Four years ago, the United States made ready to try Khalid Sheik Mohammed, the self-described mastermind of the Sept. 11 attacks, and four others at a military tribunal. The case against the five men, as outlined by William Shawcross in this brief but immensely useful book, was sweeping: “They were charged with terrorism, mass murder, providing material support for terrorism, conspiracy, the hijacking of planes, attacking civilian objects, causing serious bodily injury, and destroying property in violation of the laws of war. The charges included almost 3,000 individual counts of murder — one for each of the people killed in the 9/11 attacks — and listed 167 overt acts allegedly committed by the defendants in that assault.”

At his arraignment, Mohammed “seemed determined to seize responsibility for almost every well-known terrorist outrage that had occurred around the world in recent years . . . to show that he was far more important than bin Laden himself.” Later in 2008, Mohammed and the other defendants informed the military judge that “they wanted to confess and plead guilty,” because “the sooner they could be executed and become martyrs, the better.”

The court was having none of that, so the case limped along for another year until Attorney General Eric Holder announced that he was transferring it to a federal civilian court in New York City. The decision was applauded by many in Europe and on the left, but it raised legitimate apprehensions that the proceedings would be turned into a show trial by the defendants — Mohammed, Ramzi Binalshibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash — as well as criticism that rights extended to American citizens in court are not equally applicable to foreigners charged with acts of war against the country.

There matters stood until January 2011, when President Obama reluctantly signed the National Defense Authorization Act, which effectively barred the government from transferring prisoners from Guantanamo to the United States. Three months later, Holder announced (also reluctantly) that the trial would be held before a military tribunal at Guantanamo. Precisely when the trial will begin has not been announced, but presumably it will take place sometime this year, probably it will go on for a very long time, and undoubtedly Mohammed et al. will seize every opportunity to make a gaudy propaganda show out of it.

’Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed’ by William Shawcross (PublicAffairs)

Shawcross, a veteran British journalist and author of many well-regarded books, leaves no doubt that he favors the use of military courts in cases such as this, but he has “not sought to argue in this book that there is one single or simple way for the U.S. to bring justice to captured Islamist terrorists in this war,” rather that “the problems the U.S. government has faced since 9/11 in bringing its enemies to court are far more difficult than its critics, at home and abroad, are ever prepared to acknowledge.” He believes, though, that we have much to learn from the Nuremberg trials of 1945, in which the most prominent surviving Nazi leaders were brought to justice before a court that was at once military and fair.

Shawcross has personal knowledge of Nuremberg because his father, Hartley Shawcross — then 43 years old, newly elected as a Labor member of Parliament and promptly appointed attorney general of Great Britain and Northern Ireland — served as chief British prosecutor. He did so with distinction, but his son would be the first to aver that the dominant figure at Nuremberg was Robert Jackson, the associate justice of the U.S. Supreme Court whom President Harry Truman asked to serve as chief prosecutor. It was a brilliant appointment. Jackson’s words echo throughout this book, for it was he who set the tone for the trials and was largely responsible for the rules under which they proceeded.

In one important respect, the planners of Nuremberg faced a far more difficult task than do those in the American government and military today. The trials were conducted by three nations — Britain, the Soviet Union and the United States — that had differing expectations for them and starkly (in the case of the U.S.S.R.) different notions of justice. Joseph Stalin simply wanted to execute all the defendants and thousands of others to boot, while the other two nations wanted to run the trial along lines faithful to Western concepts of justice. Jackson made what Shawcross calls “one especially important point that resonates today: ‘You must put no man on trial under forms of judicial proceeding, if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.’ ”

Considering the difficulties it faced, “Nuremberg was a remarkable achievement.” Not merely did the trials proceed in an orderly, fair way, but they led to changes in international law, including the creation of “a set of guiding principles for the prosecution and punishment of war criminals and crimes against humanity” and “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.” Shawcross writes:

“At Nuremberg our civilization designed a vehicle to [anathematize] 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.”

Though George W. Bush’s declaration of a “war on terror” has been justifiably derided as rhetorical melodrama, the fact remains that we most indisputably are at war: a war of aggression that has been declared on us specifically, the rest of the West more generally. It is “a ‘new kind of war,’ involving primarily stateless actors who cared nothing for any rules of war,” and thus it renders existing rules of war, mainly the Geneva Conventions, virtually helpless. Shawcross quotes P. W. Singer of the Brookings Institution: “The prevailing rules of war, the Geneva Conventions, were written in a year [1929] in which people listened to Al Jolson on 78 rpm records and the average house cost 7,400 dollars. Is it too much to ask them to regulate a twenty-first-century technology like a MQ-9 Reaper that is being used to target a modern-day insurgent who is intentionally violating those laws by hiding out in a civilian house?”

Of course it is. The Geneva Conventions must be rewritten almost top to bottom to account for conflicts started by stateless rogues directing their murderous attacks not on armies but on innocent civilians. An Islamist terrorist is not an ordinary Muslim, though al-Qaeda and others have sought to portray him as such and have found eager lapdogs among alleged “human rights” organizations that seem incapable of drawing so basic a distinction. Efforts to bring Mohammed and his ilk to justice have nothing to do with prejudice against Muslims and everything to do with punishing international criminals. The point bears repeating: “Like the fascist ideology that the democratic world fought in the 1940s, the dogma of Al Qaeda and of the Shiite extremist dictators of Iran is despotic, ruthless, anti-Semitic, anti-Christian, and totalitarian.” It recalls nothing so much as Adolf Hitler’s Germany.


Nuremberg, 9/11, and the Trial of Khalid Sheik Mohammed

By William Shawcross

PublicAffairs. 257 pp. $26.99