Letters on Milton R. Konvitz's article “Will Nuremberg Serve Justice?”
To the Editor:
“Will Nuremberg Serve Justice?” by Milton R. Konvitz in the January COMMENTARY is an amazing revelation of how far legal minds can remove themselves from the wellspring of law: moral indignation. The Nuremberg trials are condemned by Mr. Konvitz as “a real threat to the basic conceptions of justice” because legal mechanisms being employed are technically imperfect. This “threat” does not arise out of any fear that innocent peoples will be punished or excessive penalties will be imposed or that the defendants will not get a fair hearing. On the contrary, Mr. Konvitz expresses a preference for no trial at all and for the summary death of defendants. His fears are compounded entirely out of abstract legal doctrine, uncontaminated by the moral realities which surround these trials.
The first charge against the Nuremberg trials is that they involve the use of ex post facto law. That is true only in the narrowest technical sense. If justice is to be served, not just orthodox legal procedure, then these facts must be recognized:
- The crimes involved are horrible and gruesome “firsts” in the history of our civilization. Consequently there is no statute or codified law anywhere which sets forth the appropriate procedures to be followed in the trial of the Nazis.
- At Nuremberg morality is being injected intravenously into international law. It is urgent that the “moral crimes” of the Nazis become quickly and unequivocally established as criminal in the eyes of the law so that all the law enforcement machinery in the world can be rapidly mobilized against any new outbreak.
- The moral historical processes by which immoralities become illegalities are so slow that the Nazis or their equivalents will engulf the world in another war before their activities are outlawed.
Which is more important and urgent: that orthodox legal procedures be adhered to, or that law enforcement machinery be rapidly created and mobilized to help forestall or to cope with new fascisms?
The most disturbing feature of Mr. Konvitz’ concern with ex post facto law is his complete disregard of the basic moral issue which underlies these trials. Long before Nuremberg, men of good will everywhere put the Nazis on trial in a court of humanity, of morals—and found them guilty. At Nuremberg this universal moral condemnation is being translated into a legal verdict, and that is all. No new law is being made. Old, old moral laws are being shaped into an international legal code. The procedure is ex post facto in the most mechanical sense only. If Mr. Konvitz’ view is sound then it is unjust to brand Cain a murderer, because the T6n Commandments had not yet been inscribed on tablets at the time he killed Abel.
Throughout his discussion of the trials, Mr. Konvitz fails to distinguish the Nazi crimes from ordinary crimes. He therefore assumes, logically but most abstractly, that a legal procedure used for this set of “murders” and “embezzlements” will become a precedent for the trial of individual murderers and embezzlers in the future. But that is absurdly unrealistic. The enormity and grossness of the Nazi crimes set them apart. Need it be argued, particularly in COMMENTARY, that the Nazi atrocity on the world is not merely a heterogeneous mass of individual murders of the Dillinger type? Surely no gangster, black marketeer, embezzler, or rapist need fear that Nuremberg procedures will be ápplied in his case and thus deprive him of “legal” rights. And certainly no law-abiding citizen is being put in jeopardy by the trials. Only those who transgress the basic moral code of the civilized world as barbarically as did the Nazis need fear the trials. For they do establish the principle that universally condemned acts against humanity will be punished as crimes even if precise statutes covering those crimes do not yet appear in national or international legal codes.
The layman’s respect for legal procedure is stretched to the breaking point when an authority takes the position that the Nazis’ undeniable crimes against humanity are not a proper subject of trial until and unless we have the consent of those selfsame Nazis. When should we have obtained it—before Hitler came to power, after Pearl Harbor or on V-E Day? Mr. Konvitz goes so far as to question the “moral force” of the Nuremberg proceeding since it lacks the prior consent of the German government. I would counter with the query, what respect can a decent-hearted human being have for legal processes which are wholly unable to bring to judgment the Nazis whose moral guilt has been recogized by all civilized people? Unless the law can translate the moral judgment of people and do it quickly, it loses their respect and support and, therefore, its moral force. Mr. Konvitz should know that moral force is not a by-product of correct legal procedure. It is a human phenomenon which, though tempered with reason, gets its vitality from the emotion of righteousness.
The feebleness of Mr. Konvitz’ theoretical complaint is most evident in his suggested alternative procedure. Unable to find a more correct legal procedure than that being employed, he suggests that there be no judicial process at all. Just kill off the defendants, or exile them. Death à la Mussolini, but with more efficiency and less vulgarity, is certainly not more just and in many important respects far less satisfactory than the current trials.
The death of some Nazis is all that Konvitz’ procedure would achieve. That will also be achieved by the trials, but it is the least important contribution to justice. If these deaths were the prime objective no precautions would be taken to prevent suicides.
The trials create, for the first time, a permanent and official record of the Nazi crimes. True, this record is not a prerequisite to a contemporary judgment of the Nazis’ guilt. But we all want the succeeding generations to get the full meaning of our miserable experience so that they may not do too little too late and thus find themselves in another war. With this record in existence, the punishment meted out to the Nazis will not be labeled as the mere vengeance of the victor. Without that record future generations would not be able to decide whether the Nazis were punished because they lost the war or because they were morally and justly condemned by civilized people.
Another benefit arising out of the trials is the creation of the very body of law and the very procedure which Mr. Konvitz prizes so highly. International law will have a mechanism which can cope with crimes of the Nazi magnitude. Any future trials would then be immune from the criticism that ex post facto law was being used.
The most important contribution of the trials to justice is their demonstration to people everywhere that everyone, even Der Fuehrer and his satellites, is subject to the law; that nobody is immune, even if he be the head of a nation or the commander in chief of an army. Only a trial can prove this equality of all people before the law. And by so doing the respect of the ordinary man for law is maintained and perhaps increased. There can be no question that despite the deviations from orthodox legal procedure, the Nuremberg trials serve justice.
New York City
Choose your plan and pay nothing for six Weeks!
Nuremberg Will Serve Justice
Must-Reads from Magazine
Not a departure but a return to the status quo.
President Trump’s address to the United Nations General Assembly on Tuesday stuck to the core themes that have defined his foreign policy since he took office. The ideological cocktail was two or three parts John Bolton, one part Steve Bannon. From his national-security adviser, Trump absorbs the traditional GOP hawkishness and sovereigntism that forms the cocktail’s base. Meanwhile, distinct traces remain of the ex-Breitbart chief’s harder-edged populist nationalism. Call that the modifier.
The main elements of the cocktail blend smoothly in some areas but not in others. Boltonians are wary of liberal, transnational institutions that seek to restrain U.S. power, and they aren’t shy about sidestepping or blowing past those institutions when national interest demand it. Bannonites detest the transnationalist dream even more intensely, though their hatred extends to mutual defense treaties and trade agreements that GOP foreign policy has historically welcomed.
Both camps, moreover, claim to have shed the illusions that they think got Washington into trouble after 9/11. They don’t believe that all of human history tends toward liberal democracy. “We are this,” they say to non-Western civilizations, “and you are that. You needn’t become like us, but don’t try to remake us in your image, either.” The Boltonians might pay some lip service to Reaganite ideals here and there, but as Bolton famously wrote in these pages: “Praise democracy, pass the ammunition.”
That’s where the similarities end. The Bannonites don’t share the Boltonian threat assessment: Vladimir Putin’s encroachments into Eastern Europe don’t exercise them, and they positively welcome Bashar Assad’s role in Syria. Boltonism favors expansion, Bannonism prefers retrenchment, if not isolation. Boltonism in its various iterations is the default worldview of the key national-security principals; not just Bolton himself but also the likes of Nikki Haley and Mike Pompeo. Bannonism is where I suspect the president’s own instincts lie.
It is hard to assess fully how these tensions are playing out in American foreign policy in the age of Trump. But one intellectual temptation to guard against is the tendency to view every move and every piece of rhetoric as a crazy Trumpian violation of the Eternal and Immutable Laws of American Strategy. In the main, Trump’s foreign policy appears alarming and discontinuous only to those who forget how far Barack Obama departed from mainstream, bipartisan foreign-policy traditions.
Bashing or withdrawing from UNESCO and the Human Rights Council because anti-Semitic, anti-Western “jackals” have taken these bodies hostage? That’s straight out of the Reagan-Bush-Daniel Patrick Moynihan playbook.
Ditto for rejecting the universal jurisdiction of the International Criminal Court because it would mean ceding American sovereignty to “an unelected, unaccountable, global bureaucracy,” as Trump put it Tuesday. Successive American administrations, including President Bill Clinton’s at various points, have opposed the creation of a world court that could be used by the “jackals” and their transnationalist allies to legally harass U.S. policymakers and soldiers alike.
Nor was there anything uniquely Trumpian, or uniquely sinister, about the decision to recognize Jerusalem as Israel’s capital. Legislation enacted by Congress more than two decades ago had required the State Department to recognize Jerusalem and move the American Embassy, and as the president noted in his speech, peace is “is advanced, not harmed, by acknowledging the obvious facts.” The move also reinforces the sovereigntist idea that a nation’s decision about the location of its embassy is not open to scrutiny by foreign busybodies.
Nor, finally, does praising imperfect but valuable allies somehow take Trump beyond the pale of respectable American policy. Trump’s support for Riyadh, Warsaw, and Jerusalem is a course correction. For years under Obama, Washington neglected these powers in favor of the likes of Tehran.
That isn’t to say that there aren’t some wild elements to Trump’s foreign policy. For those who came of age in the shadow of certain postwar certainties, it will never be easy to hear the commander in chief threaten tariffs against various rivals and partners from the podium at Turtle Bay. And if Obama disrespected allies with his policies, Trump does so with his rhetorical outbursts against allied leaders, especially in Western Europe, and his bizarre refusal to directly criticize Vladimir Putin.
That’s that irrepressible Bannonite modifier in the cocktail, though the color and flavoring are all Trump’s own.
Choose your plan and pay nothing for six Weeks!
A blow for sanity.
At some point earlier this year, America’s sources inside the Kremlin went dark. U.S. officials who spoke to the New York Times about their dangerous new blindness said they didn’t believe that their formerly reliable sources had been neutralized. Instead, their spies went into hiding amid a newly aggressive counter-espionage campaign from Moscow. The Times sources offered a variety of theories to explain what could have spooked their assets, but the most disturbing among them was the fact that the Republican-led House Intelligence Committee had exposed a Kremlin-connected FBI and CIA source as part of a campaign of unprecedented disclosures regarding America’s intelligence gathering process.
The disclosure that compromised a U.S. informant is only one in a seemingly endless cascade of classified information that Republicans claim must be revealed to the public if we are ever going to get to the bottom of the sprawling conspiracy that was put together to prevent Donald Trump from becoming president. The president’s allies in Congress have appealed to previously unused methods to reveal confidential House Intelligence Committee memos and even highly secretive Foreign Intelligence Surveillance Act warrants, but none of it has satisfied Donald Trump or his defenders. There is always another document to release.
Last week, President Trump publicly ordered his Justice Department to declassify the redacted portions of a FISA warrant targeting Trump campaign advisor Carter Page, related FBI interviews, and text message sent by former FBI Director James Comey. These documents were supposedly related to the special counsel’s investigation into his campaign, even though he confessed that he had “not reviewed them.” Of the investigation, the president said, “This is a witch hunt.” The move satisfied many in Congress who insist that the president’s own Justice Department is persecuting him, but Trump confessed that he had ordered the declassification at the behest of his ardent supporters in conservative media such as Lou Dobbs and Jeanine Pirro.
Trump’s order triggered a brief review of the most sensitive aspects of the intelligence he was prepared to declassify, and it seems that this information was sensitive enough that Trump’s advisers were able to convince him of the need to reverse course. And so, he did. On Friday, Trump announced that he would not allow the release of documents that “could have a negative impact on the Russia probe” and would jeopardize American relations with its key allies. And though he reserved the right to disclose these documents in the future, they would not be forthcoming anytime soon.
Trump’s allies in Congress were crestfallen. Three members told Fox News Channel’s Catherine Herridge that they were “blindsided” and “demoralized” by Trump’s about-face, but the president made a sober and rational decision. Not only has the withholding of these documents avoided the appearance of interference with Robert Mueller’s probe, but the president has also preserved America’s intelligence-sharing relationship with what he described as “two very good allies” that objected to the declassification.
Trump’s defenders in Congress who are inclined to flog the “deep-state” conspiracy theory should not be so disconsolate. According to ABC News’ sources, the documents Trump was prepared to disclose—just like documents before them—contained no smoking gun. Their sources insist that the documents and communications at issue would not have confirmed the suspicion among some observers that the FBI’s probe into the Trump campaign was based on the intelligence provided by former MI6 agent Christopher Steele. Instead, they would have confirmed that the investigation into Trump’s campaign began well before the FBI’s receipt of the “Steele dossier.” And when these disclosures failed to satisfy those who are most invested in nursing Trump’s persecution complex, there would be demands for more declassifications and more disclosures.
Conservatives with a healthy mistrust of federal agencies and the prevailing political culture within them may scoff at skeptics who are not eager to see U.S. intelligence documents sloppily released to the public. There are, after all, valid questions about the FISA Court’s oversight and the extent to which Americans’ Fourth Amendment rights are protected in counter-intelligence investigations that long predate Carter Page’s travails. But the interagency process and the oversight of appropriate redactions are designed to protect American intelligence assets and the assets of U.S. allies. It is all intended to preserve the integrity of U.S. sources and the methods they use to keep Americans safe.
If the Democratic Party was demanding these unprecedented disclosures with no regard for the geopolitical fallout and national-security risks they could incur, Republicans, you could be certain, would be raising hell. And they would be absolutely right to do so.
Choose your plan and pay nothing for six Weeks!
RIP Paulina Płaksej.
It’s only Monday evening, which means Americans face another full week of political and cultural squalor. For an antidote, consider Paulina Płaksej, who died Sunday, aged 93. Our former COMMENTARY colleague Daniella Greenbaum broke news of Płaksej’s death on Twitter, which alerted me (and many others) to her inspiring life and that of her family, Polish Catholics who fed, hid, and rescued Jews during the Holocaust.
Zachariasz and Bronisława Płaksej, Paulina’s parents, moved from Lviv, Ukraine, to Kałusz before the outbreak of the war. There, Zachariasz worked as an accountant at a local mine and developed warm relations with the area’s Jews. Toward the end of 1941, when the Nazis forced the Jews of Kałusz into a newly created ghetto with an eye toward their extermination, Zachariasz and his family “acted as couriers, smuggling notes in and out of the ghetto,” according to the Jewish Foundation for the Righteous. Soon, assisting persecuted Jews became the family’s main business.
It helped that they resided on the outskirts of town. As Paulina later recounted, “we lived in seclusion and not in the center of the town, so it was very convenient for us. We were surrounded by gardens, orchards, the river was flowing nearby, and there was a slaughterhouse not far away. The Germans rarely visited this place, so our life was peaceful…” Even before the creation of the ghetto, Jewish children would stop by the Płaksej home for a bowl of hot soup and a brief respite from the cruelty of daily life under occupation.
Her father, Paulina recalled, “was a very religious person, and he believed that you should always help a man, your fellow creature, as our religion has it. The Jewish victim was not simply a Jew, but your fellow, a human being, wasn’t he?”
The Płaksejs took extraordinary risks to that end, creating an underground pipeline from the Kałusz ghetto to safety for Jews targeted for liquidation:
The first family to escape [the ghetto] was Sara, Solomon, and their son, Imek. They temporarily hid at Paulina’s house. When it became too dangerous for them to stay there, Zacharias found a safer place for them to hide. He brought Sara, Solomon, and Imek to a trusted friend who was already hiding Jews in a bunker beneath his barn. Later, another Jewish woman, Rozia, escaped from the ghetto and sought out the Plaksej family. They also brought her to the farmer’s bunker. Paulina regularly brought whatever food and supplies were needed. Sara, Solomon, Imek, and Rozia, along with thirteen other Jews, stayed in this bunker for over a year. To this day, the identity of the farmer is not known.
In 1944 Miriam, another inhabitant of the ghetto, learned that the Germans planned to liquidate the ghetto and deport or murder the inhabitants. Miriam asked Zacharias to save her two-year-old daughter, Maja. Zacharias contacted Miriam’s former maid and arranged for her to come rescue Maja. The maid brought a horse and cart, and the Jewish police helped smuggle the little girl out of the ghetto. The maid told her neighbors that this little girl was her daughter who had just returned from living with her grandparents.
Miriam was in one of the last groups of Jews to be deported to Auschwitz. As her group was marched to the train, Miriam quickly took off her armband and joined the crowds in the street. She went straight to the Plaksej house asking for help. They hid her in their wardrobe for a number of months. Zacharias obtained forged papers for her and took her to another village where she would not be recognized as a Jew. There she was picked up as a Pole and sent to a German farm as a forced laborer. After the war, she returned to the maid’s house, picked up her daughter, and reunited with her husband. Due to the efforts of Paulina and her family, all of the Jews they helped survived the war.
The State of Israel in 1987 recognized Paulina and her parents as Righteous Among the Nations. May we never forget these stories, and may we all strive to follow in their footsteps, even and especially amid our contemporary squalor.
Choose your plan and pay nothing for six Weeks!
Podcast: Kavanaugh and Rosenstein.
Can you take what we say about the nomination of Brett Kavanaugh seriously considering we’re conservatives and he’s a conservative? Are we defending him because we are genuinely discomfited by how insubstantial the allegations against him are, or are we doing so because we agree with him ideologically? We explore this on today’s podcast. Give a listen.