I have a strong recollection of speaking with my father* on the subject of whether it was fair to try German officials for their deeds during the WWII inasmuch they were following German law. This must have been sometime in 1954. I have no recollection of how the subject came up or why my father thought a child could understand what he was speaking about. Anyway, that is the first time I had heard the words “ex post facto.” My father, like many Americans, was never entirely sure that the war crimes trials were fair despite the fact he held a deep loathing for the monsters of the Third Reich.
Thus, it was before the trials started that Justice Jackson and the American government faced a public that was not entirely certain about the simple justice of the endeavour. From the Jackson List and the estimable Professor John Q Barrett, I now know that the Justice and the President relied on transparency as a way of building the support of the American public for Jackson’s mission:
During the course of his seventeen-plus months as United States Chief of Counsel for the prosecution of Axis war criminals in the European theater, Justice Robert H. Jackson wrote and delivered five (at least) monumental, eloquent and enduring statements about his work:
- On June 6, 1945, Justice Jackson delivered a preliminary report to President Harry S. Truman;
- On November 21, 1945, Jackson delivered his opening argument before the International Military Tribunal at Nuremberg in Allied-occupied former Germany;
- On February 28, 1946, Jackson delivered to the IMT his argument defending the criminal charges against the Nazi organizations that he was prosecuting in addition to the individual defendants;
- On July 26, 1946, Jackson delivered his closing argument before the IMT; and
- On October 7, 1946, following the completion of the trial and Jackson’s return to Washington and the Supreme Court, he delivered his final report as Chief of Counsel, along with his letter of resignation, to President Truman.
* * *
The first of these, Justice Jackson’s June 1945 report to President Truman, summarized Jackson’s first forty days of work as the President’s appointee and Jackson’s views on how he hoped to proceed.
At the start of this report, Jackson described his activities since May 2nd, when the President had announced Jackson’s appointment:
In brief, I have selected staffs from the several services, departments and agencies concerned; worked out a plan for preparation, briefing, and trial of the cases; allocated the work among the several agencies; instructed those engaged in collecting or processing evidence; visited the European Theater to expedite the examination of captured documents, and the interrogation of witnesses and prisoners; coordinated our preparation of the main case with preparation by Judge Advocates of many cases not included in my responsibilities; and arranged cooperation and mutual assistance with the United Nations War Crimes Commission and with Counsel appointed to represent the United Kingdom in the joint prosecution.
Jackson then covered, in some detail, five topics:
1. how his work to prosecute major war criminals was being coordinated with other, ongoing war crimes prosecutions;
2. his preparation of the American case, his coordination with U.K. counterparts, and his communication with French and U.S.S.R. representatives as they worked toward agreement on an international plan of action;
3. the basic features of his prosecution plan, including his commitment to fair trials as a desirable alternative to summary executions;
4. the prosecution’s validity in international law, and as a next step in international law’s development; and
5. his sense of urgency, both to commence trial and to complete his assignment.
Jackson finished writing his report on the morning of Wednesday, June 6, 1945. He delivered it to President Truman at the White House late that afternoon.
In their meeting, which was brief, the President stated his approval of the general make-up of Jackson’s plan and expressed particular appreciation for his report’s closing paragraph, which thanked Truman for his personal encouragement and support. They agreed that Jackson’s report, which although “private” really was a state paper written for the public, would be released promptly.
The White House released Justice Jackson’s report on the next morning, June 7th. That afternoon, President Truman responded as follows to press questions about the report
Q. Mr. President, are you in complete agreement with Justice Jackson’s report?
A. I am in entire agreement with it. I think it’s a good report, and I think it shows just exactly what we are attempting to accomplish.
Q. Mr. President, can you shed any light on one section of that report, where Justice Jackson said that it was the inescapable responsibility of this Government to prosecute these war criminals, even if this Government had to do it alone?
A, That’s just— It means just exactly what it says. That is what we propose.
Q. Is there any prospect that we will have to do it alone?
A. No, no. That’s just to make it emphatic.
Q, Any prospect of an early answer from the other countries on our suggestion for a military tribunal?
A. Yes, I think so. I don’t think there will be any delay on that.
Q. Mr. President, can you tell us—
A. The British have already come in, and I am sure the Russians and the French will.
In ensuing days, Jackson’s report—about 5,700 words—was published in most American newspapers and in many newspapers around the world. It became a topic of very positive comment and, going forward, a reservoir of governmental and public support for Jackson’s work as U.S. Chief of Counsel in London, where the international negotiations soon commenced, and then in Nuremberg throughout the trial year.
To read Justice Jackson’s full June 1945 report to President Truman, click here.
RGK
*My father served in North Africa and was awarded the Purple Heart. Somewhere, I have a photo of him guarding German POWs.
Hercules and the umpire. 
Jackson: “We do not accept the paradox that the legal responsibility is the least where the power is the greatest.”
How do you reconcile that sentiment with judicial, prosecutorial, and sovereign immunity? In the rest of the world, governments are liable for violations of the rights of its citizens by their agents. But not here! A line from Jethro Tull keeps echoing in my mind: “I’ll judge you all and make damn sure that no one judges ME!”
In Iraq, we committed the crime of offensive war. We used radioactive weapons. In today’s Iraq, the parents don’t ask if it is a boy or a girl. They ask if it is normal. But not one of our own Hitlers has been called to account.
Shouldn’t our politicians, judges and prosecutors be as liable for their wrongful acts as the Nazis they denounce?
I think that simple justice would have been served by rounding up the leaders of the Third Reich and simply shooting them. That is what Churchill wanted to do.
But the value of the Nuremburg trials was to: (1) make a record of Nazi atrocities; and (2) make a precedent for the future that you can’t hide behind “just following orders.”
I think the Nuremburg trials had significant value for these reasons, and that Justice Jackson was right to pursue them.
Just my opinion. The movie with Spencer Tracy was entitled “Judgment at Nuremburg” not “Justice at Nuremburg.”
When can expect lots of transperancy in a Hillary Clinton Administration.
When every foreign country starts releasing her secret emails.
Cardozo, My recollection is that your father the Recorder of NYC wet to jail, or are you a different Cardozo? Given how much governmental immunity has contracted I am not sure we need to be totally embarrassed, given exemptions for discretion how much real difference would expanded liability make and how would you implement it.
As if they hadn’t read them already. We’re hacking Angela Merkel’s cell phone, and I doubt that the Russians are too far behind.
Government immunity has contracted? Do tell! I read somewhere that the number of successful Bivens actions can be counted on one hand,
Anonymous,
Fascinating point: “The movie with Spencer Tracy was entitled “Judgment at Nuremburg” not “Justice at Nuremburg.”
Thanks for your engagement. All the best.
RGK
I am old enough to remember both state and local tort immunity and FTCA has been expanded include at least some Bivens type actions against US though that does exclude personal liability. I not sure what your idea of expansion is but that satisfies mine.
If you do the crime, you should do the time. I’d plead my mother out to a misdemeanor. 🙂
When compared to the rest of the world, we have good reason to hang our heads in shame. Canada’s High Court found that prosecutorial and sovereign immunity violated its Charter of Rights and Freedoms, and the same logic should apply here.