of causing the reader to be profoundly moved.

You are as sick over this criminal enterprise's gall in prosecuting others for having committed crimes for which they have never been adjudicated responsible or guilty. Doing to others that which they are arguably more deserving, thugh the best way to punish sociopaths such as Bushit is with steadfast and consistent kindness.

At 9:58 AM, Blogger JNagarya said...

I thought you were a lawyer, as you're excellent on law. But now I see: A Man for All Seasons will do that to one. The battle for favorite movie, for me, is between "A Man for All Seans" (currently winning), and "The Day the Earth Stood Still".

At 9:15 PM, Blogger Arne Langsetmo said...

"Klaatu barada nikto."



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