Your response of 4 December 1945 is gratefully acknowledged. It now becomes evident that this headquarters, the Office of Military Government for Germany (U. S.) and yourself are in accord as to the appropriate organization for further prosecutions of Nazi criminals. This headquarters readily concurs in your proposed amendment of the draft Executive Order. It is noted that you have written a letter to the President, expressing your approval of the plan and your recommendation that the Executive Order be issued. The Theater Commander is addressing to the Chief of Staff, War Department, a letter on “Organization for Further Proceedings Against Axis War Criminals and Certain Other Offenders", of which a copy is inclosed herewith. With it you will find the text of the proposed Executive Order as now agreed between yourself, this headquarters, and the Office of Military Government for Germany. General Betts, Theater Judge Advocate, is being ordered to Washington on temporary duty', in order that he may present the views of this headquarters in the above matter. Your prompt response and effective cooperation are sincerely appreciated. Subject: Organization for Further Proceedings against Axis War Criminals and Certain Other Offenders. To: The Chief of Staff, War Department, Washington, D. C. 1. By directive JCS 1023/10, there was imposed upon the Theater Commander responsibility for causing the following crimes to be punished: a. Atrocities and offenses against persons or property constituting violations of international law, including the laws, rules and customs of land and naval warfare; b. Initiation of invasions of other countries and of wars of aggression in violation of international laws and treaties; and c. Other atrocities and offenses, including atrocities and persecutions on racial, religious or political grounds, committed since 30 January 1933. The enormous scope of this directive, and particularly of category "c" above, has been carefully considered. The words, if extended to their full literal meaning, would appear to embrace all the offenses committed in Germany since the Nazi regime came into power. "War crimes" as thus defined has a much larger meaning than that given in the War Department letter of 25 December 1944 on "Establishment of War Crimes Offices", AG 000.5 OB-S-A-M, and in War Department Circular No. 256 of 22 August 1945. 2. Toward achieving the purposes of the above direction the following action is in progress: a. The War Crimes Branch under the Theater Judge Advocate, established in this theater by a directive of 24 February 1945, is investigating and preparing for trial cases of (1) violations of the laws of war to the prejudice of United States nationals, notably prisoners of war, and (2) atrocities committed in the concentration camps overrun by the United States Forces. These cases are being brought to trial before military commissions or military government courts. b. Mr. Justice Jackson, acting under Executive Order No. 9547 of 2 May 1945, is prosecuting Case No. 1 against 22 defendants and seven groups or organizations before the International Military Tribunal. 3. Extensive study has led to the firm conclusion, on the part of all interested parties in this theater, that Mr. Justice Jackson's organization should be continued as the agency responsible for the prosecution of cases of Axis criminality not falling within the scope of the War Crimes Branch. A plan has been prepared for carrying forward that office, enlarging its field of activity so that it would be able to prosecute cases in zonal courts as well as in an International Military Tribunal, and providing that when Mr. Justice Jackson shall withdraw from his office, its functions, duties and powers shall pass to a Chief of Counsel for War Crimes to be appointed within the Office of Military Government for Germany (US). The details will be found in papers inclosed herewith. In particular, it is recommended that an Executive Order as indicated in the attached draft (Incl. 4) be issued. All of this has been carefully matured in consultation between this headquarters, the Office of Military Government for Germany (US) and the United States Chief of Counsel. Mr. Justice Jackson has written a letter to the President approving the plan and urging specifically that the Executive Order be published. 4. Upon the publication of the desired Executive Order, it is intended to go forward, as promptly as circumstances permit, to the prosecution of other leading Nazis, and to the disposition of the cases of members of such Nazi organizations as may be declared criminal. The extent of the prosecutions of Nazi offenders will be determined within the Office of Military Government for Germany in consonance with the instructions of the War Department. The prosecution of "membership cases" consequent upon a determination of the criminality of the indicted organizations will, it is estimated, reach a magnitude of between 100,000 and 200,000 individuals. Appropriate procedures are now being developed in anticipation of this eventuality. 5. It has become evident that the occupational authorities cannot by their own means seek out and punish all of the countless offenses committed within Germany since 1933. Accordingly it has been decided that as rapidly as German criminal courts can be reorganized and staffed by prosecutors and judges free from Nazi taint they shall be called upon to undertake the prosecution of this class of cases. This will not merely effect an economy in our own strength: it will be a test of German regeneration and in accord with current policies and developments in military government in Germany. Such prosecutions will, of course, always be under the supervision of the American occupation authorities. 6. How far down the scale of Nazi criminality our prosecutions are to be carried is a matter of policy and judgment which, it is believed, should be left within the sound discretion of the Military Governor. It must be recognized that a literal compliance with JCS 1023/10 is, in practice, out of the question. It is submitted that an effective execution of the plan herein proposed, with such means as may be available, should be accepted as an adequate fulfillment of the responsibilities placed upon the Theater Commander by that directive. 7. Approval is requested of the plan and course of action herein outlined for achieving the purposes of JCS 1023/10, and it is further requested that the necessary steps be taken to obtain publication of an Executive Order as indicated above. 1. Paragraph 1 of Executive Order No. 9547 of May 2, 1945, is hereby amended to read as follows: 1. Associate Justice Robert H. Jackson is hereby designated to act as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal. The Chief of Counsel is further authorized to proceed before United States military or occupation tribunals, in proper cases, against other Axis adherents, including but not limited to cases against members of groups and organizations declared criminal by said international military tribunal. He shall serve without additional compensation but shall receive such allowance for expenses as may be authorized by the President. 2. The present Chief of Counsel is authorized to designate a Deputy to whom he may assign responsibility for organizing and planning the prosecution of further charges of atrocities and war crimes, other than the indictment now being tried as case No. 1 in the International military tribunal, and, as he may be directed by the Chief of Counsel, for conducting such further prosecutions. 3. Upon the termination of the appointment of Associate Justice Robert H. Jackson as Representative of the United States and its Chief of Counsel, the functions, duties and powers specified in Executive Order No. 9547 of May 2, 1945, shall be vested in a Chief of Counsel for War Crimes to be appointed by the United States Military Governor for Germany or his successor. Appendix G EXECUTIVE ORDER 9679 AMENDMENT OF EXECUTIVE ORDER NO. 9547 oF MAY 2, 1945, ENTITLED "PROVIDING FOR REPRESENTATION OF THE UNITED STATES IN PREPARING AND PROSECUTING CHARGES OF ATROCITIES AND WAR CRIMES AGAINST THE LEADERS OF THE EUROPEAN AXIS POWERS AND THEIR PRINCIPAL AGENTS AND ACCESSORIES" By virtue of the authority vested in me as President and Commander in Chief of the Army and Navy, under the Constitution and statutes of the United States, it is ordered as follows: 1. In addition to the authority vested in the Representative of the United States and its Chief of Counsel by Paragraph 1 of Executive Order No. 9547 of May 2, 1945, to prepare and prosecute charges of atrocities and war crimes against such of the leaders of the European Axis powers and their accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal, such Representative and Chief of Counsel shall have the authority to proceed before United States military or occupational tribunals, in proper cases, against other Axis adherents, including but not limited to cases against members of groups and organizations declared criminal by the said international military tribunal. 2. The present Representative and Chief of Counsel is authorized to designate a Deputy Chief of Counsel, to whom he may assign responsibility for organizing and planning the prosecution of charges of atrocities and war crimes, other than those now being prosecuted as Case No. 1 in the international military tribunal, and, as he may be directed by the Chief of Counsel, for conducting the prosecution of such charges of atrocities and war crimes. 3. Upon vacation of office by the present Representative and Chief of Counsel, the functions, duties, and powers of the Representative of the United States and its Chief of Counsel, as specified in the said Executive Order No. 9547 of May 2, 1945, as amended by this order, shall be vested in a Chief of Counsel for War Crimes to be appointed by the United States Military Governor for Germany or by his successor. 4. The said Executive Order No. 9547 of May 2, 1945, is amended accordingly. HARRY S. TRUMAN THE WHITE HOUSE January 16, 1946 Appendix H OFFICE OF U.S. CHIEF OF COUNSEL GENERAL MEMORANDUM NO. 15 Subject: Organization for Subsequent Proceedings. 29 MARCH 1946 In order to expedite the preparation of subsequent cases and to assure continuity in their management, it has been agreed that a division shall now be set up in the Office of Chief of Counsel temporarily, but eventually to be transferred intact to Military Government, and that such division function under a Deputy Chief of Counsel who, upon retirement of the present Chief of Counsel, shall become Chief of Counsel for War Crimes under Military Government. Accordingly, the President of the United States on January 16, 1946 amended the Executive Order No. 9547 of May 2, 1945, which provided for representation of the United States in prosecuting war crimes, by adding: "... 2. The present Representative and Chief of Counsel is authorized to designate a Deputy Chief of Counsel, to whom he may assign responsibility for organizing and planning the prosecution of charges of atrocities and war crimes, other than those now being prosecuted as Case No. 1 in the International Military Tribunal, and, as he may be directed by the Chief of Counsel, for conducting the prosecution of such charges of atrocities and war crimes. "3. Upon vacation of office by the present Representative and Chief of Counsel, the functions, duties, and powers of the Representative of the United States and its Chief of Counsel, as specified in the said Executive Order No. 9547 of May 2, 1945, as amended by this order, shall be vested in a Chief of Counsel for War Crimes to be appointed by the United States Military Governor for Germany or by his successor." NOW, THEREFORE, I do hereby 1. Name and appoint Colonel Telford Taylor as Deputy Chief of Counsel and assign to him responsibility for organizing and planning the prosecution of charges of atrocities and war crimes other than those now being prosecuted as Case No. 1 in the International Military Tribunal as provided in Article 2 of the Executive Order. 2. Transfer to the jurisdiction of the said Deputy Chief of Counsel the Subsequent Proceedings Division created by General Memorandum No. 13 on January 12, 1946, subject however to the administrative control of the Executive Officer, Brigadier General Robert J. Gill. O.C.C. personnel which is no longer needed for the present trial may be assigned to the Subsequent Proceedings Division. Additional personnel necessary will be employed for or assigned to the Subsequent Proceedings Division and it is to be noted that certain restrictions applicable to O.C.C. personnel may not be applicable to the recruitment of new personnel which may be employed under Military Government regulations. All recruitment and activity of the Subsequent Proceedings Division is subject to the priority of Case No. 1 now pending. Nothing in this order affects the responsibility for conduct of Case No. 1 to its completion. Insofar as possible, separate records will be maintained of all personnel, salaries, expenses, and other administrative matters. |