Telegram from John McCloy to UK Commanding General, April 13, 1945, War Crimes File, Rosenman Papers, Harry S. Truman Presidential Museum & Library
The State Department draft memorandum intended for the Soviet Ambassador clearly sets out the legal principles to be used at Nuremberg. The two principles are Conspiracy and RICO. Any U.S. Attorney of 1945 would have been well-versed in Conspiracy prosecution. RICO, or “Racketeer Influenced Corrupt Organizations,” was unknown. It was, in fact, invented by the War Department memo that was the forerunner of this diplomatic memorandum.
Under principles of common law, and now codified in Federal and most state criminal codes, a conspiracy consists of the following:
1) An agreement between two or more persons to commit a felony, and
2) An overt act by any party of the conspiracy in furtherance of the agreement.
All parties to a conspiracy are liable for any and all acts of co-conspirators. Further, as an evidentiary matter, statements of co-defendants made in furtherance of the agreement would normally be considered hearsay and subject to exclusion as the co-defendant could not be cross-examined regarding his out of Court statement. However, in a conspiracy prosecution, all statements of co-conspirators in furtherance of the conspiracy are admissible in court against every member of the conspiracy.
The RICO theory of prosecution is now largely used as an outgrowth of traditional conspiracy prosecution, and is now most commonly used in prosecution of organized crime. It expands upon the common law notion of conspiracy to cast a much wider net. Under traditional conspiracy prosecution, the state has to specify the specific felony intended to be committed, and show that all defendants were parties to that agreement to commit the specific felony. RICO prosecution makes membership in an organization whose purpose was criminal in nature a crime in itself. In other words, just being a member of a mob family or gang, which primarily exists to commit crimes, makes you a criminal subject to prosecution and punishment.
This diplomatic memo is taken from an internal War Department memo drafted in September, 1944 by Murray Bernays, a Columbia law school graduate who was working “special projects” for the War Department. He was tasked with coming up with a legal theory of war crimes prosecutions, and this is the result. He did not want to get bogged down with finding witnesses and trying each and every individual death camp guard for specific acts of murder. Instead, his brilliant idea was that the entire Nazi Party and Nazi state had been one gigantic criminal enterprise, and membership and participation automatically made every member guilty of the all of the acts of the entire organization.
Murray Bernays was the conceptual father of all of the Federal RICO statute adopted in 1970, and by most states during the 1970s.
In 1945, however, there were a number of hurdles to get over. First, the legal systems of the USSR, France and Germany did not recognize the concept of a conspiracy prosecution. Only the British did. And the concept of just being a member of the organization conferring criminal culpability was a radical leap beyond anything legally argued before. There were also a number of concerns that this theory was “ex post facto,” or developing a law to charge after the crimes were committed. Also, how far do you go? Is every German “guilty” of war crimes? Such matters were subject to much internal debate before this diplomatic memo was drafted. It looks like that internal debate was resolved.
However, the problems of “ex post facto” prosecution, and selective prosecution, would haunt the Tribunal all through the proceedings.
The possibility of applying the draconian sanctions of RICO to defendants liable for civil wrongs has bedeviled the courts since the 1970’s. It can turn a civil dispute into a company killer.
Telegram from John McCloy to UK Commanding General, April 13, 1945, War Crimes File, Rosenman Papers, Harry S. Truman Presidential Museum & Library