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Shofar FTP Archive File: people/e/eichmann.adolf/transcripts/Sessions/Session-002-02

Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-002-02
Last-Modified: 1999/05/28

Even when the attempt to nullify a judicial process is made
before the inception of the case, as Defence Counsel is
doing in this instance, there is no difference. The rule
which I have indicated applies not only to judicial
proceedings which have already been completed but also to
judicial proceedings which are still about to begin. This
was laid down in Leahy versus Kunkel, 1933, 4 Federal
Supplement, page 849. The facts appear on page 850. I quote
from the judgment:

     "The facts are stipulated and are briefly as follows:
     Petitioner was indicted by the grand jury of the
     Marshall County Circuit Court for bank robbery. He
     lives in Chicago. The sheriff of Marshall county,
     accompanied by one Indiana police officer and two
     police officers of the city of Chicago, arrested
     petitioner in Chicago without a warrant, took him to a
     detective bureau and locked him up. Thereafter he was
     handcuffed and placed in the sheriff's car and driven
     to Indiana. At South Bend he was placed in jail
     overnight      and the next morning he was taken to
     Marshall county, where a warrant of arrest was read to
     him. He was then taken to the Marshall County Circuit
     Court, where bond was fixed, and upon his failure to
     give the bond fixed by the court, was delivered for
     safekeeping on order of the court to respondent, who is
     warden of the Indiana State Penitentiary at Michigan
     City, Ind. He then filed his petition for writ of
     habeas corpus in the Marshall County Circuit Court,
     which petition was by the judge thereof dismissed and
     his case set for trial.
     "Petitioner contends, not without logic, that having
     been arrested without right and forcibly taken from the
     state of Illinois to the state of Indiana -
     `kidnapped,' in other words, with all the ugly
     terrifying meaning that word implies - he is entitled
     to be discharged, or at least returned to the State of

And this is the decision of the Court (I quote from the end
of the page):

     "The petitioner is here seeking by the exercise of the
     extraordinary remedy of habeas corpus to prevent his
     trial in a state court on the ground that his
     apprehension and subsequent arrest are illegal, and for
     that reason no jurisdiction exists in the state court,
     to put him on trial. "The law is well settled that a
     person charged with crime in one state, and who is
     found in and abducted from another state and brought
     into the state where he is indicted is not entitled to
     be discharged upon habeas corpus in a District Court of
     the United States. Neither the Constitution nor the
     laws of the United States entitle such person to a
     discharge. Pettibone versus Nichols..."

Presiding Judge:  Which Court is this?

Attorney General:  The United States District Court,
Indiana. A further case in which there arose the question of
illegal detention, arrest and transfer, as was argued, was
United States versus Insull, 1934, 8 Federal Supplement, on
page 310. And here are the facts which are somewhat strange.

I quote from the judgment:

     "Where defendant, a United States citizen, was, while
     on Greek vessel in Bosporus, forcibly seized by Turkish
     police, allegedly at instance of United States
     government, incarcerated in Turkish prison and then
     delivered onto American vessel to agent of American
     government and brought to United States where federal
     indictment against him was pending, federal court held
     not deprived of jurisdiction, even if offense was not
     within any extradition treaty between Greece or Turkey
     and the United States, and court had no power to
     inquire into such alleged facts."

There the applicant argued exactly the same point which
Defence Counsel has taken here. I quote from page 312:

     "The defendant contends that a treaty is involved, and
     that the government of the United States of America
     cannot enter the jurisdiction of a sovereign nation
     with which it had a treaty governing the extradition of
     fugitives from justice, and, without pretending to
     comply with the proceeding provided for in such treaty,
     by its agents forcibly seize an alleged fugitive, and
     by force and without the consent of such alleged
     fugitive bring him into the jurisdiction of a District
     Court of the United States of America for trial."

And the view of the Court appears on page 313:

     "If the rights of the defendant have been violated, or
     the peace or dignity of the Hellenic Republic or Turkey
     trespassed upon, that is not a matter for this court,
     even assuming that the offense for which the defendant
     stands charged is not within the treaty, if one
     existed, between the countries; and the mere fact, if
     true, as stated by the defendant, that he was kidnapped
     from the Hellenic Authorities, would not give this
     court power to examine such fact, and, if true, release
     the defendant. The court has no such power. That is a
     matter which rests between the defendant and the
     parties abducting him, or between the political powers
     of the governments of Turkey or the Hellenic Republic
     and that of the United States...
     "If either the Hellenic Republic or Turkey, by proper
     complaint, sought to vindicate its laws by protesting
     against the kidnapping of this defendant within its
     territory, it is reasonable to assume that the United
     States would enter into such negotiations with those
     countries as would secure justice for all parties

May I be permitted to break off here and say that the State
of Israel entered into negotiations with the Government of
Argentina in regard to the detention and arrest of Adolf
Eichmann and following the decision of the Security Council
on the subject, an official announcement was published on
3 August 1960 in Jerusalem and Buenos Aires by the
Governments of Israel and Argentina showing the incident to
be closed. I submit here the certificate of a public
official signed by Mr. Shabtai Rosenne, an Israeli
Ambassador, Legal Adviser to the Ministry for Foreign
Affairs, containing the joint official statement. The
statement is in Spanish and was so published.

Presiding Judge:  We mark this document T/4.

Attorney General:  I shall immediately submit to the Court
or shall read the Hebrew translation of the Spanish text.

Presiding Judge:  I think it is possible to understand it.

Attorney General:  Thank you. The Court will save me the
trouble. Perhaps I shall read it for the record:

     "The Governments of Israel and of the Republic of
     Argentina, imbued with the wish to implement the
     resolution of the Security Council of 23 June 1960, in
     which the hope was expressed that the traditionally
     friendly relations between the two countries will be
     advanced, have decided to regard as closed the incident
     that arose out of the action taken by Israel nationals
     which infringed the fundamental rights of the State of

Not that this is important to this case. The Court could
continue its proceedings even if differences continued to
exist between us and the State of Argentina; and even if the
State of Argentina were to take action against us before the
International Court at the Hague, this court would still be
competent to try Adolf Eichmann.

I also want to show that even from the point of view of
International Law and the possibility of a conflict over
jurisdiction, no such conflict exists. And in the words of
the judgment in the case United States versus Insull, the
State of Argentina demanded its rights and insisted that
there had been a violation of its sovereignty, and the
Government of Israel apologized therefore, and in this way
the incident was closed.
When the problem again came up in the United States, in the
year 1944, in the matter of Sheehan versus Huff 1944, 142
Federal Second, page 81 - this was already in the U.S. Court
of Appeal, District of Columbia - the facts were as follows:

     "Petition for writ of habeas corpus alleging that,
     prior to trial in criminal prosecution, petitioner was
     brought from Virginia to the District of Columbia
     without extradition proceedings in spite of his protest
     and his unwillingness to waive extradition, presented
     no substantial question, and denial of petition without
     appointment of counsel for defendant was not error."

It was not even necessary to appoint a lawyer for the
accused who made such a claim - thus the Appeal Court
decided. This was not even considered to be an `error'
requiring the intervention of the Appeal Court.

On page 81 we read:

     "Counsel for petitioner, appointed by this court to
     represent him on appeal, has filed a persuasive brief.
     It admits that the Supreme Court has decided that
     jurisdiction in a criminal case is not impaired by the
     fact that the accused was brought before the court in
     an unlawful manner, but urges these decisions should
     not be followed. We believe however, that the question
     is so well settled that it cannot be reopened here."

A case somewhat reminiscent of our case, at least from the
factual view, even if not fully analogous in its legal
implications is: Chandler versus United States, 1949, 171
Federal Second, page 291. There is a certain discrepancy in
the facts because that was a case of treason. Chandler was
so convinced by anti-Semitic propaganda that he decided to
defect to Nazi Germany. And this is what is said on page

     "Over the years Chandler had developed an anti-Jewish
     outlook; and his fierce emotions on that theme were
     accentuated by certain personal setbacks which he
     attributed to malignant Jewish interference. He came to
     believe, or to profess to believe, in the existence of
     a sinister worldwide Jewish conspiracy. Naturally he
     found the anti-Jewish climate of Nazi Germany
     congenial. While in Germany before the War his interest
     was cultivated by one Hoffman, an attache4in the German
     Press Department, serving as contact man for  foreign
     journalists. He was favorably impressed with what he
     saw in Germany and came to regard the Nazi regime as
     the bulwark of Western civilization against what he
     thought to be the Jewish-Bolshevist menace."

On page 933 facts are set out relating to an illegal arrest,
in Chandler's opinion, in Germany.

Presiding Judge:  By whom was he arrested there?

Attorney General:  By the American Army.

On page 934 it is stated:

     "It is said that the manner in which the court below
     acquired jurisdiction of the defendant violated the law
     of the forum in three particulars, that is to say, (1)
     it violated the terms of the extradition treaty between
     the United States and Germany; (2) apart from treaty,
     it violated the right of asylum guaranteed by
     international law to political offenders; and (3) it
     violated the Act of June 18, 1878, Stat. 152. 10
     U.S.C.A. 15, prohibiting the use of the army of the
     United States as a posse comitatus."

The Court did not accept any one of these arguments, decided
that the trial would proceed lawfully, and that the judgment
given by the Court below was legal.

Another Nazi collaborator who was also brought against her
will from Germany to the United States, Mrs. Gillers,
advanced the same argument: Gillers versus U.S.A. Federal
Second 1950, page 152. I will not read from this judgment -
I shall merely draw your attention thereto: It follows along
the lines of the same rule.

The law has been briefly summed up, shortly and clearly in
two new judgments. One is Pebly versus Knotts, 1951, 95
Federal Supplement, page 283. I draw the Court's attention
to what is stated on page 286 without quoting it. The other
case is Dean versus Ohio, 1952, 107 Federal Supplement, page
937. On page 939 it is stated, and I read from the judgment:

     "In passing on the subject of the petitioner's
     extradition to Ohio it should be noted that it is
     virtually a universal rule that where an accused is
     found in a jurisdiction wherein he is charged with a
     crime, the circumstances surrounding his actual
     presence within that jurisdiction will not be inquired
     into. If he was brought from another jurisdiction by
     kidnapping, stratagem or illegal extradition he may
     still be tried if he is presently being held under
     process legally issued from a court of that

The same issue again came before the United States Supreme
Court in 1952 in Frisbie versus Collins, 1952, 96 Lawyers
Ed. On page 541 Justice Black, who read the judgment, said -
and I am reading from page 544:

     "Acting as his own lawyer the respondent Charles
     Collins brought this habeas corpus case in a United
     States District Court seeking release from a Michigan
     State prison where he is serving a life sentence for
     murder. His petition alleges that while he was living
     in Chicago, Michigan officers forcibly seized,
     handcuffed, blackjacked and took him to Michigan. He
     claimed that trial and conviction under such
     circumstances is in violation of the Due Process Clause
     of the Fourteenth Amendment and the Federal Kidnapping
     Act, and that therefore his conviction is a nullity."

On page 545 Justice Black says briefly:

     "This court has never departed from the rule announced
     in Ker versus Illinois, 119 US 436, 444, 30 L. ed. 421,
     7 S CT 225, that the power of a court to try a person
     for crime is not impaired by the fact that he had been
     brought within the court's jurisdiction by reason of a
     `forcible abduction.' No persuasive reasons are now
     presented to justify overruling this line of cases."

If this is the situation in the United States, the State
which - as I have already said repeatedly - is exceedingly
sensitive to relations between States, between the Federal
States of the Union, and between foreign powers, then that
same principle applies with the same force, the same
unchallengeable certainty in this Court. Adolf Eichmann is
legally arraigned before you in this Court, in terms of a
committal order issued by legal process. He has been given
notice of the charges against him legally, an indictment has
been preferred against him according to law, the crimes
attributed to him are offences according to the law of this
country. He has been given the full opportunity to prepare
his case; he will have a full opportunity to conduct his
defence - if he has anything to say in his favour - and the
circumstances in which he was brought here are of no concern
to this Court. It is not relevant and has nothing to do with
us here.

Consequently, I ask that the witnesses whom Defence Counsel
wanted to call be not heard, since their evidence will not
cast any light on any problem which this Court is required
to determine. Their evidence will not cast any light on the
guilt or innocence of the crimes of Adolf Eichmann,
according to any of the counts in the indictment. And this
is the relevant issue. Even where in a hypothetical case he
would have succeeded in eliciting from these witnesses
everything he hopes to establish - this would make no
difference whatsoever to your decision. And with all due
respect I say: your decision ought to be to proceed with the
trial according to the indictment which has been legally

With the Court's permission I should like to pass, now, to
an analysis of other arguments, if we still have the time

Presiding Judge:  I think we will continue until 18:30.
Attorney General:  I would like to request a short interval
of a few minutes.

Presiding Judge:  Generally we shall not have breaks during
the afternoon sessions. I presume you have a good reason for
requesting such a break? We shall recess for ten minutes.

Attorney General:  May it please the Court. The legal
problem relating to the punishment of Nazis and their
collaborators is an outcome of a unique and special
development in the history of law. For Nazi Germany abused
the sacred principles of the maintenance of law generally,
and by means of a series of unprecedented crimes created a
vacuum, a legal chaos, an abdication of the law, in the same
way as it created political and military chaos by means of
abandoning all international obligations, and first and
foremost its obligation to preserve the peace.

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