By Joseph P. Bellinger
Background:
Rudolf Höss, Commandant of Auschwitz from 1940 - 1943
was captured by the British on March 13, 1946. Affadavits written and signed in
English were forced from Höss on several occasions. Although in regard to the
charges of "crimes against humanity" Höss was arguably the most
important prisoner, his role at Nuremberg was not as one of the convicted by as
a defense witness for Ernest Kaltenbrunner. Today Höss' confession obtained
through torture along with his testimony at Nuremberg and his later
"memoirs" written while awaiting execution in a Polish prison cell
make up some of the most important evidence to support the Holocaust story.
Establishment historians tend to ignore the methods used to obtain the Höss
"confessions." Revisionist historians have argued for years that the
Höss "confessions" are basically worthless due to how they were
obtained.
Since so much
of the Höss testimony was derived for a court of law or became part of the
legal record, it is only fair that the proper legal implications of his
torture, which included threats to his direct family members, be reviewed.
Threats to
Höss' Family
Point 1:
"In 1884,
the Court reviewed a federal criminal conviction in Hopt v. People of Territory
of Utah, 110 US 574. It explicitly recognized that there was a common law rule
prohibiting the use of confessions obtained by inducements, promises and
threats. Because of their inherent unreliability, such confessions were not
admitted into evidence."
Protection
against confessions obtained by inducements, promises and threats subsequently
was enlarged so that protection against all involuntary confessions was
provided. (See: Ziang Sung Wan v. United States, 266 US, 1 (1924)
Höss beaten by
his Captors-a flashlight shoved down his throat
Point 2: In
Brown vs. Mississippi, 297 US 278 (1936) :
"Summarily
reversing convictions obtained in the state court, the Supreme Court found that
severe whippings, used to procure confession from helpless defendants, made the
confessions involuntary and violated basic due process rights. In reaching its
decision, the Court emphasized the unreliability of confessions extracted by
torture and, referred to the confessions in Brown as "spurious."
Hoess Deprived
Of Sleep And Harassed
Point 3: In
considering circumstances of physical deprivation or mistreatment, the Court
not only disapproved of severe brutality like that found in Brown, supra, but
also of the denial of food, Payne, supra, (accused was given no food for 24
hours), or sleep, Aschcraft v Tennessee, 322 US 143 (1944) defendant was not
permitted to sleep for 36 hours.
Hoess Subjected
to Psychological Torment by G.M. Gilbert et al.
Point 4: A
third fact, psychological influence, was also accorded great weight by the
Court. Although the Court stated that a voluntary statement need not be
volunteered, it refused to hold that only physical brutality was impermissible.
In Watts vs Indiana, 338 US 49, 53 (1949), the Court said that:
"if the
confession is the product of sustained pressure by the police, it does not
issue of free choice. When a suspect speaks because he is overborne, it is
immaterial whether he has been subjected to a physical or mental ordeal.
Eventual yielding to questioning under such circumstances is plainly the
product of the suction process of interrogation and therefore the reverse of
voluntary."
Hoess et al.
Denied the Right to Consult With Family, Friends and Counsel
Point 5: In
Watts, as in Haley v. Ohio, 332 US 596 (1948), and numerous other cases, the
Court paid special attention to whether the accused was denied the aid of
family, friends, or counsel. Incommunicado confinement consistently was viewed
as coercive. Another form of psychological influence was trickery. Note: See generally White, Police Trickery in
Inducing Confessions, 127 U. Pa. L. Rev. 581 (1979).
Furthermore:
Threats to
Deport the Family of Hoess to the USSR Illegal
"The Court
also recognized the pressure inherent in such psychological techniques as sustained
interrogation, Ashcraft, supra, and the threat of mob violence. [In Höss' case,
the threat of handing his family over to the Russians would qualify] Payne,
supra, (defendant was told that 30 or 40 people would be waiting to get him
unless he confessed). The Court was also concerned about rewards and
inducements to confess, which had been condemned in Hopt, supra. New techniques
as well as old were carefully scrutinized. For example, in Leyra v Denno, 347
US 556 (1954), the Court took exception to the use of a trained psychiatrist to
extract a confession through skillful and suggestive question." (RE:
HOESS: see: Gustav Gilbert, et al., etc.)
Denial of
Counsel of His Choice Before and During Interrogation
Point 6: Höss
was interrogated without benefit of counsel. "the Court considered whether
the accused (Leyra v Denno) was aware or had been appraised of his "right
to counsel, as well as his right to remain silent.
The Case of
Hoess et al. Subject to Reversal
Point 7: In
reviewing confession cases, the Court made it clear that it would overturn a
finding that a confession was voluntary if there was undisputed contrary
evidence in the record. Chambers v Florida 309 US 227, 228, (1940)
Point 8:
"the
voluntariness standard required a case by case scrutiny of the circumstances
surrounding a particular confession to determine if the methods by which it was
obtained comported with due process. The Court considered both the police
conduct in procuring the confession and the defendant's ability to withstand
coercion: therefore, the 'totality of the circumstances' test that was set
forth in Fikes v Alabama, 352, US 191 (1957) was determinative of the
voluntariness of the confession."
Reversal Even
If Accusations True
Point 9:
"It soon
became the rule that even if sufficient evidence existed from sources
independent of the confession that the accused committed the crime as charged,
the dent of the confession that the accused committed the crime charged, the
conviction was still to be reversed if a coerced confession had been admitted
at trial."
Höss' first
confession was not admitted at his trial in Poland, but another confession
which had been obtained by similar methods used by his communist interrogators—Note: However, such confessions were admitted
during the Malmedy trial—a clear violation of human rights and due process). On
these issues see: Payne v Arkansas, 356 US 560, 568 (1958)
Use of Torture
Described as Barbaric
Point 10:
"The use
of torture and other barbaric practices to elicit confessions was not confined
to American police stations. European police were known to employ tactics that
were as offensive to human dignity as those used in America. Thus, following
world war II, it was not surprising that France, Germany and Italy adopted
exclusionary rules to cover evidence obtained by due process violations. SEE
generally Pakter, Exclusionary Rules in France, Germany and Italy, 9 Hastings
Int'l & Compar. L. Rev. 1, 7 (1985).
This point is
important because it confirms that an accused right's were violated prior to
this date (as well as afterward).
Hoess Was
Denied Counsel at the Time His Confession Was Taken
SPANO v. NEW
YORK:
"Four
concurring judges expressed greater concern about the fact that the defendant
Spano had been indicted and was refused permission to see his attorney than
about the voluntariness of the confession under the totality of the
circumstances.
Federal
Standards the Same
Finally, it
must be noted that during the period that the state confession cases were
decided under the voluntariness approach, federal cases were governed by an
identical standard. A coerced confession that violated the due process clause
of the 14th Amendment also violated the due process clause of the 5th
amendment. But in Federal Court, a confession might even be rejected even
without a finding of coercion!
Conclusion: The
legal and human rights of Rudolf Höss and other accused German defendants were
denied, as was due process. The IMT had been specifically formed de post facto
according to principles which contravened all conventional rights and other
accepted rules relating to due process during the course of the trials held in
Germany, Russia, Poland, et al., in the period 1945-1965, which were a
perversion of justice and a betrayal of the legal process.
According to
British historian Bradley F. Smith, The Road to Nuremberg, Basic Books,
NY, 1981, p. 56:
"[General Cramer, Judge Advocate General]
recommended that the normal trial procedures and evidentiary systems used in
military courts, which were already highly favorable to the prosecution, should
be tipped even further in that direction. In war crimes
trials 'all evidence which has probative force in the minds of
reasonable men' should be made admissible, and defendants would lose the right
of appeal. All sentences, including death sentences, were to be 'executed
within 24 hours'." (emph. added)
Also, according
to the same source cited above, when Colonel R. Ammi Cutter, an attorney
temporarily on duty in the war department, examined the trial procedures which
were recommended by another young attorney of Jewish descent (Murray C Bernays)
who was related to Supreme Court Justice Felix Frankfurter,— he at first
described the proposals as "ingenious," but he was troubled by the
"fairly radical departures from existing legal theories" that it
embodied."
Nevertheless,
Bernay's "Conspiracy" theory was eventually adopted by the allied
governments. Furthermore, other groups had taken an interest in the trials.
According to Smith:
"On 5
October, Bernays took the opportunity at a routine conference with Green
Hackworth, the State Department Legal Chief, to put before him the essential
features of his plan. Hackworth, who had been holding to a rigidly conservative
definition of what constituted a war crime, had recently come under heavy
pressure to find a more elastic interpretation which would meet the demands of groups
such as the American Jewish Conference and the War Refugee Board." (p. 57)
Note: The WRB
was accused of being a communist front organization and had been formed by
Henry Morgenthau junior, who was also of Jewish descent and a close advisor to President
Roosevelt.
In fact, every
right which we today hold as inalienable was suppressed by the allies when the
issue involved the prosecution of accused Germans. Again, according to Smith,
(Department) G-1
"recommended
amending the provisions of the American Rules of Land Warfare (FM 27-10),
relating to an appeal to superior orders as a covering defense against
conviction in military courts… Since the British had already amended their
Manual of Military Law in this sense, the JAG officer thought it only
reasonable that the Americans do the same so that we should not furnish the war
criminals with ammunition." (!)
This grotesque
act was approved just prior to the end of the war, in order to deny accused
Germans a legal basis from which to conduct their defense when arrested and
charged by the allies.
In other words,
strip away all pretenses to human rights and judicial process and deny the
accused the opportunity to conduct a proper defense against monstrous charges
and accusations which would take more than the "Dream Team" to
successfully contest. Much like tying a boxer's hands behind his back before
sending him into the ring. Justice?
NOTE: All legal
quotes cited in this post are from: American Criminal Procedure, Cases and
Commentary, Stephen A. Saltzburg, 3rd edition, American Casebook Series,
1988 pp. 447-451.
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