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Crime, Punishment, and Politics

William Shawcross's central concern: how best, within a coherent legal framework, to deal effectively with combatants and terrorists.

By From the December 2011 - January 2012 issue

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Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed
By William Shawcross
(PublicAffairs, 256 pages, $26.99)

STRANGE, how little real discussion there has been of foreign policy in the current presidential campaign. Four years ago, with George W. Bush still in office, it was, until the economy began its swoon, the only issue. Obama and his vociferous supporters loudly opposed every aspect of the Bush policies, whether support for established allies in the Middle East, treatment of prisoners captured on the battlefield, Guantanamo, civil court trials, or military tribunals. The expectation, certainly among the most dedicated Obama supporters, was that the new administration would sweep away the old policies, programs, and involvements, and establish an era of new initiatives and international good feelings. But after a full term, the Obama administration until recently was in most respects carrying out the policies of the Bush administration.

However, faced with an economy unresponsive to presidential rhetoric, plunging poll numbers, and growing alienation among his base, the president made a snap election-year decision to pull all American troops out of Iraq immediately, and damn the consequences. And if things don’t improve politically well before next November, expect a similar snap decision to be made about troops in Afghanistan.

In the meantime, there have been other foreign policy developments. Thanks to the president’s apparent sympathy for rebellion for its own sake in the Arab world, combined with an unprecedented coolness toward Israel, the region has become seriously destabilized, as we wait to see which of our erstwhile friends is next to go. His rear-guard gamble on Libya has paid off with the assassination of Gaddafi, the unstated objective of the war, although it would have been much cheaper and more efficient to send the SEALs. And just for the record, there’s another small new policy wrinkle—the president, for no discernible policy reason, is sending a small group of military advisers into central Africa, the Heart of Darkness, much as President Kennedy sent a small group of military advisers into Vietnam. No direct combat role, of course. Just advice.

But no matter. William Shawcross, a distinguished British journalist, author of a number of well-received books on international conflicts and conflict resolution, champion of human rights throughout the world, and son of a lead prosecutor at Nuremberg, obviously didn’t intend Justice and the Enemy to be a colloquy on policy inconsistency among professional politicians. But inconsistencies and vacillation at the top of the current administration do bear directly on Shawcross’s central concern—how best, within a coherent legal framework, to deal effectively with combatants and terrorists, among them the repulsive Khalid Sheikh Mohammed, planner of the 9/11 attacks.

One such instance of political vacillation, writes Shawcross, occurred on March 7, 2011, when “President Obama signed an executive order lifting the freeze on military trials that he himself had imposed… and acknowledging that Guantanamo would remain open for the foreseeable future. Thus he had abandoned two of the signature policies on which he had campaigned… and promulgated with great fanfare in January 2009.”

Obama, he continues, “was bowing to the political realities that he had created. He and many of his supporters…. had treated George Bush as an idiot and his policies in the War on Terror as more or less evil.” But since 2008, when he claimed that Bush’s military courts “undermined ‘our Constitution and our freedom,’ Obama had traced their history back to George Washington and declared, ‘They are an appropriate venue for trying detainees for violations of the laws of war.’”

Thus, it appears that Bush may have been right all along. Then, a month later, on April 15, 2011, Obama added “to the anguish of many of his old supporters and new critics on the left by performing another painful somersault. He announced the start of his campaign for reelection…and on the same day [had] his Attorney General, Eric Holder, reverse himself on the trial of Khalid Sheikh Mohammed and his co-conspirators.”

Previously, “Holder had promised ‘the trial of the century’ in federal court on Manhattan, but now he announced that the trial….would take place before a military commission in Guantanamo, after all.” In his announcement, Holder had blamed a partisan Congress for preventing the administration from transferring prisoners to federal courts around the country. That was true enough, writes Shawcross, but “in fact many Democrats, like Senator Charles Schumer of New York, had taken the lead, insisting that the terrorists should not enjoy all the constitutional protections of American citizens.”

Shawcross is rightly critical of the administration’s indecisiveness, brought on for the most part by political expediency. But he also gives credit to Obama where due, especially in the operation targeting Osama bin Laden, which demonstrated the president’s “courage in authorizing a dangerous mission that had no guarantee of success.”

He also pays tribute to the SEALs who carried out the mission, and “were lauded across the political spectrum. It was about time they had such impartial recognition—in another example of the disproportionate abuse which the Bush administration had endured, on the wilder shores of the left the SEAL Team 6 has sometimes been described as ‘Cheney’s Death Squad.’”

But approval of the execution wasn’t universal. Among the jihadist sympathizers, Shawcross writes, was “Noam Chomsky—one of the Americans, along with Jimmy Carter, whom bin Laden liked to quote with approval….Chomsky demanded to know ‘how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic. Uncontroversially, his crimes vastly exceed bin Laden’s.’”

As Shawcross puts it, “Chomsky’s pronouncements can be treated with contumely, but he has a following far larger than he deserves….He gives an academic and intellectual justification for hatred of the United States, however spurious, even dishonest, his arguments may be. The fact that he is so celebrated is a sad testament to the wide and shallow nature of anti-Americanism.”

In another age, Chomsky would have been a candidate for tar and feathers and a free ride out of town on a rail. But no matter. There will always be semi-deranged turncoats, delusional tenured academics with too much time on their hands, and, as Lenin put it, “useful idiots.”

SHAWCROSS MAKES telling points on a variety of issues and sub-issues, from waterboarding and the hard intelligence it has provided, to the ramifications of warfare by drone, to the reasons for the kid-glove treatment afforded by the West to Islamic fanatics, who worship, as he puts it, in “a cult of death,” while many among us insist on pretending it’s really “a religion of peace.”

Why? As Shawcross points out, “We still make fun of Christianity, mock (or malign) the Jews, laugh at the Dalai Lama, but we maintain a respectful silence about Islam. Why is one religion being accorded so much more deference than all the others? Because we’re afraid of it, that’s why.”

And for good reason, as witness the murder of Daniel Pearl and similar atrocities throughout the world. Shawcross quotes from a speech by the Ayatollah Khomeini, patron saint of all jihadists, whose “surge to power in 1979 was an astonishing victory for all proponents of political Islam…” As Khomeini put it: “‘Those who follow the rules of the Koran are aware that we have to apply the laws of qissas (retribution) and that we have to kill….War is a blessing for the world and for every nation. It is Allah himself who commands men to wage war and kill.’”

“The Islamist reach for power is almost always bloody,” writes Shawcross, “and where Islamists achieve power…they practice mass murder on a scale not equaled in the world except by Nazi and Communist rulers….No two eras are the same, [but] evil is eternal and reinvents itself in every age….Like the fascist ideology that the democratic world fought in the 1940s, the dogma of Al Qaeda and its network of associates is despotic, ruthless, anti-Semitic, anti-Christian, and totalitarian. It cannot be appeased any more than Hitler was appeased.”

Once again we are at war, with a new enemy and a complex set of legal, moral, and political issues making it difficult to deal comprehensively with such problems as how to prosecute prisoners taken in that war. But Nuremberg, Shawcross believes, provides a model, “a vehicle to anathematize men imbued with evil. Nuremberg is a precedent on which the United States can build with pride.”

Thanks in no small part to political considerations, Shawcross writes, “The United States has made mistakes since the brutal, unprovoked attack of the 11th of September 2001. But America is the world’s most vital democracy; its mistakes are constantly being corrected.

“On the wise use of American power the free world still depends and there is every reason to suppose that the nation and its courts will deliver justice in an exemplary fashion.”

And in an earlier work, Allies: The U.S., Britain, Europe, and the War in Iraq, from which Bob Tyrrell quoted in the September TAS after a visit to London, Shawcross put it this way: “For all its faults, American commitment and American sacrifice are essential to the world. As in the twentieth century, so in the twenty-first, only America has the power and the optimism to defend the international community against what really are the forces of darkness.”

Good to know that among good men, that special relationship remains alive and well. 

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About the Author

John R. Coyne Jr. a former White House speech-writer, is co-author with Linda Bridges of Strictly Right: William F. Buckley Jr. and the American Conservative Movement (Wiley).