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War Crimes and Punishment
What constitutes due process for terrorists?

By Clifford D. May


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Stalin, Roosevelt, and Churchill in Tehran in 1943


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‘To the justice of the firing squad!”

That was the toast proposed by Stalin to Roosevelt and Churchill over dinner in 1943 in Tehran. They were meeting for the first time, and the discussion had turned to the fate of Nazi leaders following Germany’s defeat. Stalin wanted no fewer than 50,000 of them executed. Churchill, much as he despised Nazis, considered mass summary executions dishonorable. Roosevelt, “in an apparent attempt to lighten the conversation, suggested perhaps 49,000 would be adequate.”

William Shawcross recounts this exchange early in his new book, Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed. A distinguished journalist (a phrase I do not employ promiscuously), Shawcross brings a strong dose of common sense to the fevered debate over what constitutes due process and proper treatment for those now waging an unconventional war against the West. He also brings a unique pedigree: His father, Hartley Shawcross, was Britain’s lead prosecutor at the military tribunal that became known as the Nuremberg Trials.

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In hindsight, it’s easy to imagine that Nuremberg was the inevitable culmination of World War II. But as Hartley Shawcross understood and William Shawcross makes clear, “there was absolutely no precedent.” George Orwell was among those who believed it was a bad idea. He predicted such “cruel pageantry of the law” would focus “a romantic light on the accused.”

Chief prosecutor (and U.S. Supreme Court justice) Robert Jackson saw things differently: “We must make it clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the War, but that they started it.” Nazis would be charged also with “crimes against humanity,” a completely new legal concept that “encompassed the persecution of racial and religious groups.”

What has all this to do with 9/11 and Khalid Sheikh Mohammed, one of the terrorists currently incarcerated at Guantanamo? Shawcross explains:

At Nuremberg, our civilization designed a vehicle to anathematize men imbued with evil. But evil re-invents itself in every age. In the 1940s, the world confronted and, with immense sacrifice, defeated the horror of fascism. The scale and the nature of the threats are different today but the ideology of Al Qaeda and its Islamist associates shares attributes with Nazism; it, too, is totalitarian, and it, too, has anti-Semitism at its core. In the case of Al Qaeda that intransigent hatred is extended to all “infidels.” Just as Hitler planned a “thousand year Reich,” so the Islamists call for a global caliphate in which they and their laws prevail absolutely and endlessly.

There is this difference between then and now: At Nuremberg we were dealing with an enemy that had been defeated and an ideology that had been discredited. Today, by contrast, our enemies continue to fight, and Islamic supremacism is far from vanquished. Islamists of various stripes are well funded — the West’s addiction to oil guarantees that — and prominent in international organizations. What’s more, Iran’s theocrats — for years the world’s main sponsors of terrorism — may soon possess nuclear weapons. The West’s response has been inconsistent and confused.

Among the events Shawcross explores: In 1949, three years after the judgment at Nuremberg, the Geneva Conventions were “renegotiated and redefined.” The intent was to protect not only uniformed soldiers but also civilians by making clear that honorable combatants are prohibited from disguising themselves as civilians or using civilians as shields.

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COMMENTS   10

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   03/01/12 09:26

Oil addiction is simply a carriacature used by leftists to shame Americans into limiting our hard - earned lifestyle and submitting to government edict. Like it or not, oil is the lifeblood of capitalism and liberty. It may indeed be replaced, but only by the freedom of human invention and necessity rather than the mandates of statists. If by chance the West should cast aside it's juvenile notions of government dictated alternative energy rationing schemes, the mere suggestion of domestic resource sanity would pressure world prices and weaken the cash position of tyrannical Islam.

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 RobL
   03/01/12 16:17

I’m with you @BrandingIron,

I didn’t read the comments before posting mine…sorry for the redundancy

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   03/01/12 13:57

"The evidence that America and Europe have such strength and self-confidence is not overwhelming." - It really looks like we're re-living the 1930s, with Israel playing Czechoslovakia which the so-called civilised democracies are busy smearing and pushing into surrender, and with mediocre but politically savvy military top brass presenting a warped picture of the real situation in explosive world regions.

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   03/01/12 14:48

The differences between Nazism and Islamicism are vanishingly trivial.

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   03/01/12 15:41

What do you call a (mostly) foreign enemy who has sworn to destroy you, your government, your country, any form of worship that differs from their own and your way of life but who lacks an identifiable national government to sponsor him? Let’s further postulate that this enemy has repeatedly shown a disregard for any internationally recognized rules governing war by attacking civilians, not wearing a uniform or any other means of easily identifying his ‘warriors’, and killing any of your citizens (military or civilian) they can get their hands on, except for those occasions when they want to demand something (or someone) from you. Let’s also postulate that they are not above engaging directly in criminal enterprises like drug trafficking, kidnapping, fraud and extortion to finance their activities.

75 years ago, we called them ‘bandits,’ hunted them down and killed them, period.

What has changed?

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   03/05/12 18:07

"What has changed?" Progressives now control the media and most of the education that goes on in the United States. Therefore progressives control the propaganda and work on the minds of the youth of this country. Until someone has the guts to call out the left on their destructive anti-American activities many otherwise intelligent people in this country won't know any better but to let the left define our culture in a way that will lead to our destruction.

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 RobL
   03/01/12 16:14

If I may quibble Mr. May.

The West is not addicted to oil, we choose to live in an industrialized modern society. Oil is the blood that keeps the body of industry alive. No addiction, just a reality. Without oil modern society dies.

It so easy to lapse into the pejorative sobriquets of the Left. Since your article clearly elucidates the evils Leftism can wreak, I thought addiction is worthy of a purge.

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Mr. Mark
   03/01/12 19:45

I agree, mostly.

I would make a distinction, though, between the terms "unconventional" and "terrorist." This ties in with the problem of having a "War on Terror" (dumb term). We are not at war against terror. We are at war against al Qaida and its affiliates. We can't even agree on what terrorism is, much less go to war against it.

The U.S. government itself has multiple definitions of the concept, none of which are really acceptable to a thinking person. It is sort of like art - you know it when you see it.

I propose an informal, simple definition: When you specifically target civilian non-combatants for death or serious injury in order to influence a government or a people, then you are committing terrorism. (Useful idiots take such a definition and ask, in their whiny, sniveling voices about Hiroshima and Nagasaki, to which I would respond with a reference to the total war initiated by Japan, but there just isn't time to explain the world to the Starbucks set. So, like I said, it's informal.)

Unconventional war, in plain English (and with greater scope than that used in the Army's view of it), is something else. Broadly, in an international sense divorced from our own military's doctrinal view of it, unconventional war is "anonymous" or "pretend-anonymous" war. It is war by proxies, such as insurgent groups. I think it should also include direct action by military and paramilitary forces acting covertly.

When an enemy attacks an American military target using insurgents, it is conducting unconventional war. It is wrong, they should not do it, and we should deliver a reprisal. However, it is not terrorism.

When an enemy hijacks an American airliner, that is an act of terrorism. When they then fly that airliner into a building (military or not), that is another act of terrorism.

Iran, for instance, has conducted both unconventional attacks and terrorist attacks. It is important to differentiate between the two, because there are situations in which the United States should have the option of striking at the military targets of our enemies via foreign resistance forces (insurgents).

Take, for instance, the calls for intervention in Syria. (I don't necessarily support those calls right now, but I'm open to the idea so long as it leads us to a better situation for ourselves, rather than a worse situation.)

Another example is the interest in achieving changes in the Iranian regime. Just as the Allies supported the actions of the French Maquisards against the Nazis via the Jedburghs, shouldn't the United States have the option of using foreign insurgents to affect the internal situations of countries that are of strategic interest to our well-being here in America? (If you answer no, shouldn't you be somewhere sipping lattes with all the other Paulistas right now?)

So, we need to narrow down what is terrorism and what is not. Just because an attack might not be terrorism does not mean that we have to put up with it. If al Qaida had attacked us on 9/11 with clearly marked military aircraft, and attacked West Point instead of the WTC in their three-part target set, would we be any less angry? No. Of course not, we'd still need to go kill them all.

Which brings me to Khalid Sheikh Mohammed.

Why
is
he
still
breathing?

Please, fix it.

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   03/02/12 16:31

we may be at war with alqaida and its affiliates, but islam is at war with us, and has been since our nation was formed. we are winning against al qaida and its affiliates, but islam is winning its war on us and all free societies. we will continue to lose until we wake up and admit that it is islam itself that is our mortal enemy, and when the war stops, there will be either only islam, or no islam. so far it looks like only islam.

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   03/03/12 08:41

Hisotry repeats...............the administrations department of justice insistance that civilian courts were capable of handling the mastemind of 911 was almost lost due mostly to legitimate objections raised by the defence council. Begrudingly DOJ returned such future trials to the military system. The "butcher of Russia" had he prevailed in his solution could have prevented many "wannabe future warriors" from venturing more wars. Knowing that defeat means a fireing squad rather than prisons and future pardons they may think twice.

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