Tag Archives: Nuremberg

Update re The Jackson List

As you might know, I write about Robert H. Jackson (1892-1954), United States Supreme Court Justice and Nuremberg chief prosecutor of Nazi war criminals following World War II.  Jackson is one of the most enduringly significant lives of the 20th century.  Among other things, I am a Jackson biographer, discoverer and editor of his acclaimed book That Man on President Franklin D. Roosevelt (which also is a Jackson autobiography), author of many articles on Jackson, a regular lecturer across the U.S. and internationally on Jackson and related topics, and a fellow and board member at the Robert H. Jackson Center in Jamestown, New York.

An outgrowth of all that is that I email a few notes each month, on Justice Jackson, the Supreme Court, Nuremberg, and/or related topics, to “The Jackson List.”  It is a one-way, private email list that reaches many thousands of direct subscribers—teachers, students, scholars, lawyers, Judges, and other learners—and, through their forwarding, reposting, blogging, etc., many others around the world.

In the past, I have used this blog site to post items as they are sent to The Jackson List.  But it has migrated to a new platform and better technology.  (Thank you, IT aces!)  So from now on, new Jackson List posts will go by email to The Jackson List and, simultaneously, be posted on its archive site—

https://thejacksonlist.com/

To subscribe to The Jackson List, sign up there, or send me an email.

Thanks very much for your interest, and for spreading the word.

Jackson List: Respecting the Mother of a Man Killed in Auschwitz (1946)

When the international trial of the Nazi arch-criminals began in Nuremberg in November 1945, Rudolf Franz Ferdinand Höss (in English, Hoess) was known to have been the commandant of the Nazi concentration camp near Oświęcim in what had been, before September 1939, Poland.  During World War II, the Nazi invaders and occupiers had renamed that town Auschwitz.  Hoess had, people were alleging, gassed millions, mostly Jews, at Auschwitz.  But as the Nuremberg trial began, Hoess was missing, at least a fugitive, perhaps dead.

Almost four months later, in March 1946, soldiers in the United Kingdom zone of occupation captured Hoess near what had been Germany’s border with Denmark.  They interrogated him.  He confessed that he had, as Auschwitz commandant, on orders from Nazi leader Heinrich Himmler (who had killed himself in May 1945), gassed two million people.

Hoess then was transported to Nuremberg for further interrogation.  The four Allied  nations had by that time concluded presenting their prosecution cases against the defendants, but Hoess’s evidence was potentially relevant to their cross-examinations and rebuttals that still lie ahead, and perhaps to future trials.  He was interrogated, thoroughly and repeatedly, by U.S. personnel.  He continued to confess, in expanding detail, what he and his personnel had done at Auschwitz.  His confession was put in affidavit form, which he and United States assistant trial counsel Lieutenant Colonel Smith W. Brookhardt, Jr. (IGD), each signed on April 5, 1946.

Hoess’s capture and his presence in Nuremberg were made known to defense counsel.  On April 6, British prosecutor David Maxwell Fyfe applied to the International Military Tribunal (IMT), on behalf of defendant Ernst Kaltenbrunner, for a new “witness called Hoess, who was former Commander of the Auschwitz Concentration Camp.  My Lord, there is no objection on the part of the Prosecution to that.”  The IMT, determining that other defense counsel either concurred or did not object, granted permission.

On April 15, Kaltenbrunner’s lawyer called Hoess as a witness.  He testified that he had been commandant of Auschwitz for its first three years, and that he had reported to and received his instructions directly from Himmler’s subordinate Adolf Eichmann (who then was believed to be dead).  Hoess’s key testimony, from the defendant’s perspective:

Defense counsel Dr. Kurt Kauffmann:  Did the Defendant Kaltenbrunner ever inspect the [Auschwitz] camp?

 Hoess:  No.

 Dr. Kauffmann:  Did you ever talk with Kaltenbrunner with reference to your task?

 Hoess:  No, never.

U.S. Army Colonel John Harlan Amen, a senior member of U.S. Chief of Counsel Robert H. Jackson’s staff, then cross-examined Hoess.  The examination tracked his horrific affidavit to Brookhart.  It confessed publicly, without remorse, the enormous, deliberate, exterminationist evil of Auschwitz.

*          *          *

On the day of Hoess’s trial testimony, Justice Jackson was in Allied-occupied Vienna for diplomatic, military liaison, and other coordination meetings.

The next day, an Austrian woman, Helene Zacchiri, hurriedly typed a letter in quite-rough German and managed to get it delivered to Justice Jackson.  She obviously knew that he was in the city, that he was the chief prosecutor in Nuremberg, and that Hoess had just testified there.  She had been told years earlier that her son had died in Auschwitz.  She had tried to learn more about his fate but had failed.  Now she was asking Jackson for help.

Jackson, who did not read or speak German, had an interpreter with him in Vienna.  The interpreter shared with Jackson these words from Mrs. Zacchiri:

16 4 46

            [April 16, 1946]

Herrn Vorsitzenden Dr Robert H Jakson

[Mr. Chairman Robert H. Jackson]

Ich habe in der Zeitung gelesen das die Verhandlung gegen Kommandaten Hosch demnachst in Nurnberg stattfindet[.] Daher ersuche herrn Vorsitzden in engelegenheit meines Sohnes denselben einzuvernehmen[.]

[I have read in the newspaper that the hearing against Commandant Hosch [Rudolf Hoess] is taking place in Nuremberg. Therefore, I ask you to please question him about the fate of my son.]

Mein son Demeter Odnega geb Wien am 10 Juni 1901[.]  Maschinen techniker wurde von der Gestappo Wien am 29 Mai 1941 nach Auschwitz uberstellt[.]  Am 10 December hat mir der Kommandant eine Todeserklahrung geschikt[.]  Nun bin ich nach Berlin gefahren und habe dort erfahren dass main Son nur Tod erklahrt wurde[.]  Nachdem hier unde in Auschwitz alle akte verbrant sind kann ich uber das schiksal meines Sohnes Nicht erfahren[.]

[My son Demeter Odnega, born in Vienna on 10 June 1901, is a mechanic.  The Gestapo in Vienna sent him to Auschwitz on 29 May 1941.  On 10 December [1941?], the Commandant sent me a death certificate.  I went to Berlin and all that I could learn there is that my son is declared dead.  Because all the files in Auschwitz were destroyed, I cannot learn about the fate of my son.]

Ich ersuche daher hoflichst Hosch einzuvernnehmen ob mein Sohn getodet wurde in Auschwitz oder verschikt[.]  Ich war drei mal in Auschwitz Herr Vorsitzender[.]  und habe im Ort erfahren wie diese armen Menschen dort auf Befehl des Kommandanten als auf Auftrag des Schirach dort mishandelt wurden und getodet[.]  Ersuche mich schriftlich von der Einvernahme zu verstandigen denn es ist fur eine Mutter furchbar nicht zu wissen funf Jahre wo mein Sohn ist[.]

[Therefore please ask Hosch [Hoess] whether my son was killed in Auschwitz or transferred to some other place.  I was in Auschwitz three times, Mr. Chairman.  I learned how the poor people there were mistreated on the orders of the Commandant, on behalf of Schirach.  Please write back to me what you learn through interrogation.  It is awful for a mother not to know for five years where her son is.]

Hochachtunsvoll

Helene Zacchiri

Wien 4 Muhlgasse 20 12

            [Sincerely

            Helene Zacchiri

            Vienna [Austria] 4 Muhlgasse 20 12]

*          *          *

In Jackson’s position—he was the important chief of a very large, high profile, high stakes project, asked by an unimportant person to seek information that almost surely would not exist—many people would do little or nothing.

Jackson brought Mrs. Zacchiri’s letter back from Vienna to Nuremberg.  He gave it to his secretary Elsie Douglas.  He told her what it said, and that it likely was a futile request.  But he told her to send it to Col. Amen.

Mrs. Douglas sent the Zacchiri letter to Amen, with a cover note that was less than an order from Jackson to do something but not discouraging of action.

Amen passed the letter along to Sender Jaari, one of his Interrogation Division personnel who had been involved in interrogating Hoess.

Jaari asked the imprisoned Hoess about Mrs. Zacchiri’s son’s fate.  Hoess replied that he had no information.  Jaari reported that back to Mrs. Douglas.

Mrs. Douglas reported to Jackson what Hoess had said.

Jackson then sent a letter back to “My dear Mrs. Zacchiri” in Vienna:

As requested in your letter of April 16, which was delivered to me during my brief stay in Vienna, the witness Hoesch [sic] has been interrogated as to some possible clue on your son’s whereabouts.  I regret to advise you that Hoesch states that he does not know anything about him and therefore can give you no helpful information.  I am very sorry we have been unable to help you.

We know, as Mrs. Zacchiri was told in December 1941 and continued to believe, crushingly, in 1946, that her son Demeter Odnega was a Holocaust victim, murdered in Auschwitz—click here for his record in the International Tracing Service database.

I hope that she received Justice Jackson’s letter, and that she felt its humanity.

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This post was emailed to the Jackson List, a private, one-way (me to you), entirely non-selective email list that reaches many thousands of subscribers around the world.  I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Invoking “Nuremberg”—Calling “Nazi,” Really—Too Flippantly in Chicago

During Chicago’s recent mayoral campaign, the Chicago Tribune published an article on the career of candidate Lori Lightfoot, a lawyer.

The article recounted, among other details, an incident when Lightfoot, serving in 1999 as an Assistant United States Attorney, allegedly misled a federal judge.  This resulted in her later reprimand by another federal judge, U.S. Circuit Court Judge Richard Posner.

In her defense, Lightfoot explained that the incident occurred when she was “a junior lawyer following the advice of people who were much more experienced than me [sic],” and that a U.S. Department of Justice inquiry had determined that she had not “engaged in professional misconduct or exercised poor judgment.”

In response to the Tribune’s article, Scott Cisek, a senior aide to Lightfoot’s opponent Toni Preckwinkle, posted on Facebook a photograph of nine former Nazis sitting in the dock as defendants before the International Military Tribunal at Nuremberg during 1945-46.  The photo had a top caption ” ‘JUST FOLLOWING ORDERS’ ” and, at bottom, “HISTORICALLY THAT EXCUSE HASN’T WORKED OUT SO WELL.”

Cisek soon deleted his post and apologized.

Preckwinkle fired Cisek from her campaign.

Lightfoot, in the end, defeated Preckwinkle.

The enormous crimes of true Nazis, as proven and adjudicated in the Nuremberg trials, are matters to study, learn, and teach, with accuracy and a sense of proportion.

RIP, Dr. Walter V. Powell (1929-2019)

I write once, twice, or a few times a month to The Jackson List, a private, now very large and ever-growing email list, about U.S. Supreme Court Justice Robert H. Jackson and related topics.

One result, unexpected at first and now a great pleasure, is that people respond to Jackson List posts by emailing back to me.  Sometimes they just send thanks.  Other notes are more substantive, sometimes very personal and erudite.

Through these notes, which I try to read and at least to acknowledge (although the volume can be daunting), I’ve made a lot of special “friends”—not in-person friends, but the electronic version of what once were pen pals.

Earlier this week, an email bounce message alerted me that the email address of Walter V. Powell, long a Jackson List subscriber and one who wrote back to me regularly, was no longer functional.  By Googling, I learned that Walt Powell, professor emeritus of political science at Slippery Rock University in Slippery Rock, Pennsylvania, age 90, died on February 27, 2019.

Dr. Powell lived a long and accomplished life.  Some of it, including his family life, his World War II military service, his education, his teaching, and his community commitments, is chronicled in this obituary.

In his emails to me, Walt Powell always sent thanks for Jackson List posts and expressed his particular interests.  One was the World War II—his—generation, including particularly people who had served on Justice Jackson’s staff prosecuting Nazi war criminals at Nuremberg in 1945-46.

Walt Powell greatly admired one of them, Whitney R. Harris.  Indeed, Walt got to know Whitney through hosting him as the keynote speaker at a Slippery Rock University conference on the Nuremberg trial.  Later, Walt lamented Whitney’s failing health, then his death, and Walt remembered Whitney always.  Walt also wrote to me when “Nurembergers” Richard Sonnenfeldt, Peter Calvocoressi, Arno Hamburger, and Ernest Michel each passed away.  Walt reported to that he had used some of my writings on Nuremberg when he lectured in a class on war crimes, and that he had visited the Robert H. Jackson Center in Jamestown, New York.

Walt also, every holiday season, sent his greetings, thanks, and good wishes.

This post, in a small way, reciprocates that sentiment.  I am grateful that we were, in our historical studies, biographical interests, and priorities, truly colleagues.

Jackson List: On British Opinion on Nuremberg (1949)

In late October 1946, Justice Robert H. Jackson, just back to the United States from his year-plus away serving as U.S. Chief of Counsel prosecuting Nazi war criminals before the International Military Tribunal (IMT) at Nuremberg, happened to meet, briefly, lawyer Eugene C. Gerhart, age thirty-four.  Gerhart was a former pre-World War II secretary to a judge of the Permanent Court of International Justice in Switzerland, a graduate of Harvard Law School, a veteran of U.S. Navy service during the war, a practicing lawyer in Jackson’s upstate New York homeland, and a man with interests in history and writing.  Not surprisingly, Jackson was impressed by Gerhart.

A year later, Eugene Gerhart wrote to Justice Jackson and proposed to write his biography.  Jackson was skeptical but agreed to cooperate, within the limits that his time and his respect for U.S. Supreme Court confidentiality imposed.

As Gerhart pursued his research, he posed various questions to Jackson.  In 1949, for instance, Gerhart asked Jackson about mid-1945 United Kingdom attitudes, before the London Conference concluded in August 1945 with the international agreement to create the IMT, about whether the Allies should prosecute their leading Nazi prisoners as criminals.  Gerhart also asked about U.K. attitudes since Nuremberg about the legal theories on which the trial was conducted.  He apparently had recently read British lawyer John Hartman Morgan’s 1948 book The Great Assize: An Examination of the Law of the Nuremberg Trials, and he (Gerhart) asked Jackson if he also had read it.

In response, Justice Jackson dictated, edited, and sent the following letter to Eugene Gerhart on March 17, 1949—seventy years ago today.  The letter was Jackson’s description, quite straightforward, candid, and on the record, of his thinking, which was at odds with U.K. policy at least initially in 1945, and which perhaps in 1949 was still at odds with some British views, about the legal underpinnings and the legitimacy of the Nuremberg trial.

Mr. Eugene C. Gerhart,

Security Mutual Building,

Binghamton, New York.

My dear Mr. Gerhart:

               I have not read [R.H.] Morgan’s The Great Assize.  Viscount [Frederic Herbert] Maugham, the former Lord Chancellor and brother of Somerset Maugham, was at Nurnberg briefly as a guest.

               Of course, the fundamental premises on which we prosecuted the Germans for offenses against international society are at war with the concept of sovereignty as an absolute right of a nation to do as it pleases.  This argument was made by German [defense] counsel.  However, as [Columbia University law] Professor [Philip] Jessup points out in his work, A Modern Law of Nations, page 2, no real international law can exist if this rule of unlimited sovereignty is to prevail.  This is simply one of those basic breaks between the modern and what I consider the medieval conception of the place of law among nations.  I am not disposed to deny that it [Nuremberg] was a substantial break with the past and may have been applied somewhat retroactively.

               As to the crimes against humanity, there is truth on both sides.  As I pointed out in the Opening Speech [I delivered to the IMT on November 21, 1945,], it is not every cruelty which a government inflicts upon its own people that becomes of international concern.  But you will notice in the definition of “crimes against humanity” that it is limited to those “in execution of or in connection with any crime within the jurisdiction of the Tribunal.”  That is to say, when extermination, enslavement and deportation are a part of the program of aggressive warfare, they do become matters of international concern.  I think our proof amply demonstrated that the campaign against the Jews was intended to remove what they [the Nazis] regarded as an obstruction to instituting war and that the extermination was a part of the objective of the war.

               It may be true that there is no generally accepted definition of “aggressive war” and that all victors tend to justify themselves.  You will find in the minutes of the [summer 1945] London Conference that I made repeated efforts to get a definition and I never had any help from the British in doing it.

               It does not seem to me that aggressive warfare is any more vague, even if not further defined, than many of the concepts with which we work in the law.  And we must not forget that the Hitler war was aggressive by any test that anybody has ever suggested, and that he boasted of it as such.  I have dealt with these matters in a speech, copy of which is enclosed.

               This must be remembered about all British comment on the trial.  The British Government under Lord Chancellor [John] Simon was opposed to trials and wanted the war criminals disposed of by executive determination.  This fact appears in the London Conference records among the very early documents.  A large segment of British opinion remains committed to that theory or is sufficiently biased on the subject to be critical of the trials.  We rather forced trials upon them, as you will see from the London minutes, and there has been some disposition among the British not perhaps to resent that fact but at least to try to make up for it by criticism of what was done.

               I trust this gives you, in general, what you want.

               With best wishes, I am

                                                               Sincerely yours,

                                                               /s/ Robert Jackson

—————–

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: 127th Birthday

Today marks the 127th anniversary of Robert Houghwout Jackson’s 1892 birth, in his family’s farmhouse in Spring Creek Township, Warren County, Pennsylvania.

For your Jackson Birthday reading, here are some previous Jackson Birthday-related posts:

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Spandau Prisoner Rudolf Hess

Rudolf Hess was one of Adolf Hitler’s earliest friends and devoted supporters.  Imprisoned with Hitler in the 1920s, Hess assisted his writing of Mein Kampf.  Hess was at Hitler’s side as the Nazi Party gained support and then political power.  After Hitler became Chancellor of Germany in 1933, Hess became Deputy Führer.  He assisted Hitler through the rest of the decade, as Germany built up its military strength and then started World War II, coercing some countries to capitulate and attacking others.

In May 1941, Hess became a British prisoner.  He was captured in Scotland, where he had flown from Germany on an odd, apparently solo, mission.  It seems that Hess sought to negotiate a United Kingdom-Germany peace agreement.

In 1945, following Nazi Germany’s military defeat and unconditional surrender, the Allies created the International Military Tribunal (IMT), charged Hess as a war criminal, and transported him to Nuremberg for trial (where Justice Jackson of course served as chief U.S. prosecutor).  Hess was tried there and, in Fall 1946, convicted of conspiracy and crimes against peace and sentenced to life in prison.

Hess was transported to Spandau Prison in Berlin and served his sentence there.  As the other prisoners completed their terms and were released, Hess became the only person still held in Spandau.  He died there, by suicide, in 1987, age 93.

Over the years, a story developed that the real Hess had been somehow, at some point in 1941 or later, freed, switched for a “double” who became the prisoner of Spandau.

This story, which involved neo-Nazi Hess supporters and was meaningful to them, never seemed to have much to it.

In any case, it now seems to have been disproven.  Austrian scientists, testing a preserved blood sample from the Spandau prisoner, have matched it to a DNA sample from a distant male relative of Hess.

Here are some links with further details—

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: Christmas & C.A.R.E. (1947)

From May 1945 until October 1946, United States Supreme Court Justice Robert H. Jackson served, by appointment of President Truman, as U.S. Chief of Counsel for the Prosecution of Axis War Criminals in the European Theater.

During that period, Justice Jackson spent the first few months organizing and working with his staff, gathering and analyzing evidence, and conducting international diplomacy, in Washington and in Paris and mostly in London.

Beginning in September 1945, Jackson spent most of his time in Nuremberg in Allied-occupied former Germany, serving before the International Military Tribunal as U.S. chief prosecutor of Nazi war criminals.

In Nuremberg, Justice Jackson and his immediate staff—his son and executive assistant Lieutenant William E. Jackson, his secretary Mrs. Elsie L. Douglas, and his bodyguard Private Moritz Fuchs—lived in a large house located at Lindenstrasse 33, in Dambach, Fürth, the city adjacent to Nuremberg.  The U.S. Army had seized the house from its German owners.  U.S. soldiers guarded the street and the perimeter of the property.  Army drivers, always varying their routes, ferried Jackson and his team between the house, the Palace of Justice courthouse, and other Nuremberg and area locations.

For Justice Jackson, Lindenstrasse 33 became home, his place to eat and sleep.  Except for his time away on trips elsewhere in Europe and in the Middle East, he lived in the house from September 15, 1945, until July 31, 1946.

For Jackson, the house was more than his residence.  It also was his office away from the courthouse.  It was a place where he held many important staff conferences.  He also used its relative quiet to read, think, and write.

Lindenstrasse 33 also was Justice Jackson’s place to entertain.  He often hosted, at the house, his colleagues from the U.K., the U.S.S.R., and France, his regular “very important” visitors from the U.S. and other nations, and many members of his staff.  At Christmastime 1945, for instance, Jackson hosted, at the house, holiday parties, meals, and caroling around a Christmas tree.

During Justice Jackson’s time at Lindenstrasse 33, he was served in the house by a German staff.  An older woman cooked.  A younger woman assisted her and was a chambermaid.  An older man stoked the heat and performed maintenance and yard work.  A younger man, who dressed formally for work, was the waiter.

*          *          *

Justice Jackson, following his return to the U.S. and Supreme Court service in 1946, maintained contact with his former Nuremberg house waiter, Joseph Ullrich.  In 1947, for example, Jackson sent a C.A.R.E. (Cooperative for American Remittances to Europe, Inc.) package to Ullrich, who was still living and working in Nuremberg.

Mr. Ullrich responded, in imperfect English, by typing and sending Jackson this letter of gratitude:

Dear Sir,

Often I have been thinking of you and ——– yesterday it was a delightful day for me and my family when I get to my great surprise and joy your Care-package.

My family and myself say you many, hearty thanks for it.  It is very kind of you that you were thinking so of your waiter in Nuremberg.

At present there are four trials in the court of Justice.  …

I hope that you will come again one day.

Please give my compliments to your son and your niece (secretary).

With best compliments to you and your family, I remain Dear Sir,

Yours faithfully

/s/ J.L. Ullrich

In 1950, Justice Jackson sent Mr. Ullrich a Christmas card and gifts—perhaps another C.A.R.E. package.

In early January 1951, Jackson followed up with a letter—perhaps to check if the first mailing had arrived.

In February 1951, Joseph Ullrich sent back another typed letter to Justice Jackson:

            I gladly received your X-mas—card as well as the letter of Jan. 9th.

            A big surprise was the Christmas-box, arriving in January.  It meant much gladness to me and I wish to express to you, dear Mr. Robert H. Jackson, my most heartfelt thanks for it.

            For the future I take the liberty to wish you happiness, success and good health[.]

                                    most sincerely

                                    /s/ J.L. Ullrich

*          *          *

In this season, I wish you happy holidays, Merry Christmas, success, and good health.

And I wish you good care—I hope that you get lots of it, and that you give it, with thanks, for as long as you can, to many others in your life.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: DOJ Antitrust Division Jackson-Nash Address, Sept. 20, 2018

Earlier this year, the Antitrust Division in the United States Department of Justice established the Jackson-Nash Address.

According to Assistant Attorney General Makan Delrahim, the goal of this lecture series is “to recognize the contributions of former Supreme Court Justice Robert H. Jackson and Nobel Laureate economist John Nash, and to honor the speaker, recognizing and celebrating the role of economics in the mission of the [Antitrust] Division.”

Robert H. Jackson headed the Antitrust Division during 1937.  As the Division explained when it announced this new lecture series, Jackson’s leadership set the stage for the expanded role of economics in antitrust, replacing vague legal standards with the “protection of competition” as the goal of antitrust law.  And Dr. John Nash’s research provides Antitrust Division economists with analytic tools necessary to protect competition.  In particular, Division economists commonly rely on Nash’s strategic theory of games and his axiomatic bargaining model to guide investigations and to help evaluate the effects of mergers, monopolization, and collusion.

On February 28, 2018, Dr. Alvin E. Roth, the McCaw Professor of Economics at Stanford University, delivered the inaugural Jackson-Nash lecture.  Professor Roth is the 2012 winner of the Nobel Prize in Economics for the theory of stable allocations and the practice of market design.

*          *          *

I am pleased to announce here that the second Jackson-Nash program, open to the public, will occur on Thursday, September 20, 2018, at 3:00 p.m. in the Great Hall at the U.S. Department of Justice, The Robert F. Kennedy Building, 950 Pennsylvania Avenue, N.W., Washington, D.C.  The program will consist of:

  • Introductory remarks by Department of Justice leadership; 
  • my historical lecture, Competition: Robert H. Jackson as Assistant Attorney General—Antitrust (January 21, 1937–March 5, 1938); and
  • an address by Dr. George A. Akerlof, University Professor at Georgetown University.  Dr. Akerlof is the 2001 winner of the Nobel Prize in Economics for analyses of markets with asymmetric information (including his well-known article “The Market for ‘Lemons’: Quality Uncertainty and the Market Mechanism” (1970).)

A reception in the Great Hall will follow the program.

Because space is limited, anyone who is interested to attend should RSVP to ATR.AAGRSVP@USDOJ.GOVGuests should enter Main Justice at the 10th Street and Constitution Avenue entrance.

*          *          *

And some Jackson history—

Robert H. Jackson became Assistant Attorney General heading the Antitrust Division at the start of President Franklin D. Roosevelt’s second term in office.  Jackson already was an Assistant Attorney General of the United States—Roosevelt had nominated him to that office and the Senate had confirmed him a year earlier, and throughout 1936 AAG Jackson headed DOJ’s Tax Division.  In January 1937, U.S. Attorney General Homer S. Cummings announced a series of personnel moves in the Department, including Jackson’s transfer to head the Antitrust Division.  (Its leader was leaving government to become a law professor.)

By January 1937, Jackson had become a nationally prominent young New Dealer.  His transfer within DOJ from Tax to Antitrust thus was news.  And that triggered a wave of congratulatory messages to him.

One telegram that was particularly meaningful to Jackson came from a friend who was, at that time, a Wall Street lawyer.  “Let me congratulate you on your opportunity for doing a fine constructive job which I know you will do,” he wrote to Jackson.  “Looking forward to seeing you.”

In that busy time, Robert Jackson happened to see the friend in person before Jackson got around to acknowledging in writing the good wishes.  But within a few weeks, Jackson wrote back to thank the friend.

They were, in their life and professional paths, fellow western New Yorkers who each had practiced law in Buffalo.  Jackson’s friend also had served in the World War—with extraordinary valor, resulting in him receiving a number of the highest U.S. military awards and becoming a national hero.

After the War, the friend served in the federal government, in Buffalo and then in Washington.  He did this ahead of Jackson—the friend was almost ten years older, and his Republican Party controlled the White House throughout the 1920s, and, yes, he was famous long before most noticed Jackson.

Jackson wrote back to his friend on February 3, 1937:

My dear Colonel Donovan, 

I am just getting to answer congratulatory messages and, in spite of the fact that a meeting with you has intervened, I want to express appreciation of your telegram. 

I take the job with no delusion about its magnitude or its difficulty at this time.  Not the least of the difficulties is that of succeeding other western New York lawyers who have handled the office with such distinction. 

With best regards and good wishes, I am 

            Sincerely yours, 

            /s/ [Robert H. Jackson]

William J. (“Wild Bill”) Donovan, as principal assistant to U.S. Attorney General John G. Sargent, had headed the Antitrust Division, among other responsibilities, from 1925 until 1929.  Donovan  later returned to government service under President Roosevelt, including, as General Donovan, to found and run the wartime Office of Strategic Services (O.S.S.).

And in May 1945, Justice Jackson, after President Truman appointed him to be the U.S. chief of counsel in the international war crimes prosecutions of surviving Nazi German leaders, recruited his old friend General Donovan to be his deputy.

During their months together in that work, which became the Nuremberg trial beginning in late 1945, Jackson and Donovan discussed many things.  One topic that was at least in the background, including as they planned and debated such things as “the Economics case” against Nazi defendants and the merits of basing criminal prosecution on documentary evidence, was their shared, formative experience of heading DOJ’s Antitrust Division.

If you are interested to walk in such footsteps, and in the kind of high ideas that motivate DOJ’s best work, please join us in the Great Hall on September 20th.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Jackson List: The World Outlaws War (1928)

For the Jackson List:

On Monday, August 27, 1928—ninety years ago today—representatives of fifteen nations, meeting in Paris, signed a treaty that outlawed war as an instrument of national policy. They committed themselves to settling disputes by peaceful means.

On behalf of France, the conference host and treaty-signer was the Minister of Foreign Affairs, Aristide Briand. On behalf of the United States, the signer was Secretary of State Frank B. Kellogg. The other signatory nations represented in Paris were the United Kingdom, Ireland, Canada, Australia, New Zealand, South Africa, India, Belgium, Poland, Czechoslovakia, Germany, Italy, and Japan.

The United States Senate subsequently ratified the treaty. Over time, many more nations joined the Pact of Paris. By early 1933, sixty-five states were parties to the treaty, which in the U.S. came to be called “Kellogg-Briand.”

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This global agreement did not, of course, prevent all war. A second world war started less than a decade after the treaty. From 1939 until 1945, World War II wreaked a horrific toll in Europe and in the Pacific.

The Allied powers ultimately prevailed. They then, acting together, charged surviving leaders of the Axis powers with the crime of waging aggressive war.

In the European theater, this case was tried in Nuremberg. On November 21, 1945, U.S. Supreme Justice Robert H. Jackson, the U.S. chief prosecutor of the Nazi defendants, explained aggressive war’s illegality by invoking Kellogg-Briand as a crucial development. It was, legally, the spine of the Allied prosecution of Nazi leaders for planning and then waging wars of aggression:

The first and second Counts of the Indictment [charge the] crimes … of plotting and waging wars of aggression and wars in violation of nine treaties to which Germany was a party.

There was a time—in fact, I think the time of the first World War—when it could not have been said that war-inciting or war-making was a crime in law, however reprehensible in morals.

Of course, it was, under the law of all civilized peoples, a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding firearms to bare knuckles, made it a legally innocent act? The doctrine was that one could not be regarded as criminal for committing the usual violent acts in the conduct of legitimate warfare. The age of imperialistic expansion during the 18th and 19th centuries added the foul doctrine, contrary to the teachings of early Christian and international law scholars such as Grotius, that all wars are to be regarded as legitimate wars. The sum of these two doctrines was to give war-making a complete immunity from accountability to law.

This was intolerable for an age that called itself civilized. Plain people, with their earthy common sense, revolted at such fictions and legalisms so contrary to ethical principles and demanded checks on war immunities. Statesmen and international lawyers at first cautiously responded by adopting rules of warfare designed to make the conduct of war more civilized. The effort was to set legal limits to the violence that could be done to civilian populations and to combatants as well.

The common sense of men after the first World War demanded, however, that the law’s condemnation of war reach deeper, and that the law condemn not merely uncivilized ways of waging war but also the waging in any way of uncivilized wars—wars of aggression. The world’s statesmen again went only as far as they were forced to go. Their efforts were timid and cautious and often less explicit than we might have hoped. But the 1920s did outlaw aggressive war.

The reestablishment of the principle that there are unjust wars and that unjust wars are illegal is traceable in many steps. One of the most significant is the Briand-Kellogg Pact of 1928, by which Germany, Italy, and Japan, in common with practically all nations of the world, renounced war as an instrument of national policy, bound themselves to seek the settlement of disputes only by pacific means, and condemned recourse to war for the solution of international controversies. This pact altered the legal status of a war of aggression. As Mr. Stimson, the United States Secretary of State put it in 1932, such a war “is no longer to be the source and subject of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing…. By that very act, we have made obsolete many legal precedents and have given the legal profession the task of reexamining many of its codes and treaties.”

The Geneva Protocol of 1924 for the Pacific Settlement of International Disputes, signed by the representatives of 48 governments, declared that “a war of aggression constitutes…an international crime.” The Eighth Assembly of the League of Nations in 1927, on unanimous resolution of the representatives of 48 member nations, including Germany, declared that a war of aggression constitutes an international crime. At the Sixth Pan-American Conference of 1928, the 21 American Republics unanimously adopted a resolution stating that “war of aggression constitutes an international crime against the human species.”

A failure of these Nazis to heed or to understand the force and meaning of this evolution in the legal thought of the world is not a defense or a mitigation. If anything, it aggravates their offense and makes it the more mandatory that the law they have flouted be vindicated by juridical application to their lawless conduct. Indeed, by their own law—had they heeded any law—these principles were binding on these defendants. Article 4 of the Weimar constitution provided that: “The generally accepted rules of international law are to be considered as binding integral parts of the law of the German Reich.” Can there be any doubt that the outlawry of aggressive war was one of the “generally accepted rules of international law” in 1939?

Any resort to war—to any kind of a war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal. The very minimum legal consequence of the treaties making aggressive wars illegal is to strip those who incite or wage them of every defense the law ever gave, and to leave war-makers subject to judgment by the usually accepted principles of the law of crimes.

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This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.