U.S. compares 9/11 cases to Nuremberg trials

updated 4:58 p.m. ET Feb. 12, 2008

WASHINGTON - The Bush administration has instructed U.S. diplomats abroad to defend its decision to seek the death penalty for six Guantanamo Bay detainees accused in the Sept. 11 terrorist attacks by recalling the executions of Nazi war criminals after World War II.

A four-page cable sent to U.S. embassies and obtained Tuesday by The Associated Press says that execution as punishment for extreme violations of the laws of war is internationally accepted and points to the 1945-46 International Military Tribunals as an example. Twelve of Adolf Hitler's senior aides were sentenced to death at the trials in Nuremberg, Germany, although not all were executed in the end.

The unclassified cable was sent by the State Department to all U.S. diplomatic missions worldwide late on Monday.

In it, the department advises American diplomats to refer to Nuremberg if asked by foreign governments or media about the legality of capital punishment in the 9/11 cases.

"International Humanitarian Law contemplates the use of the death penalty for serious violations of the laws of war," says the cable, which was written by the office of the department's legal adviser, John Bellinger.

"The most serious war criminals sentenced at Nuremberg were executed for their actions," it said.

Using Nuremberg as a historic precedent
The cable makes no link between the scale of the crimes perpetrated by the Nazis, which included the Holocaust that killed some 6 million European Jews and other minorities, and those allegedly committed by the Guantanamo detainees, who are accused of murder and war crimes in connection with 9/11, in which nearly 3,000 people died.

But it makes clear that the U.S. administration sees Nuremberg as a historic precedent in asking for the Sept. 11 defendants to be executed.

The decision to seek the death penalty for these defendants is likely to draw criticism from the international community. A number of countries, including U.S. allies, have said they would object to the use of capital punishment for their nationals held at Guantanamo.

The cable is written in a question-and-answer format in anticipation of inquiries that diplomats may get from foreigners about the Pentagon's Monday announcement of the trial and charges.

"Posts are asked to draw from the points provided below in responding to foreign government and media requests regarding this announcement," it says in a one-paragraph summary under the subject heading: "Q and A — Guantanamo Detainees Charged for 9/11."

Much of the cable is taken up with descriptions of the defendants and the allegations against them as well as assurances they will receive fair trials.

The Nuremberg reference is in the response offered to the sample question: "Doesn't the application of the death penalty to these defendants violate international law?"

The one-word answer provided before the explanation that invokes Nuremberg: "No."

The unprecedented proceeding will be the first capital trial under the terrorism-era U.S. military tribunal system.

Despite the confidence of military prosecutors, the case has been clouded by revelations that the key suspect, Khalid Sheikh Mohammed, the suspected mastermind of the attacks in which hijackers flew planes into buildings in New York and Washington, was subjected to interrogation tactics that critics call torture.

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