Now, It Seems, We’re a Nation of Cowards

In many respects, the war crimes trials held at Nuremberg, Germany, in the aftermath of World War II represented the pinnacle of American-style constitutional democracy. Despite the fact that Nazi Germany posed the greatest existential threat America and its European allies ever faced, the Allied Powers, at our urging, insisted that the men who carried out the Holocaust and committed the perhaps gravest war crimes in history be given fair trials.

A while back, NPR’s “Morning Edition” program featured a guest commentary by a Jewish World War II Army veteran named Clancy Sigal, who, as it happened, had been stationed in the vicinity of Nuremberg in October 1946 when the war crimes trials began. Sigal, understandably, would have treated the Nazis in the dock rather differently: He actually went to tribunal with the intention of killing Herman Goering with his service revolver. But seeing Goering’s trial in process proved to be a transformative moment for Clancy Sigal:

Today, in the midst of a national debate on how to treat captured terror suspects, my mind flashes back to Room 600 at Furtherstrasse 22 [in Nuremberg]. We gave Goering and the other war criminals a chance not only to defend themselves but in some cases, preach hate and violence.

In a ruined Germany, where so many corpses still lay buried in the rubble, and life seemed so very fragile, we found it in ourselves to give the worst of men due process.

And that, it seems to me, is what once defined the essential difference between the United States and its enemies.

These days, the Bush administration and its conservative lackeys like to compare themselves to the World War II generation. They like that comparison so much, they often fantasize that they’re fighting World War III against the “Islamo-fascists” (as right-wing nub David Horowitz says). But if these supposed champions of freedom are the 21st Century version of FDR and Gen. Eisenhower and Supreme Court Justice Robert Jackson, the U.S. representative at Nuremberg, you have to ask whether they, too, are capable of rising above hate and emotion and fear in order to do what our Constitutional principles command. Do Bush and his fellow travelers on the right so respect the rule of law and the fundamental principles on which our Constitution is founded that they can do the right thing? Can they give “the worst of men due process”?

No, this is how Bush and a compliant Congress have risen to the challenge of the post-9/11 world:

When military officials announced war crimes charges against six detainees for the Sept. 11 attacks two months ago, the move was part of an effort to accelerate the Bush administration’s sluggish military commission system, which has yet to hold a single trial.

But the Sept. 11 case immediately hit a snag. Military defense lawyers were in short supply, and even now, two months later, not one of the six detainees has met his military lawyer.

(Link courtesy of ThinkProgress.org.)

In other words, although the U.S. and its allies were able to put together the necessary procedures and commence the Nuremberg trials within about eighteen months after the fall of Berlin — and to do so with the basic requirements of due process in tact — the Bush cabal are still unable to go forward with their sham “military commission” proceedings against suspected al Qaeda agents more than six and a half years after the September 11 attacks.

But the problems with the Bush Administration’s “military commissions” run far deeper than a mere shortage of defense lawyers to represent accused terrorists. Because unlike the level of due process afforded the Nuremberg defendants, the procedures laid out in George Bush’s Military Commissions Act are so inadequate, so lacking in basic due process and fundamental fairness, that these cases are likely to be tied up in legal challenges for months, if not years, to come.

Specifically, the Military Commissions Act of 2006 (.pdf file) permits the executive branch to seize an individual in the so-called “war on terror,” label him or her an unlawful enemy combatant and detain that individual indefinitely without allowing him or her access to the courts to challenge that designation. Instead (and supposedly in lieu of habeas corpus review in federal court), each detainee’s case is supposed to be reviewed by “combatant status review tribunals” — CSRT’s — which are to determine whether the individual is being detained properly and whether the detainee is guilty of war crimes (such as, in the case of the 9/11 attacks, illegally targeting innocent civilians).

The problem, however, is in the method of review. The CSRT’s are allowed to rely on evidence obtained through torture. They are allowed to review evidence in secret, evidence to which the detainee and his or her lawyer are not privy; and they are allowed to rely on hearsay evidence — that is, statements made out of court, by individuals who are not placed on the witness stand nor sworn in under oath, and who therefore cannot be cross-examined by the detainee or the detainee’s lawyers. Note that this evidence can be used not only to determine whether an individual is properly being detained, but whether that individual is guilty of a crime — some of which carry the death penalty. That’s right. The U.S. government — more specifically, the executive branch and the military — have the power to convict and execute an individual based on hearsay evidence, secret evidence, and/or evidence obtained through torture.

The obvious question, of course, is why? Why do we need to do this in secret? Why do we need to obtain convictions based on inherently unreliable evidence? Don’t we have real evidence against these people? Evidence that would stand up in court, subject to cross examination and so forth? What are the Bush cabal afraid of?

The truth?

Naturally, because these procedures are so defective they are being challenged in court, and that process (which may or may not cure the many defects in the Military Commissions Act) continues to draw out and prevent these cases from going to trial. In the end, however, if Bush and his lackeys manage to beat back the legal challenges to their bogus military commissions; if, in the end, the military commissions go forward, conduct sham trials and render guilty verdicts based on such defective processes and inherently faulty evidence, what will be the result? A mockery of everything our Constitutional system stands for.

How bitterly ironic. One of the great strengths of the Nuremberg process was that it not only provided assurances of fairness, it provided an open forum to air the Nazis’ hateful ideology and the sheer brutality of the Nazi regime. Men and women testified under oath, in graphic detail, about the Nazis’ crimes. Documents, photographs, even films, were introduced into evidence to show, in painful detail, how the inhumanity of the Nazi political philosophy translated into mass graves, piles of ash and bone, death, disease, starvation, forced labor, unbearably cruel medical experimentation … You know what I’m talking about.

And you know it largely because of the evidence adduced at the Nuremberg trials.

If the detainees at Guantánamo Bay truly are guilty of participating in war crimes, we now have a similar opportunity to expose the brutal, inhumane, and ultimately racist philosophy that motivates religious extremists like Osama bin Laden and his al Qaeda network. We have the ability to put bin Laden’s morally bankrupt politics on trial before the whole world. We have the ability to remind the world, in painful detail, of the horrible and unnecessary suffering bin Laden and al Qaeda inflicted on 9/11; to remind people that innocent victims were incinerated, crushed to death, or leapt to their deaths to avoid a worse fate, all because of the hate he espouses.

But to do that effectively requires a fair, open legal process that we and the rest of the world can have confidence in. This is the only way to make the case in such a way that outside observers will really care about the outcome. Otherwise, we will have jettisoned the only opportunity we may ever have to put Osama bin Laden’s brand of religious extremism on trial.

Anthony D. Romero of the ACLU/National Association of Criminal Defense Lawyer’s John Adams Project puts it this way:

The military commissions set up by the Bush administration for the men imprisoned at Guantánamo Bay – including those it suspects were involved in the September 11 attacks – are not true American justice. These trials should represent who we are, what America stands for, and our commitment to due process. They are not about how civilized the accused are, but how civilized we are. America does not stand for trials that rely on torture to gain confessions, or on secret evidence that a defendant cannot rebut, or on hearsay evidence.

I wish I could say that — that America does not stand for the kind of sham justice the Bush administration and Congress sanctioned in the Military Commissions Act of 2006 — but the sad truth is, nobody seems to care. We used to be proud of who we are. Now, it seems, we’re a nation of cowards.

Of course, the courts have an opportunity to prove me wrong, if they have the courage to strike down the Military Commissions Act, to guarantee habeas corpus rights to the detainees at Guantánamo Bay, and to force our government to play by the rules on which it’s based. What are the odds of that happening?

Source / Journal of the Plague Year / The Rag Blog

Key to the photograph: Some of the defendants at Nuremberg. Front row, from left to right: Hermann Göring, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel. Back row from left to right: Karl Döwnitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel, Alfred Jodl.