place of confinement. Some of them, most of whom were called by the defense, were asked for as witnesses by a number of defendants in several different proceedings, and in such circumstances might spend a considerable period of time in the Nuernberg jail. In fact, late in 1947 and early in 1948 it became apparent that a number of defense witnesses were seeking to remain in the Nuernberg jail as long as possible, in order to avoid extradition to other governments or to stall off their denazification trials, in hopes that the passage of time would work to their advantage and that they might ultimately escape extradition or denazification, as the case might be.

The number of Germans in prisons or enclosures during the first 2 years (particularly during the first 18 months) of the occupation was a cause of some concern to the American occupation authorities, both at Nuernberg and Berlin. In an ideal world, no doubt no one would have been incarcerated without prior arraignment before a committing magistrate on specified charges—but then in an ideal world there would have been no war, no postwar problems and no need to incarcerate anyone.

In point of fact, the conditions which prevailed in Germany at the end of the war made it quite impossible to observe all the usual pretrial procedures which are ordinarily followed in peacetime practice. If the occupying authorities had determined that no German should be arrested except under the authority of a magistrate, and that anyone so arrested should be given immediate access to counsel, where would the magistrates and counsel have been found? American judges and lawyers could not possibly have been obtained in the requisite numbers. The judicial system of Germany had been poisoned and perverted almost beyond recognition during 12 years of Nazi domination. The bench had lost practically all semblance of judicial independence, and bench and bar alike had been dominated for years by the most virulent and pernicious Nazi elements. The opinion of Military Tribunal III in the "Justice case" (United States v. Josef Alstoetter, et al., Case No. 3) contains a full account of "the progressive degeneration of the judicial system under Nazi rule" and "the utter destruction of judicial independence and impartiality." 165

The defense bar at Nuernberg, indeed, represented their clients ably and conscientiously. But, as has been seen, a majority were former Nazi Party members and a number had conspicuous Nazi records. That a German lawyer had been a Nazi did not necessarily mean that he was an unreliable or unscrupulous individual, but it did afford ample reason to withhold final judgment on his trustworthiness until time and opportunity for observation furnished a sound basis for judgment.

165 Transcript of proceedings, pp. 10650, and 10703.

During the first 2 years of the occupation many notorious war crimes suspects were still at large as fugitives. The structure of the Third Reich and the main channels of authority were but imperfectly understood at the outset, and extensive interrogation and study of documents was necessary before intelligent decisions could be made on who probably was and who probably was not to blame for a particular category of crimes or atrocities. To have introduced into this situation German judges and lawyers, most of whom had been Nazis to a greater or less degree, would have jeopardized and delayed the entire investigative process.

In short, it rapidly became very clear at Nuernberg that the fairest and most practical course of action was to push the investigative process with the utmost speed, by screening documents, by interrogation, and in every other possible way. In this manner, decisions could most rapidly be reached as to which individuals should be tried for war crimes. The faster this could be accomplished, the sooner those who were not to be so charged could be removed from the list of suspects and released or turned over to the German denazification authorities. As the statements and figures above show,166 the matter was reduced to one of small proportions in the course of one year's hard work.167 By May 1947 only a few hundred individuals were still held in arrest as possible Nuernberg defendants, and by the end of 1947 the problem no longer existed.

Finally, a few words should be said about the Nuernberg jail, which was situated immediately behind and adjoined the Palace of Justice. The operation of the jail was at no time under the direction of either Mr. Justice Jackson or myself. During the first Nuernberg trial before the IMT, the jail was under the charge of a special Internal Security Detachment 168 (commanded by Col. B. C. Andrus) which reported directly to the Headquarters of the Third Army. In October 1946, after rendition of the IMT judgment and at the time OCCWC was established, prison operations came under the Commander of the Nuernberg Post (Brig. Gen. Leroy H. Watson). Thereafter, the Post furnished the prison commandant and staff, as well as the guards, cooks, and other necessary prison operations personnel.

While OCCWC did not at any time control the jail, prison operations were nevertheless a matter of interest to me and my staff. Unsatisfactory conditions in the jail might result in complaints being made through defense counsel before the tribunals, or otherwise arouse criticism of the Nuernberg operation. Acccordingly, my office maintained close and constant liaison (through the Executive Officer and

166 Supra, pp. 54-55.

107 From May 1946, when the Subsequent Proceedings Division commenced operations, to May 1947.

168 Designated the 6850th Internal Security Detachment.

the Director of the Evidence Division) 169 with the Prison Commandant, and maintained a constant check on the prison temperature (in cold weather), the caloric content of the food, and other conditions in the jail. The prison was large, and overcrowding was a problem only during the spring and summer months of 1947 (March to September), when, with over 100 defendants under indictment, several other large cases in preparation, and a large number of “automatic arrestees" in Nuernberg as defense witnesses, the population of the prison rose to and remained over 400. By the late autumn of 1947 the overcrowded condition had been corrected, and did not recur.

So far as prison conditions permitted, the prisoners were given the choice of confinement two to a cell or singly. Often they were hard to please in this respect; prisoners given a cell to themselves tended to protest that they were being unjustly subjected to solitary confinement; when "doubled up" with another prisoner, they would complain that the lighting and other facilities were inadequate to permit two inmates to do the necessary reading and other work in connection with their trial. As a rule, individuals thought to be suicide risks were required to share their cell with another prisoner.

Throughout the period that, as Chief of Counsel, I was in a position to observe prison operations, it appeared to me that they were intelligently and humanely conducted.

Interrogation

When Mr. Justice Jackson's staff was assembled at Nuernberg in August 1945, it included from the outset a division established for the purpose of conducting interrogations of potential witnesses and probable defendants. Under the direction of Col. John Harlan Amen, this Interrogation Division questioned a large number of individuals prior to and during the first Nuernberg trial before the IMT, especially during the period from August 1945 to the spring of 1946.

The Nuernberg interrogations were, of course, only a few among the vast number which were being carried out elsewhere throughout occupied Germany by a great variety of other organizations. In the American and British zones of occupation, special interrogation centers had been established immediately after the termination of hostilities, as part of the operations of the British and American intelligence services. The Historical Division of the United States Army embarked on an extensive series of military interrogations to obtain information for the preparation of war histories. To a large extent, the work of special surveys (such as the United States Strategic Bombing Survey and the British Bombing Survey Unit) and technical missions (such as the Field Intelligence Agency, Technical) de

169 Lt. Col. A. J. Maroun and Mr. Walter H. Rapp, respectively.

pended upon an effective and large scale interrogation program. Countless other military, governmental, and other public and quasipublic units, missions, and observers flocked to the American and British occupation zones in search of information of one kind or another which could only be obtained by questioning.

Without exception, the numerous such interrogations which I heard about or had opportunity to observe were carried out in a thoroughly humane fashion, and no objectionable means were used to elicit information from those who were questioned. They were conducted for the most part by intelligence officers, technical specialists, or other specially trained personnel whose main object was to obtain accurate information of value to Allied military men or scientists; it should be recalled that in the early months of the occupation the war with Japan was still in process. They were not carried out in the manner of "pre-trial interrogations" as known to American courts, and it would never have occurred to the interrogators, for example, to warn the individual being questioned that anything he said "might be used against him."

For the most part, the Germans who were questioned at Nuernberg and elsewhere talked with the greatest freedom; indeed they were often much too voluble. Needless to say, many of them were worried about the possible consequences of their past deeds, and were anxious to give their versions of questionable episodes with little or no prompting from the interrogators. In their haste to justify, excuse, or mitigate they were prone to reveal facts or circumstances of considerable importance from the standpoint of war crimes, and were often eager to point the finger of suspicion at others if such behavior seemed advantageous to them.

Thus it came about that the individuals brought to Nuernberg had as a general rule been interrogated on numerous prior occasions. Records or summaries of these interrogations were usually available; most of them were primarily of military or technical interest, but frequently they contained much information of value in the preparatory work done at Nuernberg, and upon occasion they contained significant admissions.

Colonel Amen's staff of interrogators consisted mostly of American attorneys, very few of whom were familiar with the German language. Consequently, they were obliged to carry on their questioning with the assistance of interpreters.170 According to the usual routine adopted in Colonel Amen's division, the interrogator would interview the subject in the presence of an interpreter and a shorthand reporter. The interrogator would put questions in English, and the interpreter would repeat them in German; the subject would reply in German, and the

170 A number of the Nuernberg defendants and witnesses spoke good English, but only a few of them (notably Schacht) were willing to be questioned in English.

interpreter would translate the reply into English. The shorthand reporter (who ordinarily was familiar with English only), in the meantime, would record the question as put by the interrogator in English, and the answer as translated by the interpreter into English. Subsequently, the records of the interrogations were prepared in typewritten form, but these records were not generally distributed to the other lawyers on the prosecution staff.

The methods described above did not seem to me especially suitable to the needs of the Subsequent Proceedings Division or (later) of OCCWC. They had been adopted by Colonel Amen, I believe, on the basis that the principal function of his division was to discover individuals to give credible testimony useful to the prosecution in the proceedings before the IMT. However well adapted these methods of interrogation may have been for that purpose (and several excellent witnesses were indeed produced by Colonel Amen)," they did not meet the more varied requirements I had in mind. Courtroom witnesses were welcome, to be sure, but even more we needed to build up a body of reliable information on the structure and functioning of the German Government and of numerous German political, economic, military and cultural organizations, and concerning the identity and characteristics of the leading Germans who directed and participated in the work of these agencies. Insofar as this information was obtained from interrogations, I wanted it made available with the least possible delay to the attorneys and their research assistants who were preparing the charges and specifications against those later to be tried.

For the achievement of these ends, the methods employed during the first trial had obvious shortcomings. Interrogation by a lawyer through an interpreter in the presence of a reporter tended to create a stiff, formal atmosphere. The lawyers often imagined that they were already in the courtroom, and sought to "score off" the person being questioned; these efforts, even when successful, accomplished nothing useful. It was difficult if not impossible to establish any rapport between the questioner and the subject, and the fact that all intercourse had to be channeled through an interpreter made matters even worse in this respect. The need for interpretation of every question and answer delayed the progress of the interrogation, and meant that less could be accomplished in a given time. Finally, the procedure was technically deficient in that the record did not embody the answers actually given by the witness (in German) or the questions which he actually heard (in German).

Accordingly, the Interrogation Branch 172 of OCCWC utilized quite

171 For example, Lahousen and Ohlendorf.

172 Mr. Benno Selcke, as Deputy Director of the Evidence Division, and Mr. Fred Kaufmann, as Chief of the Interrogation Branch, were Mr. Rapp's deputies for the direction of interrogations.