Ph.D. Octopus

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Nuremberg, Eichmann, Bin Laden: Some Thoughts on Justice and Punishment

with 11 comments

by Weiner

I recently listened to this superb debate between Glenn Greenwald and David Frum on the subject of Osama Bin Laden’s death. In terms of policy, I’m far more sympathetic to GG than Frum, even with Frum’s most recent slight turn left. I think GG got the best of this debate, except when the subject of the Nuremberg and Eichmann trials came up. There I sided with Frum.

Greenwald, like many others, argues that the Nuremberg trials (pictured above) represent a highlight in our society’s dedication to the rule of law. Even the most heinous Nazi war criminals were offered a trial, found guilty, and justifiably punished. He also mentioned the Eichmann trial as an example when the Israelis brought a criminal to justice, provided him with a trial, and rendered the correct verdict. He wishes that Americans had been able to do the same with Osama Bin Laden, thinking a trial, guilty verdict, and then meted out punishment. To GG, that would have been a more effective outcome in the “war on terror.”

In this article, Greenwald highlights what he calls “The Osama Bin Laden Exception.” People who normally prefer abiding by the rule of law, but will make an exception in the case of Bin Laden. He points to Jonathan Capeheart’s confession of hypocrisy in this regard, along with John Cole’s similar admission. Greenwald has more respect for this hypocrisy as long as these people own it.

Still, Greenwald disagress with them, and would have preferred a trial. Over on Facebook, Wotty presented a similar view, expressing his preference for:

a legitimate trial where [Osama Bin Laden] then got to spend the rest of his years rotting in prison would have been a sweeter victory over the man and his ideas, though it would have made for fewer screaming frat boys at “Ground Zero.”

I must respectfully disagree with Greenwald and Wotty here, for a number of reasons.

First, echoing Frum, I don’t think the Nuremberg trials should be held in that high esteem. The result of the trial: the execution or imprisonment of several dozen leading Nazis, effectively placed the blame for the Holocaust and other war crimes of WW2 squarely on the shoulder’s of Germany’s leaders. As Frum correctly argues, in fact, most of German society, apart from a minority of dissenters, could be found guilty. People who were directly involved in genocide collected pensions from the German government “until their dying day.”

In the great debate among Holocaust scholars between functionalism and intentionalism, two figures stand out: Christopher Browning, the functionalist author of Ordinary Men, and Daniel Jonah Goldhagen, the intentionalist author of Hitler’s Willing Executioners. There is no question that Browning is the better scholar and made the more persuasive case. Still, if Goldhagen made one contribution, it was to erase the false distinction between “Nazis” and “Germans.” Growing up, I remember this refrain well: “It’s not the Germans who were bad, it was Nazis.” As if a group of murderous thugs brainwashed an entire nation. Goldhagen appropriately refers to the perpetrators of genocide as Germans: many had not been and never would be members of the Nazi party. Germany, not Nazi Germany, was the guilty party.

Of course, trying and punishing thousands if not millions of people, or even the entire country, would not have been feasible. Frum knows this and is not arguing that it should have been otherwise, but merely that justice at Nuremberg was not entirely just.

Second, and more relevant to the discussion of Bin Laden, is the question of context. At Nuremberg, the Germans had been totally defeated. The war was over. In Bin Laden’s case, that is not true. Bin Ladenism and Al Queda are still out there, still operative, albeit weakened. Given the state 0f war the United States is in with those forces, the case for a trial is less compelling.

The difference is even starker when we contrast Adolf Eichmann with Bin Laden. Greenwald thinks a Bin Laden trial would be an opportunity to show the world our values, to have an effect like the Eichmann trial did. When the Israelis caught and tried Eichmann (pictured right), the war was long over. In fact, though scholars have debated the degree of Holocaust consciousness in the Jewish imagination, in the public sphere, it was more limited. The Eichmann trials, and Hannah Arendt‘s coverage of them, culminating in her book Eichmann in Jerusalem, brought German genocide of the Jews to center stage. It was necessary public theatre.

Adold Eichmann.jpg

Though Bin Laden may not have been public enemy number one like he was in the months after 9/11, he has not quite receded from our consciousness in the same way. There is no need for public theatre. America is still at war.

Furthermore, as many have observed, the attempt to try Khaled Sheikh Mohammed have been slowed and riddled with controversy. How long would a Bin Laden trial take? Where would it be held? Would it allow him to rally more people to his cause or utterly repudiate? Neither Greenwald nor Frum know the answers to this impossible hypothetical, and so we cannot be certain a trial would have had a positive outcome. But certainly a plausible case can be made for problematic consequences.

And then there is the question of punishment. Suppose Bin Laden had been captured and tried and found guilty. What would be his sentence? Some would call for the death penalty. It seems Greenwald might even be ok with that. But Wotty would not. Me, I’m not sure.

I used to support the death penalty more generally. Now I do not. I think too many mistakes are made, and the American legal system is too racist for it to be put in place effectively. I also have come around to the view that perhaps the state should try to take some sort of a moral high ground and not kill prisoners.

I also used to support torture in the ticking time bomb scenarios. This may revolt some readers, but I try to consider things rationally and avoid taking positions reflexively. I change my mind frequently, and try to admit that I was wrong when I do. I was wrong about capital punishment, and wrong about torture (and supporting the Iraq War, and opposing drug legalization, and believing Barry Bonds was not on steroids, and a whole host of other things). I’ve come to now oppose torture in any and all cases, because it’s not effective in extracting information, and more important, because it’s inhumane, to the torturer and the tortured. Our society should be held to a higher standard.

But there’s the rub. You see lots of people oppose the death penalty in any and all cases. And that’s fine. But they either ignore or don’t realize or don’t care that today’s prison system in the US is de facto torture. Not always, not all prisons, but often enough, particularly those that house violent criminals.

Before people began rushing to fellate David Simon, creator of everyone’s pick for greatest show ever, The Wire, I was watching what I think is HBO’s greatest non-comedy series, the prison drama Oz. True, I’ve only seen the pilot of The Wire; I thought it was pretty good, but my wife fell asleep. We’ve vowed to give it another chance, but the DVD is still sitting in our apartment, and has yet to return to the DVD player. Seriously I’m sure it’s great, but it seems like a big commitment. I know we’ll get to it someday. Anyways, my understanding of The Wire (yes I’m going to comment on it without having seen it) is that it portrays a realistic view of the gritty world we affluent and educated viewers know exists but don’t quite understand. Oz, on the other hand, provided a look into a realistic but not quite real experimental prison. I loved Oz. It taught me the words “shank” and “shiv.” But the main message was that prison is BRUTAL.

And that’s the truth. Ezra Klein wrote about prison rape a while back, a problem that we joke about without thinking how serious it is. Inmates are raped, beaten, and murdered in our prisons. And in some ways, this is the way we want it. Darling of the left Matt Taibbi tacitly endorsed this sort of treatment in his Rolling Stone piece “Why Isn’t Wall Street in Jail? He quotes a “former congressional aide” who said:

“You put Lloyd Blankfein in pound-me-in-the-ass prison for one six-month term, and all this bullshit would stop, all over Wall Street,” says a former congressional aide. “That’s all it would take. Just once.”

Sure, it’s not Taibbi saying that. But the implication of the article seems to be that he wouldn’t have a problem with that. Not only is this sentiment at least mildly homophobic, it’s also an endorsement of torture, something Taibbi would likely never admit.

Taibbi’s point, of course, is that many minimum security prisons for white collar criminals are not torturous at all. Wotty said he would like to see Osama Bin Laden “rotting in jail.” But is Bernie Madoff rotting in prison? Or is his life not all that terrible there?

I’m not equating prison to freedom, nor am I equating Madoff’s crimes to Bin Laden’s. But the question remains, what kind of prison would we have put Bin Laden in? Among fellow military criminals, many of who may be Al Queda members? He’d be a hero. Among regular violent criminals? He would get shanked. Perpetual solitary confinement? Atul Gawande has argued that that is tantamount to torture. And what would Bin Laden’s daily cell life be like? Presumably, the prison medical staff would treat his ailments. He’d be served halal food. Maybe allowed to read the Qu’ran or some other books. Maybe even get the odd visitor? Then you begin to wonder if that life would in some ways be a little better, certainly a little safer, than his life in the compound in Pakistan.

I’m reminded of Yigal Amir (pictured below) the man who assassinated Israeli Prime Minister Yitzhak Rabin. He was allowed a conjugal visit with his wife, who he met and married while in prison. That’s right, the murderer of the Israeli Prime Minister who first tried to make peace with the Palestinians, was allowed a ten hour fuck-fest while serving his sentence.  He got her pregnant and then attended his son’s bris. This troubles me. And would an imprisoned Bin Laden be allowed fuck-fests too? (I’m cursing like Matt Taibbi to prove a point).

See, it gets real murky. We don’t want to torture the hypothetically prisoned Bin Laden… or do we? Do we want him to enjoy certain basic pleasures and comforts, along with the peace and security he never really had while hiding in Pakistan? And what would that say to the victims’ families?

Honestly I don’t know. But I’m glad that situation is only hypothetical.

Still, I’m upset about all the confusion surrounding Osama Bin Laden’s death, the changing stories, the misinformation. Glenn Greenwald is asking important questions that require important answers. He should keep on asking them. But he shouldn’t lose sleep over them. I know I won’t.


Written by David Weinfeld

May 7, 2011 at 08:32

11 Responses

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  1. Weiner, I appreciate the thoughtful effort to grapple with these questions but I have to say I’m not terribly convinced by your arguments. First off, the Nuremberg/Eichmann analogy is a poor one, obviously. The hysterical rantings of the NY tabloid press notwithstanding, Al Qaeda are not the Nazis, and this is not WWII (so some of your interesting discussion of the trials seems to me to be not especially germane). Moreover, I, along with many others, would question your claim that “the US is still at war.” At war with what? A tactic? And with whom? These people are terrorists, not the German nation (and I don’t think Goldhagen should even be cited in the same breath as someone like Browning; Goldhagen is useful for exemplifying what really bad history looks like); terrorists who can’t even get it together to buy the underwear bomber a return ticket. If this is a war, then it will go on forever, which is great if you want to use the war defense to justify depriving people—and not just the “evildoers” entombed at Guantanamo, but all of us—of basic civil liberties and keep the staggeringly metastasized and lucrative terror-industrial complex humming. I really think you should be careful with that argument. You’re buying into a lot of assumptions.

    The WWII trial are relevant only in the limited sense of saying: “we will to the best of our abilities follow our values in prosecuting you; that our values are meaningless unless we apply them fully even in the very toughest cases of all.” Of course the trials were imperfect, deeply so (Nuremberg and related Nazi and camp trials were replete with summary justice: 300 camp guards tried and executed in a day kind of thing). But, in the case of Nuremberg, it was still an unprecedented undertaking, the victors putting the vanquished on trial.

    It just seems to me you want to elevate Bin Laden into the same position that he saw himself as occupying, namely supreme battlefield commander in some existential war with the US. I don’t buy it. A trial would be messy and expensive. Fine. Our values can be messy and expensive. As for providing his views with a platform, I don’t buy that either. It’s a sick, hollow ideology; the more sunlight shone on it, the more it will wither away. You don’t think the youth of Syria, Yemen, Libya, and Egypt have been repeatedly exposed to “Bin Ladenism”? Where’s the evidence it’s convinced them to sign on?

    I’m not saying it was wrong to kill Bin Laden; but I am saying I think it would be wrong and deeply regrettable if his death was the product of a deliberate policy of extra-judicial assassination (so much of this supposed “war” has been prosecuted extra-judicially; and what has that really won the US?). I’m with Greenwald on this one: a civil liberties absolutist of sorts, I guess. Again, our values only have real purchase if applied in the toughest cases of all (it’s easy to approve the free speech rights of someone I agree with, etc.). A trial and life imprisonment would have been justice rendered; messy and imperfect, but proud enough for me.


    May 7, 2011 at 16:23

  2. Thanks for the thoughtful response Wotty. Some jumbled responses.

    I agree that Al Queda are not the Nazis (or the Germans of 1939-1945. But I don’t think that means that United States is not at war with them. This of course different than the fictional war on terror, a war on a tactic which does not make much sense. But I am not troubled by the notion of war with Al Queda, even perpetual war so long as Al Queda exists and continues to plot against Americans or anyone else. I think that can easily be distinguished between the war efforts in Iraq and Afghanistan. And if, and that’s a big if, Bin Laden’s killing ends those wars sooner, it was worth it purely for that.

    I also don’t think that war with Al Queda necessarily precludes an abandonment of a commitment to civil liberties. But Bin Laden was a military target. Certainly not an operational mastermind, but a spiritual leader and figurehead and bankroller whose guilt was beyond a shadow of a doubt (Noam Chomsky is still skeptical about it, but I am not).

    I don’t see why America can’t now fully close Guantanamo and end rendition and all the civil liberties abuses of the Bush years. It should and it can. And leave Iraq and Afghanistan. The “war on terror,” or more precisely the war of Al Queda, is linked to these things, but only because we insist they be linked. They need not be.

    I agree with you about Goldhagen vs Browning, my point was a small (but important) one about the Nazi vs German distinction.

    I of course agree that Bin Ladenism is a hollow ideology. I’m not sure a public trial would have won him many converts, but I doubt it would have improved American prestige in the Middle East either. As you and I both know, what will help America’s reputation there is a cessation of warfare and some sort of just resolution to the Israeli-Palestinian conflict. Everything else is incidental, in my mind.

    Though we both seem to agree that the Eichmann/Nuremberg analogies are only of limited value here, I actually think there is another way the Eichmann case fits, which I wish I would have mentioned in the initial post.

    I think it could be useful to think of Bin Laden as a Nazi war criminal. When the Israelis kidnapped Eichmann, they violated international law and Argentinian sovereignty and what have you.The war was long over. He wasn’t plotting anything more. But it was important, and still is important, that the search for Nazi war criminals goes on, so long as they are still alive. It’s important, at least to me, that they not know that they have gotten off scott free, that they are being pursued in the hopes of being brought to justice.

    I think we can make similar claims about Bin Laden. It’s important that the US hunted him down. I also agree with David Frum, that if they had simply launched a missile at the compound and killed him in his sleep, that would have been less satisfactory than having a manned raid, where he knew he was caught, that he had lost.

    But I think I agree with you, that if the order had been to capture Bin Laden, there would have had to have been a trial. Had that happened, he probably would have been executed. Which I guess would have been fine. But if I remained consistent to my view of capitol punishment, I would have had to have opposed that. So I think the outcome, as it is now, is much better.

    And is there a slippery slope? We make the “Bin Laden exception” and where does it end? Maybe. But America is already down that slope my friend, and I doubt there’s any going back up. And I still would argue that this was a military context, and Bin Laden was a military target, guilty of a war crime, and thus a legitimate target for assassination.


    May 7, 2011 at 19:17

  3. Last thought, basically I have not been convinced that the world would be a better place if America tried Bin Laden instead of killing him outright, but I think the possible negative repercussions of trying him seem quite clear. It’s also not clear to me how killing Bin Laden leads to any negative outcomes.


    May 7, 2011 at 19:51

  4. Even as an opponent of the death penalty, given a choice between extra-judicial assassination and capital punishment with a trial, I think I know for which I’d plumb! Anyway, for me, it was important that the US “hunt” BL down, and then bring him to justice. To me, executing him on site—IF that’s what happened—is a lousy “dead or alive” kind of justice. So what are the “negative repercussions” of trying him you cite? They’re really not clear to me at all (as I reject the notion it would win him converts but rather suspect the converse). What IS clear to me is that the negative repercussions of having appeared to summarily execute him are many and long-lasting: once again “rule of law” in the US—the same rule it’s constantly urging on other countries whilst torturing, detaining without trial, and spying on its citizens at home—appears to be whatever the US decides is in its interests, and in the interests of expediency and a lack of transparency.

    Yes the US has already skidded far down the slippery slope but your argument that one should just acquiesce to its slipping down even further seems, well, kind of facile and unserious. In the midst of all this triumphalism over BL’s death—and it’s not like I mourn his passing—one needs people raising difficult, unwelcome questions like Greenwald has been doing.

    In short, I respectfully disagree! But you knew that already.

    George is asleep. So is anyone else still reading this.


    May 7, 2011 at 21:04

  5. Agreed. Love to George.


    May 8, 2011 at 02:30

  6. This is a very late reply to your interesting review of the Greenwald-Frum debate. I just discovered it, and since I live in Germany and have been thinking and reading about the post-Holocaust generation here for some time, I just wanted to add two cents, even belated ones. I disagree strongly with the Goldhagen thesis about “the Germans” being to blame for the Holocaust, which in its essentialism and “monocausal” simplicity is almost racist in its own right. (Norman Finkelstein and others have very convincingly demolished it, I think, on both methodological and historical grounds.) No doubt, the “Final Solution” couldn’t have been carried out without the collusion of thousands, maybe even tens of thousands, of “ordinary” Germans; but it probably couldn’t have been implimented at all if it hadn’t been a strict state secret, who’s divulgence was punishable by death–and not only because of potential Jewish resistance. The relationship of Hitler & Co. to the German population as a whole has been studied and restudied ad nauseam, but the idea that Nuremberg was ONLY a show trial for the purpose of somehow rehabilitating Germany as a whole is patently ridiculous, whatever the manifold shortcomings, which I don’t deny. I think Frum’s views on Nuremberg, like his views on international justice as a whole, are simply neo-machiavellian.

    Since I was looking around to find responses and comments on their debate, though, I’m very happy to have read yours.

    matt rubenstein

    March 13, 2012 at 16:16

  7. I forgot to add that I think it’s ironic that you refer to the Eichmann trial–and especially to Arendt’s book on it–as “necessary public theater”, when it’s EXACTLY this aspect of the trial that Arendt criticizes in her book: “I held and hold the opinion that this trial had to take place in the interests of justice and nothing else.” That’s also Greenwald’s opinion of what should have happened to Bin Laden.

    matt rubenstein

    March 13, 2012 at 16:36

  8. Thanks for the replies Matt. Quick thoughts on an old post:

    I find it impossible to believe that in addition to the tens of thousands or German involved in the final solutions, there weren’t millions more who knew about it going on, and either explicitly or tacitly endorsed it. I think this was a German, not a Nazi phenomenon.

    Beyond the German-ness though, obviously antisemitism in this period was a broader problem. Ukrainians, Lithuanians, Austrians, Poles, the Croats, the French, and many others all participated in the genocide to varying degrees. The Romanians had their own almost independent genocide of the Jews. What we learn from book like Jan Gross’ “Neighbors” is that there was something about German occupation was important. When the Soviets occupied Jedwabne, Jews were not singled out. When the Germans took Jedwabne, the Polish population of the town engaged in a savage pogrom. I don’t have the answers as to why that is, but I certainly think it’s important.

    David Weinfeld

    March 14, 2012 at 14:22

  9. Thanks for your quick reply to my late post. Here’s a short back atcha. First, I have to admit to understating the numbers of Germans who were involved in the murder machinery of the Holocaust–I don’t know exactly, but certainly it was in the tens or even hundreds of thousands. I also think plenty of people knew something or other ghastly, beyond the fairy tales about “immigration” etc., was going on, probably in the hundreds of thousands or even a couple of million. Nonetheless, the total annihilation, the gassings, the death camps, were officially a state secret, and one of the reasons fro that was probably the lack of antisemitic fervor in wide swathes of the population. Moreover, I just don’t know what it means to say that the Final Solution was “a German, not a Nazi phenomenon”–I don’t know what sort of distinction that’s supposed to be with regard to a completely totalitarian, ideologically monolithic and thoroughly militarized society–and one engaged in “total war”. If it means that is was a German CULTURAL problem, something about the “German mind”, then I’m inclined to disagree, strongly.

    But the main issue here is Frum’s assertion that, because of the collective guilt of “tens of millions of people”, the trial of the actual leaders and planners at Nürnberg was a judicial farce–one he then (more or less) endorses, based on the putative meaningless of transnational justice in any case, its purely instrumental value as a tool of power politics. This dovetails nicely with Daniel Goldhagen’s idea that the Germans were all horrible antisemitic bastards and Hitler was sort of like the Steve Jobs of genocide, racing to answer the desires of his “eliminationist” consumers. THAT idea is just bonkers, in my view–no serious scholars of the Holocaust (that I know of) goes nearly that far when it comes to describing German public opinion at the time. It’s no accident that Goldhagen, like Frum, is a neo-con, i.e, an ardent American nationalist. Frum’s basic idea is that we–the anointed, the nation on the hill–get to do what we want because “we” are better, not because of some silly international law, which we can ignore at will. That, in turn, is why he’s so hell-bent on bullying Greenwald into being “happy” about Bin Laden’s murder at the beginning of the debate: he wants Greenwald, in effect, to swear an oath of tribal loyalty. I think that makes it especially ironic when he goes on to talk about collective German guilt for Auschwitz.

    Sorry! Not so short after all. Thanks for bearing with me. Cheers, Matt

    matt rubenstein

    March 14, 2012 at 16:41

    • Shorter reply, I wasn’t really paying attention to Frum anymore here, just responding to what you wrote. I’m not a neocon, but by “German” rather than “Nazi” I simply mean that people who never joined the Nazi party were involved. Indeed, people who may have hated Nazis, like the Poles of Jedwabne, were involved once they were under German occupation. I’m not purely an “intentionalist” when it comes to the Holocaust, as that’s too reductive, but I’m a big believer in individual agency. Hitler may not have been a “Steve Jobs of genocide” but I think individuals are very important in history, and he was one of them, sadly. And yet at the same time I think many Germans, and not just members of the Nazi party, must be implicated. People had choices: some went along, willingly, as it were, some reluctantly, some knew and did nothing, a precious few were righteous did their part to save Jews and other victims. A purely functionalist view robs all people of their agency I think, and robs the discipline of history of the beauty, or tragedy, of contingency, its unpredictability, which makes it a humanities discipline, rather than a social science.

      Here’s another related post that might interest you:

      David Weinfeld

      March 14, 2012 at 17:01

  10. Thanks again for the reply. Nothing there to disagree with! Will check out the link.

    matt rubenstein

    March 14, 2012 at 17:14

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