MR. JUSTICE JACKSON: I do not 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 national 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?
MR. 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 do not know what camp it is that was referred to yesterday as substantially refusing counsels’ application to see their clients—but so far 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 that 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 cannot just walk into a camp and make himself at home. He will have to be cleared in advance so that he meets 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 should 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 repeat one or two of those. Most of them are directed for the purposes of this argument, which, I take it, is to form some kind of definition of the organizations, 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.
You said that you would suggest excluding clerks, stenographers, and janitors in the Gestapo. Well, now, if we accepted that, would we not be obliged to exclude such categories from other criminal organizations?
MR. JUSTICE JACKSON: Not at all, Your Honor. I think there is a difference between a concession by the Prosecution and the necessity for the Tribunal’s making a decision.
It might appear logical that if we conceded clerks, stenographers, and janitors of the Gestapo were not to be included, that no clerks, stenographers, or janitors should be included. It does not follow. The relationships in different organizations differ.
From what we know about the Gestapo situation, we are satisfied that clerks, stenographers, and janitors in that organization ought not to be included, and we do not want to waste any time on it.