innocent members of the organization probably can not be found at all because it is simply not comprehensible to a healthy human understanding that anyone would have entered the indicated organization without having known from the very beginning or at least from soon after the beginning what goals and methods the organizations were pursuing. This point of view might appear comprehensible to the observer regarding it in retrospect, after the crimes of which the organizations are accused have been assembled and exposed. That the attitude at that time of the members regarding the goals and tasks was or could have been entirely different can be doubted by anyone. If we accepted Justice Jackson's interpretation of this, then the provision of Article IX of the Charter, providing for the participation of the members of the organizations in their criminal character, would have no meaning. direction, and it would further be unnecessary to dismiss the criminal charact As the Tribunal has itself suggested, if we should accept Justice Jackson's statement that according to healthy, human understanding all the members took part in the crimes recognizing them as such, then the provisions regarding the common conspiracy and common plan would suffice altogether as to declare all of these members on those grounds alone without exception guilty. Then the structure of the declaration of criminality and the formulation or the structu of its consequences would in no way be necessary that the declaration of the criminality of the organization is not necessary but could be assentuous, could be seen from the following consideration. of the organization, and which would have precipitated a whole flock of trials which could not be dealt with in a generation. What will be done then is to seek out and find only those who are really guilty, and against them trials will be undertaken. For that reason it is not in any way requisite to create such a great circle of members through the declaration of criminality and from it to accuse the guilty. This selection then may take place without the creation of this circle. But in an organization of many members there were obviously a number of innocent members is a fact that can not be disputed.
Not only the Charter contains this thought, but also the prosecution has taken it into consideration in that it wishes to exempt from any organization the category with less power; and to do so is the obvious conviction that they had nothing to do with the crime, otherwise they would have been members or partici pants in the criminal conspiracy. Besides this category, however, a number of other members come into question here of whom one can not speak of as guilty in the legal sense of the term; especially those people who did not concern themselves at all with the aims of the organization. All of these people would not only be dishonored by a declaration of criminality of the organization but sinply because of their membership would be punishable if they were indicted or called to trial. That they should be threatened or destroyed simply because they belonged to the organization and should be hurt in their economic life or defamed because of this declaration of criminality I shall mention only in passing. But again it must be asked whether all these consequences, according to the principle of all penal systems, according to which the innocent are to be punished, and according to the principle of material justic* whether the Tribunal could accept the responsibility for such a judgment. That must be denied all the more forcibly when if the verdict of the Court affects the members in such a way that they receive no legal hearing. drawn from the vast majority of the members for technical reasons. From that the unique situation arises that the Tribunal would pass verdict on all those members without knowing whether or not numerous innocent people would thereby be affected. promulgated is nothing new, but can be found in the penal codes of all other states and particularly in the penal code of Germany, then this attitude can not at all be accepted. The German, laws and legal precedents that we cited ar of an entirely different character from the structure of the Charter. Germany like almost all other states, knows of no such thing as punishment of organizations, but simply exclusively of the punishment of individual persons. No German judgment was ever passed through which an organization as such was was punished or was declared criminal.
It is altogether possible, to be sure, that in the trials against members of criminal organizations the criminal character of the organization was stated as such in the reasons given for the judgment, but this statement had the effect upon the punished members and not toward others who were neither accused nor condemned. precisely corroborate the attitude taken by the defense, because they threatened exclusively the participation in an illegal union with penalty but not the union itself.
Also, in those that were cited by the French there was a question whether only participation and membership in the organizations in question or whether those organizations having punishable purposes and means could be punished. A possibility of declaring the organization itself criminal is not to be found in those laws cither. The French Prosecutor cited, first of all, Articles 265 and 266 of the Code Penale. The first provision forbids the construction of organizations with punishable purposes. Second, only the participants of such an organization were punishable. Also, the French law on the fighting units and civil organizations of the 10th of January 1936, have forced these punishments only for the participants. The same is true of the other cited law of the 28th, 1944, which only provides for individual responsibility. None of the above-mentioned laws allow the punishment of organizations. defense. If, exceptionally, in England and in America organizations as such can be punished, then that can only be done because of certain groups of criminals and always in such a way that either the dissolution of the organization or fines are ordered. Naturally, it is also in this trial the presupposition of the Prosecution and of the judgment that the organization as such is represented in front of the Court and can defend itself. However, in the previously mentioned procedure, the organizations as such are brought in front of the Court, although they and their organism do not exist any longer. It has never been the case in any country that organizations are declared to be guilty or criminal and that, on the basis of this declaration of the Court, all members of the organizations can be accused and punished because of their membership. It is this which is completely new and unique in contrast to previous law in any land of the world. such a law for their own population. It is thereby proved that the declaration of criminality that the Prosecution demands would automatically lead to the above listed syllogism and entirely untenable consequences. Then it can be seen that the application of the Prosecution must be rejected in the name of justice. Thereby, also, the Charter that in no way obliges the Court to make such a statement, would not be offended; an injustice would then be avoided, that could only damage the integrity of the decision of the Tribunal in present and future times.
the above mentioned reason, principally must reject the declaration that an organization is criminal or, secondly, in the other case, the concept of the criminal organizations must be so understood that the innocent members are protected from the serious consequences. colleague Kubuschok. Accordingly, also, the themes of evidence such as he presented yesterday must also be allowed if they are not irrelevant for the reason that for legal reasons the application of the Prosecution shall not be granted. For the group that I represent of the General Staff of the OKW, the demand is necessary that following all proof, themes should be permitted; (1) In the case of the group called here "The General Staff of the OKW", neither is there any such group nor is there any such organization. I shall justify that statement as follows:
(a) Justice Jackson is of the opinion that a "group" is a larger concept than the concept "organization". That doesnot have to be defined but can simply be understood by common sense. To this must be added those who occupied the highest and the higher command posts. There were the higher officers of the military hierarchy as they are in every army in the world. Any recognizable relationship between the members of this group did not exist. These relationships cannot be assumed through the official contact they had with each other, nor than the actually existing chain of command. indictment has been admitted completely arbitrary, only on the basis of the fact that those people in the period of eight years occupied official positions, there is no union that could justify the assumption that this was a unified group. But it is absolutely essential to the concept of the group, that, along with the purely official connection, there should be also a unifying element.
(b) Besides the Chiefs of the General Staff, the army, and the air force, none of the individual people in the group belonged to the General Staff.
The General Staff of the Army and the Air Force--the Navy had no General Staff--were subordinate to the Chief of the General Staff, consisted of the General Staff officers who acted, as assistants to the higher military leaders.
Consequently, the indictment has given to this imaginary group a false and misleading designation or name.
Second theme: I here apply arguments delivered by Kubuschok to the theme of the General Staff and the OKW. The occupants of the offices in the group are not as voluntary members of the group nor did they remain in the group voluntarily. The admissibility of this theme of evidence is necessary for the following reasons:
(a) Justice Jackson stated yesterday that the entrance or the membership to a group must be voluntary. This present condition does not apply to the group which I represent. The indicted higher military leaders for the greatest part had precedence in the Kaiser's Army. All had served long before 1933 in the Reichswehr of the Weimar Republic. They did not join any group but were officers of the Wehrmacht and achieved a position that they were not at liberty to choose, only on the grounds of their military achievement. They were not at liberty, without offending against the rules of military obedience, to withdraw from these positions that they occupied. related in the summing up of the arguments to the arguments and accusation against the group of the General Staff and the OKW* These points could be brought about in this way: from the contents of which conclusions could be drawn regarding the typical attitude of a certain number of those involved. interrogated about the themes of relevant evidence that has here been discussed and do so before the Tribunal. admitted, as far as it is necessary. to the complete extent, as Justice Jackson, during the case of the Prosecution suggested, on the 14th of December 1945, that for today a binding decision regarding the relevancy cannot yet be reached. Whether this evidence is necessary at all and whether and to what extent they are relevant depends on the following:
(1) Whether the Court would on the basis of the point of view brought up by the defense reject the application that these organizations be declared criminal; and (2), as in the other cases, the concept of the criminal groups and organizations is determined.
These two points cannot at present be definitely be decided. Since there is still a great deal to be said about the significance and, in part, completely new problems as well as over the impressive and deeply sought out exposition of Justice Jackson, one of my colleagues is now busy working all these problems and questions into a conclusive document which will be ready in two or three weeks, I ask that I and my colleague be allowed to take a definite position at that time. One last point: The Court would have to decide about the treatment of the last word for the organization.
THE PRESIDENT: Mr. Justice Jackson, the Tribunal would be glad to hear you in reply.
JUSTICE JACKSON: I think there is not much that I care to say in reply, but there are one or two points which I would like to cover. It has been suggested that there be a separation of the trial of the issues of the organizations from the trial now pending. I think that is impossible under the Charter. I think the trial must proceed as a unit. Of course, it is possible to take up at separate times different parts of the trial, but the jurisdiction conferred by Article 9 for the trial of organizations is limited. It is at the trial of any individual member, of any group, etc., that this decision must be reached and it must be in connection with any act of which the individual may be convicted. So I think that any separation in anything more than a mere separate days or separate weeks of our time is impossible. by several of the representatives of the organizations that there would be some great injustice in dishonoring the members of these organizations or branding the members of these organizations with the declaration of criminality. I should have thought that if they were not already dishonored by the evidence that has been produced here, dishonor would be difficult to achieve by mere words of the declaration.
It isn't we who are dishonoring the members of these organizations. It is the evidence in this case originating largely with these defendants that may well bring dishonor to the members of these organizations. But the very purpose of this organizational investigation is to determine that part of German society which did actively participate in the promulgation of these offenses and that those elements may be condemned and, of course, if it carries some discredit with it, I think we must say that the discredit was not originated by any of our countries; the dishonor originated mainly in this dock together with those whom the fortunes of war have removed from cur reach. at least, we do not agree as to what should be meant by treating these organizations as generally voluntary. The test which has been advanced by the counsel for the organizations would, it seems to me, completely nullify any practicable procedure. Now, let us contrast the Wehrmacht and the SS to get at which I mean regarding an organization as generally voluntary. The Wehrmacht was generally a conscript organization, but it may have had a good, many volunteers in it. I do not think we would, be justified because there were volunteers in calling the Wehrmacht a voluntaryorganization. The SS, on the other hand, was generally a voluntary organization but it did have some conscripts, and I do not think it would be any more just to carry the SS into the class of conscript organizations because of a few members than it would to classify the Wehrmacht as voluntary because of a few members. In other words, in neither case would we be justified in allowing what we might say the "tail to wag the dog". It is a question of the general character of the overall organization that decides what these organizations are. was not intended to apply to any groups, sections, or individuals who were conscripts, that is one thing. I have no quarrel with that. From the very beginning I have insisted that, of course, we were not trying to reach conscripts. But, if you sit here week after week determining who is a conscript and just where, that principle leads, that I think would be quite apart from which we ought to do here.
Now, a great deal of argument is addressed to the fact that proof is lacking or that there should be stronger proof; that these organizations' real criminality was known to the members, and the inference seems to be that we must prove that every member, or, at least, that we cannot hold members who did not knew this criminal program on the part of these organizations.
I think this gets into a question, perhaps, of the sufficienc of proof rather than one of principle, but it seems to me again that we have the common sense division. If some one organized a literary society for the study of German literature and accumulated some funds and had a home, a house, and some of the defendants became its officers and secretly diverted its funds to criminal purposes, while all the time to the public it was presenting only the appearance of being a literary society, it might very well be that a member should not be held unless we proved actual knowledge. Or, if a labor union, ostensibly, for the purpose of improving the welfare for its members, has its funds or properties or the prestige of its name diverted by these who happened to gain control of it to criminal purposes, then you have a situation where the members might not be chargable with knowledge. But when I speak of knowledge sufficient to charge members as I did, I do not mean the state of mind of each individual member. That woul* be an absurd test in any court of law. In the first place, it is never a satisfactory thing to explore a state of mind of an individual and, in the second place, it is impossible to explore the state of mind of an alien individual. So we might as well drop this thing from consideration, if that were to be the test.
But let us look at this program overall. How did these few men who were the heads of the Nazi regime kill five million Jews, as they boast they did?
Now, they didn't do it with their hands, and it took disciplined, organized, systematic, human manpower to do it. That manpower wasn't casually assembled. It was organized, directed and used.
Now, how can the killing of five million Jews in Europe be a secret? Weren't the concentration camps known in every one of our countries? Wasn't it a byword in every land in the world -- the German concentration camps -and yet we have to hear that the German people themselves had no knowledge about it. cally and in every other way, and yet we are told this was a secret in Germany. The name of the Gestapo was known throughout the world, and there isn't a man among counsel who wouldn't have turned white if in the night at his door someone rapped and said he was representing the Gestapo. The name of that organization was known--unless we are to assume that it was singularly secret in Germany but known to the rest of the world. know who joined these organizations. There was no declared and ostensible purpose of the SA, the SS, and several of those organizations, except to carry into effect the Nazi program. They would make themselves masters of the streets.
The story is all in the evidence, and I won't go on to repeat it. The program was an open, notorious program, and these were the strong-arm organizations. So it seems to me that we get down to the situation where, as Chief Justice Taft once said to the Supreme Court of the united States on a somewhat similar question: "We as judges are not obliged to close our eyes to things that all other men can see." And this was notorious and open. to listen to the arguments made here again and again that there is some plan here to punish with death penalties or extremely severe penalties people who innocently got caught in this web of organization. If there were the slightest purpose to go through Germany with death we wouldn't have bothered to set up this Tribunal and stand here openly before the world with our evi-dence.
We weren't out of ammunition when the surrender took place, and the physical power to execute anyone was present. the judgment of this Tribunal the question of the criminality of these organizations. And it seems to me a little trying on the patience of representatives of those powers to be told that back of this is some purpose to wreak vengeance on innocent people. I think it is difficult for those who have survived this Nazi regime to understand how reluctant we are to kill any human being. It is a commentary on the stateof mind that survived this Nazi regime rather than upon us.
Now, Control Council Act Number 10--I don't know whether your Honors have copies of that. Control Council Act Number 10 does make membership in the categories which may be convicted a crime, and I think it ought to. It ought to be sufficient to bring before a Tribunal inquiring into the detail of each individual any individual who is a member, and that is all that we have here in a declaration, in substance, an indictment which enables you to put the individual on trial. and so long as the death penalty is imposed by any society for anything, the penalty of death ought to follow in some of these cases. The SS men who were responsible for the destruction of the Warsaw Ghetto, for example, or SS men who are shown to have been responsible for the top planning, even though they didn't actually participate, 3 of Act Number 10, the slightest penalties are also provided. The restitution of property wrongfully acquired is one of the penalties that may be imposed. The deprivation of some or all civil rights is another. And during this period of reconstruction of German society, those minor penalties may very well be imposed upon people who entered into these organized plans. If not, you have the situation that the people who organized themselves to force this Nazi program, first on the German people and then on the world, are treated exactly the same as the German who was the victim of it.
Now, isn't it our duty as occupying powers of a prostrate country to draw some distinction between those who organized to bring on this catastrophe and those who were passive and helpless in the face of overwhelming power?
tering the affairs, an SA man has been made a councillor in one of the districts. There is no purpose, because a man happened to get into the SA, to take his life or to take his property or to condemn him to hard labor for life. There is a purpose to have the basis for bringing these people in for what the military people call a "screening" and find out what kind of people they are and what they have been up to. drafted it in the language it is drafted in, this Control Council leaves, in the first place, discretion as to whether prosecutions will take place in the hands of the occupying powers. I have no idea that the fears of counsel that millions--I have forgotten how many millions it was estimated would be brought to trial. I know that the united States has worries enough over manpower to bring to trial 130,000, so we don't want to bring to trial millions. And it is for that reason that we have consented to the exclusion of some of these categories where it seemed we could exclude them very safely without jeopardizing the overall program of dealing with these people.
Now, I want to make clear why it is that we don't want to go into this trial to this question of each of thesemany sub-divisions of these Nasi organizations and the functions of each. You have heard some of them named. They are innumerable. Some of them existed a short time and then disappeared.
The tiral of each of these sub-divisions would tike--I wouldn't venture to say how long. Now, we don't want to see this court trivialized. This isn't a police court. This wasn't set up to be a police court, and this is the police court function, after this Court has laid down the general principles, to take up the case of individuals or of many individuals and to determine whether they are within or without the definition.
I don't know whether a mounted group of SS men are any less dangerous than an unmounted group.
I had always associated the equestrian art with warfare, but I do know it will take a long time to determine it.
I don't know whether SS motorcycle mounted traffic officers are less dangerous than those who don't have motorcycles, or less criminal, but I should have a suspicion that the greater the mobility the more active the group was in carrying out these widespread offenses.
I don't know abort the physicians. I don't think it is up to us to try it in this case, but I suspect that a medical corps meant there might be soma casualties, and this thing isn't innocent on its face, as it appears. This will require a great deal of evidence if we go into each of these things, and It seems to me that it would be out of keeping with the character of this Tribunal to go into that kind of questions.
Now, it isn't necessary to go into the group any more than it is the individual, and if you go into the group I know of no reason why you shouldn't go into the individual, because if the group is within the general contour, each member of that group to entitled to his hearing before he is condemned. It may very well be that the occupying authorities will decide that the whole group isn't worth prosecuting. We have no illusions about this thing, We -are never going to catch up with all the people who are guilty, let alone prosecuting the innocent. If they are prosecuted, however, it may very well be that the group would be treated together in some way so that there could be a single determination as to each group. no point inhaving a hearing for sub-groups, between the individualand the principal organization that we ask to have declared guilty. decide just who is in and who is out of the circle of guilt, there would be no reason why the Charter wouldn't have given you power to sentence. There would be no reason for further trials. of an indictment. It is true it is an accusation against all members of the group. It has no effect unless it is followed by a trial and a conviction, any more than an indictment that is never followed by a trial would have effect.
The effect of the declaration is that the occupying power may bring these individual members to trial.
Administrative considerations will enter into it, the degree of connection. It may very well be that. it will be decided that those who weremere members and not of officer rank of any capacity should not be punished. We can't say just what will be necessary.
Frankly, I don't know just what man power is going to be available for the United States' part in the follow-up of these trials. There are difficulties which I don't underestimate, but I do know that the idea that this means a wholesale slaughter or a wholesale punishment of people in Germany is a figment of imagination and is not in accordance with either the spirit of this trial or the purpose of the Charter. question, which I will be glad to answer. THE PRESIDENT: Justice Jackson, there are one or two questions I should like to put up to you. bearing, the words at the end of Article 11, where its provides that "Such court" -- in the independant of and additional to the punishment imposed by the Tribunal for participation in the criminal activity of such groups or organizations."
Do the wrods "for participation in the criminal activity of such groups or organisations" add anything to the definition of the word "membership" in Article 10?
JUSTICE JACKSON: I do not think they add anything. Frankly, the wording of this ARticle has bothered me, as to just what it does mean, since no punishment is imposed by this Tribunal at all for participation in the activities of the group. The purpose of the language was to make clear that the punishment for an individual crime, if one committed a murder individually or was guilty of aggressive warfare planning, is not to interfere with the punishment for being a member of a criminal organization or vice versa, to make clear that they are not mutually exclusive. But the language I am not proud of.
THE PRESIDENT: Secondly, would an individual who was being tried before a National Court be heard on the question whether, in Pact, he knew of the criminal object of the group?
JUSTICE JACKSON: Well, I think he would be heard on that subject, but I don't think it would be what we in the United Stated would call a complete defense. It would perhaps be a partial defense or irrigation. I should think that the Tribunal might well, the court trying it, might well have felt that he should have known under the circumstances what has organization was, despite his denial that he did not; and that his denial, if believed, would weigh in mitigation rather than in complete defense. In other words, I do not believe that you can make as a decisive criterion of guilt the state of mind of one of these members where you have no power whatever, no ability whatever, to controvert his statement of that state of mind. I think you have to have some more objective test than his mere declaration.
THE PRESIDENT: Then I understood you to say that it wasn't for the Tribunal to limit or define the groups which were to be declared criminal, but as the Charter does not define them, isn't it necessary for the Tribunal to define what the group is?
JUSTICE JACKSON: I think it is necessary for the Tribunal to identify the group which it is condemning sufficiently so that it would afford a basis for bringing the members to trial for membership.
I don't think it is necessary to define the exact contours of guilt. It is defined in reference to membership rather than in terms of guilt or innocence. That is to say, it may be that there is some little section of the SS that on trial would be said to be not guilty of participating in the crimes of the organization, I don't think it is up to this Tribunal to take evidence, because if you take evidence as to some you must as to all.
The SS is a well known organization. Its contour is easily defined by membership, and within those contours it doesn't seem to me necessary to make exceptions.
THE PRESIDENT: But if there were to be an essential distinction on the question of criminality between the main body of the SS and, for instance, the Waffen SS, would it not be the duty of the Tribunal to make that distinction?
JUSTICE JACKSON: I do not think that would be necessary. I think when the member was brought to trial -- one may be a conscript and still have remained in on a voluntary basis, or he may have gone beyond his duty as a conscript. I don't think it is necessary at this stage of the proceeding, where the individual is not here, to eliminate him, I do think that the principle that acts performed under conscription are not within the condemnation of the Tribunal is quite a different thing.
THE PRESIDENT: Is it possible for this Tribunal to limit the powers of the National Courts under Article 10 by defining either the group or giving a definition of the word "membership".
JUSTICE JACKSON: Well, if your Honor please, I think every Tribunal in its judgment has a right to include in its judgment provisions which will prevent its abuse. I don't think this Tribunal is lacking in power to protect its decision against distortion or abuse. I take it that is the question rather than the question, if the National Courts brought these persons to trial and paid no attention to the declaration. I don't suppose that there would be any power in this Tribunal to stop them from doing it. But I assume you mean as a consequence of this declaration, and I think that the declaration can be circumscribed or limited. I certainly would insist that the Court had inherent power to protect its judgement against abuse.
THE PRESIDENT: Do you thick this Court could direct the National Court to take any particular defenses into consideration?
JUSTICE JACKSON: I don't know that it could put it in just that way, but I suppose it could define the categories in a way that the declaration would not reach any except those included within it. In other words, I think the declaration that this Tribunal will make is within this Tribunal's control. When you get away from the declaration, I think you would have no control over the Courts. But insofar as they relied on the declaration you would have power to control the effect of the declaration, provided the effect was not inconsistent with the provisions of the Charter.
THE PRESIDENT: You did, I think, make some suggestions for obtaining such evidence as you thought was necessary Do you wish to add anything to that?
JUSTICE JACKSON: I have nothing to add to that, your Lordship. I realize that the defendants' counsel have great difficulty in getting evidence, great difficulty in communication. I have it myself, great difficulty in getting letters delivered, great difficulty in all of these things. But I will state to this Tribunal categorically -- I don't know to what camp it was referred to yesterday as substantially refusing counsel's application to see their clients -- but so for as the American zone is concerned counsel, if they are properly cleared to go there, will be given every facility to get every Kind of evidence that is available in than camp. If they are there at mealtimes they will be fed, and if they are there at night they will be sheltered . We will put everything in their way to help them that is possible.
Of course there are security problems involved, and counsel can't just walk in a camp and make himself at home. He will have to be cleared in advance so that they meet the security requirements; but there is no purpose to obstruct, and there is every purpose to assist.
THE PRESIDENT: Thank you.
THE TRIBUNAL (Mr. Biddle): Mr. Justice Jackson, I'd like to ask you a few questions. Some of them will be somewhat repetitious of what the President has already said. You will excuse me if I request one or two of those. Most of them are directed for the purpose of this argument, which I take it is to form some kind of definition of the organization, which may of course not be final but will at least give us a view of what should be relevant to the defendants making up their cases.
So the questions are addressed to that rather than any ultimate theory of definition. in the Gestapo. Well, now, if we accepted that, would we not be obliged to exclude such categories from other criminal organizations?
JUSTICE JACKSON: Not at all, I think, your Honor. I think there is a difference between a concession by the Prosecution and either the necessity for the Court making a decision or a decision by the Tribunal. janitors of the Gestapo were not to be included, that no clerks, stenographers or janitors should be included. It doesn't follow, The relationship in different organizations differ. stenographers and janitors in that organization ought not to be included, and we don't want to waste any time on it.
MR. BIDDLE: What is the reason for that, that those clerks would not have had knowledge of what is going on in the Gestapo?
JUSTICE JACKSON: I don't think they either had sufficient knowledge, in general, to be held, now that that they had sufficient power to do anything about it if they did. questions that the Court inevitably gets into if it undertakes to draw these lines itself rather than letting them be drawn administratively by what we choose to prosecute -- is just illustrated by this sort of thing. ought to be logical perhaps. I have always thought that was the great merit of the jury system; that juries don't have to be, and in prosecuting we don't have to be. It may look illogical to exempt small people in one organization and not in another, but there were differences in them. meeting by the Defendant Goering that chauffeurs to certain officers had profitted to the extent of half a million Reichsmarks out of Jewish property that they had gotten their hands on.
Now, I suppose ordinarily you'd say that a chauffeur for an official was not a man who had much discretion and not a man who was expected to know much about what his employer was doing, but you have a great deal of difference in their relations to these men.
So far as I am concerned, I want to state it further -- and I think it will be assumed -- the United States isn't interested in coming over here 3500 miles to prosecute clerks and stenographers and janitors. That isn't the class of crime, even if they did have some knowledge, that we are after, because that isn't the class of offending that affects the peace of the world. I think there is little reason to fear that that sort of person -- unless there is some reason to feel that they have some guilty connection beyond merely performing routine tasks -- will be prosecuted as a bigger problem as we have on hand here.
THE TRIBUNAL (Mr. Biddle): But in spite of that, you would include them in the Einsatz, let us say?
MR. JUSTICE JACKSON: I would not exclude them.
MR. BIDDLE: I take it, you would include them.
MR. JUSTICE JACKSON: If they were members, they would be included; if they were merely -
MR. BIDDLE: Yes.
MR. JUSTICE JACKSON: If they were merely employees, that is something different; but if they took the oath and became a part of the SS organization, I think they stand in a different relation to the employed clerks of the government agency.
MR. BIDDLE: Now, somewhat along these same lines, you stated, in trying to define what a criminal organization was, that its membership must have been -- I am quoting your words -- "generally voluntary" and its criminal purpose or methods open and notorious and of such character that its memberships in general may properly be charged with knowledge of them. what the President asked you; but perhaps to specify a little more, would it not be inconsistent with that test which you surest for criminality, if we decline to consider whether any substantial segment of the organization -I mean a section or segment might comprise a third of the whole organization or even more, like the Waffen SS within the General SS, was either conscripted, which is one test, or ignorant of the criminal purpose, because if such a a substantial segment could be shown to be innocent under these tests, would not it be necessary either to decline a declaration on that ground, that the criterion -- that the criteria were not generally satisfied as to the accused organization or else exclude the innocent segments from the deposition of the criminal organization?