Evading the Hangman’s Noose: Clemency in a Nazi Trial

By: Allison Ernest

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Contents

Introduction: The Foundations for a War Crimes Trial Program 3

Background and Historiography 10

Chapter 1: Investigations into Other Trials Erode the ’ Resolve 17

Chapter 2: The Onset of Trial Fatigue Due to Public Outcry 25

Chapter 3: High Commissioner McCloy Authorizes Sentence Reviews 38

Chapter 4: McCloy and the United States Set the War Criminals Free 45

Conclusion: A Lesson to be Learned 52

Chart: A Complicated Timeline Simplified 57

Bibliography 58

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Introduction: The Foundations for a War Crimes Trial Program

“There is a supervening affirmative duty to prosecute the doers of serious offenses that falls on those who are empowered to do so on behalf of a civilized community. This duty corresponds to our fundamental rights as citizens and as persons to receive and give respect to each other in view of our possession of such rights.” Such duty, outlined by contemporary philosopher Alan S. Rosenbaum, was no better exemplified than in the case of Nazi war criminals in the aftermath of World War II. Even before the floundering of

Germany and Japan declared their respective official surrenders in 1945, the leaders of the Allies prepared possible courses of action for the surviving criminals in the inevitable collapse of the

Nazi regime. Since the beginning of the war in 1939, the Nazi regime in implemented a policy of waging a war so barbaric in its execution that the total numbers of casualties rivaled whole populations of countries. While possibilities for of the captured perpetrators included summary executions by firing squad, the decision that prevailed was one of full trials by an international panel of four judges consisting of one representative from each of the Allied nations, the United States, , Great Britain and the (USSR).

The 1945 International (IMT) in , Germany placed twenty- two of the highest-ranking, surviving members of the Nazi government on trial before the whole of the world. American Supreme Court Robert Jackson acted as leading United States

(US) , accepting the position only after asserting that actual guilt must be proven for a guilty verdict, and the trial could not be a mere stage for the ultimate execution of all the defendants.1 With laws established by the Charter on August 8, 1945 the IMT set out to prove the defendants guilty of three distinct charges. Former Nazis could be found guilty of crimes against peace if proven involvement in the planning or preparation of waging a war of

1 Alan S. Rosenbaum, Prosecuting Nazi War Criminals, (Boulder: Westview Press Inc., 1993), 21. Ernest 4 aggression was established. The tribunal found defendants guilty of the second charge, war crimes, if they engaged in actions including the “, ill treatment, or to slave labor” or other mistreatment of a in an occupied country “not justified by military necessity.”2 The final charge, newly developed due to the extent of inhumane acts committed by the Nazis, , dealt with those involved in the “murder, extermination, enslavement, [and] deportation…or persecutions on political, racial and religious grounds” of a civilian population.3 In October 1946, almost a year after the initial reading of the indictment, the four judges found nineteen of the defendants guilty. The men received death or prison sentences of varying length, yet despite the conclusion of this trial, it was only the first in a long series of post-World War II trials.

Although the defendants from the IMT all served the sentences received at Nuremberg, critics of the trials frequently disputed the inconsistencies of the new international laws. Since international trials of such a magnitude, where victorious nations sought to bring justice fairly to the leading officers of conquered nations, had never taken place, the stigma of victors’ justice and unjust treatment of the defeated persisted. Furthermore, a court of law had never before attempted to find defendants guilty of of an entire . Critics and defenders of the collapsed German war machine accused the trials of ignoring the concept of ; this concerns the punishment of individuals for crimes that were not illegal when committed, but were ultimately made unlawful.4 Indeed, the of genocide had not been prohibited under before World War II; Raphael Lemkin coined the term

“genocide” in 1944, when the Nazi extermination camps had already claimed the lives of

2 Charter of the International Military Tribunal. Nuremberg Trial Proceedings Volume 1. Yale Avalon Project. http://avalon.law.yale.edu/imt/imtconst.asp (Accessed 10 January 2011). 3 Rosenbaum, Prosecuting Nazi War Criminals, 23. 4 Ibid., 90-91. Ernest 5 millions of .5 Yet trial officials easily dismissed these protests by considering the volume of victims, killed by either aggressive war or extermination. Even if the tribunal could not find the defendants guilty of perpetrating genocide, they were still found guilty of war crimes, crimes against peace and/or crimes against humanity.

After the international trial, tensions among the Allied nations led each of the countries to begin holding separate trials. Remaining in Nuremberg, the United States began a series of twelve trials called the Nuremberg Military Tribunal (NMT). Those overseeing the development of the trials aimed to simulate the method of selection of defendants used for the IMT: each defendant in the dock represented a different branch of the Nazi machine, be it military or governmental. In the American series of trials, each case aimed to create a precedent with the sentence of high-ranking officials on trial, for use in further future trials dealing with lower- ranking former Nazis, such as doctors, judges and (secret police) officials. The ninth trial in this series dealt with seeking proper justice upon former officers. The

Einsatzgruppe, translated to mean “task force,” was a paramilitary group developed by

Reichsführer SS in preparation for the 1941 invasion of the Soviet Union.

This unit of some 3,000 nonmilitary men, transfers from other branches of Nazi security offices, entered Soviet villages in the wake of the invading German and dealt with security measures deemed necessary by the Reichsführer. Himmler asserted to the leaders of the

Einsatzgruppen that Jewish civilians were the greatest security risk for German soldiers in the

Soviet Union: since Nazi belief classified every Jewish individual as a communist and a

Bolshevik, they were the most likely to resist invasion and enter into guerrilla warfare. The

Einsatzgruppen would routinely gather all Jewish civilians for registration in each village,

5 Hilary Earl. The Nuremberg SS-, 1945-1958: Atrocity, Law, and History. (New York: Cambridge University Press, 2009), 91. Ernest 6 leading them to believe they would be subsequently transferred to labor camps. The men, women and children would then be transported to areas outside the city (usually unpopulated field areas or forests) to previously dug open pits. The civilians would then be ordered to surrender any valuables and disrobe, and would subsequently be ‘liquidated’ by a firing squad of

Einsatzgruppen forces. Although the Nazis eventually developed other methods of murder, the execution of Jewish civilians, along with Gypsies, the mentally ill and partisan fighters, in this manner lasted throughout the war, claiming an estimated 1.2 million citizens and signaling the start of the Nazi .6

The concept of a trial for Einsatzgruppen officers occurred by accident, with the discovery of a series of reports in the former Gestapo headquarters by American officials.

Benjamin Ferencz, eventually lead prosecutor of the trial, was a member of the group of researchers charged to sift through the piles of documents in the former police headquarters.

These interpreters stumbled upon the records, a multitude of Operational Situation Reports, that identified the actions of the Einsatzgruppen from 1941 to 1944, including the exact numbers of civilians liquidated, as well as the precise location, date and officers in charge each of the operations.7 More evidence of the actions of the Einsatzgruppen stemmed from the testimony of former Einsatzgruppen leader at the IMT. When he stepped on the stand as a prosecution witness on January 3, 1946, he revealed intimate details about the hierarchy of Nazi organizations and the power and positions held by high-ranking Nazis in front of a court filled with representatives from the four Allied nations. Ohlendorf believed that his willingness to comply and reveal information to his captors would aid him in escaping retribution, yet he also described his actions as a leading Einsatzgruppen officer between 1941 and 1942. This Nazi,

6 Earl, The Nuremberg SS-Einsatzgruppen Trial, 6, 81. 7 Ibid., 78. Ernest 7 formerly an economic advisor in the Third Reich, acted as a key player in this elite task force, leading Einsatzgruppe group D (one quarter of the entire force) and admitted to the court that he had ordered his men to murder 90,000 men, women and children.8 The Einsatzgruppen records, along with the testimony of Otto Ohlendorf at the IMT, allowed for a trial dedicated to trying twenty-two Nazi war criminals for their participation in the genocide of all Jewish citizens.

The provided the prosecution with a core foundation of evidence against the Einsatzgruppen, and the subsequent presentation, led by lead prosecutor Benjamin

Ferencz, lasted for only two days of the six-month trial. Using solely documentary evidence to demonstrate guilt, the prosecution team exhibited the involvement of the defendants in the murder of over one million citizens in little more than one year. Though few of the former officers actually pulled the trigger on civilians, their roles in distributing the orders for systematic murder equaled the guilt of the members of the execution squads. Armed with such incriminating evidence, the prosecution team could easily demonstrate the guilt of the former

Nazi leaders.

The remainder of the trial proceeded with cases of the defendants, where each attorney and client attempted to show innocence, arguing that the officers were merely following orders in the face of the ruthless and uncompromising Nazi machine. Presiding Judge Michael

Musmanno often took up the reins during the trial, aiding in the cross-examination of each defendant and often finding holes in defense arguments and revealing guilt and complicity that the prosecution had not uncovered. Although Judge Musmanno had long possessed negative feelings towards , he and the two other judges found twenty-one of the twenty-two defendants guilty and proceeded to sentence fourteen of them to death, delivering a

8 Transcript of the Testimony of Otto Ohlendorf at the International Military Tribunal. Nuremberg Trial Proceedings Volume 4. Yale Avalon Project. http://avalon.law.yale.edu/imt/01-03-46.asp#ohlendorf (accessed 15 June 2010). Ernest 8 semblance of justice to those responsible for ordering systematic murder between 1941 and

1944.9

Just as the Einsatzgruppen trial ended in April 1948, the initial stages of the Cold War began. While the American public was turning its collective attention to the developing situation in Korea and the increased tensions with the Soviet Union, the German public was desperate for an end to trials they touted as victors’ justice and the of German citizens.

The strongest voices protesting the death sentences of German war criminals, including those in the Einsatzgruppen trial, were those of the German clergy. Both Protestant and leaders placed great pressure on High Commissioner of Germany John J. McCloy, “plead[ing] for commutation of the death sentences because many of the defendants’ actions ‘do not stem from a criminal disposition.’”10 This fervent outcry and the world’s changing political atmosphere led the U.S. Government to alter its treatment of occupied Germany, establish a new democratic government, and even discuss rearmament. Due to investigations into the conduct of American officials in other war crimes trials, more parties felt sentence reviews were viable options to calm the increasingly volatile atmosphere. Such circumstances led the United States to request that

Commissioner McCloy explore sentence commutations for the war criminals held at .

The examination of the sentences of the Einsatzgruppen criminals by an impartial advisory board of judges, given the moniker the Peck Panel, led to extreme recommendations, including the commutation of six of the Einsatzgruppen defendants’ death sentences to either prison sentences or merely time served. The panel reviewed the judgments from all the relevant trials, including those of all of the defendants in the Einsatzgruppen trial. Although the Board

9 Earl, The Nuremberg SS-Einsatzgruppen Trial, 262. 10 Thomas Alan Schwartz, “John J. McCloy and the Landsberg Cases,” in American Policy and the Reconstruction of Western Germany, 1945-1955 (Washington, DC: Cambridge University Press, 1994), 438. Ernest 9 reviewed thousands of pages of final judgments, no member reviewed any prosecutorial documents or evidence from any of the trials. Benjamin Ferencz, lead prosecutor in the trial, offered to provide information in an interview; his offer was rejected. In just six weeks the Board submitted its recommendations to the High Commissioner. McCloy analyzed the results and announced his final decisions for clemency five months later. The Commissioner’s decision was in many ways even more lenient than the panel’s recommendations, where only four of the original fourteen Einsatzgruppen defendants were ordered to hang.

After the final executions in 1951, the original judgment of the Einsatzgruppen trial unraveled at the seams. By 1958, only fifteen years after the Einsatzgruppen murdered approximately 1.2 million Soviet civilians, and only ten years after the delivery of sentences, the final convicted criminals from the Einsatzgruppen trial were released from prison, and became private German citizens. The majority of the Einsatzgruppen defendants, found guilty of complicity in genocide and convicted for crimes against humanity in 1948, legally walked free from prison less than a decade later due to the force of German public opinion and the United

States’ desire for political expediency.

Background and Historiography

“Each of the defendants in the dock held a position of responsibility or command in an extermination unit. Each assumed the right to decide the fate of men, and death was the intended result of his power and contempt. Their own reports will show that the slaughter committed by Ernest 10

these defendants was dictated, not by military necessity, but by that supreme perversion of thought, the Nazi theory of the master race.” -Opening Statement of the Prosecution, Benjamin Ferencz11

The sheer volume of evidence in the prosecution team’s arsenal allowed for a relatively clear implication of each defendant’s complicity in the Nazi Final Solution. In contrast to the IMT two years before, the prosecution team did not undergo a vicious struggle to determine the guilt of the defendants; the documents necessary to condemn each of the accused only took two days to present. Although the questioning of witnesses often aided trials in presenting a clearer picture of the criminal acts, the prosecution primarily relied on documentation, as “most of the defendants had admitted their crimes in pre-trial interrogations and, for those who had not, the Einsatzgruppen reports would prove their guilt.”12

Among the twenty-four men accused, there were five former Commanders and Deputy

Chiefs of the four Einsatzgruppen units and fifteen former officers from subordinate units,

Einsatzkommandos and Sonderkommandos. After the release of the indictment, one defendant died and another was deemed unfit to face trial, leaving only twenty-two men standing trial.13

American decided upon a selection of officers for the indictment, creating a trial specifically focused on the men who delivered the orders to the execution squads, rather than individual members in the Einsatzgruppen, of which there were too many to feasibly bring to justice for their crimes. Among the officers charged in the indictment were Otto Ohlendorf, the commanding officer who admitted complicity in the of 90,000 during his command of

Einsatzgruppe D, and , the officer in command of the infamous massacre where Einsatzgruppen members liquidated over 30,000 Jewish civilians from Kiev in just two

11 Trials of the War Criminals Before the Nuernberg Military under Control Council Law No. 10. Volume IV, (Washington, DC: U.S. Government Printing Office, n.d.), 30. 12 Earl, The Nuremberg SS-Einsatzgruppen Trial, 180. 13 Ibid., 82. Ernest 11 days.14 Not only did the defendants deliver orders for the execution of massive numbers of civilians, the Einsatzgruppen also later “returned to these sites of infamy to unearth the graves and burn the bodies, thus leaving no trace of the crime,” a demonstration that the Nazis knew of the illegality of such acts. The burning of the evidence occurred while still continuing executions throughout 1942 and 1943, when the German retreat to began.15 The trial aimed to deliver judgment for those who ordered such heinous crimes committed.

Knowledge of the precise roles of authority and the many criminal actions of each defendant stemmed both from affidavits created at the time of arrest and the evidence in the

Einsatzgruppen Operational Reports. Regularly sent from the units back to the

Reichssicherheitshauptamt, the Reich Main Security Office (RSHA) in Berlin, the

Einsatzgruppen reports identified the activities and locations of the units.16 The narrative of the reports consisted of details key to demonstrating involvement in crimes against humanity, clearly exemplified in Operational Situation Report USSR No. 108, submitted to Berlin October 9,

1941. This report provided the status and ongoing activities of Einsatzgruppe B merely one month before defendant took control of the unit; it was clear that he continued the same procedures throughout his tenure as leader. The translated document describes actions in various cities, including “in Chernigov, nineteen who were under suspicion of having either been Communists or of having committed arson were given special treatment” and “in

Rechiza, 216 Jews were liquidated for having committed acts of sabotage and for refusing to work. They had, in addition, accommodated partisans and provided them with food.”17 The unmistakable meanings of the often-used Nazi euphemisms “liquidation,” “cleansing actions,”

14Earl, The Nuremberg SS-Einsatzgruppen Trial, 164. 15 Michael Berenbaum, Witness to the , (New York: Harper Collins Publishers Inc., 1997), 113. 16 French L. MacLean, The Field Men: The SS Officers Who Led the – the Nazi Mobile Killing Units, (Atglen: Schiffer Publishing Ltd, 1999), 12. 17 Maclean, The Field Men, 117-18. Ernest 12 and “special treatments,” explained by Otto Ohlendorf during his testimony at the IMT stood in place of the more blatant “execution.” His offhand clarification during the interview, “Yes, I mean ‘killed,’” aided in the translation and interpretation of the reports, yet other situational reports remained straightforward.18 Operational Situation Report USSR No. 177 from Kiev, sent on March 6, 1942, plainly states, “Sonderkommando 4b executed 1,317 people (among them 63 political agitators, 30 saboteurs and partisans and 1,224 Jews). With this action, the district of

Artemovsk was also freed of Jews.”19 Armed with reports using both euphemistic and straightforward language, the prosecution’s possession of such documents from Einsatzgruppen units across the USSR demonstrated the defendants’ irrefutable guilt of the charges in the indictment.

Despite the prevalence of the common defensive tactic used in post-World War II proceedings, where a defense council attempted to justify the crime by claiming the accused was merely following orders, the excuse held little weight in the . Many of the rules of Charter of the International Military Tribunal still applied in the American series of trials, such as the explicitly stated Article 8, which read: “the fact that the Defendant acted pursuant to the order of his Government or of a superior should not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”20

Among the judges who did not see fit to apply this mitigation was Presiding Judge Musmanno in the Einsatzgruppen Trial, who gathered from the evidence that none of the defendants put up any real resistance to their security orders. Furthermore, this exemption was historically given only to military officials. The defendants in the Einsatzgruppen trials were not members of the German

18 Berenbaum, Witness to , 113. 19 Yitzak Arad, Shmuel Krakowski, and Shmuel Spector, eds., The Einsatzgruppen Reports: Selections from the Dispatches of the Nazi Death Squads’ Campaign Against the Jews July 1941 – January 1943 (New York: Holocaust Library, 1989), 304-05. 20 Trials of the War Criminals before the Nuernberg Military Tribunals, xiv. Ernest 13 military, the Wehrmacht, merely security officials in the (SS), the Nazi Protection

Squadron. Although every defendant in the trial pleaded “not guilty” to the charges, many of them had confessed to ordering the liquidations of civilians and therefore responsibility in the

Final Solution, leaving any attempts at defense difficult to establish. After eight months of defense testimony, the proof in the Einsatzgruppen reports served its purpose: all twenty-two of the defendants were found guilty of at least one of the charges.21 Only defendant Mathias Graf, never a commander of a unit but a former officer in 6, received a final sentence of “time served” and was released from prison. In the case of defendant Graf, while the evidence clearly demonstrated his complicity in the activities of the Einsatzgruppen, he had never held a command position and the prosecution could not prove he had ever actually given orders to execute civilians. On April 10, 1948, seven of the defendants received prison sentences varying from 10 years to life imprisonment, while the remaining fourteen received death sentences, more death sentences than delivered in the IMT. Only three years later, in 1951, both an Advisory Board and the High Commissioner collaborated to commute the sentences of the defendants, and ultimately only four men were hanged. The remainder of the defendants all walked free from Landsberg prison by May 1958.

The trial, although monumental in its subject matter, cannot be deemed a success. The failures of this, the largest murder trial in history, led to the scarce amount of either publicity or literature analyzing the event. Dr. Hilary Earl authored the first and only thorough examination of the Einsatzgruppen trial in her work, The Nuremberg SS-Einsatzgruppen Trial, 1945-1958:

Atrocity, Law, and History, which provides the full scope, from origins to aftermath. The work, based on Dr. Earl’s doctoral dissertation of the same topic, uses methodical research to elucidate analyses of the prosecution’s case, the defendants, the defense, and the judgment, yet the book

21 Earl, The Nuremberg SS-Einsatzgruppen Trial, 259. Ernest 14 focuses primarily on the origins of this trial. Extensive interviews with Benjamin Ferencz provided enlightenment on both the discovery of the Einsatzgruppen reports and his process of persuading the United States Chief of Counsel for War Crimes, , to create an additional case in the series of American trials focusing exclusively on convicting members of the SS and Einsatzgruppen. Dr. Earl’s insights into motivations of the defendants, classifying them in three distinct groups: ideological soldiers, “men who had no regrets about the role they played in implementing Nazi racial policy,” deniers, “whose defense strategy was to admit nothing at all,” and conflicted murderers, those who either “showed remorse for their actions after the fact (at trial)” or “exhibited signs of moral conflict during the murder process.”22 The remainder of this paper expands upon Dr. Earl’s research on the motivations of the American government in the commutation of sentences in the Einsatzgruppen trial.

One of the few other works providing a detailed glimpse of the Einsatzgruppen trial came from the Presiding Judge. Michael A. Musmanno, who published The Eichmann Kommandos in the midst of the furor over former Nazi official ’s trial in Jerusalem in the early

1960’s. Musmanno penned his analysis of the trial he presided over soon after it ended, yet could not find a willing publisher. Popular interest in the allowed Musmanno to publish his work both describing Eichmann’s role in the Nazi machine and detailing the events of the

Einsatzgruppen trial. The memoir that eventually appeared on bookshelves skews the truth for his purpose, falsely stating as fact “that Eichmann was both the brain behind the creation of the

Einsatzgruppen as well as the planner of their murderous activities.”23 Judge Musmanno’s book, although full of gruesome adjectives and haunting stories to ensnare readers, does afford a unique perspective and a detailed account of the proceedings. His work contains insightful first

22 Earl, The Nuremberg SS-Einsatzgruppen Trial, 140-41. 23 Earl, The Nuremberg SS-Einsatzgruppen Trial, 226-27. Ernest 15 impressions of the men standing trial, stating, “one assumes that since they are indicted for the murder of one million human beings, they must be coarse, untutored barbarians. However, (with an exception here and there) one beholds a group of men with evident cultural background,” before proceeding with a list of the defendants’ various university degrees.24 His analysis, though distorted both in his favor and in an attempt to lure readers fascinated by the Eichmann case, provides the reader with a direct source from the courtroom during the proceedings of the

Einsatzgruppen trial.

The commuted sentences the Einsatzgruppen defendants received, a clear abandonment of the original goals for justice at Nuremberg, remain decisions even less understood than the trial itself. After release from prison by 1958, the surviving defendants faded into obscurity to live as private citizens, rarely if at all disturbed by their murderous past in the Soviet Union.

Professor Thomas Alan Schwartz’s analysis of the commutation process in his work “John J.

McCloy and the Landsberg Cases” provides one of few satisfactory analyses of the timeline of events and political pressures that led to High Commissioner McCloy’s decision on the final sentences. Unambiguous demonstration of the facts provides the reader a view of the struggles of

McCloy in his new position after the previous Military Governor Lucius Clay stepped down in

1949. Schwartz withholds sympathy for the man who initially thoroughly supported the war crimes process and its attempts to “purge Germany judicially and allow the reconstruction of a liberal and democratic state,” due to the nature of the subject material that the High

Commissioner eventually grossly mishandled.25 Although his work does not focus entirely on the defendants of the Einsatzgruppen trial, aiming to emphasize the reduced sentences of the larger total of seventy-nine inmates from war crimes trials, he specifically describes the struggles for

24 Michael A. Musmanno, The Eichmann Kommandos, (New York: MacFadden Books, 1962), 42. 25 Schwartz, “John J. McCloy and the Landsberg Cases,” 436. Ernest 16 final decisions on the fate of Einsatzgruppen members. McCloy hesitated until the final public announcement of the sentence commutations to determine what he felt to be appropriate penalties for the Einsatzgruppen defendants. Schwartz freely establishes his criticism of the political maneuvering during this period, succinctly stating in the final sentence “the United

States has a bad conscience for not dealing more severely with Nazi war crimes, and Germany now has a bad conscience for not having let it.”26

Despite the certainty both the prosecution and the judges felt when the Einsatzgruppen members received their final sentences, American government officials overturned these delivered for the murders of over one million civilians. The changes in the sentences occurred during the start of a new tumultuous era of political maneuvering and a Cold

War. By 1958, a little more than a decade after the end of the Second World War, the majority of war criminals in Germany had been released from prison. Although the memory of worldwide destruction from the war remained, German participants in war crimes were allowed to fade into obscurity. The remainder of this paper continues the efforts of Professor Hilary Earl and

Professor Thomas Alan Schwartz in an attempt to expand on the reasons for the abandonment of justice in the case of the Einsatzgruppen defendants.

Investigations into Other Trials Erode the United States’ Resolve

“It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent and defenseless men, women, and children. This was the tragic fulfillment of a program of intolerance and arrogance. Vengeance is not our goal, nor do we seek merely a just retribution. We ask this Court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed.” -Opening Statement of the Prosecution, Benjamin Ferencz27

26 Ibid., 454. 27 Trials of War Criminals Before the Nuernberg Military Tribunals, 30. Ernest 17

Despite the resolution of the Einsatzgruppen trial on April 10, 1948, the defendants wasted no time before challenging their sentences. The laws establishing the war crimes trials remained true to American law in allowing convicted criminals to request appeals for clemency after sentencing. Little more than two weeks after the trial ended, all of the defendants who received death sentences had submitted requests for clemency to the head of the occupation government in the Office of the Military Governor of Germany, Lucius Clay. The appeals for clemency cited a wide range of circumstances, including the innocence of the defendant due to a duty to follow orders (a circumstance that had been thoroughly addressed and subsequently dismissed during the trial). Otto Ohlendorf’s peculiar argument for appeal claimed that “the tribunal’s judgment was faulty because it did not take into consideration that the

Einsatzgruppen had other tasks besides that of killing, such as record collection, security and intelligence work.”28 Ohlendorf and his attorney, Rudolf Aschenauer felt that the tribunal doled out harsher punishments because of the prosecution team’s failure to consider these duties, and apparently such failures provided the judges with a misrepresentation of the activities of the

Einsatzgruppen.

The requests for clemency went to the Military Governor due to a stipulation in American

Military Ordinance No. 7, which prohibited a death sentence be carried out “unless and until confirmed in writing by the Military Governor.”29 General Clay reviewed both the sentences and the appeal requests; he subsequently chose to uphold the judges’ decisions.30 His confirmation of the sentences, however, had little effect upon the endless streams of appeals stemming from the

Einsatzgruppen defendants’ attorneys. It took little time before the requests extended to other US

28 Earl, The Nuremberg SS-Einsatzgruppen Trial, 268. 29 Yale Avalon Project, “Ordinance No. 7,” Nuremberg Trials Final Report Appendix L, http://avalon.law.yale.edu/imt/imt07.asp (accessed 11 February 2011). 30 Telford Taylor, “The Nazis Go Free,” The Nation, 172, no. 8 (1951): 170. Ernest 18

Government entities, peppering the desks of senators and officials in Washington DC. The copious appeals for clemency ran simultaneously to a new series of trial reviews. The irregularities in other war crimes trials led to the creation of various committees, subcommittees, commissions and advisory boards, empowered to review both the procedures of the trials and the final sentences. Each of the review panels ultimately recommended lesser sentences than the ones originally bestowed upon the war criminals. The conglomeration of review boards and clemency requests, from the Einsatzgruppen defendants and every other trial, began a gradual waning of the US Government’s resolve and determination to exact justice in the war crimes trial program.

The Nazis committed so many atrocities throughout their rule that several nations held war crimes trials in the post-war period. The United States, taking a leading role in the trial process, held several series of trials, including one at the former Dachau Nazi concentration camp near , Germany. American forces liberated this concentration camp in 1945 and turned it into an American prison; it became the setting for bringing German forces to justice for war crimes committed against American soldiers in the “Dachau” trials. Included in this series was a trial of the Nazi SS officers responsible for a massacre of US prisoners of war outside of

Malmédy, . It occurred , 1944 during the , where

American forces surrendered to a German Panzer Army, part of Hitler’s prized bodyguard regiment Die Leibstandarte. At this juncture in the war, any remaining chance of German success depended on speed and the vigilant avoidance of any forms of resistance. After

American soldiers surrendered, the German unit moved the prisoners of war into a snow-covered field and proceeded to gun them down. American doctors who examined the bodies, left unburied in the field, found “that they had all been killed at close range by small arms fire…their Ernest 19 faces were distorted with fear.” 31 Although the surviving German soldiers who participated in the killings would later claim that they mistook the Americans for a still-armed group and attacked out of defense, survivors from the massacre recalled Germans who approached the still- breathing wounded and “would either shoot or hit them with the butt of their guns.”32

Several months later the war ended and US forces captured many of the perpetrators of this massacre, including the commander of the bodyguard regiment Jochen Peiper. They stood trial from May to July 1946, and, of the 74 total defendants, forty-three eventually received death sentences. At the trial’s finish, representatives from the defense council immediately argued against the large volume of death sentences, bringing attention to irregularities that occurred during the trial. The complaints, sent to the Military Governor, claimed that the investigators had

“applied various forms of torture, including the driving of burning matches under the prisoner’s fingernails” and other manipulative tactics such as “mock trials, faked and the impersonation of priests.”33 In pretrial investigations US officials had supposedly used such methods “not normally condoned in civilized countries in order to obtain confessions from the battle-hardened SS men.”34 Despite dealing with soldiers guilty of horrendous crimes, confessions of guilt under duress, illegal according to US law, had the potential to threaten the validity of the American war crimes trials program. Protests concerning the treatment of the defendants continued in a constant stream until in 1948, just as the Einsatzgruppen trial pronounced its final sentences, General Clay determined the possible irregularities warranted enough attention for further consideration. The Military Governor reviewed the defendants’

31 Charles Whiting, Massacre at Malmédy: the Story of Jochen Peiper’s Battle Group Ardennes, December, 1944, (London: Leo Cooper Ltd., 1971), 225. 32 Ibid., 213. 33 Justus Doenecke, “Protest over Malmédy: A Case of Clemency,” Peace and Change, 2, no.4 (1977): 28. 34 John Mendelsohn, “War Crimes Trials and Clemency in Germany and Japan,” in Americans as Proconsuls: United States Military Government in Germany and Japan, 1944-1952, (Carbondale: Southern Illinois University Press, 1984), 248. Ernest 20 sentences according to the laws in Military Ordinance No. 7 and saw fit to decrease the number of defendants sentenced to death from forty-three to twelve.

The effects of General Clay’s review of the sentences from Malmédy, a trial entirely separate from the Einsatzgruppen trial and its defendants, extended far beyond that of just the

Dachau courtrooms. The notion of any mistreated defendants in the already-controversial war crimes trial program caused leading US officials to backpedal and worry that the massive number of death sentences imposed on German citizens would result in increased claims of the trials as victors’ justice. General Clay was even “apprehensive about the prospect of having to stage a mass execution” and consulted with the Army Department on the possible commutation of “a large numbere [sic] of death sentences to life terms.”35 The discussion of such possibilities marked a distinct change in attitude from a nation previously outraged at the extent of Nazi atrocities and determined to bring perpetrators of such acts to justice.

The Chief of the Defense Council in the Malmédy trial, Colonel Willis M. Everett, refused to accept any death sentences for his clients and petitioned the US Supreme Court for stays of execution through writs of habeas corpus, a stipulation in American law that allows for further review of a trial or a sentence.36 Under this provision a court must prove the legitimacy of an inmate’s incarceration. If a prison cannot show such proof, or there is evidence that the original sentence imposed has expired, the prisoner must be released. This drew enough public attention to the Malmédy cases to warrant a thorough review, and Secretary of the Army

Kenneth C. Royall “decreed a stay of all death sentences in Germany and appointed a three-man commission to review not only Malmédy, but other war trials as well.”37 Secretary Royall

35 Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946-1955, (New York: Greenwood Press, 1989), 54. 36 Buscher, The U.S. War Crimes Trial Program, 12. 37 Doenecke, “Protest Over ,” 28. Ernest 21 formed the Simpson Commission, named after its leader Judge Gordon A. Simpson, to review the trial as a whole and analyze all of the death sentences from the Dachau courts. This

Commission met unbeknownst to the general public, examining trial documents and interviewing officials before submitting its recommendations to the Army Department on September 14, 1948.

The panel recommended that all of the twelve remaining death sentences be commuted to life imprisonment; the Commission “believed that the pretrial investigations in the Malmédy case may not have been properly conducted, and they felt that no death sentence should be executed where such doubts existed,” although Judge Simpson did reveal that he felt “there had been no physical mistreatment of the accused…but the use of the mock trials and similar matters had influenced him in his decision.”38 The Simpson Commission in no way lessened the increasing condemnation and censure growing against the US Government; criticism of the ongoing war crimes trials only increased after the release of the Simpson Commission recommendations.

Factions in both the German and American public expressed demonstrative outrage that such mistreatment of defendants could have occurred.39 General Clay provided due attention to the results of the Simpson Commission, yet still determined that two of the Malmédy defendants should be executed. This announcement, contrary to the views of the Secretary of the Army, coupled with General Clay’s extreme sentence commutation of a controversial defendant in another trial, led Secretary Royall to once again stay all executions.

During a Dachau trial of officials from the Buchenwald Nazi concentration camp, Ilse

Koch, wife of the camp commander, stood trial. Koch had actively participated in the mistreatment of prisoners and “had gained particular notoriety due to accusations that she had

38 U.S. Senate, Investigation: Report of Subcommittee of the Committee on Armed Services, 81st Cong., 1st sess., 1949 (Washington: United States Government Printing Office, 1949), 28. 39 William B. Conklin, “Protests Increase on Malmedy Trial,” New York Times (March 2, 1949), 1. http://proquest.umi.com.lp.hscl.ufl.edu/pqdweb?index=0&did=84551028&SrchMode=2&sid=3&Fmt=10&VInst=P ROD&VType=PQD&RQT=309&VName=HNP&TS=1299780082&clientId=20179 Ernest 22 ordered lamp shades made from human skin,” and duly received a punishment of life imprisonment in 1947.40 When the sentences of the Buchenwald officials underwent an official review by General Clay, Koch received a commuted term of a mere four years in prison after the

General could find no thorough proof that the “lamp shade” allegations were true. Such an extreme sentence commutation was not immediately announced, resulting in a certain amount of scandal and embarrassment for the Army Department when the public became aware of the leniency shown to the “Bitch of Buchenwald.”41 The growing outrage from the general public over the Ilse Koch affair and the investigations into the Malmédy Massacre trial drew the attentions of the legislative branch of the US Government, which announced yet another official investigation into the Malmédy trial to discover any possible mistreatment of the defendants and to advise commutations for any unjust sentences.

The Subcommittee of the Senate Armed Forces Committee, headed by Senator Raymond

E. Baldwin, conferred for seven months in 1949, investigating the Malmédy massacre as well as the entire trial before submitting a report on October 13, 1949. The subcommittee did confirm there was some “physical brutalization of German prisoners, but refused to acknowledge this was a general practice” and did not condemn the war crimes trial program as a whole.42 The report urged new methods for ongoing trials, including greater involvement with the United Nations, hiring only those who had been US citizens for at least ten years, involvement of only trained investigators in war crimes work, and encouraged an investigation into the possible revival of

“the German nationalistic spirit by discrediting the American military government.”43 This recommendation openly addressed the negative press the war crimes trial program was receiving

40 Buscher, The U.S. War Crimes Trial Program, 54. 41 Alexandra Przyrembel, “Transfixed by an Image: Ilse Koch, the ‘Kommandeuse of Buchenwald,” German History, 19:3 (2001), 369-99. 42 Mendelsohn, “War Crimes Trials and Clemency,” 249. 43 U.S. Senate, Malmedy Massacre Investigation, 34-35. Ernest 23 from both American and German fronts, and urged consideration for the relationship that

Germany might develop with the Soviet Union due to such tensions.

The Senate Subcommittee’s results not only laid to rest the public’s outrage over the mishandling of justice in the Malmédy trial, but also confirmed the growing unrest over the continuation of war crimes trials. Although the Subcommittee in no way condemned the goals of the trials, but rather encouraged them, their review marked a distinct shift in the attitude towards sentence commutations and the consideration of Germany during the process. After this point the

American government adapted a conciliatory rather than condemnatory attitude toward the

German public, and as such would lessen the stringency of future trials. In the case of the

Einsatzgruppen defendants, more American officials would consider leniency because of the new peaceful relationship the US attempted to form with the resurging German nation.

In the case of Ilse Koch, General Clay’s sentence commutation stood and she could not be retried by the US, for it would be contrary to America’s policy of double jeopardy. However,

Koch’s war crimes trial had indicted her only for crimes committed against non-Germans; the abashed General Clay suggested that German officials try her in German courts, so that she might receive a more deserved penalty for her crimes. Koch’s trial in found her guilty and sentenced her to life imprisonment, a term she served until her suicide in her prison cell in

1967.44 Despite Koch’s earned retribution, as German nationalism surged in the early months of

1950, many German defendants in war crimes trials would eventually receive sentence commutations, and exhaustion over trials would allow them escape from any further national trials. As the United States began more attempts at conciliation with the German nation, public figures, outspoken against continued war crimes trials, began to call for commuted sentences for

44 Mendelsohn, “War Crimes Trials and Clemency,” 248. Ernest 24 all German defendants, even members from the Einsatzgruppen trial, guilty of crimes against humanity and the murders of over one million civilians.

The Onset of Trial Fatigue Due to Public Outcry

“Most Germans are still unaware of the detailed events we shall account. They must realize that these things did occur in order to understand somewhat the causes of their present plight. They put their faith in Hitler and their hope in his regime. The Nazi ideology, devoid of humanism and founded on a ruthless materialism, was proclaimed throughout Germany and was known to all Germans. Hitler and other Nazi leaders made no secret of their purpose to destroy the Jews.” - Opening Statement of the Prosecution, Benjamin Ferencz45

Only three years after the conclusion of the Einsatzgruppen trial all but four of the defendants had received commuted sentences. With the exceptions of Otto Ohlendorf, Erich

Naumann, Paul Blobel and , who were executed in 1951, all of the defendants walked free from Landsberg prison by 1958. The defense council from the trial made no credible allegations of improper interrogation methods and there were no legitimate rumors questioning the validity of the trial, yet in 1950 the United States gathered an advisory board to review the sentences of all of the Einsatzgruppen defendants. If there were no allegations of illegally obtained confessions or any other improper activities during the Einsatzgruppen trial, as there

45 Trials of War Criminals Before the Nuernberg Military Tribunals, 31. Ernest 25 were in the Malmédy trial, how did the call for such a review arise? After the Malmédy investigations reached their conclusions and the subcommittee determined that although harsh interrogations had taken place in that trial, they were not widespread throughout all of the trials.

A permanent stain nonetheless appeared on the entire war crimes trial program.

Once the trial program demonstrated some sign of imperfection in calling for multiple review boards for the Malmédy trial, individuals and organizations protesting the trials used that evidence to publicly increase their censure. The concern of misdeeds from the Malmédy trials altered the public perception of the war crimes trials program; both Germans and Americans viewed the trials more as punitive vengeance, and the possibility that innocent Germans had been prosecuted and mistreated by trial officials pervaded the public’s perspective.46 The print media willfully contributed to the shift in perception, reporting the words of those protesting the trial program, while the individuals supporting the purpose of the trials remained in the background, diligently continuing to bring the perpetrators to justice. Some of the most vocal protests stemmed from the German populace, an entity that had remained relatively subdued during the early years of the Allied occupation, cautious of the strength and control the American Military

Government sustained. As the rubble from the Second World War cleared away, the occupying forces slowly shifted responsibility back to German civilians, and shifted from occupied regions to part of an emerging new German nation. May 1949 represented a landmark moment as Western Germany founded the democratic Federal Republic of Germany. The reestablishment of a government reinforced a sense of nationalism for German citizens, and more people voiced objection to the continuation of a foreign government prosecuting German nationals. From the very beginning of the trials the loudest protesters were members of the

46 Jack Raymond, “Lesson of Trials Lost in Germany,” New York Times, (May 8, 1949), E5 http://proquest.umi.com.lp.hscl.ufl.edu/pqdweb?index=582&did=84188187&SrchMode=1&sid=8&Fmt=10&VInst =PROD&VType=PQD&RQT=309&VName=HNP&TS=1299781093&clientId=20179 Ernest 26

German clergy, who over time began to campaign to American Senators for clemency for the war crimes defendants. Some of these lawmakers, such as rookie Senator Joseph McCarthy, often found publicity in speaking of a continued war crimes trial program as a brutal attempt at vengeance by select officials. The combination of lobbying from the German clergy and

American lawmakers, extensively documented in newspapers, aided in altering the perception of the war crimes trials. Such campaigning, along with a shift in the world’s attention to the increasing drama of the emerging Cold War in the early 1950’s, led to a negative shift in the solidarity for the war crimes trial program.

At the commencement of the International Military Tribunal in late 1945 representatives from the Protestant and Catholic clergy in Germany, opposed to the death penalty and ex post facto law, voiced their censure of the war crimes trial process. Several prominent clerical figures placed themselves in a continuous and very public debate with American officials, including

General Clay, on the false justifications of war crimes trials, and what they believed to be the injustices of death sentences for the defendants in all of the trials. Members of the clergy spoke against the “pagan and naïve” use of the death penalty as a sentence, adopting an offensive attitude against the Allied occupiers in an attempt to shift attention away from the clergy’s

“uncomfortable reminder of the past,” where during the Holocaust the Church did little to act against the Nazis.47 A united front in the German Protestant Church did release the

Declaration of Guilt in 1945, accepting guilt for not openly opposing the Nazi government; members of the Catholic clergy followed soon after with an apology of their own. Although the language seemed to support the Allied attempt to garner justice in the war crimes program, the signing members actually aimed to persuade the US to decrease its influence in Germany; such

47 Buscher, The U.S. War Crimes Trial Program, 92. Ernest 27 an attempt had no success.48 When the international tribunal handed down its first sentences in

1946, a gathering of the World Council of Churches released a message “contain[ing] a strong appeal to occupying authorities to temper justice with mercy.”49 Representatives from the

German , including ’s Cardinal Josef Frings and Munich Auxiliary

Bishop Johannes Neuhäusler took the most active role in protesting the war crimes program after the Vatican officially requested in 1948 that the United States show mercy for the German nationals on trial.

Cardinal Josef Frings adopted a forceful role in protesting the American war crimes trials; he insisted, “when it came to determining guilt, God was the last and the only true instance.”50 The Cardinal wrote fervent pleas to Military Governor Clay, the final judge in accepting a defendant’s death sentence, and even appealed to President Truman in 1948, opposing a foreign occupier’s use of the death penalty on German citizens and insisting the

“Landsberg gallows is throwing back by years a reconciliation of the nations”.51 He and other

Catholic officials frequently “asserted that the trials…were a product of power politics, that they were morally questionable and overly hasty decision that represented victor’s justice, and that they were unfair because when the crimes had been committed by the defendants, there was no law against them.”52 As the protesting persisted, and arguments that crimes against humanity and the genocide of millions constituted ex post facto law continued, General Clay duly reminded the

48 Ibid., 98. 49 “Church Council Warns Against Vengeful Peace,” Chicago Tribune, (February 26, 1946), 9. http://proquest.umi.com.lp.hscl.ufl.edu/pqdweb?index=0&did=462945812&SrchMode=2&sid=1&Fmt=10&VInst= PROD&VType=PQD&RQT=309&VName=HNP&TS=1299781431&clientId=20179 50 Buscher, The U.S. War Crimes Trial Program, 93. 51 “Truman Bid to Stop German Executions,” The Christian Science Monitor, (November 3, 1948), 8, http://proquest.umi.com.lp.hscl.ufl.edu/pqdweb?index=0&did=172530522&SrchMode=2&sid=3&Fmt=10&VInst= PROD&VType=PQD&RQT=309&VName=HNP&TS=1299781748&clientId=20179 52 Michael Phayer, The Catholic Church and the Holocaust, 1930-1965, (Bloomington: Indiana University Press, 2000), 142. Ernest 28

Catholic Church that the death penalty for this applied only in cases of “cold-blooded murder,” yet outrage over this issue continued.53

Auxiliary Bishop of Munich Johannes Neuhäusler’s criticism of the trial program, voiced in his sermons and correspondence to American organizations, newspapers and legislators, was the most radical of clerical attempts to influence the war crimes trial process. After serving as a spiritual guide for defendants held at Landsberg prison, Bishop Neuhäusler at first campaigned for clemency for the spiritually penitent war criminals, but as time went on his activism progressed to attack the war crimes trials program as a whole.54 Imprisoned by the Nazis in 1941 in a concentration camp, Bishop Neuhäusler used this personal experience as a victim of the

Third Reich to exert greater influence over those he lobbied to, advocating himself as an obvious opponent of the Nazis.55 He took an active role in calling for the American occupying government to provide clemency for convicted war criminals and the American Chicago Daily

Tribune, which had adopted an anti-war crimes trials stance, willfully advertised the writings of the Bishop in its publications. Neuhäusler’s relationship with Senators Joseph McCarthy and

William Langer, leaders in the campaign for a Malmédy review board, allowed him to exert influence in the eventual creation of the Senate Subcommittee reviewing the trial. Neuhäusler’s success in pushing for trial investigations encouraged him to continue his protests of the trials program in an attempt to prevent any defendants from being executed; his methods of persuasion grew increasingly radical in tone over time. Bishop Neuhäusler continued to call for sentence commutations for defendants convicted of the most heinous crimes, including the

53 Buscher, The U.S. War Crimes Trial Program, 94. 54 Ibid., 93. 55 Earl, The Nuremberg SS-Einsatzgruppen Trial, 270. Ernest 29

Einsatzgruppen defendants and defendant , “who oversaw the organization of Nazi death camps” and was sentenced to death in another NMT trial.56

As a representative of the Protestant clergy, the recognized writer of the Stuttgart

Declaration, Bishop Theophil Wurm’s “fervent attacks on the war crimes process…were unrivaled by any other German religious leader.”57 Wurm’s support and sympathy for war crimes defendants that he deemed penitent for crimes committed extended first to IMT defendant

Konstantin von Neurath, Nazi Foreign Minister from 1933-1938 and Reich in control of Bohemia and Moravia from 1939-1941. Neurath received a fifteen-year prison sentence for his involvement in the conspiracy to wage aggressive war. Bishop Wurm submitted articles to

German newspapers in defense of the former Foreign Minister, insisting on his release from incarceration and an immediate pardon. In the midst of the twelve subsequent Nuremberg trials,

Bishop Wurm became his most vocal, sending pleading and manipulative letters to members across the hierarchy of the US Government, including General Clay, the Chair of the US Foreign

Relations Committee, the Secretary of State, and President Truman.58 The Bishop shared the view with many other clerical leaders in considering the war crimes trial program a case of victor’s justice, and often cited the Soviet Union’s participation with Germany in the Molotov-

Ribbentrop Pact of August 1939. The Germans in the IMT were charged with aggressive war for the creation of this pact, which allowed for the invasion of , yet the Soviet Union faced no consequences for its equal participation.

Over time Bishop Wurm’s close relationships with Americans such as New York lawyer

George Dix and Senators McCarthy and Langer became factors in voicing his opinion in the US.

56 Phayer, The Catholic Church, 143. 57 JonDavid K. Wyneken, Driving out the Demons: German Churches, The Western Allies, and the Internationalization of the Nazi Past, 1945-1952, (Ann Arbor: ProQuest Information and Learning Company, 2007), 347. 58 Wyneken, Driving Out the Demons, 359. Ernest 30

When the defendants that the Bishop continued to rally for remained in prison, these political relationships allowed for continued publicity in the American press and more radical attempts at inciting an abrupt end to the war crimes trial program. The Bishop and George Dix began personal attacks on officials within the trials, including Robert Kempner, the deputy prosecutor for the subsequent Nuremberg trials. Kempner, a Jewish lawyer expelled from Germany after a stint in a concentration camp, immigrated to America in 1935 and eventually took up a post in the war crimes trials. Bishop Wurm’s correspondence relationship with Kempner was one of loathing; their acidic letters to each other eventually appeared in the German press, causing even more controversy for the war crimes trials program. To Bishop Wurm, “Kempner embodied the spirit of revenge that [he] believed motivated the war crimes trials,” and during the Dachau investigations the Bishop stated that “military authorities had assigned prosecutors to Dachau

‘who believed that they could now settle their personal differences with the Third Reich,’ a clear reference to the Jewish heritage of some of the prosecutors.”59 By 1948 antipathy between those in opposition to the war crimes trials and Kempner had reached caustic levels. Wurm, Dix and

Senator Langer attempted to discreetly discover if Kempner had associations with any former

Nazis or Communists, believing that the possession of such information could “completely destroy Kempner’s reputation and thus discredit the entire war crimes process.”60 No proof of such relationships ever surfaced.

Wurm and his allies continued their attacks against the war crimes trial program, and when former president of the World Bank, John J. McCloy, replaced General Clay as the leading

US official in Germany, Wurm forwarded his officials protests to McCloy. McCloy did not become the new Military Governor, but became the High Commissioner of Germany, overseeing

59 Wyneken, Driving Out the Demons, 356-64. 60 Ibid., 367. Ernest 31 the United States’ gradual withdrawal from Germany’s affairs, rather than exerting full control over an occupied nation. At this time Wurm had taken up the mantle for more radical defendants, including Eugen Steimle and , both sentenced to death in the Einsatzgruppen trial. Bishop Wurm appealed to McCloy’s emotions in his correspondence concerning the remaining defendants slated for execution, claiming that “‘none of the prisoners knows whether or not today is the last day of his life’ and, thus, ‘the severity of the death sentence is increased to an unheard-of degree and is at variance with all feelings of decency.’”61 Wurm lent the two

Einsatzgruppen defendants his support because they had been members of the Evangelical church (before the advent of the Third Reich, when the two each renounced their faith, as common when joining the SS). Both Bishop Wurm and Bishop Neuhäusler petitioned for these men “because, as they convinced themselves, these men were not war criminals, but ‘decent human [beings],’ and the trials were simply not fair.”62 Although Commissioner McCloy did not cite the pleadings of the German clergy as a contributing factor in his call in 1950 for an advisory board on clemency, set to review the remaining sentences of inmates at Landsberg, the “pressure of church leaders took its toll” and certainly influenced his decision.63

Despite all of the publicity the German clergy members brought to the war crimes trial program, as time passed the world’s focus shifted to the developing tensions between countries representing the ideals of democracy and communism. After the Second World War, the Soviet

Union and the United States immediately clashed concerning the appropriate governmental setup for all of the occupied nations, those the Soviet army had enveloped when pushing the German army back to Berlin, where it eventually engulfed half of Germany itself. The Soviet Union’s refusal to allow the establishment of individual governments in the region shadowed the majority

61 Earl, The Nuremberg SS-Einsatzgruppen Trial, 279. 62 Earl, The Nuremberg SS-Einsatzgruppen Trial, 272-3. 63 Phayer, The Catholic Church, 143. Ernest 32 of Eastern Europe behind an “Iron Curtain,” as coined by former British Prime Minister Winston

Churchill. The United States, in contrast to the Soviet Union, aimed to instill democracy in all nations, and the following tensions between the Soviet Union and the United States would continue into the following four decades.

With the focus of American newspapers and, as a result, the focus of the American public, turning to the mistrust and pressure between the two superpowers, the spotlight on the punishment of World War II criminals dimmed, and sympathy and amiability arose between

Germany and the United States. The establishment of a democracy in , a sharp contrast to the communist rule of , rallied Americans behind the new republic attempting to forge on past its dark Nazi history. The general German public had always met the war crimes trial program with antipathy, due to German newspapers’ inconsistent and sketchy coverage of the crimes the defendants were charged with. Even after the majority of the trials had ended, “great numbers of Germans…profess complete ignorance about the existence of, and events within, the concentration camps.”64 Thus, with the reinstatement of an independent

German government, the German public, with an incomplete image of the goals of the trials, continued to forsake the trials as a wholly punitive process, where foreign officials unjustly placed German citizens in the hangman’s noose. The new German government had gained power over many administrative and legislative duties with the Federal Republic and the new leader,

Chancellor , but some rights, including foreign policy, trade and law-making, remained in the grasp of the American command.65 High Commissioner McCloy remained bound by American law to keep “exclusive authority over questions of clemency, amnesty and pardons for those convicted by Allied war crimes courts,” an order that appeared to both

64 Raymond, “Lessons of Trials.” 65 Buscher, The U.S. War Crimes Trial Program, 56. Ernest 33

American and German officials as “blocking the Federal Republic’s path toward integration, rearmament and, ultimately, sovereignty.”66

When McCloy, a staunch supporter of the original goals of the war crimes programs, first took office he aimed to ensure that the defendants from the Nuremberg trials served their full sentences. Such resolve however, contrasted with his equal determination to establish a positive relationship with the Adenauer government. Chancellor Adenauer, a representative from the conservative majority in Germany, had even expressed his desire for leniency, although he refrained from the more radical approaches to persuasion. The Chancellor adopted a stance in line with many other moderate Germans, protesting the sentences of the defendants on the

“principled opposition to capital punishment, which had been outlawed under the German

Constitution.”67 Requests based on this principle did not necessarily push to release all war criminals in Landsberg prison, but to at the very least commute the death sentences to terms of imprisonment. Even those formerly persecuted by the Nazis, such as Inge Scholl, “whose sister and brother, leaders of the ‘White Rose’ resistance movement, had been killed by the Nazis,” joined in the protests against capital punishment for the war criminals.68

Others involved in the new Federal Republic did simply insist on sentence commutations out of consternation over victors’ justice, and also aimed for the release of war criminals key to the vitality of the German economy. Alfried Krupp, a wealthy German industrialist during the

Third Reich, was tried in one of the subsequent Nuremberg trials for the use of slave labor in the industrial plants owned by both him and his father, Gustav Krupp. Overwhelming evidence from the trial demonstrated his corporation’s complicity in using concentration camp inmates as slave

66 Ibid. 67 Kai Bird, The Chairman: John J. McCloy, The Making of the American Establishment, (New York: Simon and Schuster, 1992), 362. 68 Schwartz, “John J. McCloy and the Landsberg Cases,” 445. Ernest 34 labor at a plant in Auschwitz and “giving [the SS] responsibility for inflicting punishment on the workers,” where “thousands of such slave workers died of malnutrition, beatings, and disease.69

Krupp was interned at Landsberg, along with many members from his board of directors, to face twelve years in prison.70 Despite Krupp’s imprisonment, his company (situated in the industrial

Ruhr valley), which formerly produced armaments and played a critical role in the German economy, continued to function by involving itself in other industries. The new Federal Republic and even the American government, keen to form an alliance with the German democratic state, had a vested interest in bolstering the German economy, and therefore benefitted in releasing industrialists from prison. McCloy eventually complied with the constant requests to release

Krupp and other industrialists; his Advisory Board on Clemency advised commutations for the majority of the “white-collar” war criminals in 1950, since “many of the bureaucrats and industrialists seemed far less directly responsible for such atrocities,” and Krupp exited

Landsberg prison on February 3, 1951 to resume building his industrial empire.71

Although the new German government and the exiting American officials attempted to form an affable relationship, especially in light of the ongoing conflict between the United States and the Soviet Union, sixteen men from the subsequent Nuremberg trials, identified by the red jackets they wore in prison, still faced execution. The general German public deemed such a circumstance unacceptable. Similar to the prominent clergy members involved in protests over continued trials, by 1949 “Germans wanted nothing less than the amnesty of all war criminals,” which would “go a long way in improving relations between the two nations.”72 The majority of citizens in the United States supported the move towards an alliance with Germany, especially in

69 Bird, The Chairman, 360. 70 Ibid. 71 Schwartz, “John J. McCloy and the Landsberg Cases,” 444. 72 Earl, The Nuremberg SS- Einsatzgruppen Trial, 278. Ernest 35

1949 after the “valiant stand of the West Berliners during the Berlin airlift and their firm adherence to the West could not fail to win the admiration of the press and media.”73 The urgent desire for amiability between Germany and the United States only escalated with the outbreak of the Korean War in June of 1950, the first clear battle between democratic and communist ideals.

The United States pledged its support and military troops to aid in the fight against a communist invasion, and involvement in this crisis strengthened the resolve to move towards reconstructive rather than punitive politics with West Germany, as the Republic “would be the bulwark against

Communist encroachment in Central and Western Europe.”74 The Korean War also began

Commissioner McCloy’s serious consideration for German rearmament; it was his belief that this allowance would serve to further ally Germany with the United States.

The upheaval of the Western world’s political atmosphere in the late 1940’s and early

1950’s, along with the abrupt shift of public opinion against the continuation of the war crimes trial program, led High Commissioner McCloy to concede to the atmosphere surrounding him and organize an Advisory Board on Clemency to review the sentences of the remaining inmates at Landsberg prison. The sweeping commutations for the inmates at Landsberg prison brought a sense of victory to many who had protested the trial program, but many other figures who had supported the purpose of the trials expressed their disappointment in the review board’s results.

After the board submitted their recommendations, Georg Reuter, vice president of the German

Federation of Labor, expressed his disapproval in commuting the sentences for any of the defendants. At a convention in Chicago, he stated, “‘these men have perpetrated terrible crimes against humanity and deserve no commutation,’” and should serve their full sentences, “‘if the

German people want their reputation cleansed and the stain of the past removed, stern justice will

73 Mendelsohn, “War Crimes Trials and Clemency,” 251. 74 Valerie Geneviève Hébert, Hitler’s Generals on Trial: The Last War Crimes Trial at Nuremberg, (Lawrence: University Press of Kansas, 2010), 155. Ernest 36 have to be done.’”75 Reuter spoke on behalf of the labor forces in Germany who toiled for years as slaves in the , including the Flossenbürg camp, where he revealed he had lost five of his relatives to the torturous work conditions. Even a small minority of German clerical members stood in support of the war crimes process, including Bishop Neuhäusler’s superior, Munich’s Cardinal Michael Faulhaber. In a meeting with a US official the Bishop demonstrated his belief that “a convicted war criminal was a sinner who had to pay for his sins,” yet Faulhaber made little to no overtures to halt his subordinates’ radical protests.76 The minority of public figures who remained steadfast in support of the war crimes trials attempted to emphasize the justice that the prosecutors tried to attain against defendants who had participated in atrocities never before committed in war. But although people who believed in the principles of the war crimes trials still existed, clergymen and advocates of the defendants had succeeded in their goals; through the constant barrage of speeches, sermons, newspaper editorials and publicity, the main aims of the war crimes trials had been lost. American and German civilians forgot the significance of the atrocities committed by the Nazis and even advocated clemency for criminals convicted for ordering the execution of over one million citizens in the largest genocide of the modern age.

75 Ferdinand Kuhn, “German Labor Leader Attacks Easing of 15 Nazi Sentences,” The Washington Post, (November 21, 1950): 4, http://proquest.umi.com.lp.hscl.ufl.edu/pqdweb?index=7&did=170732562&SrchMode=2&sid=5&Fmt=10&VInst= PROD&VType=PQD&RQT=309&VName=HNP&TS=1299782246&clientId=20179 76 Buscher, The U.S. War Crimes Trial Program, 97. Ernest 37

Chapter 3: High Commissioner McCloy Authorizes Sentence Reviews

“In spring 1941, in contemplation of the coming assault upon the Soviet Union, the Einsatzgruppen were created as military units, but not to fight as soldiers. They were organized for murder. In advance of the attack on Russia, the Einsatzgruppen were ordered to destroy life behind the lines of combat.” -Opening Statement of the Prosecution, Benjamin Ferencz77

When Commissioner McCloy assumed control in Germany early in 1949, the exiting

General Clay apologized to his successor for handing over the “thankless task” of dealing with the unresolved war criminals issue.78 General Clay inferred from the level of German protests that the war crimes trials would be an immense burden for his successor. Indeed, McCloy had only held his position for a few months before the public outcry against the execution of war criminals pressured him into reversing his position on the trials program. Although he once supported the trials, and even believed that such a judicial process would aid Germany in the long term, in December of 1949 McCloy began using his power to commute the sentences of the remaining Landsberg inmates. He only had jurisdiction over the defendants from the twelve subsequent Nuremberg tribunals. The leading military official in Germany, General Thomas

Handy, the army commander, assumed control over the sentences from the .

77 Trials of War Criminals Before the Nuernberg Military Tribunals, 30. 78 Schwartz, “John J. McCloy and the Landsberg Cases,” 436. Ernest 38

In the beginning of the 1950’s public pressure on McCloy was at its most radical, even to the extent of death threats against his family. After the protests reached such extreme lengths, he determined it appropriate to create an Advisory Board on Clemency to review the individual sentences of each inmate at Landsberg. This review board consisted of three American judges with no previous connection to the war crimes trials program, providing an unbiased perspective

McCloy hoped would demonstrate the objectivity of the sentence review process. The board reviewed the sentences of each of the 104 defendants over a four-month period before submitting recommendations to the High Commissioner. McCloy felt his control over the final decision demanded his full consideration, and delayed his announcement until January of 1951, using several months to review the final judgments from the trials and the board’s recommendations.

Because the defendants from the Einsatzgruppen trial committed such heinous crimes and received more death sentences than in any other trial, the fate of these men remained in the forefront of the controversy. McCloy’s subsequent lenient sentence commutations for these men most accurately depicted the weakening of the United States’ resolve concerning the war criminals. Contemporary perspectives of this commutations process supposed the strong desire for political expediency and the eagerness to claim the Federal Republic of Germany as an ally contributed to McCloy’s sweeping commutations. Such a conclusion becomes even more significant when considering the outbreak of the Korean War in June of 1950.79 The start of this conflict occurred mere months before McCloy decided to reduce the death sentences of ten of the original fourteen Einsatzgruppen defendants. The Commissioner also commuted the prison sentences of the majority of the remaining Landsberg inmates, effectively undoing the justice originally pursued in the war crimes trials.

79 Schwartz, “John J. McCloy and the Landsberg Cases,” 433. Ernest 39

When McCloy decided to review and reconsider the war crimes sentences, such a concession signaled his effective appeasement of the general German public. After consultation with his legal counsel, McCloy understood he was unauthorized to question the validity of any final judgments, but he did have the jurisdiction to reduce sentences. In December of 1949

McCloy established a system, similar to one in American law, providing credits for prisoners demonstrating good behavior in prison. The Commissioner’s policy “granted remission of one third of [a defendant’s] sentence for good behavior,” or five days per month, which drastically reduced the prison sentences of many Landsberg prisoners.80 Under this formula six prisoners immediately qualified for release, including industrialist Frederich Flick, interned at Landsberg for his corporation’s use of slave labor in Nazi concentration camps, who exited prison a full two years before his original seven-year sentence allowed.81 Many of the defendants released due to

McCloy’s good behavior system stemmed from the economic war crimes trials, including the chairman of the board of I.G. Farben, another magnate that extensively used slave labor during the Nazi regime. Many critics felt this commonality demonstrated a distinct leniency towards industrialists who could aid in benefitting economic relations between the US and Germany.82 A

United States official attempted an explanation in the New York Times, stating “the problem had been under consideration for six months and was not related…to the present political situation,” although this defense did little to halt the objections to the release of the economic, white-collar war criminals.83 Nevertheless, McCloy felt secure in his decision, believing that providing credits would promote order inside the prison and deliver appropriate discipline by confiscating

80 Hébert, Hitler’s Generals on Trial, 160. 81 Thomas Alan Schwartz, America’s Germany: John J. McCloy and the Federal Republic of Germany (Cambridge: Harvard University Press, 1991), 160. 82 “Imprisoned Nazis to be Freed Soon,” The New York Times (August 23, 1950): 33, http://proquest.umi.com.lp.hscl.ufl.edu/pqdweb?index=1&did=91631825&SrchMode=2&sid=2&Fmt=10&VInst=P ROD&VType=PQD&RQT=309&VName=HNP&TS=1299854601&clientId=20179 83 Ibid. Ernest 40 credits from ill-behaved prisoners, without providing undue leniency to the war criminals. The

German public still clamored for more leniencies because the good behavior system did not impact the severity of the defendants serving sentences of life imprisonment or facing execution.

McCloy remained hesitant to carry out any executions of prisoners and attempted to find other options for the war criminals issue.

The Commissioner’s creation of an advisory board modeled a similar board of review, the War Crimes Modification Board, created in November 1949 to review clemency requests for the Dachau cases. At first, McCloy lobbied to General Handy, who was in charge of the board,

“indicating his desire to expand the jurisdiction of the War Crimes Board to include the

Nuremberg defendants under his jurisdiction.”84 After the State Department urged McCloy against such a decision, he worried the stigma of the Malmédy controversy could further undermine the sentences in the Nuremberg trials. The commissioner requested that he be allowed to create a separate commission to review clemency requests. Yet even before receiving permission from Secretary of State Dean Acheson, McCloy had begun outlining a clemency board for the Landsberg defendants. McCloy felt that his own should not review clemency requests, and he “needed ‘a board of qualified individuals who are recognized for objectivity and independence of judgment.’”85 He hoped that “an expert and independent panel might help him

‘clean up’ the war-crimes problem and defuse the political controversy” surrounding these cases.86 McCloy’s new advisory board, which convened for the first time in March 1950, consisted of a three men: David W. Peck, the presiding judge of the Appellate Division of the

New York Supreme Court, Frederick A. Moran, the chairman of the New York State Board of

Parole, and Brigadier General Conrad E. Snow, an assistant legal advisor for the Department of

84 Earl, The Nuremberg SS-Einsatzgruppen Trial, 280. 85 Schwartz, “John J. McCloy and the Landsberg Cases,” 440-41. 86 Ibid. Ernest 41

State. The board, called the Peck Panel after its leader, began its work in April of 1950 when

Moran traveled to Munich to gather all of the paperwork for review, and culminated in a six- week review process lasting from July 11, 1950 to August 28, 1950.87

The Peck Panel remained under the same restrictions as Commissioner McCloy, which forbade “reviewing the tribunals’ decisions with regard to law or fact,” or calling into question the final judgments, yet beyond this limitation the guidelines under which the panel functioned remained vague.88 The three-man unit convened together in Munich on July 11, where the panel sifted through “all the petitions for clemency filed on behalf of the defendants, reviewing the

3000 pages of judgments and considering written and oral presentation from some fifty defense counsel.” 89 Reading the petitions for clemency submitted by defendants alone was a gargantuan task because the majority of the defendants had submitted multiple requests; Einsatzgruppen defendant alone submitted twenty-two clemency petitions. The Peck Panel pieced through the piles of trial documentation at a “dizzying” pace, working seven days a week for six weeks, and even conducting 105 hearings over only eleven days, where “lawyers for the convicts were allowed to speak for thirty minutes each.”90 Such a frenzied process further ignited the ire of those who disapproved of a sentence review board. Indeed, McCloy’s chief legal counsel Robert Bowie became one of the most fervent protesters of the Advisory Board during this process. He insisted to the commissioner that the Panel willingly disregarded the conclusions made in the original judgments. Bowie warned the commissioner of the board’s neglect, when

“the Peck Panel second-guessed the conclusions of the Nuremberg judges without having heard

87 Schwartz, America’s Germany, 162. 88 Hébert, Hitler’s Generals on Trial, 160. 89 Schwartz, America’s Germany, 163. 90 Hébert, Hitler’s Generals on Trial, 161. Ernest 42 all of the evidence.”91 The panel “had neither the time nor the interest to review the more than

330,000 pages of evidence used in the trials,” and, in the cases of the Einsatzgruppen defendants, refused Chief Prosecutor Benjamin Ferencz’s offer for an interview.92 Not a single representative from the Nuremberg trials was invited to provide accounts on the details of the trials.93

The Peck Panel, despite its generally superficial research process, did attempt to find a balance between upholding the values first established at the trials and a sweeping leniency towards the criminals. During review the Panel did not accept certain general arguments, including the “” excuse, the claim that the defendant faced punishment under ex post facto law, or the allegation that defendants awaiting execution faced emotional punishment deserved commutation for such a delay.94 Despite these attempts to uphold the fundamentals established at Nuremberg the board recommended sentence reductions and commutations for the majority of the war criminals in a report submitted to the Commissioner on August 28, 1950. As an aside to the sentence commutations, the board recommended that McCloy’s good behavior formula be increased from five to ten days per month, allowing for additional defendants (whose sentences were not recommended to receive commutation) to qualify for immediate release from

Landsberg. Of the 105 total defendants under consideration, the Panel recommended reductions for 77 sentences and the commutation of seven of the fifteen death sentences.95

In regards to the defendants from the Einsatzgruppen trial, the board recommended sentences reductions for thirteen of the prisoners. The board took into consideration “every possible ‘mitigating circumstance’” to determine cause for a reduced or commuted sentence,

91 Bird, The Chairman, 361. 92 Schwartz, America’s Germany, 163. 93 Hébert, Hitler’s Generals on Trial, 161. 94 Landsberg: A Documentary Report, Information Bulletin, Office of the U.S. High Commissioner for Germany (February 1951), 3. 95 Hébert, Hitler’s Generals on Trial, 161. Ernest 43 duly displayed in their leniency towards war criminals guilty of participation in genocide. In the case of defendant , who originally received a sentence of twenty years imprisonment, the Peck Panel “found that ‘the guilt of the defendant was not proved beyond a reasonable doubt,’” a conclusion reached “despite the fact that they neither reviewed the trial transcript nor any of the evidence submitted by the prosecution.”96 The Panel recommended his sentence be reduced to time served because of the favorable impression he made while being interviewed.

Another glaring example of extreme leniency was in the case of Walter Blume, where the judges

“noted that they ‘simply’ took the convicted war criminal’s word as fact instead of investigating his case further,” and recommended that his sentence be reduced from death to 20 years imprisonment.”97 Blume had explained to the Panel that although he carried out his orders, which demanded he play a role in genocide, he personally objected to them.

The Panel’s leniency towards Blume comes with a certain irony, considering their explicitly stated refutation of the legitimacy of the “superior orders” defense: “‘So long as there was an order which trickled down from the top, everyone in the wash of it enjoyed an immunity bath. It may be a consoling philosophy as it is a blind philosophy. But if it is to be negated, and there is to be a world of law and justice, individuals in positions of some authority must be held answerable for their acts.’”98 Furthermore, the board declared earlier on that “a mistaken tenderness towards the perpetrators of mass murder would be a mockery, undoing what

Nuremberg had accomplished,” a direct contradiction to the mercy given to Blume.99 The

Advisory Board stood by their recommendations, however, when they submitted the full report to Commissioner McCloy. This report was not released to the public until after McCloy

96 Earl, The Nuremberg SS-Einsatzgruppen Trial, 284. 97 Earl, The Nuremberg SS-Einsatzgruppen Trial, 285. 98 Hébert, Hitler’s Generals on Trial, 163. 99 Ibid. Ernest 44 announced his ultimate decision five months later. But although he held the final word on which sentences would ultimately be commuted, the review board had provided the Commissioner with the blueprints to provide extreme leniency to the majority of the Landsberg inmates.

McCloy and the United States Set the War Criminals Free

“Proof of a million murders will not be the most significant aspect of this case. We charge more than murder, for we cannot shut our eyes to a fact ominous and full of foreboding for all of mankind. Not since men abandoned tribal loyalties has any state challenged the right of whole peoples to exist. And not since medieval times have governments marked men for death because of race or faith. Now comes this recrudescence-this Nazi doctrine of a master race-an arrogance blended from tribal conceit and a boundless contempt for man himself. It is an idea whose toleration endangers all men. It is, as we have charged, a crime against humanity.” - Opening Statement of the Prosecution, Benjamin Ferencz100

Even after the Peck Panel, the war crimes controversy continued while the public awaited a final determination from Commissioner McCloy. With the publicity surrounding the outbreak of the Korean War in June, combined with McCloy’s desire to determine the final sentence commutations after an in-depth examination, the general public had little knowledge about the ongoing deliberations. The pressure on the Commissioner, stemming from the German public clamoring for blanket commutations for every defendant, the necessity of political expediency due to the tensions between communism and democracy, and McCloy’s desire to avoid any death sentences, added to the sense of importance concerning his final decision. The

Commissioner knew the controversy and criticism that would inevitably engulf his office after he released the official sentence commutations.

100 Trials of War Criminals Before the Nuernberg Military Tribunals, 31. Ernest 45

Another added difficulty during McCloy’s deliberation stemmed from those opposed to providing commutations; his legal staff in the office of the High Commission of Occupied

Germany (HICOG), especially legal counsel Robert Bowie, voiced their concerns. Bowie, always vocal in his disapproval of the Peck Panel, “declared flatly that in twenty-four cases, these recommendations were invalid, having taken insufficient recognition of the seriousness of the crimes prompting the sentences.”101 Nevertheless McCloy used the Panel’s recommendations as the primary source for his decisions, although other unorthodox procedures contributed to his deliberations. He “was willing to speak to almost anyone about the cases, accept new petitions and evidence, and hear new witnesses.”102

When the Commissioner announced the final sentence commutations on January 31,

1951, he published the results in an informational bulletin distributed to the German people. The public’s reaction was a mixture of relief and intense dismay. His results contained little clear logic and no determinable organization, but his final decision concerning Einsatzgruppen defendant Heinz Schubert, with its absence of logic, most adequately demonstrated McCloy’s erratic decisions. For Schubert, who originally received a death sentence in the Einsatzgruppen trial, the Peck Panel recommended a sentence commutation to only eight years imprisonment.

The legal aids at HICOG suggested that such a dramatic decrease “was ‘perhaps going a little too far,’ so [McCloy] commuted the sentence to a full decade.”103 Schubert, whose signed confession and witness testimony at the original trial “stated that he had personally supervised a ‘special action’ at in which seven or eight hundred people were machine-gunned to death,” had still been relatively subordinate in the SS ranks, and for McCloy, such a low-ranking

101 Hébert, Hitler’s Generals on Trial, 163. 102 Schwartz, America’s Germany, 167. 103 Bird, The Chairman, 371. Ernest 46 position was sufficient justification for his commutation.104 Including Schubert, McCloy reduced the number of defendants sentenced to death from fifteen to five, an abrupt shift from November of 1950 where McCloy “informed Washington that he had tentatively decided on nine executions,” a number more in sync with the decisions of the Peck Panel.105 Four of the war criminals that still faced execution originated from the Einsatzgruppen case: Otto Ohlendorf,

Paul Blobel, Erich Naumann and Werner Braune. Oswald Pohl, the only other defendant who received no sentence commutation and still faced execution, was the official in charge of the

Nazi concentration camp system. According to the commissioner’s final report, since these men had participated in genocide, “the enormity of the crimes for which these men were directly responsible for was such as to place clemency out of reason.”106 The irony in such a statement, however, lies with the other ten Einsatzgruppen defendants who originally faced execution, charged for the same crimes as their four counterparts, yet received commuted sentences.

The Commissioner’s decision to uphold five death sentences, after the German public had protested capital punishment with such fervor, won McCloy little support. A reporter from the New York Times aptly described McCloy’s difficult position, pointing out to readers that “no

American official had come to Germany with a ‘more sincere desire to help the Germans gain a position of trust and responsibility in Europe than did Mr. McCloy,’” but after dealing with the

Landsberg cases, “he [was] the target for such vilification and as no other American official in Germany has received during the occupation.”107 The German public continued to badger McCloy for clemency until the five remaining prisoners were executed on June 7, 1951.

104 Ibid. 105 Schwartz, “John J. McCloy and the Landsberg Cases,” 447. 106 Landsberg: A Documentary Report, 3. 107 Bird, The Chairman, 373. Ernest 47

Critical commentary on McCloy’s decisions, opposite those who protested the remainder of any death sentences, demonstrated disapproval over the Commissioner’s extreme leniency.

Factions feeling that the Landsberg war criminals deserved the original sentences delivered in the Nuremberg trials openly expressed outrage towards the Commissioner. In an editorial submitted by Frederick C. McKee, the Chairman on the Committee on National Affairs, published in both the Christian Science Monitor and The Washington Post, voiced harsh criticisms of McCloy’s decisions in four specific bullet points. McKee specified his concerns that the commutations “throw doubt into the entire basis, procedure and judgments of the trials conducted by the United States Military Tribunals,” and “to reduce the sentences of the perpetrators of inhumanities, many of whom are now able to return to public life, hardly encourages the democratic elements in Germany.”108 McKee openly addressed and scoffed at the

Commissioner’s hopes of improving an alliance with the German public through appeasement, stating “if these commutations were intended to placate German opinion in the effort to make western Germany a bulwark against the very real threat of Soviet aggression, such a policy of expediency does not accomplish its purpose and leads to other evils”.109 This editorial, one of many, provided a glimpse of the disapproval and disappointment of those who supported the original sentences from the Nuremberg trials.

Telford Taylor, the former chief US prosecutor for all of the subsequent Nuremberg trials and the principal official in charge of proving the defendants’ guilt, attacked McCloy’s commutations in an article published by The Nation. Within the article, Taylor repeatedly reprimanded McCloy for his leniency and questioned “what strange concepts of justice or

108 Frederick C. McKee, “Clemency Toward War Criminals,” The Washington Post (May 11, 1951): 20, http://proquest.umi.com.lp.hscl.ufl.edu/pqdweb?index=6&did=119382012&SrchMode=2&sid=5&Fmt=10&VInst= PROD&VType=PQD&RQT=309&VName=HNP&TS=1299807962&clientId=2017 109 Ibid. Ernest 48 notions of political expediency dictate the setting at large of eleven SS felons in the explosive atmosphere of present-day Germany?”110 Taylor directly referenced the Einsatzgruppen defendants who received sentence commutations, when describing the Commissioner’s actions as “puzzling,” considering that he went further than the Advisory Board, commuting more death sentences of Einsatzgruppen defendants. As the man once in charge of the compilation of evidence against these criminals, he expressed his outrage by providing examples of the extensive liquidation actions of the defendants. He placed such events in direct comparison with the sentence commutation of Schubert (to only ten years imprisonment), who admittedly oversaw the murders of hundreds, before commenting ironically of the “shades of the American soldiers who were executed by our own courts martial for crimes against individual civilians!”111

Taylor ended his condemnation with harsh censure, stating “these commutations will be seized upon as tantamount to a confession that the trials were the product of Allied vengeance and hate rather than the embodiment of law. Wittingly or not, Mr. McCloy has dealt a blow to the principles of international law and concepts of humanity for which we fought the war.”112

The criticisms of McCloy’s action did not solely rest with the submission of editorials in

American newspapers. After McCloy published his final decision, representatives from the newly formed nation of Israel expressed “profound pain,” at the leniency shown to the Nazi war criminals. In a released statement Israel made comments similar to those of Taylor, that the release of the Landsberg inmates “would undo the ‘great achievement of Nuremberg trials which had established the principle that there are certain basic rules of morality which no state and no

110 Taylor, “The Nazis Go Free,” 171. 111 Taylor, “The Nazis Go Free,” 171. 112 Ibid., 172. Ernest 49

Government can disregard with impunity.”113 The Israeli Government also stated “the deterrent effect of the original sentences on the Nazi leaders had been “gravely impaired.”114 Yet these expressions of disappointment had little effect on the final results. Although many across the globe disagreed with McCloy’s commutations, the majority opinion expressed a desire to move forward from the difficult memories of World War II.

The Commissioner’s clemency decisions aided in solidifying the new US policy towards war criminals, when the laws establishing the Nuremberg trials forbade the use of parole boards or appellate courts, McCloy and his Advisory Board used sentence commutations as an adequate substitute. The five remaining inmates sentenced to death were executed June 7, 1951, despite the continued efforts of both German clergymen and government officials to again stay the executions. On the night of execution the men were reportedly “calm and appeared resigned to their fate,” and afterward were “buried immediately in unmarked graves so as to prevent any show of martyrdom in the future.”115 After the executions, campaigns concerning the release of all of the Landsberg inmates continued. At this juncture, however, any US resistance to providing clemency for the remaining war criminals disintegrated. Between June of 1951 and

May of 1958, “all of the remaining Landsberg prisoners were released, including the remainder of the Einsatzgruppen leaders, to ‘appease Germany’ and maintain good relations.”116 The war criminals still interned at Landsberg prison became a burden that the United States no longer wanted to carry. In the following years the concern over war criminals gradually faded into obscurity until all of the defendants exited prison and such controversy evaporated.

113 “Nazis’ Release Scored: Israel Pained by Clemency to German War Criminals,” New York Times (March 13, 1951):22, http://proquest.umi.com.lp.hscl.ufl.edu/pqdweb?index=5&did=113175641&SrchMode=2&sid=4& Fmt=10&VInst=PROD&VType=PQD&RQT=309&VName=HNP&TS=1299847117&clientId=20179 114 “Ibid. 115 Earl, The Nuremberg SS-Einsatzgruppen Trial, 292. 116 Ibid., 294. Ernest 50

In the fall of 1951, US officials began creating a final resolution to the war crimes issue that would allow the United States to steadily release the Landsberg inmates under the guise of parole. A mixed clemency board provided a solution that officials felt “conveyed the impression that the integrity and the credibility of the war crimes program had been preserved, and the US had not traded the Landsberg prisoners for German rearmament.”117 But while the powers that be developed such a board, McCloy’s new “Christmas amnesty program” allowed for the release for more prisoners, including two Einsatzgruppen defendants, Nosske and Schubert. McCloy’s successor, High Commissioner James B. Conant, approved the new clemency board, officially named the Interim Mixed Parole and Clemency Board, implemented August 31, 1953. This advisory board “operated under regulations similar to those given McCloy’s original advisory board, and [it] continuously reviewed the various [remaining] cases, generously granting petitions for parole.”118 The Interim board consisted of representatives from the Western powers and Germany, and remained the primary tool for the release of prisoners for years, despite its direct violation of the regulations of the Nuremberg trials. Germany’s lack of objectivity in relation to the war criminals originally led the US to forbid any German influence in the review of sentences, yet this violation remained unchecked. The United States’ disregard for the laws of the war crimes trials represented the shift from firmness to complacency; indeed, “between 1953 and 1955, the Interim Board granted parole or clemency to twenty-four Nuremberg defendants including four from the Einsatzgruppen case.”119 When the Federal Republic of Germany became an entirely sovereign nation in 1955, the board was renamed the Mixed Parole and

117 Buscher, The U.S. War Crimes Trial Program, 162. 118 Schwartz, “John J. McCloy and the Landsberg Cases,” 453. 119 Earl, The Nuremberg SS-Einsatzgruppen Trial, 294. Ernest 51

Clemency Board, and dealt with the 50 war criminals still in prison. The United States made it known that it “wanted to release the prisoners as “‘quietly and discreetly’” as possible.120

May 9, 1958, when the final four war criminals walked free from prison, marked the end of the war crimes trial program in Germany. Three of the final prisoners, Einsatzgruppen defendants , Adolf Ott and Martin Sandberger, were originally sentenced to death, and had received commuted sentences of life imprisonment from Commissioner McCloy three years earlier. Although McCloy did attempt to uphold the “basic concept of the Nuremberg trials in the face of significant opposition” during the commutations process, his overall leniency

“set in motion a process whereby all the remaining Nazi war criminals would be released,” and brought a close to the US war crimes trial program in Germany. 121

Conclusion: A Lesson To Be Learned

“The conscience of humanity is the foundation of all law. We seek here a judgment expressing that conscience and reaffirming under law the basic rights of man.” - Opening Statement of the Prosecution, Benjamin Ferencz122

The Einsatzgruppen trial, the sole post-war trial to directly attempt to punish individuals responsible for the Nazi Final Solution, did not deliver the justice for which it originally sought.

But the war crimes trials after World War II broke the entirely new ground of international law, an attempt to combine multiple nations’ different and oftentimes clashing philosophies of law and order. Professor Hilary Earl observed, “American justice did not translate fully to foreign soil in the immediate postwar period…[and] for transitional justice to work, it has to be free of the taint of bias.”123 As demonstrated in the Nuremberg trials, even when the most pure

120 Schwartz, “John J. McCloy and Landsberg Cases,” 453. 121 Ibid. 122 Trials of War Criminals Before the Nuernberg Military Tribunals, 31. 123 Earl, The Nuremberg SS-Einsatzgruppen Trial, 299. Ernest 52 intentions begin a trial, human error and political maneuvering can contaminate such attempts and alter the value of the trial itself.

Although the trial did not successfully deliver suitable punishments to the defendants for the 1.2 million murders of civilians, Earl questions, “is success or failure determined solely by the longevity of a sentence or does other criteria matter, such as the scope and quality of the prosecution and the advancement of law?”124 If one measures by the latter, the Einsatzgruppen trial successfully prosecuted individuals guilty of genocide and delivered appropriate punishments for crimes against humanity for the first time in history. Yet despite these victories, the majority of these men who freely admitted complicity in mass murder walked free from prison less than a decade afterwards. Such facts cannot be ignored and do not add up to an entirely successful endeavor. As Professor Earl declared, “certainly this is a great disappointment, even a failure, but the failure was not that of the planners of the trial, nor the prosecutors or judges, but rather a political failure born out of the perceived necessities of the cold war.”125

The release of the majority of the Einsatzgruppen defendants was a circumstance attributed to an ill-informed general public, bad timing in world affairs and political expediency.

After the war ended in Germany the focus of the media dwelled on the punishment of the nation, rather than enlightening the German people about the crimes and terror committed by the Nazis.

Public backlash after years of witnessing German citizens’ imprisonment, combined with the waning solidarity of American forces after controversies surrounding several other US war crimes trials, placed the United States on the defensive concerning the furtherance of war crimes trials. The continuation of controversy resulted in a new focus by 1951, where “the U.S. effort

124 Ibid. 125 Earl, The Nuremberg SS-Einsatzgruppen Trial, 299. Ernest 53 was no longer on punishing war criminals and reeducating the German public but rather on preventing the war criminals problem from causing further criticism in both the United States and Germany of the American occupation.”126 Along with the start of the conflict between the

Soviet Union and the United States, the confidence and determination in the war crimes trial program dwindled, and to lessen the surrounding controversy it was deemed necessary to expedite the penal process. When considering the numerous foreign relations of the United

States, “war criminals weighed as less important than the military and strategic alliance [with] west Germany.”127

After the surviving Einsatzgruppen defendants exited prison, few records provide details on the defendants’ lives subsequent to prison. Due to the quiet manner in which the Mixed

Clemency and Review Board released the remaining prisoners after 1955, the paroled criminals faded into obscurity. Archive files of the released men provide sporadic information, such as in the case of defendant Steimle, who worked as a teacher until his retirement, and died in 1987 in a small German town.128 Steimle originally received the death penalty in the Einsatzgruppen trial.

Martin Sandberger, another defendant originally sentenced to death, a sentence sustained by the

Advisory Board on Clemency but eventually commuted by Commissioner McCloy, also lived a nondescript life as a legal advisor, and died in a comfortable Stuttgart retirement home March

30, 2010. These men lived without the concern of future repercussions due to the “Transition

Agreement” between the Allied nations and Germany. Although prosecutors in Stuttgart attempted to retry Sandberger again in the 1970’s, under this agreement, since “the SS colonel had already been summarily sentenced by the Americans in 1948” he could not be charged for the same crimes 23 years later, and “investigations against the defendant Sandberger [were]

126 Buscher, The U.S. War Crimes Trial Program, 3. 127 Earl, The Nuremberg SS-Einsatzgruppen Trial, 299. 128 Earl, The Nuremberg SS-Einsatzgruppen Trial, 295. Ernest 54

‘finally terminated.’”129 Little information on the other surviving defendants remain, other than scant reports in the 1950’s from parole officers monitoring defendants Blume and Seibert, two others originally given the death penalty. The two worked as a lawyer for a real estate firm and in a brokerage firm, respectively.130 Other than the reports on these men, the lives of the released war criminals remained essentially undocumented.

Additional information concerning profiled individuals from the Nazi regime only became available in the past few decades. The Nazi War Crimes Disclosure Act of 1998 and the declassification of CIA “name files,” collections of diverse information on individuals, both provide new information that had not been previously released to the public.131 Of the name files released, including that of Adolf Eichmann and Dr. , the infamous experimental doctor of Auschwitz, are files of Einsatzgruppen defendants Franz Six and Martin Sandberger.

Further analysis of the name files and other recently declassified documents might provide deeper insight into the connections of these defendants with the United States government, and whether such connections aided in their eventual sentence reductions. Sandberger had connections to both US Ambassador James Conant, eventually McCloy’s successor as High

Commissioner and “even a US senator felt called upon to write President Harry Truman,” in an attempt to lobby for the commutation of Sandberger’s death sentence.132 Yet despite vague references to these connections, it remains unknown how much these relationships might have aided in the commutations process, and what influence American officials had in lobbying for commuted sentences for select defendants.

129 Walter Mayr, “The Quiet Death of a Nazi: Martin Sandberger’s Last, and Only, Interview,” Spiegel Online: International, (April 21, 2010). http://www.spiegel.de/international/germany/0,1518,687922,00.html 130 Earl, The Nuremberg SS-Einsatzgruppen Trial, 295. 131 Richard Breitman, “Historical Analysis of 20 Name Files from CIA Records,” National Archives, http://www.archives.gov/iwg/declassified-records/rg-263-cia-records/rg-263-report.html, (accessed 3 March 2011). 132 Mayr, “The Quiet Death of a Nazi.” Ernest 55

Despite the shortcomings of the trial and the external circumstances that allowed the defendants’ release from prison, the Einsatzgruppen trial, along with all of the other post-war crimes trials conducted throughout the world, initiated a new stage in the realm of international law. Nations throughout the world still seek to create a unified body to deliver justice upon international criminals, and the Nuremberg trials acted as the springboard for such an endeavor.

Since the post-World War II era, many attempts at unified judicial bodies, including the United

Nations and an International Criminal Court, have struggled with punishing the perpetrators of in Rwanda and Bosnia. The Nuremberg trials remain the blueprint for continued attempts at international justice. Although the circumstances after the Einsatzgruppen trial hindered the effectiveness of delivering punishment to perpetrators of genocide, as Professor

Earl states “the lesson of Nuremberg is that international cooperation, sustained political will, and compliance by the perpetrating nation are the only way to carry out justice fully.”133 Perhaps the lessons learned from the Nuremberg trials, with their achievements as well as their inadequacies, may help to deter any future atrocities.

133 Earl, The Nuremberg SS-Einsatzgruppen Trial, 299. Ernest 56

Chart: A Complicated Timeline Simplified

Defendant (22)* Leading Position in Original Advisory Board McCloy’s Final Actions Einsatzgruppen Sentence- Recommendations Decision 1948 1950 Jan 1951 Jost, Heinz Einsatzgruppe A Life 10 years 10 years Paroled Jan 1952 Naumann, Erich Einsatzgruppe B Death Death Death Death June 1951 Ohlendorf, Otto Einsatzgruppe D Death Death Death Death June 1951 Biberstein, Ernst Einsatzkommando 6 Death 15 years Life Paroled Feb 1958 Blobel, Paul Sonderkommando 4a Death Death Death Death June 1951 Braune, Werner Einsatzkommando 11b Death Death Death Death June 1951 Blume, Walter Sonderkommando 7a Death 20 years 25 years ParoledMarch 1955 Fendler, Lothar D.C. Sonderkommando 4b** 10 years Time Served 8 years Released March 1951 Graf, Matthias Officer in Einsatzkommando 6 NOT GUILTY*** Haensch, Walter Sonderkommando 4b Death 15 years 15 years Released August 1951 Klingelhöfer, Vorkommando Moscow Death Death Life Paroled Dec 1956 Waldemar Nosske, Gustav Einsatzkommando 12 Life 10 years 10 years Commuted Dec 1951 Ott, Adolf Einsatzkommando 7b Death Death Life Paroled 1958 Radetzky, D.C. Sonderkommando 4a** 20 years Time Served Time Served Released Jan 1951 Waldemar von Rühl, Felix Sonderkommando 10b 10 years Time Served Time Served Released Jan 1951 Sandberger, Sonderkommando 1a Death Death Life Paroled Feb 1958 Martin Schulz, Erwin Einsatzkommando 5 20 years 10 years 15 years Paroled Jan 1954 Ernest 57

Seibert, Willy D.C. Einsatzgruppe D** Death Time Served 15 years Paroled May 1954 Six, Franz Vorkommando Moscow 20 years Time Served 10 years Released Oct 1952 Steimle, Eugen Sonderkommando 7a and 4a Death 15 years 20 years Paroled June 1954

Strauch, Eduard Einsatzkommando 2 Death **** Schubert, Heinz Officer in Einsatzgruppe D Death Time Served 10 years Commuted Dec 1951 134 * Defendants Hausmann and Rasch, although named in the original indictment, died or were determined unfit to stand trial **D.C. = deputy chief of the unit *** Defendant Graf was determined Not Guilty, because he had never held a command position in the Einsatzgruppen, and was released from prison **** Defendant Strauch died after his sentencing in 1948

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