Due Process On Campus: We Treated Nazi War Criminals Better

Following World War II, the Allies, including the United States, dedicated their efforts to trying Nazis for the atrocities committed. I was reminded of this when St. John’s lawprof John Q. Barrett sent out his latest Jackson List email*.

On August 8, 1945, Justice Robert H. Jackson and his Allied Nation counterparts signed the historic London Agreement.  It created the International Military Tribunal and, in a Charter annexed to the Agreement, prescribed the IMT’s constitution, jurisdiction and functions.

The London Agreement fulfilled and advanced Allied leaders’ declarations during World War II that the major German Nazi leaders were international law violators, that their offenses transcended particular locations and affected more than particular victims, and that these criminals thus should be, after their military defeat and captures, punished by an Allied international process.

To call the Nazis, and the atrocities they committed, criminals is an understatement beyond any other.  It’s hard, if not impossible, to find human beings who engaged in worse crimes against humanity.  Certainly, if there were any people unworthy of being treated fairly, or being given the opportunity to defend themselves, it was the Nazis.  And yet:

The Charter also defined “fair trial” procedures, including defendants’ rights to particularized indictments, to testify, to have the assistance of counsel, to present evidence, and to cross-examine prosecution witnesses.

Edward Wiest was kind enough to run down the details of the charter, and found this:

Article 16.

In order to ensure fair trial for the Defendants, the following procedure shall be followed:

(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.

(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.

(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.

(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.

(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

That’s right.  Even Nazi war criminals were given all the requisite elements of due process. The worst of the worst, and yet we gave them fairness. Not because they necessarily deserved it, but because we were better than they were.  We honored our own ideals, as much as we despised theirs.

Indeed, it wasn’t that there was universal agreement that the Nazis deserved due process.  The British preferred to just hang them rather than hold the Nuremberg tribunals, but the United States’ belief in due process prevailed. They were tried with the panoply of due process rights, even though they murdered at will.  That’s what distinguished us from them.

Juxtapose this with the way in which male students are treated in American colleges, where the issue of how much due process should exist is contrasted with the express need to protect female students from the trauma of being subjected to the rigors of due process.

In two recent decisions, one involving UC San Diego and the other at Washington & Lee University, judges held the procedures employed to fall far below anything remotely resembling fundamental fairness for the accused.  That there is a debate over what constitutes basic procedural and substantive fairness would border on the absurd, but for the excuses proffered in support of denying due process.

First, it would re-traumatize “survivors” of sexual assault to subject them to scrutiny and cross-examination.  Put aside that it presumes accusers to be victims in advance of proof, as there is a strong political wind based on the mythology of a sexual assault epidemic that the need to make it safe for accusers to accuse trumps any need for rigor, whether in the definition of what constitutes a rape or sexual assault, or in the evidence to move beyond the bald accusation to acting upon it.

At Nuremberg, survivors of Nazi death camps, who watched their family, their parents, spouses and children, were murdered, were required to tell their stories, to be subject to cross-examination, to be held to their account. These were survivors, as they faced death and lived to tell about it.  And they did.

You want trauma?  They suffered trauma. Yet, they did not complain. They did not demand to be hidden behind a screen so their delicate eyes wouldn’t have to behold the person they were accusing.  They were not shielded from questions by a college administrator specially trained in sensitivity to the needs of women who couldn’t, shouldn’t, be expected to give a credible account, because women suffer such terrible trauma undergoing sex that was consensual until a rape advocate explained to them why it wasn’t.

And second, if we afford due process to male college students, someone might not be convicted. That too would re-traumatize the survivors, who are entitled to be believed at all costs.  And let’s not go near the other due process rights, the right to counsel, to remain silent, to be informed of the accusations against you. You know, the rights we gave to Nazi war criminals.

That the United States of America was firm enough in its belief in due process to afford it to Nazi war criminals is a proud moment at a time when we had horrible disgraces as well.  Yet, we argue and deny these basic requirements of fairness to our own children today.

Are they less worthy of fundamental fairness than Nazi war criminals?  Or are the victims of sexual assault on campus more worthy of our concern for their trauma than holocaust survivors?  Or is this yet another disgraceful moment in our history, to be ashamed of in the future when we realize how we’ve subverted our values.


* If you’re not on the Jackson List, you are not allowed to read any further because you fail to demonstrate the level of intellectual curiosity and strength to be worthy of SJ. You can sign up for the Jackson List by sending a “subscribe” note to [email protected].

23 thoughts on “Due Process On Campus: We Treated Nazi War Criminals Better

  1. DDJ

    I really don’t see this public policy train wreck being roped in by reasoned comment or debate. And unfortunately the young men who are being quietly skewered for roasting by these quasi-legal processes are nowhere to be seen or heard in protest. Presumably it would detract too much from thier videogame and online porn time to actually form an opinion and articulate a response.

    My only hope in the matter is that I live long enough for the GIRLS involved in this fraud to grow into WOMEN and start families… half of who’s offspring will be male.

    Then one day to have one of their own sweet innocents suddenly become a “rapist” because some casual sex partner changes her mind the day after.

    Ah, sweet irony. I can’t wait.

    1. SHG Post author

      That could be a long time in coming. Young people are marrying much later, having babies later in life, if at all, all for the narcissistic entitlement of being able to be whoever they want to be, as if the rest of life will remain on hold until they get around to growing up.

      After the 20-30 years elapses when they would be ready to become grown-ups, the amount of damage done could be unfixable. The only non-rapists left will be those males who never attended college, and hence were never convicted of consensual sex with post-hoc regret. And, of course, they will not be suitable spouses for women with gender studies degrees from Sarah Lawrence. Then again, they won’t be interested in those women, who have aged beyond their more attractive years, moved into the “high-risk pregnancy” corp, and have nothing interesting to say as they only talk about themselves and their feelz.

      It’s going to be very interesting watching the sexual dynamic of the species going forward.

    2. Patrick Maupin

      And unfortunately the young men who are being quietly skewered for roasting by these quasi-legal processes are nowhere to be seen or heard in protest.

      It’s already too late for the ones who learn what’s going on. And once they’ve been skewered? They probably get a lawyer, who probably correctly tells them “For the love of God, just shut up. You don’t want the first 20 hits at google on your name to include the word “rape””.

    3. Wrongway

      “And unfortunately the young men who are being quietly skewered for roasting by these quasi-legal processes are nowhere to be seen or heard in protest. Presumably it would detract too much from thier videogame and online porn time to actually form an opinion and articulate a response.”

      well, this guy attending W&L did.. & with his lawyer, did a pretty good job..
      don’t throw a blanket over them all..

  2. Wrongway

    that W&L decision started out like reading the phone book, but as it got deeper, .. Wow!!.. these faculty members think they’re FBI handing out NSL’s or something..
    “talk to no one” seemed to be the theme of their investigation of him..
    maybe its a good thing the campus police weren’t… ok I’ll drop it.. (but what if we had a Homen Square type thing ??)

  3. mb

    I’m really concerned about the type of people who can survive 20+ years of due-process-free speech codes and harassment policies becoming lawyers, judges, and other leaders.

    Someone who sees nothing wrong punishing those who can’t be proven guilty by fair process lack the intellectual tools and moral courage to be fit for such positions.

    But then, the arguments I’ve seen supporting affirmative consent policies are so intellectually bankrupt that any lawyer who utters such crap in public should be disbarred for being a moron. So, due process has really become a side issue.

      1. mb

        It’s worse than that. I’m one of the ones that works at. . . well, it’s not exactly Dairy Queen, but it ain’t the law.

  4. Pingback: Stagnant Millennials | The Sun Also Rises

    1. SHG Post author

      Since this post is premised on the due process afforded the defendants at the Nuremburg tribunals, it’s kinda hard to leave the Nazis out of it. I think Godwin’s Rule doesn’t apply when the Nazis actually are the subject.

      1. John

        Reductio ad Hitlerum?

        Sorry, doesn’t really play here, but sounds very, very intelligent. Which is all I aim for (the act, not the actuality).

      1. losingtrader

        Yes, but the post was about due process. The argument is for due process for college students if the premise is Nazis received it.

  5. Marc R

    Preaching to the choir. Beyond the Article 16 those Nazis received a confrontation clause right as their counsel could question the reliability of the traumatized people. Imagine counsel at an Honors Court hearing arguing the “rape” trauma affected their memory. In fact, reading Justice Jackson’s cross examination floundering in Nuremberg the Russians surely laughed at us giving nazi propaganda a chance for a final defense. Obviously it was the right thing to do; nazi leaders were questioned about the morality of their party and they were adjudicated guilty notwithstanding their highly logical answers from false premises that Jackson couldn’t exploit. Now the British prosecutor, he used that famous dry wit and had nazi look as crazy and evil as we realize it today.

    1. SHG Post author

      I realized with this comment that the comprehensibility problem stems from your having omitted half the words that would have made it a decent comment. It’s amazing and appalling at once to read your comments. Use all the words. Write in full sentences with complete thoughts. Make them comprehensible. Or if you can’t bother, don’t comment at all. But this has got to stop.

      1. Marc R

        Sorry the iPhone adds some nonsensical words where I typed one apropos word. And on mobile sometimes the cursor inexplicably drops to the bottom of the comment and scrolling up I’ll see some iPhone changes but I can’t see them all on the screen. Sorry, Scott.

        1. SHG Post author

          This has been a problem with your comments for a while. Sorry about your iPhone issues, but your comments have been incomprehensible. Please, stop using the iPhone and get a big boy phone.

          Better yet, comment from a real computer.

          1. Marc R

            Yes I’m going back to samsung galaxy. That was my mistake straying into Apple. I wish my current locale had wifi but I’m using the 4G on my cell. Sitting in a weird Florida town today to avoid leaving at 3am to drive to alabama’s southern territory (anything north of Jupiter/Hobe Sound area).

            I’ll just have to edit more carefully. No excuse, sorry.

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