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Guantanamo Bay and Voices from the Past

July 10, 2003

About thirty years ago Canadian journalist Gordon Sinclair broadcast a radio editorial at a difficult period in recent American history, reminding his listeners how much many countries of the world owe to the United States. Someone later added The Battle Hymn of the Republic to the background of the recording, and it has been resurrected over the years to boost American spirits in troubled times. Sinclair died in1984, and would probably have been pleased to see his editorial making the rounds on the Internet in the weeks following the terrorist attacks in September, 2001.

But there are some other voices Americans should now hear, voices from their own history, as prisoners who have fallen into American hands await judgement in Guantanamo Bay.

In 1945, the Allied powers had to decide what to do with the leaders of Nazi Germany and their more prominent followers who were guilty of atrocities far surpassing the attacks of September 11th. The British initially preferred summary executions, the Soviets a show trial. But, prior to the Yalta Conference, President Roosevelt was cautioned by senior advisors that summary executions would violate “the most fundamental principles of justice, common to all the United Nations.” They also pointed out that those who were summarily executed might be turned into martyrs, and that only a few of the guilty could be reached in that manner.1

Roosevelt’s successor, President Truman, accepted this advice, and the United States successfully argued for what later became the Nuremberg War Crimes Trial.  Associate Supreme Court Justice Robert H. Jackson was appointed to lead the American team at Nuremberg. Jackson, reporting to the President, acknowledged that the captured Nazi leaders could be executed or punished without a hearing, but asserted that “undiscriminating executions or punishments without definite findings of guilt, fairly arrived at . . . would not set easily on the American conscience or be remembered by our children with pride.”

The only other course is to determine the innocence or guilt of the accused afer a hearing as dispassionate as the times and horrors we deal with will permit, and upon a record that will leave our reasons and motives clear . . .2

Consider, in the light of the attacks in New York and Washington, Jackon’s opening address to the Nuremberg tribunal:

The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law is one of the most significant tributes that Power has ever paid to Reason.3

 Jackson cautioned the tribunal against dealing “ambiguously or indecisively” with prisoners in the dock, asserting that “any tenderness to them is a victory and an encouragement to all the evils which are attached to their names.”  But, in his view, the demands of justice were unequivocal:

The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just a measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice . . . Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.4

Gordon Sinclair, even dead, can lift American spirits. But for guidance in these difficult times, Americans can do no better than to look to the principles espoused by these, their own people, almost sixty years ago.

Do justice, and ensure that it is seen to be done.

Notes

1.   Memo for the President, 22 January, 1945. Quoted in Marrus, Michael R., The Nuremberg War Crimes Trial. New York: Bedford Books, 1997, P. 30

2.  Robert H. Jackson, Report to the President, 6 June, 1945. Quoted in Marrus, supra, P. 41

3.  Robert H. Jackson, Opening Address for the United States, 21 November, 1945. Quoted in Marrus, supra, P. 79

4. Ibid, P. 80-82

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