Telford Taylor

On the morning of 17 October 1946, the day after the executions in the Nuremberg gymnasium, a thirty-eight-year-old American lawyer named Telford Taylor was promoted to brigadier general by an order signed personally by President Truman. The promotion was administrative. It made Taylor outrank the senior surviving German officers he was about to prosecute. It also made him, in the same week, the chief of counsel for the twelve trials of the Nazi medical, legal, industrial and military leadership that the United States had committed to bringing under Control Council Law No. 10. Robert Jackson had returned to the Supreme Court. The four-power International Military Tribunal had finished its work. What followed at Nuremberg between December 1946 and April 1949 was Taylor’s responsibility, and it would prove to be one of the most ambitious legal undertakings of the twentieth century, and one of the most politically opposed.

Taylor had served under Jackson at the IMT as the head of the case on the German General Staff and the High Command. He had cross-examined Wilhelm Keitel and Alfred Jodl. He had built the documentary case on the Wehrmacht’s transmission of the Commissar Order and the Barbarossa Decree. The promotion was a recognition that he could carry the work forward. The brief he inherited was substantial. The political environment in which he would have to do it was much harder than the one Jackson had worked in. By late 1946 American policy was already shifting toward the rebuilding of West Germany as a Cold War ally. The trials Taylor ran would put on trial the men the new West German state would, within five years, be lobbying to release.

The work

Between December 1946 and April 1949 Taylor’s office prosecuted twelve cases against 185 defendants. The Doctors’ Trial against Karl Brandt and twenty-two others on medical experimentation; the Justice case against the senior judges and Reich Ministry of Justice officials; the Flick, IG Farben and Krupp cases against the industrial leadership; the Einsatzgruppen case against the senior officers of the mobile killing units; the Hostages and High Command cases against the army leadership; the RuSHA case against the SS Race and Settlement Main Office; the Pohl case against the SS Economic and Administrative Main Office; the Ministries case against the senior civil service; the Milch case against the deputy chief of the Air Ministry. The cases together produced 142 convictions, twenty-five death sentences, twelve executions and the fifteen volumes of Trials of War Criminals before the Nuernberg Military Tribunals, the green series, that run to over thirty thousand pages of evidence and judgment.

Taylor delivered the openings and the closings of several of the cases himself. His opening at the Einsatzgruppen trial on 29 September 1947 has been quoted in every subsequent international criminal proceeding involving genocide:

The killing of defenseless civilians during a war may be a war crime, but the same killings are part of another crime, a graver one if any be possible, namely genocide, or a violation of the law of nations. The objective in the case at bar is the destruction of national, ethnic, racial, religious and political groups. The destruction may be carried out by killing the people who make up these groups; or in other ways such as confining them in conditions of life that bring about death.

His closing in the same case set out the proposition that the men in the dock had not been swept up by an irresistible historical force but had made specific choices for which they bore personal responsibility:

The defendants in this case did not just kill people, they killed people of a specified type, members of specified groups. The objective was the destruction of the group as a group. Therein lies the offense.

His opening at the Justice case in March 1947 contained the phrase that has become attached to that trial: that under the regime the dagger of the assassin had been concealed beneath the robe of the jurist. Taylor had taken the image from a speech by the Reich Minister of Justice Otto Thierack. He used it to anchor a case that put on trial the corruption of an entire profession.

The political pressure

Taylor worked under sustained political pressure from his own government to wind the trials up. The pressure came from the State Department, from the office of the American Military Governor in Germany, from members of Congress, and from German political and ecclesiastical figures who had been allowed direct contact with American officials. By late 1948 the High Commissioner for Germany John J. McCloy was preparing for the post-occupation period and was advised on all sides that the trials were obstructing the rebuilding of West Germany. McCloy and his deputies were sympathetic to the advice.

Taylor refused to be hurried. He continued to file cases until the last of his indictments was lodged in early 1948. He continued to argue in his Final Report to the Secretary of the Army, delivered in August 1949, that the trials were the indispensable foundation for any postwar German recovery that could be built without inheriting the lies of the regime. He wrote, with notable directness for a brigadier general’s official report:

The defendants in these trials were the men who took the major part in the planning and execution of the Nazi war and occupation policies, including the deliberate extermination of millions of human beings. To say that they have been adequately punished is grotesque. To say that the trials have made the world a better place may be optimistic. To say that they have established a record without which the German people, and the world, would have nothing to learn from is, I think, the only honest claim that can be made for them.

The clemency campaign began the moment Taylor’s office closed in April 1949. McCloy commuted most of the death sentences in 1951, reduced almost every prison term, and let Krupp out with his property restored. By the end of 1958 every man convicted in the Subsequent Proceedings had been released. Taylor watched the unmaking of his work over the following decade and wrote about it. His 1970 book Nuremberg and Vietnam: An American Tragedy applied the Nuremberg principles to American conduct in Vietnam, including the bombing campaigns and the My Lai massacre, and was the first sustained attempt by a senior American legal figure to argue that the principles he had helped establish in 1945 to 1949 cut against his own country’s later conduct.

Afterwards

Taylor returned to private practice and academic life in 1949. He taught at Columbia Law School from 1958 until his retirement in 1976 and served as a visiting professor at Cardozo Law School in New York. He represented Soviet dissidents during the 1970s and was a leading American voice in opposition to the war in Vietnam. He wrote a major biographical study of the Munich settlement, Munich: The Price of Peace (1979), and his memoir of the IMT, The Anatomy of the Nuremberg Trials, was published in 1992. The book is the most authoritative single account of the IMT in print and remains in the reading lists of every international criminal law programme.

He died in May 1998 at the age of ninety. His New York Times obituary noted that he had spent the last fifty years of his life applying the standards he had helped establish at Nuremberg to the conduct of his own country and that he had lost more arguments than he had won. The Nuremberg principles he had pressed into the legal record between 1946 and 1949 have outlived almost everyone he tried, almost everyone he prosecuted alongside, and almost every government that opposed him. They are the law of nations. They are partly his work.

See also

Sources

  • Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, U.S. Government Printing Office, 1949
  • Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, Knopf, 1992
  • Telford Taylor, Nuremberg and Vietnam: An American Tragedy, Quadrangle, 1970
  • Trials of War Criminals before the Nuernberg Military Tribunals, the Green Series, 15 vols, U.S. Government Printing Office, 1949 to 1953
  • Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, Cambridge University Press, 2009
  • Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, Greenwood, 1989