The Fate of JCS 1067
Secretary of State Edward R. Stettinius, Jr., dispatched JCS 1067 to Ambassador Winant in London on 13 January 1945 with instructions to present it in the European Advisory Commission as the U.S. proposal for an over-all directive for Germany.1 As revised in the SWNCC (State War-Navy Co-ordinating Committee) , the document had undergone an important change. In the September 1944 version it had been an interim directive for the period between the surrender and the establishment of the tripartite authority. The revision extended it into the period after the tripartite authority was established and implied that it would stay in force until the governments had formulated long-range policies. Consequently, the revised JCS 1067 was, in addition to being a statement of occupation policy, a charter for the commanders in chief as members of the Control Council.
JCS 1067 was agreed US policy, but as far as the State Department was concerned, the agreement was less than halfhearted. James W. Riddleberger, the chief of the Division of Central European Affairs, who had worked on the revision, complained about the "intransigent attitude" of the War Department representatives and described the document as "substantively . . . the same as drafted by the Treasury Department some months ago." He had recommended that "if for various reasons the Department thinks it must . . . approve JCS 1067 for submission to EAC . . . Winant be advised by us that he should not insist upon JCS 1067 to a point where it will unduly prolong the negotiations." 2 The Advisor on German Economic Affairs, Emile Despres, who had also worked on the revision, while conceding that the War Department acted in its own interest and not the Treasury Department's, found the policy equally unpalatable.3 Winant and his political adviser, Philip E. Mosely, declared JCS 1067 unsatisfactory in general and objected to most of its particulars. The discontent acquired an intercontinental dimension when Leon Henderson, former director of the Office of Price Administration and the State Department and Foreign Economics Administration choice as adviser on economic affairs in the occupation, returned from Europe "in a highly critical frame of mind with regard to plans and preparations . . . for military government in Germany" and acutely unhappy with the economic implications of JCS 1067. 4 Among the multitude of State Department objec-
tions to the document, three predominated namely, that it was an infringement by the Departments of War and Treasury of the State Department's policy-making function ; that it emphasized the authority of the zone commanders to the practical exclusion of the Control Council; and that the Morgenthau Plan lurked in the economic provisions only faintly disguised.
On the eve of the Yalta Conference the State Department's opposition to JCS 1067 smoldered in deepening frustration; the only way out took a perilous course directly through the White House. Hilldring wrote to Smith, "It [JCS 1067] is at present the policy of the United States, approved on the highest level, and so long as that is true, we will, of course, as good soldiers, base our plans on it." 5
The Yalta meeting, being chiefly concerned with other matters, was not expected to define an occupation policy for Germany, and, in fact, it did not; but the protocol did include partial decisions on reparations, war crimes, dismemberment, and a seat on the Control Council and zone for France. The conferees also agreed in principle on close co-ordination of laws and administration between the zones, removal of active Nazis from positions of importance, dissolution of Nazi institutions, and confiscation of German external assets.6 Two weeks after the conference, the President turned over the potpourri to Stettinius and instructed him as Secretary of State to take responsibility for seeing that the "conclusions" were carried forward. 7 Suddenly, the pall of frustration in the department lifted.
On 10 March, citing his responsibility for the conclusions reached at Yalta, Stettinius sent the President a State Department draft directive for Germany. It came back three days later with an "OK FDR." 8 On the 14th, in the SWNCC, the War and State Department representatives talked about rewriting JCS 1067 in light of the new directive, knowing that the two could not survive side by side. From the Army point of view, the heart of JCS 1067 was the latitude it gave the zone commander in his own zone. The revision had stated:
"The agreed policies of the Control Council shall be determinative throughout the zones. Subject to such policies the administration of military government in each of the zones of occupation shall be the sole responsibility of the Commanders-in-Chief of the forces occupying each zone." 9 The 10 March directive, however, specified:
"The authority of the Control Council shall be paramount throughout Germany. The zones of occupation shall be areas for the enforcement of the Council's decisions rather than regions in which the zone commanders possess a wide latitude of autonomous power." 10 For the Army, these four sentences were the issue.
But there was another issue, namely, the degree to which the zone commander would be charged with maintaining controls on the German economy. In the revised JCS 1067 as in the original, in response to Eisenhower's desire not to be required to sustain an economy he thought was bound to collapse, the Army had insisted on making the Germans solely responsible for all controls on prices, food
distribution, employment, production, reconstruction, distribution, consumption, housing, and transportation.11 The March 10 directive made economic controls a responsibility of the occupation authorities and assigned the power to formulate policy to the Control Council.12 The second issue was double-barreled, aimed at the Army's desire to avoid an onerous and potentially impossible mission, but even more at the Morgenthau philosophy of promoting German economic weakness.
The President's okay and initials made the State Department directive a powerful document but, as Stettinius quickly found out, not an unassailable one. The weakness was in a sense congenital. In the charge to him, the President had stated, "you will, I know, wish to confer with other officials of this Government on matters touching upon their respective fields." In forwarding the directive to the White House, Stettinius had reported that he intended to establish "an informal policy committee on Germany under the chairmanship of the Department of State and including representatives of War, Navy, Treasury, and the Foreign Economic Administration." 13
On the 15th, Stettinius met in his office with Stimson, Morgenthau, Assistant Secretary of the Navy H. Struve Hensel, and Assistant to the Foreign Economic Advisor Henry H. Fowler to acquaint them with the 10 March directive and have them name their departments' members to the Informal Policy Committee on Germany (IPCOG) , which was to be chaired by Assistant Secretary of State for Economic Affairs William E. Clayton. Stimson, who had not seen the document before, said it appeared to place "a good deal of emphasis" on centralization, in regard to both policy formation and administration. He had no quarrel, he said, with the assumption that Germany ought to be treated as one nation or with centralized policy formation, but he did not believe that administration should be "handed over to a central office." Morgenthau had not seen the document either, but he had heard about it from McCloy earlier in the day, as Stimson probably had also. To McCloy he had been noncommital, saying, "it's up to Stimson to take the lead on this thing." 14 At the meeting, however, he demanded to be told "just how much . . . of the present German centralized government" was to be continued. His impression was, he said, that "the German Empire is to be continued through the medium of a central unit in Berlin." 15
Afterward, apparently following a cabinet meeting on the 16th, Stimson talked to the President and told him the State Department directive would prevent the soldiers from doing their job in Germany. The Army, he said, was trained for a zonal operation and the zone commander had to have "complete residual authority" in matters the Control Council did not take over and handle centrally. To McCloy, Stimson indicated he still felt badly about the turn that policy on Germany had taken at the Quebec Conference and was not pleased with the State Department's interpretation of Yalta lout was determined to keep himself and the War Department out of policy decisions. He instructed McCloy as the War Department's chief negotiator to leave political and economic questions to others. The Army would carry out any agreed pol-
icy on these matters, provided they were administratively feasible.
Stimson's talk with the President was inconclusive but on one point highly enlightening : the President told him that he did not remember the State Department directive and, to his knowledge, had not read it.16 The Secretary forwarded a report of the talk to McCloy and then withdrew from the affair, leaving McCloy to defend the Army's case in IPCOG. An interdepartmental committee at the assistant secretary level, however, was not the place to perform major surgery on a document bearing presidential approval, as McCloy had helped demonstrate during the revision of JCS 1067 in the SWNCC. If necessary, McCloy apparently proposed to attempt to get JCS 1067 and the 10 March directive recognized in IPCOG as co-ordinate policy statements without materially altering either one. 17 This potentially fascinating piece of sleight of hand was not going to be necessary, however, because McCloy had an ally whose reach went far beyond the subcabinet level, Secretary of the Treasury Morgenthau.
Theirs was a strange alliance. Stimson remained totally aloof from it, and McCloy could only participate in it to promote the War Department's limited objectives. Morgenthau, on the other hand, had to produce a substantial victory for the Army if he was going to salvage any part of his own occupation philosophy. For him JCS 1067 was a compromise, hardly more than an entering wedge for the Morgenthau Plan, but he had to fight to save it if he wanted to preserve any chance of the full-fledged plan being put into effect. Above all, he had to scuttle the State Department directive. In doing so he was impervious to the scruples that had bothered Stimson. Writing to Stettinius on 20 March he attacked the views in the directive as "completely opposed to the Treasury's views on these issues" and as "contrary in major respects to decisions made by this Government prior to Yalta; and . . . opposed in their most important implications to the views which I understand the President holds on Germany." 18 At a luncheon in the White House that same day, Morgenthau persuaded the President to reconsider the 10 March directive, which the President again said he did not remember signing.19
Two days later the President summoned Acting Secretary of State Joseph C. Grew, Under Secretary of War Patterson, and McCloy to the White House. Assistant Secretary of State Clayton and Mr. Roosevelt's son-in-law, John Boettiger, were also present. No Treasury representatives were included, but Morgenthau had presented his views in writing at the luncheon, and McCloy believed these papers were on the President's desk during the meeting. The President said there were many elements in the 10 March directive that he did not like, and he wanted the directive rewritten.20
He seemed to want to compromise on the main issues between the departments. He said the State Department directive placed too much emphasis on centralized administration, but he wanted provisions for central administration of some national public services, such as telephone and transportation. He did not want military government to administer economic con-
trols, such as rationing, but he believed the Germans ought to be required to maintain them. He suggested, as a possibility, appointing three-man German committees, which would be told what was required and if they failed would be taken out and shot. Neither did he believe that the occupation authorities should undertake to preserve a minimum standard of living for the Germans above the starvation level. He talked again about soup kitchens but did not object to the disease and unrest formula. He alluded several times to the deindustrialization features of the Morgenthau Plan, saying repeatedly that he did not want to eliminate German heavy industry. He had made a mistake at Quebec, he said, and he blamed it on Churchill, who in drafting the memorandum had used the word "pastoral," which the President said he would never have thought of using. He did not believe in such things as ruining the mines or destroying industry and specifically would be willing to let the Germans have machine tool and locomotive industries, as long as they used them for their own internal needs.21
On the morning of 23 March, the State, War, and Treasury members of IPCOG met in Morgenthau's office to write a directive for Germany based on the guidance received the day before. The result read as follows:
The authority of the Control Council to formulate policy with respect to matters affecting Germany as a whole shall be paramount, and its agreed policies shall be carried out in each zone by the zone commander. In the absence of such agreed policies, and in matters exclusively affecting his own zone, the zone commander will exercise his authority in accordance with directives received from his own government.
The administration of affairs in Germany should be directed toward the decentralization of the political structure and the development of local responsibility. The German economy shall also be decentralized, except that to the minimum extent required for the purposes set forth herein, the Control Council may permit or establish central control of (a) essential national public services such as railroads, communications, and power; (b ) finance and foreign affairs, and (c) production and distribution of essential commodities. There shall be equitable distribution of such commodities between the zones.
Controls may be imposed upon the German economy only as they may be necessary (a) to carry out programs of industrial disarmament and demilitarization, reparations, and relief for liberated areas as prescribed by higher authority and (b) to assure the production and maintenance of goods and services required to meet the needs of the occupying forces and displaced persons in Germany, and essential to prevent starvation or such disease or civil unrest as would endanger the occupying forces. No action shall be taken, in execution of the reparations program or otherwise, which would tend to support basic living standards in Germany on a higher level than that existing in any one of the neighboring United Nations. [Here follow financial provisions related to reparations, which are omitted.]
In the imposition and maintenance of economic controls, German authorities will to the fullest extent practicable be ordered to proclaim and assume administration of such controls. Thus it should be brought home to the German people that the responsibility for the administration of such controls and for any breakdowns in those controls, will rest with themselves and their own authorities.
The Nazi party and its affiliated and supervised organizations and all Nazi public institutions shall be dissolved and their revival prevented. Nazi and militaristic propaganda in any form shall be prevented. There shall be established a coordinated system of control over German education designed completely to eliminate Nazi and militarist doctrines and to make possible the development of democratic ideas.
Nazi laws which provide the basis of the
Hitler regime or which establish discriminations on grounds of race, creed or political opinion, shall be abolished.
All members of the Nazi party who have been more than nominal participants in
its activities, and all other persons hostile to Allied purposes will be removed
from public office and from positions of responsibility in private enterprise.
War criminals and those who have participated in planning or carrying out Nazi enterprises involving or resulting in atrocities or war crimes, shall be arrested, brought to trial and punished. Nazi leaders and influential Nazi supporters and any other persons dangerous to the occupation or its objectives, shall be arrested and interned. A suitable program for the restitution of property looted by Germans shall be carried out promptly.
The German armed forces, including the General Staff, and all paramilitary organizations, shall be promptly demobilized and disbanded in such a manner as permanently to prevent their revival or reorganization. The German war potential shall be destroyed. As part of the program to attain this objective, all implements of war and all specialized facilities for the production of armaments shall be seized and destroyed. The maintenance and production of all aircraft and implements of war shall be prevented.22
The War Department supplied most of the language in the directive. Yet, on the chief points of contention it was a compromise, as Clayton and McCloy agreed, based on the President's statements of the day before. The central administration was weaker than the State Department had wanted, but the authority of the Control Council was "paramount," not merely "determinative," as in JCS 1067, and the zone commander's authorities would not administer economic controls, but they would make sure that the Germans did. JCS 106'7 had left such controls entirely up to the Germans. JCS 1067 had not specified a deliberate reduction of the German economy in the sense of the Morgenthau Plan, and neither did the new directive. Morgenthau was disappointed with the paragraph on the German war potential lout said he would not urge anything that McCloy and Clayton thought went beyond what the President had specified, especially since he was certain that the President was "so committed to a program reducing the size of German heavy industry" that he was certain to issue more detailed instructions later.23
In the afternoon, Morgenthau and Grew took the directive to the White House where the President signed it and, at Morgenthau's prompting, added the words, "This supersedes March 10th." After the signing, the President's secretary, Grace Tully, brought in a memorandum containing a single paragraph that the President added as the third paragraph of the directive. It read : "Germany's ruthless warfare and fanatical Nazi resistance have destroyed the German economy and made chaos and suffering inevitable. The Germans cannot escape responsibility for what they have brought on themselves." 24 When the paragraph later headed the list of basic military government objectives in Germany in the final version of JCS 106'7, it read like an ominous echo of the Morgenthau Plan. In the White House office that day, Morgenthau had no idea where it came from. McCloy explained later that he "guessed it originated in John Boettiger's brain." He thought, and Morgenthau agreed, it was "sort of pretty good-pretty
good propaganda." 25 Neither saw any significance in it beyond that.
The 23 March directive went to Winant in London the next day with an explanation that it superseded the 10 March directive-and that JCS 1067 would be withdrawn-but without clear instructions that it was to be submitted in the EAC. After a heated discussion in IPCOG when the War, Treasury, and Foreign Economic Administration members learned that Winant had not been instructed to present the directive and after Winant asked what he was to negotiate, if anything, Grew told him to negotiate the directive as a protocol of agreement as "a matter of highest priority." 26 JCS 1067-also, if less explicitly superseded-went to IPCOG to be rewritten as IPCOG 1 and become the directive to the U.S. commander in Germany.
Part I (Political and General) and Part III (Financial) of IPCOG 1 were written within a week from War Department drafts which incorporated much of the detail from JCS 1067. Part II (Economic) took almost another four weeks as the Treasury members attempted to write in provisions making the Germans entirely responsible for economic controls.27 In the final version, the implication that the zone commander would require the Germans to maintain controls was less clear than in the 23 March directive, but not completely eliminated as the Treasury wanted.28
In the meantime, on 12 April, Harry S. Truman succeeded to the Presidency. On the 26th, IPCOG approved and sent to him a complete draft of IPCOG 1. The following morning the members of IPCOG and Grew and Morgenthau, who at the White House conferences always stood in for the Treasury member, Harry Dexter White, went to the President's office to explain IPCOG 1 and the 23 March directive, which he had not yet seen. Mr. Truman said he wished to study the papers and asked the committee to get the directive ready quickly for final approval.29
The JCS gave its concurrence to IPCOG 1 on 10 May with a proviso that the directive be amended to allow Eisenhower to continue the production of synthetic rubber and oil, aluminum, and magnesium to meet the needs of the occupying forces. The President, informed that Morgenthau wanted to have such plants destroyed but that the War and State Departments believed Eisenhower ought to keep at least the synthetic oil plants to save on US imports, said he entirely disagreed with Morgenthau.30 Four days later, approved by the President with the JCS amendment, the directive went to Eisenhower as JCS 1067/8. 31
By the turn of the year 1944-45, the war crimes question was becoming urgent without having been brought measurably closer to a solution. The War, State, and Navy Departments had worked since November on a recommendation to the President for a grand conspiracy trial. As the War and State Departments drew closer to agreement on the wording, the Navy became increasingly uninterested and finally withdrew altogether, stating that its interest was limited to the traditional concept of war crimes as single identifiable acts. The Treasury, also consulted, refused to give its concurrence without provisions that would have allowed any of the United Nations, as a matter of first priority, to claim and dispose of alleged German war criminals as they saw fit. Where the President stood and how he would react to the approach of the War and State Departments had been uncertain all along but appeared particularly so in December when he appointed Judge Samuel I. Rosenman as his special adviser on war crimes.32
Simultaneously, the time for influencing the President was becoming threateningly short. The Big Three meeting at Yalta was scheduled for early February, and a decision on war crimes was likely to be made there. The British government was already pressing for an answer to a question that could scuttle the conspiracy trial before it was even properly launched. In late September, the United Nations War Crimes Commission had proposed a United Nations court to be created by treaty and be charged with trying all war crimes cases.33
The British government vehemently opposed the idea of a treaty court, ostensibly on the grounds that setting up such a court would take intolerably long; it wanted a strict interpretation of the Moscow Declaration of 1943, under which each nation would try the persons accused of having committed crimes against its subjects or on its territory. In an aide memoire of 30 October, the British had asked the US government to join in communicating these views to the War Crimes Commission.34 The difficulty of organizing a treaty court could not be denied, but an international tribunal was essential to the War Department's concept of a conspiracy trial, and an affirmative answer to the British could have been a crippling blow to it. The State Department delayed answering, but by late December the continued silence was beginning to arouse suspicion in the War Crimes Commission that the United States and United Kingdom were not interested in the problems at all, and the British were talking about presenting their views independently. 35
In the first week of January a break appeared when the President, on the 3d, asked the Secretary of State for a report on the status of proceedings in the War Crimes Commission, particularly concerning the approach the US representative was taking, and indicated he believed a conspiracy indictment and an indictment for waging aggressive warfare ought to be included.36 During the next three weeks, in meetings with Judge Rosenman and justice Department representatives Stimson
and McCloy, with the State Department agreeing, succeeded in getting the War Department thinking on war crime trials written into a memorandum for the President. Two days before the last draft-the twelfth written since November 1944-was completed, Stimson repeated his views to the President but was not "sure whether it registered." 37
The memorandum went to the White House on 22 January. In it the concept of criminality was broadened, particularly vis-à-vis Stimson's original thinking, to include "pre-war atrocities and those committed against their own nationals, neutrals, and stateless persons, as well as the waging of an illegal war of aggression with ruthless disregard for international law and the rules of war." Such crimes as those committed inside Germany before or during the war which could not be classified as offenses against international law or existing German law would, nevertheless, be tried and punished because to do so was declared United Nations policy and because postwar security, the rehabilitation of the German people, and the demands of justice required such action. The trials would be carried out in two stages. To conduct the first stage of trials, an international court would be created by executive agreement, thus avoiding the cumbersome process of establishing a treaty court. The highest ranking German leaders would be brought before the tribunal both as individual defendants and as representatives of Nazi groups and organizations. They would be charged with specific crimes and with "joint participation in a broad criminal enterprise which included and intended these crimes, or was reasonably calculated to bring them about." The tribunal would adjudicate not only the guilt of the persons brought before it but also the complicity of the organizations included in the charges. In the second stage, other courts would try the rank and file members of organizations that the international tribunal had found to be criminal. Where specific acts or atrocities could not be proved, membership in the proscribed organization would be considered ample evidence to sustain a conviction, and the nature and extent of the individual's participation would determine the severity of the sentence." 38
The memorandum included a draft executive agreement for an international tribunal. Stettinius carried a copy with him to Yalta, but, contrary to State and War Department expectations, war crimes were barely mentioned at Yalta aside from the customary press releases promising swift punishment and a statement in the protocol submitting the question to the foreign secretaries for a report in due course.39 The President had not acknowledged receiving the memorandum before he left for the conference, and after he returned, gave no sign that he approved it or, indeed, that he had read it. Mounting speculation in the newspapers on the war crimes question, talk in Congress about its taking the lead, and soundings in the White House by the War and State Departments concerning the memorandum all failed to bring a response.40
The silence had not been broken on 6 March when the British Ambassador, Viscount Halifax, reminded Acting Secretary of State Grew that the aide memoire of
30 October 1944 had not yet been answered. The British government, he added, believed a discussion of war crimes and war criminals would be mutually advantageous and, therefore, invited Brig. Gen. John Weir, director of the War Department (National) War Crimes Office, and Green H. Hackworth, Legal Advisor to the State Department, and any other officials the State or War Departments wanted to send, to a meeting in London at the middle of the month. The invitation was at once an opportunity and a potential pitfall : an opportunity to solicit a presidential opinion on the memorandum ; a pitfall in that if the attempt failed, the Americans would have a hard time persuading the British to accept an approach that was not even adopted in Washington. Presumably, the British would not have issued the invitation without knowing what they wanted to do. The assumption could also be made that what the British wanted would differ considerably from what the Americans intended to propose. At Yalta, Prime Minister Churchill had said-as he apparently also had at Quebec four and a half months before-that he preferred to have the major criminals shot without trial. 41 That President Roosevelt did not lean more toward Churchill's thinking than toward Stimson's and the War Department's was by no means certain.
All in all, the outlook for a satisfactory meeting in London was not bright, and ten days had elapsed before the State Department informed Mr. Roosevelt of the British invitation, asking him to authorize Judge Rosenman to head the US delegation and hinting that a decision on the January memorandum would help get the war crimes program moving. The copy returned from the White House carried an okay, but whether it could be construed as applying to the brief resume of the January memorandum included in the message was doubtful. The State Department waited until late in the month to tell Lord Halifax that Judge Rosenman, already in Europe on other business, would conduct the discussions in London together with General Weir and Col. R. Ammi Cutter, whom the War Department was sending.42 The War Department representatives, wary of going unprepared into talks with the British, had used the interval to work up a detailed agenda and a summary of the US point of view.43
After two meetings, on 4 and 5 April, the negotiations in London were deadlocked. The British insisted on having the worst half-dozen or so offenders, including Hitler and Mussolini, sentenced by "political" means. The farthest they would go, even tentatively, was to permit an arraignment stating the offenses to be drawn up and presented to an inter-Allied tribunal. The tribunal would pass on the truth of the arraignment without considering whether what was charged was "a crime by any law," and the Allied governments would determine the sentences.44 For the next week, while the British negotiators awaited new instructions from the War Cabinet, the Americans consulted with Washington by cable. Stimson's first reaction was that the British proposal deprived the trial of the judicial character he considered essential. Judge Rosenman inclined toward accepting the British approach pro-
vided the tribunal was military rather than civilian, the sentencing was done by the court, and the arraignment was fully documented (the British wanted it "in somewhat general terms"). Stimson believed Judge Rosenman's conditions were essential, as was also an inclusion of the conspiracy charge in the arraignment; but he remained fearful that the British procedure would diminish the effect on world opinion. The talks broke off on 12 April when President Roosevelt's death forced Judge Rosenman to return home. They probably would not have gone on in any case, since the War Cabinet on the same day decided unanimously against court trial in any form.45 McCloy, who had been in France and arrived in London on the 15th, saw no way of reopening the discussion at this stage even though he brought with him General de Gaulle's agreement to the American position.
In Washington, the uncertainty over the war crimes question was greater than ever-but only for the moment. On the 17th, Judge Rosenman gave President Truman a report on the talks in London. The President at once said he did not believe in a political disposition of the chief criminals and approved the stand the US negotiators had taken, asking Rosenman to carry the matter forward at the forthcoming meeting in San Francisco to draft the United Nations Charter, which the Allied foreign ministers would attend.46 With the White House backing, the War, State, and Justice Departments decided on the 20th to stand firm on the January memorandum at San Francisco and, if the British balked, to approach the Russians separately. They decided also to underscore their stand by beginning to set up the US element of the court. McCloy suggested several candidates to head the prosecution for the United States, among them Supreme Court Associate Justice Robert H. Jackson. On 2 May, Mr. Truman made public Justice Jackson's appointment as Representative of the United States and Chief Counsel for the Prosecution of War Crimes. The trial procedure, the President added, "Will be expeditious . . . but one which is in keeping with our tradition of fairness towards those accused of crime." 47 In San Francisco the next day, Judge Rosenman explained the American proposal to the British and Soviet delegations. To the surprise of McCloy and Colonel Cutter, who were also present, and of Judge Rosenman himself, Foreign Secretary Anthony Eden said the British position had recently changed. The War Cabinet, Eden added, still saw objections to a formal trial for the most notorious Nazis, but if the United States and the Soviet Union wanted such a trial it was willing to bow to them in the matter.48
After Justice Jackson's appointment, War Department concern with the major war criminals rapidly became peripheral. Justice Jackson, as the President's personal representative, carried out the lengthy negotiations after San Francisco. On Secretary Stimson's orders, McCloy set up in his own office, separate from the Army Staff, the Office of the Chief Counsel. Its main functions were to give Jackson administrative assistance and help him assemble a staff. McCloy kept in touch with the negotiations through the summer, but by then he had less to do with influencing the Allies
than with smoothing the way for Justice Jackson with the US occupation authorities in Germany, who were not inclined to welcome independent agencies into their bailiwick.49
While the trial of the major criminals was no longer a direct Army concern, the apprehension and eventual trial of offenders against specific laws and usages of war still were Army responsibilities, as would be the members of organizations found guilty under the conspiracy charges. The number of cases in these categories was bound to be vastly larger than at the top; yet, in early 1945, almost no machinery existed for dealing with them. SHAEF and the army groups were engrossed in the final drive against Germany, and it was the last week of February before Headquarters, ETOUSA, set up under the theater judge advocate a war crimes branch, the War Crimes Group, in accordance with the December 1944 instructions from Washington.
The ETOUSA letter of 24 February announcing the War Crimes Group did, at least, envision more than just another ineffectual staff agency. The War Crimes Group was to work through the army groups and armies to collect evidence and to "arrange for apprehension and prompt trial of persons against whom a prima facie case is made and for execution of sentences which may be passed." 50 Plans called for nineteen war crimes investigating teams, each consisting of four or five officers, including a legal examiner, and five enlisted men, a court reporter, a photographer, and interpreters. Their mission would be to follow up reported crimes and prepare cases, without as yet proceeding to the trial stage.51
The beginning had been made, but it was only that. The war was moving at full speed, and the expert personnel that the War Crimes Group needed was next to impossible to find. The number of courts-martial was at its wartime high, and men with legal training, particularly court reporters, were in short supply; and a check turned up only five pathologists in the entire European theater.52 Consequently, the investigating teams materialized slowly. Only seven were organized before the war ended. The intelligence agencies, charged with locating and detaining suspects, were engaged in innumerable higher priority enterprises. Commands changed; units moved ; and in the shuffle even suspects in custody were lost or forgotten. To become lost among the faceless thousands in the prisoner of war and detention camps was not difficult. The turmoil and confusion at the end of a war was just not conducive to orderly legal processes. In the second week of March, SHAEF added to the confusion and to the potential work load of the War Crimes Group by ordering the automatic arrest of entire categories of Germans : the Gestapo, the Sicherheitsdienst (SS intelligence) , SS officers and senior noncommissioned officers, all members of the SS Totenkopfverbaende (concentration camp guards) , Nazi party officials down to Ortsgruppenleiter (Local Group Leader) , Hitler youth officials, and sundry others including all female members of the
SS. 53 The individual offender became almost too rare to waste time on.
In large part, as late as the end of February 1945, the extent of the war crimes problem was still unappreciated. At first the War Crimes Group was thought of as being directly concerned only with acts against US troops and US nationals. The great majority of the crimes, presumably, were those the Germans had committed on occupied territory, and they would eventually be the concerns of the restored governments. What had been and would be going on in Germany was not yet actually seen, and the overdone World War I atrocity propaganda had left an enduring legacy of skepticism on the subject.
Consequently, the true criminality of the Nazi regime, for all that had been said about it, was an enormous shock and surprise when it was uncovered in the last two months of the war and the doubts evaporated. Combat Photographers recorded countless atrocity scenes in still and motion pictures, but no war crimes personnel were there to document the crimes. Unfortunately, having evidence of the crimes on film was a far cry from being able to identify and convict the criminals.
In magnitude the German crimes vastly overshadowed crimes committed in Germany by US troops, but they did not completely obscure them. Looting was so widespread as to be regarded as a soldierly sport. The USFET General Board cautioned that its study of war crimes issued in the spring of 1946 should not be construed to imply "that conduct among American troops was always beyond reproach." Aside from looting, the board was aware of "substantial charges" of mistreatment of prisoners of war, including one general court-martial proceeding against Americans accused of murdering prisoners of war. In the latter instance, the evidence had been held insufficient to sustain a conviction without, in the board's opinion, leaving any assurance that the accused were innocent.54 Of the crimes committed by US troops, the best-though by no means most accurately-documented was rape, and it showed a "spiral increase" in the closing months of the war. Between July 1942 and October 1945, 904 rape cases were charged in the European theater, 552 of them in Germany. All told, 487 soldiers were tried for rapes allegedly committed in the months of March and April 1945. By no means all the incidents were reported or, of those reported, brought to trial, and the conviction rate was relatively low. The Judge Advocate, Seventh Army, referred 84 cases to trial in April and May 1945. More than half, 47, were tried, resulting in 24 acquittals and 23 convictions. Tolerance on the part of the courts was probably less a factor than the weight of the penalties and the difficulties of proof. The convictions in Seventh Army resulted in eleven death sentences, seven life sentences, and several for twenty and fifteen years. The legal requirement, a manifest lack of consent by the victim, was missing in so many cases that at last some courts began to hold that "a man who enters a strange house, carrying a rifle in one hand, is not justified in believing he has accomplished a seduction." 55 If not all the crimes or even a large percentage were
punished, some were, and these severely. Moreover, as the General Board later pointed out, there was a difference between the individual offenses of the US troops and the systematic, officially sponsored Nazi criminality.56
In the last weeks of the war, influenced by what was being seen in Germany, the war crimes program gathered momentum. In April, the armies began setting up war crimes branches and sending out field investigating officers with clerks and interpreters to gather evidence at the scenes of crimes as they were uncovered. Suspects could not yet be segregated, but three prisoner of war enclosures in the Normandy Base Section, Communications Zone, were set apart where they and unfriendly witnesses could be congregated.57 At Spa, Belgium, SHAEF opened ASHCAN, a holding and interrogation center for top Nazis and military officers.58 At its rear headquarters in Versailles, SHAEF set up the Central Registry of War Criminals and Security Suspects (CROWCASS). CROWCASS was to maintain wanted lists, particularly of persons who might be turned up in prisoner of war camps. In three weeks the registry accumulated 70,000 names.59
A Mission for the US Group Control Council
The EAC agreements on zones and control machinery made one radical change in the planning concept for the administration of occupied Germany : they added in effect a fourth phase to the three phases SHAEF had used as a planning basis since Slash 100. According to Slash 100, military, that is, SHAEF, control would end in the second phase and the permanent occupation take over in the third. The EAC agreements added a third temporary and still military period, that of the Control Council. Upon the inception of the Control Council, SHAEF would be disbanded, but Eisenhower would remain as military governor in the zone, commander of the US occupation forces, and a member of the Control Council. Replacing his two staffs, SHAEF and ETOUSA, he would have one, the Headquarters, US Forces in the European Theater (USFET), which would absorb ETOUSA and the US side of SHAEF.
During the Control Council period, then, SHAEF would no longer exist, but USFET would continue and inherit the US side of SHAEF G-5 and the question of its relationship to the US Group Control Council. The answer to this question was bound to hinge on two considerations one, the built-in reluctance of a bureaucratic organization to contemplate its own demise; the other, the War Department view of the Control Council's role in the occupation. With regard to the first, in the fall of 1944, the US element of SHAEF G-5 was powerfully situated to protect its future in USFET. It was a full-fledged, functioning, and-most important-decision-making organization. The US Group Control Council was not. As far as the second consideration was concerned, War Department CAD opinion at least could hardly have been more favorable toward the projected G-5, USFET. Hilldring, writing to Smith on 2 November 1944, took for granted that the theater G-5 would be the operating military govern-
ment agency in the US zone.60 Thus encouraged, Smith accepted a staff study two weeks later in which Eisenhower's two military government staffs were assigned separate roles: the US Group Control Council, policy-making in Berlin; and the G-5, USFET (see above, p. 166) , implementation in the zone.61
At the same time, the talk about appointing a civilian high commissioner for Germany that accompanied the advent of the Morgenthau Plan and the seeming imminence of the end of the war brought up the question of the appointment of the deputy military governor, who would head the US Group Control Council. McCloy proposed that the deputy ought to be a regular officer of standing. The War Department particularly did not want, at least for the initial period, a high powered civilian commissioner working outside the military chain of command. Eisenhower agreed but was willing to accept a civilian as his deputy, especially if the civilian were McCloy or Assistant Secretary of War Patterson, whose name had been mentioned as a candidate. Eisenhower agreed, too, that the deputy probably ought to begin working himself into the job soon but added that Wickersham was doing an "extremely good job" and could carry the planning through to the end. Apparently, if he could not get McCloy, for whom he had already asked early in the year, Eisenhower would rather have waited until he could spare a senior general from SHAEF.62
When Wickersham returned from Washington in November, he brought back, for Eisenhower's and Smith's information only, the name of Maj. Gen. Lucius D. Clay as the War Department's choice for the deputyship, Clay, who as Director of Materiel, Army Service Forces, supervised the military production program, had recently commanded for a time the Normandy Base Section, at Eisenhower's request, to speed the flow of supplies through Cherbourg. After only a three weeks' stay in France, he had returned to Washington to report for Eisenhower on a threatening heavy-ammunition shortage.63 Eisenhower had wanted to retain him in the theater and was willing to have him as the deputy for military government. Stimson, however, decided that as long as German resistance continued, the ammunition problem was more important and therefore assigned Clay for at least sixty days to the Office of War Mobilization and Reconversion. When Hilldring proposed appointing an interim deputy and alluded to "disquieting reports" that the US Group Control Council's work was "more or less aimless and ineffective," Smith assured him that Eisenhower would be willing to wait sixty days, that no change in the US Group Control Council was necessary, and that he did not agree with Hilldring's views on the "ineffectiveness of our staff work." 64
During the winter, the US Group Control Council worked on its Basic Preliminary Plan which, together with its elaborations and supplements, eventually made up a file that General Clay later described as being "beyond the ability of one man to comprehend." 65 SHAEF, in the meantime, completed one "final" G-5 reorganization for Germany at the end of February and another in late April. Together, they did finally end the separation of policy and operations within G-5 and abolished the remnants of the special staff. Henceforth the G-5 functional branches were responsible for policy, planning, and operations.66 On the other hand, the US side of SHAEF G-5, at least, was now intent on applying the distinction between policy and operations to the US Group Control Council and the future theater G-5.
In March, the US Group Control Council moved to Versailles, leaving a rear echelon in London to maintain contact with the EAC and the British Control Council element. The move brought the American Control Council personnel in contact with events on the Continent-and under closer G-5 scrutiny. One particular weakness G-5 had found in the Basic Preliminary Plan was "some tendency to assume [on the part of the Control Council) power to give orders to the US zonal staff and subordinate echelons." 67 This tendency was corrected in two directives-one issued on 31 March, the other on 29 April. The first directive limited the US Group Control Council to negotiating in the Control Council and developing policies "consistent with approved US views in conjunction with the joint theater staff." 68 Wickersham managed later, with some effort, to get the words "in conjunction with" changed to "in consultation with." 69 The second directive defined the two staffs' functions as follows:
1. The US Group Control Council will be the US element of the Control Authority.
2. The theater staff will be specifically charged with execution, implementation, and supervision within the zone of approved US and Control Council policies.70
In Washington, however, the War Department had, in the President's 23 March directive and the revised JCS 1067, accepted the Control Council's authority as paramount; and Hilldring thereafter concluded that in the long run Eisenhower would clearly have only one staff for military government in Germany, the US Group Control Council.71
While the staffs were jockeying for position, one genuinely crucial step toward deciding the future of the occupation was
taken-the appointment of the Deputy Military Governor. After December 1944, the discussion of the appointment, never very enthusiastic on the European side anyway, had faded. Writing to Hilldring in early March, Smith mentioned the need for a deputy but said Wickersham could carry on until one was appointed. He was more concerned at the time with finding a chief for the theater G-5, whose job he described as being "as important or more important" than that of the deputy; he suggested Clay. 72 Hilldring had told Smith a week earlier that the War Department was actively engaged in selecting a deputy but promised only "some official word . . . before long" and did not mention Clay or any other candidates.73 Consequently, Clay's appointment as Deputy Military Governor at the end of March, which was a surprise to Clay, equally surprised Eisenhower and Smith when he appeared at SHAEF headquarters on 7 April.74
Upon his arrival at SHAEF Forward in Reims, Clay, as he relates in his memoirs, had a title without a job.75 Military government was all in the hands of G-5, SHAEF, and the welcome Smith gave him was less than warm. But he had ironclad credentials : a presidential send-off arranged by his former chief in the Office of War Mobilization and Reconversion, Justice James F. Byrnes; a commitment from the War Department that he would be Eisenhower's deputy in fact and not be buried somewhere in the general staff ; and a promotion to lieutenant general in the offing. On 18 April ETOUSA created the post of Deputy Military Governor and announced Clay's assignment to it. A week later he took command of the US Group Control Council.76 The 29 April directive on the relationship between the US Group Control Council and the theater G-5 appeared still to leave some ambiguity in Clay's position as Deputy Military Governor : he was to lie in direct charge of the US Group Control Council; he would represent the Commanding General, USFET, on the co-ordinating committee of the Control Council when it was established; and he would lie "adviser" to the Chief of Staff and the Commanding General USFET, for military government within the US zone in Germany. In this last capacity he would "secure coordination directly through" the theater G-5.77 But the 29 April directive was less authoritative than Clay's own definition written on 11 April. In it he proposed to "work directly through the G-5 Divisions with the several command echelons" and as he later told Hilldring claimed as Deputy Military Governor "full charge for the commander in Berlin and in addition . . . staff supervision over G-5 activities within the US zone." 78
Not everyone knew yet but the struggle for power was over and General Clay had won.
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