Since the September 11 attacks, America has wrestled with its values to find the right balance between its commitment to due process and the need to protect its citizens.
A legal labyrinth of war one British author helps navigate
How does the United States balance its commitment to due process with the need to protect its citizens? American officials posed that question in the aftermath of the September 11, 2001, attacks against their country, and to this day it has not been adequately answered.
The British author William Shawcross has just published a book, Justice and the Enemy: From the Nuremberg Trials to Khalid Sheikh Mohammed, that examines the topic of justice in time of war. His book is a daring plunge into a debate that has become an emotional minefield. In so doing he has managed to reaffirm a consistent theme in his writings amid accusations that he is an ideological turncoat.
Shawcross is a valued friend, but that is irrelevant in recognising that his book will be indispensable to any discussion of Washington's struggle to devise a legal system to put terrorist suspects on trial. The solution found has been controversial, but more credible in terms of American judicial precedent than many realise.
One reason Shawcross was asked to write the book is that his father, Hartley Shawcross, was chief British prosecutor at the Nuremberg tribunal. The author defends the Nuremberg process, but also observes, "it is only in retrospect that it seems unimpeachable". The tribunal did not usher in a new legal order, but it did precede international steps outlawing crimes against humanity. In other words, legal systems are dynamic and improve over time, a theme essential to understanding Justice and the Enemy.
The view put forth by Shawcross is roughly this: The system of military commissions established by the Bush administration to deal with terrorism suspects, while not ideal, sought to protect suspects' rights, and just as much those of the victims. Military commissions are not new in America, and have been effectively legitimised by Supreme Court decisions.
The heart of the problem, Shawcross continues, is the legal status of prisoners taken by the United States after 9/11. He unpacks the arguments over whether these prisoners are entitled to protection as legal combatants under the Geneva Conventions. Al Qaeda and Taliban fighters don't qualify as prisoners of war under Common Article 3 of the conventions, but there is some question as to whether they do so under their later Protocol I. America never ratified the protocol, while most United Nations members did, a source of lasting friction between Washington and the international community.
Shawcross also discusses the difficulties faced by President Barack Obama, who famously vowed to close the Guantanamo Bay detention camp within a year and place terrorism suspects before American civilian courts. The president was forced to backtrack when confronted with vigorous congressional opposition, partly because no one relished granting Khalid Sheikh Mohammed, the alleged mastermind of 9/11, the broad rights afforded under American law - rights he could have exploited to turn the trial into a political platform against his accusers.
Ultimately, Shawcross writes, a German in the dock at Nuremberg "would be astonished to learn of the rights, privileges, and entitlements, if he were suddenly transferred by time machine to the court in Guantanamo." Mr Bush's military commissions worked on a presumption of innocence, while the standard of proof required "probative value to a reasonable person", with these conditions reinforced in 2009. Moreover, no German at Nuremberg would have had "highly paid" lawyers representing them from the country of prosecution, as the Guantanamo prisoners have had from the United States.
The prickliness of the latter assertion betrays Shawcross's deeper allegiances. He has made no bones of his sympathies for the US, and for Mr Bush in particular. This has earned Shawcross enemies, and will push some of those enemies to affirm, unjustifiably, that his book is an apologia of American policy. In fact, Shawcross is critical of the American treatment of prisoners at Bagram airbase in Afghanistan and has doubts about Mr Obama's replacement of legal procedure with drone strikes.
Yet it's also true that Shawcross has shifted over time. His 1979 book Sideshow was a savage indictment of the Nixon administration's actions in Cambodia. His disapproval of the Carter administration and its shabby treatment of the Shah of Iran was no less perceptible in his 1988 book, The Shah's Last Ride. In 2000, he published Deliver Us from Evil: Peacekeepers, Warlords and a World of Endless Conflict, where he defended the United Nations and international humanitarian intervention, while also underscoring its discontents.
When Shawcross endorsed Mr Bush and the 2003 war in Iraq, his friends on the left cried foul. He craved establishment approval, they howled, and felt they had won their case when he wrote an official biography of the Queen Mother. This seemed terribly thin against a man who had long chronicled crimes ensuing from the abuse of power - crimes he, reasonably, identified more readily in Saddam Hussein than in Mr Bush. Shawcross believes strongly that the US is the prime global defender of democracy. That may be his flaw, but it is a flaw validly embraced against a relativism holding that, on human rights and values, all nations are equal.
Here is where Justice an the Enemy is so useful. All nations are guilty of crimes, but all are not equal in how they make use of those crimes to ameliorate their behaviour institutionally. In a post-9/11 world, America has wrestled with its values in search of optimal legal outcomes. It has succeeded in some ways and failed in others. But credit Shawcross for striving to guide readers through a moral labyrinth out of which he makes no definite claims to know the path.
Michael Young is opinion editor of the Daily Star newspaper in Beirut and author of The Ghosts of Martyrs Square: An Eyewitness Account of Lebanon's Life Struggle
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