Global Policy Forum

By Noah S. Levitt

This past weekend in Seattle, Amnesty International USA convened a group of several hundred lawyers to assess the legacy of the International Military Tribunal in Nuremberg, sixty years later. The meeting focused on the principles behind the Nuremberg project, and surveyed the state of international justice now.

The United States led the way in the Nuremberg trials - underscoring the need for strict, aggressive adherence to the rule of law in the face of mass lawlessness. And since then, adherence to the rule of law has proved not only to be the touchstone of Nuremberg, but also the United States' best foreign relations tool. The U.S. Constitution is taken as a model by other countries who are constitution-building; America's grants of asylum offer haven to those who are fleeing the persecution of lawless regimes.

Until now: Now, I will argue, the Bush administration has very significantly undermined the Nuremberg legacy, by departing from the rule of law, and openly flouting international law.

Nuremberg's History: The Contemporaneous Controversy over the Trials

Most people know that the Allied powers -- United States, Russia, Great Britain and France -- convened the Tribunals in 1945 to try high-level leaders of the Nazi government. What is not as well known, however, is that the trials were fraught with controversy and behind-the-scenes politicking. Indeed, the trials almost did not happen at all.

In the United States, two radically opposing factions developed. In 1944, Treasury Secretary Henry Morgenthau proposed summarily executing many prominent Nazi leaders, and banishing others to far corners of the world. Under his proposal, German prisoners of war would be forced to rebuild Europe. Even Winston Churchill supported a version of this plan, preferring to simply shoot the leaders.

At first, President Roosevelt leaned in this direction, too. But Secretary of War Henry Stimson had a different idea: He pushed for some sort of tribunal, believing that the rule of law needed to be reinforced where the Nazis had mocked it. He considered the Nazi activities as war crimes that called for a judicial response - and therefore, his counter-proposal called for trying Nazi leaders in open court. Stimson eventually convinced Roosevelt, who gave his approval for the Tribunal only months before he died in April 1945. That approval paved the way for the U.S. to become the prime mover behind the trials.

How the U.S. Saw Nuremberg: The Victory of Law Against Lawlessness

Shortly after he assumed his new office, President Truman allowed Justice Robert Jackson, who was at the time sitting on the U.S. Supreme Court, a leave of absence so that Jackson could become Chief Prosecutor of the main Tribunal. Jackson was an inspired choice. Representing the U.S position, Jackson proclaimed, "This Tribunal is not the product of abstract speculation… It represents a practical effort to use international law to meet the greatest menace of our time ...We are able to stop this menace only when we make all men and nations equally answerable to the law."

The rest is history. The Tribunal indicted high-level defendants on charges of crimes against peace, war crimes, and crimes against humanity, which it defined as "murder, extermination, enslavement, deportation...or persecutions on political, racial, or religious grounds." At no prior time in history had the leaders of a nation been brought to trial for killing their own citizens. But at Nuremberg, within a year, 21 defendants were tried and 18 convicted.

Among the many breakthroughs, the tribunals established individual accountability for mass atrocities -- previously, only nations could be held accountable. They also furthered the concept of international law as a separate and enforceable set of legal standards --creating a way to find an individual liable for massive crimes even if he might be found innocent under domestic law.

The tribunals eliminated any immunity based on the official position of a defendant - giving birth to the concept of "command responsibility." They also created a legal basis for finding private actors - not just public officials - responsible for atrocities. And at a larger level, they established that due process needs to be followed even after mass atrocities. Even Churchill, when the Tribunal ended, admitted that his initial skepticism had been wrong.

After Nuremberg: A Period of Quiescence, with Some Progress

Yet, after the tribunals closed in 1948, there was an almost fifty-year period in which international justice seemed to disappear from among the world's priorities. Until the Statute for the International Criminal Court was drafted in 1998, there was no comprehensive international justice system in place. Still, progress has been made: For instance, the International Criminal Tribunal for Rwanda broke ground by establishing rape as a war crime that can be utilized in prosecutions.

Another post-Nuremberg development is the International Criminal Tribunal for the former Yugoslavia. The UN established this body to prosecute war crimes, specifically of individuals, not governments or corporate entities. Although frequently mentioned for serving as a soapbox for Slobodan Milosevic, during its decade-long existence the ICTY has expanded the boundaries of international humanitarian and international criminal law. And, as FindLaw columnist Anita Ramasastry discussed at the Nuremberg conference, the trial of prominent industrialists established that private economic actors can be prosecuted for violations of international law.

U.S. attorneys have drawn on this development to utilize the Alien Tort Statute, which designates that federal district courts have jurisdiction of any civil action by an alien for a tort committed in violation of international law. Although part of the Judiciary Act of 1789, the Statute was not used until the late 1970s when lawyers used it to bring to justice a Paraguayan police officer who kidnapped and tortured a defendant. To date, approximately 100 cases seeking justice for human rights abuses have been filed under this law. Some of these efforts include bringing charges against companies that collude with repressive governments in places like Burma and Nigeria.

Other speakers also cited the upcoming prosecution of Khmer Rouge leaders in Cambodia as a positive, albeit late, outgrowth of Nuremberg.

How the U.S. Is Betraying the Principles of Nuremberg

But the great irony, lately, is how far the United States has moved away from the sentiments expressed by Jackson about the importance of the rule of law in addressing radical challenges to our open, democratic way of life.

Greater U.S. and international cooperation - as I discussed in a prior column - might have prevented the Saddam Hussein trial from becoming a mockery. Situating the trial abroad could have addressed very serious security concerns - and opting for an international panel of judges could have mooted allegations of bias. As it is, the trial may be doing permanent harm to the possibility of bringing dictators and high-level human rights violators to trial. And the Saddam trial, of course, is not the only way the U.S. has fallen short - as conference participants noted. Gruesome new photos from the Abu Ghraib prison show the U.S. - once an enforcer of international law - is now a repeat violator of it.

Meanwhile, U.S. prisoners elsewhere have also been treated in ways that violate the law. Five United Nations experts recently called for the U.S. to either bring the detainees at Guantanamo Bay to trial or release them, in accord with international due process norms articulated in the International Covenant on Civil and Political Rights and other binding agreements. But the U.S. said no. Previously, the U.S. had refused even to allow the detainees access to attorneys until the Supreme Court's 2004 decision in Rasul forced it to do so.

Elsewhere, the U.S. continues the practice of extraordinary rendition: sending suspected terrorists to a reported CIA-run network of secret prisons in third countries to face interrogation - precisely because the U.S. could not legally conduct such interrogation on its own. Even the U.S.'s ally the European Union is currently investigating this practice, because of allegations that the CIA moved detainees through European airports.

Domestically, the Administration has tried to evade the application of the law to its detainees - even when they are American citizens such as Yaser Hamdi and Jose Padilla. Hamdi was claimed to be highly dangerous - then the government agreed to release him, without charges, as long as he agreed to be deported to Saudi Arabia. Padilla was claimed to be a "dirty bomb" conspirator, then charged with separate crimes - with the change of facts dramatic enough to trouble even the conservative U.S. Court of Appeals for the Fourth Circuit.

In short, as one of the conference participants suggested, the U.S. - seeing 9/11 as primarily an intelligence failure - has vowed since then to gather intelligence by any means necessary, legal or not. No wonder, then, that the latest headlines have revealed not only the CIA-run network of secret prisons, but also the NSA's Presidentially-authorized program of warrantless wiretapping.

Nuremberg's Lesson: Voices Must Be Raised in Favor of Abiding by the Law

As I noted above, the Nuremberg trial might never have occurred were it not for vocal rule-of-law advocates like Henry Stimson. President Roosevelt might well have chosen, instead, to impose unilateral power by executing the Nazi leaders and using prisoners of war to rebuild Germany along American economic interests. Yet, thankfully, voices within the government stood against that approach, and fought for Americans to remember that the country was built on laws, not the exercise of absolute power. When those voices won out, the result was a high-water mark in international legal development.

Now, sixty years later, America is exerting its power once again over a defeated country, and it appears to have forgotten that the rule of law must guide each step of the way. Fortunately, though, there are voices - on both sides of the aisle -- that recall Secretary Stimson. Conservative activists, too, have begun to call for the system of checks and balances to be used to halt the White House's power grab.

And within the federal government, some are speaking out: At the end of January, Newsweek profiled several senior Justice Department lawyers who challenged the White House's power grab. And the February 27 edition of the New Yorker describes how a former Navy General Counsel warned the Pentagon as early as 2002 that legal arguments advanced by Bush administration officials seeking to avoid international prohibitions against torture were wrong, and could lead to the abuse of detainees. We are also beginning to hear a few Republican voices in Congress - such as those of Senator Pat Roberts and Representative Heather Wilson -- calling for oversight of some of the Executive Branch practices, such as the legality of the NSA's warrantless wiretapping.

One of the core lessons of Nuremberg was this: When we are confronted by a mass atrocity - such as a genocide or a massive terrorist attack - which mocks the notion of legal norms, the best reaction is to reinforce, not reject, the importance of those norms, both at home and abroad. President Bush, who has repeatedly sought to exempt his Administration from any legal oversight or limitations, must be reminded of this lesson, especially from those within his own party. To ignore it would be to make a mockery of America's history.