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Robert F. Drinan. . . Douglas's account [is] filled with new and intriguing details. . . lessons and wisdom. . .[A] valuable book.
With insight Lawrence Douglas explores how prosecutors and jurors struggled to submit unprecedented crimes to legal judgment, and in so doing, to reconcile the interests of justice and pedagogy. Against the attacks of such critics as Hannah Arendt, Douglas defends the Nuremberg and Eichmann trials as imaginative, if flawed, responses to extreme crimes. By contrast, he shows how the Demjanjuk and Zundel trials turned into disasters of didactic legality, obfuscating the very history they were intended to illuminate.
In their successes and shortcomings, Douglas contends, these proceedings changed our understandings of both the Holocaust and the legal process-revealing the value and limits of the criminal trial as a didactic tool.
And then they showed that awful film, and it just spoiled everything. -Hermann Goring, quoted in Nuremberg Diary
The Tedium and the Spectacle
The courtroom at Nuremberg held the largest group of journalists ever gathered to cover a single event, yet the "most significant criminal action in history" surprised reporters with its dullness. Rebecca West, who reported on the trial for the New Yorker, described the courtroom as "a citadel of boredom." This was no run-of-the-mill boredom, West argued; it was "boredom on a huge historic scale":
The eight judges on the bench ... were plainly dragging the proceedings over the threshold of their consciousness by sheer force of will; the lawyers and the secretaries ... sat sagged in their seats at the tables in the well of the court; the interpreters twitter[ed] unhappily in their glass box like cage-birds kept awake by a bright light ...; the guards ... stood with their arms gripping their white truncheons behind their backs, all still and hard as metal save their childish faces, which were puffy with boredom.
As the trial meandered toward its conclusion, Norman Birkett, the British alternate member of the International Military Tribunal who would later draft the judgment of the court, noted in his diary, "When I consider the utter uselessness of acres of paper and thousands of words and that life is slipping away, I moan for this shocking waste of time" (fig. 1.1).
Granted: the trial was long-eleven months would pass from the reading of the indictment on November 21, 1945, until the tribunal pronounced judgment on October 1, 1946. All told, the court presided over 403 open sessions, during which it received testimony from 94 witnesses. The trial was also enormously complex, both as a logistical and legal matter. Befitting a trial convened by conquering powers, the proceeding itself came to resemble a military maneuver. At its peak, the American staff alone numbered 654 persons-lawyers, secretaries, interpreters, translators, and clerical help. More than one hundred thousand captured German documents were examined for use at the trial, and around four thousand were entered as trial exhibits. Millions of feet of film were examined for their evidentiary value. Twenty-five thousand captured still photographs were reviewed, of which eighteen hundred were prepared as trial exhibits.
Once the proceedings had begun, the trial posed additional complexities. The court had to cope with the unprecedented media attention, as 250 members of the press and radio were dispatched to report the proceedings around the world. In addition, more than 60,000 visitors' permits were issued to observers. As Robert H. Jackson, a sitting justice of the U.S. Supreme Court and the chief counsel for the Allied prosecution, noted, "It is safe to say that no litigation approaching this magnitude has ever [before] been attempted."
The logistical complexity of the case echoed its legal intricacy. The 21 defendants in the dock comprised, to quote the Moscow Declaration of 1943 that announced the Allies' intention of submitting the "brutalities of Hitlerite domination" to legal judgment, "the major criminals whose offenses have no particular geographical location" (fig. 1.2). These included such leading Nazi functionaries as Reichsmarschall Hermann Goring, who, despite having lost weight, cut a redoubtable figure as he followed the proceedings with a conspicuous display of boredom and contempt. Joining Goring was the former Nazi party boss Rudolf Hess. In British custody since his notorious Alleinflug (solo flight) to Scotland in 1941 and of questionable mental health, Hess provided a source of morbid fascination for many of the trial's observers. (West found herself drawn to Hess's "odd faculty, peculiar to lunatics, of falling into strained positions ... and staying fixed in contortion for hours.") Also in the dock were such leading government administrators as Hans Frank, the wartime governor general of Poland, and Wilhelm Frick, the Reich's minister of the interior; and prominent officers of the military, including, most notably, Wilhelm Keitel, chief of the German high command (Oberkommandos der Wehrmacht-OKW). Other leading defendants in the dock were Ernst Kaltenbrunner, who had succeeded to the leadership of the Reichssicherheithauptamt (Reich main security office, or RSHA) after the assassination of Reinhard Heydrich (and whom West memorably likened to a "vicious horse"); and Albert Speer, Hitler's architect and the Reich's minister for armaments and war production.
The detailed indictment, a hybrid of the typically laconic Anglo-American charging instrument and the more elaborate continental version, powerfully revealed the ambitions of the prosecution. In the sixty-five page document, the defendants were charged with a spectacular range of offenses, committed over the course of a decade and spread over the space of a continent. Formally, the indictment listed four separate, though related, crimes. As a substantive matter, the defendants were accused of having committed three offenses: crimes against peace, war crimes, and crimes against humanity. Fourth and finally, the indictment also accused the defendants of engaging in a "common plan or conspiracy" to perpetrate these substantive offenses. Dramatically adding to the complexity of the case, the prosecution also asked the tribunal to declare six groups, including the entire SS (Schutzstaffel) and Gestapo, "criminal organizations" (IMT 1:100). Although such a declaration would carry no punishment in the case of the major war criminals, it was intended to expedite the subsequent trials of thousands of other suspected offenders detained by the Allies.
Yet neither length nor complexity adequately explains why the trial was so widely perceived as tedious. After all, the O. J. Simpson murder trial, with its single defendant and straightforward charge, managed to take nearly as long as the Nuremberg trial without boring a watchful world. Given the enormous complexity of the case, the Nuremberg proceeding was in many ways an exercise in concision, a point captured in Jackson's prideful statement to President Harry Truman, "If it were not that the comparison might be deemed invidious, I could cite many anti-trust actions, rate cases ... and other large litigations that have taken much longer to try." If anything, one might have feared that the notorious personages in the dock and the sensational charges brought against them would have threatened to turn the trial into a circus; one would not have predicted the trial to leave its spectators puffy with boredom.
The court's impatience had, then, more to do with certain concrete aspects of the case. The trial was at its most excruciating during the lengthy presentations of the defense. The prosecution had called 33 witnesses compared to the defense's 61, and an additional 143 witnesses testified for the defense through written interrogatories. Much of the testimony offered by the witnesses was of questionable relevance: rambling disquisitions on German history or platitudinous endorsements of the character of the defendants. The president of the tribunal, Sir Geoffrey Lawrence, Britain's lord justice of appeal, labored, in the words of one observer, to explain to the defense attorneys "what the word 'relevant' has meant for centuries in law." Yet the tribunal, eager to rebut the charges voiced in certain legal and political circles that the trial was no more than an exercise of victors' justice, "bent over backward to let the defense handle the witnesses ... in any way it chose." Although the American and Soviet judges pressured Lawrence to put an end to the defense's interminable "hogwash," the lord justice, supported by his French colleague, refused. Also contributing mightily to the "water torture" of boredom was the structure of the prosecution's case. The indictment, as noted, charged the defendants both with substantive crimes, such as war crimes, and with partaking in a conspiracy or common plan to commit such offenses. Drafted into the indictment by the Americans, the conspiracy charge was never popular with the French members of the Allied prosecutorial team, as the crime of conspiracy lacked a clear analog in continental law. Assailed even in American legal circles as "a doctrine as anomalous and provincial as it is unhappy in its results," the crime of conspiracy had never been recognized as an international crime. Moreover, as we shall see, the tribunal itself was discomfited by the charge, dramatically limiting its reach in its final judgment. Yet the jurisprudential problems notwithstanding, the prosecution's reliance on a conspiracy charge had an even more troubling effect on its case. Following a Soviet recommendation, the prosecution agreed to divide the material among the four teams by offense: the Americans would present the conspiracy charge, the British would deal with crimes against the peace, and the French and Soviets would present evidence relating to war crimes and crimes against humanity (in the west and east, respectively). However tidy on paper, this scheme caused regrettable prosecutorial overlap as the handling of the conspiracy charge inevitably required presentation of evidence relating to the substantive charges underlying it (for example, in order to prove a conspiracy to wage an aggressive war, the American prosecution had to offer evidence of the aggressive war itself). Consequently, the same documents were often read twice into the record, and some subjects, such as the economic aspects of the attack on the Soviet Union, were treated three times.
Although the conspiracy charge contributed to the tedium, it was still another decision of the prosecution that most drastically drained the proceeding of its expected drama. Following the strategy outlined by Chief of Counsel Jackson, the Allies structured their case around captured documentary evidence, material considered harder and more reliable than eyewitness testimony (fig. 1.3). Jackson's strategy was not uncontroversial: Allied prosecutors, principally some on the American team, had expressed contrasting ideas about how the prosecution should present its case. Anticipating the position of Israeli prosecutors years later in the Eichmann trial, William J. Donovan, the former head of the Office of Strategic Services and Jackson's first deputy, argued in favor of structuring the prosecution's case around eyewitness testimony. Such an approach, Donovan argued, would give the trial "an affirmative human aspect" and better enable it to serve its broadly pedagogic end. Having already begun the process of screening potential witnesses, the Americans had no want of victims of Nazi aggression eager to take the stand. But despite the abundance of potential witnesses, Jackson insisted on relying on the document as the prosecution's didactic paradigm. As a result, Donovan, who continued to disparage the strategy as foolish, was unceremoniously removed from the case after the first week of the trial.
Although Donovan's reservations proved prescient, Jackson's approach was backed by sound thinking. The closest precedents to the Nuremberg trial were the war crimes trials staged in Leipzig after World War I. As James Willis has demonstrated, the initial impetus for staging war crimes trials came as a response to news reports of the "rape of Belgium." These rumors, widely circulated in French, British, and American newspapers covering the Great War, had described in lurid detail German acts of civilian slaughter, well poisoning, and infanticide. Repeated, in part, in the solemn report of the Commission on the Responsibility of the Authors of the War (1919) that endorsed the idea of a war crimes trial, these stories were later exposed largely as prevarications. The failure of the complaining parties to support their allegations with credible evidence had dramatically eroded the legitimacy of the beleaguered Leipzig proceedings.
Jackson was justifiably concerned that allegations of Nazi atrocity would be likewise dismissed as propaganda-particularly in light of the staggering magnitude of the crimes. The Nazis themselves had recognized that the incredible nature of their atrocities would cast long shadows of doubt upon any eyewitness reports. Primo Levi described how inmates at concentration camps heard the frequent taunt from their captors that should they survive, their stories would not be believed: "And even if some proof should remain and some of you survive, people will say that the events you describe are too monstrous to be believed: they will say that they are the exaggerations of Allied propaganda and will believe us, who will deny everything, and not you." As if responding to Levi's evidentiary plight, Jackson, in a report sent to President Truman in June 1945, wrote, "We must establish incredible events by credible evidence." While eyewitness and survivor testimony might offer a human dimension to the suffering caused by Nazi atrocity, such testimony, Jackson feared, would be vulnerable to charges of hyperbole, especially if the witnesses could be brought "by defense lawyers to waver in their statements."
Jackson's logic supported, then, the didactic ends of the trial. In the words of a memorandum to President Franklin Roosevelt from Henry Stimson, the secretary of war, and Edward Stettinius, the secretary of state, on January 22, 1945, "The use of the judicial method will ... make available for all mankind to study in future years an authentic record of Nazi crimes and criminality." The documentary method was seen, then, as critical to the tutelary end of the trial. Proudly quoting the International Military Tribunal's own judgment, Jackson was able to report to President Truman in 1947 that "the case ... against the defendants rests in large measure on documents of their own making, the authenticity of which has not been challenged."
Unfortunately, this sound strategy began to backfire early in the trial. Overwhelmed by the flood of documents with which the American prosecution inundated the court-many of which had not even been supplied to the defense (or, for that matter, to the other prosecutorial teams) in translation-the defense began lodging objections. While the Americans argued that the sheer volume of records made prompt translation extremely difficult, the tribunal arrived at a solution that was at once brilliant and disastrous. As the trial ended its first week, the judges announced that "only such parts of documents as are read in court by the Prosecution shall in the first instance be part of the record" (IMT 2:255-56).
Excerpted from The Memory of Judgment by LAWRENCE DOUGLAS Copyright © 2001 by Yale University. Excerpted by permission.
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|1||Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal||11|
|2||The Idiom of Judgment: Crimes Against Humanity||38|
|3||the Father Pointed to the Sky: Legitimacy and Tortured History||65|
|4||Ada Lichtmann on the Stand||97|
|5||The Court vs. the Prosecution: Policing Survivor Testimony||123|
|6||Didactic Legality and Heroic Memory||150|
|7||Retrials and Precursors: Klaus Barbie and John Demjanjuk||185|
|8||"Did Six Million Really Die?": Holocaust Denial and the Law||212|
|9||Historians and Hearsay: The Denial Trials of Ernst Zundel||226|
|10||The Legal Imagination and Traumatic History||257|
Posted December 24, 2001