dtufail/nuremberg-trials-corpus huggingface dataset:
MR. JUSTICE JACKSON: I think there is not much that I care to say in reply, but there are one or two points which I would like to cover. It has been suggested that there be a separation of the trial of the issues as to the organizations from the Trial now pending. I think that is impossible under the Charter. I think the Trial must proceed as a unit. Of course, it is possible to take up at separate times different parts of the Trial, but the jurisdiction conferred by Article 9 for the trial of organizations is limited. It is at the trial of any individual member, of any group, et cetera , that this decision must be reached and it must be in connection with any act of which the individual may be convicted. So I think that any separation, in anything more than a mere separation of days or separation of weeks of our time, is impossible. I find some difficulty in understanding the argument which has been advanced by several of the representatives of the organizations that there would be some great injustice in dishonoring the members of these organizations or branding the members of these organizations with the declaration of criminality. I should have thought that if they were not already dishonored by the evidence that has been produced here, dishonor would be difficult to achieve by mere words of the declaration. It isn't we who are dishonoring the members of those organizations. It is the evidence in this case, originating largely with these defendants, that may well bring dishonor to the members of these organizations. But the very purpose of this organizational investigation is to determine that part of German society which did actively participate in the promulgation of these offenses and that those elements may be condemned; and, of course, if it carries some discredit with it, I think we must say that the discredit was not originated by any of our countries; the dishonor originated mainly with those in this dock, together with those whom the fortunes of war have removed from our reach.
MR. JUSTICE JACKSON: There seems to be some misunderstanding as to just what we mean, or at least we do not agree as to what is to be meant by treating these organizations as generally voluntary. The test which has been advanced by the counsel for the organizations would, it seems to me, completely nullify any practicable procedure. Now let us contrast the Wehrmacht and the SS to get at what I mean by regarding an organization as generally voluntary. The Wehrmacht was generally a conscript organization, but it may have had a good many volunteers in it. I do not think we would be justified, because there were volunteers, in calling the Wehrmacht a voluntary organization. The SS, on the other hand, was generally a voluntary organization, but it did have some conscripts, and I do not think it would be any more just to carry the SS into the class of conscript organizations because of a few members than it would to classify the Wehrmacht as voluntary because of a few members. In other words, in neither case would we be justified in avowing, as we might say, the "tail to wag the dog." It is a question of the general character of the over-all organization that decides what these organizations are. Now, of course, if the Tribunal saw fit to say that its declaration was not intended to apply to any groups, sections, or individuals who were conscripts, that is one thing. I have no quarrel with that. From the very beginning I have insisted that of course we were not trying to reach conscripts. But if you sit here week after week determining who is a conscript and just where that principle leads, that, I think, would be quite apart from what we ought to do here. A great deal of argument is addressed to the fact that proof is lacking -- or that here should be stronger proof -- that these organizations' real criminality was known to the members; and the inference seems to be that we must prove that every member -- or, at least -- that we cannot hold members who did not know this criminal program on the part of these organizations.
MR. JUSTICE JACKSON: I think this gets into a question, perhaps, of the sufficiency of proof rather than one of principle, but it seems to me again that we have the common sense division. If some one organized a literary society for the study of German literature and accumulated some funds and had a home, a house, and some of the defendants became its officers and secretly diverted its funds to a criminal purpose, while all the time to the public it was presenting only the appearance of being a literary society, it might very well be that a member should not be held unless we proved actual knowledge. Or, if a labor union, ostensibly for the purpose of improving the welfare of its members, has its funds or properties or the prestige of its name diverted by those who happened to gain control of it to criminal purposes, then you have a situation where the members might not be chargeable with knowledge. But when I speak of knowledge sufficient to charge members, as I did, I do not mean the state of mind of each individual member. That would be an absurd test in any court of law. In the first place, it is never a satisfactory thing to explore the state of mind of an individual; and, in the second place, it is impossible to explore the state of mind of a million individuals. So we might as well drop this from consideration, if that were to be the test. But let us look at this over all program. How did these few men who were the heads of this Nazi regime kill 5 million Jews, as they boast they did? Now, they didn't do it with their hands; and it took disciplined, organized, systematic manpower to do it. That manpower wasn't casually assembled. It was organized, directed, and used. Can the killing of 5 million Jews in Europe be a secret? Weren't the concentration camps known in every one of our countries? Were they not a byword in every land in the world -- the German concentration camps -- and yet we have to hear that the German people themselves had no knowledge about it.
MR. JUSTICE JACKSON: Our public officials were protesting against the slaughter of Jews diplomatically and in every other way, and yet we are told this was a secret in Germany. The name of the Gestapo was known throughout the world, and there isn't a man among counsel who would not have turned white if, in the night at his door, someone rapped and said he was representing the Gestapo. The name of that organization was known -- unless we are to assume that it was singularly secret in Germany, but known to the rest of the world. That sort of thing bears on this question of what men who joined these organizations ought to know. There was no declared and ostensible purpose of the SS, SA, and several of these organizations, except to carry into effect the Nazi program. They would make themselves masters of the streets. The story is all in the evidence, and I won't go on to repeat it. The program was an open, notorious program, and these were the strong-arm organizations. So it seems to me that we get down to the situation where, as Chief Justice Taft once said to the Supreme Court of the United States on a somewhat similar question: "We as judges are not obliged to close our eyes to things that all other men can see." And this was notorious and open. It is a little hard, if Your Honors please, for an American patiently to listen to the arguments made here again and again, that there is some plan here to punish with death penalties or extremely severe penalties people who innocently got caught in this web of organizations. If there were the slightest purpose to go through Germany with death we wouldn't have bothered to set up this Tribunal and stand here openly before the world with our evidence. We were not out of ammunition when the surrender took place, and the physical power to execute anyone was present. These powers have voluntarily, in their hour of victory, submitted to the judgment of this Tribunal the question of the criminality of these organizations.
MR. JUSTICE JACKSON: And it seems to me a little trying on the patience of representatives of those powers to be told that back of this is some purpose to wreak vengeance on innocent people. I think it is difficult for those who have survived this Nazi regime to understand how reluctant we are to kill any human being. It is a commentary on the state of mind that survived this Nazi regime, rather than upon us. Control Council Act Number 10 -- I don't know whether Your Honors have copies of that -- Control Council Act Number 10, does make membership in the categories which may be convicted a crime, and I think it ought to. It ought to be sufficient to bring before a Tribunal inquiring into the detail of each individual any individual as a member, and that is all that we have here in a declaration, in substance, an indictment which enables you to put the individual on trial. It is true that the punishment may include a death penalty, and so long as the death penalty is imposed by any society for anything, the penalty of death ought to follow in some of these cases; the SS men who were responsible for the destruction of the Warsaw Ghetto, for example, or SS men who are shown to have been responsible for the top planning, even though they did not actually participate. But I call your attention to the fact that in Provision Number 3 of Act Number 10 the slightest penalties are also provided. The restitution of property wrongfully acquired is one of the penalties that may be imposed. The deprivation of some or all civil rights is another. And during this period of reconstruction of German society, those minor penalties may very well be imposed upon people who entered into these organized plans. If not, you have the situation that the people who organized themselves to force this Nazi program, first on the German people and then on the world, are treated exactly the same as the German who was the victim of it.
MR. JUSTICE JACKSON: Now, isn't it our duty as occupying powers of a prostrate country to draw some distinction between those who organized to bring on this catastrophe and those who were passive and helpless in the face of overwhelming power? Counsel for one of the defendants has already shown that, in administering the affairs, an SA man has been made a councillor in one of the districts. There is no purpose, because a man happened to get into the SA, to take his life or to take his property or to condemn him to hard labor for life. There is a purpose to have the basis for bringing these people in for what the military people call a "screening" and find out what kind of people they are and what they have been up to. This Control Council Act -- while I am frank enough to say I would not have drafted it in the language it is drafted in -- this Control Council Act leaves, in the first place, discretion as to whether prosecutions will take place, in the hands of the occupying powers. I do not share the fears of counsel that millions -- I have forgotten how many millions it was estimated -- would be brought to trial. I know that the United States has worries enough over manpower to bring to trial 130,000, so we do not want to bring to trial millions. And it is for that reason that we have consented to the exclusion of some of these categories where it seemed we could exclude them very safely without jeopardizing the over-all program of dealing with these people. Now, I want to make clear why it is that we do not want to go, in this Trial, into this question of each of these many subdivisions of these Nazi organizations and the functions of each. You have heard some of them named. They are innumerable. Some of them existed a short time and then disappeared. The trial of each of these subdivisions would take -- I would not venture to say how long. We do not want to see this Court trivialized. This is not a police court.
MR. JUSTICE JACKSON: This was not set up to be a police court; and this is a police court function, after this Court has laid down the general principles, to take up the case of individuals or of many individuals and to determine whether they are within or outside the definition. I do not know whether a mounted group of SS men are any less dangerous than an unmounted group. I had always associated the equestrian art with warfare, but I do know it will take a long time to determine it. I do not know whether SS motorcycle mounted traffic officers are less dangerous than those who do not have motorcycles, or were less criminal, but I should have a suspicion that the greater the mobility, the more active the group was in carrying out these widespread offenses. I do not know about the physicians. I do not think it is up to us to try it in this case, but I suspect that a medical corps meant there might be some casualties; and this thing isn't innocent on its face, as it appears. This will require a great deal of evidence, if we go into each of these things, and it seems to me that it would be out of keeping with the character of this Tribunal to go into that kind of question. It is not necessary to go into the group any more than it is the individual, and if you go into the group I know of no reason why you should not go into the individual, because if the group is within the general contour, each one member of that group is entitled to his hearing before he is condemned. It may very well be that the occupying authorities will decide that the whole group is not worth prosecuting. We have no illusions about this thing. We are never going to catch up with all the people who are guilty, let alone prosecuting the innocent. If they are prosecuted, however, it may very well be that the group would be treated together in some way, so that there could be a single determination as to each group.
MR. JUSTICE JACKSON: In any event, since each individual has to have a hearing, there can be no point in having a hearing for subgroups between the individual and the principal organization that we ask to have declared guilty. If there were any point in our fully trying this question and deciding just who is in and who is out of the circle of guilt, there would be no reason why the Charter would not have given you power to sentence. There would be no reason for further trials. It seems to me that we must look at this matter somewhat in the light of an indictment. It is true it is an accusation against all members of the group. It has no effect unless it is followed by a trial and a conviction, any more than an indictment that is never followed by a trial would have effect. The effect of the declaration is that the occupying power may bring these individual members to trial. Administrative considerations will enter into it -- the degree of connection. It may very well be that it will be decided that those who were mere members and not of officer rank of any capacity should not be punished. We cannot say just what will be necessary. Frankly, I do not know just what manpower is going to be available for the United States' part in the follow-up of these trials. There are difficulties which I do not underestimate, but I do know that the idea that this means a wholesale slaughter or a wholesale punishment of people in Germany is a figment of imagination and is not in accordance with either the spirit of this Trial or the purpose of the Charter. I think that is all that I care to say unless the Tribunal has some question, which I will be glad to answer.
THE PRESIDENT: Mr. Justice Jackson, there are one or two questions I should like to put up to you. First of all, in your submission, do the words in Article 11 have any bearing, the words at the end of Article 11, where it is provided that "such court" -- in the last three lines -- "may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activity of such groups or organizations." Do the words "for participation in the criminal activity of such groups or organizations" add anything to the definition of the word "membership" in Article 10?
MR. JUSTICE JACKSON: I do not think they add anything. Frankly, the wording of this article has bothered me as to just what it does mean, since no punishment is imposed by this Tribunal at all for participation in the activities of the group. The purpose of the language was to make clear that the punishment for an individual crime, if one committed a murder individually or was guilty of aggressive warfare planning, is not to interfere with the punishment for being a member of a criminal organization or vice versa, to make clear that they are not mutually exclusive. But the language I am not proud of.
THE PRESIDENT: Secondly, would an individual who was being tried before a national court be heard on the question whether, in fact, he knew of the criminal objects of those groups?
MR. JUSTICE- JACKSON: Well, I think he would be heard on that subject, but I do not think it would be what we in the United States would call a complete defense. It would perhaps be a partial defense or mitigation. I should think that the tribunal might well -- the court trying it -- might well have felt that he should have known under the circumstances what his organization was, despite his denial that he did not; and that his denial, if believed, will weigh in mitigation rather than in complete defense. In other words, I do not believe that you can make as a decisive criterion of guilt the state of mind of one of these members where you have no power whatever, no ability whatever, to controvert his statement of that state of mind. I think you have to have some more objective test than his mere declaration.
THE PRESIDENT: Then I understood you to say that it was not for the Tribunal to limit or define the groups which were to be declared criminal; but, as the Charter does not define them, isn't it necessary for the Tribunal to define what the group is?
MR. JUSTICE JACKSON: I think it is necessary for the Tribunal to identify the groups which it is condemning, sufficiently so that it would afford a basis for bringing the members to trial for membership. I do not think it is necessary to define the exact contours of guilt. It is defined in reference to membership rather than in terms of guilt or innocence. That is to say, it may be that there is some little section of the SS that on trial would be said to be not guilty of participating in the crimes of the organization. I do not think it is up to this Tribunal to take evidence, because if you take evidence as to some you must as to all, to separate out those elements. The SS is a well-known organization. Its contour is easily defined by membership, and within those contours it does not seem to me necessary to make exceptions.
THE PRESIDENT: But if there were to be an essential distinction on the question of criminality between the main body of the SS and, for instance, the Waffen-SS, would it not be the duty of the Tribunal to make that distinction?
MR. JUSTICE JACKSON: I do not think that would be necessary. I think when the member was brought to trial -- one may be a conscript and still have remained in on a voluntary basis, or he may have gone beyond his duty as a conscript. I do not think it is necessary at this stage of the proceeding, where the individual is not here, to eliminate him. I do think that the principle that acts performed under conscription are not within the condemnation of the Tribunal is quite a different thing.
THE PRESIDENT: Is it possible for this Tribunal to limit the powers of the national courts under Article 10 by either defining the group or giving a definition of the word "membership" in Article 10?
MR. JUSTICE JACKSON: Well, if Your Honor please, I think every tribunal in its judgment has a right to include, in its judgment, provisions which will prevent its abuse. And I do not think this Tribunal is lacking in power to protect its decision against distortion or abuse. I take it that is the question rather than the question of if the national courts brought these persons to trial and paid no attention to the declaration -- I do not suppose that there would be any power in this Tribunal to stop them from doing it. But I assume you mean as a consequence of this declaration, and I think that the declaration can be circumscribed or limited. I certainly would insist that the Court had inherent power to protect its judgment against abuse.
THE PRESIDENT: Do you think this Court could direct the national court to take any particular defenses into consideration?
MR. JUSTICE JACKSON: I do not know that it could put it in just that way, but I suppose it could define the categories in a way that the declaration would not reach any except those included within it. In other words, I think the declaration that this Tribunal will make is within this Tribunal's control. When you get away from the declaration, I think you would have no control over the national courts. But insofar as they relied on the declaration, you would have power to control the effect of the declaration, provided the effect was not inconsistent with the provisions of the Charter.
THE PRESIDENT: You did, I think, make some suggestions for obtaining such evidence as you thought was necessary. Do you wish to add anything to that?
MR. JUSTICE JACKSON: I have nothing to add to that, Your Lordship. I realize that the defendants' counsel have great difficulty in getting evidence, great difficulty in communication. I have it myself -- great difficulty in getting letters delivered, great difficulty in all of these things. But I will state to this Tribunal categorically  -- I do not know what camp it is that was referred to yesterday as substantially refusing counsels' application to see their clients -- but so far as the American Zone is concerned, counsel, if they are properly cleared to go there, will be given every facility to get every kind of evidence that is available in that camp. If they are there at mealtimes they will be fed, and if they are there at night they will be sheltered. We will put everything in their way to help them that is possible. Of course, there are security problems involved, and counsel cannot just walk into a camp and make himself at home. He will have to be cleared in advance so that he meets the security requirements; but there is no purpose to obstruct, and there is every purpose to assist.
THE PRESIDENT: Thank you.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I should like to ask you a few questions. Some of them will be somewhat repetitious of what the President has already said. You will excuse me if I repeat one or two of those. Most of them are directed for the purposes of this argument, which, I take it, is to form some kind of definition of the organizations, which may, of course, not be final but will at least give us a view of what should be relevant to the defendants' making up their cases. So the questions are addressed to that, rather than any ultimate theory of definition. You said that you would suggest excluding clerks, stenographers, and janitors in the Gestapo. Well, now, if we accepted that, would we not be obliged to exclude such categories from other criminal organizations?
MR. JUSTICE JACKSON: Not at all, Your Honor. I think there is a difference between a concession by the Prosecution and the necessity for the Tribunal's making a decision. It might appear logical that if we conceded clerks, stenographers, and janitors of the Gestapo were not to be included, that no clerks, stenographers, or janitors should be included. It does not follow. The relationships in different organizations differ. From what we know about the Gestapo situation, we are satisfied that clerks, stenographers, and janitors in that organization ought not to be included, and we do not want to waste any time on it.
THE TRIBUNAL (Mr. Biddle): Was the reason for that, that those clerks would not have had knowledge of what was going on in the Gestapo?