The showtrial of a somewhat
arbitrarily selected group of 21 surviving Nazis at Nuremberg during 1945-46
was US Supreme Court Justice Robert Jackson’s show. Jackson was the chief
prosecutor. As a long-time admirer of Jackson, I always assumed that he did a
My admiration for Jackson stems from
his defense of law as a shield of the people rather than a weapon in the hands
of government, and from his defense of the legal principle known as mens
rea, that is, that crime requires intent. I often cite Jackson for his defense
of these legal principles that are the very foundation of liberty. Indeed, I
cited Jackson in my recent July 31 column. His defense of law as a check on
government power plays a central role in the book that I wrote with Lawrence
Stratton, The Tyranny of Good Intentions.
In 1940 Jackson was US Attorney
General. He addressed federal prosecutors and warned them against “picking the
man and then putting investigators to work, to pin some offense on him. It is
in this realm—in which the prosecutor picks some person whom he dislikes or
desires to embarrass, or selects some group of unpopular persons and then looks
for an offense—that the greatest danger of abuse of prosecuting power lies. It
is here that law enforcement becomes personal, and the real crime becomes that
of being unpopular with the predominant or governing group, being attached to
the wrong political views or being personally obnoxious to, or in the way of,
the prosecutor himself.”
Later as a Supreme Court justice
Jackson overturned a lower court conviction of a person who had no idea, or any
reason to believe, that he had committed a crime.
Having just finished reading David
Irving’s book Nuremberg (1996), I am devastated to learn that in his
pursuit of another principle, at Nuremberg Jackson violated all of the legal
principles for which I have so long admired him. To be clear, at Nuremberg
Jackson was in pursuit of Nazis, but their conviction was the means to his end—the
establishment of the international legal principle that the initiation of war,
the commitment of military aggression, was a crime.
The problem, of course, was that at
Nuremberg people were tried on the basis of ex post facto law—law
that did not exist at the time of their actions for which they were convicted.
Moreover, the sentence—death by
hanging—was decided prior to the trial and prior to the selection of
Moreover, the defendants were chosen
and then a case was made against them.
Exculpatory evidence was withheld.
Charges on which defendants were convicted turned out to be untrue.
The trials were so loaded in favor of
the prosecution that defense was pro forma.
The defendants were abused and some
The defendants were encouraged to
give false witness against one another, which for the most part the defendants
refused to do, with Albert Speer being the willing one. His reward was a prison
sentence rather than death.
The defendants’ wives and children
were arrested and imprisoned. To Jackson’s credit, this infuriated him.
President Franklin D. Roosevelt,
General Eisenhower, and Winston Churchill thought that surviving Nazis should
be shot without trial. Roosevelt laughed about liquidating 50,000 German
military officers. Eisenhower told Lord Halifax that Nazi leaders should be
shot while trying to escape, the common euphemism for murder. Russians spoke of
castrating German men and breeding German women to annihaliate the German race.
US Treasury Secretary Henry Morgenthau wanted to reduce Germany to an agrarian
society and send able-bodied Germans to Africa as slaves to work on “some big
Robert Jackson saw in these
intentions not only rank criminality among the allied leadership but also a
missed opportunity to create the legal principle that would criminalize war,
thus removing the disaster of war from future history. Jackson’s end was
admirable, but the means required bypassing Anglo-American legal principles.
Jackson got his chance, perhaps
because Joseph Stalin vetoed execution without trial. First a showtrial, Stalin
said, to demonstrate their guilt so that we do not make martyrs out of Nazis.
Whom to select for the list of 21-22
persons to be charged? Well, whom did the allies have in custody? Not all those
they desired. They had Reichsmarschall Herman Göring who headed the air force.
Whatever the valid charges against Göring, they were not considered to be
mitigated by the fact that under Göring the German air force was mainly used
against enemy formations on the battleground and not, like the US and British
air forces in saturation terror bombing of civilian cities, such as Dresden,
Tokyo, Hiroshima, and Nagasaki, or by the fact that in Hitler’s final days
Hitler removed Göring from all his positions, expelled him from the party, and
ordered his arrest.
The Nuremberg trials are paradoxical
in that the law Jackson intended to establish applied to every country, not to
Germany alone. The ex post facto law under which Germans were
sentenced to death and to prison also criminalized the terror bombing of German
and Japanese cities by the British and US air forces. Yet, the law was only
applied to the Germans in the dock. In his book, Apocalypse 1945: The
Destruction of Dresden (1995), Irving quotes US General George C.
McDonald’s dissent from the directive to bomb civilian cities such as Dresden.
Gen. McDonald characterized the directive as the “extermination of populations
and the razing of cities,” war crimes under the Nuremberg standard.
They had foreign minister Ribbentrop.
They had field marshalls Keitel and Jodl and the grand-admirals Raeder and
Dönitz. They had a German banker, who was saved from sentencing by the
intervention of the Bank of England. They had a journalist. They had Rudolf
Hess who had been in a British prison since 1941 when he went to Britain on a
peace mission to end the war. They wanted an industrialist, but Krupp was too
old and ill. He was devoid of the persona of a foreboding evil. You can read
the list in Irving’s book.
Göring knew from the beginning that
the trial was a hoax and that his death sentence had already been decided. He
had the means (a poison capsule) throughout his imprisonment to commit suicide,
thus depriving his captors of their planned humiliation of him. Instead, he held
the Germans together, and they stood their ground. Possessed of a high IQ, time
and again he made fools of his captors. He made such a fool of Robert Jackson
during his trial that the entire court burst out in laughter. Jackson never
lived down being bested in the courtroom by Göring.
And Göring wasn’t through with making
his captors look foolish and incompetent. He, the field marshalls and grand
admiral requested that they be given a military execution by firing squad, but
the pettiness of the Tribunal wanted them hung like dogs. Göring told his
captors that he would allow them to shoot him, but not hang him, and a few
minutes before he was to be marched to the gallows before the assembled press
and cameras he took the poison capsule, throwing the execution propaganda show
into chaos. To this injury he added insult leaving the prison commandant, US
Col. Andrus a note telling him that he had had 3 capsules. One he had left for
the Americans to find, thus causing them to think his means of escaping them had
been removed. One he had taken minutes prior to his show execution, and he
described where to find the third. He had easily defeated the continuous and
thorough inspections inflicted upon him from fear that he would commit suicide
and escape their intended propaganda use of his execution.
There was a time in Anglo-American
law when the improprieties of the Nuremberg trials would have resulted in the
cases being thrown out of court and the defendants freed. Even under the ex
post facto law and extra-judicial, extra-legal terms under which the
defendants were tried, at least two of the condemned deserved to be cleared.
It is not clear why Admiral Donitz
was sentenced to 10 years in prison. The chief American judge of the Tribunal,
Francis Biddle, said: “It is, in my opinion, offensive to our concept of
justice to punish a man for doing exactly what one has done himself.” “The
Germans,” Biddle said, “fought a much cleaner war at sea than we did.“
Jodl, who countermanded many Nazi
orders, was sentenced to death. The injustice of the sentence was made clear by
a German court in 1953 which cleared Jodl of all Nuremberg charges and
rehabilitated him posthumously. The French justice at the Nuremberg Tribunal
said at the time that Jodl’s conviction was without merit and was a miscarriage
The entire Nuremberg proceeding
stinks to high heaven. Defendants were charged with aggression for the German
invasion of Norway. The fact was kept out of the trial that the British were
about to invade Norway themselves and that the Germans, being more efficient,
learned of it and managed to invade first.
Defendants were accused of using
slave labor, paradoxical in view of the Soviets own practice. Moreover, while
the trials were in process the Soviets were apparently gathering up able-bodied
Germans to serve as slave labor to rebuild their war-torn economy.
Defendants were accused of mass
executions despite the fact that the Russians, who were part of the prosecution
and judgment of the defendants, had executed 15,000 or 20,000 Polish officers
and buried them in a mass grave. Indeed, the Russians insisted on blaming the
Germans on trial for the Katyn Forest Massacre.
Defendants were accused of aggression
against Poland, and Ribbentrop was not permitted to mention in his defense the
Molotov-Ribbentrop Pact that divided Poland between Germany and the Soviet
Union, without which Germany could not have attacked Poland. The fact that the
Soviets, who were sitting at Nuremberg in judgment on the Germans, had
themselves invaded Poland was kept out of the proceedings.
Moreover, without the gratuitous
British “guarantee” to Poland, the Polish military dictatorship would likely
have agreed to return territories stripped from Germany by the Versailles
Treaty and the invasion would have been avoided.
The greatest hypocrisy was the charge
of aggression against Germany when the fact of the matter is that World War 2
began when the British and French declared war on Germany. Germany conquered
France and drove the British from the European Continent after the British and
French started the war with a declaration of war against Germany.
Irving’s book is, of course,
politically incorrect. However, he lists in the introduction the voluminous
files on which the book is based: Robert Jackson’s official papers and Oral
History, Francis Biddle’s private papers and diaries, Col. Andrus’ papers, Adm.
Raeder’s prison diary, Rudolf Hess’ prison diary, interrogations of the
prisoners, interviews with defense counsel, prosecutors, interrogators, and
letters from the prisoners to their wives. All of this and more Irving has made
available on microfilms for researchers. He compared magnetic tape copies of
the original wire-recordings of the trial with the mimeographed and published
transcripts to insure that spoken and published words were the same.
What Irving does in his book is to
report the story that the documents tell. This story differs from the patriotic
propaganda written by court historians with which we are all imbued. The
question arises: Is Irving pro-truth or pro-Nazi. The National Socialist
government of Germany is the most demonized government in history. Any
lessening of the demonization is unacceptable, so Irving is vulnerable to
demonization by those determined to protect their cherished beliefs.
Zionists have branded Irving a
“holocaust denier,” and he was convicted of something like that by an Austrian
court and spent 14 months in prison before the conviction was thrown out by a
In Nuremberg, Irving removes
various propaganda legends from the holocaust story and reports authoritative
findings that many of the concentration camp deaths were from typhus and
starvation, especially in the final days of the war when food and medicine were
disappearing from Germany, but nowhere in the book does he deny, indeed he
reports, that vast numbers of Jews perished. As I understand the term, a simple
truthful modification of some element of the official holocaust story is
sufficient to brand a person a holocaust denier.
My interest in the book is Robert
Jackson. He had a noble cause—to outlaw war—but in pursuit of this purpose he
established precedents for American prosecutors to make law a weapon in their
pursuit of their noble causes just as it was used against Nazis—organized crime
convictions, child abuse convictions, drug convictions, terror convictions.
Jackson’s pursuit of Nazis at Nuremberg undermined the strictures he put on US
attorneys such that today Americans have no more protection of law than the
defendants had at Nuremberg.