Justice at Dachau

• Pages: 07

164 MILITARY LAW REVIEW [Vol. 181

JUSTICE AT DACHAU1

REVIEWED BY MAJOR WARREN L. WELLS2

If you are determined to execute a man in any case, there is no occasion for a trial . . . . Lynch law . . .often gets the right man. But its aftermath is a contempt for the law, a contempt that breeds more criminals. It is far, far better that some guilty men escape than that the idea of law be endangered. In the long run, the idea of law is our best defense against Nazism in all its forms.3

When President George W. Bush authorized the use of military tribunals to try suspected terrorists and their aiders and abettors,4 critics wondered whether the system would provide due process of law to the men detained at Guantanamo Bay, Cuba.5 Critics claimed that military tribunals would make a mockery of the justice system under the rule of law.6 Military attorneys helped prepare tribunal rules and procedures in order to

1. JOSHUA M. GREENE, JUSTICE AT DACHAU: THE TRIALS OF AN AMERICAN PROSECUTOR

   (2003).

2. U.S. Army. Instructor, Military Justice, Air Force Judge Advocate General's School, Maxwell Air Force Base, Montgomery, Alabama.

3. GREENE, supra note 1, at 115 (quoting Lieutenant Colonel (LTC) Douglas T. Bates, chief defense counsel of former Dachau concentration camp administrators).

4. See Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001).

5. See, e.g., Michael Eric Dyson, Editorial, Basic Rights Under Siege, CHI. SUNTIMES, Nov. 20, 2001, at 29 (arguing that trying suspected terrorists before military tribunals is "dangerous, even frightening" because the tribunals are a "threat to the moral and legal fabric of [our] society;" and that they may result in a "rejection . . . of due process" that "smacks of injustice"); Katharine Q. Seelye, A Nation Challenged: The Military Tribunals, N.Y. TIMES, Dec. 8, 2001, at B7 (reporting more than 300 law professors were protesting the presidential order for military tribunals).

6. See, e.g., Frank Davies, Plan to Try Terrorists Raises Debate Over Powers, MIAMI

   HERALD, Nov. 15, 2001, at 27A (reporting that some activists and legislators questioned the President's power to order tribunals and the wisdom of having proceedings that omit rights provided to citizens in ordinary criminal trials); Todd J. Gillman, Tribunal Raises Civil Rights Questions; Cheney Defends Military Court; Others Say It Sidesteps Constitution, DALLAS MORNING NEWS, Nov. 15, 2001, at 1A (quoting critics who called the authorization of military tribunals "unprecedented" without a declaration of war, "hypocritical," a "suspension of civil rights" that should be "an impeachable offense," and "too costly to fundamental rights").

   preserve the integrity of the justice system and also accomplish the President's objective of efficiently punishing wrongdoers.7

   According to Joshua Greene, military attorneys trying Nazi concentration camp guards and administrators were equally concerned about perceptions that their tribunals lacked due process.8 Like the pending tribunals of the early 21st century, the tribunals of 1945-47 received their fair share of criticism. For example, Supreme Court Justice Harlan Stone compared the war crimes trials in Nuremburg to a "lynching party" and a "pretense" court, while Senator Robert Taft argued that the "spirit of vengeance" at the trials threatened to overshadow history's view of justice meted out there.9

   One of Greene's primary themes in Justice at Dachau is that the military tribunals of the late 1940s, and particularly the advocacy of prosecutor William Denson, succeeded in obtaining a one-hundred percent conviction rate while affording defendants fair trials with full due process rights.10 Greene's other focus of the book is to honor Denson's work and to educate the public about the often-overlooked trials.11 In the end, Greene provides details enough to whet the reader's appetite, but he leaves his literary guests hungry in all three areas.

   Denson and Due Process

   The subtitle of Justice at Dachau, The Trials of an American Prosecutor, focuses on the efforts of LTC William Denson, the chief prosecutor of the leaders of the Dachau, Mauthausen, Flossenburg, and Buchenwald concentration camps. While Denson was only a part of the system of prosecutors and defenders created to conduct war crime tribunals through-7. See A Nation Challenged, N.Y. TIMES, Dec. 7, 2001, at B6 (providing excerpts from Attorney General John Ashcroft's testimony before the Senate Judicial Committee regarding the Bush administration's vision regarding military tribunals for suspected terrorists).

8. See GREENE, supra note 1, at 231-32.

9. Id.

10. See id. at 357.

11. See id. at 4.

    out Germany,12 he personally tried more Nazis than any other single prosecutor.13

    In all, William Denson spent almost two years prosecuting officials of four of the most notorious German concentration camps.14 According to Greene, Denson logged long hours and expended superhuman effort to ensure that prosecutions were both just and impartial.15 Denson, the author asserts, wanted to conduct the trials so that observers from throughout the world and historians would not ascribe harsh sentences to "victors' justice," but to the validity of charges and evidence brought before tribunals that afforded due process of law.16 Greene concludes that Denson's efforts validated the effective use of tribunals, and that Denson's "greatest contribution [was getting] convictions according to due process and recognized international law."17

    Unfortunately for LTC Denson, Greene fails to clearly show how his protagonist sought complete due process for the 177 German concentration-camp officials18 he prosecuted. While William Denson may have intended to convict with due process, the illustrations Greene uses under-cut that proposition. For example, numerous defendants claimed that American interrogators, including Denson's lead investigator, Lieutenant (LT) Paul Guth, coerced incriminating statements from them.19 Denson never seriously investigated such allegations,20 even after other investigations substantiated claims that some American interrogators engaged in abuses.21 If investigators coerced statements from Germans, those confessions have far less credibility. On several occasions when defendants tried to explain away their written confessions as coerced, Denson

12. See id. at 16. At the conclusion of World War II, judge advocates conducted 189 war crimes tribunals involving 1,672 defendants in Germany and Japan. See id. Lieutenant Colonel Denson prosecuted 177 defendants before four tribunals. See id. at 2.

13. See id.

14. See id.

15. See id. at 232-33.

16. See id. at 3, 119.

17. Id. at 357.

18. See id. at 2.

19. See...