"Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man.
But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength. The Prosecution’s case, at its close, seemed inherently unassailable because it rested so heavily on German documents of unquestioned authenticity. But it was the weeks upon weeks of pecking at this case, by one after another of the defendants, that has demonstrated its true strength. The fact is that the testimony of the defendants has removed any doubt of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they spoke. They have helped write their own judgment of condemnation.
But justice in this case has nothing to do with some of the arguments put forth by the defendants or their counsel. We have not previously and we need not now discuss the merits of all their obscure and tortuous philosophy. We are not trying them for the possession of obnoxious ideas. It is their right, if they choose, to renounce the Hebraic heritage in the civilization of which Germany was once a part. Nor is it our affair that they repudiated the Hellenic influence as well. The intellectual bankruptcy and moral perversion of the Nazi regime might have been no concern of international law had it not been utilized to goosestep the Herrenvolk across international frontiers. It is not their thoughts, it is their overt acts which we charge to be crimes. Their creed and teachings are important only as evidence of motive, purpose, knowledge, and intent.
Let me emphasize one cardinal point. The United States has no interest which would be advanced by the conviction of any defendant if we have not proved him guilty on at least one of the Counts charged against him in the Indictment. Any result that the calm and critical judgment of posterity would pronounce unjust would not be a victory for any of the countries associated in this Prosecution." – Justice Robert Jackson, July 26, 1946, Summation for the Prosecution, Nuremburg Major War Figures Trial
In 1987, I visited the Plötzensee Memorial Center in Berlin. In Plötzensee there is a small brick shed that served as the execution chamber. During Nazi rule nearly three thousand people were executed in that small shed. They were either hanged from the eight hooks that line the ceiling or beheaded using a guillotine. I still remember standing in that death room, looking up at the hooks (the guillotine had long vanished), with hushed silence all around me. The death room was small, almost claustrophobic, yet the thousands murdered there testified to the ruthless efficiency of the Nazi killing machine.
Plötzensee stands today in silent remembrance of the evil that touched this planet in the first half of the Twentieth Century. From the ashes of World War II and the Holocaust were born the great institutions of civilized society.
Faced with the horrors of Nazi atrocities, the victorious allies, the United States chief amongst them, decided to try the Nazi leaders involved in the Holocaust. The Nuremburg Trials laid bare for the world to see the Nazi crimes and, at the same time, the fairness and justness of the rule of law. But as Justice Jackson noted in his summation at Nuremburg, "fairness is not weakness."
The Nuremburg Trials became the foundation for much of international criminal law that followed. Both the Universal Declaration of Human Rights and the 1949 adoption of the Geneva Conventions owe much to the trials at Nuremburg. Beyond its legal ramifications, the trials were important in establishing the moral authority of the United States in the latter half of the 20th century. That moral authority found its most powerful expression during the Cold War – there was never any doubt during the decades of struggle between the Soviet Union and the United States about who was on the right side of history. John F. Kennedy carried that authority when he asked the world to "come to Berlin"; Adlai Stevenson carried that authority when he demanded an answer from Soviet Ambassador Zorin at the U.N. Security Council; and, Ronald Reagan carried that authority when he asked Mikhail Gorbachev to "tear down this wall."
During the 1990s, as Islamist extremism began to spread its claws over the globe, once again there was very little doubt that the United States was on the right side of this struggle and on the right side of history.
Then 9/11 happened. The entire world rallied to the side of the United States in the aftermath of the attacks. On September 12, 2001 the French publication Le Monde declared, "We are all Americans":
In this tragic moment, when words seem so inadequate to express the shock people feel, the first thing that comes to mind is this: We are all Americans! We are all New Yorkers, just as surely as John F. Kennedy declared himself to be a Berliner in 1962 when he visited Berlin. Indeed, just as in the gravest moments of our own history, how can we not feel profound solidarity with those people, that country, the United States, to whom we are so close and to whom we owe our freedom, and therefore our solidarity?
The beacon of freedom, justice and liberty was attacked on September 11, 2001 and the world rallied in support. There was little doubt on September 12, 2001 that the United States would battle this extremism and come out victorious. There was little doubt that the United States would defeat this enemy and defend the ideals of freedom, liberty, and Justice Jackson’s fairness.
That was then.
Five years later we have seen the willful destruction of a nation and its people over a fictional casus belli; we have seen the kidnapping and disappearing of individuals by the United States of America under the absurd sounding phrase "extraordinary rendition"; we have seen the rise of a modern variation of the gulag archipelago as American run secret prisons began to blanket the globe; we have seen the all too familiar justifications for torture posited by legal minds untethered by a moral compass; we have seen the detention of innocents on made-up charges presented in kangaroo courts; we have seen American torture practices roundly criticized by international human rights bodies; and we have seen the American President, George W. Bush, blithely declare that "we do not torture."
The Bush Administration has always committed or justified detention without charge and torture with a wink and a nod. However, last week it moved to legitimize its actions by writing torture into the law. The Bush Administration legitimized torture much in the same way other odious regimes have done in the past – they have redefined torture and then claimed that they do not "torture". So, small things like punching, kicking, cutting, and other thuggery are now not really torture unless you end up killing or seriously maiming the victim. They have also taken away the power of the Geneva Conventions by stating that the "Geneva Conventions" in effect do not exist for the purposes of defense against torture by the United States. Apparently, even if one could show that the United States violates the Geneva Conventions, the victim could not invoke the Geneva protections. They have left it up to the President to decide which methods constitute activity short of torture unless the method is a "grave breach" of the Geneva Conventions – how very civil!
Ultimately, the Bush Administration’s retreat from international humanitarian laws and customs is not about the ability of the Administration to legally justify its position. It is about what kind of a country the United States is and wants to be. It is about the moral authority of the United States and its people. By broaching this discussion on torture and how to try to walk on the edge of the law without gravely violating it, the Bush Administration has already abdicated the moral authority of the United States on the issue. The era that began with the trials at Nuremburg has come to an end. The United States has declared that it is no longer important to be fair or just – the goal is to get your way at any cost. It is no longer important to uphold our values in the face of an onslaught from an enemy that seeks to destroy them. It is no longer important to show the enemy’s evils for what they are by holding them up for all the world to see in a forum that demonstrates the very values that we seek to defend and in a forum that makes it clear to all the stark difference between us and them. Justice Robert Jackson’s words no longer matter in this new era.
Now that we have abdicated our moral authority, the real question is what exactly are we fighting for?
[Cross posted at Taylor Marsh]