Eichmann trial - The District Court Sessions








The Trial of Adolf EichmannSession 2(Part 1 of 3)



Session No 2
25 Nissan 5721 (11 April 1961)
Presiding Judge: I declare the second session open.
Mr. Hausner, please continue with your argument.
Attorney General: With the Court's permission. I was dealing with the
question of an American decision in regard to the relevancy of bringing a man to
trial and the manner of so doing. In regard to the issue of competence, I shall
quote a series of judgments of the Supreme Court of the United States and also
of Federal Courts of the United States, and, as I have already said, their
importance is great since these courts consider these matters according to the
principles of public international law as part of the national law of the United
States. At the outset I should like to quote not actually the first decision
that was given in the series - I shall return to that in the course of my
argument - but to a judgment which illustrates and answers most of the questions
which arise here. I am referring to case of Pettibone versus Nichols 1906, 51
Lawyers' Edition on page 148. I shall first quote the facts of the case as they
are set forth on page 151:
"On the 15th of March, 1906 , after the final judgment in the
Supreme Court of Idaho, Pettibone made application to the Circuit Court of the
United States, sitting in Idaho, for a writ of habeas corpus alleging that he
was restrained of his liberty by the sheriff of Canyon county, in violation of
the Constitution and laws of the United States. As was done in the Supreme
Court of Idaho, the accused set out numerous facts and circumstances which, he
contended, showed that his personal presence in Idaho was secured by fraud and
connivance on the part of the executive officers and agents of both Idaho and
Colorado, in violation of the constitutional and statutory provisions
regulating to fugitives from justice. Consequently, it was argued, the court
in Idaho did not acquire jurisdiction over his person."On page 154:

"As the petitioner is within the jurisdiction of Idaho, and is
held by its authorities for trial, are the particular methods by which he was
brought within her limits at all material in the proceeding by habeas corpus?
It is contended by the State that this question was determined in its favour
by the decisions of this court. This is controverted by the petitioner, and we
must therefore, and particularly because of the unusual character of this case
and the importance of the questions involved, see what this court has
therefore adjudged."There follows an analysis of the authorities,
to which I shall return later. And on page 155, it is said in connection with
the well-known judgment of Ker versus Illinois:
"If Ker, by virtue of the treaty with Peru, and because of his
forcible and illegal abduction from that country, did not acquire an exemption
from the criminal process of the courts of Illinois, whose laws he had
violated, it is difficult to see how Pettibone had acquired, by virtue of the
Constitution and laws of the United States, an exemption from prosecution by
the state of Idaho, which has custody of his person."As to the
principles of the decision, I quote from page 157:
"These principles determine the present case and require an
affirmance of the judgment of the circuit court. It is true, the decision in
the Mahon case was by a divided court, but its authority is nonetheless
controlling. The principle on which it rests has been several times recognized
and reaffirmed by this court, and is no longer to be questioned. It was held
in Cook v. Hart, 146 U.S. 183, 192, 36 L. ed. 934, 939, 13 Sup. Ct. Rep. 40,
that the cases of Ker v. Illinois and Mahon v. Justice established these
propositions: 1. That this court will not interfere to relieve persons who
have been arrested and taken by violence from the territory of one state to
that of another, where they are held under process legally issued from the
courts of the latter state. 2. That the question of the applicability of this
doctrine to a particular case is as much within the province of a state court,
as a question of common law or of the law of nations, as it is of the courts
of the United States; in Lascelles v. Georgia, 148 U.S. 537, 543, 37 L. ed.
549, 551, 13 Sup. Ct. Rep. 687, that it was settled in the Ker and Mahon Cases
that '...Except in the case of a fugitive surrendered by a foreign government,
there is nothing in the Constitution, treaties, laws of the United States,
which exempts an offender, brought before the courts of a state for an offense
against its laws, from trial and punishment, even though brought from another
state by unlawful violence, or by abuse of legal process' and in Adams v. New
York, 192 U.S. 585, 596, 48 L. ed. 575, 579, 24 Sup. Ct. Rep. 372 ( the same
cases being referred to ) that '...If a person is brought within the
jurisdiction of one state from another, or from a foreign country, by the
unlawful use of force, which would render the officer liable to a civil
action, or in a criminal proceeding, because of the forcible abduction, such
fact would not prevent the trial of the person thus abducted in the state
wherein he had committed an offense."Presiding Judge: By
which Court was this judgment given?
Attorney General: The United States Supreme Court, Your Honour. I read
from page 158:
"The act complained of does not relate to the restraint from which
the petitioner seeks to be relieved but to the means by which he was brought
within the jurisdiction of the court under whose process he is held. It is
settled that a party is not excused from answering to the State whose laws he
has violated, because violence has been done to him in bringing him within the
State. Moreover if any injury was done in this case in imposing the petitioner
upon the State of Washington without grounds, therefore, the injury was not to
the petitioner but to the State whose jurisdiction was imposed upon by what
was done. "It is said that the present case is distinguishable from the Mahon
case in that the illegal abduction complained of in the latter was by persons
who neither acted nor assumed to act under the authority of the state into the
custody of whose authorities they delivered Mahon; whereas, in this case, it
is alleged that Idaho secured the presence of Pettibone within its limits
through a conspiracy on the part of its governor and other officers. This
difference in the cases is not, we think, of any consequence as to the
principle involved; for the question now is - and such was the fundamental
question in Mahon's case - whether a circuit court of the United States when
asked, upon habeas corpus, to discharge a person held in actual custody by a
state for trial in one of its courts under an indictment charging a crime
against its laws, can properly take into account the methods whereby the state
obtained such custody. That custody was determined in the negative in the Ker
and Mahon cases. It was there adjudged that in such a case neither the
Constitution nor laws of the United States entitled the person so held to be
discharged from custody and allowed to depart from the state. If, as
suggested, the application of these principles may be attended by mischievous
consequences, involving the personal safety of individuals within the limits
of the respective states, the remedy is with the lawmaking department of the
government. Congress has long been informed by judicial decisions as to the
state of the law upon this general subject. "In this connection it may be well
to say that we have not overlooked the allegation that the governor and other
officers of Idaho well knew at the time that the requisition was made upon the
governor of Colorado, that Pettibone was not in Idaho on December 30th, 1905,
nor at any time near that date, and had the purpose in all they did to evade
the constitutional and statutory provisions relating to fugitives from
justice. To say nothing of the impropriety of any such facts being made the
subject of judicial inquiry in a Federal Court, the issue thus attempted to be
presented was wholly immaterial. Even were it conceded, for the purposes of
this case, that the governor of Idaho wrongfully issued his requisition, and
that the governor of Colorado erred in honoring it, and in issuing his warrant
of arrest, the vital fact remains that Pettibone is held by Idaho in actual
custody for trial under an indictment charging him with crime against its
laws, and he seeks the aid of the circuit court to relieve him from custody,
so that he may leave that state and thereby defeat the prosecution against him
without a trial. In the present case it is not necessary to go behind the
indictment and to enquire as to how it happened that he came within reach of
the process of the Idaho court in which the indictment is pending. And any
investigation as to the motives which induced the action taken by the
governors of Idaho and Colorado would, as already suggested, be improper as
well as irrelevant to the real question to be now determined."From
this we learn two things: firstly that it does not make any difference how a
person is brought within the area of jurisdiction; secondly that it does not
make any difference whether this was done by private individuals or by an
official arm of the government. And before I go back to the series of
authorities, may I be permitted to quote a decision of the Federal Court of
Appeals: Hatfield versus Warden of State Prison Michigan, 1950, (88 Federal
Supplement, 690). I am sorry. That was the District Court - the United States
District Court, Michigan. The facts appear on page 691.
"On February 10, 1950, Charles D. Hatfield filed herein his
petition requesting the issuance of a writ of habeas corpus to inquire into
the legality of his detention by the Warden of the State Prison of Southern
Michigan under judgment of the Circuit Court for the Country of St. Joseph,
upon conviction of a murder committed in said County. An examination of this
petition discloses that petitioner's sole complaint is one which is currently
popular in petitions for habeas corpus emanating from the State Prison of
Southern Michigan, namely, that instead of being legally extradited from the
State of Texas to the State of Michigan to answer such charges, he was in
effect, kidnapped and transported against his will from Texas to Michigan by
Michigan State Police officers."And the rule is set out on page
692:
"It is well settled that where a person accused of a crime is
found within the territorial jurisdiction wherein he is so charged and is held
under process legally issued from a court of that jurisdiction, neither the
jurisdiction of the court nor the right to put him on trial for the offense
charged is impaired by the manner in which he was brought from another
jurisdiction, whether by kidnapping, illegal arrest, abduction or irregular
extradition proceedings; and Federal statutory or constitutional provisions
are not violated by reasons of illegal means adopted in bringing the accused
to the jurisdiction where he is then held for proper process, and specifically
the trial of a person brought into a state by forceful abduction is not a
violation of the provisions of the Federal Constitution forbidding the
deprivation of life, liberty, or property without due process of
law."I ask you not to regard my argument as an acknowledgement that
in our case there took place what Defence Counsel maintains to have occurred. My
argument is that it does not make any difference; I contend that it does not add
or subtract anything whether the persons who caught, arrested and transferred
Adolf Eichmann to Israel were private individuals or not. And seeing that this
does not affect the issue, the Court is not called upon to enter into an
investigation of the question.
And now I pass to the series of decisions which were given on that subject.
The first and the most important of them is Ker versus Illinois, 1886, Lawyers'
Edition 30, at page 421. These were the facts. Ker was accused of theft in the
State of Illinois. His extradition was requested from the State of Peru in view
of the criminal act which he had committed. The officer of the United States
Government who was charged with the implementation of the extradition travelled
to Lima, the capital of Peru, and instead of bringing about the extradition by
legal and normal methods, arrested Ker, and brought him to the State of
California. The Californian authorities put him under arrest and transferred him
to a court in Illinois. I shall not read the whole judgment since this court has
already heard it. The decision is found at the end of page 423 and on page 424.
The conclusion of the judgment is important:
"The question of how far his forcible seizure in another country,
and transfer by violence, force or fraud to this country, could be made
available to resist trial in the state court, for the offence now charged upon
him is one which we do not feel called upon to decide, for in that transaction
we do not see that the Constitution, or laws, or treaties of the United States
guarantee him any protection." If I may break off for a moment, if there had
been a conflict between Ker's rights according to United States law and the
claim of the State of Illinois to try him, then the Supreme Court would have
been obliged to enter into the merits of the question and would have examined
which of the two was right. But the United States Supreme Court says: It is
not necessary to go into this question and it is not necessary to take any
decision at all, in view of the fact that the legal right of Ker was not
violated by the fact that he was brought, albeit forcibly, within the
jurisdiction of the Court in Illinois."And now I resume reading
from the judgment:
" However this may be, the decision of that question is as much
within the province of the state court as a question of common law, or of the
law of nations, of which that court is bound to take notice, as it is of the
courts of the United States. And though we might or might not differ with the
Illinois court on that subject, it is one in which we have no right to review
their decision.
"It must be remembered that this view of the subject does not leave the
prisoner or the Government of Peru without remedy for his unauthorized seizure
within its territory."That is to say, the State of Peru could
have complained through international or national political channels, but it is
not the business of the accused to argue: My arrest violated the sovereignty of
the State of Peru.
In the matter of ex parte Johnson, 1897, Lawyers' Edition Vol. 42, page
103,the question of the legality of a judgment arose which had been given
against a person who had been arrested illegally. The decision is found on page
105.
"Indeed, there are many authorities which go to the extent of
holding that, in criminal cases, a forcible abduction is no sufficient reason
why the party should not answer when brought within the jurisdiction of the
court which has the right to try him for such an offense and presents no valid
objection to his trial in such court."And here follows a list of
authorities:
"... Although it has been frequently held that if a defendant in a
civil case be brought within the process of the court by a trick or device,
the service will be set aside and he will be discharged from custody...The law
will not permit a person to be kidnapped or decoyed within the jurisdiction
for the purpose of being compelled to answer to a mere private claim, but in
criminal cases the interests of the public override that which is, after all,
a mere privilege from arrest."



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