Wednesday, May 03, 2006

Justice, Not Vengeance

That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.
- Justice Robert H. Jackson, American Prosecutor, Nuremberg

Supreme Court Justice Jackson's words come echoing back across the decades today as a jury in Alexandria, Virginia chose to exercise its reason and the rule of law in making its binding recommendation that Zacarias Moussaoui be sentenced to life in prison rather than death.

The jury's action is not likely to be popular, and at first glance its reasoning seems muddy. Moussaoui knew of the plans for the attacks and contributed to destruction and mayhem of September 11th, asserted the jury, but was mysteriously somehow not responsible enough for the 3,000 deaths to warrant execution. The jury's refusal to condemn Moussaoui to death in this phase of the trial is based upon sometimes confused and even conflicting rationales of "mitigation." He is guilty, in other words, - but not guilty enough.

Initially, perhaps, the finding seems wrong. It
feels wrong. Moussaoui is an admitted terrorist, member of Al-Qaeda, and conspirator in the fiery holocausts in New York, Washington, and Pennsylvania. Surely no defendant since Timothy McVeigh of Oklahoma City infamy is more deserving of American justice's supreme penalty.

Yet the Virginia jury's decision, however muddled its rationale, may well be the most defensible one - and one that, like the Nuremberg trials extolled by Jackson, may well reflect more positively to posterity on the innate sense of justice on which we pride ourselves in this country than the easier and more widely (one might say hungrily) anticipated condemnation to execution.

Consider Nuremberg for a moment. The perspective of sixty years makes it seem a logical if somewhat problematic decision. The Allies had in their control scores of men who had perpetrated the largest mass murders in the history of the world and who had unleashed the greatest cataclysm of destruction and death that the world has ever known. The question of what to do with the Nazi leaders did not have a clear answer. Certainly, victors in past wars had punished their enemies, sometimes with humiliation and death, as the ancient Romans had, or with the kind of political and economic revenge exacted under the Treaty of Versailles by these same victors upon these same vanquished.

But the Nazi atrocities were a different matter altogether, and no one course of action seemingly could satisfy the competing demands of justice for the war's innocent victims with the avoidance of the appearance of "victor's justice" in a Soviet-style show trial. Some elements in the U.S. departments of War and State favored military tribunals, which were eventually employed in many of the 1,600 cases of less highly-placed officials of the Third Reich. The French expressed interest in Napoleonic Code-styled "courts of inquisition," and a significant element within the Russian government and military favored summary execution, perhaps understandably given that nation's 20 million dead.

The United States, however, with plans already in place from Roosevelt cabinet members Henry Morgenthau and Henry L. Stimson and impelled by the commitment of Harry Truman to an "American" sense of justice, pushed for and won approval for the trials, even over the initial objections of Winston Churchill.

The Nuremberg Trials were clearly and obviously not exercises in pure justice, and they had their critics on that basis even within the U.S., most notably that icon of true American conservatism, Senator Robert Taft of Ohio. Taft objected to the proceedings on grounds both practical and moral. The trials, he maintained, could never fulfill their objective of preventing future aggression because in his words "no one makes aggressive war unless he expects to win."
Worse, contended Taft, the trials were in opposition to a "fundamental principle of American law that a man cannot be tried under an ex post facto statute." Further, some American military leaders were uneasy with the precedent that Nuremberg seemed to be setting - a precedent that shadows foreign policy decisions in the U.S. to this day, at least as far as participation in the World Court is concerned.

It took the perspective of a man like Justice Jackson to make the enterprise succeed to whatever extent it did. Jackson's energetic and passionate prosecution was conducted strictly within limits of evidence and testimony that he felt history would unquestionably judge as right-minded and fair. That Jackson could prove beyond the shadow of any doubt the guilt of men like Goering, von Ribbentrop, and Streicher seems more inevitable now than it actually was.

Part of the claim that the Nuremberg Court ultimately did the right thing rests with the decisions it handed down that bear a striking resemblance to the Moussaoui verdict. Of the initial 24 defendants, all of them key figures in the Third Reich, several were acquitted outright and others sentenced to as little as ten years imprisonment. And despite the subsequent partial exoneration of Admiral Doenitz and General Jodl, a sense that right had been done and justice administered pervaded much of the post-Nuremberg world - quickly more preoccupied as it was with the intensifying conflict between the Americans and Soviets.

The principle that emerges from Nuremberg, however flawed and problematic the proceedings may seem today, is that justice must trump vengeance - or we all become moral descendants of the Nazis, exercising might without morality and justifying it with the same sense of exceptionalism that gave us the Third Reich and the Master Race.

The jury in Alexandria refused to do that. As former federal prosecutor Joshua Berman asserted on the
PBS News Hour, "
What the government ultimately argued was a lie should be punished by death, and that's highly unusual in our system and virtually unheard of." Whatever Moussaoui may have wanted to do and however evil he may have wanted to be, what he actually did was lie - and that crime, however serious, is not punishable by death in any of the fifty states nor in any federal statute.

As emotionally satisfying, then, as many might find the execution of Moussaoui, it simply would be incompatible with anything like a truly American sense of justice. In refusing to kill this pathetic fanatic under color of legality but under motivation of revenge, we remind ourselves and assert to the world just how completely unlike him we are. He comes at us with murderous intent; we respond to him with a dispassionate sense of proportion and fairness, one that Justice Robert Jackson would understand and commend.

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