Author: Kevin Jon Heller

by Kevin Jon Heller

The Trial Chamber has granted certification to appeal its decision upholding the Registry’s selection of Richard Harvey as stand-by counsel. Here are the relevant paragraphs:

10. With regard to the first limb that must be met before certification to appeal can be granted under Rule 73(B) of the Rules, the Chamber notes that the Decision Denying Motion to Vacate concerned the process by which the Registrar appointed Richard Harvey, and in that Decision, the Chamber found that if the Registrar’s decision was flawed and/or illegal because he had not followed the proper procedure, this would inevitably affect the Accused’s fair trial rights and thus the propriety of the procedure was a matter that goes to the fairness of his trial. For the same reasons, with regard to the Application, the Chamber is of the view that as the procedural propriety of the Registrar’s decision-making process may impact upon the Accused’s rights, the Decision Denying Motion to Vacate involves an issue that would significantly affect the fair conduct of the proceedings or the outcome of the trial.

11. With regard to the second limb of Rule 73(B), the Chamber notes that the trial is set to resume on 1 March 2010. The role and functions of Richard Harvey at that time remain to be seen and are dependent on the Accused’s behaviour. However, as there is a possibility that Richard Harvey may be required to represent the interests of the Accused at trial, it is clearly desirable for the matter of the propriety of his appointment by the Registrar to be resolved immediately, and not at the end of the trial when it may raise the prospect of a re-trial. Therefore, the Chamber is satisfied that an immediate resolution by the Appeals Chamber of the validity of the manner in which Richard Harvey was appointed may materially advance the proceedings.

I’m delighted the Trial Chamber has finally been convinced that our challenge is not premature simply because Harvey has not yet been appointed actual counsel.  As we have been pointing out for weeks, it makes no sense to appoint stand-by counsel who could not be appointed actual counsel.  So it is in everyone’s interest to resolve the issue now.

The certification decision is here.  My post explaining — ad nauseum — why the Trial Chamber’s original decision is flawed can be found here.  I will post our appeal brief as soon as it is filed.

Motions for certification to appeal are strange creatures.  I’m not sure why the judges thought it would be a good idea to require the parties to ask the Trial Chamber for permission to appeal its own decisions.  But at least the judges did the right thing here and certified our appeal.  I’m rarely optimistic about our motions, but I can’t see how the Appeals Chamber can possibly endorse the Registry’s jerry-rigged selection of Harvey and the Trial Chamber’s hear-no-evil, see-no-evil “review” of that selection.

by Kevin Jon Heller

I’ve been writing Chapter 3 of my book on the Nuremberg Military Tribunals, which traces the evolution of the Office of the Chief of Counsel’s trial program — how it selected the twelve cases, why it abandoned others, which suspects it included and which it excluded.  It’s a fun chapter to write, both because no one has ever done it and because it gives rare insight into the thought processes of Telford Taylor and the other prosecutors.

I am particularly fascinated by how close Carl Schmitt, the political theorist who has influenced both the right and the left, came to being a defendant in one of the trials.  After Schmitt joined the Nazi Party in 1933, he had been appointed the head of the Union of National-Socialist Jurists and had written a number of pro-Nazi and anti-Semitic articles for the self-published German Jurists’ Newspaper.  Schmitt had a falling-out with the SS in 1937 and resigned his position as Reich Professional Group Leader, although he was able to keep his professorship at the University of Berlin because Goering protected him.

As I detail in the book, the OCC submitted three different trial programs to the US’s Occupational Military Government (OMGUS): on 14 March 1947, 20 May 1947, and 4 September 1947.  Schmittt was listed in the first program as a possible defendant in what the OCC called the “Propaganda and Education case.”  According to the program, there were three definite defendants in the trial: Max Amann, the President of the Reich Press Chamber; Arthur Axmann, Schirach’s successor as Reich Youth Leader; and Otto Dietrich, Chief of the Press Division of the Ministry of Propaganda.  Schmitt, who was described as a “university professor and propagandist,” was then included with five others as potential defendants: Hartmann Lauterbacher, a District Commander in the Hitler Youth; Dr. Gustav School, Reich Leader of Students and Lecturers; Helmut Sundermann, Press Chief and Chief of Staff in the Press Chamber, Werner Zachintisch, from the Science, Education, and Popular Culture Division (of the Ministry of Propaganda?); Bernard Rust, the Minister of Education; and Herman Muhs, the Minister of Church Affairs.

At some point between 14 March and 20 May, when the OCC submitted its second trial program, Taylor’s staff decided not to prosecute Schmitt.  The second trial program no longer includes Schmitt as a possible defendant.  Indeed, the Propaganda and Education case had by then been merged with the Government Administration case (whose key defendant was Hermann Lammers, President of the Reichschancery) and only Amann, Axmann, Dietrich, and School remained suspects.

Although there is nothing in the OCC’s records that explains why Schmitt was eliminated from consideration, Joseph Bendersky, a historian at Virginia Commonwealth University, has argued that Schmitt’s repeated interrogation by Robert Kempner, a German-Jewish refugee who was one of the OCC’s most notorious prosecutors, simply failed to uncover anything particularly incriminating:

There are… highly significant dimensions to the information and contentions in the interrogations and reports on Schmitt. Foremost among these is that those seeking his prosecution as a war criminal, for having been an influential Nazi thinker and theoretical “instigator” of wars of aggression and war crimes, had such a superficial grasp of his case. It was all premised upon the faulty assumption that through his work and reputation he had significantly influenced the policies and practices of the Third Reich. This perspective, which had been developed abroad, never attempted a thorough examination of his writings or an analysis of his actual personal, political, and professional relationships with the institutions and policies of the Nazi regime. Indeed, when in his OMGUS reports Loewenstein wrote from personal knowledge of Schmitt in Weimar and an extensive scholarly familiarity with his works at that time, he actually refuted Kempner’s claims that Schmitt had sought to undermine Weimar democracy, establish a dictatorship, and for thirty years promoted the conquest of Europe. For Loewenstein depicts Schmitt as one of the most world-renowned “political writers of our time,” whose analysis of Weimar’s political structure, if followed, “might have led to its preservation.” Moreover, Schmitt’s Verfassungslehre was “probably the best treatise on democratic constitutional law in Germany,” and earlier than most he warned against the “overthrow, by legal methods, of the Weimar Republic by Hitler.” Schmitt’s subsequent turn to Nazism, Loewenstein argued, was an opportunistic path of a morally flawed personality with inherent authoritarian tendencies.

Bendersky notes in a longer essay on Schmitt and Nuremberg published in Telos — available by subscription here — that the German historian Helmut Quaritsch believes that “Kempner actually sought not to prosecute Schmitt but to pressure him into becoming an expert and prosecution witness in the Wilhelmstrasse-Prozess of German state secretaries that Kempner was now heading” — the Ministries case.  That is something of an overstatement, given Schmitt’s inclusion as a possible defendant in the Propaganda and Education case.  Moreover, Bendersky’s account of the interrogations in the Telos article makes clear that, at least at first, Kempner genuinely believed Schmitt could be prosecuted for crimes against peace in his role as the “theorist” of the Nazis’ aggression.

Nevetheless, if a confidential OCC memo written no earlier than August 1948 is correct, the OCC initially viewed Schmitt as a possible witness in Ministries, not as a potential defendant in the Propaganda and Education case. The memo notes that Schmitt’s arrest was arrested on 23 March 1947 at the request of the OCC’s Ministries Division because he was considered a “material witness for the Ministries Case.”  The description is important, because the memo lists a number of individuals who were wanted as “potential defendants” — including potential defendants in Ministries.

Schmitt never testified at the Ministries trial, and he was released from confinement on 6 May 1947, two months and two weeks after he was arrested.  We may never know how close he came to being prosecuted at Nuremberg — but it’s a fascinating episode in the history of the NMT nevertheless.