Herman Phleger

After returning to the United States in November 1914, and before his naval service, Herman was hired as a law clerk by Morrison, Dunne & Brobeck (now Morrison & Foerster).[5] His early clients included the California-Oregon Power Company, Yosemite Park and Curry Company, Mercantile National Bank, and Templeton Crocker. In 1917 he negotiated the construction of the Link River Dam, and was instrumental in the creation of the San Francisco War Memorial Opera House.[5]

Herman became a partner at Morrison, Dunne & Brobeck in January 1920.[5] In 1924, Herman convinced two senior partners, Harrison and Brobeck, that the firm would be more profitable if the other partners were ousted. In something of an office coup, the other partners were unceremoniously fired and locked out of the firm's offices at the old Crocker Building. They returned with fire axes, and hacked down the door to retrieve their clients' files.[8]

Brobeck, Phleger & Harrison was officially formed on January 1, 1926. The firm's early clients included the Matson Navigation Company, Wells Fargo, the Pacific Gas & Electric Company, and the Crocker and Spreckels families.[5]

Throughout the 1920s, Herman began making a name for himself representing employers in their disputes with labor unions. In 1934, he represented the Waterfront Employers Association ("WEA") in their litigation against Harry Bridges' longshoremen's union.[5] During the 1934 West Coast Waterfront Strike, he assisted James Folger and others in forming the Acme Trucking Company, a fictitious business which briefly succeeded in breaking the picket lines of the ongoing Teamsters strike.[5] Following the violence on Bloody Thursday (which he watched from his office window), Herman argued the WEA's case before the National Longshoremen's Board.[9] The argument was ultimately unsuccessful, and the union won out. Having earned himself the hatred of many powerful unions, Herman never left the house during this time without a sword cane or billy club.[10]

During the 1930s and 1940s, Brobeck represented the Bethlehem Shipbuilding Corporation, the Bethlehem Steel Company, the Panama-Pacific Exposition Company (in one of the first class action suits in San Francisco), the California-Oregon Power Company, the Southern California Gas Company, John Francis Neylan, the Hearst Family, Castle & Cook, the Hawaiian Sugar Planters' Association (alongside James Garfield), the DiGiorgio Corporation, Herbert Hoover, the Key System, and the Association of American Railroads.[5] During this time, Herman also represented the Matson Family and the Matson Navigation Company in their establishment of the Moana Hotel and Royal Hawaiian Hotel, and befriended Judge Morgan J. O'Brien.[5]

In the late 30s, Herman became heavily involved in Hawaiian legal affairs and spent considerable time in Washington, where he became acquainted with New Deal figures Jerome Frank, Benjamin V. Cohen, and Thomas Gardiner Corcoran, whom he referred to as "very attractive, intelligent fellows with whom I didn't agree politically but who wanted to do the right thing."[5]

When William Randolph Hearst died in 1951, Herman represented his wife Millicent Hearst in the settlement of his estate, and served as pall-bearer at his funeral.[5]

During the organization of the United Nations in San Francisco during the spring of 1945, Herman frequently met with John Foster Dulles and played tennis with John J. McCloy. Following the German surrender, McCloy asked Herman to participate in the reorganization of the conquered German government. His orders were to affect the “destruction of the Nazi party, the termination of the general staff system in the German army, the breaking up of the concentrations of economic and financial power, and the installation or adoption by the German people of democratic methods of government.”[11]

Herman arrived in Germany in July 1945. Headquartered in the former Luftwaffe building in Berlin, he worked primarily alongside Charles Fahy and J. Warren Madden, and under Generals Dwight D. Eisenhower and Lucius Clay. Their office was known as the Legal Directorate.[5]

On August 12, 1945, Herman and Allen Dulles visited Adolf Hitler's recently abandoned bunker at the Reich Chancellory. Herman described the bunker as “in great disorder, with much water, but evidently had not been visited by many people because everything seemed quite intact,” including the “couch with blood on it.” [12]

Herman's primary focus was the “breaking up of the German combines and trusts,” for which he drafted an analogue of the Sherman Anti-Trust Act, which was enacted by General Eisenhower.[5]

In October 1945, Herman was assigned to Spain to oversee the implementation of a law vesting the new German government with title to all German property located outside of Germany.

During the preparation for the Nuremberg Trials, Herman and the other members of the Legal Directorate were tasked with assisting in the selection of counsel for the German defendants. Herman personally attended the trials on December 10–11, 1945, and drafted the laws which were later used in the Subsequent Nuremberg Trials, conducted by U.S. officials in the American occupation zone.[5]

Herman was a staunch defender of the trials’ importance and legitimacy. In April 1946, at the urging of Eugene Meyer, Walter Lippmann, and Edward Weeks, he published an article in the Atlantic Monthly titled “Nuremberg: A Fair Trial?,” defending the trials’ contribution to the rule of law. He later defended this position against criticism from Senator Robert Taft with an editorial in the Washington Post.[5]

Herman returned to the United States just before Christmas 1945. From 1946 to 1952, he resumed his practice with Brobeck, Phleger & Harrison.

Herman Phleger (far left) at the 1955 Geneva "Big 4" Summit.

In December 1952, he was asked to meet with Secretary of State John Foster Dulles in New York, where he was offered the position of Legal Advisor to the U.S. Department of State by the new President Dwight D. Eisenhower. Herman agreed on the condition that he “would have direct access to [Dulles] at all times and was not part of an organizational structure that would bring [him] under the supervision or direction of anyone else.” Dulles approved.[13]

Herman was a staunch supporter of Eisenhower's presidency, and attended his inauguration. He became Dulles’ “closest and most valued colleague,” allowing him to “exert an influence on matters well beyond the scope of his official position.”[14]

During his tenure as Legal Advisor, Herman participated in the handling of the Suez Crisis, the formulation of the Eisenhower Doctrine, the Bermuda Conference, the appointment of Chip Bohlen, the Bricker Amendment, the Status of Forces Treaty, the 1954 Pan-American Conference, the 1954 Geneva Conference, the Sino-American Mutual Defense Treaty, the Creation of the Southeast Asia Treaty Organization (SEATO), the 1955 Geneva Summit, and the defense of the State Department against accusations of Communist conspiracy during McCarthyism.[5]

Herman resigned from the State Department on April 1, 1957, saying “I hadn’t caught Potomac fever, and I had other things I should be working on.”[15]

Following his resignation from the State Department, Herman returned to his law practice in San Francisco. However, he continued to participate in foreign affairs.

From 1957 to 1963, President Eisenhower appointed Herman as a United States representative to the Permanent Court of Arbitration, the operative tribunal element created by the Hague Conventions. President Nixon appointed him to the same position from 1969 to 1975.[5]

Throughout the 1950s, he regularly argued before the International Court of Justice.[5]

In 1958, Eisenhower appointed him as a United States representative to the Thirteenth General Assembly of the United Nations.

Herman Phleger (third from right) stands beside President John F. Kennedy during the swearing-in ceremony for the General Advisory Committee of the Arms Control and Disarmament Agency, April 2, 1962.

In 1959, Herman was asked by Secretary of State Christian Herter to represent the United States at the Antarctic Conference. Acting with the rank of ambassador, he was instrumental in the successful negotiations, and signed the resulting Antarctic Treaty on behalf of the United States.[5]

In 1960, the American Ambassador to New Zealand, Francis H. Russell, asked Herman to address the Eleventh Dominion Legal Conference.

In 1962, he participated in the European-American Assembly on Outer Space.

Also in 1962, he was appointed by President John F. Kennedy to the Committee to Strengthen the Security of the Free World, later known as the Clay Committee, which was tasked with formulating a foreign aid program for the year 1963. During this time, Herman also made the acquaintance of future President Gerald Ford, then a Representative.[5]

Again in 1962, President Kennedy appointed Herman to the Arms Control and Disarmament Agency, where he served until 1968.[5]

In 1966 he was appointed by the president of the American Bar Association to the Commission on Electoral College Reform. Herman believed that the Electoral College system had “many defects,” because it allowed “presidents [to be] elected by a minority of the people.” He advocated that “electors should be chosen by dividing the electoral college vote of a state between the candidates in the same proportion as its popular vote.” The resulting report recommended a constitutional amendment providing for the election of the President by popular vote.[5]

Herman was a lifelong Republican. He was particularly opposed to increasing executive power, saying in 1977 “today we do have an imperial presidency. The power of the president is so much greater than the Constitution ever contemplated that sometimes I worry about what may take place in the future.”[16]

During World War II, Herman opposed the policy of Japanese internment.[17]

Herman expressed reservations about the Vietnam War, calling its legal basis “very shaky.”[18] He later remarked that “few in government realized that the Vietnam War was a civil war and while the Communists were helping one of the sides, Communism was not the issue. The issue was the reunification of Vietnam and who would run the reunified country. That never seemed to penetrate their minds.” Ultimately, he “believe[d] our military intervention in Vietnam was planned as a step in the establishment of a permanent American military presence in Southeast Asia.”[19]

During the Cold War, he supported normalization of relations with Russia, stating “If we could get a free flow of ideas, newspapers and people between our countries, it would be a big help in our quest for peace.”[20]