Ladies and Gentlemen of the Jury: Great Closing Arguments in Modern Lawby Michael S. Lief, Ben Bycel, H. Mitchell Caldwell
Until now, only the twelve jurors who sat in judgment were able to appreciate these virtuoso performances, where weeks of testimony were boiled down and presented With flair, wit, and high drama. For five years the authors researched every archive from those of the L.A. Times to the dusty stacks of the National Archives in Washington, D.C., and readers can now lose themselves in the summations of America's finest litigators.
Clarence Darrow saves Leopold and Loeb from the gallows in the Roaring Twenties. Gerry Spence takes on the nuclear power industry for the death of Karen Silkwood in a modern-day David and Goliath struggle. Vincent Bugliosi squares off against the madness of Charles Manson and his murderous "family" in the aftermath of their bloody spree. Clara Foltz, the first woman to practice law in California, argues passionately to an all-male jury, defending her place in the courtroom. Bobby DeLaughter brings the killer of civil-rights leader Medgar Evers to justice after thirty years and two mistrials. Aubrey Daniel brings Lt. William Calley, Jr., to justice for the My Lai massacre. William Kunstler challenges the establishment after the '68 Chicago riots in his defense of yippie leaders known as the Chicago Seven.
Each closing argument is put into context by the authors, who provide historical background, a brief biography of each attorney, and commentary, pointing out the trial tactics used to great effect by tile lawyers, all in language that is jargon-free for the benefit of the lay reader.
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trialists, who became so enthusiastic that they set about to raise three million Reichsmarks to strengthen and confirm the Nazi party in power. Two months later Krupp was working to bring a reorganized association of German industry into agreement with the political aims of the Nazi government. Krupp later boasted of the success in keeping the German war industries secretly alive and in readiness despite the disarmament clauses of the Versailles treaty, and recalled the industrialists' enthusiastic acceptance of "the great intentions of the führer in the rearmament period of 1933 to '39."
The spirit of the whole Nazi administration was summed up by Göring at a meeting of the Council of Ministers, which included Schacht, on May 27, 1936, when he said, "All measures are to be considered from the standpoint of an assured waging of war."
As early as November 5, 1937, the plan to attack had begun to take definiteness as to time and victim. In a meeting which included defendants Raeder, Göring, and von Neurath, Hitler stated the cynical objective: "The question for Germany is where the greatest possible conquest could be made at the lowest possible cost."
Six months later, emboldened by the bloodless Austrian conquest, Hitler, in a secret directive to Keitel...stated his "unalterable decision to smash Czechoslovakia by military action in the near future." On the same day, Jodl noted in his diary that the fürer had stated his final decision to destroy Czechoslovakia soon and had initiated military preparations all along the line. By April the plan had been perfected to attack Czechoslovakia "with lightning-swift action as the result of an 'incident.'
All along the line, preparations became more definite for a war of expansion, on the assumption that it would result in worldwide conflict.
By May 1939, the Nazi preparations had ripened to the point that Hitler confided to defendants Göring, Raeder, Keitel, and others his readiness "to attack Poland at the first suitable opportunity," even though he recognized that "further successes cannot be attained without the shedding of blood."
While a credulous world slumbered, snugly blanketed with perfidious assurances of peaceful intentions, the Nazis prepared not merely as before for a war, but now for the war. The defendants Göring, Keitel, Raeder, Frick, and Funk, with others, met as the Reich Defense Council in June 1939. The minutes, authenticated by Göring, are revealing evidence of the way in which each step of Nazi planning dovetailed with every other. These five key defendants, three months before the first Panzer unit had knifed into Poland, were laying plans for "employment of the population in wartime," and had gone so far as to classify industry for priority in labor supply "after five million servicemen had been called up." They decided upon measures to avoid "confusion when mobilization takes place," and declared a purpose "to gain and maintain the lead in the decisive initial weeks of a war." They then planned to use in production prisoners of war, criminal prisoners, and concentration camp inmates. They then decided on "compulsory work for women in wartime."
Here also comes to the surface the link between war labor and concentration camps, a manpower source that was increasingly used and with increasing cruelty. An agreement between Himmler and Minister of justice Thierack in 1942 provided for "the delivery of antisocial elements from the execution of their sentence to the Reichsfürer SS to be worked to death." An SS directive provided that bedridden prisoners be drafted for work to be performed in bed. The Gestapo ordered 45,000 Jews arrested to increase the "recruitment of manpower into the concentration camps." One hundred thousand Jews were brought from Hungary to augment 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, and into the administration of justice and the political aims of the Nazis on the other.
The use of prisoner-of-war labor as here planned also grew with German needs. At a time when every German soldier was needed at the front and forces were not available at home, Russian prisoners of war were forced to man anti-aircraft guns against Allied planes. Field Marshal Milch reflected the Nazi merriment at this flagrant violation of international law, saying, "This is an amusing thing, that the Russians must work the guns." The orders for the treatment of Soviet prisoners of war were so ruthless that Admiral Canaris, pointing out that they would "result in arbitrary mistreatments and killings," protested against them as breaches of international law. The reply of Keitel was unambiguous: "The objections arise from the military conception of chivalrous warfare! This is the destruction of an ideology! Therefore I approve and back the measures."
Other crimes in the conduct of warfare were planned with equal thoroughness as a means of insuring the victory of German arms. In October 1938, almost a year before the start of the war, the large-scale violation of the established rules of warfare was contemplated as a policy, and the Supreme Command circulated a most secret list of devious explanations to be given by the propaganda minister in such cases. Even before this time, commanders of the armed forces were instructed 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 Keitel order, demanding use of the "most brutal means," provided that: "It is the duty of the troops to use all means without restriction, even against women and children, so long as it insures success."
The German naval forces were no more immune from the infection than the land forces. Raeder ordered violations of the accepted rules of warfare whenever necessary to gain strategic successes. Dönitz urged his submarine crews not to rescue survivors of torpedoed enemy ships in order to cripple merchant shipping of the Allied nations by decimating their crews.
Thus, the war crimes against Allied forces and the crimes against humanity committed in occupied territories are incontestably part of the program of making the war because, in the German calculations, they were indispensable to its hope of success.
Similarly, the whole group of prewar crimes, including the persecutions within Germany, fall into place around the plan for aggressive war like stones in a finely wrought mosaic. Nowhere is the whole catalogue of crimes of Nazi oppression and terrorism within Germany so well integrated with the crime of war as in that strange mixture of wind and wisdom which makes up the testimony of Hermann Göring. In describing the aims of the Nazi program before the seizure of power, Goring said: "The first question was to achieve and establish a different political structure for Germany which would enable Germany to obtain against the Dictate [of Versailles], and not only a protest, but an objection of such a nature that it would actually be considered."
From Göring's cross-examination we learn how necessarily the whole program of crime followed. Because they considered a strong state necessary to get rid of the Versailles treaty, they adopted the Führerprinzip. Having seized power, the Nazis thought it necessary to protect it by abolishing parliamentary government and suppressing all organized opposition from political parties. This was reflected in the philosophy of Göring that the opera was more important than the Reichstag....In order to eliminate incorrigible opponents, it was necessary to establish concentration camps and to resort to the device of protective custody. Protective custody, Göring testified, meant that: "People were arrested and taken into protective custody who had committed no crime but who one might expect, if they remained in freedom, would do all sorts of things to damage the German 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-Semitism and its allied scapegoat mythology were a vehicle on which the Nazis rode to power. It was for this reason that the filthy Streicher and the blasphemous Rosenberg were welcomed to a place at party rallies and made leaders and officials of the state or party. But the Nazis soon regarded the Jews as foremost amongst the opposition to the police state with which they planned to put forward their plans of military aggression. Fear of their pacifism and their opposition to strident nationalism was given as the reason that the Jews had to be driven from the political and economic life of Germany. Accordingly, they were transported like cattle to the concentration camps, where they were utilized as a source of forced labor for war purposes.
A glance over the dock will show that, despite quarrels among themselves, each defendant played a part which fitted in with every other, and that all advanced the common plan. It contradicts experience that men of such diverse backgrounds and talents should so forward each other's aims by coincidence.
The large and varied role of Göring was half militarist and half gangster. He stuck a pudgy finger in every pie. He used his SA musclemen to help bring the gang into power. In order to entrench that power, he contrived to have the Reichstag burned, established the Gestapo, and created the concentration camps. He was equally adept at massacring opponents and at framing scandals to get rid of stubborn generals. He built up the Luftwaffe and hurled it at his defenseless neighbors....He was, next to Hitler, the man who tied the activities of all the defendants together in a common effort.
The parts played by the other defendants, although less comprehensive and less spectacular than that of the Reichsmarshal, were nevertheless integral and necessary contributions to the joint undertaking, without any one of which the success of the common enterprise would have been in jeopardy. There are many specific deeds of which these men have been proven guilty. No purpose would be served -- nor indeed is time available -- to review all the crimes which the evidence has charged up to their names. Nevertheless, in viewing the conspiracy as a whole and as an operating mechanism, it may be well to recall briefly the outstanding services which each of the men in the dock rendered to the common cause.
The zealot Hess, before succumbing to wanderlust, was the engineer tending the party machinery, passing orders and propaganda down to the Leadership Corps, supervising every aspect of party activities, and maintaining the organization as a loyal and ready instrument of power. When apprehensions abroad threatened the success of the Nazi scheme for conquest, it was the duplicitous von Ribbentrop, the salesman of deception, who was detailed to pour wine on the troubled waters of suspicion by preaching the gospel of limited and peaceful intentions. Keitel, weak and willing tool, delivered the armed forces, the instrument of aggression, over to the party and directed them in executing its felonious designs.
Kaltenbrunner, the grand inquisitor, took up the bloody mantle of Heydrich to stifle opposition and terrorize compliance, and buttressed the power of National Socialism on a foundation of guiltless corpses. It was Rosenberg, the intellectual high priest of the "master race," who provided the doctrine of hatred which gave the impetus for the annihilation of Jewry, and who put his infidel theories into practice against the eastern occupied territories. His woolly philosophy also added boredom to the long list of Nazi atrocities. The fanatical Frank, who solidified Nazi control by establishing the new order of authority without law, so that the will of the party was the only test of legality, proceeded to export his lawlessness to Poland, which he governed with the lash of Caesar and whose population he reduced to sorrowing remnants. Frick, the ruthless organizer, helped the party to seize power, supervised the police agencies to insure that it stayed in power, and chained the economy of Bohemia and Moravia to the German war machine.
Streicher, the venomous vulgarian, manufactured and distributed obscene racial libels which incited the populace to accept and assist the progressively savage operations of "race purification." As minister of Economics, Funk accelerated the pace of rearmament, and as Reichsbank president banked for the SS the gold teeth fillings of concentration camp victims -- probably the most ghoulish collateral in banking history. It was Schacht, the facade of starched respectability, who in the early days provided the window dressing, the bait for the hesitant, and whose wizardry later made it possible for Hitler to finance the colossal rearmament program, and to do it secretly.
Dönitz, Hitler's legatee of defeat, promoted the success of the Nazi aggressions by instructing his pack of submarine killers to conduct warfare at sea with the illegal ferocity of the jungle. Raeder, the political admiral, stealthily built up the German Navy in defiance of the Versailles treaty, and then put it to use in a series of aggressions which he had taken a large part in planning. Von Schirach, poisoner of a generation, initiated the German youth in Nazi doctrine, trained them in legions for service in the SS and Wehrmacht, and delivered them up to the party as fanatic, unquestioning executors of its will.
Sauchel, the greatest and cruelest slaver since the pharaohs of Egypt, produced desperately needed manpower by driving foreign peoples into the land of bondage on a scale unknown even in the ancient days of tyranny in the kingdom of the Nile. Jodl, betrayer of the traditions of his profession, led the Wehrmacht in violating its own code of military honor in order to carry out the barbarous aims of Nazi policy. Von Papen, pious agent of an infidel regime, held the stirrup while Hitler vaulted into the saddle, lubricated the Austrian annexation, and devoted his diplomatic cunning to the service of Nazi objectives abroad.
Seyss-Inquart, spearhead of the Austrian fifth column, took over the government of his own country only to make a present of it to Hitler, and then, moving north, brought terror and oppression to the Netherlands and pillaged its economy for 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 the early years, soothed the fears of prospective victims, and as Reich protector of Bohemia and Moravia, strengthened the German position for the coming attack on Poland. Speer, as minister of Armaments and War Production, joined in planning and executing the program to dragoon prisoners of war and foreign workers into German war industries, which waxed in output while the laborers waned in starvation. Fritzsche, radio propaganda chief, by manipulation of the truth goaded German public opinion into frenzied support of the regime and anesthetized the independent judgment of the population so that they did without question their masters' bidding. And Bormann, who has not accepted our invitation to this reunion, sat at the throttle of the vast and powerful engine of the party, guiding it in the ruthless execution of Nazi policies, from the scourging of the Christian church to the lynching of captive Allied airmen.
The activities of all these defendants, despite their varied backgrounds and talents, were joined with the efforts of other conspirators not now in the dock, who played still other essential roles. They blend together into one consistent and militant pattern animated by a common objective to reshape the map of Europe by force of arms. Some of these defendants were ardent members of the Nazi movement from its birth. Others, less fanatical, joined the common enterprise later, after successes had made participation attractive by the promise of rewards. This group of latter-day converts remedied a crucial defect in the ranks of the original true believers, for as Dr. Seimers has pointed out in his summation: "There were no specialists among the National Socialists for the particular tasks. Most of the National Socialist collaborators did not previously follow a trade requiring technical education." It was the fatal weakness of the early Nazi band that it lacked technical competence. It could not from among its own ranks make up a government capable of carrying out all the projects necessary to realize its aims. Therein lies the special crime and betrayal of men like Schacht and von Neurath, Speer and von Papen, Raeder and Dönitz, Keitel and Jodl. It is doubtful whether the Nazi master plan could have succeeded without their specialized intelligence which they so willingly put at its command. They did so with knowledge of its announced aims and methods, and continued their services after practice had confirmed the direction in which they were tending. Their superiority to the average run of Nazi mediocrity is not their excuse. It is their condemnation.
The dominant fact which stands out from all the thousands of pages of the record of this trial is that the central crime of the whole group of Nazi crimes -- the attack on the peace of the world -- was clearly and deliberately planned. The beginning of these wars of aggression was not an unprepared and spontaneous springing to arms by a population excited by some current indignation. A week before the invasion of Poland, Hitler told his military commanders: "I shall give a propagandist cause for starting war -- never mind whether it be plausible or 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." The propagandist incident was duly provided by dressing concentration camp inmates in Polish uniforms, in order to create the appearance of a Polish attack on a German frontier radio station. The plan to occupy Belgium, Holland, and Luxembourg first appeared as early as August 1938 in connection with the plan for attack on Czechoslovakia. The intention to attack became a program in May 1939, when Hitler told his commanders that: "The Dutch and Belgian air bases must be occupied by armed forces. Declarations of neutrality must be ignored." Thus, the follow-up wars were planned before the first was launched. These were the most carefully plotted wars in all history. Scarcely a step in their terrifying succession and progress failed to move according to the master blueprint or the subsidiary schedules and timetables until long after the crimes of aggression were consummated.
Nor were the war crimes and the crimes against humanity unplanned, isolated, or spontaneous offenses. Aside from our undeniable evidence of their plotting, it is sufficient to ask whether six million people could be separated from the population of several nations on the basis of their blood and birth, could be destroyed and their bodies disposed of, except that the operation fitted into the general scheme of government. Could the enslavement of five millions of laborers, their impressment into service, their transportation to Germany, their allocation to work where they would be most useful, their maintenance -- if slow starvation can be called maintenance -- and their guarding have been accomplished if it did not fit into the common plan? Could hundreds of concentration camps located throughout Germany, built to accommodate hundreds of thousands of victims, and each requiring labor and materials for construction, manpower to operate and supervise, and close gearing into the economy -- could such efforts have been expended under German autocracy if they had not suited the plan?
Has the Teutonic passion for organization become famous for its toleration of nonconforming activity? Each part of the plan fitted into every other. The slave labor program meshed with the needs of industry and agriculture, and these in turn synchronized with the military machine. The elaborate propaganda apparatus geared with the program to dominate the people and incite them to a war their sons would have to fight. The armament industries were fed by the concentration camps. The concentration camps were fed by the Gestapo.
The Gestapo was fed by the spy system of the Nazi party. Nothing was permitted under the Nazi iron rule that was not in accordance with the program. Everything of consequence that took place in this regimented society was but a manifestation of a premeditated and unfolding purpose to secure the Nazi state a place in the sun by casting all others into darkness.
The defendants meet this overwhelming case, some by admitting a limited responsibility, some by putting the blame on others, and some by taking the position, in effect, that while there have been enormous crimes there are no criminals. Time will not permit me to examine each individual and peculiar defense, but there are certain lines of defense common to so many cases that they deserve some consideration.
Counsel for many of the defendants seek to dismiss the conspiracy or common-planning charge on the ground that the pattern of the Nazi plan does not fit the concept of conspiracy applicable in German law to the plotting of a highway robbery or a burglary. Their concept of conspiracy is in the terms of a stealthy meeting in the dead of night, in a secluded hideout, in which a group of felons plot every detail of a specific crime. The charter forestalls resort to such parochial and narrow concepts of conspiracy taken from local law by using the additional and nontechnical term, "common plan." Omitting entirely the alternative term of "conspiracy," the charter reads that "leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan to commit" any of the described crimes "are responsible for all acts performed by any persons in execution of such plan."
The charter concept of a common plan really represents the conspiracy principle in an international context. A common plan or conspiracy to seize the machinery of a state, to commit crimes against the peace of the world, to blot a race out of existence, to enslave millions, and to subjugate and loot whole nations cannot be thought of in the same terms as the plotting of petty crimes, although the same underlying principles are applicable. Little gangsters may plan which will carry a pistol and which a stiletto, who will approach a victim from the front and who from behind, and where they will waylay him. But in planning a war, the pistol becomes a Wehrmacht, the stiletto a Luftwaffe. Where to strike is not a choice of dark alleys, but a matter of world geography. The operation involves the manipulation of public opinion, the law of the state, the police power, industry, and finance. The baits and bluffs must be translated into a nation's foreign policy. Likewise, the degree of stealth which points to a guilty purpose in a conspiracy will depend upon its object. The clandestine preparations of a state against international society, although camouflaged to those abroad, might be quite open and notorious among its own people. But stealth is not an essential ingredient of such planning.
The defendants contend, however, that there could be no conspiracy involving aggressive war because: 1) none of the Nazis wanted war; 2) rearmament was only intended to provide the strength to make Germany's voice heard in the family of nations; and 3) the wars were not in fact aggressive wars but were defensive against a "Bolshevik menace."
When we analyze the argument that the Nazis did not want war it comes down, in substance, to this: "The record looks bad indeed -- objectively -- but when you consider the state of my mind -- I subjectively hated war. I knew the horrors of war. I wanted peace." I am not so sure of this. I am even less willing to accept Göring's description of the general staff as pacifist. However, it will not injure our case to admit that as an abstract proposition none of these defendants liked war. But they wanted things which they knew they could not get without war. They wanted their neighbors' lands and goods. Their philosophy seems to be that if the neighbors would not acquiesce, then they are the aggressors and are to blame for the war. The fact is, however, that war never became terrible to the Nazis until it came home to them, until it exposed their deceptive assurances to the German people that German cities, like the ruined one 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 to shoot. They were only to give us weight in negotiating." At its best, this argument amounts to a contention that the military forces were intended for blackmail, not for battle. The threat of military invasion which forced the Austrian Anschluss, the threats which preceded Munich, and Göring's threat to bomb the beautiful city of Prague if the president of Czechoslovakia did not consent to the protectorate, are examples of what the defendants have in mind when they talk of arming to back negotiation.
Did these defendants then intend to withdraw German demands, or was Germany to enforce them and manipulate propaganda so as to place the blame for the war on the nation so unreasonable as to resist? Events have answered that question, and documents such as Admiral Carls's memorandum, quoted earlier, leave no doubt that the events occurred as anticipated.
But some of the defendants argue that the wars were not aggressive and were only intended to protect Germany against some eventual danger from the "menace of communism," which was something of an obsession with many Nazis.
At the outset this argument of self-defense falls because it completely ignores this damning combination of facts clearly established in the record; first, the enormous and rapid German preparations for war; second, the repeatedly avowed intentions of the German leaders to attack, which I have previously cited; and third, the fact that a series of wars occurred in which German forces struck the first blows, without warning, across the borders of other nations.
Even if it could be shown -- which it cannot be -- that the Russian war was really defensive, such is demonstrably not the case with those wars which preceded it.
It may also be pointed out that even those who would have you believe that Germany was menaced by communism also compete with each other in describing their opposition to the disastrous Russian venture. Is it reasonable that they would 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 it sought 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 no treaty 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 is authority in classic international law, that: "...Every state is alone judge of whether in a given case it is waging a war of selfdefense." It is not necessary to examine the validity of an abstract principle which does not apply to the facts of our case. I do not doubt that if a nation arrived at a judgment that it must resort to war in self-defense, because of conditions affording reasonable grounds for such an honest judgment, any tribunal would accord it great and perhaps conclusive weight, even if later events proved that judgment mistaken.
But the facts in this case call for no such deference to honest judgnient because no such judgment was even pretended, much less honestly made.
In all the documents which disclose the planning and rationalization of these attacks, not one sentence has been or can be cited to show a good faith fear of attack. It may be that statesmen of other nations lacked the courage forthrightly and fully to disarm. Perhaps they suspected the secret rearmament of Germany. But if they hesitated to abandon arms, they did not hesitate to neglect them. Germany well knew that her former enemies had allowed their armaments 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 weak and 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 of aggression 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 faith need of self-defense was asserted or contemplated by any responsible leader at the time, it reduces nonaggression treaties to a legal absurdity. They become only additional instruments of deception in the hands of the aggressor, and traps for well-meaning nations. If there be in nonaggression pacts an implied condition that each nation may make a bona fide judgment as to the necessity for self-defense against imminent, threatened attack, they certainly cannot be invoked to shelter those who never made any such judgment at all.
In opening this case, I ventured to predict that there would be no serious denial that the crimes charged were committed, and that the issue would concern the responsibility of particular defendants. The defendants have fulfilled that prophecy. Generally, they do not deny that these things happened, but it is contended that they "just happened," and that they were not the result of a common plan or conspiracy.
One of the chief reasons the defendants say there was no conspiracy is the argument that conspiracy was impossible with a dictator. The argument runs that they all had to obey Hitler's orders, which had the force of law in the German state, and hence obedience cannot be made the basis of a criminal charge. In this way it is explained that while there have been wholesale killings, there have been no murderers.
This argument is an effort to evade Article 8 of the charter, which provides that the order of the government or of a superior shall not free a defendant from responsibility but can only be considered in mitigation.
Like much of the defense counsel's abstract arguments, the contention that the absolute power of Hitler precluded a conspiracy crumbles in face of the facts of record. The Führerprinzip of absolutism was itself a part of the common plan, as Göring has pointed out. The defendants may have become slaves of a dictator, but he was their dictator. To make him such was, as Göring has testified, the object of the Nazi movement from the beginning. Every Nazi took this oath: "I pledge eternal allegiance to Adolf Hitler. I pledge unconditional obedience to him and the führers appointed by him." Moreover, they forced everybody else in their power to take it. This oath was illegal under German law, which made it criminal to become a member of an organization in which obedience to "unknown superiors or unconditional obedience to known superiors is pledged." These men destroyed free government in Germany and now plead to be excused from responsibility because they became slaves. They are in the position of the fictional boy who murdered his father and mother and then pleaded for leniency because he was an orphan.
What these men have overlooked is that Adolf Hitler's acts are their acts. It was these men among millions of others, and it was these men leading millions of others, who built up Adolf Hitler and vested in his psychopathic personality not only innumerable lesser decisions but the supreme issue of war or peace. They intoxicated him with power and adulation. They fed his hates and aroused his fears. They put a loaded gun in his eager hands. It was left to Hitler to pull the trigger, and when he did they all at that time approved. His guilt stands admitted, by some defendants reluctantly, by some vindictively. But his guilt is the 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 plan or in a conspiracy because they were fighting among themselves or belonged to different factions or cliques. Of course, it is not necessary that men should agree on everything in order to agree on enough things to make them liable for a criminal conspiracy. Unquestionably there were conspiracies within the conspiracy, and intrigues and rivalries and battles for power. Schacht and Göring disagree, but over which of them should control the economy, not over whether the economy should be regimented for war. Göring claims to have departed from the plan because through Dahlerus he conducted some negotiations with men of influence in England just before the Polish war. But it is perfectly clear that this was not an effort to prevent aggression against Poland but to make that aggression successful and safe by obtaining English neutrality. Rosenberg and Göring may have had some differences as to how stolen art should be distributed but they had none about how it should be stolen. Jodl and Goebbels may have disagreed about whether to denounce the Geneva Convention, but they never disagreed about violating it. And so it goes through the whole long and sordid story. Nowhere do we find an instance where any one of the defendants stood up against the rest and said: "This thing is wrong and I will not go along with it." Wherever they differed, their differences were as to method of disputes over jurisdiction, but always within the framework of the common plan.
Some of the defendants also contend that in any event, there was no conspiracy to commit war crimes against humanity because cabinet members never met with the military to plan these acts. But these crimes were only the inevitable and incidental results of the plan to commit the aggression for Lebensraum purposes....This was Lebensraum on its seamy side. Could men of their practical intelligence expect to get neighboring lands free from the claims of their tenants without committing crimes against humanity?
The last stand of each defendant is that even if there was a conspiracy, he was not in it. It is therefore important in examining their attempts at avoidance of responsibility to know, first of all, just what it is that a conspiracy charge comprehends and punishes.
In conspiracy we do not punish one man for another man's crime. We seek to punish each for his own crime of joining a common criminal plan in which others also participated. The measure of the criminality of the plan and therefore of the guilt of each participant is, of course, the sum total of crimes committed by all in executing the plan. But the gist of the offense is participation in the formulation or execution of the plan. These are rules which every society has found necessary in order to reach men, like these defendants, who never get blood 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 out these criminal policies under orders are being convicted and punished. It would present a vast and unforgivable caricature of justice if the men who planned these 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 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. The photographs and films show them again and again together on important occasions. The documents show them agreed on policies and on methods, and all working aggr essively for the expansion of Germany by force of arms.
Each of these men made a real contribution to the Nazi plan. Every man had a key part. Deprive the Nazi regime of the functions performed by a Schacht, a Sauckel, a von Papen, or a Göring, and you have a different regime. Look down the rows of fallen men and picture them as the photographic and documentary evidence shows them to have been in their days of power. Is there one whose work did not substantially advance the conspiracy along its bloody path toward its bloody goal? Can we assume that the great effort of these men's lives was directed toward ends they never suspected?
To escape the implications of their positions and the inference of guilt from their activities, the defendants are almost unanimous in one defense. The refrain is heard time and again: these men were without authority, without knowledge, without influence, indeed without importance. Funk summed up the general self-abasement of the dock in his plaintive lament that, "I always, so to 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 familiar blank wall: nobody knew anything about what was going on. Time after time we have heard the chorus from the dock: "I only heard about these things here for the first time."
These men saw no evil, spoke none, and none was uttered in their presence. This claim might sound very plausible if made by one defendant. But when we put all their stories together, the impression which emerges of the Third Reich, which was to last a thousand years, is ludicrous. If we combine only the stories from the front bench, this is the ridiculous composite picture of Hitler's government that emerges. It was composed of:
A number-two man who knew nothing of the excesses of the Gestapo which he created, and never suspected the Jewish extermination program although he was the signer of over a score of decrees which instituted the persecutions of that race;
A number-three man who was merely an innocent middleman transmitting Hitler's orders without even reading them, like a postman or delivery boy;
A foreign minister who knew little of foreign affairs and nothing of foreign policy;
A field marshal who issued orders to the armed forces but had no idea of the results they would have in practice;
A security chief who was of the impression that the policing functions of his Gestapo and SD were somewhat on the order of directing traffic;
A party philosopher who was interested in historical research, and had no idea of 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 writings about 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 his own office, much less the interior of his own department, and nothing at all about the interior of Germany;
A Reichsbank president who was totally ignorant of what went in and out of the vaults of his bank;
And a plenipotentiary for the War Economy who secretly marshaled the entire economy 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 in actuality be obliged to conclude if you were to acquit these defendants.
They do protest too much. They deny knowing what was common knowledge. They deny knowing plans and programs that were as public as Mein Kampf and the party program. They deny even knowing the contents of documents they received and acted upon.
These defendants, unable to deny that they were the men in the very top ranks of power, and unable to deny that the crimes I have outlined actually happened, know that their own denials are incredible unless they can suggest someone who is guilty.
The defendants have been unanimous, when pressed, in shifting the blame on the other men, sometimes on one and sometimes on another. But the names they have repeatedly picked are Hitler, Himmler, Heydrich, Goebbels, and Bormann. All of these are dead or missing. No matter how hard we have pressed the defendants on the stand, they have never pointed the finger at a living man as guilty. It is a temptation to ponder the wondrous workings of a fate which has left only the guilty dead and only the innocent alive. It is almost too remarkable.
The chief villain on whom blame is placed -- some of the defendants vie with each other in producing appropriate epithets -- is Hitler. He is the man at whom nearly every defendant has pointed an accusing finger.
I shall not dissent from this consensus, nor do I deny that all these dead or missing men shared the guilt. In crimes so reprehensible that degrees of guilt have lost their significance, they may have played the most evil parts. But their guilt cannot exculpate the defendants. Hitler did not carry all responsibility to the grave with him. All the guilt is not wrapped in Himmler's shroud. It was these dead whom these living chose to be their partners in this great conspiratorial brotherhood, and the crimes that they did together they must pay for one by one.
It may well be said that Hitler's final crime was against the land that he had ruled, he was a mad messiah who started the war without cause and prolonged it without reason. If he could not rule he cared not what happened to Germany. As Fritzsche has told us from the stand, Hitler tried to use the defeat of Germany for the self-destruction of the German people. He continued the fight when he knew 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 chief villain. But for the defendants to put all blame on him is neither manly nor true. We know that even the head of a state has the same limits to his senses and to the hours of his day as do lesser men. He must rely on others to be his eyes and cars as to most that goes on in a great empire. Other legs must run his errands; other hands must execute his plans. On whom did Hitler rely for such things more than upon these men in the dock? Who led him to believe he had an invincible air armada if not Göring? Who kept disagreeable facts from him? Did not Göring forbid Field Marshal Milch to warn Hitler that in his opinion Germany was 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 weaknesses and bungling of the air force? Who led Hitler, utterly untraveled himself, to believe in the indecision and timidity of democratic peoples if not von Ribbentrop, von Neurath, and von Papen? Who fed his illusion of German invincibility if not Keitel, Jodl, Raeder and Dönitz? Who kept his hatred of the Jews inflamed more than Streicher and Rosenberg? Who would Hitler say deceived him about conditions in concentration camps if not Kaltenbrunner, even as he would deceive us? These men had access to Hitler, and often could control the information that reached him and on which he must base his policy and his orders. They were the Praetorian Guard, and while they were under Caesar's orders, Caesar was always in their hands.
If these dead men could take the witness stand and answer what has been said against them, we might have a less distorted picture of the parts played by these defendants. Imagine the stir that would occur in the dock if it should behold Adolf Hitler advancing to the witness box, or Himmler with an armful of dossiers, or Goebbels, or Bormann with the reports of his party spies, or the murdered Röhm or Canaris. The ghoulish defense that the world is entitled to retribution only from the cadavers, is an argument worthy of the crimes at which it is directed.
We have presented to this tribunal an affirmative case based on incriminating documents which are sufficient, if unexplained, to require a finding of guilt on count one against each defendant. In the final analysis, the only question is whether the defendants' own testimony is to be credited as against the documents and 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 the foundations out from under their own defenses. Lying has always been a highly approved Nazi technique. Hitler, in Mein Kampf, advocated mendacity as a policy. Von Ribbentrop admits the use of the "diplomatic lie." Keitel advised that the facts 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 Foreign Office about the Anschluss, and in so doing only marshaled him the way he was going. 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 trained among their prisoners.
Nor is the direct lie the only means of falsehood. They all speak with a Nazi doubletalk with which to deceive the unwary. In the Nazi dictionary of sardonic euphemisms, "final solution" of the Jewish problem was a phrase which meant extermination; "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 act with unrestrained savagery. Before we accept their word at what seems to be its face, 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 the stenographic minutes of a meeting at which he presided and did most of the talking, he reminded us of the "as such" and explained this was not a meeting of the Council "as such" because other persons were present. Göring denies "threatening" Czechoslovakia -- he only told President Hácha that he would "hate to bomb the beautiful city of Prague."
Besides outright false statements and doubletalk, there are also other circumventions of truth in the nature of fantastic explanations and absurd professions. Streicher has solemnly maintained that his only thought with respect to the Jews was to resettle them on the island of Madagascar. His reason for destroying synagogues, he blandly said, was only because they were architecturally offensive. Rosenberg was stated by his counsel to have always had in mind a "chivalrous solution" to the Jewish problem. When it was necessary to remove Schuschnigg after the Anschluss, von Ribbentrop would have had us believe that the Austrian chancellor was resting at a "villa." It was left to cross-examination to reveal that the "villa" was Buchenwald concentration camp. The record is full of other examples of dissimulations and evasions. Even Schacht showed that he, too, had adopted the Nazi attitude that truth is any story which succeeds. Confronted on cross-examination with a long record of broken vows and false words, he declared in justification: "I think you can score many more successes when you want to lead someone if you don't tell them the truth than if you tell them the truth."
This was the philosophy of the National Socialists. When for years they have deceived the world, and masked falsehood with plausibilities, can anyone be surprised that they continue the habits of a lifetime in this dock? Credibility is one of the main issues of this trial. Only those who have failed to learn the bitter lessons of the last decade can doubt that men who have always played on the unsuspecting credulity of generous opponents would not hesitate to do the same now.
It is against such a background that these defendants now ask this tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: "Say I slew them not." And the queen replied, "Then say they were not slain. But dead they are...." If you were to say of these men that 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.
Copyright © 1998 by Michael S Lief, Benjamin Bycel, and Harry Cadwell
Meet the Author
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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