The Fog of War-Crimes Trials

The Fog of War-Crimes Trials
By JONATHAN MAHLER
Chief Prosecutor Robert Jackson opened the proceedings at Nuremberg not with a list of Nazi atrocities but with a tribute to the war-crimes court itself: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.”

The ensuing trials, though not without their flaws, largely fulfilled this lofty promise, standing as a monument to the rule of law and the very idea of conducting public trials for war criminals. As civilized people, we have a natural desire to see criminals held responsible for their actions. The desire is that much stronger in the case of large-scale crimes like genocides or terrorist attacks, which seem to demand not just accountability but a reaffirmation of the moral order — a public enumeration of what is right and what is wrong — that can be delivered only in a courtroom.

The hope once was that military tribunals at Guantánamo Bay would meet this need — if not provide closure on the Sept. 11 attacks, then at least enable a collective participation in the trials of their perpetrators. There were practical reasons to opt for tribunals over the federal courts, which were not designed to try combatants captured on the battlefield: a soldier couldn’t very well be expected to read a prisoner his rights. But there was something else, too. Trying terrorists as war criminals would send a powerful message to the world.

And yet the tribunals that just opened hardly have the feel of history in the making. They haven’t merited much discussion in the presidential campaign; nor are we a nation riveted by the trial of the first defendant, a former driver for Osama bin Laden named Salim Hamdan. Instead of a landmark case, one that serves as a resonant reminder of the gulf separating us from our enemies, we have detachment and ambiguity — not just about the extent of Hamdan’s guilt but also about the wisdom of the entire tribunal process as well as many other aspects of the prosecution of the war on terror.

It has certainly not helped matters that we are now almost seven years removed from 9/11 and the trials are just getting under way, having been tied up in procedural issues for the better part of the Bush presidency. Of course, this is how adversarial systems are supposed to work. Hamdan’s lawyers were simply carrying out their obligation to provide their client with a vigorous defense by questioning the lawfulness of the system by which he would be tried. There was precedent for this. When Franklin Roosevelt convened a military tribunal to prosecute a group of Nazi saboteurs captured on American soil during World War II, their government-appointed lawyer, Col. Kenneth Royall, challenged its lawfulness before the Supreme Court, which met in an emergency summer session and ruled unanimously that the tribunal was legal.

But because the Bush administration’s detention policies were so extreme and uncompromising, they have invited numerous challenges that have yielded an expanding thicket of rulings in favor of the detainees — Hamdi, Rasul, Hamdan, Boumediene — which have obscured the larger question of guilt or innocence. Instead of allowing the courts to sign off on its handling of combatants captured in the war on terror, the government argued that its principal detention facility, Guantánamo Bay, was beyond the jurisdiction of federal judges. Instead of asking Congress — the branch of government entrusted with defining illegal conduct — to authorize its military tribunals, the administration argued that the president had the inherent authority to unilaterally convene the trials. Even after the justices delivered a historic rebuke to the president, telling him that he needed Congressional approval for the tribunals, the administration pushed Congress not to depart too far from its trial procedures, opening the door for yet another successful Supreme Court challenge.

These and other policies have not only delayed for years the start of the trials and the turning of the wheels of justice; they have also undermined the moral force of the process by arming its critics. The men in the dock might very well be war criminals, the argument goes, but what about the policy makers and interrogators who violated their rights under the Geneva Conventions?

The administration’s detention policies have limited its choice of defendants as well. The prosecutor who first singled out Hamdan for the tribunals was drawn to him partly because he had never been tortured or rendered to a foreign country for interrogation. And yet it turns out that Hamdan endured enough coercion while in United States custody for the military judge presiding over his trial to bar the admission of a number of his statements to interrogators.

Even now, with the first defendant finally on trial, big questions about the process remain unresolved. The United States District Court judge James Robertson underscored this point when he bowed to the will of the president and of Congress last month, ruling that the trials at Guantánamo could move forward but cautioning that the battle over their legitimacy was by no means over: “Justice must be done there, and must be seen to be done there, fairly and impartially.”

If Hamdan is convicted, his lawyers will doubtless bring a fresh challenge to the tribunal system in federal court. The procedural wrangling will continue. The fog surrounding these war-crimes trials will thicken. And we will continue to be denied our opportunity to see justice served.

The enduring legacy of Nuremberg was an international movement to outlaw crimes against humanity — a movement that has gone a long way toward keeping order in a violent world. What will the legacy of these war-crimes trials be?

Jonathan Mahler is a contributing writer. His book “The Challenge: Hamden v. Rumsfeld and the Fight Over Presidential Power,” is out this month.