In Part 6 of our Crime Story Series Nuremberg, we examine Robert Jackson’s gambit to make the centerpiece of the International Military Tribunal charging the individual Nazi leaders not as legitimate government officials but as conspiring gangsters.

As we recounted in our last episode, the saga of Rudolf Hess’s mental state drew a tremendous amount of media attention and marked the transition from the United States presentation of their portion of the case to the rest of the allies having their opportunity to present charges against the defendants. However, there was one gambit by the head of the American team that was somewhat overshadowed by the Hess spectacle. This maneuver by Robert Jackson deserves our focus as it proved to be critical to the American dominance of the IMT proceedings.


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. You can find previous episodes of our Nuremberg series here.


NUREMBERG PART 6 

On the morning of Friday, November 30, hours before Rudolf Hess’s competency hearing, U.S. Chief of Counsel Justice Robert H. Jackson stuns friend and foe alike by directing his deputy Colonel John Amen to call Major General Erwin Lahousen, former executive officer to Wehrmacht Intelligence (Abwehr) chief Admiral Canaris, to the stand. Lahousen is the Tribunal’s first live witness and represents a stunning tactical about-face for the document-obsessed U.S. prosecutors.

Lahousen’s surprise appearance strikes many as an act of desperation by Jackson, proof that the Chief Justice is worried that the American narrative risks being overshadowed by the Hess theatrics, and that crucial momentum is being lost amid the tedium of Sidney Alderman’s presentation of documentary evidence on Crimes Against Peace. Commentators describe calling Lahousen as a move “dictated not by logic but felt necessity,” or as an attempt by Jackson to “stem the grumbling of his staff and still press criticism of his conduct of the case.” Both observations miss the importance of the moment, however. Calling Lahousen to the stand speaks to Jackson’s sense of courtroom theatrics, certainly. But more significantly, it is an exercise of his unique control over the Allied prosecution teams and their collective case against the Nazi defendants. Lahousen is a tactic in Jackson’s long strategic game to dominate the IMT proceedings. Indeed, it can be argued that the Chief Justice’s most lasting contribution to the IMT is not his legendary opening or closing statements but his other, less publicized efforts to mark the trial with the undeniable stamp of American jurisprudence. 

As Lahousen approaches the stand, the courtroom floor is abuzz. After hours of Sidney Alderman’s seemingly interminable slog through the documentary record, Lahousen is an unexpected change of momentum. The Press have been tipped off to the stunt — the previous day, Jackson’s team distributed 250 copies of a media release announcing Lahousen’s coming testimony. Graced with this advance intel, the assembled reporters are prepared to observe the hubbub, pencils ready. Historian Robert Conot describes the scene:

CONOT: LAHOUSEN LOOKED STARTLINGLY LIKE AN AMBULATORY FIGURE FROM A WAX MUSEUM AS HE TRAVERSED THE COURTROOM WITH A STIFF, STILTLIKE WALK, HALTED BEFORE THE JUDGE’S BENCH TO BOW, AND MOVED ON TO THE WITNESS STAND…. [AMEN] DIRECTED HIS EXAMINATION… TOWARD THE WEHRMACHT LEADERSHIP’S COMPLICITY IN WAR CRIMES AND ATROCITIES. WITHOUT LAYING ANY FOUNDATION OR PROVIDING ANY BACKGROUND FOR THE COURT, AMEN CONDUCTED LAHOUSEN THROUGH A RECITATION OF A BEWILDERING VARIETY OF LARGELY UNRELATED EVENTS: A PLOT TO KILL FRENCH GENERALS MAXIME WEYGAND AND HENRI GIRAUD TO PRECLUDE THEIR RALLYING OF FRENCH FORCES IN NORTH AFRICA; THE STARVATION AND SYSTEMATIC MURDER OF SOVIET PRISONERS OF WAR; HITLER’S ORDER TO KILL BRITISH COMMANDOS AFTER THEY SURRENDERED; AND A PLAN TO FOMENT AN UPRISING BY POLISH UKRAINIANS AGAINST POLES AND JEWS. THE OVERALL EFFECT WAS ONE OF CONFUSION AND STUPEFACTION. 

Amen’s questions run the gamut of Indictment charges, from Crimes against Peace, War Crimes, to Crimes against Humanity, thereby stepping all over the cases of the other Allied prosecution teams. And that is Jackson’s clear intention. Lahousen is a power move, an early demonstration of Jackson’s willingness to use the overarching nature of Count One of the Indictment — the Common Plan or Conspiracy charge — to the U.S. team’s advantage. To understand this, we must return to mid-September and Jackson’s modifications to the Indictment before it was finalized. 

*** 

The legal concept of criminal conspiracy was baked into American plans for the International Military Tribunal from the very beginning. A 1944 memo prepared by attorney-turned-General Staff Colonel Murray Bernays stated: 

BERNAYS: IN ANGLO-AMERICAN LAW, CRIMINAL CONSPIRACY CONSISTS OF AN AGREEMENT BY TWO OR MORE PERSONS TO ENGAGE IN UNLAWFUL CONDUCT. BERNAYS REASONED… THAT IF MEMBERS OF THE NAZI ORGANIZATIONS HAD AGREED AMONG THEMSELVES PRIOR TO THE WAR TO COMMIT VIOLATIONS OF THE LAWS OF WAR WHEN WAR CAME, THEIR PREPARATORY CONDUCT BEFORE THE WAR WOULD BE PUNISHED AS A PART OF THE CONSPIRACY TO COMMIT WARTIME ATROCITIES. 

By early 1945, the War Department adopted the position that high-ranking German leaders as well as Nazi groups and organizations“would be charged with both the commission of crimes and conspiracy to commit them.” In tapping Jackson to head the U.S. delegation to the International Conference on Military Trials, Truman knew that he was appointing a lawyer who was well-versed in the prosecution of criminal gangs. After all, Jackson had served in the Department of Justice during the development of novel approaches to the fight against organizations like the Chicago Outfit run by the notorious gangster Al Capone.  

The Charter that emerged from the conference in late July, however, contained scant reference to criminal conspiracy. The relevant portion of the Charter, Article 6, enumerates only three charges — CRIMES AGAINST PEACE, WAR CRIMES, and CRIMES AGAINST HUMANITY — none of them pertaining exclusively to conspiracy. Then, almost as an afterthought, the Charter offers the following language: 

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. 

This is not what Jackson went to the Charter conference to achieve. The Chief Justice left London determined that criminal conspiracy would be moved to the very heart of the final Indictment. 

***

After several months of negotiation over the indictment’s composition, Jackson came upon a novel way to reconstruct the charging document’s language so that the Conspiracy count came first and encompassed each of the other counts. The main effect of this reconstruction was to ask whether individual defendants participated in a common plan to commit the crimes alleged in each of the other counts. If the defendant was found guilty of participating in such a conspiracy then he would be held individually responsible not only for his own acts but also for all acts committed by any of his co-conspirators. The broader implications of the revisions were largely lost on Jackson’s  fellow allied prosecutors. As historian Francine Hirsch puts it: 

HIRSCH: IN A FIT OF INSPIRATION, [JACKSON] HAD SEPARATED OUT THE CHARGE OF CONSPIRACY, DESIGNATED IT AS COUNT ONE, AND MADE IT THE LINCHPIN OF THE ENTIRE CASE…. AS RECONCEIVED BY JACKSON, NAZI CRIMES AGAINST PEACE, WAR CRIMES, AND CRIMES AGAINST HUMANITY (NOW COUNTS TWO, THREE, AND FOUR) ALL HAD THEIR ROOTS IN A LARGER CONSPIRACY. WHOEVER PRESENTED ON COUNT ONE – A ROLE JACKSON WAS INTENT ON CLAIMING FOR HIMSELF – WOULD ALSO HAVE THE OPPORTUNITY TO ADDRESS ALL OF THE OTHER COUNTS. 

In other words, the conspiracy charge went from a mere Charter addendum to the unifying principle of the Allied prosecution. Drawing on his Department of Justice experiences, Jackson used Count One to hammer the individual Nazi leaders not as legitimate government officials but as conspiring gangsters. As a feat of creative lawyering, Jackson’s Charter rewrite is as innovative as George Johnson, Elliot Ness and Frank Wilson’s prosecution of Al Capone on tax evasion charges.

*** 

Jackson’s construction of Count One provides the context for Amen’s examination of Lahousen. Let’s return to that Friday morning session. The gaunt Lahousen has barely taken his seat when Tribunal President Sir Geoffrey Lawrence cautions Amen to restrict his examination to “the count with which the United States is dealing, Count One.” Dr. Otto Nelte, defense counsel for Wilhelm Keitel, has other worries. He leaps up to object that the prosecution is violating an agreement to give prior notice to the defense concerning both documentary evidence and witnesses. After consulting with Amen, Jackson rises to correct Nelte but more importantly, to reassert the broad scope of Count One. 

JACKSON: WE FIND IT VERY DIFFICULT TO KNOW JUST THE MEANING OF THE RULING WHICH THE COURT HAS JUST ANNOUNCED. COUNT ONE OF THE INDICTMENT IS A CONSPIRACY COUNT, COVERING THE ENTIRE SUBSTANTIVE PART OF THE INDICTMENT. THERE ARE PROBLEMS, OF COURSE, OF OVERLAPPING, WHICH I HAD SUPPOSED HAD BEEN WORKED OUT BETWEEN THE PROSECUTORS UNTIL THIS MORNING. IT IS IMPOSSIBLE, TRYING A CONSPIRACY CASE, TO KEEP FROM MENTIONING THE FACT THAT THE ACT, WHICH WAS THE OBJECT OF THE CONSPIRACY, WAS PERFORMED. IN FACT, THAT IS A PART OF THE EVIDENCE OF THE CONSPIRACY. 

I KNOW I DON’T NEED TO ENLARGE UPON THE WIDE SCOPE OF EVIDENCE IN A CONSPIRACY CASE. I THINK, PERHAPS, THE BEST WAY TO DO IS TO SWEAR THE WITNESS, AND THAT THE OTHER PROSECUTORS, IF THEY FEEL THEIR FIELD IS BEING TRESPASSED UPON, OR THE JUDGES, IF THEY FEEL THAT WE ARE EXCEEDING, RAISE THE OBJECTION SPECIFICALLY; BECAUSE I DON’T KNOW HOW WE CAN SEPARATE, PARTICULARLY ON A MOMENT’S NOTICE, COUNT ONE FROM THE OTHER COUNTS. 

WE HAVE TRIED OUR BEST TO WORK OUT AN ARRANGEMENT THAT WOULD BE FAIR, AS BETWEEN OURSELVES AND THE OTHER PROSECUTORS, BUT WE FIND IT IMPOSSIBLE ALWAYS TO PLEASE EVERYBODY. 

It is a breathtaking statement of prosecutorial arrogance: Jackson is announcing that he will pursue the U.S. case as he sees fit and challenges both the Tribunal and his British, Soviet and French counterparts to object if they dare. Count One is Jackson’s trump card and with Lahusen, he throws it down.

*** 

Amen’s direct examination is wide-ranging, factually detailed and highly emotional. Amen, we should recall, had served as a special prosecutor charged with investigating official corruption in Brooklyn; he’d also participated in the prosecution of Murder Inc. Like Jackson, he is well-acquainted with the requirements for a successful conspiracy case. Lahousen’s boss, Admiral Canaris, had kept a diary in which he recorded damning details about early war plans as discussed by Hitler, von Ribbentrop, Keitel and Jodl. Amen’s questions regarding the contents of that diary are textbook:

AMEN: NOW, DO YOU RECALL ATTENDING CONFERENCES WITH CANARIS AT THE FUEHRER’S HEADQUARTERS, JUST PRIOR TO THE FALL OF WARSAW? 

LAHOUSEN: CANARIS AND I TOOK PART IN DISCUSSIONS NOT IN THE FUEHRER’S HEADQUARTERS, BUT IN THE FUEHRER’S SPECIAL TRAIN, SHORTLY BEFORE THE FALL OF WARSAW. 

AMEN: AND HAVING REFRESHED YOUR RECOLLECTION FROM REFERENCE TO THE ENTRIES IN CANARIS’ DIARY, CAN YOU TELL THE TRIBUNAL THE DATE OF THOSE CONFERENCES? 

LAHOUSEN: ACCORDING TO THE NOTES AND DOCUMENTS AT MY DISPOSAL IT WAS ON SEPTEMBER 12, 1939. 

AMEN: DID EACH OF THESE CONFERENCES TAKE PLACE ON THE SAME DAY? 

LAHOUSEN: THE DISCUSSIONS IN THE FUEHRER’S TRAIN TOOK PLACE ON THE SAME DAY: SEPTEMBER 12, 1939. 

AMEN: AND WAS THERE MORE THAN ONE CONFERENCE ON THAT DAY? WERE THEY SPLIT INTO SEVERAL CONFERENCES? 

LAHOUSEN: ONE CANNOT REALLY CALL THEM CONFERENCES; THEY WERE DISCUSSIONS, CONVERSATIONS, OF VARYING DURATION. 

AMEN: AND WHO WAS PRESENT ON THIS OCCASION? 

LAHOUSEN: PRESENT, REGARDLESS OF LOCATION AND TIME, WERE THE FOLLOWING: FOREIGN MINISTER VON RIBBENTROP; KEITEL, THE CHIEF OF THE OKW; JODL, HEAD OF THE WEHRMACHT OPERATIONS STAFF; CANARIS; AND MYSELF. 

AMEN: DO YOU SEE RIBBENTROP IN THIS COURTROOM? 

LAHOUSEN: YES. 

AMEN: WILL YOU INDICATE FOR THE RECORD WHERE HE IS SITTING?

LAHOUSEN: OVER THERE. [INDICATING.] IN THE FIRST ROW, THIRD FROM THE LEFT. 

AMEN: DO YOU ALSO SEE KEITEL IN THE COURTROOM? 

LAHOUSEN: YES; HE IS NEXT TO RIBBENTROP. 

AMEN: DO YOU ALSO SEE JODL IN THE COURTROOM? 

LAHOUSEN: YES; HE IS IN THE SECOND ROW, NEXT TO HERR VON PAPEN. 

Lahousen, noted one observer, “made a strong impression on his audience. His evidence was disquieting to many of the defendants, especially Keitel and Ribbentrop, his principal targets.” 

It is after 2:00 pm when Amen concludes his questioning. But instead of passing the baton to his Allied co-counsel, he offers the witness for cross-examination. It’s a meaningful slight – further evidence of the U.S. prosecutors’ willfully assertive tunnel vision. After some confusion, the Soviet and French Chief Prosecutors recover and briefly question the witness, clearly concerned that the Americans have encroached on evidence critical to their cases and eager to wrest it back. U.K. Deputy Chief Prosecutor David Maxwell Fyfe declines to enter the fray. The carefully coordinated Allied prosecution threatens to collapse in a frenzy of disconnected interrogatories. When the Tribunal President postpones Lahousen’s cross-examination to the next day in order to clear the courtroom and consider Hess’s mental competency, the British, Soviet and French teams have an opportunity to assess the consequences of Jackson’s Count One ploy.

***

Lahousen retakes the stand on Saturday, November 31, marking  the defense’s first attempt at Anglo-American style cross-examination. The results, according to Telford Taylor, are unimpressive. 

TAYLOR: NOT SURPRISINGLY, THE MOST PROTRACTED CROSS-EXAMINATIONS WERE BY THE LAWYERS FOR KEITEL AND RIBBENTROP. DR. OTTO NELTE, FOR KEITEL, MADE THE USUAL BEGINNER’S MISTAKE OF ASKING LONG, COMPLEX QUESTIONS WHICH DID NOT PIN THE WITNESS DOWN TO A SINGLE POINT, OR WHICH RAISED NEW ISSUES TO WHICH THE WITNESS’S ANSWERS MIGHT BE UNFAVORABLE…. DR. SAUTER, FOR RIBBENTROP, ASKED EVEN LONGER QUESTIONS AND MADE ABSOLUTELY NO HEADWAY WITH THE WITNESS. FURTHERMORE HE MADE HIMSELF RIDICULOUS BY ASKING LAHOUSEN WHETHER HE HAD REPORTED TO THE POLICE THE “MURDEROUS” ORDERS CANARIS HAD BEEN GIVEN BY KEITEL.

Tom Dodd is even more pointed in his assessment in a December 1 letter to his wife.

DODD: THE GERMAN ATTORNEYS OBVIOUSLY ARE COMPLETELY UNFAMILIAR WITH THE ART OF CROSS-EXAMINATION AS IT IS KNOWN IN ENGLISH AND AMERICAN PROCEDURE AND CONSEQUENTLY THEY DID A MISERABLE JOB AS A WHOLE.

***

Erwin Lahousen confronts the defendants with the devastating power of witness testimony to expose ugly truths in very personal terms. Predictably, it is Hermann Goering who is most outspoken in his displeasure, roaring to Gustave Gilbert that Lahousen should never have survived the Nazi regime’s murderous purge following the attempt on Hitler’s life on July 20, 1944 – the purge which led eventually to Canaris’s execution.    

GOERING: THAT TRAITOR! THAT’S ONE WE FORGOT ON THE 20TH OF JULY. HITLER WAS RIGHT – THE ABWEHR WAS A TRAITOR’S ORGANIZATION! HOW DO YOU LIKE THAT! NO WONDER WE LOST THE WAR – OUR OWN INTELLIGENCE SERVICE WAS SOLD OUT TO THE ENEMY! 

For his part, Lahousen stepped down from the witness box chastened and philosophical. He also confides in Gilbert. 

LAHOUSEN: NOW THEY TALK OF HONOR, AFTER MILLIONS HAVE BEEN MURDERED! NO DOUBT IT’S UNPLEASANT FOR THEM TO HAVE SOMEONE WHO CAN STAND UP AND STATE THESE UNCOMFORTABLE TRUTHS TO THEIR FACES. I’VE GOT TO SPEAK FOR THOSE WHOM THEY MURDERED. I AM THE ONLY ONE LEFT. 

In the final analysis, Lahousen’s testimony lays bare critical fault lines dividing the Allied prosecutors. Jackson’s jurisdictional gambit resets the environment for the British, Soviets and French cases. In the next episode of Crime Story’s Nuremberg series, we will examine the U.K. prosecutors’ tightly-focused presentation of Count Two of the indictment, particularly as it played in contrast to the Americans’ unapologetic power-grab.