William Shawcross offers a good account of the problems involved in prosecuting Islamist terrorists, although his defence of torture leaves a bad taste
In 1946, Sir Hartley Shawcross, the chief British prosecutor at the Nuremberg trials, gave a noble speech: "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.'"
That any notion of justice prevailed after the horror of the second world war was a miracle in itself. Churchill and Stalin wanted the summary execution of Nazi war criminals. The rule of law prevailed, however. The military court gave the 24 alleged war criminals a fair trial, acquitting three and condemning another seven to prison rather than death. World opinion remembers Nuremberg fondly, but deprecates the efforts of America to punish Islamists suspected of war crimes today.
Yet as Sir Hartley's son, William Shawcross, notes, if you had offered a Nazi a choice between Nuremberg then and Guantánamo now, he would have headed to the Caribbean at once. American military commissions grant defendants the right of appeal, oversight of their cases by civilian courts and the best legal representation – none of which the victorious allies allowed the defeated Germans.
Shawcross is a voice worth listening to in today's tongue-biting culture because he is not frightened to call things by their proper names. He has no difficulty in saying that radical Islam, with its vast conspiracy theories and cult of death, is as much a fascistic movement as the Nazis his father cross-examined. Al-Qaida and its imitators have no respect for the rules of war. "We do not have to differentiate between military or civilian," said Osama bin Laden. "As far as we are concerned, they are all targets." They do not fight in uniform or carry weapons openly. Under the original Geneva Conventions, no state would have been obliged to treat them as lawful combatants. After 9/11, the Bush administration still argued that to offer soldiers who fight out of uniform and use civilians as human shields the dignity and protections of POWs was to negate hard-won gains in the international regulation of conflict. Europe and much of the rest of the world disagreed. They had ratified a 1977 amendment to the Geneva protocols that said that soldiers who hid among civilians should still be protected. As Shawcross shows, it is hard to tell which side of the dispute best upholds the interests of the defenceless and the innocent.
If Shawcross had written Justice and the Enemy before Obama replaced Bush, liberal opinion would have denounced him as "neocon" – a badge I suspect he wears with pride. Since Obama came to power, however, the feverish debate has died away for depressingly practical reasons. Obama promised to close Guantánamo and suspend the Bush administration's detention and interrogation procedures. But the effort to treat enemy combatants as if they were suspects at the criminal courts proved too much for his administration. When an international terrorist was before jurors, how were those jurors to be protected from death threats? In March 2011, Obama lifted the freeze on military trials and acknowledged that Guantánamo would stay open for the rest of his presidency.
By then, he had taken a further step. Tiring of the appeals to the Supreme Court, he stopped arresting al-Qaida's leaders and began killing them in drone attacks. The European judges pushing the British government to the limit on foreign al-Qaida suspects – "You can't deport them, but you can't intern them either" – should heed the warning. Democratic states speak politely, but when their patience snaps they can astonish the lawyers with the ruthlessness of their response. I should not have to add that if Bush had launched drone attacks, world opinion would have gone wild. But because Obama was cool and "progressive" and America's first black president, the protests was muted. You can get away with murder if you have good PR.
Readers who rely on the liberal media for their opinions should seek out a copy of Justice and the Enemy. Opinions that are never tested are mere prejudices, and Shawcross presents a sober account of debates you are unlikely to hear. But his eloquence cannot hide his faults. Shawcross praises democracies for their capacity to reform, yet he sees no need for reform himself. He criticises Obama only when the president deviates from the policies of the Bush administration and praises him when he returns. In one mealy-mouthed section, full of euphemisms and hedges, he excuses waterboarding because the "enhanced interrogation technique" was "very likely" to produce valuable information. With that likelihood established to his satisfaction, he proceeds to lecture those who state bluntly that torture is torture on the need to adopt a more "nuanced" approach.
Nor does he understand how reform comes. He reserves much scorn for the practitioners of "lawfare" – the use of a country's legal system to undermine its defences. He describes how New York's Centre for Constitutional Rights declared that no "Muslim can receive a fair trial in any American judicial forum post-9/11", a statement that, if accepted, would have stopped any terrorist suspect being brought to justice. He remembers, as so many of us do, the moment when Amnesty International compared Guantánamo, where the Americans killed no one, to the gulag, where communists murdered 1.7 million. He might have added that Amnesty's eagerness to excuse religious reaction led to the departure of its gender officer, Gita Sahgal, for complaining about its alliances with those she believed to be brutish misogynists. A human rights organisation that prefers Islamists to feminists can't be trusted with the human rights of half the human race. But the vital point remains that its perfidies do not invalidate its arguments against torture.
Shawcross cannot separate the argument from the speaker; the man from the ball. As a result, he has produced a necessary book that might have been an essential one if the reader did not keep hearing the crunch of studs on shins.