"You have got to understand that [the atomic bomb] isn't a military weapon. It is used to wipe out women and children and unarmed people, and not for military uses."
Harry S Truman, discussing atomic bomb on during July 21, 1948,
National Security Council meeting on Berlin Blockade
as recorded in The Journals of David E.Lilienthal, 1945-1950 (1964)

The seven historians who voted Harry S. Truman not guilty have proved the tenacity of the Nuremberg Consensus. They are, in their fashion, the American equivalent of Japanese historians who say that the Rape of Nanking was not so terrible in context.

Five of these seven judges--Larry Schweikart, Oscar B. Chamberlain, James R. Van de Velde, Robert Maddox, and Jeff Tenuth--purposely shunned judging Truman according to Article 6 Paragraph b of the Nuremberg Charter, which was the point of this unique exercise in counter-factual history--what if Harry S. Truman and his willing executioners were judged by Nuremberg standards? Their failure to play the game suggests by default that Truman could not gain acquittal if tried under the rules that convicted Goering, Speer, and Tojo. In effect, they nullified the trial that they volunteered to judge and thumbed their noses at Telford Taylor's plea for a two-way street on the laws of war. Nowhere in their verdicts did these five historians express sympathy for Norman Davies's opinion that British and American history has been selective in the atrocity department. Axis massacres were irredeemably evil but Allied massacres were tragically necessary seems a fair summation of their position.

"In my book, during a war, if saving a single one of my soldiers can be achieved by any means, I'll take it," said Schweikart, justifying anything--i.e., torture, gassing, germ warfare, and slaughters of all stripes. But on the scale of lawlessness, nothing tops Chamberlain's astonishing declaration:"The use of the A-Bombs at Hiroshima and Nagasaki was meant to demonstrate that the United States had the capacity and the will to commit genocide from the air." Genocide? With an advocate like him Truman hardly needs a prosecutor like me. Perfuming the killing of tens of thousands of innocent women, children and old people with a poisonous terror weapon in the dying days of war against a defeated, peace-seeking enemy tends to pervert reason, morality and history, as the not guilty verdicts reveal.

Richard Jensen was one of two acquitters who considered the Nuremberg definition of war crimes ("the wanton destruction of cities, towns, and villages, or devastation not justified by military necessity") in approving the destruction of Hiroshima and Nagasaki. Citing production statistics, he wrote that Japanese cities were"a significant part of the Japanese war machine" and therefore incinerating them"was not 'wanton' but was 'justified by military necessity.'" Jensen's argument has a fatal flaw: neither target city was pumping out weapons in August 1945. Had they been crucial industrial sites, they would have been attacked long before.

R. John Pritchard was the trial's ace in the hole. Perhaps the world's foremost living expert on the laws of war and a World War II specialist, Pritchard was perfectly situated to judge Truman's alleged war crimes a` la Nuremberg. Although his first lengthy decision was more a defense brief than an impartial sifting and weighing of the evidence, I welcome his quasi-adversarial approach. Despite Ron Radosh's avid, a-Nuremberg assistance, what Truman needed was a criminal lawyer. He found one in Pritchard. Since the rest of the participants in this trial, including me, are dwarfs standing on his legal shoulders, it behooves us to pay attention to his eloquent decision. If he cannot get Truman off, who can?

But despite Pritchard's résumé, the initial text of his decision was baffling. I emailed him for clarification :

Dear Mr. Pritchard:

Your learned verdict was fascinating to read and you have enlightened me greatly on international law. However, I was surprised that your vast knowledge of war crimes yielded such Trumanesque interpretations of the Bombs of August.

If I understand your position correctly, you believe that the massacres of Hiroshima and Nagasaki were war crimes then and now, but that Harry Truman was never a war criminal. Without providing citations, you have created a legal loophole for Truman on the basis of entitled"political choices."

In particular, you rest your claim on"the incontrovertible fact that the use of the atomic bombs was by the British and Americans thought likely to end the war at a small fraction of the human misery, destruction and death that likely would have attended any other means at hand."

Which British and Americans? Certainly not, Leahy, Stimson, McCloy, Forrestal, Grew, Bard, the U.S. and British Joint Chiefs and Churchill himself. They all recommended non-violent means to end the war.

Even Truman agreed to change the terms of surrender in order to hasten the war's close without invasion. He told Grew that such a strategy was a"sound idea" in May. But, as you know, Truman did not implement the idea until it was too late to save Hiroshima and Nagasaki from annihilation.

All of this evidence was presented in the prosecution's case, but you chose to ignore it, acting as co-defense counsel rather than a judge. Granted your familiarity with the historical record, it is shocking that you would repeat Stimson's obviously false ex post facto claim, punctured by his aide McGeorge Bundy in Danger and Survival, about the lack of alternatives to the bomb.

Naturally, I bow to your immense expertise in international law. Still, I am skeptical of your legal reasoning. Since you have acquitted Truman on legal grounds, I wonder if you have citations supporting your novel argument that deliberately and directly slaughtering tens of thousands of women and children is permissible under international law. Also, I would be interested in knowing the names of other lawyers or historians who have endorsed your interpretation.

I will be posting a final statement after the verdict and your response will be a big help.

Philip Nobile

Without addressing my questions and criticism directly, Pritchard responded with an amplified second decision (2000 more words) shoring up contested passages. This is the version now posted. Since Pritchard represents the best defense that Truman can buy, let us take a closer look at his text. In my view, his apology is a legal boomerang leading not to acquittal but to conviction.

First, Pritchard conceded that the destruction of Hiroshima and Nagasaki fit the definition of war crimes under international law:

...In doing so, we may judge President Truman and the other accused on the basis that the atomic bombings of Japan, and indeed the so-called strategic bombing of Japanese cities embraced an aim to terrorize the Japanese civilian population, that there was no prior warning of the atomic bombing of Hiroshima (although thereafter Japan was put on notice with respect to any further atomic attacks), and that those responsible had an additional or alternative aim to inflict reprisals against civilians or civilian objects. All of this is prohibited now and much of it was prohibited at the time....The bombings plainly were in breach of a general prohibition that now exists against the employment of indiscriminate weapons of mass destruction, and violated a general prohibition of reprisals against civilians or civilian objects.

Then Pritchard said with some fanfare that the man who ordered these war crimes was not a war criminal:

Having regard for lawful purpose of bringing about an end to the war and its suffering; for the wholly admirable objective of doing so with a minimal expenditure of human lives, for expert advice given to the President in June 1945 (that some 20,000 persons were likely to die in an atomic explosion, based on a reasonable assumption that the population of a city alert to the approach of a B-29 would have time and take shelter in underground civil defence facilities); for knowledge that efforts to negotiate an end to hostilities had hitherto failed and were unlikely to succeed without a clear demonstration that nothing whatever would be gained by further enemy resistance on the ground (the only means of resistance then open to that enemy), then the Allied Powers or any of them were entitled to make a choice of reasonable and lawful means to effect that early end of hostilities (a legitimate war aim).

But Pritchard's facts and opinions did not hold up, as indicated in my annotated email:

Having regard for lawful purpose of bringing about an end to the war and its suffering [Didn't Hitler send V-2's to England for same purpose?]; for the wholly admirable objective of doing so with a minimal expenditure of human lives [Minimal? By dropping bomb on the center of the city? And whose lives? Civilian lives.], for expert advice given to the President in June 1945 (that some 20,000 persons were likely to die in an atomic explosion, based on a reasonable assumption that the population of a city alert to the approach of a B-29 would have time and take shelter in underground civil defence facilities) [Reasonable assumption? The citizens of Hiroshima could reasonably assume that the U.S. was not interested in bombing its city because B-29's passed over on a regular basis without bombing. Also the B-29 raids were en masse, so that the three that appeared on August 6 would create no special alarm.]; for knowledge that efforts to negotiate an end to hostilities had hitherto failed [But there were no efforts to negotiate. We refused to budge on unconditional surrender at Potsdam despite the urging of Churchill, Stimson, and the British and American Joint Chiefs of staffs, not to mention the urging of McCloy, Forrestal, Grew and Bard prior to Potsdam. Truman knew that Japanese were suing for peace in Moscow prior to bomb but rushed ahead anyway. Clearly, Truman was not interested in diplomacy. He wanted to drop the bombs first. Stimson made a damning admission re Truman's failure to negotiate the Emperor prior to the bombs in his memoir as cited in my prosecution.] and were unlikely to succeed without a clear demonstration that nothing whatever would be gained by further enemy resistance on the ground (the only means of resistance then open to that enemy), then the Allied Powers or any of them were entitled to make a choice of reasonable and lawful means to effect that early end of hostilities (a legitimate war aim). [Your conclusion does not follow from your premises which are not informed by the historical record and tends to show your bias toward the Nuremberg Consensus.]

Pritchard's subsequent five-point,"lawful excuse" for killing six-figures worth of enemy civilians based"on political choices" had similar legal and historical problems. To avoid repetition, I include my emailed annotations:

In doing so, [the Allied Powers] were also entitled to take into consideration the political and military consequences of failing to act sufficiently or at all in order to prevent others (the Soviet Union) from seizing the initiative through the conquest of territory and deaths of untold numbers of the enemy's forces and non-combatants alike in Manchuria and Korea. [Where in international law is it permitted to massacre civilians for political reasons? Are you saying that no laws apply to a nation (U.S.) intent on killing tens of thousands of civilians in second nation (Japan) order to prevent a third nation (U.S.S.R.) from killing soldiers of the second nation (Japan) and inevitably causing the indirect deaths of civilians in a fourth nation (Manchuria)? Surely this domino argument is a stretch?]

They [the Allies] were entitled to take into account the certainty that were the war to continue, the Allied Powers would be forced to invade the Japanese mainland against a well-entrenched and implacable enemy willing to adopt all means at its disposal and willing to endure any sacrifice necessary to resist their invaders. [Your bias is showing again. What certainty? Negotiation was always possible between August and November. Truman told Grew in May that he thought changing unconditional surrender to allow the retention Emperor was"a sound idea," but he refused to test it until after Nagasaki. And Truman strongly hinted in his memoir that he would have tried diplomacy had the bomb fizzled in New Mexico in order to avoid the bloodbath of invasion:"If the test should fail, then it would have been even more important to us to bring about a surrender before we had to make a physical conquest of Japan."]

They were entitled to take into consideration Intelligence information that they had in their possession to the effect that preparations had been made to exterminate all Allied Prisoners of War and Civilian Internees detained by the Japanese in certain eventualities which included a judgment that the prisoners would otherwise be liberated by closely approaching Allied forces. [Does international law permit massacres of enemy civilians in the hope that POW's and internees can be saved thereby?]

They were entitled to take into consideration the likely consequences if news of the existence and availability of the atomic bomb as a war-winning weapon were at risk of coming to the attention the public in the USA, Britain or other Allied Powers while the Allied diplomats continued with desultory negotiations with the enemy as hundreds of thousands if not millions of men, women and children on both sides continued to die in conventional warfare (and it IS believed that the French, who were thought to have stumbled onto the news of the Manhattan Project, were so alarmed or antagonized by being previously excluded from knowledge of it that they had it in mind to let the Russians know). [But if Japan knew about the bomb beforehand, it might have surrendered. Speculation goes both ways.] They were entitled to prefer that as high a preponderance as possible of any death and destruction necessary to bring about an end to the war should be borne by the enemy rather than by the United States, its Philippine dependency and by all of the other Allied countries and possessions caught up in the fighting. [Here you have dissolved the distinction between soldiers and civilians. Japanese women and children were not our enemies.]

Pritchard's defense collapsed in bad faith when he endorsed the last refuge of pro-massacre enthusiasts who rest their case on the no-alternative theory. None too candidly Pritchard wrote:"that use of the atomic bombs was by the British and Americans thought likely to end the war at a small fraction of the human misery, destruction and death that likely would have attended any other means at hand" [emphasis added].

Unfortunately, Pritchard neither identified these make-or-break Allied alibi witnesses in the text of his decision, nor did he name them when challenged in my email. Why would he withhold this vital information? If Truman's inner circle advised him that the bomb and only the bomb was the least costly way out of a 50-million-bodycount war, surely defense counsel would parade them on the stand and tout their words of wisdom. Yet Pritchard has kept these British and American witnesses in the dark. Wonder why?

The doctrine of military necessity, however defined, presumes an exhaustion of less violent alternatives. But Pritchard (as well as his not-guilty colleagues) knows that peaceful alternatives were not only available to Truman prior to Hiroshima, they were pressed on him repeatedly, insistently, and conscientiously by the vast majority of his war cabinet.

For the sake of brevity, let us focus on the Hirohito alternative. As previously noted by the prosecution, Truman loved the idea."Acting Secretary of State Grew had spoken to me in May about issuing a proclamation that would urge the Japanese to surrender but would assure them that we would permit the Emperor to remain as head of the state," Truman wrote in Years of Decision."Grew backed this with arguments taken from his ten years' experience as our Ambassador to Japan, and I told him that I had already given thought to this matter myself and that it seemed to me a sound idea. Grew had a draft of the proclamation with him, and I instructed him to send it by customary channels to the Joint Chiefs and the State-War-Navy Coordinating Committee ..…. On June 18, Grew reported that the proposal had met with the approval of his Cabinet colleagues and the Joint Chiefs. ..… Grew, however, favored issuing the proclamation at once, to conclude with the closing of the campaign on Okinawa, while the service chiefs were of the opinion that we should wait until were ready to follow a Japanese refusal with the actual assault of our invasion sources."

So Truman was on board with the Hirohito alternative. And so was Assistant Secretary of War John J. McCloy. As McCloy told NBC in 1965, as quoted in Gar Alperovitz's The Decision To Use the Bomb, he told Truman on June 18, 1945"that we would permit them to choose their own form of government, including the retention of the Mikado…..."

Secretary of War Henry L. Stimson was such an ardent backer of the Hirohito option that he guaranteed the Emperor's status in his July 2, 1945 memo to Truman regarding, as stated in his memoir,"the American desire to achieve a Japanese surrender without invading the home islands." Clear as day, Stimson told Truman that the final warning to Japan should"not exclude a constitutional monarchy under her present dynasty, [because] it would substantially add to the chances of acceptance."

Winston Churchill adopted this approach at Potsdam. After being informed of the British Joint Chiefs' feeling that an Allied warranty on Hirohito was the key to Japan's capitulation, Churchill attempted to persuade Truman to soften his unconditional terms on July 18."I dwelt on the tremendous cost in American life and, to a smaller extent, in British life which would be involved in forcing 'unconditional surrender' on the Japanese," Churchill recalled in his memoir."It was for him to consider whether this might not be expressed in some other way, so that we all got the essentials for future peace and security, and yet left the Japanese some show of saving their military honor and some assurance of their national existence, after they had complied with all safeguards necessary for the conqueror." But Truman brushed off the Prime Minister, saying curtly that Japan had lost its honor.

Since Pritchard's military necessity case depended on ruling out peaceful alternatives to the bomb, it is no accident that he covered up the Hirohito question in his decisionfs. Rather than confront the hole in his argument, and the massive counter-evidence, Pritchard danced around it."Moreover, if such a warning or demonstration had been accompanied by a softening of the Allied surrender terms, it is my belief that public opinion in the USA or elsewhere would have regarded the outcome as unacceptable," he wrote.

At the risk of mounting a high horse, I re-invite Pritchard to name the invisible British and Americans who believed before August 6, 1945 that the bomb was the least bloody alternative to ending the war and to stack them against Marshall, Stimson, McCloy, Forrestal, Grew, Bard, the British and American Joint Chief's of Staff, and Churchill. If he will not do so, let him withdraw his decision.

The final paragraph of Pritchard's original decision, which is retained in the second version in a nearby spot, began with a significant admission."If we apply, as we should, International Humanitarian Law as it exists today, then strictly speaking the two atomic bombings were war crimes and crimes against humanity..…." If Pritchard had stopped there, he would have remained on firm legal footing. But he continued without legal backup, stepping into the void of ideology, Radosh-style, and apologized for the atomic massacres:"..… but in the context of time and place, even without relying upon the dud principle of non-retroactivity, it would mock equity and justice to hold the perpetrators of those crimes strictly to account."

Of course, that is exactly what should be done"in the context of the time." Apocalyptic killings, at the least, demand strict accounting. But in a world of war crimes without war criminals, anything goes. Not every reader will agree that Pritchard's counsel has discredited Truman. My boomerang may be someone else's stiletto. But given his credentials, his utter failure to prove that killing some 200,000 women, children and old people was a military imperative sanctioned by international law is more damaging to the defendant's reputation than my prosecution.

I much prefer the view of our"hung juror," Arnold Offner, regarding Truman's Nuremberg fit. Curious about his fence-sitting, I queried him by email:

Dear Professor Offner:

... I don't understand your hung vote. Either nuking Hiroshima and Nagasaki was a war crime or it was not. According to Nuremberg, it was. So why not vote guilty? The fact that thousands of Allied soldiers cooperated in city bombing is irrelevant to Truman's guilt. After all, we didn't try every German and Japanese gangster. Anyhow, were talking theory here. Your impractical argument does not apply ....

Offner replied:

Dear Mr. Nobile,

I suspect we really agree far more than disagree, with this difference. I applaud your sentiment about the Nuremberg Charter, but according to it, or your interpretation--correct, I'm sure--anyone who engages in city/village bombing and kills civilians, etc.--with military necessity--is guilty of war crimes. As one who thinks that in almost all cases war itself is a crime, I agree with the sentiment but don't think you will get far with prosecution. Every bombing of every city--most without 'military necessity'--means civilians deaths etc. So we need lock up all the world's leaders, and all the bombers etc. Maybe not a bad idea. but won't work. Have to take a more flexible view, I think.

Actually, the flexibility should be on the other foot. Unlike Japanese historians locked into the Nanking Consensus, American scholars have the cultural freedom to break with the Nuremberg Consensus. An easy starting point is Truman's quote at the top of this final statement.

Finally, despite vigorous conflict and occasional friction I hail opposing counsel, Ron Radosh, and the judges of this court, in particular the two dissenters, Jonathan Dresner and Brian Jones. We have made history.