Could Leo Szilard have been tried as a war criminal? Now, before anyone starts to wonder if this is a misleading or inflammatory headline, let me say up front: this was a question that Szilard himself posed in a 1949 story published in the University of Chicago Law Review titled, "My Trial as a War Criminal." It is a work of fiction, but Szilard was serious about the questions it raised about the morality of the atomic bomb.1
Leo Szilard is one of the most colorful characters in the story of how the atomic bomb got made. An eccentric Hungarian, one of the "Martians" who emigrated to the United States during World War II, Szilard aspired to always being one step of head of the times. You didn't have to be much ahead to make a difference, he argued, just a little bit. One example of this he gave in a later interview regards his decision to flee Germany shortly after the Reichstag fire. On the day he left, it was an easy trip on an empty train. The next day, the Germans cracked down on those trying to flee. "This just goes to show that if you want to succeed in this world you don’t have to be much cleverer than other people, you just have to be one day earlier than most people. This is all that it takes."2 In 1939, Szilard was the one who famously got Albert Einstein to write to President Roosevelt, launching the first US government coordination and funding of fission research. During the Manhattan Project itself, Szilard worked at the University of Chicago, helping to develop the first nuclear reactor (CP-1) with Enrico Fermi. After this, though, his active role in the bomb project declined, because General Groves hated the man and worked to exclude him. He attempted in various ways to influence high-level policy regarding the bomb, but was always shut out.
But after the war, Szilard found his place — as a gadfly. He wasn't a great bomb developer. He was, however, a great spokesman for the dangers of the atomic bomb. Irrepressible, clever, and impossible-to-look-away-from, Szilard could steal the stage, even if no American could pronounce his name. It is in this context that his article, "My Trial as a War Criminal," was written. The notes on the University of Chicago Law Review version note that it was written in June 1948, but because of "political tensions" Szilard put it off. With the "relaxation" of tensions, Szilard deemed it possible to publish in the Autumn 1949 issue. One wonders exactly what Szilard had in mind; in any case, given that the US first detected the Soviet atomic bomb in September 1949, and from there launched into the acrimonious debate over the hydrogen bomb, it seems like Szilard's sense of timing in this instance was either perfect or terrible.
"My Trial as a War Criminal" starts right after World War III has been fought. The Soviet Union has won, after using a new form of biological warfare against the United States.
I was just about to lock the door of my hotel room and go to bed when there was a knock on the door and there stood a Russian officer and a young Russian civilian. I had expected something of this sort ever since the President signed the terms of unconditional surrender and the Russians landed a token occupation force in New York. The officer handed me something that looked like a warrant and said that I was under arrest as a war criminal on the basis of my activities during the Second World War in connection with the atomic bomb. There was a car waiting outside and they told me that they were going to take me to the Brookhaven National Laboratory on Long Island. Apparently, they were rounding up all the scientists who had ever worked in the field of atomic energy.
In the story, Szilard was given a choice: he could stand trial for being a war criminal, or he could go to Russia and work with them over there. Szilard opted for the former, claiming he had no capability to learn Russian at that point in his life, and that he had no interest in making himself a servant of Soviet science. He is then interrogated at length about his political views and his work on atomic energy. The Soviets have read his articles in the Bulletin of the Atomic Scientists ("Calling for a Crusade" and "Letter to Stalin") but think they are naive. Szilard reports no real acrimony, however.
His trial for war crimes begins a month later in Lake Success, New York. He was, "apparently as a special favor," one of the first to be tried. Two major charges were levied against him. The first was that he had tried to push the United States towards developing nuclear weapons in 1939 (the Einstein-Szilard letter). In the eyes of the prosecutor, this was when World War II was still "an imperialist war, since Germany had not attacked Russia until 1941." The second charge was that he contributed "to the war crime of dropping an atomic bomb on Hiroshima."
Szilard has several defensive arguments in his favor. First, he points out that he in fact presented a memorandum to (future) Secretary of State James Byrnes in May 1945 which argued that the atomic bomb should not be first used against Japan cities. This memo had been published in the Bulletin as well in December 1947. Second, he also noted that he circulated a petition in July 1945 that called for not using the bomb as a military weapon before giving the Japanese a chance to surrender first, and that he attempted to put it in front of President Truman himself.
Both of these defenses, however, were easily countered. In the case of the memo to Byrnes, an original copy could not be found, and the Bulletin copy had many deletions for security reasons, any one of which could have contradicted the published material. In the case of the petition to Truman, it was noted that it never made it to Truman, because Szilard submitted it by way of General Groves, who of course squashed it. The Russian prosecutor said that Szilard should have known that the architect of the Manhattan Project would never have transmitted such a thing up the chain of command. So neither were considered adequate at exculpating Szilard.
Szilard is then released on bail. The rest of the story concerns the trials of Secretary of War Stimson, Secretary of State Byrnes, and President Truman. This part revolves around a legal discussion of what it means to be a "war crime." In the story, the tribunal adopts the definition used at Nuremberg that a war crime was any "violations of the customs of war" and "planning a war in violation of international agreements." The use of the atomic bombs was necessarily a violation of the customs of war, because it was not customary to drop atomic bombs on other nations during World War II. And the Russian prosecutor was able to gather ample evidence that various US officials had urged war with the Soviet Union under conditions not allowed by the United Nations charter, which only allows war in the face of armed attack. So when Byrnes wrote in a book that the United States should consider "measures of last resort" if the Soviets refuse to leave East Germany, this was taken as evidence of the latter charge. (Refusing the leave occupied territory is not an "armed attack," and "measures of last resort" can only be understood as implying war.)
Stimson's section gets the closest to the meat of the question — whether the atomic bombs were justified. Stimson's defense is the same as his 1947 article from Harper's — that the bombs were used to hasten the war and to save a net number of lives. The Russians point out, however, that even the US Strategic Bombing Survey concluded that the atomic bombs were not necessary to end the war,3 and that Stimson had access to sufficient intelligence about Japanese communications to know that Japan was on its last legs.
In the end, Szilard notes that practically all of them were expected to be found guilty. But a deus ex machina saves the day — the Soviets' viral biological agents somehow get out to their own populations, their vaccines fail, and the United States is desperately appealed to for assistance. Under new settlement terms, all war crime prosecutions were ended, and "all of us who had been on trial for our lives were greatly relieved."
Such ends Szilard's story. It's a curious one, and doesn't go where you might think based on the title alone. Szilard seems to be making a strong point about the way in which war crime tribunals always favor the winners, and that if you apply the Nuremberg standards to the United States' conduct during World War II and the early postwar, it is clear that no one, even a dissident like Szilard, would be safe. It isn't a hand-wringing, self-flagellating confession. There is none of the "physicists have known sin" moralizing of J. Robert Oppenheimer. It isn't even a discussion of what happened regarding the atomic bombing, whether it was justified or not, whether it was terrible or not. It is a gentle story, albeit one that subtly introduces a revisionist argument about the bombings of Hiroshima and Nagasaki, one that continues to be debated to this day.
One can also read the piece as being instead a complaint about the definition of "war crimes" from Nuremberg — are they nothing more than using new weapons and talking about war? The actual Nuremberg principles, also include "wanton destruction of cities, towns, or villages, or devastation not justified by military necessity." Now whether the atomic bombings fall under that is a tricky question — how does one define "justified by military necessity"? On this sort of unclear requirement, the whole edifice hinges.4
This whole story came to my attention because Bill Lanouette, author of the Szilard biography Genius in the Shadows, e-mailed me after seeing my post on Andrei Sakharov. He noted that according to Rhodes' Dark Sun, Sakharov was very affected by Szilard's story. Sakharov showed it to his colleague Victor Adamsky, who reported that:
A number of us discussed it. It was about a war between the USSR and the USA, a very devastating one, which brought victory to the USSR. Szilard and a number of other physicists are put under arrest and then face the court as war criminals for having created weapons of mass destruction. Neither they nor their lawyers could make up a cogent proof of their innocence. We were amazed by this paradox. You can't get away from the fact that we were developing weapons of mass destruction. We thought it was necessary. Such was our inner conviction. But still the moral aspect of it would not let Andrei Dmitrievich and some of us live in peace.5
What's interesting to me is that the Soviet weapon designers seem to have read Szilard's story in a much more moralistic light than I did. For me, Szilard's story is more about the difficulty of having anything like a consistent stand on what "war crimes" might be — that the actions of the United States could easily be seen from another nation's perspective as highly damning, even if from a more sympathetic position they might be justifiable. Sakharov and Adamsky apparently understood the story to be about the indefensibility of working on weapons of mass destruction full-stop. It is a curious divergence. Assuming my reading is not naive, I might suggest that the Soviet scientists saw not so much what they wanted to see, but what confirmed their existing, latent fears — something in Szilard's story resonated with something that they already had inside of them, waiting to be released.
- Leo Szilard, "My Trial as a War Criminal," University of Chicago Law Review 17, no. 1 (Autumn 1949), 79-86. It was later reprinted in Szilard's book of short stories, The Voice of Dolphins. [↩]
- Spencer Weart and Gertrude Weiss Szilard, eds., Leo Szilard: His version of the facts; Selected recollections and correspondence (Cambridge, Mass.: MIT Press, 1978), 14. [↩]
- "Based on a detailed investigation of all the facts, and supported by the testimony of the surviving Japanese leaders involved, it is the Survey's opinion that certainly prior to 31 December 1945, and in all probability prior to 1 November 1945, Japan would have surrendered even if the atomic bombs had not been dropped, even if Russia had not entered the war, and even if no invasion had been planned or contemplated." [↩]
- Szilard's story also notes that just because these principles were developed after the war ended did not prohibit them from being applied to activities during the war — otherwise all of the Germans would have gotten off the hook. [↩]
- Richard Rhodes, Dark sun: The making of the hydrogen bomb (Simon & Schuster, 1995), 582. [↩]