BOOK REVIEW: ‘Justice and the Enemy’: Precedents for Trying Khalid Sheikh Mohammed Explored by William Shawcross, Son of Nuremberg Prosecutor

  • Reviewed by David M. Kinchen
BOOK REVIEW: 'Justice and the Enemy': Precedents for Trying Khalid Sheikh Mohammed Explored by William Shawcross, Son of Nuremberg Prosecutor

Events move faster today than they did in the 1940s — or do they? In the case of eight Nazi saboteurs sneaking into the U.S. in 1942 and the trial of Nazi war criminals in Nuremberg in 1945-47 not so much, says William Shawcross in “Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed” (PublicAffairs, 256 pages, index, notes,  $26.99).

Shawcross, a British journalist and the son of Britain’s lead prosecutor at Nuremberg, provides precedents for a military commission for trying imprisoned senior Al Qaeda plotter Khalid Sheikh Mohammed (KSM). In today’s complicated world the trial of the 9/11 mastermind and admitted murderer of American journalist Daniel Pearl  raises issues— logistical, legal, and ethical—emblematic of the challenge posed to all nations and the international community.

Shawcross elegantly considers the issues surrounding the pending trial of Khalid Sheikh Mohammed and asks: How does society deal lawfully with the lawless?

Since the Nuremberg Trials, lawful nations have struggled to impose justice around the world, especially when confronted by tyrannical and genocidal regimes. But in Cambodia, the USSR, China, Bosnia, Rwanda, and beyond, justice has been served haltingly if at all in the face of colossal inhumanity. International Courts are not recognized worldwide. There is not a global consensus on how to punish transgressors.

William Shawcross

William Shawcross
Shawcross ponders a federal trial which would reward a confessed war criminal like KSM  the rights of a U.S. citizen to which he is not entitled. Or would a military tribunal be appropriate — legally, militarily, or morally?     On pages 65-70 Shawcross discusses the 1942 secret military tribunal convened by President Franklin D. Roosevelt that tried
eight German saboteurs who landed on Long Island and Florida that resulted in the unanimous Supreme Court decision  Ex parte Quirin, 317 U.S. 1 (1942). Ex Parte Quirin  upheld the jurisdiction of a United States military tribunal over the trial of several Operation Pastorius  saboteurs in the United States. Quirin has been cited as a precedent for the trial by military commission of any unlawful combatant against the United States. (An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney. The term ex parte is used in a case name to signify that the suit was brought by the person whose name follows the term.)

The eight men involved in the case were Ernest Peter Burger, George John Dasch, Herbert Hans Haupt, Heinrich Heinck, Edward Kerling, Herman Neubauer, Richard Quirin and Werner Thiel. Haupt was a U.S. citizen.

All were born in Germany and all had lived in the United States. All returned to Germany between 1933 and 1941. After the declaration of war between the United States and the German Reich in December 1941, they received training at a sabotage school near Berlin, where they were instructed in the use of explosives and in methods of secret writing. They were captured in June 1942, soon after they landed in New York and Florida.

President Franklin D. Roosevelt convened a secret military tribunal on July 2, 1942 which sentenced the eight men to death. They were represented by counsel. Dasch and Burger were given prison terms — and were later released —   and  the remaining six were executed by electrocution on August 8, 1942 in Washington, D.C. Dasch and Burger were released from prison in 1948 and deported to Germany. Dasch spent the remaining years of his life trying to return to the U.S. One time, a visa application was sent to J. Edgar Hoover by the State Department on Dasch’s behalf. Hoover stated that the idea of giving Dasch a visa was “outrageous” and promptly denied it. Dasch died – still in Germany – in 1992.

Justice was speedy in those days! By the way, I always point out in any reference to J. Edgar Hoover in World War II that he opposed the internment of about 112,000 Japanese-Americans ordered by FDR through Executive Order 9066, issued Feb. 19, 1942. It was a rare alliance of Hoover and  civil libertarians, as well as First Lady Eleanor Roosevelt, who publicly opposed the internment, which I consider to be a racist decision.

Shawcross draws heavily upon the Nuremberg War Crimes Tribunal, which has drawn criticism from revisionist historians who label it “Justice of the Victors”. Books about Nuremberg could fill dozens of shelves, but Shawcross provides the essentials in his book. The presiding judge at Nuremberg was U.S. Supreme Court Associate Justice Robert Jackson  who, in 1942,  wrote a concurring opinion on Ex Parte Quirin upholding the President’s right to convene military tribunals, which Shawcross says influenced President George W. Bush’s views on the subject.

Unlike so many British and European journalists, Shawcross is essentially pro-American. On page 150 he discusses the vitriolic anti-American and pro-Islamic statement from a group called the Center for Constitutional  Rights (CCR) in response to a federal court verdict in the New York City trial of Tanzanian national Ahmed Khalifan Ghailani, the first Guantanamo prisoner brought to the U.S. to be tried in a federal court. The trial of Ghailani is often considered to be a precedent for the trial of KSM, although the Obama administration still hasn’t decided what kind of a trial KSM will get.

Ghaliani was accused of having been part of the Al Qaeda’s deadly bombings of the U.S. Embassies in Dar es Salaam, Tanzania and Nairobi, Kenya in 1998. Convicted and sentenced to life imprisonment, Ghaliani’s trial was blasted by the far left CCR: “CCR questions the ability of anyone who is Muslim to receive a truly fair trial in any American judicial forum post 9/11….If anyone is unsatisfied acquittal on 284 counts, they should blame the C.I.A. agents who tortured him.”

Shawcross calls the CCR statement “worse than nonsense — it was a deliberate anti-American smear from a powerful left-wing organization…”   The CCR is not the only organization practicing what he calls “lawfare”  which Shawcross defines (Page 103) as “the use (and sometimes misuse) of law as an asymmetrical weapon of war”; the American-based Human Rights Watch (HRW), founded in 1988 by PublicAffairs co-founder Robert L. Bernstein, who has disavowed many of its recent views, also comes in for criticism.

 In an article in the New York Times in October 2009, Bernstein stated that the HRC had abandoned fairness in the Middle East “and was seeking to turn Israel into a pariah state.”  Shawcross notes (Page 198) that between 2000 and 2010  the HRW published more reports “on abuses of human rights in Israel than in Iran, Libya, Saudi Arabia, Syria and Algeria.”    The HRW blasted the capture and killing of Osama Bin Laden last year, along with reliable anti-Israel and anti-American academic Noam Chomsky who denounced Bin Laden’s killing as “the political assassination”  of an “unarmed victim.”  Shawcross notes that Bin Laden considered Chomsky and Jimmy Carter two Americans that Bin Laden liked “to quote with approval”.

Shawcross also discusses (in Chapter 6, beginning on Page 125)  the case of the accused Fort Hood, Texas shooter, Maj. Nidal Malik Hasan, who on Nov. 5, 2009 killed 13 and wounded 30 at the gigantic army base in central Texas. Rather than exhibiting “Islamophobia” — whatever that is —  the U.S. Army repeatedly ignored warning signs that Dr. Hasan, an army psychiatrist, had gone over to the dark side of radical islam.  Fort Hood Chief Circuit Judge Colonel Gregory Gross has set a trial date of March 5, 2012, for Hasan’s court martial, where he faces the death penalty if unanimously convicted by a 12-member jury of U.S. military officers.

Addressing the red herring subject of “Islamophobia” Shawcross points out (on Page 172) that “according to the FBI hate crimes statistics, from 1996-2009 not one Muslim was killed in an anti-Islamic or Islamophobic in the United States. By contrast, in recent years Christians have come under increasingly brutal assault from Islamist extremists in many Muslim countries, including Iraq and Egypt.”
  Shawcross has written an outstanding book that should be read by anyone concerned about the lack of concern by the mainstream media and the current administration on radical islamists and their fellow travelers in this country. Shawcross has pretty much dismissed Great Britain and Europe holding any discussion on that danger, since it’s considered very politically incorrect to address Islamist issues.

About the author

William Shawcross is a distinguished journalist who has covered international conflicts and conflict resolution, and bestselling author of many books including Sideshow: Kissinger, Nixon, and the Destruction of Cambodia; The Quality of Mercy: Cambodia, Holocaust, and Modern ConscienceDeliver Us from Evil: Warlords, Peacekeepers, and a World of Endless ConflictAllies, and The Queen Mother. He is a chairman of Article 19, a London based charity and pressure group which defends the rights of free expression enshrined in Article 19 of the Declaration of Human Rights; a board member of the International Crisis Group; and was a member of the High Commissioner for Refugees’ Informal Advisory Group from 1995-2000.  His website:


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