I was watching a History channel documentary on the Nuremberg trials recently … because that’s the kind of weird stuff I do on weekends, which my wife and children do not appreciate. As fascinating as it was to me, my five-year-old felt that it did not live up to the standards of Spongebob Squarepants. Fair enough. However, I do believe it offered some insights and “teachable moments,” as our President likes to say, when it comes to the trial of Khalid Sheikh Mohammed and the rest of the bloody terrorists held at Guantanamo. In particular, the example of Hermann Goering as the leader, apologist and chief propagandist of his own gang of war criminals.
Let’s put aside the matter of whether holding the trial of some of al Qaeda’s most ruthless associates on American soil is a good idea or not. Whether it creates an irresistible temptation for their brethren to make a statement on the streets of New York City, the very den of the Great Satan. Whether it gives foreign war criminals undue access to America’s justice system, in which technicalities can be twisted and deformed by clever attorneys to clear the way for acquittals of clearly guilty criminals. Whether it presents the grandest stage of all for some of the world’s most effective propagandists.
The decision to hold the trials in New York has been made. So instead, let’s focus on what can be done to minimize al Qaeda turning the trial into a publicity bonanza for its radical and violent agenda. Imagine Khalid Sheikh Mohammed cross-dressing as Hermann Goering, and we might imagine and prevent some of the ways in which the al Qaeda operative plans on turning this venue to his advantage.
From the outset, Goering staked out a claim to be the leader of the defendants at Nuremberg. He would use this position to inspire and intimidate his fellow defendants into following his defiant lead and presenting a unified front. Perhaps because he was indeed one of Hitler’s right-hand men, the prosecution played into the hands of Goering’s claim to be the spokesman for all and seated him at the head of the dock, thus ensuring his prominence. In doing so, perhaps the prosecution thought it was setting Goering up for a more dramatic fall when he was found guilty. (There was about as much expectation in 1945 that Goering would be found guilty as there is today for Mohammed). The result, however, was to highlight Goering’s twisted charm, provide him with a bully pulpit for his propaganda, and cement his authority over the other prisoners.
Mohammed should not be given the same kind of elevated status, despite his role as the self-proclaimed mastermind of September 11. The very fact that he already brags about his role as the leader of this atrocity suggests he plans to embrace his prominence with as much swagger as possible. If we play into his hands, he too will be given an undue opportunity to dominate the trial and intimidate the other prisoners. He should be thrown into the middle of the gaggle of thugs, no more prominent than any of the other criminals, just another small-minded murderer and crackpot who believes that God has ordained his violence. The world is filled with men who believe God wants them to murder for some holy cause, and Guantanamo has a disproportionately high number of them. Why give Mohammed a unique status as some kind of super-terrorist and interpreter of the sins of the West in the name of God?
Another mistake from the prosecution during the Nuremberg trial was to bring in too many lawyers with too many documents to prove their case. Such documents are important, clearly. However, when it comes time for a trial, to engage the public debate, the prosecution must find the right balance between overwhelming the public – and make no mistake, regardless of the venue, this is about making a case to the international public – with a mind-numbing swath of legalese and paper, and highlighting the key evidence that will capture the public imagination. Reviewing the Nuremberg case: At the very same time that Goering was at his manipulative and rhetorical best, the prosecution was swimming in a sea of documents. The documentary film maker pans his camera across the courtroom during these periods, and even many of those folks in the room, in the midst of this historic proceeding, were stifling yawns.
Be selective about what evidence is necessary to be put on display. And every prosecution team should include a public relations professional who can provide input on the strategic messaging that emerges from the evidence trail. Certainly, the lawyers should have the final say, but they should be given guidance from those who aren’t too close to the laborious period of research and discovery. In the case of some attorneys and law enforcement officials, one is reminded of PhD students defending their doctoral dissertations, unable to leave out the slightest fact or even trivia that may bolster their case – no matter that the overall message gets lost as such details are hauled forth in layer after layer.
It was not until the prosecution moved on from paperwork, no matter how important, and displayed visual evidence – photos and film of the horror of the concentration camps – that it was able to recapture the public imagination – and condemnation of the prisoners. Documents and rhetoric, no matter how damning and brilliant, can never match the power of images. As difficult as it may be for the American public to live through 9/11 again, the United States should come prepared with a diverse library of visual evidence. The courtroom – the literal one in New York, as well as the larger one of public opinion – must be left outraged and aghast at the horror inflicted by Muhammed and his fellow terrorists.
Finally, and most importantly, the officers of the court must not allow Mohammed to turn the courtroom into his grand stage. If a criminal proceeding is the decided venue for bringing Mohammed to justice, then he must be afforded the same opportunity to defend himself as other defendants. Otherwise, the entire proceeding can too easily be dismissed as a kangaroo court. However, he should be given no more latitude than absolutely necessary.
One of the most interesting insights into the Nuremberg trial was that the judge, Francis Biddle, perhaps in an effort to prove the superiority of the American system of justice over the tyrannical and corrupt Nazi system of justice, bent over backwards to give the Nazis every opportunity to strut and propagandize. Under normal court proceedings, the prosecutor is given leeway to interrupt, inject and generally box in the defendant. Biddle repeatedly gave Goering free reign to marshal all of the charm and intellect at his disposal and to often turn the prosecution on its head.
Equally, important: The United States better come prepared with prosecutors who are as charismatic and egotistical and willing to engage in theatrics as we can expect the master propagandists of al Qaeda to do.
“If you all handle yourselves half as well as I did,” Goering boasted to the other prisoners, “you will do all right.” The prosecution was forced to bring in a trial attorney who was as crafty and quick on his feet as Goering before the trial was able to get back on track and the prosecution was able to regain the upper hand.
The BBC provides an excellent insight into just how well Goering took over the proceedings at Nuremberg and manipulated the prosecution, even the chief prosecutor, Robert Jackson:
When it came to his cross-examination [Goering] prepared carefully and in the opening exchanges with the American chief prosecutor Robert Jackson he emerged an easy winner.
So frustrated did Jackson become with Goering’s clever, mocking but evasive responses that at the end of the session he threw down the headphones he had been wearing to hear the translated answers and refused to continue.
I am not convinced that giving Khalid Sheikh Mohammed a criminal trial, with all the trappings enjoyed by American citizens, is the proper course of action. Al Qaeda launched an attack on America more bloody and atrocious than anything we have seen since Pearl Harbor. Nobody suggested putting the Japanese in court. It has been suggested that trying al Qaeda via a military tribunal will elevate the organization to a level of legitimate war fighters. Well, al Qaeda is a band of war fighters. They have no qualms about targeting innocent civilians; they make no exception for children; they have no conscience and do not respect the Geneva Convention nor the concept of crimes against humanity. Nonetheless, just because they do not use conventional tactics does not make them any less a militant band of terrorists who have declared war on the United States and have repeatedly shown a willingness and competence to execute that war. What is the old axiom about not re-fighting the previous war?
Nonetheless, a criminal courtroom has been chosen as the venue. That being the case, the United States should come prepared to expect a show trial, to expect preening and theatrics, to expect al Qaeda to turn this venue into the greatest propaganda venue ever handed them. And we better come prepared to beat them at their own game.