DOING TV JUSTICE TO NUREMBERG?

By JOHN Q. BARRETT

"Reality" television is the rage, but the programming thankfully isn't all millionaire wannabes and island survivors. Beginning on July 16, TNT will present "Nuremberg," an original four-hour television movie on the Allied nations' 1945-46 prosecution of the principal Nazi leaders. The movie presents a central, timeless idea: nations can, through law, respond to and thus try to prevent the brutal excesses of aggressive war and genocide. Although the production could have been more historically accurate, its effort to teach Nuremberg is commendable.

At the end of World War II, the victorious Allies -- the U.S., Great Britain, France and the Soviet Union -- faced some very difficult questions. What should be done with Germany's industrialists, soldiers and public officials? More particularly, what should the Allies do with the Nazi leaders?

Although some urged summary executions, the Allies agreed to prosecute culpable individuals for their crimes. In May 1945, President Truman appointed Supreme Court Justice Robert H. Jackson to serve as U.S. Chief of Counsel for the prosecutions. That summer, Jackson and his counterparts, representing disparate legal systems, negotiated in London to create an International Military Tribunal. In August, the four Allies signed the London Charter, establishing the tribunal. They also gathered evidence, including huge quantities of official Nazi government records, and chose defendants. In October, an indictment was served on Germans representing each facet of the Reich, including Gestapo founder Hermann Goering (Hitler's second) and Albert Speer (Minister of War Production). The defendants were charged with conspiracy to commit aggressive war, crimes of aggression, war crimes and crimes against humanity.

The Allies chose to try the defendants at Nuremberg because, although the city was mostly rubble, it had a standing courthouse/prison complex and was not in Soviet-controlled Berlin. Nuremberg also had symbolic power because it had been the site of Hitler's massive rallies and the birthplace of his virulent anti-Jewish laws. In November 1945, Jackson opened the trial. Proceedings took more than half a year, with the core proof being Nazi documentation, although some witnesses testified. Jackson and others presented closing arguments in July 1946. In October, the Tribunal acquitted three defendants and convicted nineteen others, sentencing twelve to death. Within weeks, eleven were hanged. Although Goering had been sentenced to hang, he avoided the rope by committing suicide.

The story of Nuremberg is captured in the verbatim trial record published after the trial. The tale is also told in numerous books, including trial histories and memoirs and biographies of prosecutors and defendants. And Jackson's opening and summation speeches -- oratorical gems -- were broadcast, published widely and even sold on phonographic records during his lifetime. But Nuremberg has not, before now, been the subject of a major film. (For the record, "Judgment at Nuremberg," the 1961 classic starring Spencer Tracy and Burt Lancaster, depicts one of the "American trials," not prosecuted by Jackson, that followed the one and only IMT-Nuremberg trial.)

matter, there is much that the production gets right. The movie is strongest in the courtroom scenes, which is where the great achievements of Nuremberg actually took place. The courtroom set is authentic. Each defendant is played by an actor who could have been cloned from the Nazi original. Alec Baldwin becomes plausible as Jackson when he delivers his lines about moral responsibility. Jackson's cross-examination of the forceful Goering is based on the real transcript, as is Goering's final statement to the Tribunal. The testimony of Auschwitz commandant Rudolf Hoess is also chillingly true to the record.

In addition, the movie accurately depicts how Jackson proved his case and, for history, the reality of the Holocaust. Jackson demonstrated the defendants' guilt using Nazi documents and other objective evidence rather than the testimony of deal-making witnesses. In the movie, as in the real trial, Jackson plays film taken at liberated death camps in the spring of 1945. This evidence -- showers; crematoria; piles of bodies; emaciated survivors -- shocked and shaped world opinion at the time. The movie performs a real, if horrifying, public service by using the actual footage relied on by Jackson.

Nevertheless, the production is not without flaws, and as a legal historian, I found many. Nuremberg was a massive proceeding, with preparation and trial involving hundreds of lawyers, thousands of soldiers and tens of thousands of documents. But the film conveys the impression that Jackson largely went it alone, particularly against Goering. Jackson's senior colleagues, including key British prosecutor David Maxwell-Fyfe, are reduced to bit players. And Jackson's American deputies -- Robert Storey, John Amen, Thomas Dodd and Telford Taylor, who played major roles at the trial -- are mere movie extras. Meanwhile, Jackson's secretary, Elsie Douglas, is depicted as his key adviser, a trial strategist and, when the going gets tough, the prosecutorial spine of Nuremberg. That's more than a little hard to swallow. Whenever a complicated true story like this is brought to screen, simplification is impossible to avoid, and the number of characters must be whittled down to a reasonable number. But the screenplay could have been more patient here, and at least shown the trial work of a couple of the other lawyers.

The movie also fails to explain the tense relationship between Jackson and the American lead judge, Francis Biddle, who had been Attorney General under FDR. In the movie, as in fact, Truman fires Biddle as AG, then offers him the Nuremberg judgeship as consolation. What the TNT production does not disclose is that Jackson was Biddle's friend, close colleague and patron, helping Biddle succeed him as both Solicitor General and Attorney General. In the hierarchies of Washington power under FDR, Jackson was always the star who held the higher office. But the tables were turned at Nuremberg, with Jackson now Biddle's inferior for the first time, and their friendship suffered as suspicions, misunderstandings and genuine disagreements developed. Missing a great dramatic opportunity, the movie offers only glimpses of this interpersonal conflict. Biddle is simply made out to be an effete, rich SOB who was willing to help Nazis to hurt Jackson -- thin history and light television.

The movie's most extended annoyance is the Harlequin Romance-like focus on the liaison between Jackson, whose wife remained in Washington, and Elsie Douglas, a professional secretary at the Supreme Court for Jackson and later for Justice Felix Frankfurter. All are deceased, which freed the moviemakers to imagine what they pleased about the romance. And they seem to have imagined quite a lot. We can certainly doubt that Mrs. Douglas called Jackson "Robert" and then "Bob" in front of enlisted men and lawyers -- while supposedly coaching him on prosecutorial matters, no less. And we can see, in actual Nuremberg photographs, that actor Jill Hennessy (age 29 during the filming) is not exactly a ringer for Mrs. Douglas, who was, at Nuremberg, an attractive 44-year-old mother of a serviceman in the Pacific theater. We also know that Jackson spent Christmas Eve 1945 (a trial recess) at a religious service in Bethlehem, not giving Mrs. Douglas perfume and kissing her at a crowded Nuremberg party. In short, Hollywood might have thought all this was necessary to attract an audience to history, but a better Nuremberg movie would have taken the chance on more substantive fare.

Although the film commits numerous other oversights -- for instance, nearly ignoring the fashioning of the London charter, perhaps Jackson's greatest Nuremberg-related achievement -- it is unquestionably important because Nuremberg itself still matters so much. The Holocaust is still, for a distressingly large number of people, merely an assertion. But Nuremberg remains the proof. Nuremberg also established the model for prosecuting war crimes, and that model is operational again today at the International Criminal Tribunals for the former Yugoslavia and Rwanda. The Nuremberg model will further serve as the basis for the upcoming permanent International Criminal Court, a tribunal most nations are prepared to ratify despite mistaken objections by the United States Government.

And Nuremberg still matters because of its place in world history. It showed that power can avoid the call of mindless vengeance and choose the path of restraint, law and judgment. Nuremberg was, as Jackson put it in his opening, "one of the most significant tributes that power has ever paid to reason." Imperfect though it may be, TNT's "Nuremberg" is a praiseworthy effort to bring that tribute to the small screen.

John Q. Barrett, an associate professor at St. John's University School of Law in New York City, is writing a book about Justice Jackson at Nuremberg.

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