THE NAZIS PERSECUTION OF RELIGION AS A WAR CRIME: THE OSSS RESPONSE
WITHIN THE NUREMBERG TRIALS PROCESS
Claire Hulme* and Dr. Michael Salter**
 The track record of both intelligence agencies and the Christian Churches in the war crimes field
has attracted controversy. For example, serious allegations have been made regarding help given to
suspected Nazi war criminals in the immediate post-war years by both the US Counter Intelligence Corps
in the Klaus Barbie case,1 and Vatican officials as well as other senior Church officials who co-operated
with Nazism2 and the fascist Ustasha movement in Croatia.3 There exists, however, a less welldocumented
record of the Office of Strategic Services (hereinafter OSS) support for the Nuremberg
prosecutors, which contributed to the recognition that the Christian Churches were amongst the early
victims of Nazi war criminality. This article is not an attempt to provide a detailed commentary on the
OSS report published in the current edition of this journal. Instead, we will analyse some vital
background, institutional and interpersonal dimensions of the OSSs contribution to this aspect of the
Nuremberg war crimes trials, particularly the important role of Franz Neumann, which places the report in
its wider institutional and political contexts.
The Donovan Collection at Nuremberg
 Once General Donovan agreed to act as Justice Jacksons deputy in May 1945, that is, as a senior
aide to the head of the US Office of Chief of Counsel responsible for Americas contribution to the
Nuremberg trials, Jacksons office also acquired the services of OSSs experts on Nazi Germany from the
Central European Section (hereinafter "CES") of the Research and Analysis (hereinafter "R&A") Branch.
For purposes of exposition, this Branchs contribution can be divided into three broad, and far from clearcut
categories: the supply of broad strategic analysis, the provision of personnel to augment and supervise
Jacksons own prosecution staff and other miscellaneous generalised support falling outside the first and
second categories. Amongst the Nuremberg files of General Donovan4 head of OSS, i.e., Americas first
central intelligence agency, is a hand-written note attached to an OSS / R&A report on the persecution of
the Churches, which states simply "hold for Neumann." But who was "Neumann?" Why should the
leadership of the OSS allocate this particular individual responsibility for investigating and analysing Nazi
religious persecution as one facet of this regimes overall "crimes against humanity", or, perhaps, crimes
against the self-expressions of divinity?
 The focus of this article is largely on Neumanns contribution to the analysis of Nazi religious
persecution. This is primarily because his overall analysis informs so much of the documentation
produced by OSS and other Nuremberg prosecutors and research analysts.5 However, the work of other
members of the OSS prosecution team, such as Drexel Sprecher, James Donovan, Whitney Harris,
Bernard Meltzer, Thomas Lambert, and Robert Stevens, must not be forgotten.6
Church specific material within the Donovan collection
 Materials generally relevant to the Nazis persecution of the Christian Churches can be found
scattered across the Donovan/Cornell collection, and fall under different genres of OSS and Nuremberg
documentation. These genres include draft trial briefs prepared by OSS and other trial lawyers, and
internal memoranda between different OSS sub-sections and Branches providing services for Jackson.
Other relevant material is located within OSS Research and Analysis Reports (hereinafter R&A reports)
specifically commissioned by Jackson, other earlier R&A Reports addressing aspects of how the Nazis
governed occupied Europe, and in the many hundred Staff Evidence Analysis summaries of individual
items of documentary evidence. One of the most important documents, however, is published in the
present edition of this journal namely a 91-page R&A report entitled "Persecution of the Christian
Churches",7 and cited as "approved by the prosecution review board." This reports own summary
*Current LLM research degree candidate at the University of Central Lancashire. LLB University of Central
**Professor of Law, University of Central Lancashire. LLB Southampton University; Ph.D. University of Sheffield.
accurately distils its main purpose: "This study describes, with illustrative factual evidence, Nazi purposes,
policies and methods of persecution of the Christian Churches in Germany and occupied Europe." This
study is important not only as a justification for the strategy adopted in subsequent trial briefs, but also for
its elucidation of "criminal organisational" elements of religious persecution within, for example, Goebels
Ministry of Propaganda. Although the report highlights its own limitations as a document restricted to
sources then available in Washington, it also identifies various witnesses from continental Europe, whose
testimony should provide vitally necessary supplementary evidence of additional, and much-needed
probative value. We shall see that one of Franz Neumanns tasks was to remedy these admitted
 The main headings under which this report analyses such persecution are as follows:
1. The Nature of the Persecution.
2. The Problem of Establishing Criminal Responsibility.
3. The Basic National Socialist Attitude Towards Christian Churches.
4. Policies Adopted in the Persecution of Christian Churches.
5. Methods Used to Implement the Policy of Persecution.
6. Organisations Bearing Particular Responsibility
7. List of Chief Witnesses in the Cases.
8. Appendix: Wartime Documents Relating to the Wurttembergische Landeskirche.
 In characterising the nature of the persecution, the authors maintain the anti-positivist thesis that
the very act of law-making can itself be considered a war crime, particularly when it subverts the very
basis of the rule of law. Throughout the period of National Socialist rule, the Nazis employed a
combination of lawful and criminal devices to persecute the Churches in a cynically opportunistic
manner designed to minimise damage to their other interests
[R]eligious liberties in Germany and in the occupied areas were seriously
impaired. The various Christian Churches were systematically cut off
from effective communication with the people. They were confined as
far as possible to the performance of narrowly religious functions, and
even within this sphere were subjected to as many hindrances as the
Nazis dared to impose. Those results were accompanied partly by legal
and partly by illegal and terroristic means.8
 The reports analysis of "the problem of establishing criminal responsibility" provides the strategic
thinking that, as will be shown below, informed at least the majority of the references to religious
persecution within the subsequent Nuremberg trial briefs. The central argument is that
To establish criminal responsibility in connection with the persecution it
is sufficient to show that the measures taken against the Christian
Churches were an integral part of the National Socialist scheme of world
conquest. In many cases it is also possible to show that the measure in
question were criminal from the standpoint of German or of international
law, depending on the region in which any given act was committed.9
This applies the typical Frankfurt School methodology of "immanent critique"10 to argue that the Nazi
regime can be convicted most effectively by demonstrating that it violates not only the laws of foreign
countries, such as those of its victors, but also the very Germanic traditions this extreme nationalistic
movement always purported to be militantly upholding. Indeed, from the start, the report argues that,
unlike other civil liberty provisions, the key articles of the pre-Nazi Weimar constitution11 "were never
formally abrogated by the National Socialist regime, were left untouched and still remain theoretically
in force."12 Furthermore: "respect for the principle of religious freedom", continued to be reiterated in
various official policy statements of the NS regime, and in various "enactments of the National Socialist
state, particularly the Concordat of 20 July 1933."13 It follows, therefore, that: "To demonstrate the
illegality of specific acts of persecution, it is sufficient to show that they were in violation of these legal
 In other words, and in opposition to what was later to emerge as Jacksons general strategy, this
report argues that the persistence of legal norms "immanent" to the German tradition of criminal law
meant that there was no need to resort to ex post facto laws introducing a retrospective form of
criminalisation akin to the more problematic of the Nazis own innovations within the criminal justice
system. This attempt to hoist the Nazi leadership by their own petard, which is a practical translation of
Frankfurt School methodology of immanent critique, was one of the many areas of disagreement between
the OSS / R&A Branch and Jackson.
 Within the Donovan/Cornell files, this R&A report is located next to another of the OSSs
important contributions to the Nuremberg process: a detailed chart showing "Organisations Responsible
for the Persecution of the Christian Church."15 This was one amongst several dozen organisational charts
the OSS Presentation Branch prepared not only for the trial itself but also for the benefit of various
interrogators attempting to clarify lines of command and responsibility within the complex and
overlapping institutional relationships that comprised the chaotic irrationality of the Third Reich.16
 The memorandum from Carl E. Schorsche17 transmitting this R&A Report to OSSs Maj. William
Coogan,18 reiterates its unedited and incomplete quality, emphasising that it had been released early "in
the interests of rapid distribution to the Staff of the War Crimes prosecution in the field,"19 and needed
supplementation from sources only available on that newly liberated continent
The document is still seriously lacking in evidence of probative value, and is consequently ill
suited to serve as the basis for an international discussion. [P]articular attention is called to the
appended list of probable witnesses. These should be contacted as quickly as possible. It is
suggested that the interrogators be briefed by a thorough study, and that they should be cognisant
not only of the weaknesses made explicit in the text but also of other weaknesses suggested by
critics in the field. [M]uch of the material on the persecution of the Catholic Church has been
obtained from a secondary work entitled The Persecution of the Catholic Church in the Third
Reich by Burns Gates, London 1940. It would be most profitable if a member of the staff in
London could discover author , and secure the more solid documentary evidence which must be
in their possession.20
This memorandum also gives an early indication of why the leadership of the OSS R&A Branch assigned
Franz Neumann, its leading specialist on Nazi Germany, to the task of completing a series of interviews
with European victims of Nazi religious persecution, and why this work needed to be given such
priority.21 The OSS appeared to be particularly keen to be in the forefront of the development of
completed trial briefs, so redeeming the ambitious promises James Donovan, its General Counsel, had
given to Jackson.22
 General Donovan was not, however, entirely dependent upon his R&A specialists for his
information on religious persecution. Through his extensive intelligence contacts with members of the
German opposition to Hitler, he employed the expert services of Fabian Von Schlabrendorff, who had
experienced Nazi persecution at firsthand.23 One of Schlabrendorffs many memoranda to General
Donovan addressed the "Relationship of the German Churches to Hitler."24 This memorandum
emphasised that senior members of the Catholic Church had resisted Hitlers policies by insisting -
through their priests - on the essentially unchristian characterof National Socialism. Schlabrendorff
recalled that "quite a number of the lower clerics ended up in prison or in a concentration camp,"25 and
that Delp, a leading Jesuit who was ultimately executed by the Gestapo, "participated in the conspiracy
that led to 20 July"26 (i.e., the failed assassination attempt on Hitler).
 The OSSs extensive contacts with wider networks of Allied intelligence agencies and diplomatic
sources also fed General Donovan with additional evidence of religious persecution. For example, Lt.
Walter Rothschild, Chief of the OSSs R&A Documentary Research Unit, a specialist section working out
of the agencys London field station, supplied information from British Foreign Office sources on the
"German Monist Organisations," of potential use "in connection with the prosecution of religious
organisations by the Nazi government."27
 Donovans handwritten addition to Rothschilds memorandum indicated that he forwarded it on
the 16 July to "Commdr James Donovan, with special responsibility for organising the OSSs
contribution to the Nuremberg project, with the further order: "hold for Neumann." Neumann was about to
join the key European side of the OSSs war crimes project. In fact, Donovans note is referring to Dr
Franz Neumann, whose important role within this aspect of the OSSs contribution to the Nuremberg
project requires close analysis as a topic in its own right.
Franz Neumanns role
 Dr. Franz Neumann was a former trade union lawyer, prominent member of Germanys Social
Democratic Party, and member of the famous, or notorious, Frankfurt School of critical social theory.28
This German-Jewish ï¿½migrï¿½ developed his pre-war sociological analysis of the rule of law completed at
the LSE between 1936-39 during his period of forced emigration to Britain. Neumann achieved high
academic repute with the publication in 1942 of Behemoth: The Structure and Practice of National
Socialism29 whose widespread scholarly recognition led directly to his recruitment by the R&A Branch of
OSS. His analysis on the Nazis ideological exploitation of one particular aspect of religious / racist
persecution, i.e., anti-Semitism, continues to provoke controversy.30 This controversy has been especially
acute with respect to Neumanns supposedly negative influence upon the treatment of the Nazis
persecution of the Jewish faith within the Nuremberg prosecution process, an alleged "downplaying of the
singularity of the Holocaust" inspired, his critics maintain, by his overly functionalist analysis of Nazi
anti-Semitism.31 Whilst this specific aspect of religious and racist persecution has attracted considerable
attention, Neumanns positive investigative work on religious persecution of the Christian Churches has
been glossed over by both his critics and historians of the three scholarly literatures to which his various
engagements made an important contribution: the OSS/CIA, the Frankfurt School of Critical Theory, and
constitutional theories of the rule of law.32 Fortunately, however, the Donovan / Cornell files provide
additional material enabling a partial reconstruction of this aspect of Neumanns role as "First Chief of
Research" within this agencys war crimes work.
 One initial question is why did Donovan, a prominent Irish-Catholic and conservative Republican,
select Neumann, a German-Jewish socialist ï¿½migrï¿½, to investigate Nazi religious persecution within
Europe during late July and August 1945? For what reasons did the OSS leadership give this topic such a
high priority for Neumanns research team, as distinct from, say, issues raised by the Nazis anti-Semitic
extermination campaigns?33 Did the fact that Neumann alone had been singled out from amongst the
formidable array of legal experts that Jackson and Donovan had gathered to provide guidance on the key
aspects of the prosecution case against each of the individual defendants allow religious aspects to feed
into all appropriate trial briefs? In the eyes of the OSS leadership, did Neumanns Jewish background give
the appearance of an enhanced impartiality based on his perceived freedom from intra-Christian
sectarianism? These questions will remain open at least prior to the CIAs complete declassification of the
OSS personnel files.
 However, one aspect of Neumanns qualifications for this task can be partially elucidated.
Neumann had personally been responsible for drawing up extensive material for the "Civil Affairs"
project on post-war military government of Germany, which Gen. John H. Hilldring, of the Civil Affairs
Division of the US War Department, had commissioned from the OSS R&A Branch. This inevitably
covered the issue of de-Nazification policies in all sectors of German society, including the German
Churches, and, in May 1944, resulted in Neumanns subsection producing a series of pamphlets. One of
the pamphlets set out US policy with respect to Christian Churches, including pro-Nazi factions within
 Not surprisingly, many of the trial briefs against the central agencies of Nazi rule include
references to religious persecution. These OSS contributions are largely informed by Neumanns
functionalist conception of the political nature of Nazi persecution, which through a series of escalating
stages was cynically designed to instil fear into actual or potential opponents. For example, Thomas
Lamberts draft trial brief on the Leadership Corps of the Nazi Party, argues that this body represented a
criminal organization whose persecution of the Churches formed one part of a wider conspiracy that
aimed to destroy Germanys parliamentary democracy.34 This conspiracy resorted to a variety of illegal
and terrorist devices, including the destruction of independent German labor unions, and the plundering
and looting of public and private property within occupied Europe.35 This "master plan" culminated in the
Nazis establishment and consolidation of a totalitarian system of government and social control. Through
a series of incremental stages, this system abolished the very distinction between the Nazi Party and the
institutions of the German State and other public institutions within civil society, including the Churches,
which could otherwise mediate or limit the Nazis political authority. Both in Church affairs and more
widely, the Leadership Corp purged the government of non-Party members, who were then replaced by
Nazis or Nazi sympathisers, whilst also combining ministerial and Party offices in the same political
leader. This criminal organisations subversion, and planned ultimate destruction of the Christian
Churches included a campaign of persecution of the Christian clergy together with "a large body of anti-
Semitic and discriminatory laws".36
 Evidence of the persecution of the Christian Churches and of the Jewish religion also formed part
of a trial brief by Whitney R. Harris37 entitled "The Gestapo and the SD and Ernst Kaltenbrunner."38 This
brief charged the Gestapo (Secret State Police), the SD (Intelligence and Security Service) and Ernst
Kaltenbrunner, (who was Chief of the Security Police and SD from January 1943), with specific
complicity in the overall Nazi conspiracy. Once again, the material on religious persecution is placed in
the wider context of how these agencies committed crimes against humanity as an integral part of the
Nazis master plan, its conspiracy to seize and consolidate ideological control and totalitarian power
within Germany by eradicating sources of actual and potential opposition. This material formed part of the
evidence on which these agencies were judged to be criminal organisations.
 Evidence of anti-Christian persecutions is also found in briefs against indicted organisations that
were ultimately acquitted. For example, within the brief prepared by OSSs Major Robert G. Stephens and
Charles S. Burdell, USNR on the "Criminality of the Sturmabteilungen" (i.e., the paramilitary SA or
"Stormtroopers").39 By references in part to materials taken from its publication Der SA-Mann, this brief
reiterates aspects of Neumanns "spearhead theory." For instance, it illustrates how the SA persecuted and
destroyed Christian and Jewish institutions and other perceived enemies of the Nazi state as an integral
part of a militaristic campaign to prepare and train the German people for an inevitable war of
aggression.40 The brief also identifies Goering and Hess as the SAs leading figures.
 These contributions from OSS lawyers clearly informed Jacksons overall thinking on the political
nature of the Nazis persecution of the Churches. For example, the final materials included in Nazi
Conspiracy and Aggression regarding the "consolidation of control," clearly reiterates not only key
themes within Behemoth but also summarizes earlier OSS analysis, including aspects of the early R&A
Thus possessed of the machinery of the German State, the Nazi
conspirators set about the consolidation of their position of power within
Germany, the extermination of potential internal resistance and the
placing of the German nation on a military footing.
(a) The Nazi conspirators reduced the Reichstag to a body of their own
nominees. The conspirators greatly enlarged existing State and Party
organizations; established a network of new State and Party
organizations; and co-ordinated State agencies with the Nazi Party and
its branches and affiliates, with the result that German life was
dominated by Nazi doctrine and practice and progressively mobilized for
the accomplishment of their aims.
(b) In order to make their rule secure from attack and to instil fear in the
hearts of the German people, the Nazi conspirators established and
extended a system of terror against opponents and supposed or suspected
opponents of the regime. Among the principal agencies utilized in the
perpetration of these crimes were the SS and the GESTAPO, which,
together with other favoured branches or agencies of the State and Party,
were permitted to operate without restraint of law.
(c) The Nazi conspirators conceived that it was [also] necessary to
suppress or exterminate certain other movements or groups which they
regarded as obstacles to their retention of total control in Germany and to
the aggressive aims of the conspiracy abroad. Accordingly:
(1) The Nazi conspirators destroyed the free trade unions in Germany.
(2) The Nazi conspirators, by promoting beliefs and practices
incompatible with Christian teaching, sought to subvert the influence of
the Churches over the people and in particular over the youth of
Germany. They avowed their aim to eliminate the Christian Churches in
Germany and sought to substitute therefore Nazi institutions and Nazi
beliefs and pursued a programme of persecution of priests, clergy and
members of monastic orders whom they deemed opposed to their
purposes and confiscated Church property.41
 Other documentation within the Donovan/Cornell files argues that the revolutionary thrust of the
Nazis master plan had to struggle to overcome institutional resistance from various traditional sectors of
German society, including according to the statement of five German Army Generals the Armed
forces. For instance, a large document dated November 19, 1945 contains the statement of the five
German Generals, Walther von Brauchitsch; Erich von Manstein; Franz Halder; Walter Warlimont; and
Siegfried Westphal.42 This statement claims that the majority of the Armys officer corps rejected and
opposed many of the Nazis domestic policies as "unworthy of the German nation," including all forms of
religious persecution.43 The Nazis leadership undertook such persecution with neither the advice nor the
consent of the Army, who in common with many Church leaders -- represented one of the many semiautonomous
institutions of German society that the Nazi regime had to subvert in order to fulfil its own
political and genocidal programs.44 Once again, the persecution of the Churches is represented as one part
of a wider unacceptable programme involving Hitlers policies on Jews, the indoctrination of youth,
"financial manipulation," "muzzling" of the law, and Hitlers breaches of agreements with foreign
 General Thomass account of defendant Schachts opposition to Nazi domestic policies on
religious affairs is supported by Schachts own written testimony contained in a letter addressed to
General Donovan. Donovan had actively solicited this statement, which Schlabrendorff, one of his
assistants, had previously helped Schacht compose in terms which, amongst other things, concealed its
joint composition. This covert strategy, which also included the self-interested statement that Schacht was
only interested in coming to an arrangement with Donovan personally, was, perhaps, deemed necessary as
it defied Jacksons prohibition of "doing deals" with the defendants. Captain Norden, one of the Generals
own personal staff drawn directly from the OSS, then forwarded Schachts letter to Jackson.
General. May I ask the great favour of writing to you. Thanks to my
official position I think I know more of the background of Hitler's policy
than many others. I would therefore be very grateful, if an officer of
your high standing, of your experience and wisdom and of your well
known international reputation, would be willing to look into a brief
summary of the underlying reasons and conditions of the dreadful Nazi
regime, as I have experienced them. I would greatly prefer to submit
such summary to a man of your judgement and capacity than to any of
the lawyers or defence counsels which may appear before courts.45
 This is followed by Schachts 13 page handwritten letter to Donovan recalling, for example his
opposition to religious persecutions of both Christian and Jewish faiths.46
Quite early I had expressed my opposition to these things to Hitler. Early
in May 1935 I had handed him a memorandum in which I demanded the
stopping the attacks on the Church, legal protection for the Jews, and
liquidation of the Gestapo. In spite of the fact that Hitler tried to pacify
me by explaining that these as temporary revolutionary phenomena, I
repeated my opinions publicly a few weeks later in Konigsberg. The
publication of this speech, in which I also stood up for freemasonry, was
banned by Goebels. I had the speech printed in the printing room of the
Reichsbank, and in this way 250,000 copies were distributed all over
Germany. I had continuous fights with the majority of the Gauleiters,
partly concerning questions of maltreatment of Jews, partly concerning
encroachments on the state. All of these conflicts were concluded in my
 Donovan had not however elicited these lengthy statements from prominent potential defendants
to simply document opponents of religious persecution. In the case of the German Generals, his plan was
to combat Jacksons plan to criminalise the entire German High Command as a criminal organisation,
irrespective of the actions or indeed anti-Nazi opposition of a number of leading figures. A further
motivation was Donovans attempt to discredit National Socialism in the eyes of the German people by
having Schacht, and other prominent representatives of the other Germany, provide damaging oral
testimony against Nazi leaders. Jackson opposed both aspects of Donovans alternative trial strategy,
which culminated in the ultimate breakdown of their relationship in late November 1945.
Neumanns engagement with war crimes projects as a leading figure within OSSs Research and
 The intellectual driving force behind OSS / R&As analysis of Nazi Germany were three scholarly
members of a subsection of the R&A Branch: Franz Neumann, Herbert Marcuse and, Otto Kirchheimer.48
These were three anti-fascist German-Jewish ï¿½migrï¿½ scholars, affiliated with the Frankfurt School of
critical social theory, who, between 1943-45, were employed by the "Central European Section" of OSSs
R&A Branch. The OSS employed the scholarly talents of Neumann,49 Marcuse, and Kirchheimer to help
develop a broad program that addressed war crimes issues as one aspect within the wider context of a
program of post-war de-Nazification and democratic reconstruction within Germany. The ideal was to
generate a robust analysis of the causes and nature of Fascism to allow for post-war policies to be
formulated that optimised the prospects of its permanent removal from the European scene. Each of these
analysts was also committed to a broadly socialist model of democratic reconstruction, with Neumann
taking the most pragmatic, or comparatively moderate, social democratic perspective.
 These three scholars soon formed the intellectual leadership of the CES, with Neumann playing
the pre-eminent role following not only the success of Behemoth but also his forceful personality.50
Neumann was the leader of this CES group partly in terms of his institutional seniority despite being an
enemy alien - he was ultimately promoted to "acting head" of this sub-section. His leading role also
depended upon general recognition of his superior expertise in German affairs, including recognition from
those who were formally ranked as his immediate superiors within the OSS hierarchy.51
 Before addressing the specific details of the OSS / CESs involvement of in war crimes work, it is
important to provide a brief sketch of the three distinct but interrelated phases of their analysis of Nazi
Germany. During the course of 1943, this OSS section was especially interested in describing and
analysing the nature and functioning of the National Socialist state on every level. This meant analysing
stories from the European press agencies, radio broadcasts from the German Reich, reports from refugees
who recently arrived in America and interrogations of German POWs. From such diverse sources, the
CES assembled and analysed a detailed picture of the economical, political, social and cultural situation in
Nazi-Germany. As Katz notes: "Their studies ... dealt with the potential significance of everything from
the effects of bomb damage on civilian morale to changes in ladies fashions."52 From early 1944, a second
stage commenced, namely, the detailed preparation of plans for post-hostilities military government and
the rapid reconstruction of democracy in Germany. At this time, the CESs political line, was, according to
Katz, "to steer a middle-course between the extremes of a punitive Morgenthauism [mass administrative
punishment and penal labour] and a call to rebuild Germany as rapidly as possible as a bulwark against the
 The third phase began, in a hesitating way during the autumn of 1944 but intensified in the late
spring of 1945. In this phase, Neumann moved away from post-hostilities planning of Military
Government to lead a special OSS war crimes research and analysis team addressing key planning and
strategic issues. Following a meeting of the OSS Projects Committee, its chairman Richard Hartshorne,
recorded that a special War Crimes Committee had now been established, composed of Neumann and a
small group of more senior officials.54 Neumann also took charge of revising the first draft prosecution
brief detailing the personal responsibility of Hermann Goering, the most senior defendant, which was
intended to operate as a dry run to test the theory that Jackson and OSS officials had proposed. In order to
better demonstrate Goerings criminal responsibility, Neumann took responsibility for having this draft
brief amplified and supplemented with further evidence.55
 In other words, at an early stage in the trial preparations, Jackson decided that it would be useful
to test the strategic thinking that his agency was currently developing against a concrete example of a
prosecution brief against one of the leading defendants. The idea here was that any problems that emerged
during this "dry run" could then be analysed so that they would not be repeated during the trial itself. This
prototype prosecution brief was also supposed to highlight any difficulties within the overall trial strategy,
which could then be analysed and corrected long before the start of the full trial. Jacksons office
commissioned Franz Neumann, who had been appointed head of OSS/R&As war crimes unit, to prepare
a portfolio on Goerings systematic looting of works of art from across occupied Europe.
 During the summer of 1945, Jackson appointed Neumann "First Chief of Research" for his office.
In this capacity, Neumann was to oversee the preparation of various prosecution briefs and evidence in
first Washington and then Paris, London, and Nuremberg itself. It was as a leading member of the US war
crimes staff that Neumann returned to his native Germany for the first time since his escape in 1933.
 During the war and immediate post-war period, Neumann was widely recognised as the leading
authority on National Socialism both within, and beyond, this small group of ï¿½migrï¿½ scholars.56 This
recognition extended to his de facto institutional leadership both of this sub-section, and ultimately of the
specially created OSSs war crimes unit. This unit formed one part of Justice Jacksons American
prosecution team at Nuremberg, which brought together staff from a number of other government
agencies. During the last two years of WW2, CES composed a series of formal R&A Reports on war
crimes issues. These early reports concentrated less on the details of trial strategy and evidence of
individual proof, than outstanding political and strategic factors. At this time, the very decision to hold a
formal trial before an international court, as distinct from resort to summary executions or military
tribunals, had not yet been agreed, and was still being strongly opposed by the British.
 During the summer and autumn of 1945 as the prosecution chaotically attempted to organise its
cases for the Nuremberg trials, Donovan selected Neumann to head a newly-created OSS / R&A research
unit.57 Neumann formed part of approximately twenty-four OSS staff-members. Neumanns own
evaluation of his task becomes clear in a letter which he wrote to Horkheimer on June 26, 1945. "I have
been appointed Chief of the War Crimes Unit of OSS in Europe. I do not covet this appointment, but one
has to do ones duty."58
 Neumann was included amongst the "top staff" Jackson included in his advance party to Paris.59
This party was "stopping off" at London "long enough to confer with their British opposite numbers and
compare information and documents."60 This advance party from the American prosecution team was
largely responsible for negotiating with other Allied powers the "London Agreement" of August 1945,
whose charter provided the legal basis for the Nuremberg trials. Neumanns personal role in relation to
these agreements is not clear from the archival record. He is not cited as amongst those conducting faceto-
face diplomatic negotiations with the Russian, French, and British delegations.
 Later, Neumann was appointed to the post of First Chief of Research within Europe. As
In the middle of August 1945, Neumann arrives in Europe. He first goes
to London and Paris, before travelling under heavy guard for fear that
he would be recognised - arriving in Wiesbaden where a section of the
R&A Branch is set up since the beginning of July. He heads the
OSS/R&A efforts in Nuremberg as First Chief of Research taking charge
of a staff whose work it is to examine and analyse complete available
documents, in order to compile from this material the
charges/indictments for the International Military Tribunal. Justice
Jackson and the Allied prosecutors intended to go through the trial
process relying primarily upon written exhibits.61
 It is likely that, behind the scenes, Neumann was providing Jacksons prosecutors with strategic
and much-needed analytical assistance. Whilst Neumann was leading the OSS war crimes unit in Europe,
Marcuse was left behind in OSSs main Washington office to supervise the completion of the remaining
OSS war crimes reports.62 Working under Neumanns supervision, Marcuse had personal charge for
providing an initial draft of the report on the overall "Nazi conspiracy to achieve world domination." The
conspiracy device, which was a distinct feature of the American prosecution strategy, was amongst the
most important and legally innovative aspect of the Nuremberg indictment. Yet this conspiracy device
allowed a series of otherwise disparate events, such as domestic atrocities against the Churches, Jews and
others civilians committed from 1933 onwards, to be included alongside both traditional war crimes, and
other innovations, such as "crimes against the peace."
 One point, which still requires clarification, is why was Neumann, rather than another prosecutor
with a Christian background, selected to travel to Europe to gather evidence of religious persecution in
order to supplement the gaps within the earlier R&A Report. One possible answer lies in the positive
impression he created amongst Jacksons own staff, particularly Telford Taylor, a rising star in Jacksons
organisation. Telford Taylor recalls that "[t]he OSS staff included a number of able and learned experts on
the Third Reich" and that "these included Franz Neumann, author of Behemoth." There is also reliable
firsthand evidence that Taylor struck up good interpersonal and professional relations with Neumann.63 In
turn, Neumanns positive working relationship with Taylor, and others from Jacksons senior staff, gave
Neumann "great freedom of discourse" with the investigating lawyers.64 The idea that Taylors influence
played a part in Neumanns project is supported by Taylors important planning memorandum to Jackson
(dated June 2 1945). This concluded that the OSSs background information, although valuable in itself
now required further supplementation with "testimonial evidence suitable for court use."65 This, in turn,
entailed gathering evidence from continental Europe, including prisoner of war interrogations, of a
different type from what was currently available in Washington.66 Taylors memoir also notes how once
Jacksons team arrived at Europe they were able to draw upon OSS resources, such as Allan Dulles, in
order to obtain "valuable evidentiary material" such as the "diary kept by Galeazzo Ciano, Mussolinis
son-in-law and Foreign Minister." Taylors account implies that this agencys senior CES staff were
specifically needed to supplement Jacksons team in Europe. The centre of interest had now shifted to
Europe, owing to the need to gather evidence suitable for trial testimony.
 James Donovan, OSSs General Counsel, impressed upon Jacksons senior team the urgent need
to gather such evidence from continental Europe.67 Five days later, Jackson acted directly upon Donovans
advice and made plans to travel to Paris on May 22.68 Taylors memoir also recognises that the
prosecutors were sufficiently impressed with OSSs strategic R&A Reports that they specifically
requested that Neumann and their other authors should personally form part of the advance party. This
party was to travel to Europe to gather empirical testimonial and documentary evidence, which had only
recently became available following the military defeat of Germany.
 In early June 1945, Jacksons office placed considerable pressure upon OSS for support
from its CES experts, Neumann, Kellerman, Herz, Doerr, and Eisenberg. The resulting diversion
of resources, exerted a detrimental impact upon other types of OSS / CES research and analysis,
provoking a degree of internal dissonance within OSS / R&As memorandum suggests that
Neumann was given the overall OSS / R&A responsibility for war crimes analysis across
continental Europe, where, with the surrender of German armed forces and military occupation, Allied
attention had now focused in earnest.69 The memo continues, "[i]n the meantime Schorske, Neumann, the
Central Europeans, and the War Crimes staff have been under the impression that the men in question
could be summoned by Neumann."70
 Giving Neumann this responsibility to "hand pick" his own staff from R&A / ETO is also
significant as an indicator of the esteem in which he was held by his immediate military and
administrative superiors within OSS. It is not clear whether Neumann was, in fact, ever given the
opportunity to exercise this personnel aspect of his responsibilities. This memo also refers to a cable from
Mr. Morse that "ear-marked a group of R&A/ETO people for war crimes work." This statement could
imply either that Neumann had to select from within a helpful short-list, or that Chandler Morse, head of
the London outpost of R&A, appointed these staff without any input from Neumann or CES. Langers
memo is clearly animated by his desire to prevent the emasculation of his sections remaining work upon
Germany and central Europe more generally, by having his best and most senior CES staff allocated
abroad to war crimes work.
 Whatever the internal politics, in August 1945, Neumann was sent by General Donovan and
Justice Jackson to London and Paris, which had now become the central focus of Nuremberg preparations.
As Katz notes,
[t]he end of the European war signalled the third phase of their work
which entailed the preparation of materials relating to the prosecution of
war criminals. Franz Neumann, regarded by many as the foremost
authority on National Socialism in the government, left for Europe,
where he served as expert consultant to the American War Crimes
 According to an undated financial document within the OSS war crimes file but clearly written
during the summer of 1945, Neumann was the most senior civilian officer (and of equal grade with the
most senior military employee) "presently engaged in War Crimes" [sic] not only in the CES but in the
larger and encompassing European-Africa Division of OSS / R&A.72 This document allows for a single
"sea trip" and "4 air trips to and from Paris via London." The OSS / R&A field office in London had been
assigned war crimes research. Hence, presumably Neumanns visit there was to include a liaison and
supervision function.73 Katz suggests
[o]nce they [CES / R&A] had identified the criminals, they returned to
the grim task of documenting their crimes. Since the collapse of the
German armies, Neumanns legal and political expertise had been in
great demand, and in mid-August he returned to Europe for the first time
since his flight [from England]74 in 1936. His itinerary brought him first
to London, where he was given a bracing sense of the gulf that had
separated the theorists and policy analysts of R&A / Washington from
the chaotic realities of the European theatre, and then to Paris, where the
European operations of the R&A had been centred since the Autumn of
1944. Finally ... he entered the American zone of occupied Germany and
made for Wiesbaden, where an R&A Mission, set up in an abandoned
champagne factory, had been functioning since the beginning of July.75
 Although not cited, the details of Katzs account about Neumann are supported by additional
archival material. This provides not only a helpful overview of the nature and context of OSSs
contribution during the months before the trial opened, but also additional insight into the chaotic state of
affairs and internal feuding within Jacksons organisation. On August 3, Neumann wrote an urgent memo
from the London Field Office of OSS to Sherman Kent, the acting head of the OSS / R&A Branch. This
indicates that Neumann may have arrived in England during the last week of July.76 In this memorandum,
Neumann presents his "[f]irst report on war crimes Europe", based upon "extensive discussions with
Commander Donovan, Colonel Murray Bernays, Colonel Wheeler, Colonel Amen, Alan Evans and Just
Lunning." This report paints an unpromising picture of the fractious, confused and chaotic "organisational
setup" of Jacksons team. This team not only lacks a "unified direction of research and collection of
evidence" but also any clear chain of command and decision-making that integrates its rival sections.
Neumann suggested that the top level was preoccupied exclusively with the protracted international
agreements currently being negotiated with the French, Soviet, and British legal and diplomatic
representatives. Indeed, it is clear from his preliminary review that, at least at this early stage, Justice
Jackson had taken neither Neumann nor the remainder of the senior prosecution team into his confidence
regarding the obstacles that were impeding progress.
 Neumann explains that Bernays, based in London, had successfully appropriated all new staff
from Washington, and that his section is responsible for "all documents in Great Britain." Neumann
suggests that part of the London OSS field office, "the Rothschild group," were acting as "the counterpart
of this organisation." In a severe indictment of Bernays, Neumann remarks that only this OSS group "is
able to handle the documents and does so successfully."77 Col. Storey assisted by a former OSS officer,
Col. Gill, who performed the role of executive officer, headed the Paris organisation. Neumann reports
that the majority of the OSS General Counsels staff, including "Commander Albrecht, Major Coogan, Lt.
Sprecher and others,"78 like Col. Amen, who headed the interrogation section, was receiving assistance
from OSSs "X2 personnel under Sherman." However, the process of carrying out interrogations of the
major defendants had not yet begun.
 Whilst the previous discussion should have cast some light on why Neumann was selected to head
an OSS / R&A research unit assigned to continental Europe, we have yet to explain why Neumann was
given the task of gathering further evidence on religious persecution. It could be argued that his own
background as a former-trade union lawyer and labour court judge, and member of the SPD, better
equipped Neumann to prepare materials on the exploitation of labour and the economic case more
generally. For example, his war crimes unit from OSS / R&A, had produced a series of studies on topics
such as "German economic preparation abroad," and activities of "65 leading industrialists," which they
were particularly keen to draw to Justice Jacksons notice either directly or through James Donovan.79
Neumann was concerned that, notwithstanding his own expertise in the collusion of German industrialists
with Nazi war criminality and his supervision of the related Eisenberg project, Jackson could remove his
OSS / R&A team from playing any leading role in the preparation of the economic case. The reason for
this exclusion in favour of Jacksons long-standing friend Francis Shea, may, as already noted, have
contained a political element, given the reluctance of the British to approve of any connection between
colonialism and war criminality. Hence, Neumann was willing to contest Sheas assignment, which he
notes was the only specific one made to date, directly with Jackson, without seeking prior approval.80
 Neumanns opposition to Sheas control of the economic case, and OSSs marginalisation of one
of the topics this intelligence agency was most suited to contribute was unsuccessful. In fact, Jackson
removed from the jurisdiction of OSS their major expertise in the politically sensitive economic aspect
of war crimes - including the responsibilities of leading German industrialists.81 Neumanns interests in
war crimes lay not merely in removing the leading personnel of the Nazi regime but in replacing those
socio-economic structures that first enabled such individuals to seize and retain power. Jacksons removal
of Neumanns R&A team from the economic case, combined with partial failures of the wider de-
Nazification purges had, in practice, frustrated the practical realisation of the implications of Behemoth.
This frustration left Neumann with only a limited field in which to exert practical influence in favour of
his democratic socialist project. As Herbert Marcuse, his colleague and friend in OSS / R&A, noted
[d]uring his work in the OSS and later in the Department of State (1942-
6), Neumann applied the insights gained in these studies [i.e., Behemoth]
to the analysis and anticipation of German developments. He devoted
much of his efforts to plans for the democratisation of Germany which
would avoid the failures of the Weimar republic; he tried to demonstrate
that denazification, in order to be effective, must be more than a purge of
personnel and an abolition of Nazi legislation - that it must strike at the
roots of German fascism by eliminating the economic foundations of the
anti-democratic policy of German big industry. Neumann says that the
efforts to attain this objective failed, but he continued to work for
strengthening the genuinely democratic forces in Germany in the narrow
field still open for such efforts.82
Therefore, it is reasonable to conclude that Neumann would not have placed the investigation of religious
persecution at the forefront of his priorities, and that his research in this area was very much a second best
 Contrary to the idea promoted by Bradley Smith and Aronson that Jacksons senior staff lost faith
in OSS / R&A by the early summer of 1945,83 the expertise of Neumanns R&A specialists remained in
great demand from "each of the three Colonels." That is from Colonels Amen, Bernays, and Story, each of
whom insisted that Neumanns group should be attached exclusively to their section. "[E]ach maintains
that his work is vital and each maintains that he controls documents which have to be evaluated."84
Neumann realised that he was, therefore, in a strong bargaining position as to both the type of work his
section would be willing to perform, and for which particular section of Jacksons organisation. He
exploited this relative strength by flatly rejecting Bernays demand that the specialists on Nazi Germany,
who comprised the OSS / R&A War Crimes Unit, be simply assimilated in Colonel Bernays London
team. This team was engaged in "merely documentary work abstracting and evaluating whatever
documents come in."85 Neumann insisted that his specialists would be better deployed in more senior
positions "writing papers," presumably on the strategic and planning aspect of the case. This counterproposal
was initially rejected by Bernays, who may, with good reason, have regarded Neumann as a
powerful rival in such strategic matters.
I explained that under no circumstances would I do this work nor would I
request the transfer of the [R&A] personnel for this purpose nor would I
ever get them over from Washington for this purpose. His answer was
that under these circumstances he did not see that I could do anything at
all, a reply that made me quite happy. However, in the course of the
discussion he retracted, and accepted my view.86
 Thus, it was clear to both sides that Bernays needed the contribution of Neumanns team more
than this team needed Bernays support. The result of this fraught negotiation was that Bernays was forced
to agree to Neumanns request. Having overplayed his hand, Bernays was even forced accept Neumanns
strong criticism of the organisational failure of his office, including their inadequate use of the various
OSS / R&A Reports already commissioned by Justice Jackson, such as "the Church paper." Bernays
agreed to assign Lt Atherton to redress this perceived failing point, to "start real work" as Neumann
expresses it with characteristic self-assurance.87 Neumann complained to his superiors in R&A that OSS
London field office had not yet received R&A war crimes reports, and that although these were in use
within Jacksons office, work was being hampered by a shortage of sufficient copies. He requested that
this shortfall of R&A Reports be corrected through the assistance of James Donovan, with Alan Evans
playing a co-ordinating role between OSS London and Jacksons office.88
 It appears that Neumann had built up certain tactical alliances within sections of Jacksons team,
particularly with Telford Taylor and Benjamin Kaplan. He concludes this memo by suggesting to Sherman
Kent that "Carl [Schorske] may desire to transmit some of this to Taylor and Kaplan. That must be left to
 The same memo also reveals that Neumann considered himself to be in a strong bargaining
position with respect to his immediate superiors in the OSS contingent, such as James Donovan. Donovan
sought to encourage Neumann to assign his R&A team to work with Storey, not Bernays. This view was
based on the belief that Donovan expected, rightly as it turned out, that Jackson would soon assign Storey
the bulk of "the actual preparation of the case". At this time, Neumann appeared sufficiently confident in
his own authority to refuse to commit himself: "I expressed merely my willingness to survey the situation
in Paris and Germany and to make my mind up after a thorough study of the situation."90 Donovans
attempt, in all likelihood, to pressurise Neumann by referring the matter to Jackson was rebuffed since:
"The Justice replied that I should make up my own mind after a thorough study of the situation. I shall
therefore proceed to Paris on Monday and shall renew my discussion with Colonels Amen, Storey and Gill
and also survey the tactical situation in Paris. I shall then report to Mr Justice Jackson and arrive at a
decision of what to do."91 What is remarkable here is Neumanns ability to carve out for his team what
was in effect a roving commission, the ability to virtually write his own job specification as "First Chief of
Research." No other member of Jacksons office was ever granted this position, a fact that may well have
caused a degree of resentment. Indeed, at the end of June 1945 Jackson had specifically authorised
Colonels Storey and Bernays the "power to assign members of the staff and consultants engaged by or
borrowed from other agencies to specific assignments of search, classification, or other treatment of
evidence."92 This memo also clarifies, for the first time, the nature of Neumanns proposed role, which he
made conditional on Jacksons office agreeing to various internal organisational clarifications.
This R&A unit should be incorporated into a research unit of the Jackson
mission to be headed by a high officer, with myself as deputy. This
research unit should have complete access to all documents, no matter
where they are, and to all interrogations and should assist in the
presentation of the case. Whether it will be possible to achieve this I do
 Since within weeks Neumann was appointed First Chief of Research, with his OSS / CES
colleague Henry Kellermann as his deputy, it is likely that Neumanns proposal for a freewheeling
research division was fully accepted by Jackson. However, this was later termed "the Neumann problem"
by his rivals within Jacksons organisation, few of whom were satisfied with the nature, restrictions and
status of their assigned tasks. Furthermore, there is little evidence that, with greater exposure, Jacksons
senior staff lost faith in their OSS / R&A expert consultants on the Third Reich. For example, in making a
case for the supplementation of OSS expertise with that of British officials, who for geographical and
other reasons had been better placed to acquire fresh evidence of the structure and operations of German
military and police organisations, Taylor continued to praise the competence and "conscientious work" of
the OSS contingent.94
 There is some evidence, however, that during his period of conducting research on religious
persecution, Neumann may have over-played his hand in demanding an unprecedented degree of
autonomy within Jacksons organisation, a privilege denied even to the most senior figures within it. For
example, James Donovan, the General Counsel of OSS, soon became able to "reign in" Neumanns freewheeling
operation, at least to some extent. For example, General Donovan issued an internal OSS
memorandum entitled "Responsibility for Work in Connection with War Crimes," ordering that "all war
crimes activities undertaken by OSS shall be under the direction of the General Counsel."95 It further
ordered that all personnel "shall retain their basic branch assignment," and that James Donovan must in
the future give prior approval to any future staff re-assignments. It is possible, but by no means certain,
that this memo represented a direct response to Neumanns successful negotiations with, and earlier
reluctance to accept direct orders from, James Donovan.
 There is also considerable evidence that, as the pre-trial preparations moved closer to their final
phase, the role of the organisation and its OSS sub-group had to change, leading to a direct restriction
upon Neumanns research on the persecution of the Christian Churches. During the late summer of 1945,
the entire organisation had to concentrate exclusively upon projects that generated material suitable for use
in court, rather than the provision of background and strategic studies. Part of this re-organisation entailed
drawing up a new "memorandum of understanding" limiting the OSS group within OCC to two central
functions: to "furnish personnel to us at our request, who will be full-time for us, not part-time, and will
report either to Colonel Amen or Colonel Storey"; and, secondly to: "work on projects to make studies and
furnish us the end results. Aside from this, the outside independent OSS business will stop."96 For
budgetary reasons, James Donovan had to reduce the cost of OSSs commitments, and therefore did not
appear to object to this re-configuration.97 The minutes to a meeting in August 11, 1945 of Jacksons Pretrial
Planning Group included a reference to a discussion of the "Neumann problem" in the light of the
Justices comments on experts. The Justice does not want Neumann on
the continent examining people about religious matters. Storey suggested
that we review the R&A projects and decide which ones should be
stopped and which ones further pursued. Then he said organizationally
we can decide where Neumann should be located.98
 It appears that Jacksons senior staff both respected Neumanns expertise of his R&A team more
generally, and that in the fraught context of internal rivalry - sought to appropriate this resource for their
own particular division. Such appropriation, which Neumann clearly resisted, would entail his R&A
teams subordination and assimilation. It appears from an organisational chart of late summer 1945, that
Neumann and associated staff were assigned, at least provisionally, to work under Robert Storey in his
role as "Director of Document Procurement, Continent." At this time, the OSSs Drexel Sprecher and
Albrecht are also listed as forming part of this section. However, Jackson had then placed reference to "Dr
Neumann" in hand-written brackets and crossed out references to "and staff," as presumably the debate as
to his exact designation and assignment of further OSS / R&A colleagues was, as noted earlier, still being
wrangled over between the three Colonels.99
 The so-called Neumann problem was part of a wider issue regarding the shifting balance of power
between Jackson and General Donovan, which with the impending break up of the OSS as an early
casualty of peace shifted from the latter to the former. Notwithstanding his dependence on their support,
Jackson regarded OSS as a junior partner in the overall prosecution endeavour, and possibly was
concerned that OSS elements would continue to owe their first allegiance to General Donovan. Thus,
Jacksons policy was to exploit the expertise and resources of OSS, which was particularly vital during the
early and middle stages of pre-trial planning and preparation, without promising OSS personnel a major
role in the more glamorous court room presentation of the prosecutions case. The reported comments of
Jacksons senior staff during the Planning Meeting of August 11 to similar project, and express a desire to
limit Neumanns role to the best exploitation of completed R&A war crimes studies
Taylor said that the R&A projects are only background studies; they are
educational, not evidentiary, except that there is a considerable amount
of evidence buried in them, as Bernays suggested and Taylor agreed.
Such matters as orders, decrees, etc. Colonel Amen had a group of men
scrutinising the studies to get out of them what will be useful to
interrogators. The Justice read over Taylors memorandum listing the
R&A studies and said that the studies on Taylors list can now be closed
out. We will only further supplement them by Amen's and Storey's work
on the continent. From here on, said the Justice, this is a lawyers job.
Taylor recommended, and the Justice agreed, that Neumann [should]
stay here in the capacity of a consultant to the lawyers who are analyzing
the R&A studies and trying to put them into evidentiary form.100
 This document helps clarifies the manner in which OSS / R&A reports, including presumably the
Churches Report, were used selectively and without acknowledgement - as raw material both for the
composition of prosecution briefs presenting evidence with probative value, and for the conduct of
 Furthermore, in an outgoing cable, classified initially as "top secret" and addressed to "109
[General Donovan] & 535 only," Bill Whitney, an OSS lawyer who had previously held a senior post
within OSS / R&A London and had later been seconded to Jacksons organisation, reported on August 14,
1945 that Neumann had now been specifically instructed by Jackson to end his interviews with witnesses
to religious persecution in Germany and return back to London. This recall stemmed from a combined
attack upon Neumann from Colonels Amen, Storey, and Gill, who clearly resented Neumanns ability to
reject their demands that his team be assigned exclusively to one of themselves. Accordingly to this cable,
these three senior members of Jacksons office "developed strong complaints against OSS men
travelling on continent without prior clearance with them." Although Whitney records that "Justice
Jackson showed extremely friendly and appreciative attitude generally towards OSS contribution," he had
drawn the line at Neumanns freewheeling operation.
Jackson gave firm direction that no-one is to employ his name on [the]
continent without first reporting to Gill and being approved by him to
work either under Storey or under Amen. Justice Jackson has himself
taken [the] initiative [and has] sent [a] cable instructing Neumann [to]
return to London because Neumann is not to conduct interrogation but is
to act in [an] advisory capacity explaining [OSS and other] studies etc.
OSS interests best served by neither initiating from present any
objectives whatsoever under Justice Jacksons name except those
specifically approved by him. His attitude is that OSS did excellent work
of laying foundation and that there is still room for valuable OSS
contribution provided that it is strictly within [the] above policy.101
 This cable provoked official 535 (presumably Neumann himself) to take issue with these
allegations, and attempted disciplining measures. The response addressed to "Whitney alone," was that
[l]ocation of Neumann specifically cleared with Jackson, who asked that
he go to Paris and then recommend where he could make most effective
contribution. Storey was informed. Jackson program outlined by you
is exactly what we had in mind from [the] outset I know nothing
which had been done which is not within purview of his original general
directives to us, which we have carried out by giving all possible
 Wherever the truth of this matter lies, it is clear that Neumann and his OSS / R&A
research team had not lost the confidence of other senior members of Jacksons organisation. A
memorandum from an informal staff meeting involving Telford Taylor, Alderman, Benjamin
Kaplan, and Deinard, presented Jackson with the following request. "It is felt that Neumann
Kellerman, Marcuse, and Eisenberg who have assisted him hitherto should be put full-time on
the staff of the Chief of Counsel and that they should be assigned to the Colonel Kaplan on the
aspect of the case which he is preparing."103 This meant that it was planned that Neumanns team
were to be explicitly excluded from the economic case, and instead assigned to Colonel Kaplans small
team consisting of Farr, Johnston, and Murray, which had to prepare the criminal organisation charges.104
 With Neumanns departure to Europe in August 1945, responsibility for CESs activities on war
crimes within the Washington Office was delegated to Herbert Marcuse, who, according to Katz,
coordinated the sections preparations for the opening of the
International War Crimes Tribunal at Nuremberg. During that Summer ...
he and his colleagues prepared briefs on Himmler and Goering, on Nazi
organisations involving the commission of war crimes, and on Nazi
Plans for Dominating Germany and Europe (a nine-part series for the
use of the War Crimes Staff)."105
 On his arrival at Berlin, Neumann was confronted with the devastation that accompanied Hitlers
military defeat and consequent allied occupation. Katz notes that Neumann had to be provided with
military protection from the threat of guerrilla attacks from armed Nazi supporters.106 During this period,
such attacks tended to be sporadic and localised, and were not publicised by the Allied authorities for
strategic reasons. These attacks included poisoning the food and water of Allied forces, and at least one
successful assassination of an American civilian on the Autobahn. On the other hand, other R&A staff
encountered no evidence of any such physical threats, and hence moved freely around Germany without
any sense of danger.107
 A further memo, dated 30 August 1945, confirms that Neumanns team "now overseas for War
Crimes work"108 included Wallace Doerr, Elizabeth Fitzgerald, Henry Kellermann, John Herz and Robert
Eisenberg. In total, there are 22 R&A Branch analysts cited, supported by a further 19 clerical staff. Other
OSS staff involved in war crimes research under James Donovan, plus part-time specialist consultants
hired under temporary contract for "one off" projects,109 and OSS / R&A staff already in post at OSS
outposts in London, Paris and Berlin, would also have to be added to any more comprehensive list of OSS
staff involved in Nuremberg preparations.
 Unfortunately, details of OSS / R&A personnel in London and Paris are not given. The range of
responsibilities and specialist knowledge covered is comprehensive with, for example, Dr.Arnold Price,
whose expertise was in European Geography, involved in ascertaining and checking details of Nazi land
seizures and "illegal German annexations, mostly in the East.110 Other staff prepared material, NSDAP
crimes to 1934 (Dr. Emil Gumbel) and NSDAP, SS, SD, Gestapo and Police as Criminal Organisations
(Albert Phiebig), which contributed to R&A reports which then fed into specific Nuremberg
indictments.111 Whilst in Europe during the summer of 1945, Neumann made " a determined effort" to
"gain for his group a hearing" amongst the high-level organisation manoeuvres between the Allies and the
US Joint Chief of Staffs that were currently taking place over the war crimes issue.112
 Justice Jackson, who lacked any experience of cross-examination within criminal trials, initially
preferred reliance upon documentary evidence. Such reliance appeared sensible to Jackson and others
partly because it saved considerable time by reducing extended periods of cross-examination whose
course was not always predictable.113 This disagreement contributed to the rift between Jackson and
Donovan, his deputy, which then led to Donovan briefing journalists against Jackson. In turn, it is likely
that this rift effectively ended Neumanns influence upon how the prosecutors prepared for the
Nuremberg hearings.114 Neumann, whose trial experience was restricted to German labour law, did not
form part of the large team of OSS lawyers distinguished themselves at the initial Nuremberg trials, such
as James Donovan, Whitney Harris, Drexel Sprecher, and (possibly) Robert Kempner.115 Furthermore,
Taylor records how Neumanns undisputed expertise within the empirical aspect of Nazi war crimes was
not always used to its best effect, particularly during the rushed process of actually selecting defendants
for formal indictment. Taylor notes
Jackson involved his staff in drafting the indictment, but for some reason
ignored them in the defendant-selection process. He and Aldermann were
fine lawyers, but neither was an expert on the structure and hierarchy of
the Third Reich. ... Neither I nor ... any of my friends and contemporaries
on Jacksons staff were consulted. ... Late in August, hearing rumours of
what was afoot, I enlisted Franz Neumanns aid and circulated a
memorandum on defendant selection in which I suggested some
 Jackson however, largely ignored the joint approach by Taylor and Neumann. According
to Taylor, the result that serious deficiencies occurred in the preparation of the cases against
Gustav and Krupp "which had serious and continuing consequences."117 Taylor attributes the
blunders associated with the prosecution of Krupp partly due to pressure on the legal teams
having to rush the completion of unfamiliar work, and as a result of "Jacksons and Shawcrosss
failures to organise their staffs so that the informational resources of men like Passant and Franz
Neumann would be adequately considered when the chief prosecutors made the final
 Neumanns roving assignment included a visit to Biebrich in Wiesbaden at the end of August
1945, stopping off in Paris on the way, where the OSS had, in the meantime, established their central
office for Germany.119 Neumann was eventually re-assigned to Nuremberg itself, when Jackson decided at
the end of August to move the "evidence collection and analysis section" to this city between September
10 and September 17, 1945.120 Thus, from mid-September 1945, Neumanns R&A team prepared and
supervised materials for a series of indictments with other OSS colleagues responsible for both
interrogation and document analysis. Stuart Hughes, who worked as an interpreter and historical adviser
within the OSSs sub-section, recalls "the staff of experts the omniscient Franz Neumann was assembling
for the great trial," and his own supporting role for the US prosecution office in "extract[ing] affidavits
about the late regimes atrocities from leading anti-Nazi Germans."121 It was towards the end of September
1945 that Neumann resigned from the Nuremberg team in favour of a re-assignment back to Washington
as a senior analyst with the State department, to be replaced by his deputy Henry Kellermann, who stayed
on to witness the opening week of the trial in November 1945.
 The contribution of OSS personnel to the major and subsequent Nuremberg war crimes trials did
not, however, end with the formal dissolution of the OSS on October 1, 1945, or with the withdrawal of
General Donovan and Ralph Albrecht in December 1945. Instead, documentation recently made available
by the CIA, indicates that a substantial residue of OSS staff, 134 in total, continued to be employed as of
October 1, 1945. When reporting on the War Department on the progress of the imminent dissolution of
OSS, John Magruder provided a helpful table giving a breakdown of the numbers, as of 1 October 1945,
of full-time staff from different sections of the OSS supporting these trials.122
 Magruder notes that
Jackson enlisted the aid of several branches of OSS; namely, Office of
the General Counsel, and the R&A, SI, X-2, Presentation, Field
Photographic, and Reproduction Branches. The Office of the General
Counsel was designated as a central office to coordinate and correlate
these activities, to analyse and screen evidentiary material, including that
received from other agencies such as MIS and OID and to recruit
Magruder confirms that since the initiation of OSS involvement, "a great volume of evidentiary
documents and studies, including films, movies, graphic and pictorial exhibits, briefs, interrogations and
affidavits have been collected." These were sent overseas to London, Paris and Nuremberg, where "they
are further processed for the trials."124 When further reviewing the progress of SSU as of mid-October
1945, Magruder indicates that Justice Jackson had specifically requested that former-OSS personnel be
retained on his staff, and that he intended to approve this request.125
 This article has addressed the contents of both the recently discovered Donovan/Cornell collection
and other related declassified archival sources in order to cast new light on one particular dimension of the
OSSs contribution to the Nuremberg war crimes trials - the persecution of the Christian Churches. As far
as available sources permit, we have also clarified why Franz Neumann, a German-Jewish ï¿½migrï¿½ and
OSSs leading expert on Nazi Germany, was selected to gather evidence of religious persecution from
continental Europe. We have also illustrated why such supplementation was considered necessary to
update the OSS / R&A Report published in the current issue. Finally, our article has shown that central
aspects of Neumanns scholarly analysis of Nazi Germany, articulated most clearly in Behemoth, exerted
both a direct and indirect influence upon how senior OSS and other Nuremberg prosecutors developed
their trial strategy, particular the idea that the Nazis pre-war persecution of fellow Germans needed to be
seen as one phase of a wider and largely political programme involving the use of law to subvert the rule
1See TOM BOWER, BLIND EYE TO MURDER (1995); TOM BOWER, KLAUS BARBIE, BUTCHER OF LYON
(1985); ALAN FINKIELKRAUT, REMEMBERING IN VAIN: THE KLAUS BARBIE TRIAL AND CRIMES AGAINST
See JOHN S. CONWAY, THE NAZI PERSECUTION OF THE CHURCHES 1933-45, 474 (1968); MOSHE
HERCZL, CHRISTIANITY AND THE HOLOCAUST OF HUNGARIAN JEWRY 299 (1993); GUENTER LEWY, THE
CATHOLIC CHURCH AND NAZI GERMANY 416 (1964). But see, CIA Archives show Pius XII saved Jews
and Opposed Nazis,http://www.cathtelecom.com/news/109/23.html (last visited January 8, 2002) (On file
with the Rutgers Journal of Law and Religion), for a defence of the Vatican citing declassified OSS/CIA
See JOHN LOFTUS, UNHOLY TRINITY: THE VATICAN, THE NAZIS AND THE SWISS BANKS (1993);
RICHARD PATTEE, THE CASE OF CARDIANL ALOYSIUS STEPINAC 499 (1953); John L. Jr., Allen, Croatian
Connection Remains Most Debated Aspect of Vatican's World War II Legacy, 5 NATIONAL CATHOLIC
REPORTER Issue 6, (1998) noting that:
In the quest to document the whereabouts of assets looted during World
War II, the most contested issue touching the Catholic Church concerns
its role in Croatia under the fascist Ustasha movement. The Ustashi
carried out mass deportations and executions of Serbs, Jews and Gypsies.
New evidence suggesting a tie between the Vatican and the Ustashi
surfaced last July. The key finding was an intelligence report, quoting a
reliable source, that looted Ustasha gold, worth approximately $170
million in today's dollars. It had been held at the Vatican for safekeeping
at the war's end, and then moved to Spain and Argentina. The report
escaped the attention of U.S. investigators but was uncovered by
researchers working on a documentary for the A&E cable channel.
Greg Bradsher, director of the Holocaust-era Assets Project for the
American government, acknowledged the evidence in many respects
is raw intelligence data from primarily OSS reports.
Id. at 5; Vatican Drawn Into Scandal Over Nazi-era Gold,
http://cnn.com/WORLD/9707/22/nazi.gold/index.html(July 22, 1997) (on file with the Rutgers Journal of
Law and Religion).
See also, Bruce Johnston, Vatican Priest was Nazi Spy, Says CIA, DAILY TELEGRAPH, March 7,
4These files are now located in Cornell Law School, Ithaca, NY, and will be cited as
See Petra Marquardt-Bigman, Behemoth Revisited: The Research and Analysis Branch of the OSS in the
Debate of US Policies towards Germany, 1943-46, 12 INTELLIGENCE AND NATIONAL SECURITY 91-200
For instance, it was Sprecher who helped organise and present the prosecutions case against the
Defendant Baldur von Schirach, the Hitler Youth Leader and Gauleiter of Vienna. He presented
documentary evidence that this defendant had, as Gauleiter of Vienna, initiated wartime measures
persecuting the Churches in Austria, administered slave labor programmes and deported remaining
Viennese Jews. See DREXEL A. SPRECHER, INSIDE THE NUREMBERG TRIAL 529 (1998). Sprecher was
assigned a particularly difficult case because Schirach had held no major political office and had little
involvement in any military matters. Sprecher was given the difficult task of demonstrating that the
promotion of Nazi nationalistic, militaristic, and anti-Semitic ideology amongst the young was directly
linked to established legal categories of war crime. Id. at 523-531, 997, 1000, 1003, & Ch. 52. Sprecher
also assisted in the preparation of aspects of the case against the Julius Streicher, the anti-Semitic Gau
Leader of Franconia and Nazi publisher, editor and journalist, incorporating and supplementing relevant
parts of an internal OSS report on this defendant. During the summer of 1945, he also observed some of
Streichers interrogations. Id. at 515.
R&A Report 3114.4 (draft for war crimes staff, dated 6th July 1945) (hereinafter "Churches").
Churches, supra note 7, at 1.
10See Geoff Pearson & Michael Salter, Getting Public Law Back into a Critical Condition: The Rule of
Law as a Source for Immanent Critique, 8 SOCIAL AND LEGAL STUDIES 483-508 (1999).
11That is, art. 135-140, 149.
12Churches supra note 7, at 2.
14Id at 3.
15Based on R&A Report 3114.4, contained in DONOVAN/CORNELL, Vol. 10, 18.02.
16See Barry M. Katz, The Arts of War: "Visual Presentation" and National Intelligence, DESIGN
ISSUES Vol. 12 1996, at 3.
17Carl E. Schorsche was based in R&A Washington, and was later to hold high judicial office within
18Coogan had been assigned to the newly established European section of Justice Jacksons organisation.
19Memo from Carl E. Schorsche USNR to Maj. William Coogan, Churches, supra note 7, at Handwritten
21This is developed further in subsequent sub-sections.
22Sprecher realised this aim with his brief on Robert Ley, who committed suicide prior to trial.
23Fabian Von Schlabrendorff was a lawyer and first lieutenant in the reserves. During his early years as a
student at the University of Berlin he was the leader of a small anti-Nazi group. He was arrested for his
involvement in the July 20, 1944 assassination attempt on Hitler and served time at various concentration
camps including Sachsenhausen, Flossenburg, Dachau and Innsbruck. He was released in early May 1945
by U. S. forces.
24From Memo to General Donovan, Oct 1945 DONOVAN/CORNELL 3 Vol 10, 18:04. (Translated from
the original German on the same day.)
27See Memo from Rothschild to Col. M Bernays GSC, German Monist Organisation, 9 July 1945,
DONOVAN/CORNELL, Vol. 10, 18.05.
28See Alfons Sollner, Franz Neumann, 58 TELOS 171 (1981-82); Alfons Sollner, Leftist Students of the
Conservative Revolution: Neumann, Kirchheimer and Marcuse, 61 TELOS 55 (1984).
29The first edition was published in 1942 by Oxford University Press, and a 2nd revised edition with
extended appendix covering events 1942-44 drawn from Neumanns OSS research was published in 1944.
30See BARRY. M. KATZ, FOREIGN INTELLIGENCE: RESEARCH AND ANALYSIS IN THE OFFICE OF
STRATEGIC SERVICES, 1941-1945, 56-57 (1989); PETRA MARQUARDT-BIGMAN, AMERIKANISCHE
GEHEIMDIENST ANALYSEN UBER DEUTSCHLAND 1942-1949, 45 Studien zur Zeitgeschichte (1995).
31SHLOMO ARONSON, Preparations for the Nuremberg Trial: The OSS, Charles Dwork and the
Holocaust, 12 HOLOCAUST AND GENOCIDE STUDIES (1998); cf. Michael Salter, The Visibility of the
Holocaust: Franz Neumann and the Nuremberg Trials, in, SOCIAL THEORY AFTER THE
HOLOCAUST 197-218 (Robert Fine & Charles Turner eds. 2000).
32See Salter, supra note 31.
33Id. See also, ARONSON, supra note 31.
34See DONOVAN/CORNELL Vol. 3, pt. 1, 7.09.
35Lamberts role and final draft is acknowledged by Justice Jackson in his preface to 1 NAZI CONSPIRACY
ANDAGGRESSION, iii (1946).
36Churches supra note 7, at 1.
37Harris was another OSS lawyer and author of TYRANNY ON TRIAL: THE EVIDENCE AT NUREMBERG
38Dated 10 November 1945, DONOVAN/CORNELL, Vol. 6, 11.06 forming part of "Subdivision 11 /
Storm Troops, Gestapo, SS and SD."
39Dated 10 November 1945, DONOVAN/CORNELL, Vol. 6, 11.05.
40Id. at 22.
41Chapter III: International Military Tribunal, Indictment Number 1: Part 2, in NAZI CONSPIRACY
AND AGGRESSION, supra note 27, at 15-21.
42DONOVAN/CORNELL, Vol.5 pt.1 10.04 , Subdivision 10, High Command and General Staff. It is
referred to in earlier documentation contained in DONOVAN/CORNELL, 10.3.
43Id. at 17. It also claims that the Armys own leadership in military affairs was challenged and ultimately
subverted by the growth and actions of both the SA [para-military brownshirts] and Himmlers SS.
44This document formed part of a series of statements Donovan obtained from senior military officers,
including a summary sheet, immediately followed by a transcript, of the interrogation of Georg R.
Thomas, a retired general with the German Infantry, conducted on November 9, 1945. This interrogation
provides details of Thomass and Hjamar Schachts opposition to Nazi policies of religious persecution
after 1937, particularly those of Goering, and their subsequent arrest and detention in Flossenburg and
then Dachau concentration camps. See DONOVAN/CORNELL, Vol. 2 6.12. Donovan was clearly
attempting to turn these military leaders into witnesses for the prosecution, a policy that Jackson opposed
by attempting to criminalize the entire German high command as a criminal organisation.
45Capt. O. N. Nordon, Special Assistant to Major General Donovan, Memo for Justice Robert H. Jackson,
15th November, DONOVAN/CORNELL, 48.05.
46Handwritten in German and then typed in English.
47Memo for Justice Robert H. Jackson, supra note 45, at 5.
48Here, it is worth noting that Neumanns colleague Otto Kirchheimer, a criminal law specialist who
possessed considerable expertise in the transformation by the Nazis of Germanys criminal justice system,
was not assigned to Jacksons organisation. When the renewed attention to war crimes questions began in
earnest, during May 1945, Kirchheimers time was already committed to a pre-existing R&A Report on
the Nazis Changes in Criminal Procedure. This and his direction of two other projects carried out by
consultants meant that "he will be tied up on this work for some time." Summary Notes on CES and War
Crimes by Richard Hartshorne, 12 May 1945, NA RG226, entry1, box 2, folder 66.
49Neumann finally joined OSS / R&A in March 1943 following 12 months prolonged negotiations with
Walter Dorn. Within six months, Neumann facilitated OSS positions for his two Frankfurt School
colleagues in the CES.
50See KATZ, supra note 30, at 208 n. 14 (quoting from historian Prof. Harold Deutsch, Neumanns
superior in OSS/R&A).
51See John J. Herz, VOM ï¿½BERLEBEN: WIE EIN WELTBILD ENTSTAND (Autobiography) 136
52See Barry M. Katz, Frankfurt School Goes to War 59 JOURNAL OF MODERN HISTORY 447 (1987).
54Sherman Kent, Carl Schorske, Franz Neumann, Phoebe Morrison, and George Young (from
Biographical Records) and Frederick Burkhardt and (where necessary) Boris Klosson (from USSR
Division. See OSS memorandum, War Crimes Committee, Hartshorne to Carl Schorske, 6 June 1945,
NA, RG 226, entry 1, box 2, folder 6.
55Memo to Bernays, June 9, 1945, Jackson Paper, Box 85, LOC.
56That is, notwithstanding Marcuses later prominence within the "new left" and student movements of
the late 1960s, a prominence he achieved long after Neumanns pre-mature death in 1954.
57By contrast, the administrative coordination of OSSs war crimes work was assigned to James Donovan,
former OSS General Counsel, who also had particular responsibilities for OSSs concentration camp films
and other visual presentations. See JAMES DONOVAN, CHALLENGES, (1967).
58Correspondence on this is contained in the Max Horkheimer Archive, Univ. of Frankfurt, MHA, VI 30
(Neumann Horkheimer 26 June 1945); PETER INTELLMANN, FRANZ NEUMANN: CHANCEN UND
DILEMMAN DES POLITISCHEN REFORMISMUS 47 (1995).
59See Jacksons Diary, June 7th 1945, Jackson papers, LOC, box 95.
60See the minutes of Jackson and Donovans formal meeting with the British at the House of Lords 29th
May Jackson Papers, LOC, Box 95.
61PETER INTELLMANN, ZUR BIOGRAPHIE VON FRANZ L. NEUMANN 47 (1990).
62Unfortunately whilst there is a growing literature on evolution of Neumanns legal theory, his work on
war crimes remains largely neglected. See WILLIAM SCHEUERMAN, BETWEEN THE NORMS AND THE
EXCEPTION: THE FRANKFURT SCHOOL AND THE RULE OF LAW (1994); THE RULE OF LAW UNDER SIEGE:
SELECTED ESSAYS OF FRANZ L. NEUMANN & OTTO KIRCHHEIMER (William Scheuerman, ed., 1996);
RICHARD KELLNER & HERBERT MARCUSE, WAR AND TECHNOLOGY (1998).
63This impression, clear from Taylors flattering references to Neumann, has been buttressed by a
telephone interview on July 1, 1998 with Prof. Carl Schorske, who played a leading role within OSS /
R&A., and is cited first in an official list of "R&A personnel engaged in war crimes work in Washington,"
30 Aug. 1945: NA, RG 226, Correspondence of the Division Chief, 1942-45, entry 37, box 6, Folder:
"War Crimes program."
64Telephone interview with Carl Schorske. (July 1, 1998).
65See TELFORD TAYLOR, ANATOMY OF THE NUREMBERG TRIALS 49 (1992).
66Id. at 52.
67Id. at 46.
68Id. at 28.
69See memorandum from Sherman Kent, Director of European-African division within OSS / R&A, to
William Langer, 16 July, who headed the R&A Branch, NA, RG226, Correspondence of Chief, entry 11,
box 2, folder 6.
71Katz, supra note 30 at 35.
72He was classified P.7 on a relatively comfortable salary of $6,500, whereas Marcuse and Kellerman
were P.6 and P.5 grades on $4,600 and $5, 600 respectively.
73On the other hand, it should not be assumed that all CES posted to Germany were involved in war
crimes research. The OSS / R&A staff from the CES were also charged with a series of intelligence tasks,
such as monitoring the reconstruction of the Universities, in order to provide Washington with an up-dated
picture of what was happening in the immediate aftermath of the war. This agency had a German-based
center. Telephone interview with Carl Schorske. (July 1, 1998).
74In fact, Neumann left Nazi Germany for England in 1933 following his outspoken criticism of Nazi
press restrictions and subsequent arrest. He moved to America from England in late 1936.
75Katz supra note 30, at 54.
76Neumann to Kent, 3 August 1945, NA, RG226, entry 1, box 2, folder 7.
77Neumann to Kent, 3 August 1945, p. 1, NA, RG226 entry 1, box 2, folder 7.
78Id. at 2.
79See Memorandum of James Donovan to Justice Jackson, 29 July 1945, LOC, Jackson papers, box 101,
in which Donovan presented the only existing copy of the R&A / CES Report "German Economic
Preparation Abroad," with a curious request that it be returned for reproduction and distribution to
Jacksons senior staff.
80Neumann to Kent, 3 August 1945, supra note 76. "Francis Shea has been put in charge of economic
aspects of the prosecution. I hope you have discussed the EISENBERG project with him. You will find
in a memorandum that I transmitted today to Mr. Justice Jackson an expression of my views in regard to
this aspect of the case." Id.
81Taylor, supra note 65, at 80.
82Herbert Marcuse, Preface to FRANZ L. NEUMANN, THE DEMOCRATIC AND AUTHORITARIAN STATE viii
83See Ian Bryan and Michael Salter, War Crimes Prosecutors And Intelligence Agencies: The Case For
Assessing Their Collaboration, INTELLIGENCE AND NATIONAL SECURITY, (forthcoming 2002).
84Neumann to Kent, 3 August 1945, supra note 76.
92OCC, Assignments for London Phase of the Work, June 1945, LOC, Jackson Papers, box 106, p. 1.
93Neumann to Kent, 3 August 1945, supra note 76.
94Taylor to Jackson, "The Obtaining of a Small Group of British Personnel Experts on German Military
and Police Organizations", 28 August 1945, LOC, Jackson Papers, box 106, p. 1.
95General Donovan to List S, 27 August 1945, (OSS 77572), NA, RG226 entry 1, box 2, folder 7.
96Minutes of Pre-trial Meeting group August 11, 1945, LOC, Jackson Papers, Box 107.
99"Tentative Organisational Chart", undated, LOC, Jackson Papers, Box 106.
100Minutes of Pre-trial Meeting group August 11, 1945, LOC, Jackson Papers, Box 107.
101Outgoing Cable 46529, 14 August 1945, LOC, Jackson Papers, Box 111.
102Incoming Cable from "535", No. 39079, 15 August 1945, LOC, Jackson Papers, Box 111.
103Memorandum for Mr Justice Jackson, August 15 1945, LOC/Jackson Papers, Box 107.
105Id. at 54.
106See Katz 1987, supra note 52, at 448.
107Private correspondence between Michael Salter and Neumanns former colleague in OSS / R&A H.
Stuart Hughes, April 23, 1998.
108Capt. Tallalian to Richard Stebbins, R&A Personnel engaged in War Crimes work, NA, RG 226, Entry
37, folder "war crimes program".
109There were at least two such part time consultancy appointments: Dr. Emil Gumbel (NSDAP crimes to
1934) and Albert Phiebig (NSDAP, SS, SD, Gestapo and Police as Criminal Organisations) who were paid
$250 and $692 respectively, Id.
110Correspondence with the author June 14, 1998; telephone interview with Price, June 5th 1998 which
confirmed that Neumann was one of the "main people" involved in OSS war crimes work.
111This is derived from an undated document in the OSS war crimes file listing staff grades and costs
during 1945 (including travel between London and Paris), which are cited as amount to a not
inconsiderable total of $49,143.64. NA, RG 226, Entry 37, folder "war crimes program."
112Katz, supra note 30 at 212, n. 63.
113I am indebted to a telephone interview with Drexel Sprecher on 5/5/1998 for this important point.
114Taylor, supra note 65, at 186, 238-40.
115There is evidence that Kempner was once employed by OSSs Foreign Nationalities branch on a
116Taylor, supra note 65 at 90.
118Id. at 117.
119See NA, RG 226 Director's Office and Field Station Records, entry 190, box 283, folder 1244; War
Crimes Commission May-August 1945, entry 190, box 29, folder 6; entry 190, box 284, folder 1247; OSS
Mission to Germany August 1945, folders 1251-1253; OSS Mission to Germany, August 1944-May 1945,
entry 190, box 29, folder 7 and entry 190, box 286, folder 1266; OSS Mission to Germany October 1944-
April 1945: entry 190, box 9, folder 29; entry 190, box 293, folder 1365.
120See point 12, "Move to Nuremberg" Notes of a Staff Meeting, 31 August 1945, p. 3, LOC, Jackson
Papers, box 110.
121STUART HUGHES, GENTLEMAN REBEL 175-76 (1990). Hughes help for Neumann Including securing a
deposition from Theodor Heuss, who four years later was to be elected the first President of the Bonn
122Brig. Gen. John Magruder (Director of the Strategic Services Unit) to McCloy (Assistant Secretary of
War, Department of War), Strategic Services Unit as of 1 October 1945, Washington, October 9, 1945
CIA Historical Files, HS/HC-265,http://www.state.gov/www/about_state/history/intel/95_99.html (on file
with the Rutgers Journal of Law and Religion). The table below shows, numerically, the personnel who
were actively engaged in War Crimes work in Washington and in ETO, and the wide range of OSS
Branches and sections that comprised its overall contribution to the Nuremberg and related projects.
Magruders memorandum also indicates that the figure of 138 understates the total staff OSS devoted to
these trials, which included other part-time and locally recruited auxiliary personnel. Magruders memo
also provides the following breakdown of the different Branches of OSS contributing to the Nuremberg
Office of General
Research & Analysis ETO 8
Presentation ETO 8
Field Photographic Washington 21
Reproduction ETO 4
SI ETO 12
X-2 Washington 1
"The above does not include the large number of SSU personnel devoting part time to War Crime work or
related activities, nor does it include the group of British nationals employed full time on this project by
125Brig. Gen John Magruder (Director of the Strategic Services Unit) to McCloy (Assistant Secretary of
War, Department of War), "Strategic Services Unit as of mid-October, 1945", Washington, October 25,
1945, CIA Records, Job 83-00036, Box 3, Folder 16. Secret;