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in all cases but one (the "Ministries case," Case No. 11) were in fact reviewed by General Clay prior to his resignation as Military Governor. All sentences imposed by the Nuernberg tribunals were confirmed by General Clay, except the sentence of death imposed on Karl Sommer (in the "Pohl case," Case No. 4), which was reduced by him to life imprisonment. The sentences pronounced in the "Ministries case" are still pending before the new Military Governor and High Commissioner, the Honorable John J. McCloy. Likewise, as of the date of this report certain petitions filed by the defendants in that case for modification of the judgment had not yet been acted upon by the tribunal (Military Tribunal IV).

After the first of the Nuernberg judgments under Law No. 10 (in the "Milch case," Case No. 2), the defendant in that case, by his attorney (Dr. Friedrich Bergold), requested the Military Governor to forward to the Supreme Court of the United States certain papers in the nature of a petition for a writ of habeas corpus. Without argument and by an evenly divided vote (4 to 4), the Supreme Court denied the petition for lack of jurisdiction. Similar petitions were filed following the judgment in the "Medical case" (Case No. 1), in which seven capital sentences had been imposed by the Tribunal and confirmed by the Military Governor. These petitions were likewise turned down, but by a 5 to 3 vote (Justice Douglas' vote accounting for the shift). Thereafter (2 June 1948) the seven condemned men were executed by hanging at Landsberg Prison. Similar petitions were filed with the Supreme Court following confirmation of the sentences in most of the other Law No. 10 trials (the "Justice," "Pohl," "Hostage," "RuSHA," "Einsatz," and "High Command" cases, No. 3, 4, 7, 8, 9, and 12, respectively), all of which were denied on 2 May 1949 by an evenly divided vote (4-4). In its order denying these petitions, the court stated—

Treating the application in each of these cases as a motion for leave to file a petition for an original writ of habeas corpus, leave to file is denied. The Chief Justice, Mr. Justice Reed, Mr. Justice Frankfurter, and Mr. Justice Burton are of the opinion that there is want of jurisdiction. U. S. Constitution, Article III, Section 2, Clause 2; see Ex parte Betz and companion cases, all 329 U. S. 672 (1946); Milch v. United States, 332 U. S. 789 (1947); Brandt v. United States, 333 U. S. 836 (1948); In re Eichel, 333 U. S. 865 (1948); Everett v. Truman, 334 U. S. 824 (1948). Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Murphy, and Mr. Justice Rutledge are of the opinion that argument should be heard on the motions for leave to file the petitions in order to settle what remedy, if any, the petitioners have. Mr. Justice Jackson took no part in the consideration or decision of these applications.

It will be noted that the defendants in the three industrialist trials (the "Flick," "Farben," and "Krupp," Cases No. 5, 6, and 10) have not filed petitions in the Supreme Court. By an American attorney, however, Flick has filed a petition for writ of habeas corpus in the

The

United States District Court for the District of Columbia. District Court denied the petition, and on appeal to the Court of Appeals for the District of Columbia the decision below was affirmed, on the ground "that the tribunal which tried and sentenced Flick was not a tribunal of the United States," but that on the contrary "its existence and jurisdiction" were "rooted in the sovereignty of the Four Powers, exercised jointly through the supreme governing authority of the Control Council."230 It may be expected that Flick's attorneys will seek to bring this case up before the Supreme Court by a writ of certiorari.231

Landsberg Prison

As described above,232 there were 100 individuals convicted at Nuernberg who were sentenced to prison terms of 5 years or more. These men (as well as the 16 condemned men awaiting execution) are all confined in the prison at Landsberg-am-Lech in Bavaria, where Adolf Hitler was imprisoned after the abortive Nazi putsch at Munich in 1923. In addition to the Nuernberg convicts, there are over 600 prison inmates who were convicted of war crimes in other trials, for the most part at Dachau. Landsberg prison is under American military administration; the prison commandant is an army officer who reports to the Post commander of the Augsburg Military Post.

From time to time, articles have appeared in the German press criticizing the administration of Landsberg jail and accusing the American authorized of tolerating inhumane conditions. For example, on 1 February 1949 the Hamburger Freie Presse carried an article purporting to be written by a Prof. Hans von Hentig, of Kansas City, charging that "leading directors of the Farben trust" were "crammed together with criminals" (sic) and were being mistreated in various ways. More recently the German Catholic Bishop of Munich (Hans Meiser) told the press that he had written a letter to General Clay charging that the prison commandant had been guilty of brutality and various other abuses.233 A handbill soliciting food parcels for the inmates of Landsberg "to alleviate their sufferings” (attached hereto as Appendix S) has been widely circulated in Germany.

On 14 February, pursuant to the instructions of the Secretary of the Army (then the Honorable Kenneth C. Royall), I visited and made an unofficial inspection of Landsberg prison, and subsequently (16 March 1949) submitted a report thereon to the Secretary of the Army and General Clay. In that report I expressed "my belief that the prison

230 This decision was rendered on 11 May 1949, and the opinion is by Judge Proctor. 231 [On 14 November 1949 the United States Supreme Court denied Friederich Flick's petition for writ of certiorari. Mr. Justice Black was of the opinion certiorari should have been granted. Mr. Justice Jackson and Mr. Justice Douglas took no part in the consideration or decision of the application (Misc. No. 317).]

232 Supra, pp. 91-92.

233 See the New York Herald Tribune, Paris edition, United Press dispatch, 3 May 1949.

is fairly and efficiently administered and that (given the general circumstances which prevail throughout Germany at the present time) conditions at Landsberg are generally satisfactory." However, the report also contained the following observations and recommendation: Conditions at any prison may deteriorate very rapidly, due to a change in administration or for many other reasons. In view of the auspices under which the inmates of Landsberg were convicted, it might be a serious setback to the political and moral prestige of the United States government if, in the future, it should appear that conditions at Landsberg were inhumane or otherwise substandard. For this reason, I recommend that the Military Governor (or his successor) should establish a standing committee to supervise and periodically inspect Landsberg prison. The Theater Judge Advocate, the Director of the Legal Division (OMGUS), and the Theater Provost Marshal should be represented on the committee.

In my memorandum submitting the report on Landsberg prison to General Clay, I also pointed out that:

The present inmates of Landsberg Prison include 245 convicted war criminals who are serving life sentences, and 201 who are serving sentences of more than 10 years. It is, therefore, desirable that consideration be given to the eventual disposition of these prisoners, in case changed conditions should make their removal from Germany necessary or desirable, or in case our occupation forces should be withdrawn from Germany, prior to the expiration of these sentences. I would like here to reiterate the recommendations quoted above. In the light of the increasing amount of "ultra-nationalist" sentiment expressed in the German press, attacks on the administration of Landsberg are likely to continue. It is important that no foundation or excuse be provided to those who would be only too eager to capitalize on our mistakes. In this connection, I further recommend that the administration of Landsberg be kept in American hands, and under no circumstances be turned over to the Germans. If Landsberg were put under German management, the officials charged with that responsibility would surely find themselves in a most unenviable position, and subject to constant pressure from sources within Germany. Under present circumstances, it would be unfair to the German officials to impose this responsibility on them, while at the same time, in my judgment, very definite security risks would result from any such arrangement.

Document Disposal

One of the most important problems connected with the deactivation of the military tribunals and OCCWC was the disposition of the very large amount of documents comprising the records of the Nuernberg cases and other collections and files which had been assembled in connection with the trials. This task was carried out with great care and efficiency by Mr. Fred Niebergall, Chief of the Documentation Branch.

The original records of the twelve Nuernberg trials under Law No. 10 are to be deposited in the National Archives in Washington. These comprise the certified transcripts of proceedings in English and German, the documents received in evidence, all indictments, motions, and other formal papers, etc. The records of the first four trials ("Medical," "Milch," "Justice," and "Pohl") have already been placed in the Archives, and the remainder will be in due course. These original records, of course, have come from the custody of the Secretary General of the Military Tribunals (Dr. Russell), and not from Mr. Niebergall.

There are approximately 10 other fairly complete 234 sets of the complete court records. Three of these have been placed in the Library of Congress, and one in the Library of the Harvard Law School at Cambridge, Mass., for use in connection with an international law research project of major proportions which is under consideration there. A fourth set is in the Nuernberg State Archives at Nuernberg, Germany. Five nations maintained permanent delegations at Nuernberg throughout the trials under Law No. 10, and these delegations each received a complete set of the trial records. Accordingly, it may be assumed that such sets exist and are available in England, France, Holland, Czechoslovakia, and Poland.

The foregoing comprise all the complete sets of Nuernberg trial records that have, or are believed to have, been preserved intact. In addition, however, a number of "sets" of important portions of the Nuernberg papers were assembled. These "sets" consist of the transcript of proceedings in all 12 cases (in English or German, depending upon the destination of the particular set), and copies in both German and English of all documents in the OCCWC document room, together with a brief summary (called a Staff Evidence Analysis) of each document. These sets, therefore, contain not only all documents offered by the prosecution, but a number of documents which were collected but were never offered in evidence. The sets do not, however, contain the documents collected and offered by the defense, nor do they contain motions, briefs, and other such court records. One each of these sets (the transcript of the proceedings being in English) has been sent to the following libraries in the United States: University of California, University of Chicago, Columbia Law School, Duke University, Harvard Law School, the Hoover Institute (Stanford University), New York Public Library, University of North Dakota, Northwestern University, Princeton, University of Michigan, University of Washington Law School, West Point, and the University of Wisconsin. Such sets have also been sent to the 234 They lack various motions, orders, and other interlocutory papers.

Wiener Library in London and the United Nations at Lake Success. Additional sets (the transcript of the proceedings being in German) were sent to the Universities of Erlangen, Freibourg, Frankfurt, Goettingen, and Heidelberg, as well as to the State Chancellery at Munich.

In addition to the foregoing, many particular sets of documents or portions of the records have been distributed. The proceedings in the "Medical case," for example, have been furnished to the New York Academy of Medicine. The large collection of photographs in the possession of the son of Hitler's former personal photographer (Heinrich Hoffmann) has been turned over to the Historical Division of EUCOM.

One original document of prime historic value which is receiving "special treatment" is the diary of Gen. Franz Halder, Chief of the General Staff of the German Army from November 1938 to September 1942. The available portion of Halder's diary begins in early August 1939, and thus covers the whole course of the war up to the beginnings of the Stalingrad disaster when Halder himself was relieved. The original diary is written in Gabelsberger shorthand, at which Halder was proficient, and as a result the diary is extremely full and detailed. The staff of OCCWC has transcribed the entire diary into German and translated it into English, with the assistance of General Halder himself, in order to make sure that both German and English versions are accurate. The original diary I have put on temporary deposit in the Library of Congress, pending final decision as to its disposition. Mimeographed copies of the Halder diary (as well as the almost equally important diary of General Jodl) are available at the Department of the Army. In view of their great historic importance, it is my recommendation that both of these diaries should be made generally available to scholars and writers and should, if possible, be published in full.

Publications

The 12 cases tried under Control Council Law No. 10 required over 1,200 days of court proceedings, and the transcript of these proceedings exceeds 330,000 pages, exclusive of hundreds of documents, briefs, and other records. Publication of all of this material, accordingly, was quite unfeasible. However, in my preliminary report to the Secretary of the Army (Mr. Royall) of 12 May 1948, I recommended that the important portions of the Nuernberg proceedings be published in both German and English.235 I pointed out therein that "the United States Government has made a heavy moral investment in these trials, and this investment will not show a favorable rate of return if the records are left in the dust on the top shelf out of reach." In support of my 235 The report of 12 May 1948 is attached hereto as Appendix A.

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