Tyranny at Nuremberg

by Paul Craig Roberts, Paul Craig Roberts:

The showtrial of a somewhat arbitrarily selected group of 21 surviving Nazis at Nuremberg during 1945-46 was US Supreme Court Justice Robert Jackson’s show. Jackson was the chief prosecutor. As a long-time admirer of Jackson, I always assumed that he did a good job.

My admiration for Jackson stems from his defense of law as a shield of the people rather than a weapon in the hands of government, and from his defense of the legal principle known as mens rea, that is, that crime requires intent. I often cite Jackson for his defense of these legal principles that are the very foundation of liberty. Indeed, I cited Jackson in my recent July 31 column. His defense of law as a check on government power plays a central role in the book that I wrote with Lawrence Stratton, The Tyranny of Good Intentions.

In 1940 Jackson was US Attorney General. He addressed federal prosecutors and warned them against “picking the man and then putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense—that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views or being personally obnoxious to, or in the way of, the prosecutor himself.”

Later as a Suprme Court justice Jackson overturned a lower court conviction of a person who had no idea, or any reason to believe, that he had committed a crime.

Having just finished reading David Irving’s book Nuremberg (1996), I am devastated to learn that in his pursuit of another principle, at Nuremberg Jackson violated all of the legal principles for which I have so long admired him. To be clear, at Nuremberg Jackson was in pursuit of Nazis, but their conviction was the means to his end—the establishment of the international legal principle that the initiation of war, the commitment of military aggression, was a crime.

The problem, of course, was that at Nuremberg people were tried on the basis of ex post facto law—law that did not exist at the time of their actions for which they were convicted.

Moreover, the sentence—death by hanging—was decided prior to the trial and prior to the selection of defendants.

Moreover, the defendants were chosen and then a case was made against them.

Exculpatory evidence was withheld. Charges on which defendants were convicted turned out to be untrue.

The trials were so loaded in favor of the prosecution that defense was pro forma.

The defendants were abused and some were tortured.

The defendants were encouraged to give false witness against one another, which for the most part the defendants refused to do, with Albert Speer being the willing one. His reward was a prison sentence rather than death.

The defendants’ wives and children were arrested and imprisoned. To Jackson’s credit, this infuriated him.

President Franklin D. Roosevelt, General Eisenhower, and Winston Churchill thought that surviving Nazis should be shot without trial. Roosevelt laughed about liquidating 50,000 German military officers. Eisenhower told Lord Halifax that Nazi leaders should be shot while trying to escape, the common euphemism for murder. Russians spoke of castrating German men and breeding German women to annihaliate the German race. US Treasury Secretary Henry Morgenthau wanted to reduce Germany to an agrarian society and send able-bodied Germans to Africa as slaves to work on “some big TVA project.”

Robert Jackson saw in these intentions not only rank criminality among the allied leadership but also a missed opportunity to create the legal principle that would criminalize war, thus removing the disaster of war from future history. Jackson’s end was admirable, but the means required bypassing Anglo-American legal principles.

Jackson got his chance, perhaps because Joseph Stalin vetoed execution without trial. First a showtrial, Stalin said, to demonstrate their guilt so that we do not make martyrs out of Nazis.

Whom to select for the list of 21-22 persons to be charged? Well, whom did the allies have in custody? Not all those they desired. They had Reichsmarschall Herman Göring who headed the air force. Whatever the valid charges against Göring, they were not considered to be mitigated by the fact that under Göring the German air force was mainly used against enemy formations on the battleground and not, like the US and British air forces in satuation terror bombing of civilian cities, such as Dresden, Tokyo, Hiroshima, and Nagasaki, or by the fact that in Hitler’s final days Hitler removed Göring from all his positions, expelled him from the party, and ordered his arrest.

The Nuremberg trials are paradoxical in that the law Jackson intended to establish applied to every country, not to Germany alone. The ex post facto law under which Germans were sentenced to death and to prison also criminalized the terror bombing of German and Japanese cities by the British and US air forces. Yet, the law was only applied to the Germans in the dock. In his book, Apocalypse 1945: The Destruction of Dresden (1995), Irving quotes US General George C. McDonald’s dissent from the directive to bomb civilian cities such as Dresden. Gen. McDonald characterized the directive as the “extermination of populations and the razing of cities,” war crimes under the Nuremberg standard.