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Bill Orton
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Judgment at Nuremburg: Eight of the 24 defendants at the war crimes trial held at Nuremburg's Palace of Justice during 1945 and 1946. (Front row, left to right) Hermann Goering, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel. (Second row, left to right) Karl Doenitz, Erich Raeder, Baldur von Schirach, Fritz Sauckel. Nineteen of the 24 major Nazi war criminals tried at Nuremburg were convicted of war crimes, with 12 sentenced to die, including four shown here (Goering, Ribbentrop, Keitel and Sauckel).

Shoot them, try them or let them go
by Bill Orton

July 22, 2008 -- This past week, an American Navy captain serving as judge in the military tribunal against Salim Hamdan -- Osama bin Laden's personal driver -- opened the first trial in the "War on Terror" and swiftly ruled that prosecutors cannot use evidence gathered in Afghanistan by interrogators under "highly coercive" conditions.

    Judge Keith Allred left open the question of whether prosecutors can use statements made by Hamdan at the military base in Guantanamo, where hundreds of detainees have been held for nearly seven years without charge, without trial, without rights.

    Captain Allred's decision to exclude evidence gathered from "highly coercive" interrogation may seem both logical and in keeping with America's longstanding traditions, but this one act represents a broader embrace of the rule of law than we've seen in seven years from the President and his Administration.

    Indeed, under the rulebook forged by Administration lawyers and led by the Vice President's own chief of staff, Hamdan could win his case being heard at Guantanamo and still be held indefinitely, as he cannot contest the classification made by President Bush that Hamdan and the other detainees are "illegal enemy combatants."

    Hamdan stands accused of aiding and abetting terrorism by having been Osama bin Laden's driver. Clearly, we know that the threat from bin Laden is real, but the crime for which Hamdan has been thrown into a hole over is that he drove bin Laden around, carried weapons in his vehicle and made money -- $200 a month -- doing it.

    . . . Salim Hamdan was a driver.

    Another detainee at Guantanamo recently in the news, Omar Khadr, is believed to have killed a U.S. soldier with a grenade during a firefight in 2001. He was 15 at the time of his capture and has been held at Guantanamo for six years.

    . . . Omar Khadr threw a grenade.

    Jump from Hamdan and Khadr to another criminal, a politician who led a brutal campaign that left 250,000 dead in the worst atrocities seen on European soil since World War II.

    On the day Hamdan's tribunal opened, police in Serbia arrested the former Bosnian Serb leader Radovan Karadzic, who now faces extradiction to the Netherlands to stand trial at the International War Crimes Tribunal for war crimes committed during the Bosnian civil war of the early 1990s.

    Karadzic faces 11 counts of genocide, war crimes, crimes against humanity and other atrocities committed between 1992 to 1996 in a brutal ethnic cleansing campaign that resulted in the deaths of 250,000 and the worst atrocities to occur on European soil since World War II.

    The former Serb leader can be thankful that the instruments of justice he shall face are based not upon Guantanamo, but another military tribunal that conducted its business sixty years ago in open courtroom at a palace in Nuremburg, Germany.

    It was at the height of World War II, in late 1943, that President Franklin D. Roosevelt sat at a formal dinner during the Big Three Conference in Teheran with British Prime Minister Winston Churchill and Soviet leader Joseph Stalin. After a long string of defeats at the hands of the Nazis, the course of the war had perceptibily turned and the Allied leaders began to look ahead at how they might bring justice down upon their enemies.

    Stalin, one of history's most bloodthirsty tyrants, proposed executing 50,000 to 100,000 German military officers. Just shoot them, he said. Believing that Stalin was joking, Roosevelt suggested that perhaps killing just 49,000 would do.

    Eventually, the Big Three -- joined by a free French government -- agreed to a set of trials, beginning with a tribunal to hear charges against two dozen major Nazi war criminals who stood indicted of crimes against peace, waging wars of aggression, war crimes and crimes against humanity.

    The trial opening in October 1945, just five months after Germany's unconditional surrender. After the reading of charges in Berlin, the trial moved to Nuremburg's opulent Palace of Justice, one of the few major buildings left standing in war-shattered Germany.

    The trial was unlike any the world had ever seen. Never before had so powerful an enemy surrendered without condition, thus allowing the victors complete freedom in the manner by which such a trial could be framed and who could be prosecuted.

    Never before had such crimes been alleged as those perpetrated by the defendants, who included the personal henchmen of Nazi fuhrer Adolf Hitler, the German military chiefs, and the bankers, industrialists and propoganda mouthpieces responsible for the most evil and brutal government in all of human history.

    Millions died under the Nazi terror. Thousands of leaders within the Nazi party could have stood trial for unspeakable crimes large and cruel.

    But the Allied powers began with a tribunal of just 24 defendants. Later, additional trials covered doctor and the military, but the initial round was to show the world the depth to which humanity had fallen.

    One defendant -- Robert Ley -- committed suicide before the trials began in October 1945.

    Another -- steel manufacturer Gustav Krupp -- was found medically unfit to stand trial. Efforts by prosecutors to substitute Krupp's son, Alfred -- who really ran the steel works and made liberal use of slave labor to keep the cannons flowing -- were rejected by judges at Nuremburg as being too close to trial for a fair defense to be waged.

    Three other defendants -- radio commentator Hans Fritzsche, politician and diplomat Franz von Papen and the banker and economist Dr. Hjalmar Schacht -- were aquitted.

    The remaining 19 were found guilty.

    Twelve of the Nuremburg defendants were sentenced to death by hanging. The firing squad was deemed too good for the condemned: Nazi party secretary Martin Bormann; Reich Law Leader Hans Frank; Interior Minister Wilhelm Frick, who authored the Nuremburg race laws that led to open persecution of Jews, gypsies and others; Air Marshall Hermann Göring, a right-hand man to Hitler at virtually every step; Army chief of staff Alfred Jodl; SS leader and concentration camp commandant Ernst Kaltenbrunner; military chief Wilhelm Keitel; Nazi ambassador and Foreign Minister Joachim von Ribbentrop; racial theory ideologist Alfred Rosenberg, later given control over conquered lands in Eastern Europe; slave labor program chief Fritz Sauckel; Austrian politician Arthur Seyss-Inquart, who helped run brutal occupation regimes in Poland and the Netherlands; and propogandist Julius Streicher, whose newspaper espoused a daily diet of racial hatred that helped to set the tone of evil during Nazi Germany's murderous rein of terror.

    Seven others at Nuremberg earned sentences ranging from 10 to 20 years (Admiral Karl Dönitz, Foreign Affairs Minister Konstantin von Neurath, Nazi youth movement leader Baldur von Schirach and architect Albert Speer) to life imprisonment (economist Walther Funk, Hitler's deputy Rudolf Hess and Admiral Erich Raeder).


The Süddeutsche Zeitung announces "The Verdict in Nuremberg." Depicted are (left, from top): Goering, Hess, Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick; (second column) Funk, Streicher, Schacht; (third column) Doenitz, Raeder, Schirach; (right, from top) Sauckel, Jodl, Papen, Seyss-Inquart, Speer, Neurath, Fritzsche, Bormann. Image from Topography of Terror Museum, Berlin.


    It is notable the the names of these criminals can still evoke strong memories and passions, more than 60 years after the Nuremburg trials. These two dozen prominent figures stood at the apex of power, guiding a nation that had risen from the ashes of defeat to become a preeminent economic and military power.

    . . . Salim Hamdan was a driver.

    But while Nazi Germany arose under the aggressive iron-fisted rule of the twisted, evil murderer Adolf Hitler, the truth is that Hitler could not have won power through political victory and later masterminded the murder of millions or achieved the conquest of virtually all of Europe without the two dozen defendants tried at Nuremburg.

    . . . Omar Khadr threw a grenade.

    It was the job of the judges and lawyers at Nuremburg to not simply pursue justice, but to also in so doing reveal for the world what precisely it was that the Nazis had actually done. In the setting of an open court and the comfort of a palatial building, horrors so unspeakable were laid forth that the young German translators used in the trial would at times burst into tears during testimony.

    When the Nuremburg trial of major war criminals was complete, it was painfully apparent through open court proceedings and transcripts and public testimony that the Nazis were not simply a government gone bad. These were criminals whose horrific deeds stood apart from all others as warranting universal shock and disgust.

    Now, as we must make do with sketches by a courtroom artist of Salim Hamdan's day at Guantanamo, it is striking to look upon photos and newsreel coverage of the major Nazi war criminals, but the disinfecting power of an open court was precisely the sort of justice that Nuremburg sought to deliver.

    Nuremburg set the example that the justice process can both determine guilt and also give the world a glimpse into our worst horrors and upon the faces of those who perpetuate terror and mayhem.

    As Radovan Karadzic awaits extradiction, he can be thankful for the legacy of that trial, although it took 50 years after Nuremburg to establish a permanent international war crimes tribunal to try such cases.

    The Bosnian Serb leader stands accused of genocide for masterminding the deadly siege of Sarajevo and the massacre of 8,000 Muslim men and boys at Srebrenica, scene of the worst atrocities on European soil since World War II.

    . . . Salim Hamdan was a driver.

    During the siege of Sarajevo that began in 1992, Bosnian Serb troops starved, sniped at and bombarded the population, controlling nearly all roads in and out. The siege was not officially over until February 1996. An estimated 10,000 people died in Sarajevo.

    The worst massacre of the war was in Srebrenica in 1995, when Serb troops led by Karadzic's military chief, Vladko Mladic, overran the U.N.-protected enclave sheltering Bosnian Muslims. Mladic's troops rounded up the entire population and took the men and boys away for execution.

    . . . Omar Khadr threw a grenade.

    By war's end in late 1995, an estimated 250,000 people were dead and another 1.8 million driven from their homes.

    Prosecutors said Karadzic was arrested while waiting for a bus, after eluding capture for 13 years.

    Though he escaped justice for over a decade, it is unlikely that Karadzic will have to wait that long for his own trial to begin. It will not even be the seven years that the U.S. took to open the first military trial in the war on terror. And it is unlikely that he will face coercive tactics like Hamdan, who, for much of his time at Guantanamo, was awoken every hour and moved to a new cell soas to break him down for interrogators.

    It took less than six months for Allied prosecutors at Nuremburg -- led by U.S. Supreme Court Associate Justice Robert Jackson -- to piece together the complicated evidence and legal theories that resulted in the 19 convictions and 12 death sentences of that first major war crimes trial.

    The Nazi defendants sat relaxed in open court, talking among themselves, many professing remorse at their crimes. Some defendants explained that they accepted both the conduct of the trial and the sentences meted out.

    The judgement at Nuremburg and the trial itself show that in 1946, our leaders were brave enough to put before an open court figures whose crimes represented the greatest atrocities of world history.

    Today, our president declares hundreds of "illegal enemy combatants" to have no rights and it takes seven years for Osama bin Laden's driver to get a day in court.



    How far have we fallen? Can anyone believe that the Guantanamo trials, coercive interrogations and indefinite detention will stand the test of time? Does the handling of the war on terror paint ours as a nation of laws? of fairness? of honor?

    . . . Salim Hamdan was a driver.

    It is morally wrong for the President of the United States to allow seven years to pass and multiple Supreme Court rulings go ignored while detainees rot in their holes at Guantanamo.

    . . . Omar Khadr threw a grenade.

    We're better than Joe Stalin, but just like the dinner conversation in Teheran, this Administration needs to find the courage in how it administers justice for those detained in the war on terror.

    I say either shoot them, try them or let them go.

-B



Bill Orton is a writer and historian living in Long Beach, California.