None of this came as much of a surprise: the prosecutors had always expected they would encounter blanket denials as the trial approached. They also knew, however, that it would be easier to break the defendants down under cross-examination if their earliest statements could be turned back against them. Particularly crucial were the answers given by Georg von Schnitzler, head of the IG’s all-important Commercial Committee, who in 1945 had clearly felt some remorse and had admitted his own “mistakes” before pointing a finger at his fellow directors and the cartel as a whole. On one occasion he had blurted out, “The IG took on a great responsibility and gave, in the chemical sector, substantial and even decisive aid for Hitler’s foreign policy which led to war and the ruination of Germany.… I must conclude that IG is largely responsible for the policies of Hitler.” Statements such as this from one of the concern’s most senior figures were highly damaging, especially when they were backed up with his detailed recollections of the IG’s role in the Four-Year Plan, its takeover of plants in Poland and France, and its use of slave labor.
But von Schnitzler had begun to vacillate under pressure from the other defendants. The shortage of suitable prison accommodations and the need to have the IG executives on hand to answer questions had meant that the prosecution wasn’t always able to keep the men apart. By the spring of 1947, Georg von Schnitzler had cumulatively spent many weeks in the company of his old colleagues, and some of them had made it plain what they thought of his candid responses to the Americans. The icily intimidating Fritz ter Meer had given him an especially difficult time, confronting him several times, often in front of the others, claiming that because von Schnitzler was not an all-round chemist he was ill equipped to make statements on behalf of the company as a whole and should keep his mouth shut.
As a result, the baron had begun having second thoughts. In April he sent a message to DuBois saying that he was withdrawing his early statements because he “had not been technically qualified” to say many of the things he had said. Furthermore, he added, he had “been in a state of intense mental depression in 1945.”
The news left many in the prosecution team wondering if their case had been irreparably damaged. If von Schnitzler could show that his statements had been made under pressure, the court would not admit them into evidence. Drexel Sprecher quickly managed to get in to see the baron, found out that ter Meer had bullied him, and promised to keep them apart in the future. This seemed to reassure von Schnitzler and after a few days’ reflection he contacted the lawyers once again to say that his early statements had been accurate after all. But whether he could be relied upon to stick to this position in the weeks and months ahead, or indeed if his lawyers would let him, was now open to doubt.
* * *
ON MAY 4, 1947, the prosecution staff swallowed their anxieties and finally filed an indictment on behalf of the United States against twenty-four IG executives: Carl Krauch, in his position as chairman of the Aufsichtsrat; Hermann Schmitz, as chairman of the Vorstand; all the members of the managing board (Georg von Schnitzler, August von Knieriem, Heinrich Hörlein, Fritz ter Meer, Christian Schneider, Fritz Gajewski, Otto Ambros, Heinrich Bütefisch, Ernst Bürgin, Hans Kühne, Carl Lautenschläger, Friedrich Jaehne, Carl Wurster, Heinrich Oster, Paul Haefliger, Max Ilgner, Wilhelm Mann, and Max Brüggemann); and four other IG officials deemed especially culpable—Walter Dürrfeld, for his role in Auschwitz; Heinrich Gattineau, who ran the Wipo (the Department of Economic Policy) under Max Ilgner at Berlin NW7; Erich von der Heyde, the IG’s liaison man with the Abwehr; and Hans Kugler, who had managed the IG’s newly acquired plants in occupied Europe.*
The defendants were charged on five separate counts, including “planning, preparation, initiation, and waging of wars of aggression and invasions of other countries”; “plunder and soliation”; and “slavery and mass murder.” The first covered the IG’s financial and political association with the Nazis—namely, participation in the war planning of the high command; participation in the economic mobilization for war; participation in propaganda, intelligence, and espionage activities; preparation for and participation in the execution of Nazi aggression and benefiting from the spoils thereof; and production and stockpiling of war materials. Under “plunder and spoliation,” the indictment charged that that the IG had with the Wehrmacht played a major role in Germany’s program of acquisition by conquest, intending specifically to take over the chemical industries of Austria, Poland, Czechoslovakia, France, Norway, Russia, and other countries.
The count for “slavery and mass murder” was the most crucial and the most shocking to the outside world: “All of the defendants, acting though the instrumentality of IG Farbenindustrie, participated in … the enslavement of concentration camp inmates,… the use of prisoners of war in war operations,… and the mistreatment, terrorization, torture, and murder of enslaved persons.”
At Auschwitz, the indictment went on to explain, the IG had
abused its slave workers by subjecting them, among other things, to excessively long, arduous and exhausting work, utterly disregarding their health or physical condition. The sole criterion of the right to live or die was the production efficiency of said inmates. By virtue of inadequate rest, inadequate food, and because of inadequate quarters (which consisted of a bed of polluted straw, shared by from two to four inmates), many died at their work or collapsed from serious illness there contracted. With the first sign of a decline in the productivity of any such workers, although caused by illness or exhaustion, such workers would be subject to the well-known Selektion. Selektion, in its simplest definition, meant that if, upon a cursory examination, it appeared that the inmate would not be restored within a few days to full productive capacity, he was considered expendable and was sent to the Birkenau camp of Auschwitz for the customary extermination.… The working conditions at the Farben Buna plant were so severe and unendurable that very often inmates were driven to suicide by either dashing through the guards and provoking death by rifle shot or hurling themselves into the high-tension electrically charged barbed wire fences. As a result of these conditions the labor turnover in the Buna plant in one year amounted to at least 300 percent.
With the other charges (membership in criminal organizations such as the SS and a catchall count of “crimes against peace”), the sixty-page document amounted to a powerful and compelling denunciation of IG Farben’s twelve-year-long association with Hitler and the Nazis, a relationship that the defendants, being brought together again in Nuremberg from their prisons across Germany, would struggle to explain away. The indictment had not been easy to put together and more time and more resources would have improved it, but DuBois felt it was an excellent basis on which to launch a trial.
But he barely had time to enjoy his satisfaction before he was confronted with a new problem, this time emanating from the United States. He was aware that low-level political opposition to the IG case had been bubbling away in conservative Washington circles from the moment the prosecution team had begun work in 1946, but now it suddenly began to take an altogether more hostile form. On July 9, 1947, Congressman George A. Dondero of Michigan launched a stinging attack on the floor of the House of Representatives against Secretary of War John Patterson, castigating him for his failure to root out “Communist sympathizers” infiltrating key U.S. Army posts. One of the ten “sympathizers” he identified was Josiah DuBois, whom he described as “a known left winger from the Treasury Department who had been a close student of the Communist party line.”
Having never been a Communist, DuBois was outraged at the slur, which he came across in Stars and Stripes newspaper while sipping his morning coffee. He issued an immediate denial through the Nuremberg press corps and challenged the congressman to repeat the statement outside the House, where he would no longer be immune to a libel charge—a gauntlet that the politician declined to pick up. It was only later that day that DuBois figured out what lay behind Dondero’s comment. His closer perusal of the congressman
’s list of sympathizers showed that five of the other men named had worked at one time or another on U.S. government investigations of the IG. The full transcript of Dondero’s comments only confirmed his suspicions: the congressman had specifically linked his comments to those “who had been trying to blacken the name of IG Farben.” From there it was easy enough to put two and two together. DuBois remembered that Dondero’s congressional district contained the headquarters of Dow Chemical. A few weeks earlier American newspapers had reported a rumor that the prosecution team had been looking into possible links between Dow and the IG. Clearly someone didn’t want that connection brought up at the trial.
The timing of the attack could not have been worse, coinciding as it did with the arrival in Nuremberg of the judges assigned to the IG case. DuBois was mortified to see one of them, Justice Curtis G. Shake, reading the offending edition of Stars and Stripes in the lobby of the Palace of Justice. But at least the prosecution team now had an opportunity to assess the strengths and weaknesses of the men who would be weighing the merits of their case. First impressions were reassuring enough. Shake, who would be the tribunal’s presiding judge, came from Vincennes, Indiana, where he had been chief justice of the state supreme court; Judge James Morris was from the supreme court of North Dakota; Judge Paul Hebert had been dean of Louisiana State University’s law school; while Clarence F. Merrell, the “alternate” judge who would sit on the bench but take no part unless one of the others pulled out, was a veteran of the state circuit in Indiana. They all seemed intelligent and experienced practitioners of the law. Nevertheless, DuBois could not help feeling a little uneasy at a casual remark made by Morris when the prosecution team met the judges for lunch: “We have to worry about the Russians now; it wouldn’t surprise me if they overran the courtroom before we get through.”
DuBois spent the last few weeks of July 1947 refining his court strategy and running it past Telford Taylor at his house on the Linden Strasse in Dambach, a tiny village on the western outskirts of Nuremberg, and then over lunches with his team at the newly repaired Grand Hotel. If Taylor felt any anxiety, he showed no signs of it. He would be making the opening presentation to the court, setting the scene for what was to come, and while he had some private reservations about his deputy’s proposed approach he knew that the prosecutors had amassed some impressive evidence. He also knew that the quality of the judges he had been sent was variable, to say the least, and that until the trial was under way there was no knowing how the arguments would play with them. Having delegated the running of the case to DuBois and his team, he had to trust their judgment. All he could do now was get them off to the strongest possible start.
15
TRIAL
There is more to being a successful trial lawyer than the ability to deliver a persuasive speech; nevertheless, as General Telford Taylor was demonstrating in the main courtroom of the Palace of Justice at Nuremberg, it is a useful skill to possess. His audience could hardly have been more attentive. Some four hundred people—judges, attorneys, court officials, the public and press—had listened, spellbound, as he outlined the case against the accused in powerful and dramatic terms, and now he was drawing his opening peroration to a close: “The defendants will, no doubt, tell us that they were merely overzealous, and possibly misguided, patriots.…”
Taylor paused for a moment and cast a dismissive glance at the twenty-three men in the dock. This was time-honored lawyer’s artifice, but no less effective for that. He was letting the court know that he had already worked out the defense strategy and that he didn’t think much of it: “We will hear it said that all they planned to do was what any patriotic businessman would have done under similar circumstances.… As for the carnage of war and the slaughter of innocents, these were the regrettable deeds of Hitler and the Nazis, to whose dictatorship they, too, were subject.”
But the prosecution, Taylor went on, would show the defendants’ claims of innocence to be hollow and untrue. The accused had been willing participants in the Nazi project and it was now up to the court to hold them to account, as they themselves had once judged others.
They judged themselves alone as fit to sway the destiny of the world. They judged themselves entitled to subjugate and to command. They judged the Jew, the Pole, and the Russian to be untouchable. All their judgments sprang from a bottomless vanity and an insatiable ambition which exalted their own power as the supreme and only good. They rendered and executed those arrogant pronouncements with whip and sword. There is hardly a country in Europe that escaped the carnage which these men loosed, and the day will surely come when their own countrymen will fully grasp what a catastrophic abomination they worked for Germany. It is no act of vengeance, but an inescapable and solemn duty, to test the conduct of these men by the laws and commandments which they dared to disavow.
After Taylor had finished and DuBois and Drexel Sprecher had run through a technical outline of how the case would be laid out, the judges adjourned for the day and filed out of the room. In those few quiet seconds, before the press rushed to the rail and started clamoring for their attention, the lawyers around the prosecution desk shared a moment of intense relief and satisfaction. Belle Mayer had tears rolling down her face. “I didn’t think this day would ever come,” she said.
It was August 27, 1947. The IG Farben trial was finally under way.
* * *
THE PROSECUTION CASE may have opened well, but within days it was running into problems. The lawyers’ aim had been to make sure that the judges fully grasped the nature and structure of the organization the accused men worked for. The IG was far more than just an ordinarily successful and profitable business; it was also the sum of a vast and complex network of partnerships, subsidiaries, syndicates, cartels, and production agreements, which together allowed the concern to exercise enormous power and influence at home and abroad—often more than individual governments. An appreciation of this point was central to the prosecution’s argument, essential to understanding the means, motive, and opportunity the defendants had to commit their crimes.
To illustrate this argument the prosecution set up huge charts and diagrams at one end of the court, detailing the scale and spread of the IG empire, and introduced into evidence a mass of supporting reports, correspondence, patent licenses, and other corporate documents—each of which was formally noted and translated by the German and English interpreters. Expert witnesses from the international chemical industry were then called to explain it all.
On paper this approach may have seemed sensible enough, and certainly it would have worked well in some of the big antitrust cases that DuBois and others had fought in the past. But at Nuremberg it was a big tactical error. The men on the bench had come to Germany expecting to conduct a trial for war crimes but instead they were being asked to sit through a laborious lecture on business organization. The presiding judge, Curtis Shake, began to grumble about the relevance of the testimony, but the prosecution, replying that it was vital for the court to understand the power the defendants had commanded, carried on with its seminar. Eventually Justice Morris lost patience.
Mr. Prosecutor, this organization, so far as records show here, was simply a big chemical, commercial, and business concern, the like of which there are many throughout the world. Speaking for myself only, I am at a complete loss to comprehend where documents of this kind are of the slightest materiality to the charges. This trial is being slowed down by mass of contracts, minutes, and letters that seem to have such a slight bearing on any possible concept of proof in this case.
Fortunately for the lawyers, Justice Hebert, the Louisiana academic, and the alternate judge, Clarence Merrell, were more sympathetic and their willingness to sit through any evidence that DuBois and his colleagues thought relevant allowed the case to continue on as they had planned. But over the following weeks it became impossible not to notice that the other two judges were hardening against them.
A particular low point came when the focus shi
fted specifically to IG Farben’s involvement in Nazi rearmament. Using the documents rescued from the Alexandria warehouse, the prosecutors worked their way, at exhaustive length, through Carl Krauch’s relationship with Göring and the Four-Year Plan, the important role played by Berlin NW7, Max Ilgner, and the Vermittlungstelle Wehrmacht (Army Liaison Office), the dramatic expansion of the IG’s production capacity and its switch into the manufacture of strategic war materials. The pretrial statements of Georg von Schnitzler were especially key to this part of the case but their admission into evidence was fiercely contested by defense lawyers, who predictably argued that he had been mentally unfit at the time he made them and that his “coercion” was in contravention of the Fifth Amendment. The prosecution countered with the baron’s written confirmation to Drexel Sprecher that “the relationship between the investigators and me in Frankfurt in 1945 was very free, open, and very cordial.” Von Schnitzler himself said nothing, nor did his counsel, content for now to leave the matter in the hands of judges, who were clearly not favoring the prosecution. After days of haggling between the two sides, Curtis Shake announced that he would defer a decision until later in the trial, when he had had time to consider the merit of the statements. But he hinted strongly that unless Schnitzler were to take the stand, which he was under no obligation to do, his remarks could not be held to apply to the other defendants. The ruling was a long way from the positive decision that the prosecution needed and left its case in temporary disarray.
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