Crimes of the Holocaust: The Law Confronts Hard Cases 9780812202571

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Crimes of the Holocaust

Pennsylvania Studies In Human Rights Bert B. Lockwood, Jr., Series Editor

A complete list of books in the series is available from the publisher.

Crimes of the Holocaust The Law Confronts Hard Cases

Stephan Landsman

PENN

University of Pennsylvania Press Philadelphia

Copyright © 2005 University of Pennsylvania Press All rights reserved Printed in the United States of America on acid-free paper 10 9

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Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4011 Library of Congress Cataloging-in-Publication Data Landsman, Stephan. Crimes of the Holocaust : the law confronts hard cases I Stephan Landsman. p. em. - (Pennsylvania studies in human rights) Includes bibliographical references and index. ISBN 0-8122-3847-8 (cloth: alk. paper) 1. War crimes trials-Germany. 2. War crimes trials--United States. 3. War crimes trials--Israel. 4. Holocaust,Jewish (1939-1945) I. Title. II. Series. KZ1176.5.L36 2005 341.6'9' 0268-dc22 2004054616

Great cases like hard cases make bad law. -Justice Oliver Wendell Holmes, Jr., Northern Securities Co. v. United States, 193 U.S. 197, 400 ( 1904) (dissenting).

Contents

Prologue

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1. Nuremberg 2. Eichmann

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3. John Demjanjuk and Ivan the Terrible 4. Imre Finta

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5. Prospects for the Prosecution of Genocide Perpetrators Notes

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Index

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Acknowledgments

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Prologue

In the face of the horrors of the Second World War, the international community struggled to come to grips with a radically new crime: genocide-the deliberate attempt to exterminate an entire people. This book traces the world's halting development of a courtroom response to the Nazis' effort to destroy all of Europe's Jews in what has come to be referred to as the Holocaust. It analyzes the strengths and limitations of four of the most prominent proceedings conducted against alleged Nazi criminals using the tools of the Anglo-American legal tradition, and considers their significance for contemporary national and international tribunals. The book begins in 1945 with the International Military Tribunal prosecution at Nuremberg, which focused on crimes committed by Adolf Hitler, the National Socialist Party, the Third Reich, and numerous followers who conducted a war of aggression and carried out their leaders' commands to murder all ofEurope'sJews. The Nazis' genocidal program was comprised of millions of criminal acts undertaken by tens or perhaps hundreds of thousands of henchmen. With the defeat of Germany, the world faced the unprecedented challenge of deciding how to deal with those perpetrators who had survived the death of their fuhrer and his Thousand Year Reich. The victorious Allied powers decided to use the apparatus of the criminal law, rather than summary executions, and thereby expressed their desire for a new and, it was hoped, more effective response to the misdeeds of those who had committed among the most heinous and depraved acts in human experience. Equally important, they decided to establish an international tribunal as the forum in which to pursue their objective. The legal systems of the United States, Great Britain, France, and the Union of Soviet Socialist Republics (which, apart from France, constituted the victorious World War II Allies) offered few precedents for dealing with crimes of such magnitude, especially when committed by people of other nations in their own land or on occupied territory. The International Military Tribunal's prosecution drew on preexisting

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national justice systems (most particularly those of America and England), but converting them into mechanisms suited to the adjudication of the Nazis' gravest crimes proved exceedingly difficult both because the crimes lacked a single geographical or political locus and because they involved the operations of an entire government's bureaucratic apparatus. The Nuremberg trial did establish an indelible record of Nazi wrongdoing, and its verdict properly held individuals and groups responsible for war crimes and crimes against humanity. Yet the process was complicated by the contradictions inherent in treating defendants not only as individuals but also as representatives of entire groups; by the abandonment of traditional rules of evidence and their replacement by ad hoc procedures for the admission of documentary evidence and the examination of witnesses; and by the unequal resources allowed to the prosecution and the defense. Judged by the criteria of Anglo-American criminal justice, the Nuremberg trial was lacking in fundamental elements of fairness. These shortcomings did not much worry the world in 1945, in part because the judges who presided at Nuremberg provided salutary correctives to the procedural problems. However, the problems that marked the Nuremberg trial set unfortunate precedents for subsequent criminal prosecutions of individuals suspected of participating in the Nazis' genocidal war against the Jews. The successor trials of Adolf Eichmann in 1961 and of john Demjanjuk in 1986, both conducted in Israel, and the 1990 prosecution of Imre Finta in Canada have posed troubling questions. For the most part, each trial built on the approaches used at Nuremberg without significant reflection on the problems inherent in them. The trajectory of development has actually heightened difficulties in prosecuting genocidal acts. Each successive trial was more problematic and yielded less satisfactory results, notwithstanding the acquittal of defendants who were not proven to have committed the particular crimes for which they were charged. A critical analysis of this record yields valuable insights as the world struggles to grapple with the challenge of genocide, which appeared in new forms toward the end of the twentieth century. The final chapter of this book focuses most of its attention on the international legal response to more recent acts of genocidal violence and the world's attempts to create international forums to address such criminality. International criminal tribunals with significant resemblance to the International Military Tribunal at Nuremberg have been created in response to genocidal campaigns in the former Yugoslavia and in Rwanda. The final chapter also considers the strengths and weaknesses of these new initiatives in light of the world's pursuit of Nazi criminals. It then turns its attention to the International Criminal Court, designed

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to extend the reach of international justice to a range of infamous misconduct. The world's effort to respond to genocide has been one of the most significant legal developments in the last fifty years. It has been profoundly influenced by the Anglo-American approach to adjudication through adversarial proceedings. As an American trial lawyer, legal academic, and Jew, I felt it was important to examine these developments and to ask whether we have succeeded in fashioning a system that is effective in prosecuting genocide and providing reasonable assurance regarding the punishment of those who commit it. I could think of no better way to approach that task than carefully to examine the records of the trial proceedings in what, by consensus, have been viewed as among the most significant adversarial proceedings against accused Nazi henchmen.

Chapter 1

Nuremberg

The prosecution of Nazi war crimes and crimes against humanity conducted at Nuremberg, Germany, in 1945-46 was unprecedented, both in the magnitude of the crimes it sought to address and in the international nature of the tribunal, the scope of its investigation, and the open character of the proceedings. Although crucial aspects of procedure were worked out during the trial, the shape of the tribunal, its charges and defendants, and the adversarial approach it adopted were outlined in advance by the victorious Allied powers. The road to Nuremberg began when the Allied nations rejected arguments for the summary execution of Nazi leaders and negotiated an agreement intended to harmonize an array of potentially conflicting goals: the punishment of major Nazi war criminals through an International Military Tribunal (IMT); the creation of an authoritative record of the corrupt nature of the National Socialist regime; and a speedy resolution of the issue. The United States, Great Britain, France, and the Soviet Union had divergent international concerns and were subject to various domestic political pressures, so. their agreement in principle was sketchy enough to leave significant procedural questions to the tribunal itself to resolve.

Establishing an International Military Tribunal Defining Goals The Allies' determination to hold German leaders accountable for the atrocities committed by German forces across Europe increased as news reports of Nazi crimes against Jews and others in occupied nations reached the public during the final years of the war. Franklin Delano Roosevelt, Winston Churchill, and Joseph Stalin agreed that hearings to

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document Nazi misdeeds as well as punishment for war crimes were a fundamental Allied goal. The Allies had previously threatened Axis leaders with prosecution for war crimes. For example, in August 1942, Roosevelt declared: "When victory has been achieved, it is the purpose of the Govemment of the United States, as I know it is the purpose of each of the United Nations, to make appropriate use of the information and evidence in respect to these barbaric crimes of the invaders in Europe and in Asia. It seems only fair that they should have this warning that the time will come when they shall have to stand in courts of law in the very countries which they are now oppressing and answer for their acts." 1 The rhetoric of "barbaric crimes" committed by invading Germans (and Japanese) rallied American support at this juncture, even though the president envisioned the trials taking place in the oppressed countries after their liberation. In October 1942, the Americans and British set up the United Nations War Crimes Commission to consider what to do about the issue. 2 The USSR did not initially join in this effort but, in November 1942, set up the Soviet Extraordinary State Commission to Investigate War Crimes. As the tide of battle tumed in the Allies' favor, discussions about how to punish war criminals took on a new seriousness. In the fall of 1943, American Secretary of State Cordell Hull, his Soviet counterpart, Vyacheslav Molotov, and British Foreign Secretary Anthony Eden jointly issued the Moscow Declaration, which contained an outline of the policy to be followed after the war. "Those German officers and men and members of the Nazi party ... who have been responsible for ... atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries. The above declaration is without prejudice to the case of the major war criminals whose offenses have no particular geographical localization and who will be punished by the joint decision of the govemments of the allies. " 3 The declaration defined two categories of war criminals: those responsible for particular "atrocities, massacres and executions," and "major war criminals" who devised the policy that Germany enforced throughout Europe. The first group would be sent back to the countries of their crimes for prosecution. The second group, "whose offenses have no particular geographical localization," would be punished in whatever way the Allied govemments agreed upon. The British argued forcefully for the summary execution of top German leaders. At the conclusion of World War I, the British and the French had sought the trial of Kaiser Wilhelm II and several subordinate German officials, but the United States refused to support the proposal.

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To Britain's chagrin, the kaiser fled to Holland, where he was granted asylum. The trials of lesser war criminals in German courts in Leipzig degenerated into a fiasco. Cognizant of their past experience and fearful of the difficulties of a protracted prosecution, the British maintained that Nazi leaders should be executed without benefit of trial. As ever more persuasive evidence of Nazi atrocities spread, government opinion in the United States seemed to drift toward the British position. In a September 9, 1944, memo to President Roosevelt, Secretary ofthe Treasury Henry Morgenthau,Jr., proposed that Germany be reduced to a vast expanse of farmland and that its leading war criminals be summarily executed. Morgenthau argued that trials would provide the Nazis with a forum for propaganda and pose the risk of creating martyrs for Hitler's cause. Roosevelt brought Morgenthau's proposal to his meeting with Churchill in Quebec, and, on September 15, 1944, the two leaders initialed the plan for summary executions. Prominent members of the Roosevelt administration were horrified. The plan's details were leaked to the press, and a public uproar ensued. This hostile public reaction led Roosevelt to reconsider. Secretary of War Henry Stimson quickly exploited this opening. From the outset, he had opposed the call for summary justice. In a memorandum to his key aide, Assistant Secretary John McCloy, written on September 9, 1944 (the same day as Morgenthau's memo to the president), Stimson set forth an alternative to the firing squad: " [T] he method of dealing with these and other criminals requires careful thought and a well-defined procedure. Such procedure must embody, in my judgement, at least the . rudimentary aspects of the Bill of Rights, namely notification to the accused of the charge, the right to be heard and, within reasonable limits, to call witnesses in his defence." 4 Stimson sought basic Americanstyle justice for those accused of war crimes. The Soviet Union's objections to the summary execution of German leaders proved decisive. When Churchill presented this plan to Stalin in October 1944, the Soviet leader emphatically rejected it. Stalin insisted, according to a Churchill cable to Roosevelt, that " [ t] here must be no executions without trial otherwise the world would say we were afraid to try them." 5 In the terrible purge trials of the 1930s, Stalin had shown himself to be an enthusiast for public prosecution. Communist interrogators were adept at producing a persuasive courtroom "show," and most noncommunist newspapers and governments were taken in by the charade. Moreover, the Soviets had already begun conducting their own war-crimes trials. In December 1943, they tried and convicted three German prisoners of war, along with a Russian, on charges of committing atrocities resulting in the deaths of 30,000 civilians in the city of Kharkov. The Soviet prosecutors obtained confessions from the defendants

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that included admissions that poison-gas vans and other methods of mass extermination had been used against the population. Stimson responded to the collapse of the Morgenthau plan with a proposal to prosecute major Nazi war criminals by an international tribunal. Devising a feasible plan involved resolving a number of difficult questions. How would the prosecution of the major war criminals by such a tribunal relate to the prosecution of thousands of their subordinates by national justice systems? Would atrocities committed by the Nazis against other Germans before the outbreak of war also be subject to prosecution? Stimson submitted these questions to his staff, and on September 15 he received a proposal from Colonel Murray Bernays. Bernays suggested that the arch-criminals be tried not just as individuals but as representatives of Nazi organizations, such as the SS (Schutzstaffel) and Gestapo, which had conducted patently criminal operations. Once the defendants and the organizations they represented had been found guilty, the organizations' remaining members would be held liable without elaborate trial and be sentenced in accordance with their positions in the organization. Bernays proposed that the leading Nazis be charged not only with specific war crimes but also with a more general conspiracy. Under Anglo-American law, once two or more criminals agree to pursue an unlawful end, all their acts in furtherance of that end may be punished. A conspiracy theory would allow Allied prosecutors to reach back to the beginnings of the Nazi regime in 1933 and argue that each brutal act had been conducted as part of a conspiratorial design. This approach would make it easier to connect individuals and organizations to criminal acts, without requiring that direct proof of each individual's commission of or participation in the specific acts be offered at trial. Secretary of War Stimson was enthusiastic about Bernays's proposals, which offered solutions to the most obvious problems associated with an international tribunal. The conspiracy charge was particularly appealing to Stimson because previously, as a government prosecutor, he had successfully used the conspiracy strategy in a major antitrust case. Stimson mentioned Bernays's ideas to Roosevelt in November 1944 and noted in his diary that the president "gave his very frank approval when I said that conspiracy with ... representatives of all classes of actors brought in from top to bottom, would be the best way to try it. " 6 The next step was to define the crimes with which Nazi leaders would be charged. In late November, Colonel William Chanler noted that the Bernays plan did not address the apparent illegality of the Nazis' resort to aggressive war in violation of a series of treaties, including the Kellogg-Briand Pact of 1928, in which Germany had foresworn resorting to aggression. Stimson eventually embraced the idea of charging leading Nazis with launching an illegal war of aggression, thereby facilitating the

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introduction at trial of facts concerning the Nazis' betrayal of a series of treaties and agreements as well as their effort to dominate Europe by force. President Roosevelt reviewed the proposal in January 1945 and wrote in a memo to Secretary of State Edward Stettinius that " [ t] he charges should include an indictment for waging aggressive war in violation of the Kellogg Pact. Perhaps these and other charges might be joined in a conspiracy indictment. " 7 The Stimson-Bernays-Chanler proposal was roundly criticized by other American policy makers. Attorney General Francis Biddle and Assistant Attorney General Herbert Wechsler expressed misgivings about the entire prosecutorial strategy. In a December 29, 1944, memo, Wechsler warned that the prosecution of misconduct before· the onset of war would have the character of an ex post facto proceedingunconstitutional under the Bill of Rights-in which the court found defendants guilty of acts that had not been legally defined as crimes at the time they were committed. Wechsler also challenged the idea of prosecuting organizations, arguing that it paved the way for "guilt by association"-also an infringement of civil liberties in U.S. terms. Furthermore, he argued, the Anglo-American concept of conspiracy was too unfamiliar and idiosyncratic a legal device to use in a trial in which European prosecutors and defendants would figure so centrally. Wechsler's reservations were wise ones, as the experience at Nuremberg demonstrated, but no viable alternative was proposed. The attractions of the Stimson-Bernays-Chanler scheme were too powerful to resist. The proposal seemed to obviate the need for thousands of separate trials of Nazi henchmen and German functionaries at lower levels of the organizational hierarchy and allowed proof of Nazi misdeeds before 1939. The conspiracy strategy linked individuals, organizations, and leaders with a whole string of heinous crimes committed within and beyond Germany. Attorney General Biddle eventually accepted the proposal, and the United States then proposed it to the European Allies. The effort to secure British and Soviet agreement began at the February 1945 meeting of the Big Three at Yalta. The American delegation offered a memorandum calling for the trial of major Nazi war criminals by an international military tribunal on charges that included conspiracy, wholesale aggression, and organizational criminality. The American proposal was not adopted at Yalta, each of the Allies expressing a need to review the matter, but it established the framework for subsequent negotiations. One of the remarkable features of the American proposal was that it pointed toward a massive trial focused not just on the criminal deeds of particular Nazi leaders but on the organizations they headed and the

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thousands of henchmen who belonged to those organizations. The story to be told at trial was not simply one of specific criminal acts but of an ongoing conspiracy that stretched from 1933 to the fall of the Third Reich in 1945. Such a case would, of necessity, be vast. The defendants called before the bar were there not simply in an individual capacity but as representatives of the Nazi system and its constituent organizations. The tensions inherent in treating a defendant as both an individual criminal and a stand-in for an entire organization or regime were woven into the fabric of the trial from the outset. A key goal of the American proposal was to establish a definitive record of the evil workings of the entire Nazi regime. Stimson saw the trial as a "way of making a record of the Nazi system of terrorism and of the effort of the Allies to terminate the system and prevent its recurrence."8 Mter his November 1944 conversation with Roosevelt, Stimson noted in his diary that the president regarded such a trial as valuable because it would establish a lasting record of what the Nazis had done. Roosevelt's desire for a record appeared to be spurred by his recollection that, in the aftermath of the First World War, revisionist historians and isolationists had (with considerable success and, it can now be recognized, justification) challenged the notion of German responsibility for the 1914-18 conflict. Americans' faith in the propriety of intervention in the Great War had been weakened, which had intensified popular resistance to involvement in international conflicts. Roosevelt felt that he had to contend with these forces of isolation and revision as he guided the United States in the war against Hitler and strove to establish the country's leadership of the entire noncommunist world. Judge Samuel Rosenman, Roosevelt's confidante and representative in post-Yalta negotiations with the British on the question of a trial, said of his leader: "He was determined that the question of Hitler's guilt-and the guilt of his gangsters-must not be left open for future debate. The whole nauseating matter should be spread out on a permanent record under oath by witnesses and with all the written documents .... In short, there must never be any question anywhere by anyone about who was responsible for the war and for the uncivilized war crimes." 9 Similar sentiments were expressed by leaders of both major political parties and incorporated into a concurrent resolution unanimously adopted by the U.S. Congress in the spring of 1945 at the urging of California Congressman Cecil King. Two leading American jurists who participated in the trial were committed to the creation of a record that would lay out in persuasive detail the Nazis' foul history. Supreme Court justice Robert jackson, who was selected to head the U.S. prosecutorial team, declared in ajune 1945 report to President Harry Truman: "Unless we write the record of this

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movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence." 10 These sentiments were echoed in the memoirs of former Attorney General Francis Biddle, who was chosen to serve as the U.S.-designated lead judge at the trial. 11 The goal of establishing a detailed record of the Nazi government's reprehensible history required the compilation and presentation of a massive trial narrative. The story not only covered a wide range of criminal conduct by numerous Nazi organizations over a dozen years all across Europe but also had to provide authentic documentation that could withstand the most rigorous scrutiny. The trial became a gigantic project focused not solely on individuals and the crimes they committed but on the Nazi system as a whole. Prosecutors sought documentary proof because material created by the Nazis themselves would be the most difficult to discredit. Written records made by Hitler's forces were better than witnesses, who might suffer lapses of memory on the stand and were vulnerable to charges that they were trying to curry favor or escape responsibility. Paper trails rather than human narratives were more likely to forge the unassailable record that Stimson, Roosevelt, Jackson, and Biddle all sought. The desire for a record of National Socialist criminality implied a set of evidentiary restrictions as well. Two sorts of proof were considered irrelevant in light of the Allies' goals. Evidence that sought to explain, excuse, or justify Nazi misdeeds would be inadmissible. The record the Allies sought to create was not a dispassionate historical assessment of the period between the end of the First World War and 1945; it was, rather, conceived as a catalogue of the Nazi criminal conduct that had warranted Allied action. Evidence of Allied war crimes was also ruled out of order. The tribunal was designed to concentrate on Nazi misbehavior; the actions of the Allies were irrelevant. The advocates of an international tribunal wanted to get the proceedings under way in the most expeditious manner. Roosevelt and Stimson recalled that delay after the First World War had contributed to the failure to prosecute the kaiser and the frustration of the Leipzig trials. The sense of urgency that prevailed in official circles led to an inclination to begin proceedings before worrying about procedural niceties; these might be addressed on an ad hoc basis as the need arose. At the same time, the Allies were motivated by domestic and international political considerations to ensure that the tribunal complied with basic AngloAmerican guarantees of procedural rights. The American public seemed to demand a trial that had the essential elements of an American criminal prosecution-as Stimson put it, "at least the rudimentary aspects of

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the Bill of Rights." The desire for a full-dress trial tapped into strongly held (if, perhaps, naive) American beliefs about the role of morality and law in world affairs, which George Kennan called America's "legalisticmoralistic" mind-set, 12 an approach he thought unworkable in the conflict-riven and power-obsessed world of international relations. Coupled with these domestic considerations was an international one: a jointly conducted trial would serve as an expression of solidarity and mutual respect among the victorious Allies. Such an undertaking provided a means for the United States and the USSR to work together to help establish a new world order, a goal that became increasingly important as tensions between the Allies began to mount with the approach of victory in Europe.

Outlining Process On August 8, 1945, the Allies signed a formal document, called the London Agreement and Charter, outlining an international tribunal to prosecute Nazi war crimes. Negotiations among the four governments had taken place over three months that spring and summer. First came a concerted American effort to persuade the British to abandon their insistence on summary executions. President Roosevelt's special emissary, Judge Rosenman, obtained British assent to a tribunal. Negotiations were temporarily interrupted by Roosevelt's death on April 12, 1945. His successor, Harry Truman, a former judge, enthusiastically embraced the project. Truman instructed Rosenman to attend the U.N. conference in San Francisco, where he hoped that an agreement regarding the international tribunal could be reached. Between May 2 and 10, the Allies reviewed the question and tentatively agreed to formulate a plan. Simultaneously, on May 2, 1945, President Truman appointed Justice Robert Jackson of the U.S. Supreme Court as the head American prosecutor, called chief of counsel. 13 The appointment of so prominent and highly regarded an American jurist as chief prosecutor sent a clear signal that the United States was committed to an international tribunal. The tribunal's character and procedure were defined over six weeks in negotiations that began in London at the end ofjune 1945. The four powers were represented by high-ranking officials, including Robert Jackson on behalf of the United States. The process took fifteen intense bargaining sessions. Because the four prosecuting parties-the United States, Great Britain, France, and the Soviet Union-had significantly different legal systems, each had to surrender some aspects of its national procedure. The Soviets, in particular, were not predisposed to favor a trial conducted along Anglo-American lines but preferred a public recitation of the defendants' crimes followed by the imposition of

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predetermined death sentences. As the lead Soviet negotiator, Major General I. T. Nikitchenko, put it: "We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea [Yalta] declarations." 14 Jackson was horrified by this suggestion and intimated that the Americans and Soviets might not be able to reach an agreement. Telford Taylor, one of the ranking members of the American prosecution team, suggests in his retrospective analysis of the trial that Jackson's deep and abiding suspicion of the Soviets may have led him to seek to sabotage the negotiations so that the Americans and British could go it alone and avoid the taint of Soviet participation. 15 The American, British, and Soviet heads of state were unwilling to abandon a joint trial and said so in the plainest terms in an August 2, 1945, communique from Potsdam, Germany. Facing substantial pressure from their respective governments, the negotiators reached an accord that was set forth in a two-part document. Article 2 of the London Charter declared that the International Military Tribunal would consist of four member judges and four alternate judges designated by each of the four signatory powers. The term "military" was used to distinguish the tribunal from any existing court system and to indicate that it was the product of the powers that had defeated Nazi Germany through force of arms. The tribunal was intended to be a court of the victors, not a forum of neutral parties, a representative of the international community, or a court of the reconstructed nations. The IMT judges were the designated representatives of their governments and sought a sort of justice that reflected their own traditions. While the objective was a fair trial whose legitimacy would be beyond question, the prosecution was to be undertaken and judgment to be rendered by the powers that had won the war and defeated Nazism. The charter incorporated the goal of telling the sweeping story of twelve or more years of Nazi oppression across Europe. Article 6 defined three categories of crimes to be prosecuted: "crimes against peace," "war crimes," and "crimes against humanity." The first charge included the "planning, preparation, initiation or waging of war of aggression." By this definition, all the momentous events of World War II from the German invasion of Poland in 1939 were rendered grist for the IMT' s mill. "War crimes" encompassed acts that transgressed "the laws or customs of war," including "murder or ill-treatment" of civilian populations or prisoners of war. The third category, "crimes against humanity," included actions that Nazis had committed both within Germany and in occupied nations. This heading encompassed such Nazi misdeeds as "murder, extermination, enslavement, deportation, and

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other inhumane acts committed against any civilian population, before or during the war." The charter recognized the potential criminality of participation "in the formulation or execution of a common plan or conspiracy" to commit crimes covered by Article 6. The Americans hoped that the incorporation of the conspiracy concept would lead the court to hold the Nazis responsible for every wrong they had committed for as long as the party had been in existence. Although the court declined this invitation, the conspiracy charge opened the trial to the presentation of evidence of the widest possible scope. Virtually nothing the Nazis had ever done or said was beyond IMT purview. In the aftermath of the trial, the prosecutors underscored the singular enormity of their undertaking. In his final report to President Truman in October 1946, Chief of Counsel Jackson declared: "It is safe to say that no litigation approaching this in magnitude has ever been attempted.... We have documented from German sources the Nazi aggressions, persecutions, and atrocities with such authenticity and in such detail that there can be no responsible denial . of these crimes in the future .... No history of this era can be entitled to authority which fails to take into account the record ofNuremberg." 16 The conspiracy charge could not be made to stick, yet it enabled prosecutors to achieve their equally central objective of compiling a comprehensive record of Nazi atrocities. Article 9 of the charter authorized the tribunal to declare that any "group or organization of which [a convicted defendant] was a member was a criminal organization." While the defendants were to be tried for their own crimes, they were also viewed as representatives of or stand-ins for the organizations with which they were associated. So significant was this representative function that Article 9 directed that members of targeted organizations who were not charged be allowed to seek "leave to be heard by the Tribunal upon the question of the criminal character of the organization." The defendants' guilt was not theirs alone but to be ascribed to a host of others. Prosecutors were authorized to probe not just what the defendants had done but what their organizational associates had done along with them. Using the defendants in a representative capacity had both significant advantages and problematic implications. The prosecutors could mount a big case without involving an unworkably large number of defendants; all they had to do to bring a key organization before the tribunal was charge one of its members. Despite the convenience of using defendants as stand-ins for organizations, the strategy presented potentially serious conflicts. The selected defendant might be an arch-criminal, and his association with a particular organization might blacken that organization's reputation unfairly. Conversely, the individual defendant might

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have had only the most limited contact with a particularly vicious organization, so he might be unfairly associated with a criminal operation. Those who outlined the IMT's procedures assumed that the conduct of the defendants chosen would be congruent with that of the organizations on whose roster their names appeared and that the guilt of one could unhesitatingly be transferred to the other. These assumptions were untested and simplistic, and if they were invoked erroneously the entire approach could prove unfair to either the defendant or the organization with which the prosecutors associated him. In another move to facilitate the prosecution's pursuit of the big picture, Article 19 of the charter abrogated the application of "technical rules of evidence" and directed the tribunal to "admit any evidence which it deems to have probative value"-that is, affording proof of the charges under consideration. Under Article 21, the court was authorized to take judicial notice "of facts of common knowledge" as well as the contents of a vast array of U.N. documents and materials generated by "committees set up in various allied countries for the investigation of war crimes." These provisions opened the IMT to an unparalleled flood of documentary material. The usual protective barriers erected in Anglo-American courts against unreliable documentary evidence are the hearsay rule and the authentication requirement. Under the hearsay rule, many out-of-court statements (whether written or spoken) are banned because the material cannot be tested to ensure the speaker's sincerity, clarity, or soundness of perception, much less cross-examined to ensure the testimony's accuracy, veracity, and consistency. The authentication requirement insists that the authorship or origin of each proffered document be proven before it may be admitted. With a single sentence, the Allies did away with these protections. The Allies had captured a vast trove of German documents, detailing their own crimes, so there was intense prosecutorial pressure to introduce this material. In the absence of evidentiary restraints, the trial would be flooded with documentary proof. In its provisions regarding the scope of acceptable evidence, the charter adopted an approach to the prosecution that was implicit in the American proposals. While a troublingly broad range of evidence of Nazi crimes would be admitted, two kinds of potentially exculpatory evidence would be entirely excluded. The defendants would not be granted much latitude to offer historical explanations for Nazi policy or to demonstrate that the Allies had committed analogous war crimes. The IMT's proof-taking process was carefully structured to ensure that such matters would be deemed irrelevant. The Soviets in particular desired to avoid any reference to troublesome aspects of their own conduct, especially the partition of Poland, the invasion of Finland, and the

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treatment of prisoners of war. Article 6 offered a means of cutting off the defendants' attempts to introduce such materials by specifying that the trial was to be exclusively devoted to an examination of the wrongdoing "of the major war criminals of the European Axis countries." Everything else, especially Allied misdeeds, was by definition outside the jurisdiction of the IMT. As a follow-up to this rather general proposition, Article 18 declared: "The Tribunal shall (a) confine the Trial strictly to an expeditious hearing of the issues raised by the charges, (b ) take strict measures to prevent any action which will cause unreasonable delay, and rule out irrelevant issues and statements of any kind." These forceful injunctions highlighted the prosecuting nations' intention that the tribunal focus exclusively on Nazi offenses. The use of the words "strictly" and "strict"-terms that appear nowhere else in the charter, and indeed are an exception to its liberality of language regarding other rules of evidence and procedure-underscore this objective. The charter outlined a fundamentally Anglo-American adversarial approach to trial. In a criminal case conducted under the adversarial system, the government and the defendants, through the prosecuting and defense attorneys, are responsible for the selection, presentation, and examination of evidence, including both documents and witnesses. This system assigns judges a less active role than in a European-style, inquisitorial system, in which the judge directs the trial to ascertain the innocence or guilt of the accused. Judges presiding over trials conducted on an adversarial basis may ask supplementary questions and rule on the admissibility of evidence that is proffered, but they are not key players in the fact-gathering process. The adversarial nature of the procedure to be followed by the IMT is reemphasized in Article 16(e), which details several of the enumerated rights of the accused: "A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to crossexamine any witness called by the Prosecution." As jackson put it, the Americans and the British set out to follow "the general philosophy of our system." 17 In this respect, they certainly succeeded. Those alterations which were made to the adversarial approach were designed "to try these cases in a reasonable length of time and without undue difficulties." 18 In pursuit of expediency, the rules of evidence and the defendants' protection against self-incrimination were removed. The negotiators added two European-style inquisitorial elements to the trial: the setting forth of "full particulars" in the indictment and an opportunity for defendants to make unsworn and unexamined statements to the tribunal if they so chose. Neither of these provisions had a substantial impact on the fundamental character of the proceedings. The tribunal relied heavily on counsel for the selection, presentation,

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and examination of voluminous bodies of evidence. For the adversarial system to work fairly, counsel on the opposing sides must be more or less equal in skill and resources. The charter did little to address the issue of equality and vested the choice of defense counsel in the accused. It was doubtful that Nazis on trial in a shattered Germany could find counsel willing and able to press their cause vigorously. When the defendant Gustav Krupp sought the assistance of a British barrister, the General Council of the [British] Bar declared: "It is undesirable that a member of the English Bar should appear for the defense." 19 It appears that no American lawyers or other advocates trained in the adversarial system were approached or offered their services. The defendants were left to choose from German lawyers, inexperienced in the fundamentals of the system relied upon by the tribunal and fresh from the poorest imaginable training-twelve years of Nazi legal practice. This unbalanced adversarial arrangement, coupled with the asymmetrical rules of evidence, produced a system with significantly fewer protections for the accused than criminal trials in the United States or Great Britain. The tribunal was open to a flood of written materials designated by the prosecution. Beyond a broad outline of procedure, stipulations allowing a great deal of the prosecution's evidence to be admitted, and relevancy rules restricting potential offerings by the defense, the charter did little to fix the specifics of the procedure to be used in trying the case. Rather than take the time required to sort out in advance the most important procedural questions that might arise, the planners, by Article 13, vested the tribunal with the power to "draw up rules for its procedure." In October 1945, shortly before the trial began, and again in February 1946,just before the defendants began their presentations, the IMT promulgated procedural rules. This ad hoc, or spur-of-themoment, approach to rule-making eliminated lengthy pretrial negotiations about procedure, but it rendered the tribunal vulnerable to charges that the rules it put in place were motivated by expediency or bias rather than by disinterested notions of fairness. The rules the court fashioned were bound to reflect what the judges felt was necessary in light of what was happening at trial. Dispassionate rule makers divorced from the press of immediate business and insulated from the substantive issues involved were nowhere in sight. Judges appointed as representatives of the countries prosecuting the case formulated its rules in the midst of the trial. It was a legitimate matter of concern that they might draft rules that would make their jobs easier or be of particular assistance to their governments pressing the charges. The wide-ranging nature of the charges, the potentially vast array of proofs, and the looseness of the rules of evidence; the felt need for a speedy resolution, which stood in contradiction to the demand for

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scope; the tension between the individual and representative roles of the defendants; the imbalance of experience and resources between defense counsel and prosecutors; and the ad hoc formulation of procedural rules all put enormous pressure on the judges to keep the trial fair. So much was left to their discretion that they could steer the case, more or less, as they saw fit. The judges faced few formal constraints and no appellate review. Their integrity and skill would determine whether the accused were given an honest hearing or a Soviet-style show trial. This situation stands in strong contradiction to the Anglo-American model of judges playing less directive roles and exercising less power than in European inquisitorial proceedings. The selection of judges was driven as much by political considerations as by a search for excellence. The Americans chose former Attorney General Francis Biddle as their representative to the tribunal and Judge John Parker as his alternate. In political terms, the two were a balanced pair: Biddle was a highly placed Democrat who had served in the Roosevelt cabinet and Parker was a Republican federal appeals court judge who had been nominated to the U.S. Supreme Court. Both were highly skilled lawyers, but both also presented difficulties. As attorney general, Biddle had helped fashion the proposal that led to the IMT's establishment, creating some question about the propriety of his sitting. Moreover, Biddle had only a few months of judicial experience. He was more accustomed to the rough-and-tumble of partisan politics, and throughout his service on the IMT he used a clipping service to keep abreast of American press coverage and popular sentiment about the trial-an unseemly approach for a judge. Biddle's selection was a political consolation prize because Truman had asked him to resign as attorney general within six weeks of assuming the presidency. Parker was regarded as a jurist of great skill, but his reputation had been tarnished by the Senate's rejection of his nomination to the U.S. Supreme Court on the basis of one of his rulings concerning labor unions. (Parker had been nominated by President Herbert Hoover in 1930.) He was a somewhat parochial figure, unschooled in international affairs. The judges chosen by the British and the Russians were also problematic. Virtually everyone seemed to agree that the first British selection, Norman Birkett, was an outstanding lawyer and a fine choice for the IMT. Late in the process and at the insistence of the British Foreign Office a law lord, or more senior judge, was given the lead position while Birkett was relegated to the alternate's chair. Lord Geoffrey Lawrence was a judge of middling reputation, who at sixty-six was nearing the end of an undistinguished career. His selection created the possibility ofjealousy within the British ranks and, to all appearances, did little to strengthen the bench. The USSR selected General I. T. Nikitchenko,

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who had not only helped negotiate the IMT charter but also served as the Soviets' chief prosecutor until shortly before the trial. The blurring of the line between prosecutor and judge was deeply disturbing. These judges were joined by two unremarkable French jurists, Donnedieux de Vabres and Robert Falco. In their hands lay not only the fate of the accused but also the fairness, and therefore legitimacy, of the international tribunal.

Choosing Defendants The idea that the trial was to focus not just on individual defendants but on the entire Nazi regime throughout its twelve years in power was underscored by the selection of Nuremberg, Germany, as the trial venue. Nuremberg had been the epicenter of the Nazi movement. In its streets and stadiums jubilant Nazis had marched and rallied. These celebrations were immortalized in Leni Riefenstahl's film, Triumph of the Will, which was viewed by millions worldwide as a display of the essence of National Socialist identity. In 1935, also in Nuremberg, the Nazis had promulgated their anti:Jewish laws and begun the process leading to the "final solution of the Jewish problem." At Nuremberg, Nazism itself was put on trial. In early July 1945, before the London Charter had been concluded, Robert Jackson visited Nuremberg in his search for an appropriate trial site. It offered a number of significant attractions. While much of the city was in ruins, it had an intact courthouse and jail adequate to meet the demands of a large-scale trial. It was located in the American-controlled sector of Germany, and, perhaps most significant, it had a powerful symbolic connection to the rise of Nazism. This combination of the practical, political, and symbolic led Jackson to propose it as the best location for the trial. The British and French agreed. The Soviets argued in favor of Berlin, Germany's historic capital, which was located within their zone of control. In a compromise, Nuremberg was selected as the site for the first trial and Berlin was designated the permanent seat of the tribunal. Because of the deteriorating postwar political climate, the IMT conducted no further trials so the tribunal became perpetually identified with Nuremberg. Allied insistence on narrating a vast and emblematic story shaped the designation of defendants. Choosing whom to prosecute was a contentious process, with proposals ranging from a handful of big names to groupings as large as several hundred. One of the most significant steps toward the finalization of a roster of defendants came on June 21, 1945, when the British put forward to their American counterparts a list of ten potential defendants: Hermann Goring, Joachim von Ribbentrop,

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Chapter I

Rudolf Hess, Robert Ley, Wilhelm Keitel, Julius Streicher, Emst Kaltenbrunner, Alfred Rosenberg, Hans Frank, and Wilhelm Frick. The list contained three of the most prominent surviving Nazis for much of the war. Goring was Hitler's second in command, von Ribbentrop was Germany's Foreign Minister; and Hess was Hitler's closest confidante until his unauthorized flight to England in 1941. The other defendants were selected as much for the ideas, groups, or organizations they represented as for their personal criminal conduct. As the leader of the Germari Labor Front, Robert Ley was responsible for the suppression of independent labor unions. Field Marshall Keitel was the chief of Hitler's military staff and a figurehead for the armed forces. Streicher was the most persistent publisher of virulently anti-Semitic materials in all of Germany. His limited-circulation newspaper, Der Sturmer, was considered extreme even by Nazi leaders. Kaltenbrunner was the highest-ranking survivor of the SS and Gestapo after Heinrich Rimmler's suicide and Reinhard Heydrich's assassination. Rosenberg was a leading Nazi Party ideologue. Hans Frank had been Hitler's lawyer and then govemor-general of occupied Poland. As minister of the interior, Wilhelm Frick was responsible for various police functions. The crimes committed by members of this second group of defendants were neither unique nor widely known. They were distinguished by the organizations to which they belonged and the doctrines they espoused. Their status as symbolic representatives becomes especially clear given that they had all been named by the end of June 1945, more than a month before the crimes to be prosecuted by the IMT were specified in the London Charter. The Americans agreed with the British selections but proposed five more defendants: Hjalmar Schacht, who headed the Reichsbank and served as minister of economics before the war; Arthur Seyss-Inquart, an Austrian Nazi leader appointed commissioner of occupied Holland; Admiral Karl Donitz, the last chief of the Nazi Navy and Hitler's designated successor as head of state; Walter Funk, Schacht's replacement at the Reichsbank; and Albert Speer, minister of armament and munitions during the later stages of the war. None of these men was well known, nor had any committed especially notorious crimes. However, most were important as representatives of groups that were not included in the original British list. Schacht and Funk were the Nazis' bankers; they and others like them arranged the financing Hitler needed for his aggressive designs. Seyss-Inquart had paved the way for Hitler's seizure of Austria in the Anschluss by betraying his country to his Nazi brethren. Speer was one of the chief engineers of the German war economy. The French and the Soviets made several additions to this list, more to demonstrate that they too brought prisoners to the trial than because of the defendants' positions or crimes. The French supplied Constantin

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von Neurath, one-time foreign minister; the Soviets, Hans Fritzsche, a member of the propaganda ministry, and Admiral Enrich Raeder of the German Navy. As the selection process neared its end, Robert Jackson described its objective: "Our idea has always been to clean up most of these people in one trial, in that trial to get representatives of the SS, the Gestapo, etc., perhaps less than fifty defendants, perhaps more than twenty, convict them and secure the finding of the criminality of the organizations and groups. " 20 One category the Americans were eager to add to the list was German industrialists. Jackson proposed Alfried Krupp, the scion of the worldfamous armaments-industry family who, in the early 1940s, had taken over control of the munitions maker from his father, Gustav Krupp von Bohlen und Halbach. The other prosecution teams were sympathetic to Jackson's objective but thought Gustav Krupp was the better choice as a defendant because of his early support for Hitler and his importance during the 1930s when the alleged Nazi conspiracy was getting under way. Without careful scrutiny of the two men involved, Gustav Krupp, rather than his son, Alfried, was added to the indictment. By early October, the list was closed. It contained a total of twenty-four names, including that of Martin Bormann, Hitler's confidante, who was missing and presumed dead; the Nazi Youth leader, Baldur von Schirach; Fritz Sauckel, head of the Nazis' foreign forced labor program; Alfred Jodl, chief of operations for the military; and Franz von Papen, who had been Hitler's vice chancellor in 1933 and 1934. Robert Ley committed suicide on October 24, 1945, so twenty-two defendants stood trial. The organizational stand-ins, group representatives, and symbolic defendants assembled by the Allied prosecutors resisted playing their assigned roles. From the outset, a number of defendants, or their counsel on their behalf, fought to be seen not as symbols but as individuals with particular backgrounds and personal problems that could not be ignored. Julius Streicher, Rudolf Hess, and Gustav Krupp all secured remarkable recognition of their individuality rather than their representative function. Counsel for Streicher and Hess petitioned the tribunal, asserting that these men were of unsound mind and could not effectively assist in their own defense. Over Streicher's objection, his lawyer, Dr. Hanns Marx, requested that the anti-Semite's sanity be evaluated. Soviet interrogators had found the defendant's rantings so grotesque that they joined in Dr. Marx's request. The tribunal appointed a panel of three physicians to examine Streicher. They concluded, in the words of the American Army psychologist, G. M. Gilbert, that although the accused suffered "neurotic obsessions, he was not insane." 21 Hess's case was more complicated. His sanity had been open toques-

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tion since his bizarre flight from Germany to Britain in 1941 on an unauthorized peace mission. The doctors who had examined him during the war concluded that he exhibited "unmistakable delusional symptoms. " 22 Hess had attempted suicide twice while detained in England. His lawyer, Dr. Gunther von Rohrscheidt, requested a psychological examination. At that point, Hess claimed to recall virtually nothing of his Nazi past because of an apparent case of amnesia. The tribunal appointed a panel of four experts to examine Hess. Their assessment was not available until November 30, several days after the trial had begun. The IMT judges held a rather lengthy hearing to consider the doctors' reports, which noted that Hess suffered mental problems but concluded that he was competent to stand trial. At the hearing's end, Hess surprised both his counsel and the tribunal by declaring: Henceforth my memory will again respond to the outside world. The reasons for simulating loss of memory were of a tactical nature. Only my ability to concentrate is, in fact, somewhat reduced. But my capacity to follow the trial, to defend myself, to put questions to witnesses, or to answer questions myself is not affected thereby. I emphasize that I bear full responsibility for everything that I did, signed or co-signed. My fundamental attitude that the Tribunal is not competent, is not affected by the statement I have just made. I also simulated loss of memory in consultations with my officially appointed defense counsel. He has, therefore, represented it in good faith.2 3

These protestations notwithstanding, many onlookers found Hess a problematic figure whose odd behavior at trial belied his claims to having feigned mental illness. Captain Gilbert, the American Army psychologist, thought him the victim of "a hysterical reaction" who sought "refuge in amnesia. "24 Although Streicher and Hess were prosecuted, the immediate evidence of their personal demons raised questions about them standing in for or representing anyone, even themselves. The question of treating individuals as representatives of groups was most powerfully presented in the case of Gustav Krupp. There were serious indications that Krupp, who was bedridden, was incontinent, and had suffered several strokes, might be unfit to stand trial. The tribunal was so concerned about the question that it sent an observer to assess Krupp's condition when the indictment was served. James Rowe, an aide to Judge Biddle, reported that Krupp was in no condition to participate in a trial. The tribunal then sent a medical commission to examine Krupp, which agreed that he was unfit. In light of all this, on November 4, 1945, Krupp's lawyer, Dr. Theodor Klefisch, moved that the proceedings against Gustav Krupp be suspended. Robert Jackson was deeply upset by the prospect of Krupp's removal

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from the case. At a meeting held on November 9, according to Telford Taylor, Jackson said public opinion in the United States would not allow his assuming the responsibility for the situation which resulted from the sickness of Gustav Krupp. He would have to tell the United States public that the American Delegation were outvoted by a three to one vote on the question of joining [i.e., indicting] industrialists. The firm of Krupp had made weapons for four generations and it was their weapons that had made Europe a battleground .... Krupp typified the sinister forces which he, Mr. Justice Jackson, was sent to Europe to punish .... He could see only two ways out: (1) To try Gustav in absentia; (2) To insist on the substitution of Alfried.25

Jackson was so wedded to the concept of trying a representative of the German arms industry, and the Krupp works in particular, that he was willing to propose two solutions that most onlookers immediately branded as unfair and improper. Jackson formalized his position in a November 12 brief to the tribunal. Argument on the matter was heard by the tribunal on November 14. The head of the British prosecution team, Sir Hartley Shawcross, appeared deeply troubled by Jackson's abandonment of fair play in prosecuting representatives of Nazi economic interests. In his oral presentation, Shawcross mentioned the possibility of trying Gustav Krupp in absentia, but he drew the line at the substitution of Alfried for Gustav Krupp. In a widely quoted rejection of that proposal, the British attorney general had declared: "This is a court of justice, and not a game in which you can play a substitute, if one member of a team falls sick. " 26 The judges were appalled by Jackson's argument. The British, in particular, deemed his proposals "shocking." 27 In his memoirs, Judge Biddle described the substitution idea as "extraordinary" and deserving of condemnation.28 On November 17, the tribunal rejectedJackson's requests and removed Gustav Krupp from the case. Why did Jackson, a demonstrably fair-minded lawyer who was sensitive to issues of due process in other contexts, err so badly in this instance? His remarks, both in and out of court, make clear that he saw Gustav Krupp not as an individual but as a symbol of Germany's arms industry, which he sought to hold responsible for the war. Fairness to an accused yielded to the perceived need to present the industrial chapter of the story of Nazism. The stakes in Gustav Krupp's dismissal from the case were far greater than the severance of a single defendant. Sensitive to the conflict between treating defendants as representatives of groups on the one hand and fair play to a named defendant on the other, the tribunal insisted on an individualized justice that took into account the personal situation of the accused. The tension between representation and

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individuation was woven into the fabric of Nuremberg and posed problems for the prosecutors and judges throughout the proceedings.

The Prosecution The trial began on November 20, 1945. Robert Jackson made the opening speech on behalf of the American prosecution. Jackson's presentation was acclaimed as among the most moving, persuasive, and candid legal arguments his listeners had ever heard. In bold strokes, Jackson painted a vivid picture of twelve years of Nazi criminality. He emphasized that the essential proof of the Nazis' bestiality would come from their own archives and quoted from some of the most compelling documents. To his credit, Jackson did not gloss over fundamental criticisms of the IMT. In response to the complaint that the trial was tainted by its status as victors' justice, Jackson said: There is a dramatic disparity between the circumstances of the accusers and the accused that might discredit our work if we should falter, in even minor matters, in being fair and temperate. Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals.... We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.29

It was with these documentary proofs and this commitment to justice that Nuremberg began.

The Documentary Case By the agreement of the four prosecuting nations, the American prosecution team then began to present its evidence on Count I, the common plan or conspiracy charge. The conspiracy the Americans sought to prove involved the named defendants and the whole Nazi leadership in an agreement to commit crimes against peace (Count II), war crimes (Count III), and crimes against humanity (Count IV). The American presentation necessarily overlapped with the issues to be addressed by the other prosecuting nations, the British regarding crimes against peace and the French and Soviets regarding both war crimes and crimes against humanity in Western and Eastern Europe, respectively. The American case, as originally conceived, was to be based primarily on incriminating Nazi documents. Colonel Robert Storey, the chief architect of the documentary strategy, described to the tribunal how the documents to be presented had been seized, analyzed, and authenti-

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cated. He bolstered his presentation with the affidavit of Major William Coogan, who had run the field branch of the documentation division. Major Coogan did not appear, and his affidavit was the first of many used by the prosecution in lieu of live testimony. Storey informed the judges that the Americans had culled some 2,500 documents from the hundreds of thousands reviewed and placed them in a courthouse repository. The American prosecutorial team proposed to present its case in a series of thematically organized document books. Each set of documents would be accompanied by a written brief explaining the significance of the material, and the American lawyer offering each document book and written brief would make a speech summarizing its contents for the tribunal. At the conclusion of the introductory sketch, Colonel Storey turned the prosecution's case over to his co-counsel, former Navy Commander Ralph Albrecht, who described the structure of the Nazi Party and Nazi government for the tribunal. With the help of two large charts and statements from seventeen of the defendants, Albrecht outlined the organization of Hitler's government and the place of the defendants in that government. With this framing evidence in place, the American prosecutors began submitting their substantive proofs. Major Frank Wallis outlined the rise of Nazism from the street fighting of 1921 to absolute control of Germany on the eve of war in 1939. Major Wallis declared that the documentary evidence he was submitting was "beyond challenge by the defendants" and material of which the tribunal should "take judicial notice." 30 Exploiting the liberal rules of evidence to their fullest extent, the American prosecutor offered a torrent of documents accompanied by Major Wallis's remarks, which, in turn, were buttressed by more extensive argument in the trial brief. The documents themselves were not read in open court, so what the judges received was, in essence, a summary (by Major Wallis) of a summary (set forth in the trial brief) of a raft of documents that would require laborious examination. Jackson later boasted that 331 documents had been introduced during the first four hours of trial. 31 Defense counsel found themselves in an extremely difficult position. They were hearing about the American prosecutors' evidence for the very first time. What limited materials they received were provided in English rather than their native tongue-or even the original language in which many of them were written. This procedure did not produce the effect that the Americans hoped it would. The documents lost significance as they tumbled into evidence in huge books. The grand themes of the case were drowned by the flood of documents and counsel's droning summaries. The tribunal could not

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digest, let alone appraise, the information provided. The frustrated judges began to feel that there was an element of unfairness in the American prosecution's approach. The president of the tribunal, Lord Justice Geoffrey Lawrence, interrupted Major Wallis to inquire whether defense counsel had been given the document books and briefs. Wallis said six mimeographed copies had been deposited in the defendants' document room. Lawrence directed that each defense counsel be provided a copy, and Wallis agreed. When Lawrence later returned to this question, defense lawyers informed him that they were still having difficulties getting copies (although more than two hundred copies were being provided to the press) and that what they were being given had not been translated into German. Despite assurances of a remedy, the problem continued to fester. Mter Major Wallis finished, Thomas Dodd rose to present the American documentary case on the Nazis' "economic preparation for aggressive war." 32 When he had concluded, President Lawrence refused to accept the proffered documents until defense counsel had had an opportunity to examine them. The Americans' failure to provide and translate documents loomed ever larger as an impediment to the prosecution. The document crisis came to a head on the afternoon of November 23, when American prosecutor Sidney Alderman sought to offer evidence of the Nazis' conspiracy to initiate and wage aggressive war. Alderman had carefully prepared his presentation and had a clutch of powerful documents regarding Hitler's intention to mount a war of conquest. When Alderman offered the defense a single copy of these materials, defense counsel Dr. Rudolf Dix, who represented Schacht, declined to accept them because the prosecution had not complied with President Lawrence's directions about copies and translations. Alderman was ready for this eventuality and proposed to the tribunal: "If Your Honor please, may I make this suggestion .... I expect to read the pertinent parts of the documents into the [interpreting] system so that they will go into the transcript of record. Counsel for the German defendants will get their transcripts in German; our French and Russian Allies will get their transcripts in their language, and it seems to me that that is the most helpful way to overcome this language barrier." 33 This proposal solved the translation problem, but it did not resolve the matter of copies. President Lawrence adjourned the tribunal so that counsel for the two sides could meet over the weekend and reach a compromise. On Monday, November 26, Lord Justice Lawrence announced a new set of procedural rules. Only those parts of documents read and, hence, translated in open court would be treated as part of the record. The prosecution was required to deposit at least one copy of each document in German. LordJustice Lawrence also increased the prosecution's fil-

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ing obligations concerning briefs and other materials. These rules finally laid the document question to rest, but slowed the American presentation even further. All key documents now had to be read into the record, and briefs could no longer substitute for argument to the tribunal. The plan for a fundamentally documentary case had been seriously burdened. The loose rules concerning prosecution evidence had been exposed as an invitation to unfairness that could deprive the court of an intelligible presentation and defense counsel of an opportunity to respond. To its credit, the tribunal recognized these problems and imposed restraints to curb them. Soon after the Americans resumed their documentary case for conspiracy in early December, the presentation was interrupted, by prior agreement between the prosecution teams, so that the British could make their presentation on Count II, the waging of aggressive war. The British offered only documentary material: nonaggression treaties and Nazi documents displaying the steps taken to break those treaties. This presentation was not troubled in the way the Americans' had been, for the British had a far clearer and narrower job than their American counterparts. The British were required to prove the breaking of treaties leading to aggressive war rather than demonstrate a sprawling, twelveyear conspiracy. Proving the existence of a common plan required not only proof of improper actions but evidence of the mental attitudes and intentions of various defendants, a proposition that was difficult to prove. Mter the British had concluded, the Americans resumed their presentation of evidence regarding the Nazi conspiracy to commit war crimes and crimes against humanity, as well as proof regarding the criminal conduct of the six organizations charged in the indictment. The documentary proof of war crimes and crimes against humanity was particularly damning, featuring vivid evidence of Nazi barbarity toward slave laborers, concentration-camp inmates, the Jewish people, and prisoners of war. The Americans then turned their attention to the SS, SA (the socalled Storm Trooper organization, which declined into insignificance after 1935), Gestapo (the Secret State Police), SD (the Sicherheitsdienst, or Security Service), Reich Cabinet (a moribund governmental body with some legislative responsibility that had not met since 1937), and general staff of the German Army. Colonel Storey, who handled most of the organization proof, appeared not to know his documents or, perhaps, to be overwhelmed by them. The judges asked increasingly sharp questions and expressed serious frustrations with the prosecution's presentation. It became clear that one of the targeted organizations, the Reich Cabinet, was a virtual nonentity. By the time the case was

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adjourned on December 20 for the Christmas recess, the American prosecutors had been roundly criticized by the tribunal. The American conceptualization of a grand trial that canvassed vast amounts of history and convicted the Nazi regime in its entirety made a documentary case necessary. The lax rules regarding authentication, hearsay, and relevance opened the floodgates to a torrent of written proof. The results were predictably disastrous. A documentary case could be persuasive, as the British case on the second count, waging an aggressive war, had been, but a narrow legal question, deliberate focus, and prosecutorial discipline were essential. The Americans had none of these: the conspiracy charge they sought to prove was diffuse, they were not committed to a tightly drafted set of accusations, and the myriad of documents they uncovered overwhelmed their capacity for self-discipline. Documentary cases like that undertaken by the American prosecutorial team are, by their nature, likely to be dull and difficult to follow. The prosecutors know what they want to prove and what documents they have to prove it. The judges have none of this beforehand but must listen patiently as the documents are tediously strung together. If the presentation is not constructed very carefully, the case rapidly becomes confusing. These problems are almost unavoidable. They were compounded at Nuremberg because the case focused on Hitler and the Nazi government rather than on the defendants. American prosecutors were intent on convicting a government that was gone and a leader who was dead. Their presentation was ill fitted to the twenty-one men in the dock whose fate still hung in the balance. Drexel Sprecher, who served on the American prosecutorial team at Nuremberg, raised another important point regarding a documentary case with few evidentiary constraints. As Sprecher tells the story in his 1999 book about the trial, he placed into evidence what appeared to be a 1938 pamphlet found among the files of defendant Rosenberg. The pamphlet described some anti-religious activities of the Hitler Youth organization. Two weeks after the document was admitted, a defense lawyer, Dr. Fritz Sauter, informed Sprecher that this was a "black document" fabricated by the Allies or their sympathizers to tarnish the Nazis' reputation. 34 Upon further examination, Sprecher agreed that the document was a fake and informed the tribunal, so the pamphlet was struck from the record. Because of the lax rules of evidence and the large number of documents offered, the pamphlet had easily gained admission. A less careful or less scrupulous prosecutor might have left it there. A documentary case without strict evidence controls is vulnerable to such material, and a conviction might be built on a few such pieces, introduced either intentionally or inadvertently. The Allied prosecutors produced an array of powerful proofs of the

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charges levied against the Nazi regime. While it is open to question whether mass atrocity cases should ever be built so single-mindedly on documentary material, the Nazis' own words about their criminal plans were an essential part ofthe prosecution's presentation. From the documents, the world had clear proof that by 1937 Hitler was planning an aggressive war to conquer the nations surrounding Germany. The documentary evidence disclosed Rimmler's admission of the SS's program for Jewish "extermination" and Hans Frank's 1941 public declaration: "As far as the Jews are concerned, I want to tell you quite frankly that they must be done away with one way or another.... We must annihilate the Jews, wherever it is possible. " 35 Documentary material demonstrated the Nazis' criminal treatment of prisoners of war, for example in the socalled Commissar Order directing the execution of Soviet prisoners who had political responsibilities or were Jewish. The mounting evidence demonstrated the Nazis' guilt through their own words.

Film as Evidence When the Americans' presentation became bogged down by problems of evidence in late November, the prosecutors reinvigorated their case by showing a film documenting the horrors of the Nazi concentration camps. Telford Taylor said that the decision to screen the film at that moment "was dictated not by logic but by felt necessity." 36 The prosecutors had long planned to use film as evidence. When the Nuremberg courthouse was renovated in the summer of 1945 in preparation for the trial, a complete projection system was built in. Not only was the courtroom configured to display motion pictures, but special facilities were constructed so that the trial itself could be filmed. The strategy of using motion pictures was mapped out well in advance of trial, and a series of films had been carefully prepared. The first, Nazi Concentration Camps, was a professionally edited piece assembled from Allied armed-forces footage. The director, Lieutenant Colonel George Stevens, had been a prominent Hollywood director before the war, and, in the 1950s, he directed a series of classic films, including Shane, an Academy Award-winning western. The second film the Americans showed was an even more elaborate production, a four-hour collage of seized Nazi film depicting the rise of Hitler's Reich. These two films were followed by several shorter pieces with more specific trial-related objectives and then by a harrowing Soviet film, recording the Nazis' genocidal program in Eastern Europe, as well as several other Soviet documentaries. Jackson emphasized the photographic proof in his opening, informing the tribunal that the prosecution would show "these concentration camps in motion pictures" and that this material had a

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nightmarish character: "Our proof will be disgusting and you will say I have robbed you of your sleep." 37 The prosecutors' decision to present Nazi Concentration Camps on November 29 may have been something of an improvisation, but it had exactly the effects that were intended. The film graphically documented the revolting conditions American and British troops had discovered when they entered a series of concentration camps located primarily in Germany and Austria, including Buchenwald, Dachau, and Mauthausen. The film began by displaying on the screen two affidavits designed to assure the tribunal of the authenticity of the material projected. Director George Stevens's affidavit declared that the film was a genuine representation of the scenes it claimed to portray. The affidavit of E. R. Kellog stated that the original motion-picture footage had not been altered or distorted in any way. The film then detailed scenes from the Nazi concentration camps: the charred remains of a camp in Leipzig where hundreds of prisoners had been burned to death when their locked barracks were intentionally set on fire by Nazi guards; the woeful condition of prisoners who were starved or tortured by their captors. An interview with an American survivor of Mauthausen described the brutal methods used to murder inmates. The film concluded with a scene of British Army bulldozers pushing a mountain of corpses at Bergen-Belsen into a vast mass grave-an image that became synonymous with Nazi barbarity. The concentration-camp film had an electric effect on those who viewed it in the Nuremberg courtroom. The judges were shocked by what they had seen. President Lawrence immediately adjourned the proceedings for the day and, in his dismay, forgot to make his accustomed arrangements for convening the next session. The defendants were overwhelmed. Several openly wept during the screening, and virtually all viewed it as a crushing blow to their prospects at trial. Taylor concluded that the film "certainly hardened sentiment against the defendants. " 38 Both the prosecution and its Nuremberg audience found Nazi Concentration Camps staggering and unforgettable. Why did viewers respond so powerfully to the film? First, the motionpicture evidence confirmed the most damning accusations against the Nazis. Many of those who participated in the Nuremberg trial, including, by their own admission, Robert Jackson and Telford Taylor, had discounted the most serious charges of Nazi brutality on the theory that such claims had been exaggerated for wartime propaganda purposes. Discovering that virtually all the accusations were true and even understated was deeply shocking. The American prosecutors' dismay was probably intensified by a sense of guilt because of their own previous complacency and their nation's inaction.

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The images captured in the film, especially those of men and women reduced to the condition of hollow-eyed husks or lifeless bodies no more significant than stacks of cordwood, was entirely new in human experience. Such sights had never been shown before. They were a revelation of evil and suffering so profound as to force viewers to reconsider their understanding of human nature. Once seen, these images could never be forgotten. Many viewers remarked on the film's lasting effect. George Stevens's experience of creating Nazi Concentration Camps permanently altered his outlook as an artist; his postwar motion pictures embraced a far more pessimistic vision. 39 Why did the Allies choose to tell this heartrending story on film? The decision was spurred by the fundamental concerns that led the Americans to press for a public tribunal. In seventy minutes, the film told the vast, distressing tale of that paradigmatic Nazi institution, the concentration camp. Film provided a record of Nazi evil that was as incontrovertible as the Nazis' own documents but much more emotionally compelling. Apparently unmediated by witnesses, it displayed the appalling human consequences of Nazi crimes. The images captured on film would be harder to question than the testimony of live witnesses, whether victims or perpetrators. Photographs also provided insulation against an anticipated challenge from revisionists. Aside from all its instrumental purposes, film served as a vehicle for bearing witness to Nazi atrocities. Encountering the camps moved Allied generals, including Dwight D. Eisenhower, George S. Patton, and Omar Bradley, to a deep conviction that they must reveal the enormity of what the Nazis had done, The generals visited the camps, ordered their troops to do likewise, and compelled German civilians to confront the concentration-camp system's awful reality. Film was the nearest possible approximation of such personal witnessing that might be arranged for those involved in the trial at Nuremberg. There was, perhaps, something even more profound at work in the choice. The film displayed the ineffable evil at the heart of the Nazi system. Words were insufficient to describe what the Nazis had sought to do in the camps and the inconceivable implications of their racist ideology. It has become a commonplace of Holocaust scholarship that human language is inadequate to describe the "Final Solution." In 1945, when the prosecutors were among the first in the world to encounter this problem, the task must have seemed overwhelming. The use of an innovative medium to present unprecedented images in the courtroom must be understood, at least in part, as a struggle by hard-pressed lawyers to convey what they could find no words to describe. The Americans' reliance on the concentration-camp film created problems for the prosecution, despite its compelling power. Nazi Concen-

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tration Camps did not show any of the defendants committing criminal acts; all that could be seen was the aftermath of crime. The film indicted Germany as a whole more powerfully than it did any defendant in the dock. The camps were possible because the vast majority of Germans had loyally supported Hitler and remained silent as atrocities mounted. 40 In evidence law terms, the film was classically prejudicial: it hardened attitudes against the defendants because of things that were not shown to have been their doing and concerning which many were not charged. Moreover, the concentration-camp film was misleading. It was perceived as an accurate summary of the Nazis' war against the Jews, but the camps shown in the film were not the Jewish killing centers. These were located in the East and included such places as Auschwitz, Treblinka, and Sobib6r. The word "Jew" is uttered only once in the course of Nazi Concentration Camps. Nothing in the rules of evidence required the Americans to attest to the film's accurate representation of Nazi atrocities and the concentration-camp system. It was presented as a self-evident and overwhelming totality.

Packaging Testimony When American prosecutors felt the need to increase the credibility and intensify the power of their case they turned, first, to film. They were reluctant to rely on live witnesses. That reluctance was deeply rooted in the prosecution's attitudes about the case and reinforced by its experience in preparing for trial. The problems American prosecutors saw in a witness-centered strategy were most clearly displayed during a dramatic pretrial confrontation between Robert Jackson and General William Donovan, chief of the U.S. Office of Strategic Services (OSS). The general, who was a lawyer, had requested assignment to the Nuremberg trial team. His work focused on a search for witnesses. He entered into negotiations with the defendant Hjalmar Schacht, among others, about becoming a prosecution witness. Donovan was even rumored to have entertained overtures from Hermann Goring, the highest-ranking Nazi on trial. On hearing all this, Jackson directed Donovan to cease his efforts. Jackson feared that a deal with any of the defendants would undercut the integrity of the Nuremberg proceedings, as well as limit the tribunal's ability to punish defendants who testified for the prosecution. Moreover, the quality of the testimony obtained was likely to be poor as perpetrator witnesses tried to deny their responsibility or blame others. Jackson won his point and, on November 27, Donovan submitted his resignation at Jackson's request. Donovan's letter of resignation presciently detailed the key problems inherent in a case based almost exclusively on documentary and filmed

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evidence. "I have frequently told you squarely and honestly that (1) the case needed centralized administrative control. (2) that there was a lack of intellectual direction. (3) that it was not handled as an entity. (4) that because it was a lawsuit plus something else it needed an affirmative human aspect with German as well as foreign witnesses. " 41 The case at Nuremberg was "a lawsuit plus something else," so it needed a human face. Donovan was convinced that Germans as well as other Europeans should be heard to tell the full story of Nazi crimes. Jackson remained wedded to the documentary approach. He appeared to think of witnesses, particularly German witnesses, as unsavory and unnecessary. Yet, on November 30, 1945, the day after showing Nazi Concentration Camps, the Americans called their first live witness, German General Erwin Lahousen. General Lahousen had been a key aide to the German Counter-Intelligence Service (Abwehr) commander, Admiral Wilhelm Canaris, who was a secret opponent of Hitler's regime. In his official capacity, Lahousen had made a record of a series of meetings involving Hitler, Canaris, and a number of the defendants. Based on his notes of those meetings, Lahousen testified that the defendants Keitel and von Ribbentrop had helped fashion a plan designed to lead to the slaughter of thousands of Polish intellectuals, priests, and community leaders, a scheme to encourage anti-Semitic pogroms in Ukraine, and orders directing the murder or mistreatment of hundreds of thousands of Soviet prisoners of war. This devastating evidence incriminated specific defendants. In their cross-examination, the inexperienced German defense counsel were unable to repair the damage, committing a series of classic blunders, including repetition of the direct examination and reliance on long, unfocused questions. While Lahousen's testimony helped ·the Americans regain momentum, it demonstrated some of the prosecution's problems with live witnesses. The core of Lahousen's evidence was a series of written memos he had made between 1939 and 1941. He had little to say apart from what he had previously recorded, so the witness was little more than a conduit for the notes. This witness presented a documentary recital without much of "an affirmative human aspect." What is more, Lahousen was on the stand for a day and a half, an amount of time that alarmed the American prosecutors whose whole case took only twentynine days. (The British case, by comparison, occupied a mere seven days.) The Lahousen experience suggested that a witness-centered case might drag on for months, exacerbating the problems inherent in the sprawling trial. Moreover, Lahousen was a high-ranking officer in the German Army, and his testimony had self-serving elements. Lahousen claimed that his chief and patron, Admiral Canaris, who had been executed by the Nazis

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as a member of the July 1944 plot to assassinate Hitler, had argued against the atrocities being planned by the defendants and their fuhrer. Lahousen quoted Canaris as declaring: "One day the world will also hold the Wehrmacht [German Army], under whose eyes these events occurred, responsible for such methods. " 42 This statement may have helped the prosecution, but it also tended to exonerate Canaris, his Abwehr, and Lahousen himself. Witnesses closely identified with the Nazi cause would repeatedly advance self-serving or score-settling testimony. What use to make of such testimony was always an exceedingly difficult question. The problem of evaluation was compounded by defense counsel's inability to mount effective cross-examination. The Americans next resorted to live testimony in the presentation of Thomas Dodd, who adduced the American proof regarding concentration camps and strove to lend a human face to the horror. Before calling any witnesses, Dodd provided the tribunal with an affidavit by Andreas Pfaffenberger, who had been a prisoner at Buchenwald and observed a host of atrocities. The affidavit appeared to violate a previous court ruling rejecting the written statement of a witness who was within the jurisdiction of the tribunal and might be produced at trial. Taking the defendants' objection to the affidavit under advisement, the judges preliminarily decided that Pfaffenberger's written statement could be admitted so long as the witness was available to be called for cross-examination at the defense's request. Powerful testimony could thus be introduced without the expenditure of a great deal of court time unless the defense demanded live interrogation, an option that was extremely risky for inexperienced cross-examiners. Pfaffenberger's affidavit described how inmates had been murdered so that the decorative tattoos they bore could be torn from their corpses and used for ornamental purposes. Photographs of lampshades made of human skin were attached to the Pfaffenberger affidavit and tendered to the tribunal. Dodd moved from there to something even more horrifying, displaying in court the shrunken head of a Polish victim of the concentration camps. The basest of behavior was now being proven in open court with the most graphic of evidence. It was then that the Americans called their second live witness, Dr. Franz Blaha, who had been a prisoner in Dachau and had worked on the camp's medical staff. He had witnessed Nazi "experiments" resulting in the deaths of hundreds of inmates and seen the execution of vast numbers of Soviet prisoners of war. Blaha recalled visits to Dachau by at least six of the defendants. This incriminating proof was followed by still more evidence of mass murder. The prosecution followed up on this success not with another live witness but with the affidavit of Dr. Wilhelm Hoettl of the SS, an aide to Adolf Eichmann, who was in charge of the transport of Jews from West-

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ern Europe to extermination centers in the East. He declared in his affidavit that he had been told by his superior that four million Jews had been murdered in the death camps and two million more killed by the Einsatzgruppen, the mobile killing units that followed German troops on the Eastern Front with the objective of slaughtering Jews and communists. The affidavit involved multiple layers of hearsay: Eichmann was provided with figures by unnamed others, which he then repeated to Hoettl who, eventually, wrote an affidavit. Yet, the tribunal allowed the evidence. In permitting this evidence, the judges opened the door ever wider to material derived from sources other than live testimony. By general consensus, this second wave of atrocity proof, although not particularly well organized, had a substantial impact on the strength of the case against the defendants. Much of the advantage that had been won was forfeited, however, during the next week of trial as the Americans lamely struggled to marshal their case against the six Nazi organizations accused of corporate criminality. The effort to mount a documentary case against these organizations came to a halt on December 20, the last day of proceedings before the Christmas recess, with a withering barrage of criticism leveled by the judges at Colonel Storey for his lack of command over the elementary facts attested to by the mountain of documents. As they had before, American prosecutors decided to revive their flagging documentary case by turning to other kinds of evidence. Beginning on January 2, 1946, with a mixture of affidavits and live witnesses, they sought to demonstrate the horrors of the Nazis' war against the Jews. The Americans tried to control the information their live witnesses could impart by packaging it in affidavit form, thus rendering it document-like. This tactic evaded any exploration of the morally ambiguous position of a number of the witnesses. Defense counsel continued to prove maladroit at cross-examination. Live witnesses were deployed when needed to score a sensational point or to rescue a faltering prosecutor, but no careful or consistent approach to their testimony was developed. They remained little more than embellishment to the documentary evidence offered by the American prosecutors. On January 2, the American lawyers began with the affidavit of Hermann Grabe, a German civilian construction expert who had witnessed the carnage wrought by the Einsatzgruppen while working in Eastern Europe. His description of the destruction of the Rovno ghetto was one of the most powerful portraits of the Nazis' frenzied barbarism in the East. Grabe's affidavit, in part, stated: In the streets [of the ghetto] women cried out for their children and children for their parents. That did not prevent the SS from driving the people along the

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road at running pace, and hitting them, until they reached a waiting freight train. Car after car was filled, and the screaming of women and children and the cracking of whips, and rifle shots resounded unceasingly. . . . All through the night these beaten, hounded and wounded people moved along the [searchlight illuminated] streets. Women carried their dead children in their arms, children pulled and dragged their dead parents by their arms and legs down the road toward the train .... About 6 o'clock in the morning I [went into the ghetto] .... The doors of the houses stood open, windows were smashed. Pieces of clothing, shoes, stockings, jackets, caps, hats, coats, et cetera, were lying in the street. At the corner of a house lay a baby, less than a year old with his skull crushed. Blood and brains were spattered over the house wall and covered the area immediately around the child. The child was dressed only in a little shirt. 43

Grabe's affidavit captured the special attention of the judges and was quoted at length in their judgment, perhaps because it was provided by a witness who was neither a victim nor a perpetrator and had no apparent agenda to pursue. The Americans followed this powerful opening affidavit with a series of live witnesses, all selected to recapture the tribunal's attention by detailing genocidal atrocities. First was SS General Otto Ohlendorf, who had commanded Einsatzgruppe D for a year starting in June 1941. His candid and appalling testimony set forth the history, mission, and behavior of the Einsatzgruppen from their murderous beginnings in Poland to their extensive criminal campaign against the Jews of the USSR. Under Ohlendorf's leadership, Einsatzgruppe D had killed 90,000 men, women, and children. He showed that its activities were known not only to SS officials but to regular army personnel as well. Ohlendorf noted that in 1942, gassing vans were introduced in the East so that members of the murder squads would not personally have to shoot women and children, a task some seemed to find distasteful. Ohlendorf was the model Nazi, a zealot to whom orders were orders, right or wrong. That those orders required murder on a massive scale did nothing to deter him. With this witness, the Americans began to plumb the deepest depths of the Nazi psyche. Mter Ohlendorf came several other live witnesses who had been highranking Nazis and engineers of mass extermination. Dieter Wisliceny, who, like Hoettl, had been an SS assistant to Adolf Eichmann, described the operations that brought Jews from all over Europe to the killing centers in the East. Wisliceny was invited by his examiner, U.S. Army Lieutenant Colonel Smith Brookhart, to repeat Eichmann's blood-chilling boast that "he would leap laughing into the grave because the feeling that he had 5 million people on his conscience would be for him a source of extraordinary satisfaction. " 44 A third witness in this parade of atrocity evidence was General Erich von dem Bach-Zelewski, who, in 1942, had been made commander of operations against partisans on the

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Eastern Front. Under the questioning of Telford Taylor, General BachZelewski attested not only to Nazi directives that produced atrocities but also to the German Army's participation in a program that amounted to mass slaughter of civilians.

French and Soviet Prosecutions Mter the conclusion of the American and British cases, the French and Soviets presented their proofs regarding Count III (war crimes) and Count IV (crimes against humanity) in Western and Eastern Europe, respectively. The French began on January 17, 1946. Following the Americans' lead, they adduced a substantial body of documents. 45 As the indictment implied, the French case substantially overlapped with what the Americans had previously covered under the conspiracy charge. Over the sixteen days of the French presentation, the judges became increasingly impatient with their reiteration of American arguments. The French prosecution relied on a series of national reports about Nazi atrocities. Through these officially prepared compilations, the French placed into evidence the wartime suffering of the Danes, Norwegians, Dutch, and Belgians as well as the French themselves. Not only did the French case go over ground covered by the Americans, it also repeated itself, detailing the same categories of Nazi crimes in each Western European nation. In late January, evidently aware that their documentary case lacked intensity, French prosecutors turned to the presentation of graphic proof of Nazi violence and murder. The French described in excruciating detail the massacre of innocent civilians by SS troops in Oradour-surGlane, where hundreds of women and children were burned to death in a locked church after the men of the village had been systematically shot. The French moved on to a series of witnesses who had been victims of Nazi persecution. Unlike the witnesses presented by the Americans, most had personally suffered in the concentration camps. (Blaha was the only witness of this sort in the American case.) Maurice Lampe, for example, had been imprisoned at Mauthausen, where he had witnessed the torture and murder of forty-seven Allied airmen who had been worked to death over the course of two days in the camp's stone quarry. Madame Marie Claude Vaillant-Couturier, who had been held in Auschwitz and Ravensbriick, described the gassing deaths, epidemics, torture, forced sterilizations, and grotesque medical "experiments" that took place in those camps. Vaillant-Couturier's testimony was particularly noteworthy because it featured a disastrous attempt at cross-examination by Dr. Hanns Marx, serving as defense counsel for the SS. Marx took an aggressive tack, challenging the witness's credibility and the basis for her

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knowledge. Vaillant-Couturier was more than a match for the inept examiner. Her devastating testimony raised substantial questions about the wisdom of close interrogation of victims by defense counsel. The French also produced two physicians to describe the suffering inflicted in the camps from the medical viewpoint. Dr. Victor Dupont testified about conditions in Buchenwald and Dr. Alfred Balachowsky about both Buchenwald and Dora, where V-1 and V-2 rockets had been assembled. This series of witnesses described in chilling detail the evils of the Nazi concentration camps. They added evidence about such Nazi programs as "Nacht und Nebel" (Night and Fog), which was designed to arrange the secret abduction and murder of citizens from occupied nations as a means of terrorizing captive populations and removing potential opponents. The defendants' lawyers again proved inept when they attempted to cross-examine, and they app¥ently concluded that aggressive interrogation was not helpful to their cause. The French case seemed designed to show that the Nazis' atrocities in Western Europe were even more extensive than the American prosecutors had suggested. One remarkable absence from the French case was detailed evidence of the Nazis' genocidal program against the Jews. The Soviets began a well-crafted, fifteen-day presentation on February 8, 1946. They concentrated on Nazi atrocities in Eastern Europe, and, in contrast to the Americans and French, on the Jews, as well as civilians and prisoners of war. The Soviet prosecutors moved away from heavy reliance on documents, although they drew on reports by the USSR's Extraordinary State Commission and other Eastern European governmental investigative bodies. On the third day of their case, the Soviets sought to introduce the affidavit of German Field Marshall Friedrich Paulus, who had been captured at the end of the battle for Stalingrad. When defense counsel protested the use of the affidavit, the Soviets surprised the entire courtroom, including co-counsel, by indicating that Paulus was in Nuremberg and ready to testify. The production of this exceedingly high-profile witness has been described by leading analysts of the trial as a "coup de theatre." 46 Paulus testified to the aggressive and unprovoked nature of the Nazi attack on the Soviet Union. Although he was vigorously cross-examined, he provided strong evidence for the Soviet case. However, his testimony underscored the problems posed by perpetrator evidence. He was in Soviet custody, and it was easy to conclude that his testimony was designed to save his life. The Soviet case, far more than any other, focused attention on the Nazis' treatment of the Jews. Massacres like that at Babi Yar outside Kiev were carefully documented. The Nazis' use of bone-crushing machines and other methods to hide their slaughter of the Jews were disclosed to the tribunal, as was proof of the Nazi gas chambers and use of Zyklon B

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gas to murder Jews. The Soviets introduced both still photographs and gruesome exhibits of Nazi barbarity, such as human skin tanned like leather and soap allegedly made from human fat. The judges were appalled by what was introduced and reluctant to see any more. Yet the Soviets pressed on, eventually screening their own forty-five-minute film of the death camps. The film showed a Maidanek warehouse where 800,000 pairs of shoes were stored-all that was left of their murdered owners. It included scenes of the slaughter of women marched naked to their mass grave and of the actual operation of the giant bone-crushing apparatus. Initially the Soviet evidence was met with skepticism. Judge Birkett, the British alternate, wrote in his diary on February 15, 1946: "The impression created on my mind is that there has been a good deal of exaggeration .... " 47 The American alternate, Judge Parker, confided to an aide that he could not believe the charges made about German cruelty to babes in arms. All the judges were quickly convinced by the overwhelming Soviet proof. Mter viewing the Soviets' concentration-camp film, the judges sat in stunned silence. The film was so powerful that it blotted out skepticism. During the last six days of the Soviet case, the judges let the prosecutors put forward whatever proof they chose with virtually no challenge or question. The Soviet prosecutors called seven grieving victim witnesses, most of them Jewish, to the stand. Archdeacon Nikolai Lomakin was allowed to continue his anguished recital although the prosecutor had ceased asking him questions; the tribunal did not have the heart to interrupt the distraught victim. The Soviets had fashioned a compelling presentation. The Soviet case was marred by one jarring element: prosecutors introduced dubious evidence blaming the German Army for the massacre of thousands of Polish Army officers in the Katyn Forest. The defendants immediately claimed that the Soviets had killed the officers when they seized Eastern Poland pursuant to an agreement with Hitler. The tribunal eventually allowed the defendants to make a special presentation about Katyn. The Soviets demonstrated a willingness to manipulate the Nuremberg trial for political advantage, but their attempts were unsuccessful. Atrocity Evidence

Through the successive presentations of the four prosecuting nations, the place allotted to evidence of Nazi genocide grew remarkably. This trend was partly due to the way the charges were sequenced: war crimes (Count III) and crimes against humanity (Count IV) came at the end of the indictment. Over the course of the trial, however, prosecutors

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appeared to become increasingly aware that atrocity evidence had an especially powerful impact on the tribunal. The Americans learned this lesson reluctantly, presenting such evidence through film, affidavits, and live witnesses when their documentary case stalled. In December, when their conspiracy case was obviously floundering, American prosecutors connected the atrocity evidence directly to their central claim by arguing that the concentration camps were not only "factor[ies] dealing in death" 48 but the key mechanism of the Nazis' program of race-based conquest. The concentration camps became both the paradigm for and inevitable culmination of the Nazi conspiracy. The French and Russian prosecutors took note of what succeeded in the American case and offered increasingly direct evidence of Nazi atrocities. The Soviet case, the last to be presented, was the most adeptly attuned to the power and persuasiveness of atrocity evidence. The pattern of prosecution at Nuremberg was an upward spiral featuring ever more horrifying tales. The Americans resorted to such proof to smooth their way, the French used it to elaborate their claims, and the Soviets made it the core of their presentation. Film followed film, displaying indelible images of Nazi crimes. The most ghastly proof had the most lasting impact, providing the perfect symbolic representation of Nazi criminality. As U.S. Supreme Court Justice Oliver Wendell Holmes said of the presentation of poignant facts in the context of a case before his court, they create a "hydraulic pressure" that raises the intensity offeelings. 49 This effect was amplified at Nuremberg by the massive scope and unprecedented nature of what the Nazis had done. The news of the Nazi death camps, with their assembly-line approach to slaughter, overwhelmed almost all who heard it at the trial. Telford Taylor said he had no real idea of "the full scope of the Holocaust" 5° until then. When he sought, during his summary of the case against the General Staff, to describe the very worst of the Nazis' crimes, he could think only of "the gas chambers, mountains of corpses, human skin lampshades, shrunken skulls, freezing experiments and bank vaults filled with gold teeth." 51 These dreadful images had become the core of the case. A number of the defendants and their lawyers had a similar reaction to the atrocity proof. Donitz, the avidly Nazi submarine fleet commander, had been outraged at being charged but was noticeably affected by the atrocity materials. As he put it, "I must say, I was furious over the idea of being dragged to trial in the beginning because I did not know anything about these atrocities. But now, after hearing all this evidence-the double dealing, the dirty business in the East-I am satisfied that there was good reason to try to get to the bottom of the thing." 52 Dr. Victor von der Lippe, who was assisting in the defense of

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Admiral Raeder, recorded his reaction to hearing about the massacre of the Warsaw ghetto: "No words can express the brutality, cynicism, and villainy of these ideas of Hitler, Rimmler, and their agents and helpers! 'Outrageous' is too weak, 'devilish' and 'satanic' are more like it. It is contemptible that Uuergen] Stroop [the Nazi commander] should call his operation a 'battle' although the SS suffered 16 'casualties,' while 65,000 Jews were 'destroyed.' ... Now we must acknowledge that even such bestialities actually occurred. It drives me to despair! How the German name has been sullied!" 53 Even a proud German lawyer was horrified by what he had heard. The prosecutors at Nuremberg created more than a convincing case at trial. They established a verbal and visual characterization of the Holocaust that has lasted to the present day. They fixed the vocabulary used at the Holocaust Museum in Washington, D.C., in Steven Spielberg's popular film, Schindler's List, and countless other representations of the Holocaust. Grabe's description of the emptying of the Rovno ghetto-the slaughter of innocents, the death march to the train, and babies lying outside their homes with their brains dashed out-has remained with us since the trial. Wisliceny's talk of the "Final Solution," the Wannsee Conference, and Eichmann's boast about five million deaths have become fixed in world memory. The lampshades made of human skin and the bank vault filled with human teeth have become an essential part of our conceptualization of the Nazis' genocidal attack on the jews. The Soviet and American films, too, made an indelible contribution. They established our images of emaciated prisoners, bodies stacked like firewood, and mountains of abandoned shoes. The escalating atrocity evidence presented over the course of the trial posed serious problems for the prosecutors at Nuremberg. Too much such proof could wear out the judges. The American judge, Francis Biddle, said in his autobiography: "There was no end to the horrors of the testimony. The mind shrank from them, grew tired, rejected the imaginative and systematic cruelties. Or one tried to feel, to share the heroism of the victims. " 54 Too much atrocity proof might lead to desensitization. The second response Biddle describes introduces a new and important point: that in reaction to such evidence of inhumanity, judges, lawyers, and onlookers may seek affirmative stories to counter the darkness. The impulse to search for heroes, people who resisted or defied the Nazis and, at the risk of their lives, acted humanely in the midst of cruelty and death, created new pressures on those who told the story of the "Final Solution." In his book Holocaust Testimonies, Lawrence Langer shows that this frequently repeated pattern creates a profound barrier between victims and adjudicators. The victims' story cannot simply be told; it has to be converted into something uplifting. The pressure on survivors

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becomes a painful burden and negates the benefits of bearing witness. The problem of the "heroic Holocaust" will be explored in greater detail in Chapter 2, in relation to the Eichmann prosecution.

The Defense Sir Norman Birkett, the British alternate judge, wrote in his diary at the beginning of the cross-examination of Hermann Goring, Hitler's second in command and the highest-ranking Nazi defendant: "There are, in truth, two trials going on at the same time, the trial of the defendants in the dock and the greater trial of a whole nation and its way of thought. . . . If the leader of the surviving Nazis could be exposed and shattered, and the purposes and methods of the Nazi government revealed in their horrible crudity, then the whole free world would feel that this trial had served its supreme purpose; but if, for any reason, that design should fail, then the fears of those who thought the holding of any trial to be a mistake would be in some measure justified." 55 Birkett recognized the dual objectives of the trial: compiling an irrefutable public record of Nazi criminality, and convicting the defendants in the dock. More clearly than the American prosecutors, he understood the dependence of the first upon the second, at least as far as the higher-ranking Nazis under indictment were concerned. If, in presenting his own defense, a Nazi leader of Goring's stature could evade the charges of "horrible crudity" ascribed to the regime, then the tribunal would have failed to achieve its goals. The Allied prosecution was designed to create a record of the enormity of Nazi criminality during the Third Reich and to convict the men in the dock as active agents carrying out the Nazis' criminal designs. According to this view, the defendants were nothing more-and nothing less-than leading representatives of the vast Nazi conspiracy. The overpowering but impersonal nature of the documentary and atrocity evidence accentuated the corporate and representative elements in the Allies' case while drawing attention away from the defendants as individuals. At times during the prosecutors' presentations, the defendants all but disappeared from the proceedings. The defense case introduced an altogether different perspective. Each of the accused presented his own personalized proof and witnesses. Grand, generalized visions were replaced by twenty-one separate stories, at the heart of nineteen of which was the personal testimony of the accused. The defendants challenged the judges and the prosecution to treat them as individuals, with distinctive histories and justifications for their actions. None denied the core proof of Nazi atrocity, especially the "Final Solution," but virtually all worked to disassociate themselves

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from the Nazi program or to minimize their personal responsibility. This process of individuation and avoidance took almost twice as long as the prosecutors' case.

Testimony and Cross-Examination Hermann GOring was the first of the accused to be called on to make his defense. Almost alone among the defendants, he addressed such larger themes as the development and achievements of the Nazi government. He claimed that he was the only one of the defendants who was important enough in the Third Reich to be considered a participant in government decision making. The other defendants, according to Goring, were little more than petty bureaucrats. At the same time that he asserted his stature, Goring worked assiduously to distance himself from the charges against him. He called five witnesses who testified that he had no hand in the 1938 Kristallnacht attack on German Jews, had opposed the invasion of the USSR, had created a "defensive" rather than an "offensive" air force, and had not been aware of the atrocities committed against prisoners of war and concentration-camp inmates. While asserting an egotistical claim to leadership, the reichsmarshal sought to be seen as untainted by Nazi excesses against the Jews, Allied fliers, and other victims described in the prosecution's case. When Goring took the stand in his own defense on March 13, 1946, he spoke at length of his accomplishments, especially in sparking a German national renaissance after the social turmoil of the Weimar years. He stressed the threats posed by Germany's "enemies" and blamed the victims of German attacks for provoking them. Jews who had become too powerful in the interwar years, Austrian politicians who thwarted the will of the Austrian people to amalgamate with Germany, and Czechs who posed a threat to Germany's borders were each responsible for what Germany did to them-a ludicrous set of claims given the relative strength of the antagonists. Where some prospect of condemnation remained, Goring stressed Hitler's absolute authority. Mter the reichsmarshal had completed his presentation, he was examined by more than half of the other defendants, who sought his help in distancing themselves from authority and responsibility. Goring's position as ranking Nazi defendant meant that his crossexamination was the most important of the entire trial. The prosecution team, led by Jackson, was under enormous pressure to discredit Goring and demonstrate the righteousness of the prosecution's case. Jackson began by reviewing the Nazis' rise to power with the accused, seeking to demonstrate their nefarious designs. Goring proved too clever to be turned into a mouthpiece for the American theory. His lengthy answers

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to Jackson's questions displayed both mastery of the facts and a cunning ability to dodge accusations. Not only that, Goring repeatedly corrected factual errors in Jackson's questions. Goring, rather than his interrogator, came to control the cross-examination. In his frustration, Jackson angrily demanded that the witness confine his answers to "yes" or "no," but the judges refused to oblige. Jackson never fully recovered from the reichsmarshal's initial success. Assessing the cross-examination, Birkett wrote: "Mr. Justice Jackson, despite his great ability and charm, and his great powers of exposition, had never learned the very first elements of cross-examination as it is understood in the English courts. He was overwhelmed by his documents, and there was no chance of the lightning question following upon some careless or damaging answer, no quick parry and thrust, no leading the witness on to the prepared pitfall, and above all no clear overriding conception of the great issues which could have been put with simplicity and power." 56 Birkett's observation pinpoints the difficulties the American prosecutors encountered as they had to shift from their big-picture case to engagement with specific defendants. Jackson was not prepared to grapple effectively with the challenges that Goring presented. The Americans had framed the trial as a struggle between good and evil, and GOring's success gave the impression that evil had triumphed. The consensus among observers was that Jackson's failure to humble Goring was a serious setback for the Allies' case. On March 20, Sir David Maxwell-Fyfe rose to conduct a supplementary cross-examination. As the Allies had done so many times before, Maxwell-Fyfe turned immediately to atrocity evidence. The British lead counsel explored Goring's role in the cold-blooded murder of fifty Allied flyers who had escaped from Stalag Luft III. The vigor and precision of Maxwell-Fyfe's attack soon drove Goring into evasion and claimed lapses of memory. The prosecutor moved on to Auschwitz and the fate of the Jews in the "Final Solution." Goring's association with the Holocaust branded him a monster and, coupled with his evasions, destroyed whatever credibility he might have established. Given the exchange between Goring and Maxwell-Fyfe, the prosecutors realized that they had to meet and overcome each defendant on the ground that he himself defined. The way forward seemed to be through pointed cross-examination that undermined the credibility of recalcitrant defendants and associated them with monstrous deeds. If a defendant could be shown to be evasive or caught in a lie, substantial advantage could be gained. If he could also be shown to have had a hand in heinous acts--regardless of whether they were central to the case-the defendant would be discredited. The most damaging accusa-

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tion the prosecutors could make was complicity in anti-Semitic activities and atrocities. Although the prosecution eventually proved victorious, Goring's cross-examination had occupied several days. The judges, alarmed by the cost in time and effort, remarked: "The Tribunal has allowed the Defendant Goering, who has given evidence first of the defendants and who has proclaimed himself to be responsible as the second leader of Nazi Germany, to give his evidence without any interruption whatever, and he has covered the whole history of the Nazi regime from its inception to the defeat of Germany. The Tribunal does not propose to allow any of the other defendants to go over the same ground in their evidence except insofar as it is necessary for their own defense. " 57 Lowerranking Nazis would not be allowed the same scope in the presentation of their defense. As successive defendants presented their cases, the Allies attacked the Nazis' character and sought to associate them with atrocities. Joachim von Ribbentrop, who had been Germany's foreign minister, was the third defendant to offer his evidence. On cross-examination his antiSemitic prejudices and lies were mercilessly exposed, along with his slavish devotion to Adolf Hitler's murderous schemes. Ernst Kaltenbrunner, the fifth defendant, was charged with a host of crimes committed when he led the Reich Security Main Office (RSHA) after Reinhard Heydrich's assassination. In the Nazi hierarchy he was second in command to Heinrich Rimmler, who headed the SS. In his direct examination, Kaltenbrunner denied that he had known about, let alone participated in, the vast and murderous operations of the SS. He claimed he had done nothing but gather intelligence materials during his RSHA tenure. On cross-examination, Colonel John Amen of the American prosecutorial team demonstrated Kaltenbrunner's untruthfulness. The defendant had denied knowing about or visiting the concentration camps, so Amen provided a series of affidavits by witnesses who swore that Kaltenbrunner had been in a number of camps and had been present when inmates were gassed, hanged, and shot. Kaltenbrunner claimed that Heinrich Muller, his subordinate and head of the Gestapo, was responsible for the atrocities of which the defendant stood accused. Amen produced the affidavits of six witnesses who swore that Kaltenbrunner and Muller had regularly conferred about the "special treatment"-that is, murder-of the Jews. Amen then confronted Kaltenbrunner with a letter in which the defendant openly discussed "special action" against Jewish women and children. Kaltenbrunner could do nothing more than deny that he had signed the letter, although it gave every appearance of having been signed in his hand. Amen put his point bluntly: "Is it not a fact that you are simply lying about your signature on this letter

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in the same way that you are lying to the Tribunal about almost everything else you have given testimony about?" 58 The defense counsel, several judges, and some onlookers felt pity for the hard-pressed Kaltenbrunner as the prosecutor effectively destroyed his credibility and character. The indictment ofJulius Streicher, the ninth defendant to present his case, asserted not that he had directly participated in atrocities but rather that through the publication of his newspaper, Der Sturmer, he had incited others to murder Jews. Streicher's rabid anti-Semitism had aroused doubts about his sanity before the trial began. When his lawyer, Hanns Marx, called Streicher to the witness stand, he turned on Marx, declaring: "[M]y defense counsel has not conducted and was not in a position to conduct my defense in the way I wanted." 59 Marx's repugnance at Streicher's beliefs created a rift between lawyer and client. Marx apparently took the position that if Streicher were to defend his anti-Semitic views he would have to do so on his own. Because Streicher was being tried precisely for urging others to commit anti-Semitic acts, this problem had serious, even fatal consequences for his defense. Streicher began his direct examination by detailing the history of his association with Hitler and his work for the fUhrer during the early days of the Nazi regime. By the late 1930s, Streicher had fallen from grace and was under house arrest at his country estate but was allowed to continue publishing Der Sturmer. He defended his virulently anti-Semitic newspaper by declaring: "The speeches and articles which I wrote were meant to inform the public on a question which appeared to me one of the most important questions. I did not intend to agitate or inflame but to enlighten." 60 He went so far as to recite "proof" of the "blood libel," charging that Jews committed ritual murder of Christian children to gather blood for the making of Passover matzo. Streicher concurred with the prosecution in treating anti-Semitism as the fundamental question in his case. The British barrister, Mervyn Griffith:Jones, focused his cross-examination on Streicher's anti-Semitic views as displayed in various issues of Der Sturmer. He made no direct argument that Striecher had incited murder. The focus was on Streicher's vile character rather than the effect of his words. The prosecutor documented the extent of Streicher's lies about the "Final Solution." Griffith:Jones made a case that the defendant wa.S a monster of anti-Semitism who would say anything to advance his perverted beliefs. However, little was shown about the results of his incitement. The Allies proved merely that Streicher was depraved. As a number of commentators, including Telford Taylor, have since observed, Streicher may well have been convicted for his loathsome character and monstrous views rather than for specific criminal acts. 61

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Hjalmer Schacht, like Julius Streicher, was charged not with committing crimes directly but rather with promoting criminal activity by others. Schacht was one of the architects of Germany's economic recovery and an early fund-raiser for the Nazi party. Schacht had been appointed president of the Reichsbank in the early 1930s and later was made minister of economics and plenipotentiary for war economy by Hitler, but Schacht became thoroughly disenchanted with the Nazis. Although he remained reichsminister without portfolio until 1943, Schacht was an implacable foe of the Nazi regime from 1939 on. He worked against National Socialism inside Germany and made several visits to Switzerland to warn Britain of Hitler's plans to invade Poland and attack the USSR. In 1944, Schacht was accused of plotting with those who sought to assassinate Hitler. He was defended in a Nazi People's Court trial by Rudolf Dix, the same lawyer who appeared on his behalf at Nuremberg. Schacht ended up as a concentration-camp inmate, serving time in Ravensbriick, Flossenberg, and Dachau. The indictment charged him with having facilitated Hitler's aggression by his brilliant economic work. He was viewed as a key player in the case that Jackson and the American prosecutors were determined to make against German financiers and industrialists. The question at issue was whether anything he had done before 1937 had been intended to facilitate an aggressive war. On direct examination, Schacht stressed his belief in the German nation. As an ardent nationalist, he had been attracted to Hitler in the early 1930s and, after Hitler's political triumph, willingly worked to restore the economic and military prowess he believed was essential for Germany to resume its place as a great power. By 1936, Schacht explained, he had come into irreconcilable conflict with Goring, and Hitler had removed him from power. Schacht testified that his work with the Nazis had convinced him that they were thugs and criminals and he joined the anti-Nazi resistance. This claim was supported by Hans Gisevius, a witness who testified during the defense of Wilhelm Frick. Jackson assumed chief responsibility for Schacht's cross-examination, primarily to pursue the economic case he was anxious to develop. Jackson told a colleague: "If the Tribunal held that there was no case against Schacht he Uackson] did not see how they could hope to make a case against any industrialists. " 62 Schacht was perceived as the key representative of the banking and industrial complex. Perhaps in response to his experience with GOring, Jackson adopted a more aggressive strategy during cross-examination. The American chief prosecutor stressed Schacht's continuing association with the Nazis and his ongoing use of the perquisites of high office in Hitler's government. The implication was that Schacht was predisposed to duplicity, simultaneously using and criticizing the Nazis, and to expedience, doing whatever suited him best

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at any given moment. Jackson also focused on Schacht's anti-Semitism. To underscore the defendant's guilt by his ongoing association with Nazis, Jackson offered a series of photographs showing Schacht in the company of Hitler, Bormann, Joseph Gobbels, Goring, and Streicher. Despite all this, Jackson fared little better with Schacht than he had with Goring. Schacht was intelligent and self-possessed. He was far better versed than Jackson in German politics and economics and maintained the upper hand through most of the interrogation. Jackson's strongest moment came when he pressed Schacht regarding anti-Semitic legislation promulgated by the Third Reich. Schacht chillingly declared: "Yes, I always agreed with that principle .... With regard to the principle of the dominating jewish influence in government, legal and cultural questions I have always said that I did not consider this influence to be of advantage either to the German people and Germany, which was a Christian state and based on Christian conceptions, or to the Jews, since it increased the animosity against them. For these reasons I was always in favor of limited Jewish participation in those fields, not actually according to population, but nevertheless limiting them to a certain percentage."63 The successful assault on Schacht's character was insufficient to establish his criminal motivation in rebuilding the German economy. A closely divided court acquitted Schacht of all charges. The case of Albert Speer, the last Nazi minister of armament and munitions, as well as head of the powerful Central Planning Board, was in some ways the most difficult faced by the tribunal. In 1942, Speer had taken over the enormous task of supplying the German armies with weapons and munitions. He did a brilliant job and, despite incessant aerial bombardment, material shortages, and transportation difficulties, managed to increase German output substantially. These achievements depended on the massive use of slave labor and the ruthless exploitation of concentration-camp inmates, many of whom were worked to death to fill his quotas. In his defense, Speer did not deny German responsibility or offer the excuse that he was following his superiors' orders. He condemned Hitler and Nazism. Speer cunningly turned the prosecution's preoccupation with character to his own advantage. In his testimony, he emphasized that he had broken with the fuhrer and even plotted his assassination, as well as thwarted Nazi plans for the destruction of Germany. Speer had turned over all his files to the Allies. His testimony had the ring of truth. Speer was rewarded by the tribunal with a lighter sentence-only twenty years in prison-than other similarly situated defendants. The Labor Minister, Fritz Sauckel, was condemned to death for his exploitation of slave laborers. Judge Biddle remarked: "If Goering was the prime exhibit of the trial, Albert Speer was the most humane and decent of the defendants. His straightforwardness and honesty, his

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calm and reasonable bearing, his awareness of the moral issues involved, impressed the members of the Tribunal. " 64 The presentation of self that Speer made may explain the tribunal's decision. As the trial wound down, a number of weak accusations were reviewed. Franz von Papen, who was removed from any position of real authority in 1934, was acquitted despite the fact that he had been instrumental in Hitler's accession to power and was demonstrated to be cowardly and conniving. Hans Fritzsche was also acquitted because he was not implicated in the Nazis' great crimes. Fritzsche had been a thirdlevel functionary in the propaganda ministry, and little proof was offered that he had incited murder. 65 Although the prosecutors made character the central issue in their cross-examination of the defendants, the judges made a serious effort to remain focused on the charges specified in the indictment. In some cases, especially those of Streicher and Speer, character seemed to overwhelm substantive proof; Speer was treated leniently, and Streicher executed. The resort to character was strongest when direct evidence of a defendant's actions was weakest. In most cases, the judges declined the prosecution's invitation to concentrate on matters of character. 66

Witnesses for the Defense In mounting their cases, the Nuremberg defendants had no choice but to rely on their own testimony and that of such witnesses as they could convince to appear. Defense counsel had little time and scant resources to engage in extensive document searches, especially given that the critical documents were in Allied hands or unavailable, and proving innocence through documentary evidence was a dubious project at best. In contrast to the thirty-three live witnesses offered by the prosecution, the defense offered sixty-one, in addition to the nineteen accused who testified themselves. Defendants offered the written comments of a further 143 witnesses. The defendants' lists might have been even longer, but many of those who were asked refused to appear. For example, Robert Servatius, the attorney for Fritz Sauckel, applied for evidence from approximately thirty witnesses but "received almost no response for everyone summoned was afraid of being prosecuted later. " 67 Their concern was entirely legitimate because a testimonial appearance might bring a witness to the attention of Allied prosecutors and might be used against the witness in later proceedings. Yet, the defendants persevered because witnesses were all that most of the accused had to offer as evidence for their defense. The process by which defense witnesses were brought before the tribunal was cumbersome and inequitable. On February 23, 1946, shortly

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before the defense case was to begin, the judges fixed a series of ground rules for the presentation of defense evidence. Both documentary and testimonial evidence would be admissible only if it had been subjected to a prior screening and approval process that allowed for prosecutorial objection and judicial assessment. Defense evidence would be subjected to a potentially more rigorous review than prosecution offerings had been, and prosecutors would be given advance notice of each document and witness the defense intended to use. Dr. Martin Horn, counsel for von Ribbentrop, protested: "[T]he Court has the intention of treating the Defense in a fundamentally different manner than the Prosecution. In Article 24 of the Charter it is stated that the Tribunal will ask the Prosecution and the Defense whether they will submit evidence to the Tribunal and if so, what evidence. This decision has so far not been applied by the Tribunal in relation to the Prosecution .... I ask the Court, therefore on the basis of past practice, not to allow the Prosecution to take part in judging whether a document [or witness] should be considered relevant or not. " 68 The tribunal overruled this objection. Advance notice was of immense assistance to the prosecution in helping it prepare for cross-examination. The aggressive tenor of the interrogation of defense witnesses was established at the very start of the defense case, when GOring called his first witness. Air Force General Karl Bodenschatz, one of GOring's deputies, read from what appeared to be a prepared script. He stated that GOring had been horrified by the violence of Kristallnacht, had worked for peace before the invasion of Poland, had opposed the German attack on the USSR, and had interceded on behalf of many Jews threatened with confinement in the concentration camps. Bodenschatz defended himself as well as Goring, claiming that the first time he had heard about the slaughter of the Jews was in March 1945. Defense witnesses did whatever was within their power to deny any connection with or knowledge of atrocities or genocide. Jackson cross-examined the witness more effectively than he had the defendant. He demonstrated that Goring had been the architect of the billion-mark fine on Jews for "provoking" Kristallnacht and that he had virtually never helped jews avoid being sent to concentration camps. Jackson established that Bodenschatz was delivering a statement that had been prepared under the direction of GOring's lawyer, Dr. Otto Stahmer. Bodenschatz was discredited and his evasive half-truths unmasked. Cross-examination of Goring's next witness was even more devastating. Field Marshall Erhard Milch had been deputy commander of the German Air Force and a member of the Central Planning Board, where his responsibilities had included the production of armament and munitions. He declared that GOring had opposed the war and had created a

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"defensive" rather than "aggressive" air force. Jackson demonstrated with documents that the witness had been personally involved in the slave-labor regime and was well aware of its brutality. Milch attempted to deny Jackson's proof, claiming that he was unaware of the dragooning of non-German workers, let alone their beating and murder. In the end, Milch could do little more than pathetically plead that his memory had failed on a host of critical points because of "heavy blows on the head received at the time of my capture. " 69 A leading British Foreign Office observer concluded that Goring's witnesses "made a very bad impression" and were obviously lying. 70 Dr. von der Lippe noted in his journal during the cross-examination of Rudolf Hess's witnesses, which followed these: "methodical denigration of the defense witnesses by the prosecutors continues. " 71 Powerful cross-examination broke the witnesses down, revealed their lies and complicity, and seriously undermined the defendants' presentations. The witnesses for the defense continued to lie, evade, and blunder throughout the long defense case. With the third defendant, von Ribbentrop, not only were the witnesses discredited and embarrassed but their testimony began to boomerang, damning the very parties who had called them. Von Ribbentrop's first witness was Baron Adolf Steengracht von Moyland, the defendant's close aide who became a state secretary in the foreign office. On direct examination Steengracht made an astounding claim: "[Von] Ribbentrop was, in his whole attitude, no typical exponent of National Socialism. He knew extraordinarily little of the dogma and doctrines of National Socialism. He felt himself only personally bound to Hitler, whom he followed with soldierly obedience, and he stood under a certain hypnotic dependence on Hitler. " 72 By suggesting that von Ribbentrop was Hitler's pawn and did his master's bidding, this testimony was tantamount to a declaration of the foreign minister's guilt. On cross-examination British Colonel Harry Phillimore drove the point home. Phillimore showed the witness a 1943 memo in which von Ribbentrop was quoted as telling the head of the Hungarian government, Admiral Miklos Horthy, that Hungary's one million Jews "must either be exterminated or taken to concentration camps. There was no other possibility." 73 In reply, Steengracht reiterated his claim that von Ribbentrop was under Hitler's spell: "Here, too, I should like to make a distinction between the real instincts of von Ribbentrop and what he said when he was under Hitler's influence. I said already yesterday that he was completely hypnotized by Hitler and then became his tool. " 74 In attempting to clear von Ribbentrop from suspicions of anti-Semitism and adherence to Nazi ideology, Steengracht reduced him to an instrument of Hitler's aggressive and genocidal purposes. A witness called by Ernst Kaltenbrunner condemned not only the

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defendant whose case he was supposed to support but also many of the other defendants. Kaltenbrunner's lawyer, Dr. Kurt Kauffman, sought only rather modest support for his client from Rudolf Hoss, the onetime commandant of Auschwitz. He wanted Hoss to verify that Kaltenbrunner had never visited Auschwitz, to explain the profound secrecy that surrounded the operations of the death camps, and to indicate that Kaltenbrunner had signed virtually none of the execution orders received at Auschwitz. Hoss readily agreed with all these propositions. However, the commandant also described in grisly detail the operations of an extermination center where as many as three million people were killed. Cross-examination revealed that, despite the camp's secrecy, news of the extermination of the Jews circulated widely and, although Kaltenbrunner had not signed many death orders, his deputy, acting as his representative, had done so. Hoss incriminated other defendants as well as Kaltenbrunner. His testimony about the "Final Solution" damned the Nazi leadership collectively and made the mass murder of Jews a palpable presence in the courtroom. Kauffman's pqor judgment in calling Hoss is difficult to explain. Hoss commented in his autobiography that "I have never been able to grasp ... how I of all people could have helped to exonerate Kaltenbrunner." 75 Kaltenbrunner may have been desperate to find witnesses; perhaps Kauffman miscalculated and lacked the skill to control the damage Ross's testimony did. For whatever reason, Kauffman's poor choice of witness added powerfully to the prosecution's strongest proof: that concerning genocide. On occasion, a defendant called a witness not just to improve his own prospects but with the awareness that the testimony would harm a fellow defendant. The paradigmatic example of this was one-time Minister of the Interior Wilhelm Frick's calling of Hans Gisevius. In the mid-1930s, Gisevius had been a victim of infighting in Goring's Prussian Gestapo. He had fled for his life, winding up in Frick's employ in the Interior Ministry. Gisevius eventually became a prominent participant in the opposition to the Nazi government, an informant to American intelligence operatives, and a plotter in the 1944 attempt on Hitler's life. He had secretly worked with the Nuremberg prosecutors before appearing at Frick's request. On direct examination by Frick's attorney, Otto Pennenbecker, the witness established Frick's limited authority in police matters. He then went on to describe in great detail Goring's misdeeds, from Hitler's rise to power through the beginning of the war. According to Gisevius, Goring, along with Rimmler, had faked the so-called Rohm Putsch of 1934 so that the two men could have their enemies killed as conspirators against Hitler's government. Perhaps even more damning was Gisevius's testimony that Goring had engineered a plot to destroy the careers of two leading Army officers, Werner von Blomberg and Wer-

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ner von Fritsch, so that soldiers more amenable to the Nazis could be placed at the head of the armed forces. This scheme involved false accusations of homosexuality against Fritsch and scandalous revelations regarding Blomberg's wife. This material was so damaging that Goring's counsel, Stahmer, had apparently made a veiled threat that Goring would retaliate against any defendant who raised the matter. By disclosing Stahmer's threat, Gisevius added even greater force to his accusations against Goring. Any benefit Frick may have derived from Gisevius's testimony was short lived. Jackson, cross-examining for the prosecution, led Gisevius to declare that Frick had full knowledge of Himmler and Goring's criminal program and had endorsed a great deal of it. Jackson then induced this exceedingly cooperative witness to provide damaging testimony against Kaltenbrunner and Keitel. Why was the defendants' use of witnesses so strikingly ineffective? The available witnesses were, for the most part, perpetrators rather than victims or observers. They had ample reason to lie and attempt to hide their own conduct. Cross-examination, particularly that based on captured documents, repeatedly revealed their falsehoods and self-serving contentions. The most dramatic and significant moments in the defense case came when witnesses' testimony boomeranged against the defendants and buttressed the prosecution instead.

Precedents and Problems What was the legacy of the Nuremberg trial for the international prosecution of genocide and other heinous crimes? In a strict legal sense, it might be argued that it should never have been looked to as setting a precedent. The IMT was the product of a unique set of circumstances and designed to achieve particular political and ideological objectives. Imposed by victorious allies on a prostrate and unresisting enemy at the end of the bloodiest war in history, the trial was intended to convict the most prominent surviving National Socialist leaders of war crimes and crimes against humanity, frequently associated with genocide. Many of the accused were so clearly guilty of monstrous crimes that any sort of process would have sufficed to condemn them. The trial was premised on vast and unavoidably incriminating documentary material. It blended different justice systems and brought together lawyers with disparate skills and agendas. These conditions were so idiosyncratic and problematic as to suggest that it would be impossible or ill-advised to attempt to replicate them. Yet Nuremberg has endured as a mighty precedent for the prosecution of heinous crimes associated with genocide. In a world riven by lawless violence, it demonstrated that people need not stand by helplessly

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and witness atrocities without bringing the perpetrators to justice. Nuremberg began our halting efforts to impose the rule of law worldwide. For all its shortcomings, it was a bold departure from the past, when barbarous acts could only be countered by crushing military defeat and might readily be resorted to in the next conflict. To AngloAmerican jurists, it was the essential first step in the development of an international common law holding governments and their leaders accountable for aggression, war crimes, and crimes against humanity. Nuremberg has served as the foundation for most subsequent efforts to punish Nazis and other perpetrators of the Holocaust. The appeal of this powerful precedent has overwhelmed the critical judgment of lawyers and courts, however, all too often, Nuremberg has been copied without a real appreciation of the problems it engendered. While some of the problems exposed by or implicit in the experience of Nuremberg may have been inevitable in any effort to prosecute genocidal acts, a substantial number resulted from deliberate choices. These problems could and should have been avoided, and it is crucial to recognize them to avoid repeating them. One of the great triumphs of the Nuremberg case was the conduct of the judges. Led by Sir Geoffrey Lawrence, president of the tribunal, the members of the bench labored magnificently to ensure that the proceedings were just. The tribunal signaled its resolve to maintain fairness from the outset. When Jackson sought to prosecute the incapacitated Gustav Knipp or substitute his son on short notice, the judges refused. The tribunal insisted on treating the defendants as individuals with particular attributes, claims, and rights rather than as interchangeable parts of a Nazi machine for which they served as mere symbols and scapegoats. Within a few days after the Americans unleashed their avalanche of documents, Lawrence insisted on the right of the defense to know the contents of the evidence, to receive copies of the documents, and to have whatever was provided to the tribunal translated into German. The judge aimed to ensure that the trial did not degenerate into a one-sided presentation of prepackaged papers. When defense counsel Hanns Marx was criticized in the German press for his harsh although unavailing cross-examination of the French victim witness, Madame VaillantCouturier, Lawrence spoke out immediately and forcefully, in open court, on the defense counsel's behalf. He reminded participants that zealous advocacy was an essential requisite for a fair trial and warned the world against censoring the defendants' representatives. Despite significant pressure, the tribunal refused to allow Jackson to alter the rules of interrogation to limit Goring's right to testify. In every key evidentiary confrontation, the tribunal ruled in favor of a full hearing. When defense counsel for Admiral Donitz sought, on the

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strength of a well-crafted legal theory, to depose America's Pacific Fleet commander, Chester Nimitz, the judges acceded. When the Soviets sought to exclude embarrassing information regarding their 1939 pact with the Nazis to divide Poland, the judges would not acquiesce. When the Soviets sought to whitewash their role in the Katyn Forest massacre, the tribunal rejected Soviet assertions about the binding effect of documentary proof and set aside court time to hear three live witnesses on each side. The judges rejected attempts to manipulate the process made by both Soviets and Americans. Finally, when the trial was over and all the evidence assessed, the tribunal had the courage to find three of the defendants not guilty and a number of others less culpable than most onlookers had expected. At the heart of this judicial triumph was Geoffrey Lawrence. His firm, fair, modest, and dignified approach was fundamental to the successful process of adjudication. He set a fine example and steered the proceedings into paths ofjustice and decency. Yet this triumph was not based on the procedures or practices adopted at Nuremberg; it depended on the extraordinary integrity of one judge. If Lawrence had been a lesser man or if his American and British colleagues had been less supportive, Nuremberg could have failed abysmally. The tribunal's rules were loose and sloppy. Many were ad hoc, spur-of-the-moment creations. Rules of evidence, in particular, were far from evenhanded. That they did not more often oppress the defendants is attributable only to the sensitivity of Lawrence and his colleagues. The judges maintained a special relationship with the prosecutors, including a significant amount of fraternization and ex parte, out-of-courtroom communication that lent at least an appearance of impropriety to the proceedings. Procedural safeguards and the right to appeal were entirely lacking. These were all ingredients for disaster. Justice at Nuremberg was not based on the institutionalized elements of the adjudication process. The role of counsel was not sufficiently defined, and what structure was provided was seriously unbalanced. The adversarial approach assigned to counsel the central tasks of gathering facts and presenting proofs. This arrangement gave the prosecutors enormous power to determine the content and direction of the trial. Placing so much authority in the prosecutors' hands posed serious risks, most particularly that the accusers would ignore the interests of justice and be biased in their use of evidence or manipulative in their presentations. On more than one occasion, the prosecution teams succumbed to this temptation. The Nuremberg model placed virtually no constraints on the prosecution and allowed serious risks of misbehavior and overreaching. Defense counsel at Nuremberg started at a woeful disadvantage. The German lawyers who represented the accused had just lived through

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twelve years of Nazi rule, which profoundly affected how they practiced law. Nearly half of them-eighteen of the forty-one lawyers-had personal associations with the Nazi Party, which were likely to compromise their zeal and effectiveness. The adversarial system adopted at Nuremberg demanded forensic skills, especially in cross-examination, that the German advocates had never been called on to develop. The defense teams were exceedingly small, no more than two per defendant. They worked with a bare minimum of resources. Faced with these conditions, a significant number of German lawyers refused to serve at Nuremberg. Some defense lawyers had close bonds with their clients. Dr. Rudolf Dix, who appeared on behalf ofHjalmar Schacht, had saved his client's life when Schacht was prosecuted in the Nazi People's Court as a conspirator in the 1944 bomb plot against Hitler. At Nuremberg, too, Dix achieved a remarkably positive result. Captain Otto Kranzbuehler, the German naval judge advocate who represented Admiral Donitz, shared both his client's outlook and his extraordinary competence. Their cooperation resulted in a far better outcome than many had expected, given Donitz's high military position. Other lawyers were profoundly alienated from their clients. Streicher's lawyer, Hanns Marx, found his client repulsive and was convinced that the virulent anti-Semite was of unsound mind. The tribunal denied Marx's request to withdraw from the case after Streicher denounced him in court. A similar pattern of alienation shading into open hostility was apparent in counsels' relation to Kaltenbrunner, Rosenberg, von Ribbentrop, and Hess. In almost all these cases, the lawyers recoiled from the anti-Semitic opinions of their clients and refused to press such views on the tribunal. The absence of a bond between advocate and accused, the central premise of adversarial representation, put these defendants at a significant disadvantage. During the trial, defense lawyers were placed under intense pressure. They were constrained by a one-sided set of relevance rules and requirements for the production of evidence. They were frequently unable to secure the witnesses and documents they sought. The tribunal hurried them along, granting little time for preparation. They faced a string of witnesses and documents with which they were unfamiliar, while their opponents were able to preview everything they presented. Defense lawyers' lines of questioning and courtroom conduct were subject to close public scrutiny and severe criticism. Individual defense lawyers also posed problems for their colleagues. Any case with so many defendants is bound to generate conflicts, but at Nuremberg these raged out of control. Perhaps the best example is the dispute between Otto Stahmer, Goring's lawyer, and the other defense teams. When Stahmer's threat to retaliate if Gisevius were called to testify against the reichsmarshal was made known to the tribunal, both Goring and his lawyer were deeply

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embarrassed and his case was compromised. Conflict among lawyers, as among the accused, weakened the entire defense. The vulnerable position of the defense counsel at Nuremberg created a troubling situation for an adversarial system. The German lawyers needed the guidance and protection of the judges on a regular basis. This assistance was provided in full measure by President Lawrence. Yet the tribunal's backing for the defense can be viewed as its part in a tacit but fundamentally unsatisfactory bargain: defense counsel would cooperate as a quid pro quo for the tribunal's protection. So long as lawyers for the defense played by the rules and did not obstruct the smooth flow of the trial, the judges would stand behind them. Such a situation would almost certainly tend to co-opt any defense counsel. Had the lawyers been less dependent on the tribunal's good offices, they might have been more aggressive. In thinking back on their Nuremberg experiences, many of the defense lawyers praised Geoffrey Lawrence and concluded that the trial had been fair. However, several of the most thoughtful decried the inequality of treatment and resources that kept defense counsel on a tight leash with respect to proof and argument. A substantial number of outside critics shared these concems. 76 The procedural apparatus of Nuremberg was inadequate for the adjudication of crimes of such scope and gravity. The ad hoc nature of rule making opened the process to prosecutors' demands that the tribunal conform to their strategies. The procedure was so unstructured that judicial decisions could be made on the basis of the judges' own sympathies or the heinousness of the charges. On such matters as the speed and length of the trial, the tribunal's interests were substantially at variance with those of the defense and in accordance with the prosecution. Rules were designed to secure celerity at the expense of the defendants' ability to develop their cases. One-sided rules regarding relevance, which were established in the charter itself, were augmented at trial by the promulgation ofbiased rules regarding the admission of hearsay evidence. All this placed the defendants in a more reactive position than the adversarial system required or implied. The accused and their lawyers could not fully explain their actions but were forced to devote their time to explaining what the prosecutors had said about them. Rules facilitating the submission of documents and limiting the testimony of live witnesses favored the prosecution, which had a vast supply of documentary and interrogation material at their command. Defense counsel were severely disadvantaged in cross-examination, and prosecutors were allowed to choose the very best evidence without running the risks inherent in live testimony. The classical Anglo-American hearsay rule is designed to guard against the admission of materials that are resistant

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to cross-examination. By abrogating that rule (as long as witnesses could later be called for examination if the defense insisted), the tribunal opened the door to cleverly prepared statements. From bitter experience, defense counsel discovered that cross-examination was too risky to warrant exercising their right to confront the witnesses arrayed against them. Such items as the enormously powerful Grabe, Pfaffenberger, and Hoettl affidavits were introduced, along with an immense quantity of Nazi documents, because of the tribunal's skewed evidentiary rules. As an effort to compile a record of Nazi crimes, Nuremberg was open to attempts of interested parties to manipulate the process in order to control the writing of history. Soviet prosecutors made the most blatant efforts to bend the tribunal to the USSR's propaganda goals. The 1939 nonaggression pact between Germany and Russia had encouraged Hitler to invade Poland and awarded part of that dismembered nation to Stalin. The existence of the pact demonstrated that the USSR was not simply a member of the Allies; before the German invasion of Russia, it had aided and abetted aggression against weaker nations. Soviet prosecutors fought to keep this information out of the record and sanitize history. To its great credit, the tribunal insisted that the matter be addressed in open court. The Vatican was more successful in manipulating the process to exonerate the Roman Catholic Church from complicity with the Nazis. Father Edmund Walsh, the church's liaison to the American prosecutorial team, visited Rome and was provided with Pope Pius XII's allocution, or formal address, of june 1945, which sought to demonstrate that the pope had protested against the Nazis' actions and the church had taken steps to confront Hitler. Neither the prosecution nor the tribunal came to grips with the pope's passivity in the face of the Nazi slaughter of the Jews, his negotiation of a concordance with the Nazis when he was nuncio in Germany, and numerous other questionable actions taken by the church. The Roman Catholic Church took great care to ensure that criticism of its role during World War II would be muted at Nuremberg. Recent scholarship has been far less kind to Pope Pius XII and his church. The trial at Nuremberg was a bold step forward for international justice, yet its proceedings were shaped by the interests and prejudices of those who organized and conducted it. Serious weaknesses and imbalances were woven into its fundamental fabric. In trying to conduct a broad search for historical truth and a straightforward criminal prosecution simultaneously, it was, perhaps, destined not to fully achieve either goal. Half a century or more later, the world has come to think that a Truth Commission, charged only with gathering historical evidence of the crimes committed by former regimes and their opponents, is a bet-

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ter approach. The separation of truth-telling and punishment is designed to secure through the former full disclosure and bring about repentance and reconciliation, especially in the aftermath of civil war. For the prosecution of leaders who have committed grave crimes, whether in the context of civil or international wars, the world still relies on traditional criminal prosecution, including the full panoply of safeguards for the defendants. The central dilemma of Nuremberg was how to combine these two objectives. Perhaps pursuing such different goals simultaneously inevitably raises profound contradictions. Certainly this dilemma was not fully resolved in 1945-46 at Nuremberg.

Chapter 2

Eichmann

On May 23, 1960, Prime Minister David Ben-Gurion appeared before the Knesset, the Israeli Parliament, and announced: "It is my duty to inform you that a short time ago the security services apprehended one of the most infamous Nazi criminals, Adolf Eichmann, who was responsible, together with the Nazi leadership, for what they called 'the "Final Solution" to the Jewish problem' -in other words, the extermination of six million of Europe's Jews. Adolf Eichmann is already imprisoned in this country, and will soon be brought to trial in Israel under the Nazi and Nazi Collaborators (Punishment) Law of 1950." 1 Adolf Eichmann, widely reputed to be the superintendent of Nazi genocide, was captured in Buenos Aires, Argentina, by operatives of the Mossad, Israel's Central Bureau of Intelligence and Security. In a daring undercover operation, he was spirited out of Argentina and delivered to Israel to stand trial. 2 Ben-Gurion's declaration marked the beginning of an eighteen-month legal process that culminated in the Jerusalem District Court sentencing Adolf Eichmann to death on December 15, 1961. The Eichmann trial reinforced and refined the pattern set at Nuremberg. It was sprawling, slow-moving, and poorly focused. The trial ground on for ten months, heard more than 120 prosecution witnesses, and reviewed more than 1,400 voluminous exhibits. The Holocaust, rather than Eichmann's own crimes, set its agenda. Adolf Eichmann was treated not as a defendant charged with committing specific acts but as the embodiment of all those Nazi henchmen who had carried out the "Final Solution." In Israel, as at Nuremberg, the trial was adversarial in form but seriously unbalanced, with a keenly zealous and well-supported prosecution and quiescent, reactive defense counsel. It was conducted in a climate decidedly hostile to the defendant and for educational and political purposes far beyond his conviction. The process was shaped by rules of procedure that allowed the admission of great bodies of tainted, irrelevant, and prejudicial evidence. To the Nuremberg legacy, the Eich-

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mann case added the new and poignant problem of a large number of victim witnesses. Atrocity evidence moved to the conscious center of the proceedings, and the testimony of survivors presented the court with a host of dilemmas. In the end, as at Nuremberg, the Eichmann prosecution was saved from grave error only by the intervention of a fair-minded judge who kept the process from tipping over into oppression.

The Interrogation The first step in the prosecutorial effort was Eichmann's interrogation by the Israeli police, which began on May 29, 1960, and was not concluded until january 1, 1961. In all, 275 hours of questioning was conducted and recorded on audiotape. The tape was transcribed into a 3,564-page document, and Eichmann reviewed, corrected, and initialed each page. 3 The prisoner had no counsel and no protection against selfincrimination during the preponderance of the interrogation process. Why Eichmann spoke as extensively as he did under these circumstances of captivity and interrogation is not entirely clear. Gideon Hausner, the Israeli attorney general and lead prosecutor in the case, advanced a disturbing hypothesis in his book on the trial: "We had the impression that he believed his safety depended on keeping talking. When Superintendent [Avner] Less [the chief Israeli interrogator] would occasionally skip a day of interrogation, Eichmann would grow nervous and ask the guard for the reason. He was visibly relieved when the questioning was resumed." 4 The circumstances of Eichmann's interrogation invite serious speculation that his statement was, at least to some degree, the product of coercion. The interrogation explored every phase of Eichmann's life and career: his youth, education, and early employment; his relationships with a score or more of prominent Nazis, including Ernst Kaltenbrunner, Heinrich Rimmler, Reinhard Heydrich, Heinrich Muller, and Rudolf Hoss; his career in the Nazi bureaucracy, from his first great "success" -organizing the forced emigration of Austrian jews-to such critical questions as his role in Section N B 4 of the Reich Security Main Office (RSHA), which was in charge of Jewish affairs for most of the Third Reich. The interrogation probed Eichmann's connections to the killing operations conducted at various Nazi death camps as well as those carried out by the infamous Einsatzgruppen, or mobile killing units, of the SS. It reviewed in painstaking detail hundreds of official Nazi documents from the period between 1933 and 1945, frequently relying on Eichmann to establish the genuineness of materials otherwise impossible to authenticate, 5 which could then be introduced into the proceedings.

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Under both general Israeli criminal procedure guidelines and special rules established by the police for Eichmann's case, the chief interrogator was not supposed to engage in "cross-examination" of the accused. Yet the questioning took on a tone and form that can only be described as inquisitorial. Police Captain Avner Less would regularly press Eichmann on key points or urge him to explain the implications of critical documents. Less's approach was meticulously planned in advance for maximum interrogative effect. Attorney General Hausner described the interrogator's approach to a critical document concerning a 1939 meeting presided over by Reinhard Heydrich: Eichmann's pretrial examination on this key document was carefully thought out. He was first shown Heydrich's directives and invited to comment. Professing complete ignorance, he said that only now, having seen this document in the Israeli prison, did he realize how ghettos came into being.... It was only then that his interrogator, Chief Inspector Less, showed him a copy of the official minutes of the September 21 [1939] conference (which we discovered) where he appeared on the attendance list. Eichmann was visibly shaken. At first he mumbled for several minutes; then he said: "It obviously can no longer be doubted that I was at the meeting, as I am listed here. " 6

At trial, the prosecution built on the cross-examination that the interrogation had so craftily begun to highlight Eichmann's admissions of guilt and, at the same time, to impugn the credibility of his defense. During most of the police examination, Eichmann had no access to a lawyer. He had to face it alone, without an opportunity to consider a defense and without any assistance in analyzing the complex factual and documentary context of his case. The length and scope of the interrogation alone adversely affected the defendant. The 3,564-page statement provided the State of Israel with an immense body of material from which to extract incriminating information. The prosecution exploited this information in the trial, including such powerful circumstantial proof of Eichmann's knowledge of the Nazi murder program as his otherwise unverified admission that he visited various concentration and death camps. While such material may be exceedingly valuable, coming as it does out of the mouth of the defendant, a genuine risk exists that it is the product of misstatement or confusion-not to mention coercion or deliberate distortion by the inquisitor-rather than accurate recollection. The prosecution used this voluminous statement as a standard by which to measure the testimony the defendant gave at trial. Under generally recognized principles of Anglo-Israeli-American common law, any subsequent deviation from the police statement could be used to cast doubt on the defendant's credibility. While, on its face, this procedure

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seems fair, the interrogation record could be used to suggest that the defendant was lying on the stand when, instead, the record itself was deeply flawed by the length and intensity of the questioning, the repetition of questions in different contexts, and the failures of memory that inevitably occur under such circumstances. The prosecution exploited these problems in its cross-examination of the defendant during the trial. At one point, Eichmann protested the use of a written report regarding a visit he had made to the Middle East, arguing that he had not written but only corrected the spelling of the document and denying responsibility for its content. The prosecutor asserted: "During the police interrogation, at least, you had the courage to state that you admit this responsibility. Now you are going back on it again." Eichmann replied: "During the police interrogation I forgot quite a lot, confused quite a lot, and even testified to many things to my detriment which had, in reality, never occurred." 7 This contention was presented as the lie of a desperate defendant, but it might, just as easily, be the truthful assertion of a defendant who, despite his expressed confusion, was urged during protracted pretrial interrogation to comment on documents isolated from their context. The defendant had not considered the documentary materials he was presented with for fifteen or twenty years and had no framework in which to analyze them other than that provided by the police. The interrogation concentrated significant effort on gathering Eichmann's uncounselled reactions to several of the legal defenses he later sought to advance, especially the claim that he was following "superior orders." Garnering the defendant's opinions about legal questions before he had the opportunity to review the meaning and implications of such defenses with counsel provided the police with an opportunity to undermine key elements of those defenses before they could be developed. As Eichmann kept talking, perhaps in the mistaken belief that this was necessary to prolong his life, he was led to talk himself into unavoidable execution. Seven months of interrogation may not have fatally undermined Eichmann's chance for a fair trial, but the scope and duration of questioning do suggest overreaching. The process may have seemed appropriate for a defendant branded by the head of state as an infamous Nazi responsible for genocide, but it assumes that the state's imperative to build its case in an unimpeded manner supersedes any interest the accused has in mounting a defense or that the state has in guaranteeing a fair trial. Such an approach readily crosses over into oppression.

The Prosecutors At the same time as the police diligently pressed their interrogation, the prosecution was busy drafting its indictment and preparing its proof.

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From the outset, it was clear that the State of Israel was determined to conduct a trial that would teach the world about the Holocaust. In an open letter to the head of the World Zionist Organization, Ben-Gurion wrote: "The Holocaust that the Nazis wreaked on the Jewish people is not like other atrocities that the Nazis committed in the world, but a unique episode that has no equal, an attempt to totally destroy the Jewish people, which Hitler and his helpers did not dare try with any other nation. It is the particular duty of the State oflsrael, the Jewish people's only sovereign entity, to recount this episode in its full magnitude and horror; without ignoring the Nazi regime's other crimes against humanity-but not as one of these crimes, rather as the only crime that has no parallel in human history. " 8 The chief prosecutor, Gideon Hausner, defined the charges and built the case against the accused as a symbol, as well as an instrument, of Nazi genocide. His responsiveness to the prime minister's concerns is evident in the fact that he sent Ben-Gurion a draft of his opening address and received recommended changes from the prime minister. 9 The forty-five-year-old Hausner had been appointed attorney general approximately two weeks before Eichmann's capture. A prominent lawyer, he had been brought to Palestine from Poland by his Zionist father at the age of twelve in 1927. 10 Hausner saw the Eichmann case as an opportunity to educate Israeli youth who were born after World War II about the "Final Solution." As he explained it: "There was, in fact, much more to it than a desire for a complete record. I wanted our people at home to know as many of the facts of the great disaster as could be legitimately conveyed through these proceedings. It was imperative for the stability of our youth that they should learn the full truth of what had happened, for only through knowledge could understanding and reconciliation with the past be achieved.... There was here a breach between the generations, a possible source of an abhorrence of the nation's yesterday. This could be removed only by factual enlightenment. " 11 Eichmann could serve as the vehicle to inform young Israelis of the tragedy of the Holocaust and the bravery of their elders. The decision to treat Eichmann's trial as a unique opportunity to present a sweeping narrative about the Holocaust was reinforced by the law under which he was prosecuted, the Nazis and Nazi Collaborators (Punishment) Law of 1950. 12 This act cast its net in the broadest possible way. It was designed to apply retroactively, to reach beyond Israel's borders to encompass acts committed anywhere in the world, to obviate the need to prove specific criminal intent, to allow multiple punishments for the same crime, and to abrogate normal statutes of limitations. Perhaps most important from a courtroom perspective, it authorized the court to "deviate from the rules of evidence if it is satisfied that this will pro-

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mote the ascertainment of the truth and the just handling of the case. " 13 In Jerusalem, as at Nuremberg, this extraordinary latitude carried the considerable risk that, in courtroom practice, the drive toward "the ascertainment of the truth" might override "the just handling of the case." As Attorney General Hausner faced the daunting task of preparing a case that stretched over more than a dozen years (1933-45) and encompassed the fate of all European Jews, he chose to rely on a logical but nontraditional source of criminal trial proof: the vast court record of the Nuremberg prosecution, which filled forty-two volumes, augmented by the records of a series of later successor trials, concerning the activities of Nazi doctors, judges, and government functionaries. In his book on the Eichmann case, Hausner indicates that reading through the Nuremberg record was a central component of his preparation; during the time before trial he was "consuming the Nuremberg Trials reports at the rate of a volume per day. " 14 Nuremberg had a dramatic influence on the Eichmann prosecution. Proof originating at Nuremberg was repeatedly offered in Jerusalem, including dozens of transcribed statements from witnesses and defendants as well as live testimony from a former judge and an expert witness. Equally important, Hausner adopted forensic strategies pioneered by the Allied prosecutors in 1945. He offered motion pictures to document the full horrors of the concentration camps. The IMT prosecutors had taken the most expansive view of the rules of evidence, offering affidavits and other sorts of hearsay with abandon. At Eichmann's trial, Hausner argued that Israel, under Section 15 of its Nazis and Nazi Collaborators (Punishment) Law, should follow suit. The Nuremberg prosecutors had charged the chief Nazi war criminals with a broad range of criminal activities and dedicated themselves to providing the court with proof of the full scope of the depravity of the Third Reich. Hausner set the Israeli prosecution on a similar course, offering a fifteen-count indictment that featured charges of immense crimes against the Jewish people (counts 1 through 4), crimes against humanity (counts 5 through 7 and 9 through 12), and war crimes (count 8). 15 Following the precedent set at Nuremberg meant that the Eichmann case grew to global proportions, offering a comprehensive description of Nazi barbarity toward the Jews. The implications of this choice were clear to Hausner: If I decided on a comprehensive charge sheet, imputing to Eichmann responsibility for all his widely ranging criminal activities and using particular instances as proof of his exceptional malice, the prosecution would not be fettered by details of dates, places and people affected. But there was a second side to the question. For we would then be bound by law to adduce a sufficiently compre-

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hensive amount of proof to substantiate our wide and general allegations. Should we not be in a position to do so, the whole thing would boomerang, with the result of acquittal on a charge too widely framed and not adequately supported by evidence. 16

Hausner set out to provide proof comprehensive enough to support the breadth of the indictment and the scope of the trial. This requirement induced the prosecution to present Eichmann as the central actor in the Holocaust narrative. The pressure to treat Eichmann as the evil genius behind virtually every act of Nazi genocide was irresistible, not only because, in dramatic terms, a big accusation requires a big defendant but also because humans tend to ascribe particular malignancy to those things or persons causing truly catastrophic consequences. It was, perhaps, impossible, in Israel in 1960, for this midlevel Nazi criminal to be seen merely for who he was and judged only for what he had done, rather than as representing the entire mechanism of genocide. In the prosecution's thinking, the equation between the criminal in the dock and the magnitude of the Holocaust translated into a connection between Eichmann and every death caused by the Gestapo or SS, even those in which the prosecution admitted he had no hand, such as the disappearance of the Czech children of Lidice who were removed from their homes in reprisal for the assassination of Reinhard HeydrichP It also mandated a rhetorical strategy that presented Eichmann as the epitome of evil. The prosecution's opening and closing remarks repeatedly referred to Eichmann as "devilish," "fiendish," and "satanic," rhetoric reminiscent of sixteenth-century European witchcraft prosecutions. 18 Finally, the emotional strain caused by seeking to document such an enormous accusation had serious consequences for the prosecutors themselves. Months before the trial, Hausner decided that it was important for the state, as part of its retelling of the Holocaust story, to present a substantial number of live witnesses. The task of interviewing scores of potential witnesses was originally assigned to Victoria Ostrovski-Cohen, deputy district attorney for Tel Aviv. Eventually, according to Hausner, she became overwhelmed by the horror of survivors' stories, and he had to assume this task himself. 19 His description of this phase of preparation is sprinkled with hints of its difficulty, from its "staggering" content and its "tragic" import to "the steep emotional barriers" he encountered. Day in and day out, the prosecutors had to deal with the most harrowing proof, from the slaughter of innocent children to the defilement of the dead. Hausner and his staff were forced to enter the heart of darkness and prove in excruciating detail some of the worst crimes of the twentieth century.

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The Defense Counsel Defending Eichmann posed a host of serious problems, starting with the essential matter of finding counsel. Without much deliberation, Hausner and most others concluded that no Israeli advocate could establish "that close and confidential relationship that must exist between a client and his attorney." 20 They assumed that Eichmann and a Jewish lawyer would be so mutually hostile as to make cooperation impossible. Moreover, a Jewish advocate who agreed to handle the case might be ostracized socially and professionally. These considerations do not, however, foreclose any connection between the defense and the local bar. By ruling out any connection, Hausner and others in authority completely isolated Eichmann's defense counsel from Israeli legal culture. The foreign lawyers who represented Eichmann could expect no advice about procedure, the particulars of local legal interpretation, or the judges and opponents they would have to confront. These difficulties may not have been insurmountable, but they represented a serious handicap. Justice Minister Pinhas Rosen began a search among Swiss and American lawyers to find a representative for Eichmann. Simultaneously, several advocates from around the world contacted the Israeli government to offer their services. Their names were passed along to Eichmann. Instead of picking one of them, he selected Dr. Robert Servatius, a lawyer from Cologne, Germany, who had been recommended by Eichmann's half-brother, himself an Austrian lawyer. The Israelis insisted on inquiring into Servatius's background; only when they had determined that he had not been directly associated with the Nazi regime was he accepted. This ideological screening, while understandable from the Israeli point of view, raises disturbing questions about excessive government control. Then, before Servatius was allowed to appear, he had to be voted a special dispensation from local legal qualification by the Knesset. This legislative intrusion into the selection process created further delay and raised more questions about counsel's independence. The final hurdle was arranging payment of the defendant's legal fees. The Eichmann family claimed that it could not afford to pay Servatius. Despite strong resistance and after significant delay, the Knesset voted to pay defense counsel $30,000, the sum he had requested. Dr. Robert Servatius brought a substantial background in war-crimes trials to the Eichmann case. He had represented an individual and a governmental organization before the Nuremberg tribunal and had been involved in the Nuremberg successor trials as wel1. 21 This wealth of experience made him reasonably comfortable trying the Eichmann case within the Nuremberg framework the prosecution selected. He under-

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stood the nature and implications of the prosecution's charges of crimes against humanity and was prepared to frame a defense against those claims. He was also acquainted with some of the evidence and a number of the witnesses upon whom the prosecution relied. Yet Sexvatius's experience was not always an advantage for the defense. Most important, he was willing to accept the Nuremberg framework as a given rather than subjecting it to close scrutiny and challenge. In addition, he was, several times, placed in the awkward position of providing the court with information more akin to a witness's testimony than an advocate's presentation. This problem was most glaringly apparent when, in crossexamining two prosecution witnesses who had been present at Nuremberg, he interlaced his questions with personal observations and factual assertions. The transformation of counsel into a sort of witness raised difficult ethical and credibility questions. Dr. Servatius was at a profound disadvantage in defending Eichmann. When he accepted the case, Eichmann's interrogation was already well along. 22 Before defense counsel arrived, the government had already secured interrogation materials of enormous value from the unrepresented Eichmann. Sexvatius was not associated with any group oflawyers who might provide support or additional expertise. He tried the Eichmann case with only the help of a single associate, Dieter Wechtenbruch. The prosecution, however, had at least a half-dozen experienced Israeli lawyers, five of whom appeared in court. Both Sexvatius and Wechtenbruch were continental lawyers inexperienced in the nuances of a common-law adversarial system like that of Israel. Both were accustomed to a process more likely to rely on written submissions than live interrogation, to defer to judicial inquiry rather than press examination themselves, and to make only limited use of cross-examination. They were unfamiliar with the wide range of evidentiary rules applicable in a common-law courtroom, allowing the relaxation of such rules that was expressly permitted in this trial to expand into their wholesale abrogation. Arrayed against Eichmann was the entire prosecutorial machinery of the State of Israel. A new bureau of the national police was established to prepare the case, providing the prosecution with the vast bulk of its documentary material as well as polished assessments of the history of the Holocaust in twenty-six countries. 23 The Israeli prosecution also relied on assistance from Yad Vashem, the Martyrs' and Heroes' Memorial Authority whose mission is to assemble a record of the Holocaust, as well as document repositories and research facilities in a number of other nations. In contrast, Sexvatius and Wechtenbruch did little affirmative research but spent most of their time familiarizing themselves with the 1,600 documents given to them by the prosecution and

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preparing to examine the 121 witnesses the prosecution called. Dr. Servatius repeatedly mentioned the limits imposed on him by a scarcity of resources. When the defense began its case, he asked the court to hold only half-day sessions so that he could study the exhibits. In the end, the District Court acknowledged that Dr. Servatius "stood almost alone in this strenuous legal battle." 24 The defense operated in an overwhelmingly hostile public environment. From the moment of Eichmann's capture, Israel's chief of state and other govemment officials issued damning and damaging remarks. Despite a long-standing tradition of restraint while cases are sub judice, Israeli newspapers cried out for Eichmann's blood. Such hostility placed enormous pressure on the judges to limit the case the defense was allowed to mount and to conform their verdict to popular expectations. Dr. Servatius bitterly decried this situation in his closing remarks, underscoring its impact on the defense's ability to present its case: "Experts who could have been helpful tumed a deaf ear to the requests of the Defence. They were intimidated by the daily fanfares of the press and the trumpeting of publications. They shut their ears. This noisy campaign of the press against the Accused amounted to contempt of court of an enormous extent. The Defence was hardly able to fend it off. " 25 Experts and other potential witnesses were intimidated from appearing on behalf of the defendant. The prosecution made it abundantly clear that Nazi war criminals who entered Israel would be arrested and prosecuted. Attorney General Hausner specifically declared that proposed defense witnesses, including Otto Winkelmann, Erich von dem BachZelewski, and Edmund Veesenmayer, would be arrested on sight. 26 In the end, Eichmann produced no live testimony apart from his own. This placed virtually the entire burden of carrying the defense on Eichmann's shoulders when he took the witness stand, a doubly difficult task given his pretrial interrogation. Servatius adopted a passive trial strategy, featuring a minimum of cross-examination, a reliance on prosecution documents to make the defendant's case, a relatively limited number of witness statements from abroad, and an abundance of written rather than oral argument. The explanation for Servatius's passivity may lie even deeper than problems of evidence and procedure. Each time defense counsel spoke, crossexamined, or argued, he faced the risk of alienating the judges. He was an outsider, a veteran of the German Wehrmacht, and a citizen of the nation that had unleashed the most deadly anti-Semitic violence ever known. A misplaced word or misinterpreted argument could easily arouse hostility against the defendant. The judges scrutinized his words carefully, and whenever there was even a hint of an offensive concept they were quick to make their displeasure known.

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A telling example of this intense screening and censorship arose during Servatius's cross-examination ofJoel Brand, who, in 1944, had participated in negotiations to trade one million Jews for 10,000 trucks-the so-called "blood for goods" deal. The offer was apparently a ploy by Rimmler to improve his image in the West and perhaps secure needed equipment into the bargain. As Servatius was questioning Brand, he and the presiding judge had the following exchange:

Q [Servatius to Brand]

Presidingjudge

Dr. Servatius

You spoke yesterday about the cold and hideous proposal to exchange one hundred thousand Uews], or rather a million, for goods. Was this proposal ... a solid and businesslike proposal from Eichmann's standpoint? I assume that this question is meant to be ironic; otherwise it is beyond my comprehension. Yes; the witness said it was a coldly calculated affair, and I want to know from him whether it was a sober proposal, made in cold blood.... 27

The judge's sharp reaction to any hint that Servatius might be commodifying Jewish lives signals the intense sensitivity of the bench. Servatius's problem was underscored in the final judgment, when the panel complimented defense counsel for his unflagging efforts but could not resist drawing attention to "some uncalled-for innuendoes ... which jarred on our ears." 28 In light of the scrutiny and criticism his words might inadvertently provoke, Servatius was exceedingly cautious in questioning and argument. In such a setting, written rather than spoken presentations and a scrupulously low profile were less risky than a more zealous defense.

The Judges The task of deciding Eichmann's guilt or innocence was assigned to a threejudge panel sitting in the Jerusalem District Court. The choice of Presiding Judge Moshe Landau and Associate Judges Benjamin Halevi and Yitzchak Raveh was the result of a complex political compromise. 29 Under the Nazis and Nazi Collaborators (Punishment) Law, the selection of judges was the responsibility of the chief judge of the Jerusalem District Court. At the time of Eichmann's capture, that post was held by Benjamin Halevi. The chief judge was free to appoint himself, and Halevi indicated his intention to do so. This prospect alarmed both Justice Minister Pinhas Rosen and the president of the Israeli Supreme

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Court, Yitzhak Olshan, because ofHalevi's highly controversial handling of a 1954 libel case, involving allegations that a prominent Hungarian Jewish leader named Israel Rudolf Kastner had collaborated with the Nazis during the Holocaust. In his written opinion in that case, Halevi had mentioned Adolf Eichmann directly and likened him to the devil. Moreover, the Kastner libel case was found by the reviewing appellate court to have been badly managed; sixty witnesses appeared, and over three thousand pages of testimony was taken. Judge Halevi was accused of permitting the introduction of a broad range of extraneous material and of branding Kastner a Nazi collaborator without adequate proof. In the wake of Halevi's original opinion, on March 3, 1957, Kastner was assassinated on the streets of Tel Aviv. Supreme Court President Olshan attempted to persuade Halevi to step aside in the interest of the appearance of justice. Halevi refused, and Olshan recommended to Pinhas Rosen that the selection procedure be amended by legislative action. Rosen's announcement of this proposal was met by a political outcry. Eventually, in a compromise, Olshan was empowered to select the presiding judge for the trial, while Halevi retained the power to select the two associate judges. Olshan chose Moshe Landau, the youngest member of the Israeli Supreme Court, to preside. Landau had been born into a German-speaking Jewish family in Danzig and had been educated in London. 30 Halevi chose himself and Yitzchak Raveh, a judge of the Tel Aviv District Court, for the two associate positions. Both Halevi and Raveh were fifty years of age (three years older than Landau), native German speakers, and educated at the University of Berlin. Throughout the Eichmann case, Dr. Servatius contended that there was an unacceptably great risk that the judges harbored prejudice against the defendant because they or "near relative[s] of [theirs were] harmed by the acts brought forward in the charges. " 31 Furthermore, the defendant had a reasonable apprehension of prejudice because the acts charged intruded on "the general sphere of interests" of one or more of the judges, making it impossible for them to maintain a professional distance. 32 These arguments strike at the heart of the difficulty of trying accusations related to genocide in the country of the victims. Heinous acts committed on a vast scale always expose judges to the strong tug of bias on both a conscious and an unconscious level. Genocide cries out for vengeance, and the defendant offers the most convenient target. Only the most careful and dispassionate of judges can keep the terrible nature of the charges from undermining the court's ability to treat the defendant as a fit object for judicial respect and protection. Servatius's claims raised an issue that could not be peremptorily brushed aside. Judge Landau answered the defendant's challenge:

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The subject of the charges in this case is the responsibility of the Accused for the acts described in the indictment. In the examination of this question it will not be difficult for us to maintain the guarantees ensured to the Accused in any case conducted according to our criminal law procedure, namely that every man is deemed to be innocent and that his case must be tried only on the basis of the evidence brought before the Court. Those charged with the task of judging are professional judges accustomed to weighing evidence and they will be carrying out their task under the critical gaze of the public; learned and experienced lawyers are defending the Accused. As for the Accused's fear conceming the background against which this trial will be heard we can only repeat the principles which apply to every judicial system worthy of the name; that indeed while on the bench a judge does not cease to be flesh and blood, possessed of emotions and impulses. However, he is required by law to subdue these emotions and impulses, for otherwise a judge will never be fit to consider a criminal charge which arouses feelings of revulsion, such as treason, murder or any other grave crime. It is true that the memory of the Holocaust shocks every Jew to the depth of his being, but when this case is brought before us we are obliged to overcome these emotions while sitting in judgment. This duty we shall fulfil. 33

While the presiding judge appropriately emphasized the duty of professional judges to focus on the evidence rather than on the heinous nature of the crime, it was by no means certain that these or any judges similarly situated could provide a fair and unbiased hearing. Not only did each have substantial personal associations with the Holocaust, but each had been subject to overt political scrutiny before appointment. The media's vocal animosity toward the defendant was compounded by the prosecution's determination to turn the trial into a didactic proceeding rather than an individualized examination of Eichmann's guilt. Judge Halevi's conduct at Eichmann's trial confirmed the validity of Servatius's concerns. He questioned the prosecution's witnesses in a freewheeling manner, often seeking information that was irrelevant to the charges before the court. For example, he asked several witnesses about the collaboration of Polish and French citizens with Nazi officials in the deportation and victimization of their Jewish compatriots and about alleged collaboration between Jewish Councils and Nazi officials. These interests reflected his concerns in the Kastner case. Halevi pursued other dubious matters as well, including the wartime feasibility of assassinating Eichmann. Judge Halevi's objective seemed to be to uncover the complete Holocaust "story" no matter whether court rules were broken or irrelevancies were entertained. The cost of such a search for the "truth" is steep. It requires a willingness to sweep aside procedural constraints, to assume the function of inquisitor, to strip the parties of their roles in the case, and to traffic in all sorts of dubious information. Besides violating established principles of law, such an approach creates the appearance of impropriety and

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leaves the process open to charges of unfairness. It also increases the risk of error. If the inquiring judge forms the wrong impressions or asks the wrong questions, it becomes extremely difficult to avoid erroneous conclusions and perhaps erroneous convictions. It is hard to believe that Halevi ever entertained the possibility that Eichmann might not be guilty of the charges leveled against him. Halevi was not critically examining the proof but creating it to bolster his predetermined point of view. Halevi's companions on the bench used a different approach. Hannah Arendt has persuasively argued that Judge Landau, in particular, protected the integrity of the trial and secured a reasonable measure of justice for the defendant. 34 Landau struggled to keep the case within legal bounds and focused on Eichmann. He fought with the prosecutors to curtail their selective reading from submitted documents in open court, preventing them from putting on a scripted and edited show. Landau firmly signaled that the proofs were for the court, not for the public or the press. Similarly, Judge Landau constantly pressed the prosecution to speed its presentation and to restrict the marginal materials that the prosecution wished to offer as part of its grand tale of the Holocaust. A review of the vast transcript of the Eichmann trial demonstrates that it was Landau who labored day in and day out to keep the proceedings fair by insisting on decorum, by protecting the defendant from prosecutorial excesses, by carefully considering the evidentiary ramifications of proffered materials, and by providing a dignified and dispassionate altemative to Halevi. Landau saved the proceedings. He was able to win Judge Raveh's backing despite the fact that Judge Halevi had appointed Raveh to the panel. Raveh provided the crucial supporting vote that made Landau's efforts successful. In the Eichmann trial, it was virtually impossible for the judges to protect themselves from extrajudicial information about the charges. Not only were they intimately familiar with the terrible events being narrated, but at least two gathered additional scholarly and historical information outside the record presented in court. 35 The case was not tried exclusively on the proof adduced at trial but on a wealth of other materials as well. Because it was impossible for the defendant to know exactly what additional information the judges had considered, there was no way for the defense to respond. This placed Eichmann at a severe disadvantage and lent credence to defense concems about bias. The judges were burdened by their own emotional responses to the parade of prosecution witnesses, who narrated events of the most heartrending and overwhelming sort. Near the end of one trial session, State Attomey Gabriel Bach gave voice to what the prosecutors must have frequently felt when he declared: "Your Honours, I have now concluded

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our evidence concerning France. I could go on to Belgium, but I would not object if you were to decide to continue tomorrow morning." 36 The presiding judge, having just sat through a day of utterly horrifying material, responded "Yes, this is not an easy task." This interchange calls to mind another significant phenomenon. The judges were entirely unable to deny survivor witnesses the opportunity to continue their testimony, even when they offered material of no relevance to the case at hand. Again and again, witnesses would come to the end of counsel's questioning and ask permission to continue their statements. The court virtually never terminated their testimony. Judge Landau said he reluctantly allowed them to proceed "out of respect for the witness and out of respect for the matters he is relating. " 37 By their own admission, the judges were not in complete control of the process. The matters being described invested the witnesses with a special authority-albeit one that threatened the focus of the proceedings. The risks posed by the live testimony of surviving victims are graphically displayed in the testimony of the Israeli poet and writer Abba Kovner, a hero of the resistance from Vilna. He began his testimony in an unconventional way with a story about a child he encountered upon entering liberated Vilna on July 13, 1944. In answer to the question which German units had the occupiers "belong[ed] to," Kovner responded: A. To the Wehrmacht and to the SS. A group of my friends and I sought first and foremost to get to the place from where we had set out, to our city. What can I say? I saw a desert of walls, empty streets, and when I came to a certain street, a woman suddenly ran towards us, and the woman held a little girl in her arms. At first she stopped and uttered a cry, and sought to conceal herself. A few of us were dressed in German uniforms which we used to wear with the partisans; possibly she thought that the German army had returned again. But when she understood, she ran forward towards us and began, in a hysterical voice, to tell her story. What I understood from her was that she and the child who looked like a girl who was three years old, but who was certainly four or older, had been hiding in an alcove for more than 11 months. How they were able to exist in that alcove and to live for 11 months-I couldn't understand. She poured out her story. She burst out crying, bitterly. At that moment, the child in her arms, who had seemed to be dumb, opened her mouth and said: "Mama, men darf shein weinen?" (Mother, are we allowed to cry already?) We were told that she had taught her, the baby girl, for 11 months that she wasn't allowed to cry when she was hungry, because someone outside might hear them and discover them. Now, when she heard her mother crying she asked the question. I can tell of other things I saw. But this question by the little girl says more than enough. However, I don't know whether the innocent question of a baby is evidence at a trial. 38

No objection was made to this powerful but irrelevant answer. Kovner went on and on with unrestrained and vivid reminiscences.

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When the prosecutor invited him to describe the circumstances surrounding the death of the first commander of his partisan unit, an extraneous matter that Kovner himself had brought up, he refused. The presiding judge sought to cajole the poetinto speaking:

Presidingjudge Witness Kovner

Presiding judge

Witness Kovner Attorney General

Mr. Kovner, you will appreciate the difficulty involved in the matter, if you say, "I will not describe it." Believe me, Your Honour, the Presiding Judge, the greatest difficulty is for me to describe it and not for anyone to hear it. That is clear. I do not have to tell you that we are full of admiration, but there is also another problem here. And I am certain that a man such as you understands this. Yes. If it is difficult for you, Mr. Kovner, I am ready to go on to the next question. 39

The confidential tone of this conversation is troubling, and the judge's declaration of "admiration" suggests bias. Kovner's holding back seemed a ploy to intensify the effect of his story. The impression that such testimony was unmanageable is reinforced by Judge Landau's final remark:

Presidingjudge

Thank you very much, Mr. Kovner. Mr. Hausner, we have heard shocking things here, in the language of a poet, but I maintain that in many parts of this evidence we have strayed far from the subject of this trial. There is no possibility at all of interrupting evidence such as this, while it is being rendered .... It is your task to prepare the witness, to explain matters to him, and to eliminate everything that is not relevant to the trial, so as not to place the Court once again-and this is not the first time-in such a situation. I regret that I have to make these remarks, after the conclusion of evidence such as this. 40

By producing such witnesses and allowing them to stray "far from the subject," the court lost the degree of control of the proceedings that justice requires. Materials like Kovner's pose serious dangers to a fair trial. Studies of judicial reaction to biasing evidence suggest that it can remain in judges' memory and affect their decision making. 41 No protection existed for the Eichmann judges. They saw and heard everything.

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They had to rule on the admissibility of all the evidence, screen the testimony of all the witnesses, decide the evidentiary status of all the hearsay, and observe all the films and exhibits. That Landau and Raveh were able to maintain as much equanimity as they did is a remarkable achievement, but it was hard won and always tenuous.

The Prosecution Case Eichmann's trial began on April 11, 1961. Attorney General Gideon Hausner took a day and a half to outline the prosecution's case. His opening remarks signaled the state's commitment to conducting an expansive trial, involving the entire Nazi regime. Hausner declared: When I stand before you here, Judges of Israel, to lead the Prosecution of Adolf Eichmann, I am not standing alone. With me are six million accusers. But they cannot rise to their feet and point an accusing finger towards him who sits in the dock and cry: "I accuse." For their ashes are piled up on the hills of Auschwitz and the fields of Treblinka, and are strewn in the forests of Poland. Their graves are scattered throughout the length and breadth of Europe. Their blood cries out, but their voice is not heard. Therefore I will be their spokesman and in their name I will unfold the awesome indictment. 42

Such an opening was the first step to carrying out the Nuremberg-style design of a grand public display. In a statement that ran to fifty doublecolumned pages, Hausner cited or quoted the widest possible range of materials: Hitler's autobiography, Mein Kampf, The Protocols of the Elders of Zion, a fabricated manifesto alleging itself to be the Jewish plan to conquer the world that circulated among anti-Semites; records drawn from the Nuremberg trial; a host of other Nazi documents; the official diary of Hans Frank, the Nazi governor of Poland; and myriad eyewitness accounts of what had happened in the ghettos, concentration camps, and killing centers across Europe-Lvov, Warsaw, Lodz, Kovno, Draney, Malines, Budapest, Majdanek, Treblinka, Chelmno, Sobib6r, Belzec, and Auschwitz. The organizing theory of the prosecution's presentation was that Adolf Eichmann was the chief architect of the slaughter of Europe's Jews. Hausner depicted him as second only to Hitler in responsibility for the Holocaust: Yet never, down in [sic] the entire blood-stained road travelled by this people, never since the first days of its nationhood, has any man arisen who succeeded in dealing it such grievous blows as did Hitler's iniquitous regime, and Adolf Eichmann as its executive arm for the extermination of the Jewish People. In all human history there is no other example of a man against whom it would be possible to draw up such a bill of indictment as has been read here. The most terrible crimes of those fearful figures of barbarism and blood-lust, Genghis

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Khan, Attila, or Ivan the Terrible, the telling of which curdles our blood and makes our hair stand on end with horror, deeds, that have become "a proverb ·and a taunt" and an "everlasting abhorrence" to the nations-these almost seem to pale into insignificance when contrasted with the abominations, the murderous horrors, which will be presented to you "in this trial. 43 Yet, a certain ambiguity in the prosecution's phrasing concerning Eichmann's responsibility signaled a serious problem at the center of the state's case: how to explain the ability of a seemingly insignificant Obersturmbannfiihrer (lieutenant-colonel) to play such an important role in the all-encompassing, multifaceted plan to exterminate the Jews. The prosecution's response to this dilemma was to portray Eichmann as a sort of anti:Jewish ministre extraordinaire: He lorded it over the ghettos and extermination centres; his position in the RSHA was unique. He could pass over the heads of his superiors and deal directly with Himmler. His nominally humble status as the chief of a subordinate department did not reflect his powerful position. Through his concern with Jewish matters, he was granted comprehensive and potent authority which brought him into contact with Ministers of the Reich and heads of the governments of the occupied territories, with the higher commanders of the German Army and the top men of the Foreign Ministry. In all that pertained to Jewish affairs he operated with all the power and authority of Himmler and Heydrich behind him. We shall present documents proving that in Jewish matters, the RSHA, the Central Security Office of the German Reich, was in fact Adolf Eichmann. 44 Demonstrating Eichmann's extraordinary power required showing that he was everywhere at once and that his actions led directly to the implementation of the "Final Solution." Such a task was daunting, and with strict requirements of proof it would probably have been impossible. However, attempting it served the larger purposes of the trial: to document the enormity of the Nazi genocide and to hold someone responsible. The prosecution began its evidentiary presentation with the most damning sections from Eichmann's pretrial interrogation. Police Captain (Pakad) Avner Less first described the interrogation process and Eichmann's willing participation in it. Then tape recordings of key passages were played in open court, including Eichmann's self-incriminating reaction to the written order mandating the "Final Solution" and his admission that he had visited various death camps and observed other killing operations. These admissions, heard in Eichmann's own voice, demonstrated beyond doubt that the accused had been fully informed of the slaughter from its earliest days. For example, Eichmann described how, in 1941, he had watched the SS murder Jewish prisoners in Litzmannstadt:

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E[ichmann]

L[ess] E[ichmann]

A room-if I remember correctly-possibly five times the size of this one, perhaps only four times as large. There were Jews inside, they were required to undress, and after that a completely closed truck arrived and the doors in front were opened and it came up to some kind of platform; and the naked jews were obliged to go inside. Afterwards the truck was closed and began to move. How many people were in the truck? I cannot tell you this exactly. I could not even watch what was going on exactly, all the time I did not look at it; I was far too upset. I told this to [Heinrich] Muller also, at the time I reported. He did not derive much benefit from my report. Afterwards I rode after the truck, certainly with one of the men who knew the way-and there I saw the most horrible thing that I had ever seen in my life: It drove up to a long ditch, the doors were opened, and the bodies were thrown out, as if they were still alivetheir limbs were so supple. They were thrown into the ditch-I could still see how a civilian was removing teeth with pliers, and then I moved away from there. I entered the car and went away, and I did not speak at all. From then on I sat next to the driver for hours without exchanging a word with him. By then I was "fixed" then I was "finished." I only know further that a doctor in a white coat said to me that I should look through the peephole in the partition to see how they were inside the vehicle. I refused to do this. I couldn't ... I couldn't say another word. I had to get away. I came to Berlin, I reported to Gruppenfiihrer Muller. I described those things to him exactly as I am doing now-more I couldn't say to him: More precisely I said to him: "Terrible," I said, "the Inferno ... I cannot ... this is ... that I cannot ... " I said to him. 45

The police captain also played sections in which Eichmann described a spurting "geyser" of blood he had seen at a massacre site outside Lvov, 46 as well as his observations of the death factories at Auschwitz and Treblinka. The tapes then presented Eichmann's admission of his part in the "Final Solution" from its formal inception at the Wannsee Conference to its administration across Europe. Hausner stressed Eichmann's concession that " ... I will surely be found guilty of being an accomplice to

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murder. However this may be, in my inner soul I am ready to atone, also personally, for those terrible things and I know that I am liable to the death penalty. I am not asking for mercy because I am not entitled to do so. Furthermore, this is a great act of atonement, I am ready to hang myself in public, as a warning example for the last anti-Semites of the countries of this world. " 47 At the end of the taped presentation, the prosecution submitted the entire 3,654-page transcript to the court as an exhibit. The choice to begin with Eichmann's words was an exceptionally canny one. Both the full horror of the Holocaust and the defendant's direct involvement in it were thrust before the court at the outset. Rather than having to build its case piece by piece, painstakingly linking the evidence to specific charges, the prosecution presented its main contentions immediately in the words of the defendant it sought to convict. The prosecution needed little more to perfect its accusations. The burden had been shifted to the defendant to explain or repudiate his own words, underscoring how powerful an advantage the police interrogation had conferred. This advantage was strengthened in the courtroom by the selective and synthetic nature of its re-presentation. The whole interrogation was not read; rather, highlights were culled and played. The result was a hybrid, combining testimony with argument fashioned by counsel, using the defendant's words and voice but cutting, splicing, and orchestrating them for maximum persuasive effect. The prosecution then turned its attention away from Eichmann to the full scope of the loss caused by the Holocaust. An expert witness, Professor Salo Baron of Columbia University, described the Jewish world that had been swept away by the Nazis and detailed the millions of Jews who had died in the catastrophe. At no time was Eichmann mentioned. The troublingly inflammatory nature of such testimony, which dwells not on the defendant's deeds but on the merits and suffering of the victims and the irrevocable loss to the Jewish people, was not remarked by either defense counsel or the court. It was central to the Holocaust story the prosecution set out to tell and had been laid at Eichmann's door whether it was his responsibility or not. The prosecution next sought to document Eichmann's career, focusing on his hatred of Jews and tracing his rise through the Nazi bureaucracy. Material from his personnel file was reinforced by previously recorded statements about Eichmann by several of his deceased Nazi comrades, including Rudolf Hoss, who had been commandant at Auschwitz, and Dieter Wisliceny, who had been one of Eichmann's key subordinates. Both statements stressed Eichmann's zealous, even fanatical anti-Semitism. The Auschwitz commandant's vision of Eichmann suggested he could have no second thoughts:

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Eichmann was totally obsessed by his mission and convinced that the campaign of extermination was essential in order to rescue the German nation in future from the desire of the Jews to destroy it. This is how he saw his mission and he devoted all his energy to the realization of the extermination plans of the Reichsfiihrer-SS .... He did everything to implement the "Final Solution" of the Jewish Question with the greatest possible speed. Every day was vital for him. He did not allow himself to consider difficulties. This he learned from the Reichsfiihrer-SS. The "Final Solution" of the Jewish Question was Eichmann's life mission. 48

This statement painted a portrait of Eichmann as unswerving in his pursuit of the extermination of the Jews. The admissibility of such potentially prejudicial material was questionable, as the prosecution and the court were immediately reminded by the defense. Hoss, a resurrected ghost of Nuremberg, could not be cross-examined, and the truthfulness of his testimony could not be evaluated. Hausner attempted to substantiate Ross's statement by eliciting testimony from Gustave Gilbert, a psychologist who had interviewed Hoss, asking whether Hoss had any motivation to lie. Presiding Judge Landau immediately intervened, reminding the prosecutor that "the question as to whether this was truthful evidence ... is a question for the Court. " 49 According to Anglo-Israeli-American evidence law, using a third party to opine on the truthfulness of the testimony of a witness invades a province reserved for the fact finder. After a lengthy evidentiary argument about the admissibility of the statements from Rudolf Hoss and Dieter Wisliceny, the court allowed their submission, premising its ruling on Section 15 of the Nazis and Nazi Collaborators (Punishment) Law as well as the facts that the speakers had been rendered unavailable by death, had a close connection to Eichmann, and had recorded their statements at an early date. 5° The written testimony of Dieter Wisliceny, Eichmann's subordinate at the RSHA, quoted one of Eichmann's most infamous remarks and painted the portrait of Eichmann that defines his public image to this day. I considered Eichmann's character and personality important factors in carrying out measures against the Jews. He was personally a cowardly man who went to great pains to protect himself from responsibility. He never made a move without approval from higher authority and was extremely careful to keep files and records establishing the responsibility of Rimmler, Heydrich and later Kaltenbrunner.... Eichmann was very cynical in his attitude toward the Jewish Question. He gave no indication of any human feeling toward these people. He was not immoral, he was amoral and completely ice-cold in his attitude. He said to me on the occasion of our last meeting in February 1945, at which time we were discussing our fates upon losing the War: "I will laugh when I jump into the grave because of

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the feeling that I have killed 5,000,000 Jews. That gives me great satisfaction and gratification.'' 51

The problem with this testimony is that Wisliceny was the classic turncoat witness. He cooperated as fully with the Allies as possible, apparently in the vain hope that this would save him from prosecution and execution. In all his statements, he took pains to stress Eichmann's responsibility for the slaughter of the Jews. Wisliceny specifically blamed the defendant for the deaths of "[u]ncountable thousands ofJews" 52 who, from late 1944, Eichmann had shipped to death camps, allegedly in contravention of Rimmler's orders. This powerful and very personal accusation was shaped by self-interest and animosity. In opposing the introduction of this material, Dr. Servatius pointed out that the witness had offered to help hunt Eichmann down. This whole statement was, he argued, nothing more nor less than part ofWisliceny's scheme to "get out of cell133 [where he was incarcerated] and find a chance to live." 53 Wisliceny was particularly angry with his superior because Eichmann had refused to allow him to transfer out of his section to a job unconnected with the murder ofJews. He quoted Eichmann as declaring: "We are all sitting in the same boat, no one is allowed to step out. " 54 Wisliceny had been unable to step out of the boat, and the introduction of his testimony into the trial seemed like a posthumous attempt to take Eichmann down with him. In this instance, as with Ross's statement, the prosecution offered an "authenticating" affidavit that went beyond an explanation of the document's origin to an assessment of the witness's honesty. The affidavit by Smith W. Brookhart, dated September 19, 1960, was obviously prepared at the behest of the Israeli prosecution. Yet Presiding Judge Landau's ruling allowed the admission of all this material, and the portrait of Eichmann adduced by the language and imagery of Wisliceny's statement reverberated throughout the trial and was echoed in the verdict. Following the pattern set at the Nuremberg tribunal, the prosecution charted the rise of anti-Semitism in Germany through the 1930s, detailing the Nuremberg race laws; the book burnings; the brutal expulsion of Jews of Polish origin from Germany; and the pogrom against Jews, their homes, their shops, and their houses of worship carried out on Kristallnacht. Remarkable in' all this was the absence of proof about Eichmann. Indeed, he was mentioned only in connection with the forced emigration of Austrian Jews and a series of documents regarding preliminary discussion of the "Final Solution." Then the prosecution presented a region-by-region survey of Nazi crimes against the Jews, moving from Poland through Eastern Europe to Western and Northern Europe, back to the German and Austrian territories under the control

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of the Third Reich in 1941, and then on to Southeastern Europe, especially Hungary. The prosecution case culminated with the death camps. Whether Eichmann had figured in these horrific events made little difference to the prosecution's presentation. Like the IMT at Nuremberg, the Israeli government's prosecution in Jerusalem was intent on documenting the magnitude of the Holocaust and the enormity of Nazi crimes against the Jewish people. Again and again, as the prosecution presented its case, the defendant's name disappeared from the documents and testimony-except, of course, that he remained in plain sight in the glass booth that had been erected in the courtroom to protect him from assassination. The prosecution's case concerning the destruction of Poland's Jews featured a procession of approximately twenty witnesses who traced a tragic history of ghettoization, brutalization, and murder. Their testimony had deep emotional impact, but none of them tied Eichmann to their plight. One of the most revealing moments came when Dr. Servatius cross-examined Israel Carmel, a Tel Aviv magistrate who had conducted extensive research into the fate of Polish Jewry. Servatius asked if, in the 11,000 pages of Nazi Governor-General Hans Frank's official diary, there was any mention of Eichmann. The magistrate's answer was: "The name of Adolf Eichmann was not mentioned in the twenty-nine volumes." 55 As Eichmann's visibility declined, so did defense counsel's participation; apart from Carmel, Servatius chose to cross-examine virtually none of the Polish witnesses. Their gut-wrenching evidence was brought before the court without any attempt to show its relevance to the case at hand. Remarkably, the prosecution decided to supplement this entirely irrelevant but extraordinarily difficult testimony about the suffering of the Jews with a narrative of their resistance. Zivia Lubetkin-Zuckerman and her husband, Yitzhak Zuckerman, both survivors of the Warsaw ghetto uprising, testified at length about the brave young fighters who battled Nazi troops to the death for more than a month in the streets, bunkers, and sewers of Warsaw. Almost half the Polish witnesses had some tale of heroism to tell: about the Zionist youth of Lodz who never gave up their faith or their hope; about Emanuel Ringelblum, who built a network of welfare agencies in Warsaw to help Jewish children; about the underground fighters of Cracow who laid down their lives for their cause. As the terrifying story of the Holocaust took shape, the prosecution repeatedly chose to offset tales of disaster with narratives of Jewish bravery. Although the temptation to tell such stories may have been irresistible, they had nothing whatsoever to do with Eichmann's case and set a troubling pattern that continued throughout the rest of the proceedings. Even in relation to the state's desire to create a complete documen-

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tary record of the Holocaust, these stories were misleading because they highlighted the heroism of a few while drawing attention away from the suffering of the great mass of victims for whom such acts of resistance were impossible. The prosecution followed the same pattern in its examination of Eastem Europe, seldom even mentioning the defendant's name. Mter thirty court sessions, Eichmann had all but vanished from his own case. This trend was dramatically reversed when attention shifted to Western Europe. Then the witnesses' testimony was often tightly linked to documents that clearly incriminated Eichmann. State Attorney Gabriel Bach began with the story of the French deportation. The documentary record revealed that Eichmann's henchman Theodor Dannecker oversaw the hunt for French Jews and Eichmann ordered the captives to be shipped to the death camp at Auschwitz. Throughout the deportation, Dannecker and Eichmann coordinated their efforts with the highest echelons of both the French and German governments. This documentary proof turned on two critical items. First was Eichmann's reaction to the failure of his assistant, Heinz Rothke, to fill a deportation train scheduled to depart from Bordeaux on July 15, 1942. According to a memo by Rothke, an enraged Eichmann telephoned him and threatened that " [Eichmann] would have to consider whether he would not have to give up France as a deportation country altogether." 56 The prosecution emphasized that this threat indicated Eichmann's enormous power over the deportation process, or at least the credibility accorded such a claim by one of his presumably knowledgeable subordinates. Second was a series of orders that caused the separation ofJewish children from their parents. Here the documentary record was buttressed by the testimony of Georges Wellers, the only witness to speak about the deportation of Jews from France. His testimony was as heartbreaking and persuasive as anything aired at the trial, but, unlike that given by Polish and other victim witnesses, it was directly tied to Eichmann, at least through Dannecker and Rothke. Wellers was a scientific researcher who, because his wife was an "Aryan," was detained for an extended period in a French concentration camp at Draney rather than being immediately removed to the death camps in the East. While at Draney he regularly saw Dannecker and Rothke at work. Eventually, he witnessed the arrival of 4,000 unaccompanied French Jewish children who had been forcibly separated from their parents because of a Nazi edict demanding that only "workers" be shipped to the East in the early stages of the French deportation. On the stand in Jerusalem, he described one of the most tragic scenes in Holocaust history. Many of the 4,000 children sent to Draney were so young that they did not even

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know their own names. They were dirty, sick, and in absolute despair. In Wellers's words: At night they were completely alone in these large rooms lit by a single bulb covered in blue paint, because it was wartime and in Paris the air-raid precautions required all visible bulbs to be painted blue. They were thus in semi-darkness, more than semi-darkness; in a place which was hardly lit at all. They slept on the floor, one next to the other. Very often they cried, they became agitated; they called for their mothers. It happened a number of times that a whole roomful of 120 children woke up in the middle of the night; they completely lost control of themselves, they screamed and woke the other rooms. It was frightful! 57

A document produced during this segment of the trial demonstrated that it was Eichmann who had ordered thes~ suffering innocents be removed to Auschwitz. Not a single child survived. The prosecution's narrative of the fate of Jews from the rest of Westem and Northern Europe consisted of a powerful documentary record reinforced by live testimony. Perhaps the most moving was the story of the Danish people's resistance to the Nazis' effort to round up Jews. The Danes organized an escape effort that moved all but a handful of Jews to neutral Sweden. This tale of "righteous Gentiles" and heroic "rescuers" had little to do with Eichmann, but it did disclose one particularly damning bit of information. Mter the Danish Jews escaped, Eichmann was sent to Denmark to make inquiries, which circumstantially suggested that Eichmann was the troubleshooting expert sent in when deportation and extermination did not go according to plan. When the prosecution turned to the territory of the Reich, which, by 1941, included Germany, Austria, Bohemia, and Moravia, it followed the same pattern, presenting a strong documentary record and a limited number of witnesses to mass murder. This segment of the trial included two remarkable deviations, one by a biased "expert" witness and another by a neutral yet knowledgeable German. Each of these witnesses transformed the charges against Eichmann into the most powerfully personal of matters. Called by the prosecution as an expert witness, Pennsylvania Supreme Court Justice Michael Musmanno had been an investigator, and later judge, at the successor proceedings at Nuremberg. He quoted the recollections of a number of leading Nazis, including Goring and von Ribbentrop, about Eichmann's conduct and character. This testimony raised difficult evidentiary questions, given the hearsay nature of these statements, and troubling questions aboutJudge Musmanno's reliability. Dr. Servatius included Musmanno in a category that might be described as "interloper" witnesses. An American Roman Catholic poli-

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tician, Musmanno had inserted himself in several of the great legal battles of his time, written popular books about them, and acquired a reputation for inventing the statements he attributed to others. 58 At the end of the Second World War, Musmanno had gotten himself assigned to interview the leading Nazi defendants at the Nuremberg proceedings, ostensibly to help the U.S. Navy determine exactly when and how Adolf Hitler had died. At that time, as he admitted at trial, he undertook his own "private investigation" so that he could write a book on the proceedings, Ten Days to Die. 59 He also secured an assignment to serve as a judge in the American Zone successor trials involving the Einsatzgruppen. As Dr. Servatius put it, he gave the appearance of "a publicist travelling from place to place and gathering material with a view to publication. " 60 Despite Servatius' s protests about the impropriety of Musmanno's testifYing in Jerusalem, especially with respect to materials involving the official record and courtroom adjudication in the Einsatzgruppen cases, the court allowed the American judge to take the stand. Musmanno had a strong animus against Eichmann, great skill at avoiding the rules of evidence, and a collection of dubious stories to lay before the court. He began with stories about Eichmann from defendants and witnesses at Nuremberg. This rank hearsay was extremely damaging to Eichmann's reputation. Musmanno focused particularly on Walter Schellenberg, the head of the Nazi foreign secret service who, the witness asserted, claimed that Eichmann had been in charge of the entire Jewish extermination program and intimately connected to Einsatzgruppen operations. When pressed on this point, Musmanno conceded that in his own official judgment in the Einsatzgruppen cases, Schellenberg's claim had not been relied on and Eichmann's name was never mentioned. During cross-examination, Justice Mus.manno was obstinate and hostile. He quibbled about the meaning of Dr. Servatius's questions and resisted giving straightforward answers. Eventually, he was forced to concede that his key informants, including Goring and von Ribbentrop, were not credible and had made ridiculous assertions about Eichmann; no corroborative evidence exists for their claim that Eichmann was Hitler's chief advisor on the handling of the Jews. Musmanno tried to put a brave face on his concessions by declaring that the leading Nazis "tended to pull down those who were guilty.... " 61 This guilt by verbal-association-or-rumor theory was unpersuasive. In the end, Musmanno appeared to be discredited not only by Dr. Servatius's questions but by the court's inquiries as well. The judges pointed out, among other things, that although Eichmann's name was allegedly on all the Nazis' lips, he was not even mentioned in Musmanno's book. The judgment specifically declined to accredit Musmanno's testimony that Schellenberg had conclusively linked Eichmann to the Einsatzgruppen.

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In contrast to Musmanno's presentation, the testimony of German Confessional Church pastor Heinrich Gruber was among the most focused and persuasive in the case. Gruber saw it as part of his pastoral mission to work to relieve the suffering of Germany's Jews and had frequent face-to-face dealings with Eichmann. The minister's testimony painted a portrait of Eichmann as a zealous and uncaring Nazi possessed of wide authority over the Jews. The power of this evidence flowed from its basis in the direct knowledge of a witness who was neither victim nor perpetrator. Gruber's self-effacing demeanor and the fact that he had eventually been cast into a concentration camp because of his work on behalf of the Jews underscored his credibility. The one serious flaw in his testimony was that it tended to draw the focus of the case away from Eichmann's deeds and concentrate it instead on his character, which Gruber described as that of an unfeeling Landsknecht, or mercenary, who was "like a block of ice, or a block of marble ... who, as he dons his uniform, doffs his conscience and his reason .... " 62 Significantly, it was the court that had solicited Pastor Gruber's opinion of Eichmann's character. Judge Halevi took the process to its logical conclusion by asking: "Dr. Gruber, you said that as a man of religion, a clergyman, you are, and always were, interested in the motivation of the people who were involved, and therefore you took notice of the character of the Accused, Eichmann. You said that you encountered the glacial manner of a man who is like a block of ice or marble and with a deep hatred. You said that, at first, you could not understand such a man at all-that is until you experienced the concentration camp. Is this behaviour not like the behaviour of Hitler and his henchmen which he used as an example?" 63 Coming from one of the members of the panel of judges assigned to assess the facts and decide Eichmann's fate, this question suggests the propriety of convicting Eichmann because he strove to be like Hitler-a troubling concentration on character rather than actions. As the prosecution moved on to the fate of the Jewish residents of Yugoslavia, Bulgaria, Greece, Romania, and Slovakia, it presented persuasive documents and generally supportive witnesses. While a number of incidents implicating Eichmann were presented, one was particularly telling: a series of communications between Eichmann and the German Foreign Ministry, regarding the proper handling of several thousand Jews held captive by Nazi military forces in Serbia in September 1941. Franz Rademacher, an official of the Foreign Ministry, was directed by his superiors to contact Eichmann about what to do with these Jews. Mter speaking with the defendant on the telephone, Rademacher recorded the RSHA Section Head's advice in a marginal note: "Eichmann proposes to kill them by shooting." 64 This suggestion came before

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the start of the "Final Solution" and directly implicated Eichmann in the Eastern killing process. Eichmann's operations in Hungary were the most incriminating actions documented at trial. During a short period in 1944, Eichmann worked feverishly to arrange the murder of more than 400,000 Hungarian Jews. The prosecution interspersed a series of exceedingly powerful documents with the corroborative testimony of victims. The Nazis, most particularly members of Eichmann's staff, made insidious efforts to persuade their Hungarian allies to take ever more restrictive action against the Jewish population. Eventually, their efforts led to the concentration, deportation, and murder of half of the Hungarian Jewish population. Eichmann did not sit idly by in his office in Berlin during this episode. Rather, he was on the scene in Budapest, eventually as the commander of a German SS unit referred to as the Eichmann Kommando whose job it was to superintend the seizure and transport of the Jews. The prosecution's proof focused not only on Eichmann but also on the leaders ofHungary'sJews. Mter the war, some survivors claimed that these leaders had betrayed their community to save themselves. These allegations had sparked the Kastner libel trial, and in the Eichmann case they led to an uproar in the courtroom when a spectator shouted at the first Hungarian Jewish witness, Pinchas Freudiger, that he had "soothed us so that we should not run away while you were saving your families. " 65 Hausner later admitted that the Hungarian testimony raised the most difficult political issues for the prosecution. The prosecutors proceeded gingerly but were still able to show Eichmann at his most vicious. The Kistarcsa affair epitomized Eichmann's actions in Hungary. A trainload ofJews was being shipped from Hungary's Kistarcsa concentration camp to Auschwitz when Hungary's leader, Admiral Horthy, ordered that Jewish deportation be halted. The train was stopped at the German border and sent back to the camp. Outraged at this affront to his authority, Eichmann hatched a scheme to ensure that this last trainload of Jews be reloaded and secretly dispatched to Auschwitz. This episode painted Eichmann as a bloodthirsty schemer bent on the destruction of as many Jews as possible. This image was reinforced by evidence of Eichmann's role in organizing a brutal foot march ofJewish prisoners in Hungary as the war drew to a close; his one objective seemed to be to see how many Jews could be killed as they were herded toward the German border. The Hungarian evidence featured a highly inflammatory story concerning Eichmann's personal conduct. A witness named Avraham Gordon claimed that while he was on a work detail digging trenches outside Eichmann's Budapest villa, he witnessed the defendant's participation in the murder of a Jewish youth named Salomon. 66 This boy, according to Gordon, was accused of stealing cherries from a nearby orchard.

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When he denied the theft, he was taken to a toolshed and allegedly beaten to death by Eichmann and others. The prosecution had not charged Eichmann with this specific murder, and nothing besides Gordon's questionable recollection was presented. Yet the prosecution pressed the issue diligently, suggesting that Eichmann could and did kill with his bare hands. In his summation, the prosecutor candidly conceded that this material had not been introduced to prove Eichmann had murdered the boy but for the more general purpose of demonstrating his murderous character. As Attorney General Hausner put it: We are asking that Gordon be believed, not because we want a conviction for the murder of the boy Solomon [sic]. We are not asking for such a conviction, and we did not charge him with this detail, as there was no sense in setting apart this one boy from all the millions. What we are asking is to see the brutal attitude towards the Jewish boy, that the false charge of having stolen fruit was enough for Eichmann to be at least an accomplice to having him beaten to death. This is his general attitude towards the Jews, and this also contradicts and refutes and undermines his version that this sensitive man was not at all capable of hurting a man or of watching a spectacle of bloodshed. 67

The power of such irrelevant evidence rested on its portrayal of Eichmann as a man who could murder a boy in cold blood solely because he was Jewish. The prosecutor's admission that the defendant was not charged with this crime did not lessen the impact of this testimony; just as the boy came to stand for all Jews, so Eichmann came to stand for all Nazis. The Holocaust story presented by the prosecution ended with the death camps. Through a substantial number of documents and more than twenty witnesses, the prosecution offered heartrending details about Jews' experience in Majdanek, Sobib6r, Chelmno, Treblinka, Belzec, and Auschwitz. The most dramatic yet problematic moment came when Yehiel Dinur was called to the stand. An Auschwitz survivor, Dinur had struggled to disseminate the facts about the Holocaust throughout his postwar life and, under the pseudonym K. Zetnik (a play on words based on the German word for concentration camp, Konzentrationslager), 68 had written four books on the killing factories. The prosecution began its presentation by displaying Dinur's Auschwitz prison uniform. The witness responded: A.

This is the garb of the planet called Auschwitz. And I believe with perfect faith that I have to continue to bear this name so long as the world has not been aroused after this crucifixion of a nation, to wipe out this evil, in the same way as humanity was aroused after the crucifixion of one man. I believe with perfect faith that, just as

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in astrology the stars influence our destiny, so does this planet of the ashes, Auschwitz, stand in opposition to our planet earth, and influences it.... Perhaps you will allow me, Mr. Dinur, to put a number of questions to you, if you will agree? [Tries to continue] I remember ... 69

At this point, Dinur descended from the witness stand and collapsed. The session was recessed, and Dinur never returned. 70 The bricolage of his testimony, with its echoes of the affirmations of faith made by ancient jewish martyrs, references to the crucifixion ofjesus, and dreadful certainty of the evil astrological influence of the death-planet Auschwitz, highlighted both the ine"onceivable suffering of concentrationcamp victims and the irretrievable damage done to some survivors' ability to offer reasoned evidence. Observing such a scene could not help but affect the judges. Traumatized witnesses were immune to crossexamination, and their suffering became a sacred sort of proof against the defendant to which no response was possible. The shattering effect of concentration-camp material was redoubled when the prosecution, near the end of its case, screened a film showing scenes of emaciated camp inmates, the killing factories, and thousands of dead bodies. This final segment of the prosecution's case had the twin weaknesses of virtually ignoring Eichmann and concentrating a great deal of time and attention on the heroic resistance of a number of camp inmates. The prosecution ended on an anticlimactic note when the judges ruled, by a vote of two to one, that the vast bulk of Eichmann's alleged memoirs as recorded by a journalist named Willem Sassen for an article in Life magazine could not be entered into evidence because they were both unauthenticated and unreliable.

The Defense Case The defendant's case presented a striking contrast to the prosecution's. Where the prosecutors had offered a raft of documentary materials mined from various archives, the defense chose to rely exclusively on materials turned over to them shortly before the start of the trial. While the prosecution had presented more than 120 live witnesses, the defense offered only one: Eichmann. The defense's theory of the case was an almost exact inversion of the prosecution's claim. Dr. Servatius set out to show that Eichmann was not the evil genius of the Holocaust but a petty bureaucrat whose ideas were generally thwarted and who went along unwillingly with the tasks he was assigned. Servatius's opening took less than half an hour. He argued, first, that Eichmann was not

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appropriately before the Israeli court and, second, that the accused had no alternative but to follow the orders he was given. Rather than use its own organization of events and proof, "the Defence, for practical reasons, [followed] more or less the order in which the Prosecution ha[d] produced its evidence." 71 The powerful sweep of the prosecution's Holocaust story overwhelmed the defense's ability to organize and present its case. Immediately after Servatius concluded his opening remarks, Eichmann took the stand. He could have chosen to remain silent or to provide an unsworn statement that was not subject to cross-examination, the same options that were available at Nuremberg. Instead, he chose to testify under oath. He apparently aimed to explain the true circumstances of his situation as he saw it while demonstrating his candor. His explanations, however, were most unsatisfactory. They amounted to little more than denials: denials that he had authority to act independently, denials of the accuracy of documents, and denials of his own prior statements. Rather than create an affirmative position, Eichmann seemed content with negations. This approach offered no alternative explanation of the facts adduced by the prosecution. It asked the judges to reject the prosecution's case but offered nothing in its place. According to Eichmann, his ran:k was too low to allow him to act independently. He claimed that he had to obtain his superiors' approval for every move. The flood of documents and the testimony of the prosecution's witnesses cast strong doubt on this claim. In particular, the evidence indicated that Eichmann's direct subordinate, Rolf Gunther, had been actively involved in a series of murderous projects. In response to this evidence, the defendant claimed that Gunther had acted on his own initiative without Eichmann's knowledge. Eichmann painted a picture of himself as cipher standing between all-powerful superiors (Muller, Heydrich, and Rimmler) and uncontrolled subordinates. The defendant disavowed control of all those in his department who worked in foreign countries managing the roundup and deportation of Jews. Whenever possible, Eichmann claimed to have stood on the sidelines. This argument was pressed to a ridiculous extremity when Eichmann described his activities in Hungary in 1944. Rimmler had said, as he dispatched Eichmann, that he was sending in the "master. " 72 While the "master" was present, with the so-called Eichmann Kommando, 400,000 Jews were shipped to their deaths. Yet, Eichmann claimed that during this tumultuous period, as the Eastern front collapsed and the Soviet Army raced westward, he sat quietly in his office with virtually nothing to do. When it was proven that he was out touring ghettos with his Hungarian counterpart, Laszlo Endre, who was executed for his part in the deportations, Eichmann claimed that they had been bear hunting.

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While the prosecution had trouble keeping Eichmann in the court's eye, the defendant had even more trouble trying to make himself disappear. In each case, the difficulty was the same: an exaggerated claim that required hiding who Eichmann really was and what he had actually done. When Eichmann could not colorably deny his activities or when he saw some advantage in taking credit for them, he argued that he was working for the mutual benefit of the Nazis and the Jews. He presented his program for the forced emigration of Austrian Jews in the late 1930s in this light, although it terrorized and pauperized the population. He claimed that his plan to ship four million Jews to Madagascar was intended to give the Jews a homeland and quietly ignored the fact that this "homeland" would be a giant concentration camp thousands of miles from Europe. In the middle of Eichmann's testimony, the defense case was interrupted to allow the prosecution to place into evidence the records of interrogations, carried out in Austria and Germany at the Jerusalem District Court's request, of a group of former Nazis who had worked with or known Eichmann. Virtually all the witnesses claimed that they themselves had done nothing improper during the war and that Eichmann was at the center of the Nazi effort against the Jews. These materials could not have come at a less opportune time for the defense. Not only did they refocus attention on Eichmann's misdeeds, but they exemplified just the sort of prevarications and half-truths Eichmann himself seemed to be relying on in court. The prosecution could not bring all these murderous Nazis before the Israeli tribunal, but in Eichmann the judges had the archetype, and through that archetype all the criminals might be symbolically condemned. Mter Eichmann concluded his direct examination, he was turned over to the prosecution for cross-examination. Eichmann requested a postponement after the first session, claiming ill-health. However, it was probably the sharpness of the prosecutor's interrogation that had rendered the defendant indisposed to continue immediately. The prosecution's questioning took six more sessions than his direct testimony had done. This grueling and contentious cross-examination was repeatedly interrupted by shouts and threats from the audience. During the direct examination there had been two such outbursts; in the cross-examination there were usually one or two per session. Attorney General Hausner opened his cross-examination by asking Eichmann if he stood by his statement during the police interrogation that he should "be found guilty of being an accomplice to murder." Although Eichmann said he stood by his words, he refused to concede that he was legally an "accomplice to the murder of millions ofJews." 73

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The prosecutor lashed out, insisting that Eichmann answer the question without quibbles or subterfuge. Eichmann again refused to admit such guilt. Hausner then confronted the defendant with the remark Wisliceny had attributed to him, "I will laugh when I jump into the grave because of the feeling that I have killed 5,000,000 Jews." Eichmann denied that he had said "Jews" and claimed that he had used the word "enemies." 74 The Attorney General shot back a suggestion that Eichmann was lying. Almost immediately, Dr. Servatius joined the fray, insisting that Eichmann be given an opportunity to complete his answers. This sort of battle raged on session after session. Hausner's cross-examination stressed Eichmann's ardent Nazism and his propensity to lie. The prosecutor strove to focus the case on Eichmann's character as he pressed his curt and savage questioning. Eventually Eichmann threatened to refuse to answer. The defendant then had the following interchange with Judge Landau: A.

Presidingjudge Accused

I do not know. I only know that as of now I will no longer give my comments and I shall not answer any more questions, since I consider all of these documents to be untrue and unauthentic and not correct, for the reasons I have explained.... You will reply to questions until I, the Presiding Judge, release you from so doing. Your Honour, yes, I am also prepared to do so as well. But I have the feeling that I am being grilled here for as long as it takes to roast the steak through, on the basis of something which is as full of shortcomings as can be demonstrated here with precision. 75

The grilling ended in Session 104, much as it had begun, with parting shots at Eichmann as a liar who remained committed to the Nazis' antiSemitic ideology. The three Judges then began their questioning of the defendant. Judge Raveh, who went first, struck a rather philosophical note by asking Eichmann to comment on his claim to have lived by the Kantian imperative. The associate judge probed apparent contradictions and evasions in Eichmann's testimony and pressed the accused on a number of statements that appeared inconsistent with his claim to have been nothing more than an insignificant transport officer. In the end, Raveh embraced the prosecution's line by asking Eichmann to explain why he should be believed in light of all the contradictory evidence that had been presented, much of it out of his own mouth. Judge Halevi was next. He began by announcing to Eichmann that the

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moment for honest testimony had come, implying that he had already concluded that the defendant had been lying. Despite the judge's cajoling tone, Eichmann stuck to his denials. Judge Halevi's last remark signaled his rejection of Eichmann's tale: "Well, as you wish, I am just saying how things are. Of course, you have all the rights of an accused. And what I said to you previously is self-evident: A judge cannot force an accused. It is simply a question of evaluating the truthfulness of the testimony. This concludes my questions." 76 Presiding Judge Landau, who went last, began with a focus on facts, but eventually he too concentrated on matters of veracity, belief, and character. 77 The defense concluded its presentation with approximately a dozen witness statements taken abroad. These materials supported a number of Eichmann's contentions about the limits of his authority, but they were marked by the same lack of candor as those introduced by the prosecution. Several witnesses claimed that they had, in previous testimony, exaggerated Eichmann's role in the "Final Solution." These disclaimers did little to enhance the witnesses' credibility and gave the impression of being nothing more than an effort by co-conspirators to assist a comrade. Several of these statements contained testimony that was helpful to the prosecution, including an assessment that Eichmann had no "scruples about exceeding his authority, if he believe[d] he [was] acting in the spirit of the person giving him his orders." 78 On these feeble notes, the defense rested.

The Verdict The trial concluded with a "summing-up" by each side. The prosecution's closing argument stretched over four sessions and three days. Gideon Hausner concluded where he had begun, by likening Adolf Eichmann to Adolf Hitler and making the defendant into a stand-in for the fUhrer. Hausner told the judges: "Adolf Eichmann, the Accused who stands before you, acted like his leader and spoke in his manner-with glib-tongued falsehood when he was weak, and with the fist of destructive wickedness when in power-with pretence and subterfuge serving to camouflage devilish hatred and murderous fury in his heart." 79 The main themes of the prosecution's case were condensed into this image of Eichmann as pathological liar, unswerving Nazi, and cold-blooded servant of the devil. The attorney general went on to summarize the proof in three overarching chronological periods: the first from 1933 to the beginning of World War II in 1939, when forced emigration was emphasized; the second from 1939 until the invasion of the USSR in the summer of 1941, when Jews were concentrated and the foundation was laid for mass murder; and the third from 1941 until the end of the war,

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when the "Final Solution" was carried out. According to Hausner, Eichmann was planner and manager of all the slaughter documented in the second and third periods. He and Odilo Globocnik, the German commander of SS forces in Lublin, Poland, and eventually the overseer of three death camps, Belzec, Sobib6r, and Majdanek, were credited with creating the extermination plan and convincing Rimmler to adopt it. Hausner contended that Eichmann was the name on everyone's lips and that this demonstrated his responsibility for everything that befell the Jews. The strong Western European and Hungarian evidence was stressed, but so were more doubtful claims about Eichmann's responsibility for the Polish Holocaust and for the quasi-military Einsatzgruppen massacres carried out throughout the East in the wake of the Wehrmacht's advances. The presiding judge voiced substantial skepticism at both these points. To conclude, Hausner turned to Eichmann's character, branding him an "arch-oppressor. " 80 Hausner contrasted the satanic Eichmann with the Jewish heroes of the Holocaust as well as with the saintly German pastor, Dr. Gniber. The defense began its summation quite effectively by accusing the prosecution of exaggerating Eichmann's role. Dr Servatius declared: Were the comments of the Attorney General on the intent and the character of the Accused true, this would be a cause for delight and satisfaction in some circles. This portrayal would become the foundation for a monument which the enemies of the Jews throughout the world could put up for the Accused. But this foundation fortunately consists only of grains of sand which have been assembled. Delight ought to be experienced also by Hitler's erstwhile followers: Now we know it! The Fuhrer had not given any order to commit murder. Like King John, they could say: "It is the curse of kings to be attended by slaves: they took a caprice, a hint, for an order, and fully committed the bloody deed." Justice Musmanno and the psychologist Gilbert have confirmed it: The culprits were not GOring and the great paladins-everybody pointed to Adolf Eichmann. The 'jews' helper," Himmler, did not need to commit suicide, and Bormann could emerge from his hideout. Everything has become clear, the great culprit has been found. This would be the strange result of this trial. 81

Servatius accurately identified the great weakness of the prosecution: its tendency to overstate the defendant's role in the Third Reich and his responsibility for the extermination of the Jews throughout Europe. Servatius pointed out the serious gaps in the state's proof. There was virtually no evidence that Eichmann had directed the destruction of Polish Jewry; there was only a tenuous connection between Eichmann and the actual operation of the concentration camps, except for Terezin and Bergen-Belsen; there was little proof that Eichmann had any responsibility for the activities of the Einsatzgruppen; and there was only the most

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speculative evidence that Eichmann had, with his own hands, murdered a Jewish boy at his Budapest villa. Yet, try as he might, Servatius could not make Eichmann's crimes disappear. He was not the cipher he pretended to be. He was proven to have invented a forced emigration plan that flung two-thirds of Austria's Jews out of their homes, a program that was later copied in Germany and Czechoslovakia. He was the guiding force behind the round-up and deportation of Jews from all over Europe except, perhaps, the East. In Rimmler's word, he was the "master" who was sent to Hungary and succeeded in destroying 400,000 Jews. He was the man who recommended shooting to Rademacher and who in an unguarded moment had boasted of being ready to jump into the grave knowing 5,000,000 of his Jewish "enemies" had preceded him. In its decision, the District Court noted the flaws in the prosecution's case. It rejected Eichmann's guilt with respect to Poland, the Einsatzgruppen, and the internal operations of the concentration camps. However, it found sufficient evidence to convict Eichmann many times over. He supervised much of the "Final Solution" and knew to what fate he sent his victims. He may not have been the devil incarnate, but he was a major war criminal whose misdeeds had been proven in a court of law. On December 15, 1961, the Court unanimously sentenced Eichmann to death. This conviction and sentence were confirmed on appeal by the Israeli Supreme Court, and Eichmann was executed on June 1, 1962.

Problems with the Proof and Procedure In the end, the Jerusalem District Court reached the correct decision. However, the justness of the verdict was based not on the quality of the evidence that was heard or the rules used to regulate its introduction but rather on the magnitude of Eichmann's guilt and the surfeit of reliable information against him. In fact, the proof and procedure in Eichmann raise a series of disturbing and difficult questions. The prosecution put forward a wide-ranging and complex set of evidentiary materials to secure Eichmann's conviction, including the testimony of 121 witnesses and a vast array of 1,434 exhibits. As the prosecution admitted: "[W]e do not have any way of establishing in fact the general events except by means of the general, cumulative purport of the various documents. " 82 Each of these types of evidence presented serious questions for the fact finders who had to evaluate them. The sheer volume of documents submitted by the prosecution posed a number of risks to the integrity of the trial. The length of these materials precluded their being read in full in open court. The prosecution's strategy of selective reading allowed the state to highlight what it

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thought was especially significant in a context that was more akin to argument than the production of evidence. The judges attempted to curb this practice by insisting that the prosecution read less of the material it was offering and by challenging the argumentative nature of the presentations. At one point, as the prosecution offered documents about the Netherlands, the presiding judge cautioned: "Please do not mix arguments and submission of documents." 83 The state's approach tended to break down the normal courtroom barriers distinguishing evidence from argument. This process resulted in the substitution of rhetoric for the real work of connecting proofs into a persuasive whole. The evidence was packaged into a series of public declarations, each striving to surpass the last. The mass of documents also posed a serious problem to the defense. With forty-two volumes of the Nuremberg trials, 3,564 pages of interrogation, a whole series of official and unofficial records compiled during and after the events at issue, and half a dozen books to explore, it was exceedingly difficult for defense counsel to predict what the fact finders would regard as significant. The defense had to fashion its response either globally or by guesswork. When counsel guessed wrong, it allowed potentially misleading or prejudicial material to be accepted without effective challenge. The court was inclined to believe that it could separate the valuable from the prejudicial without serious difficulty. When the judges decided to read an expert's entire report before deciding on its admission, the presiding judge declared: "I do not think there would be anything prejudicial, if you presented us with the document as a whole for us to examine. We shall know how to disregard its contents, should we decide not to accept it; it will make matters easier for us." 84 Research on this issue suggests, however, that once salient information is seen, even by professional judges, there is a significant tendency for it to be remembered and to influence decisions. The artifacts submitted by the prosecution-ranging from such poignant particulars as a child's shoes found at the killing fields of Treblinka to an overwhelming archive of more than one hundred photographs and drawings and a motion picture detailing conditions in various Nazi camps-had a powerful emotional impact. After the concentration-camp film shown at Eichmann's trial had concluded, Hausner said: "I regret that it was necessary to subject the Court to such a harrowing experience." 85 Regardless of whether showing such a film was "necessary," it certainly was prejudicial. The procedure used in the Eichmann case was sui generis as far as Israeli justice was concerned, but it bore a troubling resemblance to the most problematic aspects of the procedure adopted at Nuremberg. The Jerusalem District Court was constituted differently than any other Israeli

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court. The judges made virtually no pretrial effort either to simplify the case or to ensure an orderly process. As at Nuremberg, all was left to be managed as the proof was actually presented. Because Section 15 of the Nazis and Nazi Collaborators (Punishment) Law freed the court from adherence to common-law evidence rules, the standards applied at trial were a mix of traditional rules and alterations adopted on the spur of the moment as questions arose in open court. The Eichmann court made up new rules to govem questions conceming relevance, the use of prejudicial materials, reference to the character traits of the accused, and recital of hearsay or secondhand information. In Jerusalem, ·as at Nuremberg, this ad hoc approach posed serious dangers to the integrity of the trial. Judges who had to make up the procedure as they went along might alter the rules in ways that unfairly prejudiced the defense, helped the prosecution, or were arbitrary or even self-contradictory. The defendant could never really know where he stood with respect to evidentiary and procedural matters. Highly suspect nontraditional evidence might be deemed admissible, undermining the defendant's case or forcing dramatic alterations in his trial strategy. It is not necessary to demonstrate that any particular rule essential to a fair trial was violated in order to conclude that the absence of predictability posed serious problems for an unpopular defendant. The most important trial rules are those regulating the introduction of evidence. Anglo-Israeli-American evidence rules are designed to produce a fair, coherent, and speedy trial by imposing relevancy requirements and restricting the use of anything that might be considered misleading, especially prejudicial materials, character evidence, and hearsay. Rules regarding relevance have traditionally been viewed as a means of keeping the trial focused on the defendant and his actions. They reduce clutter and help minimize distraction. Rules conceming prejudice are designed to restrict the introduction of evidence that might inflame the passions of the decision maker, reflecting the empirically based belief that all human adjudicators may be misled by certain sorts of information. Consistent with this view of prejudicial material, common-law courts have restricted the introduction of evidence related to a criminal defendant's character or propensities, in the belief that such material is a poor predictor of conduct on a specific occasion and may seriously interfere with fair deliberations. Hearsay materials also pose problems of unreliability and distraction. They deprive the party against whom the hearsay evidence is introduced of any chance to crossexamine or observe the demeanor of the witness. The Eichmann court accepted proofs that violated each and all of these evidence rules. The relevancy rule was bound to be seriously challenged in the Eichmann trial because of the prosecution's decision to present a history of

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the Holocaust rather than the record of the defendant's personal misdeeds. The didactic purposes of the trial required the presentation of great masses of evidence that had nothing to do with Eichmann. For long stretches of the trial, the defendant was virtually forgotten. Evading the relevancy rule's insistence that the focus of attention remain on the defendant had serious consequences. First, it resulted in a far longer trial than would otherwise have been the case. At least 40 of the 121 witnesses had nothing to say about Eichmann. The presence of all these superlluous witnesses substantially increased the burden on the court and defense, which was an especially significant problem given the limited resources available to defense counsel. Second, the introduction of irrelevant evidence served to distract most participants from the question of Eichmann's guilt. The judges asked expert witnesses about matters that had contemporary political significance but no relation to the questions at issue in the case. The courtroom was turned into a public forum for prominent witnesses to make pronouncements about antiSemitism. The Eichmann trial was hardly the proper place for such matters; after all, Eichmann was charged not with spreading vile lies about the Jews but with supervising their murder. Judges who embarked on efforts to explore other dimensions of anti-Semitism risked prejudicing Eichmann's case by linking it to equally fraught but more immediate matters on which a balanced historical perspective was impossible. Defense counsel struggled in vain to block the introduction of irrelevant materials. Early in the trial, Dr. Servatius objected to the testimony of Leon Wells, who wished to describe his sufferings while in the hands of the SS in Lvov and, later, in a series of concentration camps. Eventually the prosecution offered not only Dr. Wells's testimony but his book, The Death Brigade, Sonderkommando 1005, which described Nazi efforts to hide Einsatzgruppen massacres by exhuming bodies from mass graves and burning them. Servatius protested that this graphic evidence had absolutely no connection to Eichmann and challenged the prosecution to show its link to the accused. In its Decision 13, the court rejected this argument, declaring that the prosecution was free to produce evidence to prove any act alleged in the indictment without regard to whether Eichmann could be proven to have had any connection with that act. This decision opened the floodgates to lengthy testimony about atrocities in Poland, crimes committed by the Einsatzgruppen, and horrific activities in the death camps, even though none of it could be connected to Eichmann. A disturbingly large body of potentially prejudicial material was presented at the Eichmann trial, much of it apparently chosen by the prosecution for the purpose of kindling the emotions of the audience and the court. The prosecution selected a great deal of its proof to show the

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Nazis' "odiousness and satanic cruelty," especially to women and children. Most of this testimony had nothing to do with Eichmann, as the prosecutors readily admitted. The court was repeatedly confronted with harrowing evidence of the suffering of innocents. Even now, sixty years after these events, this material brings tears to the eyes and anger to the heart. Eichmann's judges were human beings, and their courtroom reactions to such searing proof attest to its emotional impact on them. Numerous references to the cruelty Nazis visited upon Jewish children occur in their judgment. The risk inherent in the indictment, the prosecution strategy, and the admission of irrelevant and prejudicial evidence is that Eichmann would be blamed for all Jewish suffering whether he had caused it or not. It is in the nature of prejudicial material to make its auditors abandon critical judgment and embrace feelings of anger and hatred. Children were brutally robbed of their lives by the Nazis; Eichmann was a Nazi and stood before the court; therefore, the tautology of prejudice was completed by making him pay for the children's sufferings. Not all the childrelated evidence was irrelevant and relevant child-related evidence ought to have been admitted, but hearing all of this material, regardless of relevance, unreasonably increased the risk of judicial prejudice by presenting Eichmann as a fitting object for the rage that decent people are likely to feel when confronted with such appalling cruelty. Among the most troubling of all the potentially prejudicial evidence supplied by the prosecution and accepted by the court was that regarding the Grand Mufti ofJerusalem, Hajj Amin al-Husseini. The mufti had, according to the prosecution, "spilled the blood of the Jews in Hebron, in Jaffa, and in Jerusalem, in the riots of 1921, 1936 and 1939 [and] was looking fm: a man like himself who would help him finish the job. " 86 Mter offering documentation about the matter, the prosecution contended that Eichmann was the man Hajj Amin had, in his own mind, settled on to accomplish the task. In Session 74, the prosecution called Police Superintendent Avraham Hagag to the stand to translate from the mufti's 1944 personal diary in which the Arab leader had apparently described Eichmann as "[a] very rare diamond and the best redeemer for the Arabs." 87 The prosecution also cross-examined Eichmann on two separate occasions about his association with the mufti. The court reacted to this outpouring of dubious proof by making extensive findings in its judgment about Hajj Amin al-Husseini. The court declared: "It has been proved to us that the Mufti, too, aimed at the implementation of the 'Final Solution,' viz., the extermination of European Jewry, and there is no doubt that, had Hitler succeeded in conquering Palestine, the Jewish population of Palestine as well would have been subject to total extermination, with the support of the

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Mufti." 88 The mufti materials were highly prejudicial, and the argument constructed from them was deeply troubling. The supposed Eichmann connection was little more than a figment of Hajj Amin's imagination. Eichmann never had any plan regarding the Jews then living outside Europe. By linking together two such reviled figures, the Israelis blamed Eichmann for events in Palestine and branded the mufti, who stood in for all Arabs, as a Nazi. This sort of transfer of blame is highly objectionable because Eichmann's and the mufti's crimes had nothing to do with each other. The prosecution's attempt to link Eichmann symbolically with the Arabs, Israel's bitterest enemy, showed its preoccupation with the contemporary situation of the Jewish state. The success of this effort to prejudice the court is clear in the judges' willingness to entertain the mufti evidence and to incorporate it into their judgment in a coy passage that identifies shared goals but not a shred of actual joint criminal activity. This prosecutorial strategy is reminiscent of the French Revolutionary prosecution's successful effort to convict Georges Jacques Danton by putting him on trial with cutthroats, prostitutes, and thieves. Their activities were not connected, but placing them side by side before the judges created the taint of guilt by association. The use of vast quantities of hearsay material created an equally serious danger of distortion. The distinctive characteristics of Holocaust trials make evidentiary questions involving hearsay particularly important. Relatively few victims of the genocidal activities being prosecuted survived. Evidence of the victims' own experiences is likely to come from sources recorded or written before their deaths or contemporaneously with the killings. Surviving victim witnesses are likely to have viewed events from a distance and gathered a good deal of their information through hearsay; those who were closer to the action were killed. The available documentary materials usually come from the murderers. Such documents may be inaccurate, self-serving, or based on third- or fourthhand reports. Because the Holocaust has been the subject of a series of criminal proceedings, prosecutors are strongly tempted to use statements and decisions from earlier cases as evidence in later ones. By definition, hearsay material cannot be cross-examined. Confronted with these problems, the IMT at Nuremberg chose to admit a vast collection of hearsay material pursuant to Article 19 of its charter, which allowed for the waiver of all evidentiary restrictions. On the strength of this precedent and in light of Section 15 of the Nazis and Nazi Collaborators (Punishment) Law, the Eichmann prosecution sought the same solution. It presented the court with a wide range of hearsay material. The questions repeatedly posed for the court were whether to admit such evidence and how to evaluate its credibility. Anglo-American evidence rules have been particularly cautious about

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affidavits, which are partisan statements prepared by and for one interested party in the absence of opponents. Although affidavits are frequently bolstered by the attestation of an oath, there is virtually nothing to prevent the witness and drafting party from colluding to create a statement that is patently one-sided and unfair. 89 In the Eichmann case, key affidavits from Wisliceny and Hoss were admitted despite objections about their prejudicial and unreliable character. In its Decision 7, the court ruled that Wisliceny's affidavit was admissible even though he was in captivity and under the threat of execution at the time. The ruling held: "These reports were written by a man who is no longer alive and there existed between him and the Accused close relations connected with the matters being examined in this trial. They were written fairly close to the events which are the subject of this trial, events that were spread over a number of years and occurred in various localities, and it is difficult to adduce more direct evidence about them from the people who were active together with the Accused. " 90 The difficulty of finding "more direct evidence" should have made the court more, rather than less, cautious. This ruling seemed to open the door to virtually any hearsay from a dead Nazi. In such cases, no decision maker can separate what is reliable from what is motivated by a desire to curry favor or do harm to another. The prosecution apparently realized that the "dead speaker" exception it had obtained did little to assure the veracity or persuasiveness of these statements. To reinforce the credibility of such affidavits, the prosecution sought to introduce a variety of accrediting materials. The court rejected the proposed assessments, leaving it with the unenviable task of trying to determine the validity of hearsay evidence in a vacuum. The judges gravitated to a strategy that demanded corroboration, or independent reconfirmation, before accepting any factual proposition from the affidavits. This was a decent, though ad hoc, compromise that was never clearly articulated during the trial. The heaping of hearsay on hearsay did little to advance a careful probing of the proofs and left unanswered questions about trusting words recorded out of court by witnesses with a substantial self-interest. The court extended the "dead speaker" principle to other remarks made out of court, including private conversations. The reliability of such classic hearsay is open to serious question. Even Musmanno was forced to admit that some of his hearsay-based allegations, particularly von Ribbentrop's claim that Eichmann was Hitler's chief advisor on the Jewish question, were absurd. Self-serving Nazi prisoners vied to lay all the blame for the slaughter of the Jews on dead or absent comrades such as Eichmann. The court's approach to this material exalted its availability over trustworthiness and weighed the proceedings down with ever

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more incredible hearsay material. The process was carried well past absurdity with Aviva Fleischmann's testimony about what she had overheard a man whom she believed worked for the Gestapo say in a conversation with the proprietor of the hairdressing salon where she worked: "He spoke generally about plans regarding the Jews, that they were taking them away for forced labour, and he said that there was now a man here who knew and understood how to handle this, how the Jews should be dealt with. And then he mentioned the name of AdolfEichmann." 91 The accusation against Eichmann made in this idle conversation could hardly be more ambiguous. This sort of material has no place in a serious criminal prosecution, yet it was but one of several pieces of gossip admitted at the trial. Aware of the problems posed by hearsay, Attorney General Hausner earnestly argued that there was value in showing "that the Accused's name became a byword everywhere." 92 Ze'ev Sapir was allowed to state that Eichmann "was the talk of the day of everybody in the ghetto .... " 93 Although the court recognized that these rumors were mere gossip, gossip is still dangerous. Repeated a dozen times over the course of the trial, it was likely to make an impression, despite the judges' protestations. Hearsay evidence flooded the Eichmann trial. Witnesses relied on it to fill in the more consequential events they had not personally observed. Inevitably, hearsay evidence was liable to distortion. For example, an official bulletin of the Polish Government Main Commission for the Investigation of Nazi Crimes declared that Eichmann was the director of the "Final Solution." When Judge Landau asked "Who determined that?" 94 he highlighted the difficulty of identifYing the evidentiary foundation for such hearsay. Almost immediately afterward, Judge Raveh asked: "What probative value do you attribute to this bulletin?" 95 Following a good deal of discussion, the prosecutor admitted that the report was only useful for general background, not for proving the responsibility of the accused. Without the judges' timely intervention, the court would have been left with a document stating as a matter of fact what the prosecution contended, that Eichmann was the director of the "Final Solution," when the prosecution knew that its conclusion was a mere presumption without supporting evidence. The hearsay risk at Eichmann's trial was considerable, and the court's ad hoc approach to it failed adequately to protect the integrity of the trial process.

Problems with Witnesses The testimony of live witnesses posed even more serious and sometimes insoluble problems. The most troublesome witnesses might be placed in four categories: those who had been Nazis during the Third Reich; those

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who manifestly suffered significant emotional difficulties while testifying; those who appeared to adopt highly manipulative strategies in pursuit of personal agendas in their testimony; and those whom Dr. Servatius described as offering themselves, "although they were not in a position to prove any important facts, but instead merely produced their own speculations to the disadvantage of the Accused. " 96 Almost all of the fifteen former Nazis who were still living in 1960 and did not appear in Jerusalem but were called to provide judicially supervised statements in the Eichmann case sought to deny that they were in any way personally involved in the murder of Jews. Like many of the dead Nazis, they sought to shift blame from themselves. Perhaps the most amazing testimony came from Edmund Veesenmayer, who steadfastly refused to admit that he had been Reich Plenipotentiary for Hungary and insisted on describing himself as "a layman in these matters. " 97 He claimed to have gone to Hungary near the end of World War II without instructions concerning the Jews, to have been uninformed about SS decisions on Jewish matters, and to have been told that it was the Hungarians who were primarily responsible for anti:Jewish operations. He sought to paint a picture of himself as a cipher far removed from power and responsibility. Dr. Servatius responded by citing a Nuremberg Green Series decision that said the former Reich Plenipotentiary "is now in vain claiming that he did not have a bitter hatred of the Jews. He is in vain denying having been involved by word and deed in the dreadful mass deportations. It was he who hatched the plan, who initiated the implementation of these measures. " 98 Despite all this, Dr. Servatius had chosen to obtain Veesenmayer's statement and offer it into evidence. Clearly, the defense was desperate to get knowledgeable witnesses to say anything at all that might exculpate Eichmann. In this instance, as well as others, defense counsel was reduced to having to attack the credibility of the witness whose statement he was offering, a point the prosecution was quick to note: Attorney General

The Court has presumably observed that what Counsel for the Defence is doing now is, generally speaking, not allowed; by reading out this material he is contradicting statements by his own witness. We have not objected to this because we believe that what the judgment says about Veesenmayer's involvement in the criminal conspiracy against the Jews is true. But in order to avoid giving an incorrect impression, and also in order to avoid creating any unfounded precedent, I considered it my duty to make this observation.

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Dr. Scroatius

Your Honour, I believe that I can, in fact, attack my own witness if he obviously shows himself to be a hostile witness, as is obviously the case here, where he does not remember his head office, and the Court rules that he has lied on oath in giving testimony. 99

The defense was plagued by the imperative need for evidence and the difficulty posed by trying to get it from former Nazis. Several former Nazis sought to change testimony they had previously given. Dr. Max Merten and Horst Grell, who had been convicted of a variety of crimes after the end of the war, both submitted statements to the Jerusalem court indicating that they had lied in previous testimony and exaggerated Eichmann's part in the Holocaust. Merten put it most bluntly: "The main object was to incriminate myself as little as possible. Moreover, my counsel was most insistent in his recommendation that I dissociate, by every possible allegation, the Wehrmacht from the Head Office for Reich Security." 100 Grell admitted that when he appeared at Nuremberg, "it was customary, under the impression of a one-sided victors' court, for the accused before the court to be cleared of guilt, to the detriment of persons not present or presumed dead." 101 The inescapable but unanswerable question is whether these witnesses sought to change their stories in order to tell the truth or to help a former comrade-in-arms who was in trouble. These witnesses could not be crossexamined because their statements had been taken in Germany. What was left was a yawning chasm of doubt: doubt about the old statements that had been branded as lies by the witnesses themselves and doubt about the new statements that lacked the normal indicia of trustworthiness. Rather than address the host of issues posed by the former Nazis' testimony, the court followed the path of least resistance, admitting the statements and reserving until a later date its assessment of the weight that should be assigned to each. The second category of problem witnesses included those who had been traumatized by their wartime experiences and manifestly suffered significant emotional difficulties while testifying. These witnesses' problems made it exceedingly hard to assess the quality of their evidence, and exposure to them may have undermined the fact finders' neutrality. In cases similar to that of Yehiel Dinur, the prosecutor faced a real dilemma: if he knew or had reason to suspect that the very act of testifying might be so painful as to cause substantial harm to the witness, was he justified in calling the witness? The prosecution's drive to find witnesses led to a number of situations in which questioning was so painful as to cast doubt on the propriety of the prosecutor's decision to proceed and his choice of questions to ask. 102

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Dr. Moshe Beisky, a Tel Aviv magistrate, was called to testify about the part of the Polish Holocaust he had witnessed in the town of Miechowitz. With dignity and care he described the events in the town and his later incarceration in a series of camps. While in Plasz6w, he witnessed the public execution of a boy of fifteen and an engineer named Krautwirt. Their executions were savagely brutal. Mter Beisky had described them, the Attorney General asked: "Why didn't you attack then, why didn't you revolt?" 103 The cruelty of this question is astonishing. It suggested a failure of courage on the witness's part and asked him to explain his behavior at one of the most terribly helpless moments of his life. The witness reacted viscerally. Having just a few minutes before refused to sit down, he plaintively requested permission to do so. He was unable to answer Hausner's question, responding: "I believe this thing cannot be explained-it cannot be answered. To this there is no single reply." Hausner had pushed the witness into the realm of ineffable pain, and his traumatic reaction was plain for all to see. The presiding judge immediately told Dr. Beisky: "Certainly, you may also rest for a while." 104 There was no need for Hausner to ask this question; it grew out of the advocate's decision to press the issue of Jewish resistance, which had no relevance to the charges against Eichmann. The injury the prosecutor caused provoked the presiding judge's protective response. The harm, however, had been done; from this point on, the witness's answers grew longer and less focused, and the testimonial process drifted out of control. How should a court handle such a painful interrogation of a vulnerable witness? The District Court was particularly affected by the Beisky testimony, noting in its judgment the lasting harm that their fellow judge had suffered at the Nazis' hands. The Eichmann case does not appear to have addressed, let alone resolved, the vulnerable witness problem. Indeed, the court itself occasionally provoked such suffering. When Yisrael Gutman testified, he was asked if he knew another witness, Noach Zabludowicz. The question led to an exchange that revealed Zabludowicz's suffering when he had testified in the Eichmann proceedings. Judge Halevi admitted that "I asked him some question in error," and after Hausner remarked "That question pains him to this day," Halevi concluded, "That was a mistake on my part-a misunderstanding, and I am sorry about it." 105 What the judge's regret might mean is difficult to determine. It might have led to a self-censorship deleterious to the effective appraisal of the case. The more emotionally vulnerable the witnesses appeared, the greater the risk of either doing harm to them or doing harm to the case by not asking important questions. Genocide cases, with their inordinately large number of such witnesses, create a uniquely difficult setting for lawyers and judges.

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Some traumatized witnesses are so seriously damaged by their experiences that their testimony is hard to evaluate or digest. The archetypal damaged witness in the Eichmann case was Rivka Yoselewska. She did not appear when first called because she had what the prosecution described as "[a]n actual heart attack" 106 but was more likely a panic attack. At the court's next session, she told a story of a massacre in which she and her whole family were shot and thrown into a pit. Her testimony was as terrible as anything that could be narrated in a courtroom. She delivered this tale with painstaking care and in the most horrific detail. She told how she watched as her little daughter, who had been quaking with fear, was shot before her eyes. She described being shot and falling into the pit, from which she later crawled, naked and blood stained. She showed the court the bullet scar on her head. She could not let go of a single detail. Eventually, the attorney general had to beg: "Please let us be brief, Mrs. Yoselewska. It is difficult to recount and difficult to listen to." 107 She continued her narration with a drive and intensity of focus that was totally divorced from the trial. Although she was in a Jerusalem courtroom, her heart and mind were thousands of miles and twenty years away. Near the end of her testimony, she delivered a crushing description of her experience: When I saw they were gone I dragged myself over to the grave and wanted to jump in. I thought the grave would open up and let me fall inside alive. I envied everyone for whom it was already over, while I was still alive. Where should I go? What should I do? Blood was spouting. Nowadays, when I pass a water fountain I can still see the blood spouting from the grave. The earth rose and heaved. I sat there on the grave and tried to dig my way in with my hands. I continued digging as hard as I could. The earth didn't open up. I shouted to Mother and Father, why was I left alive? What did I do to deserve this? Where shall I go? To whom can I turn? I have nobody. I saw everything; I saw everybody killed. No one answered. I remained sprawled on the grave three days and three nights. 108

This testimony was not about Eichmann or even remotely connected to the legal case that Hausner was presenting. It was a cry of pain from one of those crushed by the Holocaust experience. In its judgment, the court specifically recognized Yoselewska's suffering and permanent injury. Although the blame was laid at the defendant's feet, this testimony was a narrative outside the legal universe about a human being broken by a brutality beyond comprehension. In his book Holocaust Testimonies, Lawrence Langer analyzed several hundred recorded statements by Holocaust survivors. He concluded that Holocaust memories severely challenge the basic communicative power of language. Survivors often appear to be overwhelmed by their experiences and unable to find words to explain what has befallen them. Langer also found that Holocaust recollections tend to be bereft of hope

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and "humiliated," the sort of memories that are virtually impossible for hearers to understand or accept. Langer suggests that some Holocaust narrators have adopted a strategy of exaggerating claims about victims' courage to help secure acceptance by listeners. 109 Judge Francis Biddle gravitated toward that response to the Nuremberg atrocity evidence, and the Eichmann prosecutors embraced it consciously. This response, while humanly understandable, creates a significant inclination to distort witness recollections and poses a testimonial challenge for the court. Perceptive commentators have suggested that Holocaust survivors suffer not only from their traumatic experiences in captivity but also from guilt about their own actions or simply for having survived. That their survival and others' deaths resulted from random factors beyond any victim's control offers no comfort. Primo Levi has written movingly about his survivor guilt. 110 Witnesses' all-encompassing sense of guilt created a substantial barrier to effective testimony. The testimony of Joel Brand was especially marked by this problem. Called to speak about Eichmann's role in the "blood for goods" deal, Brand blamed himselffor its failure. Eichmann, he said, "destroyed my life. Eichmann put a million human beings on my back, most of whom, I am sorry to say, were murdered by him. " l l l Brand could not free himself from a sense of personal responsibility that made him complicit in Eichmann's acts. Several times during his testimony, he found himself shouting at defense counsel or at the court. The judges urged him to speak more softly. He helplessly replied: "I am trying, Your Honour, but I get excited." 112 His testimony was dotted with accusations and recriminations. He was plainly in error about a number of critical details and provided little useful testimony despite his extensive dealings with Eichmann during an especially incriminating episode. Brand was so damaged that his story could not be trusted. At the end of the questioning, judge Halevi tried to reassure him: "I should like to add something in honour of the witness. I should simply like to point out that [a high-ranking official] stresses especially that he found Mr. Brand extremely trustworthy and honest, and that he in no way queried the credibility of his report. " 113 What to do with broken witnesses was a major problem at the Eichmann trial. They had important information, but they could not deliver it effectively. Moreover, their presence and palpable suffering had a substantial impact on the court's behavior, often entangling the judges in contradictory reassurances and cautions. To disentangle what was reliable from what was the product of psychic injury was virtually impossible. A more manageable, but still difficult, problem was posed by witnesses who, because of the passage of time or exposure to biasing materials, presented the court with faulty recollections. For example, Moshe Bahir

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testified that he had seen Eichmann make two visits to the Sobib6r death camp, in July 1942 and February 1943. He said that after the war he was shown a photo at the Polish Institute of Documentation from which he identified Eichmann. He then indicated that the same picture appeared in a volume titled We Shall Never Forget. Judge Halevi had the volume produced and asked Bahir to identify the photo, apparently believing it would reinforce the evidence. However, Bahir could not find Eichmann's picture, and the next day he returned to court and presented a photograph that did not include Eichmann. He explained: "Mter I ... glanced at the book again, I saw that this was not the same picture. Evidently, my memory must have failed me-this, here, is not exactly the same picture. It is impossible to recognize Eichmann in this picture. " 114 As Judge Landau observed: "[T]he evidence was not incidental." 115 Bahir's admission demonstrated how memories can fade or become confused over a span of two decades. Many witnesses had been exposed to information that might alter and distort their recollections. A witness's damaged recollections rendered the trial process vulnerable. Some witnesses came into court with a desire to manipulate the judicial process, either to increase the prospects of Eichmann's conviction or for mere personal aggrandizement.U 6 Zvi Zimmerman, a lawyer and member of the Knesset, testified about his days in the Zionist underground in Cracow. He appeared long after the Polish Holocaust story had been told, suggesting that he was afforded special treatment because of his political position. From the outset, Zimmerman glorified his own underground career. The presiding judge eventually interrupted him, declaring: "The limitation of time will not permit this." When the witness continued in the same vein, Judge Landau snapped: "I thought that this evidence was being led for a certain purpose." The witness responded sarcastically: "I am grateful to the Court for helping me and making it unnecessary to tell of the things that were described here and of the horrors we underwent-it is not an easy matter for someone who went through the experience. And I should try to confine myself.... " 117 Zimmerman's riposte implied that because the judge had not suffered he lacked standing to interrupt. The court scolded Zimmerman, reminding him that as a lawyer he knew that he should focus his testimony on the prosecution's questions. The interchange between judge and witness spurred the attorney general to get down to the heart of the matter. Unfortunately, this proved to be rather insignificant. Zimmerman claimed thatJewish operatives working "as officials and as stenotypists" had been told by several Gestapo men that Jewish suffering was not the fault of the local Gestapo but, rather, the fault of a German expert "'who knew Hebrew and Yiddish [and] who had lived in Palestine' ." 118 Previous evidence suggested

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that Eichmann had encouraged this entirely false description of himself. Zimmerman testified that the ghetto's Austrian gatekeeper, Busko, had also indicated that Eichmann was rumored to be the man in charge. All these conversations took place before 1943, when the witness escaped to Hungary. The whole story rang hollow. The proposition that loquacious junior Gestapo members went around talking about Eichmann in front of civilians, especially civilians known to be Jews, seems dubious. The Nazis had strict language rules and appeared to guard their secrets within a carefully prescribed fraternity. Further, the claim that Eichmann was in charge in Poland in 1942 was inconsistent with the bulk of the proof in the case. Mter listening to all this, the court pronounced the evidence worthless: " [T] he value of this evidence is, shall we say, next to nothing. I believe you will agree with me. I did not want, by any means, to shock the witness; I am referring to this sentence, to these words that the witness heard from people who were apparently fairly junior Gestapo men. This is, in fact, gossip .... " 119 Yet, as the witness was excused, Judge Landau declared: "Mr. Zimmerman, I want to say to you, now that you have ended your testimony, that I should not like you to leave here with bad feelings. There was no intention to belittle the importance of your activities and of those of the others. Whatever remarks I made, I first of all made as expressing my personal opinion, and they referred to the legal weight of certain statements in this evidence. I hope this is clear to you as ajurist." 120 Although the court saw through this witness's efforts to manipulate the judicial process, it is deeply disturbing that a politician could gain access to the court, present questionable evidence as a witness, and trade barbs with the presiding judge. The incident suggests that the prosecution was vulnerable to political pressure and that a less strong-minded presiding judge might have permitted serious pollution of the trial record. One statement from a deceased witness exemplifies the kind of evidence that is especially valuable but almost impossible to obtain. Dr. Kurt Gerstein, an SS medical officer who dealt with fumigation and obtained prussic acid, known as Zyklon B, for delousing procedures had, in 1945, made a statement to French interrogators concerning the gassings he had witnessed at Belzec. Eichmann's second-in-command, Gunther, used Gerstein as a conduit for the purchase of prussic acid for exterminations. During the war, Gerstein secretly offered written information about the horrors he had seen to the Swedish embassy. Although Dr. Servatius strove to brand him as self-serving, this charge is hardly credible given Gerstein's early efforts to spread news of the gas chambers. He committed suicide while in Allied detention shortly after the end of the war. Gerstein's statement to the French was one of the most powerful documents presented at the trial.

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I am standing in front of the death chambers with Police Captain Wirth. Men, women, young girls, children, babies, amputees missing a leg-all naked, stark naked-they pass near us. An SS man stands in the corner telling the miserable people in the voice of a preacher: "Nothing will happen to you. All you have to do is to breathe deeply. This inhalation is necessary because of infectious diseases. It is a good disinfectant." When they ask about their fate, he explains: "Of course, the men will have to work, to build roads and houses, but the women do not have to work. At most, if they wish, they may help around the house or in the kitchen." In the heart of some of these doomed people, there is once again a spark of hope, enough to make them walk into the gas chambers without resistance. But most of them know: The smell carries the tidings of their fate. Then they go up the small steps and see the truth. Nursing mothers with babies in their arms, naked; many children of all ages, naked; they hesitate, but enter the death chambers, most of them without uttering a word. They are being pushed by those behind them, and the whips of the SS men keep them on the move. 121

Gerstein's vivid recollections brought powerful firsthand experience to the case. When the Eichmann prosecution presented proof of such cruel and tangible facts, the evidence was overwhelming. Gerstein was an especially credible witness because he was German. Although he was close enough to the machinery of genocide to observe its operations, his horror at what he saw and his efforts to tell the world powerfully attest to Nazi depravity and the response of a decent observer to atrocities. Gerstein sought no personal advantage by making this statement. He presented what the hapless victims could not: a full picture of the slaughter. Virtually no Jew could have seen what Gerstein did and live. The vast majority of the people who had direct knowledge of genocide had been murdered. Only a small remnant survived. Most of them had not faced the full force of the destructive onslaught, and those who had were often too traumatized to tell the tale. Cases like Eichmann's cry out for onlooker witnesses who have seen terrible events but have not been fatally or criminally caught up in them. Such witnesses are exceedingly rare. The prosecution usually has to make do with either perpetrators or victims, each of whom presents substantial evidentiary problems. In the Eichmann case, many of the prosecution's key victim witnesses were first identified by Rachel Auerbach ofYad Vashem, who herself testified in court. Some years later, Auerbach indicated that she had pressed Hausner for a great historic trial. 122 She was guided in her selection work by an elaborate protocol. The outstanding Israeli scholar, Tom Segev, described what Auerbach was looking for: Auerbach proposed focusing immediately on the extermination itself, without losing too much time on the early stages of the persecution of the Jews. She also proposed that the witnesses be led to point out "special phenomena" that would underline the Nazis' "odiousness and satanic cruelty." She listed such examples

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as the torture inflicted on victims before extermination; the special mistreatment of women, children, the elderly, the ill, and religious Jews in traditional dress; the purposefully drawn-out suffering of those condemned to die in the gas chambers with an insufficient quantity of gas; the brutal smashing of babies to save ammunition; burning people alive; and finally, "that greatest of all earthly horrors--the mass graves, in which the injured shifted and whimpered for entire days and nights after the executions." The survivors also insisted on prominent mention of deeds of self-sacrifice, resistance, rebellion, revenge, and flight, Auerbach wrote. Righteous gentiles and the non-Jewish victims of the Holocaust should be cited also, they advised. 123

Hausner embraced this protocol. At least twenty-five prosecution witnesses conformed to this testimonial pattern. Almost all of them had previously recorded their experiences in literary form and had some connection to the Zionist movement. This approach produces a homogeneous sort of proof that .may obscure important issues. Furthermore, the repetition of similar testimony may dull the fact finder's reactions to terrible events. To hear essentially the same story two dozen times is to risk not hearing it at all. Any sort of prearranged profile or testamental protocol is likely to have a distorting effect on the presentation of evidence. Although such a big case requires careful organization, too narrow a paradigm for the selection of witnesses can create misleading impressions and undermine the integrity of the trial.

Conclusions about Character Any trial that pits victim witnesses against a perpetrator defendant under loose rules of evidence that admit hearsay, inflammatory, prejudicial, and irrelevant material risks focusing on matters of character. The reliability and credibility of witnesses and defendant are central issues, and in the absence of definitive documentary evidence linking the accused to specific crimes they may become the determining ones. Character evidence poses substantial risks to justice. The fact finders may extrapolate from the defendant's personality to the conclusion that he acted in conformity with his propensities on any occasion that matters to the indictment. Furthermore, the defendant's characteristic traits may be so repugnant that the fact finders will be prejudiced against him regardless of the evidence about his actions. The Israeli prosecution took the broadest possible view of the propriety of introducing character evidence to demonstrate its theory that Adolf Eichmann was the ultra-Nazi beast behind the design and execution of the "Final Solution." Prosecutors sought to prove that Eichmann was an ardent and unregenerate Nazi, a virulent anti-Semite, a liar, and a man of murderous disposition.

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They injected these matters into the trial on a regular basis, reminding the judges again and again of Eichmann's "ice-cold" hatred of the Jews and his boastful delight at having accomplished their mass murder. It may reasonably be argued that the prosecution needed such evidence to demonstrate that Eichmann undertook his crimes with the specific intent to commit genocide, a crime that requires proof of a mental state dedicated to the destruction of a cognizably distinct group of human beings. Yet the prosecution pushed the character question much further. Many of the risks posed by character evidence were realized in the Eichmann case. The focus of attention was shifted from the defendant's deeds to his personality. Highly speculative statements about the defendant's character were amplified by resort to evidence designed to show that Eichmann acted in a manner consistent with his Nazi beliefs. Many of the Jewish officials who had dealings with Eichmann and testified at trial were asked to describe how Eichmann had behaved toward them personally.l 24 The prosecution attempted to convince the court that character was the essential yardstick for taking Eichmann's measure. This approach was particularly apparent in Hausner's cross-examination of the accused. The prosecutor turned almost seamlessly from Eichmann's anti-Semitism to his untruthfulness, trying to demonstrate a lifelong and mutually reinforcing pattern of prevarication and anti:Jewish acts. Offering evidence suggesting that Eichmann was still a Nazi, the prosecutor challenged the accused: "When did you cease being a National Socialist?" 125 Although much of this evidence was deemed inadmissible, Hausner pounded away at Eichmann with character questions. The prosecutor challenged the defendant to explain the statement of Dr. Bernard Losener, a high-ranking Nazi official, that he "would list as [a] particularly fanatic and vicious [anti-Semite], with whom [he] had many dealings ... HauptsturmbannfiihrcrEichmann." 126 The problem with all this, as is so often the case with character proof, is that it leads to a decision based not on demonstrated guilt but on a perception that the defendant is evil. It was, perhaps, impossible to avoid such an attribution in the Eichmann case, given the enormity of the crimes with which he was charged and the equally fateful fact that his trial was conducted by the Jewish state that had arisen from the ashes of European Jewry. Character materials have the pernicious effect of reducing judicial concern about making a mistake. Because Eichmann had been shown to be a reprehensible character, it was easier to disregard any reservations a judge might otherwise have had about mistakenly convicting him. What effect did this character presentation have on the court? From all appearances, the issue of Eichmann's character became a matter of

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great importance to the judges. It affected the way the members of the bench interrogated the defendant, focusing on his personality, propensities, and beliefs. The judgment reflected these preoccupations. The court specifically found that Eichmann's character was dominated by "traits of obstinancy and cunning. " 127 It held that Eichmann was a "zealous National Socialist, devoted to his Fuhrer," and a fanatical anti-Semite.128 As to his truthfulness, the court declared: The Accused's evidence in this case was not truthful evidence, in spite of his repeated declarations that he was reconciled to his fate, knowing the gravity of the activities to which he had confessed of his own will, and now his only desire was to reveal the truth, to correct the wrong impression which had been created in the course of time in regard to his activities in the eyes of his people and of the whole world. In various sections of this Judgment, we have pointed out where the Accused was found to be lying in his evidence. We now add that his entire testimony was nothing but one consistent attempt to deny the truth and to conceal his real share of responsibility, or at least to reduce it to a minimum. His attempt was not unskilful, due to those qualities which he had shown at the time of his actions-an alert mind; the ability to adapt himself to any difficult situation; cunning and a glib tongue. But he did not have the courage to confess to the truth, not about how things actually happened, nor about his inner convictions to the acts he committed. We saw him again and again winding his way under the impact of the cross-examination, retreating from complete to partial denial, and only when left no alternative, to admission; but of course always taking refuge in the plea that in all matters, great or small, he was acting on explicit orders. 129

This conclusion suggests that the court's overall impression of Eichmann's character had a significant bearing on its decision to convict him · of the capital crimes with which he was charged.

Chapter 3 John Demjanjuk and Ivan the Terrible

In 1986, a quarter-century after the Eichmann trial, Israel once again undertook the prosecution of a Holocaust perpetrator: John Demjanjuk, whom some survivors ofTreblinka identified as "Ivan the Terrible." Ivan the Terrible was not, like Eichmann, a bureaucrat involved in planning the "Final Solution." Ivan the Terrible had earned his name by operating the gas chambers, herding hapless victims into the killing rooms, and demonstrating gratuitous sadism toward camp inmates on other occasions. Trying a perpetrator who had been personally, directly, and immediately involved in extermination-camp operations became, for the State of Israel, a way to honor Holocaust survivors, whose numbers were dwindling rapidly a half-century after the outbreak of World War II. The case had all the earmarks of a grand Nuremberg-style prosecution and followed the precedents that Israel had set in Eichmann. Initially, Demjanjuk was convicted and sentenced to death under the Nazis and Nazi Collaborators (Punishment) Law of 1950. The problem was that Demjanjuk was almost certainly not Ivan the Terrible. This Ukrainian who had been captured by the Germans may indeed have been a concentration-camp guard, but the documentary evidence tied him to Sobib6r, not Treblinka, and other evidence suggested strongly that Ivan the Terrible was another man. The Israeli Supreme Court overturned Demjanjuk's conviction in 1993, citing numerous prosecutorial, defense, and judicial errors. He was freed and returned to the United States that same year. The miscarriage of justice in the Demjanjuk case was eventually corrected, but the entire affair had serious consequences for the prosecution of crimes arising out of the Holocaust. The effort to prosecute Demjanjuk had begun in the United States, as part of the human-rights agenda developed in the mid 1970s. The U.S. case had focused on his immigration and naturalization, not primarily on the crimes he may have committed before arriving in the United States in 1952. Demjanjuk

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was found to have lied on his applications for American residency and citizenship and was awaiting deportation when the United States extradited him to Israel for trial as a Holocaust perpetrator. However, the same problems that marred the Israeli proceedings had affected the original American case. A special master appointed by the Federal Court of Appeals for the Sixth Circuit found that misconduct and prejudice had riddled even the more narrowly focused U.S. proceedings, and Demjanjuk's denaturalization was voided in 1993. The American and Israeli judicial systems were, finally, self-correcting, but the failures of these trials to proceed in a fair manner and to convict the defendant marked the end of the renewed effort to prosecute Holocaust perpetrators in Israel. Demja~uk may have committed grave crimes as a concentration-camp guard at Sobib6r, and he certainly made false statements to facilitate his entry into the United States. However, the miscarriages of justice in his two trials were more than sufficient to acquit him. The entire case boomeranged, deterring prosecution of other perpetrators. Efriam Zuroff, one of Israel's chief Nazi-hunters, concluded that in the wake of "Demjanjuk's acquittal by the Israeli Supreme Court despite the unequivocal evidence regarding his service at Sobib6r death camp ... [it is] highly unlikely, if not impossible, that Israel will ever again attempt to prosecute a Nazi war criminal." 1

The American Case against Demjanjuk The 1981 denaturalization and deportation proceeding against John Demjanjuk began when influential Americans persuaded the government to take action against the war criminals it had admitted after World War II. Gradual shifts in American thinking about the Holocaust, a growing determination to end the U.S. role as a place of safety and immunity for people who had perpetrated terrible crimes in other countries, and emergent efforts to make the advancement of universal human rights an American policy priority led the U.S. government to do something about the war criminals in its midst, even if the action it took was primarily symbolic. From the end of the Nuremberg trial until the mid-1970s, the United States proceeded as if the question of Nazi genocide were a matter for other countries. Allan Ryan, the one-time head of the Department of Justice unit charged with identifying and deporting Nazi war criminals, recalled that it was as if a "curtain of silence had fallen over the Holocaust, in this country. " 2 Before 1973, only nine cases had been brought against alleged Nazi war criminals residing in the United States, even though credible estimates indicated that as many as 10,000 had been admitted to the country during the late 1940s and early 1950s. 3 The

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Immigration and Naturalization Service (INS), the federal agency responsible for screening foreigners seeking admission to the United States, had been extremely lax during the crucial decade after the war and had done next to nothing to correct its errors thereafter. The INS had pressed a minuscule number of cases and botched most of them. The nine cases brought by the INS before 1973 included two especially dubious proceedings against Jewish immigrants charged with having helped their Nazi captors; the government lost both at trial. One other case resulted in an immediate acquittal. In three of the six remaining cases, a judgment on behalf of the INS was reversed by the Board of Immigration Appeals. This dismal record demonstrated to concerned Americans that their government, led by INS bureaucrats, would do nothing on its own. Americans became aroused about the presence of Holocaust perpetrators in their midst in the aftermath of the Vietnam War, when international initiatives to extradite Nazi war criminals attracted public attention and several members of the U.S. House of Representatives made tracking down and deporting former Nazis who had entered the United States fraudulently a high priority. In 1973, Germany requested that the United States extradite Hermine Braunsteiner, who was alleged to have been a brutal guard at Maidanek concentration camp. This initiative generated newspaper headlines and sparked public interest. In 1974, two members of Congress began public agitation on the war-criminals issue. Elizabeth Holtzman (D) of Brooklyn, New York, advocated the vigorous pursuit of Nazis during her first term. She was joined in her efforts by the long-serving and influential Joshua Eilberg (D) of Philadelphia, Pennsylvania, who chaired the House Subcommittee on Immigration, which was charged with oversight of the INS. Holtzman and Eilberg brought pressure to bear on President Ford, the State Department, and the INS to carry out war-crimes inquiries. As the Braunsteiner case gathered steam, Otto Karbach of the World Jewish Congress presented the INS with a list of fifty-nine war-crimes suspects living in America. Another list, compiled by Michael Hanusiak, the UkrainianAmerican editor of New York's pro-Soviet Ukrainian Daily News, which contained seventy names, was forwarded to the INS by Senators Jacob Javits (D) of New York and Abraham Ribikoff (D) of Connecticut. 4 John Demjanjuk's name appeared on this second list. Despite this new information and the pressure that Eilberg and Holtzman brought to bear, the pace of INS investigations remained exceedingly slow. The issue became politically salient during the 1976 presidential election campaign. The Republican incumbent, Gerald Ford, and his Democratic challenger, Jimmy Carter, both spoke before the convention of the Anti-Defamation League of B'nai B'rith in Wash-

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ington, D.C., and promised more effective action against Nazi criminals in America. In September 1976, after dispatching four attorneys to Israel to investigate, the INS publicly announced that it was filing seven new denaturalization proceedings against suspected Nazis. 5 As these hastily prepared cases proceeded through the courts, it became apparent that they were not being well managed. When Eilberg scheduled hearings on the matter during the summer of 1977, the INS established a Special Litigation Unit (SLU) to search out and deal with Nazi criminals. This change in bureaucratic structure may have accelerated the proceedings, but it had disastrous consequences. The government lost three of the first five cases it presented. Two defeats were especially significant: a federal district court refused to denaturalize Feodor Fedorenko, an admitted concentration-camp guard at Treblinka, and an appellate court overturned a denaturalization order for Frank Walus, an alleged member of the Gestapo. The government's work in these cases was so shoddy that it provoked one INS employee to write a book in which he theorized that the INS was engaged in a conspiracy to protect Nazis living in the United States. Holtzman and Eilberg demanded a General Accounting Office (GAO) investigation, which found no conspiracy but substantial evidence of negligence. 6 As these matters were coming to a head, Americans' attention was forcefully drawn to Nazi crimes by a four-night miniseries called Holocaust, which was seen by as many as 120 million television viewers. In 1979, a new federal office independent of the INS and supervised by the Criminal Division of the Department of Justice, called the Office of Special Investigations (OSI), was established to denaturalize and deport Nazis who had entered the United States fraudulently. Holtzman, who followed Eilberg as head of the House Immigration Subcommittee, pressured Attorney General Griffin Bell to accede to this proposal and steered a generous appropriations bill through Congress. 7 Walter Rockier, appointed interim head of the OSI, worked to improve the government effort, get cases on track, launch new initiatives to address the problem of Nazi war criminals in America, and respond to the intense political pressure that had grown up around this issue. The OSI's early performance was encouraging. It dropped weak cases, including Walus, and won several of the new cases it filed. In January 1981, after receiving briefs and arguments prepared with OSI assistance, the U.S. Supreme Court overturned the district judge's ruling against the government in the Fedorenko case. The Supreme Court ruling stressed the breadth of the government's power in denaturalization cases. Justice Thurgood Marshall wrote:" [O]nce a district court determines that the Government has met its burden of proving that a naturalized citizen obtained his citizenship illegally or by willful misrepresentation, it has no discretion to

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excuse the conduct." 8 This ruling meant that even purely technical violations of immigration procedures could justify government action against putative war criminals living in the United States.

Denaturalizing Demjanjuk The federal investigation of John Demjanjuk began in the spring of 1976, official charges were filed in the late summer of 1977, and his trial began in early 1981. To all appearances, Demja~uk was nothing more than one of the hundreds of thousands of European refugees who had flooded into the United States after World War II. Arriving in 1952, Demjanjuk settled in Cleveland, Ohio, where he found work at a Ford auto-manufacturing facility. He became a naturalized citizen in 1958. Demjanjuk was brought to the attention of the government in 1975, when his name appeared on the list of approximately seventy Ukrainians who might have committed atrocities during the war. What caught the eye of an INS investigator was Demjanjuk's admission on his visa application that during the war he had resided for an extended period at a place in Poland called Sobib6r. Sobib6r was the location of one of the three main killing centers erected by the Nazis to carry out the extermination of Polish Jewry as part of Operation Reinhard, the first wave of massive, mechanized slaughter in the "Final Solution." The INS investigated Demjanjuk as well as Feodor Fedorenko and a number of other reputed Holocaust perpetrators. It assembled a collection of photographs, including those ofDemjanjuk and Fedorenko, and sent them to the Israeli police in March 1976. This collection was composed entirely of pictures of men suspected of having committed war crimes; no innocent foils were included. Demjanjuk's photo, from his 1951 visa application, showed him at approximately 30 years of age dressed in civilian clothing. It was larger, clearer, and more recent than most of the others. The goal of the inquiry, as the Israelis understood it, was to generate identifications that might assist the American authorities with their denaturalization efforts. No one involved expected that legal action would be mounted in Israel against any of those identified. The Israeli investigator, Miriam Radiwker, began her investigation by publishing a newspaper advertisement for witnesses: "The Nazi Crime Investigation Division is conducting an investigation against the Ukrainians Ivan Demjanjuk and Feodor Fedorenko. Survivors of the Death Camps at Sobib6r and Treblinka are requested to report to the Israeli Police Headquarters. " 9 Radiwker was unconcerned that giving a suspect's name and other information about him might taint the process of identification. She proceeded as if the risks that such suggestions might influence witnesses were entirely irrelevant. This attitude is understand-

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able, given that the sole object of the inquiry was to develop evidence to assist the Americans in determining Demjanjuk's fitness to retain American citizenship, but it fatally tainted the evidence considered by both nations. Radiwker contacted two Treblinka survivors with whom she had worked on previous cases, Eugen Turowskyl 0 and Avraham Goldfarb, and arranged for them to view the INS photographs. Her main target on May 9, 1976, was not John Demjanjuk, who was allegedly connected with Sobib6r, but Feodor Fedorenko, who was believed to have been a guard at Treblinka. As she showed Turowsky the photos, he became agitated. He said that one of those pictured was "Ivan Grozny," or, in English, "Ivan the Terrible," the most brutal Ukrainian guard at Treblinka. Radiwker was shocked when Turowsky insisted that Demjanjuk was Ivan the Terrible and had Turowsky return the next day to reconsider his identification. She then redirected the interview to Fedorenko, whose photograph had been placed next to Demjanjuk's in the album. Avraham Goldfarb examined the photo album that same afternoon. Although his reaction was less emphatic than Turowsky's, he too thought Demja~uk was Ivan the Terrible and would not be swayed by the argument that Demjanjuk had been stationed at Sobib6r. Radiwker suspected that she had stumbled onto something significant. She next contacted Eliyahu Rosenberg, who had testified about his experiences at Treblinka during the Eichmann trial. Rosenberg was more cautious than Turowsky or Goldfarb, but he too believed that Demja~uk was Ivan. By May 14, Radiwker had informed the Americans that several witnesses had identified John Demjanjuk as the most notorious guard at Treblinka. None of the half-dozen additional survivors that the Israelis interviewed between June and August recognized Demjanjuk, but in the fall three more witnesses, Yosef Cherney, Gustav Boreks, and Avraham Lindwasser, identified his photo as Ivan the Terrible. The INS investigators, who interviewed more than a dozen concentration-camp survivors in the United States, found no one who could identify Demjanjuk (or Fedorenko, for that matter). Interviews with Cleveland residents also turned up nothing; no one could recall Demjanjuk having made any incriminating statements regarding his wartime activities. In October 1976, the INS requested that Demjanjuk appear for an interview, but this was delayed until January 1977 while Demjanjuk sought legal counsel. Amid growing calls for action against Nazi war criminals, in August 1977, the U.S. Attorney in Cleveland filed a denaturalization proceeding againstJohn De~anjuk, alleging, on the basis of the Israeli identifications alone, that Demjanjuk was Ivan the Terrible of Treblinka. The effort to prepare the Demjanjuk case was complicated by the U.S.

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government's decision at that time to reorganize its Nazi war crimes investigations unit. In the summer of 1977,just before the government lawyers in Cleveland filed the charges, the INS had assigned the Demjanjuk matter to the newly created SLU. A bitter turf war between the SLU and the Cleveland office of the Justice Department ensued. The SLU's Donald Couvillon wrote a blunt memo in June 1978, accusing the Cleveland team "of mishandling the case, and of acting in bad faith" and calling for the SLU to take charge.l 1 Anxieties about the Demjanjuk case were amplified by the disastrous ruling in the Fedorenko proceeding. The district court judge in that case, Norman Roettger, questioned the veracity of several of the Israeli witnesses and found that the investigative work had been improperly suggestive. These facts, among others, led him to reject the government's claim. This ruling directly undermined the developing case against Demjanjuk, which was based on similar evidence collected in the same way. Israeli officials were so upset about the treatment afforded Israeli victim witnesses in the Fedorenko trial that they threatened to suspend cooperation with the United States regarding all future war-crimes proceedings. SLU Director Martin Mendelsohn promised that, in the future, his agency would ensure that Israeli witnesses were afforded better treatment. 12 In November 1978, Associate Attorney General Michael Egan directed that Demjanjuk be placed in the SLU's hands. While the battle for control raged, no one was doing much to get the case ready for trial. By late 1978, the Demjanjuk case had become a political as well as a legal problem. Congressman Eilberg sounded a note of alarm in August: "[W] e cannot afford the risk of losing." 13 With the creation of the OSI in early 1979, responsibility for the case was returned to the Department of Justice and control was assigned to the new agency. The team that Walter Rockier and Allan Ryan assembled for Demjanjuk included Norman Moscowitz and George Parker, who had both worked on the case for the SLU. Moscowitz and Parker cooperated with John Horrigan of the Cleveland U.S. attorney's office; the close personal connection Moscowitz and Horrigan forged healed the previous rift. Moscowitz and Parker reviewed the Demjanjuk file and sought to strengthen the government's position. They initiated a search for witnesses to augment the Israeli contingent of victims then being relied on to prove the government's claims. In November 1979, Moscowitz went to Germany to interview potential witnesses who had served at the Treblinka camp when Demjanjuk was alleged to have been there. The key witness was Otto Horn, an elderly German who had been a nurse in the euthanasia program and worked at Treblinka but had been acquitted of any wrongdoing in a 1964 German trial. Horn was an exceedingly cautious witness whose main goal appeared to be avoiding incriminating

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himself in any way. The available information suggests that he was shown two sets of photographs, each of which included a picture ofjohn Demjanjuk. Although the two photos of Demjanjuk were different, the fact that his portrait appeared in both sets of photos might well have influenced Horn to recognize his picture and identify him as a perpetrator. While viewing the second set, Horn stated that Demjanjuk's photo seemed familiar and reminded him of Ivan of Treblinka. Later, when this identification was disputed, Horn denied that he had been shown two sets of photographs or had been influenced by the first set in making his identification from the second. The affidavits of two Americans present at the interrogation, George Garand and Bernard Dougherty, contradicted these assertions. Each swore that Demjanjuk's photo from the first set remained in plain sight while Horn viewed the second set. These affidavits mysteriously disappeared from the government's file and were not recovered until after the trial. Moscowitz, who had absented himself from the room during the identification procedure so as not to become a potential witness in the case, claimed to be unaware of any flaws in Horn's identification. Shortly after his return from Germany, Moscowitz called the Israeli investigator, Martin Koller, to arrange for a number of Israeli witnesses to appear at the Demjanjuk hearing. This conversation was summarized in a letter inviting Eliyahu Rosenberg and Pinchas Epstein, among others, to participate in the upcoming Cleveland trial. Moscowitz sent Koller a recently obtained 1942 photograph of Demjanjuk and asked him to secure new identifications, making sure to avoid any suggestiveness in the process. This request amounted to an admission that previous identifications were not entirely satisfactory. As trial approached, the government team realized that its evidence was still remarkably weak, relying primarily on identifications made by a half-dozen elderly witnesses of a man they had last seen thirty-five years befoFe, if at all. Taking advantage of a changing international climate, the U.S. government turned to a new source of information, the Soviet Union. The Soviets held substantial archives ofWorld War II documents and had conducted a series of war-crimes trials regarding Treblinka and other death camps. The U.S. government urgently requested access to the Soviet materials, and, in August 1979, the Soviets provided a significant number of documents. Collectively referred to as the "Fedorenko Protocols," these documents included nineteen witness statements about Treblinka, a list of personnel transfers involving guards from a Nazi concentration-camp training facility at Trawniki that provided staff for Treblinka, and a note indicating that Feodor Fedorenko was not viewed as criminally liable by the USSR. This statement proved inaccurate; after Fedorenko was deported to the Soviet Union, he was put on

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trial, convicted, and executed. Parker and Moscowitz did not find the Fedorenko Protocols particularly relevant to the Demjanjuk case, although the documents suggested that the Soviets might have a great deal more information in their possession. Then a researcher serendipitously discovered a reproduction of what appeared to be Ivan Demjanjuk's Nazi prison-camp guard identification card in a Russian newspaper. Referred to as the "Trawniki document" because it had been issued at the Trawniki training camp, the card included an accurate set of personal facts about Demjanjuk, including his father's name, his birth date, and his place of birth, as well as a photograph that appeared to be Demjanjuk in an SS uniform. The card also recorded a series of military postings, including the death camp at Sobib6r-but not Treblinka. This document provided the first tangible corroboration that Demjanjuk had been a concentration-camp guard. The discovery of the Trawniki document convinced most of the lawyers for the government that they had found effective corroboration of their charges against Demjanjuk. Allan Ryan, head of the OSI, said in his 1984 book that when he saw the Trawniki identification card he thought: "You son of a bitch .... We've got you. " 14 In january 1980, the Soviets responded to American requests for information related to the identification card by providing what came to be known as the "Danilchenko Protocols." These documents included a good photocopy of the Trawniki identification card, a statement by a Treblinka camp guard named Malagon that Ivan Marchenko had operated the gas chambers there, and a statement by a Sobib6r camp guard, Ignat Danilchenko, tying Ivan Demjanjuk to activities at the Sobib6r death camp. The package also contained a note that could be construed as an oblique Russian warning that Demjanjuk was connected with Sobib6r rather than Treblinka. Although these materials raised serious questions about Demjanjuk's connection with Treblinka and suggested that the murderous Ivan was another man surnamed Marchenko, Parker and Moscowitz seized on the identification card and disregarded the other materials. They treated the matter of Ivan Marchenko as irrelevant to the case against Demjanjuk and attempted to explain Demjanjuk's documented association with Sobib6r rather than Treblinka by theorizing that guards had rotating assignments to various death camps, that Demjanjuk might have used an alias, or that there were several Ivans, including Demjanjuk, who worked together. Shortly thereafter, the government lawyers made a third request for Soviet assistance. They sought the original of the Trawniki document, the live testimony at trial of several Soviet witnesses, and information about guard transfers between death camps. In December 1980, as the Demjanjuk case was about to go to trial, the Soviets responded to this

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request by indicating that the witnesses were too frail or ill to travel but might be deposed. They sent along the statements of five guards who had worked at the Trawniki training camp, one of whom had made a weak identification of Demjanjuk. These statements, later referred to as the "Dorofeev Protocols" after one of the guards whose testimony was included, confirmed that a substantial number of guard transfers between camps had taken place. Preoccupied with preparations for the impending trial, the prosecutors filed the Dorofeev documents away. In August 1979, after a series of inquiries, the Main Commission for the Investigation of Hitlerite Crimes in Poland reported to the American prosecutors that it had no information concerning John Demjanjuk. The Polish commission sent along an article about Treblinka, written in 1975 for its bulletin, which included a list of names of guards who were known to have served at Treblinka. This list made no reference to Demjanjuk, but it mentioned a guard named "Marczenko Iwan," along with Feodor Fedorenko. The OSI team treated the Polish information as irrelevant to its work concerning Demjanjuk. The government's failure to scrutinize all this material and treat it as potentially exculpatory was a serious substantive error. The Danilchenko Protocols provided evidence that Ivan Marchenko, rather than Ivan Demjanjuk, had been the Ivan of Treblinka. The Dorofeev Protocols might be construed as casting doubt on the notion that Demjanjuk had been at Treblinka. In addition, the Polish report confirmed that Marchenko had been at Treblinka, while suggesting that Demjanjuk had not. The Trawniki document, which linked Demjanjuk to the German concentration-camp system, placed him at Sobib6r rather than Treblinka. A clear contradiction existed between the Treblinka survivors' identification of the photograph ofDemjanjuk as Ivan the Terrible and the mass of documentary evidence suggesting that he was not. The government's failure to turn over this material to defense counsel and to assist the defense in gathering its own evidence from Eastern Europe was an equally serious error. The Soviet and Polish governments would only deal on a government-to-government basis regarding the Demjanjuk case. To obtain any official information from Eastern Europe, the defense depended on the U.S. government to act on its behalf. At a pretrial hearing held in June 1979, government lawyers promised the defense that the United States would forward Demjanjuk's requests for information to the appropriate Eastern European authorities. The defendant was helpless without such assistance and vulnerable to whatever restrictions the government might impose. Although the government team forwarded three defense requests to the Soviets, the United States did not press the Soviets as vigorously and effectively as it had done with regard to its own requests. Demjanjuk's counsel was denied

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access to potentially exculpatory materials held behind the Iron Curtain and was misled to conclude-incorrectly, as it turned out-that no useful items could be found there. Demjanjuk was also entirely dependent on the U.S. government to turn over to him any and all favorable or exculpatory materials the OSI might have discovered during its investigation. Because denaturalization is classified as a civil proceeding, the duty to disclose arises directly out of the Rules of Civil Procedure, which mandate a full sharing of information upon request. Demjanjuk was forced to rely on the good faith of the U.S. government. Allan Ryan, eventual director of the OSI, publicly stated that his office "had a policy and practice of turning over exculpatory information even if it had not been requested," 15 but the government provided Demjanjuk virtually nothing from the Fedorenko, Danilchenko, and Dorofeev protocols or from the Polish Main Commission. Later, when this problem was revealed, the government argued that the materials either were irrelevant or had not been specifically requested. The government's relevance argument substituted its judgment for that of the defense about what might be useful, and it deprived the defense of materials that were later found to be of critical importance. The Special Master appointed by the U.S. Sixth Circuit Court of Appeals, Judge Thomas Wiseman, concluded that the government had not acted in conformity with its declared position offull disclosure but instead had adopted a "hardball approach." 16 The circuit court, after reviewing the master's report and the submissions of the parties, characterized the government's attitude as "win at any cost." The result, according to the appellate court, was a "reckless disregard for the truth" that amounted to "fraud." 17 Because denaturalization cases are classified as civil proceedings, Demjanjuk could be interrogated by the government's lawyers before the trial. In a criminal case, such an interrogation would violate the defendant's Fifth Amendment right to remain silent. Demjanjuk had admitted lying on his immigration forms when he had been examined in 1978, which might in itself warrant denaturalization. The OSI sought and received special court permission for a second deposition to be taken on February 28, 1980. This round of questioning afforded the government an opportunity to assess the defendant's performance in giving testimony and to test newly developed theories about the case. This procedure did not yield the sort of self-incriminating statements that Eichmann made during his lengthy pretrial interrogation, but it provided a significant and unfair advantage to the state. As the Demjanjuk case stood at the brink of trial, the attorneys for the United States paused to take stock of their claims. The government's lawyers saw three serious questions in the case. The first was a generic one common to all Holocaust trials: how reliable were identifications

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made by victims thirty-five years after the events at issue? The second and third were specific to the Demjanjuk trial. Had another Ivan been the "terrible" guard at Treblinka? Had Demjanjuk been at Treblinka or, as some documents suggested, at Sobib6r? The question of the reliability of witnesses was particularly salient. Failed identifications had figured significantly in two recent cases brought by the OSI's predecessor against suspected Holocaust perpetrators. In United States v. Walus, erroneous identifications had embarrassed the prosecution and led the government to withdraw all charges in 1979. 18 In the case against Feodor Fedorenko, the district court's skepticism about the accuracy and truthfulness of the Israeli witnesses had led to the exoneration of the defendant. In his assessment of the government's prospects for the Demjanjuk trial, OSI team member George Parker came to alarming conclusions. Apart from the victims' testimony, the government's case rested almost exclusively on the Trawniki identification card, which placed Demjanjuk not at Treblinka but at Sobib6r. No ready explanation existed for this inconsistency. This problem was compounded by the Danilchenko Protocols, in which a Ukrainian camp guard who had been stationed at Sobib6r said that Demjanjuk had served with him there and that later the two men had been assigned to another camp, Flossenberg. The document and these recollections presented a serious challenge to the survivors' claims that Demjanjuk had been at Treblinka. Parker was so concerned that he prepared a memo for his superiors, outlining the issues. The crucial section declared: "We have little admissible evidence that defendant was at Sobib6r yet serious doubts as to whether he was at Treblinka. Even if we may be comforted that we may have the right man for the wrong act, the ethical cannons [sic] probably require us to alter our present position." 19 Trying "the right man for the wrong act" was no more acceptable under the ethical standards that govern civil proceedings than trying the wrong man for a given crime would be in a criminal case. Parker outlined four options: The first was to stand pat and press the claim that Demjanjuk was the Ivan at Treblinka, which Parker thought improper because of the weakness of the evidence. The second was to shift the case focus from Treblinka to Sobib6r, which would render all the available eyewitness testimony irrelevant; no live witnesses placing Demjanjuk at Sobib6r had been developed, and only the Danilchenko Protocols and one Polish document provided any supporting evidence. Because of the paucity of proof, Parker saw this move as "tactical suicide." The third choice was to dismiss the case and consider filing against Demjanjuk later if the Sobib6r proof could be strengthened. This choice was politically unacceptable because it would likely provoke a firestorm of protest. The final option was to

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amend the government's allegations, adding specific references to Sobib6r and broadening the trial's focus from particular claims about atrocities at Treblinka to more general assertions about Demjanjuk's service as a death-camp guard. The OSI's top managers reviewed Parker's memo at a meeting held in March 1980. Director Rockier and Deputy Director Ryan met with Parker and Moscowitz. While the recollections of the participants vary, the special master found when he investigated the case in 1993 that Rockier had focused the discussion on two questions: whether the Sobib6r/Treblinka discrepancy was irreconcilable; and, if so, whether success might be achieved by pressing both claims at the same time, without taking a stand as to which one might be correct and letting the court choose between them. The central problem with this approach was that it ignored the ethical dilemma Parker had identified as trying "the right man for the wrong act." It allowed the presentation of heartrending and potentially prejudicial testimony from victim witnesses when the accuracy of their identifications of Demjanjuk was in very grave doubt. Moscowitz assured his superiors that the case could be won and the Sobib6rI Treblinka problem resolved by the theory that Demjanjuk had been transferred to various death camps at different times. This argument satisfied Rockier but was, as the special master put it, "insensitive to Mr. Parker's concerns." 20 The government avoided the hard ethical question and chose an expedient strategy designed to win denaturalization and evade the substantive problems inherent in the evidence. Ten days before trial, the government requested that the district court in Cleveland allow it to amend its claims against Demjanjuk so as to place equal emphasis on Sobib6r and Treblinka. This variant on Parker's fourth option did nothing to address the possibility that the court would be exposed to potentially misleading and prejudicial testimony. George Parker resigned from government service within three months of the March 1980 meeting. His resignation was a serious signal that all was not well with the OSI prosecution team. Later, when the case was being examined by the special master pursuant to the Sixth Circuit's mandate, it was discovered that all copies of Parker's cautionary memo had disappeared from the government's files. The memo was only recovered when Parker found a copy in a box of materials he had stored at home. The possibility that this sensitive memo was purged from the files by someone uncomfortable with criticism of the government's tactics is extremely disturbing. The government was committed to pressing the Demjanjuk case as vigorously as possible, notwithstanding serious questions about its merit. Moscowitz's approach to the litigation reflected this determination. He solved the Sobib6r/Treblinka problem with his notion that guards were

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frequently transferred between camps, which was supported only by the Dorofeev Protocols. He fashioned a series of alternative explanations for the troublesome evidence that Ivan the Terrible was surnamed Marchenko. He theorized that Marchenko might be Demjanjuk's alias, an assertion that was lent some credence by the fact that Demjanjuk had claimed on his visa application that his mother's maiden name was Marchenko. Alternatively, he proposed that both Marchenko and Demjanjuk had operated the gas chambers at Treblinka, perhaps as a two-man team or as part of a larger group. What was troubling about all this was that the inexperienced Moscowitz, who was only two years out of law school when he joined the OSI, considered everything but the obvious explanation; he seemed incapable of entertaining the possibility that Demjanjuk was not the Treblinka murderer. OSI Director Rockier pursued the same strategy. His sole concern was to find a theory that would keep the case moving, notwithstanding the ethical or evidentiary problems posed by discrepant proofs. The government team decided to play "hardball" despite the serious risk that they might be mistaken. Why did the U.S. government pursue Demjanjuk in such a singleminded and relentless manner? In his 1984 book on the OSI, Allan Ryan described the agency's mission: "The verdicts in our cases went beyond the guilt or innocence of a particular defendant, each one helped to complete the historical record on what America had done [after the early years of inaction] in response to the Holocaust." 21 Ryan believed deeply in America's obligation to do something about those in its midst who had participated in the "Final Solution." This was as much a symbolic act as a practical one. Intended to express America's condemnation of Nazism and the Holocaust, it was strikingly similar to the objectives of the Nuremberg trial and the Eichmann case. Ryan seemed to regard Demjanjuk as the incarnation of Nazi evil. In his book, Ryan acknowledged his hatred of the defendant, calling him a "cockroach" who warranted crushing; but that was not all that bothered him about Demjanjuk: "[A]s much as I loathed [him,] I resented him more, with his impassive silence, his callous, almost bored, demeanor as he faced his accusers, his careless and demonstrably false alibi." 22 Demjanjuk's silence and alibis-indeed, his unconditional denial of having been Ivan the Terrible-were particularly galling. The government's response to Demjanjuk, as to Eichmann, was to seek to shatter that silence with an aggressive case on behalf of the suffering victims and mercilessly to expose the full scope of his lies. The government's lawyers were willing to use any means to achieve their objective. Self-righteous anger is apparent throughout the OSI's approach, from its failure to fulfill its obligations to the defense to its conscious disregard of the contradictions in its own proof.

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The Government's Case The government began its presentation against John Demjanjuk in Cleveland, Ohio, on February 10, 1981, before Federal District Court Judge Frank Battisti. The OSI presented its case simply and swiftly, a remarkable feat given the tergiversations of the long period of preparation. The case proceeded in four steps: ( 1) an overview of the operations of the Polish death camps, (2) presentation of the Trawniki document, (3) testimony of the Treblinka witnesses, and (4) evidence demonstrating Demjanjuk's violation of U.S. immigration and naturalization laws. The government began by sketching the historical context in which Demjanjuk's alleged activities as a concentration-camp guard arose. An expert witness, Professor Earl Ziemke, described the military campaign on the Kerch Peninsula in the Crimea during which Demjanjuk was, all parties agreed, captured by the invading German Army; Ziemke then discussed the Nazis' removal of their Soviet prisoners ofwar to detention facilities behind the front lines. This testimony explained how Demjanjuk arrived at a prisoner-of-war camp in Chelm, Poland. From Chelm, the government contended, Demjanjuk was recruited to become a concentration-camp guard and trained for his new job at the Trawniki transit camp. Professor Wolfgang Scheffler, a veteran Holocaust expert witness, testified that Sobib6r and Treblinka were erected in 1942 to carry out the murder of Poland's Jewish population in accordance with the dictates of the Nazi's Operation Reinhard. 23 The camps' activities were directed by Germans, but most tasks were entrusted to Ukrainian guards. Scheffler detailed their duties: rounding up Jews from various ghettos in Poland, transporting them to the death camps, unloading them, and murdering them in the gas chambers. The government then set about establishing the authenticity of the Trawniki identity card, the crucial piece of documentary evidence in its case. In response to the prosecutor's questions, Scheffler opined that in more than twenty years of work with Holocaust-related documents, many drawn from Soviet archives, he had never encountered a Soviet forgery. On cross-examination the defense tried, with little success, to suggest that Soviet handling of archival documents was suspect because of restrictions on access by outsiders and the KGB's propensity to manipulate documentary materials. Gideon Epstein, a sophisticated document examiner employed by the INS, provided further, yet only partial, authentication of the card. The government then presented the videotaped testimony of Heinrich Schaefer, a Soviet soldier of German extraction who, after being captured, had switched sides and served the Nazis as an administrative clerk at the Trawniki camp. He said that the card bore a number offamiliar characteristics but admitted that he could not recall having seen another card of the same sort.

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Neither the defense nor the bench considered the most serious questions that might have been raised about the Trawniki document. The identification card was offered into evidence thirty-nine years after its creation. Its whereabouts during the intervening period and the circumstances under which it was found were never explained to the court. Scrupulous prosecutors and expert examiners customarily treat documents of unknown provenance with suspicion. George Parker had noted about the Trawniki document: "[S]ince we cannot trace its history for the last thirty-eight years, we cannot expect the court to extend too much weight to the card." 24 Although the court admitted the identity card into evidence, the govemment had not given judge Battisti reason to regard it as substantial proof. The govemment then tumed to the witnesses from Treblinka, beginning with the videotaped testimony of Otto Hom. His credibility was enhanced by the fact that he. was a not a victim but a "bystander" who had no apparent animus against Demjanjuk. Hom's cautious deposition effectively initiated the govemment's demonstration that Demjanjuk was connected with the Treblinka killing center. Unfortunately for the defense, the affidavits suggesting that there were problems with Hom's identification had disappeared. Defense counsel questioned Hom about the possibility that his identification of Demjanjuk was tainted, but the witness denied any problems. The testimony of five survivors of the Treblinka camp was the next, and most affecting, segment of the trial. Reporters who observed the proceedings said these witnesses "electrified the crowded courtroom." 25 Yechiel Reichman's testimony set the tone and shaped the pattem of interaction between the witnesses and the govemment, the bench, and the public. Reichman described his personal experiences from the outbreak of the war to his confinement with his sister in the Ostrowlubelski ghetto. Mter the ghetto was surrounded by German and Ukrainian soldiers and all its inmates were forcibly removed to Treblinka, Reichman was saved from immediate extermination and assigned to a work detail. His sister was not so fortunate. On his second day at Treblinka, Reichman found her dress-the only thing that remained after the gas chamber and crematorium had done their work. Reichman then discussed his contacts with Ivan the Terrible, whom he described as the "biggest devil" 26 in that hellish place. Ivan's sadism knew no bounds. He had tortured a friend of Reichman's by drilling into his anus with an auger. An enthusiastic participant in the slaughter of jews, Ivan sliced off the ears of victims being herded into the gas chambers. As Reichman told his story in an anguished whisper, members of the audience wept. 27 The emotional costs of testifying were readily apparent. When Reichman had completed his direct examination, he did what so many Eichmann-trial

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witnesses had done before him: he asked the court's permission to make a statement. Just as the judges in Eichmann had done, Judge Battisti allowed him to continue. Reichman's concluding remarks were poignant and moving: "I always begged God that I should have the privilege to tell the world how they annihilated us; and to you, the authorities of America, the American people, I want to thank you. " 28 Although the impact of those simple words is hard to estimate, their utterance underscores the tremendous emotional power of victim testimony. From the outset of the case, John Demjanjuk's lawyers, John Martin and Spiro Gonakis, seemed outclassed. Martin mishandled the crossexamination of the first death-camp survivor so disastrously as to influence the course of the trial thereafter. Martin began in an accusatory and hostile fashion, asking Reichman if he had ever been known by any other name, which the witness denied. Martin then tried to use one of Reichman's prior statements to demonstrate that he was not being truthful. Martin pursued this line so unskillfully and nastily that he provoked the judge's ire and condemnation. For what seemed a trivial reason, Martin was attacking a man who had just described terrible suffering. His choice of tactics raised serious questions about his judgment as a lawyer. Defense counsel had clearly miscalculated the risks and benefits inherent in cross-examination in a Holocaust trial. Despite the damage he was doing to the defense case, Martin continued his attempt to impeach the witness. On direct examination, Reichman had said that the trauma of being thrust into Treblinka had temporarily "blinded" him. Martin pressed him on this remark: Q A

Q A

When you say "blinded," did you have some problems with your eyes? No. Only that they murdered us. When you say you were blinded, would you explain that, please? Yes. No person cannot [sic] imagine what Treblinka was. It's possible that a normal person can see with his eyes. These bandits came over to a mother when she was naked and had her naked child, and one of them tore the child out by its legs and killed it by smashing it in the wall.

Mter an agonized pause, Reichman asked Martin: "Can you be blind?" 29 Martin's insensitive questioning heightened sympathy for the witness and prompted the judge to intervene. Martin continued to press the matter of "blindness," provoking the following exchange: Q

Mr. Rajchman, do you recall how long you were at Treblinka before you got your sight back or where you could see?

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MR. MARTIN: THE COURT:

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Objection, your Honor. My problem is my inclination to sustain this objection, counsel. You know obviously he's not talking about literal blindness,Your Honor, I withdraw the question. I'm not quite sure what you're attempting to do, and you certainly will treat this witness with dignity. He's obviously talking about his mind will not permit him to recall those early events, he's made that very clear. 30

This astounding line of questioning raised doubts in the judge's mind about defense counsel's good faith, undermining the defendant's case. This confrontation was followed by increasingly sharp clashes between defense counsel, the witness, and the government. The U.S. attorney intervened in the cross-examination of Reichman so often that Martin eventually declared: "[I]f he wants to ask my questions for me and the Court allows it, I'll sit down." 31 The final blow for the defense came at the end of its cross-examination. Reichman was the only survivor witness who, when shown the 1942 photograph from the Trawniki card, had failed to identify it as a picture of Ivan the Terrible. Martin wanted to end his examination by emphasizing this point. As he began questioning Reichman about the identification, the witness said that now, at trial, he recognized the photo as that of Ivan from Treblinka. This identification reinforced Reichman's testimony and left the defense's argument in tatters. The dynamic of emotionally wrenching testimony offered by victim witnesses and inept and inappropriate cross-examination reverberated through the examinations of the other four Treblinka survivors. Demjanjuk's lawyers' insensitivity and hostility showed that they failed to appreciate the impact of the witnesses' testimony on the court. When Eliyahu Rosenberg described the nightmare scenes at the gas chambers as Ivan forced his victims into the dark and packed killing rooms, defense counsel tried to challenge the witness's recollection of the details of that event. Denying "the crying of the children" 32 in that terrible place was a travesty that made the charges more persuasive. With Georg Rajgrodski, Sonia Lewkowicz, and Pinchas Epstein, the situation was much the same. The testimony of these five witnesses seemed to fuse into one formidable charge against Demjanjuk. Their separate identifications and accusations had been welded into a single, far stronger claim about Ivan the beast of Treblinka. Any individual witness's weaknesses were compensated for by the testimony of the others. A traditional approach to impeachment, focusing on discrepancies in bits and

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pieces of testimony within and among the witnesses' statements, was not effective. Had the defense pursued a more coherent strategy, the reliability of the victim witnesses could have been called into question even without additional information about the process of identification. All had suffered through the harrowing experience of Treblinka. By the greatest of good fortunes, all had escaped the death camp during the uprising of August 2, 1943. For each, the miracle of survival was accompanied by a deep sense of obligation to honor the memory of the slaughtered and to bear witness against the murderers. The witnesses were strongly predisposed to help the prosecution. All five who testified in Demjanjuk had testified in previous Holocaust-related trials, including the 1964 and 1970 Dusseldorf prosecutions of the Germans who had run Treblinka. Two of the Demjanjuk witnesses had also appeared at Fedorenko's trial in Florida. These witnesses had rehearsed their stories many times. Moreover, the victim witnesses knew each other well. All had some knowledge of their compatriots' recollections and had participated in programs commemorating the terrible events of Treblinka. Through this process, they had created a common memory ofTreblinka that had superceded their individual, no doubt more fragmentary, recollections. It would not have been difficult to show that these witnesses, as a group, offered testimony that was tainted by their determination to prosecute perpetrators and repeated rehearsals in previous trials. The final phase of the government's case was a demonstration that, if Demjanjuk's connection to the concentration camps had been known, he would have been barred from the United States. The government called four witnesses to prove this proposition. Daniel Segat's videotaped deposition stated that any evidence of collaboration with the German Army would have rendered a displaced person ineligible for assistance from the U.N. International Refugee Organization (IRO) and, hence, for entry into a new country. Leo Curry, who had approved Demjanjuk's application for entry into the United States as an employee of the U.S. Commission on Displaced Persons, testified that any applicant found to have persecuted civilians would be prohibited from entry into the United States and service in any Nazi unit would "raise serious doubts and questions as to his eligibility." 33 Harold Henrikson had approved John Demjanjuk's visa application while serving as vice counsel in the U.S. Foreign Service in Ludwigsburg, Germany. He testified that lies under oath on the visa application would disqualify an applicant from entry into the United States and declared that service in a concentration camp would result in exclusion. Finally, Donald Pritchard, who had approved John Demjanjuk's naturalization as a citizen in 1958, stated that any applicant who had participated in the persecution of a

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civilian population would be denied naturalization. The government had proceeded expeditiously, concluding its presentation after less than two weeks of trial. The strategy adopted by the government team was subtle and deceptive, emphasizing the Trawniki document that placed the defendant at Sobib6r and deemphasizing the eyewitness testimony about Demjanjuk's presence at Treblinka while exploiting its emotional impact. The government tried to link the two elements of its case with its theory that guards were moved from camp to camp on a regular basis, but it had offered no proof that Demjanjuk had ever been transferred. The government presented both the Sobib6r and Treblinka proofs without harmonizing the two. The victims' testimony lent the government's case a powerful emotional impact, yet the Treblinka proof did not have to be fully accepted for Demjanjuk to be denaturalized. The government avoided making hard choices about its proof or specifying the crimes John Demjanjuk had actually committed. Its objective seemed to be to win a deportation trial rather than addressing the foul deeds of a genocidal criminal. This approach undermined the moral integrity of the process. It was easy to find that Demjanjuk had violated immigration law, especially after hearing accusations that he had mutilated men, women, and children. The case had been manipulated into an invitation to condemn "the right man for the wrong act." Of course, the world might not realize what had happened and might erroneously conclude, as Israel did, that De~anjuk was Ivan the Terrible.

The Defense Case Mter a week's hiatus for examination of the original Trawniki card, which the experts testified appeared to be authentic (as much as a document without provenance could be), the trial resumed with the presentation of the defense case. Perhaps mimicking the government, the defense began with an expert witness who discussed the historical background. Professor Michael Pap of Cleveland's John Carroll University was an ardent supporter of Ukrainian independence and a member of the United Ukrainian Organization. His stridently anti-soviet testimony bore little relevance to the charges against De~anjuk. The only possible connection between Pap's narrative of relations among Ukrainians, Russians, and Jews and the case at hand was to blame everyone except the Ukrainians for what had happened in the East. The defense seemed more interested in extolling the virtues of Ukraine than in defending Demjanjuk. This tendency reflected the influence of the UkrainianAmerican community, which was helping to defray Demjanjuk's legal

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expenses. The court found the relevance of all this to the charges against Demjanjuk "tenuous," but it allowed the defense great latitude. Jerome Brentar, the second defense witness, continued the anticommunist theme, suggesting that the defendant had good reason to fear Soviet intentions after the war and to lie on immigration documents. Brentar described the Soviets as "like the SS" 34 and painted a picture of Demjanjuk as a victim of Soviet oppression. Brentar also testified that IRO standards exempted those who had involuntarily served in enemy forces from disqualification for "displaced person" status and that the IRO manual required examiners to give refugees the benefit of the doubt in such cases. Brentar was sharply cross-examined, and . it appeared that he had violated the judges' sequestration order by studying transcripts from previous sessions of Demjanjuk's trial. The defense then presented the testimony of five character witnesses, who swore to John Demjanjuk's good reputation in the Cleveland community where he lived and worked. The two sides stipulated that the defense had thirty-seven more such witnesses available to testifY. Whatever value these witnesses might have had was diminished by the unskilled manner in which the defense sought to present its testimony. In American law, a specific verbal formula is required to introduce reputation evidence. Defense counsel failed to use the formula and was sharply criticized by the judge. Eventually the judge himself took over this task.

When the defense sought to call an expert witness to discuss the validity of the identifications made by Treblinka survivors, the court declared that it would not hear his testimony. The defense wanted Dr. Douglas Detterman, a professor at Case Western Reserve University, to describe the psychological factors that might have tainted the identifications. In their examination, they would have asked Dr. Detterman to review and comment on the facts that only fifteen out of thirty-three potential witnesses had identified Demjanjuk as Ivan the Terrible in photo identification sessions using the 1951 visa photograph and an even smaller number, seven out of twenty-eight, had made an identification using the 1942 Trawniki card photo. Judge Battisti ruled: "With regard to the photo spreads or the testimony relating to the photographic evidence, the effort to-or the opportunity, really, to cross-examine on the part of the defense the live witnesses has been, in my opinion, sufficient for the defendant's needs. The kind of testimony proposed to be offered through your expert will not assist me in any way as the trier of fact." 35 This decision, the only one prohibiting the testimony of a witness at the Demjanjuk trial, raises the most serious question connected with Judge Battisti's handling of the case. The barred evidence went to the heart of the proceedings: the testimony of the Treblinka victims. It was intended

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to focus attention on psychological data, indicating a serious risk of misidentification because of the suggestive procedures and poorly constructed photo spreads relied on in the case. That Battisti decided not to hear this testimony implies that the judge may not have had a truly open mind regarding the identification problem. In a case where marginally relevant expert testimony had been repeatedly aired, singling out a psychologist who might cast doubt on the eyewitness identifications is striking, especially given the district court ruling in the Fedorenko case that suggestive investigative techniques had contaminated a number of witnesses, some of whom were also appearing in this trial. The horrifying tales that accompanied these witnesses' identifications of Demjanjuk as Ivan the Terrible swept aside judicial caution. Although in fairness to Judge Battisti it should be noted that psychologists' testimony about problems involving eyewitness identification and memory was fairly novel in 1981 and had been excluded in a number of other cases, the exclusion of this testimony had the most serious consequences for the entire case. The defense next offered the testimony of Dr. Edward O'Connor, a former member of the U.S. Commission on Displaced Persons, who described the operations of the Displaced Persons Act and stressed its liberality regarding involuntary service with enemy forces. He noted the problems caused by Soviet repatriation efforts after the war and underscored the point that not all false answers to immigration officials' questions mandated ouster from the United States. On cross-examination he was forced to concede that the Displaced Persons Act does speci:fY exclusion for any applicant who makes intentional misrepresentations. John Demjanjuk was the final defense witness. In a half-hour of direct examination, he repeated the now-familiar story of his capture at the battle for control of the Kerch Peninsula and his transport to a prisonerof-war facility at Chelm. He claimed to have stayed at Chelm for several years, after which he was involuntarily assigned to service in a Nazi-organized Ukrainian unit being formed at Graz, Austria, to fight against the Soviets. He denied ever having worked in a concentration camp or having been issued the Trawniki identity card, but he did not explain the incriminating evidence against him or address the inconsistencies in his own prior statements. The government honed in on these problems in its cross-examination. Counsel began by asking Demjanjuk about his listing of Sobib6r as a place he had resided during the war. Demjanjuk now claimed that his reference to Sobib6r was a lie-an admission that might, in itself, jeopardize his U.S. citizenship. He apparently chose this response because the alternative would have placed him at a Nazi death camp, which he seemed bent on avoiding at all costs. He was no more convincing when

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he tried to explain why he had removed a Nazi military tattoo from his underarm. Only concentration-