Über die Autorin bzw. den Autor

Michael S Lief is a senior deputy district attorney in Ventura, California. A former newspaper editor, he was a submarine driver for the U. S. Navy during the Cold War.

H. Mitchell Caldwell is a professor at Pepperdine University School of Law. A former deputy district attorney, he specializes in death-penalty litigation before the California Supreme Court.

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Ladies and Gentlemen of the Jury

Scribner Book Company

Chapter One

Architects of Genocide

The Victorious Allies Put Hitler's Henchmen in the Defendant's Box at Nüremberg

The Guns Fall Silent

Dawn came early to Reims, France, on the morning of May 7, 1945. This was notnature's dawn, but then the darkness which it ended was not the brief and prettypeace of nature's night. The darkness was a maelstrom made of men, bent onHolocaust and war. As the dawn finally came, the light of Europe's liberationfrom National Socialism illuminated the deeds of those evil men, who now facedjudgment for having turned much of the world on a perverted Axis of persecution,the darkest point of which was Nazi Germany.

At Reims, France, at 2:41 A.M., May 7, 1945, General Alfred Jodl, chief of theOperations Staff of the German High Command, signed the instrument ofunconditional surrender of all German land, sea, and air forces.

The newborn peace found more than 30 million dead, many of them civilians andAllied prisoners of war who endured a crimson march of displacement, internment,enslavement, deprivation, involuntary labor, quasimedical experimentation, and amyriad of other tortures, before their demise.

Genocide, the wholesale slaughter of the Jews wherever they could be found, wasto be the legacy of Hitler's Third Reich. The entire industrial might of amodern Western nation had been subverted, harnessed, to create an industry ofdeath. German companies submitted bids, hoping to win lucrative contracts tobuild ovens in which to burn Jews, to build chambers in which to gas Jews, andthe right to slave labor, supplied by the Jews and captured Slavs. It was clearto the victors that something new was necessary, to assign blame for theterrible war and its very modern atrocities. They decided that there were to bewar crimes trials, something that had never been done before. Rather thandispense summary judgment and execute the Nazi leadership, the rule of law wouldbe reestablished in Germany, after twelve lawless years of Nazi rule.

The bringing to justice of those still alive and responsible at the highestlevel of Nazi authority for these perfidious acts was part of the unfinishedbusiness of World War II, which the unconditional surrender of Germany madepossible but did not itself accomplish. Bringing that grave and arduous task toa conclusion became the job of the International Military Tribunal at Nüremberg,Germany, which heard and decided the Trial of the Major War Criminals of theEuropean Axis between November 20, 1945, and September 30, 1946. It is nowonder, then, that the chief counsel for the United States at the Nürembergtrial, justice Robert H. Jackson, declared that "Never before in legal historyhas an effort been made to bring within the scope of a single litigation thedevelopments of a decade, covering a whole continent, and involving a score ofnations, countless individuals, and innumerable events....This trial has a scopethat is utterly beyond anything that has ever been attempted that I know of injudicial history."

The Road to Nüremberg

Just as V-E Day made good the Allied promise of unconditional surrender, so theNüremberg trial was the culmination of Allied declarations of intention to bringto justice the major figures in the European Axis for their acts of aggressionand the atrocities committed by their minions during the Second World War. OnOctober 25, 1941 -- even before the entry of the United States into the war --President Roosevelt and Prime Minister Churchill made simultaneous statementswarning Axis leaders that their "crimes" would not go unpunished.

In order to gather evidence against such suspected war criminals, fifteennations, including the United States and Britain (but not the Soviet Union),formed the United Nations War Crimes Commission, which first convened in Londonon October 26, 1943. Shortly thereafter, on November 1, 1943, the leaders of theUnited States, Britain, and the Soviet Union issued the Moscow Declaration,which called for the following:

[A]t the time of the granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi party who have been responsible for, or have taken a consenting part in the atrocities, massacres, and executions, will be sent back to the countries where their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free government which will be erected therein...[but this policy] is without prejudice to the case of German criminals whose offenses have no particular geographical localization, and who will be punished by joint decision of the Governments of the Allies. (Emphasis added.)

It was this latter category of alleged war criminals which formed the caseloadof the International Military Tribunal at Nüremberg, and which gave to RobertJackson the greatest litigative challenge of his career.

In a memorandum to President Roosevelt, dated January 22, 1945, the secretariesof state and war and the attorney general recommended "ways and means forcarrying out the policy regarding the trial and punishment of Nazi criminals,"as follows:

After Germany's unconditional surrender the United Nations could, if they elected, put to death the most notorious Nazi criminals, such as Hitler or Himmler, without trial or hearing. We do not favor this method. While it has the advantage of a sure and swift disposition, it would be violative of the most fundamental principles of justice, common to all the United Nations. This would encourage the Germans to turn over these criminals, and, in any event, only a few individuals could be reached in this way.

We think that the just and effective solution lies in the use of the judicial method. Condemnation of these criminals after a trial, moreover, would command maximum public support in our own times and receive the respect of history. The use of the Judicial method will, in addition, make available for all mankind to study in future years an authentic record of Nazi crimes and criminality.

The three cabinet officers further recommended that "the trial of the primeleaders [be] by an international military commission or military court,established by Executive Agreement of the heads of State of the interestedUnited Nations." Such a court, the officers added, could consist of personsappointed by the "Big Four" powers of Britain, France, the United States, andthe Soviet Union, and by other Allied countries.

The cabinet officers also suggested that the prosecution of the major Nazileaders be directed by "a full-time executive group" composed of lead counselfrom the same Big Four powers.

At first, the cabinet officers' call for a war crimes tribunal met with lessenthusiasm abroad than at home. In an aide-mèmoire to the U.S. administrationdated April 23, 1945, the British government held "that it is beyond questionthat Hitler and a number of arch-criminals associated with him (includingMussolini) must, so far as they fall into Allied hands, suffer the penalty ofdeath for their conduct leading up to the war and for the wickedness which theyhave either themselves perpetrated or have authorized in the conduct of thewar." Consequently, London argued "that execution without trial is thepreferable course."

The Honorable Robert Jackson, associate justice of the United States SupremeCourt, disagreed. In a speech prepared for delivery to the American Society ofInternational Law on April 13, 1945 (the day after President Roosevelt's death),Jackson stated that "I am not so troubled as some seem to be over the problemsof jurisdiction of war criminals or of finding existing and recognized law bywhich standards of guilt may be determined." However, Jackson also cautionedthat "if you are determined to execute a man in any case, there is no occasionfor a trial. The world yields no respect to courts that are merely organized toconvict."

Thusly armed, Jackson set about forming a staff of attorneys for the coming warcrimes litigation. Among the deputy prosecutors selected by Jackson were U.S.Army Gen. Telford Taylor, who later served as chief of counsel for War Crimes atthe second round of trials held at Nüremberg before American judges between 1946and 1949, and Thomas Dodd, who later served as a United States senator fromConnecticut. He also opened an office in London, where he would meet withBritish, French, and Soviet representatives on the constitution and compositionof the upcoming war crimes tribunal and its proceedings.

Jackson was not only America's chief prosecutor at Nüremberg, but also thepresident's representative at the Big Four talks in London during June-August1945, where the rules of engagement for the International Military Tribunalwould be written. Thus, Jackson possessed a power few prosecutors before orsince him would have: to create the court before which he would appear, and toshape the substantive and procedural law which that court would apply to thecases he would present to it.

In giving shape to the Nüremberg trial, however, Jackson did not exerciseabsolute authority. Rather, he was obliged to work compromises in London withrepresentatives of Britain, France, and the Soviet Union, each with its ownseparate legal tradition. In particular, Jackson attempted in London toreconcile the Anglo-American and Continental systems of jurisprudence. Forexample, Jackson and his London interlocutors had to fashion an indictment ofthose to be tried before the tribunal. In doing so, Jackson admitted that he"would not know how to proceed with a trial [as in Continental countries] inwhich all of the evidence had been included in the indictment. I would not seeanything left for a trial, and, for myself, I would not know what to do in opencourt." In the end, Article 16 of the Charter of the International MilitaryTribunal, drafted as a compromise by Jackson and company at London, providedthat "the Indictment shall include full particulars specifying in detail thecharges against the Defendants."

Furthermore, Article 15(a) of the charter required the chief Allied prosecutorsto undertake the "investigation, collection, and production before or at theTrial of all necessary evidence" (emphasis added). Arguing in favor of a moreContinental approach, including an expedited form of trial practice and of aless rigid separation of the judicial and prosecutorial functions, was theSoviet representative, General Nikititchenko: "[T]he Soviet Delegation considersthat there is no necessity in trials of this sort to accept the principle thatthe judge is a completely disinterested party with no previous knowledge of thecase."

For his part, Jackson responded that the tribunal's "judges will have to inquireinto the evidence and reach an independent decision....That is the reason why,at the very beginning, the position of the United States was that there must betrials, rather than political executions...(1) have no sympathy with these men[i.e., the likely defendants], but, if we are going to have a trial, then itmust be an actual trial."

On August 8, 1945, Jackson was able to negotiate and obtain the Big Four'ssignatures on a Charter of the International Military Tribunal (IMT), aninternational executive agreement which provided for an independent panel offour judges (one each to be appointed by the American, British, French, andSoviet governments) responsible for drawing up its own rules of procedure, andempowered to impose convictions and sentences on war crimes defendants only uponthe approval of at least three of its members. Furthermore, the charter whichJackson negotiated guaranteed to defendants the rights to detailed notice of thecharges against them, to the assistance of counsel, to cross-examination ofprosecution witnesses, to presentation of a defense, and to a full translationof court proceedings.

In return, Jackson agreed with his negotiating partners that the proceedings ofthe tribunal "need not be encumbered with the legalisms of Anglo-Saxon law."Article 19 of the charter stated: "The Tribunal shall not be bound by technicalrules of evidence. It shall adopt and apply to the greatest possible extentexpeditious and nontechnical procedure, and shall admit any evidence which itdeems to have probative value." Also, Article 18 required the tribunal to"confine the trial strictly to an expeditious hearing of the issues raised bythe charges...."

On the subject of charges, Jackson helped in defining the following acts ascrimes within the Jurisdiction of the tribunal for which individualresponsibility could be found:

(a) Crimes Against Peace: namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing:

(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor members of the civilian population in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity:

(c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

The charter's definition of war crimes was largely compatible with longstandingprohibitions in United States and international law, including Francis Lieber'sInstructions for the Government of Armies of the United States in the Field,promulgated as General Orders No. 100 by President Abraham Lincoln on April 24,1863, and the Hague Conventions of 1899 and 1907 Respecting the Laws and Customsof War on Land. However, the inclusion of crimes against peace among thecharter's litany of actionable offenses was a bolder, more novel stroke byJackson and the U.S. administration to, in the words of Telford Taylor,"establish the initiation of aggressive war as a crime under universallyapplicable international law." Also, the separate category accorded to crimesagainst humanity gave heightened legal attention and importance to the conceptof "genocide" -- a concept newly named by a member of Jackson's Nüremberg staff-- the extermination of Jews and other minority groups under Nazi rule. Thedeputy prosecutor in question was Raphael Lemkin, who in later years lobbiedintensively for U.S. ratification of the United Nations Genocide Convention.

Also on the subject of charges, Article 9 of the charter authorized the tribunalthat a group or organization of which an individual defendant had been a member(e.g., the SS) "was a criminal organization." Article 10 in turn permitted anysignatory state to the charter to bring individuals to trial in separateproceedings on charges that they had been members of such a criminalorganization. "In any such case[s] the criminal nature of the group ororganization is considered proved and shall not be questioned." Jackson pressedhard for the enactment of these provisions, because they "constitute[d] themeans through which...a large number of people can be reached with a smallnumber of long trials -- perhaps one main trial. The difficulty in our case[i.e., that of the United States] is that we have in the neighborhood of perhaps200,000 prisoners. We don't want to have 200,000 trials."

On the subject of defenses, Jackson and the other Allied representativesprevented those at the top and those at the bottom of the Nazi chain of commandfrom escaping legal responsibility for the criminal orders they gave or the onesthey followed:

Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigation punishment.

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

In his report to President Truman dated October 7, 1946, Jackson correctly concluded that the Charter of the IMT "made explicit and unambiguous what was theretofore...implicating International Law" -- that the planning and waging of aggressive war and the mass dislocating and killing of racial, religious, and ethnic minorities are crimes whose perpetrators, high and low, individual and organizational, will be held accountable for before the bar of justice. To Jackson, the charter was more than the rules of a particular court: "It is a basic charter in the international law of the future."

The Nüremberg Trial

On August 29, 1945, Jackson and the other Allied prosecutors announced theindictment of twenty-four persons for trial before the IMT. The defendantsincluded:

Hermann Goering, Reichmarschal of the German Air Force, chief of War Economy,minister-president of Prussia, and, from 1939 until April 23, 1945, AdolfHitler's designated successor.

Rudolf Hess, the person to whom Hitler dictated his venomous politicaltestament, Mein Kampf ("My Struggle"), and Nazi party chairman, who in May 1941had parachuted into Scotland (where he was interned as a British prisoner ofstate for the duration of World War 11) in a madcap effort to negotiate peacewith King George VI.

Joachim von Ribbentrop, the Nazi German foreign minister who negotiated Japan'sadherence to the European Axis and who collaborated in the identification,deportation, and extermination of European Jewry.

Wilhelm Keitel, Hitler's closest military adviser, head of the High Command ofthe German Armed Forces, who issued orders for the wartime execution of Sovietcommissars and of non-German civilians who acted in opposition to Nazi rule.

Ernst Kaltenbrunner, head of the Reich Security Main Office of the SS, and inthat regard, overseer of the German Gestapo (secret state police).

Alfred Rosenberg, Reich minister of Eastern Occupied Territories and principalNazi party ideologist.

Hans Frank, Hitler's main legal adviser and his governor over much of Poland.

Wilhelm Frick, author of the Nüremberg Laws of 1935 which dispossessed GermanJews, Nazi minister of the Interior, and Reichsprotector of Bohemia and Moravia(now the Czech Republic).

Julius Streicher, self-proclaimed "Jew-Baiter Number One," publisher of theanti-Semitic Nazi newspaper Der Stuertner ("The Storm"), and principal organizerof the 1935 Nüremberg Rally at which Hitler announced his new laws against theJews.

Walter Funk, Nazi minister of Economic Affairs and president of the Reichsbankwhich helped finance German wartime aggression and the Final Solution of theJewish Question.

Hjalmar Horace Greeley Schacht, high-ranking prewar Reich economic adviser wholater joined the German resistance to Hitler.

Karl Doenitz, grand admiral of the German Navy, Hitler loyalist, and actingGerman head of state from April 30, 1945 (the date of Hitler's suicide) to May22, 1945 (the date of Doenitz's arrest by Allied authorities).

Erich Raeder, German Admiral Doenitz's predecessor as naval commander in chief.

Baldur von Schirach, head of the Hitler Youth and Wartime Gauleiter (Nazileader) of Vienna, Austria, whose paternal grandfather had served as a major inthe U.S. Army during the American Civil War and as an honorary pallbearer atAbraham Lincoln's funeral.

Fritz Sauckel, Nazi party leader and governor of Thuringia, Germany, and Reichplenipotentiary for the mobilization of labor, including slave labor.

Alfred Jodl, chief of the Operations Staff of the German High Command.

Martin Bormann, Hitler's private secretary and head of the chancellery of theNazi party, who was missing at the time of the Nüremberg trial and so wasprosecuted there in absentia.

Franz von Papen, who preceded Hitler as German chancellor and who helpedengineer Hitler's appointment as chancellor in January 1933.

Artur Seyss-Inquart, SS general, Reich governor of Austria, and Reichcommissioner of the German-occupied Netherlands.

Albert Speer, a Hitler confidant and wartime German minister for Armaments andMunitions.

Konstantin von Neurath, von Ribbentrop's predecessor as Nazi foreign minister.

Hans Fritzsche, Nazi newscaster and second-ranking official under Josef Goebbelsin the Nazi Propaganda Ministry.

Two other persons were also indicted: Robert Ley, founder and head of the NaziGerman Labor Front and anti-Semitic agitator; and Gustav Krupp, dean of theGerman arms industry which supplied Hitler with the means for his war ofaggression. However, Ley committed suicide in his Nuremberg cell on October 25,1945, and Krupp was found unable to stand trial for health reasons by the IMT.By a three-to-one vote, the tribunal rejected Jackson's November 1945 request tosubstitute Gustav's son, Alfried Krupp, as a defendant. (Alfried Krupp was an SSmember who had managed his family's armaments industry since his father's firststroke in 1941, and who had participated in the use of slave labor to achievewar production aims.) Only the Soviet judge voted to grant Jackson's motion.

The resulting proceedings before the Tribunal at Nüremberg were an enormousexercise, as reported by Jackson himself:

The trial began on November 20, 1945, and occupied 216 days of trial time. Thirty-three witnesses were called and examined for the prosecution. Sixty-one witnesses and 19 defendants testified for the defense; 143 additional witnesses gave testimony by interrogatories for the defense. The proceedings were conducted and recorded in four languages -- English, German, French, and Russian -- and daily transcripts in the language of his choice was provided for each prosecuting staff and all counsel for defendants. The English transcript of the proceedings covers over 17,000 pages.

In preparation for the trial, over 100,000 captured German documents were screened or examined and about 10,000 were selected for intensive examination as having probable evidentiary value. Of these, about 4,000 were translated into four languages and used, in whole or in part, in the trial as exhibits.

By far the most damaging evidence introduced against the defendants at Nürembergwere the "documents of their own making, the authenticity of which has not beenchallenged except in one of two cases." Jackson, his fellow prosecutors, andtheir staffs, therefore deserve great credit for their meticulous preparation ofthe paper trail which led the majority of the defendants from the dock to thegallows or prison.

It is therefore unfair and unfortunate that Jackson's performance at Nüremberghas been criticized, disproportionately so, for his March 1946 cross-examinationof Hermann Goering. The expectations placed on Jackson for that examination wereunrealistically high. For example, the alternate British judge at Nüremberg, SirNorman Birkett, asserted that "It will be a duel to the death between therepresentative of all that is worthwhile in civilization and the last importantsurviving protagonist of all that was evil." Judged by such hyperbole, Jackson'splodding and somewhat long-winded manner of interrogation was deemed a failurein the face of Goering's confident and quick-witted style of response. At onepoint during his examination of Goering, Jackson's frustration with the witness,exacerbated by his fatigue from months of litigation and by his sense of publicdisappointment in his confrontational skills, caused him to dissolve intoconfusion as he asked, "Now, was the leadership principle supported by andadopted by you [Goering] in Germany because you believed that no people arecapable of self-government, or that you believed that some may be, but not theGerman people: or for that matter whether some of us are capable of using ourown system but it should not be used in Germany." In reply, Goering arrogantlybut effectively stated that although he did not understand the question, hewould try to answer it anyway. Goering was not to get away with murder, but heat least succeeded in getting Jackson's goat.

Nevertheless, Jackson and his fellow Nüremberg prosecutors were largelysuccessful in their courtroom efforts. In its judgment of September 30, 1946,the International Military Tribunal found nineteen of the twenty-two defendantsguilty on one or more of the counts of the indictment. Five defendants --Goering, von Ribbentrop, Keitel, Rosenberg, and Jodl -- were convicted on allfour counts of "a common plan or conspiracy," crimes against peace, war crimes,and crimes against humanity. Those five defendants, and the also criminallyconvicted Kaltenbrunner, Frank, Frick, Streicher, Sauckel, Bormann, andSeyss-Inquart, were sentenced to death. The remaining criminally convicteddefendants received sentences ranging from fifteen years to life imprisonment.Only three Nüremberg defendants -- Schacht, von Papen, and Fritasche -- werewholly acquitted. The tribunal's Soviet judge, Nikitchenko, dissented from theseacquittals and also argued for a death sentence for Hess. Furthermore, thetribunal found four Nazi organizations to be criminal in character: theleadership corps of the Nazi party; the SS; the SID, or Security Service of theSS; and the Gestapo. In the end, Jackson achieved the goal he and the U.S.government had set for the Nüremberg proceedings: a fair trial, with culpabilityapportioned to individuals and groups based only on the evidence provided to anindependent tribunal.

Jackson's Closing Argument

Jackson's closing argument to the tribunal of July 26, 1946, was the first offour final speeches for the prosecution. Jackson in his argument focused oncount one of the indictment and the evidence of a common plan or conspiracy. TheBritish lead prosecutor, Lord Shawcross, then argued for convictions for crimesagainst peace under count two of the indictment. The French and Sovietprosecutors then spoke as to counts three and four -- war crimes againsthumanity.

In his closing argument, Jackson was clearly in his element. As one of hisNuremberg colleagues, Telford Taylor, noted: "Jackson had shaken off the malaisecontracted in his encounter with Goering. He was most comfortable and skilledbeyond his fellows, in the preparation and presentation of courtroom arguments.At the lectern he was the picture of confidence."

Jackson rose to the occasion of his argument and spoke as the advocate forcivilization against those who had sought and almost achieved the conquest ofthe world.

Biography

An associate justice of the United States Supreme Court doesn't get to trycases; those days are long gone by the time an attorney makes his way to themost prestigious position in the American legal system -- unless that attorneyhappens to be Robert Houghtwout Jackson. Appointed to the Supreme Court in 1941by President Franklin D. Roosevelt, Jackson was granted a leave of absence in1945 to participate in the prosecution of Nazi war criminals. Jackson was tohead the U.S. delegation and serve as the lead prosecutor.

The path that led Jackson to Nüremberg began in 1892, in Spring Creek,Pennsylvania. He received his legal training at Albany Law School, in Albany,New York. After graduating and passing the bar, he practiced law in Jamestown,New York, until 1934, when he was appointed general counsel for the U.S. Bureauof Internal Revenue in 1934.

Jackson prospered in Washington, D.C., and was tapped by FDR in 1936 to serve asassistant attorney general of the United States, where he distinguished himselfby his skillful prosecutions of major U.S. corporations charged with violatingantitrust laws. Promoted in 1938, he served as solicitor general of the UnitedStates for two years. In 1940 Jackson headed the justice Department after he waschosen to become U.S. attorney general. In 1941, FDR appointed him to theSupreme Court. He was also FDR's frequent fishing and poker-playing companion.

Four years after his appointment to the bench, Jackson's service was interruptedwhen President Harry S. Truman sent word to Jackson that his trial expertise wasneeded in Germany, asking him to serve as American chief counsel for theprosecution in the trials at Nüremberg. On May 2, 1945, Truman issued ExecutiveOrder 9547, appointing the fifty-three-year-old Jackson "as the Representativeof the United States and as its Chief of Counsel in preparing and prosecutingcharges of atrocities and war crimes against such of the leaders of the EuropeanAxis powers and their principal agents and accessories as the United States mayagree with any of the United Nations to bring to trial before an internationalmilitary tribunal." He accepted; and on May 3, 1945, Jackson took the reins ofwhat would prove to be one of the most significant trials in the history ofhumanity.

Following the Nüremberg trials, Jackson returned to the United States and hisplace on the Supreme Court. His writings include The Case Against the Nazi WarCriminals (1946) and The Nürnberg Case (1947).

He remained a sitting (if sometimes absent) justice until his death on October9, 1954.

Commentary

Jackson's summation at Nüremberg ranks among the finest arguments everdelivered; if ever there was a blueprint for a prosecution close, this is it.There are so many outstanding aspects of this argument it is difficult to knowwhere to begin. First and foremost, Jackson recognized his role in thisextraordinary trial. He had to take the vast scope of the Nazis' atrocities andgive it a contextual framework in order to allow his jury, made up of themembers of the IMT, to deal with the sheer enormity of the deeds. Next, he hadto strike a clear and compelling central theme, one which would faithfully servehim through the argument and more importantly, strike a resounding chord withhis jury. Third, he had to separate the wheat from the chaff, clear the trial ofthe peripheral material brought by the defense, and keep the jurors focused onthe significant facts and relevant issues. Finally, Jackson had to organize theevidence to assist the jurors in dealing with the huge amount of evidence thatwas introduced.

It is difficult for the mind to come to grips with the Holocaust. The sheerenormity of the crimes is so beyond ordinary human experience that there is nocontext in which to begin evaluating the defendants' misdeeds, assess blame, andthen move on to assign punishment. One of Jackson's main tasks was to put thecrimes of the Nazi leadership into historical perspective. Very early in hismasterful close he sets about the job: "No half-century ever witnessed slaughteron such a scale, such cruelties and inhumanities, such wholesale deportations ofpeoples into slavery, such annihilations of minorities. The terror of Torquemadapales before the Nazi inquisition. These deeds are the overshadowing historicalfacts by which generations to come will remember this decade."

In this passage and several others early in the close, Jackson captures the vastscope of events and thus begins the process of allowing the tribunal -- sittingas jury -- to place these crimes into a context where they might more readily beable to make their evaluations.

Jackson clearly establishes his central theme, "It is their overt acts which wecharge to be crimes," very early and ties the balance of his close to the theme.Throughout this fairly lengthy argument, Jackson returns to a simple conspiracytheory, one supported by the Nazis' overt acts. Again and again, Jackson poundshome that the defendants are being tried not for the reprehensible beliefs theyheld, but for the reprehensible deeds they had done.

Jackson recognized that there is a dynamic in all trials whereby one side willattempt to keep the trial focused on clearly defined issues. This side -- herethe prosecution -- will struggle to keep peripheral issues from coming centerstage and somehow obfuscating what they perceive to be relevant concerns of thetrial. In stark contrast, the opposing side will find it to their advantage tobring in matter not always central to the case. This time-honored tactic ofattempting to shift the focus of the trial to a more agreeable footing wasundertaken by the defense. However, early in his summation, Jackson squarely andforcefully discounts the defense attempt and zeroes in on the main issue: "Butjustice in this case has nothing to do with some of the arguments put forth bythe defendants or their counsel. We have not previously and we need not nowdiscuss the merits of all their obscure and tortuous philosophy. We are nottrying them for possession of obnoxious ideas....It is not their thoughts, it istheir overt acts which we charge to be crimes..." Jackson brushed aside theperipheral issues the defense attempted to interject into the trial and focusedthe jury on the only relevant issue, that of a conspiracy. Once focused on theconspiracy and the overt acts establishing it, all else is surplusage. Jacksontold the jury: "I perhaps can do no better service than to try to lift this caseout of the morass of detail with which the record is full and put before youonly the bold outlines of a case that is impressive in its simplicity...I mustleave it to experts to comb the evidence and write volumes on their specialties,while I picture in broad strokes the defenses whose acceptance as lawful wouldthreaten the continuity of civilization. I must, as Kipling put it, 'splash at aten-league canvas with brushes of comet's hair.'"

The prosecutor reaps a bitter harvest if the jury does not understand itsfunction. It is the prosecution that drives the criminal trial; the prosecutionmust make its case clear before the jury. Confusion results in hung juries, oreven acquittals. The prosecution must therefore be at pains to keep the law andthe facts as clear as possible. Jackson, recognizing his obligation, told hismultinational jury: "The strength of the case against these defendants under theconspiracy count, which it is the duty of the United States to argue, is in itssimplicity. It involves but three ultimate inquiries: first, have the actsdefined by the charter as crimes been committed; second, were they committedpursuant to a common plan or conspiracy; third, are these defendants among thosewho are morally responsible?" Having clearly established the law that the jurywill use, Jackson then spent the balance of his argument laying out the overtacts that proved the conspiracy.

Jackson recognized that it is difficult for any jury to retain mountains ofinformation. There are times when the jurors are so overburdened with facts anddetails they lose the ability to retain the most meaningful material. The Nüremberg trial presented such a problem. There was so much testimony that thejurors' ability to retain the important evidence was severely strained. A lawyerwho can help organize the evidence into manageable chunks has done a tremendousservice to the jury and, more importantly, to his client. The most efficient andeffective tool in this regard is a simple list, which allows for meaningfulcompilation of material. Jackson employed a list, one that consisted of the fivegroups of overt acts which made up the conspiracy. Under each of the fiveheadings he was able to bunch a number of events without having to fear that hewas overburdening his audience to the point where he would lose them. And in onedeft moment near the end of his close, Jackson summed up the defendants and thekey role each had played in the just-ended war:

These men in this dock, on the face of the record, were not strangers to this program of crime, nor was their connection with it remote or obscure. We find them in the very heart of it. The positions they held show that we have chosen defendants of self-evident responsibility. They are the very top surviving authorities in their respective fields and in the Nazi state.

No one lives who, at least until the very last moments of the war, outranked Göring in position, power, and influence.

No soldier stood above Keitel and Jodl, and no sailor above Raeder and Dönitz.

Who can be responsible for the duplicitous diplomacy if not the Foreign Ministers, von Neurath and [von] Ribbentrop, and the diplomatic handy man, von Papen?

Who should be answerable for the oppressive administration of occupied countries if Gauleiters, protectors, governors, and commissars such as Frank, Seyss-Inquart, Frick, von Schirach, von Neurath, and Rosenberg are not?

Where shall we look for those who mobilized the economy for total war if we overlook Schacht, and Speer, and Funk? Who was the master of the great slaving enterprise if it was not Sauckel? Where shall we find the hand that ran the concentration camps if it is not the hand of Kaltenbrunner?

And who whipped up the hates and fears of the public, and manipulated the party organizations to incite these crimes, if not Hess, von Schirach, Fritzsche, Bormann, and the unspeakable Julius Streicher?

The list of defendants is made up of men who played indispensable and reciprocal parts in this tragedy.

Jackson had left the jury with a clear picture of who each defendant was, andwhat each had done to merit a guilty verdict. Finally, justice would be done,reborn out of the ashes of war, in the courtroom at Nüremberg.

Architects of Genocide

Closing Argument

The War Crimes Trial
Delivered by Robert H. Jackson
Nüremberg, Germany, July 26, 1946
Mr. President and Members of the Tribunal:

An advocate can be confronted with few more formidable tasks than to select hisclosing arguments where there is great disparity between his appropriate timeand his available material. In eight months -- a short time as state trials go-- we have introduced evidence which embraces as vast and varied a panorama ofevents as ever has been compressed within the framework of a litigation. It isimpossible in summation to do more than outline with bold strokes the vitals ofthis trial's mad and melancholy record, which will live as the historical textof the twentieth century's shame and depravity.

It is common to think of our own time as standing at the apex of civilization,from which the deficiencies of preceding ages may patronizingly be viewed in thelight of what is assumed to be "progress." The reality is that in the longperspective of history the present century will not hold an admirable position,unless its second half is to redeem its first.

These two-score years in this twentieth century will be recorded in the book ofyears as one of the most bloody in all annals. Two world wars have left a legacyof dead which number more than all the armies engaged in any war that madeancient or medieval history. No half-century ever witnessed slaughter on such ascale, such cruelties and inhumanities, such wholesale deportations of peoplesinto slavery, such annihilations of minorities. The terror of Torquemada palesbefore the Nazi inquisition. These deeds are the overshadowing historical factsby which generations to come will remember this decade. If we cannot eliminatethe causes and prevent the repetition of these barbaric events, it is not anirresponsible prophecy to say that this twentieth century may yet succeed inbringing the doom of civilization.

I shall not labor the law of this case. The position of the United States wasexplained in my opening statement. My distinguished colleague, the attorneygeneral of Great Britain, will reply on behalf of all the chief prosecutors tothe defendants' legal attack. At this stage of the proceedings, I shall restupon the law of these crimes as laid down in the charter. The defendants, whoexcept for the charter would have no right to be heard at all, now ask that thelegal basis of this trial be nullified. This tribunal, of course, is given nopower to set aside or to modify the Agreement Between the Four Powers, to whicheighteen other nations have adhered. The terms of the charter are conclusiveupon every party to these proceedings.

Of one thing we may be sure. The future will never have to ask, with misgiving:"What could the Nazis have said in their favor?" History will know that whatevercould be said, they were allowed to say. They have been given the kind of atrial which they, in the days of their pomp and power, never gave to any man.

But fairness is not weakness. The extraordinary fairness of these hearings is anattribute of our strength. The prosecution's case, at its close, seemedinherently unassailable because it rested so heavily on German documents ofunquestioned authenticity. But it was the weeks upon weeks of pecking at thiscase by one after another of the defendants that has demonstrated its truestrength. The fact is that the testimony of the defendants has removed anydoubts of guilt which, because of the extraordinary nature and magnitude ofthese crimes, may have existed before they spoke. They have helped write theirown judgment of condemnation.

But justice in this case has nothing to do with some of the arguments put forthby the defendants or their counsel. We have not previously and we need not nowdiscuss the merits of all their obscure and tortuous philosophy. We are nottrying them for possession of obnoxious ideas. It is their right, if theychoose, to renounce the Hebraic heritage in the civilization of which Germanywas once a part. Nor is it our affair that they repudiated the Hellenicinfluence as well. The intellectual bankruptcy and moral perversion of the Naziregime might have been no concern of international law had it not been utilizedto goose-step the Herrenvolk across international frontiers. It is not theirthoughts, it is their overt acts which we charge to be crimes. Their creed andteachings are important only as evidence of motive, purpose, knowledge, andintent.

We charge unlawful aggression but we are not trying the motives, hopes, orfrustrations which may have led Germany to resort to aggressive war as aninstrument of policy. The law, unlike politics, does not concern itself with thegood or evil in the status quo, nor with the merits of grievances against it. Itmerely requires that the status quo be not attacked by violent means and thatpolicies be not advanced by war. We may admit that overlapping ethnological andcultural groups, economic barriers, and conflicting national ambitions createdin the 1930s, as they will continue to create, grave problems for Germany aswell as for the other peoples of Europe. We may admit too that the world hadfailed to provide political or legal remedies which would be honorable andacceptable alternatives to war. We do not underwrite either the ethics or thewisdom of any country, including my own, in the face of these problems. But wedo say that it is now, as it was for sometime prior to 1939, illegal andcriminal for Germany or any other nation to redress grievances or seek expansionby resort to aggressive war.

Let me emphasize one cardinal point. The United States has no interest whichwould be advanced by the conviction of any defendant if we have not proved himguilty on at least one of the counts charged against him in the indictment. Anyresult that the calm and critical judgment of posterity would pronounce unjustwould not be a victory for any of the countries associated in this prosecution.But in summation, we now have before us the tested evidences of criminality andhave heard the flimsy excuses and paltry evasions of the defendants. Thesuspended judgment with which we opened this case is no longer appropriate. Thetime has come for final judgment and if the case I present seems hard anduncompromising, it is because the evidence makes it so.

I perhaps can do no better service than to try to lift this case out of themorass of detail with which the record is full and put before you only the boldoutlines of a case that is impressive in its simplicity. True, its thousands ofdocuments and more thousands of pages of testimony deal with an epoch, and covera continent, and touch almost every branch of human endeavor. They illuminatespecialties, such as diplomacy, naval development and warfare, land warfare, thegenesis of air warfare, the politics of the Nazi rise to power, the finance andeconomics of totalitarian war, sociology, penology, mass psychology, and masspathology. I must leave it to experts to comb the evidence and write volumes ontheir specialties, while I picture in broad strokes the offenses whoseacceptance as lawful would threaten the continuity of civilization. I must, asKipling put it, "splash at a ten-league canvas with brushes of comet's hair."

The strength of the case against these defendants under the conspiracy count,which it is the duty of the United States to argue, is in its simplicity. Itinvolves but three ultimate inquiries: first, have the acts defined by thecharter as crimes been committed; second, were they committed pursuant to acommon plan or conspiracy; third, are these defendants among those who arecriminally responsible?

The charge requires examination of a criminal policy, not of a multitude ofisolated, unplanned, or disputed crimes. The substantive crimes upon which werely, either as goals of a common plan or as means for its accomplishment, areadmitted. The pillars which uphold the conspiracy charge may be found in fivegroups of overt acts, whose character and magnitude are important considerationsin appraising the proof of conspiracy.

I. The Seizure of Power and Subjugation of Germany to a Police State

The Nazi party seized control of the German state in 1933. "Seizure of power" isa characterization used by defendants and defense witnesses, and so apt that ithas passed into both history and everyday speech.

The Nazi junta in the early days lived in constant fear of overthrow. Göring, in1934, pointed out that its enemies were legion and said: "Therefore theconcentration camps have been created, where we have first confined thousands ofCommunists and Social Democrat functionaries."

In 1933, Göring forecast the whole program of purposeful cruelty and oppressionwhen he publicly announced: "Whoever in the future raises a hand against arepresentative of the National Socialist movement or of the state, must knowthat he will lose his life in a very short while."

New political crimes were created to this end, It was made a treason, punishablewith death, to organize or support a political party other than the Nazi party.Circulating a false or exaggerated statement, or one which would harm the stateor even the party, was made a crime. Laws were enacted of such ambiguity thatthey could be used to punish almost any innocent act. It was, for example, madea crime to provoke "any act contrary to the public welfare."

The doctrine of punishment by analogy was introduced to enable conviction foracts which no statute forbade. Minister of justice Görtner explained thatNational Socialism considered every violation of the goals of life which thecommunity set up for itself to be a wrong per se, and that the act could bepunished even though it was not contrary to existing "formal" law.

The Gestapo and the SD were instrumentalities of an espionage system whichpenetrated public and private life....

With all administrative offices in Nazi control and with the Reichstag reducedto impotence, the Judiciary remained the last obstacle to this reign of terror.But its independence was soon overcome and it was reorganized to dispense avenal justice. Judges were ousted for political or racial reasons and were spiedupon and put under pressure to join the Nazi party.

The result was the removal of all peaceable means either to resist or to changethe government. Having sneaked through the portals of power, the Nazis slammedthe gate in the face of all others who might also aspire to enter. Since the lawwas what the Nazis said it was, every form of opposition was rooted out, andevery dissenting voice throttled. Germany was in the clutch of a police state,which used the fear of the concentration camp as a means to enforcenonresistance. The party was the state, the state was the party, and terror byday and death by night were the policy of both.

II. The Preparation and Waging of Wars of Aggression

From the moment the Nazis seized power, they set about by feverish but stealthyefforts, in defiance of the Versailles treaty, to arm for war. In 1933 theyfound an air force.

By 1939, they had twenty-one squadrons, consisting of 240 echelons or about2,400 first-line planes, together with trainers and transports. In 1933 theyfound an army of three infantry and three cavalry divisions. By 1939 they hadraised and equipped an army of fifty-one divisions, four of which were fullymotorized and four of which were Panzer divisions. In 1933, they found a navy ofone cruiser and six light cruisers. By 1939, they had built a navy of fourbattleships, one aircraft carrier, six cruisers, twenty-two destroyers, andfifty-four submarines. They had also built up in that period an armamentindustry as efficient as that of any country in the world.

These new weapons were put to use, commencing in September 1939, in a series ofundeclared wars against nations with which Germany had arbitration andnonaggression treaties, and in violation of repeated assurances. On September 1,1939, this rearmed Germany attacked Poland. The following April witnessed theinvasion and occupation of Denmark and Norway, and May saw the overrunning ofBelgium, the Netherlands, and Luxembourg. Another spring found Yugoslavia andGreece under attack, and in June 1941 came the invasion of Soviet Russia. ThenJapan, which Germany had embraced as a partner, struck without warning at PearlHarbor in December 1941 and four days later Germany declared war on the UnitedStates.

We need not trouble ourselves about the many abstract difficulties that can beconjured up about what constitutes aggression in doubtful cases. I shall showyou, in discussing the conspiracy, that by any test ever put forward by anyresponsible authority, by all the canons of plain sense, these were unlawfulwars of aggression in breach of treaties and in violation of assurances.

III. Warfare in Disregard of International Law

It is unnecessary to labor this point on the facts. Göring asserts that theRules of Land Warfare were obsolete, that no nation could fight a total warwithin their limits. He testified that the Nazis would have denounced theconventions to which Germany was a party, but that General Jodl wanted capturedGerman soldiers to continue to benefit from their observance by the Allies.

It was, however, against the Soviet people and Soviet prisoners that Teutonicfury knew no bounds, in spite of a warning by Admiral Canaris that the treatmentwas in violation of international law.

We need not, therefore, for purposes of the conspiracy count, recite therevolting details of starving, beating, murdering, freezing, and massextermination admittedly used against the eastern soldiery. Also, we may take asestablished or admitted that the lawless conduct such as shooting British andAmerican airmen, mistreatment of western prisoners of war, forcing Frenchprisoners of war into German war work, and other deliberate violations of theHague and Geneva Conventions, did occur, and in obedience to highest levels ofauthority.

IV. Enslavement and Plunder of Populations in Occupied Countries

The defendant Sauckel, plenipotentiary general for the Utilization of Labor, isauthority for the statement that "out of five million foreign workers whoarrived in Germany, not even 200,000 came voluntarily." It was officiallyreported to defendant Rosenberg that in his territory "recruiting methods wereused which probably have their origin in the blackest period of the slavetrade." Sauckel himself reported that male and female agents went hunting formen, got them drunk, and "shanghaied" them to Germany. These captives wereshipped in trains without heat, food, or sanitary facilities. The dead werethrown out at stations, and the newborn were thrown out the windows of movingtrains.

Sauckel ordered that "all the men must be fed, sheltered, and treated in such away as to exploit them to the highest possible extent at the lowest conceivabledegree of expenditure." About two million of these were employed directly in themanufacture of armaments and munitions. The director of the Krupp locomotivefactory in Essen complained to the company that Russian forced laborers were sounderfed that they were too weakened to do their work, and the Krupp doctorconfirmed their pitiable condition. Soviet workers were put in camps underGestapo guards, who were allowed to punish disobedience by confinement in aconcentration camp or by hanging on the spot.

Populations of occupied countries were otherwise exploited and oppressedunmercifully. Terrorism was the order of the day. Civilians were arrestedwithout charges, committed without counsel, executed without hearing. Villageswere destroyed, the male inhabitants shot or sent to concentration camps, thewomen sent to forced labor, and the children scattered abroad. The extent of theslaughter in Poland alone was indicated by Frank, who reported: "If I wanted tohave a poster put up for every seven Poles who were shot, the forests of Polandwould not suffice for producing the paper for such posters."

International law at all times before and during this war spoke with precisionand authority respecting the protection due civilians of an occupied country,and the slave trade and plunder of occupied countries were at all timesflagrantly unlawful.

V. Persecution and Extermination of Jews and Christians

The Nazi movement will be of evil memory in history because of its persecutionof the Jews, the most far-flung and terrible racial persecution of all time.Although the Nazi party neither invented nor monopolized anti-Semitism, itsleaders from the very beginning embraced it, incited it, and exploited it. Theyused it as "the psychological spark that ignites the mob." After the seizure ofpower, it became an official state policy. The persecution began in a series ofdiscriminatory laws eliminating the Jews from the civil service, theprofessions, and economic life. As it became more intense it includedsegregation of Jews in ghettos and exile. Riots were organized by party leadersto loot Jewish business places and to burn synagogues. Jewish property wasconfiscated and a collective fine of a billion marks was imposed upon GermanJewry. The program progressed in fury and irresponsibility to the "finalsolution." This consisted of sending all Jews who were fit to work toconcentration camps as slave laborers, and all who were not fit, which includedchildren under twelve and people over fifty, as well as any others judged unfitby an SS doctor, to concentration camps for extermination.

Adolf Eichmann, the sinister figure who had charge of the extermination program,has estimated that the anti-Jewish activities resulted in the killing of sixmillion Jews. Of these, four million were killed in extermination institutions,and two million were killed by Einsatzgruppen, mobile units of the SecurityPolice and SD, which pursued Jews in the ghettos and in their homes andslaughtered them by gas wagons, by mass shooting in antitank ditches, and byevery device which Nazi ingenuity could conceive. So thorough and uncompromisingwas this program that the Jews of Europe as a race no longer exist, thusfulfilling the diabolic "prophecy" of Adolf Hitler at the beginning of the war.

Of course, any such program must reckon with the opposition of the Christianchurch. This was recognized from the very beginning. Defendant Bormann wrote allGauleiters in 1941 that "National Socialism and Christian concepts areirreconcilable," and that the people must be separated from the churches and theinfluence of the churches totally removed. Defendant Rosenberg even wrote drearytreatises advocating a new and weird Nazi religion.

The Gestapo appointed "church specialists" who were instructed that the ultimateaim was "destruction of the confessional churches." The record is full ofspecific instances of the persecution of clergymen, the confiscation of churchproperty, interference with religious publications, disruption of religiouseducation, and suppression of religious organizations.

The chief instrumentality for persecution and extermination was theconcentration camp, sired by defendant Göring and nurtured under the overallauthority of defendants Frick and Kaltenbrunner.

The horrors of these iniquitous places have been vividly disclosed by documentsand testified to by witnesses. The tribunal must be satiated with ghastly verbaland pictorial portrayals. From your records it is clear that the concentrationcamps were the first and worst weapon of oppression used by the NationalSocialist state, and that they were the primary means utilized for thepersecution of the Christian church and the extermination of the Jewish race.This has been admitted to you by some of the defendants from the witness stand.In the words of defendant Frank: "A thousand years will pass and this guilt ofGermany will still not be erased."

These, then, were the five great substantive crimes of the Nazi regime. Theircommission, which cannot be denied, stands admitted....

I pass now to the inquiry [as to] whether these groups of criminal acts wereintegrated in a common plan or conspiracy.

The Common Plan or Conspiracy

The prosecution submits that these five categories of premeditated crimes werenot separate and independent phenomena but that all were committed pursuant to acommon plan or conspiracy. The defense admits that these classes of crimes werecommitted but denies that they are connected one with another as parts of asingle program.

The central crime in this pattern of crime, the kingpin which holds them alltogether, is the plot for aggressive war. The chief reason for internationalcognizance of these crimes lies in this fact. Have we established the plan orconspiracy to make aggressive war?

Certain admitted or clearly proven facts help answer that question. First is thefact that such war of aggression did take place. Second, it is admitted thatfrom the moment the Nazis came to power, every one of them and every one of thedefendants worked like beavers to prepare for some war....

The plans of Adolf Hitler for aggression were just as secret as Mein Kampf, ofwhich over six million copies were published in Germany. He not only openlyadvocated overthrowing the Treaty of Versailles, but made demands which went farbeyond a mere rectification of its alleged injustices. He avowed an intention toattack neighboring states and seize their lands, which he said would have to bewon with "the power of a triumphant sword." Here, for every German to hearkento, were the "ancestral voices prophesying war."

Göring has testified in this courtroom that at his first meeting with Hitler,long before the seizure of power: "I noted that Hitler had a definite view ofthe impotency of protest and, as a second point, that he was of the opinion thatGermany should be freed of the peace of Versailles....We did not say we shallhave to have a war and defeat our enemies; this was the aim and the methods hadto be adapted to the political situation."

When asked if this goal were to be accomplished by war if necessary, Göring didnot deny that eventuality but evaded a direct answer by saying: "We did not evendebate about those things at that time." He went on to say that the aim tooverthrow the Treaty of Versailles was open and notorious and that "every Germanin my opinion was for its modification, and there was no doubt that this was astrong inducement for joining the party." Thus, there can be no possible excusefor any person who aided Hitler to get absolute power over the German people, ortook a part in his regime, to fail to know the nature of the demands he wouldmake on Germany's neighbors.

Immediately after the seizure of power, the Nazis went to work to implementthese aggressive intentions by preparing for war. They first enlisted Germanindustrialists in a secret rearmament program. Twenty days after the seizure ofpower, Schacht was host to Hitler, Göring, and some twenty leadingindustrialists. Among them were Krupp von Bohlen of the great Krupp armamentworks and representatives of I.G. Farben and other Ruhr heavy industries. Hitlerand Göring explained their program to the industrialists, who became soenthusiastic that they set about to raise three million Reichsmarks tostrengthen and confirm the Nazi party in power. Two months later Krupp wasworking to bring a reorganized association of German industry into agreementwith the political aims of the Nazi government. Krupp later boasted of thesuccess in keeping the German war industries secretly alive and in readinessdespite the disarmament clauses of the Versailles treaty, and recalled theindustrialists' enthusiastic acceptance of "the great intentions of the führerin the rearmament period of 1933 to '39."

The spirit of the whole Nazi administration was summed up by Göring at a meetingof the Council of Ministers, which included Schacht, on May 27, 1936, when hesaid, "All measures are to be considered from the standpoint of an assuredwaging of war."

As early as November 5, 1937, the plan to attack had begun to take definitenessas to time and victim. In a meeting which included defendants Raeder, Göring,and von Neurath, Hitler stated the cynical objective: "The question for Germanyis where the greatest possible conquest could be made at the lowest possiblecost."

Six months later, emboldened by the bloodless Austrian conquest, Hitler, in asecret directive to Keitel...stated his "unalterable decision to smashCzechoslovakia by military action in the near future." On the same day, Jodlnoted in his diary that the fürer had stated his final decision to destroyCzechoslovakia soon and had initiated military preparations all along the line.By April the plan had been perfected to attack Czechoslovakia "withlightning-swift action as the result of an 'incident.'

All along the line, preparations became more definite for a war of expansion, onthe assumption that it would result in worldwide conflict.

By May 1939, the Nazi preparations had ripened to the point that Hitler confidedto defendants Göring, Raeder, Keitel, and others his readiness "to attack Polandat the first suitable opportunity," even though he recognized that "furthersuccesses cannot be attained without the shedding of blood."

While a credulous world slumbered, snugly blanketed with perfidious assurancesof peaceful intentions, the Nazis prepared not merely as before for a war, butnow for the war. The defendants Göring, Keitel, Raeder, Frick, and Funk, withothers, met as the Reich Defense Council in June 1939. The minutes,authenticated by Göring, are revealing evidence of the way in which each step ofNazi planning dovetailed with every other. These five key defendants, threemonths before the first Panzer unit had knifed into Poland, were laying plansfor "employment of the population in wartime," and had gone so far as toclassify industry for priority in labor supply "after five million servicemenhad been called up." They decided upon measures to avoid "confusion whenmobilization takes place," and declared a purpose "to gain and maintain the leadin the decisive initial weeks of a war." They then planned to use in productionprisoners of war, criminal prisoners, and concentration camp inmates. They thendecided on "compulsory work for women in wartime."

Here also comes to the surface the link between war labor and concentrationcamps, a manpower source that was increasingly used and with increasing cruelty.An agreement between Himmler and Minister of justice Thierack in 1942 providedfor "the delivery of antisocial elements from the execution of their sentence tothe Reichsfürer SS to be worked to death." An SS directive provided thatbedridden prisoners be drafted for work to be performed in bed. The Gestapoordered 45,000 Jews arrested to increase the "recruitment of manpower into theconcentration camps." One hundred thousand Jews were brought from Hungary toaugment the camps' manpower. On the initiative of the defendant Dönitz,concentration camp labor was used in the construction of submarines.Concentration camps were thus geared into war production on the one hand, andinto the administration of justice and the political aims of the Nazis on theother.

The use of prisoner-of-war labor as here planned also grew with German needs. Ata time when every German soldier was needed at the front and forces were notavailable at home, Russian prisoners of war were forced to man anti-aircraftguns against Allied planes. Field Marshal Milch reflected the Nazi merriment atthis flagrant violation of international law, saying, "This is an amusing thing,that the Russians must work the guns." The orders for the treatment of Sovietprisoners of war were so ruthless that Admiral Canaris, pointing out that theywould "result in arbitrary mistreatments and killings," protested against themas breaches of international law. The reply of Keitel was unambiguous: "Theobjections arise from the military conception of chivalrous warfare! This is thedestruction of an ideology! Therefore I approve and back the measures."

Other crimes in the conduct of warfare were planned with equal thoroughness as ameans of insuring the victory of German arms. In October 1938, almost a yearbefore the start of the war, the large-scale violation of the established rulesof warfare was contemplated as a policy, and the Supreme Command circulated amost secret list of devious explanations to be given by the propaganda ministerin such cases. Even before this time, commanders of the armed forces wereinstructed to employ any means of warfare so long as it facilitated victory.After the war was in progress the orders increased in savagery. A typical Keitelorder, demanding use of the "most brutal means," provided that: "It is the dutyof the troops to use all means without restriction, even against women andchildren, so long as it insures success."

The German naval forces were no more immune from the infection than the landforces. Raeder ordered violations of the accepted rules of warfare whenevernecessary to gain strategic successes. Dönitz urged his submarine crews not torescue survivors of torpedoed enemy ships in order to cripple merchant shippingof the Allied nations by decimating their crews.

Thus, the war crimes against Allied forces and the crimes against humanitycommitted in occupied territories are incontestably part of the program ofmaking the war because, in the German calculations, they were indispensable toits hope of success.

Similarly, the whole group of prewar crimes, including the persecutions withinGermany, fall into place around the plan for aggressive war like stones in afinely wrought mosaic. Nowhere is the whole catalogue of crimes of Nazioppression and terrorism within Germany so well integrated with the crime of waras in that strange mixture of wind and wisdom which makes up the testimony ofHermann Göring. In describing the aims of the Nazi program before the seizure ofpower, Goring said: "The first question was to achieve and establish a differentpolitical structure for Germany which would enable Germany to obtain against theDictate [of Versailles], and not only a protest, but an objection of such anature that it would actually be considered."

From Göring's cross-examination we learn how necessarily the whole program ofcrime followed. Because they considered a strong state necessary to get rid ofthe Versailles treaty, they adopted the Führerprinzip. Having seized power, theNazis thought it necessary to protect it by abolishing parliamentary governmentand suppressing all organized opposition from political parties. This wasreflected in the philosophy of Göring that the opera was more important than theReichstag....In order to eliminate incorrigible opponents, it was necessary toestablish concentration camps and to resort to the device of protective custody.Protective custody, Göring testified, meant that: "People were arrested andtaken into protective custody who had committed no crime but who one mightexpect, if they remained in freedom, would do all sorts of things to damage theGerman state."

The same purpose was dominant in the persecution of the Jews. In the beginning,fanaticism and political opportunism played a principal part, for anti-Semitismand its allied scapegoat mythology were a vehicle on which the Nazis rode topower. It was for this reason that the filthy Streicher and the blasphemousRosenberg were welcomed to a place at party rallies and made leaders andofficials of the state or party. But the Nazis soon regarded the Jews asforemost amongst the opposition to the police state with which they planned toput forward their plans of military aggression. Fear of their pacifism and theiropposition to strident nationalism was given as the reason that the Jews had tobe driven from the political and economic life of Germany. Accordingly, theywere transported like cattle to the concentration camps, where they wereutilized as a source of forced labor for war purposes.

A glance over the dock will show that, despite quarrels among themselves, eachdefendant played a part which fitted in with every other, and that all advancedthe common plan. It contradicts experience that men of such diverse backgroundsand talents should so forward each other's aims by coincidence.

The large and varied role of Göring was half militarist and half gangster. Hestuck a pudgy finger in every pie. He used his SA musclemen to help bring thegang into power. In order to entrench that power, he contrived to have theReichstag burned, established the Gestapo, and created the concentration camps.He was equally adept at massacring opponents and at framing scandals to get ridof stubborn generals. He built up the Luftwaffe and hurled it at his defenselessneighbors....He was, next to Hitler, the man who tied the activities of all thedefendants together in a common effort.

The parts played by the other defendants, although less comprehensive and lessspectacular than that of the Reichsmarshal, were nevertheless integral andnecessary contributions to the joint undertaking, without any one of which thesuccess of the common enterprise would have been in jeopardy. There are manyspecific deeds of which these men have been proven guilty. No purpose would beserved -- nor indeed is time available -- to review all the crimes which theevidence has charged up to their names. Nevertheless, in viewing the conspiracyas a whole and as an operating mechanism, it may be well to recall briefly theoutstanding services which each of the men in the dock rendered to the commoncause.

The zealot Hess, before succumbing to wanderlust, was the engineer tending theparty machinery, passing orders and propaganda down to the Leadership Corps,supervising every aspect of party activities, and maintaining the organizationas a loyal and ready instrument of power. When apprehensions abroad threatenedthe success of the Nazi scheme for conquest, it was the duplicitous vonRibbentrop, the salesman of deception, who was detailed to pour wine on thetroubled waters of suspicion by preaching the gospel of limited and peacefulintentions. Keitel, weak and willing tool, delivered the armed forces, theinstrument of aggression, over to the party and directed them in executing itsfelonious designs.

Kaltenbrunner, the grand inquisitor, took up the bloody mantle of Heydrich tostifle opposition and terrorize compliance, and buttressed the power of NationalSocialism on a foundation of guiltless corpses. It was Rosenberg, theintellectual high priest of the "master race," who provided the doctrine ofhatred which gave the impetus for the annihilation of Jewry, and who put hisinfidel theories into practice against the eastern occupied territories. Hiswoolly philosophy also added boredom to the long list of Nazi atrocities. Thefanatical Frank, who solidified Nazi control by establishing the new order ofauthority without law, so that the will of the party was the only test oflegality, proceeded to export his lawlessness to Poland, which he governed withthe lash of Caesar and whose population he reduced to sorrowing remnants. Frick,the ruthless organizer, helped the party to seize power, supervised the policeagencies to insure that it stayed in power, and chained the economy of Bohemiaand Moravia to the German war machine.

Streicher, the venomous vulgarian, manufactured and distributed obscene raciallibels which incited the populace to accept and assist the progressively savageoperations of "race purification." As minister of Economics, Funk acceleratedthe pace of rearmament, and as Reichsbank president banked for the SS the goldteeth fillings of concentration camp victims -- probably the most ghoulishcollateral in banking history. It was Schacht, the facade of starchedrespectability, who in the early days provided the window dressing, the bait forthe hesitant, and whose wizardry later made it possible for Hitler to financethe colossal rearmament program, and to do it secretly.

Dönitz, Hitler's legatee of defeat, promoted the success of the Nazi aggressionsby instructing his pack of submarine killers to conduct warfare at sea with theillegal ferocity of the jungle. Raeder, the political admiral, stealthily builtup the German Navy in defiance of the Versailles treaty, and then put it to usein a series of aggressions which he had taken a large part in planning. VonSchirach, poisoner of a generation, initiated the German youth in Nazi doctrine,trained them in legions for service in the SS and Wehrmacht, and delivered themup to the party as fanatic, unquestioning executors of its will.

Sauchel, the greatest and cruelest slaver since the pharaohs of Egypt, produceddesperately needed manpower by driving foreign peoples into the land of bondageon a scale unknown even in the ancient days of tyranny in the kingdom of theNile. Jodl, betrayer of the traditions of his profession, led the Wehrmacht inviolating its own code of military honor in order to carry out the barbarousaims of Nazi policy. Von Papen, pious agent of an infidel regime, held thestirrup while Hitler vaulted into the saddle, lubricated the Austrianannexation, and devoted his diplomatic cunning to the service of Nazi objectivesabroad.

Seyss-Inquart, spearhead of the Austrian fifth column, took over the governmentof his own country only to make a present of it to Hitler, and then, movingnorth, brought terror and oppression to the Netherlands and pillaged its economyfor the benefit of the German juggernaut. Von Neurath, the old-school diplomat,who cast the pearls of his experience before Nazis, guided Nazi diplomacy in theearly years, soothed the fears of prospective victims, and as Reich protector ofBohemia and Moravia, strengthened the German position for the coming attack onPoland. Speer, as minister of Armaments and War Production, joined in planningand executing the program to dragoon prisoners of war and foreign workers intoGerman war industries, which waxed in output while the laborers waned instarvation. Fritzsche, radio propaganda chief, by manipulation of the truthgoaded German public opinion into frenzied support of the regime andanesthetized the independent judgment of the population so that they did withoutquestion their masters' bidding. And Bormann, who has not accepted ourinvitation to this reunion, sat at the throttle of the vast and powerful engineof the party, guiding it in the ruthless execution of Nazi policies, from thescourging of the Christian church to the lynching of captive Allied airmen.

The activities of all these defendants, despite their varied backgrounds andtalents, were joined with the efforts of other conspirators not now in the dock,who played still other essential roles. They blend together into one consistentand militant pattern animated by a common objective to reshape the map of Europeby force of arms. Some of these defendants were ardent members of the Nazimovement from its birth. Others, less fanatical, joined the common enterpriselater, after successes had made participation attractive by the promise ofrewards. This group of latter-day converts remedied a crucial defect in theranks of the original true believers, for as Dr. Seimers has pointed out in hissummation: "There were no specialists among the National Socialists for theparticular tasks. Most of the National Socialist collaborators did notpreviously follow a trade requiring technical education." It was the fatalweakness of the early Nazi band that it lacked technical competence. It couldnot from among its own ranks make up a government capable of carrying out allthe projects necessary to realize its aims. Therein lies the special crime andbetrayal of men like Schacht and von Neurath, Speer and von Papen, Raeder andDönitz, Keitel and Jodl. It is doubtful whether the Nazi master plan could havesucceeded without their specialized intelligence which they so willingly put atits command. They did so with knowledge of its announced aims and methods, andcontinued their services after practice had confirmed the direction in whichthey were tending. Their superiority to the average run of Nazi mediocrity isnot their excuse. It is their condemnation.

The dominant fact which stands out from all the thousands of pages of the recordof this trial is that the central crime of the whole group of Nazi crimes -- theattack on the peace of the world -- was clearly and deliberately planned. Thebeginning of these wars of aggression was not an unprepared and spontaneousspringing to arms by a population excited by some current indignation. A weekbefore the invasion of Poland, Hitler told his military commanders: "I shallgive a propagandist cause for starting war -- never mind whether it be plausibleor not. The victor shall not be asked later on whether we told the truth or not.In starting and making a war, not the right is what matters, but victory." Thepropagandist incident was duly provided by dressing concentration camp inmatesin Polish uniforms, in order to create the appearance of a Polish attack on aGerman frontier radio station. The plan to occupy Belgium, Holland, andLuxembourg first appeared as early as August 1938 in connection with the planfor attack on Czechoslovakia. The intention to attack became a program in May1939, when Hitler told his commanders that: "The Dutch and Belgian air basesmust be occupied by armed forces. Declarations of neutrality must be ignored."Thus, the follow-up wars were planned before the first was launched. These werethe most carefully plotted wars in all history. Scarcely a step in theirterrifying succession and progress failed to move according to the masterblueprint or the subsidiary schedules and timetables until long after the crimesof aggression were consummated.

Nor were the war crimes and the crimes against humanity unplanned, isolated, orspontaneous offenses. Aside from our undeniable evidence of their plotting, itis sufficient to ask whether six million people could be separated from thepopulation of several nations on the basis of their blood and birth, could bedestroyed and their bodies disposed of, except that the operation fitted intothe general scheme of government. Could the enslavement of five millions oflaborers, their impressment into service, their transportation to Germany, theirallocation to work where they would be most useful, their maintenance -- if slowstarvation can be called maintenance -- and their guarding have beenaccomplished if it did not fit into the common plan? Could hundreds ofconcentration camps located throughout Germany, built to accommodate hundreds ofthousands of victims, and each requiring labor and materials for construction,manpower to operate and supervise, and close gearing into the economy -- couldsuch efforts have been expended under German autocracy if they had not suitedthe plan?

Has the Teutonic passion for organization become famous for its toleration ofnonconforming activity? Each part of the plan fitted into every other. The slavelabor program meshed with the needs of industry and agriculture, and these inturn synchronized with the military machine. The elaborate propaganda apparatusgeared with the program to dominate the people and incite them to a war theirsons would have to fight. The armament industries were fed by the concentrationcamps. The concentration camps were fed by the Gestapo.

The Gestapo was fed by the spy system of the Nazi party. Nothing was permittedunder the Nazi iron rule that was not in accordance with the program. Everythingof consequence that took place in this regimented society was but amanifestation of a premeditated and unfolding purpose to secure the Nazi state aplace in the sun by casting all others into darkness.

Common Defenses Against the Charge of Common Responsibility

The defendants meet this overwhelming case, some by admitting a limitedresponsibility, some by putting the blame on others, and some by taking theposition, in effect, that while there have been enormous crimes there are nocriminals. Time will not permit me to examine each individual and peculiardefense, but there are certain lines of defense common to so many cases thatthey deserve some consideration.

Counsel for many of the defendants seek to dismiss the conspiracy orcommon-planning charge on the ground that the pattern of the Nazi plan does notfit the concept of conspiracy applicable in German law to the plotting of ahighway robbery or a burglary. Their concept of conspiracy is in the terms of astealthy meeting in the dead of night, in a secluded hideout, in which a groupof felons plot every detail of a specific crime. The charter forestalls resortto such parochial and narrow concepts of conspiracy taken from local law byusing the additional and nontechnical term, "common plan." Omitting entirely thealternative term of "conspiracy," the charter reads that "leaders, organizers,instigators, and accomplices participating in the formulation or execution of acommon plan to commit" any of the described crimes "are responsible for all actsperformed by any persons in execution of such plan."

The charter concept of a common plan really represents the conspiracy principlein an international context. A common plan or conspiracy to seize the machineryof a state, to commit crimes against the peace of the world, to blot a race outof existence, to enslave millions, and to subjugate and loot whole nationscannot be thought of in the same terms as the plotting of petty crimes, althoughthe same underlying principles are applicable. Little gangsters may plan whichwill carry a pistol and which a stiletto, who will approach a victim from thefront and who from behind, and where they will waylay him. But in planning awar, the pistol becomes a Wehrmacht, the stiletto a Luftwaffe. Where to strikeis not a choice of dark alleys, but a matter of world geography. The operationinvolves the manipulation of public opinion, the law of the state, the policepower, industry, and finance. The baits and bluffs must be translated into anation's foreign policy. Likewise, the degree of stealth which points to aguilty purpose in a conspiracy will depend upon its object. The clandestinepreparations of a state against international society, although camouflaged tothose abroad, might be quite open and notorious among its own people. Butstealth is not an essential ingredient of such planning.

The defendants contend, however, that there could be no conspiracy involvingaggressive war because: 1) none of the Nazis wanted war; 2) rearmament was onlyintended to provide the strength to make Germany's voice heard in the family ofnations; and 3) the wars were not in fact aggressive wars but were defensiveagainst a "Bolshevik menace."

When we analyze the argument that the Nazis did not want war it comes down, insubstance, to this: "The record looks bad indeed -- objectively -- but when youconsider the state of my mind -- I subjectively hated war. I knew the horrors ofwar. I wanted peace." I am not so sure of this. I am even less willing to acceptGöring's description of the general staff as pacifist. However, it will notinjure our case to admit that as an abstract proposition none of thesedefendants liked war. But they wanted things which they knew they could not getwithout war. They wanted their neighbors' lands and goods. Their philosophyseems to be that if the neighbors would not acquiesce, then they are theaggressors and are to blame for the war. The fact is, however, that war neverbecame terrible to the Nazis until it came home to them, until it exposed theirdeceptive assurances to the German people that German cities, like the ruinedone in which we meet, would be invulnerable. From then on war was terrible.

But again the defendants claim: "To be sure, we were building guns. But not toshoot. They were only to give us weight in negotiating." At its best, thisargument amounts to a contention that the military forces were intended forblackmail, not for battle. The threat of military invasion which forced theAustrian Anschluss, the threats which preceded Munich, and Göring's threat tobomb the beautiful city of Prague if the president of Czechoslovakia did notconsent to the protectorate, are examples of what the defendants have in mindwhen they talk of arming to back negotiation.

Did these defendants then intend to withdraw German demands, or was Germany toenforce them and manipulate propaganda so as to place the blame for the war onthe nation so unreasonable as to resist? Events have answered that question, anddocuments such as Admiral Carls's memorandum, quoted earlier, leave no doubtthat the events occurred as anticipated.

But some of the defendants argue that the wars were not aggressive and were onlyintended to protect Germany against some eventual danger from the "menace ofcommunism," which was something of an obsession with many Nazis.

At the outset this argument of self-defense falls because it completely ignoresthis damning combination of facts clearly established in the record; first, theenormous and rapid German preparations for war; second, the repeatedly avowedintentions of the German leaders to attack, which I have previously cited; andthird, the fact that a series of wars occurred in which German forces struck thefirst blows, without warning, across the borders of other nations.

Even if it could be shown -- which it cannot be -- that the Russian war wasreally defensive, such is demonstrably not the case with those wars whichpreceded it.

It may also be pointed out that even those who would have you believe thatGermany was menaced by communism also compete with each other in describingtheir opposition to the disastrous Russian venture. Is it reasonable that theywould have opposed that war if it were undertaken in good faith self-defense?

The frivolous character of the self-defense theory on the facts is that itsought to compensate, as advocates often do, by resort to a theory of law. Dr.Jahrreiss, in his scholarly argument for the defense, rightly points out that notreaty provision and no principle of law denied Germany, as a sovereign nation,the right of self-defense. He follows with the assertion, for which there isauthority in classic international law, that: "...Every state is alone judge ofwhether in a given case it is waging a war of selfdefense." It is not necessaryto examine the validity of an abstract principle which does not apply to thefacts of our case. I do not doubt that if a nation arrived at a judgment that itmust resort to war in self-defense, because of conditions affording reasonablegrounds for such an honest judgment, any tribunal would accord it great andperhaps conclusive weight, even if later events proved that judgment mistaken.

But the facts in this case call for no such deference to honest judgnientbecause no such judgment was even pretended, much less honestly made.

In all the documents which disclose the planning and rationalization of theseattacks, not one sentence has been or can be cited to show a good faith fear ofattack. It may be that statesmen of other nations lacked the courageforthrightly and fully to disarm. Perhaps they suspected the secret rearmamentof Germany. But if they hesitated to abandon arms, they did not hesitate toneglect them. Germany well knew that her former enemies had allowed theirarmaments to fall into decay, so little did they contemplate another war.Germany faced a Europe that not only was unwilling to attack, but was too weakand pacifist even adequately to defend, and went to the very verge of dishonor,if not beyond, to buy its peace. The minutes we have shown you of the Nazis'secret conclaves identify no potential attacker. They bristle with the spirit ofaggression and not of defense. They contemplate always territorial expansion,not the maintenance of territorial integrity.

If these defendants may now cynically plead self-defense, although no good faithneed of self-defense was asserted or contemplated by any responsible leader atthe time, it reduces nonaggression treaties to a legal absurdity. They becomeonly additional instruments of deception in the hands of the aggressor, andtraps for well-meaning nations. If there be in nonaggression pacts an impliedcondition that each nation may make a bona fide judgment as to the necessity forself-defense against imminent, threatened attack, they certainly cannot beinvoked to shelter those who never made any such judgment at all.

In opening this case, I ventured to predict that there would be no seriousdenial that the crimes charged were committed, and that the issue would concernthe responsibility of particular defendants. The defendants have fulfilled thatprophecy. Generally, they do not deny that these things happened, but it iscontended that they "just happened," and that they were not the result of acommon plan or conspiracy.

One of the chief reasons the defendants say there was no conspiracy is theargument that conspiracy was impossible with a dictator. The argument runs thatthey all had to obey Hitler's orders, which had the force of law in the Germanstate, and hence obedience cannot be made the basis of a criminal charge. Inthis way it is explained that while there have been wholesale killings, therehave been no murderers.

This argument is an effort to evade Article 8 of the charter, which providesthat the order of the government or of a superior shall not free a defendantfrom responsibility but can only be considered in mitigation.

Like much of the defense counsel's abstract arguments, the contention that theabsolute power of Hitler precluded a conspiracy crumbles in face of the facts ofrecord. The Führerprinzip of absolutism was itself a part of the common plan, asGöring has pointed out. The defendants may have become slaves of a dictator, buthe was their dictator. To make him such was, as Göring has testified, the objectof the Nazi movement from the beginning. Every Nazi took this oath: "I pledgeeternal allegiance to Adolf Hitler. I pledge unconditional obedience to him andthe führers appointed by him." Moreover, they forced everybody else in theirpower to take it. This oath was illegal under German law, which made it criminalto become a member of an organization in which obedience to "unknown superiorsor unconditional obedience to known superiors is pledged." These men destroyedfree government in Germany and now plead to be excused from responsibilitybecause they became slaves. They are in the position of the fictional boy whomurdered his father and mother and then pleaded for leniency because he was anorphan.

What these men have overlooked is that Adolf Hitler's acts are their acts. Itwas these men among millions of others, and it was these men leading millions ofothers, who built up Adolf Hitler and vested in his psychopathic personality notonly innumerable lesser decisions but the supreme issue of war or peace. Theyintoxicated him with power and adulation. They fed his hates and aroused hisfears. They put a loaded gun in his eager hands. It was left to Hitler to pullthe trigger, and when he did they all at that time approved. His guilt standsadmitted, by some defendants reluctantly, by some vindictively. But his guilt isthe guilt of the whole dock, and of every man in it.

But it is urged that these defendants could not be in agreement on a common planor in a conspiracy because they were fighting among themselves or belonged todifferent factions or cliques. Of course, it is not necessary that men shouldagree on everything in order to agree on enough things to make them liable for acriminal conspiracy. Unquestionably there were conspiracies within theconspiracy, and intrigues and rivalries and battles for power. Schacht andGöring disagree, but over which of them should control the economy, not overwhether the economy should be regimented for war. Göring claims to have departedfrom the plan because through Dahlerus he conducted some negotiations with menof influence in England just before the Polish war. But it is perfectly clearthat this was not an effort to prevent aggression against Poland but to makethat aggression successful and safe by obtaining English neutrality. Rosenbergand Göring may have had some differences as to how stolen art should bedistributed but they had none about how it should be stolen. Jodl and Goebbelsmay have disagreed about whether to denounce the Geneva Convention, but theynever disagreed about violating it. And so it goes through the whole long andsordid story. Nowhere do we find an instance where any one of the defendantsstood up against the rest and said: "This thing is wrong and I will not go alongwith it." Wherever they differed, their differences were as to method ofdisputes over jurisdiction, but always within the framework of the common plan.

Some of the defendants also contend that in any event, there was no conspiracyto commit war crimes against humanity because cabinet members never met with themilitary to plan these acts. But these crimes were only the inevitable andincidental results of the plan to commit the aggression for Lebensraumpurposes....This was Lebensraum on its seamy side. Could men of their practicalintelligence expect to get neighboring lands free from the claims of theirtenants without committing crimes against humanity?

The last stand of each defendant is that even if there was a conspiracy, he wasnot in it. It is therefore important in examining their attempts at avoidance ofresponsibility to know, first of all, just what it is that a conspiracy chargecomprehends and punishes.

In conspiracy we do not punish one man for another man's crime. We seek topunish each for his own crime of joining a common criminal plan in which othersalso participated. The measure of the criminality of the plan and therefore ofthe guilt of each participant is, of course, the sum total of crimes committedby all in executing the plan. But the gist of the offense is participation inthe formulation or execution of the plan. These are rules which every societyhas found necessary in order to reach men, like these defendants, who never getblood on their own hands but who lay plans that result in the shedding of blood.All over Germany today, in every zone of occupation, little men who carried outthese criminal policies under orders are being convicted and punished. It wouldpresent a vast and unforgivable caricature of justice if the men who plannedthese policies and directed these little men should escape all penalty.

These men in this dock, on the face of the record, were not strangers to thisprogram of crime, nor was their connection with it remote or obscure. We findthem in the very heart of it. The positions they held show that we have chosendefendants of self-evident responsibility. They are the very top survivingauthorities in their respective fields and in the Nazi state. No one lives who,at least until the very last moments of the war, outranked Göring in position,power, and influence. No soldier stood above Keitel and Jodl, and no sailorabove Raeder and Dönitz. Who can be responsible for the duplicitous diplomacy ifnot the foreign ministers, von Neurath and [von] Ribbentrop, and the diplomatichandy man, von Papen? Who should be answerable for the oppressive administrationof occupied countries if Gauleiters, protectors, governors, and commissars suchas Frank, Seyss-Inquart, Frick, von Schirach, von Neurath, and Rosenberg arenot? Where shall we look for those who mobilized the economy for total war if weoverlook Schacht, and Speer, and Funk? Who was the master of the great slavingenterprise if it was not Sauckel? Where shall we find the hand that ran theconcentration camps if it is not the hand of Kaltenbrunner? And who whipped upthe hates and fears of the public, and manipulated the party organizations toincite these crimes, if not Hess, von Schirach, Fritzsche, Bormann, and theunspeakable Julius Streicher? The list of defendants is made up of men whoplayed indispensable and reciprocal parts in this tragedy. The photographs andfilms show them again and again together on important occasions. The documentsshow them agreed on policies and on methods, and all working aggressively forthe expansion of Germany by force of arms.

Each of these men made a real contribution to the Nazi plan. Every man had a keypart. Deprive the Nazi regime of the functions performed by a Schacht, aSauckel, a von Papen, or a Göring, and you have a different regime. Look downthe rows of fallen men and picture them as the photographic and documentaryevidence shows them to have been in their days of power. Is there one whose workdid not substantially advance the conspiracy along its bloody path toward itsbloody goal? Can we assume that the great effort of these men's lives wasdirected toward ends they never suspected?

To escape the implications of their positions and the inference of guilt fromtheir activities, the defendants are almost unanimous in one defense. Therefrain is heard time and again: these men were without authority, withoutknowledge, without influence, indeed without importance. Funk summed up thegeneral self-abasement of the dock in his plaintive lament that, "I always, soto speak, came up to the door. But I was not permitted to enter."

In the testimony of each defendant, at some point there was reached the familiarblank wall: nobody knew anything about what was going on. Time after time wehave heard the chorus from the dock: "I only heard about these things here forthe first time."

These men saw no evil, spoke none, and none was uttered in their presence. Thisclaim might sound very plausible if made by one defendant. But when we put alltheir stories together, the impression which emerges of the Third Reich, whichwas to last a thousand years, is ludicrous. If we combine only the stories fromthe front bench, this is the ridiculous composite picture of Hitler's governmentthat emerges. It was composed of:

A number-two man who knew nothing of the excesses of the Gestapo which hecreated, and never suspected the Jewish extermination program although he wasthe signer of over a score of decrees which instituted the persecutions of thatrace;

A number-three man who was merely an innocent middleman transmitting Hitler'sorders without even reading them, like a postman or delivery boy;

A foreign minister who knew little of foreign affairs and nothing of foreignpolicy;

A field marshal who issued orders to the armed forces but had no idea of theresults they would have in practice;

A security chief who was of the impression that the policing functions of hisGestapo and SD were somewhat on the order of directing traffic;

A party philosopher who was interested in historical research, and had no ideaof the violence which his philosophy was inciting in the twentieth century;

A governor general of Poland who reigned but did not rule;

A Gauleiter of Franconia whose occupation was to pour forth filthy writingsabout the Jews, but who had no idea that anybody would read them;

A minister of the Interior who knew not even what went on in the interior of hisown office, much less the interior of his own department, and nothing at allabout the interior of Germany;

A Reichsbank president who was totally ignorant of what went in and out of thevaults of his bank;

And a plenipotentiary for the War Economy who secretly marshaled the entireeconomy for armament, but had no idea it had anything to do with war.

This may seem like a fantastic exaggeration, but this is what you would inactuality be obliged to conclude if you were to acquit these defendants.

They do protest too much. They deny knowing what was common knowledge. They denyknowing plans and programs that were as public as Mein Kampf and the partyprogram. They deny even knowing the contents of documents they received andacted upon.

These defendants, unable to deny that they were the men in the very top ranks ofpower, and unable to deny that the crimes I have outlined actually happened,know that their own denials are incredible unless they can suggest someone whois guilty.

The defendants have been unanimous, when pressed, in shifting the blame on theother men, sometimes on one and sometimes on another. But the names they haverepeatedly picked are Hitler, Himmler, Heydrich, Goebbels, and Bormann. All ofthese are dead or missing. No matter how hard we have pressed the defendants onthe stand, they have never pointed the finger at a living man as guilty. It is atemptation to ponder the wondrous workings of a fate which has left only theguilty dead and only the innocent alive. It is almost too remarkable.

The chief villain on whom blame is placed -- some of the defendants vie witheach other in producing appropriate epithets -- is Hitler. He is the man at whomnearly every defendant has pointed an accusing finger.

I shall not dissent from this consensus, nor do I deny that all these dead ormissing men shared the guilt. In crimes so reprehensible that degrees of guilthave lost their significance, they may have played the most evil parts. Buttheir guilt cannot exculpate the defendants. Hitler did not carry allresponsibility to the grave with him. All the guilt is not wrapped in Himmler'sshroud. It was these dead whom these living chose to be their partners in thisgreat conspiratorial brotherhood, and the crimes that they did together theymust pay for one by one.

It may well be said that Hitler's final crime was against the land that he hadruled, he was a mad messiah who started the war without cause and prolonged itwithout reason. If he could not rule he cared not what happened to Germany. AsFritzsche has told us from the stand, Hitler tried to use the defeat of Germanyfor the self-destruction of the German people. He continued the fight when heknew it could not be won, and continuance meant only ruin.

But let me for a moment turn devil's advocate. I admit that Hitler was the chiefvillain. But for the defendants to put all blame on him is neither manly nortrue. We know that even the head of a state has the same limits to his sensesand to the hours of his day as do lesser men. He must rely on others to be hiseyes and cars as to most that goes on in a great empire. Other legs must run hiserrands; other hands must execute his plans. On whom did Hitler rely for suchthings more than upon these men in the dock? Who led him to believe he had aninvincible air armada if not Göring? Who kept disagreeable facts from him? Didnot Göring forbid Field Marshal Milch to warn Hitler that in his opinion Germanywas not equal to the war upon Russia? Did not Göring, according to Speer,relieve General Galland of his air force command for speaking of the weaknessesand bungling of the air force? Who led Hitler, utterly untraveled himself, tobelieve in the indecision and timidity of democratic peoples if not vonRibbentrop, von Neurath, and von Papen? Who fed his illusion of Germaninvincibility if not Keitel, Jodl, Raeder and Dönitz? Who kept his hatred of theJews inflamed more than Streicher and Rosenberg? Who would Hitler say deceivedhim about conditions in concentration camps if not Kaltenbrunner, even as hewould deceive us? These men had access to Hitler, and often could control theinformation that reached him and on which he must base his policy and hisorders. They were the Praetorian Guard, and while they were under Caesar'sorders, Caesar was always in their hands.

If these dead men could take the witness stand and answer what has been saidagainst them, we might have a less distorted picture of the parts played bythese defendants. Imagine the stir that would occur in the dock if it shouldbehold Adolf Hitler advancing to the witness box, or Himmler with an armful ofdossiers, or Goebbels, or Bormann with the reports of his party spies, or themurdered Röhm or Canaris. The ghoulish defense that the world is entitled toretribution only from the cadavers, is an argument worthy of the crimes at whichit is directed.

We have presented to this tribunal an affirmative case based on incriminatingdocuments which are sufficient, if unexplained, to require a finding of guilt oncount one against each defendant. In the final analysis, the only question iswhether the defendants' own testimony is to be credited as against the documentsand other evidence of their guilt. What, then, is their testimony worth?

The fact is that the Nazi habit of economizing in the use of truth pulls thefoundations out from under their own defenses. Lying has always been a highlyapproved Nazi technique. Hitler, in Mein Kampf, advocated mendacity as a policy.Von Ribbentrop admits the use of the "diplomatic lie." Keitel advised that thefacts of rearmament be kept secret so that they could be denied at Geneva.Raeder deceived about rebuilding the German Navy in violation of Versailles.Göring urged [von] Ribbentrop to tell a "legal lie" to the British ForeignOffice about the Anschluss, and in so doing only marshaled him the way he wasgoing. Göring gave his word of honor to the Czechs and proceeded to break it.Even Speer proposed to deceive the French into revealing the specially trainedamong their prisoners.

Nor is the direct lie the only means of falsehood. They all speak with a Nazidoubletalk with which to deceive the unwary. In the Nazi dictionary of sardoniceuphemisms, "final solution" of the Jewish problem was a phrase which meantextermination; "special treatment" of prisoners of war meant killing;"protective custody" meant concentration camp; "duty labor" meant slave labor;and an order to "take a firm attitude" or "take positive measures" meant to actwith unrestrained savagery. Before we accept their word at what seems to be itsface, we must always look for hidden meanings. Göring assured us, on his oath,that the Reich Defense Council never met "as such." When we produced thestenographic minutes of a meeting at which he presided and did most of thetalking, he reminded us of the "as such" and explained this was not a meeting ofthe Council "as such" because other persons were present. Göring denies"threatening" Czechoslovakia -- he only told President Hácha that he would "hateto bomb the beautiful city of Prague."

Besides outright false statements and doubletalk, there are also othercircumventions of truth in the nature of fantastic explanations and absurdprofessions. Streicher has solemnly maintained that his only thought withrespect to the Jews was to resettle them on the island of Madagascar. His reasonfor destroying synagogues, he blandly said, was only because they werearchitecturally offensive. Rosenberg was stated by his counsel to have alwayshad in mind a "chivalrous solution" to the Jewish problem. When it was necessaryto remove Schuschnigg after the Anschluss, von Ribbentrop would have had usbelieve that the Austrian chancellor was resting at a "villa." It was left tocross-examination to reveal that the "villa" was Buchenwald concentration camp.The record is full of other examples of dissimulations and evasions. EvenSchacht showed that he, too, had adopted the Nazi attitude that truth is anystory which succeeds. Confronted on cross-examination with a long record ofbroken vows and false words, he declared in justification: "I think you canscore many more successes when you want to lead someone if you don't tell themthe truth than if you tell them the truth."

This was the philosophy of the National Socialists. When for years they havedeceived the world, and masked falsehood with plausibilities, can anyone besurprised that they continue the habits of a lifetime in this dock? Credibilityis one of the main issues of this trial. Only those who have failed to learn thebitter lessons of the last decade can doubt that men who have always played onthe unsuspecting credulity of generous opponents would not hesitate to do thesame now.

It is against such a background that these defendants now ask this tribunal tosay that they are not guilty of planning, executing, or conspiring to committhis long list of crimes and wrongs. They stand before the record of this trialas bloodstained Gloucester stood by the body of his slain king. He begged of thewidow, as they beg of you: "Say I slew them not." And the queen replied, "Thensay they were not slain. But dead they are...." If you were to say of these menthat they are not guilty, it would be as true to say there has been no war,there are no slain, there has been no crime.

Continues...

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