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The Burden of American Exceptionalism

Op-ed writer’s note: The source for the content of communications between Justice Robert H. Jackson and President Harry S. Truman is Professor John Q. Barrett of St. John’s University School of Law, who is probably the foremost living authority on Justice Jackson as well as being a scholar of the Nuremberg Tribunal. His blog is called The Jackson List. Acknowledging Prof. Barrett as the major source of the factual narrative is not meant to imply that he endorses the opinions expressed here.

The U.S. Supreme Court heard oral arguments in five cases on April 26, 1945. What happened later that day made more historical tracks than any of those cases.

Justice Robert H. Jackson got a telephone call and then a visit from Samuel Rosenman, counsel to President Harry Truman, who had been the buck that stopped at 1600 Pennsylvania Avenue for less than a month. FDR’s death was still on the country’s mind. WWII was raging but the end was in sight and the outcome no longer in doubt.

Rosenman told Jackson that four departments of the government had prepared a plan at the request of President Roosevelt, a plan to put Adolf Hitler and his primary henchmen on trial for war crimes—but not in the United States and not under U.S. law. The plan was an international tribunal applying rules and defining crimes thought to be universal among civilized people.

Roosevelt presented the plan to Josef Stalin and Winston Churchill at the Yalta Conference. The leaders of our principal allies were underwhelmed, and referred the matter to their respective foreign ministers for what they hoped would be a dignified bureaucratic burial. FDR’s health was visibly failing at Yalta, and denying him out of hand would have been churlish.

If, as we know now, Vice President Truman was unaware of the Manhattan Project and the resulting atomic bomb, it’s hard to imagine that he was fully read into this plan for an international tribunal. He must have come up to speed in a matter of days. Not bad for a Missouri haberdasher.

Truman had become FDR’s running mate because a cabal of Democratic Party hacks had decided that FDR was unlikely to survive a full term and Vice President Henry Wallace was too liberal, which in those days primarily meant pro-labor. Putting Truman on the ticket was hailed as the “Second Missouri Compromise,” and Truman—a product of the venal and corrupt Pendergast machine in Kansas City—was thought to be just smart enough to take orders from the party bosses.

Truman served as Vice President for only 82 days and only met privately with President Roosevelt twice during that short time. In our times, we are used to working VPs. In those days, VPs were seldom seen and never heard, leading FDR’s first VP, Cactus Jack Garner, to famously remark that the office was “not worth a bucket of warm piss.”

Approximately 100 days after being sworn into that worthless office, Truman was certain enough about the war crimes tribunal to send his personal lawyer to recruit Supreme Court Justice Jackson to prosecute in that as yet nonexistent forum on behalf of the United States.

Truman communicated though his lawyer that he had confidence in Jackson’s abilities as a trial lawyer and he did not believe the project would require Jackson to resign from the Supreme Court.

Since the Yalta conference, Rosenman assured Jackson, the War Department had been tasked to gather evidence and had gathered troves of Nazi documents. Hearing that the evidence was collected, Jackson estimated that he could discharge the assignment and be back on the Bench when the next term started in October. If not, his colleagues could cover his work for a few weeks.

So it was that Robert Jackson became United States Chief of Counsel for Prosecution of Axis Criminality. He was in Europe the very next month, but found it necessary to engage in substantial negotiations with the Allies before proceedings could begin. The trials did not actually start until November---about the time Jackson had expected to be back home—in Nuremberg, Occupied Germany.

The Nuremberg Tribunal put 21 Nazis and six Nazi organizations in the dock for conspiracy to commit the crimes also charged: aggression, war crimes, and crimes against humanity. By the time the Tribunal had considered eyewitness testimony and reams of authenticated Nazi documents, the participants were the first humans since the Allies liberated the death camps to see the enormity of what we now call the Holocaust.

In my writings, I normally use the Hebrew term Shoah, out of respect for the primary victims. This trial was happening in the mid-forties, and the date brings home to me that I was born into a world where the word “genocide” had no common currency as it does today. Neither did “ethnic cleansing,” and as a result I had no conceptual hooks on which to hang the history of my own people.

The Nuremberg trial went on for almost a year. At the end, the International Military Tribunal held that the crimes charged were in fact crimes and so obviously evil as to require no written notice to an ordinary person. The enormity of the crimes proven made nulla poena sine lege (“no punishment without law”) unavailing.

The other defenses famously rejected at Nuremberg were tu quoque (“you do it, too”) and “just following orders.” As a result of the latter, the duty to refuse unlawful orders is a part of U.S. military training to this day. Most of the Nuremberg defendants were convicted, but it’s important to note that not only were some acquitted, penalties assessed were reasonably proportional to what they had done.

One of those sentenced to hang, former Vice-Chancellor Hermann Göring, escaped the hangman by taking poison. He was also the most eloquent accuser of the Allies for war crimes, but the tu quoque defense was hampered a bit by Hitler’s record of starting fights, not the least of which was when he double-crossed Stalin.

Justice Jackson fairly well accomplished the goals he articulated publicly when he accepted Truman’s appointment:

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

Justice Jackson had the good fortune to witness the high water mark of American exceptionalism.

And it was that. Neither Stalin nor Churchill wanted the trials. They were both content with what Göring derided as "victor's justice."

In a very real sense, the United States of America originated the idea that the sovereignty of a Westphalian nation-state cannot cloak all evil conduct, that there is some evil so egregious that recognizing it as such is prerequisite to claiming the mantle of civilization. And if, as to evil of that magnitude, "we know it when we see it," we still labor under the obligation to explain our judgment.

The wound Nuremberg left on national sovereignty is of no less consequence than the wound Magna Carta left on the divine right of kings.

All the more reason to mourn the U.S. these days assuming the role of the lion at the gate to defend national sovereignty. We became moral outliers when President George W. Bush "unsigned" the Rome Statute for an International Criminal Court, a treaty that essentially waived any claim of national sovereignty in cases of genocide, crimes against humanity, and war crimes. The signers also undertook to add the crime of aggression when it became possible to agree on a binding definition.

We were present at the creation in Nuremberg of this leap forward for justice. Now, the project proceeds without us. Americans are less likely to be at counsel table or on the bench than to be in the dock. If the second Iraq War was not a case of aggression by the United States as clear as the aggression by President Andrew Jackson against the Cherokee Nation, I am not clear what definition will satisfy the world.

This failure of leadership carries as much shame as the original action in Nuremberg carried pride. Neither the explosion of the deficit nor the unleashing of Wall Street greed nor even the invasion of Iraq represents the worst action of the Bush 43 White House.

But Mr. Bush has retired back to Texas and, as my Republican friends are wont to say, there ought to be a shelf life on blaming Bush for every U.S. blunder. Seventy years after Justice Jackson answered the call to craft an international rule of law to restrain unmitigated evil, isn’t it time that the heirs of his wisdom did the same?

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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