It was after that that the court composed itself to listen to the inevitable, predictable pleas. Twenty-three defense lawyers, one after another, pleaded the illegitimacy of the court. The court had no authority, they said, one after another, using, for the most part, identical arguments and sometimes identical language.
The defense plea was to the effect that neither the Kellogg-Briand Pact nor any binding international covenant had established the alleged criminality of “starting an unjust war.” The pleading went further, asserting an inherent disqualification in the presiding judges on the grounds that they represented victorious powers and could therefore not reasonably be expected to administer justice when weighing the conduct of leaders in the enemy camp.
Those arguments had been anticipated at the London Conference. Judge Lawrence summarily dismissed the appeal, making — with no evident embarrassment — the circular point that such pleadings conflicted with Article 3 of the Charter promulgated by the International Military Tribunal, which provided that neither the Tribunal nor its membership nor its decrees could be challenged by either the prosecution or the defense. “Thus, the appeal was without substance...because we have ruled that it is without substance.”
*
The moment arrived, though not until the following day, to hear the defendants’ individual pleas. Did they plead guilty?
Or not guilty? “Herr Goering” — titles and honorifics were conspicuously gone — “how do you plead?”
The defendant began what threatened to be a statement — “ Before I answer the question of the Tribunal whether or not I am guilty — ” but was stopped dead. Judge Lawrence told Goering that he must plead simply guilty or not guilty .
Reichsmarschall Goering, his face contorted in sulk, capitulated. “In the sense of the indictment, not guilty.”
Lawrence called the next name. Rudolf Hess said into the microphone: “ Nein .”
From the bench: “That will be entered as a plea of not guilty.”
The court heard the same plea — not guilty — from all twenty-three defendants.
Now was the time to hear from the prosecution. Justice Jackson did not disappoint.
*
He tackled head on the business about victors prosecuting the defeated. It didn’t matter who was victorious, who vanquished. What was happening in Nuremberg was a trial. There were heavy responsibilities to international law, and to history, to uphold the rights of defendants to make their case . But the Articles formulated by the International Military Tribunal were overarchingly applicable. Individual Germans were being held responsible for laws that transcended victor/vanquished.
Suppose, Jackson went on, that no trial whatever had been organized? That the Allies had undertaken no initiative at all to redress the wrongs of the past six years? “That four great nations, flushed with victory and stung with injury, [should] stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law? — this is one of the most significant tributes that power has ever paid to reason.” Justice Jackson was telling the defendants that if it had been, as now they charged it was, simply a matter of victors’ justice, then the defendants would not be sitting in Nuremberg with twenty-three lawyers. They’d have been shot after V-E Day.
Those opening sentences by Robert Jackson sought to convey the august character of the trial and to generate excitement about the historic idea of international war crimes. Here, for the first time in history, were representatives of the countries that had won a great world war face-to-face with representatives of the defeated nation, summoned not merely to hand over their swords, but to answer for their conduct: for waging wars of aggression, for violating the rules of warfare, and for engaging in practices which in years to come would be routinely perceived as genocidal. His words evoked the sublime purposes of an avenging noose, and it dangled in the imagination of everyone crowded into the room. It was all but palpable over the two tiers of benches on which the defendants sat. They were bedraggled and seemed fatalistic, their days of glory so inescapably gone, their forlorn demeanor enhancing the gravity of Justice Jacksons words, so carefully chosen, artfully arranged, suggesting that these were vermin of the earth who should be reduced to dust.
Jackson took outspoken pride in the trials procedures, which would permit the defense lawyers to make their cases and to summon their witnesses. To do otherwise would be “to pass these defendants a poisoned chalice, putting it to our lips as well.”
The renowned Jackson rhetoric went on in near voluptuous judicial waves. “We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.” Press and spectators — and defendants — were warned that much time would need to be spent. “The catalog of crimes will omit nothing that could be conceived by a pathological prince, engaged in cruelty, and lusting for power.” And the defendants were advised that there would be no diffidence in the case the Allies would make against them. “Against their opponents, the Nazis directed such a campaign of arrogance, brutality, and annihilation as the world has not witnessed since the pre-Christian era. At length, bestiality and bad faith reached such excess that they aroused the sleeping strength of imperiled civilization. Its united efforts have ground the Nazi war machine to fragments. But the struggle has left Europe a liberated yet prostrate land where a demoralized society struggles to survive. These are the fruits of the sinister forces that sit with these defendants in the prisoners’ dock.”
*
“Hell of a speech,” Harry Albright commented that evening at the bar of the Grand when he linked up with Sebastian. “I picked up some reactions. Those two guys over there” — he pointed to the far end of the bar — “one UPI, one Reuters. We walked here together from the Palace. Were they impressed ...Did you — by the way — know that the defendants lunched in the same room with their defense attorneys today?”
Sebastian said he hadn’t known that. He assumed the conversations had been...overheard. Albright nodded.
“So much for the poisoned chalice. Are you going to report to Captain Carver what Amadeus avowed to the defense lawyers?”
“Oh shit, Reinhard. You know we’ve been eavesdropping from the beginning. I won’t ask myself whether Justice Robert Jackson knows it all, and whether he’d think of that as poisoning the chalice of justice. And anyway — does it really matter? Is there any defense those murderers can come up with, anything that would make any difference?”
“You’re saying they’re all going to hang?”
Albright retreated. “Let me put it this way: None of the stuff we’ve bugged and given to the prosecution, as far as I can figure it out, is going to change much.”
“Why, in that case, am I spending so much time with Amadeus?”
“I guess to make him show contrition. Someone should. Maybe the hangman wall take pity. Refuse to spring the trapdoor.” Sebastian did not smile.
“But I repeat, Sebby. Jackson made a hell of a speech. He made me feel this whole thing is worth it. But, oh god, it is going to take forever, isn’t it?”
“Sounds like it,” Sebastian agreed. “Let’s hope it leads to — well, to fewer war crimes.”
Chapter Thirty
Nuremberg , November 1945
The defendants were of course entitled to individual counsel. One or two dragged their feet in the matter, writing to wives or sons or former associates for advice on whom to retain; and then there was the problem of persuading the lawyer of choice to take on the job.
Working against their taking on these clients was the reluctance of many German attorneys, some of them prominent, to associate themselves in so public a theater with the defense of egregious Nazi figures. Working in favor of the defendants was the dormant legal industry in the months after surrender. Everyone had complaints, major and minor. Whom to sue because your husband had been killed at the front? Or, for that matter, in a concentration camp? Would the Uni
ted States Army Air Force appear at the dock to answer for the destruction of a dozen German cities, and pay retribution? What about your neighbor? Sue him? For what? Insufficient heat for your apartment? An uneven supply of electrical power? What would be the expression on the grocer’s face if served a complaint for failing to provide regular rations of milk and butter and cheese?
Yet there were lawyers hungry for work, and the war crimes tribunal paid a defense attorney 4,000 marks in advance, and then 2,500 marks per month of service.
Amadeus was one of the defendants who dragged his feet. Finally, only one week before the trial began and defense attorneys needed to be at their stations, Amadeus advised Captain Carver, who passed the word on to Colonel Amen, that he wished as defense counsel his brother.
“Who in the hell is he?” Colonel John Harlan Amen, interrogations chief and renowned New York lawyer before the war, asked Carver.
“All I got was this handwritten memo from Amadeus. From our Amadeus. Here’s what it says: ‘George Friedrich Amadeus , horn 1918 — I think . ’ Got that? ‘ I think ,’ says big brother. He’s not even sure when his brother was born. Then he wrote, ‘ Address , 20 Nottingerstrasse . Heidelberg . Graduated , Juristische Fakultaet der Universitaet Heidelberg 1939 . Tuberculosis . Exempt from military duty . Self - employed , lawyer . ’ “
“That’s all?”
“That’s everything he wrote down.”
“Well.” Colonel Amen grunted out his displeasure. “This guy — twenty-seven years old! He’ll certainly bowl over our learned judges.” Amen fiddled with his unlit pipe. “Obviously he has had zero experience in international law. On the other hand, I don’t think we have the authority to refuse him. Hell. Of course we don’t have that authority.” He gave it more thought. “Whatever high points in international law are going to be made by the defendants, assuming any are going to be made, will be made by the flossy German lawyers the other defendants have working for them. It’s just a question, in this case, whether a resourceful lawyer could come up with a defense that could mitigate Amadeus’s sentence. Tell you what. Hand Amadeus — our Amadeus — a memo, in the form of questions. Just a few questions. Like...” Colonel Amen looked up and closed his eyes, as if a stenographer were standing by.
‘“Does Herr George Friedrich Amadeus have experience in international law?...Do you deem him competent to assert your rights under German law?...Has he had experience arguing the law before, uh, before judges’ — ”
“Come on, Colonel. I can’t ask him that. It would suggest that if brother George Friedrich hadn’t had experience arguing in court he wouldn’t qualify to act before this court.”
“You’re right,” Amen conceded. “As far as we’re concerned, this could be his very first trial case as a lawyer — if he’s the defense counsel the defendant nominates...Well, just the same, shoot a couple of those questions at him. In writing. And get Amadeus, in writing , to affirm that his brother is the man he wants.”
*
George Friedrich Amadeus arrived two days later and presented himself at the desk. The WAC sergeant looked down at her schedule sheet. “Yes, we are expecting you, Herr Amadeus. Please sit. I’ll notify Colonel Andrus’s office.”
There was much briefing to be done of defense attorneys. This included a general introduction to the judicial scene and to protocols of the court by Major Esterhazy. The briefings were of course in German.
Now the conversation became specific. “I have here also a copy of the indictment.” Amadeus was handed a fat folder, which included copies of the war crimes charter. “And I have arranged for a room in which Captain Carver, who has been in charge of the interrogation of Kurt Amadeus, can brief you more particularly in the matter of your client’s case. You can of course question him.”
“ Spricht er Deutsch ?”
“No. But there will be an interpreter. After that you will be taken to your brother, your client.”
*
“I’ve got to admit, Captain, I’m really eager to see this guy, twenty-seven years old!”
“How old is our Amadeus? The killer Amadeus? I forget.”
“Kurt Amadeus is thirty-six,” Sebastian said.
“I wonder how he got on with his kid brother? Were you able to dig out anything else about his career?”
“All I did was check the military and civil records for the Heidelberg area. His name didn’t appear in any roster of Nazis or account of Nazi activities.”
“I don’t suppose it would make any difference if it had. We’ve got a total of forty-eight defense attorneys and eighteen of them were Nazis. As long as they’re not war criminals, that’s okay by our rules.” There was a knock. “Sebby, go open the door, will you?”
A sergeant was there with the visitor. “Lieutenant, this is Herr George Friedrich Amadeus.” He motioned to the tall young man. His shirt collar was loose around his neck. He wore a dark blue tie, a small gold object at tie-clasp level, a black corduroy jacket and pants that brought the blondness of his hair and white-pinkness of his cheeks into broad relief. In one hand he carried a hat of the kind that closes tight over your ears and a threadbare coat; in the other, a briefcase.
Carver rose from his chair and extended his hand. “I am Captain Carver, an official on the interrogation team. Please sit down.” Sebastian rendered the words in German. He was not himself introduced. Interpreters were not introduced. They were intentionally treated as mechanical accessories.
Sebastian wondered whether there would be any small talk. Carver said only, “I hope you will be comfortable in your quarters.” Carver didn’t know and didn’t care what quarters Colonel Andrus’s staff had secured for the German lawyer and also didn’t care that Amadeus should know he didn’t know or care. Amadeus simply nodded.
“You are familiar with the indictment?”
“No. I have it here but I have not read it.”
“You are familiar with the war crimes charter, promulgated in London?”
“No. I know that it exists, but I have not read it.”
“We have spent many hours with your brother. And you are entitled, as you know, to be familiar with our case, though not of course with the exact shape of our arguments as the trial unfolds.”
“When is my brother on the dock?”
“He is the seventeenth, in the order made up.”
“I shall object to that.”
“On what grounds?”
“It will be prejudicial to hear the case against the other prisoners before my client is at the dock.”
Carver spoke now to Sebastian. “Tell him the decision was made back in London to go with a multiple-defendant trial. We can’t prevent him from filing an objection, but you can tell him that objections of that nature are foreclosed by the charter.” Sebastian relayed the information.
George Friedrich Amadeus opened his briefcase, extracted a folder, and began reading the language of the indictment.
Carver waited.
After a minute or two he said, “Is there a question you wish to ask me concerning the indictment?”
“How can I tell? I have not finished reading it.”
The muscles clenched in Carver’s face. He spoke to Sebastian. “Maybe he wants us to sit here while he reads up on the Hague Convention.” And then, addressing the young lawyer, “Herr Amadeus, if there are questions that arise after your readings, you can inform the office of Colonel Amen that you wish to get through to me.”
“I don’t believe I will have anything further to discuss with you. Kindly take me to my brother.”
Captain Carver got up, his patience at an end. He said nothing to Amadeus. To Sebastian, “Tell him to keep his seat. You go over to Chief Landers, set up a cubicle, and have them fetch the prisoner. Explain to this character that he’ll be conferring through a glass grate with a slot for document exchanges.”
Walking to the door, Carver paused. “Tell you what, Sebby. It’ll be a while before they can set all that up, and he’s just sitting here
. Why don’t you come back in after seeing Landers, and sit in the room with him. Maybe you can fill him in on the world war.”
“I’ll do that, Captain. I’d kind of like to know more about him. About the Amadeus clan.”
“If he wants to talk to you, that’s his business.”
Sebastian told Herr Amadeus he would return after making arrangements for the visit with his brother.
Chapter Thirty-One
Nuremberg , December 1945
The prosecution had spent ten vigorous days arguing not the guilt of individual defendants but rather the corporate guilt of entire organizations. The objective was nakedly there: to lay convenient groundwork for prima facie guilt-by-association.
The prosecution was asking the tribunal to affirm that participation by Germans in any of several Nazi activities should, eo ipso , justify a finding of guilt of war criminal activity, such guilt to be punishable by whatever the court, reviewing the evidence against individual defendants, thought appropriate, including a death sentence. A defendant shall be held guilty, the prosecution pleaded, if he had been 1) part of the Nazi Party “leadership,” 2) a member of the Reich Cabinet, 3) a member of the SS, Gestapo, SD, or SA, or 4) if he had been an officer in the German High Command.
This was big-time judicial activism. If the Nuremberg tribunal, in the matter of the twenty-three individual defendants seated opposite in the courtroom, concurred in these pleadings of the prosecution, future courts — of which there would be many, dealing with lesser figures — would need only to establish that a defendant had been any-of-the-above in order immediately to be judged guilty, under the law, of criminal conduct.
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