How Justice Jackson became the chief prosecutor at Nuremberg

John Q. Barrett, Professor of Law, St. John’s University, and author of the Jackson List tells the story of how the Justice became the chief prosecutor of the Nazis. As always, this tale is fascinating. Enjoy.

On Thursday, April 26, 1945, Justice Robert H. Jackson and his Supreme Court colleagues heard oral arguments in five cases.

Later that afternoon, as Jackson worked in his chambers, his secretary Ruth Sternberg took a telephone call from the White House.  The caller explained that Judge Samuel I. Rosenman, President Truman’s counsel, wanted to speak to the Justice.  She put Rosenman through and he and Jackson spoke, briefly.  Rosenman said he had a presidential request to communicate to Jackson.  Rosenman asked if he could come to the Court to talk to Jackson in person, and he of course agreed.

When they met a short time later, they first discussed President Franklin D. Roosevelt.  He had died, suddenly, just two weeks earlier.  Each had known him well and worked with him closely.  They discussed their personal loss, and its effect on the country.

Then Rosenman turned to the point of his visit.  He explained, at length, that the Departments of Justice, War, Navy and State had, some months earlier, prepared a plan for President Roosevelt.  It proposed to try Adolf Hitler and other Nazis, soon to be defeated militarily, as war criminals before an international tribunal.

Roosevelt had approved the plan and, at the Yalta conference in February, he had presented it to Churchill and Stalin.  Together they had referred it to their foreign ministers.  Since then, additional work, including by Rosenman himself in London, had occurred.  In the U.S., Rosenman told Jackson, the War Department had done substantial work, assembling a very large amount of detailed evidence showing criminal conspiracy by Nazi leaders and the culpability of many individuals.

Then Rosenman communicated President Truman’s request:  he wanted Jackson to head the American delegation in this international endeavor, and to conduct personally and present evidence in the American case, and to be really the lead trial attorney for the entire United Nations.

They discussed all of this in detail.  Rosenman conveyed President Truman’s very complimentary opinions of Jackson’s experience and ability as a trial lawyer, and the President’s offer to Jackson of a free hand in discharging the proposed assignment.

They also discussed whether it would be consistent with Jackson’s duties as a Supreme Court justice.  Rosenman reported Truman’s view that it was, and that it would not require Jackson’s resignation from the Court.  Jackson noted that the Court was approaching its summer recess, and that trials of war criminals would need to be prompt if they were to serve real public purposes.  He opined that this new task would not really interfere with his Court work until October at the earliest.  He and Rosenman concluded that because Jackson’s Court colleagues likely would bear with him and do some part of his Court work in the next year, he could undertake the assignment and remain on the Court.  Jackson added that if he took the position and it affected the Court adversely, he of course would resign from judicial work—he believed that he could not properly start the President’s assignment and then leave before it was finished.

*          *          *

Thus began Justice Jackson’s assignment as United States Chief of Counsel for the Prosecution of Axis War Criminals in the Europe Theater.  It took him to Europe in May 1945, and then to London that summer, and then, after successful negotiations with Allies and creation of the International Military Tribunal, to Nuremberg in Allied-occupied former Germany.

Beginning that November, Jackson served in Nuremberg as U.S. chief prosecutor before the IMT.  With Allied counterparts, he prosecuted twenty-one Nazi leaders and six Nazi organizations for the overarching crime of conspiracy, and for the substantive crimes of waging aggressive war, committing war crimes, and committing crimes against humanity.  Their evidence, mostly captured, authenticated Nazi documents, showed the enormity of the crimes and the evils of Nazism (including what the prosecutors began to comprehend that year, and the world has worked to comprehend ever since, as the Holocaust).

Almost a full year later, in Fall 1946, at the conclusion of the first and only international Nuremberg trial, the IMT held that each of the charged offenses was an international crime.  It convicted most but not all of the defendants and imposed serious sentences.  It made factual findings, based on the evidence, of what Nazism and each defendant had been and done.

Justice Jackson, undertaking this assignment, missed the Supreme Court’s entire 1945-46 Term.

*          *          *

At the beginning, on April 26, 1945, Justice Jackson did not immediately accept President Truman’s request, communicated by Judge Rosenman.  They agreed that Jackson could think further and study it.

Over the next days, Rosenman provided and Jackson reviewed secret government planning documents.  Jackson drafted a proposed letter of acceptance.  He spoke to Assistant Secretary of War John J. McCloy and, later, to Secretary of War Henry L. Stimson, two important architects of the project.  With input from Rosenman and others, Jackson drafted proposed executive orders outlining his appointment and assignmen

Jackson also spoke with President Truman, first by telephone and then in person.

On May 2, 1945—seventy years ago tomorrow—President Truman signed Executive Order No. 9547.  It designated Justice Jackson to act as U.S. representative and chief of counsel in preparing and prosecuting charges of atrocities and war crimes, against leaders of the European Axis powers and their principal agents and others, before an international military tribunal.

That afternoon, the President held a press conference.  He read a statement announcing his appointment of Jackson.  He explained that Jackson’s task would be to prosecute major Nazi war criminals whose crimes had no particular geographical location.  The President stated his hope that an international military tribunal soon would be organized, and that it would be Jackson’s job to try cases before it.  Truman announced that Jackson had assembled a staff that already was at work, so there would be “no delay.”

The President also disclosed, it seemed almost accidentally, his “official information” that Hitler was dead.

Justice Jackson, at the Supreme Court, then issued his own statement.  His task, he said, was “that of a lawyer and advocate.”  He said he was “accept[ing] the assignment by the Commander in Chief with a sense of my inadequacy and with complete dedication I shall see it through.”

Jackson articulated publicly, on that first official day, his vision of what became the Nuremberg trial:

I would not have taken this burden upon myself if I were not convinced that materials available and procedures possible afford an opportunity to do something toward bringing to a just judgment those who have heretofore thought it safe to wage aggressive and ruthless war; and to do it in a way that will be consistent with our traditional insistence upon a fair trial for the accused.

 Thanks to Professor Barrett for his fantastic work. He is a treasure as is the Jackson List.

RGK

When Mickey Mantle proved that Judge Learned was not perfect

Many of you know that I am a great fan of baseball, John Q. Barrett, Professor of Law, St. John’s University, and Barrett’s Jackson List. So far as I am concerned, Professor Barrett has outdone himself with this offering dated April 6, 2015:

By the end of this evening, the Major League Baseball season will have opened in the United States and Canada for every team. Fans are smiling again…

Baseball was not, alas, one of Robert H. Jackson’s passions. When MLB tried in 1951 to persuade him to retire from the Supreme Court to become the Commissioner of Baseball, Jackson declined. He claimed not to know left field from right field and viewed an afternoon at the ballpark as wasted time. He preferred other seasonal, outdoor activities, including long walks, horseback rides, skiing, skating, gardening and fishing—activities where no one kept score. (Okay, sometimes Jackson’s fishing mates, including on a couple of occasions President Franklin D. Roosevelt, did keep precise score of who caught what.)

Baseball also seemed not to appeal to Judge Learned Hand. He served on the federal bench in New York City from Jackson’s youth and outlived him by almost seven years. Judge Hand was one of Jackson’s contacts in the law, an often kindred spirit and, to a degree, his friend.

In spring 1959, Judge Hand, then age 87 and a Senior Judge of the U.S. Court of Appeals for the Second Circuit, demonstrated publicly some baseball obliviousness. The occasion was the annual dinner meeting of the American Law Institute, held at the Mayflower Hotel in Washington, D.C.

Judge Hand made his baseball disclosure in a comment following Attorney General William P. Rogers’s remarks at the dinner. Rogers recounted that his son Doug, age 12, had recently answered two telephone calls to their home. One was from President Eisenhower. The other was from Vice President Nixon. William Rogers reported that he had explained afterward to Doug that although these calls did not mean much to him now, they would one day. Doug had listened politely to his father and promised to remember the calls. Then, with great excitement, he had asked, “Did you ever meet Mickey Mantle?” To that boy and many, many others, the centerfield of the New York Yankees was the leading national figure.

The ALI audience of course laughed. Then Rogers noticed his predecessor, former Attorney General Herbert Brownell, Jr., in the audience. Rogers described Brownell as “a Yankee fan” and waved to him, provoking more laughter and his wave back at Rogers. He then turned serious and commented, “Of course I realize that my story about Mantle right now is not timely.”

Judge Hand, seated at the head table, was being honored at this dinner for his fifty years of federal judicial service. During Rogers’s remarks and then his byplay with Brownell, Judge Hand was visibly perplexed. He whispered to his neighbor but appeared unsatisfied with the reply he received.

Then Judge Hand rose to speak. He thanked previous speakers for their many tributes to him. Then he volunteered that he did not know the “name” that Attorney General Rogers had mentioned.

The audience at first sat silent, unbelieving. Then gasps of astonished laughter broke out.

Judge Hand then addressed Rogers directly. “Mantle?,” he asked. “I don’t know what Mickey Mantle is or does. Is it a man or a thing?”

Sigh.

No one, except occasionally a pitcher, is perfect.

(Italics added by Kopf)

RGK

Jackson in the Holiday Season

Judges and Justices are ordinary people who sometimes do extraordinary things. One of the greatest Justices of all time, Robert Jackson, proved that point during the holiday season of 1945, as chronicled in this post from the Jackson List:

For the Jackson List:

Sixty-nine years ago, the Nuremberg trial was in its fifth week.  Twenty-four actual trial days had been completed and United States prosecutors were still presenting their case—the leading and largest, and only the first of four, national presentations of evidence—to the International Military Tribunal.

On December 20, 1945, the IMT judges recessed the trial for a two-week holiday break.  They decided to recess over the strong objections of U.S. chief prosecutor Justice Robert H. Jackson.  He then was in the seventh month of his presidential assignment to prosecute the principal Nazi war criminals, away from the Supreme Court as its 1945 Term was progressing, and trying to complete the trial and return to the U.S. as quickly as possible.

Late that Thursday afternoon, in his office in the Palace of Justice on the outskirts of devastated Nürnberg, Jackson wrote a long letter to his wife, his daughter and his daughter-in-law.  It chronicles his holiday circumstances and, as Jackson’s writing typically did, it shows a lot of himself:

Dec 20 1945

Dear Rene, Mary and Nancy:-

 Well here we are at Christmas—I have plenty of money and can’t buy a thing.  At least my shopping problem is simple. 

The Tribunal against our protest voted a recess from Dec 20 to Jany 2.  We wanted to work right through except Christmas day.  But nothing doing with the French + British so near home.  The time is too long to remain here in waiting and not time enough to get home [to the U.S.] + back safely.  I can’t take a chance on the long delays now caused by weather over the Atlantic. 

We have planned a short trip to the sun sunshine south of the Alps—Riviera—Rome—(1 day) Athens (1 day) Cairo—If possible we will go to the Church of the Nativity at Bethlehem for midnight Christmas eve service.  It is only 40 minutes by air from Cairo and Cairo two days from here.  Then on the way back we will cut our trip to fit our time.  Seems a rare chance to see something of the Near East.  Our party will be only eight—Gordon Dean—Col. [Robert] Gill—Bill [Jackson’s executive assistant and son, William E. Jackson]—Capt. [John] Vonetes—Roger Barrett a fine boy from Chicago [*no, no relation][—]R.H.J.—and Jean MacFetridge and Elsie [Jackson’s secretary Elsie L. Douglas].  …  We have our own plane and the Army is taking care of us at each point.

…  Last night we gave a combination dinner for staff members….  The cooks and boys got a tree—Elsie made all sorts of things to put on it by way of decorations—nuts and cookies tied up in paper napkins, cut outs of horseshoes, the moon, stars etc etc and finally one of the boys from some German got some lights and Elsies mother sent some icecycles (however you spell it).  It made a really beautiful tree.  Then a turkey dinner.  It was exactly six months before that our plane landed in London—only ones [from that original group] here now were Bill, [Larry] Coleman, [Gordon] Dean, Jean MacFetridge, Alma Soller, Elsie & I.  We drank a wine Rhine wine—(liberated) to ourselves + then made the others drink one to us.  Then they all went to the [house’s] music room and sang Christmas carols—then we had a bus take us all out to the Press Camp where the correspondents were having a rather shabby dance—but for policy reasons I had to show up.  Back about midnight—at least things are early around here.  Everybody thought we had a darned good time considering.  Santa Claus came to our house too—Elsie gave Bill + me each a pair of pajamas—made us ashamed we had not thought so far ahead [back in London that summer, to buy gifts before coming to Nuremberg].  …

The case is going well.  There is complaint that it is dreary.  So it is for people who don’t like hard facts.  I have tried to avoid making it spectacular.  But don’t worry.

…  Love and good wishes—more later

                                    Bob

(Jackson’s late December 1945 holiday trip with stops around the Mediterranean Sea did come off as planned.  Eight years later, in what turned out to be the last year of his life, he described that trip quite lyrically in an autobiographical fragment:

I have journeyed to Jerusalem and on a Christmas even to Bethlehem, where walking outside the little village the shepherds were still tending their flocks and the stars seemed almost within reach.  And I have lingered for days at Luxor, resting in the shade cast by temples that the faith of men built 4,000 years ago and trudging through a city of tombs that bespoke their belief that death was a beginning as well as an end.)

The Robert Jackson of Christmastime 1945—he a leading player on the world stage, commanding the power of military occupation, immersed in and proving the horrors of Nazism and World War II, experiencing the wonders of geography and history—is one piece of him and the holiday experience.

Jackson’s December 1945 also letter shows quite plainly, however, that he was even then, in all of his Nuremberg power and special circumstances, a man of human values and not much pretense—as he had been from his humble beginnings and earlier years.  Consider, for example, a Christmastime in the mid-1920s.  Bob Jackson then was a Jamestown, New York, lawyer in his early 30s.  He and Irene had been married since 1916 and their children Bill and Mary were young.  At holiday time, they hosted at home their friends Royal and Alace Bates.  The men went out and then returned with young Bill Jackson’s first toy train—“a wind up affair.”  And then, as Alace Bates recalled it years later, “those big boys”—Jamestown lawyers Bob Jackson and Royal Bates—“played with it all evening then did the tree and we all made merry.”

In this holiday season, I hope that you and yours get to gather with loved ones, to travel and see marvels, and to experience the happiness of a child—and perhaps to be one yourself—with a new toy.

*          *          *

John Q. Barrett

Professor of Law, St. John’s University, New York, NY

RGK

%d bloggers like this: