Justice and the Enemy Read online

  Four hours later, after describing in detail the alleged crimes of the Nazis, which he said, “have bathed the world in blood and set civilization back a century,” he concluded by saying that that same civilization “does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international Law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have ‘leave to live by no man’s leave, underneath the law.’” 28

  Over the next 218 days, the evidence against the accused was presented and examined in horrific detail. Thirty-three witnesses were called and examined by the prosecution. Sixty-one witnesses and nineteen defendants testified for the defense. The entire proceedings were conducted, simultaneously translated, and recorded in four languages.

  There was one moment of which much has been written—Jackson’s cross-examination of Goering. This was not a success. Goering’s personality was as large as his frame. He was a wicked man but he was compelling and in some remarkable, sinister way, he came to overshadow the dock if not the larger court. The alternate judge, Norman Birkett, put it like this: “Throughout this trial the dead Hitler has been present at every session.... But Goering is the man who has dominated the proceedings and that, remarkably enough, without ever uttering a word.” 29

  His ability and his agility became clear as soon as Jackson began his cross-examination. My father later said, in a tribute to Jackson, that Goering should have been cross-examined only by following a basic rule: never ask a question without knowing that there is only one inescapable answer—usually a “yes” or a “no”—“and by that process to lead the witness up to the last fatal but inescapable response.” That was how things were done at the criminal bar, where my father had trained. But Jackson had never been a criminal lawyer—his strength was rather advocacy and argument. In this confrontation he saw himself as representing liberal democracy seeking to vanquish the personification of Nazi tyranny. Instead of sticking to specific facts, he delved too deep into history and opinion and gave Goering the chance to digress and discourse at will. Culpably, the trial’s four judges did not come to Jackson’s aid and stop the defendant’s long obfuscations. In the end the British team had to take up the cross-examination and spent that night, in the words of one of its members, “digging up documents signed by Goering personally showing him to be a friend of Himmler, a bandit, and a thug.”

  My father’s view was that Jackson’s failure with Goering “was due to his intellectual honesty. His whole case was to expose the evil philosophies with which the Nazis had sought to dominate the world: this inevitably involved him in putting matters of opinion in an argumentative rather than a factual exchange.” He faulted the bench for allowing Goering such license. 30

  My father made his closing speech to the tribunal on July 26 and 27, 1946. Toward the end, he said that in one way the fate of the men in the dock meant little: their personal power for evil was forever broken. Yet it was crucial that the trial stand as a milestone in the history of civilization, asserting that the rights of the individual transcended the might of the state. “States may be great and powerful. Ultimately the rights of men, made as all men are made in the image of God, are fundamental.... And so, after this ordeal to which mankind has been submitted, mankind itself—struggling now to re-establish in all the countries of the world the common simple things—liberty, love, understanding—comes to this Court and cries, ‘These are our laws—let them prevail.’”

  He ended by asking the court to remember the story of Dubno, which I quoted above: “but not in vengeance—in a determination that these things shall not occur again. ‘The father’—do you remember?—‘pointed to the sky and seemed to say something to his boy.’”

  The verdicts were announced on October 1, 1946. Some mercy was shown, despite the dissent of the Soviet member of the tribunal. Three defendants were acquitted altogether. Seven were sentenced to long terms of imprisonment and twelve were sentenced to death by hanging. The death sentences were carried out on the night of October 16, 1946, on all except Goering who cheated the hangman by crushing a vial of cyanide between his teeth.

  Nuremberg was a remarkable achievement. The tribunal was both experimental and contested—as was shown by Churchill’s support for summary executions of the Nazi high command, the appetite for vengeance expressed by the American and British publics, and above all the unscrupulous attempts by Stalin to make the trials into a show of propaganda and vengeance.

  Justice Jackson believed that the conviction of the Nazi leaders for waging aggressive war would make a crucial contribution to the development of international law. It may have failed in that, but the Trial of the Major War Criminals Before The International Military Tribunal was a vital component in the agonizing process of rehabilitating Germany after World War II. Turning a vicious—albeit defeated—fascist enemy into a responsible democratic ally was an extraordinary accomplishment. Later my father reflected: “Now [that] the principles established by the Nuremberg trial have become an accepted part of international law, the time has come to put all the terrible factual details behind us. In the years since these awful things were done, new generations have grown up in Germany unstained by any guilt borne by some of those that preceded them.” 31

  Nuremberg, in the words of Rebecca West, “embodied the rhetoric of progress.” 32 It is sometimes presented in too roseate a light, as ushering in a new legal order. It did not do that. However, it was followed by further international actions outlawing crimes against humanity; in December 1946, a general assembly resolution of the newly formed United Nations affirmed Nuremberg’s charter and judgment, and then in 1948 the U.N. adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Nuremberg was also instrumental in establishing the protection of civilians as a core component of international law in judging the behavior of state and non-state actors—a key element of the Fourth Geneva Convention of 1949. In 1950 the tribunal also introduced a set of guiding principles for the prosecution and punishment of war criminals and crimes against humanity, today considered to be authoritative law. It created the precedent that is now taken for granted: that the perpetrators of atrocities and war crimes should still, upon the cessation of hostilities, be entitled to a free and fair trial.

  And then there was its educational impact. The vast trove of documents amassed for the trial were essential in establishing the awful realities of Nazi rule. After the Eichmann trial in Israel, Hannah Arendt wrote, “Even today, our knowledge of the immense archival material of the Nazi regime rests to a large extent on the selection made for purposes of prosecution.” 33 In the end, the historian Gary Bass points out, at Nuremberg, “America and Britain managed to produce something extraordinary. We have created nothing to compare with it since.” 34

  At Nuremberg our civilization designed a vehicle to anathemize men imbued with evil. But evil is eternal and re-invents itself in every age. In the 1940s the world confronted and, with immense sacrifice, defeated the horror of fascism. The scale and the nature of the threats are different today but the ideology of Al Qaeda and its Islamist associates shares attributes with Nazism; it, too, is totalitarian, and it, too, has anti-Semitism at its core. In the case of Al Qaeda that intransigent hatred is extended to all “infidels.” Just as Hitler planned a “thousand year Reich,” so the Islamists call for a global caliphate in which they and their laws prevail absolutely and endlessly.

  One can do worse than end this chapter with more words from Justice Jackson on the evils of the regime that the accused at Nuremberg had served. “Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.”

  Chapter 2

  CRIMES

  ON THE AFTERNOON OF SEPTEMBER 11, 2001, Khalid Sheikh Mohammed sat before a screen in Karachi. He was waiting to
see the mass homicides he had for years been planning against the United States. On schedule they happened.

  Khalid Sheikh Mohammed (or KSM, as he is often, if somewhat too colloquially, called) said later that he was at first disappointed because the towers of the World Trade Center did not instantly collapse when hit by flights American Airlines 11 and United 175, the planes whose hijacking and transformation into missiles filled with men, women, and children he had meticulously organized. Then they did crumble and he rejoiced. A third plane hit the Pentagon as planned. Only the fourth flying bomb, intended for the U.S. Capitol, failed to reach its target and crashed into a field in Shanksville, Pennsylvania.

  While Khalid Sheikh Mohammed celebrated in Karachi with his Al Qaeda cohorts, 2,973 people died in these attacks. The scale of the assault was unprecedented on American soil; the scope of Al Qaeda’s imagination and ambition was terrifying. America was stunned, grief-stricken, and angry. That evening in Washington, President Bush answered Al Qaeda’s act of war with his own vow: “These acts of mass murder were intended to frighten our nation into chaos and retreat. But they have failed. Our nation is strong. A great people has been moved to defend a great nation.”

  Since that time, the United States and its allies have been engaged in a fierce struggle with Al Qaeda and its affiliates—a worldwide jihadist enemy, with a presence in over sixty countries, that has constantly metamorphosed to meet new attempts by the Western world to defeat it.

  As the long search for bin Laden showed, Al Qaeda’s leaders have been hard to find, let alone to apprehend and bring to justice. Suffice it to say that they have committed—and have often bragged about—mass murder in many parts of the world, not just the United States.

  In his closing address to the jury at the Nuremberg Tribunal, Justice Jackson said that it was his duty “to try and lift this case out of the morass of detail with which the record is full and put before you only the bold outlines of a case that is impressive in its simplicity.... I must leave it to experts to comb the evidence and write volumes on their specialties, while I picture in broad strokes the offences whose acceptance as lawful would threaten the continuity of civilization. I must, as Kipling put it, ‘splash at a ten-league canvas with brushes of comet’s hair.’” 1

  So it is with the crimes of Al Qaeda and its associates.

  To understand the background of Al Qaeda’s attack upon global peace and security in general and the West in particular, it is important to understand the main ideological influences on modern Islamism.

  I use the phrase Islamism to connote a collection of ideologies united by the belief that Islam is both a religion and a political system, and that Muslims have a duty to seek unity both religiously and politically. Radical Islamism regards the secular governments in countries with Muslim majorities as creations either of “infidel” colonial powers or of misguided Muslims imitating Western models. To Islamists, any state that is not based exclusively on Islamic law, or sharia, is both “impious” and “illegitimate.” Thus it has no claim on the loyalty of Muslims, who have a duty to resist and combat it. Islamism is also characterized by the belief that Muslims have a duty to spread Islam throughout the world. And many, though not all, Islamists espouse such proselytization by force when they consider that necessary. It must be repeatedly stressed that the Radical Islamists are a tiny minority of Muslims. The vast majority of Muslims seek to live honorable, decent lives—and in many parts of the world they have to do so in difficult, sometimes dangerous, circumstances. Indeed, they are often the first to be killed by Radical Islamists.

  An important part of the story begins in Egypt, the fulcrum of the Arab world, where, as this book was being completed, history was starting again. In early 2011, a successful rebellion against the autocratic president of Tunisia led to a popular uprising on the streets of Cairo against the thirty-year dictatorship of Hosni Mubarak. Mubarak, a longtime U.S. ally, fell and by March 2011 massive demonstrations had spread fast across borders, threatening many authoritarian regimes throughout North Africa and the Middle East. It was a time of optimism, disappointment, and uncertainty.

  Despotism has long been the prevailing characteristic of governance in Arab and indeed other Islamic societies. In response to the mass demonstrations in Cairo, one might recall the great lexicographer Edward William Lane’s description of life under Muhammad Ali, the Ottoman pasha of Egypt in the early nineteenth century:Most of the governors of provinces and districts carry their oppression far beyond the limits to which they are authorized to proceed by the Basha; and even the sheikh of a village, in executing the commands of his superiors, abuses his lawful power. Bribes and the ties of relationship and marriage influence him and them, and by lessening the oppression of some, who are more able to bear it, greatly increase that of others. But the office of a sheikh of a village is far from being a sinecure. At the period of when the taxes are demanded of him, he frequently receives a more severe bastinadoing than any of his inferiors; for when the population of a village does not yield the sum required, their sheikh is often beaten for their default.... All the fellaheen [peasants] are proud of the stripes they receive for withholding their contributions.... Ammianus Marcellinus gives precisely the same character to the Egyptians of his time. 2

  The scholar Reuel Marc Gerecht pointed out that this pattern of authority was hard to shake. Throughout the twentieth century and early into the twenty-first, Egypt remained one of the most effective dictatorships in that part of the world, best known for “Oriental despotism.” 3 It is in that context that modern Islamist thought and methods have grown.

  Sayyid Qutb is often described as the father of today’s Islamist movement, inasmuch as his work was the first to adapt the pre-existing sociopolitical elements of Islam to a modern ideological construct. Qutb came of age in British Egypt in the 1920s, and was profoundly influenced by the growing hostility to Western colonialism and modernity that characterized this period in Egyptian history. He was thus involved early in the work of the Muslim Brotherhood, an extremist network of Muslim charities and organizations formed in 1928 by Hassan al-Banna.

  Al-Banna sought to purify Egypt according to Islamic scriptures and to expel the infidel colonial powers, a platform that attracted considerable support. The Brotherhood’s radical demands included the destruction of any Western concept of justice, the imposition of sharia law, and the creation of pure Islamic regimes. Sayyid Qutb soon became one of the Brotherhood’s most prominent members, and helped to influence its turn towards violent extremism in the years that followed.

  Qutb advanced such radical ideas in his own work, writing that Western “civilization that is based on science, industry and materialism . . . is without heart and conscience.... It sets forth to destroy all that humanity has produced in the way of spiritual values, human creeds, and noble traditions.” Islamism, by contrast, was both the means and the goal of life on earth. 4

  Although the Nazis were fundamentally irreligious, they and the Brotherhood both rejected bourgeois liberalism and democracy; both were opportunistic, cynical, and totalitarian. During the Second World War, the Brotherhood and other Arab Islamists sought a German victory, hoping that after the British were defeated, the Brotherhood itself could seize power in Egypt. The collaboration between the Third Reich and Muslim extremists was important—the Grand Mufti of Jerusalem, Amin al-Husseini, delivered sermons over Radio Berlin that were broadcast throughout the Middle East. In one such 1944 oration, the Mufti channeled Hitler by exhorting his audience to “Kill the Jews wherever you find them. This pleases God, history and religion.” 5

  Nazi Germany’s defeat thwarted the Brotherhood’s ambitions and so the group concentrated on terrorism in order to undermine British rule and establish the supremacy of Islam—a modus operandi that spread as political Islam emerged in various parts of the Muslim world. Islamists began to concentrate hatred on the newly-created Jewish state of Israel, which they considered an abomination and an imperialist assault on Islam. Their
hatred grew as well for America, Israel’s ally and the apogee of Western decadence and sin.

  In Egypt, Islamists murdered many senior officials, including two Egyptian prime ministers. In 1949 the government counterattacked and al-Banna was killed. That was the year after Sayyid Qutb was awarded a two-year scholarship to the United States, designed by the Egyptian authorities in part to get him out of the country. His personal impressions of the United States during his two-year stay in Colorado are indicative of the distaste for America immanent in much of Islamist thought.

  It is hard to imagine many places more demure than Colorado in the late 1940s, but Qutb viewed it as a modern-day Sodom. Haircuts and sports were bad enough but jazz was worse: “music that the Negroes invented to satisfy their primitive inclinations, as well as their desire to be noisy.” Worse still was the “animal-like” mixing of the sexes—which encouraged American women’s conspicuous sexuality. “The American girl is well acquainted with her body’s seductive capacity. She knows it lies in the face, and in expressive eyes, and thirsty lips. She knows seductiveness lies in the round breasts, the full buttocks, and in the shapely thighs, sleek legs—and she shows all this and does not hide it.”6 In other words, the Americans were “shocking,” a people who were “numb to faith in religion, faith in art, and faith in spiritual values altogether.” The academic Benny Morris later pointed out that there was much in common between the ideologies behind the September 2001 attacks and the words of Qutb: “The white man, whether European or American, is our first enemy. We must.. . make [this] the cornerstone of our foreign policy and national education. We must nourish in our school age children sentiments that open their eyes to the tyranny of the white man, his civilization, and his animal hunger.” 7

  In 1948 Qutb published his first major religious work, Social Justice in Islam, and insisted that the true Muslim had to cut himself off from the corruption of the world and be totally obedient to Allah. Qutb left the civil service and became a senior member of the Muslim Brotherhood, editing the Brotherhood’s principal newspaper and serving on its governing council.