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Obama Does Not Understand Nuremberg

June 21, 2008
by Aaron Goldstein

One of the obvious implications of last week’s Supreme Court decision, which granted inmates at Guantanamo Bay the right of habeas corpus to appeal their detention, is that if Osama bin Laden were captured alive by U.S. forces, the al Qaeda founder could end up in a U.S. civilian court afforded all the protections of law abiding American citizens.

When Barack Obama was asked about this on June 18th, he suggested that Osama could be adjudicated in the manner of the Nazi War Crime Tribunals at Nuremberg. Obama argued, “I think what would be important would be for us to do it in a way that allows the entire world to understand the murderous acts that he’s engaged in and not to make him into a martyr and to assure that the United States government is abiding by the basic conventions that would strengthen our hand in the broader battle against terrorism.”

The following day, John McCain replied on his website giving Obama a short history lesson.  McCain wrote, “Unfortunately, it is clear Senator Obama does not understand what happened at the Nuremberg trials and what procedures were followed. There was no habeas at Nuremberg and there should be no habeas for Osama bin Laden….By citing a historical precedent that does not include habeas, he sends a signal of confusion and indecision to our allies and adversaries and the American people.”

It also signifies that Barack Obama does not understand 20th Century History.  Yet this should hardly come as a surprise.   Up until a few weeks ago, Obama thought it was the Americans, not the Soviets, who liberated Auschwitz. 

How did the Nuremberg Trials come about in the first place?   They came about when Nazi Germany surrendered to the Allied powers in May 1945.  The last time I checked Osama bin Laden is the founder of al Qaeda, a terrorist organization and not the head of state or head of any government.  How does an entity that is not a nation state (although harbored by some) enter into an instrument of surrender?  Terrorist organizations like al Qaeda have changed the terms of war as we understand it.

Nuremberg was prosecuted and adjudicated by an international team consisting of lawyers and judges from the United States, Great Britain, France and the Soviet Union.  If Obama thinks Osama has the right to be heard in a U.S. civilian court does he also think we should involve lawyers and judges from other countries into the proceedings?

Or does Obama think Osama should be tried in an international forum like, well, Nuremberg?   The Allies chose to conduct the tribunals in Nuremberg because that is where the Nazi Party was founded.  Under those circumstances, wouldn’t be more appropriate for bin Laden to be tried in Kabul rather than in a civilian court in New York City?

It also must be remembered the Nuremberg trials were not universally praised at the time they occurred.  Many questioned the legitimacy of such a proceeding.   The Chief Prosecutor for the United States was Robert H. Jackson, who took a leave of absence as an Associate Justice of the Supreme Court to participate at Nuremberg.  In May 2003, when the Robert H. Jackson Center was being dedicated in Jamestown, New York, the late Chief Justice of the Supreme Court William Rehnquist gave the address.  Rehnquist, who began his legal career as a clerk for Jackson at the Supreme Court after graduating from law school at Stanford University, drew attention to the criticism of the proceedings.  He pointed out that there were objections to a Supreme Court justice acting as a prosecutor.  Jackson’s colleague, William O. Douglas, thought Jackson’s appointment violated the separation of powers and that Jackson ought to resign from the bench.  Rehnquist also discussed the objections to the very nature of Nuremberg:

The second issue was whether or not this sort of trial – not only the prosecutors, but also the judges – coming from the victors, would be in fact if not in form a “kangaroo court”....Legal scholars also questioned whether the whole idea of such a trial where there was no existing body of law did not violate the principle embodied in the ex post facto prohibition in the United States Constitution.  That provision requires that before criminal liability may attach to a person for a particular act, a law making the conduct criminal must have been on the books before he committed the act.
(www.supremecourtus.gov/publicinfo/speeches/sp_05-16-03.html

Rehnquist also mentioned that Harlan Fiske Stone, who was Chief Justice of the Supreme Court during Nuremberg, did not look kindly upon Jackson’s conduct overseas.  While Justice Stone could have cared less what happened to the Nazis he wrote, “(B)ut it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime.”  Rehnquist further noted that Stone was miffed that Jackson had not informed him of his appointment until it was announced publicly by President Truman. 

The Nuremberg Trials were an unprecedented response to an unprecedented calamity.   Similarly, the military tribunals at Guantanamo Bay are an unprecedented response to an unprecedented calamity.  The United States is fighting a war against an Islamic fundamentalist organization that does not fight under the rules of engagement and instead carries out acts of terrorism against innocent civilians on a mass scale.  The United States must adapt to those unprecedented circumstances through innovative methods of adjudication. 

It amazes me that Barack Obama, who taught constitutional law at the University of Chicago Law School for more than a decade, would be unaware of the legal controversy surrounding Nuremberg and the commotion it caused within the U.S. Supreme Court.  If Obama taught the U.S. Constitution to his students the same way the Reverend Jeremiah Wright preached to his congregation then heaven help us all.
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Aaron Goldstein writes about the things that pique his insatiable curiosity.  In addition to politics, he is an aficionado of baseball, poetry, music and ketchup flavored potato chips.  Aaron satiates his various appetites in Boston. 

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