Jack Goldsmith's review of William Shawcross's book, Justice and the Enemy (New York Times Book Review, January 22, 2012), is appalling in its inaccuracy and lack of respect for justice. As Shawcross admits, the Nuremberg tribunals were ad hoc, and therefore illegal, military tribunals that applied ex post facto, and therefore inapplicable, laws to try Nazis for acts that had not been illegal when they were committed. The atrocities of some of these people were unspeakable, but if I recall correctly, others were found innocent and released. The similarity with Guantanamo pretty much ends there.
It has to be recognized that military commission trials are inseparable from the detainments. The categorization of the detainees as "illegal combatants" is an illegtal maneuver intended to avoid the legalities of civilian criminal proceedings or prisoner of war status. Many of the Guantanamo detainees (often innocent, including children) were held without charges or trials for years, without adequate legal representation, and a large percentage were held under inhumane conditions and tortured. The Guantanamo detentions were (and are) serious breaches of international and US laws -- not, as Shawcross and Goldsmith maintain, reasonable decisions made by an administration acting in good faith. The lies, the torture, the unconscionable continued retention of prisoners after they had been cleared, are yet another stain on our imperial history that will never be eradicated.
Goldsmith even goes so far as to refer to the Guantanamo detainees as "the perpetrators of 9/11," which is a lie. The suggestion that the military commissions "of the Bush era were more solicitous of defendants' right than the Nuremberg proceedings" is unlikely if we treat the detentions and the tribunals as part and parcel of the same thing. To suggest that Obama has conferred upon the military tribunals a legitimacy that his predecessor never could is egregious considering Obama and his predecessors should be facing trial for war crimes in the legitimate international courts.
Goldsmith, and apparently Shawcross, are participating in the perpetuation of an evil myth. Instead of speaking truth to the face of power they are defending the abuse of power. Now, with the passage of the National Defense Authorization Act, American citizens, even on American soil, face the same renditions, indefinite detention without trial, and torture suffered by foreign innocents caught up in the sham "war on terror." No one, anywhere, will be safe except the cronies of the plutocracy.