An express letter, sent to the commanders of the mobile killing units after the September meeting, was among the documents submitted at the trial and was of special interest. It refers only to “the Jewish question in occupied territories” and distinguishes between the “final goal,” which must be kept secret, and “preliminary measures” for reaching it. Among the latter, the document mentions expressly the concentration of Jews in the vicinity of railroad tracks. It is characteristic that the phrase “Final Solution of the Jewish question” does not occur; the “final goal” probably was the destruction of Polish Jews, clearly nothing new to those present at the meeting; what was new was only that those Jews who lived in newly annexed provinces of the Reich should be evacuated to Poland, for this was indeed a first step toward making Germany judenrein, hence toward the Final Solution.
As far as Eichmann was concerned the documents clearly showed that even at this stage he had next to nothing to do with what happened in the East. Here, too, his role was that of an expert for “transportation” and “emigration”; in the East, no “Jewish expert” was needed, no special “directives” were required, and there existed no privileged categories. Even the members of the Jewish Councils were invariably exterminated when the ghettos were finally liquidated. There were no exceptions, for the fate accorded the slave laborers was only a different, slower kind of death. Hence the Jewish bureaucracy, whose role in these administrative massacres was felt to be so essential that the institution of “Jewish Councils of Elders” was immediately established, played no part in the seizure and the concentration of the Jews. The whole episode signals the end of the initial wild mass shootings in the rear of the armies. It seems that the Army commanders had protested against the massacres of civilians, and that Heydrich had come to an agreement with the German High Command establishing the principle of a complete “cleanup once and for all” of Jews, the Polish intelligentsia, the Catholic clergy, and the nobility, but determining that, because of the magnitude of an operation in which two million Jews would have to be “cleaned up,” the Jews should first be concentrated in ghettos.
If the judges had cleared Eichmann completely on these counts connected with the hair-raising stories told over and over by witnesses at the trial, they would not have arrived at a different judgment of guilt, and Eichmann would not have escaped capital punishment. The result would have been the same. But they would have destroyed utterly, and without compromise, the case as the prosecution presented it.
XIV: Evidence and Witnesses
During the last weeks of the war, the S.S. bureaucracy was occupied chiefly with forging identity papers and with destroying the paper mountains that testified to six years of systematic murder. Eichmann's department, more successful than others, had burned its files, which, of course, did not achieve much, since all its correspondence had been addressed to other State and Party offices, whose files fell into the hands of the Allies. There were more than enough documents left to tell the story of the Final Solution, most of them known already from the Nuremberg Trials and the successor trials. The story was confirmed by sworn and unsworn statements, usually given by witnesses and defendants in previous trials and frequently by persons who were no longer alive. (All this, as well as a certain amount of hearsay testimony, was admitted as evidence according to Section 15 of the law under which Eichmann was tried, which stipulates that the court “may deviate from the rules of evidence” provided it “places on record the reasons which prompted” such deviation.) The documentary evidence was supplemented by testimony taken abroad, in German, Austrian, and Italian courts, from sixteen witnesses who could not come to Jerusalem, because the Attorney General had announced that he “intended to put them on trial for crimes against the Jewish people.” Although during the first session he had declared, “And if the defense has people who are ready to come and be witnesses, I shall not block the way. I shall not put any obstacles,” he later refused to grant such people immunity. (Such immunity was entirely dependent upon the good will of the government; prosecution under the Nazis and Nazi Collaborators [Punishment] Law is not mandatory.) Since it was highly unlikely that any of the sixteen gentlemen would have come to Israel under any circumstances—seven of them were in prison—this was a technical point, but it was of considerable importance. It served to refute Israel's claim that an Israeli court was, at least technically, the “most suitable for a trial against the implementers of the Final Solution,” because documents and witnesses were “more abundant than in any other country”; and the claim with respect to documents was doubtful in any event, since the Israeli archive Yad Vashem was founded at a comparatively late date and is in no way superior to other archives. It quickly turned out that Israel was the only country in the world where defense witnesses could not be heard, and where certain witnesses for the prosecution, those who had given affidavits in previous trials, could not be cross-examined by the defense. And this was all the more serious as the accused and his lawyer were indeed not “in a position to obtain their own defense documents.” (Dr. Servatius had submitted a hundred and ten documents, as against fifteen hundred submitted by the prosecution, but of the former only about a dozen originated with the defense, and they consisted mostly of excerpts from books by Poliakov or Reitlinger; all the rest, with the exception of the seventeen charts drawn by Eichmann, had been picked out of the wealth of material gathered by the prosecution and the Israeli police. Obviously, the defense had received the crumbs from the rich man's table.) In fact, it had neither “the means nor the time” to conduct the affair properly, it did not have at its disposal “the archives of the world and the instruments of government.” The same reproach had been leveled against the Nuremberg Trials, where the inequality of status between prosecution and defense was even more glaring. The chief handicap of the defense, at Nuremberg as at Jerusalem, was that it lacked the staff of trained research assistants needed to go through the mass of documents and find whatever might be useful in the case. Even today, eighteen years after the war, our knowledge of the immense archival material of the Nazi regime rests to a large extent on the selection made for purposes of prosecution.
No one could have been more aware of this decisive disadvantage for the defense than Dr. Servatius, who was one of the defense counsels at Nuremberg. Which, obviously, makes the question of why he offered his services to begin with even more intriguing. His answer to this question was that for him this was “a mere business matter” and that he wished “to make money,” but he must have known, from his Nuremberg experience, that the sum paid him by the Israeli government— thousand dollars, as he himself had stipulated—was ridiculously inadequate, even though Eichmann's family in Linz had given him another fifteen thousand marks. He began complaining about being underpaid almost the first day of the trial, and soon thereafter he openly voiced the hope that he would be able to sell whatever “memoirs” Eichmann would write in prison “for future generations.” Leaving aside the question of whether such a business deal would have been proper, his hopes were disappointed because the Israeli government confiscated all papers written by Eichmann while in jail. (They have now been de-posited in the National Archives.) Eichmann had written a “book” in the time between the adjournment of the court in August and the pronouncement of judgment in December, and the defense offered it as “new factual evidence” in the revision proceedings before the Court of Appeal—which of course the newly written book was not.