A Tap on the Shoulder
The table in the conference room held five stacks of files and papers, neatly arranged and yellow and crisp with age. Behind them sat an elderly gentleman named Ludwig Altstötter, rosy-cheeked and cherubic. Ludwig is the son of Josef Altstötter, the lead defendant in the 1947 case United States of America v. Josef Altstoetter et al., which was tried in Germany before a U.S. military tribunal. The case is famous because it appears to be the only one in which lawyers have ever been charged and convicted for committing international crimes through the performance of their legal functions. It served as the inspiration for the Oscar-winning 1961 movie Judgment at Nuremberg, whose themes are alluded to in Marcel Ophuls’s classic 1976 film on wartime atrocities, The Memory of Justice, which should be required viewing but has been lost to a broader audience. Nuremberg was, in fact, where Ludwig and I were meeting.
The Altstötter case had been prosecuted by the Allies to establish the principle that lawyers and judges in the Nazi regime bore a particular responsibility for the regime’s crimes. Sixteen lawyers appeared as defendants. The scale of the Nazi atrocities makes any factual comparison with Guantánamo absurd, a point made to me by Douglas Feith, and with which I agree. But I wasn’t interested in drawing a facile comparison between historical episodes. I wanted to know more about the underlying principle.
Josef Altstötter had the misfortune, because of his name, to be the first defendant listed among the 16. He was not the most important or the worst, although he was one of the 10 who were in fact convicted (4 were acquitted, one committed suicide, and there was one mistrial). He was a well-regarded member of society and a high-ranking lawyer. In 1943 he joined the Reich Ministry of Justice in Berlin, where he served as a Ministerialdirektor, the chief of the civil-law-and-procedure division. He became a member of the SS in 1937. The U.S. Military Tribunal found him guilty of membership in that criminal organization—with knowledge of its criminal acts—and sentenced him to five years in prison, which he served in full. He returned to legal practice in Nuremberg and died in 1979. Ludwig Altstötter had all the relevant documents, and he generously invited me to go over them with him in Nuremberg.
I took Ludwig to the most striking passage in the tribunal’s judgment. “He gave his name as a soldier and a jurist of note and so helped to cloak the shameful deeds of that organisation from the eyes of the German people.” The tribunal convicted Altstötter largely on the basis of two letters. Ludwig went to the piles on the table and pulled out fading copies of the originals. The first, dated May 3, 1944, was from the chief of the SS intelligence service to Ludwig’s father, asking him to intervene with the regional court of Vienna and stop it from ordering the transfer of Jews from the concentration camp at Theresienstadt back to Vienna to appear as witnesses in court hearings. The second letter was Altstötter’s response, a month later, to the president of the court in Vienna. “For security reasons,” he wrote, “these requests cannot be granted.” The U.S. Military Tribunal proceeded on the basis that Altstötter would have known what the concentration camps were for.
http://www.vanityfair.com/politics/features/2008/05/guantanamo200805?currentPage=8
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