[Congressional Record Volume 142, Number 74 (Thursday, May 23, 1996)]
[Extensions of Remarks]
[Pages E887-E888]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   JUSTICE STEPHEN BREYER'S ADDRESS FOR THE 1995 DAYS OF REMEMBRANCE 
                                CEREMONY

                                 ______


                            HON. TOM LANTOS

                             of california

                    in the house of representatives

                         Thursday, May 23, 1996

  Mr. LANTOS. Mr. Speaker, on April 16, Members of Congress, members of 
the diplomatic corps and hundreds of survivors of the Holocaust and 
their friends gathered here in the Capitol Rotunda for the Days of 
Remembrance ceremony. The U.S. Holocaust Memorial Council was 
established by Congress to preserve the memory of the horrors of the 
Holocaust. I commend the Council and the members of the Days of 
Remembrance Committee, chaired by my good friend Benjamin Meed, for 
their vigilant and genuine adherence to their extraordinarily important 
task.
  One of the first acts of the committee was to establish the Days of 
Remembrance ceremony to mirror similar ceremonies held in Israel and 
throughout our Nation and the World. This year, the Days of Remembrance 
ceremony centered on the 50th anniversary of the Nuremberg trials. The 
ceremony was a reminder of the difficult process of first coping and 
their healing that all survivors and process of first coping and then 
healing that all survivors and their families and loved ones had to 
endure.
  At this ceremony I was touched by the especially poignant words of 
Associate Justice Stephen Breyer. Throughout his life he has committed 
himself to the guidance of education and the principal of justice. 
These were the principles that he chose to speak of, so eloquently, 
during the ceremony.
  Therefore, it was befitting that a leader from the highest court of 
our land address the ceremony commemorating the triumph of justice over 
barbarity. Justice Breyer stands as a symbol of our country's fervent 
commitment to the rule of law. His remarks commemorating the 50th 
anniversary of the Nuremberg Trials will endure as a tribute to those 
who championed the forces of justice, compassion and equality in an 
environment where those same qualities were callously disregarded. I 
ask by colleagues to join me congratulating Justice Breyer on his 
excellent speech; may its wonderful and inspirational message find its 
way into the hearts and minds of individuals around the world.

                Crimes Against Humanity, Nuremberg, 1946

          (By Stephen Breyer, Associate Supreme Court Justice)

       The law of the United States sets aside today, Yom Hashoah, 
     as a Day of Remembrance--of the Holocaust. On Yom Hashoah 
     1996, we recall that fifty years ago another member of the 
     Court on which I sit, Justice Robert Jackson, joined 
     representatives of other nations, as a prosecutor, at 
     Nuremberg. That city, Jackson said, though chosen for the 
     trial because of its comparatively will-functioned physical 
     facilities, was then ``in terrible shape, there being no 
     telephone communications, the streets full of rubble, with 
     some twenty thousand dead bodies reported to be still in it 
     and the smell of death hovering over it, no public 
     transportation of any kind, no shops, no commerce, no lights, 
     the water system in bad shape.'' The courthouse had been 
     ``damaged.'' Its courtroom was ``not large.'' Over one door 
     was ``an hour glass.'' Over another was ``a large plaque of 
     the Ten Commandments''--a sole survivor. In the dock 21 
     leaders of Hitler's Thousand Year Reich faced prosecution.
       Justice Jackson described the Nuremberg Trial as ``the most 
     important trial that could be imagined.'' He described his 
     own work there as the most important ``experience of my 
     life,'' ``infinitely more important than my work on the 
     Supreme Court, or . . . anything that I did as Attorney 
     General.'' This afternoon, speaking to you as an American 
     Jew, a judge, a Member of the Supreme Court, I should like 
     briefly to explain why I think that he was right.
       First, as a lawyer, Robert Jackson understood the 
     importance of collecting evidence. Collecting evidence? one 
     might respond. What need to collect evidence in a city where, 
     only twenty years before, the law itself, in the form of 
     Nuremberg Decrees, had segregated Jews into Ghettos, placed 
     them in forced labor, expelled them from their professions, 
     expropriated their property, and forbid them all cultural 
     life, press, theater, and schools. What need to collect 
     evidence with the death camps that followed themselves opened 
     to a world, which finally might see. ``Evidence,'' one might 
     then have exclaimed. ``Just open your eyes and look around 
     you.''
       But the Torah tells us, There grew up a generation that 
     ``knew not Joseph.'' That is the danger. And Jackson was 
     determined to compile a record that would not leave that, or 
     any other future generation with the slightest doubt. ``We 
     must establish incredible events by credible evidence,'' he 
     said. And, he realized that, for this purpose, the 
     prosecution's 33 live witnesses were of secondary importance. 
     Rather, the prosecutors built what Jackson called ``a drab 
     case,'' which did not ``appeal to the press'' or the public, 
     but it was an irrefutable case. It was built of documents of 
     the defendants ``own making,'' the ``authenticity of which'' 
     could not be, and was not ``challenged.'' The prosecutors 
     brought to Nuremberg 100,000 captured German documents; they 
     examined millions of feet of captured moving picture film; 
     they produced 25,000 captured still photographs, ``together 
     with Hitler's personal photographer who took most of them.'' 
     The prosecutors decided not to ask any defendant to testify 
     against another defendant, lest anyone believe that one 
     defendant's hope for leniency led him to exaggerate another's 
     crimes. But they permitted each defendant to call witnesses, 
     to testify in his own behalf, to make an additional statement 
     not under oath, and to present documentary evidence. The very 
     point was to say to these defendants: What have you to say 
     when faced with our case--a case that you, not we, have made, 
     resting on your own words and confessed deeds? What is your 
     response? The answer, after more than 10 months and 17,000 
     transcript pages, was, in respect to nineteen of the 
     defendants, that there was no answer. There was no response. 
     There was nothing to say. As a result, the evidence is there, 
     in Jackson's words, ``with such authenticity and in such 
     detail that there can be no responsible denial of these 
     crimes in the future and no tradition of martyrdom of the 
     Nazi leaders can arise among informed people.'' Future 
     generations need only open their eyes and read.
       Second, as a judge, Robert Jackson understood the value of 
     precedent--what Cardozo called ``the power of the beaten 
     path.'' He hoped to create a precedent that, he said, would 
     make ``explicit and unambiguous'' what previously had been 
     ``implicit'' in the law, ``that to persecute, oppress, or do 
     violence to individuals or minorities on political, racial, 
     or religious grounds . . . is an international crime . . . 
     for the commission [of which] . . . individuals are 
     responsible'' and can be punished. He hoped to forge from the 
     victorious nations' several different legal systems a single 
     workable system that, in this instance, would serve as the 
     voice of human decency. He hoped to create a ``model of 
     forensic fairness'' that even a defeated nation would 
     perceive as fair.
       Did he succeed? At the least, three-quarters of the German 
     nation at the time said they found the trial ``fair'' and 
     ``just.'' More importantly, there is cause for optimism about 
     the larger objectives. Consider how concern for the 
     protection of basic human liberties grew dramatically in the 
     United States, in Europe, and then further abroad, in the 
     half century after World War II. Consider the development of 
     what is now a near consensus that legal institutions--written 
     constitutions, bills of rights, fair procedures, an 
     independent judiciary--should play a role, sometimes an 
     important role, in the protection of human liberty. Consider 
     that, today, a half century after Nuremberg (and history does 
     not count fifty years as long), nations feel that they cannot 
     simply ignore the most barbarous acts of other nations; nor, 
     for that matter, as recent events show, can those who commit 
     those acts ignore the ever more real possibility that they 
     will be held accountable and brought to justice under law. We 
     are drawn to follow a path once beaten.
       Third, as a human being, Jackson believed that the 
     Nuremberg trials represented a human effort to fulfill a 
     basic human aspiration--``humanity's aspiration to do 
     justice.'' He enunciated this effort in his opening statement 
     to the Tribunal. He began: ``The wrongs which we seek to 
     condemn and punish have been so calculated, so malignant and 
     so devastating, that civilization cannot tolerate being 
     ignored because it cannot survive their being repeated. 
     That four nations flushed with victory and stung with 
     injury, stay the hand of vengeance and voluntarily submit 
     their captive enemies to the judgment of the law is one of 
     the most significant tributes that Power ever has paid to 
     Reason.''
       To understand the significance of this statement, it is 
     important to understand what it is not. Nuremberg does not 
     purport to be humanity's answer to the cataclysmic events the 
     opening statement goes on to describe. A visit to the 
     Holocaust Museum (or, for some, to the corridors of memory) 
     makes clear that not even Jackson's fine sentences, eloquent 
     though they are, can compensate for the events that provoked 
     them. But, that is only because, against the background of 
     what did occur, almost any human statement would ring hollow. 
     A museum visit leads many, including myself, to react, not 
     with words, but with silence. We think: There are no words. 
     There is no compensating deed. There can be no vengeance. Nor 
     is any happy ending possible. We emerge deeply depressed 
     about the potential for evil that human beings possess.
       It is at this point, perhaps, that Nuremberg can help, for 
     it reminds us that the Holocaust story is not the whole 
     story; it reminds us of those human aspirations that remain a 
     cause for optimism. It reminds us that after barbarism came a 
     call for reasoned justice.
       To end the Holocaust story with a fair trial, an emblem of 
     that justice, is to remind the listener of what Aeschylus 
     wrote twenty-five hundred years ago, in his ``Eumenides''--
     where Justice overcoming the avenging furies, humanity's 
     barbaric selves, promises Athens that her seat, the seat of 
     Justice,

[[Page E888]]

     ``shall be a wall, a bulwark of salvation, wide as your land, 
     as your imperial state; none mightier in the habitable 
     world.'' It is to repear the Book of Deuteronomy's injunction 
     to the Jewish People: ``Justice, justice shall you pursue.''
       And if I emphasize the role of Nuremberg in a story of the 
     Holocaust, that is not simply because Justice Jackson himself 
     hoped that the trial ``would commend itself to posterity.'' 
     Rather, it is because our role--the role of almost all of 
     us--today in relation to the Holocaust is not simply to learn 
     from it, but also to tell and to retell it, ourselves, to our 
     children and to future generations. Those who were lost said, 
     ``Remember us.'' To do that, to remember and to repeat the 
     story is to preserve the past, it is to learn from the past, 
     it is to instruct and to warn the future. It is to help that 
     future, by leading them to understand the very worst of which 
     human nature is capable. But, it is also to tell that small 
     part of the story that will also remind them of one human 
     virtue--humanity's ``aspiration to do justice.'' It is to 
     help us say, with the Psalmist, ``Righteousness and Justice 
     are the foundations of Your Throne.''

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