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