After Nuremberg: American Clemency for Nazi War Criminals 9780300268706

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aft e r nur emberg

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robert hutchinson

After Nuremberg amer ican c le me n c y fo r nazi war c r i mi n a ls

new haven and london

Copyright © 2022 by Robert Hutchinson. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the US Copyright Law and except by reviewers for the public press), without written permission from the publishers. Yale University Press books may be purchased in quantity for educational, business, or promotional use. For information, please e-mail [email protected] (US office) or sales@yaleup .co.uk (UK office). Set in Scala & Scala Sans type by Integrated Publishing Solutions. Printed in the United States of America. Library of Congress Control Number: 2021952533 ISBN 978-0-300-25530-0 (hardcover : alk. paper) A catalogue record for this book is available from the British Library. This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper). 10 9 8 7 6 5 4 3 2 1

c o n te n ts

List of Abbreviations  vii List of Nuremberg Military Tribunals  ix Introduction 1 1 American Justice  14 2 Voices from Landsberg  51 3 Clemency 91 4 Undoing Nuremberg  115 5 Crimes without Punishment  148 6 Between Clemency and Parole  191 7 A Short Walk to Freedom  231

Conclusion 270 Appendix: Sentencing Revisions for Nuremberg War Criminals Eligible for McCloy’s 1951 Clemency  279 List of Archival Collections  287 Notes 289 Acknowledgments 329 Index 331

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a b b re v i a tion s

BvW

CDU CIA CINCUSAREUR CSU DM DP EDC EUCOM FBIS FDP FRUS HICOG HLSP ICTR

Bund versorgungsberechtigter ehemaliger Wehrmachtsangehöriger und ihrer Hinterbliebenen (Association of Pension-Entitled Wehrmacht Personnel and Their Dependents) Christlich Demokratische Union (Christian Democratic Union) Central Intelligence Agency Commander in Chief of US Army Europe Christlich-Soziale Union in Bayern (Christian Social Union in Bavaria) deutsche mark Deutsche Partei (German Party) European Defense Community US European Command Foreign Broadcast Information Service Freie Demokratische Partei (Free Democratic Party) Foreign Relations of the United States High Commission for Occupied Germany Henry L. Shattuck Papers, Harvard Law School Library, Historical & Special Collections International Criminal Tribunal for Rwanda vii

v i i i   a b b reviati o n s

ICTY IMT JJMP NACP NATO NSC NYBP

OKW OMGUS RSHA RuSHA SA SD SPD SRP SS USHMM VdH

VdS WJC WVHA ZSL

International Criminal Tribunal for the Former Yugoslavia International Military Tribunal, Nuremberg John J. McCloy Papers, Amherst College Archives and Special Collections, Amherst College Library National Archives, College Park, Maryland North Atlantic Treaty Organization National Security Council New York Bar Project, Columbia Center for Oral History Archives, Rare Book & Manuscript Library, Columbia University in the City of New York Oberkommando der Wehrmacht (Armed Forces High Command) Office of Military Government of the United States Reichssicherheitshauptamt (Reich Security Main Office) Rasse- und Siedlungshauptamt der SS (SS Race and Settlement Main Office) Sturmabteilung (Brown Shirts) Sicherheitsdienst (Security Service) Sozialdemokratische Partei Deutschlands (Social Democratic Party of Germany) Sozialistische Reichspartei Deutschlands (Socialist Reich Party of Germany) Schutzstaffel (Protection Squads) United States Holocaust Memorial Museum Archives Verband der Heimkehrer, Kriegsgefangenen und Vermisstenangehörigen Deutschlands (Association of Returnees, Prisoners of War, and Families of Missing Persons in Germany) Verband deutscher Soldaten (League of German Soldiers) World Jewish Congress SS Wirtschafts Verwaltungshauptamt (SS Economic and Administrative Main Office) Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen (Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes)

n u re m b e rg military tribu n a ls

Case 1 Case 2 Case 3 Case 4 Case 5 Case 6 Case 7 Case 8 Case 9 Case 10 Case 11 Case 12

United States of America v. Karl Brandt et al. (Doctors Trial) United States of America v. Erhard Milch (Milch Trial) United States of America v. Josef Altstötter et al. (Judges Trial) United States of America v. Oswald Pohl et al. (WVHA/ Concentration Camp Trial) United States of America v. Friedrich Flick et al. (Flick Trial) United States of America v. Carl Krauch et al. (IG Farben Trial) United States of America v. Wilhelm List et al. (Hostages Trial) United States of America v. Ulrich Greifelt et al. (RuSHA Trial) United States of America v. Otto Ohlendorf et al. (Einsatzgruppen Trial) United States of America v. Alfried Krupp et al. (Krupp Trial) United States of America v. Ernst von Weizsäcker et al. (Ministries Trial) United States of America v. Wilhelm von Leeb et al. (High Command Trial)

ix

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Introduction

o n wed n es d ay, ja n u a r y 3 1 , 1 9 5 1 , a curious bit of revelry took place in dreary Landsberg Prison as ten war criminals condemned to death by the Nuremberg Military Tribunals learned they would live after all. According to newspaper accounts of the scene, when the inmates heard the news they “shouted with joy” and, “chattering excitedly, hastily shed the red jackets which every condemned prisoner wears.” Meanwhile, scores of other prisoners “beamed with pleasure” upon receiving word that American high commissioner for occupied Germany John J. McCloy had significantly reduced their sentences.1 Of the 142 Germans convicted of war crimes at the twelve Nuremberg Military Tribunals from December 1946 to April 1949, eighty-eight men and one woman remained incarcerated at Landsberg in January 1951. Of these eighty-nine, seventy-eight received clemency, which included commutations of ten out of fifteen death sentences. Thirty-two prisoners were eligible for immediate release, with most walking free together at nine o’clock on the morning of Saturday, February 3. As they emerged from the prison gates in single file, a small crowd of family and well-wishers greeted these fallen elites of the Nazi Empire with flowers, hugs, and kisses. Over a hundred press correspondents bore witness to the tearful reunions between spouses, siblings, and friends outside Landsberg, with British Pathé capturing the entire spectacle for newsreel audiences.2 Among the newly freed prisoners was erstwhile weapons magnate and convicted plunderer and exploiter of slave labor Alfried Krupp, ebullient that 1

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morning after serving a fraction of his twelve-year sentence and eager to regain control of millions of deutsche marks (DM) in company assets previously subject to seizure by the Western occupation authorities. An automobile caravan of Krupp executives had set out from the company’s Essen headquarters on February 1 to bring Alfried and other imprisoned members of the board of directors home in a style befitting captains of industry.3 Minutes after they emerged from prison, Alfried and his former co-defendants enjoyed a “champagne breakfast” at Landsberg’s finest hotel.4 Following the main course, Krupp held an impromptu press conference where one foreign newspaper correspondent observed, “he was greeted like a returning national hero” as “photographers and newsreel men milled about, taking his picture from all angles, for nearly half an hour.” Presented with a hefty stack of telegrams from employees celebrating his release, Krupp opined about the real mission of his firm, which was not the manufacture of weapons, but rather “to give many people work and a decent living.”5 The atmosphere was one of celebration and vindication; the Krupp corporate family had regained its long-lost patriarch, no longer a martyr to the foreign occupier’s injustice. Besides Krupp and his executives, the recipients of McCloy’s clemency who walked free that day included the former chief physician of the Rasse- und Siedlungshauptamt der SS (SS Race and Settlement Main Office [RuSHA]) who had performed hormone experiments on concentration camp inmates without their consent in hopes of “curing” homosexuality in German men; three former judges or prosecutors who had ruthlessly implemented death sentences against racial and political enemies of the Reich even as it crumbled around them; seven Schutzstaffel (Protection Squad [SS]) officials affiliated with the administration and exploitation of the murderous slave labor system in the Reich’s concentration camps; four generals with supervisory responsibility for massacres of civilian hostages in the Balkan campaigns; three additional RuSHA deputies who had overseen forcible resettlement activities in the occupied territories, including the kidnapping and “Aryanization” of foreign children; two administrative officers from Einsatzgruppen units tasked with murdering Jewish men, women, and children in Soviet territories occupied by the Wehrmacht; and three civil servants with ties to both the systematic plunder of foreign assets and the administration of the Reich’s slave labor program during the war. These figures and others still in Landsberg whose sentences McCloy also reduced had received fair trials. They had been prosecuted and convicted by American judges of activities falling under one or more of the four criminal

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Exterior view of Landsberg Prison, circa 1946. (USHMM Photo Archive 66321)

counts described in Allied Control Council Law 10 governing the occupation of Germany. These offenses included crimes against peace, war crimes, crimes against humanity, and membership in the “criminal organizations” of the Nazi Party, Gestapo, SS, Sicherheitsdienst (Security Service [SD]), Sturmabteilung (Brown Shirts [SA]), or the Reich Cabinet.6 Although the prisoners, their attorneys, and their supporters frequently complained during and after the trials that their imprisonment represented an illegal American application of ex post facto law, American and Allied lawyers tasked with defining the legal rationale behind the tribunals had made every effort to ground the Nuremberg proceedings in preexisting concepts of international law and standard criminal justice procedures.7 Under Hitler’s rule, plunder, kidnapping, hostage-taking, forced labor, enslavement, murder, and planning aggressive warfare against neighboring states were institutionalized as daily functions of the German state. For nearly all the prisoners convicted at Nuremberg, the proof that they had participated in these undertakings was clear and unimpeachable; the tribunals had acquitted some three dozen defendants for lack of evidence. As recently as 1949, General Lucius D. Clay, military governor of the US zone of occupied Germany, had reviewed and confirmed the validity of nearly all the sentences. The

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US Supreme Court had rejected every single one of the prisoners’ appeals. Why, then, did High Commissioner John J. McCloy show these individuals such mercy? Moreover, why did his successors continue to show leniency up through 1958? This book is about the fleeting nature of the Nuremberg war criminal incarceration program. It is bounded by two principal questions: what was the rationale behind the widespread American dispensations of clemency and parole from 1951 to 1958, and what was the significance of these acts for the greater political, legal, and moral legacy of the Nuremberg Military Tribunals in West Germany and the United States? The clemency of 1951 was, after all, the first in a sequence of events that by 1958 resulted in a curious dichotomy where only the harshest and most lenient sentences were served in their entirety. Of the 142 war criminals convicted at the twelve Nuremberg trials, American successors to the 1945–1946 trial of twenty-one top Nazi leaders before the International Military Tribunal (IMT), only forty-five served their sentences in full: seven Nazi physicians from the first Nuremberg tribunal, who were executed in June 1948, four mobile killing unit commanders and head of the SS concentration camp empire Oswald Pohl, who were executed in June 1951, and thirty-three prisoners whose sentences amounted to five years or less.8 Meanwhile, ninety-seven of the 142 war criminals in American custody, many of them major offenders, regained their freedom years, sometimes decades, ahead of schedule. In placing at the center of my analysis the previously neglected records of clemency and parole boards established by the High Commission for Occupied Germany (HICOG), newly declassified parole files held by the Department of State, and McCloy’s and his successors’ official and private correspondence, this book treats the end of the Nuremberg trials in 1949 as the beginning of a longer period of public and private relitigation of their cultural, historical, and legal meanings. Nuremberg was not an event, but a process subject to constant attack, reinvention, and contestation by American and West German elites long after the final gavel came down in April 1949.9 Much scholarship has examined the foreign policy pressures of reintegrating West Germany into the international order as an American ally during the Cold War. Also well studied is the reluctance of West German institutions to fully deal with the Nazi past given hostile German public opinion, as many groups considered the imprisonment of Nazi officials a manifestation of illegitimate “victor’s justice.”10 Other works have attributed the shift in US policy toward German war criminals from prosecution and confinement to amnesty as primarily driven

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by the political necessities of German rearmament: a sacrifice that brought West Germany into the American alliance against communism while tempering the rise of German nationalism during the later phases of the occupation.11 In this view, the series of American decisions from 1951 to 1958 that freed the Nuremberg war criminals resulted from American policymakers’ understanding of the war criminals issue as a political problem to resolve as quickly and quietly as possible.12 Foremost among Nuremberg’s detractors were German veterans’ associations and a conglomeration of both conservative and pacifist clerics crusading against the “barbaric” death sentences handed down by the tribunals and perceived American pronouncements on the “collective guilt” of the German people. Such groups criticized the Nuremberg settlement as an exercise in hypocritical and corrupt “victor’s justice” that reveled in the amplification of Germany’s crimes but was silent on the Allies’ wartime moral and legal transgressions. These activists contextualized the Nuremberg tribunals with a broader narrative of the war that privileged German victimhood, the logical successor to Anglo-American firebombing campaigns, the Soviet pillage of Eastern Germany, and the forcible expulsion (with British and American approval) of between twelve and fourteen million ethnic Germans in areas under Red Army control.13 West German amnesty advocates rarely failed to append the descriptive modifier “so-called” to their public pronouncements on war criminals, or placed “war criminals” in quotation marks to denote the concept’s illegitimacy. They regarded the incarceration and conviction of former Wehrmacht officers and soldiers at Nuremberg, but also in other postwar American, French, and British proceedings, as a stain on the honor of the German military. Western officials repeatedly dismissed this last accusation as manifestly absurd, given that lawyers, doctors, and executives had also been imprisoned and no one seemed to seriously believe that their collective professional honor was impugned. Nevertheless, most Germans had not been doctors or lawyers during the war, but millions of Germans had served in the Wehrmacht, and the systematic Allied prosecution and incarceration of thousands of line soldiers and officers for wartime atrocities at Nuremberg and in the US Army’s separate trial program based at Dachau hit uncomfortably close to home. Veterans of the Second World War would form the skeleton of any West German military contribution to the European anti-communist bloc because there were simply not enough genuine resisters of the Nazi regime left alive to fill the ranks. Many of these past and future military officers and sympathetic

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Bundestag delegates had a tendency to make ultimatums to the effect that until the honor of the German Army was restored, any efforts at West German remilitarization were dead on arrival.14 In their opposition to the continued Allied incarceration of war criminals, these groups were also joined by numerous religious figures and associations across the political spectrum that viewed the death penalties imposed on individual prisoners as both morally repugnant and a usurpation of West German sovereignty, since the West German Constitution (Basic Law) forbade capital punishment.15 Yet despite the broader context of the Cold War and the vociferous political debates in West Germany over the war criminals issue, McCloy and his successors did not frame or justify their review of the Nuremberg sentences in the language of Cold War realpolitik or as a reaction to German domestic pressure. Responding to congressional inquiries about the supposed irregularities in the army’s war crimes trial program that roiled Washington in late 1948 and early 1949, in the summer of 1950 McCloy convened an Advisory Board on Clemency for German War Criminals to scrutinize every sentence not already set to expire in early 1951 and recommend appropriate revisions. Both McCloy and his Advisory Board, viewing themselves as standing above the ever-shifting whims of German and American public opinion on these matters, articulated a vision of impartial American justice as inspiring and legitimizing their actions.16 Despite the well-documented lobbying from West German veterans’ and church associations, politicians, and the media, American policymakers only remarked on these pressures insomuch as they found critics’ arguments about procedural or factual errors at Nuremberg compelling. From 1949 to 1958 McCloy and his successors were almost universally unmoved by the wider claims of German and American amnesty advocates that Nuremberg was an exercise in ascribing collective guilt to either the entire German nation or particular institutions that required immediate repudiation in order to purchase West Germany’s membership in anti-Soviet alliances. The decision by a very small number of powerful American officials in Germany to free the war criminals, then, did not represent the prioritization of politics over law at a time of shifting political realities so much as a consensus in American policymaking circles that the Nuremberg tribunals had come to unjust conclusions that required correction. The Nuremberg tribunals, after all, were unprecedented. Telford Taylor, chief prosecutor of the Nuremberg successor trials, and his staff deliberately tasked the twelve Nuremberg trials with fulfilling a broader investigative and pedagogical purpose in line with other much-resented American efforts to

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“re-educate” the German people, redeeming them politically and morally as American-style democrats.17 Although the trials were primarily concerned with determining the innocence or guilt of individual defendants for a slate of crimes newly enshrined in international law, they would also serve as a historical inquiry into the structure of the Nazi dictatorship. Taylor argued that the crimes of Nazism were not the responsibility of a rogues’ gallery of madmen, but were reflective of a broader moral and ethical rot in German culture and political institutions. Multitudes of individual actors shared responsibility for the Third Reich’s divergence from Western civilization. Although there were thousands of postwar trials conducted by the Allies after 1945, Nuremberg was designed as a forensic autopsy of the Nazi dictatorship that would unequivocally demonstrate to the German people the breadth and depth of individual and institutional complicity in Nazi atrocities as represented by war industries, the civil service, the military, the medical and legal professions, the concen­ tration camp system, and the SS organizations tasked with racially reordering Europe through sterilization and murder. By demonstrating the guilt of in­ dividual defendants with overwhelming documentary evidence from the regime’s own archives, Taylor envisioned the courts at Nuremberg as classrooms from which the German people would emerge redeemed and ready to participate in democratic politics. Taylor’s ambitious undertaking would serve the ends of justice while quashing any German political or cultural tendencies to whitewash the Third Reich, thoroughly exorcising the ghosts of Nazism prior to the democratic reconstruction of the German nation.18 While the US Army’s separate war crimes and concentration camp trials handled a broad swath of offenders and crimes, including individual acts of brutality perpetrated by line soldiers or camp guards, the twelve Nuremberg tribunals dealt nearly exclusively with the upper strata of the Nazi dictatorship. The Nuremberg prisoners were almost universally well-educated middle- or upper-middle-class professionals who would likely not have committed their heinous crimes in the absence of the unique political circumstances of the Third Reich. If, in the United States, there was a growing consensus that the purpose of incarceration was to protect society while rehabilitating the individual, such norms were ill-suited to the evaluation of a class of offenders who already presented themselves as respectable bourgeois family men unlikely to reoffend. From 1945 to 1951, the narratives of German victimhood and German suffering, at the hands of either the Nazi dictatorship, the Anglo-American “terror-­bombing” campaigns, or the Soviet occupation, percolated up from the

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German public sphere into the American occupation. Popular currency on the nationalist and former Nazi right held that there were few, if any, actual war criminals in Landsberg because, in performing their duties (no matter how unpleasant), these Germans had fulfilled the duly recognized legal directives of a Führer whose commands superseded international law. Such arguments were first made at the tribunals by German defense attorneys, then repeated in the press, then in appeals, then in the clemency petitions, and finally they were deployed by American officials as justification for their clemency and parole recommendations. Although the tribunal judgments had specifically affirmed that permissive national laws did not supersede international norms of conduct and that it was not only just but necessary to sanction individuals for their part in violating the commonly accepted laws and practices of war, these powerful statements were drowned out by a wave of hostile German commentary and American credulity.19 The continued denials, obfuscations, and self-justifications by the Nuremberg war criminals and their supporters mirrored the American clemency and parole boards’ and high commissioners’ tendencies to question the factual and legal findings of the tribunals. The ­interactions between the HICOG clemency and parole boards, the American high commissioners and diplomats, and the Landsberg prisoners exemplify the contested nature of responsibility for the Nazi past. The convicted Germans did all they could to minimize their own responsibilities for the crimes of Nazism, and the American officials tasked with reevaluating their cases served as unlikely allies in their pursuit of justice. But justice for whom? In the constellation of forces that came together to form what one disillusioned former Nuremberg prosecutor lamented as “a new category of international crimes—crimes without punishment,” the rationale may have seemed overtly political. But below the surface churned intense debates among American officials stemming from the intellectual and institutional history of the US prison system.20 What was justice, and how best to serve it? Should war criminals be afforded the same rights to appeal their sentences and access to the mechanisms of rehabilitation as common criminals, or was the Nuremberg legacy purely punitive, as so many West German critics of the trials argued? The emptying of Landsberg Prison was inescapably tied to the resolution of these debates, wherein a majority of HICOG officials eventually concluded that German war criminals were criminals first and war criminals second, entitled to all the remedies American laws offered to better their conditions and reduce their sentences.21 Since any subsequent acts of clemency or parole

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were firmly grounded in the language of justice, the overarching conclusion, reproduced both in internal HICOG correspondence and by West German newspapers and politicians, was that the original sentences and verdicts were unjust. McCloy and his successors professed their desire to uphold the inviolability of the legal principles undergirding the Nuremberg tribunals, but offered an already hostile West German public a repudiation of key aspects of the Nuremberg settlement instead. In this respect, the much vaunted philosophical and legal journey “from Nuremberg to The Hague” celebrated by scholars of international law was subject to international public perceptions of the legitimacy of the tribunals, which in turn fluctuated along with American war crimes policy.22 If the pronouncements of Telford Taylor at Nuremberg, IMT lead prosecutor Robert H. Jackson before him, and the subsequent United Nations Commission on Human Rights offered a resounding message to the world that there were moral and legal codes transcending national boundaries and cultures and that certain acts in war were never legal or justifiable, then what message did John McCloy, his successor James B. Conant, and their staffs send? Their justifications for rewriting the history of the Nuremberg trials are also important texts in the intellectual and legal history of postwar Europe— wittingly or not, they were arguments for limiting or revising the principles established at Nuremberg. The US government’s repeated extension of clemencies, amnesties, and paroles from 1951 to 1958 was not a single impulsive act brought on by the need to appease a reluctant ally, but one carefully thought through by American politicians, lawyers, and military officers who possessed unilateral authority over the fates of the imprisoned war criminals. This book thus seeks to explain a series of American policy decisions that produced a self-­ perpetuating bureaucracy of clemency and parole which “rehabilitated” unrepentant abettors and perpetrators of theft, slavery, and murder while lending salience to the most reactionary elements in West German political discourse.

on co ntext Regardless of the symbolic import of the war criminals issue for a vocal minority of West German chancellor Konrad Adenauer’s constituents or American Cold Warriors, both the internal and external pressures driving HICOG to continually revise the Nuremberg sentences often operated on a separate political plane from the Cold War. The policymakers involved in the decisions for clemency were generally lawyers, not foreign policy hands, and whatever their

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ideological antipathy to communism, their operating procedures, investigations, and conclusions were firmly grounded in American jurisprudence. Nevertheless, the Cold War’s shadow loomed over American occupation policy. In Europe, less than five years after Winston Churchill’s famous 1946 warning of the descent of a metaphorical “iron curtain” dividing East and West, the communist and capitalist powers on the Continent were indeed separated by barbed wire and armed border guards. Around the world, communism was on the march. From April 1949 on, Mao Zedong’s communist forces overran the remnants of Chiang Kai-shek’s nationalist armies, pushing ever southward in a campaign that culminated in Mao’s October declaration that he ruled a unified, communist, People’s Republic of China. Along the way, in June 1949, Mao described in detail in his “lean to one side” speech that communist China would always enjoy a special relationship with the Soviet Union, forming a “united front” against the counterrevolutionaries of the world, namely the United States.23 That August, the USSR detonated its first nuclear weapon. In October, the Soviet Union buried the idea of near-term German reunification with its declaration of support for a sovereign East German communist state. A mere two months later North Korean forces under Kim Il-sung, supported by Mao and with the encouragement of Stalin, invaded South Korea, seeking a unification of the peninsula under communist governance, triggering an international crisis that ultimately resulted in an American-led United Nations military intervention there. As the Korean War unfolded in 1950, the mood in the West was grim, marked by repeated fears of nuclear escalation and, with approximately 80 percent of American military forces deployed in Korea, an opportunistic Soviet invasion of Western Europe that, if it occurred, would likely advance to the English Channel with little opposition.24 Nor did the situation improve appreciably after the long-sought-­ after 1953 armistice in Korea and the death of Stalin that same year. As both powers upgraded their nuclear arsenals, the Soviet Union violently cracked down on all forms of dissent in East Germany, Poland, and Hungary, and the bipolar ideological divisions between the two powers continued to risk the internationalization of internal political conflicts in Indochina and the Middle East.25 The deterioration of American-Soviet relations from the Yalta Conference in 1945 to the outbreak of the Korean War in 1950 exerted pressure in ways broad and specific throughout the Nuremberg successor trials, including on such mundane matters as operating budgets and the number of trials allocated to the Office of the Chief of Counsel for War Crimes.26 In his final report

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to Secretary of the Army Gordon Gray on the Nuremberg trials in August 1949, Telford Taylor noted that “it was apparent . . . that the sentences became progressively lighter as time went on,” identifying “waning interest on the part of the general public and the shift in the focus of public attention resulting from international events and circumstances” as contributing factors.27 One judge at the 1947–1948 High Command Trial of former Wehrmacht officers informed his sons during the proceedings that, given his hatred of the Soviets, the crimes of the Germans no longer seemed especially remarkable to him. Other American personnel involved in the later trials, including the judges themselves, were so concerned about a Red Army invasion after the Soviet coup in Czechoslovakia and the Berlin Crisis of 1948 that they sent their families back to the United States and objected to the continued punishment of the Germans when the Soviets appeared a greater threat.28 A key impetus of HICOG’s concern with revisiting the case verdicts to ensure that justice had been done at Nuremberg was the obsession of certain isolationist and fervently anti-communist American military officers, congressmen, and senators, including a young Sen. Joseph McCarthy (R-WI), who wielded lurid and often anti-Semitic tales of rampant pre-trial physical and mental abuse of German detainees by the US Army in its own trial program as proof of the fundamental illegitimacy of the Nuremberg tribunals as well. These same individuals argued publicly and privately that the continued imprisonment of former Nazis pleased no important Cold War constituency. With the triumph of communism in Eastern Europe and China and a war in Korea, the United States should not expend its precious political capital ensuring that a handful of geriatric Wehrmacht officers died in prison for crimes that any American patriot might have found themselves committing under the same circumstances. Instead, McCloy and HICOG should focus on convincing the West Germans to abandon their newly expressed pacifism and rearm as members of a new, American-led, anti-Soviet alliance. In this view, the continued US commitment to the punishment of war criminals as a prerequisite for German democratization was counterproductive not only because it inflamed West German public opinion, but also because it threatened American national security.29 Yet explaining the shift in American policy from the trial and incarceration of war criminals to facilitating their clemency and parole as primarily a byproduct of Cold War foreign policy concerns is inconsistent with the self-­ justifications offered by those involved in these decisions.30 From the 1950s through the 1980s McCloy repeatedly took offense at any suggestion that Cold

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War politics influenced his actions, claiming his decisions “were as free from any influence of political expediency as was the prosecution of these cases in the first place,” complaining that any suggestion to the contrary “really smarts me.”31 The policy impetus for the reexamination of the Nuremberg sentences chiefly originated from a combination of domestic pressures. Congressional inquiries into sensationalized reports of US Army abuse, torture, and coercion resulted in calls for a full review of the Nuremberg tribunals. Within HICOG, impulses to ensure that “American justice” stood as a shining example to the postwar world shaped both the desire to confirm the validity of sentences and the belief that a fundamental principle of “American justice” was the right to an appeal. Once HICOG established these institutional mechanisms to channel petitions for redress from the Landsberg prisoners into a new bureaucracy modeled on the US parole system, acts of clemency and parole became not only regularized but mutually reinforcing, as each grant of mercy was used as a cudgel by both the prisoners and their supporters to demand further concessions. Nuremberg clemency and parole policies were not an elaborate justification for Cold War cynicism, but represented a parallel plane of Cold War activism that prized “fairness” as a quintessentially American trait that required repeated demonstration through the release of German war criminals per the legal merits of each case. This obsession with justice, narrowly defined, resulted in favorable outcomes for the German war criminals far beyond what ordinary Americans navigating a similar system in the United States could expect.32 Ancillary to the Cold War explanation for American leniency toward the Landsberg prisoners is the interpretation that American policymakers succumbed to the pressure of Konrad Adenauer and other nationalist West German politicians who used their prospective membership in the North Atlantic Treaty Organization (NATO) and other anti-Soviet institutions to extract American concessions.33 Yet HICOG officials were more concerned about ensuring just outcomes than in placating the mercurial Adenauer. While West Germany possessed national borders and a constitution in 1949, it was not yet a sovereign state, nor would it be until the British, French, and American occupation authorities relinquished the last of their governing powers in 1955. The Adenauer regime could delay the process of Vergangenheitsbewältigung (coming to terms with the past) by accepting a certain degree of continuity in personnel and ideas from the Nazi regime into the governing institutions of the Federal Republic as inevitable, if regrettable, compromises necessary to construct a

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new democratic regime from the rubble of its totalitarian predecessor.34 West German politicians and newspaper editors could also hammer the Allies on the war criminals issue to energize their constituents or subscribers while signaling their political independence from the occupation. But the Nuremberg war criminals were confined to Landsberg Prison as wards of the US State Department. They had been tried by American prosecutors before American judges, had directed their appeals to the US government, and could only be pardoned or paroled with the consent of the US high commissioner for occupied Germany or, after 1955, the US ambassador. The early release of the Landsberg prisoners touched off international debates on the validity and strength of newly established norms in international law and served as a barometer of the willingness of the West German state to come to terms with its Nazi past. But it was also fundamentally an American project, subject to American political and legal concerns distinct from those of their German subjects. Whatever the divergent motivations of West German and American participants in the process, the undermining of the Nuremberg settlement and the sublimation of the Nazi past that it entailed was a cooperative effort, but one grounded in American policy.

c h a p te r o n e

American Justice

No principle deserves to be called such unless men are willing to stake their consciences on its enforcement. That is the way law comes into being, and that is what was done at Nuernberg. Brigadier General Telford Taylor, Chief of Counsel for War Crimes, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, August 15, 1949

During the war, General Hermann Reinecke headed the Allgemeines Wehrmachtsamt (general armed forces office) in the Oberkommando der Wehrmacht (German Armed Forces High Command [OKW]). In that capacity, he was responsible for personnel and training matters in addition to the administration of the Wehrmacht’s prisoner of war camps. Banal title aside, Reinecke’s position placed him at the center of the Nazi regime’s continental project of mass murder. As a firm believer in the legitimacy and necessity of Hitler’s war against Bolshevism, Reinecke implemented policies ensuring that “politically undesirable” prisoners (bureaucratese for communists and Jews) captured in the great advances on the Eastern Front in 1941 were shot out of hand or turned over to roving SS and SD murder squads. The remaining Soviet prisoners, again on Reinecke’s orders, endured brutal treatment from their German warders, force-marched or transported in open railway cars for hundreds of miles as temperatures plummeted with the onset of winter. When those who did not perish en route finally arrived at their makeshift camps, there was no food, reflecting a deliberate policy of extermination through starvation and neglect. Of the approximately five million Red Army prisoners captured by the Wehrmacht during the war, more than three million perished.1 For his role in this and other atrocities, Reinecke was tried and convicted of war crimes at the last Nuremberg trial, the High Command case, convened from December 1947 to October 1948. Reinecke, much like his co-defendants, expressed no regret or remorse, viewing his punishment by the Americans as 14

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“fate,” given his high rank in Hitler’s Army.2 Noting the “colossal” nature of the crimes committed against Soviet prisoners of war, citing repeated orders from Reinecke establishing his authority over the murderous POW policies in the East, and referring to Reinecke as a “supine instrument of Hitler’s will,” the tribunal sentenced him to a life term on October 27, 1948. On March 10, 1949, General Lucius D. Clay, military governor of the US zone of occupied Germany, confirmed the validity of Reinecke’s life sentence. Two months later, on May 2, the US Supreme Court denied Reinecke’s petition for a writ of habeas corpus, effectively precluding any further appeals of his sentence.3 Just over a year later, however, Reinecke’s case was reviewed again by an advisory board organized by the new US high commissioner of Germany, John J. McCloy. It recommended reducing Reinecke’s sentence to twenty years. Later clemency panels recommended further cuts still. Reinecke ultimately left Landsberg Prison in October 1954, six years after his conviction. How had this happened? What changed? One unsatisfying explanation is that the American willingness to free the Nuremberg prisoners was the result of the worsening Cold War. While Stalin lifted his blockade of Berlin on May 12, 1949, in the face of the American refusal to abandon the Western half of the city, the advent of Soviet nuclear weapons and the “loss” of China to communism prompted the Truman administration to reassess its foreign policy posture. In April 1950, representatives from the Departments of State and Defense drafted NSC-68, a National Security Council policy paper that advocated militarizing American Cold War policy and called for both massive increases in defense appropriations and the active rollback of communist gains around the world. The paper thus repudiated the strategy of political and economic containment (and postwar budgetary retrenchment) that had guided American foreign policy toward the Soviet Union from 1947 to 1949.4 Facing the ascendancy of global communism, the governments of the United States, Britain, and France sought (with varying degrees of enthusiasm, the British being the most enthusiastic) to shackle the economic and demographic power of a rearmed West Germany to the anti-­ Soviet cause, setting it on a path toward membership in NATO by 1955.5 In these circumstances, the confinement of German war criminals incensed powerful West German domestic constituencies, including a significant number of unrepentant Nazis, politically radicalized Wehrmacht veterans’ associations, and leagues of newly arrived and generally impoverished expellees from the former Eastern territories. West German chancellor Konrad Adenauer could not safely ignore these groups, whose voices were consistently amplified

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beyond their actual numbers by the media and supported by prominent American politicians who viewed countering the threat from world communism as more important than keeping a few hundred former Nazis in prison. Cold War power politics begat clemency. But the sources reveal a far more complicated story. The fundamental questions relating to the war criminals’ eventual release were legal questions, with a history that predated the dire international picture of 1949–1950 and transcended West German domestic politics. The backlog of sentence appeals from the Nuremberg war criminals, along with congressional hysteria over pernicious rumors that the US Army had tortured German prisoners to extract confessions or otherwise denied the Landsberg inmates due process, prompted McCloy to reassess the sentences of the Nuremberg war criminals in 1950. McCloy’s overarching policy toward the Landsberg prisoners turned on the legal question of whether they were governed by the norms of the American penal system or existed in a category unto themselves. Were the Landsberg prisoners entitled to parole or similar reductions in their sentences for good behavior? Were they, particularly the prisoners who wore the red jackets of the condemned, entitled to formal appellate proceedings beyond their individual petitions to the US Supreme Court? If the Supreme Court, by its own repeated admission, lacked jurisdiction over German nationals tried by American military courts, by what mechanism could the prisoners contest their sentences or present new evidence? In answering these questions, American officials’ instinct to graft American criminal appeal procedures retroactively onto the German occupation left them in unprecedented legal territory.

clemency deferred : o mg u s reco n s i d e r s and reaffi rms the nuremb erg v e r d i c t s Even as the subsequent Nuremberg tribunals were still underway, multiple legal, administrative, and public relations pressures came together to lay the foundation for a later reconsideration of the verdicts and sentences. The twelve Nuremberg tribunals—successors to the four-power International Military Tribunal (IMT)—unfolded sequentially, beginning in December 1946 and concluding in April 1949. These trials operated under the same laws and procedures as the 1945–1946 IMT, which possessed no mechanism or process for appeal. As the verdicts trickled in, American policymakers in occupied Germany faced a contradiction: they wished to tout the “fairness” of American due

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process but were unable administratively to grant the war criminals the right to appeal their sentences. In the absence of an appellate process, defense counsel challenged the verdicts in US federal courts through writs of habeas corpus and objections on jurisdictional and evidentiary grounds as a means of contesting the validity of the trial program rather than individual verdicts. Failing this, they appealed directly to Truman and Clay for clemency. This was part of a broader coordinated strategy to delegitimize the tribunals in German and American public opinion, an effort spearheaded by nationalist journalists, clerics, and politicians in the Federal Republic. From the collapse of the Nazi regime in May 1945, such groups had conspired to destroy documents and block or falsify depositions and testimony before the IMT and Nuremberg tribunals. They decried American denazification policies as an unjust and immoral collective punishment of the German people, minimizing Germany’s wartime atrocities and blaming them on the SS or other party officials while cultivating the myth of a “clean” Wehrmacht.6 In this respect, as the lawyers involved well understood, the actual outcome of the appeals was less important than the media attention they garnered. Amnesty advocates hoped that in turning the West German people against the trial program and in appealing to concern about the worsening Cold War, they could force American and West German politicians to soften their stances on the punishment of German war criminals.7 The fate of the Landsberg prisoners convicted at Nuremberg was also irrevocably linked, both in the public imagination and administratively, to those convicted by the 472 US Army–administered “Dachau trials” that prosecuted 1,676 lower-ranking soldiers and concentration camp personnel from 1945 to 1947 for violations of the laws of war. Like Taylor’s Nuremberg tribunals, the Dachau trials were designed to inject knowledge of Nazi barbarity into the public sphere. Yet the Dachau trials differed substantially in procedure, since they took place not under American occupation statutes but under the authority of the judge advocate general of US forces in Europe. In short, rather than operating under the IMT-based statutes of the Nuremberg trials, in the Dachau cases the US Army adapted its own court martial system (no jury or civilian personnel, US Army officers appointed to advocate on behalf of the accused, looser rules of evidence, and lower burden of proof for conviction) to the adjudication of specific atrocities against Allied nationals.8 From 1947 to 1948, scandalous accusations before Congress of injustice and abuse at the Dachau trials resulted in directives to HICOG and USAREUR to review all the sen-

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tences of German war criminals to root out any procedural irregularities or improprieties. This period coincided with a marked deterioration in German public opinion on the IMT and Nuremberg tribunals. In October 1946, some 78 percent of the German population in the American zone viewed the trials as fair, whereas in surveys conducted in October and November of 1950, only 38 percent believed this to be the case.9 This change reflected the tenacity of the public relations campaign waged against the trials by prominent West German politicians and reactionary movements, which claimed that the post-IMT proceedings unjustly targeted ordinary soldiers and civil servants outside of the extreme hierarchy of Nazi criminality. Other survey data presented a more disturbing picture, with the share of those polled agreeing that Nazism “was a good idea badly carried out” standing at 55 percent in May 1947 and increasing over the next two years despite the pedagogical efforts of Taylor and his team of prosecutors to illustrate the innate evils of Nazi governance. Most of these respondents reported that they “felt more traumatized” by the Allied occupation than by the Nazi dictatorship.10 On March 17, 1947, with the first three subsequent Nuremberg trials still unfolding, Clay succeeded army chief of staff Dwight D. Eisenhower as the head of the Office of Military Government of the United States (OMGUS) in the American zone of occupation. Like Eisenhower, Clay had been an early supporter of both the four-power IMT and the separate Allied efforts to bring German war criminals to justice in their own occupation zones. By late 1947, Clay was also an essential figure in convincing skeptical officials such as new secretary of war Kenneth Claiborne Royall that in spite of shrinking budgets and eroding public interest it was essential to carry out the remaining Nuremberg trials.11 Like many of his contemporaries, Clay shared the view that Germany (or at least the Western half ) should regain its sovereignty as rapidly as possible, both to relieve the United States of the burdensome economic costs of occupation and to serve as a bulwark against further communist advances in Europe. However, Clay did not see the continued prosecution and punishment of German war criminals as conflicting with these objectives.12 To the contrary, in January 1948 Clay cabled Washington that he was committed to completing the remaining Nuremberg trials since they “were not causing any difficulty or agitation pro or con here,” and any American abandonment of the remaining cases “would play into hands of Communists.”13 Nevertheless, by May 1948, with the Hostages, RuSHA, and Einsatzgrup-

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General Lucius C. Clay (seated center-frame), head of the Office of Military Government, United States (OMGUS), and General Telford Taylor (seated on Clay’s right), head of the Office of the Chief of Counsel for War Crimes (OCCWC), observe the Case 4 tribunal (WVHA/ Concentration Camp Trial) on April 18, 1947. (NACP 238-OMT-IV-M-1)

pen tribunals recently completed; the Krupp, Ministries, and High Command Trials ongoing; and the US Army’s Dachau trials finished, Clay saw a bureaucratic and public relations nightmare on the horizon. With no designated appellate body to contest the convictions, hundreds of prisoners (particularly those condemned to death for their crimes) pugnaciously availed themselves of the American judicial system, filing repeated writs of habeas corpus and appeals to federal district courts and the US Supreme Court on all matter of procedural, evidentiary, and legal matters. The first Nuremberg prisoner convicted, Erhard Milch, filed his appeal immediately after the conclusion of his trial in April 1947. His lawyers argued that Milch’s status remained that of a prisoner of war under the Geneva Conventions, and so he was not subject to the jurisdiction of American courts, particularly since his tribunal was presided over by civilian judges rather than military officers of equal rank as the

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conventions specified—his sentence was thus invalid.14 A deluge of other appeals soon followed as, in the absence of an appellate system, defense attorneys sought a foothold in the federal courts. The Supreme Court chose not to rule on this and other issues raised by the verdicts of either the IMTs in Germany and Japan or the separate trials conducted by the US Army in both countries, but the justices were closely divided on the question. A regular 4–4 split posed justices who wished to hear the appeals against those who argued that the court had no jurisdiction to do so, with Chief Justice Robert Jackson, who had served as lead American prosecutor at the IMT, abstaining each time.15 While the Supreme Court weighed whether to step in, lower courts stayed scores of death sentences pending the outcomes of these appeals. Clay thus feared that if the Supreme Court rejected the pending appeals wholesale, he would be “confronted” with the task of implementing a “mass execution” of German prisoners. Alarmed, Clay cabled Secretary of the Army Royall and Undersecretary William Henry Draper Jr. (whose offices had, in September 1947, replaced the offices of secretary of war and undersecretary of war, respectively) on May 24, 1948, noting that he would “find it difficult to adjust my own mental processes to what looks to be almost a mass execution of more than five hundred persons.” Although Clay was convinced that the prisoners in question deserved to die for their crimes, he was concerned about the optics of conducting so many executions at once, fearing that the United States would appear cruel or barbaric. “I am somewhat inclined,” Clay wrote, “to consider the commutation of these death sentences to life imprisonment in substantial measure,” particularly given that three or more years had passed since the criminal acts. Realizing that clemency power “rests entirely in my hands” and claiming he had no intention of “trying to shirk the responsibility of decision,” Clay nevertheless sought private guidance from Draper and Royall on how best to proceed.16 Draper responded the following day, suggesting, with Clay’s approval, the appointment of a board of “three or five eminent jurists” to examine the cases and make recommendations, an idea to which Clay responded enthusiastically. Designating the problem “urgent,” and deeming a clemency board “badly needed,” Clay called for the “immediate selection” of individuals to help him.17 It turned out, however, that this entire exchange was prompted by a clerical error, which Clay sheepishly acknowledged on May 31. A typo had given Clay the impression that 550 death sentences were awaiting execution; the real number was 150. Given the smaller number, Clay was confident he could handle any sentence-review process on his own, although he was still open to the

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idea of a clemency board reviewing the case files if Draper thought it advisable.18 This exchange was lent additional importance given the soon-to-erupt controversy in the United States surrounding the legitimacy of the US Army’s Dachau trials program. The key trial at issue was the Malmedy Massacre trial, which in 1946 sentenced dozens of defendants from the Waffen-SS to death or life in prison for their role in the murder of hundreds of American prisoners of war and Belgian civilians during the Battle of the Bulge. The head of the German defense team, American Col. Willis M. Everett, a rabid anti-Semite, pressed American officials for a retrial of the Malmedy case throughout 1947 and early 1948 because he viewed the trial’s outcome as “Jewish vengeance” against his clients. Everett alleged that Jewish interrogators had tortured German prisoners to extract pre-trial confessions, and that this was part of a broader pattern of ghastly army abuse that included regular beatings, denial of food and clothing as punishment, mock executions, and extortion. Internal army reviews of the trial procedures had dismissed Everett’s wild assertions, and so, looking to inflame American public opinion and force a reevaluation of the Malmedy Massacre trial, Everett went public in May 1948, submitting a petition to the US Supreme Court seeking nullification of the verdicts.19 While the Supreme Court denied Everett’s motion in the usual 4–4 split, his allegations gained the attention of prominent media outlets and sympathetic representatives and senators in Congress. These included the isolationist Chicago Daily Tribune and amnesty advocates such as the single-mindedly anti-communist senators Joseph McCarthy (R-WI), who also answered to a large ethnic German constituency, and William Langer (R-SD), who viewed the American trials at Nuremberg as a communist-influenced plot to expropriate bankers and industrialists. The “decartelization” component of US occupation policy, in addition to Telford Taylor’s assumption that German industrialists and financiers bore outsize responsibility for Germany’s aggression under Hitler, encouraged staunch anti–New Dealers who believed that excessive regulation of business under Presidents Roosevelt and Truman was tantamount to socialism to take up the anti-Nuremberg cause.20 These cleavages were apparent even in the individual trials. The Hostages Trial of July 1947–February 1948, for example, pitted a group of conservative Midwestern state court judges presiding over the tribunal against a young prosecution team of committed New Dealers who were disappointed with the court’s apparent skepticism that German atrocities against irregular partisans were beyond the pale of acceptable wartime conduct. Following the verdict, presiding judge Harry Wennerstrum

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penned a scathing article for the Chicago Daily Tribune denouncing the trial as an illegitimate exercise in “victor’s justice,” regretting that he had ever gone to Germany to participate. Upon reading the editorial, an apoplectic Telford Taylor penned a response for the New York Times deriding Wennerstrum’s “wanton, reckless nonsense” and “unreasoning bias . . . on behalf of the defendants,” and charging Wennerstrum with “grave misconduct” for not recusing himself.21 Despite Taylor’s repeated defense of the tribunals, accusations such as Wennerstrum’s served to validate the worst fears of Nuremberg’s partisan critics in Congress while also legitimizing German hostility to the trials. Everett’s Malmedy accusations, building on this wave of increasing conservative skepticism of Truman and Clay’s occupation policies, thus persuaded Royall to charter a review commission led by Texas judge Gordon A. Simpson to investigate the charges.22 Although these investigations of the conduct of the US Army interrogation units were bureaucratically and institutionally separate from the Nuremberg trials, the broader public controversy over Malmedy contributed to the erosion of public and congressional confidence in all the war crimes trials. As Simpson’s investigation into the army’s conduct in the Malmedy case metastasized into a broader congressional inquiry into every American tribunal, Clay became increasingly exasperated. He had meant to retire in early 1948 but was persuaded to stay on temporarily because of the crisis stemming from the March 1948 Soviet blockade of Berlin and the subsequent American airlift operations. Eyeing the end of his career, Clay worried about burdening his successor with executing war criminals who had received indefinite stays as the Simpson Commission did its work.23 Since the administrative pause in carrying out the executions of Dachau trial prisoners did not apply to Nuremberg prisoners, Clay rapidly approved the executions of seven physicians condemned at the Doctors Trial, as soon as the Supreme Court rejected their appeals in May 1948, hanging all seven at Landsberg on June 2. Like all the Nuremberg war criminals, the seven doctors showed no remorse for their crimes, uniformly spending their final moments denouncing the legitimacy of the tribunals from the scaffold—Karl Brandt, former leader of the T-4 euthanasia program responsible for the murder of over seventy thousand Germans with mental and physical disabilities from 1939 to 1941, conducted such a long harangue against the “political revenge” visited upon him by the Americans that the executioners lost patience and threw the black hood over his face midsentence.24 Yet the execution of the seven physicians did little to soothe Clay’s worries

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about the growing backlog stemming from the Malmedy investigations. Writing to Draper on June 9, Clay petitioned for Royall to “remove the indefinite stay of execution” for other war criminals convicted at Dachau unless Draper and Royall planned to convene a clemency board.25 The stay remained in place, however, while Royall and Clay dispatched two separate commissions to investigate the charges raised in the Malmedy controversy, reviewing 139 confirmed but unexecuted death sentences over the summer of 1948. Clay again requested on September 27 that Royall rescind the mandated stay on all executions “without further delay” given that the independent reviews had all but concluded and that the Supreme Court had made it a practice of “uniformly reject[ing] all petitions” filed by the condemned for redress.26 Following the completion of the Malmedy investigations in October (which dismissed nearly all of Everett’s claims as unfounded), Royall authorized Clay to resume the executions of the US Army trial prisoners. One hundred four war criminals were hanged at Landsberg between October 1948 and February 1949.27 But a new complication arose. The final Nuremberg case, the Ministries Trial, concluded in April 1949 with a strong dissenting opinion filed by Judge Leon W. Powers questioning the tribunal’s findings for several defendants. Previous dissenting opinions in the RuSHA and Krupp cases had objected to the severity of the sentences, but had refrained from criticizing the verdicts.28 Long-standing German and American opponents of the Nuremberg trials used the occasion to publicly claim vindication for their views that previous tribunal sentences were fundamentally illegitimate. In response, the defense attorneys in the Ministries Trial immediately filed multiple motions with both the tribunal and American courts citing Powers’s dissent as a rationale for overturning the verdicts. Their actions in turn inspired a new wave of appeals from the other Nuremberg prisoners, some of whom were facing the noose. It took until December 1949, well into McCloy’s tenure, for these petitions to make their way through the court system—all rejected. Looking to quiet critics of the “unjust” practice of not providing a venue for appeal, Clay’s legal advisors recommended a thorough review of all pending sentences. Since increasing skepticism from Congress about the validity and utility of the war crimes program precluded the creation of a new appellate body by statute, John Raymond, Walter Rockwell, and other OMGUS staff reviewed each case on an ad hoc basis.29 Clay subsequently commuted a substantial number of Dachau trial death sentences to life terms in 1948, setting a high bar for confirmation while noting that “a life sentence can be corrected and a death sentence cannot.” Yet apart from one exception (the commutation

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of Concentration Camp Trial prisoner Karl Sommer’s death sentence to a life term), Clay confirmed every Nuremberg sentence before his retirement except those in the still-pending Ministries case. Responding to a December 1948 petition from the Holy See pleading “for mercy on behalf of German nationals condemned to death as war criminals,” Clay noted that “each case is examined painstakingly to determine that evidence is irrefutable” and that he confirmed death sentences only when there were no mitigating circumstances. The fact that Clay commuted 127 of 426 of the Dachau trial death sentences to life terms while substantially reducing many other sentences also indicated that he and his legal team’s confirmation of every Nuremberg sentence save one was by no means a foregone conclusion.30 Much like McCloy’s later experience, Clay’s review and confirmation of the death sentences weighed on his conscience. He later explained, “I never signed any of those papers without going through the trial record from A to Z. And if there was any doubt, any doubt, I commuted the sentence. . . . The Nuremberg trials were much easier to follow; it was much easier to determine whether justice had been done. In Dachau, I had some doubts.”31 Nevertheless, in the spring of 1949 Royall once again ordered a halt to all executions in Landsberg. Royall wanted to wait for the results of yet another round of appeals to the Supreme Court on behalf of the condemned prisoners (rejected in June 1949), and for the outcome of a US Senate Armed Services Committee’s investigation into the Malmedy trials (prompted by the previous summer’s controversy) that did not wrap up until September. Clay still urged moving forward with the executions, given his upcoming June retirement. He argued during a conversation with Assistant Secretary of the Army Tracy Voorhees on March 3, 1949, that given the inevitable Supreme Court rejection of all remaining petitions, “I am most desirous to complete all [Nuremberg] exe­ cutions so that my successor will not have to take this burden on his shoulders in starting fresh.”32 Clay repeated his request to Voorhees in a subsequent cable on March 29, not wishing to “seem ghoulish” but again urging Voorhees and Royall to lift the stay on executions for the Nuremberg prisoners so that Clay could “free my successor from this thankless task.” “It is one of my inheritances that I do not wish to pass on,” Clay concluded.33 Nevertheless, Royall maintained that no executions should take place until the Senate investigation was resolved and the final appeals adjudicated by the Supreme Court. Like the Simpson Commission, the Senate Armed Services Committee led by Raymond Baldwin judged US Army interrogation and trial procedures fair, repudiating the accusations of widespread torture and coercion. The hearings

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were nevertheless bruising, given the slew of charges flung about by Joe McCarthy. The junior senator from Wisconsin demanded investigations into individual tribunal outcomes, threatened to subpoena presiding judges to testify on the verdicts, and repeated the charge that the administration was gravely endangering American national security by continuing to alienate the German people while the threat of communism loomed. “I think this committee,” McCarthy stated, “should see what type of morons—and I use that term advisedly— are running the military court over there.” Dissatisfied with the committee’s largely exculpatory report on US Army interrogation practices and hinting darkly at a conspiracy at work, McCarthy continually railed against the Senate’s “whitewashing” of the army trial program, which he decried as dependent on “Gestapo” and Russian secret police–style methods, offering renewed charges of the illegitimacy of the trials that were once again eagerly received by audiences in Germany.34 Clay left Germany on May 15, 1949. With the Nuremberg appeals rejected by the Supreme Court in June, the stage was set for the immediate resumption of executions in Landsberg under Clay’s successor. In the interim West Germany ratified its new constitution, which abolished all forms of capital punishment in Article 102. This prompted yet another round of delays and appeals from the condemned prisoners arguing that no executions could take place in Germany lest the constitution be abrogated and calling for the death sentences to once again be overturned by the Supreme Court.35 These legal maneuverings were accompanied by a more general public outcry against Clay and the direction of American policy in Germany. The public broadsides, often invoking anti-Semitic tropes of trials dominated by “Jewish vengeance” delaying Germany’s reconciliation with the West, came from both veterans’ associations and religious organizations in Germany and rabidly anti-communist politicians in the United States.36 Although strident and continuous, none of the attacks seem to have affected Clay’s conclusion that the Nuremberg sentences were worth defending.

internal and external p ressu res, and an ad v i so ry b o ard Clay’s responsibilities vis-à-vis the German war criminals were split between a civilian and military successor. Commander in chief of US Army Europe (CINCUSAREUR) Gen. Thomas Handy assumed jurisdiction over Landsberg prisoners from the Dachau trials while the new high commissioner for occupied Germany (operating through the State Department) assumed jurisdiction

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over the Nuremberg cases. Clay’s civilian successor was former assistant secretary of war John J. McCloy, a Wall Street lawyer brought into the Roosevelt administration in September 1940 despite his Republican politics, largely because of his prior litigation experience with German industrial firms in the interwar period. Named assistant secretary of war in April 1941, McCloy was intimately involved with several controversial and consequential decisions, including the administration of Lend-Lease aid prior to American belligerency in 1941, advocacy for the incarceration of Japanese Americans to prevent sabotage on the West Coast in 1942, involvement in the decision against Amer­ ican bombing of the rail lines to Auschwitz in 1944, and support for postwar trials of German war criminals. After leaving the Truman administration in November 1945 to return to Wall Street, McCloy served as president of the World Bank from March 1947 to July 1949. Given his War Department and State Department connections and experience with German industrialists and global financiers, McCloy was a logical choice to serve as the first American high commissioner for occupied Germany in a transitional period wherein the process of denazification was giving way to fostering West German economic growth and reintegration into the world financial system. He assumed his duties in September 1949.37 When it came to the Nuremberg war criminals, McCloy almost immediately opted for a general review of all sentences, even though Clay had spent his last months in office reviewing and confirming all but those of the Ministries case, the final verdict of which was still on appeal in American courts at the time of his retirement. As both contemporary documentation and McCloy’s later understanding of these events reveal, there was a significant conceptual confusion at the heart of this decision. In a tape-recorded conversation between former Einsatzgruppen Trial prosecutor Benjamin Ferencz (who brought documents to the discussion to aid their reminiscences) and McCloy in 1984, McCloy claimed he took Clay’s repeated apologies for leaving him the “mess” of implementing the remaining death sentences and reviewing the sentences in the Ministries case as signaling a broader need for a review of every Nuremberg prisoner’s sentence. “I can remember very distinctly . . . I thought Clay was saying to me, look, I’ve got this whole damn mess and I apologize to you,” McCloy said. When pressed by Ferencz on the point that Clay had already confirmed most sentences, McCloy pushed back, saying, “I remember thinking I had to review them all. . . . That’s a nuance I didn’t know until this minute.”38 This interpretation was similar to that expressed in private letters between McCloy and Ferencz in 1977, where McCloy conveyed a similar lack of aware-

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ness that Clay had, in fact, reviewed and confirmed all the sentences in eleven of the twelve trials.39 Given McCloy’s misunderstanding, even without accounting for the additional political pressures added by the Malmedy controversy and West German and American amnesty advocates, the stage was set for an unnecessarily broad review of the Nuremberg sentences. Soon after the announcement that he would serve as one of Clay’s successors, McCloy was beset by clemency petitions from the Landsberg prisoners, whose years-long confinement with like-minded war criminals had only left them more strident in their protestations of innocence. One prison chaplain described the prevailing mood in Landsberg as a “psychosis of blamelessness,” a “peculiar atmosphere of tension, nationalism, and prison-induced psychotic exaggeration” where the inmates constantly recounted exaggerated tales of their own persecution by the American tribunals.40 By 1948, the prison cells were open from 0500 to 2100 hours each day. Given the opportunity for free movement, the prisoners frequently socialized and conversed with one another, and so a series of cliques had formed, loosely grouped around pretrial associations (SS officers, businessmen, and line soldiers, for example) while ostracizing those who had betrayed their comrades by testifying against them at trial. These cliques often shared lawyers, writing supplies, and law books and coordinated with one another’s support networks outside the prison to further the cause of amnesty and clemency for all. Nevertheless, the “respect­ able” industrialists and civil servants in Landsberg made every effort to avoid embarrassing public displays of solidarity with their SS cohabitants, lest they sacrifice their claim to stand apart from the “real” criminals who deserved the Americans’ punishment. By 1949, the inmates’ favorite pastime was gathering in the prison lecture hall to collaborate on writing affidavits protesting their innocence, and, in the case of the Malmedy Massacre perpetrators, further specious accusations of abuse by their captors.41 The prisoners’ pervading sense of self-righteousness was particularly prevalent among “red-jackets,” the death row inmates physically and socially segregated from the general population, whose attitudes were reaffirmed by prison chaplains charged with their pastoral care. Of the 285 executions that took place in Landsberg Prison from 1945 to 1951, only three men expressed a modicum of regret for their crimes in their final statements or meetings with clergy. They were abetted by chaplains who viewed it as their duty to ensure peace of mind rather than compel the prisoners to atone for their wrongdoing, and who uncritically accepted and amplified their charges’ protestations of innocence. The sole exception was for the few remaining true believers in National Social-

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ist neo-paganism, such as Einsatzgruppen commanders Otto Ohlendorf or Werner Braune, whose worldviews the chaplains challenged to reclaim their souls for Christ. Even here, however, the chaplains only engaged with the anti-­ Christian spiritual views of the prisoners and did not push them toward repentance. American prison administrators complained that the spiritual counselors of Landsberg were “inclined to mix politics and religion to such a degree that politics over-shadow the religious results.” Both Lutheran pastors serving at Landsberg, August Eckhardt and Karl Ermann, were ultimately removed from their positions for routinely flouting prison guidelines: smuggling out letters, coordinating and sharing information with defense counsel and amnesty advocates, and ultimately joining the amnesty movement themselves.42 McCloy also received letters on the prisoners’ behalf from public intel­ lectuals such as theologian Reinhold Niebuhr, who wrote to McCloy on June 15 on behalf of Einsatzgruppen commanders Martin Sandberger and Eugen Steimle. According to Niebuhr, Sandberger’s conviction was “particularly challenged by Church authorities,” including leader of the Evangelical Church Bishop Theophil Wurm, who was convinced of Sandberger’s good Christian character. Niebuhr also described Steimle’s case as a “miscarriage of justice,” because Steimle had “risked his life to circumvent the S.S. orders for Jewish extermination, but was convicted because he admitted that there may have been Jews who lost their lives in court-martial trials in the Eastern military zone.” As we shall see, this demonstrated, at best, an incomplete understanding of Steimle’s murderous actions in the East as established in the trial record.43 Niebuhr’s June petition was indicative of what was to come. A year later, McCloy received a 160-page “Memorandum of the Evangelical Church in Germany on the Question of War Crimes Trials before American Military Courts” denouncing the American tribunals as legally suspect exercises in “victor’s justice” and calling for the immediate release of all Landsberg prisoners. This was reflective of the broader shift in public opinion against the legitimacy of the trial program, which was not limited to reactionary politicians or the clergy, but permeated West German political, legal, and religious culture. When one anonymous wife of a Landsberg prisoner attempted to initiate divorce proceedings in April 1948, the civil court in Bielefeld ruled her motion “unfounded,” because her husband’s war crimes conviction by an American tribunal did not meet the legal burden of “dishonorable or indecent behavior.” Moreover, the court ruled that the plaintiff had an ethical obligation to stand by her husband because his imprisonment was best categorized as “an act of fate” that “must be borne jointly by both spouses.”44

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Another famous voice that sought to petition McCloy in June 1949 was George Kennan, then director of the State Department’s Policy Planning Staff, whose letter and accompanying report supported clemency for Ernst von Weiz­ säcker, state secretary in the German Foreign Office from 1938 to 1943. As a career State Department man, Kennan was “seriously worried about the implication contained in the Weizsäcker verdict that every subordinate government official must be the judge of the morality of the sovereign acts of his own government and has no right to continue in office if he questions this morality.”45 By way of convincing McCloy that an immediate pardon of Weizsäcker was advisable, Kennan enclosed a letter from career Foreign Service officer and former member of the Policy Planning Staff Bernard Gufler, who was then stationed in Berlin. Gufler noted that the Weizsäcker conviction was a hot-button issue for many former government officials who viewed themselves as anti-­ Nazi and believed “that if Weizsäcker deserved to stay in prison all of them should go to prison with him.” They claimed Weizsäcker was inwardly disposed to the resistance movement during the war, and while he signed criminal decrees he was “in no sense morally guilty for these criminal acts.” These circles claimed that “Weizsäcker’s conviction is really defeating the whole purpose of the war crimes trials” since it made the Americans appear unable to distinguish between Nazi fanatics and ordinary Germans.46 Not mentioned by any of Weizsäcker’s advocates was the tribunal’s finding that, regardless of his resistance connections, Weizsäcker knew of the radicalization of Nazi anti-Jewish policy from 1938 to 1943, including the Einsatzgruppen shootings and the deportations to death camps after 1941. Moreover, as a Foreign Office state secretary, Weizsäcker implicated himself in these policies, including with his recommendation that deportations of Jews from France in late 1941 spare Jews of American nationality to put off an American declaration of war against Germany. He also approved a request from Adolf Eichmann to deport six thousand French Jews to Auschwitz in March 1942.47 Faced with the ever-widening circle of petitions, McCloy acted. Having recently learned that, based on the recommendations of the Simpson Commission, the US Army had established a permanent War Crimes Modification Board in November 1949, McCloy announced to the British and French high commissioners on December 15 that he intended to do the same. In doing so, McCloy acted on his own authority, without consulting the State Department on the timing of the announcement, although the army’s action had inspired a series of cables between Washington and HICOG headquarters in Frankfurt on the legal basis for such a board.48

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execut i v e cl emency In convening a review board, McCloy was drawing on executive clemency powers that had a long history in Anglo-American jurisprudence and closely charted post-Enlightenment conceptualizations of the societal purpose of punishment. Although the power to dispense mercy originated in the divine rights of absolute monarchy, in the aftermath of the American Revolution the Constitution grafted this royalist conception of the pardon power onto republican institutions, providing the president, as chief executive, the discretionary authority “to grant reprieves and pardons for offenses against the United States.” This power was and remains universal and, due to its embodiment in the personal discretion of the executive, often appears arbitrary in its exercise, despite consistent efforts toward bureaucratic regularization in the twentieth century.49 The devolution of the exercise of clemency and pardon powers to American occupiers in Europe was an unforeseen development, since bureaucrats like McCloy and his successors were accountable only to the president, and thus operated in a space both physically and legally removed from democratic oversight. The nineteenth century saw efforts by rationalist American reformers to impose uniformity on executive exercises of the pardon power. These reformers urged that clemency decisions be relegated to advisory boards of judicial officials and notables, partly to ensure that all petitioners had equal access to their elected officials and partly as a check against state-level executive corruption. These efforts made more headway in the states than at the national level, but expanded along with the American prison population, with the pardon power increasingly employed not to forgive penitents or those with political connections, but to relieve overcrowding and serve as an incentive for compliance with prison rules. As such, justifications for executive clemency in the United States were increasingly divorced from the conceptions of royal mercy that had underpinned its exercise for centuries. While the Supreme Court repeatedly rejected congressional challenges to the absolute nature of the president’s pardon powers, particularly in the turbulent political aftermath of the Civil War, by 1927 Supreme Court Justice Oliver Wendell Holmes Jr. described these executive powers not as “a private act of grace from an individual happening to possess power,” but as a “Constitutional scheme” operating in the public interest.50 By 1949, the attempt to standardize executive pardon powers in the United States had produced mixed results. Independently administered state parole

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systems were governed by their own procedures and bureaucracies, while the executive power to grant clemency on an individual basis, separate from the act of parole, was left unaltered.51 The criteria for granting clemency, particularly for commutations of a criminal sentence, remained variegated, including prisoners’ expressions of remorse or atonement for their crime, demonstrated errors or documented discrepancies in the imposition or severity of a sentence, or unexplained merciful interventions by the executive in particular cases. When it came to the Nuremberg trials, McCloy acted with the confidence that the authority to proceed was his alone. As a subsequent memorandum from HICOG legal advisor John Raymond (who remained in his advisory position after Clay’s retirement) explained, McCloy’s clemency powers originated in President Truman’s Executive Order 10062 of June 6, 1949, which endowed the position of high commissioner of Germany with the authority “to exercise all of the governmental functions of the United States in Germany (other than the command of troops).” This was followed on June 20, 1949, with the tripartite agreement between Great Britain, France, and the United States of the Charter of the Allied High Commission, which replaced the quadripartite charter of the Allied Control Council, reflecting a recognition of the fact that the Soviet Union had established a semipermanent influence in its own occupation zone. This charter ratified the transfer of governing powers from the American, British, and French military governors to the newly designated “High Commissioners” of each nationally governed occupation zone. As a result, McCloy was granted the powers previously exercised by Clay pursuant to Article XVII of US Military Government Ordinance No. 7, which provided the authority “to mitigate, reduce or otherwise alter” the sentences imposed by the Nuremberg tribunals.52 As Raymond noted, “While it is true that the State Department exercises overall supervision of the High Commissioner and his office” and so had a role in approving McCloy’s policy of reviewing the Landsberg sentences, “the detailed action to be taken in each case was a matter which was in Mr. McCloy’s discretion.”53 McCloy’s authority to dispense clemency was absolute. But this was not the only relevant interpretation of the statutes in question. Other officials in the US European Command (EUCOM) Office of the Judge Advocate filed dissenting opinions in 1949 arguing that unilateral action by McCloy violated Control Council Law No. 10, which granted the power to review sentences not to individual high commissioners but to the Allied High Commission as a collective. Concluding that he was within his statutory authority to grant clemency to individual prisoners, McCloy ignored these dis-

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Rulers of West Germany, September 25, 1950. Left to right: John J. McCloy (US high commissioner for Germany); Ludwig Erhard (minister of economics for the Federal Republic of Germany); Sir Ivone Kirkpatrick (UK high commissioner for Germany); Konrad Adenauer (chancellor of the Federal Republic of Germany); André François-Poncet (French high commissioner for Germany). (JJMP Oversize Box 4, Vol. 7)

sents.54 The only questions that remained were on what basis McCloy would grant clemency and who or what would aid him in making these decisions. A secret December 28, 1949, memorandum prepared by J. B. Rintels of the Office of the General Counsel’s Administration of Justice and Prisons Division explored some of the “unanticipated dangers” of a HICOG clemency program. Rintels noted that both the high commissioner and military governor had been “bombarded with petitions relating to the war criminals” that were “ostensibly aimed at the securing of relief for specified individuals,” but in fact constituted “an attack upon the original war crimes program as a whole, its underlying philosophies and theses, and its implications involving the cul-

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pability of the responsible members of the German government for the offenses of which they were convicted.” Although the petitions included “legitimate data as to medical condition, family hardships, moral character and the like,” they also “almost invariably represent an attempt to re-litigate the arguments which were considered and rejected at the tribunals and upon the [previous] reviews.” The list of specious arguments was long: the claim that the defendants acted under superior orders; charges of Allied hypocrisy in not prosecuting their own atrocities; charges of ex post facto justice; claims of immunity from prosecution under prisoner of war status; and claims that trial procedures were unfair or opaque or that sufficient legal counsel or access to evidence had been denied to the defendants. Rintels argued that a HICOG clemency panel would incentivize new petitions with these same tropes. A potential directive’s focus on having a clemency panel address “wide disparities . . . for comparable crimes” across cases was, for example, “manifestly impossible and, under modern penological thinking, undesirable.” Punishment, after all, was not supposed to fit the crime, because “the better and more enlightened view is that the punishment should fit the criminal. In offenses which bear a superficial resemblance, imponderables are invariably present which justify a difference in treatment.” Rintels worried that “any disparity involving the continued incarceration of a war criminal would be required as sufficient to justify an examination into his case.” Moreover, a second draft directive that any clemency board should ensure that “the punishment is reasonable for the offense” was “even more hazardous since it invites and requires a scrutiny of the entire basis of conviction, both factual and legal.”55 To proceed along this path “would open the door to an endless rehash of the very arguments which have already been fully adjudicated by courts of competent jurisdiction, and to cast doubt upon the validity of the findings, conclusions, judgments, and sentences of these courts.” This “would undermine not only the judicial determinations in the cases, but the policy and position of the United States” as well. Rintels concluded that any clemency program “must be carefully limited in scope” and “should be conducted . . . by an independent board of distinguished citizens representing as many as possible of the professional groups normally interested in clemency and penological matters.” Given the inevitable public scrutiny such a board would invite, it should “include one jurist—an outstanding member of the Bar or Judiciary, or a member of the faculty of an outstanding institution—a penologist, and a representative of the public, preferably of Cabinet or equivalent position.” For the sake of impartiality, “All should be persons who have not previously taken a public position

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with respect to any aspect of the war crimes trials.”56 Subsequent memoranda to McCloy from the HICOG general counsel’s office reaffirmed the importance of “persons of high standings” participating in the work of the clemency program “so that their recommendations will carry weight with public opinion in the United States and elsewhere.”57 Rintels’s memorandum was taken as the basis for a HICOG general counsel’s office conference on “the establishment of a clemency program for war criminals” held in Frankfurt on the morning of January 2, 1950. Six representatives from the general counsel’s office in attendance resolved that neither the jurisdiction nor the judgments of the Nuremberg tribunals could be challenged by a future clemency board. They also concluded that evidence not presented at trial should only be considered “in extraordinary cases” such as “mistaken identity” or “complete alibi.” Any consideration of disparities between sentences would only be appropriate in cases “shocking to the conscience. No mathematical equalization of sentences is contemplated.”58 In retrospect, the meeting notes are striking as a record of the number of early guiding prin­ ciples that would be violated by both the Advisory Board and McCloy’s final review of the sentences, which were generous in their consideration of new evidence and frequently questioned the judgments. The emerging consensus within HICOG on the need for a clemency board to review all the sentences did not necessarily indicate a shift in American policy or McCloy’s thinking, despite the intervening tensions of escalating Cold War–related crises. In public statements during his early tenure as commissioner, McCloy indicated that while he was sympathetic to the widely held skepticism in the United States and West Germany on the utility of further denazification measures, it was important to distinguish between minor officials subject to American denazification tribunals and the Nuremberg war criminals. Speaking in Washington on January 23, 1950, McCloy noted that “the denazification process predated my assumption of office in Germany and I do not feel called upon to defend it,” and “I believe the time has come to permit these so-called little Nazis to demonstrate their loyalty to the new Germany and judge them on that basis rather than on their past weaknesses or misdeeds.” No one should misunderstand, however, and extend this sense of pragmatism to the “major Nazi offenders who are still paying and should continue to pay for their unspeakable crimes.” Overall, despite some lingering problems of economic development, the stubbornness of an authoritarian political culture, and the destabilizing effects of large numbers of refugees from Eastern Germany and the former Nazi Empire, McCloy was optimistic about the future of

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West Germany. While denazification had its flaws, and some minor officials were treated too leniently—or regained their positions in the civil service without giving any real sense that they had changed their political stripes—McCloy believed that such individuals would effectively be shackled by the broader reforms to the German civil service, constitution, and political system. Major offenders, on the other hand, such as those interned at Landsberg, should continue to be held separate from the German body politic.59 The unprecedented task of applying aspects of the American criminal justice system to war criminals presented challenges, and there were certainly conflicting views on these matters. If a consensus emerged that a clemency review was needed, what should the hypothetical clemency board look like? Would one board handle the review of all Landsberg criminals, including those under army jurisdiction, or were two boards necessary? A February 3 memorandum to Raymond from Henry Byroade (head of the State Department’s Bureau of German Affairs) summarizing Byroade’s recent conversations with McCloy indicated that McCloy envisioned creating a distinguished panel of jurists to review the cases for him. McCloy had already approached retired former Supreme Court justice Owen Roberts (then teaching at the University of Pennsylvania Law School) about either serving on the panel (Roberts declined) or providing a list of federal judges or lawyers suited to the task, and sought the cooperation of the secretary of state to help recruit such individuals “in a hurry.” Since, in McCloy’s view, “a detailed study of fact or law is not contemplated,” the job could likely be done in sixty days.60 Cabling McCloy on February 8, Secretary of State Dean Acheson recounted that General Handy’s office had suggested that the same individuals review both the Nuremberg and Dachau death sentences, which Acheson found “most undesirable in view different nature of trials and different responsibilities resting upon you and Gen. Handy in connection therewith.” In short, Acheson wanted to keep the clemency reviews under McCloy’s jurisdiction as brief as possible, only seeing the need for a review of the few pending Nuremberg death sentences. McCloy’s proposed panel of distinguished jurists “WLD be bound to attract ATTN and might tend to create impression that legal basis and procedure of Nuremberg trials under review, or at least be construed as indication of doubt.” Could HICOG legal advisors not just prepare reports for McCloy, as Clay’s staff had done earlier? Acheson’s telegram closed with the request that McCloy reconsider his position.61 In a February 17 reply to Acheson, McCloy dug in on his insistence that an independent clemency board was “essential.” Having recently met with Gen-

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eral Handy, McCloy agreed that the clemency reviews of the Nuremberg and Dachau cases should be kept separate, but that was the only recommendation of Acheson’s he was willing to accept. Given the recent Malmedy controversy, McCloy expressed concern about a pro forma sentence review and wanted indisputable evidence that any decisions he made were based on the “recommendations of a board of qualified individuals who are recognized for objectivity and independence of judgement.” Alluding to the death sentences, which he expressed considerable discomfort with publicly and privately throughout the process, McCloy added that he needed a board of experts because “my own conscience is involved and though I am quite prepared to make ultimate decision and accept ultimate responsibility I require the help of such a group.” As to Acheson’s concerns that a clemency board would lend the impression that the entire legal basis of Nuremberg was under review, this misapprehension could be dispatched through effective publicity and, in any event, “this type of decision must be made without fear of mistaken interpretations by individual groups.”62 Acheson ultimately deferred to McCloy on the creation of a board of experts, replying that “inasmuch as you feel so strongly necessity for forming special group to review death sentences [I] am prepared to proceed if special precautions are taken on handling publicity.”63 Exchanges between McCloy and Acheson and internal deliberations among McCloy’s legal staff resulted in a broadening of the future Advisory Board’s mandate by March 1950. A State Department cable of February 23 approved the clemency panel’s review of the outstanding death sentences, resolving what General Counsel Robert Bowie referred to as the “moral and logical absurdity” of Raymond’s initial recommendation that McCloy review only the non-capital cases. In a March 2 memorandum to McCloy offering his assessment of the proper function of the clemency panel, Bowie argued for granting powers more akin to those of an appellate court. “One point which I think has perhaps not been sufficiently emphasized,” Bowie wrote, “is that since the tribunals are no longer in existence, there exists no judicial forum to which a motion for a new trial may be addressed.” “Every legal system,” Bowie continued, “ought to provide some machinery for the presentation of evidence which would vitiate or substantially affect the earlier decision of a court.” Since the tribunal was no longer operational and thus unable to consider such petitions, Bowie argued, “it is right and proper that the executive should establish a substitute so that in those rare cases where a genuine miscarriage of justice may have taken place, the petitioners may be heard and appropriate action taken.” Bowie concluded that “time is becoming increasingly of the essence” since HICOG had “with-

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held action on a large number of cases in the expectation that the board would soon be in a position to consider and act on them. It is possible that further delay will result in the doing of injustice to persons who have meritorious petitions.”64 Bowie’s comments, which assumed that there were legitimate grounds for appeal among the Landsberg prisoners and that their ability to have these appeals heard by a formal appellate body was inseparable from the legitimacy of the verdicts in their cases, complemented McCloy’s own insistences that a fundamental principle of “American justice” was the ability of prisoners to appeal their convictions. By invoking a uniquely American brand of justice that demanded an appellate process, McCloy and his staff extended the postwar American project of institutionalizing New Deal–era conceptions of an activist government defending human rights into the new strictures of international law in the United Nations, and into the Nuremberg tribunals themselves.65 The “right” of the prisoners to appeal the Nuremberg verdicts would prove decisive in shaping the operations of the Advisory Board, McCloy’s ultimate decisions on the individual cases, and the ensuing public backlash. If the Landsberg prisoners were entitled to an appeal, was a clemency panel review the proper venue for that process? Legally, the Advisory Board would make its recommendations (and McCloy would approve, modify, and implement them) under the long-standing powers of executive review. As the physical embodiment of sovereign executive power in American-occupied Germany, McCloy, working on either his own initiative or through the Advisory Board, had the power to modify the sentences imposed by the tribunals. What McCloy did not have the power or, by his own admission, the intent to do was alter the findings of the Nuremberg trials. Yet an appellate-oriented clemency process would do just that—particularly if it was empowered to consider new evidence that contradicted the findings of law or fact established at Nuremberg. Even if the Advisory Board were to assume this orientation, however, there were further procedural matters that would influence the public and internal legitimacy of its findings. Who would be allowed to petition the Advisory Board? Would the board have the power to compel witnesses to testify, and could it punish individuals for submitting false statements or evidence? Finally, would the prisoners’ petitions for redress be contested in some meaningful way by representatives of the prosecution or testimony of the victims?

c o ld war pre ssu res? By 1950, the Cold War had considerably complicated relations between the newly sovereign Adenauer government and the vestiges of the American occu-

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pation still in force under McCloy. On June 28 McCloy was notified by Washington via top secret cable about the ominous implications of the surprise North Korean invasion of South Korea two days prior, which the Department of the Army warned “may indicate riskier Soviet policy henceforth of using satellite armed forces in attempting to reach limited objectives for expansion [of ] communism.”66 While McCloy’s decision for a comprehensive review of all the Nuremberg sentences predated these developments, both the Advisory Board’s work in the summer of 1950 and McCloy’s subsequent consideration of their report from August 1950 to January 1951 occurred as communist aggression in the Far East altered American policy toward West Germany. Members of the Joint Chiefs of Staff and other noteworthy voices in the Truman administration, Congress, and the press argued that the security of the United States was dependent on the much-sooner-than-anticipated rearmament of West Germany. Although it is tempting to infer a linkage between this newfound American acceptance of a rearmed Germany and the Landsberg clemency of 1951 (particularly since vocal German amnesty advocates did so, and Adenauer himself frequently stated that rearmament was unfeasible without American concessions on the war criminals issue), there are two overarching problems with such an interpretation. First, the American policy shift on German rearmament was not immediate, but halting and contested, with a new consensus not emerging until after McCloy’s decisions were announced in January 1951. Second, there is little indication in the sources that McCloy or other American policymakers conceived of the two issues as linked in 1950, regardless of Adenauer’s and anti-Nuremberg newspaper editorialists’ attempts to link them. Prior to the outbreak of the Korean War, the British government had floated the idea of German rearmament, winning over some adherents in the Joint Chiefs of Staff, only to face opposition from McCloy and Truman. In February 1950, the Central Intelligence Agency (CIA) reported that Soviet military officers were training thirty-five thousand men of the East German police forces in battalion-sized units dedicated to special artillery, tank, signal, and intelligence tasks, suggesting that the Soviet Union was hard at work building the nucleus of a restored East German army.67 By the summer of 1950, the ranks of the East German Volkspolizei comprised some seventy thousand men, and was expected by Adenauer’s government to expand to one hundred fifty thousand in the near future.68 The question of what exactly the East Germans were up to and the desirability of a matching expansion in West German police forces that could respond to any foreign efforts to foment a communist

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uprising in West Germany soon became the subject of frequent discussions among British, French, and American officials. Following these talks, on June 8, 1950, Secretary of Defense Louis A. Johnson prepared a top secret memorandum for Truman, NSC-71, which outlined the views of the Joint Chiefs of Staff on the necessity of a shift in American policy toward German rearmament. In their view, American occupation policies, still geared toward “preventing Germany from regaining a position which would enable her again to ‘threaten the peace of the world,’” were counterproductive to American national security interests because they led “important segments of the German public” to “doubt that Germany’s long-range interests lie in association with the West.” To that end, the Joint Chiefs argued, “the appropriate and early rearming of Western Germany is of fundamental importance to the defense of Western Europe against the USSR,” and the Truman administration should bring about any necessary pressure on dissenting voices in the United States, Britain, and France to achieve this reality. Truman, however, was unmoved, describing NSC-71 to Acheson on June 16 as “decidedly militaristic” and “not realistic.”69 Truman’s skepticism of NSC-71 was likely heightened by a series of reports he received from McCloy the week prior indicating that Count Gerhard von Schwerin, a close advisor to Chancellor Adenauer on military matters, had undertaken a trip to London to assure British officials that “the United States could be brought into line quickly” if they came out in support of rearmament. McCloy’s assessment was that “the UK is utilizing pressure for the creation of a German police force as a first step toward the remilitarization of Germany.” This was “premature” absent further proof that democracy had firmly taken root in West Germany and undesirable from a foreign policy perspective, given that such a “provocative” action as West German remilitarization would invite “extreme countermeasures” from the Soviet Union.70 Truman was even more alarmed than McCloy. On the same day that he dismissed the recommendations of NSC-71, Truman confided to Acheson that he viewed British maneuvering on the rearmament issue as part of a broader effort to “break up Western European unity,” endangering the recently announced Schuman Plan for supranational oversight of West German and French coal and steel production. Moreover, Truman wrote, “We don’t want to make the same mistake that was made after World War I when Germany was authorized to train one hundred thousand soldiers, principally for maintaining order locally in Germany.” From Truman’s perspective it was imperative, particularly given the fluid international situation, that he, McCloy, and Acheson

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should prevent the creation of “a military machine that can combine with Russia and ruin the rest of the world.”71 Acheson duly relayed Truman’s annoyance with the British and his skepticism of West German rearmament to McCloy on June 21, urging McCloy to make clear to both the British and Adenauer that the United States viewed the establishment of a stronger West German police force as an entirely separate issue from West German remilitarization, an undesirable development at this time. McCloy notified his British counterparts on June 24, recommending that the Council of Foreign Ministers issue an official statement reaffirming “the decision not to permit creation of German armed forces,” and that any West German contribution to the defense of Europe, should the necessity arise, would be comprised of economic support for Allied occupation forces and the maintenance of law and order within West Germany.72 From McCloy’s appointment as the high commissioner in 1949 to the outbreak of the Korean War in June 1950—the period of internal debates within the American occupation forces on the advisability of reviewing the Nuremberg sentences—neither President Truman, nor the secretary of state, nor the high commissioner for occupied Germany viewed any steps toward German rearmament as either realistic or desirable. Given the Truman administration’s evident hostility to the idea of West German rearmament, the British ambassador to Washington was quick to express Prime Minister Clement Attlee’s disavowal of the May meeting between Schwerin and Foreign Ministry officials as unsanctioned and not representative of the views of the British government.73 The invasion of South Korea by the communist North on June 25, 1950, and subsequent worries about Soviet manpower superiority in Europe occasioned an about-face in the Truman administration’s policy on German re­ armament, but the actual effects would not be felt until long after McCloy had already ruled on the clemency issue in January 1951. McCloy, like most American policymakers, possessed a unitary and Eurocentric understanding of global communism. He believed that the true aim of communist aggression in Korea was opening a second front against the United States to better facilitate aggression against Germany, rendering the question of German rearmament central to the policy discussion of the ongoing Korean War.74 In early July, Acheson, still working from draft responses to NSC-71, informed the National Security Council (having already informed Truman on June 30) of his view that, regardless of the changing international context, “it is certainly to our advantage to delay the remilitarization of Germany in any form, at least

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until we have had more time to develop democratic tendencies on the part of the German people.” Moreover, Acheson wrote, “We must weigh carefully whether an abrupt reversal of our policy of demilitarization in Germany at this time would in fact add strength to the West,” citing the risk of a rupture within the Western alliance given the French government’s hostility to West German rearmament and the meagre contributions West Germany was in a position to make in 1950 during its ongoing economic recovery from the war.75 In midJuly, following talks with Adenauer and the British and French high commissioners, McCloy noted in cables to Acheson that given the concerns in West Germany over the apparent inability of American or NATO forces to halt the rapid advance of the communists in Korea, it might be advisable to permit patriotic Germans the opportunity to enlist directly in American military units should an emergency situation arise. Yet McCloy still cautioned against the creation of a separate West German defense force beyond the existing police apparatus.76 In a briefing to the Senate Foreign Relations Committee on July 23, Byroade remained skeptical of any abrupt policy shifts on West German rearmament. He noted that while Adenauer was attempting to leverage anxieties about the inability of the United States to protect West Germany from a Soviet invasion into support for rearmament, the fact remained that the German people were still against remilitarization.77 By July 31, Acheson and Truman had come around to supporting the idea of a supranational European army or defense force that West Germany could contribute to, which would deny Germany a national general staff and centralized military-industrial complex, lest German remilitarization “not strengthen but rather weaken Western Europe, repeat[ing] errors which had been made a number of times in the past.”78 Nevertheless, the policy proposed by Acheson was a gradualist one, dependent on the assent of multiple allies and a significant amount of institutional reinvention of tripartite occupation forces and NATO administrative structures, both of which were contested by the US Army and Joint Chiefs of Staff and resulted in a fair amount of policy inertia through the October meetings of the NATO Defense Committee.79 In September 1950, Adenauer established a federalized West German police force to counter the East German paramilitary threat, but the twenty thousand–strong unit was not officially brought into service until January 1951, and, regardless of the ambition that this force would serve as the kernel of a new West German army, it received no substantial American equipment (M8 light armored cars, 60 mm mortars, and ammunition) until it actually began patrolling the West/East German border in November 1951.80 Moreover, when

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it came to the deliberations of the Allied high commissioners on the proper scope of West German defense contributions, Adenauer was largely excluded from the process and faced substantial criticism from his political left on rearmament, regardless of the international context. Indeed, by April 1951, largely because of the constant public attention on the rearmament issue, Adenauer’s approval rating as chancellor had fallen to 20 percent, with a 15 percent increase in his disapproval rating from August 1950 to May 1951.81 While pressing for an expanded West German police force as the basis for future German participation in European defense was a priority for Adenauer, West Germany’s immediate security in 1950 was still dependent primarily on the stationing of additional American troops in West Germany and American public declarations of support for West German sovereignty as deterrence against Soviet aggression. During the period spanning the establishment and operation of the HICOG clemency panel and McCloy’s deliberations on its findings, Adenauer did not possess enough political leverage to explicitly demand the release of war criminals as a prerequisite for American military support.82 Much to the contrary, he (correctly) understood that impolitic public demands of former Wehrmacht officers for a general amnesty were counterproductive and likely to antagonize the high commissioners if formulated as inseparable from the rearmament issue. Neither of Adenauer’s top secret cables to the high commissioners in late August 1950 offering a West German contribution to the defense of Europe had devoted a single word to the war criminals issue. When he did present a permanent settlement of the war criminals problem as a precondition for a West German defense contribution to the high commissioners in November, McCloy’s irritation was evident.83 Meanwhile, in a memorandum of September 10, 1950, McCloy endeavored to explain to President Truman the short- and long-term problems bedeviling West German–American foreign relations, stating that “the next six months are certain to be crucial ones in Germany and our relations with Germany.” The war criminals issue was not among them. Foremost among the short-term problems was the palpable alarm felt across the political spectrum in West Germany because of NATO setbacks in Korea. The Germans were “deeply disturbed about their defense,” and “jolted by the apparent weakness of our forces in contrast to their earlier evaluation of our strength derived in part from the war and the airlift.” The Americans had suffered a significant loss of prestige, especially since West Germans tended to identify directly with

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the plight of South Korea, in that both states were disarmed in the aftermath of the war and shared a border with a hostile foreign power bent on imposing unification under a communist system of government. There was real fear not only that the East Germans were analogous to the North Koreans, but also that the Korean experience thus far had revealed that there was no hope of an “effective defense” or “liberation” of West Germany if either the East Germans or the Red Army successfully invaded. The consensus opinion, McCloy argued, was that “a Soviet occupation of Europe for even a limited period would mean the end of European civilization”—a scenario that did not even account for the effects of (presumably nuclear) bombing that the United States would employ to liberate it, for which there was “no desire.” In the long term, it was in the interest of the United States to ensure “security from the threat of German aggression” through “the closest integration of Germany into Western Europe,” by binding West Germany to European economic, political, and military institutions through negotiated agreements, not occupation diktats.84 In the face of East German and Soviet propaganda and subversive paramilitary operations as well as the long-term necessity of bringing West Germany into the Western political and military alliance, McCloy offered a “series of steps all closely tied together and reinforcing one another.” These steps included strengthening American forces in West Germany and Berlin; preparing to militarily counter any paramilitary or covert military incursions from East Germany; strengthening West German police forces to better prepare them to aid in suppressing such East German or Soviet moves; creating a European defense force through which West Germany could channel a direct military contribution (McCloy remained adamantly opposed to any West German troops existing outside of a common European defense framework); and stepping up American propaganda to counter the East German and Soviet information offensives and bolster the spirits of West German citizens. McCloy’s other two recommendations skewed more toward the political aspects of the American occupation: a suggestion that a grand coalition government between Adenauer and the Sozialdemokratische Partei Deutschlands (Social Democratic Party of Germany [SPD]) would likely raise morale and consolidate public opinion in favor of resistance and plans to gradually draw down the American occupation. This meant “terminating the state of war, relaxing the controls over industry, internal affairs, and foreign affairs, and certain other areas and embodying them in a series of agreements . . . as soon as Germany is integrated into the European community to a sufficient degree to provide safeguards for

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security.” The latter “would mean that certain of the things we would like to see done in Germany will not be completed. . . . It seems to me we are forced to accept this as unavoidable in order to attain the larger objective of binding Germany to the West.”85 At no point in his long analysis or list of recommendations to President Truman did McCloy mention any of the key American policies that alienated West German public opinion: the continued imprisonment of war criminals, the much-resented broader denazification policies (still unfolding), or American interference in West German economic policy. These issues had featured prominently in public opinion surveys of West Germans and in newspaper coverage over the summer. And yet, from the American perspective, the war criminals matter was a minor issue almost entirely decoupled from foreign policy, apart from a general sense in McCloy’s assessment of the situation that Soviet aggression had sped up the timetable for winding down American control of German economic and foreign policy.86 For Wehrmacht veterans, an increasingly powerful constituency in West German politics by 1950, the war criminals issue was particularly sensitive. Although the IMT did not deem the Wehrmacht a criminal organization akin to the SS, the trial of officers such as Alfred Jodl and Wilhelm Keitel in 1945– 1946 had served as a moral and legal foundation for Allied Control Council Law 34. Issued in August 1946, Law 34 disbanded the Wehrmacht and all its attendant organizations.87 Subsequent hostility to the IMT and the American successor trials of military officers derived not only from the perceived “stain” on the honor of the German solider, but also from Allied decisions to slash pensions and veterans’ benefits while at the same time outlawing self-aid organizations. This much-resented Allied policy, stemming from the occupation authorities’ commitment to the demilitarization of German society, was gradually loosened in the western zones in 1948 and 1949, but was still very much a live issue during McCloy’s review of the Landsberg cases, as veterans’ groups continually pressured Adenauer for concessions. Ironically, despite continued efforts by veterans’ associations to hold West German rearmament hostage to their political demands for a rehabilitation of the Wehrmacht, an expansion of veterans’ benefits, and the right to form associations, it was the West German public at large that served as the chief obstacle to remilitarization. The experience of the Nazi dictatorship, war, and occupation had effectively forged a political consensus against remilitarization by 1950.88 Even in his frequent complaints to McCloy on myriad difficulties relating to rearma-

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ment, Adenauer was loath to bring up the Landsberg prisoners in late 1950, despite the vigorous and public efforts of prominent West German politicians, veterans’ groups, and religious associations to lobby McCloy right up through January 1951.89 McCloy’s chief concerns when it came to the Cold War continued to be East German or Soviet aggression, not West German resentment. The key issue plaguing West German hopelessness and irritability when it came to military affairs was the apparent erosion of American military power in Europe, not the number of former Wehrmacht officers behind bars, no matter how much publicity was garnered by the latter in the nationalist press. This would not change until later in the decade, long after the initial clemency decisions undermining the Nuremberg settlement had already been made, as later clemency and parole boards saw extensive and direct involvement from the West German government, including German board members and petitions and appeals filed directly by the Foreign Office on behalf of the remaining war criminals.90 Regardless of any frictions between American and West German politicians caused by the war criminals issue in 1950, the balance of considerations (foreign policy, German domestic policy, and world reaction to any clemency decisions) did not allow the West German government any direct or indirect involvement in McCloy’s decision-making process. The 1950 clemency review, which served as the model for all future sentence revisions, was an American affair focused on whether justice had been done at Nuremberg. From McCloy’s perspective, and the perspective of Acheson and other key policymakers in Washington, the war criminals issue was of minor importance compared with the crisis of confidence and defense policy sparked by the outbreak of the Korean War and subsequent fears of both nuclear escalation and the widening of the conflict to include the Soviet Union.91 If either of these eventualities came to pass, the implications for the security of Western Europe were dire, with West Germany facing an imminent invasion and further devastation in an American-led nuclear “liberation” of Europe. In this atmosphere of crisis, the fate of the Landsberg prisoners was an issue of little importance in determining whether the Germans would defend themselves. A 1953 report on the war crimes issue’s broader importance for American occupation policy prepared by the HICOG Office of Political Affairs for McCloy’s final successor as high commissioner, James B. Conant, noted that the Landsberg issue only began “adversely affecting” the development of a European Defense Community (EDC) in the fall of 1952.92

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co mparat i v e clemency: mo ti v es a n d i n s t i t u t i o n s Although it requires jumping forward in time, a comparison between the establishment and aims of McCloy’s Advisory Board in West Germany in 1950 and later American actions vis-à-vis Japanese war criminals in 1952 is illus­ trative of the intersection of legal and political rationales for clemency and American policymakers’ general preoccupation with the former over the latter despite the tense international situation. Much like in Germany, the Allied nations prosecuted Japanese war crimes collectively at the Nuremberg-style International Military Tribunal for the Far East, or “Tokyo War Crimes Trial,” from April 1946 to November 1948, and at separate later trials of individuals and small groups within the different national jurisdictions of the occupation. All in all, excluding those tried by the People’s Republic of China and the Soviet Union, by the early 1950s the United States, the Netherlands, Australia, the United Kingdom, Nationalist China (ROC), France, and the Philippines prosecuted 5,707 Japanese War Criminals in 2,362 separate trials. The United States alone accounted for 529 trials of 1,476 Japanese defendants.93 As in West Germany, the exigencies of the Cold War provided essential context for the American decision to revisit the convictions of the Japanese war criminals, even though concerns about justice and legitimacy were the primary motivation. Despite the efforts of General Douglas MacArthur and American occupation officials to purchase legitimacy by ensuring that none of the trials charged or implicated the Japanese emperor, the punishment of Japanese war criminals was widely resented in Japan. The war criminals issue was also a sensitive one for American allies in the region, particularly Chiang Kaishek’s beleaguered Republic of China, which had endured the bulk of wartime Japanese atrocities. Moreover, these tensions were heightened by the fact that, as in West Germany, the American occupation of Japan was strategically essential for Western military operations in the region, as Japan served as the staging ground and logistical support base for American and NATO operations during the Korean War. Yet as early as 1946, well before any such actions could be deemed politically expedient, American officials discussed reductions of the sentences of Japanese war criminals in the normative terms of the American penal system, suggesting rewards for “good behavior,” although these policies were not implemented at the time. Rather than wholesale revisions of sentences through mass amnesties or clemencies for the Japanese war criminals under American authority, MacArthur’s occupation administration instituted a similar system to that ultimately implemented in West Germany under McCloy. Japanese war

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criminals were eligible for parole after serving two-thirds of their sentences; 567 were paroled in this manner by August 1952, when the official Allied peace treaty with Japan, signed in San Francisco in September 1951, took effect.94 Although the American occupation of Japan formally ended in August 1952, Article 11 of the San Francisco Treaty stipulated that Japan recognized both the legitimacy of the sentences imposed on war criminals by the various Allied tribunals and that “the power to grant clemency, to reduce sentences and to parole with respect to such prisoners may not be exercised except on the decision of the Government or Governments which imposed the sentence in each instance, and on the recommendation of Japan.”95 The power to free Japanese war criminals convicted in American jurisdictions was thus the prerogative of only the president of the United States, as was the case in West Germany, where these powers were delegated to McCloy and Handy. As in the case of German war criminals, however, State Department legal advisors argued against any general amnesty, distinguishing between “political solutions” and “judicial solutions” to the problems posed by the continued incarceration of Japanese war criminals. Ultimately, in September 1952, the Truman administration selected legal advisor to the State Department and former chairman of its wartime Loyalty Review Board Conrad E. Snow (who had served on McCloy’s 1950 Advisory Board on Clemency for German War Criminals), to lead a similar three-member body to review the sentences of the Japanese prisoners. The decision to appoint Snow as the chairman of the Clemency and Parole Board for Japanese War Criminals affirmed Snow’s conception of clemency and parole as stemming from legal, rather than political, necessities. Snow, in fact, argued strongly that any general amnesty for the Japanese war criminals would undermine the 1945 Potsdam Declaration, which held that war criminals would be punished; “arouse a storm of indignation” in the United States; impugn both the fairness of the postwar trials and the validity of the convictions (thus violating the spirit of Article 11 of the recently signed peace treaty with Japan); and “discredit the quality of American justice” on the world stage. Instead, Snow argued, any releases should be based on “the accepted principles of clemency and parole,” such as mitigating circumstances or new evidence unconsidered by the courts, deteriorations in health, personal conduct, and adverse family circumstances. Much as with the German Advisory Board, policymakers and board members alike doggedly argued afterward that acts of clemency or grants of parole in Japan were entirely removed from political considerations. In early 1953, Roger Kent, a member of the three-man board, protested to Truman that, in practice, the distinction between the “legal”

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and “political” aspects of the board were artificial. As Kent explained, the board acted on recommendations from the Japanese government that were uniformly supportive of the prisoners, and it would be best to simply treat the clemency process as a mass amnesty for which the United States could extract some beneficial concessions from the new Japanese government. Snow, however, vehemently disagreed. When Kent wrote to Truman threatening to resign given his views that the security interests of the United States would be better served by a politically driven mass amnesty, Truman accepted Kent’s resignation.96 As in West Germany, once established, the clemency and parole bureaucracy was subject to politicization as befitting the ebbs and flows of the Cold War and US foreign policy. The creation of these institutions, however, was due primarily to a sincere desire to ensure that an American conception of justice prevailed. Late in life, McCloy maintained that his clemency decisions were not ­indicative of a policy shift in the US government or a political directive from the State Department. Suggestions that there was a political motivation for the clemency program, as presented in works such as William Manchester’s The Arms of Krupp, were “rank improvisations and utterly without basis,” and left McCloy “indignant.” Writing to former Einsatzgruppen Trial prosecutor Benjamin Ferencz in 1977, McCloy emphatically stated that he “never received the slightest indication from the U.S. Government, whether the White House, State Department or War Department, that any political consideration should be given to my reviews of the cases,” which also “had nothing whatever to do with Korea.”97 Writing to Telford Taylor in June 1984, McCloy remembered that, upon his appointment to the office of high commissioner, Secretary of State Acheson advised him “that I would have to deal with the clemency appeals . . . as an individual and as my conscience dictated.” McCloy continued, “I never received from him or any other government official or government agency the slightest intimation of what my course should be in passing on the judgments other than this conversation with Acheson.”98 Elaborating further on this important theme in an interview with Ferencz that same April, McCloy was careful to stress the lack of political interference from the Truman administration. McCloy explained, “And nobody in the government ever suggested anything we should do in regard to any of those cases. Acheson was the Secretary of State then, and he said, use your own God-given judgment, Jack, because nobody is going to tell you what you ought to do about those things. We’re sorry that you have to make these decisions, but, he said, you’ve got to get down

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on your knees . . . and choose who’s going to live and who’s going to die and whose liberties are to be taken away. We’re not going to help you.”99 Although Acheson was involved in approving McCloy’s policy to appoint a clemency panel and in discussions with McCloy as to the proper structure and function of the Advisory Board, he generally deferred to McCloy’s preferences and remained aloof from the case reviews. President Truman was occasionally lobbied by foreign officials such as former British foreign secretary and ambassador to the United States Lord Halifax to intervene on behalf of individual prisoners, but in these circumstances Truman took no action beyond passing the correspondence to Acheson for an official reply.100 McCloy was the driving force behind the creation of the board and possessed considerable freedom of action. The political realities of the Cold War indirectly influenced McCloy’s decision to review the Nuremberg sentences, but did not dictate his actions or approach. Heated congressional debates in 1947 and 1948 vis-à-vis the best and most practical disposition of American power in Germany framed the growing interest among certain policymakers, such as Senator Joseph McCarthy, in accusations from defense counsel that the US Army had tortured or otherwise violated the due process rights of German war criminals. Even though the charges of American impropriety were nearly exclusively bound up in the separate US Army’s Dachau trials, the Nuremberg defense attorneys were quick to publicly claim that their clients’ rights had been violated as well because of procedural irregularities, the denial of appropriate counsel, and improper handling of evidence. The appointment of subsequent investigatory bodies by the House and Senate served to normalize the idea that an appellate body of some kind should review all the sentences passed by American-zone tribunals since 1945, an idea ultimately embraced by McCloy upon the assumption of his duties as high commissioner in September 1949. In taking this decision, McCloy wished to restore the integrity of “American justice” on the world stage, conceived of as a rejection of the Soviet Union’s use of political terror, witness intimidation, and evidence fabrication. As such, it was McCloy’s conception of the United States as the embodiment of world freedom and home of due process under the law, as opposed to his need to appease activist West German politicians or obtain a West German contribution to European defense during the Korean War, that shaped his decision to empanel the Advisory Board on Clemency for German War Criminals. Whether the procedures McCloy established for adjudicating these matters were sound, however, is a different question.

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As we shall see, once the Advisory Board had been established, it was primarily legal concerns that shaped the board’s operating procedures. Their conceptions of “American justice” demanded that McCloy establish a parole system for war criminals commensurate with the norms of the American criminal justice system, consider exculpatory evidence that might free “innocent” men from Landsberg, and entertain criticisms of the Nuremberg tribunals’ conclusions without explicitly rejecting the facts upon which those conclusions were based. The board that emerged from this tortured and contradictory desire to ensure that justice was done by repudiating the Nuremberg tribunal findings as unjust was not quite a parole board nor was it an appellate court. Neither a parole board nor an appellate court would allow the prisoners and their attorneys an uncontested platform to challenge their sentences, presenting alternative narratives of persecution, victimhood, and innocence that could not readily be rebutted by prosecutors, judges, or evidence. It was this procedural ambiguity, couched in sincerely held ideals of “American justice,” that set the stage for the mass injustice to come.

ch a p te r t w o

Voices from Landsberg

Considering my comparatively modest rank, my restricted responsibility, the problematical nature of the legal questions involved . . . I feel the sentence to be excessive. . . . I was always prepared to bear my share of German guilt and defeat. But have I and my family not had to bear more than that? Clemency Petition of Hans Kehrl, June 25, 1950

To help the Advisory Board on Clemency for German War Criminals properly evaluate each case, in April 1950 every Nuremberg prisoner was encouraged to begin work on a series of new petitions for clemency. Unlike prior requests to Lucius Clay, John McCloy, or the Supreme Court for a new trial or sentence revision, these petitions were less concerned with the procedural aspects of the tribunals than they were holistic snapshots of the prisoners’ lives in and out of Landsberg. None expressed remorse. Offered the opportunity to repent and seek mercy from the US high commissioner for their diverse stations in the criminal apparatus of the Third Reich, the imprisoned doctors, judges, government bureaucrats, military officers, and SS commanders opted instead to relitigate their trials. They disputed evidence, discounted eyewitness testimony, and furthered narratives of victimization and unjust collective punishment at the hands of willfully ignorant and vengeful occupiers. The prisoners’ clemency petitions reflected the broader tendencies in West German political and military culture to privilege narratives of German victimhood and suffering while white-washing Nazi atrocities.1 While such sentiments had not swayed the judges at Nuremberg, they did help convince the Advisory Board and McCloy that mercy, even in the absence of contrition, was warranted. No matter a prisoner’s former position in the Nazi hierarchy or the length of their sentence, the petitions were governed by the same rules: the prisoner was to present a brief biography, comment on their trial and state why they were worthy of clemency, and conclude with a holistic evaluation of their hard51

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ships and family circumstances. Given these guidelines, the petitions’ autobiographical structure reinforced an already-present tendency toward narratives of individual and national victimhood and persecution. These petitions did not go so far as to justify the subjects’ wartime activities through the kinds of appeals to ethnocentric conceptions of morality that prioritized the survival and flourishing of the German Volk above all other Judeo-Christian precepts of right and wrong. But the brief self-examinations nonetheless revealed a blinkered view of the dictatorship, the war, and the prisoners’ role in it.2 To the extent that the prisoners expressed regret, it was not for the atrocities they committed in the service of Hitler’s war, but for the great tragedy that had befallen their families and their nation in the aftermath. They claimed that they were men or women of upstanding character and morals from good bourgeois households and families. They insisted that they were not ideologues, but apolitical patriots who had served their country faithfully in a war against the alien threat of Bolshevism, a struggle of utmost importance not only for Germany but for world civilization. They saw themselves as victims of Allied vengeance and judicial malfeasance—understandable given the passions aroused by the war, but a grave injustice nonetheless that required immediate correction. They contended that the evidence deployed against them at Nuremberg was flimsy, forged, or taken out of context—that witnesses had lied or were mistaken—and that they (apart from the few Einsatzgruppen officers and military commanders who admitted otherwise) had no knowledge of or involvement in any of the atrocities of the regime. In short, the petitioners portrayed themselves as the true victims of Nazism and its collapse. From the perspective of the Advisory Board, all of these tropes were far more palatable than attempts at outright justification of criminal actions through appeals to superior orders.3 The board justified its own recommendations with arguments prisoners made in their petitions, which, in the absence of prosecutorial input or reference to the full evidentiary record, provided a binary view of the tribunals, pitting the sometimes vaguely written judgments against the sympathetic and detailed personal narratives crafted by the prisoners and their defense attorneys. There were “good men” among the prisoners who had not been Nazi Party fanatics. No matter their crimes, some prisoners’ physical and mental health were deteriorating because of their imprisonment; it would be unjust to keep them jailed. The rush to judgment in the aftermath of the war meant that important facts had been overlooked, ignored, or hidden by the prosecution. The tribunals did not understand the real structure of authority in the Nazi dictatorship, and so had disproportionately punished individuals

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who were not actually responsible for their actions, or had no choice but to commit crimes because of their fears of state retribution against themselves or their families. These objections had already been litigated and dismissed at the trials and in Clay’s sentence reviews, but remained prevalent in both West German and American public discourse, and so would not have struck the Advisory Board as beyond the pale.4 The Landsberg prisoners’ 1950 petitions for clemency are replete with lies, half-truths, and obfuscations, which makes them a dangerous source upon which to rely. Nevertheless, they are valuable resources for understanding both the mindsets of the prisoners and how the prisoners relayed tropes of persecution and injustice to a credulous Advisory Board. This chapter is not, then, an affirmation of the “banality of evil” but rather an examination of the cognitive dissonance among the Landsberg prisoners, who, regardless of how they had behaved during the war, saw no connection between their actions and the suffering of others.5 Prompted to reflect on the findings of the tribunals and humanize themselves for the board, how did the prisoners respond? What stories did the prisoners tell themselves and the board about their past? The clemency petitions are valuable in answering these questions since the narratives of victimization they shared with the Advisory Board are consistent with the private laments they shared with prison chaplains and family members.6 In this way, the prisoner autobiographies of 1950 explaining why and how (from the prisoners’ perspectives) they came to Landsberg serve as useful companions to the six hundred autobiographies of prominent Nazis collected by American sociologist Theodore Abel in 1934: taken together, the narratives illustrate how individuals from various social, class, and political backgrounds justified their support for Nazism.7 In analyzing the petitions and the self-exculpatory narratives they constructed, I have chosen to omit all but the most general information about the prisoners’ former positions in the Third Reich or the specific crimes for which they were convicted. This is because even when rebutting the findings of the tribunal, the prisoners only spoke of their crimes in the vaguest of terms, forcing the competing narratives of the victims, witnesses, prosecutors, and tribunal judgments into the background. As such, in this chapter, I allow the prisoners to once again speak for themselves, not to lend legitimacy to their tendentious interpretations, but because this is how the Advisory Board encountered them in their own reading of the files.8 Descriptions of the petitioners’ crimes appear in the following two chapters, which address the recommendations the Advisory Board made to McCloy based on these petitions.

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shat tered li v es The clemency petitions sought to humanize the prisoners. After all, these were not lawyerly refutations of evidence, although the former lawyers among the imprisoned did add those as well, and earlier petitions and appeals by defense counsel were available for the board’s perusal if they chose to view them. Instead, the prisoners’ own voices dominated the files. In their testimonies and the accompanying affidavits, medical records, and summaries of the daily routines of confinement, the prisoners’ appeals to the Advisory Board portrayed the shattered lives of the war criminals and their families in detail. Lost among this wreckage were the voices of the victims of National Socialist policies, as the clemency petitions endeavored to refocus the narrative of the Third Reich on a new class of victims: the prisoners themselves. The 1950 clemency petitions had a standard anatomy. First came a data sheet, signed by Landsberg Prison director Col. W. R. Graham, containing basic biographical information about the prisoner in question, such as relatives’ contact information, the number of minor children in their family, and their educational and professional histories. Additionally, the data sheet provided information about the prisoner’s sentence and work assignments in Landsberg (gardening detail, infirmary, carpentry shop, or, in one instance, violinist in the prison orchestra), which, in addition to describing the prisoner’s conduct also indirectly addressed whether they used their time productively.9 This section included brief contextualizing information such as whether prisoners had meaningfully attempted to better themselves while serving their sentences through learning a foreign language or trade or teaching one to others, and whether they obeyed their warders’ rules. After describing any rules violations and subsequent punishments the prisoner had received during their stay in Landsberg, the data sheet invited Graham to provide an overall conduct evaluation and an answer to the question “Would he make a good citizen if released?” Nearly invariably, the responses were “excellent” for the former and “yes” for the latter, although there were exceptions. The death row inmates, for instance, were rated as “unknown” on the “good citizen” question, since they were generally kept isolated from the rest of the prisoners, unable to establish a pattern of socialization or self-improvement. As for conduct violations, Lothar Fendler’s file, for instance, indicated that he had broken prison rules on multiple occasions, possessing an unauthorized candle in his cell, speaking to a death row prisoner (an act that was strictly forbidden), and failing to carry his identity card. For these infractions he was punished first through the revocation of fifteen days of good-­

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conduct time and, when the offenses persisted, through the removal of educational privileges for one year. Graham thus answered the question of whether Fendler would make a “good citizen” in the future not as “yes” but as “probably”; this was as negative an evaluation as existed in all the cases considered by the Advisory Board.10 The data sheet was followed by a medical history and the results of the prisoner’s most recent physical exam, noting any health problems and their treatments. Thirty-four of the Nuremberg prisoner files also included the findings of a separate neurological and psychiatric examination conducted by Dr. J. Bruce Spradley at the behest of the Advisory Board. Internal correspondence indicated that Spradley’s services were “not requested early enough” to provide sufficient time to examine all the prisoners.11 Next was a more thorough data sheet provided by the West German Ministry of Justice describing the results of their own investigations into the prisoners’ backgrounds and current family status. These reports provided information on the potential reintegration of the prisoners into West German society, noting the whereabouts and occupations of their families and further detailing the prisoners’ education and plans for employment if released.12 Last, and most importantly, in personal statements of varying length the prisoners themselves described their personal histories and the rationale behind their requests for clemency. In addition to contesting the findings of the tribunals on both legal and factual grounds, these personal statements served to introduce affidavits from the prisoners’ supporters attesting to the good character of the inmate, describing the trying personal circumstances of the prisoner or their family members, or offering “new” exculpatory evidence. Health records attested to the inmates’ suffering. The prisoners frequently complained of the negative physical effects of their incarceration, which they attributed both to the strains of prison life and to constant worry over the fate of their often impoverished families. To some extent this correlation was merited, as many medical charts indicated that the prisoners suffered from drastic, likely stress-induced weight loss during the initial period of their confinement. As the inmates settled into the routines of prison life and their health stabilized, however, common ailments such as heart disease, high blood pressure, edema, and hardening of the arteries were still attributed to the strains of confinement when they might otherwise have been explained by age, particularly given the prisoners’ demographic profile: nearly all men of middle age or older, most of whom were smokers. Regardless of the cause, such endemic medical issues raised thorny inter-

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pretive questions for the Advisory Board to resolve. Walter Kuntze, for example, a sixty-seven-year-old former general, complained of incessant heart troubles, including palpitations, hypertension, and arterial sclerosis. During Kuntze’s physical and psychiatric examination in June 1950, Dr. Spradley notified the board of Kuntze’s “poor” physical condition, which included an alarmingly high blood pressure reading. Spradley concluded that Kuntze was “approaching the physical state where severe cardiac complications can be expected, and life expectancy is estimated at not more than three years.” In the improbable eventuality that Kuntze lived longer, he would likely require special care.13 In cases such as Kuntze’s, if the tribunals had sentenced an individual defendant to less than a life term, what was the proper course of action for a prisoner of deteriorating health who might either die in prison or shortly after their scheduled release? If the tribunal had meant for a given defendant to spend the rest of their natural life in prison, would they not have sentenced the prisoner accordingly? Were those prisoners with serious medical conditions automatically entitled to clemency, no matter the length of their sentence? As the prisoners aged, HICOG would revisit these questions again and again. The psychiatric evaluations provided by Dr. Spradley also served to inform the Advisory Board about the overall effects of prolonged confinement on the prisoners’ mental ability to rejoin society successfully. In nearly all cases, Spradley reported that the prisoners were psychologically well, if somewhat dispirited about their circumstances. For instance, Spradley found former physician Hermann Becker-Freysing a “well adjusted individual” whose work assignment as prison doctor allowed him to feel connected to his pre-confinement life—a connection that proved “very helpful in maintaining normal emotional reaction.”14 Others, such as RuSHA convict Heinz Brückner, were troubled by outside circumstances. At the time of Spradley’s interview in June 1950, Brückner was suffering from an acute “reactive depression” following the tragic death of his eight-year-old son in an automobile accident and the evident deterioration in his wife’s physical health since. While Spradley noted there was not yet evidence of a psychotic break, he recommended that Brückner be carefully monitored, lest continued strains relating to his family lead to suicidal tendencies.15 There were exceptions to Spradley’s generally optimistic reports, however. He judged former Einsatzgruppen commander Heinz Jost “a cold, calculating type of individual” with “a well developed sadistic drive.” Jost’s future potential as a productive member of West German society was poor, since “should circumstances ever again allow it, there will be a resurgence of this tendency.”

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Jost was likely to be a “troublemaker within or without the prison if the opportunity allows.”16 Yet Spradley’s evaluations were not purely clinical, occasionally drifting into advocacy on behalf of the inmate, particularly if the inmate was a fellow physician with whom Spradley identified professionally. In his evaluation of Wilhelm Beigelböck, who had conducted seawater experiments on concentration camp inmates at Dachau (monitoring the physiological effects of human consumption of seawater and testing experimental methods of making sea­ water potable), Spradley commented more on the prisoner’s experiments than on the prisoner himself. Spradley described Beigelböck’s work as providing “a great deal of information . . . a definite contribution to our analysis of blood chemistry and certain phases of metabolism.” Although Spradley was aware that Beigelböck had experimented on concentration camp inmates without their consent, the experiments themselves were “highly scientific” and he was assured that the concentration camp inmates (Spradley referred to them as “patients”) “enjoyed excellent medical supervision . . . and there were no fatalities or complicating sequelae.” Spradley went on to praise the medical research Beigelböck had conducted while employed by the Landsberg Prison hospital and closed with a plea to the board to “give some weight to the scientific potentialities of his efforts, if released.”17 Spradley’s impromptu affidavit on Beigelböck’s behest was certainly not the only good character reference in the files, as the petitioners often submitted supportive affidavits to the Advisory Board. Generally, these were from minor political officials, clergy, or former colleagues who could attest to their good character, morals, and conduct during the war. Former Einsatzgruppen commander Erich Naumann, for example, submitted thirty-four affidavits attesting to his character.18 Occasionally, on account of their high rank in the Nazi regime, the prisoner could provide contact information for notable foreign officials. A number of Wehrmacht generals referenced their close cooperation with the US Army Historical Division—preparing manuscripts and reminiscences for the official history of World War II, as well as providing assessments on “lessons learned” in the ground war with the Soviet Union for training purposes—as evidence of their good character.19 In addition to third-party character references, prisoners often highlighted the enduring suffering of their family members, who, due to their patriarch’s imprisonment, struggled to make ends meet in an unstable postwar world.20 Common elements appearing in nearly every petition included laments about property losses and asset seizures (as a result of either the Allied bombing

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campaigns, looting, or official requisition by the occupation administrations), forced or chaotic relocations (especially flight from the Soviet zone of occupation), and losses of savings due to the 1948 introduction of the deutsche mark at an unfavorable exchange rate of 1:10 with previous cash holdings. Within this standard framework, the prisoners filled in the unique details of their families’ plights. Hans Baier, former chief of staff of SS economic enterprises, lamented the trials his wife and three daughters had endured since 1945, including the seizure of all his family’s furniture and other household belongings with no hope of compensation. As of June 1950, Baier’s family was living in “emergency lodging” with “very poor furniture”; his wife and eldest daughter, who had tested at the top of her class in university placement examinations in 1948 but was financially unable to pursue further education, were barely able to support themselves and his two younger daughters with meagre wages from part-time employment.21 Karl Mummenthey, imprisoned on slave labor charges, echoed the grievances of many when he informed the board that, given his family’s rapid descent into abject poverty in his absence, “It is not I, but my family who has really been punished. . . . This is what pursues me until I fall asleep. This is what makes the imprisonment a torture to me.”22 Reflecting on the deterioration of his family’s circumstances since 1945, former judge Oswald Rothaug’s musings, meanwhile, were distinctly morbid: “This life of permanent defamation to which we are exposed in our situation, of permanent neglect and economic misery leads to the idea that death is the best solution of our problems.”23 Tales of retribution visited on prisoners’ families also featured prominently in the petitions. As relations of prominent Nazi officials, the spouses of Nuremberg war criminals were barred from certain categories of employment. Former economic official Hans Kehrl’s wife, Erika, for example, was unable to work as a teacher despite thirty years of experience, earning a precarious living as a private tutor instead.24 Former Einsatzgruppen commander Walter Blume mourned his wife’s treatment by the Red Army in the eastern zone, which included forced labor in addition to the usual confiscation of property. “In spite of her pregnancy,” Blume wrote, “she was commanded as wife of an SS officer to continually clean the privies in one of the hospitals.”25 Such tales, however, were not limited to the Soviet zone of occupation. As former chief of the Reich Chancellery Hans Heinrich Lammers claimed, detailing the chaos wrought on his family, after the May 1945 occupation, “numerous lootings, rape of women, etc. took place” in Berchtesgaden at the hands of vengeful American and French

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troops. Lammers continued, “French soldiers forcibly entered the home of my 51 years old wife who, because of the pressure enacted by these soldiers, took her own life. The day after my second, 26 years old daughter shot herself under the same circumstances.”26 In the prisoners’ views, these tragedies were direct consequences of their unjustified imprisonment. The petitions frequently included supporting documents from family members begging for mercy on behalf of their loved ones, expressing their postwar plight in deeply personal terms while legitimizing their spouse or kin’s self-serving narratives of innocence.27 Letters in support of Fritz Fischer, sentenced to life in the Doctors Trial for crimes against humanity, included emotional pleas from his wife and father. “Please give me back my son,” ­Fischer’s eighty-three-year-old father wrote. “He is my only son and my one and all. At my old age he is it alone which keeps me living.” Noting as a testament to his good character that his son had lost an arm in the war but nonetheless continued to serve as a physician in military hospitals, Ernst Fischer concluded his missive to the Advisory Board with “My only wish is that I may live long enough to see my good boy released.”28 Fischer’s wife Magdalene was equally forceful in her plea for mercy, beginning her letter to the board with a description of the “misfortune and sorrows” that had befallen the Fischer family since Magdalene and Fritz’s marriage early in the war. In 1944, Fritz had lost his right arm while serving at a field hospital at the front. This was followed by Magdalene and Fritz having to flee Berlin for her father’s property in Westphalia in the spring of 1945, leaving all their possessions behind. Then came Fritz’s arrest in July 1945, two weeks before the birth of his youngest child, and, after two years of anxious waiting, Fritz’s trial and sentence to a lifetime of imprisonment. Magdalene, thirty years old in 1950, was left residing with her infirm father-in-law and three children aged seven and a half, six, and five. Her sister-in-law was a widow with young children of her own to support, and Magdalene’s own sister’s husband had gone missing on the Eastern Front. How was this makeshift family of survivors to support itself with Fritz, the only man of working age, in Landsberg? Begging for “an opportunity to start life again” with her husband, Magdalene admonished the panel, “If you who are Americans reared up in liberty believe that my husband has sinned by having been willing to be unreservedly faithful and obedient to his country, has he not atoned for such fault all the past five years we have missed him?”29 Missing, of course, from these letters of support was any conception of what Fritz Fischer had actually done during the war as

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part of this service to his country—the purposeful injury and mutilation of concentration camp prisoners in order to test the efficacy of experimental medical treatments, with deadly results. Letters like Magdalene Fischer’s, with their emphasis on the necessity of a male breadwinner for the functioning of the family, couched their requests for mercy in the gendered language of the “proper” male familial role. Paul Körner’s eighty-two-year-old mother, Melanie, for example, explained that Paul was “the only male survivor of a onetime large and happy family” and was “urgently needed” to support the women. According to Melanie, Paul Körner’s father had passed away long ago, his two brothers had died in the First World War, his two nephews had died in the Second World War, his brother-in-law had “died of starvation in a Russian concentration camp in 1946,” and his youngest sister Lotte “was murdered together with her husband Carl-Ferdinand and her small ten year old son Carl-Hermann by the Russians or Czechs in Czechoslovakia at the end of the war.” As a result, Melanie reiterated, “It can be seen from the above facts how urgently the rest of my family need male support,” expressing that she would be “infinitely grateful” if McCloy could give her back her son.30

upst an d i ng mo rals and characte r Prisoners also invoked bourgeois ancestors, values, and upbringings to justify their requests for early release. They came from good families, were industrious and highly educated; surely the tribunals had erred in attributing such heinous crimes to them? Karl Mummenthey informed the Advisory Board that he “descend[ed] from an old distinguished family . . . of free farmers, craftsmen, miners, and public officials,” which “obliges me to fight for my rehabilitation.” They had raised him with “a sense of duty and correct behavior in life.”31 Einsatzgruppen leader Walter Blume described the “very harmonious wedlock” of his parents, noting that his father (a professor) had instilled in him a love of learning and philosophy as part of a “careful intellectual and psychic education.” Blume’s activities in prison served as proof of his dedi­ cation to upholding his father’s humanist legacy—Blume’s 1950 petition for clemency was his first because “To meditate upon the meaning of human life and death appeared to me to be of more importance than to concentrate my ideas on the possibility of evading physical extermination.”32 Meanwhile, former Wehrmacht general Georg-Hans Reinhardt, whose father had been the owner of a small bank in Saxony, claimed his education as a young soldier and officer imparted virtues that endured over his forty years of military service.

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Reinhardt explained, “Honourableness, unconditional faithfulness to duty and, in accordance with my Military Oath, a feeling of being strictly bound to the Service I had to render to my Sovereign, my people and my Fatherland—those were the principles I grew up with, by which I lived and thought, and on which I rendered my services.”33 For a man of his character, Reinhardt’s convictions on base criminal charges were incomprehensible—this was not the biography of a murderer. The petitioners attempted to draw a clear line from the values imparted by their families to their wartime conduct, guarding against societal degradations wrought by “bolshevist” principles. In discussing his personal biography and the court’s judgment against him, former Einsatzgruppen commander Heinz Jost offered the board his assurances that he came from a good family “where morals, sense of duty, decency, religiousness and patriotism were estimated as the highest virtues, which were the principles of my education.” Like many other officers of the Reichssicherheitshauptamt (Reich Security Main Office [RSHA]), Jost also noted the importance of “the breakdown of law and morals, the economic collapse, the inflation connected with horrible consequences, the social emergency, the threat of chaos and the danger of bolshevism in Germany” following World War I as central markers in his development.34 As a patriot interested in “giving back the right of life and dignity to the working classes” of Germany, Jost joined the Nazi Party and pursued a career in state administration, “giv[ing] up my independent profession as a lawyer, which I liked very much.” Jost had thus sacrificed the promise of material gain to serve his fellow countrymen in their time of struggle; his motives were pure. He also maintained that whatever his actions during the war, he was still guided by these firm moral convictions, lamenting that “the resolutions and orders of superiors often were in contradiction to my own realizations and wishes. . . . I endeavored nevertheless, in spite of all difficulties, to act according to my principles.”35 Numerous petitioners were careful to underscore their lifelong commitment to Catholic or Evangelical Christianity as manifesting another implicit rejection of Nazi political fanaticism, setting them apart from both the atheistic elements in the Nazi hierarchy and the notorious “German Christian Movement” that attempted to form a synthesis between the New Testament and party ideology.36 Former military physician Siegfried Handloser, for example, described himself as coming from a family of “very strong Catholics,” and noted that even in the face of state hostility he “always stayed with the church,” such as when he protested against the regime’s attack on the employment of

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Catholic nuns and clergymen as healers and chaplains in army hospitals.37 Former Einsatzkommando commander Ernst Biberstein drew the board’s attention to his youth’s ambition to become a Lutheran pastor, which was “decisive for the development of my character when I was young.” Biberstein noted that he had served the church in Schleswig-Holstein from 1924 to 1935, resigning to join the Reich Ministry of Church Affairs as a theological expert because of a “rift” with local Nazi German Christian officials who sabotaged his appointment as a state bishop. Even though his journey through government service would end with the command of a killing unit in the East, Biberstein maintained that he remained a practicing clergyman, able to preach and administer the sacraments, and was thus of noble character.38 In his explanation of why he had served Hitler faithfully from 1933 to 1945 even though he claimed to have objected to many of the tenets of Nazism, Hans Heinrich Lammers forged a link between his duties as a Christian and his duties as a civil servant who had come of age in Imperial Germany. By tradition, Lammers explained, the civil servant was “bound to the service of the state for life,” and so Lammers had continued his work uninterrupted by the collapse of the German Empire in 1918 or the Nazi dismantling of the Weimar Republic in 1933. In this capacity, Lammers unquestioningly implemented government directives, comforted by both “the principles of ethics and by re­ ligion (Letters of Paulus to the Romans, Chapter 13, Par. 1: ‘Everyone shall subject himself to the authority which has power over him. Because there is no authority without it being from God; where there is authority, it has been ordained by God’).”39 Einsatzgruppen commander Gustav Nosske offered a similar rationale for his continued service to the state even in the face of his orders to commit murder in the East, noting that his strict Lutheran upbringing had erased “any doubts as to the supremacy of the state.”40 Some prisoners opted instead to demonstrate their good character by portraying their time in prison as a period of stoic reflection and self-improvement. Leo Volk, a former legal official in the SS Wirtschafts Verwaltungshauptamt (SS Economic and Administrative Main Office [WVHA]), highlighted his industriousness and initiative in Landsberg: “Being a professional man, I find physical work hard, in spite of this I always applied to physical work and worked intentionally and energetically.” For Volk and others, there was a direct connection between hard work in Landsberg and the firm moral foundations that made their continued residence there inappropriate. Volk had used his time in prison to study tax law and so hoped to be a tax consultant in his next life, allowing him to “raise the social standard of my family and to bring up my boys in awe

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to God.”41 Former RuSHA administrator Herbert Hübner expressed similar hopes for the future, writing that five years in Landsberg had “cleared my mind and given me an understanding” of past errors and “taught me the wholesome lesson to commit myself in the future to nothing but my professional interests. . . . For that reason I have made good use of the time of my detention here with the aim of improving and widening my professional knowledge by working hard.” He too had taken courses in Landsberg in hopes of becoming a tax consultant.42 There was also a character-based subtext to the petitioners’ invocation of their families’ postwar victimhood and suffering. They demonstrated that, because of their disdain for public charity and aspirations to re-establish themselves as the breadwinner for their families, they were not deviant personalities or common criminals, but rather normal members of middle-class society who were worthy of the board’s sympathy. Felix Rühl, a former officer in both the Gestapo and Einsatzgruppen, wrote that he initially decided to seek employment with the police in 1931 in order “to avoid becoming a burden to my parents as one of the unemployed,” and lamented that his imprisonment had resulted in his wife having to support their five-year-old child. In order to save his wife and child from their current precarious situation and “not become a charge of public charity,” Rühl reported that he had “made use of all opportunities offered during my confinement in vocational and educational courses, including the attendance of language-, accounting-, and law-courses, and have also learned the trade of a locksmith . . . through hard work for the purpose of taking care of my family.”43 Hans Lörner, a former accountant in the WVHA, also explicitly couched his final plea for mercy in such terms, lamenting, “If I still should have to serve my time, I should be too old, ever to be inserted again into any occupation. My wife and myself should become a burden to the Welfare-center.”44

a po li ti cal pa tri o ts If prisoners’ discussions of bourgeois mores, their upbringing, and their Christian faith served to distance them from the now-tabooed cultural and ideological values of National Socialism, direct denunciations of Nazism were also common. For the few prisoners who had never joined the party, this provided an opportunity to highlight why Nazism had never appealed to their sensibilities. Most of the prisoners, however, had been party members, Sturmabteilung (Brown Shirts [SA]), or SS—all deemed criminal organizations by Control Council Law 10. This required an explanation, and the prisoners went

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to great lengths to convince the board that they had joined the party only because of naïveté, opportunism, or fear. Many portrayed their early support for Nazism as an understandable reaction to the trauma of the First World War and the economic and political catastrophes that followed.45 They had certainly not ascribed to any of Hitler’s racist and anti-Semitic conspiracies and claimed to feel nothing but contempt for Hitler’s war leadership and his broken promises about Germany’s renewal. Some petitioners, such as concentration camp official Hermann Pook, attempted to distinguish their SS membership from their political beliefs, given the widespread Gleichschaltung (coordination) of private and public organizations with the party. Pook explained that he had joined the SS “out of purely sportly interests,” since “the Horse Riding Club to which I belonged and which performed its activities in a State owned Riding Academy, was transformed into an SS horse-riding unit” after 1933.46 More common, however, were petitioners distancing themselves from the regime’s crimes by explaining that their membership in the SS or Nazi Party was exclusively oriented against the threat of Bolshevism at home, rather than a demonstration of enthusiasm for racism, anti-Semitism, or war. August Frank explained, “I became a member of the SS in 1932, being endeavored to belong to a troop of order, which would be able to meet the threatening danger of a communistic revolution. . . . At that time no SS man thought that the SS troop could possibly be misused for crimes against humanity or anti-jewish pogroms.” Frank provided documents detailing how he had “enabled” his Jewish brother-in-law to escape to Italy in 1939, implying that he was therefore no anti-Semite, in spite of his administrative role in the concentration camp empire.47 Karl Genzken, who rose to become the chief medical officer of the SS, noted that he became a party member only out of “pure idealism,” having seen as a rural physician “how the German youth, unemployed, being corrupted, were hanging around the streets. . . . As a family doctor I saw the want, destitution and desperation in the homes of my patients.” Whether these scenes of desperation occurred in 1926 when he joined the Nazi Party or later, during the Depression, Genzken did not say. Regardless, Genzken claimed that it “was only after the surrender” that “my eyes were opened about many of the abominable things that occurred in the Third Reich.”48 In his petition for clemency, Waldemar Klingelhöfer, originally sentenced to death at the Einsatzgruppen Trial for his command role in the mass murder of Jews and other civilians in the East, sought to prove “that I personally, neither by descent nor by education and professional training or, what is more,

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by talents, am capable of committing acts . . . for which death penalty is the only expiation applicable.” In relating his biography (born in Moscow in 1900 and expelled from Russia along with his family—deemed hostile German ­nationals—upon the outbreak of the First World War), Klingelhöfer claimed that his personal experience as a destitute refugee taught him “to absolutely pay my respects to members of other nations and peoples in the political as well as in the human view.” He insisted, “I always, at the bottom of my heart, have been a stranger to narrow-minded fanaticism, exaggerated nationalism, and intolerance.” A talented singer, Klingelhöfer had made a comfortable living in Germany until his career was cut short by a severe respiratory illness in late 1934. Seeking new prospects and already having joined the SS in February 1933, Klingelhöfer accepted a position as an intelligence officer in Kassel in December 1934, where his frequent travels abroad and knowledge of the Russian language were valuable assets. Klingelhöfer rose steadily through the ranks of the Sicherheitsdienst (Security Service [SD]), eventually becoming a section chief and holding that rank until his deployment with the mobile killing units in June 1941. Klingelhöfer assured the Advisory Board that in accepting these duties, apart from a well-justified “conviction of the dangerousness and destructiveness of communism and bolshevism”—based on his familiarity with the Russian Revolution and his firsthand experience living through the communist uprising of the German Spartacists in 1918—he was expressly nonpolitical. He had joined the Nazi Party in 1930 only to lend support to their platform of curbing the communist menace; indeed, he maintained professional relationships with Jews because “I neither have had any feeling of hatred against the Jewish people as a whole and the individual in particular nor do I have such a feeling now.” The reason for Klingelhöfer’s wartime actions, then, was not fanaticism but love of country—he had no personal loyalty to Hitler or Nazi ideology, merely an unshakeable duty to protect his country from communism. “I was standing at the front as a soldier,” Klingelhöfer wrote, “and had to unconditionally execute orders of which I had to assume that they were considered as absolutely necessary and requisite for the realization of victory and, thereby, for the suppression of bolshevism.”49 If these sorts of rationalizations were common fodder for defendants in the concentration camp administration or Einsatzgruppen Trials, then Wehrmacht officers sentenced before the tribunal went even further in denying any political engagement with National Socialism. Wehrmacht physician Siegfried Handloser wrote that he “was convinced of the correctness of the old tradition, according to which the Wehrmacht should stay out of political affairs,” and so

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neither he nor his wife had joined or served the party in any capacity.50 In this way, former Army Group North commander Georg von Küchler spoke for many of his colleagues when he explained that he continued to serve the state despite his personal antipathy for National Socialism because “Hitler seemed to have come into power legally.” Once the war broke out, Küchler was duty-­ bound to stand his post for the sake of his national comrades.51 In conceptualizing their service as nonpolitical, former officers obscured the key reason for their imprisonment, which was not their continued service in the Wehrmacht after 1933, but rather how they had conducted themselves in the war. The Allies, after all, did not designate the German armed forces a “criminal organization,” as they had the Nazi Party or SS. Despite the best efforts of nationalist propagandists to delegitimize the results of the Nuremberg tribunals as a collective indictment that robbed the entire German officer corps of its honor, the verdicts were based on individual criminal acts. An abstract discussion about patriotism, honor, and duty to serve the nation did not address these. Yet it is important to underscore that, particularly for the military officers and civil servants, their self-conception as apolitical professionals did not mean they were devoid of political ideas. Quite the opposite, in fact. According to former Luftwaffe field marshal Erhard Milch, the ethos of professional service that defined the military officer class in the Kaiserreich was organized around an absolutist conception of state power and disdain for democratic institutions. Describing the politics of the German officer corps prior to the First World War, Milch confessed, “Parliament did not mean anything to us, we were brought up to look upon it as a talk-center. . . . Only the Emperor represented the will of the people.” Officers who dissented from this consensus were “rejected as traitors.” Milch’s loyalty to the kaiser then passed to President Paul von Hindenburg, who in turn legitimized the ascension of Hitler in 1933. In his petition, Milch argued that authoritarian tendencies, inculcated in him from a young age, excused his unquestioning devotion to the state from 1933 to 1945.52 Even if dodging responsibility for his wartime actions was Milch’s primary motivation, however, it remained illustrative of the fact that although the officers in Landsberg insisted they were apolitical (they did not vote and rarely joined or publicly endorsed parties, or supported them financially), the types of activities Wehrmacht officers engaged in and the choices they made in the interwar period and beyond were expressly political.53 Collectively, there was very little they would not accommodate or do in order to save Germany from the political left. In explaining his choice to back the National Socialists in what he saw as the bipolar struggle for Germany’s soul—either communism

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or National Socialism would prevail—Milch characterized the Nazi Party as “the smaller mischief.” Moreover, like many of his colleagues’, Milch’s personal biography was contradictory; after all the paeans to the idea of a non­ political officer class, several pages later Milch wrote that after meeting Hitler and Hermann Göring for the first time, he joined the Nazi Party, having “had a liking all the time” for their ideas.54 Petitioners also invoked their antipathy to the Soviet Union as proof that they deserved mercy, since their political, moral, and spiritual sympathies were distinctly “Western” in orientation. Erich Müller, a former weapons engineer for Krupp, wrote that “as a man of definitely Western thinking” and “an ad­ herent of the Western way of thinking and living,” he both volunteered his extensive experience designing arms to the US Army in 1949 and had already “refused an offer made to me in July, 1945, before my arrest by the British, to work for Soviet Russia.”55 Former SS general Gottlob Berger, on the other hand, railed against the Korean War as indicative of the “latest crimes of Bolshevism,” which had “proved to all the world again exactly what its real nature and aims in world politics are.” It was important for the Americans to remember that “the dreadful crimes and the malicious and criminal way of fighting of the North Korean bands . . . are not the fault of the North Koreans only: they are inspired by Bolshevism,” and “in such a deadly fight between good and evil there ought to be applied principles and measures different from those valiant under normal conditions.”56 Berger cited Soviet aggression in the present as mitigating his own actions in the past, characterizing all he had done as a defensive response to the great dangers Bolshevism posed to Germany. As a wounded veteran returning home in 1918 and a teacher, Berger had wanted nothing more than “to serve the idea of peace . . . and to strive for a better future by promoting genuine understanding between peoples.” But the riots, strikes, and street violence in Germany in the 1920s, for which the communists alone bore responsibility, and the fact that the Weimar government “did not seem to be powerful enough to prevent Bolshevist terrorization of the German people in a legal way” called Berger back to arms. He became a Nazi to fight the Bolsheviks and “save our German fatherland from chaos.” Of course, Berger explained, racism and anti-­ Semitism had nothing to do with his actions—every promotion and assignment, including his responsibilities for administering the Waffen-SS and SS prisoner of war camps as a direct deputy to Heinrich Himmler were exclusively the result of his anti-communism. Disavowing all forms of racism and knowledge of the Nazi regime’s crimes, Berger wrote, “I have never judged

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persons, even if they belonged to our enemies, by any other measure but their own deeds, as I knew perfectly well that there are as many good French or good Russians as there are good Germans, and that, on the other hand, there are criminals among all the nations.” Berger even claimed to have “passionately opposed” Germany’s war with the Soviet Union, “as far as I saw Germany would be subject to Bolshevist terror from outside in case she was defeated in her fight against the Asiatic danger of Stalinism.” When war did break out, however, it was his duty as a soldier, patriot, and protector of Germany to answer the call of the state. While “history has given a verdict to my former political views as a National Socialist,” Berger felt vindicated, at least, in his hatred of “World Bolshevism” as the foremost danger to civilization.57

cri mes and p u ni shments Most prisoners devoted space in their petitions to objecting to or delegitimizing their convictions. In contesting the findings of the tribunals, the clemency petitions of 1950 were not entirely original, drawing on years of argumentation set down in prior petitions to Lucius Clay and the US Supreme Court, and reaching back to arguments made by defense attorneys at the tribunals themselves.58 Petitioners described prosecution and rebuttal witnesses as not credible or otherwise unreliable, as opposed to the highly credible but unfortunately often un-locatable defense witnesses. The documentary evidence upon which the judgments relied had been misconstrued by the prosecution, was fake or forged, or was otherwise “invalid” in some way.59 Official titles such as “office-head” in the WVHA, RSHA, or SS or the title of “deputy” to an important figure in the Nazi regime were titles only, “without any real authority and power.”60 The judgments too were invalid, or as one inmate contended, based on “assumptions and deductions” that went well beyond the evidence.61 Specific instances of war crimes or crimes against humanity were not crimes at all, either because the petitioner claimed ignorance of their existence or because they occurred as a result of legally binding orders from a higher authority. In any event, most petitioners claimed that they were absent from their posts at the crucial moment of action or decision.62 To the limited extent that the petitioners grappled with their own culpability in the crimes of the Third Reich, the general approach was to attempt to refute one or more highly specific aspects of the judgments as problematic or in error and then, in turn, use this instance to invalidate every finding of the tribunal in each case. The Advisory Board would ultimately seize on these hyper-specific errors as justification for reducing many prisoners’ sentences.

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Former Einsatzgruppen commander Heinz Jost marshalled several interlinked arguments to explain away his unit’s mass murder operations. While Jost admitted that he held the position of head of Einsatzgruppe A from March to August 1942 and served at the same time as overall commander of the Security Police and SD in Reichskommissariat Ostland (a territory encompassing the Baltic States and a significant portion of Belarus), he claimed that superior orders limited his personal responsibility for the criminal acts that occurred in his jurisdiction. Failing that, Jost argued that most of the mass executions of Jews described by the prosecution had taken place before his arrival at the front. But even if civilians had been murdered under his command, such instances were “justified,” in Jost’s opinion, as part of the legal suppression of partisan bands.63 Such justifications were, at the very least, disingenuous, given the subjective definition of what constituted illegal resistance to the German occupation. German officials were empowered to treat resistance as racially ascribed (all Jews were communists, and thus partisans) and viewed their duties as preventative, up to and including the execution of civilians who appeared ready to join a partisan band. In Jost’s self-conception, he was blameless, a dedicated administrator who had protested the best he could within the limited means at his disposal to countermand the criminal orders foisted upon him by his superiors. Jost even went so far as to claim that his delaying tactics had “prevent[ed] the deaths of tens of thousands of people,” and that “due to my attitude no mass killings of Jews or other innocent people (mental insanes) took place, but innumerous people which were to be executed according to the order were kept alive.” Einsatzgruppen commander Jost had been in the business of saving lives! Although the court had unequivocally rejected these arguments at trial, Jost’s petition argued that the life sentence the tribunal gave him was itself evidence that clemency was warranted, noting that if the court really believed he was guilty it would have sentenced him to death as it did others of similar rank.64 So, in an argument later echoed by the Advisory Board itself, prisoners like Jost deserved, in effect, “double clemency,” in that the very fact that the tribunal neglected to sentence them to death served as a justification to further reduce their sentences later. Paul Blobel, sentenced to death in the Einsatzgruppen case for at least sixty thousand murders perpetrated by units under his command, declared that he was no Nazi “fanatic” and provided a series of contradictory claims about errors made by the tribunal in his case. First, Blobel argued, his assignment to the Russian front at the head of an Einsatzkommando was “not a voluntary

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decision on my part” but the result of an “official war-order” issued pursuant to the invasion of the Soviet Union; refusal of an official order was impossible. Blobel next claimed that his unit was subordinated to the 6th Army in the field and was a catchall for various security and occupation functions, with an unclear delegation of operational authority. Thus, all the evidence his conviction relied upon, including the daily reports of the Einsatzkommando’s murderous activities, either did not refer to the unit functions under his responsibility, or were confusing his command with a different SS unit operating in the same area. In short, the documents did not say what they appeared to say.65 Next, Blobel claimed that his unit, consisting of approximately forty-five men, was too small to have killed so many people. Nevertheless, Blobel was confined to bed with a head injury when most of the murders occurred and so could not have taken part. Also, he never received any written orders to kill civilians from his superiors. But the board, Blobel continued, should try to understand the difficulties of his situation, as, during the war, he was trapped between two extremes (rejecting orders or following them) that in either case led to the same fate: Blobel’s own death and the suffering of his family. Also, he had been fighting in the East “an opponent who remains the true enemy of all mankind.”66 So, in sum, Blobel was forced to serve in the East against his will, much to his anguish, but he never received any illegal orders or committed any illegal acts, and even if he did (which he could not have done, either because of manpower limitations or his own ill health), he would have been completely justified in doing so because of the brutality of the enemy and the dangers to his family if he refused. Blobel’s attacks on the veracity of the documentary record were standard fare. During the tribunals, defendants had disputed the validity of their sig­ natures on documents and engaged in extended bouts of sophistry over the appropriate English translation and meaning of the notation im Auftraug (on behalf of), wherein subordinate officials signed documents in the name of their superiors. At trial, the signing subordinate then blamed whatever policy or action was described in the document on their superior while the superior blamed the subordinate. The one exception was Alfried Krupp, who, while litigiously disputing every facet of his conviction, begged the Americans to free his compatriots because “at all times they occupied positions in the Krupp Firm which were subordinated to that of my Father or myself.”67 Fortunately for Krupp, McCloy and the Advisory Board either disregarded or were not convinced by this admission, and would recommend the reduction of Krupp’s

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sentence based on the rationale that he was not actually in charge of his own company during the war. Unable to suppress documentary evidence at trial, the prisoners’ clemency petitions instead sought to “contextualize” it. Former Krupp executive Karl Eberhardt, for instance, claimed that even though his name was on a distribution list for all manner of documents detailing Krupp’s wartime dependence on slave labor, he never read them (that is, his secretary had not passed them along). It was unfair, he argued, for the tribunal to impart knowledge of slave labor to him merely from his senior position in the company and the documents bearing his name.68 Other prisoners, such as Erhard Milch, acknowledged the accuracy of individual documents but denied that they were of any great significance. In Milch’s case, the prosecution had presented meeting minutes showing that Milch had repeatedly pressed to increase the numbers of slave laborers in German industries and treat them more brutally to meet higher production quotas. In his clemency petition, however, Milch claimed that his violent outbursts during meetings, as recorded in the minutes, were “only words” and urged the Advisory Board to consider his deeds instead (which included orders matching his words). Hedging his bets, Milch also asserted that his discomfiting wartime utterances and deeds were the unfortunate byproduct of a head injury.69 Another approach used by petitioners, particularly former doctors and judges, was to deny that the acts attributed to them by the tribunals were crimes at all. Former physician Hermann Becker-Freysing argued that while he “regretted the tragic circumstances which had forced us to carry out the experiment” compelling concentration camp inmates to consume seawater to test experimental water purification measures, this did “not constitute a crime from a medical or ethical point of view,” as the results were “harmless.” Moreover, Becker-Freysing concluded, “If I made myself guilty by the fact that the experiment was carried out in a concentration camp and my ignorance about conditions generally therein,” then the four years he had already served were certainly enough to atone for his actions.70 Erwin Tschentscher, a WVHA department head responsible for provisioning concentration camp guards, made a similar argument, claiming both that he was ignorant of the “terrible occurrences” within the camps and that his actions were largely irrelevant anyway, since he was a mere quartermaster. Although his work furthered the efficient running of the concentration camp system, with all its horrors, Tschentscher denied that he was part of a criminal enterprise.71 Hans Bobermin, meanwhile,

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in a somewhat novel argument, proclaimed that he was wrongly convicted of plunder because the four hundred brick works he administered for the WVHA (seized from their Polish owners after the German invasion) lay exclusively in the territory ceded to Germany by the Soviet Union in the secret protocols of the Molotov-Ribbentrop Pact, and were thus legitimate business acquisitions.72 Other petitioners appealed to the pressures of war to justify their actions. Fritz Fischer, who had conducted a range of deadly experiments on concentration camp inmates without their consent, was willing to admit that his actions “constitute a true crime.” Still, Fischer argued, his life sentence was too severe because his conduct was motivated by patriotism rather than cruel or base intentions, a claim which implicitly rejected the idea that war crimes could exist at all outside of these specific motivations. Such arguments also attempted to leverage the widespread idea that base intentions should act as a punishment multiplier while pure motives should be exculpatory against the Nuremberg verdicts, which, given the enormity and long duration of the defendants’ criminal acts, could not readily establish the perpetrators’ emotional state. Noting that he was only twenty-seven when war broke out, Fischer claimed that he was swayed by the arguments of a charismatic superior who offered him a path to serve the Fatherland—researching experimental treatments to save the lives of scores of the thousands of daily casualties from the Eastern Front. In the next section of his petition, however, Fischer cast aside his self-portrait of youthful naïveté in favor of the contradictory explanation that, knowing the experiments were wrong, he begged his superior for a transfer to a different assignment only to be “strictly and severely” rebuffed, participating only against his will from that point on.73 As was the case in the petitions filed on Fischer’s behalf by concerned relatives, the suffering and death of Fischer’s victims went unacknowledged. Other petitioners maintained they had no choice but to act as they did. In explaining his continued service as an intelligence expert in the Einsatzgruppen even after he became aware of its murderous duties, Lothar Fendler asked the board, “What could I do?” “According to my conviction,” Fendler wrote, “I, in a war against Bolshevism, could not withdraw from doing my military duty. . . . There was no possibility, to leave the detachment immediately, in order to avoid the danger of becoming personally connected, in one way or the other, with the executions.”74 This was a common lament among Einsatzgruppen commanders and other SS and military officers who conceived of their service as governed by the laws of military discipline. Noting that he served against his will and was inwardly resistant to the activities of his unit, Walde-

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Forgotten Victims: Not considered as a part of the clemency and parole petitions of 1950–1958 was the evidence or testimony from the trials, or the effects of the prisoners’ crimes on the surviving victims. Presented here is one piece of testimony, standing for many, from Case 1 (Doctors Trial) witness Jadwiga Dzido of Warsaw, Poland, who sustained neurological and other permanent injuries from an experimental operation conducted by defendants Fritz Fischer, Herta Oberheuser, and Karl Gebhardt at Ravensbrück concentration camp. The defendants were testing the medical efficacy of antibacterial sulfonamide treatments on battlefield wounds, and so Dzido’s leg was opened surgically, deliberately infected, and left to fester. Dzido survived, but many other inmates did not. (NACP 238-OMT-I-W-15)

mar von Radetzky, a Baltic German conscripted into the Einsatzgruppen because of his Russian language skills, also asked the board, “What should I have done?”75 In Fendler’s and Radetzky’s cases, as in others, their contention that disobedience was met with death was undermined by one of their own co-­ defendants, Gustav Nosske, who, late in the war, refused to participate in a massacre of civilians (having already participated in numerous killing oper­ ations earlier) and escaped unscathed, apart from a demotion and transfer. Even his own treatment, however, did not disabuse Nosske of the notion that he had risked his life by not obeying.76 Many of the petitioners, particularly those for whom the evidence docu-

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menting their participation in specific atrocities was irrefutable, offered fear as an explanation for their actions: fear of execution for disobeying orders or other state-sanctioned vengeance against themselves and their families for refusing to take part in criminal activities. In offering only a binary choice of obedience to criminal orders (met with praise and safety) or disobedience (met with deadly consequences), the petitioners implicitly rebuked the assumptions of the tribunals as hypocritical—would American officers have acted any differently if their lives and the lives of their families were threatened? The problem with this argument, however, is that there remains no documented case of a soldier or member of an SS, SD, or police unit being executed for refusing to take part in the murder of civilians in the East. In the SS and police units, such dissenters may have been shamed with appeals to their masculinity or patriotic duty, or even pitied for their weakness, but the higher leadership, including Himmler himself, were generally more concerned with the demoralizing effects of mass murder on the soldiers and officers who participated in it than in punishing those too squeamish to take part. So long as individual refusals to participate were passive in nature, and did not translate into outright opposition to the war or the regime, they appear to have been tolerated, if not condoned. This was also true in the Wehrmacht, where the discipline meted out to those who disobeyed orders was harsh indeed—the Wehrmacht sentenced thirty thousand of its own soldiers to death during the war, and at least fifteen thousand of these sentences were carried out. The vast majority of these cases, however, involved direct threats to unit cohesion in the field: desertion, cowardice, or incompetence in the face of the enemy, or acts of rape, pillage, or murder directed against fellow German soldiers or civilians. No German soldier was executed for refusing to take part in the murder of Soviet prisoners or civilians in the East, even if the orders instructing reprisal actions and atrocities came directly from Hitler and the OKW. In fact, for both soldiers and police units who declined to participate in the killing, there were no consequences at all, or they were extraordinarily light (a verbal reprimand or, at most, a demotion and transfer). After all, the public trial and punishment of these individuals would only draw additional attention to the regime’s atrocities.77 Doctors, judges, civil servants, officers in the concentration camp administration, and businessmen, whose service was not governed by the discipline of a combat zone, had even more avenues of avoidance available to them. There was always a choice. Yet, like the military and SS officers, civil servants imprisoned at Landsberg claimed that they had no choice but to carry out their lawful functions as

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defined by the state, even when their duties were entirely discretionary. Ernst Lautz, a former prosecutor before the notorious Volksgericht (People’s Court) wrote that it was not his concern or responsibility, morally or professionally, whether the German state used him to violate international law. Lautz remained dumbfounded that he was tried and convicted at Nuremberg at all. The cases he had brought before the court were all aboveboard in that the defendants had violated legal statutes. The content of the government statutes and the form of the punishment imposed (the death penalty for a Polish laborer who had “defiled the German race” by engaging in consensual sex with a German woman, for example) was immaterial. The fact that Lautz’s brand of justice lacked due process and often resulted in the imposition of the severest penalties for the most minor of infractions was also outside of his control or interest. Regardless of his discretionary authority to prosecute these offenses— Lautz was, after all, just a civil servant—the judges bore responsibility for the horrors inflicted upon the accused. Lautz and other prosecutors were only fulfilling their functions, working within a legal system crafted by others.78 Some petitioners, particularly those who saw themselves as respectable businessmen, expressed shock and resentment at the tribunal’s characteri­ zation of their activities as comparable to the crimes of their truly murderous contemporaries. In so doing, they affirmed the false narrative, already circulating at the time of the Nuremberg trials, that the crimes of Nazism were mainly attributable to a small minority of deviant or psychotic individuals in the exclusive employ of SS field units and concentration camps.79 Karl Mummenthey, wartime head of the SS enterprise Deutsche Erd- und Steinwerke (German Earth and Stone Works), renowned for its abusive and deadly treatment of concentration camp slave laborers, wrote that the tribunal’s judgment describing him as a “bad man,” “robber,” and “murderer,” was completely unjustified and “burdens my soul.” After all, Mummenthey claimed, other agencies assigned inmates to him for employment, and since the concentration camp laborers were housed in sub-camps controlled by the police or SS, their poor treatment was not his responsibility. Poor working conditions were also the fault of other agencies’ administrative decisions or the general deprivations of the war, not Mummenthey—how could he be compared to a murderer? Even if his actions were indeed criminal or negligent (a point he refused to concede), Mummenthey argued, the nature of his work meant that his peers were the lightly punished industrialists of the Flick, Farben, and Krupp Trials, not the SS officers of the WVHA or Einsatzgruppen. He was, after all, just a businessman.80 Hans Bobermin, who administered four hundred brick works dependent on forced

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and concentration camp labor also protested his fifteen-year sentence as far too harsh. How, Bobermin asked, were his activities any different from those of the executives at Siemens or Messerschmidt, who were also dependent on slave labor during the war but did not find themselves in the defendant’s dock?81 Friedrich Janssen, the chief financial officer of Krupp beginning in 1943 (just the type of man Bobermin and Mummenthey compared themselves to), also resented the tribunal’s conclusion that he had facilitated the illegal compulsory employment of prisoners of war and concentration camp inmates in the firm’s armaments works. Even though he held a seat on Krupp’s board of directors and admitted that one of his principal duties was to allocate funds to pay the state for utilizing the prisoners and concentration camp slaves, Janssen wrote, “It was not my job as the man responsible for financial and commercial matters to concern myself with labor matters.”82 Former Wehrmacht officers jailed for their role in overseeing the liquidation of Soviet prisoners of war or civilian massacres on the Eastern Front or in the Balkans had a more difficult path to tread, since, as in the Einsatzgruppen case, these murders were well documented. In their petitions, these prisoners admitted that excesses had taken place, but either denied that their men were responsible or justified the killings by citing the exigent circumstances of a particularly brutal anti-partisan campaign. Although Helmut Felmy (former commander of the LXVIII Army Corps in Greece from May 1943 to October 1944) devoted a lengthy section in his petition to blaming the reprisal killings for which he was convicted on a separate SS unit operating outside the scope of his authority, he justified his actions by describing the extent of partisan resistance in his sector. Convicted specifically for the destruction of an entire Greek village, Kalavryta, and the massacre of hundreds of Greek civilians there, Felmy explained that it was a hotbed of communist partisan activity, and that, following a massacre of several German soldiers, the command staff “had to make a difficult choice,” since rank-and-file soldiers could not be restrained from “expiatory measures” against the partisans. Furthermore, Felmy explained, the Greek hostages “were selected out of those classes of the population which were suspected to be in connection with gangs, and to assist them (transmission of communications, keeping of arms, functionaries etc.) . . . not blindly taken out of the population.” How the German troops under Felmy’s command, or the separate SS unit on which Felmy also blamed the atrocities, determined that these Greeks were affiliated with the partisans was left unsaid. Regardless, Felmy justified the destruction of Kalavryta by noting that as late as 1948–1949, the “gangs” that ruled the village were causing considerable

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trouble for the royalist Greek government, which had also taken and shot hostages in attempts to pacify the area. “The cruelties of the partisans, the peculiarity and seriousness of the fight against gangs which was burdened until now to the German troops,” Felmy wrote, were now well known to the Greek government and its British and American allies.83 Any resulting atrocities were the unfortunate, but natural, byproduct of war, not war crimes. Hubert Lanz, Felmy’s contemporary and commander of the XXII Mountain Corps after September 1943, claimed ignorance of the retributions visited upon the Greek countryside but still spent a lengthy portion of his petition blaming the partisans for any reprisals, just as Felmy had. “The facts are,” Lanz wrote, “the German troops were exasperated by the treacherous and cruel methods of warfare applied by the partisans (who threatened Greece for years to come after the war had ended), and by their being supported by the population.” This was tantamount to a “state of emergency,” which automatically invoked the standing reprisal authorizations of the Wehrmacht High Command calling for the execution of either fifty or twenty-five hostages in retaliation for every German soldier killed, depending on the locality. Even as Lanz claimed that reprisals were justified under the circumstances, he also argued that this process bypassed him entirely; he had no authority to countermand OKW directives and was informed of shootings by his staff only after the fact.84 Wilhelm List, former overall commander of Armed Forces Southeast (Greece and Yugoslavia) in 1941, first argued that any reprisal orders bypassed his command—going straight from OKW to individual commanders in the field—before transitioning to a defense of the harsh anti-partisan measures, which he claimed to have inwardly opposed at the time. List condemned the “treacherous and cruel underground terrorism” of the Bolshevist partisans as the first violation of international law in the area, and argued that this “enforced on us” the duty to respond harshly. List also expressed confusion about how his humanitarian desire to put down the partisan uprising as quickly as possible could be judged so harshly by the tribunal.85 Officers such as Georg von Küchler also endeavored to rationalize the barbarities inflicted by the Wehrmacht on the Eastern Front through contextualization, firmly identifying the communists as the main aggressor in a mutually escalating cycle of atrocity. Notably, Küchler’s petition crafted the narrative of a reasonable-minded opponent of National Socialist ideology who had taken great pains to avoid needless bloodshed in his command sectors in Poland, the Netherlands, and France, even identifying measures he took to protect Jews from the SS during the war. When it came to describing his service on the

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Future petitioners: Two months before the beginning of their trial, three defendants from Case 7 (the Hostages Trial) pass their time exercising in the Nuremberg prison yard on May 29, 1947. Left to right: Wilhelm List (sentenced to life, released in 1952), Hermann Foertsch (acquitted), and Walter Kuntze (sentenced to life, released in 1953). (NACP 238-OMT-VII-M-1)

Eastern Front, however, Küchler assured the Advisory Board that “the war conditions in Russia were quite different.” “The Russian soldier,” Küchler continued, “was a hard fighter without consideration . . . unhuman towards the wounded and prisoners who fell in his hands. This and the partisan fights, set on foot and stirred by the potentates of the Bolchewists, which had demanded on both sides innumerous victims and in their rear a steady readiness to fight, gave the events of war in Russia their face.”86 The subtext, of course, was that the brutal treatment of prisoners and reprisals that Küchler would not dare employ in the West were justified in the East. In other cases, the petitioners focused on what they believed to be the arbitrary nature of their prosecution, no matter the extent of their official responsibilities. Former German plenipotentiary to Hungary Edmund Veesenmayer, who oversaw the extension of the Holocaust to the increasingly German-­ dependent puppet state from March to October of 1944, sidestepped any discussion of the crimes he was convicted of by the tribunal in favor of listing all

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the other responsible parties who had not been tried. How was it just that the German ambassador to Hungary was confined to Landsberg, while Admiral Miklós Horthy, the leader of Hungary for twenty-five years, rested comfortably in exile? Veesenmayer also pointed to the conclusions of the Soviet-run Hungarian tribunals that condemned former members of the Horthy and Arrow Cross regimes as establishing that the Hungarian government alone bore the blame for all atrocities committed there during the war.87 These sentiments were echoed by State Secretary of the Reich Ministry of Justice Herbert Klemm and former WVHA accountant Hans Hohberg, who professed innocence equal to that of their unindicted former superiors, successors, and counterparts at comparable agencies.88 Even former chief medical officer of the Luftwaffe Oskar Schröder, sentenced to life for his role overseeing a variety of deadly experiments on concentration camp inmates, struck a similar tone, disavowing all knowledge of criminal activities during his 1944–1945 tenure and blaming the experiments identified by the tribunal on his predecessor, who had not been charged.89 Such objections, which implicitly or explicitly drew the Advisory Board’s attention to figures who, unlike the petitioners, exercised “real” authority in the Third Reich, often transitioned seamlessly into variants of the long-discredited “superior orders” defense. For instance, in objecting to the tribunal’s finding that he bore some responsibility for enacting the slave labor policies of the firm, Krupp executive Heinrich Lehmann argued, “I was nothing but an employee without any influence whatever, who had to act in accordance to the directives he was given.” Moreover, in Lehmann’s telling, his superiors at Krupp were also acting under the orders they had been given by the state, since any violations of international law that had occurred at Krupp were ordered by government fiat.90 Hans Baier, former chief of staff of SS economic enterprises, readily admitted that he knew upon assuming his position in 1943 “that the prisoners did not receive wages” for their forced labor, but argued that he was not responsible for this policy and could not object to it or withdraw from his position “without risking liberty and life.” Baier thus asserted that he was entitled to clemency on the slave labor charges because he was acting under the valid authority of his superior officers, an interpretation explicitly rejected by the Nuremberg tribunals.91 Occasionally these objections were qualified with the admission that atrocities had occurred and that the Nuremberg tribunals were perfectly justified in seeking out and imprisoning the perpetrators. Former WVHA official HeinzKarl Fanslau assured the board that “there was no doubt” that the atrocities of

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the Nazi regime “should be condemned for ever, and that the leaders of the 3rd Reich responsible for such actions have loaded our people and our history with a very heavy mortgage (guilt) . . . and the ones responsible for such crimes had to be called for account.” Acknowledging that “it is a very hard task for a judge of a foreign power to find out the actual truth,” Fanslau simply disagreed that he was responsible for any of these illegal acts.92 Former SS physician Helmut Poppendick and Einsatzgruppe D quartermaster Felix Rühl made similar arguments about disparities in punishment, noting that they were the only two defendants remaining in Landsberg on the sole conviction of membership in a criminal organization (SS and Gestapo). Poppendick and Rühl, whose knowledge of the medical experiments and Einsatzgruppen murders, respectively, was proven, escaped conviction on war crimes and crimes against humanity charges due to the prosecutions’ inability to establish their direct participation in these atrocities beyond a reasonable doubt. Poppendick’s short petition focused exclusively on the disparity between his ten-year sentence by the tribunal and the “matter of public knowledge” that (1) most cases resulting in a conviction only of membership in a criminal organization were handled by local German authorities, not the American military tribunals, and (2) the maximum sentence imposed for membership in a “so-called” criminal organization was five years. How was it that SS generals with closer ties to Himmler were never brought before the tribunals and were free, while Poppendick, who described his duties as merely the “handling of questions of health and hygiene of the SS-members themselves as well as their families,” remained imprisoned?93 Rühl and his attorney submitted the same objections to the board that Poppendick had, adding that Rühl was only a lieutenant in the SS, whereas SS generals had received five years or less in local courts.94 Given the resource and political constraints faced by the subsequent Nuremberg tribunals, whose designers had originally intended to prosecute hundreds more individuals, there was no shortage of higher-ranking Nazi officials for the Landsberg prisoners to identify as more deserving of punishment than they. If defendants such as Rühl argued that their relatively junior rank meant that they were not responsible for policy decisions, high-ranking officials such as Karl Genzken, who ended the war as a major general in charge of the entire medical division of the Waffen-SS, argued the opposite. Genzken was so far up the chain of command that it was “unduly severe” for the tribunal to hold him to account for the gruesome medical experiments conducted by his far-­ removed subordinates, even though he was aware of their activities. After all,

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Genzken argued, he was charged with the medical care of nine hundred thousand soldiers or, if their dependents were included, some 3.5 million people in addition to the administration of thirty thousand medical personnel and sixty hospitals. “It was quite impossible for me to bother, in addition, about scientific side-lines or special fields,” Genzken concluded. At the same time, Genzken maintained that he was a subordinate as well, and so did not have the authority or responsibility to countermand any illegal orders by his direct superior, Heinrich Himmler, lest he fear for his life.95 The lone female petitioner, Herta Oberheuser, appealed to gendered expectations of feminine submissiveness to excuse her participation in criminal medical experiments. Although an able dermatologist, Oberheuser found her opportunities limited as a woman practicing medicine in Nazi Germany (which envisioned the ideal woman as a mother bound to the hearth and home).96 In search of additional pay, Oberheuser wrote in her petition, she responded to an ad seeking a “specialist for cutaneous and venereal diseases” at “a women’s retraining center.” She learned only later that her new workplace was actually Ravensbrück concentration camp, and that her duties included deliberately infecting inmates’ surgical wounds so as to test new antibiotic treatments.97 Like her fellow prisoners, Oberheuser obscured the voluntarist component of her biography: she was under no obligation to take the position and faced only some lost wages if she opted not to serve. In this way, Oberheuser’s path to complicity was symptomatic of the German medical profession’s more generally, whose members joined National Socialist organizations or the Nazi Party in disproportionately greater numbers than their white-collar counterparts, despite facing the same economic and social pressures.98 In her statement, Oberheuser appealed to her own femininity as mitigating evidence. She wrote that, “being a woman,” she was appalled at the conditions in Ravensbrück and tried to transfer out or improve them but was unsuccessful in either endeavor. She also claimed that as a woman she was dominated by her superior, Dr. Karl Gebhardt (executed in 1948 by Clay), who was “a great personality of immense suggestive powers,” thereby lessening her responsibility for what occurred in Ravensbrück. Finally, while Oberheuser acknowledged her role in the deadly medical experiments, she maintained that, as a junior physician and woman, her role was that of the traditional female caregiver who administered anesthesia, attended the sick, and monitored the vital signs of the inmates that the men had butchered.99 Based on this narrative, Dr. Spradley’s assessment of the unmarried Oberheuser’s mental health was markedly different from that of every other (male) patient he interviewed

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Future petitioners: Former physician Herta Oberheuser, the lone female defendant at Nuremberg, consults with her attorney, Rudolf Ratz [undated, likely early 1947]. For her role in conducting inhumane and illegal medical experiments on concentration camp inmates at Ravensbrück, the Case 1 (Doctors Trial) tribunal sentenced her to twenty years. McCloy reduced her sentence to ten years in 1951; Oberheuser was released from Landsberg in 1952, whereupon she resumed her medical practice. (NACP 238-OMT -I-D-78)

at Landsberg, trafficking extensively in Freudian notions of repressed sexuality to explain Oberheuser’s deviant path. “This woman,” Spradley determined, “gives a history of being dominated by her parents during childhood and continuing in adulthood. . . . So far [as] is known, she did not have normal social contact with men and has probably had no sexual experiences. Although she is a physician, she is easily embarrassed in talking about personal matters. . . . Basically this woman is unstable and sexually frustrated.”100 Spradley’s focus

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on Oberheuser’s sexual fulfillment was symptomatic of the gendered expectations framing the limited number of American investigations into female perpetrators in the immediate postwar period, which tended to privilege women’s emotional states and intimate malformations over political, economic, or social motivations for participating in criminal acts. Oberheuser’s self-description as passive and apolitical, dominated by a powerful male supervisor, reinforced these gendered expectations.101 Finally, many of the prisoners repeatedly drew attention to what they interpreted as one of the primary missions of the Advisory Board: the revision of seemingly disparate sentences across cases. Prisoners made two related points in this regard. First, they argued that they were merely cogs in the Nazi machine, and not “major offenders” responsible for policy formation like those tried at the IMT. Second, the prisoners pointed to the somewhat more lenient sentences imposed in the final case (the Ministries Trial), arguing that if they too had been tried in 1949, they would have received lesser sentences. Hermann Pook, the former chief dental officer in the SS concentration camp administration, did both, claiming that the trials after his were conducted with a “much softer procedure” than his own, resulting in the absurd fact that “former Ministers of the Third Reich and other high officials of the Party and Economy . . . received lower penalties than [ for example] I . . . who never had a leading position in Party or State and did nothing but his duty as a soldier in the Medical Service.”102 The board would be swayed by such arguments as well, although the vast differences between both the actions of individual defendants and their broader relationship to criminal institutions rendered such cross-trial comparisons exceedingly problematic.

r ed sh i rt regrets As a class unto themselves, the condemned prisoners did not lament their wartime actions or the choices they had made so much as they expressed regret for the state of Germany, the West, and the constellation of forces that stripped them of their agency and made them something they were not: murderers. It was not easy for these men to deny their crimes; the documentation and eyewitness testimony was in many cases irrefutable. Yet, even here, the prisoners did not offer repentance so much as justification, albeit not through superior orders or the necessities of an all-encompassing war against Bolshevism. Instead, they framed their experiences in the tropes of classical tragedy, where the protagonist is driven inexorably to their downfall by fate. They re-

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pented for their actions only because they had contributed to Germany’s present condition of occupation and division, not because of the innocents they had butchered for the Reich. Martin Sandberger received a death sentence from the tribunal for his activities in the Einsatzgruppen forces operating in Estonia. In addition to the extensive documentary evidence of his participation in atrocities, he had confessed on the witness stand to his direct responsibility for hundreds of murders. Faced with these realities, Sandberger wrote in his petition, “I do not wish to justify anything. Especially by no means [will I] justify the wrong way I went in those years of my life. I rather will try a little to explain how I got into this situation Your Honours find me in now.” How could “a man of liberal and Christian education . . . with three well-passed juridical examinations, with a happy family life,” end up a convicted mass murderer? Sandberger endeavored to explain, settling on a series of forces beyond his control: Having lived in a strange mixture of feeling and mind, of deceit and want of judgement, of hopes and fears, in a time of hard disorders nearly within all spheres of German social life, partly seduced, partly reluctant, I was dragged on in the swirl of passionate mass-suggestion originating from patriotic enthusiasm of many millions. The danger of communism, not only beyond our borders, but in the midst of us . . . moved me and so many others “to give another party a chance.” Insofar as this party seemed to propose nonsensical things and wrong ones or—as anti-semitism—even shameful things, I lulled myself into the hope or illusion such things would be pushed aside when real state-policy would be exercised and finally “common sense” would win. Looking back on the war, Sandberger saw “a strange and tragical enchainment of error and guilt, of good intention, good faith and various failings and insufficient ability to resist the evil and bad.” He had done his best in Estonia to “prevent wrong and unjust things from being carried out,” but there were larger forces working against him. He had endeavored to stay on the “narrow, hazardous ridge” between opposing the mass execution of Jews and contributing to it, noting that he was so successful in his efforts that no evidence of his opposition to the killing orders could be found in the documentary record. Those who truly understood the “conditions of the dictatorship during the war,” could read between the lines and identify Sandberger’s opposition. Leveraging the Cold War tensions of 1950, Sandberger closed with his conviction that the “sole salvation” of Germany now lay in close cooperation with the

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United States in “the final settlement between the Bolshevism aspiring to rule over the world on the one side,” and “all the other powers of the world” on the other.103 Even when lamenting the “obloquy and disgrace” wrought upon the German nation by the crimes of Nazism and the fact that his faithful service to the state was “thoroughly mistaken,” former head of the WVHA Oswald Pohl saw himself foremost as a victim. Viewing his experiences since 1945 through the lens of his recent conversion to Catholicism and the expiation of his wartime sins, Pohl interpreted his pending execution as a tribulation meant to purify his heart of hatred and revenge for his American tormentors. “The hard fate of mine,” Pohl wrote, “the misfortune of my wife, the distress of my children, the misery of my brothers and sisters, the psychical tortures I had to suffer myself, all the humiliations and defamations—all these sufferings of body and mind, I consented to them and humbly took them into my life, considering them as trials imposed by God.” Nevertheless, Pohl objected to what he saw as the tribunal’s slanderous propagation of the narrative that he was “chief of all the concentration camps,” arguing that their administration was not any of his responsibility, and in fact belonged exclusively to other deputies of Himmler. Instead, Pohl claimed, his tasks were relegated to the labor allocation of concentration camp inmates, a much more banal duty. Moreover, it was “humane” work, since the employed camp inmates had access in many cases to “modern machinery” that eased their burdens, in addition to “bigger food rations, better clothing, premiums and extra compensations for their work etc.” Pohl forgave the tribunal for not wanting to admit this mistake, however, as he argued that, if the Americans did so, the entire outcome of the WVHA/Concentration Camp Trial would be invalidated. Pohl thus was appropriately repentant for his sins (God would not have seen fit to punish him if he had done nothing wrong) but remained defiant as to his actual guilt. His punishment was a trial, just in the spiritual sense, but unjust in the earthly sense—driven by base hatreds from former enemies and lying witnesses. To his earthly tormentors, Pohl had nothing to apologize for. He only hoped that the Americans would ultimately cool their passionate desire for vengeance against Germany in time to prevail in the struggle against world communism, “the anti-Christ from Asia.”104 Ernst Biberstein’s plea for mercy also plumbed the contradictions between expressing remorse for Hitler’s policies while maintaining innocence of specific participation in those very policies. The former clergyman who led an Einsatzkommando killing squad anticipated his readers’ reaction that “from the present-day viewpoint it must appear utterly inconceivable how I as a young

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Future petitioners: Undated [likely early 1947] interrogation of former leader of the SS Economic and Administrative Main Office Oswald Pohl (seated right) by American prosecutors as his attorney (seated left) observes. Pohl was convicted and sentenced to death, denied clemency by McCloy, and executed on June 8, 1951. (NACP 238-OMT-IV-D-41)

clergyman could join the NSDAP [Nazi Party] in 1926,” and wrote that “my soul is very much burdened” by assumptions that he had joined and served “out of criminal instincts.” Noting the “demonical power” of party propagandists, Biberstein offered contrition for his youthful political activism, even though “I know it sounds frivolous and arouses contempt. Yet such was the situation in spite of the horrible things that happened subsequently, and were utterly inexcusable, occurrences of which I, as a former Nazi, am bitterly ashamed.”105 Despite his avowed remorse for past political choices, Biberstein described his path to the killing fields in impersonal terms, with the outbreak of war forcing him “into utterly alien professional tasks, not of my own choosing, but dictated by a higher force which deprived one’s person of all liberty.” Transferred to the RSHA as a theological expert after his 1940 service in France, Biberstein found a position as head of the Oppeln police in Upper Silesia in 1941. In describing his service there from 1941 to 1942, Biberstein was remark-

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ably candid, thanking “destiny” that Oppeln was “a quiet agency” and that “I was not compelled to contribute to sending anybody into a concentration camp or Jews into the gas chambers.” In 1942, however, Biberstein was called up for service at the head of an Einsatzkommando operating in the Soviet Union. In explaining his actions there, Biberstein’s candor and sense of regret began to waver. Yes, he admitted, he had carried out many executions. But, Biberstein argued, he was only a theologian, and so deferred to both his superior officers and his subordinates (trained lawyers all) on the legitimacy of the thousands of executions he administered. As to the idea that these executions were linked to the broader project of mass murder, Biberstein claimed, “This doesn’t concern me at all, as in Russia I didn’t have anything to do with the Jews and nobody expected me to commit murder. . . . I may say today that a good fortune spared me these horrible things and that’s why I feel so hurt by the sentence, which puts me right in the middle of these atrocities.”106 Biberstein regretted his support for the party and acknowledged the horror of the broader Nazi genocidal project, but refused to admit that his service in Russia had been a part of either. Instead, he asserted that because his work in the East took place from 1942 to 1943, he was engaged purely in legitimate anti-partisan operations, as opposed to the murder of innocents. Most of all, Biberstein maintained that his past as a clergyman was itself exculpatory, not only because of his good character but also because “It’s only too natural that somebody who has been doing or wants to do immoral things doesn’t like to let the clergyman know about it, as he abhors such things,” and so during his career he was often ignorant of “the bad and diabolic things in National Socialism.”107 For Biberstein, there was much to regret in theory, but little to regret in practice. In weighing the effects of his conviction for war crimes and the psychical and mental strains of prison life, longtime civil servant Hans Heinrich Lammers’s petition encapsulated the assumptions and feelings of most of his fellow prisoners. “After 45 years of blameless service as a state official, during which I believe having fully done my duty for my country and the people,” Lammers wrote, “I am wrongfully considered a professional criminal.” How had this happened? If he was guilty at all, Lammers explained, “then this guilt is most emphatically not of criminal nature but might perhaps be moral nature, and is rooted in the fact that I also served a political regime which led my country into utter ruin and that I did not foresee this event, and consequently kept on following a wrong political trend. . . . The thought of my present situ-

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ation destroys in me every belief in right and justice, since there is no possibility given to me who, during his life as an official but also in his private life, have always upheld the principles of right and justice and succeeded in doing this as far as possibilities allowed.”108 As head of the Reich Chancellery, Lammers had affixed his signature to many criminal decrees originating from Hitler and other Reich officials on matters ranging from the plunder of Jewish assets to the murder of Allied prisoners of war, and attained intimate knowledge of the scale and scope of the Holocaust. Yet Lammers portrayed himself as a good and decent person, a man of no firm political inclinations apart from an unshrinking desire to serve his country. From Einsatzgruppen commanders to physicians and industrialists, SS men to military officers, all saw themselves as relatively blameless for the horrors of the Third Reich. If they had sinned, their sins were well-meaning: a naïveté about politics, a susceptibility to Nazi propaganda, unquestioning patriotism, and outsized fear for the lives of their loved ones. Although every prisoner objected to the tribunal judgments on technical grounds (this or that piece of evidence was flawed or interpreted incorrectly, the tribunals denied them due process or were themselves illegitimate exercises in vengeance or ex post facto law), their petitions also revealed their collective lack of personal engagement with their own pasts. Any serious reflection on their own actions was largely absent. No matter their position in the German dictatorship, the prisoners were passive observers of their own lives—history happened to them, fate drew them along, others made decisions, and they were left to agonize over the wreckage of it all. Although some remembered with great precision actions that they claimed to have taken to undercut the criminal system that grew up around them (countermanding an order, sparing a life, helping an acquaintance escape to safety), cognizance of their own culpability for taking part in that system remained lost. At no point did any of the prisoners reflect on the decisions they themselves had made that led them to the fate they lamented so much. There were no criminals among these men; criminals were poor, uncultured, dishonorable, and shirkers, rather than fulfillers of duty and destiny. Insomuch as they were willing to admit responsibility or regret for the heinous crimes of National Socialism, these feelings were transfixed upon abstracts: the loss of an ideal, the ruination of a Fatherland—never on a specific decision, decree, or action to kill, steal, or enslave in the name of the state, or aid and abet others in doing so. Their American captors could not possibly begin to understand what had

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been taken from them. Promising careers, pensions, estates, bank accounts, furniture, and family members had been unjustly stripped away by vengeful occupiers. The sufferings of their families had robbed the prisoners of their physical and mental health, while the Nuremberg tribunals had robbed them of their reputations and their freedom. The ruination of Germany by Hitler and his closest followers during the war, meanwhile, had deprived them of their aspirations for a revitalized Germany and reinvigorated the Bolshevist threat. Criminality was antithetical to their self-conceptions as apolitical, bourgeois, Christian citizens, who knew no higher ideals than honor, duty, and love of country. The fact that the tribunals had come to a different conclusion spoke only to their illegitimacy—the real criminals were already dead or remained unpunished. To the extent that the prisoners were willing to conform their petitions to the long-held legal tradition of a supplicant begging his sovereign for mercy, they begged McCloy and the Advisory Board for mercy on behalf of their families, their fellow countrymen, and their nation—the prisoners themselves had no reason to beg forgiveness of anyone. The Americans had made a grave error. The tribunals had misunderstood the nuances of governance in the Nazi dictatorship, which titles bestowed power and which did not, which orders existed only on paper and which had been carried out, the realities of the life-or-death struggle against communism on the Eastern Front, or the “fact” that anyone who disobeyed or questioned authority invited the swiftest of retributions. They had not understood that no one grasped the true scale or scope of the Third Reich’s crimes until after 1945 and that, even then, certainly not one of the petitioners had been in favor of a Final Solution to the Jewish question. The petitions acknowledged “excesses,” and “unpleasant duties,” “requisitions,” “supply problems,” and “work,” not murder, robbery, or slave labor. And, in their final analysis, the petitioners asked, did any of this even matter anyway? For the Americans to pretend that they too had not raped, pillaged, or murdered innocents while solemnly moralizing about the tenets of international law was base hypocrisy. These arguments, repeated in clemency petitions to McCloy and his successors from 1950 to 1958, strained credulity and regularly incensed American officials who had taken part in the Nuremberg trial program. Given the chilly reception these same arguments had received from American appellate courts and Military Governor Clay, the petitioners had little cause for optimism. Yet, in the absence of competing narratives from victims or prosecutors, the Advisory Board would take them more seriously than any previous American institution had done, internalizing and reproducing variants of these arguments in

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their report to McCloy recommending sentence reduction after sentence reduction. As the following chapters reveal, page by page the board succumbed to the seeds of doubt planted by the endless attacks on documents, witnesses, facts, and the very idea that the prisoners possessed any responsibility for their own actions.

ch a p te r t h r e e

Clemency

m c k i n z ie : How do you explain the fact that the Board was necessary or desirable? s n ow : Well, it was that general feeling on the part of Mr. McCloy that the sentences were excessive and some leniency should be shown and the Board found that to be so. m c k i n z ie : From a purely legal not political point of view? s n ow : Purely legal point of view. Oral history interview with Conrad E. Snow, July 2, 1973

In late 1953, Conrad Snow, a former member of McCloy’s Advisory Board on Clemency for German War Criminals, offered advice to an unexpected successor. While McCloy envisioned his Advisory Board’s work in 1950 and his own clemency grants in January 1951 as the final word on the Nuremberg prisoners, his replacement, James Conant, established the Interim Mixed Parole and Clemency Board in 1953 to adjudicate additional clemency and parole petitions put forward by the remaining Landsberg prisoners. In his advice to its chairman, Henry L. Shattuck, Snow counseled that clemency was appropriate when “the sentence no longer fits the crime.” This circumstance could arise from “an unfair diversity” in sentences for the same offense, mitigating circumstances not considered during the trial or sentencing, the discovery of new exonerating evidence, an excellent conduct record in prison, or consideration of age or infirmity, which tended to make otherwise equal sentences “bear with varying degrees of harshness.” Fair enough. Snow closed, however, by emphasizing the necessity of all such determinations being firmly grounded in “the facts,” which a proper clemency panel had the duty to uncover. “A sound decision,” Snow concluded, “could hardly be made in reliance only to the prisoner’s petition backed by a recommendation of [their] government.”1 Given how chairman David W. Peck and his fellow board members Fred91

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erick A. Moran and Conrad Snow went about their business in 1950, Snow’s later advice to Shattuck is surprising. The Advisory Board’s review was rushed. Its members had neither the time nor the inclination to examine evidence from the trials, or carefully weigh it against the prisoners’ tendentious clemency petitions. Instead, in a few hectic weeks from mid-July to mid-September 1950, the board skimmed judgments, perused petitions, held thirty-minute meetings with defense counsel, ruled, and moved on to the next case. It had no investigative staff to interrogate the “new,” exculpatory evidence (more often repackaged assertions already dismissed by the tribunals) presented by the prisoners, heard from neither witnesses nor prosecutors, and demanded no expressions of remorse or regret. If the Advisory Board had searched for and evaluated “the facts” as Snow advocated, then it had proved much more interested in the facts the prisoners offered than those on which the tribunals had based their verdicts. This chapter offers a brief institutional history of McCloy’s Advisory Board on Clemency for German War Criminals as a case study in how the best of intentions and hopes for “American justice” could succumb to muddled bureaucratic mandates, questionable operating procedures, and a flawed understanding of the law that blurred the lines between an appellate court and a clemency panel. Even in the few cases where the Advisory Board sounded and behaved most like a “normal” clemency panel in its denial of applications or grants of mercy to the old, the sick, and the few prisoners who presented a compelling case for sentence adjustments, the board took great liberty in overruling the judgments imposed at Nuremberg. In the end, the Advisory Board determined that the punishment fit the crime in only thirteen of eighty-nine cases.

j ust i ce peck ’s p anel With an eye to reintegrating the Landsberg war criminals into the norms of the American clemency and parole process, on July 18, 1950, McCloy’s office delineated the final responsibilities of the Advisory Board in Staff Announcement No. 117. Hoping to further legitimize any conclusions the board reached, McCloy mandated that it include impartial experts who had not “at any time or in any capacity participated in the trial of any war criminal” or “publicly expressed an opinion with regard to such trials.”2 Yet this was easier said than done. Wary of the prolonged delays and backlog of cases in the American federal court system, a result of the long absences of American judges serving as prosecutors, defense attorneys, or judges at Nuremberg, Supreme Court Chief

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Justice Frederick Vinson “flatly refused” to sanction the participation of any retired or active federal judges in a clemency review.3 With members of the federal judiciary off limits for extended service in Germany, HICOG looked to state judges and those with experience on parole boards. McCloy was not interested in a rubber-stamp clemency committee, but rather “good help.” He “abhorred the whole series of Nazi crimes” and approved of “the concepts which had created the Nuremberg Tribunals” and “did not want to do anything to disparage them.” But he was also dedicated to fairly administering justice. “I told them to seek out any basis for clemency which they could honestly find and take into account all circumstances which they felt they properly could,” he explained in March 1951. If possible, McCloy wrote, his aim in seeking help from an advisory board was to encourage “wider acceptance” of the results of the Nuremberg trials in West Germany.4 Although the Advisory Board was not an appellate body, its head was an appellate judge. Called the “Peck Panel” for short, the Advisory Board on Clemency for German War Criminals consisted of a three-person team: David W. Peck, presiding justice of the Appellate Division of the New York Supreme Court’s First Department; Conrad E. Snow, former chairman of the wartime Loyalty Review Board and legal advisor to the State Department; and Frederick A. Moran, chairman of the New York State Board of Parole. According to the official HICOG history of the board, Peck “was chosen for his outstanding record as a distinguished American jurist,” Snow because he “has practiced law for many years, and served [Undersecretary of War Robert Patterson] with distinction,” and Moran because he was “a recognized authority in his field, having been in social work for more than thirty years,” and “a well-known lecturer on parole and social problems.”5 Apart from these qualifications, Peck and Moran had come highly recommended by New York Governor Thomas Dewey, who, as an internationalist Republican with little use for the isolationist wing of his party, navigated the same political circles as McCloy. Dewey had been a friend of Peck’s since the 1920s and, as governor, appointed him as the lone Republican member of the New York Supreme Court in 1943 and stewarded his rise to presiding justice of the New York Appellate Division by 1947.6 Though a Democrat, Moran was also close to Dewey, who had appointed him as chairman of the New York State Board of Parole in 1942. In return, Moran publicly defended Dewey during his 1950 re-election bid amid widespread criticism of Dewey’s commutation of mobster Charles “Lucky” Luciano’s prison term in 1946 as a reward for wartime cooperation with American naval intelligence.7 Already impressed

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with Peck, McCloy “asked Tom Dewey for the best parole and prison man he knew,” which resulted in the appointment of Moran.8 Finally, McCloy chose Conrad Snow, “who I had known as a careful lawyer with a real sense of public service,” because he “had been on the Law Review at Harvard Law School when I was a student there and I had seen and admired his conscientious thorough-going work in Washington during the war when he worked with [Undersecretary of War] Bob Patterson.”9 Apart from his legal background, Snow also had prior experience with clemency and parole boards, having sat on the “Roberts Board” of 1946, which, under the stewardship of former Supreme Court justice Owen J. Roberts, reviewed the sentences imposed by military tribunals on some 22,500 American servicemen during the war. Snow later claimed, “We reduced the sentences in eighty percent of the cases,” in accordance with the fact that the sentences imposed on crimes ranging from rape and murder to unauthorized absences were both “in the highest degree uneven” and unduly harsh when removed from the “exigencies of battle.” This background seems to have shaped Snow’s views on clemency and sentence reductions more generally, as he went on to advocate leniency for both the German war criminals in 1950 and Japanese war criminals in 1952– 1953. Snow believed that the presence of orders from a superior officer was a mitigating factor, no matter the enormity of the crime. Moreover, Snow also had doubts about the efficacy of the American war crimes trial program, remarking, “I think there is a grave question about the propriety of the victors sitting in judgement on the vanquished as war criminals.”10 Both sentiments were familiar canards deployed by German defense attorneys at Nuremberg and after, and had been rejected as illegitimate by the Nuremberg tribunals. Moran’s expertise, on the other hand, indicated McCloy’s interest in reevaluating HICOG’s approach to parole. McCloy was especially concerned with calculating more accurate release dates based on pre-trial confinement and bringing the computation of time off for good behavior more in line with best practices in the American penal system. In his capacity as chairman of the New York State Board of Parole, Moran was firmly ensconced in the emerging American consensus on the rehabilitative value of parole—an evangelist for a “progressive parole system.” In a speech before the Conference on Prison, Probation, and Parole held at the University of Chicago in June 1949, Moran inveighed against the myth created by movies and radio programs that all released prisoners were unrepentant “gangsters and racketeers.” Stressing the social factors that were linked to crime, such as a lack of education or vocational skills and low-income backgrounds, Moran advocated a supervised parole sys-

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tem to ensure the development of “new work habits and behavior patterns” in American prisoners. Such views of the rehabilitative, rather than punitive, functions of prison sentences were not new or radical; by 1949, they were increasingly taking hold in an American penal system where “good conduct” in prison frequently resulted in a corresponding sentence reduction. For Moran, deferring to good behavior reports was not enough, however, as dumping well-­ behaved prisoners back on the streets without supervision, prospective employment, or a stable living situation increased the likelihood of recidivism. It was essential, then, for a well-functioning parole system to complement early releases.11 Moran’s advocacy of supervised early release based on both parole and good-­conduct time, taken together, implied dramatically shortened sentences. Moreover, Moran’s criteria for assessing the risks of recidivism (social background, education, family stability, and prospective employment) were an awkward fit for the Advisory Board’s work, given that nearly all the Nuremberg prisoners came from upper-middle-class or upper-class backgrounds, were highly educated, and were not likely to reoffend in the absence of the Nazi dictatorship. Moran’s views also reveal innate contradictions, unconsidered at the time, in McCloy’s efforts to bring the policies and procedures governing the Landsberg prisoners into alignment with American penal norms and practices. If Moran’s views were symptomatic of an evolving and contested consensus in American penology toward prioritizing rehabilitation over punishment, was such a system in any way consistent with the legal structure or function of the Nuremberg tribunals? International law, as implemented at Nuremberg, was not rehabilitative, but punitive. Telford Taylor and others repeatedly described the Nuremberg tribunals as acts of moral and legal deterrence—such atrocities as committed by the Nazi regime must be severely punished, lest they occur again in the future. The object of rehabilitation was not the prisoners but the German people, who would be educated and redeemed through their witness to the punishment of the war criminals. If the prisoners themselves were beyond rehabilitation both because of the moral enormity of their crimes and because of the oft-articulated supposition that they would not have committed their crimes in a “normal” society, then what was the point of parole? Already in December 1949, “in the interests of efficient institutional management,” McCloy had ordered that the system recently established by CINCUSAREUR Gen. Thomas Handy for calculating “good-conduct time” for Landsberg prisoners under army authority also apply to the Nuremberg pris-

9 6   clemen cy

oners under HICOG control.12 Under this system, HICOG subtracted five days per month from all prisoners’ sentences (provided they had not been sentenced to execution or a life term) as a reward for their obedience. The subtractions were purely conditional, in that disruptive or otherwise poor behavior could result in the forfeiture of good-conduct time and a re-imposition of the original sentence, although this did not occur in practice because the Landsberg files almost invariably rated the Nuremberg prisoners’ conduct as “good.”13 McCloy maintained that this was “in no sense an indication of any attitude of unwarranted leniency on my part,” but rather standard practice in American prisons as a “strong inducement to good behavior and an extremely effective disciplinary device.”14 As a part of this process, previous inefficiencies came to have significant ramifications for both the Landsberg prisoners and public opinion. The correction of bureaucratic errors tangentially related to the Advisory Board’s work compounded the appearance of a mass amnesty when McCloy announced his clemency decisions in 1951. Consider the mundane matter of sentence computation. If the Advisory Board was to make new recommendations for sentence cuts and prisoner releases, it required the relevant data on pre-clemency sentence expiration, with both good-conduct time and pre-trial confinement subtracted from the remaining sentence. There were two problems with this seemingly simple task, however. First, as HICOG legal advisor John Raymond argued in a memorandum to General Counsel Robert Bowie, there was or should be a legal distinction between pretrial confinement and prisoner of war–status confinement. Since many of the prisoners held military rank in addition to their civilian positions, crediting time spent in prisoner of war camps in the final stages of the war or initial months of the occupation as pre-trial confinement would provide undue sentence reductions. After all, the prisoners did not transition from POW status to civilian status until much later, and were only confined and charged as war criminals later still. McCloy did not grant any serious consideration to this legal distinction, however, counting instead all time in prison against the prisoner’s sentence.15 Second, and more significantly, the Landsberg prison administration possessed no reliable records concerning the start date of a given prisoner’s incarceration. Instead, the Landsberg sentence tabulations were based on rough dates provided by the prisoners themselves.16 As a part of the Advisory Board’s review process, then, HICOG authorized investigations into the relevant files to eliminate any discrepancies and bring the prison’s records up to date. Generally, these uncovered dates of initial confinement (as POWs

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or civilian internees) were much earlier than those previously recorded. Moreover, McCloy doubled the good-conduct award from five to ten days per month to bring American policy in line with British and French practices. These policies resulted in considerably earlier release dates for most prisoners, even prior to any clemency recommendations.17 When McCloy and the Landsberg Prison staff tabulated the increased good-­conduct inducement in August 1950, it meant the immediate release of industrialist Friedrich Flick and the six remaining prisoners from the IG Farben Trial, as well as two judges and six officials from the Ministries Trial (including former German Foreign Office state secretary Ernst von Weizsäcker) by the end of the year. All their original sentences had ranged from four to eight years. This preemptory release even prior to the clemency decisions prompted complaints about negative publicity from the State Department, which foreshadowed the outcry accompanying McCloy’s clemency decisions in January 1951.18 While McCloy granted the Advisory Board the authority to define its own operating procedures, he forbade it from relitigating the trials. Specifically, McCloy’s staff directive prohibited the board from considering “questions relating to the jurisdiction or composition of the Tribunals before which the defendants were tried,” and from “review[ing] the decisions of such Tribunals on questions of law or fact.”19 The rest of the Advisory Board’s mandate was far murkier, however, and reflected internal debates within HICOG over its appropriate legal function. Given that the Nuremberg tribunal verdicts had never been subject to an appellate review, there was no venue for the introduction of new or mitigating evidence that might overturn a guilty verdict. As such, earlier drafts had included a provision granting the Advisory Board subpoena power and the authority to take sworn depositions to uncover new, exculpatory evidence.20 Bowie ultimately deemed these extended powers both legally problematic and practically unworkable, given the logistical difficulties of locating and calling relevant witnesses in a divided Germany. Instead, in determining if clemency was warranted, the board could consider only “the physical condition and family situation of the particular defendants and other particular facts tending to warrant mitigation of his sentence” or “disparities among sentences for comparable offenses and such other facts as tend to show that the sentence imposed on the defendant was excessive.”21 This rather vague directive proved troublesome, since the board treated “other pertinent facts” in a manner that frequently undermined the factual

9 8   clemen cy

findings of the Nuremberg tribunals. Even Justice Peck, in private correspondence to the other board members prior to the start of their work in June 1950, complained of feeling that the board’s assignment was “undefined” and the time allocated to the task too brief.22 In its final report to McCloy, the board acknowledged that it had been directed “not to review the judgements on the law or the facts.” The report continued on, however, to justify exactly that, noting, “we have felt that the authority to review sentences required a differentiation between specific facts found and established in the evidence and the conclusions that may have been drawn therefrom. We consider ourselves bound by the former but not by the latter.”23 Reflecting on his experiences with the board over twenty years later, Conrad Snow still had not realized the implications of the board’s actions for the legitimacy of the verdicts. “In all cases we assumed that the crime had been committed exactly as found by the court,” Snow explained. “What we busied ourselves with was the suitability of the sentence to the crime, and in all cases where we recommended a reduction of the sentence we came to the conclusion the sentence was excessive for the crime involved.”24 Such an interpretation of the board’s operating mandate could, and did, lead to thorny legal scenarios. Short of revelations of new exonerating evidence for each prisoner, the board saw itself as forbidden from questioning the tribunals’ findings that a given defendant committed a specific act (participation in a murder, issuance of an order, etc.) and the tribunals’ legal conclusions (that the act in question constituted a crime). Yet, in asserting the right to question the tribunals’ conclusions, the board either disputed the facts or rejected the law as applied, especially in cases where there were no new mitigating circumstances, appeals for mercy on health grounds, or disparity in sentences across cases.25 In opting for a general clemency for all but the most heinous offenders, the board frequently did what it asserted it had no right or intention to do: contest the factual findings of the Nuremberg tribunals. The board’s rushed operations also privileged the prisoners’ voices over the trial record. Internal correspondence noted that Justice Peck was chairing the board only during the summer break in his court schedule from late June to early September, prompting concerns from Bowie about the “magnitude” of the board’s task and the feasibility of a thorough review in such a short time frame.26 Snow, Moran, and Peck only all arrived in Frankfurt for an initial meeting with McCloy on July 10, before proceeding on to their operating headquarters at Munich the following day. Since Peck had to depart on September 3, this left a little less than eight weeks for the board to familiarize itself with eighty-

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nine case files, hear from defense counsel, come to a consensus, and produce a full report of their conclusions for McCloy. They routinely worked long into the night and on weekends to complete their task.27 Operating in such a short time frame, the board limited itself to reviewing merely the summary judgments and the prisoner petitions for clemency, not the full trial record. The credulousness of the HICOG Advisory Board in privileging the prisoners’ personal statements and petitions spurred no small degree of resentment within Landsberg from army prisoners not afforded these benefits. In July Landsberg Prison director Col. W. R. Graham forwarded a critical report to the Advisory Board’s administrative secretary and to HICOG headquarters from a Catholic chaplain in the prison detailing the “growing resentment and bitterness” over the special treatment afforded to the Nuremberg prisoners. They were doted on by a “special” board constituted of distinguished jurists from the United States, sat for interviews with Moran and a physician (when available), and could work with their lawyers to provide detailed information as to how their imprisonment had affected the welfare of their families.28 The Dachau trial prisoners, in contrast, had “no contact whatever” with their sentence modification panel, which did not take into consideration their family or personal circumstances. From the point of view of the army prisoners, many of whom were convicted for war crimes as enlisted men, low-ranking officers, or concentration camp personnel, the clemency process confirmed their general perception that “the big-shots—who financially are better situated, and thus better enabled to avail themselves of defense counsels, who once were the mediate leaders or superiors, are now pardoned or released.” The chaplain concluded by noting that if this disparate treatment resulted in disparate outcomes for the two prisoner groups, the bitterness and despair that followed could serve as fertile ground for the spread of communist ideas, suicidal tendencies, and a renunciation of religion within the prison. “The prison chaplain has a point,” Graham concluded.29 Jealousies among the prisoners aside, such letters merely reinforced the point that the Advisory Board had a wide degree of latitude to determine its own operating parameters. Its army counterpart under CINCUSAREUR Thomas Handy chose to focus more on the trial records than on the personal statements of individual prisoners, a choice the HICOG board also could have made. Beginning work immediately after arriving in Munich, the Advisory Board developed a practice of considering one case at a time, circulating the individual case files until each board member had read every file and then meeting as a group to discuss tentative conclusions prior to the formal hearings with

10 0   clemen c y

defense counsel.30 Conrad Snow later claimed that “there was very little dif­ ference of opinion” in these meetings.31 Hearings with defense counsel took place in rapid succession at Prinzregentenstraße 28 in Munich from August 7 to August 11. Typically beginning at 8:30 AM and concluding as early as 5:30 PM or as late as 8:00 PM, with a ninety-minute break at midday for lunch, the board allotted thirty minutes for each defense counsel to present their client’s case. In this manner, the board dispensed with multiple trials each day (as on August 10, when between 8:30 AM and 5:30 PM the board considered arguments from defense counsel in the RuSHA, Ministries, and Milch Trials), sped along by the fact that attorneys frequently represented more than one prisoner, and so could be booked for multiple sessions in a row.32 At no point did the Advisory Board seek input from former prosecutors, or consider evidence introduced at trial not mentioned in the summary judgments—a long-standing practice of American parole boards. This was again a matter wherein the board, pressed for time, opted to forgo revisiting the overwhelming amounts of documentary material. The Judges Trial, for instance, which lasted from March to December 1947, included 2,093 evidentiary exhibits and the testimony of 138 witnesses in addition to statements by the prosecution, defense attorneys, and the defendants themselves.33 The Advisory Board did not review any such records for any of the cases. As the lead prosecutor of the Einsatzgruppen Trial, Benjamin Ferencz, later noted, this was not because the evidentiary records were unavailable—the trial records of the Einsatzgruppen case, for example, were kept in the basement of the same building that the board used for its hearings.34 Nor was the board’s decision to forgo consulting the relevant records due to a lack of volunteer expertise. On August 1, 1950, Ferencz (then the director general of the US Army Jewish Restitution Successor Organization in Nuremberg) sent identical letters to Peck, Moran, and Snow explaining his former duties in various capacities in the Office of the Chief of Counsel for War Crimes, which, in addition to serving as prosecutor for the Einsatzgruppen Trial, also included screening the captured German records in Berlin for use in war crimes investigations. “Whatever information was thereby acquired [is] at your disposal,” Ferencz wrote. Noting his frequent travels to Munich and availability by mail or phone, he closed with: “I would consider it a privilege to answer any inquiries you might care to make concerning the trials.” Ferencz’s “kind offer” was politely declined in a reply from the board’s administrative secretary, Gerald D. Fowlie, six days later.35 The board did not have time, and did not wish to make time, to thoroughly review all the pertinent records.

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This posed a problem because in many cases the documentary evidence against the defendants was so overwhelming that only representative samples were cited in the judgments. This fact was even acknowledged directly in the judgments themselves. By way of introduction to the verdict and sentences, the judgment in the Einsatzgruppen case read, “In each adjudication, without its being stated, the verdict is based upon the entire record.” The RuSHA tribunal used similar language, noting that “the oral and documentary evidence in this case consists of approximately ten thousand pages,” so “any effort to even summarize the evidence would be impracticable” and “those interested in the details of evidence must be referred to the record.”36 Without reference to the full trial record, the knowledge of prosecutors, or investigative resources of its own, the board judged any new, allegedly exculpatory evidence presented by the prisoners on a holistic basis of credibility instead of a thorough investigation to determine if it was true. This was especially concerning because the prisoners had presented many such alibis and affidavits at their trials and in the years since that had not held up under scrutiny. Years later, Ferencz related his difficulties to McCloy in challenging the alibis of the Einsatzgruppen defendants. Given the extensive documentary evidence linking the murders to the defendants, the prosecution only required three days to present its case. Ferencz remembered, “If the document said, March 1, 1941, we killed 2,416 Jews, 14,000 women, children and gypsies and whatever else, they said, oh, yeah, that’s my name. I was the commander of that unit. But on March 1, that was my anniversary. I was home with my wife, you know. We were at home in Berlin. I didn’t know about that. . . . So after I got through after three days, they went for about six months presenting all this evidence that they weren’t there, you know, all these alibis. That took me another three months to rebut on the basis of the evidence that we found.” Drawing an explicit comparison to the same types of evidence presented to McCloy via the Advisory Board, Ferencz concluded, “So the newly discovered evidence they gave you, without even letting the prosecution look at it, I wouldn’t give two cents for that evidence, you know.” When McCloy protested that such evidence naturally “turns up” years after the fact, and that it would have been wrong for the board or for him to ignore it, Ferencz replied, “Yes it turns up. They came to you, and they said of course yes, look it here, and they gave you all that baloney. Newly discovered . . . let me take a look at that newly discovered evidence, and give me a crack at the rebuttal, then you make up your mind, not before.”37 Moreover, the Advisory Board also interpreted its mandate to correct sen-

10 2   clemen c y

tencing disparities broadly, comparing sentences both within and across trials. This resulted in clemency recommendations that did not consider the stated rationale for such discrepancies as offered in the trial record itself. Comparing the SS defendants in the Einsatzgruppen and WVHA cases to the industrialists and bureaucrats of the Krupp and Ministries Trials skewed the board’s recommendations while reinforcing the narrative that the brutal “others” of the SS bore more responsibility for the criminal activities of the Nazi regime than these “respectable” defendants. In its effort to standardize sentences, for example, the board recommended the restitution (later approved by McCloy) of property seized from Alfried Krupp as part of the judgment against the armaments concern, not because the tribunal had unjustly seized Krupp’s assets (it had the authority to do so under Control Council Law 10), but rather because this punishment had not been levied in the IG Farben or Flick cases. Without reference to the trial records, the board interpreted this disparity as prima facie evidence that the sentence against Krupp was too harsh.38 The fact that Krupp’s judgment explained why Krupp alone was deserving of this punishment and the other industrialists were not, or that Military Governor Lucius Clay had reaffirmed the seizure of Krupp’s property as recently as April 1949, was immaterial.39

g en eral fi n d i ng s In the preface to their August 1950 report to McCloy, the Advisory Board described its institutional ethos and dedication to upholding the legacy of the Nuremberg trials. The board began by noting that “an appeal to executive clemency is a salutary part of the administration of justice,” and expressed the importance of reviewing all cases simultaneously given the prisoners’ complaints about inconsistencies across sentences and their claims of “prejudicial” outcomes because of the trials’ proximity to the conclusion of the war.40 The report proceeded in a fiery vein, excoriating the crimes of the Nazi regime. The Nuremberg trials were not only trials of individual defendants, but also trials of groups of men who had separately participated in “a vast criminal enterprise against international law and humanity.” Three conclusions of “equal importance” should, in the board’s opinion, “eventuate” from these trials: the recognition that there are laws of humanity that cannot be violated without consequence; the education of the world as to the crimes of the Third Reich to inspire vigilance against the repetition of such heinous acts; and, finally, individual justice for each defendant—punishing the individual not for the sins of the collective, but for their acts alone.41 Continuing to out-

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line in broad terms the Nazi regime’s responsibility for waging war, committing mass murder, and pillaging persons and property in occupied Europe, the board criticized the prisoners’ seeming inability to take responsibility for their wartime actions. “While all now pretend to a distaste of their work, the hard fact remains obvious that with most of them willingness must have entered into their performance,” the board noted. “No one man can make an entire nation goose-step to his will. Among the leaders down the line, even among the minor ones where the defendants now vie to place themselves, there had to be willing cooperation.”42 The Advisory Board also seemingly rejected any defense based on the notion of superior orders, both as articulated at the trials and in the individual clemency petitions. It noted that “the main impression given, and one that is most disappointing, is that a majority of the defendants still seem to feel that what they did was right, in that they were doing it under orders,” which was “even more disturbing as an attitude than a defense.” Such “exaltation” of superior orders was a “blind philosophy,” rejected by the tribunals and, the board hoped, in its own operating principle that “individuals in position of some authority . . . must be held accountable for their acts.”43 Likewise, the board’s report unequivocally appeared to reject the charge, often leveled by prisoners and their defense attorneys as well as broader swaths of the German population, that the convictions at Nuremberg were illegitimate exercises in ex post facto law. In a novel argument, the board claimed that such protests were mere rewordings of the discredited “superior orders” defense, since they implicitly invoked the Führerprincip (the legal principle that Hitler’s word was above all written law) and the superiority of German statutory law over the somewhat murkier written and unwritten international conventions regarding acceptable wartime conduct. “No law,” the board wrote, “can be called upon to defend the murder of Jews or Gypsies, the enslavement and accompanying cruel treatment of [peoples] and the wide program of racial examination and valuations which determined who would be resettled and who would be enslaved or destroyed.” Instead, based on the fundamental truth that “Murder, pillage, and slavery are against the law everywhere and have been for at least the twentieth century,” it was imperative that such arguments be discarded and the defendants held accountable for their actions.44 As we shall see, these remarks stood in stark contrast to the board’s recommendations that most individual prisoners merited a significant sentence reduction, if not outright release, because they were not fully responsible for their actions. Yet the Advisory Board’s report also indicated that, while its members

10 4   clemen c y

were contemptuous of widespread attempts to delegitimize the Nuremberg tribunals’ broader pedagogical purpose, they were sympathetic to more specific arguments that the trials’ conclusions were unduly harsh. Mindful of the oft-repeated charges of illegitimacy by Nuremberg revisionists, the board remained preoccupied with establishing unassailable individual responsibility in each case without examining the evidence—a difficult proposition. It was imperative to “place [the defendants] in the larger canvas and view them in perspective.” “To that end,” the board wrote, “it is necessary to guard against the enormity of the program in which a defendant was engaged distorting our view of his position in it.” In numerous cases, the board decided that “the defendants occupied such subordinate positions, with little authority, although their titles might have sounded impressive, that in reality they were little more than common members of a criminal organization,” and so merited substantial sentence reductions. Thus, “we believe that the adjustments in sentences which we have recommended are due and proper recognition of differences in authority and action among the defendants and place them in proper relation to each other and the program in which they participated.” The board took time to point out, however, that this circumstance cut both ways in that if no mercy was warranted, none was given—an explicit reference to the validity of the few death sentences that it recommended McCloy uphold.45 The Advisory Board’s report concluded with two contradictory statements that were symptomatic of the broader tensions between justice and mercy that the board attempted to address in its findings. On one side, “a mistaken tenderness toward the perpetrators of mass murder would be a mockery. It would undo what Nuremberg has accomplished, if in the end we were guided entirely by consideration of sympathy or generosity.” On the other, and much more consistent with the substance of the board’s findings, “In our recommendations, we have made all possible allowances, and if we have erred, we have erred on the side of leniency.”46

th e i rred eemab le The Advisory Board was generous, recommending that McCloy uphold only thirteen out of eighty-nine sentences. What did these cases have in common? Generally, the board had very high standards for confirming sentences. These prisoners’ crimes were amply documented, often in reports bearing their name or signature. Many of them had admitted to a degree of responsibility on the witness stand, often expressing continued belief in the soundness of their wartime actions. Yet it was not enough for these individuals to have committed

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illegal acts that were brutal or heinous, to admit to them, or even to justify them after the fact. Rather, for the board (and later McCloy), prisoner motivations, to the extent that they could be established, were vital signifiers in whether clemency was warranted. In Case 9, the Einsatzgruppen Trial, seven recommendations of “no clemency” represented the board at its most hesitant to alter the tribunal’s sentencing. Not coincidentally, these prisoners were convicted murderers, commanders of mobile killing units on the Eastern Front sentenced to death for their crimes. Moreover, these prisoners held uncontested command positions in the field, the documentary evidence against them was overwhelming, and they had often further incriminated themselves in testimony before the tribunal. Otto Ohlendorf, the head of Einsatzgruppe D and the main defendant in the case, had presided over the murder of at least ninety thousand people, the evidence of which was “recorded in his own reports and admitted.” Because of Ohlendorf’s leadership in this “wholesale slaughter and campaign of extermination,” and because he had nothing to offer the board apart from “an elaborate philosophy of superior orders,” the board argued that McCloy should proceed with Ohlendorf’s execution. Paul Blobel, commander of Sonderkommando 4a from June 1941 to January 1942, had been convicted for sixty thousand murders that had been carried out by units under his command. The board determined that “nothing by way of defense, avoidance, or explanation” raised in Blobel’s petition had not been considered at trial. Blobel’s principal complaint that he disagreed with the figure of sixty thousand victims because “not more than half” of that number were shot also did not help his case. Werner Braune, commander of Einsatzkommando 11b, had also admitted to ordering and personally witnessing mass executions of Jewish civilians in 1941 and 1942, testifying that the Jews he rounded up were shot. In one massacre alone at Simferopol in December 1941, Braune’s units had murdered over fourteen thousand people. Erich Naumann, head of Einsatzgruppe B from November 1941 to March 1943, was also responsible for thousands of executions of Jews and other civilians. He too had testified that he considered his orders to liquidate civilians legal and necessary as part of the war effort, which for the board “foreclose[d] all considerations of clemency.” Adolf Ott, the commander of Sonderkommando 7b of Einsatzgruppe B in February–August 1942, felt himself in a better position than his co-defendants. He claimed that he had primarily spent his time in the East engaging in anti-­

10 6   clemen c y

partisan warfare and so could not be tied to astronomical numbers of civilian murders. Yet the board recommended McCloy uphold Ott’s death sentence because Ott had testified that, apart from the anti-guerilla operations, he had also ordered his subordinates to shoot Jews (although he maintained it was a relatively small number of Jews). The board also rejected the petition of Martin Sandberger, commander of Sonderkommando 1a of Einsatzgruppe A from June 1941 to September 1943. There was overwhelming evidence against Sandberger, including voluminous reports and correspondence documenting massacres and roundups of Jews and other civilians during his period of command. The board explained, “it is too plain that this defendant in a position of leadership was engaged day in and day out for a period of two years in what he knew to be nothing other than the business of murder.”47 Ohlendorf, Blobel, Braune, and Naumann were executed in June 1951. McCloy ultimately commuted Ott’s and Sandberger’s sentences to life imprisonment following intercessions on their behalf from prominent clergymen. Both walked free in 1958. The board’s seventh and final recommendation of “no clemency” in the Einsatzgruppen trial was a somewhat special case. Waldemar Klingelhöfer had been an interpreter and commander of Vorkommando Moscow of Einsatzgruppe B in August–September 1941. The tribunal convicted Klingelhöfer on the narrower grounds of participating in two smaller massacres near Smolensk. Klingelhöfer claimed in his petitions that he had corrected a mistakenly self-incriminating affidavit, but that the corrected version had not been considered by the tribunal (it had been). The Advisory Board recommended McCloy uphold the death sentence because the only issue at stake in the affidavit was why Klingelhöfer had executed thirty Jews. Pre-trial he claimed it was because they left a ghetto without permission. Seeing that the judges would not look favorably upon that explanation, he changed his story in 1947 to say that the Jews, after leaving the ghetto without permission, had joined a partisan group, and were only then shot.48 McCloy, apparently more cautious than the board, ultimately commuted Klingelhöfer’s sentence to life imprisonment. Klingelhöfer was released in 1956. Although he was prosecuted in Case 4, the WVHA/Concentration Camp Trial, as the only prisoner in that trial who did not receive clemency, Oswald Pohl can also be grouped with the commanders of the Einsatzgruppen in considering the board’s reasoning. As head of the WVHA, Pohl was responsible for the administration of all concentration camps; his rank was high and the

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evidence against him overwhelming. The board referred to Pohl as “an admitted slave driver on a scale never before known” who had “kept a tight rein on all aspects of concentration camp administration, and constantly fought for longer hours, more production and more strict supervision.” Beyond his central role in the Reich’s slave labor system, Pohl also authorized the provision of camp inmates for medical experiments, took a direct part in the destruction of the Warsaw ghetto (which resulted in the deportation and extermination of over fifty-six thousand Jews), and played an administrative role in the systematic plunder of Jewish property in the occupied territories. For all this, the board reasoned, a death sentence was warranted.49 Pohl was executed in June 1951 as well. In Case 7, the Hostages Trial, which dealt with the Wehrmacht’s illegal execution of civilian hostages as part of the partisan war in the Balkans and Italy, the board advised against clemency for Wilhelm List and Walter Kuntze, who had received life sentences. The board’s evaluations of List and Kuntze hinged not only on the petitioners’ transmission of illegal orders from the High Command to their troops, but also on their documented advocacy of reprisal shootings, ruthlessly carried out by their subordinates. Kuntze, the head of the 12th Army in Serbia from October 1941 to August 1942, authored supplemental directives urging his troops to “show special energy and ruthless action,” avoiding “false sentimentalities; it is preferable that 50 suspects are liquidated than one German soldier loses his life.” These orders then mandated a 100:1 reprisal ratio for every German soldier killed by partisans and a 50:1 ratio for every German solider wounded. Given that subsequent reports from his subordinates documented these orders being followed, the board found Kuntze’s life sentence “fully warranted.”50 Likewise, List, commander of Armed Forces Southeast from June to October 1941, did not receive a clemency recommendation from the board because “there was a personal joining in the deliberate campaign of murder, violence and terror.” Specifically, on September 5, 1941, List ordered troops under his command to enact “ruthless measures,” including “hangings, burning down villages, seizure of more hostages, deportation of relatives, etc. into concentration camps,” in addition to implementing the 100:1 reprisal ratio cabled from Berlin. The only potential mitigating factors in both List’s and Kuntze’s sentences were their ages, seventy and sixty-seven, respectively, but that was a matter that could be revisited later.51 McCloy upheld the life sentences, but Kuntze and List were ultimately released on medical grounds: Kuntze in 1953 (died 1960) and List in 1952 (died 1971).

10 8   clemen c y

The board also recommended McCloy uphold the seven-year sentence of Ernst Dehner (Case 7, Hostages Trial) and the fifteen-year sentences of Hermann Hoth and Georg-Hans Reinhardt (Case 12, the High Command Trial). Although the tribunals had judged the scale of their offenses as lesser than those of figures like List and Kuntze, the documentary record in all three cases was unimpeachable, and the board was further put off by all three officers’ refusal to engage with the evidence against them.52 McCloy upheld their sentences, but their remaining time in prison was brief. Reinhardt was released outright in 1952; Hoth was paroled in 1954. Given that his sentence was near expiration, McCloy went ahead and granted Dehner clemency, reducing his sentence to time served. Even if they did not find their arguments compelling, individual board members were struck by the evident humanity of the former generals. Writing to Conrad Snow in October 1950, Frederick Moran confessed that the “human beings at Landsberg are still in my mind,” particularly “the ‘Generals’ who are sick old men, existing in a world which has discarded the values by which they formerly lived.” Evidently moved, Moran concluded, “These men are the only people at Landsberg toward whom I wish we had been more generous in our recommendations.”53

clemency The few occasions where the board recommended clemency for traditional reasons (medical necessity, a disparity in sentences across cases, or the discovery of exculpatory evidence) revealed that the board recognized the merits of these specific prisoners relative to the others, but nonetheless proceeded ahead with sweeping recommendations of clemency across nearly all cases. But even in these seemingly clear-cut cases there were confusing discrepancies. At the High Command Trial in 1948, the tribunal sentenced Georg von Küchler to twenty years for, among other crimes, his implementation of the commissar liquidation order against Soviet prisoners when he commanded Army Group North on the Eastern Front from 1942 to 1944, his deliberate and deadly neglect of Soviet prisoners of war, his deportation of civilians from the occupied Eastern territories for slave labor, and his subordinates’ frequent execution of civilians for their supposed anti-German attitudes or alleged participation in the partisan resistance. The board found no fault in the charges or the verdict. Yet the Advisory Board recommended reducing Küchler’s sentence from twenty years to ten on medical grounds, concluding that if Küchler, already aged seventy, served fifteen more years, this would be tantamount to a

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life sentence. It read into the tribunal’s sentence of twenty years—instead of life—the “intention” that the defendant should not die in prison, and this “required, realistically” a lesser sentence. Even here, however, the board deviated from standard legal practices. As the HICOG general counsel’s office noted, even if the board’s reading of the intent behind Küchler’s sentence was correct, “a more appropriate way of accomplishing the board’s apparent objective would be consideration of medical parole . . . when and if justified.”54 The last clause was particularly relevant, as Küchler’s medical and psychiatric examinations in 1950 revealed a man “in excellent physical condition” with no real evidence of the vascular and respiratory problems that plagued most older prisoners. He received no medical care from the prison hospital and spent his days on the gardening detail in the morning and writing his autobiography in the afternoons.55 Although Küchler’s medical situation was not dire, McCloy sided with the board and reduced Küchler’s sentence to twelve years because of his advanced age. Küchler was duly paroled in February 1953. He died in 1968, a week prior to his eighty-seventh birthday. Similar logic led to the Advisory Board’s recommendation that Franz Schlegelberger—at seventy-five years of age, the oldest prisoner in Landsberg— should also receive clemency. Schlegelberger, who had served as the Third Reich’s justice minister from January 1941 to August 1942, was the highest-­ ranking defendant in Case 3, the Judges Trial, where the tribunal sentenced him to life. The tribunal found that Schlegelberger was instrumental in ensuring that the Ministry of Justice implemented Hitler’s Nacht und Nebel (Night and Fog) operation. Night and Fog seized “resistors” to the regime in German-­ occupied territories and shipped them to the Reich in secret for summary trial and execution or confinement in concentration camps. The victims thus disappeared into the night and fog without notification to their families, often never to be heard from again. Moreover, although Schlegelberger was less radical than some of his colleagues in that he urged that Mischlinge (people of “mixed blood,” that is, half or quarter Jewish) be given a choice between mandatory sterilization and deportation to the East, he still favored “evacuation” of full-blooded Jews from the Reich and the occupied Eastern territories— knowing full well that this meant their murder. Finally, Schlegelberger issued decrees that justified the persecution of Poles and Jews in the occupied Polish territories under the guise of prosecuting offenses against public order, repeatedly pushing judges to enact harsher sentences, including the death penalty, for Poles engaged in criminal activity. This was part of a broader pattern of Schlegelberger’s attempts to protect the bureaucratic prerogatives of the Ger-

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man judiciary from the encroachment of extrajudicial SS and police actions by encouraging judges to pass harsh verdicts and revise sentences in accordance with Hitler’s wishes.56 The Advisory Board, however, looked with some sympathy on Schlegelberger’s claim that, having been a civil servant for fifty years, he served the regime only to prevent worse abuses from occurring under a more devout Nazi (as ultimately came to pass when Otto Thierack replaced him in August 1942). In its report, the board quoted the tribunal judgment’s conclusion that “Schlegelberger is a tragic character. He loved the life of an intellect, the work of the scholar. We believe he loathed the evil that he did . . .” Tellingly, however, the board omitted the final part of that sentence as it had appeared in the judgment, a reference to the fact that Hitler had approved of Schlegelberger’s work to such a degree that he granted him one hundred thousand reichsmarks and an estate upon his retirement: “. . . but he sold that intellect and that scholarship to Hitler,” the tribunal remarked, “for a mess of political pottage and for the vain hope of personal security.”57 In assessing Schlegelberger’s case for clemency, the board pointed to his age and infirmity, noting that Schlegelberger was “desperately ill, with a life expectancy of less than one year.” Given its reasoning in Küchler’s case, it is unclear why the board did not accept Schlegelberger’s life sentence as meaning just that. Nevertheless, McCloy followed the board’s recommendation and released Schlegelberger in January 1951. He died in December 1970, aged ninety-four, having received a full government pension commensurate with his rank as a former state secretary.58 Max Kiefer, originally sentenced to twenty years, served as an architect and sub-office manager in office C-2 of the WVHA, responsible for “special construction tasks.” According to the Advisory Board’s report on Kiefer, “The Tribunal assumed that [these tasks] . . . included the construction of gas chambers and crematories in the concentration camps used in connection with the extermination program.” New affidavits placed those responsibilities under a different office head.59 So, while Kiefer was an SS member and office manager in the WVHA who had extensive knowledge of the slave labor program and used that labor to build subsidiary concentration camp structures, he was not, as the judgment had described, “one of the integral cogs in the evil machine of human destruction.”60 Hermann Pook, sentenced to ten years, had been the chief dental surgeon of the WVHA, with administrative oversight of all the concentration camp dentists from September 1943 until the end of the war. The tribunal concluded

cl emency 1 1 1

that Pook’s frequent inspection tours of the camps rendered him intimately familiar with the atrocious conditions faced by the prisoners and the widespread practice of looting gold from the teeth of the dead. However, Pook was ultimately found guilty of crimes against humanity primarily because of a single affidavit that claimed he made a series of decisions rationing scarce resources that indirectly contributed to inmates’ suffering and death. The affidavit argued that, upon assuming his command, Pook was displeased with the “soft treatment” of camp prisoners by dentists, ordering that future dental procedures be performed without anesthetic and that camp dentists stop providing inmates who had lost their teeth with dentures. The tribunal judged that apart from the obvious pain and suffering these orders caused, they also likely increased the death rate of prisoners, many of whom, having lost their teeth from malnourishment, suffered from dangerous and sometimes deadly digestive problems (or starvation) because of their inability to consume their rations without dentures. Upon examining Pook’s file, however, the Advisory Board determined that this affidavit had since been repudiated, and so, while Pook obviously had knowledge of the camp’s atrocities, he was not guilty of meaningfully contributing to them.61 Kiefer and Pook may well have been illserved by the tribunal, but the board accepted their “new” evidence without investigating its veracity. McCloy ultimately reduced Kiefer’s and Pook’s sentences to time served. The board’s justification for clemency in the case of Gustav Nosske was much more complicated, but still did not repudiate outright the findings of the Nuremberg tribunal, as the board justified its recommendation with both new evidence and reference to Nosske’s resistance to other criminal orders later in the war. Nosske had commanded Einsatzkommando 12 of Einsatzgruppe D from June 1941 to March 1942, and the tribunal sentenced him to life for the murders that had taken place under his command. That Nosske had been responsible for at least 241 killings during the time of his command was not in dispute. The question remaining at trial—which prevented Nosske from receiving the death penalty—was whether these killings proceeded under the Führer’s extermination order or as part of separate anti-partisan operations. Nosske testified that he considered himself fortunate in that he morally opposed Hitler’s exterminatory orders and avoided carrying them out. He noted, however, that if directly ordered to murder Jewish women and children, he probably would have done so despite his inward opposition. He claimed that the people he did execute were saboteurs who had tangibly and illegally resisted the German occupation, and that he had acted lawfully. The unit action

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reports specific to Nosske’s command were limited in number and inconclusive as to the rationale behind the executions, but based on the evidence the reports did provide, the tribunal strongly suspected that Nosske’s unit had murdered innocent people rather than partisans. The tribunal gave some credence to Nosske’s self-avowed opposition to Hitler’s orders as an Einsatzgruppen commander, however, because in September 1944 Nosske was ordered by the SS police leader in Düsseldorf (where he was then serving) to round up and shoot all the remaining Jews and half-Jews in the area but refused. While the tribunal noted that Nosske likely protested because he had qualms about shooting the half-Jews, whom he considered German and who were often married to Germans, “his action in refusing categorically to obey the order, demonstrated . . . that a member of the German Armed Forces could protest a superior order and not be shot in consequence.”62 The Advisory Board, however, thought that Nosske was due further leniency. In his clemency petition, Nosske “vigorously maintain[ed]” that his commando was primarily a reserve and support unit, and the executions found to be criminal by the tribunal did not consider that the victims had “actually engaged in sabotage,” that he was absent from the unit at the time of the murders, and that “he convinced himself through investigation that the executions were justified” after they had taken place. Nosske submitted a new supporting affidavit to this effect. The board opined that since “the only document implicating the defendant directly in the execution of Jews is somewhat equivocal, we are prepared to give weight to the defendant’s contention.” Moreover, the board thought that the tribunal had not properly rewarded Nosske’s refusal to obey the 1944 order, arguing that Nosske’s action was more courageous in retrospect because he was demoted in rank from lieutenant colonel to private and sent to the front as punishment for his disobedience. The board thus recommended a reduction in Nosske’s sentence to ten years.63 McCloy concurred; Nosske was released in December 1951. Nosske was not a hero—he was an unrepentant killer and a liar who was detested by his co-defendants and American interrogators alike. He repeatedly refused to accept any responsibility for his actions and constantly shifted blame to others.64 He likely had murdered many more people than the judgment accounted for, and his assertions that his unit executed only partisans and saboteurs was false as well, although the tribunal could not prove that beyond a reasonable doubt at the time of his trial. Still, the board’s actions in this case comported with a traditional understanding of clemency in that Nosske was rewarded for both producing more evidence that muddied the waters

cl emency 1 1 3

around his conviction and drawing attention to a concrete action later in the war that saved lives. The board was thus convinced by evidence (however dubious) that Nosske was entitled to a sentence reduction. For former lieutenant general Helmut Felmy (commander of the LXVIII Army Corps in Greece from May 1943 to October 1944), convicted at the Hostages Trial for the murderous anti-partisan reprisal actions directed toward innocent civilians by his troops, the board again argued that mitigating circumstances warranted clemency. There was no question of the illegality of Felmy’s troops’ actions. In one particularly gruesome incident, designated “Operation Kalavryta,” his 117th division had wrought vengeance on the Greek countryside in the aftermath of the execution of seventy-eight German soldiers by local guerillas. As retribution, the German troops burned twenty-five Greek villages and murdered 696 Greeks, including the entire male population of the village of Kalavryta itself.65 Although there were other such incidents attributed to units under Felmy’s command, Kalavryta loomed largest in the judgment against Felmy as justification for his fifteen-year prison sentence. The Advisory Board, however, found room for mercy, “despite the grave seriousness and unforgivable character” of the crime, believing Felmy’s new affidavits that, upon hearing of the massacre, he reprimanded the commanding officer of the 117th division for the excesses. It appears, however, that Felmy was not as perturbed by the atrocities against the Greeks as his affidavits indicated, since the Advisory Board’s notes on a face-to-face interview with Felmy at Landsberg included Felmy’s rebuke of the Americans for their “great idealism” and failure to understand just how “indescribably dirty and nasty” the partisan war in the Balkans was. For Felmy, the prosecution and conviction of German generals were evidence that the US occupation was committed to “the debasing of the whole of the officer corps of the German army.” Nevertheless, the board judged that Felmy had not exceeded his orders. It also noted that, since Felmy was already sixty-five, a full sentence would be tantamount to life, which the judgment clearly did not intend. Here the board misread the file, basing this portion of the recommendation on the mistaken assumption that Felmy’s sentence was twenty years instead of fifteen. Nevertheless, the board recommended ten years for Felmy, which McCloy followed.66 Felmy was released in 1951; he died in 1965. While in several of these cases the Advisory Board arguably overstepped its mandate in recommending clemency, such as in arguing for sentence reductions over medical parole or subjectively calculating the worth of lives ex-

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tinguished versus lives saved in each case, its decisions generally comported with established legal norms. Based on their conceptions of “American justice,” these inmates presented real hardships (age or infirmity), a genuine legal complaint (disproportionate sentence), or new evidence (dubious or not) to bolster their petitions for clemency. In the rest of its findings, however, the board would wade into the judgments themselves, doubting established facts in the absence of new evidence, questioning the responsibility of defendants for undisputed actions, or simply disagreeing with the tribunals’ conclusions without any explanation at all.

ch a p te r f o ur

Undoing Nuremberg

Mr. McCloy referred to the reasoning which led to these decisions . . . that these revisions had been made in an attempt to bring the sentences into line with the American concept of justice. Meeting minutes of the Western European Ambassadors Conference at Frankfurt, February 5, 1951

In 1978, retired judge David W. Peck sat for a series of wide-ranging oral history interviews sponsored by the New York Bar Foundation. In this 142-page summation of Peck’s professional life, his leadership of the Advisory Board on Clemency for German War Criminals in 1950 consisted of a single paragraph: an inconsequential curiosity in an otherwise long and distinguished legal career. Revealingly, Peck explained that “the ad hoc courts” at Nuremberg had “improvised” in the postwar period and the Advisory Board’s review of the Nuremberg sentences had proceeded “with particular consciousness that there was no appellate review,” taking “a good, conscientious, thorough look at these cases to see whether justice had been done or not.”1 Peck framed the board’s work as not only an evaluation of whether convicted criminals deserved mercy, but a referendum on the entire trial program. Had justice been done at Nuremberg? In their report to McCloy, the Advisory Board’s answer was a resounding “no.” Regardless of the political context created by a worsening Cold War, the board consistently expressed legal, not political, disagreements with the Nuremberg judgments in hundreds of pages analyzing each of the eighty-nine prisoners’ petitions. As we saw in Chapter 3, in a limited number of cases the board behaved as a more traditional clemency panel, recommending the revision of sentences because of new evidence (no matter how dubious in origin) or infirmity. Most of its reports, however, offered McCloy a series of arguments that went well beyond the board’s original mandate. It did not have the 115

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authority to question findings of fact (that a given defendant had committed an act, and that the act in question constituted a crime). Yet it frequently did so, arguing that the tribunals failed to take mitigating circumstances into account even when the judgments clearly indicated that they had. The board also systematically questioned the parameters of individual guilt or responsibility as established by the tribunals, at times coming dangerously close to reviving the discredited “superior orders” defense deployed by most of the Nuremberg prisoners at trial. In some cases, the board simply disagreed with the tribunals’ findings, deeming the judgments insufficient to justify a conviction on one or more charges even though it had not consulted all the trial records or evidence. Whatever the amorphous concept of “American justice” meant to McCloy, the Advisory Board’s case reports indicated that it was absent at Nuremberg. The board’s conclusions did not represent the only valid reading of the Nuremberg judgments. Only a year before the board examined the cases, Military Governor Lucius Clay and his staff had affirmed nearly every sentence. Likewise, the board’s findings were often contested by the staff of the HICOG general counsel’s office, which filed dozens of dissents with McCloy in cases where they judged that the board had overreached or erred in its conclusions. Following the Advisory Board’s report to McCloy in August 1950, General Counsel Robert Bowie criticized the panel for its “excessive leniency,” telling McCloy that he had “serious doubts” about twenty-four of the board’s recommendations and deemed the reasoning behind a further twenty-two recommendations “inadequate.”2 Although McCloy sided with the board in most instances, these criticisms were often prescient, anticipating the public backlash to come against McCloy’s final sentencing revisions. Since the board framed its reports on individual prisoners in the language of justice done or injustice corrected rather than mercy, each clemency recommendation implicitly questioned the legitimacy of the Nuremberg verdicts. Because McCloy affirmed the board’s conclusions in his own pronouncements on the cases, the board’s private criticisms and rejections of the tribunal findings both entered the public sphere and served as an internal HICOG reference point for all future clemency and parole evaluations through 1958. While in theory the board upheld the findings of the Nuremberg trials, in practice they rejected them one prisoner at a time.

g ui lty, but no t resp o nsi b le The Advisory Board frequently disputed the Nuremberg tribunals’ findings that a given defendant had directly committed a crime or ordered one, or in

u ndo ing nuremb erg   1 1 7

their supervisory capacity bore ultimate responsibility for the criminal activities of their subordinates. In justifying their recommendations, the board defined “responsibility” narrowly, focusing less on the authority that a given defendant exercised than on the existence of an official superior to the defendant that exercised overlapping or superseding authority. In some instances, the board’s notion of limited responsibility applied to entire institutions of the Third Reich. In their introductory comments to their recommendations in Case 8 (the RuSHA Trial), the board remarked that while it was “impressed with the enormity” of Himmler’s program of ethnic cleansing, Aryanization, and resettlement, it “had to grant clemency to many of the defendants because of the restricted nature of their relationship to the program or their subordinate capacities in the organization.”3 This was odd, considering that five of the seven defendants served in the highest positions of authority in the RuSHA. Still, given the internal structure of the Third Reich, many defendants served under the administrative umbrella of a small number of figures such as Himmler, Alfred Rosenberg, Joseph Goebbels, Hermann Göring, or Martin Bormann. The board viewed this administrative structure as inherently exculpatory. Yet this top-down view of how policy was conceived and implemented in the Third Reich was not an accurate picture of Nazi governance. Minor officials often had substantial latitude to implement broad policy directives from Hitler and his closest advisors, and frequently introduced initiatives of their own based on signaling from above that were only later elevated to the status of official state policy. Moreover, such an interpretation also assumed that principal government figures such as Himmler had unitary authority over policies in their portfolios, which was also not true, as individual governing portfolios were constantly renegotiated with the rising and falling tides of prestige, authority, and approval flowing from Hitler to any given individual at any given time. While the notion of the Third Reich as a “polycratic” dictatorship beset by a Hobbesian war of all against all at the agency and ministerial levels is often overstated in that these disputes did not generally hinder the dictatorship from functioning on a day-to-day basis, it did significantly complicate notions of “authority” and “responsibility” for policy decisions beyond the binary understanding adopted by the Advisory Board.4 Whereas the tribunal judgments had embraced a more nuanced conception of what made a given defendant responsible for a crime outside of direct participation, this was often interpreted by the Advisory Board as a step too far down the perilous path to collective guilt. The board’s narrower conception of responsibility tended to exculpate

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the very offenders whose institutional profiles most closely matched those of the remaining Landsberg prisoners: too high-ranking in the regime to have committed atrocities directly, and, though members of the upper echelon of government and military leadership, generally neither members of Hitler’s inner circle nor in possession of unitary authority over policymaking in their respective offices. Consider the board’s opinion on Otto Hofmann, the head of the RuSHA from 1940 to 1943, who was sentenced to twenty-five years’ imprisonment. Under Hofmann, the RuSHA not only performed medical examinations to determine the racial composition of individuals, but also made policy recommendations based on those findings. For instance, the RuSHA’s determination of the race of a pregnant foreign national residing in Germany or that of a foreign national who had impregnated a German woman would result in a recommendation as to whether the fetus they carried should be forcibly aborted, left alone, or seized by the state for “Germanization.” The RuSHA was also directly involved in similar policy questions regarding the kidnapping of foreign children for Germanization and the forcible sterilization or resettlement of Poles and other populations under German control. In Hofmann’s case, the judgment identified evidence that, among other crimes, he had personally directed such measures designed to safeguard the German race, even continuing to implement similar policies in his capacity as an SS police leader based in Stuttgart from 1943 to 1945 after leaving the RuSHA.5 Hofmann had also attended the notorious Wannsee Conference hosted by Reinhard Heydrich in January 1942, where the bureaucratic coordination and implementation of the Holocaust was discussed, indicating the importance of his office in the wider scheme of Nazi racial policy. Otto Hofmann was not a peripheral figure, but the head of an important SS agency. Nonetheless, the board recommended a reduction in Hofmann’s sentence to fifteen years because “the function of the RuSHA was to classify, and was therefore auxiliary to the main program, which [Hofmann] neither designed nor operated.” Here the board’s recommendation was consistent with a dissenting opinion of one of the judges in the case, Daniel T. O’Connell, who had not questioned Hofmann’s guilt or responsibility, only the utility of a longer sentence for Hofmann and other defendants for rehabilitative purposes, noting that their crimes stemmed from their duty as civil servants to carry out government policy. The board readily incorporated this reasoning into their narrower conception of Hofmann’s responsibility. Arguing that the board had not taken account of the specific incidents listed in the judgment or the “vi-

u ndo ing nuremb erg   1 1 9

cious nature” of Hofmann’s agency in “the transfer and expulsion of populations, abortion, slave labor, persecution of Jews and Poles, punishment for sexual intercourse between Germans and non-Germans and the kidnapping of foreign children,” the general counsel’s office saw “no legitimate basis for the reduction of Hofmann’s sentence.”6 McCloy sided with the board. Hofmann was released in 1954. Officials of lower rank than Hofmann received even more generous treatment. Rudolf Creutz, the deputy commander of the office of the Reichskommissar für die Festigung deutschen Volkstums (Reich commissioner for the consolidation of German nationhood)—who the board acknowledged was “implicated in the kidnapping program and in the forced evacuation and resettlement of populations, forced Germanization and slave labor”—also received a reduction in his sentence based solely on the board’s determination that he was a “subordinate” official. Creutz’s subordinate wartime actions included bypassing his superior, Ulrich Greifelt, in setting policy directives, in one instance writing to the governing officials of the occupied territories that “There are a great number of children in former Polish orphanages who, on account of their racial characteristics, must be considered to be children of Nordic parents. These children . . . must be subjected to a racial and psychological selection procedure. Children found biologically valuable for Germandom are to be Germanized.” Official policy guidelines followed from Creutz’s agency head shortly thereafter. At trial, Creutz’s subordinate position relative to Greifelt had been duly considered, resulting in a life sentence for Greifelt (deceased at the time of the board’s later deliberations) and fifteen years for Creutz, despite their similar criminal activities. For this reason, when the board advised reducing Creutz’s sentence, the HICOG general counsel’s office dissented, noting, “It nowhere appears that [Creutz] participated with reluctance or had any qualms or scruples about the work in which he was engaged.” In short, there was no exculpatory evidence in this case.7 Still, the Advisory Board recommended McCloy shorten Creutz’s sentence from fifteen years to ten. McCloy complied; Creutz was released in 1954. If the board treated favorably the high-ranking officers taking directives from Heinrich Himmler on resettlement policy, would clemency perhaps be out of the question for RuSHA field officers who implemented the policies of ethnic cleansing? For both Fritz Schwalm and Herbert Hübner, RuSHA field officers in Lodz and Posen, respectively, this was not the case. The board recommended their sentences also be reduced, from ten years to time served. It showed leniency even though, from June to October 1941, Schwalm trained

12 0   u n d o in g n ur e m be r g

RuSHA’s racial examiners and had the power to reverse or reaffirm the ex­ aminers’ individual decisions regarding forced sterilization or kidnapping children for Germanization. The tribunal had judged his involvement in the ­agency’s kidnapping program as “established beyond a doubt,” based on a cache of his signed orders concerning transport of the victims. Moreover, Schwalm provided no new information in his petition challenging this conclusion. Hübner, found guilty by the tribunal of “participation in the forcible evacuation and resettlement program and slave labor,” produced an affidavit stating that an incriminating letter featuring prominently in his judgment was not actually signed by him. Having consulted no other exhibits beyond the judgment, the Advisory Board saw this fact as indicative of a lack of evidence against Hübner, particularly since Hübner was “in the lowest echelon of all the defendants prosecuted in this case” and thus not as responsible for these policies as others in the RuSHA.8 McCloy ultimately followed the board’s recommendations, releasing Schwalm and Hübner in early 1951. Taken together, the board’s recommendations that agency heads, such as Hofmann and Creutz, and field officers, such as Hübner and Schwalm, all receive clemency for their lack of responsibility in setting and implementing Nazi racial policy begs the question: besides Himmler and Hitler, who exactly was responsible for the RuSHA’s crimes? The Advisory Board’s pattern of questioning the responsibility of entire institutions or classes of criminal is also illustrated in its report on Case 1, the Doctors Trial, wherein the board recommended that all nine prisoners have their sentences substantially reduced, including the commutation of five life sentences. In its initial remarks on the medical case, the board noted that all defendants were indicted for war crimes and crimes against humanity for “participating in various medical experiments upon the inmates of concentration camps, many of whom died as the result of the experiments, while others suffered injury and all suffered pain and distress.” It was undisputed that these experiments proceeded without their subjects’ consent and under hazardous conditions; the board contended that “those who participated in them in any degree must be held to have acted illegally, and punishment must be determined based on their position and participation.”9 Fritz Fischer, Karl Genzken, Siegfried Handloser, Gerhard Rose, and Oskar Schröder had received life sentences from the tribunal, but the Advisory Board recommended cuts to ten years for all except Genzken—for whom the board recommended a fifteen-year sentence. Fritz Fischer was the assistant to Karl Gebhardt (also convicted in Case 1 and executed for his crimes in 1948), the

undo ing nuremb erg   1 21

doctor in charge of medical experiments at Ravensbrück and Auschwitz, and had performed “sulfanilamide experiments” (where a patient was wounded and the wound deliberately infected so that antibacterial treatments such as sulfanilamide could be tested under battlefield conditions) and experimental bone grafts. Inmates had suffered permanent mutilations or died as a direct result of Fischer’s actions. The board, however, saw Fischer as an assistant to the primary offender and pointed to his young age (twenty-seven when the war broke out) and the influence of a powerful, charismatic superior as mitigating factors, although when the actual experiments were carried out, Fischer was thirty and had been practicing medicine for six years. The HICOG general counsel’s office objected strenuously on these grounds, recommending twenty years instead.10 McCloy ultimately reduced Fischer’s sentence to fifteen years; he was released in 1955. Afterward, Fischer found employment as a researcher for Boehringer Ingelheim, a pharmaceutical company.11 In a five-line statement with no explanation of its reasoning, the board also deemed Gerhard Rose a mere “consultant” in a series of experiments wherein concentration camp inmates were repeatedly injected with typhus to test vaccines for German army and SS personnel (typhus was endemic in enclosed ghettos, and thus a threat to proximate German populations), even though the deadly vaccine trials had been conducted specifically as a result of his urgings. The general counsel recommended twenty years.12 McCloy reduced Rose’s sentence to fifteen years; he was released in 1955. In 1962 Rose became a member of the esteemed Max Planck Society, and in 1977 he received the Schürmann Medal from the German Society for Military Medicine.13 Similarly, the board deemed it “far from clear” that Siegfried Handloser, in his capacity as chief medical officer of the field forces in 1941 and head of the Wehrmacht Medical Services after July 1942, was responsible for the experiments carried out by his subordinates across the medical departments of the German Army, Navy, and Air Force. In support of their conclusion that Handloser’s life sentence was unjust, the board pointed to new evidence that called into question Handloser’s attendance at a meeting in December 1941 where the typhus experiments were discussed and authorized. The board did not, however, have any new evidence exonerating Handloser from administrative oversight of the sulfanilamide trials or “freezing experiments” (wherein prisoners were submerged in ice water as a means of determining effective hypothermia protocols for downed pilots), and did not contest that he knew of all three programs but did nothing to stop them.14 In this sense, the board argued that the unifying executive officer of the armed forces medical services

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was less culpable than both fanatics like Himmler at the very top and the doctors who administered the actual experiments at the very bottom. McCloy commuted Handloser’s sentence to twenty years’ imprisonment; he was released in December 1953 after a terminal cancer diagnosis.15 Finally, the board used similar reasoning to reduce the sentence of one of Handloser’s immediate subordinates, Oskar Schröder, who served as chief medical officer of the Luftwaffe beginning in early 1944. Schröder had acquiesced in continuing the typhus experiments begun by his predecessor and exercised command responsibility over the “seawater tests” at Dachau in the spring and summer of 1944, wherein inmates were forced to consume seawater in order for researchers to test various experimental methods of rendering it potable. While the inmates had suffered immensely in the latter experiment, the tribunal was unable to establish that any of the test subjects had died, a fact which the board treated with more importance than the tribunal had. Schröder, then, was fully responsible only for illegal experiments that did not result in death; he was only partially responsible for overseeing the deadly experiments that his predecessor had originated, even though Schröder presided over them for the entire calendar year of 1944.16 McCloy commuted Schröder’s sentence to twenty years; he was released in 1955. Afterward, he served as a medical consultant for the US Air Force installation in Heidelberg, Germany.17 The trend of marginalizing individual physicians’ responsibility, particularly those in administrative positions, continued with Herta Oberheuser, the only female prisoner tried at Nuremberg. Oberheuser’s background was similar to Fischer’s in that she was a physician assigned to Ravensbrück and assisted in the bone graft and sulfanilamide experiments. Although she did not perform mutilations as Fischer did, Oberheuser was responsible for ensuring that the wounds in the experiments became infected, through either neglect or direct intervention (grinding bits of wood, glass, dirt, or other materials into the wounds to simulate battlefield injuries). The subsequent infections killed many of the test subjects. Yet the board deemed her a “subordinate” and recommended McCloy reduce her sentence from twenty years to time served. The general counsel’s office was reluctant to grant any clemency at all, but, since it had already acquiesced to slight reductions for Fischer and others, recommended that Oberheuser’s sentence be reduced to fifteen years instead.18 McCloy ultimately reduced her sentence to ten years; she was released in 1952. Oberheuser later worked as a doctor in a private practice in Stocksee, southeast of Kiel, until protests filed with the Kiel government led to the revocation of her medical license in 1958.19

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Future petitioners: Former director of the Nuremberg District Court Rudolf Oeschey (center) listens as the tribunal for Case 3 (Judges Trial) sentences him to a life term in 1947 for war crimes, crimes against humanity, and membership in a criminal organization. McCloy reduced Oeschey’s sentence to twenty years in 1951; he was granted parole by the Interim Mixed Board in May 1955. (NACP 238-OMT-III-D-58)

The Advisory Board’s recommendations for former prosecutors and judges were also driven by skepticism of the defendants’ criminal responsibility. In the Judges Trial, the tribunal convicted Rudolf Oeschey and Oswald Rothaug, both former directors of the District Court of Nuremberg, for their role in what the board described as “the complete prostitution of the Reich Department of Justice to the illegal and criminal directives of the Nazis.” Their crimes included perverting the law to meet the Nazi regime’s racial demands and ordering the “judicial murder” of supposed enemies of the Reich. Rothaug had also been convicted for his role as a zealous prosecutor before the notorious Volksgericht (People’s Court) in Berlin, an extraconstitutional body that disproportionately favored the death penalty and was unbound by norms of evidence and procedure—some trials lasted less than an hour. After reviewing the files, the board noted that “Oeschey and Rothaug were found to be the guiding, if

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not the controlling, spirits of the Special Courts of Germany.” Yet the board recommended that Rothaug’s and Oeschey’s sentences be reduced from life imprisonment to twenty and ten years, respectively. For Rothaug, the board reasoned that, whatever the strength of the evidence against him, he presided over a panel of three judges and the other two had not been tried—a fact that lessened his responsibility for his crimes. In Oeschey’s case, the board recommended a generous grant of clemency because of the “favorable opinion of a large number of Oeschey’s associates of the German bench and bar as to his character, judicial temperament, and correct administration.”20 The HICOG general counsel’s office was skeptical of the board’s rationale in both instances. In responding to the board’s argument that Rothaug was but one of three judges on a panel and thus not fully responsible for his crimes, the dissent quoted from the tribunal’s unusually harsh language in the verdict against Rothaug, describing him as “a sadistic and evil man” who routinely prejudged trial outcomes based on his own racial preferences. Moreover, for both Rothaug and Oeschey, the counsel’s office thought it important to underscore that while the number of murders perpetrated from the bench was small in comparison to the Einsatzgruppen killings in the East, Oeschey and Rothaug “acted within a sphere where they had discretion and freedom of choice,” and so in fact bore a greater personal responsibility for their crimes than other civil servants. Questioning the board’s evaluation of Oeschey’s good character, the general counsel’s office noted “testimony taken by the Tribunal from a number of German judges, prosecutors, and lawyers who observed his behavior in court . . . [which] described him in the strongest terms as brutal and hateful.” The results of a further investigation into the board’s sources on the matter produced a second incredulous general counsel’s note that again raised serious concerns about the Advisory Board’s refusal to consult the trial record. All the glowing character references Oeschey provided were merely tendentiously quoted trial testimony that mischaracterized hostile witnesses as positive and omitted that the few witnesses who vouched for Oeschey’s good character had been “completely demolished” under cross-examination. The actual testimony against Oeschey revealed “that he prejudged capital cases, that he outrageously abused and insulted non-German defendants, that he overbore the two other members of his court, that he was brutal and played cat and mouse with defendants for hours, and that he was in general guilty of prostituting and degrading the judicial process.” Given these realities, the dissent “saw no reason to modify our earlier recommendation” that Oeschey’s life sentence, and that of Rothaug, should stand.21 McCloy reduced both Oeschey’s

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and Rothaug’s sentences from life to twenty years; they were released in 1955 and 1956, respectively. In other instances, the board’s preoccupation with the subordinate status of otherwise high-ranking policymakers resulted in highly questionable clemency recommendations. Erhard Milch was the sole defendant in Case 2 (the Milch Trial). Formerly Göring’s deputy in charge of aircraft production from 1940 to 1944 and then a protégé of Albert Speer in the Jägerstab task force on increasing aircraft production beginning in 1944, Milch was sentenced to life imprisonment for his administrative role in the Reich’s slave labor program and the atrocities against Jews, other subject peoples, and prisoners of war that accompanied it. The board’s report on Milch accepted that in his duties managing aircraft production and resource allocation, Milch “was constantly pressing for the enlargement of the slave labor force.” Unlike those of other defendants, Milch’s wartime views were also well documented in the surviving meeting minutes of the Reich Central Planning Board, which Milch had frequently chaired. In these meetings, he had advocated, for example, the seizure of the civilian food supply in occupied Italy for redistribution to only those Italians engaged in war work. If the Italians failed to register for employment in sufficient numbers, Milch suggested, German police forces should round up the required labor force from the civilian population and ship them to Germany.22 In other instances, Milch called for the abrogation of international law through the forcible employment of prisoners of war, extensions of the “strictest measures” (summary executions) to shirkers, and a tripling of the number of concentration camp inmates dragooned into service in fighter-plane production facilities.23 The Advisory Board referred to Milch’s clemency petition as “a confession and avoidance,” as Milch blamed his actions on compulsory directives received from Hitler and other superiors. He attributed his wild utterances in the Planning Board minutes to “a nervous condition aggravated by a head injury,” a defense that was dealt a setback when his neuro-psychiatric examination revealed “a well-adjusted individual” who “at no time has displayed any evidence of a psychosis.” Nevertheless, the board concluded that Milch was entitled to clemency both on the grounds that he was less responsible than others for the slave labor program and to bring his sentence in line with other, more notorious figures from the IMT. Even though Milch had been a radical advocate of the harshest measures to secure and maintain a labor force for Germany’s war industry, the board concluded “that he had no authority over the allocation of slave labor. . . . The recruiting of the slave labor was [Fritz Sauckel’s] job and

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the allocation [Albert] Speer’s.” In the next sentence of their report, the board wrote that since Speer had received a twenty-year sentence, they recommended fifteen years for Milch.24 This last statement was curious in that it omitted mention of Fritz Sauckel entirely despite the board’s invoking him in the previous sentence; Sauckel had, in fact, been executed for his crimes by the IMT in 1946. Still, McCloy upheld the board’s recommendation. Milch was released in 1954. The board employed a similar rationale in the case of Paul Pleiger, the former Reich plenipotentiary for coal sentenced to fifteen years in Case 11, the Ministries Trial. Pleiger, who also was a member of the executive committee of the Reichswerke Hermann Göring (a government-run industrial concern that absorbed capital and assets looted from dispossessed citizens of the Reich and the occupied territories and relied extensively on slave labor), was convicted by the tribunal on counts of plunder and slave labor. Among other evidence of guilt, the prosecution provided numerous memoranda, meeting transcripts, and reports establishing that Pleiger had ordered the looting of Czech assets prior to the German withdrawal in 1944, pushed for a larger proportion of slave labor at the industrial concerns for which he was responsible, and demanded that the slave workers under his authority be subjected to harsher measures to ensure compliance and increase productivity. During the war, Pleiger encouraged coal miners under his authority to beat Soviet prisoners to raise productivity, despite some minor protestations from officials in Berlin that the practice of corporal punishment in the mines might be counterproductive. Characteristically, Pleiger dismissed these concerns, telling his people in August 1942 (at a meeting where a drunken German Labor Front head Robert Ley opined in detail about the ongoing Final Solution) that “Below ground it is dark and Berlin is a long way away.”25 While the board conceded that the facts of the case “fully warrant[ed]” Pleiger’s sentence, they still recommended clemency based on their judgment that Pleiger “was not, however, at the policy-making level or in a position, despite its [sic] administrative importance, of prime authority.” The board continued, “Even in the field of labor allocation and discipline where he was so aggressive, he was more of a supplicant than a dispenser.” Pleiger had demonstrated a “harsh attitude in addition to his harsh actions” during the war, and so the board recommended a smaller reduction than normal: twelve years instead of the original sentence of fifteen. The Advisory Board’s unilateral decision that Pleiger was not important enough to warrant severe punishment because of his status in the middle tier

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of the Nazi hierarchy did not go unchallenged by the HICOG general counsel’s office, which advised against any clemency. In their eyes, “the fact that [Pleiger] may have been some steps removed from both the top and the bottom should not result in his being regarded as less implicated than those adjacent to him on the scale.” In doing so, the board had used an “unsound approach” to draw its conclusions, resulting in “a situation where there is created a twilight area between the policy makers at the top and the field workers at the bottom where responsibility is at least partially sloughed off.”26 McCloy ultimately went beyond the board’s recommendation and reduced Pleiger’s sentence from fifteen to nine years; he was released in 1951. The board also questioned the relative responsibility of high-ranking military officers such as Lt. Gen. Wilhelm Speidel (military commander of Southern Greece from October 1942 to September 1943, then military commander of Greece until May 1944), who was convicted for illegal reprisal actions against civilians that occurred under his command. This was a particularly sensitive case, as Wilhelm Speidel was the brother of Hans Speidel, a former supporter of Claus von Stauffenberg’s July 1944 coup attempt against Hitler and a key postwar advisor to the Adenauer government on defense and rearmament matters who not only became a four-star general in the West German Bundeswehr but also went on to serve as a prominent commander of NATO forces in central Europe.27 During Wilhelm Speidel’s time in Greece, German troops and SS police units under his authority carried out numerous massacres of civilians. Although Speidel had not ordered the individual reprisals himself, the tribunal found that the units conducting reprisals against civilians were under Speidel’s command, and so Speidel bore the responsibility to reprimand the officers involved or otherwise put a stop to the massacres. Furthermore, Spei­ del could not claim ignorance of the murders, since he frequently reported back to Berlin on the various German reprisal measures in occupied Greece. A typical report, filed on April 1, 1944, and relating to a partisan disruption of a rail line, read: “Up to now-Wehrmacht one dead, 14 wounded. Tracks blocked only for a short while. The execution of 70 Greeks at the locality of the incident has been ordered.” The tribunal concluded that these reprisals were excessive, carried out against innocents, and employed as a first rather than a last resort (as international law dictated), and held Speidel responsible for them.28 In its report on Speidel, the Advisory Board noted that “by their volume, seriousness and gross excessiveness the sentence of twenty years imposed upon the defendant is fully justified if his responsibility is maintained,” but

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went on to categorize the military commander of occupied Greece as having a position of “limited authority.” Speidel’s position, the board argued, was one primarily involving staff work, “embracing the maintenance of public peace and order, security of the troops, and jurisdiction over crimes committed against Germans by the Greek population.” In his clemency petition, Speidel claimed that the tribunal “misunderstood the organization of the German Army in Greece,” since, on paper, he was responsible for the activities of the German troops engaged in non-tactical operations and the SS police forces but had no real authority over their actions. The judgment, the board argued, offered proof of the bifurcated authority of the German occupation in Greece, as the tribunal had found that Speidel and one of his co-defendants, Helmut Felmy, both bore responsibility for several of the same atrocities, and sentenced them accordingly. But, the Advisory Board argued, Felmy and Speidel did not operate in the same command structure, so only one or the other could be responsible for these crimes, not both. Speidel, they argued, was the one not responsible. Why this was the case remained unsaid. The board concluded, contradictorily, that Speidel “did, of course, have a position of considerable responsibility, and there is no indication that he did anything to soften the large scale criminal program which was in operation under his eyes,” but this warranted a sentence of only eight years instead of twenty.29 In a change of pace, the HICOG general counsel’s office was “impressed” by the board’s work in this case from a legal standpoint, particularly on the mitigating issue of the duplicative convictions of Felmy and Speidel for the same atrocities, even though their lines of authority were separate. The counsel concurred that clemency was desirable, recommending a sentence of ten years, but expressing no serious reservations with the eight years recommended by the Advisory Board.30 McCloy ultimately reduced Speidel’s sentence to time served. The board even found room to question the responsibility of certain Einsatzgruppen leaders for the program of mass murder perpetrated on the Eastern Front. The case of Heinz Jost is illustrative in this regard. There was no disputing that Jost was an important man in the hierarchy of the Nazi security forces at the time of his deployment to the Eastern Front. He carried the SS rank of brigadier general. From 1935 until his deployment as the head of Einsatzgruppe A in March 1942, Jost was head of the foreign intelligence branch of the Nazi State Security Services, first SD-III Ausland and then RSHA VI. Although implicated in the murders carried out by units under his command, Jost avoided the death penalty at Nuremberg because the direct evidence against

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him was limited relative to the reams of documentation available in the cases of other Einsatzgruppen commanders—Jost received a life sentence. In reassessing Jost’s case, the Advisory Board once again employed a curious definition of responsibility. Jost had not been sentenced to death principally because he had cast doubt on the most significant piece of evidence against him: a report of over a thousand executions performed by his unit in late March 1942, which overlapped with the transfer of command from his predecessor and included a period when Jost was traveling to the front but had not yet arrived. While Jost could not then be held responsible for all these murders, the tribunal was unconvinced that Jost was as resistant to Hitler’s orders as he claimed at trial, deeming it unbelievable that a unit that had already murdered one hundred thousand people right up until the moment that Jost took command would suddenly cease these activities. Moreover, there was a later report cited in the judgment describing the murder of twenty-two persons, “among them 14 Jews who had spread communist propaganda,” that unequivocally implicated Jost. When asked about this incident on the stand, Jost had gone so far as to argue that such executions were just, necessary, and consistent with the orders he had been given. Further still, in 1942 one of Jost’s administrative subordinates requested the delivery of mobile gassing vans to Einsatzgruppe A’s sector, an indication that no change in policy had taken place after Jost took command.31 The Advisory Board, however, took a different view. Even though Jost was the ranking commander in the field at the time of the executions, “this was very shortly after he took command and was at a point considerably distant from his headquarters.” On the matter of the gas vans, the board concluded, it was “not shown that Jost knew of this request.”32 Jost was thus in command but not responsible for the activities of his subordinates inside or outside his headquarters. Although this reasoning conflicted with that employed in the board’s examination of the generals in the Hostages and High Command cases, whose commands were similarly dispersed, and was inconsistent with the board’s treatment of subordinate officers among Jost’s co-defendants and in other cases, the board recommended that McCloy reduce Jost’s sentence to ten years. The board’s narrower definition of responsibility also saved the life of Heinz Schubert, a former SS lieutenant who served as Otto Ohlendorf’s adjutant from October 1941 to June 1942. Although as an adjutant Schubert spent most of his time attending to Ohlendorf’s personal affairs, correspondence, meetings, and appointments, on multiple occasions Ohlendorf assigned him

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to serve as his proxy in monitoring the killing operations. Schubert’s own testimony described one such instance at Simferopol, where between seven hundred and eight hundred people were executed, with Schubert ensuring that (1) the location of the shooting was sufficiently remote so as to preclude witnesses, (2) the looting of the victims beforehand of personal items and valuables was conducted in an orderly manner with minimum use of force and all such valuables were promptly handed over to the appropriate officers, and (3) the execution itself was carried out “in the most humane and military manner possible.” These facts were uncontested.33 Upon cross-examination Schubert clarified that he knew that no trials or investigations had been conducted to establish a military rationale for the killings. As the ranking officer present at these massacres, he could have stopped them. Since he supervised them instead, Schubert was responsible for them. For this and his general knowledge of Einsatzgruppen operations, the tribunal convicted Schubert of war crimes and crimes against humanity and sentenced him to death.34 The Advisory Board, however, focused less on Schubert’s participation in executions and more on his rank and other functions as Ohlendorf’s adjutant, designating Schubert “a relative subordinate” who only supervised the executions at Simferopol “upon the order of his chief.” Despite Schubert’s own testimony stating that if the executions had in some way deviated from the plan he had the authority as Ohlendorf’s proxy to intervene, the board decided that he “was in no position of authority to give or control orders.” Schubert’s “offense was essentially no different from that of any of the active members of his organization,” and merited a commutation of his death sentence to eight years’ imprisonment.35 After the routine objection from the general counsel, McCloy commuted Schubert’s death sentence to a term of ten years; he was released in 1951. Who, then, was responsible for their actions? Apart from Hitler himself, every official in the Nazi government had a superior. In endeavoring to carefully parse the actions of each prisoner according to their place in the decision-­ making structure of the Nazi dictatorship rather than the international criminal code established at Nuremberg, the Advisory Board dispensed significant sentence reductions to figures whose guilt was clear. Without reference to new evidence or irregularities, the Advisory Board informed McCloy that race-­ obsessed kidnappers in the RuSHA and murderous physicians, prosecutors, judges, and military and Einsatzgruppen officers were guilty of, but not responsible for, their crimes. Likewise, individual defendants from the economic hierarchy of the Nazi state who advocated for and administered slave labor were

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also guilty, but not responsible. Since the “real” perpetrators, Hitler and his closest lieutenants, were either missing or dead, all were entitled to clemency. Apart from implicitly reviving the long-discredited “superior orders” defenses put forth in a variety of contexts at both the original IMT and subsequent Nuremberg tribunals, this rationale also represented yet another instance of the board overstepping its authority, as the tribunals had already taken disparities in responsibility into account at sentencing.36 In the absence of new evidence, the Advisory Board’s sentencing recommendations amounted to a repudiation of the tribunals’ factual findings.

overruli ng t he tri b u nal If in some cases the Advisory Board questioned that a given prisoner was responsible for their actions, on other occasions they granted clemency simply because they disagreed with the tribunals’ findings. In these instances, the board often did not make clear what part of the verdict they disagreed with or why, or what new evidence, if any, led them to their conclusions. Regardless of their lack of familiarity with the full evidentiary record, the board felt comfortable determining that the tribunal judgments were incorrect. When the board was presented with exculpatory evidence pertaining to a limited portion of a verdict, it recommended that McCloy invalidate or substantially revise the entire sentence. In disagreeing with the factual findings of the tribunals, the board unintentionally attacked the legitimacy of the Nuremberg verdicts. Nowhere else was this more evident than in the Advisory Board’s wholesale dismissal of the judgment in Case 10, the Krupp Trial. Before we proceed further, it is important to note that there was much contemporary reportage in the German press about irregularities and violations of rights that were unique to the Krupp Trial. The most famous accusation of impropriety related to a curious episode during the proceedings where all ten defense attorneys walked out of the session in protest of an unfavorable ruling. When the protesting attorneys did not return, the tribunal carried on with that day’s proceedings without them, and arrested six of them for contempt thereafter. Moreover, there was much criticism of the prosecution’s repeated and specious arguments (not reproduced in the judgment), that the storied history of the Krupp enterprise represented a case study in German militarism, and that the company itself bore disproportionate responsibility for the rise of Hitler.37 It is important to note, however, that neither the Advisory Board nor McCloy, both alert to any impropriety that betrayed the ideals of American justice, raised these issues. Their findings were based on disagreements with the Krupp tribunal’s conclu-

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sions, not its procedures. The board recommended sweeping revisions to the sentences for all nine defendants, and McCloy ultimately reduced all the executives’ sentences to time served and overturned the property confiscation measure levied against Alfried Krupp. From the outset, the board noted that the judgment in the Krupp case “does not summarize the acts which the individual defendants are found to have done to merit their conviction” under the counts of plunder or employment of slave labor. Instead, “The judgement recites a mass of evidence which indubitably points to the connection of the several defendants with the illegalities charged, but it is extremely difficult, if not impossible, on the basis of the judgment, to allocate the guilt among the defendants.” The board concluded that the tribunal had sentenced Krupp et al. based on their position and rank within the company instead of for specific criminal acts: a betrayal of the American repudiation of collective guilt.38 This was not true. The tribunal judgment against Krupp and his co-­ defendants explicitly stated that “guilt must be personal. . . . The mere fact that a defendant was a member of the Krupp directorate or an official of the firm is not sufficient. . . . The nature and extent of their participation was not the same in all cases and therefore these differences will be taken into consideration in the imposition of the sentences upon them.”39 On the slave labor charge alone, the judgment explicitly linked particular defendants to specific pieces of evidence that, in the court’s understanding, established that the two labor camps, Dechenschule and Neerfeldschule, were owned by Krupp, and, regardless of army or SS responsibility for daily management of the prisoners, Krupp executives were intimately involved in the operation of these camps. The tribunal found that the company did not passively acquiesce to government policy, but instead constantly pushed the regime for greater labor allocations, demanded more brutal treatment of prisoners to increase productivity, and actively dis­ regarded the safety of their charges in matters that were under the company’s control, such as refusing to construct adequate air raid shelters or housing and medical facilities at the camps. These were specific issues, managed by specific executives, that produced memoranda and policy guidelines within the company governing the use and abuse of slave labor. People died because of these decisions.40 One example of the evidence cited in the judgment concerned a routine inquiry sent on September 17, 1942, from Albert Speer’s Ministry of Armaments and War Production to defendant Erich Müller, head of Krupp’s weapons design division, asking if Krupp would be interested in making use of Jew-

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ish labor, and, if so, whether it could erect a satellite concentration camp for their employment. A minor official in Müller’s office declined, citing national laws mandating that Jewish employees remain segregated within the workplace and outlining Krupp’s expectations of difficulties between Jewish and German workers. This response was then brought to the attention of Müller and other Krupp defendants, including Karl Eberhardt (head of sales) and Max Ihn (head of personnel, including the “liaison office for labor procurement”), who countermanded the negative reply and sent a note to Speer’s office requesting 1,050–1,100 Jews with a promise “to undertake to increase this number considerably,” if the initial approval was granted. Notice of the change in policy was sent to other executives on the board of directors, who possessed the authority to challenge or reverse it but did not. In this respect, as the tribunal noted, slave labor “was merely offered to industry, not allocated to it. It was not a matter of refusing to accept an allocation; it was up to the enterprises to put in requests.” Given the collective leadership structure at Krupp, such decisions made by specific executives also implicated the others, as they were affirmed by the board of directors.41 But the Advisory Board was unconvinced. It argued that in the cases of Müller, Eduard Houdremont (deputy board member and chief metallurgist), Friedrich Janssen (director of the Berlin office), and Heinrich Korschen (director and chairman of the Friedrich Krupp Berthawerke in Breslau), “the conviction seems to have been on the basis of their general participation in the management rather than on any specific connection with the commercial or labor policies of the concern.” The board’s report had no specific remarks on the other five defendants who were unquestionably associated with such matters: Ihn, Eberhardt, Heinrich Lehmann (deputy to Ihn), Friedrich von Bülow (chief counterintelligence officer at Krupp), and, of course, Alfried Krupp himself (owner and chairman of the board). Instead, it briefly mentioned the sentencing patterns of Case 5, the Flick Trial, and noted that Krupp’s and Ihn’s punishments seemed disproportionately severe by comparison.42 If the board had consulted the Flick judgment, rather than just a sentencing table, it would have seen that Flick’s tribunal determined that Flick had accepted slave labor out of necessity due to labor shortages, wherein Krupp sought out slave labor in the absence of labor shortages. The convictions in the Flick and Krupp cases, then, were substantially different, as were the sentences.43 Finally, the Advisory Board recommended McCloy throw out the property confiscation measure against Alfried Krupp, noting that this measure had never been applied as a punishment at Nuremberg, even to murderers sen-

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tenced to death, and emphasized that such a punishment could only be used in the case of “stolen property.” In support, the board cited the report of the dissenting justice in the case, who, while questioning the sentences imposed on Krupp and his fellow defendants, had not actually questioned their guilt as the board’s report implicitly did.44 The board determined that the tribunal had simply gotten the Krupp case wrong—minor offenders were not offenders at all because of a lack of evidence, major offenders were not properly sentenced, and the asset forfeiture did not apply because the affected property was not stolen. This last conclusion rejected the tribunal’s determination that Hitler’s decree allowing Alfried Krupp to personally inherit property that was plundered from France and Holland by the state in 1940 constituted theft, and therefore a substantial portion of Krupp’s assets were, in fact, stolen. In other cases, such as that of Eugen Steimle, the board seized on the veracity of one piece of evidence as indicative of a broader weakness in the entire case. Steimle commanded two Einsatzgruppen units during the war: Sonderkommando 7a of Einsatzgruppe B from September to December 1941, and Sonderkommando 4a of Einsatzgruppe C from August 1942 to January 1943. The tribunal sentenced Steimle to death for hundreds of executions perpetrated under his command, despite his protests that his units were engaged only in legitimate anti-partisan combat. Among the evidence arrayed against Steimle at trial was one of the notorious Einsatzgruppen reports (in this case Number 108) of a careful tabulation of victims wired from the field to Berlin, which attributed the shooting of twenty-one Jews to Sonderkommando 7a. In Steimle’s clemency petition, it emerged that this report was marred by a typo, that the twenty-one Jews in question in this instance were instead shot by Sonderkommando 7b, a different unit. For the board, this was decisive for Steimle’s fate, because without that one report, “there is nothing direct and clear . . . to connect him to the execution of Jews.” Other reports did not spell out that individuals were shot because they were Jews, as this report specifically had, because Einsatzgruppen units in the field frequently made efforts to disguise the true nature of their victims, often by classifying them as communists, thieves, saboteurs, or partisan agents. The trial judgment had pointed to the “incredible” nature of Steimle’s claims that units that executed Jews before he arrived would suddenly stop their operations upon his arrival only to start up again after he left, but the board was unconvinced. “We do not feel justified,” the board wrote, “in substituting incredibility for credible evidence,” and recommended Steimle’s death sentence be commuted to fifteen years’ imprisonment.45 The HICOG general counsel’s office was incredulous. What of the reports

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that carefully documented Steimle’s “wholesale and unlawful killings” of hundreds of other victims? As for the reports that did not definitively state that Steimle executed Jews because they were Jews, the board had overlooked Steimle’s own testimony, which established “that he executed ‘persons suspected of being partisans,’” establishing that there were no investigations into the veracity of these claims in the field.46 The context of this particular admission, tellingly, was Steimle’s recollections about the fate of two young girls, who had been shot, Steimle explained, because they appeared to have been about to form a partisan group.47 Nevertheless, absent the explicit evidence that Steimle had killed out of racial animus, the counsel’s office recommended only commutation of his sentence to life imprisonment, citing the judgment’s admonition that “the ruthless killing of members of the civilian population other than Jews is also murder.”48 McCloy was more generous, commuting Steimle’s sentence to twenty years. Steimle was released in 1954.49 The board’s review of Walter Haensch’s case followed the pattern of Steimle’s closely in that it was “one of the rare cases in which we find that new documentary evidence partially invalidates a finding of the judgment.”50 As in the Steimle case, however, the board reacted to this weakening of one aspect of Haensch’s case with skepticism for the entire judgment. Haensch’s time at the front was relatively brief; he commanded Sonderkommando 4b of Einsatzgruppe C from March to June of 1942. Like Steimle, Haensch was sentenced to death by the tribunal for his role in the murder of hundreds, if not thousands, of innocents in the East. Also, like Steimle, Haensch was convicted because of his own statements and unit action reports tallying the murders that took place under his command. The judgment described Haensch’s testimony that he first heard of massacres of Jews only at his trial in 1947 as “entering a category of incredulousness which defies characterization,” particularly since Haensch also admitted under cross-examination that he had personally overseen executions of civilians without investigating whether they were partisans.51 The Advisory Board, however, given access to new affidavits, judged that several of the action reports attributed to Haensch’s units described the activities of Sonderkommando 5, not Sonderkommando 4b. What of the executions Haensch was present for, referred to in the trial transcript as the Gorlovka murders, where 737 persons received “special treatment” from Haensch’s command? The board was skeptical. Although the tribunal disregarded much of Haensch’s self-exculpatory testimony because of his tendency to make sweeping, easily falsifiable claims, the Advisory Board believed Haensch’s assertion that 461 of the murders were legitimate actions taken against Soviet saboteurs.

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But as the general counsel’s office pointed out, what, then, of the remaining 276 shootings at Gorlovka? Even if new evidence or the board’s credulity had lowered Haensch’s body count, he was still culpable for the murder of hundreds of people, having admitted under oath that these shootings took place without any semblance of investigation or trial. In an abundance of caution, the general counsel recommended reducing Haensch’s sentence to life imprisonment. The board, however, appeared to view Haensch’s death sentence as reflecting the sum of all the murders charged by the tribunal, and so engaged in some macabre arithmetic. Taking Haensch at his word that most of his victims were partisans was enough to nullify the death sentence, while the further subtraction of the wrongly attributed bodies from the documentary record left the board with the impression that fifteen years’ imprisonment was sufficient punishment for the massacre at Gorlovka.52 McCloy commuted Haensch’s death sentence to fifteen years. He was released in 1955. Another instance where the board’s doubts about one piece of evidence had dramatic repercussions for the entire sentence appeared in the case of Franz Eirenschmalz, the former head of office C-6 of the WVHA, which was responsible for “special construction tasks” in the concentration camps. The board recommended that McCloy reduce Eirenschmalz’s death sentence to time served because of contradictions in the affidavits linking him to the construction of crematoria at the Dachau and Buchenwald concentration camps in 1940 (when Eirenschmalz had not yet assumed the responsibilities of his office). Although this evidence pertained to only one of many claims in the judgment, the board decided that Eirenschmalz’s entire office bore no responsibility for the construction of crematoria or gas chambers at any of the camps, effectively repudiating the tribunal’s findings in the case.53 Yet the judgment had already weighed the conflicting affidavits and witness testimony rehashed in Eirenschmalz’s petition, coming to a guilty verdict only after “close scrutiny” of the entire evidentiary record (not reproduced in the judgment and thus not consulted by the Advisory Board). Apart from his general knowledge of the slave labor program, the tribunal determined, Eirenschmalz’s rank meant it was highly probable that he knew the intended purpose of the gas chambers and crematoria when he authorized their construction, and regardless of his attempt to “hide in every way possible his responsibility and participation in concentration camp construction-maintenance affairs,” he was an “active participant” in the program of extermination. Eirenschmalz, the tribunal concluded, was not a “trigger man” in the program of mass murder, but he still

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bore significant responsibility for the “gigantic enterprises which resulted in the deaths of millions.”54 The HICOG counsel’s office filed a dissent, questioning the board’s preoccupation with only one piece of the larger judgment. Even if this was sufficient to commute Eirenschmalz’s death sentence, there were other serious crimes that the board was ignoring, specifically, “his connection with the erection of such installations at Auschwitz in 1943” in addition to the “erection and maintenance of gas chambers” in other camps. “While it might be argued,” the dissent continued, “that crematoria have non-criminal uses, the same can hardly be asserted for gas chambers.” Based on the evidence, a commutation of Eirenschmalz’s death sentence to twenty years’ imprisonment was more appropriate than outright release. McCloy reduced Eirenschmalz’s sentence to nine years. Echoing the Advisory Board, McCloy justified the “radical commutation” by attributing it to new evidence, without ever actually explaining what the evidence was or how it applied to the entire judgment instead of just a small portion of it.55 Eirenschmalz was released in May 1951 and resumed his civil engineering career.56 In other cases, the Advisory Board disputed the credibility of evidence in the judgment without providing any rationale for doing so. Herbert Klemm, former state secretary of the Reich Ministry of Justice from 1944 until the end of the war, was sentenced to life at the Judges Trial for his “association with the persecution of the Poles, gypsies and Jews,” in addition to his involvement in Night and Fog prosecutions and other criminal activities of the Justice Ministry, including the liquidation of eight hundred political prisoners in Sonnenberg Prison prior to its evacuation in January 1945. The board recommended a reduction of Klemm’s sentence from life to fifteen years because it found the latter charge “based on slender hearsay evidence.” It is perhaps worth noting that in the trial judgment this “slender hearsay evidence” included the testimony of two witnesses and multiple corroborating documents. The board was not more specific than that, however, apart from diminishing Klemm’s responsibility further by noting that Klemm was “not the chief, being under [Minister of Justice] Thierack.”57 The HICOG general counsel’s office was flabbergasted, and filed two separate dissents arguing that McCloy should instead confirm Klemm’s life sentence because, even if there were legitimate questions about the extent of Klemm’s culpability in the murder of eight hundred political prisoners at Sonnenberg, his other acts of criminality were equally serious and uncontested by

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the board. Klemm was no mere civil servant; he had navigated the inner circles of the Nazi hierarchy, enjoying close relationships with both Minister of Justice Thierack and party chancellery head Martin Bormann. Klemm authored administrative decrees approving the use of torture by the German police in interrogations, wrote statutes authorizing the application of retroactive law against political opponents in the occupied territories, encouraged the lynching of Allied airmen by quashing prosecutions of Germans who engaged in the practice, and personally reviewed (and denied) clemency petitions to hundreds of victims of the Night and Fog decrees—effectively authorizing their executions. Allied soldiers and innocent civilians had died because of Klemm’s interventions. “It is impossible to determine,” the HICOG general counsel’s office concluded in one of its objections, “what, if any weight was given to these matters” in the board’s recommendation for clemency.58 Taking into consideration the strident objections of the general counsel’s office, McCloy reduced Klemm’s sentence to twenty years instead of the board’s proposed fifteen; he was released in 1957. The case of Einsatzgruppen commander Erwin Schulz also illustrated the degree to which the board was willing to throw out the findings of the tribunal. Schulz was an outlier in that he had resisted orders reaching his unit, Einsatzkommando 5 of Einsatzgruppe C, in August 1941. The orders authorized the murder of Jewish women and children in addition to the men who were already being systematically killed. Unwilling to comply with the expanded orders, Schulz traveled to Berlin on August 24 seeking to be relieved of his command, which he subsequently was, and even though the paperwork was dated in September, it appears he did not return to his unit.59 Thus, Schulz’s command in the East was brief; he was with his unit only from July to August 1941. Taking this into account, the tribunal sentenced Schulz to twenty years’ imprisonment, because while Schulz had sought to be relieved of his post when ordered to kill women and children, his unit had nonetheless murdered Jewish men and other civilians while under his command. The board felt that “the sentence of 20 years . . . does not give very tangible recognition and consideration to his subsequent actions, which in our view entitles him to great credit,” and noted that “were it not for a report which clearly establishes the execution of Jews by his commando during a period when he was present, we would so honor his subsequent action as to recommend his release from prison.” Instead, the board recommended cutting Schulz’s sentence in half, to ten years. What was it about this single report that, despite his clearly established resistance to the expanded killing program, had convinced the tribunal that Schulz

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deserved twenty years in the first place? As the general counsel’s office reminded McCloy in a subsequent contestation of the board’s recommendation, on August 9, the day before Schulz felt his pang of conscience over the order to extend the liquidation program to Jewish women and children, his unit murdered 474 Jews, only some of whom were disguised in the unit action reports as saboteurs or political functionaries. The general counsel’s note concluded, “His compunction against shooting women and children apparently did not extend to men if they were Jews.” The fact that Schulz was not condemned to death or a life sentence by the tribunal meant that Schulz had already been given sufficient credit for his effort to seek a transfer, and so the general counsel’s office cautioned against any further clemency.60 McCloy split the difference and commuted Schulz’s sentence to fifteen years; he was released in 1954. In similar circumstances, the board recommended that Ernst Biberstein’s death sentence be commuted to life imprisonment. The tribunal deemed Biberstein, the commanding officer of Einsatzkommando 6 of Einsatzgruppe C from September 1942 to June 1943, responsible for over one thousand murders, a fact which Biberstein himself had verified in a pre-trial interrogation. He later challenged the veracity of the interrogation, however, arguing that he had said two thousand to three thousand killings had taken place under his command only after his interrogator bullied him into giving an estimate; Biberstein later claimed this number was off by more than a thousand. When confronted by prosecutors with the fact that this would still implicate him in the murder of at least one thousand people, Biberstein demurred. This interrogation record was not the only incriminating evidence against Biberstein, however, who admitted on the stand that in two specific instances involving the execution of sixty-five people for partisan activities, he, as commander, had neglected to perform any sort of rudimentary investigation as to whether or not the victims were actually partisans.61 The Advisory Board, however, was “not . . . completely satisfied” that Biberstein’s interrogation and testimony alone were enough for a death sentence. Although Biberstein had not been compelled to testify, had thoroughly incriminated himself when he did, and had submitted a petition that was full of half-truths and omissions that led the board to “all the more to doubt” his protestations, the board recommended clemency. Its only rationale for doing so was that the tribunal erred in imposing the death penalty; the board did not question the veracity of the evidence or contest the facts of the case. Although the general counsel’s office objected, McCloy followed the board’s recommendation and commuted Biberstein’s sentence to life imprisonment; he was released in 1958.62

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In three short paragraphs, the Advisory Board also expressed disagreement with the tribunal’s findings in the cases of three WVHA office heads, without reference to new evidence or any other extenuating circumstances that warranted clemency. First was Hans Lörner, the former head of WVHA A-1 (Budgets) and A-2 (Finance and Payroll) from 1942 to 1945. His duties included maintaining the operating budgets of the concentration camps, setting wage scales, and ensuring that camp guards were paid for their services. The tribunal concluded that Lörner “was more than a mere bookkeeper,” however, as his position in the WVHA hierarchy left him deeply involved in the day-to-day operations of the camp system.63 The board disagreed, summing up Lörner’s duties as “simply put[ting] the budget together,” and recommended a cut in his sentence from ten years to eight.64 The board did not offer a reason for this disagreement with the tribunal’s conclusions, and provided no evidence for its assertions. Next was Erwin Tschentscher, head of WVHA B-1 (Procurement and Allocation of Food) from 1943 on. Tschentscher was a true believer in the Nazi racial program, giving lectures on the need for a permanent solution to the Jewish question as a part of his SS duties. Prosecutors also linked Tschentscher to the Einsatzgruppen operating in the Soviet Union from July to December 1941, although the evidence was just opaque enough that he avoided a conviction on mass murder charges. Although Tschentscher’s duties with the WVHA were primarily concerned with stockpiling and allocating food supplies for the twenty thousand to thirty thousand SS personnel, on a few occasions when shortages were dire he personally authorized allocations from SS supplies to feed starving inmates. The board saw this as a humanitarian gesture—Tschentscher had seen the appalling conditions in the camps and tried to ameliorate the suffering of the inmates. The tribunal saw it differently, however, noting that, under oath, Tschentscher had not described his actions as arising from humanitarian concerns, but merely from a desire for the inmates to be more efficient and capable in completing their work assignments. The tribunal concluded, then, “without hesitation,” that Tschentscher was both aware of the slave labor program and its horrors and a supporter of it in his thoughts and actions, and sentenced him to ten years. The Advisory Board recommended time served.65 The last of these three WVHA figures was Hans Bobermin, whose duties from 1939 to 1945 included the control and operation of some four hundred brick works in Poland. At trial, Bobermin offered a novel defense, arguing that he was not guilty of plundering foreign assets because the seizures in question

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were confined to the area of Poland allotted to Germany by the secret protocols of the 1939 Molotov-Ribbentrop Pact. Yet only the assets of Jews and Poles were seized by Bobermin’s office—the businesses of racial Germans in these areas were left alone. Bobermin also claimed ignorance of the WVHA’s broader concentration camp and slave labor system—and, for that matter, the unfolding genocide—because he was only infrequently in Berlin during the war, spending most of his time in Posen. The tribunal had greeted these statements with incredulity (Bobermin had claimed he thought all the Jews had “fled”)—how could someone live in occupied Poland for the duration of the war and not know what was happening? Although the laborers in Bobermin’s brick works consisted mainly of “free” European nationals designated for assignment to him by the Reich, in at least one instance there was clear documentation that he had employed slave labor from Auschwitz. Particularly salient for the tribunal was the revelation that, given the physically demanding nature of the work, if an inmate could not perform adequately they were sent back to Auschwitz “to whatever fate might await them.” This was enough to earn Bobermin a fifteen-year sentence for war crimes and crimes against humanity. In a report of just six lines, however, the Advisory Board recommended that Bobermin’s sentence be slashed to seven years, “due to the absence of any claim or finding that this labor [was] mistreated.” The general counsel’s office referred to the board’s finding that Bobermin was a peripheral figure with little knowledge of the broader picture of Nazi atrocities as “naïve,” and offered twelve years instead.66 McCloy reduced the sentences of all three—Bobermin, Tschentscher, and Lörner—to time served. In other instances, the board simply rejected outright entire counts in the tribunal’s verdict. This was the case for Edmund Veesenmayer and Paul Körner of the Ministries Trial. Independent of the high rank he held in the SS and his demonstrated commitment to Nazism, Veesenmayer, the Reich plenipotentiary to Hungary from March to October 1944, received a twenty-year sentence from the tribunal for war crimes, crimes against humanity, and slave labor. The deciding question in Veesenmayer’s case was the degree to which his activities were consistent with the normal functions of an ambassador (representing the interests of the German government in Hungary) as opposed to direct and independent influence on policy. Citing extensively from memoranda and other documents in the judgment, the tribunal emphatically concluded that Veesenmayer was a policy leader on Hungarian matters. He was not so much the ambassador to Hungary as the German potentate of an occupied state, charged with constructing a puppet regime that would be amenable to fulfill-

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ing Germany’s wishes. The tribunal thus treated Veesenmayer as the head of an occupation administration with jurisdiction over German military commanders and SS police leaders engaged in the extermination of Hungarian Jewry. Moreover, the tribunal argued that Veesenmayer shaped German policies toward Hungary himself: he authored influential reports on Hungary in 1943 arguing for regime change, citing the necessity of cleansing Hungary of its Jews as a rationale, and was then tasked with implementing his own policy recommendations in 1944. The murder of hundreds of thousands of Hungarian Jews was one result of his interventions. In summing up the case, the tribunal concluded, “No one reading the record of this case can be under any doubt that Veesenmayer was a conscious and consenting participant in the deportation of Jews from Hungary; that he knew what their fate would be; and that he was a willing, zealous, and leading participant therein.”67 Körner, on the other hand, was a deputy of Hermann Göring, and, among other positions, served as head of the Office of the Four-Year Plan from 1936 to 1945. This brought him into intimate contact with the looting of food, raw materials, and industrial concerns in the occupied territories (and the accompanying consequence of such reallocations: starvation) and earned him a supervisory role in the slave labor program implemented by the Reichswerke Hermann Göring.68 More importantly for the Advisory Board, it turned out, was that the tribunal also convicted Körner for planning the German wars of aggression (crimes against peace) because of his agency’s role in both rearmament and the planning process for the allocation of foreign nationals’ resources to the war economy prior to their conquest. In this regard, the tribunal cited “voluminous evidence” showing that a key purpose of his office was to prepare the German economy for war against its neighbors, and placed Körner at highlevel military planning meetings in November 1940 outlining the goals of the war against the Soviet Union.69 For these crimes, the tribunal sentenced Körner to fifteen years’ imprisonment. In reevaluating these cases, the Advisory Board recommended halving Veesenmayer’s sentence from twenty years to ten and reducing Körner’s sentence from fifteen years to ten based solely on the contention that the tribunal had erred in convicting the defendants on one or more counts of the indictment. Neither Körner nor Veesenmayer presented any new or mitigating evidence in their petitions. Ignoring the documentary evidence to the contrary, the board argued that Veesenmayer “was an ambassador and only an ambassador,” who, while advocating vile policies in pushing the Hungarian government to deport more Jews, and faster, “should not be held to the same standards

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of responsibility as one who formulates or directs policy.” The board did not comment on the tribunal’s conclusion that Veesenmayer had done exactly that. Surprisingly, then, the board went on to suggest that, as a mere diplomat, Veesenmayer should not be held responsible at all for his actions in Hungary, noting that his high SS rank and career-long dedication to National Socialism was enough for a ten-year sentence.70 The board’s conclusion was essentially a validation of the argument offered by Veesenmayer’s attorneys, but rejected entirely by the tribunal, that, as an ambassador carrying out the functions of the German government in both occupied and unoccupied Hungary, Veesenmayer was protected by diplomatic immunity.71 In Körner’s case, without explanation, the Advisory Board threw out his conviction under Count One of the indictment (crimes against peace) because “we doubt that the defendant had a position of influence or power which would warrant his conviction. . . . He was not a top man in any sense.” While Körner’s conviction for slave labor, plunder, and membership in a criminal organization warranted punishment, the board argued, “a sentence of 10 years more nearly approximates his importance in the Nazi hierarchy then the 15year sentence he was given.”72 The board provided no contextual information to substantiate this reevaluation of the tribunal’s findings. McCloy reduced both Veesenmayer’s and Körner’s sentences to ten years. They were released in December 1951. Among other postwar endeavors, Veesenmayer found employment with the Hamburg-based Alfred Töpfer Foundation, founded in 1931 to promote European integration and cultural exchange.73 Straining credulity, the Advisory Board also concluded that Hans Heinrich Lammers, head of the Reich Chancellery from 1933 to 1945, was a peripheral figure in the Nazi regime who played no significant role in policymaking. The Reich Chancellery was in many ways the bureaucratic nerve center of Nazi governance. During his long tenure, Lammers was responsible for presenting numerous policy matters to Hitler for his decision, codifying and transmitting Hitler’s orders to the appropriate individuals or agencies, coordinating and reconciling divergent ministry positions on Reich legislation and enforcement, translating the wishes of ministries or ministers into appropriate decrees or legislation, and settling disputes that arose between ministers or agencies.74 Lammers attempted to deny his role in policymaking at the tribunal, arguing that his position was merely one of coordinating decisions already made by Hitler and others across agencies, but the tribunal decided that he “was neither a glorified messenger boy nor a notary public certifying the acts of others.” Instead, the tribunal found that Lammers had been elevated to his position in

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the government so that Hitler “could relieve himself of much detail work and many decisions, and to place these functions in the hands of the defendant.” In short, Lammers had substantial power in his own right and the freedom to use it.75 Apart from signing Führer decrees, Lammers was also tasked with lending state legitimacy to the often ad hoc spheres of authority attached to other principal figures in the government. In practice, this meant that settling the various and inevitable conflicts between people and institutions (military, state, and party) with overlapping spheres of influence was a central element of his day-to-day work. He issued joint decrees with Chief of the German Armed Forces High Command Wilhelm Keitel on murderous war measures and occupation policies. His orders endowed Reich commissioners such as Minister of the Occupied Eastern Territories Alfred Rosenberg or General Government leader Hans Frank with the authority to unleash their exterminatory racial reordering in Eastern Europe and the Soviet Union. Lammers was also intimately involved in quashing the prosecution of Germans accused of lynching Allied pilots, in authorizing the plunder of Jewish assets both inside and outside the borders of the Reich, and in resolving disputes between the military, state, and party on questions relating to the use and abuse of slave labor.76 All of Lammers’s decisions and interventions in these matters had policy consequences. Moreover, his high position came with complete clarity as to Germany’s war aims and conduct. Although knowledge of the Holocaust was not itself a crime, Lammers could not claim ignorance of the wider program of extermination as many others did. The tribunal summarized, “He knew of the mass murders in the East; he knew of the forced evacuations of the civilian populations; he knew of the deportations of Jews to the East and the fate which awaited them there,” and yet served until the very end.77 Based on his long service in the upper strata of Nazi governance and the strength and volume of testimony and documentary evidence presented by the prosecution, the tribunal convicted Lammers on six counts: crimes against peace, war crimes, crimes against humanity, plunder and spoliation, slave labor, and membership in a criminal organization (Lammers held rank in the SS). Lammers’s original sentence was twenty years. The Advisory Board rejected these findings, however, recommending that McCloy cut Lammers’s sentence in half. The board struck a skeptical tone from the outset, responding to the tribunal’s finding that Lammers performed an essential role in translating Hitler’s wishes into policies with the remark: “We cannot help but observe that the same might be said of a great many peo-

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ple.” The second paragraph noted that Lammers “had signed with others all manner of decrees connected with the conduct of the war,” but went on to dismiss the tribunal’s finding that he had been involved in the planning for Germany’s wars from 1939 to 1941, arguing that Lammers was not “at the policymaking level” and had not “exercised any influence or power.” No rationale was provided for these claims. The board then proceeded to throw out Lammers’s conviction on war crimes charges by denying his responsibility for what had occurred. While the board conceded “that Lammers did not act as a mere postman,” it continued, “he acted only as a secretariat, and it is not realistic to attribute to him any responsibility for policy or even much responsibility for its execution.” The board continued in the same vein when considering the slave labor charges, arguing that no matter the essential coordination and legal functions Lammers’s office had performed, Lammers had acted “only as a secretariat would.” The Advisory Board concluded, “We do not wish to be misunderstood as suggesting that the defendant was not properly convicted on the various counts of the indictment, with the possible exception of [crimes against peace],” but “what is quite clear to us [is] that the defendant’s capacity was nothing more or less than a state secretary and that the sentence of 20 years he received exaggerates his importance.”78 Here, stated explicitly, was the fundamental legal quandary of the Advisory Board’s self-conception: the board members saw themselves as unable to question the facts established at trial but felt free, with little or no evidence that the tribunal had erred or been misled, to throw out the conclusions based upon those facts. A final consideration offered by the board was Lammers’s advanced age—at 71, any sentence longer than ten years was “more than a life sentence,” given Lammers’s deteriorating health.79 McCloy followed the board’s advice and reduced Lammers’s sentence to ten years; he was released in December 1951 and died in January 1962, aged 82. The board also invalidated multiple findings of the verdict against Ernst von Leyser, who had commanded the XV Mountain Army Corps in Croatia from November 1943 until July 1944. Although Leyser was not convicted of partisan reprisal actions, he received a ten-year sentence for his units’ implementation of the exterminatory commissar order and his own order to round up thousands of civilians in his theater “for the purpose of con­scripting the physically fit into the Croatian military units and of conscripting others for compulsory labor service” in Germany.80 The Advisory Board was unconvinced by the evidence on offer, however. On the compulsory labor roundup charge (designated “Operation Panther”), the board believed Leyser’s assertions that

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this was only a “tactical” measure designed to cleanse his area of partisans through rounding up and interning all males of combat age; he denied any knowledge of the forced-labor aspects of the operation. Based on Leyser’s word alone, the board argued that the judgment “does not establish to our complete satisfaction the defendant’s connection with the illegal purpose and use of the evacuees.” Moreover, the board also believed Leyser’s assertion that the documented commissar executions were mostly forgeries meant to cover up the fact that he opposed the order, and that in the cases where executions had occurred, the commissars had not been executed for being commissars, but for conducting acts of sabotage (a common trope used to justify illegal executions after the fact).81 Even if Leyser’s dubious assertions that the reports were forgeries were true, this still left at least two other murders to account for. In finding that Leyser’s conviction on executing the commissar order was unwarranted, the board undercut a serious declaration of principle outlined in the prosecution’s closing statement and affirmed by the tribunal’s judgment: “Murder is murder whether it be committed singly, by tens, or by tens of thousands. It is no defense to Leyser that he did not kill on the same scale as List and Kuntze. Each executed commissar is still an open violation of the most fundamental precept in the soldier’s code—an enemy who has laid down his arms in surrender may not be killed because he wears a particular emblem on his sleeve.”82 The same sentiment also applied to Leyser’s conviction on the forced labor count, even though “only” ninety-six persons of the seven thousand to eight thousand targeted in the action were documented as having been captured.83 Nevertheless, the board recommended McCloy reduce Leyser’s sentence to time served. McCloy did so. If the Advisory Board’s concerns about mitigating circumstances, hardship, and the broader contextualization of a given defendant’s crimes within the mosaic of wartime Nazi criminality were consistent with the usual activities of a clemency panel, then the board’s work in these cases represented a departure into the role of a full-fledged appellate court. Setting aside the fact that this violated its charter, the board was ill-suited to the task. Appellate courts possess access to the full evidentiary record of a given case and provide a forum for prosecutorial, as well as defense, advocacy to settle matters in dispute. The Advisory Board had neither the time nor the inclination to ensure either circumstance. A significant number of the board’s recommendations to McCloy, then, rested on little more than a general sense that the sentences imposed on these defendants were unfair or unjust in some intangible way, based only on the summary judgment and without the full context of the tri-

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bunals’ rulings. While other decisions could be couched in the language of mercy, these types of recommendations, liberally altering sentences and overturning factual findings, were tantamount to a repudiation of the Nuremberg verdicts themselves. In late September 1950, Assistant HICOG General Counsel John A. Bross penned a letter to Chief Justice David Peck congratulating him on “a magnificent piece of work under difficult circumstances,” and predicted that “a concrete and objective solution to the problem of an equitable disposition of these war criminal cases will rank as one of the major accomplishments of Mr. McCloy’s administration here.”84 But were the recommendations of the “Peck Panel” concrete, objective, or equitable? Except for a few egregious cases, the Advisory Board was generous in its recommendations, advising McCloy that nearly every prisoner deserved a significant sentence reduction. While the final decisions were ultimately McCloy’s, the board’s work was instrumental in providing a blueprint for his later findings. Viewed in their entirety, the Advisory Board’s conclusions suggested that something had gone fundamentally wrong at Nuremberg. Although the board did not go so far as to directly repudiate the guilt of the war criminals whose files they examined, its repeated contentions that the tribunals had erred in convicting on some counts, had grossly overestimated or misunderstood the responsibility of a given defendant for their actions, or had simply gotten the facts wrong (as the board understood them) amounted to a significant challenge to the legitimacy of the judgments. Had the tribunals been nothing more than their most vociferous opponents had claimed all along— arbitrary punishment from a vengeful occupier? With McCloy’s adoption of the board’s reasoning, the debate over the legitimacy of the Nuremberg trials and, by implication, the legitimacy of the post-Nuremberg consensus on international law would once again be litigated in West German public discourse.

c h a p te r f ive

Crimes without Punishment

All of my decisions have been rooted in the firm belief in the basic principle of the rule of law which all must respect and to which all are answerable. With this principle, I have striven to temper justice with mercy. John J. McCloy in the Landsberg Report, January 31, 1951

During his tenure as high commissioner for occupied Germany from 1949 to 1952, John J. McCloy did not hesitate to tell hard truths to his German subjects. At a June 16, 1950, meeting of the Düsseldorf Industrieclub, several German businessmen pressed McCloy on what they saw as overly harsh American occupation measures that were frustrating West German economic recovery. From their perspective, given the “westward retreat of civilization” accompanying the Soviet domination of Eastern Europe and the obvious importance of West Germany to the United States’ anti-communist geopolitics, the American preoccupation with regulating the German economy was a counterproductive relic of the early days of denazification. Insulted, McCloy responded by upbraiding his audience: Don’t forget that America’s high taxes are the result of German aggression. Don’t forget who started this war. Whether or not you gentlemen here are responsible personally for it, remember the war and all the misery that followed it—including your own—was born and bred in German soil and you must accept that responsibility. Why didn’t you mention the Marshall Plan? Why didn’t you mention the aid we are giving the refugees while you stall? Why don’t you recall how the occupied countries lived under your occupation? Don’t weep in your beer. Think of the good things as they come to you. 14 8

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Taken aback, the audience briefly sat in stunned silence before breaking out in a hearty round of applause.1 McCloy was a person of deeply held convictions, an early supporter of the Nuremberg trials during his time in the War Department, and a man unafraid to speak his mind. He was an advocate for West German legal and monetary restitution to Jewish victims of Nazism, securing multibillion-mark commitments from Chancellor Konrad Adenauer’s government and speaking out publicly against incidents of anti-Semitism even as prominent West German politicians remained silent.2 McCloy also had little patience for what he saw as a relentless public and private assault on the legitimacy of the Nuremberg tribunals by German amnesty advocates. In responding to one such petition for clemency from the Council of the Evangelical Church in Germany in 1950, McCloy confessed to being “somewhat disturbed . . . by the persistent tendency to question the legal basis for the prosecution and the judicial soundness of the judgement.” McCloy went on to state that no “German who sincerely believes in the future of Germany as a responsible and peaceful member of the community of nations can reasonably doubt the enormity of the crimes which the war crimes prisoners have been convicted or the fundamental principles of international justice pursuant to which they were tried.”3 Following the announcement of his clemency decisions, McCloy reacted forcefully against a further amnesty appeal from Bishop Theophil Wurm of Württemberg-Baden, who had asked if, with American forces daily committing atrocities of their own in Korea, perhaps McCloy would rethink his position on the imprisoned German generals? Even if such rumors of American reprisal actions were not communist propaganda, McCloy responded, “Of one thing you can be certain, no ‘führer order’ was issued in Korea,” and “there was not, and there never will be, any transmission of an order to kill all people of a certain religious belief, and there is no 100-to-1 reprisal order, and there never will be.”4 McCloy had little patience for German minimizations, rationalizations, or revisions of the Nazi past. It is ironic, then, that in the eyes of many of his contemporaries, it was McCloy himself, rather than scheming German reactionaries, who did the most lasting damage to the Nuremberg settlement. Whatever his impatience with German attempts to rewrite the history of the Nuremberg tribunals, McCloy’s mass clemency of January 1951 and his subsequent defense of it lent public legitimacy to the Advisory Board’s previously private attack on the Nuremberg tribunal verdicts. Rather than an attempt to purchase German allegiance to the anti-Soviet cause, McCloy maintained until his death in 1989 that his

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clemency grants were a matter of restorative justice, a making of amends between the American government and its wrongly incarcerated or too harshly punished German subjects.5 In summing up his decisions in 1951, McCloy wrote, “I am satisfied that the dispositions now finally made in the individual cases are just to the individual and society,” implying that the pre-1951 status quo was just to neither. He had, in an allusion to the Cold War, “attempted to apply standards of executive clemency as they are understood in a democratic society . . . decid[ing] each individual case objectively, dispassionately, and on its own merits,” in contrast to the show trials and absence of due process in Soviet-style dictatorships.6 But had the Nuremberg successor trials, conducted entirely by American officials, not been dispassionate or objective? Observers in the United States, Europe, and around the world disagreed with McCloy’s conclusions. American critics expressed shock that Nazi functionaries and military officers who had perpetrated war crimes against American soldiers were treated leniently, decrying what they interpreted as McCloy’s bending to the will of the loudest and most reactionary voices in West German politics. Jewish groups were horrified at the trivialization of the broader Nazi project of genocide and the marginalization of surviving victims. Elements of British and French public opinion expressed discomfort with the apparent speed with which McCloy and the Americans were rehabilitating the German nation, and were forced to confront the issue of whether they would countenance similar releases of German war criminals in their own jurisdictions. All expressed concern for the consequences that McCloy’s decisions would have on the reluctantly forged consensus on the prevention of war crimes and genocide in international law. Would the apparent lack of interest in making sure war criminals served their sentences encourage Chinese or Soviet atrocities against American soldiers in Korea or elsewhere? Regardless of such hypothetical scenarios, Western critics also expressed dismay at the apparent propaganda victory McCloy had handed to Stalin, legitimizing the Soviet assertion that the emergent American–West German foreign policy partnership revealed American capitalism aligning itself with fascists in a worldwide struggle against socialism. McCloy found no quarter from West German critics either, as prominent politicians, newspapers, religious associations, and veterans’ organizations denounced him for not being more lenient, and for having the temerity to uphold five death sentences when capital punishment had been abolished by the West German constitution. While reviewing the board’s recommendations, McCloy had endured countless West German clemency petitions, public and private pleading from

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government officials and ordinary citizens, death threats, and a personal crisis of faith. In his view, he had done his best as a lawyer, high commissioner, and Christian to tip the scales toward justice. Yet his efforts fell short.

p reparat i o ns fo r clemency Given the context of the 1949 House investigations into the Malmedy Massacre trial, the war in Korea, the debate over West German sovereignty and rearmament, and constant German pressure to revisit the sentences of the war criminals, McCloy frequently felt the need to publicly and privately defend his decision to convene a clemency panel at all while also pledging that he had not prejudged the review’s outcome. In a published August 30, 1950, response to Manfred George (editor of Aufbau—a periodical whose constituency was primarily German-speaking Jews in the United States and in Europe), who had criticized McCloy’s “planned amnesty of top Nazi war criminals,” McCloy denied that he was considering “anything in the nature of a general amnesty.” Moreover, “Any clemency action I take will not come as the result of pressure from any organized campaign, Nazi or otherwise.” Instead, in accordance with “civilized” legal custom, he would alter sentences only after “deliberate and objective investigation of the circumstances of each particular case” and only to ensure “that equitable and uniform standards of justice are maintained.”7 McCloy also received concerned correspondence from Robert A. Marcus, political director of the World Jewish Congress. In an October 23, 1950, letter that would anticipate the public criticism of McCloy’s upcoming clemency decisions, Marcus wrote that, while he was heartened by McCloy’s denial to Aufbau’s accusation that he was implementing a general amnesty, “many of us feel that the punishment of war criminals is an almost forgotten phase of Allied aims in Germany,” particularly after the release of numerous Landsberg prisoners under the recently doubled good-conduct awards. After all, Marcus argued, war criminals were not “ordinary criminals,” “for the nature of their misdeeds is such as to preclude the notion that their good behavior while incarcerated should be considered as evidence of any change of heart.” These sentiments, not limited to Marcus, rejected any “normalization” in treatment of the Landsberg prisoners, whose crimes were so heinous as to have been tried under new conceptions of international law. Such people had not robbed a bank, but had participated in the plunder and destruction of entire nations and peoples. As such, they were not ordinary criminals and not entitled to appeals, parole, or clemency. For Marcus, however, there were also broader issues at stake, since “it is obvious that any act on the part of the Allies through which

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the validity of sentences pronounced at Nuremberg or by other Allied courts is impaired may very well be taken as a sign by those who may intend to transgress the norms of civilized behavior that they have nothing to fear from the comity of nations on this score.”8 Whatever the halting evolution of the American criminal justice system since the nineteenth century away from an emphasis on punishing offenders as a societal deterrent to a rehabilitative and parole-based system, Marcus and others maintained that, in the inter­national arena, the punishment of past war criminals as a deterrent against future offenders was paramount. Unlike in their previous correspondence, McCloy did not personally reply to Marcus’s critique, instead delegating the response to a staffer, who tersely defended the good-conduct program as necessary for the maintenance of prison discipline and as standard international practice, regardless of the extraordinary nature of the prisoners’ crimes. Marcus’s broader concerns about the consequences of any clemency review for the validity of recently established international legal practices went unanswered.9 For McCloy, the clemency issue remained firmly grounded in the norms of American penal policy. Discussing his receipt of the Advisory Board’s report with forty-two high-ranking American occupation officials at his weekly staff conference on August 29, 1950, McCloy noted the “long discussion” he had with David Peck, Frederick Moran, and Conrad Snow the previous day. McCloy explained that he had been impressed with the Advisory Board’s efforts to “bring a certain consistency” to the tribunal sentences, which had been “rather on the harsh side.” Indeed, McCloy thought “the whole job is one that is well worth doing and when it’s finished, although I’m sure that we’ll get criticized, criticism that we’re too soft and too hard no matter what we do, I hope—I feel very confident that the results of the work of these people and those who have assisted them will stand the test of time.”10 As for the good-conduct releases, McCloy underscored to his staff that these were both consistent with American penal practices and staunchly supported by the Landsberg Prison administration as a measure to maintain inmate discipline. Noting that most of these men “would have been out soon anyway,” McCloy defended the new system as “entirely sound and entirely just.” Expressing frustration with media coverage of the early releases, McCloy elaborated that this “doesn’t mean that we in any way are trying to clear the way with the Germans, as I have seen some comments say.” Moreover, McCloy argued this had not been a Cold War measure, as “It is something we decided upon quite without respect to the Russians and many things we are going to

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decide upon in the near future will be without regard to the Russians” as well.11 This was somewhat disingenuous, in that a central tenet of McCloy’s conception of “American justice” was the contrast of due process and judicial review with the rubber-stamp tyranny of totalitarian legal systems, but nevertheless indicated that, for McCloy, the Landsberg sentences required substantial revision regardless of the international context. The official summary of this staff meeting circulated to all principal HICOG staffers and American land commissioners emphasized “that this review of clemency considerations and also the good behavior time system to the cases of war crimes prisoners does not represent appeasement of the German population but is merely in accord with progressive penal principles.”12 At another staff meeting on January 9, 1951, McCloy made additional telling comments about the Landsberg criminals and what he viewed as the undue harshness of the Nuremberg trials. Expressing exasperation with German protests regarding the “inhumanity” of carrying out any executions because the death penalty was forbidden by West German law, McCloy claimed that such objections were irrelevant since the prisoners had been tried by an international court for crimes committed against non-Germans outside the borders of Germany. McCloy also had little patience for protests from German military quarters that any continued imprisonment of German officers was a stain on the honor of the German military as a whole, since “he had heard no suggestion” from the German judiciary or the German medical community that their honor was impugned by the imprisonment of men who were “obviously a disgrace to the profession.” With these prominent German attacks on his personal authority as high commissioner and the legitimacy of the Nuremberg verdicts dealt with, McCloy moved on to briefly summarizing his decisions for his staff. Here, McCloy echoed the findings of the Advisory Board, repeatedly indicating that he would revise sentences liberally for “mere subordinates,” and “mere underlings.” He interpreted the tribunals’ reticence to impose the death penalty or a life sentence in a given instance as itself evidence that the tribunal had judged a particular prisoner a lesser offender who, as a result of this designation, was entitled to further clemency.13 McCloy’s equating of a less severe sentence with less guilt also echoed the rationalizations the Advisory Board had offered over the summer, and was legally problematic for the same reason: murder, plunder, and slavery were different crimes that tended to draw different sentences. A lesser sentence for a lesser crime did not necessarily mean that a given prisoner was worthy of clemency.

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As McCloy’s much-anticipated public announcement of his findings approached, West German parliamentary appeals in support of a wholesale revision of sentences, particularly the death penalty cases, reached a crescendo. On January 7, Bavarian members of the Bundestag organized a demonstration outside the gates of Landsberg Prison against the application of the death penalty for convicted war criminals. Some three thousand supporters attended, as well as approximately three hundred Jewish counter-demonstrators who arrived in buses to support the implementation of the death sentences. As the Times of London reported, “tumult broke out” when a Jewish counter-demonstrator was shouted down by menacing chants of “Juden raus!” (Jews get out!) when he attempted to remind the crowd about the millions of Jews exterminated by the condemned prisoners—whether the mayor of Landsberg himself participated in the chants was later a matter of some controversy. Although there were no arrests, the police removed several demonstrators from the scene. At their weekly HICOG staff meeting, Bavarian land commissioner George Shuster noted that the whole event was marked by a spirit of “rather extraordinary enmity.”14 The following days saw renewed appeals to McCloy from Adenauer, West German president Theodor Heuss, clergy, officers’ associations, and the press advocating various amnesty schemes for the Landsberg prisoners.15 Such was the atmosphere in which McCloy’s findings were released to the public. The HICOG Office of Public Affairs spared no expense in preparing and disseminating copies of McCloy’s Landsberg Report as widely and rapidly as possible to avoid “any speculative or distorted version of the story” in both the domestic and international media. Much like the Nuremberg trials themselves, the Landsberg Report was meant to fulfill a pedagogical function. Prior to McCloy’s and CINCUSAREUR Gen. Thomas Handy’s official announcements on January 31, HICOG produced 5,500 German and 1,800 English copies of the report in Frankfurt, going so far as to bar all German employees from the premises to prevent leaks to the press. These copies, under security classification embargoes, were then distributed on January 29 to leading public officials and media personalities in all three Western occupation zones to prepare the ground for the coming announcements. HICOG also wrote its own reportage for simultaneous teletype releases to major German and American media outlets accompanying McCloy’s January 31 press conference. In the following days, HICOG distributed an additional 740,000 German and 40,200 English-language copies of the Landsberg Report. These were allotted to reach “all elements of the West German population”: 255,000 copies for local labor committees and trade unions; 60,000 copies for high school teach-

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ers and student organizations, university professors, lawyers, and clergy in the Frankfurt vicinity alone; 79,000 copies to youth associations; 200 copies to each of the thirteen political party headquarters in West Germany and an additional 5,000 to Sozialdemokratische Partei Deutschlands (Social Democratic Party [SPD]) headquarters in Berlin; 4,400 to expellee groups; and 2,200 to war veterans’ associations. HICOG also mailed a further 3,000 copies to individuals who had written directly to McCloy on behalf of one of the prisoners or expressing a significant interest in the clemency issue, complete with a personalized card expressing “the U.S. High Commissioner’s appreciation for the interest shown in disposition of the Landsberg appeals.” Even this did not anticipate the actual extent of public demand for copies of the Landsberg Report, however. The initial print run was exhausted within days; by February 21 HICOG had already marked an additional fifty thousand copies for distribution to fulfill outstanding orders.16 Yet from the vantage point of late February, Secretary of State Dean Acheson identified significant flaws in the HICOG public relations effort, specifically a lack of coordination between operations in the United States and West Germany that contributed to a firestorm of criticism following McCloy’s announcements. “Recognizing that some adverse reaction to the clemency decisions was inevitable,” the State Department, Acheson wrote, had “made every effort to get all the facts to the [American] public, and particularly to radio commentators and editorial writers.” Unfortunately, there was no comparable information campaign in the United States to that in West Germany. The State Department itself lacked a copy of the complete report as late as January 31, merely possessing access to summaries. Only fifteen hundred copies were distributed to American media outlets outside of Washington DC, and the first package of printed pamphlets on the Landsberg decisions, earmarked for congressmen, lawyers, libraries, and other relevant public groups or national associations, were not ready for distribution until February 5, when the public controversy over McCloy’s clemency action was already well underway.17 Partly because of this lack of contextual information, Acheson argued, reactions in the American media were “predominantly hostile, with practically all commentators concluding that ‘political expediency’ played a part in the decisions.” Acheson was not overly concerned, however, as he assumed the voices of “continuing clamor” would be few and their hostility inevitable since they included longtime “hard peace” advocates such as Washington Post gossip columnist Walter Winchell, liberal Republican congressman Jacob Javits, and various “spokesmen for Jewish groups.” Public defenses of US policy were, in

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contrast, limited. Acheson concluded not only that the few copies of the Landsberg Report were insufficient to get ahead of the story in the United States, but that the report itself, intended primarily for a German audience, was “not the most persuasive” in convincing Americans of the justice of McCloy’s decisions, or contextualizing them within current US policy. Instead, in the United States, the Landsberg Report “tend[ed] to raise more questions than it would settle.”18

th e l a n d s b e r g r e p o r t A statistical comparison between McCloy’s final decisions and the recommendations of the Advisory Board reveals that, apart from some case-specific deviations, McCloy generally followed the board’s recommendations. Accounting for the fact that McCloy treated any recommendation of clemency that resulted in a reduced sentence of five to eight years in prison as equivalent to a sentence of “time served,” McCloy followed the board’s recommendations for clemency, no clemency, or a specifically reduced sentence in sixty-one of the eighty-nine cases. McCloy was more lenient than the board’s recommendations in only four cases: commuting the death sentences of three Einsatzgruppen commanders to life imprisonment (Waldemar Klingelhöfer, Adolf Ott, and Martin Sandberger), and reducing the sentence of former Reich plenipotentiary for coal for the Occupied Eastern Territories Paul Pleiger from fifteen years to nine rather than the board’s recommended twelve. The twenty-four cases where McCloy was less merciful than the board generally clustered in the trials where the institutions in question were responsible for direct (and often gruesome) harm to individual victims: eight of the nine physicians from Case 1, two judges from Case 3, four concentration camp officials from Case 4, seven Einsatzgruppen commanders from Case 9, and three generals responsible for drafting or implementing orders that resulted in the liquidation of Soviet commissars and prisoners of war in Case 12. The HICOG general counsel’s office had also filed strong dissenting opinions in every one of these instances. Even here, however, McCloy did not stray too far from the board in his conclusions, levying a final sentence within five years or less of the board’s recommendations in twenty of those twenty-four cases. In presenting his decisions, McCloy made repeated reference to his concurrence with the Advisory Board’s recommendations, and, in so doing, a­ dopted the board’s propensity to view the prisoners in a given case in the harshest moral and legal terms collectively while finding ample room for clemency in most individual circumstances.19 As a result, McCloy generally spoke more of,

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John J. McCloy, US high commissioner for Germany, at his desk in HICOG headquarters in Frankfurt, February 10, 1951. (JJMP Oversize Box 4, Vol. 8)

and reacted more harshly to, the defendants who could be linked to specific atrocities, as opposed to the prisoners who offered unflagging support to Nazi criminal institutions or genocidal projects more generally.20 Demonstrating once again the muddled functions of the board as simultaneously a clemency panel, a parole board, and an impromptu appellate tribunal, McCloy began the Landsberg Report by noting, “It is a fundamental principle of American justice that accused persons shall be given every opportunity to maintain their innocence. If found guilty, it is recognized that they should be permitted to establish mitigating circumstances.” This was the basis for the board’s work, which McCloy briefly reviewed, although he was sure to emphasize that, in the end, every decision was his alone. McCloy’s criteria for mercy, echoing the Advisory Board’s own rationale, included disparities in sen-

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tences across cases, reevaluations that showed the prisoner “was of relatively subordinate authority” and thus not as responsible for the crime in question as the tribunal judgment indicated, new evidence that exonerated the defendant in some way, any indication that the defendant “had the courage to resist criminal orders at personal risk,” and acute illness or some other such “special circumstances of similar nature.”21 The wartime conduct of the physicians tried in Case 1 constituted a “betrayal of the medical profession,” particularly since “several of the men for whom clemency is asked were not only physicians, but also professional soldiers of very high rank.” McCloy continued, “If there had been any sense of obligation to either profession, they would not have played any consenting role in these outrages.” Nevertheless, all nine prisoners received clemency for “lack of primary responsibility, age, and limited participation,” including the reduction of five life sentences to two twenty- and three fifteen-year terms.22 McCloy used similar language in describing his decisions in Case 3 (the Judges Trial), noting that the defendants “cast discredit” on their profession, since they eagerly disregarded judicial principles “to advance the most brutal racial and political principles.” As a lawyer himself, McCloy “had difficulty in finding any justification for clemency in any of these cases.” Yet again, however, because the board had recommended that he do so, McCloy drastically shortened the sentences of all seven prisoners in the case, reducing three life sentences to twenty years and approving four outright releases: three ten-year sentences reduced to time served and a life sentence canceled for medical hardship.23 In Case 2, regarding the single defendant Erhard Milch, McCloy castigated Milch’s wartime conduct as “not subject to question” given “his almost violent advocacy of and pressure for slave labor and disregard for the life and health of such labor.” McCloy characterized the board’s recommendation that Milch’s sentence be reduced from life to fifteen years as “a sharp reduction considering the high responsibility of this man.” Nevertheless, as in the other cases, McCloy was “prepared to follow it.”24 McCloy described the group of six defendants remaining in prison from Case 8 (RuSHA) as “all connected with former government ministries charged with carrying out the almost unbelievably brutal racial concepts of Hitler and Himmler.” “Guilt,” McCloy continued, “attends all the defendants in some measure,” in that all were linked to population transfers, the kidnapping and “Aryanization” of children, sterilizations, and forced abortions of racially un­

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desirable children. Yet again, however, because of the “relatively subordinate roles” of the defendants and the “relatively restricted nature of the relationship of these defendants to the crimes” of the organization, McCloy granted all of them clemency. Three were released outright, and the other three saw significant reductions in their sentences.25 One of the individuals who was apparently remote from the crimes of the RuSHA was Otto Hofmann, the head of the RuSHA from 1940 to 1943, who had overseen the very policies McCloy deemed so abhorrent. McCloy’s conclusions in Case 10 (the Krupp Trial) also echoed the Advisory Board’s argument that the punishment visited upon the former armaments executives was unjust given that the judgment, as written, “made it difficult to allocate individual guilt among the respective defendants,” regardless of the defendants’ proven involvement with criminal activity. While the tribunal had convicted the Krupp executives on the counts of plunder (assets illegally seized from France and Holland and acquired by Krupp during the German occupation) and the employment of civilian slave labor and illegal (compulsory) prisoner of war labor at Krupp facilities, McCloy ruled that the Krupp industrialists were not fully responsible for these actions. On the first charge, McCloy argued that because of the central control the German government exercised over economic matters that intersected with war production, it was the state, not Krupp, that occupied Holland and France, seized assets there, and allocated those assets for Krupp to purchase at a discount. On the slave labor charge, McCloy again placed the onus of responsibility on state institutions, writing, “Slave labor was allocated by governmental authorities and the conditions under which the labor was confined and worked were directed entirely by the concentration camp commanders in the case of the civilians and the army in the case of the war prisoners.” While it was indisputable that “this labor was inhumanely treated . . . there is likewise no doubt that the industrial concern and its management were not primarily responsible for this treatment.” McCloy left unsaid who was responsible for the crimes of the Krupp enterprise, no small omission given the enormity of the contradiction with the factual record established at the tribunal. Moreover, McCloy judged the sentences in the Krupp case as disproportionate to those meted out to other industrialists and, with that in mind, reduced all nine sentences to time served. Finally, McCloy voided the property confiscation decree against Alfried Krupp. In the process, he ignored the tribunal’s reasons for the asset forfeiture (that Krupp had acquired this property illegally as a reward for service to the Reich),

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deriding that aspect of the judgment as “repugnant to American concepts of justice.” For McCloy, the punishment constituted unjustified “discrimination” against Alfried Krupp, whose offenses paled in comparison to those of outright murderers whose property had not been seized. In this instance, McCloy had been informed of the careful legal analysis done by his predecessor, Lucius Clay, that had resulted in Clay affirming the judgment against Krupp, with slight modifications, in 1949, but McCloy overturned Clay’s decision anyway.26 Reflecting specifically on the rationale behind his decision in favor of Krupp thirty-three years later, McCloy also revealed feeling that the tribunal was “doing [Alfried Krupp] dirt,” because, like the Advisory Board, McCloy had not consulted the entirety of the trial record and believed the pernicious myth that Alfried Krupp was unjustly punished for the crimes of his father, who, due to ill health, was spared prosecution.27 Again, in spite of later accusations, particularly by leftist press outlets, that the freedom of Krupp represented an expedient alliance between Germany’s largest arms manufacturer and its new imperialist American overlords, McCloy’s decision in this case was driven more by revulsion against the “un-American” act of state asset forfeiture and the perception that Alfried Krupp was a persecuted innocent. McCloy was somewhat less merciful when it came to the SS officers and military leadership, but here too he reduced sentences in most individual cases while expressing outrage at the collective record of these groups’ wartime atrocities. Indeed, of the eleven sentences McCloy affirmed, five were for high-ranking military officers in the Hostages and High Command Trials, one was Oswald Pohl in the WVHA/Concentration Camp Trial, and the remaining five were SS officers from the Einsatzgruppen Trial. The Einsatzgruppen defendants in Case 9, “at least many of them, [were] typical of the most inhuman and degrading aspect of the whole Nazi spectacle.” The murders which these individuals committed “were on such a large and vicious scale that the mind has difficulty comprehending them.” The evidence against them was generally irrefutable, consisting of the careful organizational reports of the killing squads and the self-incriminating testimony of the Einsatzgruppen leaders. While “no rationalization or explanation whatever can justify the existence of these organizations themselves, or the policy which motivated them,” the board had found grounds for clemency because of “subordinate responsibility, or the relative remoteness of his connection with the murders, and in some cases, the refusal of the prisoner himself to continue in this brutal business.” Of the twenty-one defendants in the Einsatzgruppen case, McCloy upheld five

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death sentences, commuted another nine to sentences ranging from life to fifteen years’ imprisonment, reduced two life sentences to ten years, released two prisoners on ten- and twenty-year sentences outright, and substantially reduced the sentences of the three remaining prisoners.28 When it came to the conduct of German military officers in Cases 7 and 12 (the Hostages and High Command Trials) McCloy was eager to dispense with the notion that the goal of the postwar trials had been to “malign the German military profession as a whole.” McCloy was particularly sensitive to this slander against impartial American justice. The sentences imposed on the military officers at Nuremberg, McCloy argued, “were based on charges of excess beyond anything which could possibly be justified on the grounds of military security.” The charges included “savage measures of reprisal and oppression against civilian populations far exceeding the limits of international law or accepted military tradition.” While McCloy had made every effort to take “the bitter character of partisan warfare” into account, “there still remained excesses which cannot be rationalized or excused.” Nevertheless, many of these sentences required revision. Any remaining sentences reflected the individual responsibility of offenders on a case-by-case basis, not “the honor of the German military profession.”29 In the Hostages Trial, for instance, McCloy noted that he had affirmed the life sentences of Wilhelm List and Walter Kuntze because of the energy they dedicated to the “terrorization policy of their Command,” which went far beyond “the mere transmittal of a patently illegal order.” Despite McCloy’s effort to give full weight to the brutal conditions of partisan warfare in the occupied Balkans, “the conclusion is inescapable that these highly responsible officers . . . passed far beyond the limits permitted by justifiable military consideration, both in their acts of omission and commission.” Yet McCloy indicated that because List and Kuntze were both elderly, a medical parole might soon be appropriate for both. As to the other defendants in the case, the officers charged with “excessive reprisals” saw significant reductions in their sentences “because they had lesser responsibility or, in some cases, showed evidence of humane consideration.”30 So while McCloy affirmed Kuntze’s and List’s life sentences, he reduced four other sentences ranging from seven to twenty years to time served, and reduced two other sentences, one of fifteen years and one of twenty years, to ten years’ imprisonment. McCloy’s description of the High Command case employed similar rhetoric. While once again McCloy reported that he had tried to give every consideration to the fact that high-ranking “officers are impelled to take measures

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calculated to protect their country and their command, there still remain, in these cases, an area of real guilt which, whatever his nationality, a professional soldier sensitive to his responsibilities cannot countenance.” Many of the actions with which these commanders were associated, including cooperation with the Nazi Sicherheitsdienst (Security Services [SD]), liquidation of political prisoners or racially undesirable civilians, and the systematic murder of downed Allied pilots, were “beyond military justification.” McCloy upheld one life and two fifteen-year sentences in the case, but nevertheless reduced one life sentence to fifteen years and two twenty-year sentences to twelve years because of “detached responsibility and other extenuating circumstances,” including either resistance or hesitancy to implement or attempts to moderate (broadly defined) these criminal orders. This was despite McCloy’s opening sentence in his remarks on Case 12, which underscored the “very high military rank” and subsequent high responsibility of the prisoners in the case.31 Again, McCloy, like the board, provided little or no evidence that the prisoners had resisted their orders, and left his conceptions of “responsibility” or “extenuating circumstances” undefined. The final section of McCloy’s portion of the report was dedicated to convincing the West German government and people that the five prisoners for whom McCloy had upheld death sentences were uniquely heinous individuals who deserved to die for their crimes. Lest it appear that McCloy was being unduly harsh with these individuals (four Einsatzgruppen commanders and Oswald Pohl), McCloy set out to explain why he was unwilling to extend mercy in their cases. In these public remarks, even while upholding the verdicts of the Nuremberg tribunals, McCloy lent weight to the perception that the horrific crimes of the Nazi regime were largely attributable to the actions of a few monstrous men in the upper echelons of the dictatorship, lessening the perceived guilt of the other prisoners by comparison. In addition to the enormity of their crimes, a unifying factor in the death sentences McCloy upheld was that every defendant had, under oath, admitted to or acknowledged his responsibility for the crimes he was charged with. Those who had accepted responsibility for their crimes (although it is important to note that they expressed no remorse or contrition for them) were judged more harshly by McCloy than those defendants who continued to lie and obfuscate. In these cases, defendant corroboration of documentary evidence resulted in an impression that guilt was so absolute that no clemency was possible, while those who continued to question and disregard the same overwhelming

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documentary evidence at every turn could introduce notions of reasonable doubt, mitigating circumstances, or lesser responsibility into McCloy’s and the Advisory Board’s considerations. There was no incentive for repentance— denial was safer. Moreover, even when considering the Einsatzgruppen cases separately, the comparison between prisoners who received clemency and those who did not begged the question: who was responsible for the horrific crimes of the Third Reich? Otto Ohlendorf himself noted after McCloy’s decisions that thousands of men had taken part in the murders in the East, and yet, in the end only a few would pay with their lives. Ohlendorf, of course, approached the question through the lens of nationalistic reaction, believing that his wartime actions were just, his postwar fate unjust, and that history would see him as a martyr.32 The fate of the unspared Einsatzgruppen commanders was indicative of a broader postwar American and West German tendency to avoid grappling with the reality that the crimes of Nazism were undertaken not by a gang of criminals, but by a state, with all its accompanying power and institutions dedicated to a murderous re-imagining of Europe. The execution of the men who gave the orders and the eventual freeing of the men who carried them out was not just a symbol of Cold War expediency, but an affirmation of one narrative of the war over another, one which had legal and political as well as moral implications for the German people. The final section of the Landsberg Report was reserved for the explanation of decisions reached by Thomas Handy’s simultaneously operating War Crimes Modification Board, chaired by the former leader of the Senate Armed Services Committee’s investigation into US Army conduct in the Malmedy Massacre trial: Texas Supreme Court justice Gordon Simpson. Much like McCloy’s Advisory Board, the War Crimes Modification Board was tasked with recommending clemency as warranted for five hundred cases they reviewed. An analysis of the War Crimes Modification Board’s recommendations would require a study unto itself, but Handy’s review of the sentences imposed under the Dachau trials offered a somewhat uncomfortable contrast to McCloy’s. While Handy commuted all of the remaining death sentences to life terms and reduced 349 of the 510 sentences, these numbers were somewhat misleading in that the War Crimes Modification Board often recommended reductions of much smaller increments than HICOG—life sentences to thirty years, and thirty-year sentences to twenty-five or twenty—resulting in the perception (borne out by later resistance to further sentence modifications) that the army

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was much less lenient than the State Department. From Handy’s perspective, this was because the Dachau trials were more firmly grounded in established legal codes, adjudicating the guilt of specific individuals for specific instances of atrocity rather than parsing the broader issues of responsibility and policymaking that the Nuremberg trials explored.33 As a result, apart from select outrage over a few prisoners in army custody that had murdered Americans at Malmedy, the bulk of the brewing public backlash to the Landsberg Report would be borne by McCloy.

react i o ns t o the l a n d s b e r g r e p o r t McCloy’s decisions received substantial press coverage in the United States, West Germany, and throughout Europe. An internal report from the HICOG Office of Public Affairs noted that the combined announcements of McCloy and Thomas Handy “completely dominated the front pages of the German morning newspapers,” which all devoted three or more columns and “banner headlines” to the news, often quoting lengthy passages from McCloy’s and General Handy’s reports in their coverage.34 Much of the public reaction to McCloy’s decisions was mixed or negative. This was not entirely unexpected, as McCloy’s office had been preparing for weeks prior to the release of the report for what New York Times sources referred to on background as “a double wave of protests” from an international audience that would view the conclusions as unduly lenient and probable West German condemnations of the remaining sentences as too harsh. The international constituency for McCloy’s brand of justice was quite small indeed. Given the threats from German veterans’ organizations in 1950 that they would make every effort to scuttle a German role in Europe’s defense unless their imprisoned brethren received amnesty, a popular charge levied against McCloy by his detractors was that he had kowtowed to these reactionary voices. Only a few weeks prior to McCloy’s public announcement of his findings, however, sources close to him informed the press that McCloy remained unbowed, since “Mr. McCloy feels that the Americans would rather not have the Germans if their cooperation depended upon the justification of war crimes or negligence to exact the penalty for them.”35 In some respects, McCloy and his critics would talk past one another, in that McCloy seemed to regard his firmness on the five death penalty cases as evidence that he had not succumbed to public pressure, while his critics pointed to the seventy-eight instances where McCloy had reduced sentences as evidence that he had. As the debate between McCloy and his critics played out in the press, McCloy continued to defend his

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actions by criticizing the Nuremberg tribunal verdicts that, he argued, had required his intervention. In the United States, France, Israel, and Great Britain public condemnations of McCloy’s decision came swiftly and from many quarters. In Paris on February 1, resistance-oriented newspapers decried the “whitewashing” of Krupp and the other war criminals, while the American Jewish Committee in Paris criticized “the reversal of one of the most fundamental Allied war aims— punishment of those responsible for mass crimes against humanity.”36 Conservative papers such as the Paris Presse decried McCloy’s inexplicable actions for having “practically destroyed the Franco-American understanding.”37 In the coming days, both the communist L’Humanité and the republican L’Aube condemned the release of Krupp, with the former hewing to the standard propaganda line about the links between the Nazi-era fascists and contemporary German rearmament and the latter speculating about a reactionary plot in Bonn to sabotage the May 1950 Schuman Plan for closer Franco-German economic ties, which would manifest in the formation of the European Coal and Steel Community by April 1951.38 This was followed by an implicit rebuke in the form of an official announcement from the French Foreign Office on February 7 that France had “no intention” of revisiting the sentences of war criminals in their occupation zone, and a March 9 resolution from the Foreign Affairs Committee in the National Assembly “protesting most strongly” against McCloy’s alterations to the Krupp sentences.39 In Britain, Labour, Conservative, and Communist newspapers alike criticized McCloy while politicians were left flat-footed in addressing the controversy. A popular editorial cartoon depicted Hitler and Göring receiving the news of Krupp’s release in Valhalla, with Hitler wondering, “Should we have hung on a little longer?” In the face of questions from the Labour opposition, Ernest Davies, parliamentary undersecretary of the Foreign Office, categorically denied any similar British plans to revisit the sentences of their prisoners, stating in the House of Commons that “Where crimes against humanity have been committed, there will be no remission.” As for McCloy’s actions, Davies claimed (inaccurately) that the British government had not been consulted or informed beforehand, and as McCloy’s prisoners were not part of the fourpower IMT, the British government had no right to interfere.40 When the British high commissioner, Ivone Kirkpatrick, expressed some tepid support for his colleague McCloy, he was immediately summoned back to London by the government for consultations. The Manchester Guardian ran an editorial criticizing “a mercy which is a weakness and even treason against the common

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good.” In reporting on McCloy’s decisions, the Economist acidly noted, “Once more it is evident that the best way of dealing with the matter would have been to have executed summary justice on the morrow of victory.”41 The government of Israel submitted an official protest to the American ambassador in Tel Aviv in March expressing “profound pain” over the “un­ justified” clemency decisions. Although State Department officials noted that David Ben-Gurion’s government had filed the memorandum of protest with the American ambassador to undercut opposition parties’ threats to stage an embarrassing official debate in the Knesset over the American clemency de­ cisions and foment anti-American demonstrations that would play into the hands of “inimical forces” in the region, the Israeli Foreign Ministry’s critique was nevertheless public, detailed, and devastating.42 Noting that the Nuremberg trials had been fair proceedings concerned with “the punishment of crimes which for their dimensions and inhumanity had no precedent in the history of man,” the Israeli communiqué went on to remind the United States that “the victims of these harrowing deeds were for the most part Jewish men, women and children, slaughtered for no other reason than that they were Jews,” and that few families in Israel were not marked “by this wholesale carnage.” It continued, “The people of this country cannot but regard this act of appeasement toward the worst elements in Germany as an outrage against the memory of the martyrs.” By way of explanation for “the bitterness aroused by this amazing decision,” the aide-mémoire methodically objected to McCloy’s justifications for clemency in the Concentration Camp, Einsatzgruppen, Justice, Ministries, and Hostages cases, juxtaposing the enormity of the crimes of individual defendants with McCloy’s explanation that such individuals were minor figures, infirm, or otherwise worthy of clemency due to previously unforeseen mitigating factors. The memorandum derided, for example, McCloy’s decision to cut the sentence of SS “arch-criminal” and Himmler associate Gottlob Berger, “who was co-responsible for the slaughter of millions of Jews” from twenty-five years to ten years merely “because he realized the war was lost and created an alibi for himself,” by saving the lives of some Allied flyers. Clemency for such individuals threatened to undo “the great achievement” of Nuremberg, which “established the principle that there are certain basic rules of morality which no State and no Government can disregard with impunity,” and that individuals in league with governments that violated these norms would be held responsible for their wartime actions. Because McCloy had so transparently allowed “political expediency” to

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guide his decisions to revise the sentences, the Israeli government argued, the Nuremberg trials themselves had become irrevocably stained as unjust or “political” acts of Allied retribution. McCloy’s gift of an “utterly unjustified and dangerous measure of clemency” to undeserving German war criminals was only the beginning; he had also “gravely impaired” Nuremberg’s deterrent function. “A would-be war criminal of the future,” the Israeli text concluded, “need not be discouraged by the Nuremberg Trials from indulging in similar genocidal excesses. He will calculate [that] inasmuch as international calcu­ lations invariably change, he may, even if found guilty and condemned, succeed in escaping punishment by a future turn in the wheel of international relations.”43 The Institute of Jewish Affairs, a research organization affiliated with the World Jewish Congress, also produced a report, The Burial of Nuremberg, condemning McCloy’s clemency. The Nuremberg trials had been “more than t­ rials of individuals, they were also an indictment of a system which had contempt for human beings, violated human rights, annihilated defenseless persons,” and enslaved racial and political enemies. Yet in a remarkable act of restraint and legal responsibility, the tribunals had rejected collective guilt, stating “in every case that defendants were individually responsible only for their own acts and not for the acts committed by other persons in execution of a common plan.” Given the tens of thousands of pages of documentary evidence, testimony, and affidavits for and against the defendants, “These trials were not acts of vengeance. They were fair trials.” The prisoners had availed themselves of the legal system in the American zone, been found guilty, and sentenced by some of America’s best legal minds. The military governor of Germany had reviewed their sentences and found no basis for leniency. Multiple congressional investigations had determined that the defendants had received a fair trial. The US Supreme Court too had rejected their appeals. Yet McCloy had yielded to the pressure of “sectors of the German population, still imbued with the Nazi ideology,” and “decided to appoint a Clemency Board which had no particular basis in law.”44 Following a case-by-case review of some of the notorious defendants whose sentences were significantly reduced, The Burial of Nuremberg took issue with the broader implications of McCloy’s clemency decisions. “The McCloy decision was dangerous,” the report argued, “not only because it liberated war criminals . . . but also because it challenged the validity of the Nuremberg principles through questionable legal steps.” There was no provision for a clemency panel in either Control Council Law 10 or US Military Governance Order No. 7,

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the foundational texts outlining the treatment of accused war criminals in occupied Germany. Moreover, clemency panel meetings were not a court of law—if new evidence came to light it should be considered in a new trial, where it could be subjected to proper scrutiny by prosecutors and other interested parties. Since the legal basis of the Advisory Board was questionable and its operating procedures opaque, the report concluded, “It would appear . . . that the appointment of the Board and its subsequent decisions were based purely on political expediency.” If so, such thinking did not anticipate the ramifications of the board’s activities, which undermined the legal basis of the Nuremberg tribunals and provided Germans hostile to the tribunals “material for unscrupulous propaganda to glorify the condemned criminals as martyrs of political justice.” “Thus,” the report concluded, “the entire validity of the Nuremberg Code has been challenged.” It was “ironical . . . at a time when the United States was endeavoring in the United Nations to accelerate the codification of the Nuremberg principles and when a total of 27 nations had ratified the Genocide Convention, clemency was granted to criminals guilty of the worst genocidal acts in history.”45 In a bid to highlight the impartiality of American justice, McCloy had put the security of the West at risk. The reaction of the Soviet-controlled press in the Eastern Bloc and the USSR was predictably strident, seizing on the release of the Krupp defendants as indicative of the resurgence of gangster-capitalism, American-style. Rudé Právo, the official newspaper of the Communist Party of Czechoslovakia, blared that the war criminals had been “released to permit them the continuation of their activities” against the people of Eastern Europe and the USSR, this time led by “the blood-thirsty American monopolists.” This response emulated the line taken by Izvestia, the Moscow daily paper that reflected the official views of the Presidium of the Supreme Soviet, which interpreted the release of the war criminals as “prov[ing] once again that in preparing their new war the American aggressors have turned to the extensive use of fascist mass-murder specialists. . . . The imperialists have come to the rescue of their old allies.” East Berlin’s National Zeitung saw in the sentence revisions a deliberate effort by McCloy and his bosses in Washington to have the war criminals “available when the time comes . . . in view of the impending establishment of a German army of mercenaries.” The Americans had clearly “become the heirs of Hitler,” since “McCloy has called back Hitler’s old supporters.” To that effect, another East Berlin newspaper reprinted a cartoon from Moscow that depicted General Eisenhower shoveling German officers from a garbage pile into a horse cart pulled by the governments of the “Marshallized” Western European

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countries (that is, those that had accepted American Marshall Plan aid for postwar reconstruction).46 A similar editorial line appeared in radio broadcasts throughout the Eastern Bloc. Commentaries broadcast on Budapest radio informed listeners that the Americans had released the “fascist beasts” as allies in the United States’ aggressive campaign against the Soviet Union. Further broadcasts detailed lurid conspiracies between McCloy, Supreme Commander of NATO Dwight Eisenhower (“that death merchant of the U.S. government”), the US State Department, and elements of the “Hitlerite Wehrmacht” to free Krupp for nefarious purposes.47 Likewise, the Soviet-controlled RAVAG (Radio Verkehrs AG) of Vienna claimed that the “alliance of the Americans with the German armaments magnates, cannon kings, and hangmen of the nations of Europe” was “new proof that the Americans are accelerating the speed of their preparations for a third world war.”48 Additional broadcasts argued that the apparent American and West German enthusiasm for a second invasion of the Soviet Union, led by the former SS men and industrial magnates of Hitler’s Reich, was the result of a broadbased political consensus in Bonn, in which even the West German socialist parties were complicit.49 Radio commentaries from Warsaw speculated that McCloy’s sentence reductions were surely a sign of a wholesale amnesty for all remaining war criminals in the near future, while broadcasts in Prague condemned the clemency actions as an “unprecedented provocation” signifying the enlistment of those most skilled in “war, mass murder, and the torture of men” in the West German rearmament project. Indeed, in the state presses of Czechoslovakia, McCloy’s release of Ministries Trial defendants Wilhelm Keppler, Hans Kehrl, and Hans Heinrich Lammers was greeted with particular opprobrium because of their prominence in dismembering the Czechoslovakian state, plundering its economy, and enslaving its workforce during the war.50 The editorial line of communist newspapers also contrasted McCloy’s leniency for German war criminals with what it vividly described as unjust American domestic and foreign policy moves. Soviet editorials, such as an article that appeared in Izvestia alongside the news of McCloy’s clemency announcements, provided lurid descriptions of alleged American atrocities in Korea to further underscore comparisons between the United States and the defunct Nazi regime it was evidently committed to reviving. Conjuring a vision of a “blood-drenched Korean land” over which “Hitler and Himmler, Truman and MacArthur were shaking bloodstained hands with one another,” and

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where “present-day American storm troopers and SS men” roamed, the Soviet press charged the Americans with murder and plunder of civilians, terror bombing, and even the burning of Korean books in a manner inspired by “their Nuremberg teachers.”51 Lest the connection between American clemency for war criminals in Germany and the crimes of American soldiers in Korea be missed, other editorials, such as those appearing in the Polish Zycie Warszawy, explained, “The fight with Poles, Russians, and French was so hard, the poor SS men had no other way out and they had to have recourse to mass executions. . . . The Americans understand it very well. They found themselves in a similar situation in Korea, and they find there the same way out.”52 The war in Korea not only underscored both the brutality and hypocrisy of the Americans but also explained their newfound sympathy for German war criminals. Ironically, this was also a long-standing argument in German nationalist circles, darkly suggesting that the Korean experience might teach the Americans a lesson or two about the necessity of “harsh measures” in a brutal partisan war.53 Also featuring prominently in communist propaganda outlets as symbols of American hypocrisy were stories of the “Martinsville Seven,” a group of black men convicted of raping a white woman in Virginia in 1949 and sentenced to death, whose executions took place just as McCloy’s pardon of the German war criminals was dominating European news coverage. The case drew attention to racism in the criminal codes and judiciary, both because of due-process irregularities (coerced confessions, pro forma trials, all-white juries) and because while rape was a capital crime in Virginia, only African Americans had ever been sentenced to death for it.54 While drawing attention to racial oppression and “un-freedom” in the United States was a standard (and cynical) aim of Soviet propaganda during the Cold War, the contrast of Nazis walking free in Germany while African Americans mounted the electric chair in Virginia was met with withering criticism by the Soviet-aligned press.55 West Germans who, according to HICOG survey data, were expecting far more leniency than McCloy delivered were not impressed by McCloy’s decisions either.56 Circles close to Adenauer’s military advisors were incensed that the sentences for former German generals were not reduced even further, couching their objections to McCloy’s decisions in vaguely ominous threats about the imprisoned former officers posing grave psychological obstacles to German rearmament.57 McCloy and his wife, Ellen, also received numerous death threats promising vengeance against them and their children if the remaining death sentences against the Einsatzgruppen commanders and Pohl were carried out. Like her husband, Ellen McCloy brooked no sympathy for

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German protestations against the “inhumanity” of the death penalty, responding acidly to one of her German interlocutors that “It would have been better if the Germans had taken that attitude before, rather than after, millions were murdered during the Nazi regime.” The threats against the McCloys prompted a public response from a “deeply shocked” Chancellor Konrad Adenauer that underscored the McCloys’ “sense of responsibility and humanity which do them honor,” continuing, “They have done more than the average German would have done under the circumstances.”58 The West German government declined to officially comment on McCloy’s decisions, noting only in a statement that it had petitioned vigorously for the commutation of all death sentences, and that whatever sentences remained were because of convictions and punishments decided under American, not West German, law. The statement did, however, express that it was clear that McCloy had taken the “greatest trouble” to investigate each case impartially. President of the Bundestag Dr. Hermann Ehlers was the only significant West German official to explicitly support McCloy following the release of the Landsberg Report, offering that “no better decisions” could have been reached.59 In fact, editorial coverage of the decisions in American newspapers three weeks later noted the growing frustration in HICOG that since Ehlers had spoken out, no West German politician had “raised his voice either to praise the American clemency or to guide public opinion.” Instead, Adenauer and others had chosen to remain silent, allowing McCloy to take the brunt of the “fanatical” criticism, expressed in thousands of letters, many including death threats, and other such public protests.60 Internally, HICOG officials believed that there was a silent majority of West Germans who supported McCloy’s decisions but remained quiet because of the reticence of West German politicians to confront the vocal minority of passionate amnesty advocates.61 Adenauer would only break his silence on February 14 to request that the administration of the final death sentences be postponed because of what he saw as “unclear” factors in the trial procedure that required further investigation (an appeal which McCloy publicly denied); the chancellor did not offer any further remarks on the clemency decisions until his early March defense of McCloy and his family in the wake of the aforementioned death threats.62 As late as March 5, Benjamin G. Buttenwieser, assistant US high commissioner, openly criticized the reticence of German politicians, noting that “not one German Cabinet Minister, and no important Church dignitary, extended a single word of endorsement to the courageous, just, and generous spirit and understanding with which these cases were handled.” Moreover, “It is regrettable,”

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Buttenwieser concluded, “and far from reassuring to the outside world, that only a small sector of the German leaders set a compelling example by publicly disowning . . . the nightmare of Nazi terror by acclaiming the just fate that finally caught up to the seven mass murderers.” This was meant, and taken, as a direct rebuke of Adenauer’s stance by McCloy, who had personally approved the text of Buttenwieser’s speech.63 Individual West German politicians generally criticized McCloy’s decisions in two ways: by focusing on the “inhumanity” of the seven remaining death sentences (five from McCloy’s decisions and two more from General Handy’s concurrent clemency review of the Dachau cases) or by rejecting any remaining punishment as an unjust stain on German honor. Bundestag vice president and Social Democrat Carlo Schmid, for example, while noting that those still facing death had committed deeds “so frightful that no clemency board in the world could have recommended a pardon,” was still bothered by the prospect of future executions, and expressed his wishes as chairman of the Bundestag Committee on Foreign Affairs that the executions, as violations of the Basic Law, should only happen outside the country, if at all.64 These concerns, which so many Germans linked to issues such as collective guilt, ex post facto law, and infringements on West German sovereignty, were generally brushed aside by McCloy. As he had in late 1950, McCloy maintained that there was no legal conflict because the death sentences had been imposed prior to when the Federal Constitution became law and the criminal acts in question were committed outside of Germany and against non-Germans. The West German government had no legal standing in the matter.65 If West German politicians generally remained silent for fear of alienating nationalist voters, several West German newspaper editorials supported McCloy’s decisions as vital steps forward. The Münchner Merkur saw the decisions as a reason to proclaim to its readers, “It now behooves us all to make a final break with the evil past.” The Frankfurter Neue Presse, in an editorial that was also broadcast on Frankfurt radio, lauded the public outcry against the remaining death sentences as “tangible proof that human life has gained recognition again, after mass murder, war, and bombing terror.” In noting McCloy’s receipt of pleas of mercy from family members of the condemned prisoners, the editorial continued, “Mr. McCloy told visitors . . . ‘I will act as I believe the Lord would want it.’ Did anybody ever hear anything like that in Germany during the years of 1933 to 1945?” The Frankfurter Rundschau, on the other hand, a paper with leftist sympathies, denounced the complaining of “German reac-

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tionaries, neo-fascists and soft-hearted society ladies,” about the remaining death sentences. After all, “since nobody can be stupid enough to ignore the fact that somebody must have been responsible for Auschwitz and Buchenwald,” there were only two choices: blame and execute these criminals who had killed millions, or declare them innocent as individuals and burden the German people with collective guilt. Rather than victims of American vengeance, the remaining condemned war criminals should be viewed as the last victims of Nazism.66 More significant for the public perception of the clemency decisions in Germany were broader trends in public and published opinion that interpreted the wholesale reduction in sentences as a repudiation of the tribunals. While there was a short-lived public clamor about the fates of the “worst of the worst” still awaiting their executions, the campaign to delegitimize the Nuremberg trials lived on. In fact, the day after McCloy’s decisions were published, there were indications that not only would additional public pressure be applied to the high commissioner over the matter of the outstanding death sentences, but that such a campaign would include the broader goals of releasing the remaining Spandau prisoners from the IMT as well.67 Other newspapers representing a wide variety of political opinion took McCloy’s legal justifications for review and his statements that justice was now done as indicative of deeper flaws that necessitated the wholesale repudiation of Nuremberg. The Bielefeld Westfalenblatt decried the tendency to heap praise on McCloy and Handy for revisiting the Landsberg sentences because while “nobody said so . . . it was admitted indirectly: the sentences were premature, the trials were impeachable, fundamental legal objections were overridden.” Otherwise, more sentences would have been upheld. Hysteria over the remaining death sentences should not distract from these revelations.68 The Hannoversche Allgemeine took a similar line, praising McCloy for “admitt[ing] indirectly that the sentences frequently correspond rather to a policy of victors trying the vanquished than to objective administration of justice.” Indeed, McCloy had not gone far enough; it was insufficient merely to remit the sentences of men like Krupp or List. The Hannoversche Allgemeine argued that they deserved “honorable rehabilitation” as well. The Frankfurter Allgemeine praised McCloy’s courage in repudiating the Nuremberg tribunals’ conclusions, linking it to a broader failure of (however well-intentioned) laws of war for all nations—one only need look to Korea, “where there is a wide divergence between the postulates of law and actual events,” to understand the futility of

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judging wartime conduct after the fact. Numerous papers, including Die Zeit, called for new trials for the remaining prisoners, given the evident shortcomings in the Nuremberg sentences. The most severe attack on McCloy’s decisions came from the conservative evangelical publication Christ und Welt, which had mounted a two-month-long campaign favoring mass amnesty. The entire travesty could have been avoided, a Christ und Welt editorial argued, if the occupying powers had only abided one of the final decrees of the provisional government of Hitler’s successor Admiral Karl Dönitz in May 1945, which called for the German courts to investigate and try those who had committed illegal acts. That would have been impartial justice. Instead, the Allies opted for Nuremberg, which “cannot be recognized by Germans as legal proceedings in which law was applied and executed,” since, given the sheer scale of McCloy’s sentence reductions, exculpatory evidence was likely repressed there.69 Even editorials offering cautious praise for McCloy’s decisions used the occasion to express dissatisfaction with the extent of the reprieves, criticize the entire Nuremberg project, or castigate American hypocrisy. The Wiesbadener Tageblatt praised the care and consideration that McCloy had dedicated to the sentence reviews, but argued that the confirmation of some of the longer sentences for German military officers was “strange” given the war in Korea. The Frankfurt Abendpost likewise praised McCloy and Handy for their “prudent and reasonable decisions,” but called for further investigations of the cases of those who remained in prison by “neutral” parties to ensure that justice was done. A radio editorial by Dr. Ernst Mueller-Meiningen, a notable journalist of the Süddeutsche Zeitung, broadcast from Stuttgart, praised the “late, all too late” decisions of McCloy and Handy, particularly on “the much too stiff Krupp sentence” while lamenting that, no matter their crimes, the executions of the remaining condemned men would not bring back any of the victims. McCloy’s intention to “avoid avoidable injustice” was praiseworthy, and a notable contrast to the spirits of “hatred and revenge” under which the Nuremberg trials had taken place.70 Often lost in both HICOG and international reporting on West German reactions to the Landsberg Report, which tended to highlight reactionary and nationalist hostility, was the widespread and popular disapproval of the clemencies by elements of the non-communist left. Man-on-the-street interviews conducted by the Reports Division of the Office of the Land Commissioner for Bavaria shortly after McCloy’s announcement revealed not only the usual reactionary objections to American actions (namely, that the trials of German

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soldiers were “unwarranted,” or “The Americans are committing the same acts in Korea”) but also that the “greatest criticism from the populace” concerned McCloy’s remission of Krupp’s sentence. The resulting report noted that opinions along these lines included assumptions that American industrialists had intervened to save their brethren, and that Krupp’s release was indicative of an undesirable project of remilitarization. Trade unionists reacted negatively to the restoration of Krupp’s property and viewed the clemencies collectively as too lenient on the war criminals. Whatever the specifics of individual opinions on the matter, the report concluded with a tacit admission that the Landsberg Report had failed in its mission, since “A fairly general public view [in Bavaria] seems to be that all the decisions were a political maneuver rather than an expression of American justice.”71 There were also widespread protests and condemnations from a variety of German organizations. The Stuttgart “German Union,” a group of several thousand that described themselves as anti-Hitler resistance fighters, held a protest meeting chaired by Hans Christoph Stauffenberg (cousin to the would-be assassin of Hitler in July 1944), who lamented the immediate release of only thirty-three prisoners as a “disappointing conclusion” to the war crimes trials. This was a follow-up to a New Year’s statement issued by the group that had decried the death sentences as “proof of Germany’s lack of freedom and an injustice the political consequences of which cannot yet be seen.”72 Meanwhile, German veterans’ organizations were incensed at the continued “discrimination by the victors of the vanquished” and hinted darkly that such attitudes would dampen the West German enthusiasm for joining any defensive military alliances against the Soviet Union. The Schutzbund Ehemaliger deutscher Soldaten (League for the Defense of Former German Soldiers), which claimed forty thousand Bavarian members, issued a statement to the press declaring that McCloy’s lack of mercy “confirms to us that the defamation of the German people in the spirit of [Henry] Morgenthau continues,” the reference to the Jewish former US treasury secretary weighted with anti-Semitic undertones. Further, the statement contended, any American pronouncements about the honor of the German soldier were “words without meaning.” A like-minded group draped the city of Nuremberg with black posters emblazoned with a hangman’s noose and the message “There has been enough killing.” Retired admiral Gottfried Hansen, chairman of the Association of Pension-Entitled Former Wehrmacht Officers and their Surviving Dependents, characteristically called on Adenauer to press McCloy for further concessions immediately, demanding that the sentence of every remaining imprisoned officer be re-

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viewed again, this time by German courts. Even local governments expressed their dissatisfactions with and laments for the remaining condemned prisoners. Upon receiving word of the confirmed death sentences, the town council of Landsberg cancelled all carnival festivities indefinitely.73 Even when HICOG solicited positive responses from 275 hand-picked Catholic and Protestant clerics, 15 percent of their responses were still negative. Nevertheless, in late February HICOG circulated samples, apparently selected from the 85 percent of reviews that were favorable, to major media outlets such as the New York Times in hopes of providing cover for West German politicians to come to McCloy’s defense. These letters of support for McCloy’s decisions expressed shock that some Germans would continue to plead for further reductions. One anonymous Catholic priest wrote, “I cannot understand that thinking people who have lived in Germany from 1933–45 and who have suffered from the dictatorship and lawlessness during that time are today defending and pleading for the administrators of that regime whose guilt has been proven.” A Protestant minister, meanwhile, denounced nationalist carping on the war criminals issue as dominated by former Nazi Party members “who feel that their time has come again and, who, as after the defeat of 1918, impertinently influence public opinion under the cloak of patriotic sentiments . . . taking every advantage of democratic liberties.” Another Catholic priest was blunter, writing, “I was in Dachau for three and a half years.” He opposed “any generous clemency toward the Nazi criminals” because an extreme minority of misguided individuals insisted on believing that “these mass murderers were innocent lambs who had only done their duty.”74 These few letters of support, solicited by HICOG, were atypical of the broader public response to the Landsberg clemency decisions, however. Between January 31 and March 9, McCloy received more than one thousand critical letters on the issue, most demanding further leniency. Over 95 percent of these letters favored additional sentence reductions and more than half called for the outright release of the remaining prisoners.75 Anti-American pamphlets comparing the fate of the Nuremberg prisoners to that of the wrongly imprisoned Alfred Dreyfus in nineteenth-century France circulated openly; Oswald Pohl even penned an article entitled “I Accuse!” decrying McCloy’s confirmation of his sentence.76 Lonely among such organizational or local protests were voices from organizations such as the Association of Persecutees of the Nazi Regime, who criticized McCloy’s decisions from the opposite perspective as “an outrageous act, deriding all victims of Fascism and war.”77

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Later HICOG efforts to selectively parse German public opinion to emphasize positive support for McCloy’s actions proved difficult, with, for example, a March 1951 effort to survey a small number of select rural town and city officials still only managing to garner a 56 percent to 39 percent positive/ negative split on the Landsberg decisions. Moreover, few respondents accepted the explanation that the sentence revisions stemmed from “impartial” judicial review; for the clear majority, the revisions revealed that “the basic injustice of Nuremberg is now being conceded, or that the revisions were prompted by a desire to win over German allegiance.”78 Reactions in the United States were mixed, and, as Secretary of State Dean Acheson noted, divided into “two extreme points of view.” Sen. Joseph Mc­ Carthy, who had vociferously attacked the legitimacy of the Malmedy trial, described Handy’s and McCloy’s commutations of death sentences in that and other cases as “extremely wise.” On the other hand, Representatives Isadore Dollinger (D-NY), John Dingell Sr. (D-MI), and Jacob Javits (R-NY) “bitterly assailed the action,” with each introducing resolutions calling for “an immediate investigation of US military authorities and the civilian administration of Germany.”79 Multiple senators, including H. Alexander Smith (R-NJ), Hubert Humphrey (D-MN), and Warren Magnuson (D-WA), forwarded angry letters from their constituents objecting to the Landsberg decisions to the State Department for response; even Attorney General J. Howard McGrath received such correspondence from concerned citizens as far away as Billings, Montana. In replying, State Department officials sent brief form letters describing the necessity of McCloy’s clemency review as a fundamental principle of American justice and enclosed copies of the Landsberg Report for further reference.80 Overall, the opinion of leading congressmen, much like American public opinion on these matters more generally, was difficult to parse. The specific aspects of the clemency decisions that aroused the most controversy (namely, the Krupp releases and commutations for prominent Malmedy perpetrators and select Einsatzgruppen commanders) were spread across both McCloy’s and Handy’s jurisdictions. Additionally, early access to the full text of the Landsberg Report was more limited in the United States. As late as May 15, individual congressmen such as Rep. Louis B. Heller (D-NY) were still reading critical commentary on McCloy’s decisions into the Congressional Record, arguing that “[McCloy’s] reprieves are pardons for outright murderers . . . [and] have aroused against us the contempt of all freedom-loving and righteous people throughout the world.”81

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“Hold It, Please.” Cartoon by Herbert L. Block published in the Washington Post on February 7, 1951. A diminutive McCloy releases Alfried Krupp from Landsberg, as a delighted Soviet propagandist asks them to hold their poses for photos. (Original ink and graphite drawing from the Library of Congress’s Herbert L. Block Collection. © The Herb Block Foundation)

human ri gh ts and i nternati o nal l a w While McCloy and his staff anticipated public controversy from the “usual critics” in the international press, the intensity of the criticism from former key players at Nuremberg, such as Telford Taylor, and human rights advocates, such as Eleanor Roosevelt, surprised them. As coverage of the Landsberg decisions receded from the headlines and transitioned into moral and legal arguments in editorial pages and political periodicals in early 1951, McCloy’s critics repeatedly called both his rationale and his motivations into question, mourning the damage he had done to their legacy. For his part, McCloy reacted defensively to these attacks, repeatedly la­ menting in public and private the “mess” the US government had left him,

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and maintaining that his course of action was reasonable, just, and necessary. In addressing the controversy at a February 23 staff meeting in Berlin, McCloy again referred to “the turmoil of spirit” that had plagued him over the past months because of the pressures of determining which prisoners should live or die, who should remain confined and who should go free. His decisions had “pleased no-one but they satisfy my conscience.” Congress had “intervened in this thing and played around with it and did nothing but let a year and a half go by,” and the prisoners’ endless appeals to the Supreme Court and its own reticence to rule promptly on their petitions had left him in this situation.82 McCloy supported these arguments with a number of dubious assertions that he would repeat again and again in the coming decades, including the idea that “innocent men” had been condemned to death for crimes they had not committed (the death sentences he commuted were not because of innocence but because of mitigating factors that lessened guilt—it remained almost universally undisputed that these men were killers or had contributed materially to the killings) and the pernicious myth that Alfried Krupp had only been hauled before the tribunal because his father (the real criminal) was too old and infirm to stand trial himself.83 The barrage of criticism was only beginning, however. For those who had participated directly in the Nuremberg trials, McCloy’s decisions were deeply troubling. Sir Hartley Shawcross, the lead British prosecutor at the IMT, denounced the apparent “white-washing [of] the Nazis and what they stood for . . . because of mistaken ideas of political expediency,” and condemned those who “would seek as a matter of policy to take action undermining the validity of what has been done.”84 Benjamin Ferencz, lead prosecutor of the Einsatzgruppen Trial, was prepared to accept McCloy’s decisions but warned against any further reductions in sentences in response to German pressure. “As long as capital punishment exists anywhere in the world there can be no justification in allowing these men to escape the gallows,” Ferencz wrote in an editorial for the Washington Post. “Any further clemency,” he continued, “can only serve the propaganda of the Soviet Union and reduce to absolute absurdity the devoted efforts of the United States and the United Nations to protect the world through a rule of international law against the repetition of such barbarous crimes against humanity.”85 Even though Ferencz did not believe that McCloy was in any way motivated by political expediency, he remained of the opinion that McCloy had “made mistakes” and that his decisions had “denigrated the impact of the trials” and “weakened the stand that the United States government had previously taken.”86 Frederick Elwyn Jones, a member of the

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British prosecution team at the IMT, later the lead prosecutor at the 1948 trial of General Erich von Manstein in the British zone, and in 1951 a representative of Labour in the House of Commons, worried that “International law exists as a continuing force or does not exist.” For Jones, the clemency decisions dangerously undermined international legal principles at the most dangerous of times, when NATO troops were fighting a war in Korea and depended on those very principles to protect them if captured.87 Joseph W. Kaufman, lead prosecutor of the Krupp Trial, denounced McCloy as establishing “a new category of international crimes—crimes without punishment,” and lamented that Krupp could now be celebrated by Germans “not as a war criminal but as a war hero.”88 Kaufman elaborated on these points in an article for The New Republic, criticizing McCloy’s actions for failing even on grounds of political expediency, since it offended English and French opinion across the political spectrum while “suppl[ying] the Russian communists with new propaganda material to the effect that we are now playing ball with the group that led the German industrialists in putting Hitler into power and in subjecting to Nazi control not only the labor unions but also the rest of German industry.” Moreover, if this display was meant to strengthen German industrialists’ support for anti-communism “the Russians may actually be laughing up their sleeves” because of the well-documented cooperation in armaments production and testing between German armaments manufacturers and the communist state that had predated the rise of Hitler.89 Kaufman concluded with a withering attack on McCloy’s specific decision to rescind the confiscation of Alfred Krupp’s property, given that “Krupp obtained the industrial properties with Hitler’s aid as a reward for criminality, that he used them as the instrumentality for perpetrating his slave labor crimes, and that he enriched them by criminal spoliation and plundering.” How could the United States be taken seriously on the world stage, particularly in its vociferous criticisms of communist China, Kaufman lamented, if it did not follow through on these punishments?90 Far from serving as a paragon of American justice, McCloy’s review of the sentences would be viewed by the world as the opposite: an abrogation of both international law and of the moral responsibility to punish war criminals. Telford Taylor expressed similar views, roundly criticizing McCloy’s “blanket commutation of sentences” in an article for The Nation. Considering that seventy-eight of the eighty-nine prisoners from the Nuremberg trials received clemency, Taylor was “reluctantly forced to the conclusion that, however well-­ intentioned, [McCloy’s clemency] is the embodiment of political expediency,

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distorted by a thoroughly unsound approach to the law and the facts, to say nothing of the realities of contemporary world politics.” “Mr. McCloy,” Taylor continued, “is, or has been, a good lawyer, and he has legal advisors of excellent caliber. It is surprising, therefore, that his statement is woefully imprecise and throws no light on the reasons for many of his decisions.”91 Taylor also singled out the release of Alfried Krupp and eight of his co-­ defendants, deriding McCloy’s explanation that while Krupp relied on slave labor the firm itself was “not primarily responsible” for the brutal treatment this system entailed and thus its executives were entitled to sentence reductions as “bad logic and worse law . . . sneering at the very idea that industrialists can be guilty of war crimes.” Taylor’s article concluded with a scathing indictment of McCloy’s “political naïveté”: It appears to me that Mr. McCloy has been deluded into the belief that the Germans will regard his “clemency” as a demonstration of American fairness and good-will. We shall soon see how wide of the mark he has shot. True democrats in Germany will not applaud the release of Krupp directors and S.S. concentration-camp administrators. Nor will German nationalist sentiment be appeased. For the ultra-nationalists, Nürnberg has become an invaluable whipping boy. These commutations will be seized upon as tantamount to a confession that the trials were a product of Allied vengeance and hate rather than the embodiment of law. “Wittingly or not,” Taylor noted, “Mr. McCloy has dealt a blow to the principles of international law and concepts of humanity for which we fought the war.”92 Former first lady Eleanor Roosevelt, who as a US delegate to the United Nations from 1946 to 1953 and first chair of the UN Human Rights Commission from 1947 to 1951 had been instrumental in drafting the Universal Declaration of Human Rights, also joined the ranks of McCloy’s public critics. In her nationally syndicated “My Day” newspaper column, Roosevelt singled out the Krupp decision as particularly odious, given her long-standing devotion to American trust-busting and suspicion of cartels. “The fact that we have freed so many Nazis of late must be puzzling to the German people,” Roosevelt wrote. “If we actually have a moral belief that Nazism was bad . . . the Germans may not like our condemnation of such things, but at least they will respect the fact that we have moral standards and stick to them.”93 She repeated similar criticisms in private letters to McCloy. McCloy was very much attuned to the negative press coverage, as he kept

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scrapbooks of articles from West German and American newspapers that mentioned him by name.94 Stung by this barrage of criticism, McCloy repeatedly attempted to defend himself. When questioned about Sir Hartley Shawcross’s denunciation of the “political expediency” driving his decisions, McCloy denied that his review of the sentences was in any way “political” and emphasized that his decisions “do not, repeat not, reflect on the Nuremberg proceedings.” Moreover, McCloy concluded, “In view of my substantial part in originating the concept of Nuremberg and in setting up the machinery, any suggestions that my decisions reflect any lack of sympathy for the basis of these trials is as incorrect and unfounded as the implication that my decisions were motivated by considerations other than justice and clemency.”95 Separately, in a four-page public response to both Roosevelt’s private letter and her column that also addressed the criticisms of Taylor, Kaufman, and others, McCloy wrote that he had established the Advisory Board “in part because of the many letters and petitions which I had received asking for clemency, but more important because I considered that it is a fundamental principle of American justice that accused persons shall have a final right to be heard.” In regard to the claims about political expediency as a factor in his decisions, McCloy continued, “the Board was set up long before there was any thought that Germany might participate in Western defense and its appointment was clearly not related to that issue,” and “neither the Clemency Board nor I for one moment permitted political pressure inside or outside Germany to affect our decisions.” German arguments about rearmament “had no effect on me.”96 Clearly upset, McCloy asked, “Do the people of the United States suggest that I measure a man’s life or his liberty in terms of expediency?” “If we were moved by expediency,” he continued, “would it have been reasonable to release a man with such a world-resounding name as Krupp when it would have been quite simple to allow him to remain in jail a year or two longer?”97 Certainly the prosecutors, the judges, and the HICOG general counsel’s office would argue the point that any of these men were innocent as McCloy deployed the term here. Nevertheless, he was adamant that he had made his decisions based on his understanding of the law, not an assessment of the political environment. Instead, McCloy stressed the lack of a proper appellate process for the Nuremberg tribunals as necessitating the review. The absence of “provision for further court review of those cases for possible errors of law or fact after the court of first instance passed on them” meant that “a review was indeed necessary to accomplish just results.” McCloy then compared the cases of High

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Command Trial generals Hermann Reinecke, Hermann Hoth, and GeorgHans Reinhardt (whose sentences were three of the eleven McCloy upheld) to those of Walter Warlimont, Georg von Küchler, and Hans von Salmuth (whose sentences he had reduced) as evidence of the program’s legitimacy, noting that these decisions represented McCloy’s “distinction between actions taken for reasons of military security and those based on furtherance of Nazi racial and political objectives.”98 Turning to the much-remarked-upon freeing of Alfried Krupp, McCloy blamed the executive’s notoriety for what was, in his view, disproportionate public outrage over a minor issue. “There was certainly a reasonable doubt,” McCloy wrote, “that [Krupp] was responsible for the policies of the Krupp company, in which he occupied a somewhat junior position.” Given Krupp’s de facto control of the company from 1941 on as his father’s health declined, and his official endorsement by no less than Hitler himself as head of the firm in November 1943, the idea that Krupp occupied a “junior position” was a remarkable claim. McCloy continued, “It is true that the name of Krupp has become a symbol of evil: the German armaments industry; I was concerned, not with a symbol, but with the extent of the guilt of a specific individual, Alfred Krupp.” Here again, he implied that the Nuremberg tribunals had not been concerned with such matters. Finally, McCloy noted, presumably referring to the trials of the Flick and IG Farben executives, others had been convicted of similar crimes, but were sentenced to much shorter prison terms than Krupp and his associates. McCloy tried to convince his critics that his “abhorrence for the Nazi crimes and for the crimes of many of these men is deep and lasting.” Such sentiments were irrelevant to achieving justice, however, so he had “granted reductions where particular sentences were out of line with sentences for crimes of similar gravity in other cases; where the reduction appeared justified on the grounds of the relatively subordinate authority and responsibility of defendants; and where new evidence not available to the court supported clemency.”99 His response was revealing, and representative of the broader problems with the entire clemency process. McCloy’s concern with Krupp’s individual guilt, or the individual guilt of every prisoner for that matter, was certainly laudable. What McCloy was unable to grasp, then or later, however, was that the principal objection to his actions was not his concern for the guilt or innocence of his charges, but rather his rationale for deciding that most of the prisoners were not as guilty as the tribunals had determined. What had led McCloy to conclude that Krupp’s original sentence was unjust? No new evi-

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dence of note had come to light exonerating Krupp or most of the other prisoners who received clemency. Apart from the asset forfeiture order, which was imposed because of Hitler’s personal role in legitimizing Alfried Krupp’s control of the family properties, Krupp’s sentence was in fact commensurate with the other cases. This was the heart of the matter, both from a legal and moral point of view: for what concrete reason, legal or otherwise, had clemency been granted? McCloy’s inability to answer this question led those dissatisfied with his decisions to seek explanations in Cold War politics. Telford Taylor remained unconvinced by McCloy’s public response, as he revealed in a private letter to Eleanor Roosevelt in June. While expressing “the highest respect for McCloy’s integrity and good intentions,” Taylor criticized McCloy’s written statements as containing “numerous inaccuracies, which are extremely damaging to the Nuremberg proceedings, to the judges who sat at the trials, to General Clay, and, incidentally, to me.” McCloy’s claim, for instance, that he had inherited cases his predecessor, General Clay, had failed to resolve was “unfounded,” given the tremendous amount of work that Clay and his staff had done to confirm all the sentences but those of the Ministries Trial. McCloy’s invocation of the Krupp case “likewise display[ed] a lamentable lack of attention to fact . . . to suggest that [respected judges] convicted Alfred Krupp, or that I indicted him, because of ‘the effect of a name’ . . . is a most unwarranted and damaging statement, and one which will unavoidably tend to undermine the integrity of the Nuremberg proceedings.” Lest his letter run to “undue lengths” Taylor concluded with an attack on the entire HICOG clemency process, noting that “even in a clemency proceeding before the governor of any of our states, the views of the District Attorney and of the judge who tried the case are invariably obtained and considered. None of these elementary and established practices was observed by Mr. McCloy.”100 Taylor was not finished, however. He also sought to intervene in a similar public exchange of letters between McCloy and liberal Republican congressman Jacob K. Javits of New York. Javits had written a critical letter to McCloy in the aftermath of the Landsberg decisions in February 1951, which was later published in the Congressional Record. In addition to replying privately, McCloy also produced an official response that appeared in the June 11, 1951, edition of the Department of State Bulletin. McCloy’s latest self-defense reproduced many of the usual arguments from his public and private correspondence with Eleanor Roosevelt, attacking the legitimacy of the Krupp judgment and denouncing the insinuations that his actions were shaped by the Cold War. Of new emphasis in the Department of State Bulletin, however, was another justification

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that sparked renewed anger from Telford Taylor: McCloy claimed, “I appointed the Board because I considered it a fundamental principle of American justice that persons accused shall have a right of appeal. I draw your attention to the fact that unlike in criminal cases in the United States, there was no provision for these cases to have further court review for possible errors of law or fact after they had been passed on by the court of first instance.”101 Taylor was incensed. As he explained to Javits, this assertion implied that the IMTs of Göring et al. in Germany and Tojo et al. in Japan were illegitimate because, tried by international tribunals under international law, there did not exist an entity to hear a formal appeal of any of those convictions. Without doubt, Taylor continued, the “irreconcilable and intransigent” political reactionaries in Germany and Japan would be pleased to hear that these tribunals were illegitimate because they lacked appellate processes. Setting this issue aside, however, Taylor argued that McCloy’s assertion about the fundamentally “American” right of appeal was ridiculous, pointing out once again that “neither the clemency board appointed by Mr. McCloy, nor Mr. McCloy himself, handled the review of the Landsberg sentences in a manner remotely approaching the customary conduct of appellate proceedings.” Noting that only defense attorneys and prisoner petitions were considered by the Advisory Board, and that no representatives of the prosecution were involved, Taylor concluded, “An appeal proceeding conducted in this manner cannot possibly be conducive to the ends of justice.”102 Even in unpublished correspondence, where McCloy could presumably speak more forthrightly, he continued to justify his actions through appeals to justice and mercy, decrying any suggestion that political expediency played a role. Upon reading Telford Taylor’s February editorial in The Nation, former treasury secretary Henry Morgenthau Jr. sent McCloy a copy along with a letter noting that he was “very, very disturbed at what [Taylor] says about the release of these Nazi criminals on the world,” and requested that McCloy take the time “to tell me your side of the story.”103 In his response, McCloy thanked Morgenthau for the opportunity to clear the air, and then proceeded with the usual arguments. McCloy explained that the Advisory Board had originated principally because of the death sentences McCloy had inherited from his predecessor, as “one does not sign such documents lightly or ignore petitions which shed light on them.” The impending executions weighed on McCloy, in that “I have heard of the soul searching and turmoil in which [state governors] have said they underwent when they were faced from time to time with this problem. I recognize now as I never did before the considerations which must

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have passed through their minds.” The situation was complicated further by the enormous number of petitions the high commissioner’s office received, some railing against the legality of the Nuremberg tribunals, some demanding new trials, some presenting new evidence, some objecting to disparities in sentences across cases, and others begging for mercy. This circumstance, McCloy argued, warranted a “thorough-going” investigation of all the prisoners and trials, particularly since there had been no proper appellate process, regardless of Lucius Clay’s review of the sentences in 1949.104 In general, McCloy wrote, he had followed the Advisory Board’s recommendations, although he had considered each case individually on his own. Although he would not discuss individual findings with Morgenthau “because it is not important or profitable,” McCloy did disclose that his guiding principle throughout the process was “that I would hold those who had high responsibility to a greater punishment and be less severe on those who were clearly subordinate.” In some cases, he claimed, he and the board had found new evidence that, in his view, warranted a lesser sentence. Moreover, in his review of the judgments, McCloy found some of the arguments “not persuasive” enough to condemn a man to death or life imprisonment, or “faulty when judged by my concepts of ordinary legal and moral analysis,” and so he had reduced those sentences as well.105 If McCloy had not acted as he did in the Krupp case, particularly with regard to Alfried Krupp, he would have counted himself “descending into Hitlerism,” because “Hitler punished people not for what they did but for what they were.” That Krupp should be singled out because his company made weapons instead of something else was abhorrent, and the seizure of his property un-­ American; even the mass murderers had not faced that punishment at Nu­ remberg.106 In defense of his own actions, McCloy had managed to explicitly compare the Nuremberg proceedings to the politicized courts of the Third Reich, because his notion of justice was far more “American” than that of the tribunals. Such sanctimonious defenses relied on a highly selective analysis of the trial program, to say the least. McCloy concluded his letter to Morgenthau by apologizing if he appeared “somewhat defensive,” underscoring the “tremendous responsibility” he had been forced to bear in his position, all while enduring “a welter of threats, pleas, praise, and condemnation such as only a burning issue in Germany seems to generate.” When it came to the effects of his actions on the legacy of Nuremberg, McCloy responded that because of the hundreds of thousands of pamphlets his office had distributed, “more people have read and thought

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about the Nazi crimes than ever was the case during the trials.” As for Telford Taylor and his opinions, McCloy finished, self-pityingly, “He played his role, the judges played theirs, and I played mine. Prosecutor, defender, judge and reviewing officer all are a part of the process of justice. I have not presumed to criticize the prosecutor’s conduct of these cases, nor the judges, and I suggest it is far out of place for them to imply that I acted with any less integrity (and I may add skill) than did they.” As the final word, McCloy included a copy of the Landsberg Report for Morgenthau to read.107 Although McCloy had invoked the widespread distribution of pamphlets as indicative of his office’s good work in raising awareness of the crimes of the Third Reich, public opinion surveys did not reflect this. Two results of the Landsberg furor were the continued alienation of the minority of Germans who believed the trials had been justified and the failure to mollify those who were bitterly opposed to any development short of an outright repudiation of all the verdicts. HICOG surveys conducted in February and March 1951 revealed that 80 percent of West Germans residing in urban centers and 64 percent of the general population were aware of the Landsberg decisions, and that the rural/ urban divide shaped their views of events. In urban areas, almost as many people agreed (31 percent) as disagreed (32 percent) with McCloy’s decisions, but of the entire population, only 18 percent agreed. Those numbers were clouded, however, by the fact that many Germans were perturbed by the long process of the review and the fact that McCloy upheld some of the death sentences, and so classified themselves as “opposed” because McCloy had not been lenient enough. Sixty-two percent of the urban respondents were aware that Alfried Krupp had been released from prison, and, of those, 48 percent characterized this as a positive development. Most respondents were left with the impression that in granting clemency so liberally, McCloy was acting out of opportunism or a desire to undo past errors.108 By August 1952 these numbers had deteriorated further, with only 10 percent of respondents approving of the handling of the war criminals issue by the Western powers, and 60 percent disapproving. When it came to the specific matter of the still-imprisoned German generals, only 9 percent of those surveyed believed that they were guilty; 63 percent believed they were not guilty. A plurality of respondents (32 percent) felt that the generals had been imprisoned out of revenge, fear of German military superiority, or because Germany had lost the war.109 McCloy’s primary accomplishment in distributing the Landsberg Report was to have convinced yet more Germans that the Nuremberg verdicts were fundamentally unjust.

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■  ■  ■

For the rest of his life, McCloy remained sensitive to what he interpreted as unwarranted personal attacks stemming from controversial decisions he had made throughout his long career in public service. In the spring of 1983, an eighty-eight-year-old McCloy found himself embroiled in perhaps the last significant outburst of public controversy regarding these matters before his death in 1989. The occasion was a substantial grant from the West German Volkswagen Foundation to Harvard’s Kennedy School of Government to fund a transatlantic graduate student exchange program dedicated to the furtherance of democratic governance in West Germany. By both the consent of the donors and the Kennedy School, the exchange was christened the “McCloy Scholarship Program” in honor of the former high commissioner’s central role in the reconstruction of West Germany. The news was greeted with widespread protests on campus from a variety of student groups, who criticized McCloy’s 1951 clemency decisions, his prominent role in the formation of the Roosevelt administration’s policy of forced removal and incarceration of Japanese Americans on the West Coast in 1942, and his opposition to requests from within and outside the administration to bomb the rail lines to the Ausch­ witz extermination camp in the spring of 1944.110 Although the protests eventually subsided, this final round of criticism, particularly from younger Jewish students, left McCloy stung and contemplative of his legacy. Interested in setting the record straight on these matters, he sought the cooperation of former Nuremberg prosecutor Benjamin Ferencz, who had himself written a book focused on Jewish slave labor in Nazi Germany, the Nuremberg tribunals, and the quest for restitution.111 McCloy thus invited Ferencz to sit for two hours of tape-recorded oral interviews in late April of 1984. The interview prompted considerable reflection on the place of the clemency proceedings in McCloy’s wider career, his motivations, and how he interpreted his actions retrospectively. It is noteworthy specifically because of Ferencz’s deep knowledge of the subject, gentle but continuous pressure on McCloy to elaborate, and employment of documents to bolster McCloy’s memories. When prompted by Ferencz about the role of politics in his motivations for freeing the war criminals, given the intensive lobbying by various German interest groups on the matter, McCloy was dismissive: “They said [my motivations] were political. Christ, I didn’t ever have anything political ever cross

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my mind.” Indeed, such charges “sent me up the wall.” McCloy claimed that the accusations leveled first by the communist press and later by scholars that his clemencies were partly solicitations of West German moral or material support for the war in Korea “never crossed my mind.” As in prior correspondence with Ferencz on the subject, McCloy freely admitted that “there were some mistakes” in the clemency decisions and that if he had it to do over again, his conclusions would likely have been different. At the same time, McCloy maintained that his critics simply did not understand him. He elaborated, “I’m ready to admit a mistake, but I really was soaked with this damn thing. I never went through such an ordeal in my life. I had to get down on my knees with the chaplain, and all that sort of business . . . it upset my family and it upset me. I didn’t have the philosophical adjustment I guess that I should have had at that point.”112 While Ferencz found McCloy in good spirits, and “quite sprightly,” he believed that at eighty-eight, even with help from his personal secretary, it was likely too late for McCloy to engage in any serious writing that would “correct the record” on his clemency decisions or other controversies.113 What, pertaining to the clemency decisions, would have constituted “correcting the record” in any case? Even if the motivations behind McCloy’s clemency actions were unfairly maligned by his contemporaries as a cynical political exercise in appeasing unseemly but powerful West German political and military constituencies, was McCloy’s self-described pursuit of American justice any better? While McCloy’s dogged insistence on reexamining every sentence under his authority in hopes of ensuring that justice had been done was laudable, his personal conception of justice differed markedly from that of the Nuremberg tribunals. Whereas the tribunals were concerned with ensuring the impartial establishment of fact and rules of evidence as guarantors of justice, McCloy’s definition of the term was preoccupied with the availability of slapdash appellate proceedings. Moreover, in justifying his decisions, McCloy, whatever his intentions, provided rhetorical victories for both the unrepentant Nazis who decried the tribunals as “victor’s justice” and the Soviet propagandists who gleefully announced that the United States was freeing its fascist allies to embark on a new wave of imperialist excesses. In the end, McCloy’s conception of justice also resulted in the immediate release of dozens of unrepentant war criminals in January 1951, and the significant downward revision of dozens of other sentences that would set the stage for still further releases of equally unrepentant prisoners in the future.

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At the end of McCloy’s tenure, fewer Germans recognized the legitimacy of the Nuremberg tribunals than had at its start. McCloy’s consistent invo­ cation of flaws in the Nuremberg trials left contemporaries such as Telford Taylor with the impression that irrevocable damage had been done to the fledgling conception of international justice established after the war. Meanwhile, McCloy’s January 1951 decisions paved the way for further paroles, amnesties, reductions, and clemencies, even in the continued absence of new mitigating evidence (which McCloy evidently prized) and any meaningful efforts by the prisoners toward remorse or contrition (which McCloy evidently did not). The future amnesties would be justified by appeals to the spirit of Christmas in 1951, and later by the formation of yet another clemency panel after 1953, this one permanent and staffed with a mixture of American and West German officials. Apart from the five irredeemable men that were duly executed in June 1951, by May 1958, every single Nuremberg prisoner under McCloy’s jurisdiction when he assumed his duties in 1949 was free, regardless of the enormity of their crimes. Was this justice?

ch a p te r s i x

Between Clemency and Parole

From a purely political point of view, the crux of the war criminal problem in Germany is the refusal of the majority of Germans to accept the principles underlying the trials or the findings of the trials. . . . In our opinion, the problem of the war criminals is not a rational issue in German opinion, and therefore cannot be eradicated by rational arguments. HICOG Office of Political Affairs, “Paper on War Crimes and War Criminals for Consideration by United States High Commissioner,” March 27, 1953

Despite McCloy’s aim to dispense permanently with the war criminals issue in 1950–1951, the ink was barely dry on the Landsberg Report when new controversies and bureaucratic impasses emerged. The prisoners still in Landsberg whose clemency appeals had been rejected by McCloy or who had a decade or more left on their sentences remained a source of controversy. Veterans’ organizations and nationalist politicians insisted that the continued imprisonment of German officers was a significant obstacle to the normalization of relations between West Germany and the United States. McCloy and his successors were exasperated by the refusal of these elements of the West German public sphere to accept that the Landsberg prisoners had committed serious crimes. Yet despite these pressures, American officials also remained committed to ensuring that they took no further legal or political actions that undercut the Nuremberg verdicts. Their aim of achieving a just outcome once again contrasts with later scholarly conclusions that the US policy goal from 1951 to 1955 was ending the war crimes program as quickly as possible to ensure West German military cooperation against the Soviets.1 Instead, American concerns over balancing the inherent tensions between upholding the legacy of Nuremberg while allowing prisoners to petition a fully-fledged clemency and parole bureaucracy resulted in the very de-­ 1 91

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legitimation of the Nuremberg legacy that HICOG officials wished to protect against. Faced with new rounds of clemency petitions and calls for the compassionate release of older prisoners on medical grounds, McCloy and his successors resumed tinkering with the Landsberg sentences in an accelerating spiral of American, British, and French revision. The executions of June 1951 and continuing public pressure for amnesty for the remaining prisoners was thus followed by all three Allied powers implementing a Christmas clemency in December 1951 for those prisoners whose sentences were set to expire in the early months of 1952. HICOG then stretched the concept of medical parole to its breaking point to bring its incarceration procedures in line with American domestic norms in the absence of a formal parole bureaucracy. This was designed only as a temporary measure before the Bonn Conventions (signed by the three Western powers and the Adenauer government in May 1952) settled the matter permanently. The conventions designated a mixed clemency board of British, French, American, and West German representatives to adjudicate any remaining instances of clemency, parole, or medical release for the thirty or so Nuremberg prisoners remaining in HICOG custody and nearly five hundred others under US Army, British, or French control. Yet the failure of the French National Assembly to ratify the Bonn Conventions until 1954 delayed a multinational solution, placing the burden on the British, French, and American governments to adjudicate any further petitions from “their” prisoners in the meantime. These circumstances, when coupled with a fresh look at American war crimes policy in the aftermath of Republican Dwight D. Eisenhower’s 1952 presidential election victory, called for the construction of yet more bureaucracies of American justice in occupied West Germany. Since the Bonn Conventions provided additional avenues for the Landsberg prisoners to seek relief from their sentences, HICOG officials argued it would not be fair or just to deny them these remedies indefinitely in the face of French parliamentary gridlock. Given that the Landsberg prisoners were already beneficiaries of good-­ conduct release, medical parole, and clemency-based sentence reductions, the construction of a rehabilitative parole system on the American model seemed the next logical step. While clemency rested upon absolving guilt, parole required a belief that the prisoner was capable of rehabilitation. HICOG’s turn to parole to address the war criminals issue was the product of both an American desire for a smooth end to the occupation of West Germany and a commitment to the

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sense of American justice that guided all decisions on clemency after Nuremberg. This evolving story of institutional capture, as the fate of the Nuremberg war criminals was increasingly bound to both the broader population of army incarcerees and their compatriots in French and British custody, served to accelerate the release process for all prisoners still in American, British, and French custody. The justifications for continuing to incarcerate the few eroded with every act of mercy bestowed upon the many.

the last executi o ns Even after the international outcry over McCloy’s January 1951 commutations subsided, the five condemned prisoners under McCloy’s jurisdiction whose executions were imminent remained fixtures in the West German and international press. Although McCloy wished to dispense with the executions in the immediate aftermath of his January 31 pronouncements, setting a preliminary date of February 16, with the backing of the Adenauer Justice Ministry’s Office for the Legal Protection of War Criminals the condemned prisoners once again filed appeals to the US Supreme Court seeking to invalidate their death sentences. Despite the renewed pressure from West German amnesty advocates, which included a petition bearing 610,000 signatures in favor of a blanket amnesty, McCloy refused any further concessions. In March, McCloy received a critical joint statement from the leadership of the American Jewish Committee, the American Jewish Congress, and the Union of American Hebrew Congregations (among other organizations) that described its members as “deeply disturbed” by reports that further sentence reductions were in the offing for the remaining death row prisoners. He responded privately with assurances that, while he was duty-bound to consider all new petitions, McCloy had not yet received any that would encourage him to rethink carrying out the executions.2 In a tacit admission that the Landsberg Report had not accomplished what he had hoped it would, McCloy informed Acheson in March that any additional leniency in these cases would “further undermine the moral and legal principles established at the Nuremberg trials” and “strike another blow at the prospects for a democratic Germany, provide the communists with a powerful propaganda weapon to use against us and make a mockery of American standards of justice and law.”3 After a long spring of legal maneuvering, on May 14 the Supreme Court refused to reconsider its decision not to hear the appeals from the condemned Landsberg prisoners. The next day their lawyer, Warren A. McGee, unsuccessfully begged President Truman, Secretary of State Acheson, and Secretary of

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Defense George C. Marshall to intervene. McGee’s arguments were familiar: the death penalty was anathema under West German law and the executions “would seriously undermine” the American relationship with the German people.4 With the final appeals denied by the Supreme Court, the State Department rescinded its standing order to McCloy instructing him to stay the executions as the appeals worked their way through the federal court system, and issued a press release to the effect that all “final dispositions” were “now in the hands of Mr. McCloy.” An irritated McCloy, who in April had already rejected a further round of clemency petitions from Oswald Pohl, opened his regularly scheduled press conference on May 21 with a refusal “to receive or answer” any questions on the war criminals, announcing, “I have made my decisions and the courts have acted. . . . As far as I am concerned, the case is closed.”5 Lastditch appeals by McGee to federal district courts, however, funded by a $12,000 payment from Adenauer’s Justice Ministry, resulted in two last-minute stays on May 24 and May 28, delaying the inevitable once more. On both occasions, the condemned prisoners had already said their goodbyes to visiting family members before hearing that the executions were postponed as their last appeals navigated the federal courts; the final rejections came on June 5.6 The five condemned prisoners from the Nuremberg proceedings maintained their innocence to the end, refusing to acknowledge their crimes even while praying for the salvation of their souls in the shadow of the gallows. One by one, Oswald Pohl, Otto Ohlendorf, Erich Naumann, Werner Braune, and Paul Blobel ascended the hangman’s scaffold between midnight and 2:30 AM on June 7. As was customary, each was allotted ninety seconds to make a final declaration, which all five utilized to question the legitimacy of the tribunals a final time.7 As in the immediate aftermath of the Landsberg Report, West German politicians were loath to comment directly on the executions one way or the other. Adenauer pointedly refused to discuss them publicly, although his party’s press service issued a carefully worded statement lamenting the repeatedly delayed executions as “a gruesome game that the German people will have difficulty understanding,” and “a psychological burden which can be removed only with difficulty. Now the axman has spoken the last word on a multifarious guilt and frightful human suffering, but this last word is not satisfactory.” Bundestag vice president Hermann Schäffer of the liberal Freie Demokratische Partei (Free Democratic Party [FDP]) attempted to parse public opposition to the executions as stemming primarily from the fact that most Germans could not comprehend that death sentences were still being carried out some six years after

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Otto Ohlendorf immediately before his execution, June 7, 1951. Also hanged that night were fellow Einsatzgruppen commanders Erich Naumann, Werner Braune, and Paul Blobel and WVHA head Oswald Pohl. They used their last statements to question the legitimacy of their convictions a final time. (NACP 319-CE-28-430743)

the war, offering that “the German mind is already too remote from the event of World War Two and from the Third Reich.” This was a common lament, which ignored that the repeated delays in carrying out the executions were due primarily to the tenacity of well-funded defense attorneys exhausting every avenue of possible redress. Openly neo-Nazi Sozialistische Reichspartei Deutschlands (Socialist Reich Party of Germany [SRP]) delegate to the Bundestag Franz Richter (real name Fritz Rössler, a former Nazi propagandist and unreformed anti-Semite) attempted to read a declaration into the parliamentary record decrying the Landsberg executions as a violation of both the Basic Law and the laws of humanity. Rössler hinted darkly that the executions represented a heavy liability on the relations between West Germany and the United States, calling

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Otto Ohlendorf’s funeral, June 16, 1951. A crowd bids farewell to Ohlendorf with Nazi salutes as his body is interred in a cemetery near Celle. Following the service, two wreaths were found nearby with the inscriptions “Grass shall never grow again at the site of this hanging,” and “There is no better death than at the hands of the enemy.” (Yad Vashem Photo Archive, Jerusalem 1458/110)

on Adenauer to reevaluate whether any meaningful cooperation between the West German and American governments was possible moving forward. This did not make much of an impression on the chamber, however.8 Other neo-Nazi members of the SRP laid wreathes and iron crosses memorializing “the hanged” at local monuments to the casualties of the First World War, and thousands of mourners turned out to witness the burials of the martyred Landsberg prisoners, offering Hitler salutes, flowers, and wreathes to these last comrades who had fallen before the enemy, concluding their vigils with anti-American speeches.9 The American vice consul in Bremen reported to Washington on the “thoroughly depressing” spectacle of Otto Ohlendorf’s graveside service, which was accompanied by representatives and wreaths not only from the openly neo-Nazi parties but also from local representatives of the liberal FDP, bearing the inscription that there was “no more beautiful death in this world than to be struck down before the enemy.”10 HICOG officials, including McCloy, were once again exasperated by the

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lack of support from West German politicians, whom they saw as cynically parroting misleading claims about American injustices to inflame public passions before the next round of Bundestag elections. Particularly offensive to HICOG officials was the tendency of West German politicians to invoke the long delays prior to the executions as engendering suffering comparable to that of Nazism’s victims. For his part, McCloy was hopeful for the future, informing Acheson, “The fact that all major leaders refused to comment points to the desirability of avoiding any further reference to the matter with the good chance that it will quickly be forgotten by the public at large.”11 Yet the story ultimately could not be put to rest so long as one key question remained— what was to be done with the remaining prisoners?

the bo n n co nv enti o ns Despite the tone of finality that characterized the Landsberg Report and the sense of closure offered by dispensing with the long-awaited executions in June 1951, McCloy and his successors were repeatedly forced to revisit the war criminals issue. Apart from lobbying by the West German government for the prisoners’ release, HICOG officials faced the same internal bureaucratic and legal concerns that had prompted McCloy’s 1950 sentence reviews, which led to further action to ensure “just” outcomes for the remaining prisoners. Even when the West German government raised the Landsberg prisoners’ incarceration as an obstacle to West German rearmament, the Allies generally refused to play along. At the September 13, 1951, meeting of British, French, and American foreign ministers in Washington, which McCloy and the other high commissioners also attended, British high commissioner Sir Ivone Kirkpatrick immediately raised the war criminals issue following a discussion about Adenauer’s desire that substantial NATO forces be stationed in Germany to resist a Soviet attack until European Defense Community (EDC) negotiations were resolved and an appropriate German contribution to its own (and Europe’s) defense settled. Kirkpatrick opined that “the Commissioners would be attacked by Adenauer unless the present status regarding war criminals was changed,” referring to this issue as “probably more political than juridical.” Yet there was no appetite for further concessions. Acheson foresaw only three possibilities: the war criminals would serve out the remainder of their sentences under Allied custody in West Germany, under Allied custody outside of West Germany, or under West German authority in West Germany. Acheson viewed the last option as the most attractive since a continued Allied administrative presence in a sovereign West Germany or the transfer of West German

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citizens outside the country would likely cause “one kind of irritation or another.” None of the American, British, or French representatives expressed serious concerns about the war criminals, regardless of Adenauer’s focus on the issue. To the contrary, British foreign secretary Herbert Morrison pointed out the possibility of “negative reactions” in British public opinion if the war criminals were returned to German custody, and suggested that the Allied High Commission revisit the matter when it became more pressing, perhaps in three years? This prompted French foreign minister Robert Schuman to also dismiss a transfer of the prisoners to German custody, since the prisoners were “surrounded by an atmosphere of veneration” in West Germany. This ended the discussion.12 Even after the public controversy over the Landsberg Report had died down in late 1951, McCloy continued to struggle against the widely held perception that the United States was desperate to purchase West German commitments to the anti-Soviet alliance at any price. In a draft speech from November 1951, McCloy noted, “Much has been said recently about how much the West needs Germany, but I should like to dwell for a little on how much Germany needs the West.” Besides the billions already spent on German reconstruction, McCloy predicted that in the coming years West Germany would “desperately need” international credits and aid “to keep her people fed and her workmen employed,” in addition to the “defensive curtain” formed by the United States and other allies to ensure her independence. McCloy’s actions as high commissioner, then, were not dictated by any need to obtain “a few German divisions” for an upcoming showdown with the Soviet Union. Instead, they were reflective of a superpower and its allies protecting a much weaker state whose reintegration into the economic and political order of Europe would be mutually beneficial. McCloy felt the need to underscore this point because “there seems to prevail in many people’s minds that the security of Europe, if not of the United States, depends on Germany raising 250,000 men and putting them in arms,” which, “however welcome and however effective, cannot be the decisive factor in the balance of power.” Some perspective was in order: McCloy highlighted that the American defense budget alone, not including the secret appropriations on atomic weapons, dwarfed the total yearly expenditures of the entire Federal Republic of Germany. McCloy concluded that “it is obvious that any military contribution of Germany in the play of the world’s military forces would scarcely be determinative.”13 Although Adenauer continued to push both publicly and privately for additional concessions on the war criminals, further adjustments to Allied policy

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stemmed from internal initiatives. In November and December 1951 Adenauer urged McCloy to transfer all remaining prisoners from American to German custody, a proposal McCloy rejected because of Adenauer’s reluctance to officially recognize the validity of the sentences. Without formal recognition, some sort of mass amnesty on the initiative of the West German government was possible after the transfer, a development which McCloy and his advisors refused to accept.14 Further acts of clemency for the war criminals in the American zone revealed McCloy’s lack of comprehensive policy on the war criminals issue more than any politically motivated tendency toward universal amnesty. On December 16, an additional eleven Nuremberg war criminals walked free from Landsberg, including former head of the Reich Chancellery Hans Heinrich Lammers and former general Lothar Rendulic. This was part of a broader Allied “Christmas amnesty” in the tradition of monarchs of old, which commuted the sentences of prisoners who would be eligible for release early in the following calendar year in celebration of the spirit of Christmas. In total, the Allies granted clemency to 259 prisoners serving sentences for either war crimes or crimes against the occupation authorities, including forty-two under British authority and seventy-two in French custody.15 Adenauer was not involved. Although McCloy was weary of the Landsberg issue and its accompanying political and public relations irritants, he remained preoccupied with formulating a just settlement. Writing to Telford Taylor in December 1951, Benjamin Ferencz revealed that McCloy had sought his counsel “on what to do about the war criminals” on “several occasions.” Ferencz had suggested “get[ting] them out of Germany and put[ting] them in an Army camp somewhere,” only for McCloy to reject that suggestion for fear of infringing upon the customary rights of prisoners to receive visitors. When McCloy sought Ferencz’s advice a second time, Ferencz “suggested that McCloy turn our friends over to the French who could keep them in Strasbourg [on the French-German border] and therefore it would be very convenient for the loyal followers to come and pay homage to them.” While “McCloy seemed to like that better than my casual aside that they should be dropped in the Rhine,” Ferencz continued, he again rejected the idea both because the French were unenthusiastic about the proposal and because “some of the HICOG prison officials consider French treatment inhumane” compared with that available in Landsberg. Although not as incensed as Taylor by McCloy’s clemency actions, Ferencz was nonetheless critical of the tendency toward additional leniency, writing to Taylor about the latest “group of Landsberg friends [who] have been given their

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freedom as a Christmas present,” including three “Einsatzgruppen boys,” Heinz Schubert, Heinz Jost, and Gustav Nosske. Ferencz was especially disgusted by the releases of Schubert and Nosske. A mere ten years after supervising the execution of hundreds of Jews, Schubert went “scot free,” prompting Ferencz to quip, “Who says there is no Santa Klaus?” And Nosske, whom co-defendants had labeled “the biggest bloodhound of all,” received a twenty-year sentence in exchange for his wartime brutality. “Noel, noel, what the hell?” Ferencz concluded, exasperated by the undermining of his idea of justice. Nevertheless, McCloy continued to seek Ferencz’s advice. Ferencz hypothesized, “I strongly suspect that he connects my views with the ‘voice of the Jews’ and would like to avoid any such repercussions as were brought about by his recent clemency action.” Ferencz then solicited Taylor’s thoughts on a third proposal he was contemplating, which involved the creation of a mixed permanent clemency board composed of both representatives from the West German Ministry of Justice and American officials. The board’s jurisdiction would cover not only the remaining Landsberg prisoners but also the approximately fifteen hundred prisoners housed in German jails who had been convicted by US tribunals during the occupation. Noting that a mixed clemency board could not “be very much worse than the current farce,” Ferencz closed by jocularly reminding the acerbic Taylor that “this is all more or less classified,” so “please do not launch any public attacks without giving me a chance to take cover.”16 Ferencz’s recommendations for an interim mixed clemency board were likely influenced by the ongoing negotiations between the United States, Britain, France, and West Germany on the Convention on the Relations Between the Three Powers and the Federal Republic of Germany and the Convention on the Settlement of Matters Arising Out of the War and the Occupation, collectively referred to as “the Bonn Conventions.” The latter of the two conventions, both signed at Bonn on May 26, 1952, contained a section pertinent to the future of the Landsberg prisoners, which, after Konrad Adenauer previewed it in public remarks on February 20, led members of the press to speculate that it was one of many concessions required of the Allies to ensure ratification of the agreements in the Bundestag.17 In Chapter One, Article 6, of the latter convention, the four powers agreed to establish a six-member “Mixed Board” composed of one American, one British, and one French representative and three West German appointees that would “without calling into question the validity of the convictions . . . make recommendations for the termination or reductions of sentences, or for parole,” for war criminals. The text governing the Mixed Parole and Clemency Board also bound West Germany to continue

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Benjamin F. Ferencz, lead US prosecutor of Case 9 (Einsatzgruppen Trial), at age twenty-­ seven, presenting evidence at the trial on September 29, 1947. Ferencz is flanked by two German defense attorneys objecting to his introduction of the documents. Ferencz would go on to offer both criticism and counsel to McCloy on his clemency decisions and their aftermath well into the 1980s. (NACP 238-IX-P-4)

incarcerating war criminals in their current conditions once it took control of Landsberg. This precluded the West German government from unilaterally implementing a de facto mass amnesty through administrative shenanigans, such as closing Landsberg and relocating the prisoners to new facilities with more relaxed security protocols. On the other hand, the Mixed Board was weighted to prioritize West German interests. First, half of its membership was German, with the remaining half split among the three Allied powers. Second, a clause in the conventions stated that, regardless of the desires of an Allied government, if the independent board voted unanimously it could overrule any sovereign objections to granting clemency or parole to an individual prisoner. Until a formal transfer of administrative oversight to West Germany, the Allied powers would retain supervision over the prisons housing “their” war criminals. Importantly, how-

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ever, the language governing the creation of the Mixed Board also stipulated that “the [Allied] right to terminate or reduce sentences . . . shall not be exercised unless the Board has previously made a recommendation.” Paragraph 9 specifically noted that this did not preclude any of the three powers from continuing “existing procedures with respect to reduction of sentences, release and interruption of sentences on compassionate or other grounds, without receiving recommendation from the Board.” HICOG officials, however, stressed repeatedly that the mere existence of the conventions rendered questionable the legitimacy of any further unilateral acts of clemency or parole, even if “justice” demanded it.18 While press coverage speculated that the Mixed Parole and Clemency Board was included to appease the West German amnesty lobby, the Allied High Commission saw the situation differently. Excitement prevailed among HICOG lawyers: for the first time, the West German state was obligated to officially recognize the legitimacy of the postwar tribunals. The text of the treaty forbade West German courts from retrying cases or amending sentences outside of the Mixed Board, where the Allied powers could block such moves. McCloy and Acheson specifically intervened in the negotiations to ensure that the Mixed Board’s decisions would be binding only if the board voted unanimously, lest, as McCloy put it, “we [run] the risk that the entire war criminal program might be washed out by a single vote in which one of the allied members was soft and supported a German clemency proposal.”19 Thus, the British, French, and American governments maintained the prerogative to veto any non-unanimous decisions by the Mixed Board, ensuring that even if the three West German members always supported clemency and parole, they would have to win over their British, French, and American colleagues in order to ensure a prisoner’s release. The substance of this American proposal to limit the Mixed Board’s authority was shared with Adenauer only after it gained British and French support as well, despite Adenauer’s later framing of it as a concession.20 While these agreements provided a long-term resolution to the war criminals problem in theory, in practice there were numerous delays, particularly from France, in ratifying the Bonn Conventions. This had nothing to do with the war criminals issue, however (still a peripheral matter from the High Commission’s perspective). Rather, the problem concerned the text in the agreements that dealt with the status and command of Allied troops stationed in Germany, which was written with the expectation that the EDC treaty establishing a multinational Western European army would be ratified simultaneously.

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As Cold War tensions in Western Europe stabilized along with the situation in Korea from 1952 to 1953, the impetus for the EDC (to deter or repel a Soviet invasion while binding Germany to the West) lessened, and the treaty ran aground in the French National Assembly over deputies’ concerns about the potential erosion of French sovereignty. The ratification of the Bonn Conventions by France was thus delayed until these problems were resolved in October 1954 (via West German agreement to join NATO in lieu of the mobilization of an EDC), with the conventions finally entering into force in May 1955.21 The delays posed considerable problems for HICOG. Shortly after the February compromise that limited the Mixed Board’s future authority to free war criminals only by unanimous vote, McCloy informed both Acheson and his fellow high commissioners that he “did not intend to take any action on outstanding petitions which have been or would be submitted to me, but rather that I intended to leave such cases for consideration by mixed board when established.”22 German Foreign Office assessments of American policy around the same time lamented that McCloy had developed “attitude problems” on the war criminals issue, as evidenced by his refusal to consider any further reviews of the sentences.23 Until the Bonn Conventions were ratified, however, the Nuremberg prisoners remained McCloy’s and his successors’ responsibility.

tu rni ng po i n ts? The negotiations over the Bonn Conventions, as well as simultaneous Western European talks concerning the EDC, were bracketed by renewed pressures from West German citizens, politicians, and newspapers for additional clemency, which reached their peak intensity in September 1952. West German demands ranged from advocacy of another round of limited sentence reductions through the early establishment of the four-power Mixed Board, to requests for individual British, French, and American sentence reviews, to calls for a general amnesty and the outright release of all the “so-called war criminals.” Yet even as public passions threatened to boil over throughout West Germany, American policymakers remained committed to protecting the legacy of Nu­ remberg so long as it aligned with their own conceptions of justice. West German calls for amnesty came from across the political spectrum, with even the liberal FDP, the third largest party in the Bundestag and a member of Adenauer’s governing coalition, adding its voice to the clamor from the nationalist right in a broader effort to reinject the war criminals issue into domestic political discourse. Unlike the far right, however, the FDP was careful to specify that “by no means, neither judicially nor morally,” did the amnesty

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campaign represent “an exculpation, justification,” or desire to relitigate the “uninteresting” details of individual cases. Instead, the FDP wished to move forward, freeing the West German state and people from the war criminals issue entirely, along with all its unpleasant associations with the dictatorship and occupation. Indeed, the FDP leadership of North Rhine-Westphalia in Essen sought to elevate its call for a general amnesty of all war criminals into a central tenet of the party platform in February 1952, founding a “Preparatory Committee for a General Amnesty” dedicated to freeing all war criminals in Allied custody. Slightly concerning from the American perspective was that three of the twelve founding members of this new organization were prominent center-right Christlich Demokratische Union (Christian Democratic Union [CDU]) politicians from the area, suggesting the possibility of a broad-based amnesty movement waiting in the wings. Even if the FDP disassociated itself from the nationalist right’s amnesty advocacy, the language of its pleas was similar. The Preparatory Committee began by issuing “nonpartisan appeals” to sixty West German newspaper editors calling for a “tabula rasa” for all war criminals and deploying the usual arguments that victor’s justice was not justice at all, and that the historically unprecedented efforts of the Allied powers to hold German war criminals to account after 1945 spoke to their inherent moral illegitimacy. The appeals to the press also reproduced previous writings of prominent amnesty advocates such as Evangelical bishop Theophil Wurm and Catholic archbishop of Cologne Josef Frings, who stressed the necessity for charity, reconciliation, and forgiveness instead of punishment and revenge. The public relations campaign included sample ballots that newspapers could make available to readers so that they could register their support for the FDP’s work, attempting to both inspire public passions and channel them into a grassroots amnesty movement.24 Fortunately, from HICOG’s perspective, the FDP was unable to gather the same cross-party or public mobilization as earlier appeals on behalf of the Landsberg war criminals. While all CDU and SPD members of the Landtag (state parliament) in North Rhine-Westphalia reported that they had been approached by the Preparatory Committee, most officials, such as SPD delegation secretary Heinz Kühn, had rejected the petitioners’ appeals. A general amnesty, Kühn argued, “would merely degrade the whole denazification program,” and while there were of course injustices in need of correction, Kühn “did not think that political expediency dictated a general amnesty.” While HICOG expressed some concern that veterans’ organizations would also lend their support to the

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FDP movement, uniting otherwise disparate amnesty efforts, American consul general Laverne Baldwin noted that broad support from leading CDU officials seemed unlikely, and support from the center-left SPD appeared out of the question.25 Nevertheless, HICOG continued to monitor West German popular and political hostility to the continued imprisonment of war criminals. In a March 1952 report, the Office of Political Affairs characterized the issue as “one of the neuralgic points” in Allied-German relations, as “the [imprisoned] top-ranking generals, in particular, seem to enter into almost all discussions of a German defense contribution.” “Rightists and extremists” were using the issue to make inroads with veterans’ groups and secure the high-profile support of the war criminals themselves, while even “middle-of-the-road politicians” appeared to express “genuine concerns” about those still imprisoned in Landsberg and Werl (the repository for war criminals in the British zone). Most of the agitation focused on only a very small number of aged generals: Wilhelm List, Erhard Milch, Georg von Küchler, Georg-Hans Reinhardt, and Hermann Reinecke in Landsberg and Erich von Manstein, Albert Kesselring, and Nikolaus von Falkenhorst at Werl. Press and political attacks on the British and the Americans (the French held no high-ranking generals at Wittlich Prison) focused on the usual claims of illegitimacy. Yet, as the Political Affairs report pointed out, since no one seemed to care about the inmates outside of this small group of generals, the amnesty campaigns routinely dealt in lies and innuendo about prisoner maltreatment as a way of gaining additional followers. One such false allegation claimed that the British were billing prisoners’ families for the expense of running Werl, a rumor that continued to circulate even after the minister of justice in North Rhine-Westphalia publicly denied it.26 Even though calls for amnesty generated more domestic noise than pressure on the Allies, HICOG continued to monitor these more limited appeals for the freedom of the high-ranking military officers. On February 8, 1952, the Bundestag carried a resolution deeming “it necessary that all Germans charged with war crimes who were convicted by Allied courts or retained without sentence be released unless the accused is held responsible for crimes of a conventional nature.” The Bundestag thus accepted (all process complaints aside) the illegality of proven acts of murder or theft at the unit level or in the case of Einsatzgruppen commanders but refused to recognize the legitimacy of generals’ convictions for passing on illegal reprisal orders or bearing a share of command responsibility for the crimes of their subordinates.27 Other motions and resolutions, often supported by Bundestag delegates from the nationalist right,

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followed. On June 25, McCloy cabled Acheson with news of a June 20 Deutsche Partei (German Party [DP]) interpellation to the Adenauer government. The interpellation demanded to know what steps Adenauer had taken “to obtain the release of as large a number of prisoners as possible” and pressed Adenauer’s government to take a public position on the “question of orders from superior officers; with respect to responsibility of individual in totalitarian state, and to applicability of retroactive penal law” as a “prerequisite” for any DP support of a German contribution to the EDC.28 In the debates that followed throughout the year, Bundestag delegates frequently demanded that the British release Kesselring and Manstein outright as their price for signing the EDC treaty. Such threats, similar to those repeatedly made to the Americans, made little difference to Allied policy, however, which was more affected by French than West German intransigence. Such examples of disapproval were symptomatic of a deeper public rejection of the Nuremberg settlement in West Germany. The end of McCloy’s tenure in August 1952, and his replacement, first by Walter J. Donnelly (the former US high commissioner to Austria) through December 1952 and then Acting High Commissioner Samuel Reber (a former McCloy deputy), marked a convenient turning point for HICOG officials to evaluate Allied policy on the war criminals issue as measured by West German polling data. The results were devastating. Eighteen months after the release of the Landsberg Report, with American, British, and French prisons emptying by the day, only one in ten West Germans expressed approval of the Western powers’ handling of the war criminals question and nearly six in ten disapproved. Moreover, the most negative attitudes were concentrated in “the opinion leading population strata— the men, the better schooled, and the better paid.” This near universal dis­ approval did not suggest a swell of public opinion against the “injustice” of releasing the war criminals too early; instead, “the most frequently suggested remedy on the part of those disapproving . . . is that [the war criminals] be released.” The report argued that there was no conclusion to draw except that “the Western powers have quite failed to convince the West German people of the validity and justice of the war criminal trials.”29 For those Germans who had disapproved of Allied treatment of war criminals, the most common reasons cited (adding up to the 59 percent total of those who expressed a negative opinion, with some providing more than one reason) included the familiar criticisms that most of those convicted were either “innocent” or guilty of merely having “done their duty” (23 percent); belief that the sentences were unjust given that “other countries have also committed

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war crimes without being punished” (13 percent); the idea that the war ended “long ago” and that it was time to move on (12 percent); and the assertion that the tribunals were illegitimate because they were not conducted by German or neutral courts (7 percent).30 The survey data also lent support to HICOG’s decoupling of the war criminals issue from German rearmament, however. Despite years of nationalist agitation, only 4 percent of respondents expressed the view that the war criminals should be freed as the price for rearmament.31 In summarizing the survey results for Acheson, Donnelly endorsed the HICOG Office of Public Affairs’ conclusion that the responses “provide[d] most striking evidence to date of fact Ger people still unconvinced of validity and justice of war criminal trials.” Moreover, Donnelly concluded, the “preponderant sentiment” among West Germans surveyed was that not only should the German generals in Allied custody be amnestied, but they should also “hold important posts in new German Army.”32 Indeed, immediately after Donnelly’s appointment, he too was subjected to the same pressures that McCloy had endured for the past three years. Much like McCloy, Donnelly evinced little patience for West German calls for amnesty. At his inaugural press conference on August 4, fielding a question about FDP Bundestag delegates’ threats to withhold their support for ratification of the Bonn Conventions and the EDC treaties unless there was some movement on amnesty, Donnelly articulated support for McCloy’s previous policy. Those who were still in Landsberg had “records that speak for themselves.” If the FDP was concerned about further clemency appeals, those matters would be resolved pursuant to the Bonn Conventions once the agreements were ratified.33 As a subsequent New York Times article put it, Donnelly’s remarks did “not go down so well.”34 Two weeks after the press conference, the Frankfurter Allgemeine Zeitung published a scathing editorial that was typical of the reaction among proponents of additional clemencies for the “so-called war criminals” in Landsberg. Donnelly’s contention that a four-power clemency process would resolve all outstanding matters relating to the war criminals after the ratification of the EDC and Bonn treaties was unacceptable, since “this would still leave some ‘war criminals’ [in prison] at a time when the first German soldiers would have completed their period of service” in the new European army. Referencing supposed atrocities committed by British, French, and American troops in Korea, the editorial continued, “In clashing with the notorious methods of Communism, the West has kept its reputation no more unblemished than did the Germans.” Would those who sat so self-righteously in judgment

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of Germany after 1945 perhaps now understand the unusual “viciousness” of communist-inspired guerilla warfare, which “can drive men to unleash uncontrollable passions,” and so set the German generals free?35 At the same time, veterans’ groups such as the newly merged Verband deutscher Soldaten (League of German Soldiers [VdS]) and the Bund versorgungsberechtigter ehemaliger Wehrmachtsangehöriger und ihrer Hinterbliebenen (Association of Pension-Entitled Wehrmacht Personnel and their Surviving Dependents [BvW]) continued their efforts to convince American officials to adopt a general amnesty. On August 10, former admiral Gottfried Hansen, chairman of the VdS/BvW, penned a letter to both Donnelly and General Matthew Ridgeway, who in May had replaced Eisenhower as the supreme Allied commander of NATO forces in Europe. Recognizing that Eisenhower had previously rebuffed such appeals as outside his purview as a NATO commander, Hansen nevertheless endeavored to convince both Ridgeway and Donnelly of the need for “a speedy and satisfactory solution” to the war criminals issue through “having a general amnesty granted to the prisoners.” Hansen encouraged Ridgeway and Donnelly to consider the issue from the perspective of morale—how could a proposed German contingent of any European defense force serve as true comrades of their Allied brothers in arms with this shameful stain on their national honor? While Hansen did “not wish to minimize the sins committed by Germans against the world and against the dignity of human beings,” the present threat from the Soviet Union was far more important. It was “time for an amnesty of peace as an act of forgetting and a new beginning.” Unless such an amnesty was “assured . . . Germans should not be expected to join [NATO or the EDC] of their own free will.” To give teeth to this threat, Hansen attached to his letter a VdS/BvW resolution approved on July 14 that he claimed represented the will of his two million members, stating that “no German can be expected to don a military uniform again until the question of ‘war criminals’ has been satisfactorily settled.” Hansen and his followers were willing to concede the continued imprisonment of “real” war criminals, which they defined as those acting out of “base motives.” However, given that every Nuremberg offender and nearly all the Dachau trial prisoners claimed that their actions were driven by lawful superior orders, this still amounted to a call for a general amnesty.36 Such demands for concessions on the war criminals issue in exchange for West German support of the EDC irritated American policymakers, since West German negotiators had already done their utmost to carve out special exemptions at every turn. For example, the West German state was exempt from fi-

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nancing its own military contingent as the other treaty partners did, given the great strains of reconstruction and refugee resettlement on the budget. As negotiations dragged on through the summer of 1951, McCloy and Acheson had endured numerous threats from Theodor Blank, Adenauer’s policy advisor on defense and rearmament matters, that the Germans would abandon the negotiations and refuse to contribute any forces. In these negotiations, the war criminals issue was hardly the most important, as various Bundestag factions raised their own deep-seated objections to the EDC project. Many SPD and FDP delegates, for instance, were concerned that the EDC would leave West Germany more vulnerable to Soviet incursions if its creation encouraged the United States to abandon Europe as it had after the First World War. Significant numbers of deputies also resented the “blackmail” of the American decision to put off a West German return to full sovereignty until after the EDC treaty was ratified. Nevertheless, Adenauer doggedly insisted to his parliamentary colleagues in both public and private that West Germany had in fact done very well in the negotiations, which had scuttled many of the anti-German provisions initially proposed by the French.37 Given these mixed messages and the long history of German posturing on the subject, American officials treated the increasingly hysterical demands from extreme nationalists to release the war criminals . . . or else, with skepticism. Yet, as HICOG General Counsel Eli Debevoise began in a September 1952 report for the State Department on West German attitudes toward the war criminals, “Whether we like it or not, the German politicians and press are making the subject of war criminals an important factor at this time.”38 From Debevoise’s perspective, it was HICOG itself, rather than the West German government or people, that was responsible for elevating the war criminals issue, given the self-reinforcing narratives of illegitimacy that American tinkering with the sentences engendered. “All clemency actions,” he observed, “are exploited by the Germans as arguments for further clemency, and clemency by any one of the three Western powers is used to induce clemency by the other two Powers.” He thus predicted an indefinite “defensive struggle” waged by the occupation authorities against West German revisionism with no clear end state. Debevoise argued that the State Department and HICOG should attempt to prevent the war criminals issue from overshadowing all other Allied policies in West Germany by setting its own house in order, keeping the Landsberg prisoners out of the press, and, by association, keeping the prisoners’ release off the fall Bundestag agenda. The best chance of achieving this was through unifying the disparate administrative threads of war crimes policy

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heretofore divided into US Army Europe and HICOG spheres of authority. The State Department should pressure the army into releasing its trial records into the public sphere on the Nuremberg model, and both HICOG and army representatives should “confer with German political leaders” to clarify their attitudes and perhaps secure some support for combatting the amnesty ­lobby’s disinformation campaigns.39 American officials like Debevoise continued to argue that the Nuremberg and Dachau tribunals had been legally aboveboard. Yet he also recognized that all the Landsberg prisoners, whether under HICOG or army jurisdiction, should be governed by the same policies and procedures to recapture some of the program’s legitimacy, much as the four-power framework of the Bonn Conventions promised. Ironically, in moving toward the standardization of war crimes policy in the American zone before the conventions took effect, HICOG officials such as Debevoise were proceeding farther down the path toward more releases, first through the extension of medical parole in late 1952 and then through the construction of a general parole system in 1953–1954 that freed far more war criminals than any isolated clemency actions would have done. Debevoise’s concerns about the upcoming Bundestag session also proved prescient. On September 12, Donnelly cabled Acheson describing the deteriorating political situation in Bonn. The Bundestag Council of Elders (an administrative body consisting of the Bundestag president, vice presidents, and twenty-three representatives of the various parties allocated proportionally, which both set the legislative agenda and served as a platform for negotiations on policy among the parties) put the DP pro-amnesty interpellation of June 20 on the legislative calendar for debate. The Council of Elders intended to force a response from the Adenauer government while putting Bundestag deputies’ positions on the war criminals issue into the public record. Donnelly noted that leading members of the FDP had also warned HICOG that their members could not in good conscience ratify the EDC treaty “unless there is previous evidence of Allied willingness to make important gestures of reconciliation.”40 The DP and the usual veterans’ groups were also in lockstep with this position. More alarmingly, from HICOG’s perspective, several CDU delegates had jumped on the pro-amnesty bandwagon as well. This potentially significant shift in support stemmed from sensationalized press reporting on Ridgeway’s discussions with Adenauer, with the SPD-affiliated Westdeutsche Neue Presse printing that Ridgeway had assured the chancellor that the United States “will take all steps to release so-called war criminals either prior to or directly after ratification of the treaties,” since, as Ridgeway’s experience in Korea had

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taught him, “many a [military] decision was an absolute necessity rather than a war crime.” These, and worse rumors, Donnelly informed Acheson, had spread rapidly in Bonn and gained wide credence in the Bundestag, thanks to the FDP using the reports to further push for amnesty. “Concern over the problem,” Donnelly cabled, “is not (rpt not) restricted to polit opportunists and vested interests. Matter is also being discussed privately by numerous responsible coalition leaders and govt officials.”41 Lending additional evidence to Donnelly’s evaluation was recent news from Düsseldorf. There, the FDP-backed Preparatory Committee for a General Amnesty had been hard at work on its campaign since February, and had procured over 1.5 million signatures for a petition calling for a general amnesty of all German war criminals, which the group planned to submit to the West German minister of justice in September. Leaders of the amnesty committee warned the Americans that “quite a sensation” would result, as they promised that prominent SPD and Christlich-Soziale Union in Bayern (Christian Social Union in Bavaria [CSU]) politicians in the Bundestag would dramatically “reveal their support” and add further momentum to growing public calls for an amnesty action.42 Whether this FDP warning to the American consulate in Düsseldorf was bluster or an accurate picture of the breadth of the Preparatory Committee’s support was unclear, but in the already fraught political context the threat of further instability certainly captured HICOG officials’ attention. A great deal of the anger directed against Donnelly’s policies was, at best, disingenuous. Adenauer’s Foreign Office kept a careful tally of the war criminals still held in Allied custody and reported that all three occupying powers had been relatively generous in granting clemency or early release because of good conduct, with the total number of prisoners dropping from 1,650 in December 1951 to 1,017 in September 1952.43 Nevertheless, the political situation was unstable, as multiple CDU and SPD delegates, anti-amnesty all, quietly informed Donnelly that, depending on the course of events, they may be forced to withdraw their tacit support for US policy. CDU representatives warned Donnelly that it was essential to find “some solution to the problem before it becomes even more of a demagogic issue in order to forestall danger that Chancellor and CDU may be forced to adopt more aggressive attitude in selfdefense.”44 Meanwhile, the SPD was “quietly enjoying the Chancellor’s discomfiture from [the] sidelines,” but the “party realizes issue is getting hotter and it may be forced to assume more aggressive position.” Deputy-head of the SPD Bun­ destag delegation Walter Menzel warned the Americans against allowing any

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elderly Wehrmacht officers to die in prison, “thus giving agitators martyr they want so much.” For their part, politicians of both the CDU and FDP pressed the Americans on what they interpreted as emerging contradictions between US Army and HICOG policies governing war criminals, urging HICOG to convene representatives of the Mixed Parole and Clemency Board specified in the Bonn Conventions even prior to their ratification. Donnelly concluded his report to Acheson by noting that agitation for release of the war criminals had “gained considerable momentum,” perhaps even costing Adenauer enough votes to jeopardize the final West German ratification of the EDC treaty. Such a split in the governing coalition over war criminals even had the possibility of endangering Adenauer’s majority in the upcoming 1953 Bundestag elections, “unless problem has been rapidly and finally solved after EDC comes into effect and not (rpt not) so soon before the election so as to look contrived.”45 A few days later, Donnelly and the British and French high commissioners received a telegram from Adenauer seeking a final settlement on the war criminals question in line with the procedure established by the Bonn Conventions. But regardless of the trouble brewing in the Bundestag, the Allies held firm. Adenauer’s telegram was alternatively hostile and pleading. Throughout, he adopted the language of the aggrieved amnesty lobby, referring to the serious threat posed to West German public support for the Bonn Conventions and the European Defense treaty if “the problem of so-called war criminals” was not expeditiously solved. Adenauer suggested that Britain, France, and the United States sanction the early creation of the Mixed Board provided for in the Bonn Conventions to “quiet” German public opinion on the issue. The nationalist DP had forced Adenauer’s hand because, as a result of their parliamentary maneuvering, “the so-called war criminals ques[tion] will come before the Bundestag on Wednesday 17 September.” Adenauer, of course, would “mediate” this dispute, but he would prefer an announcement from the Allies that the Mixed Board would be convened immediately so that his words would “have more weight.”46 Not stated explicitly was Adenauer’s evident desire to appear to have extracted a concession from the Allies to regain the political support of the amnesty advocates in the Bundestag. French high commissioner André François-Poncet immediately rejected Adenauer’s proposal as a nonstarter, however. As Donnelly explained in a cable to Acheson after a one-­onone meeting with Adenauer on September 15, “I think Chancellor is very much on spot in this war criminal business . . . and that he genuinely feels he needs to show Bundestag that he has gotten some suggestion, however insignificant it may actually be.”47 Yet apart from some signals earlier in the month that the

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British Foreign Office would prefer to be finished with the whole matter of the war criminals because it was weary of the “disproportionate criticism” it endured from West German politicians despite holding fewer prisoners than France or the United States, the French and American governments continued to refuse to grant Adenauer any such concessions. And the British government did not press the issue.48 For now, Adenauer was on his own. The anticlimactic Bundestag debate occurred as scheduled on September 17, lasting for approximately two and a half hours. The slate of DP speakers opened the session with sustained attacks on the “injustice” of Allied trials, deploying the usual accusations: procedural irregularities, the illegitimacy of ex post facto law, and convictions in the absence of compelling evidence. They also hinted darkly that the absence of a permanent and immediate settlement of the war criminals issue would have the most serious repercussions for the project of European integration, in effect threatening to scuttle the EDC. Rising to respond, and having no new concessions from the Allies to deliver, Adenauer characteristically attempted to defuse tensions in the chamber by taking credit for all previous sentence reductions. He noted that two-thirds of the three thousand German prisoners in Allied custody in 1950 had already been released (a result of a high number of expiring short sentences, good-conduct releases, and Allied-initiated clemency reviews) and pledged that his continued efforts would likely pay additional dividends very soon (they would not). Adenauer then assured the chamber that he was actively involved in negotiations with the Allied powers concerning the early implementation of the Mixed Board (his overtures had already been rejected earlier in the week), and that shortly he would reveal the names of the German board members (there was yet no mixed clemency board). Moreover, in a tacit expression of agreement with amnesty advocates’ charge that the trials were illegitimate, Adenauer pledged that he “would urge” German representatives on the Mixed Board to base their clemency recommendations on Article 103 of the West German Basic Law, which stated, “An act may be punished only if it was defined by a law as a criminal offense before the act was committed” (under the Bonn Conventions governing the independence of the Mixed Board—he had no authority to do this). Finally, Adenauer reminded the delegates in attendance that, while he understood this to be a sensitive issue that roused great passions, it was necessary to admit that many of the prisoners still in Allied custody would also likely have been convicted by German courts, and the Allied governments had their own publics’ opinions to consider. Some perspective was also in order, since the Soviet Union had

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still not returned one hundred thousand German prisoners. CDU delegates then took the floor to second Adenauer’s remarks and commend the government for all the progress made on this issue.49 This did not put a damper on the near-universal condemnation of Allied policy that was to follow, however, as SPD, FDP, and DP speakers rose in turn to attack the validity of the war crimes trial program as immoral, illegal, and unprecedented in its violations of judicial norms. Although Donnelly cabled Acheson that representatives of every party “except Commies attacked Allied judgments as having served ‘polit[ical] ends rather than justice,’ and demanded that question be resolved in near future,” he was relieved to report that Adenauer “was clearly successful in keeping sit[uation] under control,” and that it appeared that the rhetoric of public opinion on the matter would not easily translate into the scuttling of American foreign policy priorities by aggrieved delegates.50 The increased attention to the matter and Adenauer’s continued efforts to extract concessions from the high commissioners did not result in substantial policy changes. In taking stock of US war criminal policy in the aftermath of the September 17 Bundestag debate, Acheson continued to articulate the position that any general amnesty was unwarranted, and that any early formulation of the Mixed Board specified in the Bonn Conventions should only proceed with unanimous agreement between the British, French, and American governments. Realizing, however, that German agitation on the matter would only “increase in scope and intensity” in the coming months because of the national elections scheduled for the fall of 1953, Acheson informed Donnelly that it was time to review the menu of available policy options. First, Acheson offered, the State Department and HICOG could make every effort to publicize additional records of the trials, evidence, and judgments (a revival of Telford Taylor’s pedagogical approach), but Acheson was not optimistic that this would make any great difference since German opinions on the matter were “emotional and to that extent not likely to be influenced by objective statement of facts.” The second option, Acheson noted, was to adopt Adenauer’s just-rejected suggestion of putting the Mixed Board into operation prior to the ratification of the Bonn Conventions. This could only proceed by unanimous consent of the three powers, however, and Acheson expressed no desire to cajole the British or French into accepting such an arrangement. This did not imply that State Department officials in Washington planned to dictate war criminal policies to HICOG; on the contrary, Acheson closed by reminding Donnelly that clemency matters

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remained “within your discretion.” Instead, Acheson advised Donnelly that he should not let the back-and-forth negotiations between the Allies and the West German government over the forthcoming Mixed Board result in a complete shutdown of the routine review of clemency or medical release petitions presented by the Landsberg prisoners. Even so, Acheson concluded, “We do not, r[epeat] not, intend this as suggestion for POLIT release for any reason.”51 Indeed, Acheson’s patience with the Adenauer government’s demagoguery on the war criminals issue had worn thin. In late August at the United Nations Ad Hoc Commission on Prisoners of War in Geneva, the West German delegation presented a detailed accounting of “prisoners of war” not yet repatriated that included the Landsberg prisoners in American custody in their count. Not only did this suggest that the postwar tribunals were illegitimate, it also equated the United States’ policies with those of the Soviet Union, under whose custody hundreds of thousands of German prisoners had perished, with those that survived forced to labor on postwar reconstruction projects.52 It was one thing for Adenauer to refuse to defend American policy in the face of repeated attacks from nationalists and amnesty advocates in order to hold together his domestic coalition; such political maneuvering could be forgiven or overlooked. Representatives of the West German government attacking the United States in international fora was another matter entirely. In a September 24 cable, Acheson instructed Donnelly to tell Adenauer “forcefully” that the United States “resent[ed] the ingratitude and bad faith shown in this official German misrepresentation” of American policies on war criminals. Moreover, Acheson continued, Donnelly was to warn Adenauer that “such conduct on the part of German officials will inevitably lead to distrust of the Federal Republic in international dealings, at a time when it is particularly important to establish confidence and cooperation among the free nations.”53 While American officials continued to bristle at West German attempts to leverage Cold War tensions to wind down the incarceration of war criminals, HICOG deliberated over the moral and legal dimensions of the problem. These tensions were clearly articulated in an October 1952 letter from James W. Riddleberger, the director of the State Department’s Bureau of German Affairs, to Donnelly that attempted to sketch out a political solution to the war criminals issue given the French opposition to implementing the Mixed Board prior to the Bonn Conventions’ ratification. “Our main objective,” Riddleberger explained, “is to keep the German agitation and resentment on this subject from interfering with ratification.” However, he continued, “At the same time, we do

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not wish to take any steps inconsistent with the principle of the war crimes trials” or with the mandate that all acts of clemency, parole, and release proceed on “a judicial rather than a political basis.” The Mixed Board, an independent panel by design, “maintain[ed] all the basic elements of our position” while mollifying German passions, but the French had effectively nullified or delayed its implementation—what to do? Any further action not grounded in the already agreed-upon procedures of the Mixed Board threatened to undermine its future legitimacy, and any unilateral actions by the United States threatened to further alienate the French government while gaining no new support in West Germany. While Donnelly had recently taken some limited steps on expanding medical parole to deal with the oldest and sickest Nuremberg prisoners in the interim (as discussed below), this solution could not be scaled up to apply to younger or healthier prisoners. Riddleberger raised the possible solution of “a more extended parole system,” which would be required to implement any future Mixed Board parole recommendations anyway. Since such a parole system as yet had never been implemented in the American zone, there might be a number of inmates who deserved it, which would allow the US government to begin the work of paring down the population of Landsberg in accordance with best practices in the American prison system.54 Whether Riddleberger missed the contradiction within his analysis or chose to ignore it, such an action would by necessity be a unilateral American move taking place outside the institutional framework of the four-power Mixed Board. Absent the ratification of the Bonn Conventions, there was no formal institutional mechanism for processing further sentence reductions. The tools available to American officials were limited: review of a further round of clemency petitions, release through the ten-days-per-month good-conduct system implemented in 1950, or the separate remedy of “medical parole.” McCloy and the Advisory Board’s clemency review lay less than two years in the past, and the good-conduct system provided no remedy for most of the remaining prisoners, whose sentences were so long as to preclude release for many years, if ever. This left the option of medical parole, heretofore granted only when “continued confinement would imperil life.” Since the future of the Mixed Parole and Clemency Board was in limbo while the Bonn Conventions awaited ratification, medical parole was the only policy lever available to provide some relief to prisoners petitioning the high commissioner about their medical hardships. After all, to allow the old and infirm to suffer and die in prison, particularly if not under a life sentence, did not comport with the values of American justice.

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On October 15, 1952, the State Department approved Donnelly’s request to broaden the applicability of medical parole to “prisoners who are old and have some serious or incurable illness.”55 From the outset, HICOG’s turn to medical parole as a mechanism to resolve outstanding petitions while avoiding the injustice (and spectacle) of the most elderly inmates dying in prison was somewhat limited by a lack of coordination with the army. Gen. Manton S. Eddy, then commander of US Army Europe, opposed broadening the scope of medical parole for his own Landsberg prisoners, penning a letter to Donnelly on November 29 enumerating his objections to HICOG’s “marked change” in policy. Repeating Donnelly’s formulation that HICOG was implementing a system of “strict medical parole for prisoners in bad physical state generally with degenerative conditions due to age whom the doctors believe are really incapacitated and do not have any chance of improvement,” Eddy noted that such a policy dispensed with the previous practice of considering whether adequate treatment for a given medical condition was obtainable in Landsberg prior to moving forward with a medical release. Moreover, there was no mechanism for re-imposing limitations on a prisoner’s freedom if their health improved. Nor did the new policy take a given inmate’s conduct during confinement into account when deciding whether his release was appropriate. “Such a policy,” Eddy wrote, “would render eligible for release many prisoners who by reason of the nature of the crime by which they stand convicted do not in good conscience merit release from confinement, notwithstanding the nature and extent of their physical disability.” Eddy was “not questioning the propriety of [Donnelly’s] action” or his “good motives” but simply disagreed with HICOG’s tack of broadening eligibility for medical parole. Thus, Eddy concluded, while twenty-four of his prisoners met the broader criteria governing HICOG releases, he had considered each case on its own merits, and would release only four. Eddy agreed, however, that this was a separate issue from the now-annual Christmas clemency for prisoners whose sentences were set to expire early in 1953, which he was still prepared to cooperate with fully as usual.56 Such divergences in opinion between HICOG and the army on implementing policies and procedures to adjudicate clemency petitions for the Landsberg prisoners would make the consolidation of all war criminals policy under a single institution all the more appealing to the State Department in the future. Nevertheless, Donnelly forged ahead, revealing his proposal to expand medical parole to the British and French high commissioners and two of the

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Bundestag’s most prominent amnesty advocates, Erich Mende (FDP) and Margarete Hütter (FDP), and providing a list of the nine eligible prisoners to Adenauer on December 9, 1952. According to HICOG summaries, these nine “range in age from 61 to 68 and are all reported to be suffering from degenerative diseases, principally heart or kidney or circulatory troubles.”57 Internal opposition against the move to a broader use of medical parole continued, however, resulting in pushback from exasperated officials such as Debevoise, who wrote to HICOG legal advisor Knox Lamb and HICOG Prisons Division head Richard C. Hagan in January 1953 about remaining doubters who “insist that medical parole should not be based on mere physical incapacity but solely on the basis of whether better medical treatment can be given outside of Landsberg for the particular disease.” While Debevoise was willing to concede that “the latter policy was the proper one to apply in the early days of imprisonment . . . We must remember now . . . that all of the prisoners have now served some seven years.”58 Given the demographic profile of the prisoners, this policy innovation was also a rather astute means of ensuring the release of the remaining German generals, the most politically troublesome population in Landsberg. It was not enough for Adenauer, however, who continued to press in December for a coordinated and “immediate” tripartite announcement of “a far-reaching gesture” to resolve the war criminals problem prior to the ratification of the Bonn Conventions to “pacify and favorably impress” West German public opinion. As usual, Adenauer was promised nothing more than that his comments would be passed along to the secretary of state.59 Yet despite all the planning and debate, Donnelly was merely tinkering around the edges of the problem, since over two hundred army prisoners and nearly three-dozen HICOG prisoners remained ineligible for medical release. An equitable and just solution for the Landsberg criminals appeared no closer at the close of 1952, regardless of the optimism that heralded the signing of the Bonn Conventions earlier in the year. In the meantime, the more liberal use of medical parole for major offenders did little to dampen the enthusiasm of the amnesty advocates. If anything, the release of the “ailing” high-ranking military officers swelled their ranks of supporters. Much to the chagrin of the British and American authorities, for instance, the first thing former field marshal Albert Kesselring did the day after receiving a medical parole from the British in late October 1952 was hold a press conference from his Bochum hospital room where he repeated the old threats to scuttle the West German contribution to the EDC “unless a far reach-

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ing clemency is taken first for all soldiers still in prisons.” Indeed, Kesselring would spend the next several years calling for amnesty for the remaining prisoners, pledging never to forget the “little people” left behind.60 In this respect, the World Jewish Congress’s November 1952 warnings that Allied clemency actions only encouraged ultra-nationalist forces in Germany in their “agitating against the Allied powers” was once again on the mark.61

r est art i ng t he clemency machi ner y The year 1952 had seen the release of seven Nuremberg prisoners, five for good conduct and two medical paroles. Another sentence had expired in early 1953, leaving twenty-nine HICOG war criminals for McCloy’s permanent successor as high commissioner, former Harvard president James B. Conant, when he arrived in Germany in February 1953 as new US president Dwight Eisenhower’s appointee.62 In preparation for Conant’s arrival, Acting High Commissioner Samuel Reber and his staff prepared orientation reports summarizing current HICOG policy on war criminals. Following Donnelly’s retirement in December, Reber had reversed his August 1952 directive that no further clemency petitions should be heard or ruled on by the high commissioner, an order “superseded” by the French refusal to ratify the Bonn Conventions as written. When Conant arrived in Frankfurt, clemency petitions were once again piling up, despite Reber’s careful instructions to the prisoners that such petitions could present only genuinely new evidence “bearing directly either on the question of guilt or on matters of mitigation” that had not been presented at trial or in any previously submitted clemency petitions.63 Based on calculations tabulated during the transition period between Donnelly and Conant that assumed an award of ten days of good-conduct time per month in all cases, one Nuremberg sentence was set to expire later in 1953, twelve in 1955, one each in 1956 and 1957, six in 1958, one each in 1959 and 1960, and one in 1963, with five life sentences of undetermined length remaining after that. Given that most of these prisoners were younger SS officers, doctors, or judges, HICOG viewed only six of these twenty-nine as eventual candidates for the medical parole program. Separately, the US Army in early 1953 also held custody of 224 of its own prisoners from the Dachau trials, including seventy-one life sentences and scores of others not set to expire until the mid-1960s.64 West Berlin’s Spandau Prison could not be closed down in spite of its small IMT inmate population because it was governed in common by the British, French, American, and Soviet occupation authorities (with the Soviets categorically refusing to discuss sentence modifications for the seven

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Leaving EUCOM (and former HICOG) headquarters, Frankfurt, March 5, 1953. From left to right: Deputy US High Commissioner Samuel Reber; US High Commissioner James B. Conant; General Thomas T. Handy, deputy commander in chief, European Command; General Lemuel C. Shepard, commandant of the US Marine Corps. (NACP 111-SC-429179)

remaining prisoners there). Yet West German acquiescence to continued American custody of German nationals was not in the offing as the final transfer of all institutions from British, French, and American control to West German sovereignty loomed.65 Upon reviewing the situation at the outset of his appointment, Conant’s staff determined that HICOG practices on clemency and parole deviated from those of Britain and France, but also from the army as well, although “there was no apparent reason” for this divergence. From the outset, his advisors concluded, it was necessary for the State Department and the Department of Defense to coordinate a common policy on war criminals, and for the State Department to make overtures to the British and French in a similar effort to standardize parole, clemency, and release across all three Allied occupation zones in preparation for the end of the occupation.66 Yet how to do so remained a contentious issue, given increasingly different recommendations from HICOG’s Office of the General Counsel and the Office of Political Affairs,

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with the latter giving far more credence to West German complaints about the illegitimacy of the Nuremberg tribunals and accusations of torture and other such instances of ill treatment. Upon reviewing these draft reports, the Office of the General Counsel deemed them “absolutely unacceptable,” inaccurate, and offering political modifications to the Mixed Board that, due to treaty obligations, were beyond its remit.67 Per the final draft of the much-disputed background report prepared for Conant with input from both the Office of Political Affairs and the general counsel’s office, the central question at issue was “whether for political or humane reasons it is necessary or desirable to establish as an interim measure release procedures” in addition to those already in effect or “whether the status quo should be maintained until the Bonn Conventions come into force.” HICOG had approached a point of diminishing returns wherein additional rounds of clemency petitions uncovered no new rationales for granting clemency, all inmates eligible for expanded medical parole were already free, and the lack of coordination between HICOG and the army “result[ed] in a distortion with which it is increasingly difficult to deal.” A more “flexible” institutional response was required, but what to do? A key problem, “considering the temper of the times,” was that “any release from confinement of any war criminal . . . is a great moral victory for the German government because of its denial of the validity of the judgements.”68 Yet since 1949, HICOG had increasingly trended toward granting the war criminals the same rights as any other American prisoner. Even in the absence of the fourpower Mixed Board, the report indicated that there was one penal norm that had not yet been afforded the Landsberg prisoners: “a parole system, preferably tripartite, capable of uniform application and designed to cope with the fact that those concerned are not petty thieves.” Parole, after all, was fundamentally different from clemency and so offered a valuable shift in perspective from the trial records to the inmates’ rehabilitation. This allowed for sentence revisions that were just without calling into question the legitimacy of the tribunals, and had the added benefit of undercutting West German political grandstanding on the issue. If all prisoners who had served one-third of their sentences were eligible to apply for parole, as envisioned in the report, the most politically problematic group of remaining prisoners (low-ranking soldiers or citizens who in a fit of passion had participated in the lynching of Allied fliers after their cities had been bombed—all in army custody) would quickly be released from the system while those tied to mass murder, concentration camps, medical experiments, and slave labor (that

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is, the serious Nuremberg offenders) would not be granted parole. Most importantly, such a parole system would result in just outcomes, improve German-­ American relations, and “leave the validity of the sentences untouched.”69 Once Conant was up to speed at the end of March 1953, Lamb counseled him that he would “have to deal” with the Landsberg issue. Given McCloy’s and the Advisory Board’s previous work, Conant’s clemency powers, Lamb wrote, were entirely discretionary, with Conant “under no direction and under no legal duty to accept or examine petitions for clemency.” No matter the flaws in its operations, the resources allocated to the 1950 Advisory Board had been substantial, and included a close examination of the judgments, interviews of the prisoners, and meetings with defense counsel. Consequently, Lamb explained, “the Clemency Board findings have come to be regarded as final with respect to facts and circumstances known to it at the time its recommendations were made.” Current HICOG policy was to concern itself “exclusively with new matters” unknown to the Advisory Board at the time.70 This guidance posed a serious problem, however, since the ever-increasing passage of time from the conclusion of the last Nuremberg tribunal in April 1949 and the near-constant series of reviews by Clay, McCloy, and other HICOG officials meant that “we have come to the point where we believe almost all the known factors have now been presented.” No matter what the prisoners and their lawyers claimed, points of evidence or law “said to be new [are] not new,” as the petitions from the remaining prisoners continued to be “argumentative, repetitious, and prone to devote time and space to the denial of facts found by the Tribunals.” “Finally,” Lamb concluded, “the petitioners seem to have forgotten that clemency is an act of grace by the executive and not a matter of right,” given the prisoners’ “expectation that there will be a complete and open abandonment of the principles established by [the tribunals].”71 Short of a new policy of amnesty (undesirable according to Lamb’s invocation of the inviolability of principles of law established at Nuremberg) or some modification of existing American institutions, there was no way to expedite the release of these final prisoners prior to the formation of the Mixed Board, since the prisoners were unable to present any “new” evidence meritorious of further unilateral acts of clemency and their general good health prevented the application of medical parole. HICOG lawyers had deliberated on a menu of alternative plans to address the war criminals issue prior to the establishment of the Mixed Board, although each presented obvious drawbacks. In December 1952, the HICOG Office of Political Affairs had submitted a proposal to the Department of State recom-

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mending the outright release of broad classifications of HICOG and US Army prisoners, such as “all those who were soldiers or officers and merely carried out orders,” although this suggestion was later withdrawn due to critiques that such a release would repudiate the Nuremberg judgments. Meanwhile, the Office of the General Counsel and the Office of Political Affairs jointly drafted a proposal on a new parole system based on the US domestic model that extended the eligibility for parole to war criminals who had served one-third of their sentences. According to Richard Hagan, then the head of the Prisons Division within the Office of Political Affairs and chair of the HICOG clemency board charged with reviewing the cases of common criminals tried and sentenced by the American occupation authorities, such a plan had many advantages. It would bring US policy in Germany in line with US occupation policies in Japan (where a parole system for Japanese war criminals was implemented in March 1950), serve as a valuable model for the West German penal system (which had little experience with parole), and prepare the ground for the Bonn Conventions–mandated Mixed Board, whose success would depend on a functioning parole system. In firmly grounding the proposal in the policies and procedures of Douglas MacArthur’s occupation of Japan, its authors ensured that any dissenting voices in the US Army could be overruled. An added benefit, of course, would be that announcing a new parole system might aid Adenauer in the fall 1953 Bundestag elections.72 Considering these policy options, Conant’s general counsel, Frederick Schwarz, recommended against the implementation of any new parole or clemency system beyond the Mixed Board specified by the 1952 Bonn Conventions. While Schwarz recognized that a parole system as described by Hagan “might result in a fairer solution to the war criminal problem,” he presented several pointed objections. It would violate the spirit of the Bonn Conventions, since it was unclear that the British and French would approve of a similar system for their own prisoners. It would also necessitate the creation of new institutional machinery within HICOG to carry out the reviews. Moreover, Schwarz thought it “undesirable constantly to change our procedures in dealing with the war criminal problem.” In the meantime, Schwarz recommended that Conant continue the use of medical parole as the least bad option, conceding that while “it does not result in the parole of those prisoners who have the best case for parole (e.g. youthful offenders with relatively less serious offenses and with a better chance of rehabilitation),” it could be “defended on the grounds of humane treatment,” it “does not throw doubt on the sentences, and, in view of the fact that it is not a new policy, it is less likely to stir up new controversy.”73

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Adenauer, however, had other ideas. In talks with new secretary of state John Foster Dulles in Washington on April 7, Adenauer pushed the Americans to begin preparations for the implementation of the Mixed Board mandated by the treaty sooner rather than later. There were “considerable psychological and public opinion problems in Germany connected with the war criminals issue,” Adenauer said, with the “agitation” of veterans’ and soldiers’ organizations “especially difficult.” A lack of movement on the war criminals issue would imperil the formation of German military units for the EDC.74 This threat hit its mark: although Dulles and Eisenhower’s lodestar in international affairs was the “rollback” of communism, both also shared the desire to minimize the presence of American troops in Europe, as they believed that neither the American people nor the federal budget would countenance a permanent buildup of US troops there to counter the Soviet threat. Indeed, Eisenhower saw the formation of the EDC as an institutional means of cutting the Gordian knot of competing US priorities in Europe (security, budgetary relief, and integration) in addition to the only feasible arrangement to prevent the neutralization or drift of West Germany toward the Soviet Union in any center-left post-Adenauer government. He directed Dulles to use every means at his disposal to permanently bind West Germany to the anti-communist alliance. Yet Adenauer’s continued attempts to hold the EDC hostage were somewhat curious, since Eisenhower and Dulles’s principal concern was French stalling; the Bundestag had already ratified the treaty on March 19.75 In his memoirs, Adenauer elaborated that in stating his demands to Dulles for the release of more war criminals, he explicitly adopted the position of the heads of the German veterans’ associations: they (and he) were pleading for the release not of “real war criminals” but rather of “people against whom no war crimes had been proved.”76 Given that all inmates had been convicted in court, the meaning of the distinction was unclear. What was clear, however, was the implication that any future recruits for a German army depended on “specialists” whose loyalty could only be bought through “a more lenient parole system” for their erstwhile comrades. Yet Adenauer’s demands to the Americans were not necessarily as blunt as he portrayed them later, as the only request Adenauer made of Dulles at the time was for some sort of public showing that a mixed clemency board was in the offing regardless of any French delays in ratifying the Bonn agreements, specifically, “a study . . . for the purpose of considering the possibility of establishing the Mixed Board provided for in the treaty.” Failing this, some public acknowledgment that the Mixed Board would begin its work by the end of the year would be “most advantageous.”77

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But what object was Adenauer pursuing and how much did these types of veiled threats matter? American officials tended to view such grave pronouncements about the dangers posed by the unresolved war criminals problem with skepticism. Indeed, Dulles first brushed off Adenauer’s April 7 concerns entirely, saying that they would discuss the war criminals issue another time.78 When Dulles and Conant did devote more time to the matter the following day, they committed only to having “some new procedure in place” before the September election and to “reviewing” Adenauer’s accusations that the US Army was unduly stingy in granting clemency releases in comparison with the British and French authorities.79 Meanwhile, the implementation of the EDC was torpedoed not by West German nationalism, but by the refusal of the French Parliament to ratify the accords. Adenauer’s request for some sort of public signaling and his reference to the necessity of all possible speed likely had more to do with the upcoming Bundestag elections in September 1953 and his desire to appear to be making progress on the war criminals issue than any sincere desire to stake West German national security on the ability of some three hundred prisoners to submit petitions for clemency and parole. Indeed, State Department and HICOG officials, and even President Eisenhower himself understood this all too well, which tended to have the opposite effect that Adenauer intended: knowing that Adenauer was engaged in political posturing encouraged the Americans in charge of war criminal policy to insist on closer coordination with their British and French allies on the matter. Meanwhile, Adenauer’s missives to Washington over the summer urged more symbolic concessions (such as changing Conant’s title from “High Commissioner” to “Ambassador”) in addition to the establishment of an interim parole and clemency board that “would assist the Chancellor in the forthcoming election campaign.” For his part, President Eisenhower expressed that he was “very sympathetic” to Adenauer’s situation but refused to create an American-German parole board without British and French approval.80 It was not West German political posturing that broke the deadlock over the issue of national clemency boards, as Conant, legal advisor John Raymond, and other HICOG officials repeatedly rejected Adenauer’s push for a “political” solution that would undoubtedly erode any remaining legitimacy from the Nuremberg tribunal verdicts.81 Instead, the French government ended the stalemate in the summer of 1953. Following numerous exchanges between the legal arms of HICOG and the State Department on what, if any, form a new approach to clemency and parole should take in the US zone in the absence of

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the four-power ratification of the Bonn Conventions, in May 1953 the State Department petitioned the British and French governments to set up an Interim Mixed Parole and Clemency Board to deal with pressing matters of parole and clemency. The British government had already expressed favorable views of such a temporary arrangement in October 1952, with only the French government refusing to participate until both West Germany and France had ratified the Bonn Conventions. The French government once again rejected the May 1953 American proposal to form a four-power interim board, but, rather unexpectedly, proposed instead at the Tripartite Foreign Ministers Meeting in Washington on July 11 that each nation establish its own interim mixed board to adjudicate urgent clemency and parole matters in their respective occupation zones while awaiting the final ratification of the Bonn agreements. While this was not the most desirable course of action for the British or American delegations, which continued to prefer setting up a single mixed board, Dulles was willing to accept the French position if that was as far as they were willing to go. Although this arrangement was reached without input from Adenauer, the Allied foreign ministers agreed to hold the news about the creation of their separate zonal clemency boards until closer to the September 6 West German elections so that he could reap the political benefits of the announcement.82 It was under these circumstances that, on August 31, Conant issued a public order establishing the Interim Mixed Parole and Clemency Board in the American zone. The British and French governments created their own interim boards the next day.83 The announcement had been delayed while Conant extracted the concession from Adenauer that the West German government and the governments of the individual Länder (states) would accept the validity of any parole conditions imposed by the Allies, legitimizing the interim boards’ functions by the same operating procedures of the Mixed Board under the pending Bonn Conventions.84 On September 6, three days before the election, Adenauer duly published a government bulletin hailing all the progress he had made on the war criminals issue and hinting that the inclusion of German participation in the clemency process from this point forward would result in greater leniency than before. When swearing in his new cabinet on October 20, Adenauer once again trumpeted the long-awaited arrival of justice to the war criminals problem, promising a rapid review of all sentences “so that those who have not committed any real crimes will soon be released and experience a reduction of their sentences without delay.”85 Adenauer, as usual, was in no position to make such promises. Conant’s order, co-signed by Gen. Charles L. Bolte, the commander of Amer-

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ican armed forces in Europe, offered seemingly unambiguous restrictions on the institutional function of the American Interim Mixed Board—restrictions stronger than those implemented by McCloy in 1950. Conant’s order expressly forbade the Interim Board from “calling in[to] question the validity of the convictions and sentences.” Moreover, perhaps in recognition of the widespread criticism that McCloy had received in 1951, Conant clarified that “the Board shall be guided by the principles that parole is not a form of clemency and is not based upon matters of compassion or mitigation,” that compassion alone was an insufficient reason to grant clemency to prisoners, “and that neither parole nor clemency involves consideration of the propriety or legality of the trial proceedings, guilt or sentence, which are final and conclusive.” Additionally, Conant deemed a prisoner eligible for parole consideration only if they had served one-third of their prescribed sentence or fifteen years of a life sentence and “demonstrated by his behavior that he repents the offense or offenses of which he was convicted . . . and will observe the conditions of the parole if granted.”86 In theory, Conant’s strict parameters governing the operation of the Interim Board would ensure that the public relations fiasco of 1951 would not be repeated, since the board was forbidden from criticizing the tribunal verdicts or granting clemency or pardon to unrepentant war criminals. In practice, however, Conant’s unequivocal statement that repentance was a key criterion for grants of parole or clemency was quickly rejected by the HICOG general counsel’s office as unworkable. In a legal opinion circulated to the members of the Interim Board on October 29, Deputy General Counsel Knox Lamb argued that “the reference to repentance of a prisoner” had “no independent significance as a separate requirement.” In Lamb’s opinion, the “substantial requirement” of the order was merely that the board was “reasonably assured” that the other two conditions spelled out by Conant were met: that a prisoner agree to lead a peaceful, crime-free life and abide by any specific conditions the board placed on their parole. The presence or absence of repentance, Lamb argued, only mattered insomuch as it affected these other two conditions.87 While Lamb’s guidance to the Interim Board clearly contradicted the original text of its charter, he viewed it as the only reasonable way for the Interim Board to skirt several thorny legal issues. Conceptually, an evaluation of a given prisoner’s repentance was both straightforward (did the prisoner regret his actions, or not?) and grounded in the tradition of executive clemency from which the Interim Board, like its predecessor, derived its legal powers. Practically, however, the presence or absence of repentance in each case was highly

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subjective—by what criterion would the Interim Board assess whether a prisoner was sufficiently repentant as to merit clemency or parole? While the Interim Board could rightly interpret “overt act[s] of the prisoner demonstrating that he repents his crime” as “strong evidence” that a prisoner would behave and abide by his parole conditions upon release, “I do not think . . . that that Order was intended to require an inquisition into the prisoner’s actual state of mind or conscience with respect to any question of repentance.” To avoid basing their judgments on metaphysical questions, Lamb urged the Interim Board instead to consider only “overt behavior as evidenced by his prison record and his conduct before the Board,” from which “a reasonable interference as to any repentance by a prisoner may be drawn.” Since nearly all prisoners possessed a clean institutional conduct record, this was an easy determination to make. Moreover, Lamb argued, the order was not meant to discriminate against “a prisoner who continues to believe himself innocent of the crime of which he was convicted.” Such would establish a two-tiered system of justice. After all, Lamb continued, “Modern penal laws do not require that a person admit conviction within the court of his own mind and conscience.”88 In essence, the Interim Board was to assume that a given applicant was repentant if they met the other criteria for parole, even if they continued to question the legitimacy of the verdict in their case. The formation of an American Interim Mixed Parole and Clemency Board in 1953 once again did little to appease West German amnesty advocates, who merely met the news with grumbles that it was long overdue. As the HICOG Office of Political Affairs reported in an October 22 dispatch to Washington, “It is apparent that with the lapse of time, evidence presented at Nuernberg has faded from the public mind. . . . An increasing portion of the press appears to regard war criminals as martyrs of the ‘victor’s justice.’” Perhaps unsurprisingly, extreme rightist newspapers such as the Deutsche Soldatenzeitung, which saw itself as the vanguard paper of nationalist veterans’ organizations, continued to publish full-page editorials demanding a “final settlement” of the war criminals problem.89 Yet, that October, a confluence of otherwise discrete events lent additional force and circulation to other such calls for amnesty across the political spectrum. On October 3, Pope Pius XII gave a speech before the Congress of the International Society for Penal Law, in which he called for more clearly defined international conventions on the prosecution of war crimes. Amnesty advocates in Germany at the Deutsche Soldatenzeitung, but also at center-right papers such as the Kölnische Rundschau, used the pope’s address to renew attacks

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on the legitimacy of the Nuremberg tribunals and calls for clemency for German war criminals detained in “the many prisons of the West.” At the same time, a minor scandal erupted at Werl Prison, wherein the British cashiered the German warden for providing the inmates with extra food and addressing them by their former military titles. Besides official protests directed at the British Foreign Office from rightist parties such as the DP, the affair resulted in widespread attacks from a variety of newspapers, including CDU/CSU- and FDP-affiliated organs that lauded the former warden’s humanity and called for a general amnesty for war criminals.90 Meanwhile, the convention of the new Bundestag session on October 6, the first since the September national elections, provided ample opportunity for new delegates, such as former general Hasso von Manteuffel (FDP), to call on the West to release all the remaining war criminals by Christmas, raising the familiar specter of “new German military contingents [being] burdened with the war criminal stigma.” Responding to these events, Adenauer engaged in another act of political theater, calling “for an early review of the war criminals cases” even though he was aware that the Interim Board was already scheduled to meet on November 1. Bundestag president Hermann Ehlers (CDU) offered a much more pointed call for amnesty, however, declaring that it was “inhuman that prisoners were still detained eight years after the war,” specifically equating the continued imprisonment of German war criminals with the 103,000 prisoners of war that the Soviet Union had not yet returned to Germany.91 American officials took little heed of such calls for additional amnesty or clemency, politely acceding to West German demands only when they aligned with preexisting policies adopted without consultation with the West German government. On December 17, for instance, Heinz Krekeler, chargé d’affaires of the Federal Republic of Germany in the United States, the highest-ranking diplomatic representative of West Germany until 1955, met with Deputy Undersecretary for Political Affairs Robert Murphy in Washington. Krekeler had received instructions from his government to raise the issue of yet another Christmas amnesty of “as many war criminals as possible” held in American jurisdiction, stressing “the excellent psychological effects of a liberal policy in granting such amnesties.”92 Yet it turned out that such requests from Adenauer’s government were superfluous because, as had been the case since 1951, a review of sentences expiring before January 31, 1954, had already taken place, with the bureaucratic machinery in motion to release the sixty eligible army prisoners and one Nuremberg war criminal (Georg von Küchler—moved from medical parole to good-conduct release). As an internal State Department memo-

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randum noted, “Such amnesty has been extended, not upon German request, but upon the initiative of the United States authorities (as well as the British and French), and Ambassador Krekeler can hardly expect to receive any undertaking from the Department on this point.”93 Conant’s order establishing the Interim Mixed Parole and Clemency Board ushered in the final phase of American war crimes policy in semi-sovereign West Germany. Since 1949, American officials had dealt in individualized sentence revisions, good-conduct releases, and medical paroles as acts of mercy for their charges in Landsberg. Now, the creation of a new system of parole offered all German war criminals the opportunity to demonstrate that their time in American custody had fully rehabilitated them, and that their continued incarceration was not only unnecessary, but unjust. Even the army, generally much warier of sentence reductions for the Dachau trial prisoners, was brought along. The advent of parole ushered in an explicit shift in American policy, as the prerogative of upholding the legitimacy of the Nuremberg verdicts would now be weighed against the utility and efficacy of continuing punishment for a given prisoner’s individual welfare or the greater good of West Germany. American justice was no longer punitive, but rehabilitative. For the remaining Nuremberg prisoners, who did not fit the profile of troublesome recidivists, this boded well.

ch a p te r s e v e n

A Short Walk to Freedom

It was clearly and firmly stated to all prisoners that Parole was no free ticket out of prison. US Parole Officer Paul J. Gernert, “US Parole Officer Summarized Activity Report, October 19, 1953, to March 25, 1954,” April 5, 1954

The approaching end of the American occupation raised interdependent political and legal questions that would determine the fate of the three hundred– odd remaining Landsberg prisoners. Was it politically feasible for the United States to expect either the Interim Mixed Board or its successor, the Mixed Parole and Clemency Board, to continue its operations into the late 1970s or early 1980s, when the sentences of the last supervised parolees would expire? If not, would the West German government, perhaps through another negotiated agreement, finally accept the validity of the tribunal judgments and agree to supervise Landsberg prisoners and parolees until their sentences expired? Or was it the responsibility of Britain, France, and the United States to completely empty their prisons before or shortly after the 1955 transition? These were political questions. Yet, in practice, these questions were subsumed into still a larger question that tied the new direction of American war criminal policy after 1953 to what had come before: were the war criminals the same as “normal” criminals, or was there something so fundamentally different about the scale or scope of their crimes that they existed outside the norms and customs of the American penal system? From October 1953, when the Interim Mixed Board heard its first petition, until May 1958, when the last Nuremberg war criminals passed through Landsberg’s gates as free men, American policymakers in Bonn and Washington increasingly decided that the war criminals were not so different from every other prisoner in the United States. Before 1953, as McCloy and others argued, 231

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it was only fair to allow Germans convicted at Nuremberg to appeal their sentences. Moreover, it was only right to permit the old and the sick compassionate releases on medical grounds. McCloy, his staff, and his successors perceived these concessions as not only moral and just, but fundamentally American. This mutually reinforcing bureaucratic and moral logic required other concessions after 1953. Prisoners in the United States were entitled to parole hearings and a system of supervised release, so the Interim Mixed Board and Mixed Board had to fulfill this function as well. So long as a given prisoner was well on the path to rehabilitation and rejoining West German society as a productive and law-abiding citizen, he should have his chance at freedom. But what did it mean to “rehabilitate” a war criminal?

th e i nteri m mi xed p aro l e and cle m e n c y b o a r d In July 1953, HICOG began vetting “men of real stature” with no prior connections to the war crimes trial program to serve as the three American representatives on the Interim Mixed Board. On October 19, Conant announced his selections to the German and American press.1 To lead the Interim Board, Conant chose a former colleague: Harvard University treasurer Henry L. Shattuck. Aged seventy-three at the time of his appointment, Shattuck was a lawyer who had served five terms in the Massachusetts House of Representatives prior to the Great Depression and an additional two terms on the Boston City Council in the 1930s and 1940s, but had no documented experience in criminal law or parole matters.2 Apart from his relationship with Conant, Shattuck’s chief qualification was his part-time service on the US Civil Service Commission Loyalty Review Board from 1947 to 1953, which adjudicated individual cases of “disloyalty” uncovered by the Federal Bureau of Investigation’s search for evidence of communist subversion or sympathies among civil servants.3 Shattuck’s colleagues on the Interim Mixed Board, while representing a variety of backgrounds and experiences in foreign affairs, were also inexperienced in clemency and parole matters. Edwin A. Plitt was a career Foreign Service officer who had overseen the US Embassy in German-occupied Paris from 1940 to 1941, and served in Washington from 1941 to 1945 as chief of the State Department’s Special War Problems Division effort to repatriate enemy nationals to their home countries and American citizens in enemy states back to the United States. Following the war, Plitt served on the joint State and War Department mission to liberated prisoner of war and concentration camps in Europe before postings to Bern, Switzerland, and Tangier, Morocco, rising by 1950 to the position of president of the International Commission of Control

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of the International Zone of Tangier before being named to the Interim Mixed Board in 1953. Plitt remained in his position as the American representative on the four-power Mixed Parole and Clemency Board until June 1956.4 The third American member of the Interim Board was General Walter J. Muller, a former supply officer on General Patton’s staff during the war and the military governor of Bavaria from October 1945 to November 1947. From 1951 to 1953, Muller served as the deputy chief of staff for logistics and training in the NATO Allied Land Forces, Central Europe, before his assignment to HICOG.5 The two West German representatives appointed to the Interim Board by Adenauer were both veterans of the German judiciary, although their careers had taken radically divergent paths. Dr. Emil Lersch’s appointment represented continuity: born in 1879 and trained in law under the Kaiserreich, Lersch was both a prosecutor and judge at the Landgericht (Munich District Court) during the Weimar Republic before serving on the Reichsgerichtrat (Reich Supreme Court) from 1933 to 1945, which required membership in the Nazi Party. Following the war, Lersch took up a similar position on the Bundesgerichtshof (West German Federal Court of Justice) from 1950 until his retirement in 1952.6 Dr. Hans Meuschel’s legal career, on the other hand, was derailed by the Nazi dictatorship in 1933 when he was forced to resign his position as a public prosecutor because of his Jewish heritage. Following the war, Meuschel re-­ entered the legal profession, serving as a senior state prosecutor in the early 1950s in Baden-Württemberg in trials of Gestapo officers that had organized or assisted in the deportation of Jews, a duty for which he received public abuse from hostile locals. At the time of his appointment to the Interim Board in 1953, Meuschel had risen to the rank of president of the state court of Landshut, Bavaria.7 While the German amnesty lobby had put forward its own list of names, these were ignored in favor of Lersch and Meuschel, reflecting the shrinking political power of the movement following Adenauer’s 1953 reelection.8 Given the still-recent controversy over McCloy’s 1951 rulings, organizations such as the World Jewish Congress (WJC) were decidedly skeptical about yet another round of clemency and parole reviews. In November 1953, Nehemiah Robinson, WJC acting director of the Department of International Affairs, sent a lengthy cable to Secretary of State Dulles (which garnered national newspaper coverage) enumerating the Congress’s concerns about the new Interim Mixed Board.9 Robinson noted that McCloy’s Advisory Board had, because of its use of clemency as “corrective justice,” implied that the existing

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legal system was unfair and illegitimate. Indeed, McCloy’s 1951 clemencies had “served to strengthen the position of the neo-Nazis who claim that the sentences of the Allied tribunals were motivated more by ‘vengeance’ than by the dictates of justice.” Further acts of leniency as contemplated by the Interim Board “cannot serve any other purpose than totally to discredit the actions of these courts as well as the whole philosophy which underlined the necessity of adequate punishment of those who committed crimes against humanity or war crimes.” The Nuremberg prisoners “bore the primary responsibility for the criminal acts of the Nazi regime, and further clemency in their case, after their convictions have already been reviewed time and again, cannot but weaken seriously the principles upon which the Charter of the International Military Tribunal and Control Council Law No. 10 were based.” In closing, Robinson reminded Dulles of the recent proclamation by the Holy See that “the punishment of war criminals is an inescapable duty of the civilized world.”10 In response, Robinson received assurances from HICOG legal advisor John Raymond that the Interim Board would be “expressly told that it is not to consider the propriety or legality of the trial proceedings, guilt, or sentence of a prisoner.”11 As in previous sentence reviews, HICOG officials such as Raymond had apparently missed the point of the vocal criticism directed against their policies: the fact that the Interim Mixed Board was statutorily forbidden from rationalizing their future decisions in any way that would tend to repudiate a given criminal’s guilt did not preclude the appearance that a given criminal’s sentence had, in fact, been repudiated. Robinson and others were concerned primarily about the broader public and institutional perceptions about the validity of the Nuremberg settlement, not just in Germany but around the world, while HICOG legal officials viewed the outcome of individual case reviews as a private matter of restorative justice. Yet regardless of the assurances Robinson received about the propriety of the new series of sentence reviews, Conant and Shattuck were more concerned with the political aspects of the sentence reviews than McCloy ever had been. Delivering an oral history of the Interim Mixed Board before the Massachusetts Historical Society in 1964 based on his own recollections and documents in his possession, Shattuck described his and Conant’s thinking at the time: During the summer of 1953, Konrad Adenauer was up for re-election as Chancellor for a second four-year term, and the plight of the prisoners was being made a campaign issue. The purpose of setting up the American, British, and French Boards was to meet this issue. In

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order to show that the Germans were not being given what in political circles is called “the run around,” we were urged to make some substantial progress before Christmas of 1953. . . . At that time we were trying to strengthen Germany as a bastion against Russian aggression and to heal the wounds of war.12 As we have seen, this is not how or why the Interim Board was constructed; but Shattuck’s reminiscence reveals much about the ends to which he and his successors politicized these institutions. Evidently relishing the memory of putting his own stamp on US foreign policy (although the war criminals issue’s importance in West German politics was waning in 1953), Shattuck continued, “It was my belief . . . that the continued maintenance of a U.S. prison in the heart of Germany would be a constant cause of irritation and that within a short time after the expected Peace Treaty we should get out of the prison business. . . . And it was my policy to move forward steadily and circumspectly toward this end, keeping at all times a weather eye out for possible attacks from the Germans on the one hand and the American public on the other.” Shattuck was not particularly concerned about putting his own stamp on the Interim Board, since “the worst that could happen to me was to be fired” and sent back to Harvard.13 When he retired from his leadership position on the Interim Board in November 1954, Conant remarked in a congratulatory letter, “As to the significance of what the Board accomplished under your skillful guidance, I need not repeat what I have said to you more than once. We should have been in very great trouble, indeed, in renegotiating the so-called Bonn conventions [ following the French Parliament’s delayed ratification in early 1954] if you had not made such great progress with the war criminals problem.”14 Emil Lersch, who, like Edwin Plitt, would continue to serve on the fourpower Mixed Parole and Clemency Board after 1955, also openly expressed his desire to move on from the contentious war criminals issue in an address at the January 1954 HICOG Parole Supervisors Conference. Speaking on the Interim Board’s behalf, Lersch confronted the seeming contradiction in applying the norms of progressive parole systems (with their focus on repentance and rehabilitation) to a class of criminals that refused to acknowledge the legitimacy of their convictions. The role of the Interim Board was to “separate the wheat from the chaff,” making “a distinction between acts of abomination, acts which were totally lacking in human feeling and against natural law, and acts which were committed in consequence of the times and of the circumstances . . . between the criminal by nature and disposition and the per-

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son who became a criminal through confusion and error.” Moreover, the Interim Board had to complete this task in the full glare of public opinion and in the absence of many traditional indicators of rehabilitation. For Lersch, “the blessing of the parole system” lay in the “help the parolee is being rendered in re-entering the social life” of the community. “Moral readjustment” was often unnecessary or irrelevant, since very few if any of these parolees were “asocial” by disposition—they were men and boys with generally few moral failings whose crimes were grounded in tragic wartime circumstances outside of their control. Lersch emphasized to his audience that they, as parole supervisors, had an important social function in serving as mediators between the embittered parolees, who represented German resentment over Allied occupation, and the bright future of a prosperous, free, and democratic Germany, “clearing away . . . the debris of an epoch of time still confronting us with problems.”15 Much like McCloy’s Advisory Board, Conant’s Interim Mixed Board was “forbidden to call in[to] question the validity of convictions or sentences.” The Interim Board did consider, however, evident disparities between sentences, as well as the personal conduct of the applicant, their age, physical and mental condition, potential for gainful employment, and “other factors bearing on rehabilitation.”16 Some of these “other factors” included the likelihood that a given prisoner would become a burden to the state and the extent to which a prisoner’s release would “outrage public sentiment”—a novel expansion of the traditional evaluation of whether parolees posed a danger to society. Perhaps unsurprisingly for a parole institution grounded in the norms and practices of the American penal system, the list of criteria the Interim Board generated to guide its determinations on parole applications was preoccupied with the question of recidivism, which, on the list of twenty-one questions the Interim Board considered for each applicant, appeared multiple times explicitly (“Is he likely to recidivate?”) and implicitly (“Would further confinement serve any reasonable purpose?” “Was he very young when the crime was committed?” “Was there any previous criminal record?”).17 This framing resulted in systemic advantages for the Nuremberg prisoners, as the context for their offenses was unlikely to reoccur. Notably absent from the list of twenty-one questions the Interim Board generated to regularize its evaluations of parole applications was any consideration of whether the prisoners had expressed contrition for their crimes. This was a standard element of American parole hearings at the time that also appeared prominently in the Interim Board’s founding charter. As Shattuck noted in a memorandum to HICOG legal advisor Knox Lamb, because many of the

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petitioners still argued that their actions were justified because of superior orders or that their convictions were illegitimate, the board would be forced to reject most of the petitions for clemency or parole out of hand if the standard consideration of repentance was included in the parole criteria.18 Lamb thus urged the Interim Board to prioritize evaluations of prisoner conduct in Landsberg over expressions of remorse when considering grants of parole. Instead, the Interim Board eliminated remorse entirely from petition evaluations.19 A further interpretation of the Interim Board’s founding orders, as offered by Lamb in February 1954, also significantly weakened Conant’s prohibition against directly or indirectly challenging the validity of the Nuremberg tribunal verdicts. Paragraph 7 of the Interim Board’s charter stated, “Neither parole nor clemency involves consideration of the propriety or legality of the trial proceedings, guilt, or sentence which are final and conclusive.” As Shattuck informed the other members of the Interim Board on February 9, 1954, however, Lamb had advised him that this statement only forbid “finding that a sentence was illegal, or beyond the power of a court to impose, or an improper exercise of its discretion.”20 Beyond this, the Interim Board had broad discretionary powers to revise sentences in any way that it saw fit, even if its rationale for doing so challenged the factual basis of the verdicts. Also like Justice Peck’s panel, which met hurriedly in the summer of 1950, Shattuck’s Interim Mixed Board was pressed for time, with hundreds of cases to consider. Unlike Peck’s panel, however, which was constricted administratively by the need to complete the reviews and recommendations before the end of Peck’s summer recess from the New York Court of Appeals, Shattuck’s panel had no pressing deadlines to meet. Still, it opted not to consult the relevant case files. Writing to his fellow board members on February 19, 1954, Shattuck observed that there were over one hundred clemency petitions to consider, most from prisoners convicted at the Dachau trials but also some from the Nuremberg trials. Noting that the evidentiary exhibits and testimony in these cases “runs into many thousand pages” it could take years for the Interim Board to digest the relevant information and issue its findings. Would it not be better, Shattuck asked, “to adopt a less time-consuming plan designed to give at least a modicum of relief quickly”? Since many of the petitions concerned life sentences or sentences of twenty to thirty years, Shattuck proposed granting “immediate relief” through adjusting sentences by five to ten years, since, after all, there was little difference between a life term and a twenty-five or thirty-year sentence, and such adjustments “could be made without intensive examination of the records.” The prisoners would likely be more grateful

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for smaller immediate reductions that rendered them eligible for parole than for a greater act of clemency over a longer time frame, and the board would avoid getting “bogged down in intensive study of a few cases.”21 There are two points of broader importance to draw from Shattuck’s rather frank suggestion. First, although Shattuck’s proposal on its face appears as the purest form of political expediency (free as many prisoners as possible as rapidly as possible), it was still framed by his evident concern about a lack of consistency in sentences imposed across cases. Based on a cursory examination of the files, Shattuck determined that there was little rationale for the disparities in sentencing imposed either by the original tribunals or McCloy’s and Handy’s 1950–1951 sentence reviews. Second, although Shattuck’s proposal to proceed as rapidly as possible was framed as a suggestion and there is no conclusive documentation in Shattuck’s files or the Interim Mixed Board’s minutes that it was formally adopted, there is strong evidence that it was nevertheless a guiding principle because from March 1954 onward, the Interim Board rapidly churned through the clemency petitions. Shattuck later remembered that “clemency recommendations were for reduction of sentence to a point which would make the prisoner eligible for parole consideration either immediately or within a few years,” and were “primarily based on the opinion that no useful purpose would be served by much longer confinement within prison walls and that a period of parole before a good-conduct release would be a bridge between prison life and complete freedom.”22 Reflecting on his leadership of the Interim Mixed Board, Shattuck emphasized the important conceptual difference between parole and clemency, given the Interim Board’s preferences to embrace the former and reject the latter. “Parole,” Shattuck wrote, “was not a form of clemency and not based on compassion or mitigation. It did not revoke or reduce the sentence. The granting of parole merely gave the prisoner permission to serve part of his sentence outside prison walls” while still under the supervision of state authorities. The near-exclusive focus on the rehabilitative aspects of parole resulted in a further normalization of the process by which the war criminals under HICOG or army jurisdiction appeared before the Interim Board, whose deliberations were fundamentally future-focused: the potential of the prisoner to seamlessly reintegrate into West German society came to matter more than the moral or legal weight of the crimes they had committed a decade ago. After all, it was difficult to argue that any war criminal in American custody, but particularly the doctors, judges, and generals whose relationship to murder was more impersonal than some of the other defendants’, was likely to reoffend in a democ-

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racy. As Shattuck later admitted, “The main question for consideration in granting parole was whether the prisoner, if paroled, would behave himself and comply with the parole conditions. The acts for which the prisoner was convicted . . . were not of primary importance.”23 While the Interim Mixed Board’s procedures were certainly legally justifiable, there remained voices of concern and even dissent in the State Department about the apparent drift of American policy toward additional leniency. John Auchincloss of the Office of German Affairs, for instance, repeatedly cabled Bonn with his concerns that a narrow focus on comparative legalisms risked subsuming the broader point of the Nuremberg project. Realizing that he was raising “uncomfortable” questions, Auchincloss wrote in January 1954 that “the men now serving sentences for war crimes are doing so because we believed at one time that they deserved to be punished for what they did. Do we still believe this, or do we not?” If the United States no longer believed in Nuremberg, Auchincloss wrote, then HICOG should simply release everyone immediately, but if US policy remained committed to upholding the validity of the Nuremberg trials, then policymakers should “stick to it, for to act against it would be cynical . . . or weak.”24

interi m bo ard case ruli ng s The Interim Board’s objective of transferring as many prisoners as possible from incarceration in Landsberg to supervised parole status was apparent in its rulings. When the Interim Board first convened on November 1, 1953, there were twenty-seven HICOG prisoners still in Landsberg and five on medical parole. By October 28, 1954, the Interim Board had paroled seventeen of the twenty-seven remaining HICOG prisoners while deferring action on the five medical parolees, since they were already on supervised release.25 Comparatively, in the same period, the Interim Board placed 176 out of 282 US Army prisoners on supervised parole, recommending an outright, unsupervised release in only two instances. Of the 176 paroled US Army prisoners, the Interim Board had recommended just enough clemency for seventy-seven of these prisoners to render them immediately eligible for parole.26 Indeed, because of the time-sensitive nature of parole applications, which required a post-release employment offer, the Interim Board prioritized reviewing them over clemency petitions. This in turn encouraged inmates to apply for parole in order to skip ahead in the application queue.27 The State Department expressed great satisfaction with both the Interim Board’s hard work and how little news of it appeared in the media.28 Given the existence of multiple previ-

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ous HICOG clemency investigations for each prisoner, the Interim Board generally denied applications for full clemency outright, noting that no new “mitigating circumstances” justified further revisions to the sentences.29 On the Nuremberg prisoners’ petitions, the Interim Board often ruled unanimously. Nevertheless, there were notable disagreements between the German and American representatives on issues of remembrance, honor, and the nature of criminality despite Shattuck’s observation at the board’s first meeting that it was “not composed of Americans and Germans, but of human beings working together for a common purpose.”30 In June 1954, the Interim Board spent multiple sessions considering the clemency petitions of former Wehrmacht generals Wilhelm List and Walter Kuntze, who had both been sentenced to life terms during the Hostages Trial for their culpability in Balkan atrocities, and whom McCloy had denied clemency in 1951. When the Interim Board considered their cases in 1954, Kuntze and List were both in their early seventies, and had already been released from Landsberg on medical parole in December 1952 and February 1953, respectively. While all five members of the Interim Board agreed that both List and Kuntze had “favorable” institutional conduct records, the three Americans voted to deny their applications, arguing that the grants of medical parole were “already some measure of relief” from the strictures of confinement and that given their high rank and clear culpability in the murder of thousands of innocent civilians in the Balkans, there were no mitigating factors that warranted further clemency.31 In dissent, Lersch and Meuschel raised familiar arguments objecting to the unjust treatment of Wehrmacht officers by the Allied occupation. Hitler, not List or Kuntze, had ordered the implementation of a 100:1 reprisal shooting policy to quell partisan activity in the Balkans. Their decisions to go along with these orders were not indicative of any “fundamental contempt for human rights,” but rather a manifestation of “an extremely complicated and critical military situation” interacting with their lifelong dedication to the chain of command. Both Kuntze and List had “not act[ed] dishonorably as in the case of a criminal murderer or ruthless opportunist” but rather found themselves “in a tragic chain of circumstances bringing about a genuine collision of duties,” namely, balancing their duty to obey orders and protect the lives of their men through suppressing partisan activity with the requirement to uphold the laws of war and basic human decency. After all, both Kuntze and List were “gentlemen,” of “irreproachable character and true Christian faith” who “never represented or advocated nazi ideologies.” While medical parole was a “relief” for the petitioner’s bodies, their minds and souls continued to suffer under the

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dishonor of their convictions, for “an erroneous decision, which under the clear light of objectivity is now debatable.” HICOG, after all, had already freed other high-ranking officers to much public acclaim and “violations of international law are not without precedent in military history.” List and Kuntze, they concluded, should not for one moment longer suffer the “depressing feeling of being placed on the same level as the worst criminals.”32 Kuntze and List were not alone; in the Nuremberg cases the Interim Board preferred parole over clemency to such an extent that it explicitly directed clemency petitioners to apply for parole instead. The Interim Board rejected the petitions of Gerhard Rose and Walter Haensch because, at the time of their application, they were already eligible for parole but had “not seen fit to ask for such relief.”33 In rejecting the final clemency petition of Siegfried Handloser, a former physician who had already been granted both a sentence reduction by McCloy and medical parole by Conant, the Interim Board offered to waive the normal six-month waiting period between filing petitions for clemency and parole if Handloser (who was eligible for parole release) wished to press for parole instead of clemency.34 This waiver of the mandatory six-month waiting period between petitions in order to transition misguided clemency petitioners into successful parolees was a standard practice, supported by the HICOG general counsel’s office.35 In a separate case, the Interim Board rejected former Einsatzgruppen leader Walter Blume’s May 1954 clemency petition because he would be eligible for parole within a few months. The board unanimously voted to parole Blume (who had been convicted of murdering at least two hundred innocents and had likely killed hundreds more, but was spared the hangman’s noose because he found the work distasteful and requested a transfer) in November, with Shattuck arguing that it was unclear why Blume should remain in prison when fellow Einsatzgruppen officers Willi Seibert, Eugen Steimle, and Erwin Schulz had already been released.36 In an example of the consequences of a self-perpetuating clemency process, the Interim Board granted former general Hermann Reinecke (the officer who had exercised authority over the murderous Soviet POW system) just enough clemency from his life sentence to make him immediately eligible for parole. Reinecke’s case had appeared so clear-cut to McCloy that he was one of the few prisoners whose sentence McCloy upheld in 1951. Despite the rejection of all previous clemency petitions, however, the Interim Board cited “a material disparity between [Reinecke’s] sentence and others imposed for similar offenses,” particularly those of Walter Warlimont and Erhard Milch, whose life sentences McCloy had reduced to eighteen and fifteen years, respectively,

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and who were already eligible for parole.37 The Interim Board performed no in-depth analysis of the trial exhibits or evidentiary records; it merely concluded that Milch and Warlimont were of comparable rank, and since they had already received clemency Reinecke was entitled to it as well. Thus, the unfair “disparity” in Reinecke’s sentence was reduced at a stroke without reference to whether Reinecke’s actions had warranted a life term in the first place. The Interim Board granted Reinecke’s subsequent application for parole immediately and unanimously.38

o n paro le Despite its unprecedented nature, the parole system for the Nuremberg prisoners was rather conventional, an intermediate step between imprisonment and freedom wherein HICOG assigned German case workers to regularly evaluate the progress of a given parolee’s rehabilitation. As Alfons Wahl, the liaison between the US parole officer and the West German Ministry of Justice, put it, this jointly administered parole program was a “bridge leading into liberty” for the Landsberg prisoners, with restrictions placed on parolee freedom “not to torture the released person but to assist his reincorporation in the free life.”39 As a part of this closely monitored transition, HICOG or another appropriate governing authority (if a parolee received permission to move to a different occupation zone) imposed limitations on parolees’ freedom of movement, employment, and political expression as a condition of their release. In establishing this system, the Interim Board drew on American state and federal precedents. For instance, in interpreting the admonition in its founding charter that “parolees shall not, during the period of parole, engage in any political activity,” the Interim Board drew on the distinctions between “passive” and “active” exercises of civil rights as distinguished in American jurisprudence by the 1939 Hatch Act, which restricted (and continues to restrict) civil servants from engaging in overtly political activities. The parolees could thus vote, join political parties, and listen to political speeches but not run for office themselves, write for or edit a partisan publication, or solicit votes for a party. US Parole Officer Paul J. Gernert went even further in advising his charges that only voting was allowed, and all other political activity forbidden. Like similar limits on political liberties or speech enshrined in American denazification policies or the West German Basic Law, HICOG put these in place to “safeguard against the re-emergence of a dangerous political doctrine.” But the actual enforcement of these prohibitions was inconsistent at best.40 Since the Landsberg prisoners were eligible for good-conduct release after

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having served two-thirds of their sentences but parole after serving one-third, any restrictions on their freedom remained in place only until the parolees reached the two-thirds mark, whereupon they were free, apart from the threat that if they reoffended during their good-conduct release they were liable for re-arrest. If a prisoner had served the requisite third of their sentence, the application process was generally pro forma, with the Interim Board rapidly and unanimously approving nearly every parole application that came across their desks. In fact, in Henry Shattuck’s personal files, there is only one example of a rejected parole application pertaining to a Nuremberg war criminal: the Interim Board unanimously rejected former judge Oswald Rothaug’s parole request in May 1954 because his employment plan assumed a resumption of his legal career, which the board deemed “definitely not acceptable” given his active participation in the judicially sanctioned murders of the Reich’s wartime courts.41 As Rothaug’s example illustrates, although there were general prohibitions on a parolee’s engaging in political activity, the Interim Board tailored these and other restrictions to each prisoner.42 Former physician Fritz Fischer, for example, who had conducted medical experiments on concentration camp inmates, was allowed post-release employment as a consultant for the pharmaceutical firm C. H. Boehringer Sohn, but with the stipulations “that he will not be active as a physician, will not take part in activities such as selling or promoting the sale of medical or pharmaceutical goods, will not visit hospitals, will not visit physicians in connection with their practice, and will not draft advertising literature or pamphlets, or write articles for publication.” Fischer thus spent his days scanning periodicals for news of any scientific or medical developments within his company’s purview, after which he forwarded the news report to the relevant department. Fischer reported to his parole supervisor that he was “very contented” with this work and preferred its stability to the alternative of opening a private medical practice, which Fischer was mistakenly under the impression was an option. Since Fischer’s primary residence and family were in Detmold, in North Rhine-Westphalia, and his employer’s headquarters in Ingelheim am Rhein, some three hundred kilometers away, he was permitted to make the journey by train once every two weeks by the most direct route, provided his parole supervisor approved of the travel plans. These restrictions applied from the start of Fischer’s parole in March 1954 until July 1955, which marked the completion of the requisite two-thirds of his sentence.43 In the case of former deputy chief of OKW operations staff Walter Warlimont, paroled in June 1954, the Interim Board eased the restrictions on his ability to

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publish writings of a political or military nature in order to better facilitate his continued employment with the US Army’s Historical Division in producing operational histories of World War II that drew on German field experiences.44 Supervising parolee compliance provided another arena for American– West German culture clashes on matters of legal and organizational principle. With an eye to the eventual end of the American occupation, Conant’s 1953 order obligated the West German government to support the supervision of all war criminal parolees, extending the supervisory function the West German Ministry of Justice already exercised over parolees convicted of petty crimes by American occupation courts. US Parole Officer Paul Gernert, responsible for liaising with the West German government in selecting German parole supervisors, complained early and often that “the German authorities had no conception of parole supervision.” At the first meeting on the parole super­visory program between Gernert, Prisons Division head Richard Hagan, and representatives from the West German Foreign Office, Gernert became so exasperated with the lackadaisical attitude of the German attendees he resorted to threatening that without proper parole supervision “we could not proceed in paroling war criminals.” While Gernert’s self-described “blunt statement . . . produced wonders,” he continued to express frustration with the West German parole supervisors for the first year of the program.45 None of the West German parole supervisors had any prior experience, resulting in numerous irregularities. Most parole supervisors wished to work only part time, in one region, or supervise only one specific inmate. In a number of cases, as in that of Dr. Theodor Knapp, who supervised former Einsatzgruppen officer Eugen Steimle, supervisors were long-standing acquaintances of their charges.46 Gernert complained that parole supervisors conducted poor investigations into the feasibility of the parole plans submitted by the Landsberg inmates, resulting in difficult readjustments when prisoners could not find work as planned.47 Gernert also noted that his parole supervisors often submitted vague and perfunctory reports about the activities of their charges, visited them infrequently, and did not regularly make contact with the community sponsors who were meant to serve as parole supervisors’ “eyes and ears.”48 In one instance, Gernert reprimanded former head of the RuSHA Otto Hofmann’s parole supervisor upon discovering that, more than two months after Hofmann’s release, his supervisor had not yet visited him at his place of residence or employment.49 Such slap-dash supervision is perhaps understandable considering that the parole supervisors performed their work without compensation on a volunteer basis. Indeed, as the ranks of prisoners on parole

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or good-conduct supervision swelled to over two hundred by 1956, the forty-­ nine German parole supervisors themselves became an interest group advocating for first the Interim Board and then the Mixed Board to reduce the sentences of the parolees further in order to lighten their caseloads.50 Parole supervisors were evidently lax in allowing their parolees to change employment at will, often without permission, and regularly failed to properly investigate the suitability of a parolee’s new employment given the restrictions placed on their parole. Parolees, meanwhile, routinely changed their place of residence without approval, sometimes because their approved residences were in substandard condition (stemming from the failure of parole supervisors to properly vet a given parole plan) or because they wished to be closer to family members or employment. Parolees on medical release often did not file the required doctors’ reports documenting their illness or infirmity, which parole supervisors did not regularly follow up on.51 Many of these incidents constituted parole violations, but Gernert and other HICOG officials were reticent to punish parolees, attributing these irregularities to ill-trained or careless supervisors more than to parolees ignoring the conditions of their release. For their part, parole supervisors noted that since they operated only on an informal basis and lacked credentials or legal authority, they were often rebuffed or ignored by municipal governments and private employers when they attempted to investigate the activities and associations of their parolees, a condition not remedied until late November 1954.52 Once released, paroled prisoners repeatedly sought to escape the continued strictures of their supervision. In evaluating the first parolees in December 1953, a group of thirty-nine that included former WVHA administrator Karl Sommer, American prison officials noticed a curious phenomenon. Following their release from Landsberg, these prisoners, per the established guidelines, proceeded to Camp Friedland, a processing center in Lower Saxony established to aid recently released “returnees”—the tens of thousands of German prisoners of war freed by the Soviet Union in piecemeal fashion up until 1956. Since Camp Friedland had the resources and experience to shelter the transitioning parolees for a short period while their new living arrangements and employment situations were finalized, HICOG officials saw a brief stay there as a logical staging ground for the prisoners’ return to their communities. Yet once in camp, local representatives of the Verband der Heimkehrer, Kriegsgefangenen und Vermisstenangehörigen Deutschlands (Association of Returnees, Prisoners of War, and Families of Missing Persons in Germany [VdH]), a nationalist advocacy organization for veterans and returning prisoners of war, steered

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the parolees to a friendly doctor who promptly declared them medically unfit to work, which entitled the parolees to both financial compensation from their municipal government and exemptions from the conditions of their parole. US officials caught on to the scheme when otherwise healthy inmates all reported previously unknown infirmities at the same time, and only resolved the situation through terminating their working relationship with Camp Friedland and sending a harsh rebuke to the German Foreign Office over the matter.53 As Gernert knew, this was a sensitive issue within his own ranks, as at least one “conscientious” parole supervisor, Günther Ladwig, operating in and around Cologne, was himself a prisoner of war in the Soviet Union and was adamant that parolees under his supervision not have any contact with the VdH or receive returnee benefits.54 A further report from Gernert on October 8, 1954, explained that home visits had revealed that the West German government was regularly paying “large sums of money” to the parolees as compensation for their time in prison: one DM per day for every day prior to 1949 and 2 DM for every day after 1949, with most parolees receiving lump sum payments of between 4,300 and 5,000 DM, in addition to one-time resettlement grants of 500 DM from their municipal governments.55 Tellingly, these payments were dispersed via funds allocated through the 1952 Lastenausgleichgesetz (West German Equalization of Burdens Law) and other subsequent acts, designed to compensate returning German POWs from the Soviet Union and other ethnic-German refugees expelled from Eastern Europe in the immediate aftermath of the war. With the West German government following the lead of returnee organizations such as the VdH, the paroled war criminals from Landsberg were thus accorded the same place of reverence in West German political discourse as the illegally held prisoners of war in the Soviet Union, while the influx of funds helped them secure comfortable living conditions upon their release. Although Gernert continued to remind the German parole supervisors that their charges should not be treated as returnees, this had little impact, as local officials and veterans’ organizations continued to encourage the parolees to evade the conditions of their parole whenever possible.56 Indeed, the practice of equating returning prisoners of war with war criminal parolees was so ubiquitous that former RuSHA head Otto Hofmann’s parole supervisor went so far as to write to Gernert asking him to intercede with the West German government to make sure that Hofmann received the “discharge payment and welcome bonus” that Hof­ mann was “entitled to,” since, having not been processed through the VdH-­ dominated Camp Friedland, Hofmann had not been registered as a returnee.57

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Conant and his staff endeavored to draw as little attention as possible to the release or parole of war criminals, forgoing any public statements to protect both HICOG and individual prisoners from negative publicity.58 In a June 9, 1954, memorandum to Prisons Division head Richard Hagan, Knox Lamb of the HICOG general counsel’s office enumerated thirteen separate reasons for keeping the release of parolees a secret, which included protecting the “privacy” of the parolee while eliminating distractions to rehabilitation, preventing “exploitation of parolees by neo-Nazi and Communist groups in Germany” or other “unscrupulous persons,” and avoiding “re-injection of political heat into a pure justice matter.” Lamb elaborated on HICOG concerns about the risks of undue attention for parolees, invoking the same prejudices against gay civil servants that had driven the recent Lavender Scare in the United States, writing, “The war criminal parolee, as every other parolee and like the homosexual . . . has a weakness which is subject to exploitation. . . . If the parolee is not protected by the paroling governmental authority, the entire purpose of parole is defeated.” Particularly in West Germany, Lamb continued, “where the very issue of conviction is a political football and the occupied persons desire to discredit the basic program of conviction and execution of sentences at any or all stages of the justice process,” it was important to protect the parolees from becoming pressured into joining these debates. Their rehabilitation was best accomplished in private.59 Subsequent controversies merely reinforced HICOG officials’ view that keeping the releases quiet was the best course of action, since the few parolees the media did manage to uncover received embarrassing levels of attention. In July 1954, former field marshal Erhard Milch was spotted registering at the local public assistance office near his residence in Ratingen, a working-class suburb of Düsseldorf. Photographers, likely alerted to his presence by local officials, mobbed Milch several days later as he was shopping with his niece, with whom he was residing at the time. In the weeks that followed, Hagan observed, “Reporters camped out on Milch’s doorstep” and “haunted” his route to and from work, ceaselessly requesting interviews, and hindering Milch’s post-­ release supervision.60

p aro le superv i so r o b serv ati o ns If at trial and in their petitions for clemency and parole the Landsberg prisoners had minimized their crimes and highlighted their own suffering, the reports filed by their parole supervisors erased their last vestiges of criminality, leaving only tales of broken men striving to better themselves in an uncertain

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world. Given the institutional grounding of the parole process in American conceptions of rehabilitation, this was only natural, once again raising the question that HICOG officials had been indirectly pondering since 1949: what was the appropriate criteria to judge whether a Nuremberg war criminal, whose crimes were firmly grounded in the context of a total war waged by a brutal dictatorship, had been properly rehabilitated? Since their collective offenses were so monumental in scale or scope and recidivism so unlikely, all that remained for parole supervisors to evaluate were demonstrated personality traits and the presence or absence of compliance with the limited restrictions placed upon a parolee’s freedom. The all-too-brief parolee reports that Gernert repeatedly lamented, then, were weighted toward chronicling the banalities of life on parole, highlighting individual tales of stoic suffering under adverse circumstances. Former WVHA official August Frank’s file described a man struggling to find meaning or value in his post-release employment as a part-time tax advisor in an overcrowded job market, having once managed the office responsible for the entire budget of the SS concentration camp empire. At the same time, Frank struggled to adjust to his new housing conditions, lodging with an obnoxious and opinionated nouveau-riche brother and sister-in-law in Augsburg while his family (unable to join Frank because of an ailing mother-in-law and the daughter’s inability to find work) languished in poverty in rural Niederaudorf, over one hundred fifty kilometers away. The situation worsened appreciably when Frank moved a further three hundred kilometers northwest to Frankfurt am Main in search of more employment opportunities, as Frank’s health and spirits deteriorated noticeably under the strain of less frequent visits to his family. Nevertheless, by October 1955, Frank’s parole supervisor was pleased to report that Frank had become a new man upon finding a sales job, and cheered Frank’s journey in overcoming the obstacles placed in his path.61 Even failure had its rewards. Former WVHA official Heinz-Karl Fanslau founded a produce wholesale business in Essen of the kind his father and brother once ran in Dühringshof, which had been lost when the territory was ceded to Poland after the war. It failed within seven months, forcing Fanslau to obtain a sales position at a furniture distributor; but his parole supervisor and Gernert were impressed with his pluck, organizational abilities, and “remarkable initiative,” and endorsed Fanslau’s application for good-conduct release as soon as he was eligible.62 Candid conversations between prisoners and their parole supervisors revealed that Nuremberg parolees continued to reject their convictions. Former

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general Hermann Hoth, who because of his heart condition did not appreciate unscheduled visits from his parole supervisor, continued to proclaim his innocence while refusing to accept the legitimacy of any of the Nuremberg tribunals, telling Gernert that “it was time to end parole and release those still in prison.” The records pertaining to Hoth also demonstrated the unclear criteria for judging rehabilitation, since Hoth’s “embittered” attitude and refusal to come to terms with his conviction were brushed off as byproducts of his age and identity as a “professional soldier.” In fact, Hoth’s intransigence was rewarded with an enlargement of his designated parole area, so that he could fully enjoy his daily walks in the mountains without fear of violating his geographic restrictions, justified because “he is no danger to us.”63 For the Landsberg prisoners that obtained good-conduct or parole releases from McCloy and his successors, there was, at best, a circumscribed reckoning with their past criminal lives. Since they faced little public opprobrium in West Germany, were not required to atone or even feign contrition for their past crimes to leave Landsberg, and were generally men of some education and means, the largest obstacles facing the prisoners under supervised release were the shifting cultural mores of 1950s West Germany and their inability to regain their pre-incarceration social status. Former Einsatzgruppen commander Walter Blume’s parole supervisor, visiting him at a law firm in Hannover where he was employed in April 1955, found him “filled with bitterness” over the newfound independence of his wife who, “while still devoted to him,” held a higher-paying job. Moreover, since his parole restrictions forbade Blume from practicing law, his duties were limited to that of a clerk taking orders from the types of superiors who had “shied away” from executing orders from Blume during the war. He had done his duty and they had not, and yet in the new West Germany Blume was subservient to them.64 Indeed, the long separations between the parolees and their wives and children often led to a sense of dislocation upon their return, and uncomfortable cohabitations with children who no longer recognized them or spouses that had long since moved on. On his first visit to parolee Karl Mummenthey’s home in January 1954, a parole supervisor noted that Mummenthey “gave a nervous impression,” stemming from the fact that he had not found “the right connection to his family yet . . . especially the children were strange to him.”65 Far from struggling under the onerous burdens of a still vengeful occupying power, individual parolee files indicated that they lived normal lives under increasingly light and accommodating American and West German super­ vision. Karl Sommer’s parole supervisor agreed to no longer visit him at work,

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lest “his employer be reminded of the fact that he is a parolee.”66 Wilhelm List requested and received numerous suspensions of his parole restrictions in order to pursue months-long health treatments at distant medical retreats.67 Meanwhile, medical parolees such as Franz Schlegelberger received essentially no supervision at all from American or West German officials, so long as a family member mailed a once-per-month update of a single sentence to their parole supervisor indicating that their health was still poor. There were no real consequences if the monthly reports did not arrive as scheduled; the Parole Division completely lost track of Schlegelberger’s whereabouts from May to September 1952 and again from May to November 1955 when he stopped sending the monthly cards.68 Parole officers generally gave great latitude to their charges, even declining to punish or reprimand them when they violated travel rules. Walter Kuntze, whose heart disease was severe enough to earn him a “supervised” medical release in February 1953, managed to travel to East Berlin that June in the middle of the popular uprising against the communist regime there, ostensibly because his son was dying of a tubercular infection. Once Kuntze’s parole supervisor found out that Kuntze’s son was not as sick as Kuntze had made out, he attempted to cancel the trip, likely shuddering at the potential political consequences of a West German “fascist” and his entourage being seen by communist functionaries in the crowds of anti-communist dissidents. Kuntze had already left, however, and when his parole supervisor finally got in touch with him in East Berlin, Kuntze refused to return immediately to Hannover as directed. Kuntze’s real goal, it turned out, was to evacuate his wife and son from the eastern zone. With his true motives revealed, characterized by one parole supervisor as “the right thing,” Prisons Division head Richard Hagan merely urged Kuntze to return at “the earliest reasonable moment.”69 When parolee work or family obligations required travel outside of their designated release area, American and West German officials almost always allowed it. This was true even of purely social calls, although for former general Walter Warlimont, who found postwar employment writing operational histories of the German General Staff headquarters during World War II for the US Army Historical Division, the request to attend a November 1955 reunion at Karlsruhe celebrating the ten-year anniversary of American-German postwar collaboration proved a bridge too far once American Embassy investigations revealed that the guest list included other convicted war criminals.70 The US Embassy did grant the West German Defense Ministry’s request, however, for former field marshal Wilhelm List to attend a celebratory reunion spon-

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sored by the Association of Mountain Troopers at Mittenwald in June 1957 as “a guest of honor,” since List was “the most senior surviving ex-mountain trooper.” While Hagan noted that “the idea of a ‘medical parolee’ having the capability of attending such a meeting is somewhat peculiar and repugnant to the idea of physical condition which warrants such parole,” he and Gernert found no basis to deny their permission, so long as List did not make any political speeches at the event.71 Life went on. Parolees mourned the loss of deceased relatives and celebrated the weddings of their children; they requested and received exemptions from their parole restrictions to attend to the milestone events of late middle age. Former physicians Oskar Schröder and Karl Genzken remarried, Schröder to a nurse he had known for over twenty years and Genzken to the proprietor of the pharmacy in which he found post-release employment. Their parole supervisors both expressed enthusiasm for the marriages, noting that a firm grounding in a nuclear family was a positive sign. Although Schröder, like all the parolees, was strictly forbidden from engaging in political activities, his parole supervisor remarked favorably on his informal advisory relationship to the Theodor Blank Office, which advised the Adenauer government on policy questions relating to West German rearmament.72 Genzken’s road to rehabilitation was slightly rockier due to financial difficulties despite his interest in his new spouse’s pharmacy business: in 1955 a West Berlin denazification tribunal labeled Genzken a “major offender,” fined him 34,500 DM (the value of his remaining property in Berlin, which was subsequently seized by the local government), and stripped him of the right to vote for three years. He reduced his stress by indulging in recreational sailing, his favorite pastime.73 The files also documented the banal human frailties of the prisoners’ previous lives, as when Erhard Milch asked his parole supervisor to convince a wartime mistress to leave when she arrived at Milch’s doorstep unexpectedly after the media published his address. Milch was evidently concerned that, although he and his wife were separated, a formal divorce would reflect poorly on his parole record.74 Because the release conditions were not particularly onerous, and because the criteria for successful rehabilitation and reintegration into West German society were synonymous with the prisoners’ reconstitution of their prewar bourgeois status, West German and American parole officials were generally satisfied with all the “progress” their charges made under supervised release. Family and economic stability counted for far more than any reckoning with the past. In endorsing Oskar Schröder’s application for transition from parolee

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status to good-conduct release in November 1954, for example, his parole supervisor described his post-release life as admirably “care-free” and compliant, and hoped that Schröder’s recent marriage would be beneficial in his “trying to forget the past.”75 Other files illustrated that low expectations produced a self-fulfilling prophecy of progress. Listed by his parole supervisor as his “best parolee,” former WVHA official Georg Lörner was also described as “excellent,” “contented,” “sensible,” “very cooperative, open-minded, honest, truthful, and very industrious.” What had Lörner done to earn such high praise? After managing SS economic enterprises during the war, Lörner took courses on tax advising while in Landsberg and, following his release, pursued this profession successfully in Munich, visiting his wife and children on the weekends in Prien (an hour’s train ride to the southeast) until his son finished the school term, whereupon he moved them to Munich as well. Apart from this, Lörner avoided “political activities” and did not ask for special favors, demonstrating that “he is on the best way [sic] to completely adjust to society.”76 Even troublesome parolees who “required a firm hand” such as Einsatzgruppen commander Eugen Steimle (who had won a reprieve from the gallows in 1950 because of an error in one document submitted by the prosecution) were deemed rehabilitated merely because time had passed and they had regained satisfaction with their post-release lives. Before his enthusiastic embrace of his career in Nazi intelligence and policing, Steimle was a schoolteacher. Upon his release in August 1954, however, Steimle became a worker in a Stuttgart machine-parts factory. He began poorly, earning reprimands for both absenteeism and corresponding with other former war criminals and SS officers. His fortunes improved, however, when he retained a teaching post at a private, religious, all-boys boarding school in Wilhelmsdorf in May 1955. The headmaster, who took on the duty of sponsoring his new parolee/pedagogue, was particularly impressed with Steimle’s “deep insight into the fallibility of man.” Notes from Steimle’s parole file in July 1957 described a man who had “successfully adjusted to civil life,” having “assumed his place in the social community” and therefore worthy of the final reduction of his sentence to time served.77 Steimle re-entered the middle class through a return to a familiar vocation, enjoying respect from his peers at the school and a quiet life with his family. Parole supervisors and sponsors noted no observable changes in Steimle’s character or behavior over the three years he spent on parole, nor any real interventions on their part to steer him back to respectability—he ended his time on parole much as he began it. Yet because Steimle was happier with his life in 1957 than he was in 1954, he was rehabilitated.

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By these criteria, the “bad apples” were few and far between, judged as such not by their tendency to try to evade or break their parole restrictions but rather by how much they irritated American or West German officials. Cases that drew the ire of HICOG included former physician Gerhard Rose, released thanks to the good-conduct system in 1955, who personally wrote to Conant that representatives of the American Embassy in West Germany had no legal right to restrict the activities of a sovereign German citizen. Unless Conant would like to cite to him a relevant statute or treaty ceding such authorities over German citizens to Americans, Rose would simply ignore the conditions of his release. In this instance Knox Lamb tersely replied that Rose himself had signed such an agreement prior to his parole.78 For the most part, however, the parole supervisor reports remarked with invariable consistency on the “rapid progress” the Nuremberg parolees made in their rehabilitation. Perhaps the clearest verdict on the American parole system was articulated by former physician Karl Genzken in July 1955. When advised by his parole supervisor that he still possessed the right to continue filing clemency petitions while on parole to reduce the period he would spend under supervision, Genzken “expressed no interest in applying,” because “parole was no hardship.”79

e mpt yi n g lan d sb erg Apart from Conant, Shattuck, and other ascendant American voices in HICOG and the Interim Board that were ambivalent about protecting what was left of Nuremberg’s legacy, American policymakers were increasingly boxed in by the mutually reinforcing consequences of six years of sentence reviews, good-­ conduct releases, paroles, and clemencies. Despite the icy reception McCloy’s and Handy’s 1950–1951 sentence reviews received in Britain and France, the British and French high commissioners soon completed similar clemency reviews of their own to keep their zones’ war criminal policies in line with the United States’. When in late 1953 all three High Commissions inaugurated their own interim review boards while awaiting the ratification of the Bonn Conventions, this process continued, with Shattuck and other board members justifying their decisions by referencing prisoner releases and policy changes implemented by Britain and France. As the end of the occupation approached and, along with it, the standardization of all future parole and clemency decisions in a four-power Mixed Board, the pace of the releases increased. With thousands of war criminals already paroled or otherwise free by 1955, could any of the three powers justify keeping only a few dozen more behind bars, even if their crimes were especially heinous? As the clemency and parole pro-

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cess for the last Nuremberg prisoners reached its conclusion, “American justice” became increasingly dominated by bureaucratic imperatives rather than legal and ethical considerations. Between 1953 and 1955, the Interim Board freed all the remaining Nuremberg prisoners but six: Einsatzgruppen murderers Ernst Biberstein, Adolf Ott, Martin Sandberger, and Waldemar Klingelhöfer, and judicial murderers Oswald Rothaug and Herbert Klemm. With West Germany gaining full sovereignty, the Interim Board transitioned into the long-awaited Mixed Parole and Clemency Board on August 11, 1955, consisting of one American, one French, and one British representative working alongside three West German appointees. To maintain operational continuity, the member governments of the Mixed Board appointed previous representatives from the national interim mixed boards. The initial membership of the Mixed Board included Allied representatives Edwin A. Plitt (Shattuck’s successor as chairman of the US Interim Mixed Board), Gustave Laroque (former president of the French Interim Mixed Board), and Sir Edward St. John Jackson (former chief judge of the British occupation zone courts and member of previous British clemency boards) and German representatives Gottfried Kuhnt (former minister of justice for Schleswig-­Holstein and member of the French Interim Board), Emil Lersch of the American Interim Mixed Board, and Hellmuth von Weber (a retired professor of criminal law from the University of Bonn who had served on the British Interim Board). While there was some turnover in the British, French, and American representation on the Mixed Board, the three German members served for the entirety of the board’s three-year existence.80 Despite these continuities, divergences in prisoner treatment across the former occupation zones required immediate resolution at the Mixed Board’s first meeting. The British and French governments had already reduced the sentences of all prisoners in their custody serving life terms to twenty years, whereas the Americans still held ten prisoners in Landsberg (combined Nu­ remberg and Dachau) who were serving life terms. Moreover, while McCloy’s decision in 1950 to implement a good-conduct reward system that rendered prisoners eligible for release after serving two-thirds of their sentences was in line with French and British policy, Conant’s program of granting parole to prisoners who had served one-third of their sentence had no French or British equivalent. Given that the Americans had also tried and imprisoned more Germans than the British or French, the vast majority of prisoners under the Mixed Board’s authority had previously been under American jurisdiction: 302 prisoners (forty still in Landsberg, 201 on parole, nine on medical parole, and

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fifty-two on supervised good-conduct release). By comparison, there were nineteen prisoners under French authority, including seventeen male prisoners at Wittlich Prison (approximately one hundred kilometers southwest of Koblenz) and two female prisoners at Neuwied Prison (on the northwest outskirts of Koblenz), and twenty-six prisoners at Werl Prison (thirty-five kilometers east of Dortmund) under British control.81 During its nearly three years of operation, the Mixed Board adjudicated 513 petitions for clemency, parole, early release, or release from parole or good-­ conduct supervision, indicating that many prisoner petitions were rejected at least once. The board members opted not to interview the prisoners or allow defense counsel to present the prisoners’ cases for release; it relied entirely upon the written petitions and excerpts from trial testimony and judgments (all translated into English, German, and French) in making its determinations. As had been the practice of the interim boards, the Mixed Board’s recommendations were forwarded to the relevant governing authority possessing jurisdiction over each prisoner (Ambassador Conant, for example). Majority votes of the Mixed Board were nonbinding, but a unanimous recommendation by all six members of the Mixed Board could not be overruled by the British, American, or French governments. Of the 513 petitions adjudicated by the Mixed Board, only fifty-eight ended in non-unanimous (nonbinding) recommendations.82 Fittingly perhaps, much like how congressional investigations into the Malmedy trial in 1948 spurred the initial sentence review process for all the Nuremberg prisoners, further public controversy concerning the release of these same prisoners in 1955 altered the institutional dynamics of the Mixed Board and ushered in the abandonment of any effort to keep the remaining “hard core” of Nuremberg offenders in prison for the rest of their lives. Unlike Conant, who had followed the Interim Board’s recommendations, the commander in chief of US Army forces in Europe, General Anthony McAuliffe, refused to abide by the Interim Board’s unanimous recommendations to parole former SS general Sepp Dietrich, the highest-ranking officer charged in the Malmedy Massacre trial, in spite of the Interim Board’s twice-unanimous recommendation that he do so.83 Since the unanimous recommendations of the new Mixed Board were binding, however, and because of the continuity in membership from the Interim Board to the Mixed Board, one of the Mixed Board’s first acts was to parole Dietrich in October 1955. Although the paroles were still technically conducted under the veil of secrecy to ensure the smooth transition of parolees back into normal life, the release of Dietrich and his co-­

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defendants (who had murdered dozens of American prisoners of war, among other atrocities) still resulted in controversy. Upon learning that a murderer of American soldiers had been released from prison after serving only ten years, Senator Estes Kefauver (D-TN) immediately called for investigations, while newspapers and veterans’ organizations in the United States denounced the move as a betrayal of American veterans. Desperate to avoid an embarrassing congressional investigation into the practices of the Mixed Parole and Clemency Board (an independent institution created by a four-power treaty over which the State Department technically held no sway, although Plitt remained a Foreign Service officer), Dulles and Conant went to work attempting to defuse the controversy by stressing both that the Mixed Board was an independent body and that parole was not clemency. In this instance, however, the State Department’s recourse to legal technicalities failed to mollify American veterans’ groups or hostile senators. Matters worsened when rumors spread in Washington that Dietrich’s co-defendant, Joachim Peiper (also guilty of war crimes and atrocities against American soldiers) would also be paroled, spurring another round of hostile questions and denunciations of US policy. On January 24, 1956, Plitt resigned from the Mixed Board to quiet the negative publicity, only to inspire a minor revolt from the other board members, as the three West Germans threatened to resign in solidarity and Adenauer and West German media outlets criticized the Americans for “punishing” Plitt for his courage in voting for the “just” outcome of freeing Dietrich.84 Plitt’s replacement, former senator Robert Upton (R-NH) reported to Germany in March 1956, and immediately became disillusioned with the practices and procedures of the Mixed Board. Much to his surprise, although the State Department had refuted rumors of Peiper’s imminent release, Upton found that the Mixed Board had already unanimously voted for Peiper’s parole in October 1955 but had held off on the final approval of his parole plan after the controversy over Dietrich had erupted in the United States. Cabling Washington, Upton demanded that the State Department deny his involvement in the parole decision when it became public and criticized his European colleagues for using the board as merely a “device” for releasing war criminals. Worse, army representatives expressed concern to the State Department in April 1956 that the parole of Dietrich and the pending parole of Peiper had undermined the legitimacy of the Dachau War Crimes Trials, and that in both cases the Mixed Board had gone beyond its charter and rejected findings of fact

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in the case judgments in order to justify the paroles. Upton resigned shortly thereafter, having served less than three months.85 Renewed public scrutiny occasioned by the Peiper and Dietrich releases and Plitt’s resignation sparked the usual calls for a complete amnesty for war criminals in West Germany. Upton observed “increased pressure on Chancellor Adenauer for action” over the course of April and May—although what possible action Adenauer could take that would alter the trajectory of the Mixed Board’s operations was unclear, given its tendency toward granting all but a few petitions for parole or clemency.86 Editorials once again appeared in major German newspapers calling for an end to the incarceration of war criminals. The Frankfurter Allgemeine Zeitung, for instance, published a piece on April 19 under the headline “Bring the Matter to a Close!” castigating the Western Allies’ “amazing pertinacity to regulations which have become absurd and should have been superseded by better ones long ago.” Why, exactly, was the West German state paying 1.2 million DM per year to defray the costs of “an enormous foreign machinery . . . in our own territory” in order to ensure the care of only thirty-three prisoners, most of whom had only been found guilty by “some American officers” a decade ago? Even the Soviet Union had returned its prisoners by now—why could the West not take the permanent settlement of returnees from the East as inspiration? “It is high time,” the editorial concluded, “that this matter also be brought to a close.”87 Although he was careful to take the sting out of his abrupt resignation by claiming that he had always envisioned a short assignment to the Mixed Board, Upton had repeatedly expressed his dissatisfaction with the board’s procedures to the State Department. To begin with, Upton worried that since the prisoners under British and French jurisdiction, whose sentences were shorter and who were not subject to a formal parole system, were few in number and had largely already been dealt with by the Allied interim boards or the Mixed Board, the question of adjudicating clemency and parole applications for the hundreds of prisoners still in US custody would deplete the already “nominal interest” the British and French governments had in the board’s work, perhaps resulting in the resignation of the similarly disengaged British and French representatives within a year and scuttling the quadripartite agreement on clemency and parole. This eventuality might require a “radical solution” of universal clemencies or sentence reductions, since the West German government was reticent to legitimize the Nuremberg or army trial programs by formally agreeing to take custody of the remaining prisoners and parolees. As to

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German attitudes toward the Mixed Board, Upton glumly observed that “the Board has come to be regarded as an instrumentality for the release of war criminals rather than an agency for the exercise of clemency or parole in deserving cases.”88 As a part of his post-retirement debriefing at the State Department in late June, Upton reported his conclusion that the Mixed Board was only interested in monitoring the parolees long enough to ensure that they could “behave themselves.” He also complained about both the Interim and Mixed Boards’ refusals to take the nature of each prisoner’s offense into account when making parole and clemency decisions, except insofar as it pertained to the prisoner’s ability to “readjust” to society. Upton was evidently the only board member who felt strongly that parole and clemency were “not a matter of right but a matter of discretion,” and that as such the nature of the prisoner’s offense in fact mattered a great deal. Upton had expressed these concerns frequently during his short time of service, noting in early May that the predominant attitude of his colleagues was that a war criminal’s eligibility for parole was itself a sign that “he had expiated his crime.” Only in the cases of “habitual criminals” (lower-class, lower-level offenders from the Dachau trials) did the board occasionally dispute or deny parole applications. Since Upton had been unable to convert any of his colleagues to his point of view that the nature of a prisoner’s crime was important, he strongly urged Raymond and the State Department to ensure that his successor at least share his beliefs, lest the clemency and parole process degenerate into a pro forma exercise.89 Upton’s resignation from the Mixed Board caused much consternation among the prisoners, who feared the recurrence of the long delays in the review of their petitions as had occurred after Plitt stepped down. The small group of war criminals still in Wittlich (under French authority) even spoke of organizing a hunger strike.90 Meanwhile, State Department experts on Germany grew concerned that Adenauer would use Upton’s retirement to once again push for amnesty for the remaining war criminals in American custody on his upcoming June 12–14 trip to Washington. Prepping talking points for Secretary of State Dulles, they argued that any changes to the operating procedures or dissolution of the Mixed Board would require an act of Congress amending the Bonn Conventions, which, in light of the renewed controversy over the parole of the Malmedy prisoners, would not be forthcoming.91 Neither the war criminals nor the State Department had cause for concern, as it turned out: Conant, Dulles, and Raymond quickly settled on a pliable replacement for Upton, and Adenauer refrained from directly or indirectly raising the matter of

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the war criminals for the entirety of his visit.92 As had been the case for years, Adenauer’s advocacy or lack thereof made little difference, as the American bureaucratic regime of clemency and parole, bound by its own internal logic of fairness and justice, was by this point self-sustaining. Upton’s replacement, Spencer Phenix, appointed in July, was yet another career Foreign Service officer. He had joined the State Department in 1922 and served as one of Secretary of State Frank B. Kellogg’s aides responsible for drafting the 1928 Kellogg-Briand Pact that outlawed war as an instrument of national policy. Phenix worked with the Office of Strategic Services during the Second World War, on State Department economic missions in Berlin and Athens from 1949 to 1951, and for the CIA’s Committee for a Free Europe and then the Radio Free Europe Offices stationed in Portugal before his retirement in 1955. In the interim, he had helped future secretary of state Dulles prepare his 1950 book War or Peace, a critique of the Truman administration’s containment policies. After Plitt’s resignation and Upton’s abrupt retirement, Dulles personally suggested Phenix take the position.93 His close connections to Dulles, anti-communist credentials, and willingness to serve as a lightning rod for any further public criticisms of the Mixed Board’s actions rendered Phenix the first overtly political American appointee.94 Yet even Phenix couched his willingness to scuttle the lingering remains of the American confinement and parole program in the familiar arguments about the utility of rehabilitation and American justice. The Mixed Board paroled Rothaug and Klingelhöfer in December 1956 and Klemm in February 1957 with little fanfare.95 Although he was an Einsatzgruppen commander who admitted his participation in killings of Jews and other civilians during his trial and had escaped the hangman’s noose only because McCloy was particularly cautious in his case, the Mixed Board was pleased with Klingelhöfer’s prison record, which noted that “the applicant has realized that he was involved in a crime, and he has shown genuine remorse for it.”96 Klingelhöfer’s rediscovery of his Christian faith had allowed already for some limited expressions of contrition in the 1950 petitions, which had grown stronger over time—the only instance of remorse evident in any of the Nuremberg prisoner files and, from the board’s perspective, proof of the rehabilitative success of his confinement. None of the board members were particularly enthusiastic about Rothaug’s record—Lersch, as a former judge himself, found his character and conduct particularly contemptible—but Phenix’s argument, that since Rothaug’s good-conduct release date was less than two years away both he and the public would be better served if he could spend as

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long as possible under supervised parole status, prevailed.97 The Mixed Board came to a similar conclusion in January 1957 when evaluating Klemm’s petition as well, noting that since Klemm’s good-conduct release was set for October 1958 it was better that “he be released now with parole restrictions [against re-entering the law profession] rather than 20 months later without restrictions.” Even so, the Mixed Board granted Klemm a favorable parole recommendation only in a close vote of 4:2, with French representative Henri Eschbach and German representative Gottfried Kuhnt dissenting.98 Meanwhile, in July 1956, the United States had turned over control of most of Landsberg to West German administrators; the US Army retained control of the small part of the prison that housed the last twenty war criminals in American custody.99 Phenix articulated his personal preference for wrapping up the war criminals issue as quickly as possible in a series of draft memoranda to Raymond in February 1957. In keeping with the spirit of the Bonn Conventions and norms established under the Interim and Mixed Boards, Phenix recommended that the State Department “keep its hands officially out of the war criminal problem.” This did not mean, however, that Phenix himself could not coordinate with Washington on his own initiative. In this spirit (not in keeping with the Bonn Conventions), Phenix submitted three policy papers for Raymond’s consideration. If the State Department had any objections to Phenix’s proposals, they could make these known when he visited Washington in March; otherwise, he would take their silence as approval. Phenix had quietly discussed his ideas with his British colleague, and since the German board members would certainly not stand in the way of greater leniency, there was already near-unanimity for Phenix’s proposals—provided Raymond allowed him to proceed.100 Phenix’s first memo, which he titled “Memorandum A,” summed up the status of German war criminals under American jurisdiction. As of February 1, 1957, only eight prisoners remained in British custody at Werl and five remained under French control at Wittlich. Given that the maximum British and French sentences were twenty years and that in both systems the prisoners were essentially granted an unconditional release after having served two-thirds of their sentences, a graduated parole system had not arisen in the British or French zones. Yet twenty-three war criminals remained in Landsberg Prison, with a further five on medical parole, 193 on regular parole, and seventy-five on good-conduct release, yielding a total of 296 persons. The final resolution of the war criminals issue was therefore almost exclusively an American policy problem. Repeating the same arguments that had animated round after round of American clemency over the years, Phenix noted that, without any modifi-

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cations to the board’s operating procedures, it would take until the 1970s to adjudicate the supervised release of the parolees with the longest fixed sentences and likely into the 1980s for the continued clemency petitions of the hard core of those serving life sentences. Since these cases had been litigated extensively for nearly a decade already, no new facts would come to light, dooming the Mixed Board to years of “dull and profitless operation.” It was unclear what “political, practical, or sociological advantage would be realized” by the United States remaining that committed to the war crimes program. Since this next quarter century of drudgery was an exclusively American concern (the maximum British and French period of confinement was thirteen years and four months—two-thirds of a twenty-year sentence), could the State Department truly expect the British, French, and West Germans to commit to the four-power agreement for that long? What if one of the other three powers were to withdraw from the arrangement? That would nullify the Mixed Board and require yet another round of painful international negotiations—it would be better for all concerned if “the so-called war criminal problem” could be “settled within the framework of current international agreements.”101 To that end, Phenix described actions the Mixed Board could take on its own to wind down the American parole and confinement system well ahead of schedule. First, Phenix argued, “no good purpose is served in terms of punishment for past crimes or of social welfare” by continuing to enforce the “long outdated” restrictions on the seventy-five prisoners on good-conduct release—it was politically unfeasible to re-arrest any of these people anyway, so why bother continuing to monitor them? The Mixed Board could solve this problem expediently by systematically granting clemency to this group, reducing all sentences to time served. As for the parole system, it should be brought to an orderly end “long before 1979 when the last parolee’s sentence expires.” While implementing parole was a “brilliant solution to the Landsberg problem as it existed when the formula was adopted four years ago,” it had reached its expiration date. Long-term supervision of parolees was unnecessary since their crimes “were of such a special nature that any repetition thereof is highly unlikely.” As in the case of those on good-conduct release, Phenix observed, the Mixed Board had the power to reduce the sentences of all parolees to time served by unanimous vote.102 “Memorandum B,” Phenix’s second report to Raymond, described how he would go about dismantling the parole and incarceration system for the 296 prisoners remaining under American supervision, provided the State Department did not object. For starters, as described in Memorandum A, Phenix

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would push for the Mixed Board to grant all petitioners on supervised release or who had served two years of parole a sentence reduction to time served. If the Mixed Board’s recommendations were unanimous, and Phenix had no reason to suspect that they would not be, this would render the board’s decisions binding on all governments and render any objections moot, absolving the State Department of public responsibility for the releases. This would, by June 1957, reduce the number of war criminals under American supervision from 296 to 92. Apart from the small “hard core,” the rest of these prisoners would all be transferred to parole, also by June 1957. By the Mixed Board’s new standard that a parolee would spend no more than two to three years on parole, all but a very few would be free by no later than June 1960. Phenix envisioned this promise as providing enough political cover to convince the West German government to do what it had so far resisted: recognize the validity of the remaining sentences and agree to monitor the last parolees itself. As for the remaining “hard core” of “10 or 12 persons regarded as not suitable for parole,” the board could review their files in early 1958 as a last act before disbanding, “not on their individual merits, for it is doubtful any could be found,” but rather “in the interests of non-discrimination.” Since the maximum sentences imposed by the British and French governments was two-thirds of a twenty-year term (thirteen years and four months), it would be unjust for any prisoners in American custody to remain in Landsberg longer than that. In these circumstances, the board would reduce all remaining sentences to time served once the requisite thirteen years and four months had passed, even if the petitions had no merit. With these adjustments, Phenix promised the resolution of the war criminals problem within three years.103 Phenix evidently received approval from Washington for his plans, because at the April 10, 1957, meeting of the Mixed Board he presented a report and motions for adoption that largely consisted of the same points raised in his February memoranda. Overviewing the statistical breakdown of the 306 remaining British, French, and American prisoners “convicted of so-called ‘war crimes,’” Phenix noted that, without a change to its standard procedure of reviewing “an unchanged array of facts” in each case, the Mixed Board was facing a “generation” of pointless monthly meetings until the last prisoners died or were paroled in the 1980s. Observing that the Bonn Conventions tasked the board with reducing sentences and granting parole “without calling into question the validity of the convictions,” Phenix proposed that the board take this language literally—by statute, the board was not empowered to question the

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validity of the verdicts, so it could free every prisoner and still claim that this had nothing to do with overturning them. Taking this as a new point of reference for the board’s future actions, Phenix argued, would allow for a clear-eyed evaluation of the purpose of continued confinement or monitoring of the 296 American war criminals in and out of Landsberg. The confinement of “so-called war criminals” or their close supervision on parole had a “social purpose” of rehabilitating and re-integrating the Landsberg prisoners into West German society. Since all the prisoners’ crimes were highly contextual to the Nazi dictatorship and the war, recidivism was “highly unlikely,” and so a great deal of effort was being wasted on continued enforcement of parole restrictions and incarceration that yielded little to no benefit to either the prisoners or West German society. Phenix recommended that the Mixed Board use its power to free all seventy-five prisoners on good-conduct release from further monitoring and the empty threat of re-arrest, and reduce the sentences of all parolees who had been on parole for between two and three years to time served, dropping the board’s case load by two hundred prisoners within months. As for the rest, the board could meet more sporadically over the next three years until every prisoner outside of the “hard core” of twelve or so with sentences of thirty years to life were paroled and then granted clemency after the now-standard period of eighteen months to two years on parole. But, once again, the cycle of clemency was self-perpetuating, as, according to Phenix, “it would not be economically or penologically sound to maintain a special prison for only twelve individuals.” This was a problem for later consideration, however; presumably, the West German government would see fit to relieve the Allies of this burden by taking charge of the last remaining prisoners, officially acknowledging the legitimacy of at least these few sentences.104 Ultimately, the decision was easier than Phenix initially anticipated, as in the coming weeks and months the Mixed Board whittled down the “hard core” to only four individuals, three Einsatzgruppen commanders and a single prisoner from the Dachau trials. Four days later, the Mixed Board formally ratified Phenix’s suggestions. Significantly, it was no longer necessary for the individual prisoners on parole or good-conduct release to file their own petitions for clemency or sentence reduction, as the Mixed Board was now prepared to accept “a formal request on behalf of each such person from the German government.” Indeed, for those on good-conduct release this was all that was required to secure their freedom. Those on parole for two years or more also required an endorsement from the

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US parole officer attesting to their obedience to parole conditions, which was pro forma as well. Finally, the board resolved to fix the maximum time that future inmates could spend on parole at two years.105 This left only the “hard cases” for the board to grapple with over what turned out to be the last several months of its existence. The hearings on the remaining Nuremberg prisoners (Einsatzgruppen commanders Ott, Sandberger, and Biberstein) were contentious. Meeting on November 7, 1956, the Mixed Board was deadlocked 3:3 on Sandberger’s parole application, with the German board members voting unanimously in favor and the British, American, and French officials set firmly against his release. When, on the following day, the Mixed Board deadlocked the same way over Ott’s case, Phenix argued passionately for the German representatives to change their minds. The meeting minutes reveal Phenix’s concern that “when the German members all voted one way and the non-German members the other,” it “cast doubt on the judicial quality” of the board’s decisions, particularly given the well-known facts of the Einsatzgruppen cases. Phenix was also careful to note, however, that he “did not feel it his duty to keep Ott or Sandberger in prison,” and was open to judging all cases on their own merits. After a short recess during which the three German representatives conferred privately, the board reconvened and unanimously voted to reject the parole applications of Ott and Sandberger provided, at the German members’ insistence, that the prisoners were informed that the board denied their parole applications only because they were “premature,” lest they feel their cases “be hopeless for all time.”106 Several weeks later, when Lersch “reluctantly” recommended parole for Biberstein as well, Phenix “emphatically” argued against, producing another unanimous recommendation for denial.107 The board rejected via close votes all future parole and clemency requests from Ott, Sandberger, and Biberstein in 1957 for similar reasons, with multiple board members affirming that, unless any of the three developed a serious medical problem, their release should not be contemplated until the “last days” of the board’s existence.108 The German representatives continued to argue well into the fall, however, that there was a “varied” degree of responsibility for the Einsatzgruppen murders, and that Ott and Sandberger merited parole on these grounds, even if Biberstein did not. This argument was a logical culmination of years of relativistic American war crimes policy choices that viewed the best criterion for mercy or early release as a comparison between the sentences and conduct of one prisoner to another, rather than a thorough examination of each individual

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prisoner’s record on its own terms. Weber and Lersch, in making this argument, cited McCloy’s decision commuting all three sentences from death to life imprisonment because of the “less imposing scale” of their crimes relative to individuals such as Otto Ohlendorf. The board took Sandberger’s claims that he was forced to serve at the front (which had factored into McCloy’s initial decision for clemency) and the fact that some of Sandberger’s and Ott’s superior officers had not been tried as justifying further clemency. By this point, the British representative was also wavering, questioning the purpose of keeping Ott and Sandberger behind bars given that “punishment, prevention, and rehabilitation were the three reasons for the sentences and that there was no element of prevention in such cases as these,” whereas rehabilitation could be accomplished through parole. A report from the US parole officer stating that the longer Ott and Sandberger remained in prison, “the less [the] chance of successful parole results,” lent urgency to the matter. Only after another lengthy rebuttal from Phenix did the board vote 4:2 on October 3 to deny Ott and Sandberger parole once again, rejecting Biberstein’s last application unanimously as well.109 Although these deliberations were primarily concerned with the acceptability of parole for Ott and Sandberger, Biberstein’s eventual fate was intimately linked to that of his co-defendants. For while the Mixed Board had long since reached a consensus that Biberstein bore greater responsibility for his crimes than the other two because Biberstein had admitted his culpability under interrogation while the others had not, the Mixed Board also believed that freeing all prisoners except Biberstein would constitute cruel and unusual punishment given that, as the last war criminal under American jurisdiction, Biberstein would serve the rest of his sentence in de facto solitary confinement. During these deliberations, the Mixed Board struggled to reach a consensus on how or when a given prisoner should be released from Allied super­ vision entirely. Here, too, differing national conceptions of justice clashed. As German representative Gottfried Kuhnt pointed out in January 1957, the two obvious solutions were either an individualized evaluation of each parolee’s conduct and progress to determine when each prisoner was in no further need of supervision or “a general amnesty based on some mathematical formula,” which was tied to German legal custom but might be unpalatable to the United States. The latter choice, based either on a fixed ratio of the sentence or a set period of mandatory supervision, was also disproportionately beneficial to those with longer sentences, especially those who had directly participated in

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or ordered murders.110 Revealingly, none of the “realistic” options that the board debated in its final months involved the prisoners serving out their full sentences. By April 1957, the Mixed Board was working toward a consensus that each prisoner should spend between two and three years as a parolee prior to reclaiming their complete freedom, explicitly rejecting the notion that the “gravity of the offense” should have any bearing on the minimum parole period.111 As for the dozens of prisoners who had already reached the good-conduct release milestone or were on medical parole and still subject to nominal American supervision but had no mechanism to petition the Mixed Board, the board decided to accept clemency petitions to reduce their sentences to “time served” from the West German Foreign Office. In all cases, the board ruled unanimously to approve these petitions, rendering their decisions binding on the US government.112 Meanwhile, the West German Foreign Office broadened its efforts to persuade the Mixed Board to release the last of the Landsberg prisoners. This included a coordinated pressure campaign with the VdH, whose membership had swelled to five hundred thousand.113 VdH’s turn to lobbying in favor of closing Landsberg Prison after 1956, then, implied that the experiences of the several remaining war criminals in US custody were comparable to those of the Soviet returnees, the VdH’s principal arena of previous advocacy. Although President Eisenhower had abolished the Japanese war crimes parole and clemency board in December 1957 in favor of convening a “non-political” Japanese board that would advise the US ambassador in Tokyo on any further changes, a similar arrangement with Bonn was impossible. Unlike the Japanese parole board, the Mixed Board was written into the text of a treaty, which would require amendment and legislative approval, and the Adenauer government refused to publicly recognize the legitimacy of even the four “hard core” prisoners remaining in Landsberg (Ott, Sandberger, Biberstein, and Otto Brinkmann, the lone remaining prisoner from the Dachau trials). In this instance, Conant’s successor in Germany, Ambassador David Bruce, refused to countenance any State Department action that would “bring into question validity of trials of war criminals or sentences imposed on them.”114 With only four prisoners left in Landsberg, it was a bit late for such sentiments. The writing was on the wall: as a headline in the Chicago Daily Tribune proclaimed in July 1957, “Nazi Prison Sentences Nearly Over” despite Washington’s repeated public commitments to keep the worst offenders behind bars.115

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Given the seeming impossibility of any further progress, in February 1958 the West German Foreign Office took the unprecedented step of itself filing parole applications on behalf of the remaining four prisoners. Simultaneously, it eliminated the budgetary allocation for the Mixed Board’s German support staff, urging the three German members of the board to take the position that Landsberg Prison should be closed immediately, and leaked news of the stalemate on the four remaining prisoners and their parole applications to the VdH to bolster its pro-amnesty press campaign.116 The Mixed Board found these interventions “most distasteful” and, worse, “counterproductive.” As Phenix pointed out, if the board paroled the remaining prisoners, previous norms demanded that they be supervised for at least two years, extending American and Mixed Board involvement in these matters into at least 1960. The board’s preferred resolution was to wait until later in the fall, when all four prisoners would reach the milestone of having served thirteen years and four months. Although all four prisoners were serving life sentences, the board reasoned that the longest sentence imposed in the British and French cases had been twenty years, and so it would be preferable in the name of uniformity and fairness to grant a clemency reduction of the remaining prisoners’ sentences to twenty years at that point, rendering them immediately eligible for good-conduct release.117 Since the Mixed Board had already wound down the good-conduct time and parole supervision programs in 1957– 1958, Ott, Sandberger, Biberstein, and Brinkmann received direct grants of clemency from the board to time served, skipping any supervised release status and gaining their freedom immediately.118 The Mixed Board did not try to disguise the fact that this dispensation of clemency was not based on any new evidence, circumstance, or hardship; the last four prisoners were released from their life sentences simply because so many others had preceded them. There was nothing left to do. Although the content of their final petitions to the Mixed Board was irrelevant given the inevitability of their releases, it was nevertheless remarkable how little had changed since 1950 in the former Einsatzgruppen commanders’ arguments for freedom. Adolf Ott regretted his “blindness” in following Hitler and joining the SS, and that he had not had friends in high places to countermand his transfer to the mobile killing units on the Russian front. He assured the board that he had no hatred for Jews, Germans, Americans, or anyone else, before drawing their attention to the fact that his innocent young daughter had unfairly borne the brunt of his forced atonement, orphaned by her mother’s death

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in an American bombing raid and her father’s endless confinement.119 Ernst Biberstein pleaded only for the board to put a stop to the thirteen-years-long “oppressive interlude” on behalf of the deteriorating health of his wife so that he could lead “a humble and quiet life” with her, his children, and his grandchildren. As to his former crimes, Biberstein limited his remarks to a cryptic promise to “bear witness to the insights and perceptions gained” during his “grievous” confinement.120 Sandberger, for his part, argued that he deserved clemency because everyone else had already received some measure of it, writing, “I do not feel that I am more guilty in the meaning of law or morality than . . . any of those persons who have been released from confinement or paroled.” Like the others, Sandberger also lingered on the difficulties his family faced because of his confinement, and how his release was “necessary” for their subsistence.121 All claimed the mantle of “model prisoner,” and promised a post-­confinement life of apolitical bourgeois pursuits. They expressed attitudes of magnanimity to their warders, despite their continued refusal to accept the legitimacy of the Nuremberg verdicts. On May 9, 1958, slightly more than ten years after they had received death sentences at the Einsatzgruppen Trial and seven years, three and a half months, after John McCloy had commuted their sentences to life imprisonment, the last three defendants of the Nuremberg successor trials walked free. The news of the last Landsberg prisoners’ releases, routine at this point, garnered little coverage, positive or negative.122 Regardless of later accusations that the United States bowed to political expediency and rushed to “abandon the principles of punishment,” the Americans held on to their war criminals the longest. Apart from the four-power-­ governed war criminals from the IMT, the longest period of time any German prisoners spent in Allied custody after 1945 was a little under thirteen years; all four were under American jurisdiction.123 Nevertheless, the quiet departure of Sandberger, Ott, and Biberstein in 1958 also marked a more dubious achievement of the American clemency process—of the eighty-nine war criminals eligible for McCloy’s clemency consideration in 1951, all but the five executed in June 1951 emerged from prison by 1958 without serving their full sentences. Moreover, apart from Klingelhöfer, none had expressed contrition or remorse for their service to a genocidal dictatorship, let alone acknowledged the legitimacy of their guilt as a price for their freedom; they remained unbowed and unrepentant until the end. On May 13, four days after the closure of the Amer-

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ican section of Landsberg, Spencer Phenix expressed satisfaction with a job well done, writing to John Raymond, “It is pleasant to feel that this diplomatic pebble has been removed from the State Department’s shoes.”124 A poor epitaph for Telford Taylor’s moral and political project, ten years on.

Conclusion

i n hi s f i n a l 1 9 4 9 r e p or t to Secretary of the Army Gordon Gray, Telford Taylor, the former chief of counsel for war crimes, struck a hopeful note about the enduring principles established at the twelve Nuremberg tribunals. First, the trials enshrined prohibitions on “crimes against peace,” “war crimes,” and “crimes against humanity” into international law and provided valuable precedents regarding human agency and the importance of taking stock of personal responsibility when weighing the crimes of nations on the world stage. Second, the tribunals resulted in the publication of thousands of pages of documents and witness testimony that revealed, once and for all, the barbarity and criminality of the Nazi regime.1 According to Taylor, however, the “most important” takeaway from Nuremberg was that it was “a process, not an episode.” The “Nuremberg project,” partly due to budgetary and political realities and partly by design, was an unfinished one—the mantle of international law was meant to be taken up first by West German courts (who would punish any remaining war criminals) and then by the wider international community.2 While the sentences in some cases were more lenient than he would have preferred, Taylor nonetheless argued that “for the future and for the development of international law, the conclusions and reasoning of the judgments are, of course, far more important than the sentences.”3 Taylor was correct in that the Nuremberg judgments would never be formally overturned. Every prisoner whose sentence McCloy or later clemency boards reviewed and adjusted from 1950 to 1958 remained a war criminal 270

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whose guilt was legally uncontested; they were only permitted to leave Landsberg prior to the completion of their sentence because of executive clemency orders, medical hardship, or an agreement to abide by articles of parole that closely circumscribed their post-release activities. In theory, this was all aboveboard and did nothing to undermine the hard-won principles of international law that Telford Taylor held so dear. Yet as his later role in the public outcry over McCloy’s January 1951 clemency decisions indicated, Taylor ultimately came to recognize that the matter of sentences and judgments could not be separated so easily. Under Taylor’s stewardship, the Nuremberg tribunals took on an unapologetically pedagogical function—their purpose was both to punish the guilty and to make tens of thousands of pages of text and testimony publicly available so that citizens of Germany and the wider world could comprehend the magnitude of the evils perpetrated by the Nazi dictatorship. Once exposed to the clear light of justice, the sheer enormity of the Third Reich’s crimes would render them undeniable, forcing the new Germany to publicly reckon with the deeds of its predecessor and, in so doing, take an important and irrevocable step toward democratization. A serious flaw in Taylor’s pedagogy, however, was a failure to reckon with the reality that Nuremberg was not simply a classroom in which Taylor and his staff were the instructors; the prisoners, their attorneys, and the West German people also possessed agency in this process. The tribunals were not a series of lessons absorbed by a passive audience, but a hard-fought contest between multiple competing narratives. The prosecution presented its case and the defense presented theirs, with both using witnesses and documents to bolster the authority of their accounts, rendered more complicated still by the fact that every trial except the Milch Trial (which had one defendant) and the Flick Trial (which had six) comprised a dozen or more defendants, many of whom had individual legal representation and did not coordinate with one another on any coherent defense stratagem. The tribunal judges then drew on these contradictory and competing narratives to produce their own. And here, too, there existed opposing narratives of responsibility and judgment, as sitting justices in numerous tribunals filed dissenting opinions alongside the majority opinion, producing multiple interpretations of the past. No matter the high quality of the evidence and the often implausible and contradictory exculpations offered by the war criminals and their defense attorneys, however, West German newspapers and West German citizens were free to adopt whatever narrative they wished, tailored to their own personal experiences and inclinations. Over-

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whelmingly and increasingly, over the span of a generation, most Germans rejected Taylor’s narrative.4 For this majority of West German citizens, the sentences and the judgments were one and the same, and so a revisitation of one was a revisitation of the other. McCloy and his successors had to justify the steady stream of releases beginning in 1950–1951 somehow, after all, and these justifications often worked to bolster the arguments and standing of Nuremberg’s critics. McCloy and the Advisory Board publicly and privately maintained that they were engaged in a search for justice and truth, reapportioning punishments based on objective reviews of the facts. Nuremberg’s opponents successfully appropriated this language of justice to call into question the factual record itself. Beginning with McCloy’s initial series of releases in 1950–1951 and continuing through 1958, every act of clemency and grant of parole served as confirmation of the widely held West German belief that the Nuremberg tribunal verdicts were illegitimate. As Taylor surmised, Nuremberg was indeed a process, not an episode. The fate of the Landsberg prisoners, and the ways their ever-shrinking punishments were justified by American officials, shaped the meaning of Nuremberg for unneutral observers. While HICOG officials hoped to ensure that the Nuremberg judgments would stand, even if the sentences did not, from 1951 to 1958 the pressures unleashed by McCloy’s 1950–1951 decisions drove these same officials toward releasing prisoners with such frequency as to render the supposedly unquestioned verdicts meaningless. Certainly, from late 1952 onward, the pressures of the Cold War and the imminent return of West German sovereignty over the American occupation zone contributed to HICOG’s reticence to keep the Landsberg prisoners behind bars. Yet, in their efforts to work through the bureaucratic impasse that followed McCloy’s 1951 clemency decisions, HICOG officials continued to frame the war criminals issue by the same overarching concern for justice that McCloy had used, even if their efforts to ensure that the Nuremberg criminals were treated justly led to outcomes that many contemporary critics considered unjust. Upon examination, the records of the American clemency and parole institutions charged with determining the fate of the Nuremberg war criminals show that the concepts of responsibility and justice were thoroughly contested in the emergent Federal Republic of Germany, by sources both expected and unexpected. The inner workings of McCloy’s Advisory Board, Conant’s Interim Board, and the four-power Mixed Board reveal that it was not only pragmatic Cold Warriors, German nationalists more concerned with their own country’s

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“suffering” in the present than the past victimhood of other peoples, and unrepentant Nazis who questioned the findings of the Nuremberg tribunals. American judges, military officers, and diplomats did so as well. West German hostility to the American war crimes trials was meaningless without the tacit cooperation of American institutions in overturning the postwar legal settlement. West German citizens could pressure politicians, hold meetings and rallies, ignore newspaper accounts of the Nuremberg tribunals, and refuse to see their own wartime experiences as anything other than honorable or praiseworthy. Whether these individuals ever accepted the legitimacy of the Nuremberg tribunals or not, they could not dismantle Nuremberg’s legacy. Only the American government could do that. In providing a rationale for the clemency of 1951 grounded in the language of justice, McCloy and his Advisory Board constructed institutional and intellectual structures that would rationalize further releases, clemencies, and paroles. Rather than settling the issue for all time, the institutional machinery of the American sentence review process merely ensured that the war criminals’ continued imprisonment was relitigated again and again until the last inmate left Landsberg in 1958. At the same time, the increasing conviction among HICOG and State Department officials after 1949 that the confinement of German war criminals should reflect the norms of the American penal system while showcasing the progressive and enlightened nature of “American justice” had ramifications as well: it ensured that this process of continued relitigation tacitly endorsed the prisoners’ refusal to accept the Nuremberg trials as fair or just. Apart from the five prisoners who met their end at the Landsberg gallows in 1951 because the scale and scope of their crimes was so enormous and obvious that no amount of bad-faith argumentation or obfuscation could save them, the progressive nature of American justice required that every inmate in Landsberg receive the benefit of the doubt . . . again and again, in perpetuity, until they walked free. The twists and turns of the Cold War and the fraught international political disagreements on German remilitarization and European unity certainly shaped the circumstances in which McCloy, Conant, and their staffs made these decisions. But after 1950, the resolution of the war criminals question moved forward with an internal logic and momentum all its own. Did the final dispensations of the Landsberg war criminals represent a just denouement to the Nuremberg Military Tribunals or a complete abdication of the lessons of Nuremberg?5 If “justice in relation to war criminals was

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never conceived in absolute, static, or straightforward terms,” but rather as “a tangle of often conflicting moral, legal, and political considerations,” as recent scholarship on the postwar tribunals of Japanese perpetrators has concluded, this was also true of the ten-year period of increasingly shorter confinements that followed the Nuremberg tribunals.6 The West German government and, after 1953, elements of the US State Department wished that the last vestiges of the American occupation, which had served as a steady but lessening irritant since 1949, would disappear. With the Korean War and its settlement, the cultivation of intra-European economic and political interdependence, and the passage of time, the war criminals stood as an uncomfortable reminder of a chapter in German and European history that was best forgotten. Legally, from the perspective of the American occupiers, the Nuremberg sentences were at once set in stone and in need of constant relitigation, lest any mitigating circumstance, excuse, or justification from any prisoner (no matter how dubious or self-serving) go unexamined and undermine the demonstrative power of American justice. Armed with righteous indignation, McCloy, his successors, and their lawyers set out to normalize the unprecedented process of international criminal procedure but undermined its acceptance instead. So, much as McCloy could commute the Einsatzgruppen murderer Ernst Biberstein’s death sentence to life imprisonment because he was not sure that Biberstein had murdered quite as many thousands of Jews as the tribunal had believed, so too could Conant and Phenix sanction Biberstein’s outright release seven years later as a matter of staving off charges of unjust discrimination, given that every other prisoner had already gone home. But what of the moral considerations? For McCloy, Conant, and the rest, the moral aspect of their stewardship over Nuremberg’s legacy was blinkered to say the least, focused on a version of justice that solely benefitted the prisoners. It was moral to effectively grant the prisoners repeated appeals they had no statutory right to, release those who were sick or who behaved well, and construct an entire bureaucracy of parole and rehabilitation to ensure that their swift re-entry into West German society proceeded smoothly. Leaving prison decades ahead of schedule, the Nuremberg war criminals received monetary compensation from the state, social support from sympathetic friends, relatives, and parole supervisors, and near unceasing encouragement from their American overlords until, with a final handshake and hearty congratulations for the great obstacles they had overcome since their imprisonment, their ordeal ended. Their victims were certainly not so fortunate.7

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It did not have to be this way. After the final releases from Landsberg in 1958, the only British-, French-, or American-prosecuted war criminals still imprisoned in Germany were the three remaining IMT prisoners under inter-­ Allied control at Berlin’s Spandau Prison: former armaments minister Albert Speer (twenty years, released 1966), former deputy führer Rudolph Hess (life), and former Hitler Youth leader and Gauleiter of Vienna Baldur von Schirach (twenty years, released 1966). Their clemency, parole, or appeal required the unanimous approval of the four powers of the Allied Control Council: Great Britain, France, the United States, and the Soviet Union. Given the exigencies of the Cold War, such agreements never came to fruition, despite the usual West German government and grassroots lobbying campaigns on the prisoners’ behalf decrying the IMT as illegitimate. Indeed, the matter devolved into a scandalous farce by the late 1980s, as Spandau Prison operated merely to house the nonagenarian Rudolf Hess, who, despite being the only inmate, managed to slip away unsupervised to an outdoor garden cottage within the prison walls and commit suicide in August 1987.8 This was the only instance where a prisoner convicted by an Allied court served his full life term. Nevertheless, the fates of Speer, Schirach, and Hess, along with the other IMT prisoners sentenced to shorter prison terms, represented a road not taken, a plausible alternative course of action where at great administrative expense and moderate political cost, the judgments of international law stood the test of time. Yet the conclusion of the Nuremberg process in May 1958 was not the end of justice in postwar Germany, but only one idea of it. The week prior, in the small town of Ulm, one hundred kilometers to Landsberg’s northwest, West Germany opened the largest trial since Nuremberg, charging ten former members of Einsatzkommando Tilsit with murder. The trial was the first of several milestone events that ushered in a new wave of West German attempts to achieve justice.9 This was hardly the first trial adjudicating the crimes of the Nazi period that the Federal Republic had produced: from 1945 to 1949, German courts in the three Western occupation zones investigated 172,294 individuals and conducted 13,600 trials. Given that no statute of limitations yet applied to the years of the dictatorship, many of these trials resulted in short sentences for minor crimes illuminating the extent of everyday Germans’ complicity with the Nazi regime’s criminal acts, the likes of which showcase trials such as Nuremberg were unable to pursue. In keeping with Continental legal practices, most cases began when a private citizen came forward to accuse an individual of a crime. The clear majority of these cases involved crimes com-

2 7 6   co n clu s i o n

mitted by German citizens against German citizens or subjects: denunciations of neighbors to the authorities; violence directed against Jews and the plunder and expropriation of their property in national pogroms such as Kristallnacht; or state-sanctioned killings of the racially or physically “unfit” or so-called shirkers, deserters, and traitors during the war. Less than 3 percent of these early trials touched on war crimes or crimes against humanity as defined by Nuremberg. Such trials slowed to a trickle after 1950, however, given that the West German judiciary and local police proved increasingly reticent to follow up on investigations as Allied supervision of the court system waned.10 The publicity garnered by Ulm, revealing the extent to which major offenders had escaped punishment after 1945, shocked the West German public and government out of the complacency of the early 1950s, garnering more media coverage than any legal proceeding since Nuremberg. Relying on ordinary citizens to bring charges was no longer tenable; in October 1958 the West German states created the Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen (Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes [ZSL]) to coordinate investigative resources across states; Erwin Schüle, the lead prosecutor in the Ulm case, was its first director. While it could not try war criminals itself, it could conduct investigations and submit the findings to prosecutors for charging. By 1992, the ZSL had conducted 103,823 investigations, leading to 6,487 convictions. Yet this new vision of justice, driven by prosecutions under the German criminal code rather than the much-loathed statutes of Control Council Law 10, was bedeviled by its own problems, including expiring statutes of limitations, narrow definitions of guilt for murder and attempted murder, and sentences of only a few months or years in prison for even the most heinous of crimes.11 Although 1958 marked the end of Allied stewardship of war crimes trials and the beginning of a new age of West German Vergangenheitsbewältigung (coming to terms with the past), it was often too late to effectively punish perpetrators; much valuable time had been lost from 1950 to 1958 during the struggle over the legitimacy of Nuremberg. Were the Nuremberg trials a success or a failure? If the criterion for evaluation is whether West Germans collectively accepted their legitimacy, as American policymakers hoped, the verdict is negative.12 A slightly more positive evaluation, on the other hand, is possible when considering the broader context of the American war crimes trials in Germany alongside those in Japan. Setting aside the question of whether American justice was sufficiently punitive in

co ncl us io n 277

either case, the subsequent Nuremberg tribunals successfully removed defendants from public life and stripped them of political influence (no matter the sympathy that active politicians expressed for their plight), whereas in Japan this was not the case.13 Yet even if the Nuremberg trials’ ultimate outcome failed to live up to Taylor’s and other policymakers’ grandest historical, political, and pedagogical ambitions, did they succeed on their own terms? Whatever its setbacks between 1949 and 1958, the lessons and legacies of Nuremberg informed the creation of the International Criminal Court and international tribunals adjudicating crimes against humanity in the late twentieth and early twenty-first centuries. Whatever its false starts and delays, with a generational changing of the guard and cultural shifts in the 1960s, West Germany remained a democracy, and ultimately completed a legal, moral, and historical reckoning with its Nazi past.14 In this wider historical aperture, Taylor’s hopes for West Germany ultimately came true, even if the delay was great and the import of Nuremberg’s direct influence on these processes smaller than he expected, or even counterproductive. Granting that, as one scholar of the Nuremberg trials recently put it, “‘the road from Nuremberg to The Hague’ is now one of the most tired tropes in legal history,” the Nuremberg tribunals did enduringly shape the emergent field of international criminal law. The International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Court, and even national courts and appellate bodies have repeatedly treated the Nuremberg tribunal judgments at the very least as bearing the force of customary law, using them to define the scope of war crimes and crimes against humanity charges, reject certain defenses, and justify sentences.15 Yet in the realm of trial procedure, the path from Nuremberg to The Hague, if ever it existed, is much murkier. Reflecting in his memoirs on the Malmedy Massacre investigation, Lucius Clay acknowledged that, even though most of the accusations of torture and ill-treatment of prisoners was unsubstantiated, they “cast some discredit on these trials as a whole.”16 The cloud of impropriety lingered for over fifty years, as a 1995 ruling from the ICTY highlighted how their rules of procedure and evidence resolved some of the more unfortunate “flaws” of the Nuremberg proceedings.17 More specifically, architects of future international tribunals deemed the lack of an appellate process at Nuremberg a mistake: the 1993 ICTY and 1994 ICTR charters explicitly

2 7 8   co n clu s i o n

provided institutional mechanisms to appeal or revise sentences, and modern tribunals aim to be more specific and precise in their sentencing rationales than the Nuremberg judgments were.18 But whatever Nuremberg’s import or lack thereof, for the heady issues of West German transitional justice, the future of international law, or the generational struggle within West Germany to face up to the unpleasant history of the Nazi dictatorship, the twelve tribunals were first and foremost efforts to determine the guilt or innocence of 185 individuals for murder, theft, abuse, and enslavement, and to punish them for their transgressions. In this respect, even as the Nuremberg trials succeeded, the Nuremberg process failed. Convicted murderers and thieves of property, liberty, and dignity escaped justice because of a misguided American clemency and parole process. While small in scope, this is the greatest of Nuremberg’s failures.

ap p e n d i x

Sentencing Revisions for Nuremberg War Criminals Eligible for McCloy’s 1951 Clemency*

Case 1: United States of America v. Karl Brandt et al. (Doctors Trial); concluded 08-20-1947

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Hermann

20 years

time served

15 years

10 years

1952

Wilhelm Beigelböck

15 years

time served

12 years

10 years

1951

Fritz Fischer

life

10 years

20 years

15 years

1955

Karl Genzken

life

15 years

20 years

20 years

1954

Siegfried Handloser

life

10 years

20 years

20 years

1953

Herta Oberheuser

20 years

time served

15 years

10 years

1952

Helmut Poppendick

10 years

time served

—

time served

1951

Gerhard Rose

life

10 years

20 years

15 years

1955

Oskar Schröder

life

10 years

20 years

15 years

1955

Becker-Freysing

* Case 5: United States of America v. Friedrich Flick et al. (Flick Trial) and Case 6: United States of America v. Carl Krauch et al. (IG Farben Trial) do not appear in this appendix. The sixteen industrialists convicted in these two cases received short sentences ranging from one and a half to eight years. Because of McCloy’s reforms to the good-conduct reward program and backdating of credit for time served to include all time spent in Allied confinement during the war or after, the sentences of all sixteen expired by late 1950 or early 1951. This left them ineligible for clemency consideration by the 1950 Advisory Board.

279

2 8 0   ap p en d i x

Case 2: United States of America v. Erhard Milch (Milch Trial); concluded 04-14-1947

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Erhard Milch

life

15 years

—

15 years

1954

Case 3: United States of America v. Josef Altstötter et al. (Judges Trial); concluded 12-04-1947

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Wilhelm von

10 years

8 years

—

time served

1951

Ammon Günther Joel

10 years

8 years

no clemency

time served

1951

Herbert Klemm

life

15 years

no clemency

20 years

1957

Ernst Lautz

10 years

8 years

—

time served

1951

Rudolf Oeschey

life

10 years

no clemency

20 years

1955

Oswald Rothaug

life

20 years

no clemency

20 years

1956

Franz

life

time served

medical

medical

1951

Schlegelberger

parole

release

ap p endix 28 1

Case 4: United States of America v. Oswald Pohl et al. (WVHA/Concentration Camp Trial); concluded 11-03-1947

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Hans Baier

10 years

8 years

—

time served

1951

Hans Bobermin

15 years

7 years

12 years

time served

1951

Franz Eirenschmalz

death

time served

20 years

9 years

1951

Heinz-Karl Fanslau

20 years

15 years

—

15 years

1954

August Frank

life

15 years

20 years

15 years

1954

Hans Hohberg

10 years

time served

—

time served

1951

Max Kiefer

20 years

time served

—

time served

1951

Georg Lörner

life

15 years

20 years

15 years

1954

Hans Lörner

10 years

8 years

—

time served

1951

Karl Mummenthey

life

15 years

no clemency

20 years

1953

Oswald Pohl

death

no clemency

—

upheld

executed

Hermann Pook

10 years

time served

—

time served

1951

Karl Sommer

life

15 years

no clemency

20 years

1953

Erwin Tschentscher

10 years

time served

—

time served

1951

Leo Volk

10 years

7 years

no clemency

8 years

1951

1951

2 8 2   ap p en d i x

Case 7: United States of America v. Wilhelm List et al. (Hostages Trial); concluded 02-19-1948

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Ernst Dehner

7 years

no clemency

—

time served

1951

Helmut Felmy

15 years

10 years

—

10 years

1951

Walter Kuntze

life

no clemency

—

upheld

1953

Hubert Lanz

12 years

8 years

—

time served

1951

Wilhelm List

life

no clemency

—

upheld

1952

Ernst von Leyser

10 years

time served

—

time served

1951

Lothar Rendulic

20 years

10 years

—

10 years

1951

Wilhelm Speidel

20 years

8 years

10 years

time served

1951

Case 8: United States of America v. Ulrich Greifelt et al. (RuSHA Trial); concluded 03-10-1948

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Heinz Brückner

15 years

8 years

no clemency

time served

1951

Rudolf Creutz

15 years

10 years

no clemency

10 years

1954

Otto Hofmann

25 years

15 years

no clemency

15 years

1954

Herbert Hübner

10 years

time served

8 years

time served

1951

Werner Lorenz

20 years

15 years

no clemency

15 years

1954

Fritz Schwalm

10 years

time served

no clemency

time served

1951

ap p endix 28 3

Case 9: United States of America v. Otto Ohlendorf et al. (Einsatzgruppen Trial)*; concluded 04-10-1948

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Ernst Biberstein

death

life

no clemency

life

1958

Paul Blobel

death

no clemency

—

upheld

executed 1951

Walter Blume

death

20 years

no clemency

25 years

1955

Werner Braune

death

no clemency

—

upheld

executed

Lothar Fendler

10 years

time served

no clemency

8 years

1951

Walter Haensch

death

15 years

life

15 years

1955

Heinz Jost

life

10 years

—

10 years

1951

Waldemar

death

no clemency

—

life

1956

Erich Naumann

death

no clemency

—

upheld

executed

Gustav Nosske

life

10 years

20 years

10 years

1951

Otto Ohlendorf

death

no clemency

—

upheld

executed

Adolf Ott

death

no clemency

—

life

1958

Waldemar von

20 years

8 years

—

time

1951

1951

Klingelhöfer 1951

1951

Radetzky Felix Rühl

served 10 years

time served

—

time

1951

served Martin Sandberger

death

no clemency

—

life

1958

Heinz Schubert

death

8 years

12 years

10 years

1951

Erwin Schulz

20 years

10 years

no clemency

15 years

1954

Willi Seibert

death

8 years

20 years

15 years

1954

Franz Six

20 years

8 years

12 years

10 years

1952

Eugen Steimle

death

15 years

life

20 years

1954

* Not listed here: Eduard Strauch, sentenced to death at Nuremberg but transferred to Belgian custody for trial on additional charges there, where he remained until his death in 1955. Since Strauch was in Belgium, his case file was not reviewed by HICOG in 1950–1951.

2 8 4   ap p en d i x

Case 10: United States of America v. Alfried Krupp et al. (Krupp Trial); concluded 07-31-1948

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Friedrich von

12 years

7 years

—

time served

1951

Karl Eberhardt

9 years

7 years

—

time served

1951

Eduard

10 years

7 years

—

time served

1951

Max Ihn

9 years

7 years

—

time served

1951

Friedrich Janssen

10 years

7 years

—

time served

1951

Heinrich Korschen

6 years

5 years

—

time served

1951

Alfried Krupp von

12 years,

7 years, no

—

time served,

1951

Bohlen und

asset

asset

no asset

Halbach

seizure

 seizure

seizure

Bülow

Houdremont

Heinrich Lehmann

6 years

5 years

—

time served

1951

Erich Müller

12 years

7 years

—

time served

1951

Case 11: United States of America v. Ernst von Weizsäcker et al. (Ministries Trial)*; concluded 04-13-1949

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Gottlob Berger

25 years

10 years

15 years

10 years

1951

Hans Kehrl

15 years

8 years

—

time served

1951

Wilhelm Keppler

10 years

time served

—

time served

1951

Paul Körner

15 years

10 years

—

time served

1951

Hans Heinrich

20 years

10 years

—

10 years

1951

15 years

12 years

no

9 years

1951

Lammers Paul Pleiger

clemency Johann Ludwig Graf   Schwerin von

10 years

time served

—

time served

1951

20 years

10 years

—

10 years

1951

Krosigk Edmund Veesenmayer

* Ernst von Weizsäcker not included; he was released in October 1950 after a separate sentence-reduction process (which shortened his sentence from seven years to five) and the application of good-conduct time.

ap p endix 28 5

Case 12: United States of America v. Wilhelm von Leeb et al. (High Command Trial)*; concluded 10-28-1948

Prisoner

Tribunal Sentence

Advisory Board Recommendation

General Counsel Dissent

McCloy Decision

Year Released

Hermann Hoth

15 years

no clemency

—

upheld

1954

Georg von Küchler

20 years

10 years

no clemency

12 years

1953

Hermann Reinecke

life

20 years

no clemency

upheld

1954

Georg-Hans

15 years

no clemency

—

upheld

1952

Hans von Salmuth

20 years

12 years

—

12 years

1953

Walter Warlimont

life

15 years

no clemency

18 years

1954

Reinhardt

* Otto Wöhler not included in HICOG’s review; the application of good-conduct time meant that his eight-year sentence was already set to expire in February 1951.

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a rc h i v a l colle ction s

Amherst College Archives and Special Collections, Amherst College Library John J. McCloy Papers Columbia Center for Oral History Archives, Rare Book & Manuscript Library, Columbia University, New York City, New York New York Bar Project: The Reminiscences of Judge David W. Peck, 1979 Franklin D. Roosevelt Presidential Library and Museum, Hyde Park, New York Eleanor Roosevelt Papers Harry S. Truman Presidential Library and Museum, Independence, Missouri Oral History Interview with Conrad E. Snow, July 2, 1973 The War Crimes Trials at Nuremberg Online Collections http://www.truman library.gov/library/online-collections/war-crimes-trials-at-nuremberg Harvard Law School Library, Historical & Special Collections Henry Lee Shattuck Papers United States Holocaust Memorial Museum, Washington DC RG 12.002.02—Benjamin B. Ferencz Collection RG 67.014M—Series H (Alphabetical Files) of the Records of the World Jewish Congress, New York Office, 1919–1981 United States National Archives, College Park, Maryland RG 59—Department of State Central Files A1–1311 Subject Files of the Assistant Legal Advisor for European Affairs Relating to Germany and Austria, 1945–60 A1–1314 General Records of the Assistant Legal Advisor for German Affairs Relating to Germany and Austria, 1946–1956 RG 84—Records of Foreign Service Posts of the Department of State A1–1004 Germany, US Embassy Bonn; Records of the US Member of the Mixed Parole and Clemency Board 28 7

2 8 8   archiv a l c o l l e c ti o n s RG 238—World War II War Crimes Records NM-70 213—Correspondence, Index, and General Files 1950 RG 263—Records of the Central Intelligence Agency A1–24 Foreign Broadcast Information Service Daily Reports, 1941–59 RG 466—Records of the US High Commissioner for Germany A1–2 US High Commissioner John McCloy Top Secret General Records, 1949–52 A1–6 US High Commissioner John J McCloy Extracts from HICOG Staff Conference Meetings, 1949–52 A1–24 Classified Records, 1947–54 A1–25 Records Re the Execution of War Criminals on June 8, 1951 A1–48 Security Segregated Records of the Prisons Division A1–49 General Records of the Prisons Division A1–53 Prisons Division—Petitions for Clemency or Parole and Related Records of Persons Convicted by the US Military Tribunals at Nuremberg A1–55 War Criminal Case Files and Related Records

n o te s

in t ro d u ct io n 1. Associated Press, “21 Nazis Shout for Joy as U.S. Reprieves Them,” Chicago Daily Tribune, February 1, 1951, 8. J. Emlyn Williams, “McCloy’s Clemency Wins Favor of West Germans,” Christian Science Monitor, February 1, 1951, 7. 2. “War Criminals’ Sentences,” Times (London), February 2, 1951, 5. “Germans Released from Prison,” Times (London), February 4, 1951, 6. “Nazi Prisoners Freed, 1951.” British Pathé, https://www.britishpathe.com/video/nazi-prisoners-freed/. 3. Jack Raymond, “Krupp to Get Part of Property Back,” New York Times, February 1, 1951. Foreign Broadcast Information Service (hereafter FBIS), “Daily Report, Foreign Radio Broadcasts, No. 28, 1951: Western Europe and Near East,” February 2, 1951, SS-1, National Archives, College Park, MD (hereafter NACP), RG 238: A1–24, Box 369. 4. HICOG Public Relations Division, “Review of German and Foreign Press Reaction to the Clemency Decisions of Landsberg War Crimes Cases,” February 16, 1951, 10, NACP RG 466: A1–55, Box 1, File “War Crimes.” 5. “Germans Released from Prison.” 6. “Control Council Law 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Crimes Against Humanity,” December 20, 1945, https://avalon .law.yale.edu/imt/imt10.asp. 7. M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd rev. ed. (The Hague, Netherlands: Kluwer Law International, 1999), 12, 78, 390–391, 525– 531. For this reason, the tribunals interpreted “crimes against humanity” as “crimes committed on foreign soil or against foreign nationals during the war,” surrendering jurisdiction over criminal acts that occurred before 1939 or against German citizens unless they were explicitly linked to a charge of conspiracy against the peace. Likewise, the charge of “membership in a criminal organization” was carefully grounded

28 9

2 9 0   n o t es to pa ge s 4 – 7 in existing legal understandings of conspiracy. The associational element of joining the SS, for example, was not itself a crime; the offense was that the duties of membership in the SS constituted a conspiracy of common purpose to commit criminal acts, language adopted in the United States to combat organized crime. 8. Even these prisoners, however, received credit for both pre-trial confinement and then for “good behavior” accrued at the rate of first five and then ten days per month. 9. On the multiple historical, political, moral, and legal narratives contested at Nuremberg see Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence (New York: Oxford University Press, 2016). 10. Jeffrey Herf, Divided Memory: The Nazi Past and the Two Germanys (Cambridge, MA: Harvard University Press, 1997) and Norbert Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration, trans. Joel Golb (New York: Columbia University Press, 2002). 11. Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946–1955 (New York: Praeger, 1989). Frank M. Buscher, “The U.S. High Commission and German Nationalism,” Central European History 23, no. 1 (March 1990): 57–75. John Mendelsohn, “War Crimes Trials and Clemency in Germany and Japan,” in Robert Wolfe, ed., Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 (Carbondale, IL: Southern Illinois University Press, 1984), 226–259. 12. Peter Maguire, Law and War: An American Story (New York: Columbia University Press, 2000), 17, 210. 13. Hundreds of thousands of Germans perished in the aftermath. R. M. Douglas, Orderly and Humane: The Expulsion of the Germans after the Second World War (New Haven, CT: Yale University Press, 2012). 14. Frei, Adenauer’s Germany, 147–175. Alaric Searle, Wehrmacht Generals, West German Society, and the Debate on Rearmament (Westport, CT: Praeger, 2003), 139–230. On the postwar political activities of Wehrmacht veterans’ associations, see Jay Lockenour, Soldiers as Citizens: Former Wehrmacht Officers in the Federal Republic of Germany, 1945–1955 (Lincoln: University of Nebraska Press, 2001). 15. Theophil Wurm et al., Memorandum by the Evangelical Church in Germany on the Question of War Crimes Trials Before American Military Courts (Waiblingen: Stürmer, 1949). This screed against the Nuremberg tribunals was funded in part by IG Farben. S. Jonathan Wiesen, West German Industry and the Challenge of the Nazi Past, 1945– 1955 (Chapel Hill: University of North Carolina Press, 2001), 203. On how these debates played out in German Christendom more broadly, see Mathew D. Hockenos, A Church Divided: German Protestants Confront the Nazi Past (Bloomington, IN: Indiana University Press, 2004). 16. Donald Bloxham and Jonathan Waterlow, “War Crimes Trials,” in Richard J. B. Bos­ worth and Joseph A. Maiolo, eds., The Cambridge History of the Second World War, vol. 2, Politics and Ideology (New York: Cambridge University Press, 2015), 199, 207. 17. These efforts included the “reeducation” of German POWs in American camps as to the benefits of democracy and capitalism. Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, NJ: Transaction, 1995), 225–226. Ron Theodor Robin, The Barbed-Wire College (Princeton, NJ: Princeton University Press, 1995). 18. Priemel, The Betrayal, 1–6, 161–166.

n o t es t o p ag es 8 –1 2  291 19. Bassiouni, Crimes Against Humanity, 534–538. 20. Associated Press, “21 Nazis Shout for Joy.” 21. From the legal perspective, highlighting the uniqueness of the crimes and the perpetrators was undesirable, since that framing would “narrow” the Nuremberg principles and render them inapplicable to governing conduct in future conflicts. Ironically, the desire to see the Nuremberg principles codified into international law through the United Nations depended on the normalization of Nazi crimes. Osiel, Mass Atrocity, 116–117. 22. Theodor Meron, “From Nuremberg to The Hague,” in War Crimes Law Comes of Age: Essays (New York: Oxford University Press, 1999), 198–203. Christian Tomuschatt, “International Criminal Prosecution: The Precedent of Nuremberg Confirmed,” in Roger S. Clark and Madeleine Sann, eds. The Prosecution of International Crimes (New Brunswick, NJ: Transaction Publishers, 1996), 17–27. Benjamin Ferencz, “From Nuremberg to Rome: A Personal Account,” in Mark Lattimer and Philippe Sands, eds., Justice for Crimes Against Humanity (Portland, OR: Hart, 2003), 31–45. 23. Chen Jian, Mao’s China and the Cold War (Chapel Hill: University of North Carolina Press, 2001), 46–50. 24. The American war plan against the Soviet Union for 1950, “Offtackle,” called for withdrawing from Continental Europe to hold Britain and other crucial bridgeheads in North Africa, although there was considerable pessimism that Europe could be retaken if such a scenario actually came to pass. Steven T. Ross, American War Plans, 1945–1950 (London: Frank Cass, 1996), 137–142. 25. Paul Thomas Chamberlain, The Cold War’s Killing Fields: Rethinking the Long Peace (New York: HarperCollins, 2018), 131–175. 26. Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (New York: Oxford University Press, 2001), 49–55, 155–163, 178–180. 27. Telford Taylor, “Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10,” August 15, 1949, 92, https://www .loc.gov/rr/frd/Military_Law/NT_final-report.html. 28. Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press, 2011), 95–96, 101–102, 105. 29. Steven P. Remy, The Malmedy Massacre: The War Crimes Trial Controversy (Cambridge, MA: Harvard University Press, 2017), 147–272. 30. Buscher, War Crimes Trial Program, 2–3, 60. John Mendelsohn, “War Crimes Trials and Clemency in Germany and Japan,” in Robert Wolfe, ed., Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 (Carbondale, IL: Southern Illinois University Press, 1984), 226–259. 31. United Press, “McCloy Denies ‘Whitewashing’ Convicted Nazis,” Washington Post, March 31, 1951, 7. Reuters, “McCloy Denies Politics Guided Nazis’ Release,” Chicago Daily Tribune, May 26, 1951, 11. 32. Especially if they were African American. W. Fitzhugh Brundage, ed., Under Sentence of Death: Lynching in the South (Chapel Hill: University of North Carolina Press, 1997); Dan T. Carter, Scottsboro: A Tragedy of the American South (Baton Rouge: LSU Press, 2007); Melissa Milewski, Litigating Across the Color Line: Civil Cases Between Black and

2 9 2   n o t es to pa g e s 1 2 – 1 7 White Southerners from the End of Slavery to Civil Rights (Oxford: Oxford University Press, 2018). 33. Adenauer presented such a list of demands to the assembled British, French, and American high commissioners on November 16, 1950. Frei, Adenauer’s Germany, 153–154. This interpretation is a general theme appearing in Frei, Adenauer’s Germany; Bloxham, Genocide on Trial; Heller, Nuremberg Military Tribunals; and Maguire, Law and War. 34. Herf, Divided Memory, 6–7, 271–273, 288–292. Frei, Adenauer’s Germany, xi–xv. This was expressed in policy through the adoption of Article 131 to the German Constitution in May 1951 permitting ex-Nazis to rejoin the civil service. Frei, Adenauer’s Germany, 41–65. Curt Garner, “Public Service Personnel in West Germany in the 1950s: Controversial Policy Decisions and Their Effects on Social Composition, Gender Structure, and the Role of Former Nazis,” Journal of Social History 29, no. 1 (Autumn 1995): 25–80. See also Thomas Maulucci, Adenauer’s Foreign Office: West German Diplomacy in the Shadow of the Third Reich (DeKalb, IL: Northern Illinois University Press, 2012). The competing priorities of justice, reconstruction, and reconciliation continue to preoccupy the writings of scholars and practitioners of international law and the policies pursued by the United Nations toward transitional societies. See Peter R. Baehr, “How to Come to Terms with the Past,” and Michael P. Scharf, “Trading Justice for Peace: The Contemporary Law and Policy Debate,” in Edel Hughes, William A. Schabas, and Ramesh Thakur, eds., Atrocities and International Accountability: Beyond Transitional Justice (New York: United Nations University Press, 2007). 1. amer ica n j us ti c e 1. Timothy Snyder, Bloodlands: Europe Between Hitler and Stalin (New York: Basic Books, 2010), 174–186. Rolf-Dieter Müller and Gerd R. Ueberschär, Hitler’s War in the East, 1941–1945: A Critical Assessment, trans. Bruce D. Little (New York, Berghahn Books, 2009), 217. 2. Valerie Hébert, Hitler’s Generals on Trial: The Last War Crimes Tribunal at Nuremberg (Lawrence: University Press of Kansas, 2010), 193. 3. Trials of War Criminals before the Nuernberg Military Tribunals, vol. 11 (Washington DC: Government Printing Office, 1950), 648–661, 698–702. 4. “A Report to the National Security Council—NSC 68,” April 12, 1950, Ideological Foundations of the Cold War, Research File, Truman Library, http://www.truman library.gov/library/research-files/report-national-security-council-nsc-68?document id=NA&pagenumber=1. 5. William Stueck, Rethinking the Korean War: A New Diplomatic and Strategic History (Princeton, NJ: Princeton University Press, 2002), 124–127, 223–225. Laurien Krump, The Warsaw Pact Reconsidered: International Relations in Eastern Europe, 1955–1969 (New York: Routledge, 2015), 21–26. On West German rearmament, see Alaric Searle, Wehrmacht Generals, West German Society, and the Debate on Rearmament, 1949–1959 (Westport, CT: Praeger, 2003). 6. On the myth of the “clean” Wehrmacht, see Jens Brüggemann, Männer von Ehre? Die Wehrmachtgeneralität im Nürnberger Prozess 1945/46: Zur Entstehung einer Legende (Paderborn: Brill, 2018), and Ronald Smelser and Edward J. Davies, The Myth of the

n o t es t o p ag es 1 7–22  293 Eastern Front: The Nazi-Soviet War in American Popular Culture (New York: Cambridge University Press, 2007). 7. Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence (New York, Oxford University Press: 2016), 353–355. 8. Lisa Yivani, “U.S. Army War Crimes Trials in Germany, 1945–1947,” in Patricia Heberer and Jürgen Matthäus, eds., Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes (Lincoln: University of Nebraska Press, 2008), 49–71. See also Ludwig Eiber and Robert Sigel, eds., Dachauer Prozesse: NS-Verbrechen vor amerikanischen Militärgerichten in Dachau 1945–48: Verfahren, Ergebnisse, Nachwirkungen (Göttingen: Wallstein Verlag, 2007). On criticisms of the US Army’s trial program see Tomaz Jardim, The Mauthausen Trial: American Military Justice in Germany (Cambridge, MA: Harvard University Press, 2012), 5–6, 33–36, 82–83, 162–167. 9. Anna J. Merritt and Richard L. Merritt, eds., Public Opinion in Semisovereign Germany: The HICOG Surveys, 1949–1955 (Urbana: University of Illinois Press, 1980), 101. 10. Nathan Stoltzfus, “‘A Great Achievement of German Troops in Mountain Warfare’: Cold War Pressures and the German Prosecution of Wehrmacht War Crimes in the Case of Cephalonia, 1943,” in Nathan Stoltzfus and Henry Friedlander, eds., Nazi Crimes and the Law (New York: Cambridge University Press, 2008), 115. 11. Clay to Noce, September 8, 1947, in Jean Edward Smith, ed., The Papers of Lucius Clay: Germany 1945–1949, vol. 1 (Bloomington, IN: Indiana University Press, 1974), Doc. 259. Drew Pearson, “The Fate of the Nazis is Weighed,” Washington Post, April 30, 1948, C11. 12. Donald Bloxham and Jonathan Waterlow, “War Crimes Trials,” in Richard J. B. Bos­ worth and Joseph A. Maiolo, eds., The Cambridge History of the Second World War, vol. 2, Politics and Ideology (New York: Cambridge University Press, 2015), 201. 13. Clay to Draper, January 13, 1948, in Jean Edward Smith, ed., The Papers of Lucius Clay: Germany 1945–1949, vol. 2 (Bloomington, IN: Indiana University Press, 1974), Doc 317 (hereafter Clay Papers 2). 14. Otto Zausmer, “Field Marshal Milch Poses Knotty Problem for U.S. High Court Justices,” Boston Globe, October 17, 1947, 1. The Supreme Court declined to intervene, however. Associated Press, “Court’s 4–4 Split on Nazi Marshal Stymies Appeal,” Los Angeles Times, October 21, 1947, 4. 15. Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press, 2011), 332. 16. Clay to Draper, May 24, 1948, Clay Papers 2, Doc. 403. 17. Clay to Draper, May 26, 1948, Clay Papers 2, Doc. 404. 18. Clay to Draper, May 31, 1948, Clay Papers 2, Doc. 409. 19. Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (New York: Oxford University Press, 2001), 159–160. 20. Kim Phillips-Fein, Invisible Hands: The Making of the Conservative Movement from the New Deal to Reagan (New York: Norton, 2009), 3–67. 21. Peter Maguire, Law and War: An American Story (New York: Columbia University Press, 2000), 170–175. 22. Lucius Clay, Decision in Germany (New York: Doubleday & Co., 1950), 253. Steven P. Remy, The Malmedy Massacre: The War Crimes Trial Controversy (Cambridge, MA: Har-

2 9 4   n o t es to pa g e s 2 2 – 2 6 vard University Press, 2017), 110, 128–139, 145–150. Hébert, Hitler’s Generals, 44–54. On changing congressional attitudes toward Nuremberg, see William J. Bosch, Judgment on Nuremberg: American Attitudes Toward the Major German War-Crime Trials (Chapel Hill: University of North Carolina Press, 1970), 67–86. 23. Clay to Byrnes, February 13, 1948, “Teleconference TT-9280 between Maj. Gen. Daniel Noce and Clay,” March 31, 1948, and Clay to Byrnes, September 18, 1948, Clay Papers 2, Docs. 332, 356, and 543. 24. “4 Nazi Doctors Hanged for Torture Tests,” Washington Post, June 3, 1948, 18. “7 Germans Hanged for Medical Tests,” New York Times, June 3, 1948, 12. 25. Clay to Draper, June 9, 1948, Clay Papers 2, Doc. 416. 26. Clay to Draper, September 27, 1948, Clay Papers 2, Doc. 549. 27. Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958: Atrocity, Law, and History (New York: Cambridge University Press, 2009), 274. Remy, Malmedy Massacre, 148–151. 28. Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 5 (Washington DC: Government Printing Office, 1950), 168–170. Trials of the War Criminals Before the Nuernberg Military Tribunals, vol. 9 (Washington DC, Government Printing Office: 1950), 1453–1454. Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 14 (Washington DC: Government Printing Office, 1951), 871–942 (hereafter NMT 14). 29. Maguire, Law and War, 212. 30. Clay to Draper, December 21, 1948, Clay Papers 2, Doc. 616. Remy, Malmedy Massacre, 145. Hébert, Hitler’s Generals, 242 n.48. 31. Maguire, Law and War, 214. 32. “Teleconference TT-1974: Assistant Secretary Tracy Voorhees and Lucius Clay,” March 3, 1949, Clay Papers 2, Doc. 678. 33. Clay to Voorhees, March 29, 1949, Clay Papers 2, Doc. 697. 34. Maguire, Law and War, 205–206. Remy, Malmedy Massacre, 222–225. 35. Earl, SS-Einsatzgruppen Trial, 275–277. Jonathan Friedman, “Law and Politics in the Subsequent Nuremberg Trials, 1946–1949,” in Patricia Heberer and Jürgen Matthäus, eds., Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes (Lincoln: University of Nebraska Press, 2008), 88–89. Remy, Malmedy Massacre, 221–246. 36. Suzanne Brown-Fleming, “Granting Absolution: Vatican Nuncio Aloisius Cardinal Muench and the Catholic Clemency Campaign,” Kirchliche Zeitgeschichte 19, no. 2 (2006): 359–367. JonDavid K. Wyneken, “Memory as Diplomatic Leverage: Evangelical Bishop Theophil Wurm and War Crimes Trials, 1948–1952,” Kirchliche Zeitgeschichte 19, no. 2 (2006): 368–388. Norbert Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration, trans. Joel Golb (New York: Columbia University Press, 2002), 97–119. Priemel, The Betrayal, 360–363. 37. On McCloy’s deep connections to the New York and Washington “establishment,” see Kai Bird, The Chairman: John J. McCloy and the Making of the American Establishment (New York: Simon & Schuster, 1992) and Walter Isaacson and Evan Thomas, The Wise Men: Six Friends and the World They Made (New York: Simon & Schuster, 1986). 38. “John J. McCloy Interview Transcript, 1984 Apr. 24,” 17–18, United States Holocaust Memorial Museum Archives (USHMM) RG 12.002.02*12.

n ot es t o p ag es 27–31   295 39. John J. McCloy to Benjamin Ferencz, June 7, 1977, USHMM RG 12.002.02*11. 40. Katharina von Kellenbach, The Mark of Cain: Guilt and Denial in the Postwar Lives of Nazi Perpetrators (New York: Oxford University Press, 2013), 65. 41. Remy, Malmedy Massacre, 171–174. Priemel, The Betrayal, 360–361. Jens Westemeier, Joachim Peiper: A Biography of Himmler’s SS Commander, trans. Christine Wisowaty (Atglen, PA: Schieffer, 2007), 172–174. 42. Kellenbach, Mark of Cain, 29, 63–70. 43. Reinhold Niebuhr to John J. McCloy, June 16, 1949, John J. McCloy Papers (hereafter JJMP), Amherst College Archives and Special Collections, Box 30, folder 24. Earl, SS-Einsatzgruppen Trial, 119. 44. Kellenbach, Mark of Cain, 55–61, 177–178. 45. George Kennan to John J. McCloy, June 3, 1949, JJMP, Box 30, folder 24. 46. Bernard Gufler to George Kennan, May 19, 1949, JJMP, Box 30, folder 24. 47. NMT 14, 475–509. Christopher Browning, The Final Solution and the German Foreign Office (New York: Holmes and Meier, 1978), 187–188, 200. Thomas W. Maulucci, Adenauer’s Foreign Office: West German Diplomacy in the Shadow of the Third Reich (DeKalb, IL: Northern Illinois University Press, 2012), 36, 82–83. On Weizsäcker’s ties to the resistance, see Peter Hoffmann, The History of the German Resistance, 1933– 1945, trans. Richard Barry (Cambridge, MA: MIT Press, 1977), 63–64, 108–113, 245. 48. Thomas Alan Schwartz, “John J. McCloy and the Landsberg Cases,” in Jeffrey M. Diefendorf, Axel Frohn, and Hermann-Josef Rupieper, eds., American Policy and the Reconstruction of West Germany (Washington DC: German Historical Institute and Cambridge University Press, 1993), 439–440. 49. Nasser Hussain and Austin Sarat, “Toward New Theoretical Perspectives on Forgiveness, Mercy, and Clemency: An Introduction,” in Austin Sarat and Nasser Hussain, eds., Forgiveness, Mercy, and Clemency (Stanford, CA: Stanford University Press, 2007), 5–7. Carolyn Strange, “Mercy and Parole in Anglo-American Criminal Justice Systems from the Eighteenth Century to the Twenty-First Century,” in Paul Knepper and Anja Johansen, eds., The Oxford Handbook of Crime and Criminal Justice (New York: Oxford University Press, 2016), 573–587. 50. Andrew Novak, Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective (New York: Routledge, 2016), 39–43. 51. Daniel T. Kobil, “Should Mercy Have a Place in Clemency Decisions?” in Sarat and Hussain, Forgiveness, Mercy, and Clemency, 36–39. Strange, “Mercy and Parole,” 573– 587. 52. John M. Raymond to Theodore B. Olson, “Letter from Mr. Morgenthau Re: War Criminals,” March 15, 1951, USHMM RG 12.002.02*11. The full text of Executive Order 10062 is available through the Truman Library at https://www.trumanlibrary .gov/library/executive-orders/10062/executive-order-10062. The full text of the Charter of the Allied High Commission, reflecting some minor amendments on March 7, 1951, is available through Foreign Relations of the United States (hereafter FRUS) at https://history.state.gov/historicaldocuments/frus1951v03p2/d66. Military Government Ordinance No. 7 is available through Yale Law School’s Avalon Project at http:// avalon.law.yale.edu/imt/imt07.asp. 53. Raymond to Olson, “Letter from Mr. Morgenthau.”

2 9 6   n o t es to pa g e s 3 2 – 41 54. Heller, Nuremberg Military Tribunals, 356–358. 55. J. B. Rintels to C. A. McLain, “Clemency for Nuremberg War Crimes Prisoners,” December 28, 1949, 3–6, NACP RG 466: A1–48, Box 10, File “War Crimes Clemency Program 1949–1950.” 56. Rintels to McLain, “Clemency for Nuremberg War Crimes Prisoners,” 7. 57. C. A. McLain to John J. McCloy, “War Crimes Clemency Board,” January 19, 1950, NACP RG 466: A1–48, Box 6, File “Clemency Advisory Board—General File 1950.” 58. Memorandum, “War Crimes Clemency Program,” January 1950, 1–3, NACP RG 466: A1–48, Box 10, File “War Crimes Clemency Program 1949–1950.” 59. “Addresses by the Hon. John J. McCloy, U.S. High Commissioner for Germany: Washington DC, January 23, 1950, and Stuttgart Germany, February 6, 1950,” 3–5, JJMP, Box 9, folder 32. Reuters, “McCloy Defends Allied Law, Admits Some Nazis Escape,” Christian Science Monitor, February 14, 1951. 60. H. A. Byroade to Col. Raymond, February 3, 1950, USHMM RG 12.002.02*11. 61. Acheson to McCloy, February 8, 1950, USHMM RG 12.002.02*11. 62. McCloy to Acheson, February 17, 1950, USHMM RG 12.002.02*11. 63. Thomas Alan Schwartz, America’s Germany: John J. McCloy and the Federal Republic of Germany (Cambridge, MA: Harvard University Press, 1991), 160–161. 64. Robert Bowie to John J. McCloy, “Establishment of War Crimes Clemency Board,” March 2, 1950, 1–3, NACP RG 466: A1–48, Box 10, File “War Crimes Trials, War Criminals Clemency Program.” 65. This New Deal coalition was of course more interested in protecting some classes of human rights over others, given the racial politics of the United States. See Elizabeth Borgwardt, A New Deal for the World: America’s Vision for Human Rights (Cambridge, MA: Harvard University Press, 2005). 66. Dept. of Army to HICOG Frankfurt, Cable W-84486, June 28, 1950, NACP RG 466: A1–2, Box 2, File “June 1950.” 67. Donald A. Carter, Forging the Shield: the U.S. Army Europe, 1951–1962 (Washington DC: US Army Center if Military History, 2015), 171–172. 68. Hans-Peter Schwarz, Konrad Adenauer: A German Politician and Statesman in a Period of War, Revolution and Reconstruction, vol. 1, trans. Louise Willmot (New York: Berg­ hahn Books, 1995), 517. 69. NSC-71, “Extracts of Views of the Joint Chiefs of Staff with Respect to Western Policy Towards Germany, June 8, 1950.” Truman to Acheson, June 16, 1950, FRUS 1950, vol. 4, ed. William Z. Slany, Charles S. Sampson, and Rogers P. Churchill (Washington DC: US Government Printing Office, 1980), 686–688. 70. McCloy to Acheson, June 13, 1950, NACP RG 466: A1–2, Box 2, File “June 1950.” 71. Truman to Acheson, June 16, 1950, FRUS 1950, vol. 4, 686–689. 72. Acheson to McCloy, June 21, 1950, and McCloy to Acheson, June 24, 1950, NACP RG 466: A1–2, Box 2, File “June 1950.” 73. Douglas to Acheson, July 6, 1950, FRUS 1950, vol. 4, 695–696. 74. Priemel, The Betrayal, 377–378. 75. Acheson, “Views of the Department of State on the Rearmament of Western Germany,” July 3, 1950, FRUS 1950, vol. 4, 692–693. 76. McCloy to Acheson, July 14, 1950, NACP RG 466: A1–2, Box 2, File “July 1950.”

n ot es t o p ag es 4 1 –4 8   297 77. Byroade to Acheson, “Situation in Germany (Senate Foreign Relations Briefing),” July 23, 1950, FRUS 1950, vol. 4, 699–700. 78. Acheson, “Memorandum of Conversation with President Truman,” July 31, 1950, FRUS 1950, vol. 4, 702–703. 79. James McAllister, No Exit: America and the German Problem, 1943–1954 (Ithaca, NY: Cornell University Press, 2002), 185–196. 80. Carter, Forging the Shield, 173. 81. Schwarz, Konrad Adenauer, 554–555. 82. Ibid., 516–554. 83. Frei, Adenauer’s Germany, 147–149, 154–155. Hébert, Hitler’s Generals, 164–167. 84. John J. McCloy to Harry Truman, “The Situation in Germany,” September 10, 1950, 1–2, 5–7, JJMP, Box 32, folder 54. 85. Ibid., 9–11. 86. Ibid., 7, 9–11. 87. Legal Division, OMGUS, Enactments and Approved Papers of the Control Council and Coordinating Committee, vol. 4, Jul.–Sept. 1946 (Berlin, 1946), 63–65. 88. James Diehl, “U.S. Policy toward German Veterans, 1945–1950,” in Diefendorf, Frohn, and Rupieper, eds., American Policy, 365–373. On the veterans in West German politics, see James Diehl, The Thanks of the Fatherland: German Veterans after the Second World War (Chapel Hill: University of North Carolina Press, 1993). On West German public sentiments toward rearmament see David Clay Large, Germans to the Front: West German Rearmament in the Adenauer Era (Chapel Hill: University of North Carolina Press, 1995). 89. Adenauer to McCloy, December 6, 1950, NACP RG 466: A1–2, Box 3, File “December 1950.” 90. Heller, Nuremberg Military Tribunals, 362–367. Hébert, Hitler’s Generals, 188–196. Maguire, Law and War, 187–205. 91. Paul Thomas Chamberlain, The Cold War’s Killing Fields: Rethinking the Long Peace (New York: HarperCollins, 2018), 143–152. 92. HICOG Office of Political Affairs, “Paper on War Crimes and War Criminals for Consideration by United States High Commissioner,” [undated, late March 1953], 4, NACP RG 466: A1–48, Box 4, File “Interim Mixed Parole and Clemency Board (Background Materials and Documents).” 93. Sandra Wilson, Robert Cribb, Beatrice Trefalt and Dean Aszkielowicz, Japanese War Criminals: The Politics of Justice After the Second World War (New York: Columbia University Press, 2017), 77–78. On the Tokyo War Crimes Trial, see David Cohen and Yuma Totani, The Tokyo War Crimes Tribunal: Law, History, and Jurisprudence (New York: Cambridge University Press, 2018) and Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (New York: Oxford University Press, 2008). 94. Wilson et al., Japanese War Criminals, 120–123, 183. 95. “Treaty of Peace with Japan (with two declarations),” San Francisco, September 8, 1951, United Nations Treaty Series Online, https://treaties.un.org/doc/Publication/UNTS /Volume%20136/volume-136-I-1832-English.pdf. 96. Wilson et al., Japanese War Criminals, 182–184. 97. McCloy to Ferencz, June 7, 1977. Here McCloy was criticizing William Manchester,

2 9 8   n o t es to pa g e s 48 – 53 The Arms of Krupp: The Rise and Fall of the Industrial Dynasty that Armed Germany at War (1968; pbk. ed. New York: Back Bay, 2003), 669–687, which argued that political considerations and Cold War pressures were a deciding factor in the formation of a clemency program. 98. John J. McCloy to Telford Taylor, June 4, 1984, JJMP, Box 51, folder 90. Taylor had written to McCloy with several research questions pertinent to his memoir, later published as The Anatomy of the Nuremberg Trials: A Personal Memoir (New York: Knopf, 1992). 99. “John J. McCloy Interview,” 9. 100. See the correspondence between Acheson, Truman, and Lord Halifax in January and February 1950 regarding Halifax’s appeal to Truman on behalf of Ernst von Weizsäcker. NACP RG 59: A1–1311, Box 22, File “1950 January–February.” 2 . v o ices f r o m l a n d s be r g 1. Robert Moeller, War Stories: The Search for a Usable Past in the Federal Republic of Germany (Berkeley, CA: University of California Press, 2001) and Ruth Wittlinger, “Taboo or Tradition? The ‘Germans as Victims’ Theme in the Federal Republic until the mid-1990s,” in Bill Niven, ed., Germans as Victims: Remembering the Past in Contemporary Germany (Basingstoke: Palgrave MacMillan, 2006). 2. In this conception of Nazi “morality” the seminal event was the experience of the First World War, which ushered in decades of German subjugation under nefarious “un-German” political and cultural influences, particularly “Judeo-Bolshevism.” Claudia Koonz, The Nazi Conscience (Cambridge, MA: Harvard University Press, 2003); Michael Wildt, An Uncompromising Generation: The Nazi Leadership of the Reich Security Main Office, trans. Tom Lampert (Madison: University of Wisconsin Press, 2009); Christian Ingrao, Believe and Destroy: Intellectuals in the SS War Machine, trans. Andrew Brown (Malden, MA: Polity Press, 2013), esp. 51–116; and Raphael Gross, “Guilt, Shame, Anger, Indignation: Nazi Laws and Nazi Morals,” in Alan E. Steinweis and Robert D. Rachlin, eds., The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (New York: Berghahn Books, 2013), 89–103. 3. Einsatzgruppen commander Werner Braune, for instance, provided various justifications of his orders to massacre Jews and civilians as both legally and militarily necessary. He was one of the few prisoners not to receive a clemency recommendation. Werner Braune, “Petition for Clemency,” July 13, 1950, NACP RG 466: A1–53, Box 4, File “Braune, Werner Case #9 (death).” On the “superior orders” defense at trial, see Donald Bloxham, Genocide on Trial (New York: Oxford University Press, 2001), 149–150, 206–207. 4. Bloxham, Genocide on Trial, 137–145. Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence (New York: Oxford University Press, 2016), 354–362. Steven Remy, The Malmedy Massacre: The War Crimes Trial Controversy (Cambridge, MA: Harvard University Press, 2017), 127–142. Norbert Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Immigration, trans. Joel Golb (New York: Columbia University Press, 1997), 121–146. For contemporary attacks on the trials and their procedures, see Montgomery Belgion, Victor’s Justice (Hinsdale, IL: Henry Regenery, 1949) and Wilbourn E. Benton and Georg Grimm, eds.,

n ot es t o p ag es 5 3–5 6  299 Nuremberg: German Views of the War Trials (Dallas, TX: Southern Methodist University Press, 1955). 5. “Banality of evil” as a concept was popularized by Hannah Arendt’s Eichmann in Jerusalem: A Report on the Banality of Evil. Documentary evidence has since shown, however, that in many cases figures like Eichmann were not apolitical bureaucrats but enthusiastic ideologues. See David Cesarani, Becoming Eichmann: Rethinking the Life, Crimes, and Trial of a “Desk-Murderer” (Cambridge, MA: Da Capo Press, 2006) and Bettina Stangneth, Eichmann Before Jerusalem: The Unexamined Life of a Mass Murderer (New York: Knopf, 2014). In modern penological studies, prisoners’ self-­ conceptions are rigorously interrogated as a means of understanding the pathology of criminality and preventing recidivism through cognitive behavioral therapy interventions. Jack Bush, Daryl M. Harris, and Richard J. Parker, Cognitive Self Change: How Offenders Experience the World and What We Can Do About It (Oxford: Wiley-­ Blackwell, 2016). 6. See Katharina von Kellenbach, The Mark of Cain: Guilt and Denial in the Postwar Lives of Nazi Perpetrators (New York: Oxford University Press, 2013). 7. Theodore Abel, Why Hitler Came into Power (Cambridge, MA: Harvard University Press, 1986). Abel’s papers, including most of the collected autobiographies, have recently been digitized by the Hoover Institution Library and Archives, available at https://digitalcollections.hoover.org/advancedsearch/Objects/archiveType%3AItem %3BcollectionId%3A58225. 8. The petitions were either written in English by the prisoner or translated from German to English by defense counsel or authorized prison personnel. Only the documents in English were consulted by the Advisory Board. The petitions are thus of varying quality in terms of grammar and spelling. To avoid repeated distractions, I have chosen not to use “[sic]” when quoting these documents. 9. Prison director W. R. Graham linked the musical talents of former physician Siegfried Handloser with how he was “particularly appreciated by all for his friendly and cooperative attitude.” W. R. Graham to Whom It May Concern, April 12, 1950, NACP RG 466: A1–53, Box 9, File “Handloser, Siegfried Case #1 Life.” 10. Personal Data Sheet—Lothar Fendler, NACP RG 466: A1–53, Box 7, File “Fendler, Lothar Case #9 (10 years).” 11. Acheson to Col. Raymond, June 23, 1950, NACP RG 238: NM-70 213, Box 2, File “Clemency Committee—General File. S. H. Soutor Jr. to G. D. Fowlie, July 10, 1950, NACP RG 466: A1–49, Box 35, File “War Crimes Clemency Board.” McCloy to Acheson, Cable 5421, June 23, 1950, NACP RG 59: A1–1311, Box 7, File “German Clemency Board.” 12. In addition to the results of the Ministry of Justice’s investigations found in each individual file, see also Hans Rotberg to Clemency Board, July 28, 1950, NACP RG 238: NM 70–213, Box 2, File “General File Concerning All Cases.” 13. Medical Report on Walter Kuntze, [undated], “Neuro-psychiatric Examination by Dr. Spradley,” June 23, 1950, NACP RG 466: A1–53, Box 16, File “Kuntze, Walther Case #7 (life).” 14. “Neuro-psychiatric Examination by Dr. Spradley,” June 28, 1950, NACP RG 466: A1–53, Box 1, File “Becker-Freysing, Hermann Case #1 (20 Years).”

30 0   n o t es to pa ge s 56 – 6 0 15. “Neuro-psychiatric Examination by Dr. Spradley,” June 21, 1950, NACP RG 466: A1–53, Box 4, File “Brueckner, Heinz Case #8 (15 years).” 16. “Neuro-psychiatric Examination by Dr. Spradley,” June 26, 1950, NACP RG 466: A1–53, Box 13, File “Jost, Heinz Case #9 (life).” 17. “Neuro-psychiatric Examination by Dr. Spradley,” [undated, June 1950], NACP RG 466: A1–53, Box 2, File “Beigelboeck, Wilhelm Case #1 (15 yr).” 18. Erich Naumann, “Petition for Clemency,” June 25, 1950, NACP RG 466: A1–53, Box 22, File “Naumann, Erich Case #9 (death).” 19. On the activities of the US Historical Division as a postwar facilitator of German and American military doctrinal exchange, see Robert Hutchinson, German Foreign Intelligence from Hitler’s War to the Cold War: Flawed Assumptions and Faulty Analysis (Lawrence: University Press of Kansas, 2019), 200–240. 20. For a thorough accounting of the material deprivations of the West German citizenry during the occupation and political debates in the new Federal Republic on how best to distribute remaining national wealth to alleviate them, see Michael L. Hughes, Shouldering the Burdens of Defeat: West Germany and the Reconstruction of Social Justice (Chapel Hill: University of North Carolina Press 1999). 21. Hans Baier, “Statement,” June 22, 1950, 2–3, NACP RG 466: A1–53, Box 1, File “Baier, Hans—Case #4 (10 Years).” 22. Karl Mummenthey, “Petition for Pardon,” June 24, 1950, 7, NACP RG 466: A1–53, Box 22, File “Mummenthey, Karl Case #4 (life).” 23. Oswald Rothaug, “Clemency Plea,” June 24, 1950, 46, NACP RG 466: A1–53, Box 29, File “Rothaug, Oswald Case #3 (life).” 24. Hans Kehrl, “Memorandum of Hans Kehrl: Case IX of Nuremberg Trials,” June 25, 1950, 9, NACP RG 466: A1–53, Box 14, File “Kehrl, Hans Case #11 (15 years).” 25. Walter Blume, “Petition Submitted by Walter Blume to the Advisory Board on Clemency for War Criminals,” June 6, 1950, 9, NACP RG 466: A1–53, Box 3, File “Blume, Walter Case #9 (death).” 26. Hans Heinrich Lammers, “Statement,” June 26, 1950, 4, NACP RG 466: A1–53, Box 17, File “Lammers, Hans-Heinrich Case #11 (20 years).” On the sexual assault and rape of German women in Allied occupation zones see Atina Grossmann, “The ‘Big Rape’: Sex and Sexual Violence, War, and Occupation in German Post–World War II Memory and the Imagination,” in Karen Hagemann and Sonya Michel, eds., Gender and the Long Postwar: The United States and the Two Germanys, 1945–1989 (Baltimore, MD: Johns Hopkins University Press, 2014), 31–50; and Miriam Gebhardt, Crimes Unspoken: The Rape of German Women at the End of the Second World War, trans. Nick Somers (Malden, MA: Polity, 2019). 27. On the unflagging support of most war criminals’ spouses for their imprisoned husbands, see Kellenbach, Mark of Cain, 163–186. 28. Ernst Fischer to Advisory Board on Clemency for War Criminals, June 15, 1950, NACP RG 466: A1–53, Box 7, File “Fischer, Fritz Case #1 (life).” 29. Magdalene Fischer to Advisory Board on Clemency for War Criminals, June 18, 1950, NACP RG 466: A1–53, Box 7, File “Fischer, Fritz Case #1 (life).” 30. Melanie Koerner to The Clemency Board of the US High Commissioner for Germany Mr. John J. McCloy, June 10, 1950, NACP RG 466: A1–53, Box 15, File “Koerner, Paul Case #11 (15 Years).” On how demographic imbalances challenged traditional middle-­

n ot es t o p ag es 60–66  301 class gender roles in postwar West Germany, see Rebecca Boehling, “Gender Roles in Ruins: German Women and Local Politics under American Occupation, 1945– 1955,” in Hagemann and Michel, eds., Gender and the Long Postwar, 51–72, and Robert G. Moeller, Protecting Motherhood: Women and the Family in the Politics of Postwar West Germany (Berkeley, CA: University of California Press, 1993). 31. Mummenthey, “Petition for Pardon,” 6–7. 32. Blume, “Petition,” 1. 33. Georg-Hans Reinhardt, “Statement,” June 26, 1950, 1–2, NACP RG 466: A1–53, Box 28, File “Reinhardt, Hans Georg Case #12 (15 years).” 34. Heinz Jost, “Statement,” July 1, 1950, 1–2, NACP RG 466: A1–53, Box 13, File “Jost, Heinz Case #9.” 35. Jost, “Statement,” 2. 36. See Susannah Heschel, The Aryan Jesus: Christian Theologians and the Bible in Nazi Germany (Princeton, NJ: Princeton University Press, 2010), and Doris Bergen, Twisted Cross: The German Christian Movement in the Third Reich (Chapel Hill: University of North Carolina Press, 1996). 37. Emphasis in original. Siegfried Handloser, “Petition,” June 24, 1950, 6, 8–9, NACP RG 466: A1–53, Box 9, File “Handloser, Siegfried Case #1 Life.” 38. Ernst Biberstein, “Statement for Clemency Board,” June 25, 1950, 1–2, NACP RG 466: A1–53, Box 2, File “Biberstein, Ernst Case #9 (Death).” 39. Lammers, “Statement,” 3. 40. Gustav Nosske, “Statement,” June 26, 1950, 1, NACP RG 466: A1–53, Box 23, “File Nosske, Gustav Case #9 (life).” 41. Leo Volk, “Petition for Clemency,” [undated, 1950], 5, NACP RG 466: A1–53, Box 36, File “Volk, Leo Case #4 (10 years).” 42. Herbert Hübner, “Petition for Clemency,” [undated, June 1950], 2, NACP RG 466: A1–53, Box 12, File “Huebner, Herbert Case #8 (15 years).” 43. Felix Rühl, “Petition,” [undated, 1950], 4, NACP RG 466: A1–53, Box 29, File “Ruehl, Felix Case #9 (10 years).” 44. Hans Loerner, “Statement,” June 23, 1950, 2, NACP RG 466: A1–53, Box 19, File “Loerner, Hans Case #4 (10 years).” 45. This was particularly true of the cohort representing the “war youth generation” whose formative experiences were not frontline combat but the disintegration of the Kaiserreich and the political and economic instability of the early 1920s. Konrad Jarausch, “The Conundrum of Complicity: German Professionals and the Final Solution,” in Steinweis and Rachlin, eds., The Law in Nazi Germany, 15–35. Wildt, Uncompromising Generation, 21–80. 46. Hermann Pook, “Petition for Clemency,” June 1950 [no day provided], 1, NACP RG 466: A1–53, Box 26, File “Pook, Hermann Case #4 (10 years).” 47. August Frank, “Petition for Pardon of the Prisoner August Frank,” June 22, 1950, 1–3, NACP RG 466: A1–53, Box 8, File “Frank, August Case #4 (life).” 48. Karl Genzken, “Statement,” June 10, 1950, 1–2, NACP RG 466: A1–53, Box 8, File “Genzken, Karl Case #1 (life).” 49. Woldemar Klingelhöfer, “Petition for Pardon,” [undated, likely June 1950], 1–8, NACP RG 466: A1–53, Box 15, File “Klingelhoefer, Waldemar Case #9 (death).” 50. Handloser, “Petition,” 7.

30 2   n o t es to pa g e s 6 6 – 7 1 51. Georg von Küchler, “To the Administration of the Prison,” June 26, 1950, 5–6. RG 466: A1–53, Box 37, File “von Kuechler, Georg Case #12 (20 years).” 52. Erhard Milch, “To the Clemency Board,” June 1950, 4–5, 10–11, NACP RG 466: A1– 53, Box 21, File “Milch, Erhard Case #2 (Life).” 53. This included the conscious decision by the Reichswehr leadership to elevate the concept of service to the Fatherland above service to the government, legitimizing the widespread antipathy of the officer corps to the Weimar Republic, facilitating moves to undermine the constitution before 1933, and readily adapting to the aims and politics of the Nazi dictatorship afterward. Jay Lockenour, Soldiers as Citizens: Former Wehrmacht Officers in the Federal Republic of Germany, 1945–1955 (Lincoln: University of Nebraska Press, 2001), 63–72. Johannes Hürtner, Hitlers Heerführer: Die deutschen Oberbefehlshaber im Krieg gegen die Sowjetunion 1941/42 (München: R. Oldenbourg Verlag, 2007), 70–122. Gerhard Weinberg, “The Setting and Significance of the Nuremberg Trials: A Historian’s Perspective,” in Nathan Stoltzfus and Henry Friedlander, eds., Nazi Crimes and the Law (New York: Cambridge University Press, 2008), 39–40. 54. Milch, “To the Clemency Board,” 12–13. 55. Erich K. Müller to the Clemency Board for the Nuremberg Trials, June 26, 1950, 2, NACP RG 466: A1–53, Box 22, File “Mueller, Erich Case #10 (12 years).” 56. Gottlob Berger to Mr. Moran, Mr. Snow, and Mr. Peck, July 29, 1950, NACP RG 466: A1–53, Box 2, File “Berger, Gottlob Case #11 (25 years).” 57. Ibid., 1–2. Gottlob Berger, “My Present Opinion of the Past and of the Future,” [June 1950], NACP RG 466: A1–53, Box 2, File “Berger, Gottlob Case #11 (25 years).” 58. Ingrao, Believe and Destroy, 228–248. Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958 (New York: Cambridge University Press, 2009), 142–178. 59. Walter Kuntze, “Statement,” June 26, 1950, 1–5. 60. Mummenthey, “Petition for Pardon,” 3. 61. Max Kiefer, “Petition of Clemency,” [undated, 1950], 2, NACP RG 466: A1–53, Box 14, File “Kiefer, Max Case #4 (20 years).” 62. Walter Haensch to US High Commissioner Clemency Board for the Nuremberg Cases, June 26, 1950, 1–5, NACP RG 466: A1–53, Box 9, File “Haensch, Walter Case #9 (death).” 63. Jost, “Statement,” 2–4 64. Jost, “Statement,” 10–12. 65. Paul Blobel, “Petition of Clemency,” June 5, 1950, NACP RG 466: A1–53, Box 2, File “Blobel, Paul Case #9 (Death).” 66. Ibid. 67. Alfried Krupp von Bohlen und Halbach to the Clemency Board with the US High Commissioner in Germany, July 17, 1950, 44, NACP RG 466: A1–53, Box 16, File “Krupp von Bohlen-Halbach, Alfried Case #10 (12 years and forfeiture of all real and personal property).” 68. Karl Eberhardt to Clemency Board, June 25, 1950, 11, NACP RG 466: A1–53, Box 5, File “Eberhardt, Karl Case #10 (9 years).” 69. Milch, 41. 70. Personal Statement of Hermann Becker-Freysing, June 26, 1950, NACP RG 466: A1–53, Box 1, File “Becker-Freysing, Hermann Case #1 (20 Years).”

n o t es t o p ag es 71 –79  303 71. Erwin Tschentscher, “Statement,” April 19, 1950, NACP RG 466: A1–53, Box 36, File “Tschentscher, Erwin Case #4 (10 years).” 72. Hans Bobermin to the Clemency Board, [undated, 1950], 2, NACP RG 466: A1–53, Box 4, File “Bobermin, Hans Case #4 (15 years).” 73. Fritz Fischer, “Petition for Clemency,” June 23, 1950, 2, 6–8, NACP RG 466: A1–53, Box 7, File “Fischer, Fritz Case #1 (life).” 74. Lothar Fendler to the Clemency Board for the Nuernberg War Crimes Cases, 2, NACP RG 466: A1–53, Box 7, File “Fendler, Lothar Case #9 (10 years).” 75. Waldemar von Radetzky, “Petition for Clemency,” [undated, 1950], 2–4, NACP RG 466: A1–53, Box 37, File “File von Radetzky, Waldemar Case #9 (20 years).” 76. Nosske, 6–8. 77. David H. Kitterman, “Those Who Said ‘No!’: Germans Who Refused to Execute Civilians during World War II,” German Studies Review 11, no. 2 (May 1988): 241–254. Omer Bartov, Hitler’s Army: Soldiers, Nazis, and War in the Third Reich (New York, Oxford University Press, 1991) 59–105. Christopher Browning, The Origins of the Final Solution: The Evolution of Nazi Jewish Policy, September 1939–March 1942 (Lincoln: University of Nebraska Press, 2004) 253–267. Wolfram Wette, The Wehrmacht: History, Myth, Reality, trans. Deborah Lucas Schneider (Cambridge MA: Harvard University Press, 2006) 165–169. Guenter Lewy, Perpetrators: The World of the Holocaust Killers (New York: Oxford University Press, 2017), 75–86. 78. Ernst Lautz, “Statement Concerning Case III: Military Tribunal III,” June 9, 1950, 3–6, NACP RG 466: A1–53, Box 17, File “Lautz, Ernst Case #3 (10 yr.).” 79. Jan Erik Schulte, “The SS as the ‘Alibi of a Nation’? Narrative Continuities from the Nuremberg Trials to the 1960s,” in Kim C. Priemel and Alexa Stiller, eds. Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (New York: Berghahn Books, 2012), 134–160. 80. Mummenthey, “Petition for Pardon,” 3–5. 81. Bobermin to the Clemency Board, 4–5. 82. Friedrich Janssen to the Clemency Board, June 25, 1950, 6–7, NACP RG 466: A1–53, Box 13, File “Janssen, Friedrich Case #10 (10 years).” 83. Helmut Felmy, [untitled petition], June 1, 1950, 2–5, NACP RG 466: A1–53, Box 6, File “Felmy, Helmut Case #7 (15 years).” 84. Hubert Lanz, “Petition for Clemency,” June 19, 1950, 2, NACP RG 466: A1–53, Box 17, File “Lanz, Hubert Case #7 (12 years).” 85. Wilhelm List, “Personal Statement to the Clemency Board,” June 1950, 11–13, NACP RG 466: A1–53, Box 18, File “List, Wilhelm Case #7 (life).” 86. Küchler, “To the Administration,” 2. 87. Edmund Veesenmayer to Clemency Board, July 25, 1950, 2–3, NACP RG 466: A1–53, Box 38, File “Veesenmayer, Edmund Case #11 (20 years).” 88. Herbert Klemm to the US High Commissioner for Germany, June 28, 1950, 2, NACP RG 466: A1–53, Box 14, File “Klemm, Herbert Case #3 (life).” Hans Hohberg, “Petition for Clemency,” June 25, 1950, 4–5, NACP RG 466: A1–53, Box 11, File “Hohberg, Hans Case #4 (10 years).” 89. Oskar Schröder to Clemency Board, June 23, 1950, 2, NACP RG 466: A1–53, Box 31, File “Schroeder, Oskar Case #1 (life).”

30 4   n o t es to pa ge s 7 9 – 9 1 90. Heinrich Lehmann to Clemency Board, June 23, 1950, 2–3, NACP RG 466: A1–53, Box 18, File “Lehmann, Heinrich Case #10 (6 years).” 91. Baier, “Statement,”3–4. 92. Heinz-Karl Fanslau, “Petition for Clemency,” May 30, 1950, 2, NACP RG 466: A1– 53, Box 6, File “Fanslau, Heinz Case #4 (20 years).” 93. Helmut Poppendick to the Clemency Board, June 18, 1950, NACP RG 466: A1–53, Box 26, File “Poppendick, Helmut Case #1 (10 years).” 94. Rühl, “Petition,” 5. Heinrich Link to the Advisory Board on Clemency for German War Criminals,” July 28, 1950, NACP RG 466: A1–53, Box 29, File “Ruehl, Felix Case #9 (10 years).” 95. Genzken, “Statement,” 2–4. 96. On the “ideal” National Socialist woman, see Jill Stephenson, Women in Nazi Germany (London: Longman, 2001), 16–20, and Matthew Stibbe, Women in the Third Reich (London: Arnold, 2003), 40–46. 97. Herta Oberheuser, “Petition for Pardon and Review of Sentence, Passed on Me by the United States Military Tribunal in War Crimes Trial No. 1 (Ärzte Prozess) on August 20, 1947,” June 20, 1950, 1–3, NACP RG 466: A1–53, Box 23, File “Oberheuser, Herta Case #1 (20 years).” 98. Michael H. Kater, “Criminal Physicians in the Third Reich: Toward a Group Portrait,” in Francis R. Nicosia and Jonathan Huener, eds., Medicine and Medical Ethics in Nazi Germany: Origins, Practices, Legacies (New York: Berghahn Books, 2002), 77–88. On women physicians navigating the transition between the Weimar Republic and the Nazi dictatorship, see Melissa Kravetz, Women Doctors in Weimar and Nazi Germany: Maternalism, Eugenics, and Professional Identity (Toronto: University of Toronto Press, 2019). 99. Oberheuser, “Petition for Pardon,” 1–5. 100. “Neuro-psychiatric Examination by Dr. Spradley,” June 27, 1950, NACP RG 466: A1–53, Box 23, File “Oberheuser, Herta Case #1 (20 years).” 101. Wendy Lower, Hitler’s Furies: German Women in the Nazi Killing Fields (New York: Houghton Mifflin Harcourt, 2013), esp. 167–197. 102. Pook, “Petition for Clemency,” 3. 103. Martin Sandberger to the US High Commissioner’s Clemency Board, June 24, 1950, 5, NACP RG 466: A1–53, Box 30, File “Sandberger, Martin Case #9 (death).” 104. Oswald Pohl to the Office of the United States High Commissioner for Germany, June 26, 1950, 6–18, NACP RG 466: A1–53, Box 25, File “Pohl, Oswald Case #4 (death).” Pohl’s prison writings included a pamphlet entitled Credo: My Path to God, which described his personal theology. Kellenbach, Mark of Cain, 87–97. 105. Biberstein, “Statement for Clemency Board,” 3–4. 106. Biberstein, 8–13, 15. 107. Biberstein, 16–17. 108. Lammers, “Statement,” 5. 3. clemen c y 1. “Copy, Statement of General Snow (retired), Department of State,” [undated], Henry L. Shattuck Papers (hereafter HLSP), Harvard Law School Library, Historical & Special Collections, Box 1, File 17.

n ot es t o p ag es 92–97  305 2. Office of the US High Commissioner for Germany, Staff Announcement 117, “Establishment of Advisory Board on Clemency for War Criminals,” July 18, 1950, NACP RG 466: A1–48, Box 6, File “Clemency Advisory Board—General File 1950.” 3. Acheson to McCloy, March 1, 1950, USHMM RG 12.002.02*11. 4. John J. McCloy to Henry Morgenthau Jr., March 7, 1951, 1–2, JJMP, Box 32, folder 14. 5. Gerald D. Fowlie, “Operational History HICOG Advisory Board on Clemency for War Criminals,” [undated, early 1951], 1, NACP RG 466: A1–49, Box 36, File “War Crimes Clemency Board Operational History.” 6. New York Bar Project (hereafter NYBP), “Reminiscences of Judge David W. Peck,” 1979, 65–68, Columbia Center for Oral History Archives, Rare Book & Manuscript Library. 7. “F.A. Moran, 51, Pioneered U.S. Parole System,” Washington Post, February 10, 1952, M16. 8. McCloy to Morgenthau, 2. 9. Ibid. 10. Oral History Interview with Conrad E. Snow, July 2, 1973, 5–7, 11, 17–20, Truman Library, https://www.trumanlibrary.gov/library/oral-histories/snowce. 11. Frederick A. Moran, “Toward A Progressive Parole System,” June 3, 1949, 13–17. Reprinted in The University of Chicago Round Table: Prisons and Parole, No. 586, June 12, 1949. 12. McCloy to Handy, December 19, 1949, NACP RG 238: NM 70–213, Box 1, File “Box 1.” 13. McCloy to Handy, “Good Conduct Time Credit for War Criminals Under HICOG Jurisdiction,” December 20, 1949. Thomas Handy, “Establishment of System of Good Conduct Time Credit for War Criminals under European Command Jurisdiction,” December 20, 1949, NACP RG 238: NM 70–213, Box 1, File “Box 1.” 14. “McCloy Opposes General Amnesty,” New York Times, September 14, 1950, 20. John J. McCloy to Robert Marcus, March 20, 1950. Sam Gilstrop to Robert Marcus, December 27, 1950, USHMM RG 67.014M H-139, File 21. 15. J. M. Raymond to Robert Bowie, September 11, 1950, 2, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1950–1951.” 16. Colonel W. R. Graham, “Discrepancies in Commencement Date of Sentences and Other Data,” July 6, 1950, NACP RG 238: NM 70–213, Box 1, File “Box 1.” 17. McCloy to Marcus, March 20, 1950. Gilstrop to Marcus, December 27, 1950. Office of the US High Commissioner for Germany Public Relations Division, Landsberg Report, 1, NACP RG 466: A1–48, Box 11, File “Landsberg Prison War Criminals— 1949–1952.” The revised sentence tables are in NACP RG 466: A1–48, Box 6, File “Clemency Advisory Board—General File 1950.” 18. Thomas Allan Schwartz, “John J. McCloy and the Landsberg Cases,” in Jeffrey M. Diefendorf, Axel Frohn, and Hermann-Josef Rupieper, eds., American Policy and the Reconstruction of West Germany (Washington DC: German Historical Institute and Cambridge University Press, 1993), 439. HICOG to Department of State, “Mr. McCloy Replies to New York Editor’s Letter on Clemency for War Criminals,” August 30, 1950, USHMM RG 12.002.02*11. 19. Office of the US High Commissioner, “Establishment of Advisory Board.” 20. Draft Announcement, “Establishment of Advisory Committee on Clemency for War

30 6   n o t es to pa g e s 9 7 – 1 0 3 Criminals,” 17 May 1950, NACP RG 466: A1–48, Box 6, File “Clemency Advisory Board—General File 1950.” 21. Office of the US High Commissioner, “Establishment of Advisory Board.” 22. David W. Peck to Robert Bowie, May 17, 1950, USHMM RG 12.002.02*11. 23. “Landsberg Report,” Series B, 3, NACP RG 466: A1–49, Box 19, File: Landsberg (Report) 1951. 24. Interview with Conrad E. Snow, 12–13. 25. Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press, 2011), 349. 26. John J. McCloy to Mr. C. M. Bolds, Office of the Land Commissioner for Bavaria, [undated], NACP RG 238: NM-70 213, Box 2, File “Clemency Committee—General File.” Robert R. Bowie to Conrad Snow, June 29, 1950, NACP RG 59: A1–1311, Box 7, File “German Clemency Board.” 27. Conrad E. Snow to Jack Tate, July 26, 1950, NACP RG 59: A1–1311, Box 7, File “German Clemency Board.” 28. K. Morgenschweiss to Col. W. Graham, July 20, 1950, NACP RG 238: NM 70–213, Box 1, File “Box 1.” 29. Ibid. Graham to Fowlie, July 22, 1950. 30. Fowlie, “Operational History HICOG Advisory Board,” 10–11. 31. Interview with Conrad E. Snow, 15. 32. Office of the US High Commissioner for Germany Advisory Board on Clemency for War Criminals, “Board Hearings,” August 7–11, 1950, NACP RG 238: NM-70 213, 1950, Box 2, File “Clemency Committee—General File.” 33. Nikolaus Wachsmann, Hitler’s Prisons: Legal Terror in Nazi Germany (New Haven, CT: Yale University Press, 2004), 342. 34. Heller, Nuremberg Military Tribunals, 346–347. 35. Ferencz to Moran, Ferencz to Peck, and Ferencz to Snow, August 1, 1950. Fowlie to Ferencz, August 7, 1950, NACP RG 238: NM 70–213, Box 2, File “Miscellaneous Correspondence 1 Aug.–20 Sept. 1950.” Ferencz remembered this exchange vividly thirty-­ four years later. “John J. McCloy Interview, 1984,” 11, USHMM RG 12.002.02*12. 36. Heller, Nuremberg Military Tribunals, 348. Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 5 (Washington DC: Government Printing Office, 1950), 88 (hereafter NMT 5). 37. “John J. McCloy Interview,” 42–43. 38. Heller, Nuremberg Military Tribunals, 348–349, 354–355. For Control Council Law 10, see http://avalon.law.yale.edu/imt/imt10.asp. 39. Lucius D. Clay, “Order with Respect to Sentence of Alfried Felix Alwyn Krupp von Bohlen und Halbach,” April 1, 1949, reproduced in Trials of the War Criminals Before the Nuernberg Military Tribunals, vol. 9 (Washington DC: Government Printing Office, 1950), 1486–1487. 40. Apparently, the board did not see the reviews of eleven of the twelve tribunals by Lucius Clay as legitimate. “Landsberg Report,” Series C, 3, NACP RG 466: A1–48, Box 11, File “Landsberg Prison War Criminals—1949–1952.” 41. “Landsberg Report,” Series B, 3. 42. Ibid., 4–8. 43. Ibid., 9–10.

n o t es t o p ag es 1 03–1 1 5   307 44. Ibid., 11. 45. Ibid., 12–13. 46. Ibid., 14. 47. “Case 9 (Einsatzgruppen or Extermination Squad Case),” 6–13, NACP RG 466: A1– 55, Box 4, File “Case #9.” 48. “Case 9,” 10–11. “Klingelhöfer, Waldemar,” NACP RG 466: A1–24, Box 1, File “War Criminals (Miscellaneous) 1949–1950.” 49. “Case Number 4,” 2, NACP RG 466: A1–48, Box 13, File “War Crimes Trials Case No. 4 (Concentration Camp Administration Case) 1951.” 50. “Case Number 7,” 3–11, NACP RG 466: A1–55, Box 3, File “Case #7.” 51. Ibid. 52. Ibid. Case No. 12 (High Command Case), 15–20, NACP RG 466: A1–48, Box 13, File “War Crimes Trials Case No. 12.” 53. Frederick Moran to Conrad Snow, October 13, 1950, NACP RG 59: A1–1311, Box 7, File “German Clemency Board.” 54. “Case No. 12 (High Command Case),” 10–11, NACP RG 466: A1–48, Box 13, File “War Crimes Trials Case No. 12.” 55. Neuro-psychiatric Examination by Dr. Spradley, June 20, 1950, NACP RG 466: A1– 53, Box 37, File “von Kuechler, Georg Case #12 (20 years).” 56. Wachsmann, Hitler’s Prisons, 206–208, 213–215. 57. “Case No. 3 (Justice Case),” 3–4, NACP RG 466: A1–48, Box 13, File “War Crimes Trials Case No. 3 (Justice Case).” Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 3 (Washington DC: Government Printing Office, 1950), 1081–1087. 58. Ernst Klee, Das Personenlexikon zum Dritten Reich: Wer war was vor und nach 1945? (Frankfurt am Main: S. Fischer Verlag, 2003), 538. 59. “Case Number 4,” 6–7. 60. NMT 5, 1022–1023. 61. NMT 5, 1035–1040. 62. NMT 4, 555–559. Nosske’s reluctance to obey this later killing order was more personal than principle; his own social circle included several friends of mixed Christian and Jewish heritage who identified as German. Michael J. Bazyler and Frank M. Tuerkheimer, Forgotten Trials of the Holocaust (New York: New York University Press, 2014), 183. 63. “Case 9,” 16–18. 64. Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958: Atrocity, Law, and History (New York: Cambridge University Press, 2009), 161–162. 65. “Case Number 7,” 17. Mark Mazower, Inside Hitler’s Greece: The Experience of Occupation, 1941–44 (New Haven, CT: Yale University Press, 1993), 179. 66. “Case Number 7,” 17–18. “Helmuth Felmy,” NACP RG 466: A1–48, Box 6, File “Report of HICOG Advisory Board on Clemency for War Criminals—1 Sept. 1950 Part II.” 4 . u n d o in g n ur e m be r g 1. NYBP, “Reminiscences of Judge David W. Peck,” 1979, 133. Peck had editorial control over the transcript and later deleted his description of the postwar tribunals as “improvised.”

30 8   n o t es to pa ge s 1 1 6 – 1 2 8 2. Thomas Allan Schwartz, “John J. McCloy and the Landsberg Cases,” in Jeffrey M. Diefendorf, Axel Frohn, and Hermann-Josef Rupieper, eds., American Policy and the Reconstruction of West Germany (Washington DC: German Historical Institute and Cambridge University Press, 1993), 446. 3. “Case No. 8,” 4–5, NACP RG 466: A1–48, Box 12, File “War Crimes Trials Case No. 8 1952.” 4. Ian Kershaw, “Working Towards the Führer: Reflections on the Nature of the Hitler Dictatorship,” Contemporary European History 2, no. 2 (July 1993): 103–118. Peter Hayes, “Polycracy and Policy in the Third Reich: The Case of the Economy,” in Reevaluating the Third Reich, ed. Thomas Childers and Jane Caplan (New York: Holmes and Meier, 1993), 190–210. 5. NMT 5, 102–139. 6. “Case No. 8,” 8–9. NMT 5, 168–169. 7. “Case No. 8,” 5–6. NMT 5, 106. 8. “Case No. 8,” 9. NMT 5, 107–108. 9. “Case No. 1 (Medical Case),” 1–2, NACP RG 466: A1–55, Box 1, file “Case 1.” 10. “Case No. 1,” 8–9. 11. Ernst Klee, Das Personenlexikon zum Dritten Reich: Wer war was vor und nach 1945? (Frankfurt am Main: S. Fischer Verlag, 2003), 152. 12. “Case No. 1,” 8–9. 13. Klee, Personenlexikon, 507. 14. “Case No. 1,” 2–5. 15. Klee, Personenlexikon, 223. 16. “Case No. 1,” 5–7. 17. Klee, Personenlexikon, 561. Annie Jacobsen, Operation Paperclip: The Secret Intelligence Program that Brought Nazi Scientists to America (New York: Little, Brown, and Co., 2014), 218. 18. “Case No. 1,” 9. 19. Klee, Personenlexikon, 441. 20. “Case No. 3 (Justice Case),” 7–8, NACP RG 466: A1–48, Box 13, File “War Crimes Trials Case No. 3 (Justice Case).” 21. “Case No. 3,” 7–8. 22. “Case Number 2,” 2, NACP RG 466: A1–55, Box 1, File “Case 2.” 23. Adam Tooze, The Wages of Destruction: The Making and Breaking of the Nazi Economy (New York: Penguin Press, 2007), 628–630. 24. “Case 2,” 2–3. “Neuro-psychiatric Examination by Dr. Spradley,” June 20, 1950, NACP RG 466: A1–53, Box 21, File “Milch, Erhard Case #2 (Life).” 25. Nicholas Stargardt, The German War: A Nation Under Arms, 1939–1945 (New York: Basic Books, 2015), 297. Tooze, Wages of Destruction, 529–530, 610. 26. “Case No. 11,” 15–16, NACP RG 466: A1–55, Box 8, File “Case No. 11.” 27. Peter Hoffmann, The History of the German Resistance, 1933–1945, trans. Richard Barry (Cambridge, MA: MIT Press, 1977), 351–352, 471–474. 28. Trials of War Criminals before the Nuernberg Military Tribunals, vol. 11 (Washington DC: Government Printing Office, 1950), 1313–1317 (hereafter NMT 11). 29. “Case Number 7,” 18–20, NACP RG 466: A1–55, Box 3, File “Case #7.”

n o tes t o p ag es 1 28 –1 37  309 30. Rintels to Bross, “Case No. 7—Southeastern Generals,” October 25, 1950, NACP RG 466: A1–24, Box 1, File “War Criminals (Miscellaneous) 1949–50.” 31. Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 4 (Washington DC: Government Printing Office, 1950), 513–514 (hereafter NMT 4). 32. “Case 9 (Einsatzgruppen or Extermination Squad Case),” 19–21, NACP RG 466: A1– 55, Box 4, File “Case #9.” 33. NMT 4, 581–584. 34. Ibid. 35. “Case 9,” 24. 36. Jonathan Friedman, “Law and Politics in the Subsequent Nuremberg Trials, 1946– 1949,” in Patricia Heberer and Jürgen Matthäus, eds., Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes (Lincoln: University of Nebraska Press, 2008), 87. Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence (New York, Oxford University Press, 2016), 61–63, 322–326. 37. Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press, 2011), 101–102. Harold James, Krupp: A History of the Legendary German Firm (Princeton, NJ: Princeton University Press, 2012), 218–225. Telford Taylor repeatedly disputed the notion that the trial procedure was unfair. Telford Taylor, “The Krupp Trial: Fact v. Fiction,” Columbia Law Review 53, no. 2 (February 1953): 197–210. 38. “Peck Panel Report: Case No. 10,” 4, JJMP, Box 52, folder 9. 39. Trials of the War Criminals Before the Nuernberg Military Tribunals, vol. 9 (Washington DC: Government Printing Office, 1950), 1448–1449 (hereafter NMT 9). 40. NMT 9, 1396–1411. 41. Ibid., 1412–1413. 42. “Peck Panel Report: Case No. 10,” 7. 43. Heller, Nuremberg Military Tribunals, 92–93, 100–102, 303–305. 44. Emphasis in the original. “Peck Panel Report: Case No. 10,” 7–8. 45. “Case 9,” 13–15. These reports have been published as Yitzak Arad, Shmuel Krakowski, and Shmuel Spector, eds., The Einsatzgruppen Reports: Selections from the Dispatches of the Nazi Death Squads’ Campaign Against the Jews in Occupied Territories of the Soviet Union July 1941–January 1943 (New York: Holocaust Library, 1989). 46. “Case 9,” 13–15. 47. NMT 4, 540. 48. “Case 9,” 13–15. 49. Michael Wildt, An Uncompromising Generation: The Nazi Leadership of the Reich Security Main Office, trans. Tom Lampert (Madison: University of Wisconsin Press, 2009), 422. 50. “Case 9,” 9. 51. NMT 4, 547–554. 52. “Case 9,” 9–10. 53. “Case Number 4,” 7–8, NACP RG 466: A1–48, Box 13, File “War Crimes Trials Case No. 4 (Concentration Camp Administration Case) 1951.” 54. NMT 5, 1024–1030. 55. Heller, Nuremberg Military Tribunals, 352.

310   n o t es t o pa ge s 1 3 7 – 1 49 56. Klee, Personenlexikon, 132. 57. “Case No. 3,” 4–5. Trials of War Criminals Before the Nuernberg Military Tribunals, vol. 3 (Washington DC: Government Printing Office, 1950), 1099–1107. 58. Klemm continued to fanatically push the judiciary to impose harsher sentences even as the regime’s collapse was imminent. “Case No. 3,” 4–5. Nikolaus Wachsmann, Hitler’s Prisons: Legal Terror in Nazi Germany (New Haven, CT: Yale University Press, 2004), 321–322. 59. Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958: Atrocity, Law, and History (New York, Cambridge University Press, 2009), 174–178. 60. “Case 9,” 14–15. 61. NMT 4, 542–544. 62. “Case 9,” 6–7. 63. NMT 5, 999–1001. 64. “Case Number 4,” 5. 65. NMT 5, 1010–1015. “Case Number 4,” 6. 66. NMT 5, 1056–1059. “Case Number 4,” 8. 67. NMT 14, 646–660. 68. NMT 14, 727–735, 825–832. 69. NMT 14, 418–435. 70. “Case No. 11,” 19–20. 71. NMT 14, 660–662. 72. “Case No. 11,” 9–10. 73. Richard Evans, The Third Reich in History and Memory (New York: Oxford University Press, 2014), 221, 233. 74. NMT 14, 589. 75. NMT 14, 604–605. 76. NMT 14, 399–416, 462–463, 589–605, 701–715, 803–809, 859–860. 77. NMT 14, 860. 78. “Case No. 11,” 10–15. 79. Ibid. 80. NMT 11, 1303. 81. “Case Number 7,” 20–22. 82. NMT 11, 1170, 1305. 83. “Case Number 7,” 20–22. 84. John A. Bross to David W. Peck, September 29, 1950, NACP RG 59: A1–1311, Box 7, File “German Advisory Board.” 5 . cr imes w i th o ut pun i s h m e n t 1. Jack Raymond, “McCloy Lashes Out at German Critics of Western Policy,” New York Times, June 17, 1950, 1. Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence (New York, Oxford University Press, 2016), 363–364. 2. Arieh J. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (Chapel Hill: University of North Carolina Press, 1998), 159–160. “Jews Hail McCloy Condemnation of New Wave of Anti-Semitic Attacks in West Germany,” April 20, 1950, USHMM RG 67.014M, H-139, File 21. “John J. McCloy Interview

n o t es t o p ag es 1 4 9–1 5 8   31 1 Transcript, 1984 Apr. 24,” USHMM RG 12.002.02*12, pp. 33–41. John J. McCloy, “Speech: Opening of the Amerika-Haus in Hannover,” May 22, 1950, 9, JJMP, Box 9, folder 38. Jeffrey Herf, Divided Memory: The Nazi Past in the Two Germanys (Cambridge, MA: Harvard University Press, 1997), 286–287. 3. John J. McCloy to Landesbischof i.R.D. Wurm, Chairman, Council of the Evangelical Church in Germany, [undated, 1950], NACP RG 466: A1–24, Box 1, File “War Criminals (Miscellaneous) 1949–50.” 4. Jack Raymond, “Appeal for 7 Nazis Denied by McCloy,” New York Times, February 15, 1951, 6. 5. On restorative justice see Kerry Clamp, ed., Restorative Justice in Transitional Settings (New York: Routledge, 2016). 6. Office of the US High Commissioner for Germany Public Relations Division, Landsberg Report, Series A, 7, NACP RG 466: A1–48, Box 11, File “Landsberg Prison War Criminals—1949–1952.” 7. HICOG to Department of State, “Mr. McCloy Replies to New York Editor’s Letter on Clemency for War Criminals,” August 30, 1950, USHMM RG 12.002.02*11. “McCloy Opposes General Amnesty,” New York Times, September 14, 1950, 20. 8. Robert S. Marcus to John J. McCloy, October 23, 1950, USHMM RG 67.014M, H-139, File 21. 9. Sam Gilstrop to Robert Marcus, December 27, 1950, USHMM RG 67.014M, H-139, File 21. 10. “HICOG Staff Conference, Frankfurt, Tuesday August 29, 1950,” 4–6, NACP RG 466: A1–6, Box 1, Folder “June–Aug. 1950.” 11. Ibid. 12. Office of the US High Commissioner for Germany, “Conclusions of HICOG Commissioner’s Weekly Staff Conference,” August 31, 1950, NACP RG 466: A1–6, Box 1, Folder “June–Aug. 1950.” 13. “HICOG Staff Conference, Headquarters Building, Frankfurt, Tuesday, 9 January 1950 1100 Hours,” January 9, 1950, 29–34, NACP RG 466: A1–6, Box 2, File “Jan.– May 1951.” 14. “Future of Condemned War Criminals: Disturbances in Bavaria,” Times (London), January 8, 1951, 7. “HICOG Staff Conference, Headquarters Building, Frankfurt, Tuesday, 9 January 1950,” 4, NACP RG 466: A1–6, Box 2, File “January–May 1951.” Norbert Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration, trans. Joel Golb (New York: Columbia University Press, 2002), 158. 15. Frei, Adenauer’s Germany, 159–163. 16. McCloy to Acheson, “Telegram 6276,” January 30, 1951. Theodore Kaghan to Department of State, “Announcement of Landsberg Decisions,” February 21, 1951, USHMM RG 12.002.02*11. 17. Dean Acheson to HICOG Frankfurt, February 19, 1951, USHMM RG 12.002.02*11. 18. Ibid. 19. Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press, 2011), 351. 20. Landsberg Report, Series C, 5–6, 14–16. 21. Landsberg Report, Series A, 1–3.

312   n o t es t o pa g e s 1 58– 1 6 7 22. Landsberg Report, Series C, 2–3. 23. Ibid., 4. 24. Ibid., 3. 25. Ibid., 8–9. 26. Ibid., 12–14. Telford Taylor to John J. McCloy, June 15, 1949, and Telford Taylor to Lucius Clay, May 4, 1949, JJMP, Box 32, folder 51. 27. “John J. McCloy Interview,” 20–23. 28. Landsberg Report, Series C, 9–11. 29. Landsberg Report, Series A, 6. 30. Landsberg Report, Series C, 7–8. 31. Ibid., 16–18. 32. Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958: Atrocity, Law, and History (New York, Cambridge University Press, 2009), 286. 33. Peter Maguire, Law and War: An American Story (New York: Columbia University Press, 2000), 223–224. Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946–1955 (New York: Greenwood Press, 1989), 60–63. 34. HICOG Public Relations Division, “Review of German and Foreign Press Reaction to the Clemency Decisions of Landsberg War Crimes Cases,” February 16, 1951, 10, NACP RG 466: A1–55, Box 1, File “War Crimes.” FBIS, “Daily Report, Foreign Radio Broadcasts, No. 28, 1951: Western Europe and Near East,” February 2, 1951, SS-8, NACP RG 238: A1–24, Box 369. 35. “Bonn Legislators Press McCloy.” 36. “Clemency for Nazi War Criminals, Including Krupp, Draws Protests,” Boston Globe, February 1, 1951, 1. “French Papers Criticize Clemency,” Sun (Baltimore), February 1, 1951, 1. 37. Thomas Alan Schwartz, “John J. McCloy and the Landsberg Cases,” in Jeffrey M. Diefendorf, Axel Frohn, and Hermann-Josef Rupieper, eds., American Policy and the Reconstruction of West Germany (Washington DC: German Historical Institute and Cambridge University Press, 1993), 451. 38. FBIS, “Daily Report, No. 30, 1951: Western Europe and Near East,” February 6, 1951, UU-1, NACP RG 238: A1–24, Box 369. 39. “British Bar Easing War Crime Terms—French Adopt Similar Stand,” New York Times, February 8, 1951, 5. David Bruce to Department of State, “Assembly Foreign Affairs Committee Resolution of Protest Against the Release of Alfried Krupp,” March 16, 1951, NACP RG 59: A1–1314, Box 29, File “War Crimes Oct. 1950–March 1951.” 40. “British Bar Easing War Crime Terms.” Schwarz, Konrad Adenauer, 450–451. 41. HICOG, “Review of German and Foreign Press Reaction,” 11. Schwarz, Konrad Adenauer, 451. 42. Monnet B. Davis to Acheson, March 12, 1951, and Monnet B. Davis to Acheson, March 13, 1951, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1951.” “Nazis’ Release Scored: Israel Pained by Clemency to German War Criminals,” New York Times, March 13, 1951, 22. 43. Tel Aviv, “Aide-Memoir 507,” March 13, 1951, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1951.”

n o tes t o p ag es 1 67–1 72  31 3 44. Anatole Goldstein, “The Burial of Nuremberg,” [1951], 1–2, USHMM RG 67.014M, H-136, File 14. 45. Goldstein, “Burial of Nuremberg,” 6–7. 46. HICOG, “Review of German and Foreign Press Reaction,” 12. 47. FBIS, “Daily Report, Foreign Radio Broadcasts, No. 28, 1951: USSR and Eastern Europe,” February 2, 1951, aa-3, HH-2, NACP RG 238: A1–24, Box 369. 48. FBIS, “Daily Report, No. 28, Western Europe,” February 2, 1951, TT-3. FBIS, “Daily Report, Foreign Radio Broadcasts, No. 29, 1951: USSR and Eastern Europe,” February 5, 1951, TT-1, NACP RG 238: A1–24, Box 369. 49. Ibid. 50. FBIS, “Daily Report, Foreign Radio Broadcasts, No. 29, USSR and Eastern Europe,” February 5, 1951, aa 4–7, GG 1. 51. FBIS, “Daily Report No. 28, USSR and Eastern Europe,” February 2, 1951, aa 14–17. 52. FBIS, “Daily Report No. 29, USSR and Eastern Europe,” February 5, 1951, FF 3–4. 53. Valerie Hébert, Hitler’s Generals on Trial: The Last War Crimes Tribunal at Nuremberg (Lawrence: University Press of Kansas, 2010), 171–172. 54. I. F. Stone, “Why U.S. Clemency for Nazis—But Not for the Martinsville 7?” Daily Compass (New York), February 8, 1951. See also Eric W. Rise, The Martinsville Seven: Race, Rape, and Capital Punishment (Charlottesville: University of Virginia Press, 1995). 55. FBIS, “Daily Report No. 28, USSR and Eastern Europe,” February 2, 1951, aa-3. FBIS, “Daily Report, No. 29, USSR and Eastern Europe,” February 5, 1951, aa-1, TT-4. On the interplay between American foreign policy (and its critics) during the Cold War and domestic civil rights, and the international dimensions of the American Civil Rights Movements, see Thomas Borstelmann, The Cold War and the Color Line: American Race Relations in the Global Arena (Cambridge MA: Harvard University Press: 2001) and Mary L. Dudziak, Cold War Civil Rights: Race and the Image of American Democracy (Princeton, NJ: Princeton University Press, 2000). 56. Frei, Adenauer’s Germany, 167. 57. FBIS, “Daily Report, Foreign Radio Broadcasts, No. 27, 1951: Western Europe and Near East,” February 1, 1951, SS-2, NACP RG 238: A1–24, Box 369. 58. Reuters, “‘Mrs. High Commissioner’ Called Friend in Distress,” Christian Science Monitor, March 2, 1951, 13. “Adenauer Backs McCloys on War Criminal Course,” New York Times, March 3, 1951, 4. 59. HICOG, “Review of German and Foreign Press Reaction,” 1. “German Reaction Cautious on Nazis,” New York Times, February 1, 1951, 7. 60. Drew Middleton, “Violent Nationalism Shown by German Clemency Pleas,” New York Times, February 20, 1951, 13. 61. “HICOG Staff Conference, Headquarters Building, Frankfurt, Tuesday, 27 February 1951 1100 Hours,” February 27, 1951, 2–4, NACP RG 466: A1–6, Box 2, File “Jan.– May 1951.” 62. Raymond, “Appeal for 7 Nazis Denied by McCloy.” “McCloy Rejects Plea by Adenauer for 7 Doomed Prisoners,” Stars and Stripes, February 14, 1951. United Press, “McCloy Aid Says No Date Set for Landsberg Hangings,” February 15, 1951. 63. “German Silence on Landsberg Cases,” Times (London), March 6, 1951, 3. Frank M.

314   n o t es t o pa ge s 1 7 2 – 1 7 9 Buscher, “The U.S. High Commission and German Nationalism,” Central European History 23, no. 1 (March 1990): 69–70. 64. HICOG, “Review of German and Foreign Press Reaction,” 1. “German Reaction Cautious on Nazis,” 7. 65. J. Emlyn Williams, “McCloy’s Clemency Wins Favor of West Germans,” Christian Science Monitor, February 1, 1951, 7. 66. HICOG, “Review of German and Foreign Press Reaction,” 3. FBIS, “Daily Report No. 28, Western Europe,” February 2, 1951, SS 9. 67. Jack Raymond, “Krupp to Get Part of Property Back,” New York Times, February 1, 1951. 68. HICOG, “Review of German and Foreign Press Reaction,” 4–10. FBIS, “Daily Report No. 28, Western Europe,” February 2, 1951, SS 8–9. 69. Ibid. 70. FBIS, “Daily Report No. 28, Western Europe,” February 2, 1951, SS 9. FBIS, “Daily Report No. 27, Western Europe” February 1, 1951, SS 1–2. 71. Eric W. Isenstead, “Bavarian Reactions to Decisions Concerning Landsberg War Criminals,” February 9, 1951, 2, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1951.” 72. HICOG, “Review of German and Foreign Press Reaction,” 2. Associated Press, “Executions Near, Germans Are Told,” Baltimore Sun, January 2, 1951. 73. HICOG, “Review of German and Foreign Press Reaction,” 2. Isenstead, “Bavarian Reactions,” 2–3. Frei, Adenauer’s Germany, 167. 74. Drew Middleton, “A Few West Germans Back McCloy on Death Sentences for the Seven Nazis,” New York Times, February 27, 1951. 75. B. R. Shute to Department of State, “Analysis of Letters on the Landsberg Decisions,” March 19, 1951, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1951.” Hébert, Hitler’s Generals, 170–171. 76. Earl, SS-Einsatzgruppen Trial, 288. 77. HICOG, “Review of German and Foreign Press Reaction,” 2. 78. Leo P. Crespi, “Survey Studies Among German Opinion Leaders,” March 21, 1951, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1951.” 79. Dean Acheson to HICOG Frankfurt, February 19, 1951. “Clemency for Nazi War Criminals, Including Krupp,” 26. 80. Jack K. McFall to H. Alexander Smith, April 10, 1951, Jack K. McFall to Hubert Humphrey, February 21, 1951, Jack K. McFall to Warren Magnuson, April 3, 1951, and John Raymond to Mrs. Art Lavelle, March 2, 1951, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1951.” 81. United Press, “7 Nazis Appeal to President for Clemency,” May 16, 1951. 82. “Minutes of Mr. McCloy’s Staff Meeting Held in Berlin Germany 23 February 1951, 0930,” February 23, 1951, 5, NACP RG 466: A1–6, Box 2, File “Jan.–May 1951.” 83. “Staff Meeting,” February 23, 1951, 5. 84. United Press, “McCloy Denies ‘Whitewashing’ Convicted Nazis,” Washington Post, March 31, 1951, 7. Joseph Newman, “Shawcross Condemns Leniency Granted to Nazi War Criminals,” New York Herald Tribune, March 29, 1951. 85. Benjamin B. Ferencz, “War Criminals,” Washington Post, February 21, 1951, 16.

n o tes t o p ag es 1 79–1 8 9  31 5 86. “John J. McCloy Interview,” 22. 87. United Press, “Telford Taylor ‘Firmly Hopes’ McCloy Won’t Save 7 Nazis,” New York Herald Tribune, 17 February 1951. 88. Associated Press, “21 Nazis Shout for Joy as U.S. Reprieves Them,” Chicago Daily Tribune, February 1, 1951, 8. 89. Joseph W. Kaufman, “Krupp: What Price Expediency?” The New Republic, February 26, 1951, 15. 90. Ibid., 16. On the “gift” of the Krupp corporate property to the Krupp family, a measure affirmed by Hitler in 1943 as a means of consolidating control of the company within the family, bypassing less politically active members of the board of directors and shareholders, see Harold James, Krupp: A History of the Legendary German Firm (Princeton, NJ: Princeton University Press, 2012), 207–208. 91. Telford Taylor, “The Nazis Go Free,” The Nation, February 24, 1951, 170–172. 92. Ibid., 172. 93. Eleanor Roosevelt, “My Day,” February 28, 1951. 94. JJMP, Oversize Boxes 4 and 5. 95. Hays to Acheson, Cable 7851, March 30, 1951, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1951.” 96. John J. McCloy to Eleanor Roosevelt, March 15, 1951, 1–2, Eleanor Roosevelt Papers, Correspondence, 1945–52, McCam–McCl—McGee, Willie, Folder “McCloy, John J. & Ellen, 1945–52,” Franklin D. Roosevelt Library, Hyde Park, NY. 97. Ibid., 3. 98. Ibid., 2. 99. Ibid., 2–3. 100. Telford Taylor to Eleanor Roosevelt, June 19, 1951, USHMM RG 12.002.02*11. 101. John J. McCloy, “The Present Order of German Government,” Department of State Bulletin, June 11, 1951, 940–942. 102. Emphasis in original. Telford Taylor to Cong. Jacob Javitz, July 9, 1951, USHMM RG 12.002*11. 103. Henry Morgenthau Jr. to John J. McCloy, February 28, 1951, JJMP, Box 32, folder 14. 104. John J. McCloy to Henry Morgenthau Jr., March 7, 1951, 1–2, JJMP, Box 32, folder 14. 105. Ibid., 2–4. 106. Ibid. 107. McCloy to Morgenthau, 5. 108. Anna J. Merritt and Richard L. Merritt, eds., Public Opinion in Semisovereign Germany: The HICOG Surveys, 1949–1955 (Urbana: University of Illinois Press, 1980), 106, 112. 109. Merritt and Merritt, Public Opinion, 184–185. 110. “McCloy Scholarship,” The Harvard Crimson, April 29, 1983, https://www.thecrimson .com/article/1983/4/29/mccloy-scholarship-pvolkswagen-officials-in-germany/. Benjamin Ferencz to Yehuda Bauer, August 11, 1983, USHMM RG 12.002.02*11. 111. Benjamin Ferencz, Less Than Slaves: Jewish Forced Labor and the Quest for Compensation (Cambridge MA: Harvard University Press, 1979). 112. “John J. McCloy Interview,” 5–10, 24. 113. Benjamin Ferencz, “File note McCloy file,” April 24, 1984, USHMM RG 12.002.02*11.

316   n o t es t o pa g e s 1 9 1 – 2 0 0 6 . b et w een c l e m e n c y a n d pa r o l e 1. Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946–1955 (New York: Greenwood Press, 1989), 69–70, 161–162. 2. McCloy to Acheson, March 22, 1951, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1951.” 3. Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958: Atrocity, Law, and History (New York: Cambridge University Press, 2009), 288–290. 4. United Press, “Order on Nazis Seen in Week,” May 15, 1951. United Press, “7 Nazis Appeal to President for Clemency,” May 16, 1951. 5. “High Commissioner Says ‘Case Closed’ on Doomed Nazis,” Stars and Stripes, May 22, 1951. 6. United Press, “7 Nazis’ Fate Argued Today,” May 28, 1951. United Press, “7 Nazis Win Another Stay,” May 29, 1951. Associated Press, “7 Nazis Die on Gallows,” June 8, 1951. 7. Associated Press, “7 Nazis Die on Gallows.” All five last statements can be found in NACP RG 466: A1–25, Box 1. 8. FBIS, “Daily Report, Foreign Radio Broadcasts, No. 28, 1951: Western Europe and Near East,” June 8, 1951, SS-1, NACP RG 238: A1–24, Box 391. Associated Press, “7 Nazis Die on Gallows.” 9. Hays to Acheson, Cable 928, June 12, 1951, NACP RG 59: A1–1314, Box 29, File “War Crimes June 1951–Dec. 1951.” “German Rightists Fined,” New York Times, November 24, 1951, 5. Caroline Sharples, “What Do You Do with a Dead Nazi? Allied Policy on the Execution and Disposal of War Criminals, 1945–55,” in Camilo Erlichman and Christopher Knowles, eds., Transforming Occupation in the Western Zones of Germany: Politics, Everyday Life, and Social Interactions, 1945–55 (London: Bloomsbury Academic, 2018), 105. 10. Ernest E. Ramsauer to Department of State, “FDP Reaction to Landsberg Executions,” June 29, 1951, NACP RG 59: A1–1314, Box 29, File “War Crimes June 1951–Dec. 1951.” 11. McCloy to Acheson, Cable 917, June 8, 1951, NACP RG 59: A1–1314, Box 29, File “War Crimes June 1951–Dec. 1951.” 12. “United States Delegation Minutes of the Fifth Meeting of the Foreign Ministers of the United States, United Kingdom and France Held at Washington,” September 13, 1951, FRUS 1951, vol. 3, part 1, European Security and the German Question, ed. John A. Bernbaum et al. (Washington DC: US Government Printing Office, 1981), 1280– 1281. 13. John J. McCloy, [draft speech, undated, 1951], 4–7, JJMP, Box 9, folder 33. 14. Peter Maguire, Law and War: An American Story (New York: Columbia University Press, 2000), 236–237. 15. McCloy to Acheson, Cable 1073, January 12, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” Folder 1. J. Emlyn Williams, “Allies Free 259 Germans Sentenced for War Crimes,” Christian Science Monitor, December 24, 1951, 14. “Former Hitler Aid Released,” New York Times, December 16, 1951, 12. “U.S. Clemency Opens Prison Gates Early for Dozen Germans,” Chicago Daily Tribune, January 5, 1952, 5. 16. Benjamin Ferencz to Telford Taylor, December 17, 1951, USHMM RG 12.002.02*11.

n o te s t o p ag es 200–208   31 7 17. Drew Middleton, “Bonn Gives Way on Cartel Issue,” New York Times, February 21, 1952, 6. Drew Middleton, “Germans Get Their Way on the War Criminals,” New York Times, February 24, 1952, E5. Associated Press, “West German Peace Contract Gives Hope to War Criminals,” Christian Science Monitor, June 5, 1952, 14. 18. Reprinted in full as “Convention on the Settlement of Matters Arising Out of the War and the Occupation,” The American Journal of International Law 49, no. 3 Supplement: Official Documents (July 1955): 73–76. 19. “United States Minutes: Acheson-Eden Meeting,” February 16, 1952, FRUS 1952– 1954, vol. 5, part 1, Western European Security, ed. John A. Bernbaum, Lisle A. Rose, and Charles S. Sampson (Washington DC: US Government Printing Office, 1983), 48–49. 20. “United States London Delegation to the Department of State,” February 18, 1952. “Laukhuff Minutes: Acheson-Eden-Schuman-Adenauer Meeting,” February 18, 1952, FRUS 1952–1954, vol. 5, part 1, Western European Security, 55–56, 59–62. Konrad Adenauer, Memoirs: 1945–53, trans. Beate Ruhm von Oppen (Chicago: Henry Regnery Co., 1966), 409. 21. “Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany,” October 21, 1954, FRUS 1952–1954, vol. 5, part 2, Western European Security, 1435–1437. 22. McCloy to Department of State, Washington “No. 1747,” February 28, 1952, FRUS 1952–1954, vol. 5, part 1, Western European Security, 265. 23. Buscher, U.S. War Crimes Trial Program, 138. 24. Laverne Baldwin to Department of State, “Preparatory Committee for General Amnesty Founded in Essen,” February 28, 1952, 1, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 1. 25. Ibid., 2–3. 26. Charles W. Thayer to Department of State, “Some German Comments on the Continued Allied Imprisonment of German Generals,” March 12, 1952, 1–4, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 1. See “Nazi War Criminal Freed by British,” New York Times, October 3, 1952, 4. 27. Emphasis mine. Thayer to Department of State, “Some German Comments,” 4–7. 28. McCloy to Acheson, “Telegraph 3520,” June 25, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 29. HICOG Office of Public Affairs Reactions Analysis Staff, “Current West German Views on the War Criminals Issue,” September 8, 1952, i, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” 30. HICOG, “Current West German Views,” 2–3. 31. Ibid. 32. Donnelly to Acheson, “No. 1190,” September 16, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 33. Donnelly to Acheson “No. 545,” August 6, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 34. “Key Issues Await Adenauer Return,” New York Times, September 1, 1952, 3. 35. “Enclosure No. 2, HICOG Mehlem Dispatch No. 641,” September 6, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2.

318   n o t es t o pa ge s 2 0 8– 2 1 7 36. “Enclosure No. 1, HICOG Mehlem Dispatch No. 641,” September 6, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 37. David Clay Large, “Grand Illusions: The United States, the Federal Republic of Germany, and the European Defense Community, 1950–1954,” in Jeffrey M. Diefendorf, Axel Frohn, and Hermann-Josef Rupieper, eds., American Policy and the Reconstruction of West Germany, 1945–1955 (New York: Cambridge University Press, 1993), 381– 393. 38. Eli Whitney Debevoise, “Summary Background War Criminal Information,” September 6, 1952, 1–4, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 39. Debevoise, “Summary Background,” 4–5, and Donnelly to Acheson, “No. 740,” August 19, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 40. Donnelly to Acheson, “No. 1147,” September 12, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 41. Ibid. 42. Laverne Baldwin to Department of State, “Current Political Events in North Rhine-­ Westphalia, Sept. 1–8, 1952,” September 9, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 43. Buscher, U.S. War Crimes Trial Program, 143. 44. Donnelly to Acheson, “No. 1147.” 45. Ibid. 46. Donnelly to Acheson, “No. 1173,” September 15, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 47. Donnelly to Acheson, “No. 1172,” September 15, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 48. Thomas J. Dunnigan to Department of State, “Possible Further Amnesty of German War Criminals,” August 14, 1952, Undersecretary of State David K. E. Bruce to Embassy London, August 28, 1952, and Thomas J. Dunnigan to Department of State, “Further Foreign Office Views on German War Criminals,” September 5, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 49. Donnelly to Acheson, “No. 1220,” September 17, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. For the full text of the Basic Law, see https:// www.btg-bestellservice.de/pdf/80201000.pdf. Norbert Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration, trans. Joel Golb (New York: Columbia University Press, 2002), 212–219. 50. Donnelly to Acheson, “No. 1220.” 51. Acheson to Donnelly, September 22, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 52. Frank Biess, Homecomings: Returning POWs and the Legacies of Defeat in Postwar Germany (Princeton, NJ: Princeton University Press, 2009), 4–5. 53. Acheson to Donnelly, September 23, 1952, NACP RG 59: A1–1314, Box 29, File “War Crimes 1952,” folder 2. 54. James W. Riddleberger to Walter Donnelly “Draft-Letter,” October 13, 1952, NACP RG 59: A1–1311, Box 16, File “War Crimes Oct. 16, 1952–Dec. 31, 1952.” 55. Schwarz to Conant, “War Criminals,” March 30, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.”

n o t es t o p ag es 21 7–224   31 9 56. M. S. Eddy to Walter J. Donnelly, November 29, 1953, NACP RG 466: A1–48, Box 4, File “Interim Mixed Parole and Clemency Board.” 57. Schwarz to Conant, “War Criminals.” 58. E. W. Debevoise to Lamb and Hagan, “War Criminals,” January 14, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” 59. Samuel Reber to Department of State, December 12, 1952, FRUS 1952–1954, vol. 7, part 1, Germany and Austria, ed. David M. Baehler, John A. Bernbaum, and Charles S. Sampson (Washington DC: US Government Printing Office, 1986), 392–393. 60. “Ex-Nazi Calls for Release of War Criminals,” Chicago Daily Tribune, October 24, 1952, 4. Kerstin von Lingen, Kesselring’s Last Battle: War Crimes Trials and Cold War Politics, 1945–1960 (Lawrence: University Press of Kansas, 2009), 254. 61. Reuters, “Jewish Group Rips Freeing of War Criminals,” Chicago Daily Tribune, November 4, 1952, 17. 62. Samuel Reber and Richard C. Hagan, “Statistics on War Criminals Convicted by the United States and their Releases,” January 14, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” “Former German Marshal Freed,” New York Times, December 25, 1952, 10. 63. “Debevoise to Reber, “War Criminals,” January 14, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” 64. Schwarz to Conant, March 30, 1953. Hulse to Hagan, “Status of War Criminals,” July 7, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” 65. Associated Press, “West German Peace Contract.” 66. T. H. Carver to E. G. Hulse, “Certain Aspects of War Criminal Clemency,” February 13, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” 67. T. H. Carver to Knox Lamb, “War Crimes Paper,” March 26, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” Hulse to Schwarz, “Paper on War Crimes and War Criminals,” March 27, 1953, NACP RG 466: A1–48, Box 4, File “Interim Mixed Parole and Clemency Board.” Maguire, Law and War, 243–244. 68. “Paper on War Crimes and War Criminals for Consideration by United States High Commissioner,” March 30, 1953, 2–5, NACP RG 466: A1–48, Box 4, File “Interim Mixed Parole and Clemency Board.” 69. Ibid., 5–9. 70. Lamb to Conant, “Legal position of United States High Commissioner with Respect to War Criminals,” March 16, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” 71. Ibid. 72. Lamb to Conant, March 16, 1953, and Hagan to Schwartz, “Paper on War Crimes and War Criminals—Parole Proposal,” March 30, 1953, NACP RG 466: A1–48, Box 7, File “Status of War Criminals—Confidential.” 73. Lamb to Conant, March 16, 1953. 74. “US-German Political Talks, Washington, April 7, 1953: Minutes—First General Meeting” April 17, 1953, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1952 1953.” 75. Hermann-Josef Rupieper, “American Policy toward German Unification, 1949–1955,” and Gunther Mai, “American Policy Toward Germany and the Integration of Europe,

32 0   n o t es to pa g e s 2 2 4– 2 3 2 1945–1955,” in Diefendorf, Frohn, and Rupieper, eds., American Policy, 60–62, 105– 107. Royal Institute of International Affairs, “The European Defense Community: Problems of Ratification,” The World Today 10, no. 8 (August 1954): 326–339. With the failure of the EDC, Eisenhower’s “New Look” policy would attempt to achieve these aims through the reliance on nuclear weapons to deter a Soviet invasion of Western Europe. 76. Adenauer, Memoirs, 445. 77. “US-German Political Talks, Washington, April 7, 1953,”4. 78. Ibid. 79. “United States Delegation Minutes of the Second General Meeting of Chancellor Adenauer and Secretary Dulles, April 8, 1953,” FRUS 1952–1954, vol. 7, part 1, Germany and Austria, 442–443. Adenauer, Memoirs, 447. 80. “Memorandum of Conversation by the Deputy Director of the Bureau of German Affairs (Lewis),” June 4, 1953, and “Memorandum of Conversation by the Counselor of the Department of State,” June 4, 1953, FRUS 1952–1954, vol. 7, part 1, Germany and Austria, 467–469. 81. Maguire, Law and War, 247–250. 82. “McBride Minutes: Second Tripartite Foreign Ministers Meeting, Washington,” July 11, 1953, FRUS 1952–1954, vol. 5, part 1, Western European Security, 1629–1630. 83. Gen. Walter J. Muller to Gen. W. M. Hoge and Hon. James B. Conant, “Interim Report,” November 30, 1954, 1, HLSP, Box 1, File 14. 84. Conant to Secretary of State, August 19, 1953, Adenauer to Conant, October 14, 1953, and Adenauer to Conant, November 7, 1953, NACP RG 59: A1–1311, Box 17, File “War Crimes 1955.” 85. Buscher, U.S. War Crimes Trial Program, 149–150. 86. James B. Conant and Charles L. Bolte, “Order Concerning Interim Mixed Parole and Clemency Board,” August 31, 1953, HLSP, Box 1, File 15. 87. Knox Lamb to Interim Mixed Parole and Clemency Board, October 29, 1953, HLSP, Box 1, File 16. 88. Lamb to Interim Mixed Board, October 29, 1953. 89. Norris B. Chipman, “West German Political Weekly No. 42,” October 22, 1953, 2, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1952 1953.” 90. Ibid. 91. Ibid., 2–3. 92. Department of State Memorandum of Conversation, “Amnesty for War Criminals and Other Matters,” December 17, 1953, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1952 1953.” 93. Geoffrey Lewis to Robert Murphy, “Visit from Ambassador Krekeler,” December 16, 1953, Smith to HICOG Bonn, “Department of State Telegram 1816,” December 17, 1953, and Conant to Dulles, “Re Department Telegram 1816,” December 18, 1953, NACP RG 59: A1–1311, Box 18, File “War Crimes Clemency 1952 1953.” 7 . a sh o rt wa l k to f r e e d o m 1. Gen. Walter J. Muller to Gen. W. M. Hoge and Hon. James B. Conant, “Interim Report,” November 30, 1954, 2, HLSP, Box 1, File 14.

n o tes t o p ag es 232–239  321 2. “Boston Leader H. L. Shattuck Dead at 91,” Boston Globe, February 3, 1971. 3. Henry L. Shattuck, “The Loyalty Review Board of the U.S. Civil Service Commission, 1947–1953,” Proceedings of the Massachusetts Historical Society, Third Series, vol. 78 (1966): 79–80. 4. James D. White, “Repatriation of Americans No Easy Job,” Washington Post, August 27, 1944, B6. “Edwin A. Plitt, Consul General in Tangier in ’47,” Washington Post, 23 March 1977, E4. 5. “Walter Muller, Retired General: Postwar Military Governor of Bavaria Dies at 72,” New York Times, November 17, 1967. 6. “Emil Lersch,” NACP RG 84, A1–1004, Box 11, File “Who is Who.” 7. Edith Raim, Nazi Crimes against Jews and German Post-War Justice: The West German Judicial System during Allied Occupation, 1945–1949 (Berlin: Walter De Gruyter, 2015), 282–283. 8. Norbert Frei, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration, trans. Joel Golb (New York: Columbia University Press, 2002), 224–225. 9. “Allied Clemency Scored: World Jewish Congress Protests Easing of Nazi Terms,” New York Times, November 22, 1953, and United Press, “Jewish Unit Asks ‘Clemency’ Scope,” Stars and Stripes, November 23, 1953. 10. Nehemiah Robinson to John Foster Dulles, November 11, 1953, HLSP, Box 1, File 28. 11. John R. Raymond to Nehemiah Robinson, November 20, 1953, HLSP, Box 1, File 28. 12. Henry L. Shattuck, “The Interim Mixed Parole and Clemency Board,” Proceedings of the Massachusetts Historical Society, Third Series, vol. 76 (1964): 69–70. 13. Shattuck, “Interim Mixed Board,” 70. 14. Shattuck, “Interim Mixed Board,” 81. 15. “Address by Dr. Emil Lersch, Federal Judge: Parole Supervisor’s Conference,” January 21, 1954, HLSP, Box 1, File 23. 16. Shattuck, “Interim Mixed Board,” 74. 17. “Guidance for Parole Consideration,” HLSP, Box 1, File 16. 18. Henry L. Shattuck to Knox Lamb, “Extract from Massachusetts General Laws, Tercentenary Edition, Chapter 127, as amended,” [undated, late 1953 or early 1954], HLSP, Box 1, File 23. 19. “Issues and Problems for Discussion with Board Members at Orientation Meeting,” October 26, 1953, HLSP, Box 1, File 16. 20. Henry L. Shattuck to Members of the Board, “Legal Opinion—Reduction of Sentence by Clemency Action,” February 9, 1954, HLSP, Box 1, File 18. 21. Henry Shattuck, “Some Thoughts on Clemency,” February 19, 1954, HLSP, Box 1, File 23. 22. Shattuck, “Interim Mixed Board,” 75–76. 23. Shattuck, “Interim Mixed Board,” 74. 24. Peter Maguire, Law and War: An American Story (New York: Columbia University Press, 2000), 253–254. 25. “Actions and Recommendations, Interim Mixed Parole and Clemency Board on HICOG War Criminals, War Criminal Prison No 1, Landsberg Germany: From November 1, 1953 to Include October 28, 1954,” 1, HLSP, Box 1, File 14. 26. “Actions and Recommendations, Interim Mixed Parole and Clemency Board on US

32 2   n o t es t o pa ge s 2 3 9 – 2 4 3 Army War Criminals, War Criminal Prison No 1, Landsberg Germany: From November 1, 1953 to Include October 28, 1954,” 1, HLSP, Box 1, File 14. 27. Edwin A. Plitt to the Department of State, “History of the Interim Mixed Parole and Clemency Board,” September 19, 1955, NACP RG 59, A1–1311, Box 18, File “War Crimes Clemency 1955.” 28. Maguire, Law and War, 255. 29. Henry Lee Shattuck to James B. Conant, “Case of Ernst E. H. Biberstein, Petition for Clemency,” May 13, 1954, and Henry Lee Shattuck to James B. Conant, “Case of Woldemar Klingelhoefer, Petition for Clemency,” May 24, 1954, HLSP, Box 1, File 8. 30. “Log: Interim Mixed Parole and Clemency Board Meeting No. 1,” October 27, 1953, 4, NACP RG 84: A1–1004, Box 16, File “Log: Interim Mixed Parole and Clemency Board,” Folder 2. 31. “Log: Interim Mixed Parole and Clemency Board Meeting No. 98,” June 15, 1954, “Log: Interim Mixed Parole and Clemency Board Meeting No. 99,” June 16, 1954, and “Log: Interim Mixed Parole and Clemency Board Meeting No. 102,” June 24, 1954, NACP RG 84: A1–1004, Box 16, File “Log-Interim Mixed Parole and Clemency Board,” Folder 1. 32. Henry Lee Shattuck to James B. Conant, “Case of Walter Kuntze, Petition for Clemency,” June 24, 1954, and Henry Lee Shattuck to James B. Conant, “Case of Wilhelm List, Petition for Clemency,” June 24, 1954, HLSP, Box 1, File 8. 33. Henry Lee Shattuck to James B. Conant, “Case of Gerhard August Heinrich Rose, Petition for Clemency,” February 24, 1954, and Henry Lee Shattuck to James B. Conant, “Case of Walter Haensch, Petition for Clemency,” July 27, 1954, HLSP, Box 1, File 8. 34. Henry Lee Shattuck to James B. Conant, “Case of Siegfried Handloser, Petition for Clemency,” May 4, 1954, HLSP, Box 1, File 8. 35. Henry L. Shattuck to All Members of the Board, “Filing of a Parole Petition Following Rejection of a Clemency Petition,” February 5, 1954, HLSP, Box 1, File 18. 36. Henry Lee Shattuck to James B. Conant, “Case of Walter Blume, Petition for Clemency,” May 12, 1954, HLSP, Box 1, File 8. Spencer Phenix to Mr. Trimble, “Enclosure 2,” August 8, 1957, NACP RG 84: A1–1004, Box 1, File “Blume, Walter A-372.” “Case 9 (Einsatzgruppen or Extermination Squad Case),” 7, NACP RG 466: A1–55, Box 4, File “Case #9.” 37. Henry Lee Shattuck to James B. Conant, “Case of Hermann Reinecke, Petition for Clemency,” April 28, 1954, HLSP, Box 1, File 18. 38. Henry Lee Shattuck to James B. Conant, “Case of Hermann Reinecke, Application for Parole,” September 21, 1954, HLSP, Box 1, File 9. 39. Alfons Wahl, “Parole—A Bridge Leading into Liberty,” January 17, 1954, HLSP, Box 1, File 18. 40. Knox Lamb to Shattuck, “Interpretation of Term ‘political activity’ as Used in US HICOG Order Concerning Mixed Parole Board,” January 20, 1954, HLSP, Box 1, File 17. Paul J. Gernert to Hellmut Meng, “Political Activity of Parolees,” March 17, 1954, HLSP, Box 1, File 18. 41. Henry Lee Shattuck to James B. Conant, “Case of Oswald Martin Rothaug Petition for Parole,” May 4, 1954, HLSP, Box 1, File 9.

n o te s t o p ag es 24 3–24 7  323 42. James B. Conant and Charles L. Bolte, “Order Concerning Interim Mixed Parole and Clemency Board,” August 31, 1953, HLSP, Box 1, File 15. 43. Henry Lee Shattuck to James B. Conant, “Case of Fritz Fischer, Petition for Parole,” March 24, 1954, HLSP, Box 1, File 9. Report of Parole Supervisor Visit to Fritz Fischer, March 24, 1955, NACP RG 84: A1–1004, Box 40, File “Fischer, Fritz Rel. fr. Superv. June 11, 1957.” 44. Henry Lee Shattuck to James B. Conant, “Case of Walter Warlimont, Petition for Parole,” June 2,1954, HLSP, Box 1, File 9. 45. “US Parole Officer Summarized Activity Report, October 19, 1953, to March 25, 1954,” 1–2, HLSP, Box 1, File 18. 46. Theodore Knapp, “Statement to be attached to the Request of the Federal Government for Reduction of the sentence of Steimle, Eugen to time served,” May 12, 1957, NACP RG 84: A1–1004, Box 46, File “Steimle, Eugen Rel. fr. Supervision Aug. 6, 1957.” 47. Ibid., 2–4. 48. Paul J. Gernert, “How to Guide Parolees in Fulfilling Their Parole Conditions,” June 18, 1954, 2–4, HLSP, Box 1, File 18. Paul J. Gernert, “Parole Supervisors Regional Conference, Stern Hotel, Bonn, November 2nd, 1954,” November 4, 1954, 2, HLSP, Box 1, File 19. 49. Paul Gernert, “Otto Hofmann,” [undated], NACP RG 84: A1–1004, Box 42, File “Hofmann, Otto Walter Rel. fr. Supervision June 11, 1957.” 50. Robert W. Upton, “Report on the Functions and Work of the Mixed Board Established Pursuant to Article 6 of the Bonn Agreements of 1952,” June 30, 1956, 5–6, NACP RG 59: A1–1311, Box 19, File “War Crimes Clemency July–Dec. 1956.” 51. Gernert, “How to Guide Parolees,” 2–4. Gernert, “Parole Supervisors Regional Conference,” 2. 52. Gernert, “Parole Supervisors Regional Conference,” 2. Paul J. Gernert, “Report on Regional Parole Supervisor’s Conference, November 9th 1954 at Hamburg,” November 19, 1954, 1–2, HLSP, Box 1, File 19. 53. “US Parole Officer Summarized Activity Report, October 19, 1953, to March 25, 1954,” 3–4. 54. Paul J. Gernert, “Visit with Parole Supervisor Guenther Ladwig, Koeln,” March 16, 1954, NACP RG 84: A1–1004, Box 44, File “Mummenthey, Karl Rel fr. Supervision June 11, 1957.” 55. Paul J. Gernert, “US Parole Officer, Summarized Activity Report: September 11, 1954–September 24, 1954,” October 8, 1954. HLSP, Box 1, File 32. 56. “US Parole Officer Summarized Activity Report, October 19, 1953, to March 25, 1954,” 3–9. Frank Biess, Homecomings: Returning POWs and the Legacies of Defeat in Postwar Germany (Princeton, NJ: Princeton University Press, 2006), 110–113. 57. Wilhelm Fezer to Paul Gernert, “Monthly Report of the Parolee Otto Hofmann,” April 30, 1954, NACP RG 84: A1–1004, Box 42, File “Hofmann, Otto Walter Rel. fr. Supervision June 11, 1957.” 58. Associated Press, “War Criminal Policy is Changed by U.S.,” New York Times, March 26, 1954, 5. 59. Because of Cold War–driven national security concerns that gay civil servants were

32 4   n o t es t o pa g e s 2 47 – 2 51 disloyal to the United States or could be blackmailed by communist operatives, President Eisenhower explicitly banned “homosexuals” from serving in the civil service in Executive Order 10450 of April 1953. Thousands of gay employees were purged from government service. Knox Lamb to Richard Hagan, “Publicity Regarding Parole and Clemency Actions—War Criminals,” June 9, 1954, HLSP, Box 1, File 30. David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (Chicago: University of Chicago Press, 2006), esp. 119–146. 60. “Log: Interim Mixed Parole and Clemency Board Meeting No. 107,” July 8,1954, NACP RG 84: A1–1004, Box 16, File “Log-Interim Mixed Parole and Clemency Board,” Folder 1. “Milch Released by U.S. Authorities,” Times (London), July 5, 1954, 6. Richard C. Hagan to Henry Lee Shattuck, July 12, 1954, HLSP, Box 1, File 30. 61. Reports on Parole Supervisor Visits to August Frank, July 17, 1954, February 10, 1955, and October 17, 1955, NACP RG 84: A1–1004, Box 41, File “Frank, August Rel. fr. Superv. June 11, 1957.” 62. Heinz Fanslau to Paul Gernert, September 7, 1954, “Application of Parolee Heinz Fanslau on Good Conduct Release,” July 20, 1955, and Guenter Obstfeld to Paul Gernert, July 13, 1955, NACP RG 84: A1–1004, Box 40, File “Fanslau, Arthur Walter Rel. fr. Superv. June 11, 1957.” 63. “Hoth, Hermann,” April 23, 1955, and “Hoth, Hermann,” June 7, 1955, NACP RG 84: A1–1004, Box 42, File “Hoth, Hermann Rel. fr. Supervision June 11, 1957.” 64. Report on Visit to “Walter Blume,” April 23, 1955, and August 30, 1956, NACP RG 84: A1–1004, Box 40, File “Blume, Walter Rel. fr. Superv. Aug. 6, 1957.” 65. Guenther Ladwig, “Monthly Report Karl Mummenthey,” January 29, 1954, NACP RG 84: A1–1004, Box 44, File “Mummenthey, Karl Rel fr. Supervision June 11, 1957.” 66. “Karl Sommer,” September 8, 1955, NACP RG 84: A1–1004, Box 45, File “Sommer, Karl Rel. fr. Supervision June 11, 1957.” 67. NACP RG 84: A1–1004, Box 40, File “List, Wilhelm (embassy) Medical Parolee Final Rel.—August 6, 1957.” 68. John M. Perry to Richard Hagan, September 15, 1952, Edgar M. Gerlach to Richard C. Hagan, May 10, 1952, Paul K. Stahnke to Richard C. Hagan, October 9, 1952, Richard C. Hagan to Franz Schlegelberger, October 26, 1955, and Luise Schlegelberger to Richard Hagan, November 5, 1955, NACP RG 84: A1–1004, Box 45, File “Schlegelberger, Franz Medical Parolee (Embassy) Final Release—Aug. 6, 1957.” 69. Williams I. Hart, “Walter Kuntze,” June 19, 1953, Hess to Hart, June 22, 1953, Delius to Hagan, June 23, 1953, and Hagan to Kuntze, June 25, 1953, NACP RG 84: A1– 1004, Box 41, File “Kuntze, Walter Medical Parolee Final Release Aug. 6, 1957.” 70. Paul J. Gernert to Walter Warlimont, November 7, 1957, NACP RG 84: A1–1004, Box 46, File “Warlimont, Walter Rel. fr. Supervision July 19, 1957.” 71. Col. Roy Lassetter Jr. to Mr. Richard C. Hagan, “Visit, Ex-Field Marshal List to Mountain Troopers Meeting, Mittenwald,” May 29, 1957, and Richard C. Hagan to Mr. O’Shaughnessy, “Permission for Medical Parolee to Attend Military Meeting,” May 29, 1957, NACP RG 84: A1–1004, Box 40, File “List, Wilhelm (embassy) Medical Parolee Final Rel.—August 6, 1957.” 72. Report on Visit to “Oskar Schroeder,” March 25, 1955, NACP RG 84: A1–1004, Box 45, File “Schroeder, Oskar Rel. fr. Supervision June 11, 1957.” “Report of Parolee Karl

n o t es t o p ag es 25 1 –25 8   325 Genzken, October 1, 1954–October 15, 1954,” 2, NACP RG 84: A1–1004, Box 42, File “Genzken, Karl Rel. fr. Supervision June 11, 1957.” 73. The fine was raised to 50,000 DM after Genzken’s unsuccessful appeal. Deforest A. Barton to Hagan, “War Criminal Parolee Karl Genzken,” September 14, 1956, and “Parole Supervisor Report on Karl Genzken,” July 14, 1955, NACP RG 84: A1–1004, Box 42, File “Genzken, Karl Rel. fr. Supervision June 11, 1957.” 74. Guenther Ladwig, August 15, 1954, Guenther Ladwig, August 31, 1954, and [Parole Report on Erhard Milch], April 21, 1955, NACP RG 84: A1–1004, Box 43, “File Milch, Erhard Rel. fr. Supervision June 11, 1957.” 75. “Monthly Report of the Parolee Oskar Schröder,” November 30, 1954, NACP RG 84: A1–1004, Box 45, File “Schroeder, Oskar Rel. fr. Supervision June 11, 1957.” 76. “Georg Loerner,” September 24, 1954, “Georg Loerner,” March 28, 1955, “Georg ­Loerner,” [undated, likely after March 1955], and Monthly Report of Georg Loerner, “November 1, 1954 to November 30, 1954,” 2, NACP RG 84: A1–1004, Box 43, File “Loerner, Georg Released fr. Supervision June 11, 1957.” 77. [Parole Officer Comments], September 9, 1954, [Parole Officer Comments], September 24, 1954, “Monthly Report of Parolee,” May 31, 1955, Heinrich Gutbrod, [Statement in Support of Steimle’s Application for Sentence Reduction], May 13, 1957, and [Parole Officer Comments], July 12, 1957, NACP RG 84: A1–1004, Box 46, File “Steimle, Eugen Rel. fr. Supervision Aug. 6, 1957.” 78. Gerhard Rose to James B. Conant, July 7, 1955, and Knox Lamb to Gerhard Rose, July 14, 1955, NACP RG 84: A1–1004, Box 44, File “Rose, Gerhard Rel fr. Superv. June 11, 1957.” 79. Parole Supervisor Report on Karl Genzken, July 14, 1955, NACP RG 84: A1–1004, Box 42, File “Genzken, Karl Rel. fr. Supervision June 11, 1957.” 80. Final Report of the Mixed Parole and Clemency Board, October 21, 1958, 2–4, NACP RG 84: A1–1004, Box 11, File “Mr. Phenix Final Report.” [Board Member Biographies], NACP RG 84, A1–1004, Box 11, File “Who is Who.” 81. Final Report of the Mixed Parole and Clemency Board, 5. 82. Ibid., 6–7. 83. Maguire, Law and War, 259. 84. Maguire, Law and War, 260–266. Steven P. Remy, The Malmedy Massacre: The War Crimes Trial Controversy (Cambridge, MA: Harvard University Press, 2017), 247–272. 85. Maguire, Law and War, 266–271. 86. Robert W. Upton to John M. Raymond, April 24, 1956, NACP RG 59: A1–1311, Box 19, File “War Crimes Clemency Jan.–April 1956.” 87. Richard Hagan to John B. Holt, “Editorial on the Prisoners of Bautzen and Landsberg,” April 19, 1956, “NACP RG 59: A1–1311, Box 19, File “War Crimes Clemency Jan.–April 1956.” 88. Upton, “Report on the Functions of the Mixed Board,” 6–8. 89. Department of State Memorandum of Conversation, “The Mixed Board,” June 26, 1956, and Robert W. Upton to John M. Raymond, May 8, 1956, NACP RG 59: A1– 1311, Box 19, File “War Crimes Clemency May–June 1956.” 90. Conant to Dulles, “Cable No. 4580,” June 6, 1956, NACP RG 59: A1–1311, Box 19, File “War Crimes Clemency May–June 1956.”

32 6   n o t es t o pa ge s 2 58– 2 6 6 91. Auchincloss, “Chancellor Adenauer Visit: German War Criminals in American Custody,” June 8, 1956, NACP RG 59: A1–1311, Box 19, File “War Crimes Clemency May–June 1956.” 92. FRUS 1955–1957, vol. 26, Central and Southeastern Europe, ed. Roberta L. DiGangi, Lorraine Lees, Aaron Miller, and Charles S. Sampson (Washington DC: US Government Printing Office, 1992), Docs. 54–59. 93. “Judge Spencer Phenix, 95, officer in State Department after WWI,” Boston Globe, October 21, 1986, 37. “Spencer Phenix, 95, Is Dead; Helped Draft Anti-War Pact,” New York Times, October 24, 1986, B9. 94. Maguire, Law and War, 279. 95. Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945–1958: Atrocity, Law, and History (New York: Cambridge University Press, 2009), 294–295. Valery Hébert, Hitler’s Generals on Trial: The Last War Crimes Tribunal at Nuremberg (Lawrence: University Press of Kansas), 188–190. 96. Waldemar Klingelhoefer Institutional Record, August 29, 1956, NACP RG 84: A1– 1004, Box 5, File “Klingelhoefer, Waldemar A-158.” 97. “Meeting of 11 December 1956,” NACP RG 84: A1–1004, Box 11, File “Minutes.” 98. “Meeting of 17 January 1957,” 2, NACP RG 84: A1–1004, Box 11, File “Minutes.” Henri Eschbach to James B. Conant, “Case of Herbert Klemm, Application of Parole by Prisoner,” January 18, 1957, NACP RG 84: A1–1004, Box 5, File “Klemm, Herbert A-496.” 99. Associated Press, “Landsberg Prison Returned,” New York Times, July 6, 1956, 3. 100. Spencer Phenix to John Raymond, February 8, 1957, NACP RG 59, A1–1311, Box 19, File “War Crimes Clemency 1957,” folder 2/2. 101. Spencer Phenix, “Memorandum ‘A,’” February 7, 1957, 1–4, NACP RG 59, A1–1311, Box 19, File “War Crimes Clemency 1957,” folder 2/2. 102. “Memorandum ‘A,’”5–11. 103. Spencer Phenix, “Memorandum ‘B,’” February 7, 1957, NACP RG 59, A1–1311, Box 19, File “War Crimes Clemency 1957,” folder 2/2. 104. “Mr. Phenix’s Report to the Mixed Board, 10 April 1957,” NACP RG 84: A1–1004, Box 39, File “Memos A + B.” 105. “Resolutions Adopted 11 April 1957,” NACP RG 84: A1–1004, Box 39, File “Memos A + B.” 106. “Meeting of November 7, 1956,” and “Meeting of November 8, 1956,” NACP RG 84: A1–1004, Box 11, File “Minutes.” 107. “Meeting of 16 January 1957,” and “Meeting of November 8, 1956,” NACP RG 84: A1–1004, Box 11, File “Minutes.” 108. “Meeting of 8 May 1957,” NACP RG 84: A1–1004, Box 11, File “Minutes.” 109. “Meeting of 3 October 1957,” NACP RG 84: A1–1004, Box 11, File “Minutes.” 110. “Meeting of 17 January 1957,” 2–3. 111. “Meeting of 11 April 1957,” and “Meeting of 8 May 1957,” NACP RG 84: A1–1004, Box 11, File “Minutes.” 112. “Meeting of 8 May 1957.” 113. Thomas Kühne, The Rise and Fall of Comradeship: Hitler’s Soldiers, Male Bonding and

n o tes t o p ag es 266–276  327 Mass Violence in the Twentieth Century (New York: Cambridge University Press, 2017), 229–230. 114. Maguire, Law and War, 280–281. 115. Larry Rue, “Nazi Prison Sentences Nearly Over,” Chicago Daily Tribune, July 21, 1957, D11. 116. “Meeting of 26 February 1958,” NACP RG 84: A1–1004, Box 11, File “Minutes.” 117. Ibid. 118. “Meeting of 29 April 1958,” NACP RG 84: A1–1004, Box 11, File “Minutes.” 119. “Enclosure to Clemency Application of Adolf Ott,” March 31, 1958, NACP RG 84: A1–1004, Box 7, File “Ott, Adolf A-480.” 120. “Subsequent Application for Clemency—Ernst Biberstein,” March 25, 1958, NACP RG 84: A1–1004, Box 1, File “Biberstein, Ernst A-479.” 121. “Statement with Respect to Application for Clemency,” March 31, 1958, NACP RG 84: A1–1004, Box 9, File “Sandberger, Martin A-481.” 122. “Last Four War Criminals Leave Landsberg Prison,” Washington Post and Times-­ Herald, May 10, 1958, A4. “U.S. Releases Last 4 German War Criminals,” Chicago Daily Tribune, May 10, 1958, 16. 123. Hébert, Hitler’s Generals, 196 n. 43. Frei, Adenauer’s Germany, 224–225. 124. Maguire, Law and War, 282. co n clu s io n 1. Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10 (Washington DC: Government Printing Office, 1949), 107–112. 2. Ibid., 107. 3. Ibid., 93. 4. Devin O. Pendas, Democracy, Nazi Trials, and Transitional Justice in Germany, 1945– 1950 (New York: Cambridge University Press), 35–38. Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence (New York: Oxford University Press, 2016), 402–409. 5. Peter Maguire, Law and War: An American Story (New York: Columbia University Press, 2000), 18. 6. Sandra Wilson, Robert Cribb, Beatrice Trefalt, and Dean Aszkielowicz, Japanese War Criminals: The Politics of Justice After the Second World War (New York: Columbia University Press, 2017), 4. 7. Constantin Goschler, “Jewish Property and the Politics of Restitution in Germany after 1945,” in Martin Dean, Constantin Goschler, and Philipp There, eds., Robbery and Restitution: The Conflict over Jewish Property in Europe (New York: Berghahn Books, 2007), 113–133. 8. Norman J. W. Goda, Tales from Spandau: Nazi Criminals and the Cold War (New York: Cambridge University Press, 2007), 265–267. 9. Mary Fulbrook, Reckonings: Legacies of Nazi Persecution and the Quest for Justice (New York: Oxford University Press, 2018), 280–282. 10. Fulbrook, Reckonings, 231–236. Devin O. Pendas, “Protective Law and Proactive Jus-

32 8   n o t es t o pa g e s 2 7 6 – 2 7 8 tice: Debating Crimes Against Humanity in Germany, 1945–1950,” Central European History 43, no. 3 (September 2010): 428–463. Edith Raim, Nazi Crimes Against Jews and German Post-War Justice: The West German Judicial System during Allied Occupation, 1945–1949 (Berlin: De Gruyter, 2015), 149–152. 11. Jürgen Matthäus, “‘No Ordinary Criminal,’ George Heuser, Other Mass Murderers, and West German Justice,” in Patricia Heberer und Michael R. Marrus, eds., Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes (Lincoln: University of Nebraska Press, 2008), 192–194. Devin O. Pendas, The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History, and the Limits of the Law (New York: Cambridge University Press, 2010), 19–22. 12. Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946–1955 (New York: Greenwood Press, 1989), 159. Pendas, Democracy, 64. 13. John Mendelsohn, “War Crimes Trials and Clemency in Germany and Japan,” in Robert Wolfe, ed., Americans as Proconsuls: United States Military Government in Germany and Japan, 1944–1952 (Carbondale, IL: Southern Illinois University Press, 1984), 226–259. 14. Donald Bloxham and Jonathan Waterlow, “War Crimes Trials,” in The Cambridge History of the Second World War, vol. 2, Politics and Ideology, ed. Richard J. B. Bosworth and Joseph A. Maiolo (New York: Cambridge University Press, 2015), 205–206. 15. Priemel, The Betrayal, 412. Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (New York: Oxford University Press, 2011), 375– 397. 16. Lucius Clay, Decision in Germany (New York: Doubleday & Co., 1950), 253. 17. William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (New York: Oxford University Press, 2012), 73–74. 18. Roger S. Clark and Madeleine Sann, eds., The Prosecution of International Crimes (New Brunswick, NJ: Transaction Publishers, 1996), 439–502. Schabas, UN International Criminal Tribunals, 439–443, 545–546.

a c k n o w le d gme n ts

I started writing this book as a postdoctoral fellow in the Strategy & Policy Department at the United States Naval War College (USNWC), and finished it as an assistant professor of strategy and security studies at the US Air Force School of Advanced Air and Space Studies (SAASS). Although I must state that all views expressed herein are my own, I owe both institutions and my colleagues at each a debt of gratitude. The former generously funded research trips to Amherst College in Amherst, Massachusetts, the United States National Archives in College Park, Maryland, and the United States Holocaust Memorial Museum in Washington DC. Both provided a vibrant and supportive intellectual atmosphere. While many colleagues lent me their support along the way, I would like to single out David Stone, the chair of the Strategy & Policy department at USNWC, for his tireless work to secure funds for research and conference travel, and George Zecher, the department’s travel coordinator, for making the travel arrangements smooth sailing. At my new home, SAASS, I want to thank Jeffrey Donnithorne, Derrick Frazier, and Tom Hughes for providing me with a teaching schedule conducive to completing the revisions to the manuscript, and for providing funding and support for virtual conference attendance in the wake of COVID. I have had the pleasure to present portions of this work at the 2018 German Studies Association Conference and 2021 Society for Military History Conference, where I received much valuable feedback and thoughtful questioning 329

330   ack n ow l e d g m e n ts

from, among others, Andrew Beattie, Danny Orbach, Jeffrey Herf, Jeremy Best, and Stephen Davis. At the National Archives in College Park, archivist Meg Dwyer saved the day in locating some vital clemency records that were filed in an unexpected collection while archivists Haley Maynard and Cate Brennan offered valuable assistance in my navigating and obtaining the necessary State Department and Foreign Service files. I would also like to thank Jeffrey Herf for alerting me to the invaluable reports of the Foreign Broadcast Information Services held there. At Amherst College, archivists Rachel Jirka and Christina Barber were immensely helpful in guiding my research into the John J. McCloy Papers both in person and through the wonderful new finding aid they have produced for the collection. Numerous librarians and archivists at the Harvard Law School Library were also welcoming and helpful in facilitating my access to the Henry Lee Shattuck Papers. Finally, and most importantly, I want to thank the staff of the Naval War College’s Henry E. Eccles Library for their patience and dedication in obtaining innumerable monographs through interlibrary loan. At Yale University Press, special thanks go to the attention and care of my editor, Adina Berk, whose steady encouragement was vital to my completion of the manuscript, and my wonderfully thorough and helpful copy editor, Erica Hanson. Together with the generous and thoughtful comments from the two anonymous reviewers, the entire Yale production team has helped me improve this book in every conceivable way. As always, I must report that this book would not have been possible without both the support and critical feedback of my wife, historian Stephanie Hinnershitz, who carefully read every word numerous times and identified further lines of inquiry that have substantially improved it. Any errors that remain are of course entirely my responsibility.

i nd e x

Acheson, Dean, 35, 36, 39, 40, 41, 45, 48, 49, 155–156, 177, 193, 197, 202, 203, 206, 207, 209, 210, 211, 212, 214, 215 Adenauer, Konrad, 9, 12, 32, 37, 39, 40–42, 43, 127, 149, 170, 192, 196, 197, 203, 234, 251, 266; and amnesty lobbies, 15–16, 38, 44, 154, 171, 193, 199, 210–213, 215, 229, 233, 257–258, 258; “concessions” from Allies on war criminals, 175, 200, 202, 209, 212–214, 218, 225–226, 257, 259; views on war criminals, 42, 45, 154, 171, 172, 194, 198–199, 206, 210, 211–214, 215, 218, 224, 229, 256, 258–259 Advisory Board on Clemency for German War Criminals (1950), 6, 91, 96, 156, 236, 237, 272; and clemency petitions, 51–52, 70–71, 89–90; contesting Nuremberg verdicts, 98, 103–104, 115–116, 130–131, 149; denials of clemency, 104–108; general findings, 92, 102–104, 115–118, 131–132, 146–147, 222, 238; legal basis of, 33–34, 37, 49, 97, 167–168, 185, 227; member biographies, 92–95;

operating procedures of, 50, 92, 97–102; recommendations for clemency on grounds of diminished responsibility, 116–131; recommendations for clemency on grounds of new evidence, 110–113; recommendations for clemency on grounds of rejection of NMT findings, 131–147; recom­ mendations for clemency on medical grounds, 108–110; treatment of evidence, 99–101; views on criminal responsibility, 116–118 Allied Control Council, 31, 275; “Law 10,” 3, 63, 102, 167, 234, 276; “Law 34,” 44 Allied High Commission, 31, 42, 197–198, 202, 214 “American justice,” 6, 12, 16, 36–37, 47, 48, 49, 92, 114, 115, 116, 131, 150, 153, 157, 160, 161, 164, 168, 175, 180, 182, 185, 189, 192, 193, 203, 216, 230, 254, 259, 273, 274, 276; effects of US prison norms on, 7, 8, 16, 30–31, 35, 94–95, 152, 192, 216, 221, 223, 231, 232, 242, 273 Auchincloss, John, 239 Auschwitz, 26, 29, 121, 137, 141, 173 Austria, 169, 206, 275

331

332   in d ex Baier, Hans: 1950 clemency petition, 58; release, 281 Baldwin, Raymond, 24–25 Becker-Freysing, Hermann: 1950 clemency petition, 56, 71; release, 279 Beigelböck, Wilhelm: 1950 clemency petition, 57; release, 279 Berger, Gottlob: 1950 clemency petition, 67–68; clemency, 166; release, 284 Biberstein, Ernst: 1950 clemency petition, 62, 85–87; Advisory Board findings, 139; Interim Mixed Board, 254; release, 139, 264–268, 274, 283 Blank, Theodor, 209, 251 Blobel, Paul: 1950 clemency petition, 69–70; denial of clemency, 105, 283; execution, 106, 194, 195 Blume, Walter: 1950 clemency petition, 58, 60; parole, 241, 249, 283 Bobermin, Hans: 1950 clemency petition, 71–72, 75–76; Advisory Board findings, 140–141; release, 141, 281 Bonn Conventions, 192, 200–203, 207, 210, 212–216, 218, 221, 223, 226, 235, 253, 258, 260, 262 Bormann, Martin, 117, 138 Bowie, Robert, 36, 37, 96, 97, 98, 116 Brandt, Karl, 22, 279 Braune, Werner, 28; denial of clemency, 105, 282; execution, 106, 194, 195 Brinkmann, Otto, 266–267 Brückner, Heinz: 1950 clemency petition, 56; release, 282 Buchenwald, 136, 173 von Bülow, Friedrich: Advisory Board findings, 133; release, 284 Bundestag (West German Parliament), 6, 154, 171, 172, 194–196, 197, 200, 203, 205–207, 209, 210–214, 218, 223, 224, 225, 229 Bundeswehr (West German Armed Forces), 127 Buttenwieser, Benjamin G., 171–172 BvW (Bund versorgungsberechtigter ehemaliger Wehrmachtsangehöriger und ihrer Hinterbliebenen), 208 Byroade, Henry, 35, 41

CDU (Christlich Demokratische Union), 204, 205, 210, 211, 212, 214, 229 China, 10, 11, 15, 46, 180 CIA (Central Intelligence Agency), 38, 259 Clay, Lucius D., 19, 31, 35, 51, 68, 81, 89; concerns about executions, 19–20, 22–23, 24; Nuremberg sentence reviews, 3, 15, 17, 20–21, 23–24, 26, 27, 53, 102, 116, 160, 184, 186, 222; views on Nuremberg trials, 18, 24, 25, 277 clemency: and international criticism of, 150, 151–152, 155–156, 165–178, 179–181, 184–185, 188, 233–234, 255–257, 268; in Japan, 46–48; and public opinion, 155–156, 174–175, 177, 187, 206–207, 266; self-perpetuating nature of, 9, 12, 192–193, 209, 210, 232, 241–242, 253–254, 259, 262, 263, 265, 272, 273; support for, 172–173, 174, 176. See also HICOG clemency petitions: affidavits in support, 57, 59–60; attacks on legitimacy of trials, 68–72, 79–80, 83; fear of consequences for wartime disobedience, 73–75; invocation of gender roles, 60, 81–83; legal arguments for clemency, 52–53; narratives of victimhood, 51–53, 63, 72–76, 83–89, 267–268; rejections of evidence, 70–72; structure of, 51, 54–55 Cold War: influence on American war crimes policy, 9–11, 15–16, 22, 34, 37–49, 115, 150, 152, 184, 202–203, 197–198, 203, 215, 224–225, 272–273, 275; Landsberg prisoners’ views on, 67, 84–85 commissar order, 108, 146 Conant, James B., 9, 45, 91, 219–227, 230, 232, 234, 235, 236, 237, 241, 244, 247, 253, 254, 255, 256, 258, 266, 272, 272, 274 concentration camps. See WVHA Creutz, Rudolf: Advisory Board findings, 119; release, 282 crimes against peace, 3, 142, 143, 144, 145, 270

index 333 CSU (Christlich-Soziale Union in Bayern), 211, 229 Czechoslovakia, 11, 60, 126, 168, 169   Dachau, 5, 57, 122, 136, 176 Dachau War Crimes Trials (Dachau Trials), 5, 7, 19, 35, 99, 172, 208, 210; and clemency program, 163–164, 210, 219, 230, 237, 239, 254, 256–257, 258, 263, 266; controversy over, 17–18, 21–22, 23, 25, 27, 36, 49, 256–257. See also Malmedy Massacre Trial Davies, Ernest, 165 Debevoise, Eli, 209–210, 218 Dehner, Ernst: Advisory Board findings, 108; release, 108, 282 deportations (of Jewish populations to concentration and death camps), 29, 87, 107, 109, 142, 144, 233 Deutsche Erd- und Steinwerke (German Earth and Stone Works), 75 Dewey, Thomas, 93–94 Dietrich, Sepp, 255–257 Doctors Trial (Case 1), 22, 59, 73, 82, 120, 156, 158, 279 Donnelly, Walter J., 206–208, 211–212, 214–219 DP (Deutsche Partei), 206, 210, 212, 213, 214, 229 Draper, William Henry, Jr., 20, 21, 23 Dulles, John Foster, 224–226, 233–234, 256, 258–259   East Germany, 10, 34, 38, 41, 43, 45, 168 Eberhardt, Karl: 1950 clemency petition, 71; Advisory Board findings, 133; release, 284 EDC (European Defense Community), 45, 197, 202–203, 206, 207–209, 210, 212, 213, 218, 224, 225 Eddy, Manton S., 217 Ehlers, Hermann, 171, 229 Einsatzgruppen, 28, 52, 56, 57, 58, 60, 61, 62, 63, 75, 80, 88, 101, 156, 162, 163, 170, 177, 195, 200, 241, 244, 249, 252, 254, 259, 263, 264, 267, 274, 275; mobile killing operations, 2, 29,

64–65, 69–70, 72–74, 84, 85–87, 105–106, 111–112, 124, 128–130, 134–136, 138–139, 140, 160 Einsatzgruppen Trial (Case 9), 18–19, 26, 48, 64, 65, 69, 76, 100, 101, 102, 105, 106, 160, 166, 179, 201, 268, 283 Eirenschmalz, Franz: Advisory Board findings, 136–137; release, 137, 281 Eisenhower, Dwight D., 18, 168, 169, 192, 208, 219, 224, 225, 266, 320n75, 324n59 EUCOM (US European Command), 31, 220. See also US Army Europe European Coal and Steel Community. See Schuman, Robert Everett, Willis M., 21–23   von Falkenhorst, Nikolaus, 205 Fanslau, Heinz-Karl: 1950 clemency petition, 79–80; parole, 248, 281 FDP (Freie Demokratische Partei), 194, 196, 203, 204, 205, 207, 209, 210, 211, 212, 214, 218, 229 Felmy, Helmut: 1950 clemency petition, 76–77; Advisory Board findings, 113, 128; release, 113, 282 Fendler, Lothar: 1950 clemency petition, 54–55, 72–73; release, 283 Ferencz, Benjamin, 26, 48, 100–101, 179, 188–189, 199–200, 201 Fischer, Fritz: 1950 clemency petition, 59–60, 72, 73; Advisory Board findings, 120–121; parole, 121, 243, 279 Flick, Friedrich, 97, 133 Flick Trial (Case 5), 75, 97, 102, 133, 183, 271, 279 Fowlie, Gerald D., 100 France, 12, 15, 29, 31, 39, 41, 46, 77, 86, 134, 150, 159, 165, 176, 180, 192, 193, 197, 198, 199, 200, 202, 203, 206, 207, 209, 212, 213, 214, 215, 216, 219, 220, 223, 224, 225, 226, 230, 231, 235, 253, 254, 255, 257, 258, 262, 275 François-Poncet, André, 32, 212 Frank, August: 1950 clemency petition, 64; parole, 248, 281 Frings, Josef, 204

334   in d ex Gebhardt, Karl, 73, 81, 120 Genzken, Karl: 1950 clemency petition, 64, 80–81; Advisory Board findings, 120; parole, 251, 253, 279 Gernert, Paul J., 231, 242, 244–246, 248, 249, 251 good-conduct sentence reductions, 54–55, 95–97, 151, 152, 192, 211, 213, 216, 219, 229, 230, 238, 242–243, 245, 248–249, 252, 253, 254, 255, 259, 260, 261, 263, 266, 267, 279, 284, 285 Göring, Hermann, 67, 117, 125, 126, 142, 165, 185 Graham, W. R., 54, 55, 99 Gray, Gordon, 11, 270 Great Britain, 5, 12, 15, 29, 38–40, 41, 46, 49, 77, 97, 150, 165, 179–180, 192, 193, 197–198, 199, 200, 202, 203, 205, 206, 207, 212–213, 214, 217, 218–219, 220, 223, 225, 226, 229, 230, 231, 234, 253, 254–255, 257, 260, 261, 262, 264, 265, 267, 275 Greifelt, Ulrich, 119   Haensch, Walter: Advisory Board findings, 135–136; parole, 136, 241, 283 Hagan, Richard C., 218, 223, 244, 247, 250, 251 Handloser, Siegfried: 1950 clemency petition, 61–62, 65–66; Advisory Board findings, 120–122; parole, 122, 241, 279 Handy, Thomas, 25, 35, 36, 47, 95, 99, 154, 163, 164, 172, 173, 174, 177, 220, 238, 253. See also Dachau War Crimes Trials Hansen, Gottfried, 175, 208 Hess, Rudolph, 275 Heuss, Theodor, 154 HICOG (High Commission for Occupied Germany), 17, 96, 153, 205; Christmas clemencies, 190, 192, 199–200, 217, 229–230; clemency authority, 30–34; clemency petitions, 28–29, 32–33, 149, 186, 192, 193, 203, 215, 216, 219; frustration with lack of West German

political support, 171–172, 196–197, 208–209, 215; General Counsel’s office clemency dissents, 116, 119, 121, 122, 124, 127, 128, 130, 134–135, 137–138, 139, 141; internal criticisms of clemency program, 32–34, 202, 218, 239; Office of Political Affairs reports, 45, 191, 205, 220–221, 222–223, 228, 229; publicity control efforts, 97, 154–155, 209, 236, 239, 247; standardization of war criminal policy, 219–221, 223, 225–230, 253. See also clemency; parole system High Command Trial (Case 12), 11, 14, 19, 108, 129, 156, 160–162, 285 Himmler, Heinrich, 67, 74, 80, 81, 85, 117, 119, 120, 122, 158, 166, 169 Hitler, Adolf, 3, 14, 15, 52, 62, 64, 65, 66, 67, 74, 85, 89, 103, 109, 110, 111, 112, 117, 118, 120, 125, 127, 129, 130, 131, 134, 143, 144, 158, 165, 168, 169, 174, 175, 180, 183, 184, 186, 196, 240, 267 Hofmann, Otto: Advisory Board findings, 118–119, 159; parole, 119, 244, 246, 282 Hostages Trial (Case 7), 18, 21, 78, 107, 108, 113, 128, 129, 160–161, 166, 240, 282 Hoth, Hermann: Advisory Board findings, 108; denial of clemency, 183; parole, 108, 249, 285 Houdremont, Eduard: Advisory Board findings, 133; release, 284 Hübner, Herbert: 1950 clemency petition, 63; Advisory Board findings, 119–120; release, 120, 282 Hungary, 10, 78–79, 141–143, 169   ICTR (International Criminal Tribunal for Rwanda), 277–278 ICTY (International Criminal Tribunal for the Former Yugoslavia), 277–278 IG Farben Trial (Case 6), 75, 97, 102, 183, 279 Ihn, Max: Advisory Board findings, 133; release, 284 Interim Mixed Parole and Clemency Board (1953–1955), 91, 123, 200–201, 221,

index 335 231, 243, 245, 253, 255, 272; members, 232–233, 260; operations, 239–242, 254; procedures, 226–228, 230, 234–239 International Criminal Court (ICC), 9, 277 International Military Tribunal (IMT), 4, 9, 16, 17, 18, 20, 44, 83, 125, 126, 131, 165, 173, 179, 180, 185, 219, 234, 268, 275 International Military Tribunal for the Far East, 46, 185 Israel, 165, 166–167   Jackson, Robert H., 9, 20 Janssen, Friedrich: 1950 clemency petition, 76; Advisory Board findings, 133; release, 284 Japan, 20, 46–48, 94, 185, 223, 266, 274, 276, 277 Javits, Jacob, 155, 177, 184–185 Johnson, Louis A., 39 Jost, Heinz: 1950 clemency petition, 56–57, 61, 69; Advisory Board findings, 128–129; release, 129, 200, 283 Judges Trial (Case 3), 100, 109, 123, 137, 156, 158, 280 judicial murders, 2, 75, 109–110, 123–124, 158, 243, 254   Kaufman, Joseph W., 180, 182 Kehrl, Hans: 1950 clemency petition, 51, 58; release, 169, 284 Keitel, Wilhelm, 44, 144 Kennan, George, 29 Keppler, Wilhelm: release, 169, 284 Kesselring, Albert, 205, 206, 218–219 Kiefer, Max: Advisory Board findings, 110–111; release, 111, 281 Kirkpatrick, Ivone, 32, 165, 197 Klemm, Herbert: Advisory Board findings, 137–138; Interim Mixed Board, 254; parole, 138, 259–260, 280 Klingelhöfer, Waldemar, 268; 1950 clemency petition, 64–65; Advisory Board findings, 106, 156; Interim Mixed Board, 254; parole, 106, 259, 282

Korean War, 10, 11, 38, 40–43, 45, 46, 48, 49, 67, 149, 150, 151, 169–170, 173, 174–175, 180, 189, 203, 207, 210, 274 Körner, Paul: 1950 clemency petition, 60; Advisory Board findings, 142–143; release, 143, 284 Korschen, Heinrich: Advisory Board findings, 133; release, 284 Krekeler, Heinz, 229–230 Krupp (firm), 2, 67, 71, 76, 79, 131–133, 159–160, 183, 186 Krupp, Alfried: 1950 clemency petition, 70–71; Advisory Board findings, 133–134; property seizure, 102, 132, 134, 159–160, 175, 184, 315n90; release, 1–2, 159, 165, 169, 173, 174–175, 177, 178, 180–182, 183, 186–187, 284 Krupp Trial (Case 10), 19, 23, 75, 102, 131–132, 134, 159, 168, 179, 180, 186, 284 von Küchler, Georg, 205; 1950 clemency petition, 66, 77–78; Advisory Board findings, 108–109, 110; clemency, 183; release, 109, 229, 285 Kuhnt, Gottfried, 254, 260, 265 Kuntze, Walter, 108, 146; 1950 clemency petition, 56; denial of clemency, 107, 161; medical parole, 107, 240–241, 250, 282   Lamb, Knox, 218, 222, 227–228, 236–237, 247, 253 Lammers, Hans Heinrich: 1950 clemency petition, 58–59, 62, 87–88; Advisory Board findings, 143–145; release, 145, 169, 199, 284 Landsberg (town), 154, 176 Landsberg Prison, 3, 8, 13, 15, 22, 23, 24, 25, 35, 54, 96–97, 108, 152, 154, 195, 199, 201, 205, 217, 239, 245, 260, 266–267; 1951 clemency releases, 1–2; daily life in, 1, 27–28, 54, 57, 62–63, 99, 252 Landsberg Prisoners. See Nuremberg war criminals

336   in d ex Landsberg Report, 148, 154–155, 156–164, 171, 174–175, 177, 187, 191, 193, 194, 197, 198, 206 Langer, William, 21 Lanz, Hubert: 1950 clemency petition, 77; release, 282 Lautz, Ernst: 1950 clemency petition, 75; release, 280 Lehmann, Heinrich: 1950 clemency petition, 79; Advisory Board findings, 133; release, 284 Lersch, Emil, 233, 235–236, 240–241, 254, 259, 264, 265 von Leyser, Ernst: Advisory Board findings, 145–146; release, 146 List, Wilhelm, 108, 146, 205; 1950 clemency petition, 77; denial of clemency, 107, 161, 282; medical parole, 107, 240–241, 250–251 Lörner, Georg: parole, 252, 281 Lörner, Hans: 1950 clemency petition, 63; Advisory Board findings, 140–141; release, 141, 281 lynching of Allied airmen, 138, 144, 162, 221   MacArthur, Douglas, 46, 169, 223 Malmedy Massacre Trial, 21, 22, 23, 24, 27, 36, 151, 163, 164, 177, 255–257, 258, 277. See also Dachau War Crimes Trials von Manstein, Erich, 180, 205, 206 von Manteuffel, Hasso, 229 Marshall Plan, 148, 168–169 McAuliffe, Anthony, 255 McCarthy, Joseph, 11, 21, 25, 49, 177 McCloy, Ellen, 170–171 McCloy, John J., 4, 6, 9, 15, 16, 24, 32, 51, 53, 60, 70, 89, 90, 92, 95, 98, 102, 104, 115, 131, 147, 157, 178, 203, 206, 207, 227, 231–232, 254, 270, 274; appointment as High Commissioner, 26; clemency powers, 30–34, 47; creation of 1950 Advisory Board, 35–37, 49; defense of clemency grants, 11–12, 26–27, 48–49, 149–150, 151, 152–153, 164–165, 178–179, 181–187,

188–189; denials of clemency, 160–163, 241; executions of Nuremberg war criminals, 86, 192, 193–197; grants of clemency to Nuremberg war criminals, 1–2, 82, 106, 108, 109, 110, 111, 112, 113, 119, 120, 121, 122, 123, 124–125, 126, 127, 128, 129, 130, 132, 135, 136, 137, 138, 139, 141, 143, 145, 146, 153, 154–155, 156–164, 238, 259, 268, 271, 273; views on 1950 Advisory Board, 29, 93, 101; views on Germany, 34–35, 43–45, 148–149, 164, 193, 197–200; views on future of clemency program, 200–202; views on Nuremberg trials, 152, 153, 160, 172, 179, 182–183, 186, 193 medical experiments, 2, 57, 60, 71, 72, 73, 79, 80–82, 107, 120–122, 221, 243 medical parole, 107, 109, 113, 161, 192, 210, 215–219, 221, 222, 223, 230, 232, 239, 240, 241, 245–246, 250, 251, 254, 260, 266, 280 Meuschel, Hans, 233, 240–241 Milch, Erhard, 19, 205, 241, 242, 280; 1950 clemency petition, 66–67, 71; Advisory Board findings, 125–126; parole, 126, 241–242, 247, 251 Milch Trial (Case 2), 19, 100, 125, 158, 271, 280 Ministries Trial (Case 11), 19, 23, 24, 26, 83, 97, 100, 102, 126, 141, 166, 169, 184, 284 Mixed Parole and Clemency Board (1955–1958), 123, 192, 272; operations, 254–268; origins, 200–203, 212–216, 221, 222–223, 224, 226, 231, 234, 245, 253 Moran, Frederick A., 92, 93, 94–95, 98, 100, 108, 152 Morgenthau, Henry, Jr., 175, 185–187 Müller, Erich: 1950 clemency petition, 67; Advisory Board findings, 132–133; release, 284 Muller, Walter J., 233 Mummenthey, Karl: 1950 clemency petition, 58, 60, 75, 76; parole, 249, 281

index 337 NATO (North Atlantic Treaty Organization), 12, 15, 41, 42, 46, 127, 169, 180, 197, 203, 208, 233 Naumann, Erich: 1950 clemency petition, 57; denial of clemency, 105, 283; execution, 106, 194, 195 Niebuhr, Reinhold, 28 Night and Fog (Nacht und Nebel) operations, 109, 137, 138 Nosske, Gustav: 1950 clemency petition, 62, 75; Advisory Board findings, 111–113; release, 112, 200, 283 NSC (National Security Council), 15, 39, 40 Nuremberg Military Tribunals (Nuremberg Trials), 31, 35, 37, 149, 237, 273; acquittals, 3; appeals of verdicts, 16–17, 19–20, 22, 23, 25; attacks on legitimacy of, 17, 21–22, 23, 28, 32–33, 49, 68–72, 79–80, 83, 89, 103–104, 113, 116, 147, 173–174, 194, 195, 209, 231, 247, 248–249, 257, 262, 268, 272, 276, 277; and “collective guilt,” 5, 6, 132, 167, 172, 173; influence of Cold War on, 10–11; and international law, 3, 7, 9, 13, 37, 95, 102, 150, 151, 179–181, 270–271, 275; legacy of, 4, 8–9, 115, 167–168, 173–174, 177, 180–181, 184, 185, 187, 189–190, 191–192, 193, 206, 225, 234, 239, 253, 266, 272–273, 276–278; legal basis of, 3, 8, 289–290n7, 291n21; and public opinion, 18, 28, 187, 206–207, 218; purpose of, 6–7, 95, 271–272; and “superior orders” defense, 33, 52, 68, 79, 103, 105, 116, 131, 223, 237; as “victor’s justice,” 4–5, 7–8, 22, 28, 65, 94, 173, 175, 189, 204, 228 Nuremberg war criminals, 8, 12, 13, 16, 17, 25, 27, 28, 37, 45, 53, 80, 91, 95, 96, 118, 151, 192, 193, 196, 197, 200, 210, 215, 217, 221, 231, 242, 249, 266, 268, 272; anti-communism of, 61, 64–68, 78; attitudes toward Nazism, 61, 64–67, 89; biographical profiles of, 7, 95; clemency statistics, 4, 156, 279–285; family circumstances

of, 57–60, 63, 249–252, 267–268; disobedience of criminal orders, 73–74, 89, 112; justifications for wartime activities, 73–77; medical evaluations of, 55–57; religious views and practices of, 61–62, 85; self-­ conceptions as “apolitical” figures, 63–67, 88–89; self-conceptions as “moral” figures, 60–63; tabulation of sentences, 96–97, 219, 254–255, 260–261, 262. See also clemency petitions   Oberheuser, Herta: 1950 clemency petition, 81–83; Advisory Board findings, 122; release, 122, 279 Oeschey, Rudolf: Advisory Board findings, 123–125; release, 123, 124–125, 280 Ohlendorf, Otto, 28, 129, 130, 163, 265; denial of clemency, 105, 283; execution, 106, 194–196 OKW (Oberkommando der Wehrmacht), 14, 74, 77, 243 OMGUS (Office of Military Government of the United States), 16, 18, 19, 23 Ott, Adolf: Advisory Board findings, 105–106, 156; Interim Mixed Board, 254; release, 106, 264–268, 283   parole system, 216, 223; daily life on parole, 247–253; end of, 261–268; focus on rehabilitation, 7, 8, 9, 94–95, 152, 192, 223, 230, 232, 235–237, 238, 242, 247–249, 251–253, 258, 259, 263, 265, 274; formation of, 221–222, 227–228, 230; procedures, 242–247 Peck, David W., 91, 93, 98, 100, 114, 147, 152, 237 Peck Panel. See Advisory Board on Clemency for German War Criminals Peiper, Joachim, 256–257 Phenix, Spencer, 259–264, 265, 267, 269, 274 Pleiger, Paul: Advisory Board findings, 126–127, 156; release, 127, 284 Plitt, Edwin A., 232–233, 235, 254, 256–257, 258, 259

338   in d ex plunder/theft, 1, 2, 3, 9, 72, 88, 107, 111, 126, 130, 132, 134, 140, 142, 143, 144, 151, 159, 169, 170, 180, 276, 278 Pohl, Oswald: 1950 clemency petition, 85; denial of clemency, 106–107, 160, 162, 176, 281; execution, 4, 107, 194, 195 Poland, 10, 73, 77, 140–141, 169, 170 Pook, Hermann: 1950 clemency petition, 64, 83; Advisory Board findings, 110–111; release, 111, 281 Poppendick, Helmut: 1950 clemency petition, 80; release, 279 Preparatory Committee for a General Amnesty, 204–205, 211   von Radetzky, Waldemar: 1950 clemency petition, 72–73; release, 283 Ravensbrück, 73, 81–82, 121–122 Raymond, John, 23, 31, 35–36, 96, 225, 234, 258, 260, 261, 269 Reber, Samuel, 206, 219, 220 Reinecke, Hermann, 205; Advisory Board findings, 14–15; denial of clemency, 183, 241; parole, 15, 241–242, 285 Reinhardt, Georg-Hans, 205; 1950 clemency petition, 60; Advisory Board findings, 108; denial of clemency, 183; release, 108, 285 Rendulic, Lothar: release, 199, 282 Riddleberger, James W., 215–216 Ridgeway, Matthew, 208, 210–211 Rintels, J. B., 32–34 Roosevelt, Eleanor, 178, 181–182, 184 Rose, Gerhard: Advisory Board findings, 120–121; parole, 121, 241, 253, 279 Rosenberg, Alfred, 117, 144 Rössler, Fritz, 195 Rothaug, Oswald: 1950 clemency petition, 58; Advisory Board findings, 123–125; Interim Mixed Board, 254; parole, 124–125, 243, 259, 280 Royall, Kenneth Claiborne, 18, 20, 22, 23, 24 RSHA (Reichssicherheitshauptamt), 61, 68, 86, 128 Rühl, Felix: 1950 clemency petition, 63, 80;

Advisory Board findings, 106; release, 106, 283 RuSHA (Rasse- und Siedlungshauptamt der SS), 2, 56, 63, 130, 244, 246; “Aryanization” or Germanization programs, 2, 118–120, 130, 158 RuSHA Trial (Case 8), 18, 23, 100, 101, 117, 158–159, 282   SA (Sturmabteilung), 3, 63 von Salmuth, Hans: clemency, 183, 285 Sandberger, Martin, 28; 1950 clemency petition, 84–85; Advisory Board findings, 106, 156; Interim Mixed Board, 254; release, 106, 264–268, 283 Saukel, Fritz, 125–126 Schäffer, Hermann, 194 Schlegelberger, Franz: Advisory Board findings, 109–110; parole, 110, 250, 280 Schmid, Carlo, 172 Schröder, Oskar: 1950 clemency petition, 79; Advisory Board findings, 120, 122; parole, 251–252, 279 Schubert, Heinz: Advisory Board findings, 129–130; release, 130, 200, 283 Schulz, Erwin: Advisory Board findings, 138–139; release, 139, 241, 283 Schuman, Robert, 39, 165, 198 Schwalm, Fritz: Advisory Board findings, 119–120; release, 120, 282 Schwarz, Frederick, 223–224 von Schwerin, Gerhard, 39, 40 SD (Sicherheitsdienst), 3, 14, 21, 65, 69, 74, 128, 162 Seibert, Willi: release, 241, 283 Shattuck, Henry L., 91–92, 232, 234–241, 243, 253–254 Shawcross, Hartley, 179, 182 Simpson, Gordon A., 22, 24, 29, 163 Simpson Commission. See Simpson, Gordon A. slave labor, 1, 2, 3, 58, 71, 75–76, 79, 85, 89, 103, 107, 108, 110, 119, 120, 125, 126, 130, 132, 133, 136, 140, 141, 142, 143, 144, 145, 158, 159, 180, 181, 188, 221

index 339 Snow, Conrad E., 47, 48, 91, 92, 93, 94, 98, 100, 108, 152 Sommer, Karl: death sentence commutation, 24; parole, 245, 249–250, 281 Soviet prisoners of war, murder of, 15–16, 108 Soviet Union, 10, 15, 38, 39, 45, 49, 57, 65, 67, 68, 69, 70, 72, 78, 87, 140, 142, 144, 169, 170, 175, 179, 180, 198, 208, 213, 215, 224, 229, 235, 245, 246, 257, 267, 275, 291n24 Spandau Prison, 173, 219, 275 SPD (Sozialdemokratische Partei Deutschlands), 43, 155, 172, 204, 205, 209, 210, 211, 214 Speer, Albert, 125, 126, 132, 133, 275 Speidel, Hans, 127 Speidel, Wilhelm: Advisory Board findings, 127–128; release, 128, 282 Spradley, J. Bruce: psychiatric evaluations of Nuremberg war criminals, 55–57, 81–83, 125 SRP (Sozialistische Reichspartei Deutschlands), 195–196 SS (Schutzstaffel), 2, 3, 4, 7, 14, 17, 21, 27, 44, 51, 58, 62, 63, 64, 65, 66, 67, 68, 70, 72, 74, 75, 76, 77, 79, 80, 83, 86, 88, 102, 110, 112, 118, 121, 127, 128, 129, 132, 140, 141, 142, 143, 144, 160, 166, 169, 170, 219, 248, 252, 255, 267 Stalin, Joseph, 10, 15, 68, 150 Steimle, Eugen, 28; Advisory Board findings, 134–135; parole, 135, 241, 244, 252, 283   Taylor, Telford, 6, 7, 9, 17, 18, 19, 21, 48, 95, 199–200, 214, 269, 277; criticism of McCloy, 178, 180–181, 182, 184–185, 187, 190, 199; defense of tribunals, 22; final report on Nuremberg trials, 11, 14, 270–272 Thierack, Otto, 110, 137, 138 Tokyo War Crimes Trial. See International Military Tribunal for the Far East Truman, Harry S., 15, 17, 21, 22, 26, 31, 38, 39, 40, 41, 42, 44, 47, 48, 49, 193, 259

Tschentscher, Erwin: 1950 clemency petition, 71; Advisory Board findings, 140–141; release, 141, 281   United Nations Commission on Human Rights, 9 Upton, Robert, 256–259 US Army Europe (USAREUR), 17, 25, 95, 99, 154, 210, 212, 217, 255. See also Handy, Thomas US Army Historical Division, 57, 244, 250 US Army War Crimes Modification Board, 163–164 US State Department. See HICOG US Supreme Court, 4, 15, 16, 19, 20, 21, 22, 23, 24, 25, 30, 35, 51, 68, 92, 94, 167, 179, 193–194   VdH (Verband der Heimkehrer, Kriegsgefangenen und Vermisstenangehörogen Deutschlands), 245–246, 266–267 VdS (Verband deutscher Soldaten), 175, 208 Veesenmayer, Edmund: 1950 clemency petition, 78–79; Advisory Board findings, 141–143; release, 143, 284 Volk, Leo: 1950 clemency petition, 62–63; release, 281 Volksgericht (Nazi “People’s Court”), 75, 123 Voorhees, Tracey, 24   Warlimont, Walter: clemency, 183, 241; parole, 241–242, 243–244, 250, 285 von Weber, Hellmuth, 254, 265 Wehrmacht: political activity in the Third Reich, 65–67; rejection of “collective guilt,” 5, 66, 113, 240–241; and war crimes, 2, 3, 14–15, 21, 74, 76–78, 107–108, 113, 127–128, 145–146, 156, 161, 240–241, 241–242 von Weizsäcker, Ernst, 29, 97, 284 Werl Prison, 205, 229, 255, 260 West German Constitution (Basic Law), 213, 242; and capital punishment, 6, 25, 150, 153, 172, 194, 195 West Germany, 46, 47; amnesty movements, 4–6, 17, 21, 27, 28, 38, 42, 44, 149, 154, 164, 171, 174, 192, 193,

34 0   in d ex West Germany (continued) 202–215, 218–219, 228–229, 233, 247, 257, 266–267; Foreign Office, 45, 203, 211, 244, 246, 266–267; Ministry of Justice, 194, 200, 244; and post-Nuremberg trials, 275–276; rearmament, 5–6, 38–45, 127, 142, 165, 169–170, 175, 182, 197–198, 205, 207–210, 218–219, 224, 229, 251; sovereignty of, 6, 12–13, 18, 42, 151, 172, 197–200, 201, 209, 220, 230, 231, 236, 244, 253, 257, 272, 273; state support for war criminals, 193, 194, 246, 263, 266–268, 274; and Vergangenheitsbewältigung, 12, 276

Wittlich Prison, 199, 205, 255, 258, 260 World Jewish Congress, 151, 167–168, 219, 233 Wurm, Theophil, 28, 149, 204 WVHA (SS Wirtschafts Verwaltungshauptamt), 4, 58, 62, 63, 64, 68, 71, 72, 73, 74, 75, 76, 79, 83, 85, 106–107, 110, 136–137, 140–141, 195, 245, 248, 252 WVHA Trial (Case 4), 17, 19, 24, 65, 85, 102, 106, 156, 160, 166, 281   ZSL (Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen), 276