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Since a considerable part of our evidence has been a embled in London, I went
there on May 28 with General Donovan to arrange for its examination, and to confer
with the United Nations War Crimes Commission and with officials of the British
Government responsible for the prosecution of war criminals. We had extended con-
ferences with the newly appointed Attorney General, the Lord Chancellor, the Foreign
Secretary, the Treasury Solicitor, and others. On May 29, Prime Minister Churchill
announced in the House of Commons that Attorney General Sir David Maxwell Fyfe had
been appointed to represent the United Kingdom in the prosecution, Following this
announcement, members of my staff and I held extended conferences with the Attorney
General and his staff. The sum of these conferences is that the British are taking
steps parallel with our own to clear the military and localized cases for immediate
trial, and to effect a complete interchange of evidence and a coordination of plan-
ning and preparation of the case by the British and American representatives. De-
spite the fact that the prosecution of the major war criminals involves problems
of no mean dimensions, I am able to report that no substantial differences exist
between the United Kingdom representatives and ourselves, and that minor differences
have adjusted easily as one or the other of us advanced the better reasons for. his
view.
The Provisional Government of the French Republic has advised that it accepts
in principle the American proposals for trials before an International Military
Tribunal. It is expected to designate its representative shortly. The government
of the Union of Soviet Socialist Republics, while not yet committed, has been kept
informed of our steps and there is no reason to doubt that it will unite in the
prosecution. We propose to make provision for others of the United Nations toru
become adherents to the agreement.
NATIONAL
ARCHIVES AND
RECORDS
III.
ADMIN."
The time, I think, has come when it is appropriate to outline the basic fea-
tures of the plan of prosecution on which we are tentatively proceeding in preparing
the case of the United States.
1. The American case is being prepared on the assumption that an inescapable
responsibility rests upon this country to conduct an inquiry, preferably in associa-
tion with others, but alone if necessary, into the culpability of those whom there
is probable cause to accuse of atrocities and other crimes. We have many such men
in our possession. What shall we do with them? We could, of course, .set them at
large without a hearing. But it has cost unmeasured thousands of American lives to
beat and bind these men. To free them without a trial would mock the dead and make
cynics of the living. On the other hand, we could execute or otherwise punish them
without a hearing. But undiscriminating executions or punishments without definite
findings of guilt, fairly arrived at, would violate pledges repeatedly given, and
would not set easily on the American conscience or be remembered by our children
with pride. The only other course is to determine the innocence or guilt of the
accused after a hearing as dispassionate as the times and horrors we deal with
will permit, and upon a record that will leave our reasons and motives clear.
2.
These hearings, however, must not be regarded in the same light as a
trial under our system, where defense is a matter of constitutional right. Fair
hearings for the accused are, of course, required to make sure that we punish only
the right men and for the right reasons. But the procedure of these hearings may
properly bar obstructive and dilatory tactics resorted to by defendants in our
ordinary criminal trials.
Nor should such a defense be recognized as the obsolete doctrine that a head
of state is immune from legal liability. There is more than a suspicion that this
idea is a relic of the doctrine of the divine right of kings. It is, in any event,
inconsistent with the position we take toward our own officials, who are frequently
brought to court at the suit of citizens who allege their rights to have been in-
vaded. We do not accept the paradox that legal responsibility should be the least
where power is the greatest. We stand on the principle of responsible government
declared some three centuries ago to King James by Lord Chief Justice Coke, who
proclaimed that even a King is still "under God and the law."
With the doctrine of immunity of a head of state usually is coupled another,
that orders from an official superior protect one who obeys them. It will be
noticed that the combination of these two doctrines means that nobody is responsible.
Society as modernly organized cannot tolerate so broad an area of official irrespon-
sibility. There is doubtless a sphere in which the defense of obedience to superior
-3-
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"ocrText": "Since a considerable part of our evidence has been a embled in London, I went\nthere on May 28 with General Donovan to arrange for its examination, and to confer\nwith the United Nations War Crimes Commission and with officials of the British\nGovernment responsible for the prosecution of war criminals. We had extended con-\nferences with the newly appointed Attorney General, the Lord Chancellor, the Foreign\nSecretary, the Treasury Solicitor, and others. On May 29, Prime Minister Churchill\nannounced in the House of Commons that Attorney General Sir David Maxwell Fyfe had\nbeen appointed to represent the United Kingdom in the prosecution, Following this\nannouncement, members of my staff and I held extended conferences with the Attorney\nGeneral and his staff. The sum of these conferences is that the British are taking\nsteps parallel with our own to clear the military and localized cases for immediate\ntrial, and to effect a complete interchange of evidence and a coordination of plan-\nning and preparation of the case by the British and American representatives. De-\nspite the fact that the prosecution of the major war criminals involves problems\nof no mean dimensions, I am able to report that no substantial differences exist\nbetween the United Kingdom representatives and ourselves, and that minor differences\nhave adjusted easily as one or the other of us advanced the better reasons for. his\nview.\nThe Provisional Government of the French Republic has advised that it accepts\nin principle the American proposals for trials before an International Military\nTribunal. It is expected to designate its representative shortly. The government\nof the Union of Soviet Socialist Republics, while not yet committed, has been kept\ninformed of our steps and there is no reason to doubt that it will unite in the\nprosecution. We propose to make provision for others of the United Nations toru\nbecome adherents to the agreement.\nNATIONAL\nARCHIVES AND\nRECORDS\nIII.\nADMIN.\"\nThe time, I think, has come when it is appropriate to outline the basic fea-\ntures of the plan of prosecution on which we are tentatively proceeding in preparing\nthe case of the United States.\n1. The American case is being prepared on the assumption that an inescapable\nresponsibility rests upon this country to conduct an inquiry, preferably in associa-\ntion with others, but alone if necessary, into the culpability of those whom there\nis probable cause to accuse of atrocities and other crimes. We have many such men\nin our possession. What shall we do with them? We could, of course, .set them at\nlarge without a hearing. But it has cost unmeasured thousands of American lives to\nbeat and bind these men. To free them without a trial would mock the dead and make\ncynics of the living. On the other hand, we could execute or otherwise punish them\nwithout a hearing. But undiscriminating executions or punishments without definite\nfindings of guilt, fairly arrived at, would violate pledges repeatedly given, and\nwould not set easily on the American conscience or be remembered by our children\nwith pride. The only other course is to determine the innocence or guilt of the\naccused after a hearing as dispassionate as the times and horrors we deal with\nwill permit, and upon a record that will leave our reasons and motives clear.\n2.\nThese hearings, however, must not be regarded in the same light as a\ntrial under our system, where defense is a matter of constitutional right. Fair\nhearings for the accused are, of course, required to make sure that we punish only\nthe right men and for the right reasons. But the procedure of these hearings may\nproperly bar obstructive and dilatory tactics resorted to by defendants in our\nordinary criminal trials.\nNor should such a defense be recognized as the obsolete doctrine that a head\nof state is immune from legal liability. There is more than a suspicion that this\nidea is a relic of the doctrine of the divine right of kings. It is, in any event,\ninconsistent with the position we take toward our own officials, who are frequently\nbrought to court at the suit of citizens who allege their rights to have been in-\nvaded. We do not accept the paradox that legal responsibility should be the least\nwhere power is the greatest. We stand on the principle of responsible government\ndeclared some three centuries ago to King James by Lord Chief Justice Coke, who\nproclaimed that even a King is still \"under God and the law.\"\nWith the doctrine of immunity of a head of state usually is coupled another,\nthat orders from an official superior protect one who obeys them. It will be\nnoticed that the combination of these two doctrines means that nobody is responsible.\nSociety as modernly organized cannot tolerate so broad an area of official irrespon-\nsibility. There is doubtless a sphere in which the defense of obedience to superior\n-3-\nMORE"
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