[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
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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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