NOTE FROM THE EDITOR 

To commemorate the 75th anniversary of the International Military Tribunal, Crime Story presents a new series, NUREMBERG. Sean Smith examines the many dimensions of the historic judicial proceedings. Drawing on official transcripts of the trial, as well as a vast bibliography of first- and second-hand accounts, NUREMBERG tells the stories behind the legal, political and personal struggles which complicated this revolutionary exercise in international jurisprudence. 


NUREMBERG

Today marks the 75th anniversary of the opening of the International Military Tribunal held in Nuremberg, Germany. For ten months beginning in the Fall of 1945, amid the rubble of that once great city, a panel of eight Allied judges — two each from the United States, Great Britain, France and the Soviet Union— heard a multi-lingual corps of prosecutors present evidence against twenty-two former Nazi leaders on charges including war crimes, crimes against humanity, criminal conspiracy and membership in a criminal organization. When the sentences were handed down, twelve defendants, including Hermann Goering, were condemned to death by hanging; seven received extended prison sentences; and three were acquitted. 

The first Nuremberg Trial lives in our collective memory as a shining example of international cooperation and the triumph of the rule of law following the atrocities of WWII. It was awash in American postwar idealism and triumphalism. On the eve of the verdicts, journalist Rebecca West captured the fervent desires of the moment: “The judgement that is now about to be delivered has to… prove that victors can so rise above the ordinary limitations of human nature as to be able to try fairly the foes they vanquished, by submitting themselves to the restraints of law…. The judgement of the Nuremberg Tribunal may be one of the most important events in the history of civilization.” 

Despite the righteous clarity of its mission, the International Military Tribunal, or IMT, was fraught with tension. At its core, the first Nuremberg Trial was about personal conflict and drama — between the participating governments and their IMT representatives; the attorneys and judges; within the prosecutorial and defense teams; and, most importantly, between the prosecutors and the twenty-two defendants. Alternate British Judge Norman Birkett recognized the primal aspects of the proceedings. “This trial,” he wrote, “is regarded as a spectacle, a kind of gladiatorial show, with the prominent Nazis like Goering taking the place of the wild beasts and prosecuting counsel as the gladiators and baiters.” 

NOVEMBER 20, 1945 

Winter has come to Nuremberg. An unusually bright and crisp autumn has surrendered to blowing snow and early dusk. On weekends, the American contingent attends intramural Army football games in Nuremberg Stadium, site of the notorious Nazi Party rallies now nicknamed “Soldier Field.” Bands and cheerleaders help the crowd pretend they are anywhere else but in this ruined city, where the smell of fire damage and rubble-buried bodies hangs in the air.

Some six months after the end of hostilities in Europe, Nuremberg’s Palace of Justice is still heavily fortified. British Army Major Airey Neave, a war hero, intelligence agent and assistant to the British War Crimes Executive, describes a judicial complex bristling with weapons. 

NEAVE: Five Sherman tanks armed with 76 mm guns guarded the courthouse during the day. The area was protected by American infantry. Anti-aircraft guns and fighter aeroplanes were ready at Furth. Inside the courtyard and even in the corridors of the Palace of Justice, soldiers armed with machine-guns crouched behind sandbags. In the prisonblock were sentries with automatics and even an air raid siren. 

The first Nuremberg Trial plays out amid a clash of heightened security, devastation and a frantic quest for normalcy. Somehow, the cold weather only makes this more onerous; trial personnel take to wearing heavy overcoats even indoors and no one wants to ride in the open Army jeeps anymore. “The winter will be a grave hardship,” Thomas Dodd, U.S. Executive Trial Counsel, worries in a letter to his wife Grace. “God only knows what it will mean for this stricken country.” 

Anticipation and anxiety have been building for weeks, exacerbated by petty internecine squabbles. The Tribunal’s innovative instantaneous translation system (essential for a trial involving at least four different languages) is finally given a live demonstration on November 14th; the names of the four men slated to oversee the U.S. presentation are released only two days later. Everything is down to the wire. 

“We are attempting to get the case ready and it now seems sure to start on November 20,” Dodd wrote to Grace on November 17th. “How, I do not know — we are simply not ready. But I do believe that we can improvise along and somehow make a good presentation.” Seat-of-the-pants litigation can be draining, however. Later, when Dodd returns home briefly over the Christmas recess, his family, including youngest son and future Democratic Senator for Connecticut, Christopher, is shocked by his changed appearance. He’d left only months before as a youthful 38 year-old with a head of black hair. The man who turns up suddenly one December night seems much older. Stress has turned his hair snowy white. 

Ready or not, the first Nuremberg Trial opens on November 20 with a stemwinder reading of the indictment issued by the International Military Tribunal against twenty-two former members of the Nazi leadership. Tom Dodd sets the scene in a letter to Grace.

DODD: This is a date to be remembered. For the trial actually started at ten this morning. The courtroom was crowded. The defendants made quite an appearance. I suppose it has been very fully carried in the press. I had a feeling that I was witnessing and participating in a history making event. As I walked into the courtroom, the defendants were all in the dock. Keitel, von Papen and Seyss-Inquart all smiled at me. I bowed in acknowledgement. Soon the preliminaries began. The German [defense] lawyers were all gowned – some in academic or semi-academic attire. The judges, except for the Russians, were robed. The Russians were in uniform. Behind the judges were the four flags. The American counsel table is in the midst of the other counsel tables. The British is to our right, the Russians to our left, the French to our far left.

The press is heavily represented – from all over the world. Cameramen were everywhere. High above the courtroom a radio booth was crowded with operators and broadcasters. A heavy military guard was in attendance. The indictment was read by representatives of the four powers – each taking a separate part. It lasted all day and truth to tell it was very dull for all hands. 

The anticlimax of the opening day’s proceedings only serves to heighten tensions. At the end of the day’s session, the chastened defendants return to their cells; weary lawyers, judges, press and trial attendees seek solace in cocktail parties and bridge games, cheerless billets and paper-strewn desks. 

NOVEMBER 21, 1945 

The principals re-group mid-morning the next day. Soon after 10 am on the 21st, IMT President Sir Geoffrey Lawrence directs the defendants to rise and enter their pleas to the charges against them. 

LAWRENCE: I will now call upon the defendants to plead guilty or not guilty to the charges against them. They will proceed in turn to a point in the dock opposite to the microphone.

Hermann Wilhelm Goering… 

Reichsmarshall Hermann Goering had surrendered to Allied troops in May. Expecting special treatment as both a senior military officer and Government official, Goering was crushed when he was remanded to the Seventh Army Interrogation Center in Augsburg, Germany. From Augsburg, Goering was then sent to the American internment center at Mondorf-les-Bains, Luxemburg, better known by its nickname, Ashcan. At Ashcan, Goering came under the supervision of Colonel Burton C. Andrus. With his highly-polished helmet and leather riding crop, Andrus struck many as a wannabe General George S. Patton. A harsh disciplinarian in his own right, Andrus was stunned by his celebrity charge’s physical state: obese at almost 270 pounds and in possession of the “biggest collection” of painkillers Andrus had ever seen. 

ANDRUS: When Goering came to me at Mondorf, he was a simpering slob with two suitcases full of paracodeine. I thought he was a drug salesman. But we took him off his dope and made a man of him. 

By the time he and his fellow defendants were flown to Nuremberg on August 12, Goering had lost 30 pounds and his hands no longer shook. The former Reichsmarschall had also reclaimed his accustomed arrogance. From her seat in the press gallery, the New Yorker’s Janet Flanner studied the reinvigorated Goering. 

FLANNER: Ex-Reichsmarschall Goering’s twenty-one colleagues seem dominated by him in the prisoners’ dock, just as they were when they were all free. By his superior supply of theatrical energy, fancy clothes and interest in the proceedings, and by his air of participation, Goering maintains his position as Prisoner No. 1, sitting in the dock’s most prominent and only comfortable seat – first row on the aisle… Of all the Nazis’ hierarchy whose faces were already famous when they appeared at the big Parteitag, his has changed the least. Then it looked like the face of an aging, fat tenor; now it looks like the face of a middle-aged, fleshly contralto (but in either case a star). 

Dressed in a pale blue Luftwaffe tunic shorn of insignias, Goering approaches the dock’s portable microphone to address the court, a typewritten speech in his hands. And so it begins…

GOERING: Before I answer the question of the Tribunal whether or not I am guilty . . . 

LAWRENCE: I informed the Court that defendants were not entitled to make a statement. You must plead guilty or not guilty. 

According to one eyewitness account, Goering stared at Lawrence for a long moment, perhaps finally absorbing the challenge facing him. He is on trial for his life; there will be other opportunities for grandstanding later.

GOERING: I declare myself in the sense of the Indictment not guilty. 

He later released his written statement to the assembled Press. 

GOERING: As Reichsmarschall of the Greater German Reich I accept the political responsibility for all my own acts or for acts carried out on my orders. These acts were exclusively carried out for the welfare of the German people and because of my oath to the Fuhrer. Although I am responsible for these acts only to the German people and can be tried only before a German court, I am at the same time prepared to give all the necessary information demanded of me by this court and to tell the whole truth without recognizing the jurisdiction of this court. I must, however, most strongly reject the accusation that my acts for which I accept full responsibility should be described as criminal. I must also reject the acceptance by me of responsibility for acts of other persons which were not known to me; of which, had I known them, I would have disapproved and which could not have been prevented by me anyway. 

The assembled jurists, witnesses, Press and public do not hear Goering’s apologia. Instead, Lord Lawrence presses the remaining defendants for their pleas. With the exception of Ernst Kaltenbrunner, who’d suffered a minor cerebral hemorrhage just days before, the defendants rise to speak. One after the other, Rudolf Hess; Joachim von Ribbentrop; Wilhelm Keitel; Hans Frank; Julius Streicher; Walter Funk; Hjalmar Schacht; Karl Doenitz; Erich Raeder; Baldur von Schirach; Fritz Sauckel; Alfred Jodl; Franz von Papen; Arthur Seyss-Inquart; Albert Speer; Constantin von Neurath; and Hans Fritsche all plead not guilty. 

As Fritsche finishes, Goering stands up again to speak. Lord Lawrence silences him. 

LAWRENCE: You are not entitled to address the Tribunal except through your counsel, at the present time. I will now call upon the Chief Prosecutor for the United States. 

The room’s attention suddenly centers on the man approaching the podium. 53 years old, he is thick-set and well-dressed, bespectacled with a prominent widow’s peak. Associate Supreme Court Justice Robert H. Jackson is that rare Capital Beltway phenomenon, a bureaucrat with a national profile. After almost twenty years in private practice in upstate New York, Jackson was tapped by FDR in 1934 to serve as Assistant General Counsel of the US Treasury Department’s Bureau of Internal Revenue. Jackson and FDR had a strong personal connection, forged in the welter of New York State Democratic Party politics; Jackson would go on to become an outspoken member of FDR’s “Kitchen Cabinet.” After brief stints as Assistant Attorney General of the Justice Department’s Tax Division, then Assistant AG for Justice’s Antitrust Division, Jackson was appointed US Solicitor General in 1938. In 1940, Jackson was appointed US Attorney General and then in 1941 came the crowning accomplishment: he was nominated and confirmed as the 82nd Associate Justice of the Supreme Court. All this in the course of a mere seven years: evidence not only of Jackson’s outstanding professional qualifications, but also his undeniable ambition. 

Jackson does his best to conceal that drive behind a small-town lawyer origin story. Jackson makes much of his “old-fashioned” legal education; like Abraham Lincoln, he’d apprenticed to a lawyer and never graduated from law school. Plain-spoken yet conversant with Shakespeare and the King James Bible, a home gardener, horseman, hunter and fisherman — Jackson carefully fosters a rural, populist myth of himself. In short, it is an American archetype — the upwardly mobile farm boy raised on buttermilk, fresh air and Christian virtue — who now stares down the assembled representatives of Fascist evil. By all accounts, Jackson was fully aware of the “optics” of the encounter.

JACKSON: May it please Your Honors: The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason. 

His opening statement marks the culmination of a summer of extraordinary personal and professional effort. Within five weeks of being tapped in May by President Harry Truman to lead the Allied prosecution of the Nazi leadership, Jackson formulated a general theory of the prosecution and produced an exhaustive report laying out the necessary administrative machinery. In London, he’d played nursemaid through the Allied’s contentious negotiations over the governing Charter agreement and the IMT’s ultimate siting. It was a Herculean accomplishment.   

Jackson composed his opening statement over the preceding weeks at his requisitioned villa at 33 Lindenstrasse, writing in longhand and often working by candlelight. He liked to organize his notes in piles on the bed in a spare bedroom; it was rumored that a housekeeper had once inadvertently left the room’s windows open during a rainstorm, causing the pages to scatter. Jackson, dogged, rescued what he could and resumed his efforts. According to Jackson scholar John Q. Barrett, Jackson shared a draft of the statement with his British counterparts, UK lead prosecutors Hartley Shawcross and David Maxwell Fyfe, on November 16 or 17th; Maxwell Fyfe’s detailed notes were returned on the 17th.

Jackson was sometimes described as distracted, distant and occasionally irritable; his successor as US Chief Prosecutor, Telford Taylor, attributes these quirks to Jackson’s awesome responsibilities and, no doubt, to the pressures of his punishing schedule.  

TAYLOR: Jackson regarded the address as ‘the most important task of my life,’ and its preparation must have been a taxing period of intense concentration. I am inclined to believe that Jackson’s actions and attitudes during the six weeks preceding the trial… must have been the consequence of absorption in its creation and irritation at the intrusion of other problems. 

On this second frigid morning, Jackson is driven to the courthouse in a commandeered 16 cylinder Mercedes touring car, accompanied by his secretary, Elsie L. Douglas (44 years old and the mother of a serviceman in the Pacific theater); his son and assistant, William “Bill” Eldred Jackson; and a bodyguard, Army Staff Sergeant Moritz Fuchs. Clad in a plain, unadorned Army uniform, Fuchs sits up front beside the driver in the open car and carries a .357 magnum snubnose handgun in a shoulder holster, as well as an extendable blackjack. Germany is still a country under military occupation and evidence of that is everywhere.

JACKSON: This Tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilize international law to meet the greatest menace of our times-aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It is a cause of that magnitude that the United Nations will lay before Your Honors. 

Jackson believes passionately in the role to be played by international law in the post-war, American-dominated new world order. As fellow prosecutor Sir David Maxwell-Fyfe notes: “In the truest sense, [Jackson] was a romantic of the law.” 

JACKSON: In the prisoners’ dock sit twenty-odd broken men. Reproached by the humiliation of those they have led almost as bitterly as by the desolation of those they have attacked, their personal capacity for evil is forever past. It is hard now to perceive in these men as captives the power by which as Nazi leaders they once dominated much of the world and terrified most of it. Merely as individuals their fate is of little consequence to the world. 

What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive. 

Jackson’s remarkable statement has been preserved, anthologized, lionized. What is less well known is the impact his words had on the accused. G.M. Gilbert jotted down his own account of the reactions of Goering and his co-defendants, isolated in the dock, as they listened to Jackson. Gilbert, the prison psychologist tasked with maintaining daily contact with the accused in order to assess their morale, overhears von Schirach and Goering conferring during a break; von Schirach wonders who was to blame for the brutal suppression of the Warsaw Ghetto and other atrocities.       

GILBERT: ‘Himmler, I suppose,’ Goering replied uncomfortably. Schirach shook his head and muttered, ‘Horrible!’ then sat back grimly in his seat. 

‘These are certainly horrible things,’ I said as Goering turned around to me. 

‘Yes, I know,’ he replied, nervously looking around the courtroom. ‘And I can see that the German people will be forever condemned for these brutalities. But these atrocities were so incredible, even in the smaller numbers that we heard about, that it was an easy matter to assure us that all such stories were mere propaganda. Himmler had his chosen psychopaths to carry these things out, and it was kept secret from the rest of us. But I would never have suspected him of it. He didn’t seem to be the murderer type. You’re the psychologist, you ought to know. – I can’t explain it.’

For the next roughly eleven months, every participant in the first Nuremberg Trial will grapple with his or her own search for meaning. Jackson, Dodd, Goering and all the assembled will struggle not only against one another, but against their own moral and professional limitations as they strive to grasp the full scope of Nazi atrocities, apportion responsibility for them, and forestall any chance of their terrible repetition.