The Pennsylvania State University The Graduate School Communication Arts and Science CONSTRUCTIONS OF GUILT AND LOGICS OF PUNISHMENT: AMERICAN NARRATIVES OF GERMAN GUILT AFTER WORLD WAR II A Thesis in Communication Arts and Sciences by Allison Morris Niebauer © 2016 Allison Morris Niebauer Submitted in Partial Fulfillment of the Requirements for the Degree of Master of Arts August 2016 The thesis of Allison Morris Niebauer was reviewed and approved* by the following: Stephen Howard Browne Professor of Communication Arts and Sciences Thesis Advisor Thomas W. Benson Edwin Erle Sparks Professor Emeritus of Rhetoric Michele Kennerly Assistant Professor of Communication Arts and Sciences John Gastil Department Head and Professor of Communication Arts and Sciences *Signatures are on file in the Graduate School iii ABSTRACT This thesis investigates how American war crime planners conceived of German guilt after World War II, and how it influenced their prescriptions for punishment. I examine three separate proposals for the punishment of German war criminals and the rhetorical, philosophical, and material ramifications of each. Using different aspects of narrative theory, I explore how each construction of guilt created a different propulsive logic for punishment. Recognizing that narratives have consequences both within and outside the story, I argue that each plan highlights a different conception of the relationship between guilt and punishment. The logics promoted by each plan have been carried into different aspects of transitional justice today and continue to demand that we examine how we construct guilt and conceive of punishment in the wake of tragedy. iv TABLE OF CONTENTS INTRODUCTION: NARRATING GUILT AND NEGOTIATING PUNISHMENT………...….1 Background and Overview..................................................................................................2 The Function of Narrative in the Construction of Guilt......................................................4 Chapter 1: Guilt and Punishment in the Morgenthau Plan..................................................8 Chapter 2: Guilt and Punishment in the Bernays Plan.......................................................10 Chapter 3: Guilt and Punishment in the Final Agreement and Charter for the Nuremberg Trial....................................................................................................................................12 Conclusion.........................................................................................................................13 Chapter 1. COLLECTIVE GUILT AND PUNISHMENT IN THE MORGENTHAU PLAN.....15 America Moves towards a Plan.........................................................................................17 Lobbying for the Plan........................................................................................................23 Morgenthau’s Hierarchy of Guilt.......................................................................................29 A Moral Failing Requires a Moral Punishment: Jaspers and Morgenthau........................42 Conclusion: The Legacy of the Morgenthau Plan.............................................................46 Chapter 2. ENSHRINGING POLITICAL DOCTRINE INTO LAW: THE CONSTRUCTION OF GERMAN GUILT IN THE BERNAYS PLAN......................................................................51 Conspiring to Construct a Conspiracy, September 15, 1944.............................................55 Backlash against the September 15, 1944 Memo..............................................................59 Clarifying the Conspiracy: the November 11, 1944 Memo...............................................62 The Final Draft: January 22, 1944.....................................................................................66 Enshrining Public Morality into Law................................................................................73 Constructing an Individual Account of German Guilt.......................................................75 Political Will as Legal Innovation: Appeasing the Audience of Lawmakers....................79 Conclusion: Implications of the Bernays Plan...................................................................86 Chapter 3. NARRATIVE UNITY AND CRIMES AGAINST PEACE…..……………..............90 Solidifying American War Crimes Policy, April-May, 1945……………………………91 Negotiating at the London Conference, June-August, 1945............................................103 The Final Agreement and Charter for the Nuremberg Trial, August, 1945....................107 Consequences of a Conspiracy to Commit Crimes Against Peace..................................115 Punishment as Deterrence................................................................................................119 Conclusion: Evaluating the Nuremberg Legacy…………………………………….….122 CONCLUSION: THE CONSEQUENCES OF OUR STORIES................................................126 Material Implications of German Guilt Narratives…………………………………………….127 v Rhetorical and Philosophical Implications of German Guilt Narratives……………………….134 Bibliography................................................................................................................................137 1 Introduction Narrating Guilt and Negotiating Punishment In the wake of unspeakable tragedy, members of society privately and publically debate where to lay blame. Individuals and groups formulate accusations of blame, and demand that the perpetrators be punished. Nowhere is this more clear than in situations of transitional justice when institutional change is followed by demands for the redress of past transgressions. Members of society grapple with the past, a process which involves a rhetorical negotiation of transgression: what exactly happened, who did it happen to, and what made it wrong? Far from a foregone conclusion, the question of who is guilty of a specific transgression, why they are guilty, and what constitutes guilt is a matter of rhetorical significance. How these questions are negotiated creates the basis for a model of transitional justice.1 Such negotiations, whether they are conducted by a few people, as in the case of trials or engaged in by a nation, as in the case of Truth and Reconciliation Commissions, are inherently rhetorical acts. They limit, persuade, propel and create action. The rationale of guilt and culpability propels arguments for punishment, just as considerations of the end goal of justice shapes and tempers it. The rhetorical process of these negotiations have material consequences for the fate of the accused. A rhetorical study of guilt and punishment within transitional justice models attempts to understand how guilt is construed and negotiated, and how it seeks to defend and prescribe punishment. This study seeks 1 By using the term “transitional justice,” I am referring to the academic study of how societies transition from periods of conflict or repressive rule to a different form of government or rule. The use of the term “model” refers to the different practices employed by society in order to address past grievances and enable future governance. Examples of these practices include judicial and non-judicial measures such as criminal prosecutions, truth commissions, reparations, official apologies, and institutional reforms. Transitional justice as a specific and separate field of inquiry has emerged within the last thirty years, though the practices it purports to examine have been in used in different forms for centuries. It is necessarily inter-disciplinary, reaching into Law, Political Science, Security Studies, Peace Studies, and Sociology, to name but a few disciplines. For more information on the study of transitional justice, see Neil J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 3 vols. (Washington D.C: United States Institute of Peace Press, 1995). 2 to understand the cultural, moral, philosophical and practical beliefs that shape projections of guilt and punishment. It analyzes the basis of transitional justice models, in the hope that it may clarify why particular models are used in specific situations and how they shape the future of the country utilizing them. Although this is a broad subject, each case study in which a country underwent a regime change after violent conflict presents a specific instance in which a transitional justice model was created and utilized. My project takes up a case study with one such transitional justice model. I examine the Nuremberg Trial system by examining the negotiations of guilt and punishment of Nazi war criminals conducted by American officials between August 1944 and October 1945. The Nuremberg Trials were not created solely by American officials. Indeed, the final trial plan was reached after extensive negotiations involving the British, French and Soviet Union governments. Recognizing the limits of excluding international deliberations, this study deliberately focuses on the negotiations that were conducted by American officials because they were largely responsible for the formation of the final trial plan. Narrowing this case study to the American negotiations over the judicial redress of past atrocities highlights competing rationales about the telos of punishment. Background and Overview Concerns over how to deal with the perpetrators of the Nazi holocaust started in the United States in 1942 and continued throughout the war. The Moscow Declaration of 1943 announced the intention of the