Reckonings With the Past
"The question who is a Nazi is often a dark riddle," Third Army G-5 reported more than a month after V-E Day, adding, "The question what is a Nazi is also not easy to answer." 1 In official terms, however, the questions were not difficult to answer at all. SHAEF had long ago worked out automatic arrest categories ranging from the top Nazi leadership to the local Ortsgruppenleiter, from the top Gestapo agents to leaders of the Hitler Youth, the Peasants' League, and the Labor Front. Furthermore, thousands of suspects were being arrested: 700 a day in May and June, and a total of over 18,000 in August. In September, 82,000 suspects were being held in internment camps, away from the political scene and available for possible trial and sentencing as members of criminal organizations.2 They were all presumed to be confirmed Nazis and, with some allowance for excessive zeal on the part of the Counterintelligence Corps (CIC), the vast majority doubtless were. Usually, of course, they did what they could to conceal their identities and their pasts. Some succeeded no doubt, but most were not hard to find. Capt. Arthur T. Neumann, whose detachment's out-of-the-way Landkreis, Alzenau in northwestern Bavaria, was a favorite refuge for those fleeing automatic arrest, reported that nearly all suspects, once they were identified, could be brought in by postcards telling them to report to the detachment office at a specified time.3 Finding out who had been party members, whether important enough to merit arrest or merely rank and file, was also not difficult. The party had kept excellent records, which often passed into military government's hands intact. The detachment at Wasserburg am Inn, for example, had twenty-eight lists and rosters covering everything from party and Hitler Youth membership to deliveries of boots and uniforms.4 The best evidence, the party's entire central registry of 12 million cards with photographs, turned up in Munich in a pile of wastepaper waiting to be pulped.5
It was on the gray fringes of denazification that the question of who and what were Nazis vexed military government, as much after V--E Day as when the first municipal appointments were made around Aachen nine months before. The cases of Reuters and Jansen at Wuerselen and Ragh and Deutzmann at Stolberg were being repeated all over the U.S. zone. Having been a party member did not prevent
a man from being better at his job and having a more agreeable personality than someone who was not. Too often, in fact, the opposite seemed to be true. Frequently the Nazis had training, experience, energy, affability, and not a bad political record. 'The Americans respected efficiency and trusted the men who seemed to be friendly. In the words of one detachment commander, if "all the Nazis had been exceedingly unpleasant and rude, denazification would have been easy." 6 Moreover, the man who was individualistic enough to have stood out against the Nazis was probably not going to fit in easily with the Americans either. As the Aachen experience had shown, non-Nazi and anti-Nazi were not necessarily believers in democracy or even, to the American mind, very different from the Nazis in their thinking. A recurring suspicion among military government officers-acquired probably from the Germans they had talked to-was that many so-called non-Nazis were people who had wanted to join the party and been rejected, which made them worse in a sense than those who had joined out of expediency or under compulsion. The Fragebogen, the Bremen detachment pointed out, required disclosure of membership in the party and auxiliary groups but not of applications for membership or rejections.7
Whether they advocated passing a hard or a soft judgment on Nazis -a few argued for the latter- military government officers generally agreed that if they made a completely clean sweep of the party members, they were going to have to run the country with old men until the next generation grew up. The number of political acceptables between the ages of twenty and fifty who were also trained and competent was exceedingly small. In Landkreis Eichstaett, Bavaria, for instance, which was by no means an exception, when the 64-year-old Landrat had a stroke he could be replaced only by his deputy who was seventy.8
What most troubled military government officers in the field, however, was the absence of objective standards. They were blamed if they failed to find men to fill the jobs and, if they filled the jobs, for compromises they made while doing so. The policy-makers were in a different, but not better, situation. They had to contend with the field officers' desire to conduct efficient government as well as with the unanimous opinion of the public (German as well as American) press, and US government that denazification was what the war had been about, and insistent on a ruthless and thorough clean up and half expecting to be duped and cheated. Consequently, policy wavered. In March 1945, SHAEF G-5 had informally established 1933 as a cut-off date for mandatory removal. Those who had joined the party after the Nazi takeover in January 1933 would not be dismissed or denied employment outright if they could show that they had not been active members and had joined solely to save their jobs.9 By the end of the month, however, the press and public reaction to the Aachen affair had brought about a blanket prohibition on everyone who was or had been a party member at any time or who had been appointed "to an office
of political importance" since January 1933." 10 After numerous detachments protested that under these rules they could not find enough people to begin reorganizing the German administration, SHAEF, on 11 June, ordered them to study the policy carefully and execute it "in accordance with its intent in such a manner as not to make impossible the establishment of administrative machinery." 11 Nobody knew what this order meant, but the army groups rescinded the directives they had based on the more stringent earlier policy, and Munich radio announced that post-1933 Nazis would again be acceptable.12
Recognizing the need for a clearer statement and taking its text from JCS 1967 which read, "All members of the Nazi Party who have been more than nominal participants, all active supporters of Nazism or militarism and all other persons hostile to Allied purposes will be removed and excluded from public office and from positions of importance in quasi-public and private enterprises " -- ETOUSA, on 29 June, redefined denazification policy for the time when the Americans would be responsible only for their own zone. Public office was interpreted as extending down to Buergermeisters, police chiefs, and "legal personnel"; and all persons appointed to these or higher offices after 30 January 1933 would be unemployable. The term "persons of importance in quasi-public and private enterprises" was taken to cover executives in civil, economic, and labor organizations, in corporations, in industrial, agricultural, and financial institutions, in the press, and in education (including teachers). Nazis subject to mandatory removal were all persons who had held office in the party, had joined before 1 May 1937, or had joined later and were more than nominal members.13
The cutoff date of 193 7, of course, immediately sparked a fresh debate. It had been chosen because after 1 May 1937 public employees had been required to join the party or lose their jobs. Those who joined earlier, even if not confirmed Nazis, were considered at least to have been opportunists, since they did not join under compulsion. The counterargument was that some, perhaps many, who had joined before 1937 or even before 1933 could have done so without realizing what nazism was; the same could not be said for anyone who joined after 1937.
Nevertheless, military government in the field was satisfied on the whole to have a specific, if stringent, denazification directive. The 193 7 cutoff date at least did not force the firing of every person who had held a government job during the Nazi period, which would virtually have been the case under the March policy; but it did disqualify many who had been retained in the expectation that the earlier policy would collapse -as it did after 11 June- because of its sheer unworkability. Third Army G-5, whose detachments had' reported 90-percent denazification at the end of June, dropped its estimate to 60 percent.14 In July Seventh Army launched Operation LIFEBOUY (named for a brand of soap that claimed to be particularly effec-
tive at combating body odor). Under LIFEBOUY, Seventh Army CIC teams rechecked the entire Western Military District, Kreis by Kreis, in the light of the 29 June standards.15 Three months later, USFET reported 100,000 persons dismissed from public employment in the US zone-30,000 of them in July and August-and 20,000 removed from private enterprise.16
To decide administratively who-and, by implication, what-Nazis were, USFET discovered, was not going to be enough however. The emotional issues of denazification were not going to be settled that easily. They would have to be met under the bright light of public opinion that Hilldring had mentioned.
On 18 June in New York, the weekly news magazine New Republic ran an article under the headline "Bavarian Scandal," in which the author, Philipp Loewenfeld stated, "Democracy in Germany experienced its first setback with the appointment of one Friedrich [sic] Schaeffer as Minister President of Bavaria . . . ." Schaeffer's appointment was at the time just a day less than three weeks old. Loewenfeld accused Schaeffer and the Bavarian People's party (in which he had been a leading member) of supporting the Nazis in the 1920s and described Schaeffer as "one of the Weimar Republic's most diligent grave diggers." The article suggested that Colonel Keegan, who as commanding officer of Detachment E1F3 had selected Schaeffer and who was in civilian life a New York City councilman, could have been acting under Vatican influence exercised through Democratic boss Ed Flynn of the Bronx.17 After other US papers picked up the story, Clay appointed a special board to investigate. The board found that all political outlooks were not equitably represented in the Bavarian government, particularly the liberals, but concluded that Keegan's selections had been made on the basis of professional qualifications and anti-Nazi convictions and had not keen influenced by "any particular religious, political or social group." Clay at this stage apparently saw the affair as a public relations accident, to be best avoided, as he suggested to McCloy, by giving the Germans a voice in politics.18
On the whole, in July and August, denazification of public offices seemed to be going remarkably well. Mounting figures on dismissals brought approval even from the Germans, although some Americans suspected less for the policy than in the hope that an end would soon be reached. However, the denazification of private enterprises raised questions: what, for instance, were important positions in trade and industry? USFET, in the 29 June directive, used the size of the enterprise -capital over a. million marks or more than 250 employees- but, the Germans themselves asked, what about the two-hundred percent Nazis who were lucky enough not to be in the automatic arrest categories, in public employment, or in the specified range of private enterprise, who might not lie employed at all but, nevertheless, had been vicious, petty tyrants and had profited mightily from the Nazi regime? 19 On 15
August, USFET broadened its definition to include people in business and professions, regardless of size, "whose standing in the community is one of prominence or influence." 20 If proven to be more than nominal Nazis, they were to be removed from their businesses, which, if they had been the owners, were to be taken under military government property control.
Four weeks later, the denazification of private enterprise broke into the news. Raymond Daniell reported in the New York Times, "Nazis still hold some of the best jobs in commerce and industry." Military government, he concluded, was concerned too much with preserving German industrial efficiency and too little with achieving the objectives for which the war had been fought. The article also brought an important figure into the controversy, General Patton, Commanding General, Third Army, and Military Governor of Bavaria. Patton, Daniell wrote, had asked a military government fiscal officer who was investigating Nazi bankers "if he did not think it silly to try to get rid of the most intelligent people in Germany." 21
In the upper reaches of the US command, Patton's views on denazification were already uncomfortably familiar. In a letter written on 11 August, he had suggested that Eisenhower pass "a word to the people responsible for civil government" to go more slowly on denazification because too many trained people were being removed and too many inexperienced or inefficient ones brought in. As far as nazism was concerned, he said, "It is no more possible for a man to be a civil servant in Germany and not have paid lip service to nazism than it is for a man to be a postmaster in America and not have paid lip service to the Democratic Party or Republican Party when it is in power." 22 Later in the month, in a meeting with Clay, he also proposed releasing the interned Nazis, many of whom, he said, "were either aged or pregnant." 23 In reply to the 11 August letter, Eisenhower reminded Patton that obliteration of nazism was a major US war aim, that JCS 1067 specifically prohibited retaining Nazis for administrative necessity, convenience, or expediency, and that denazification was "a most delicate subject both here and at home" which "our governmental representatives as well as newspapers have been quick to seize upon . . . ." 24
Meanwhile, as Clay told McCloy later, "things [were] not entirely smooth in Bavaria." 25 One of Schaeffer's ministers turned out to have been a general staff officer in German-occupied Poland, France, and Italy. Two others were also in mandatory removal categories, and another had falsified his Fragebogen. Forced to dismiss them, Schaeffer on 4 August entered a formal protest against the "hardship and injustice" of denazification.26 Schaeffer insisted that one other official, Dr. Otto Gessler, Minister of War for a time under the republic and a leading figure in the German secret rearmament of the 1920s, was an "unofficial" adviser and refused to let him go, until military government for-
bade Gessler to set foot in the Bavarian government offices. When the Special Branch investigated the departments in August, it found 24 out of 39 Fragebogen missing in the Ministry of Food and Agriculture, 46 out of 51 missing in the Ministry of Interior, and 21 out of 31 missing in the Regional Economic Office; and six officials already ordered to be removed were still at their desks.27
In the first week of September, Col. Roy L. Dalferes, a Regular Army officer,
replaced Colonel Keegan who was redeployed, although officers, particularly
military government officers, were not then eligible. On the 11th, Eisenhower
wrote to Patton:
I know certain field commanders have felt modifications to this policy [denazification] could be made. That question had long since been decided. We will not compromise with Nazism in any way. I wish you would make sure that all your subordinate commanders realize that the discussional stage of this question is long past and any expressed opposition to the faithful execution of the order cannot be regarded leniently by me. I expect just as loyal service in execution of this and other policies applying to the German occupation as I received during the war.28
Schaeffer by this time remained in office primarily because nobody could decide how to get him out. Although military government had the power, he was too prominent a figure to be dismissed arbitrarily. Besides, dismissal appeared to be exactly what he wanted, in order to sustain a future political reputation as a man who had refused to kowtow to the Americans.29 Like Oppenhoff in Aachen, Schaeffer was the kind of German with whom Americans were least prepared to deal. An organizer and good administrator and not a Nazi by any existing definition he was the sort of man they had believed they could use best. Yet the longer they observed him, the less he looked like a proponent of democracy. In the 1920s, he had belonged to the right wing of the already conservative Bavarian Peoples' party and, in at least one speech, had described the Nazis as "saviors of our Fatherland." 30 He had been at odds with the Nazis throughout their years in power and had ended up behind the barbed wire at Dachau, but his political outlook had not changed. Protesting his antinazism, he persisted in surrounding himself with men whose backgrounds were more doubtful than his own. A check in September disclosed sixteen officials still working in the Office of Food and Agriculture whose removal had been ordered the month before. 31 By mid-September the best the Americans could hope for from Schaeffer was that he would resign; and on the 16th, Clay announced without regret that he had, although the announcement turned out to be premature.32
Quite probably, Schaeffer actually would have "resigned" by the end of the month and thereafter the denazification
controversy would have simmered more or less quietly had not USFET at mid-month lifted a wartime censorship prohibition on directly quoting general officers. On 21 September General Adcock, theater G-5, and his chief civilian adviser, Dr. Walter L. Dorn, with an interested following of newspaper reporters, went to Munich to have a personal look at the Bavarian government. On the 22d, talking to the reporters about his views on denazification, General Patton said, "The Nazi thing is just like a Democrat-Republican election fight." 33 The next day his words appeared in newspapers across the United States along with editorial comment questioning both his understanding of what the war had been about and the Army's ability to conduct military government. On the 28th, Schaeffer resigned or was dismissed; no one seemed to know, or want to say, which.34 Dr. Wilhelm Hoegner, one of two Social Democrats in the cabinet, replaced him. In Frankfurt, Eisenhower conferred with Patton for two hours on the 28th, afterward declining to comment to reporters on what they had said.35
Several days later, Lt. Gen. Lucian K. Truscott stopped on the way from Italy to the United States to pay his respects to Eisenhower. At his next stop, Paris, Eisenhower called him back to Frankfurt, and on 5 October, Truscott took command of Third Army and the Eastern Military District. Patton became President of the General Board, USFET. In his first press conference a week later, Truscott told the reporters, "I have left too many white crosses across North Africa, Italy, and France and I have seen too many young men wounded and maimed not to be in complete sympathy with any policy that designs to eradicate, root and branch, the evil force, Nazism, that loosed this holocaust on the world." 36
Though perhaps for reasons more immediate than those Truscott gave, something like a root-and-branch eradication of nazism was in fact beginning in the US zone. In the midst of the Patton and Schaeffer affairs, on 24 September, Clay told the US Group Control Council staff that he was dissatisfied with the progress in denazification and that "A decision has been made that we are going to denazify all phases of German life." 37 Two days later, before any but the regional military government detachments had even gotten the news, the radio and newspapers announced Military Government Law No. 8, which prohibited employment of Nazi party members in business in any capacity other than common labor.38 The law applied not only to executives and managers but also to private owners, including owner-operators such as grocers, barbers, bakers, and butchers.
For the Germans, Law No. 8 was the most ominous development yet. Complaints that denazification was not going far or fast enough suddenly stopped. The Land detachment in Wuerttemberg-Baden said the law "engendered a great fear." USFET used the words "bitterness and despair."
Rumors among the Germans arose that Law No. 8 was just the beginning of a plan to reduce the German economy to chaos; when the party members were removed, the Germans told themselves, next would be former members of the Wehrmacht and so on, until carrying on business of any kind would be a crime for Germans. Everyone feared an economic upheaval that would leave the country worse off than it already was.39 The mood was not lightened when, in the first week of October, the US zone was hit by a tidal wave of denazification, partly as a result of Law No. 8 and partly -as the law itself had been- as a reaction to the Patton and Schaeffer affairs. Within military government from top to bottom, the time for discussion was indeed past, at least temporarily. Some detachments closed down all the businesses in their areas and did not let them reopen until the Nazis were identified and removed. At military government offices everywhere, hundreds of Germans came to assert their nominal party membership or, in fewer but still numerous cases, simply to present the keys to their establishments.40 Simultaneously another surge of denazification hit the public employees. On Sunday, 7 October, Seventh Army sent out special couriers to every detachment in the Western Military District with an order from General Keyes calling for the dismissal of every public employee in the mandatory removal categories by noon on Monday.41 To be on the safe side, military government officers also immediately applied the common labor specification of Law No. 8 to public employment. The detachment in Wasserburg am Inn disqualified 20 medical doctors (very likely almost all there were), 15 dentists, 51 teachers, 10 mail carriers, and 20 rural policemen.42 In Landkreis Alzenau, Detachment A-330 found only 3 out of 17 doctors politically clean.43 The Bremen detachment dismissed a quarter of the 1,600-man police force; and some detachments reportedly got rid of their Putzfrauen (cleaning women) to reduce the chances of being caught with Nazis on the payroll.44
A shock for the Germans, Law No. 8 was almost as much a shock for military government, and Headquarters, USFET, itself was no exception. It had just released the Ortsgruppenleiter, the lowest and one of the most numerous automatic arrest groups, from the internment camps. When the incongruity of these certified active Nazis appearing on the streets at the same time their presumably less implicated comrades were being thrown out of their businesses and jobs became evident, as it soon did, USFET had to stage a special 24-hour sweep, Operation CHESTERFIELD, to get them back behind barbed wire.45
Military government officers everywhere had to deal with denazification in an entirely new context. All directives thus far had used the word "important" or some synonym to define the range of private occupations from which persons would be excluded. In the 29 June directive USFET
had used the size of an enterprise as the criterion; in the 15 August directive it had used prominence in the community. Law No. 8 dropped both these distinctions and established no others above the level of common labor. It affected potentially every person employed in work requiring skill or responsibility who had been a party member, and in effect it confiscated every Nazi-owned business establishment. Military government officers were often not far from agreeing with the Germans that the result would be chaos. Col. William W. Dawson, commanding the Wuerttemberg-Baden Land Detachment, reported: "Never before have Military Government measures been received with such open hostility and their wisdom questioned as today. The belief in the avowed purpose of encouraging the growth of democracy in Germany has been shaken and aspersions are being cast against the personnel of Military Government, the CIC, and other U.S. Army units." 46
Regulation No. 1 of Law No. 8, issued in the first week of October, was as important to the future of denazification in the US zone as the law itself. It laid a part of the responsibility for administering the law directly on the Germans. Each business was required to determine the status of its employees and owners, and none would be allowed to stay open or to reopen with former active Nazis in any capacity above common labor. Where owners were involved, the military government detachments would take the businesses under property control and appoint non-Nazi trustees. Nazi party membership before 1 May 1937 or participation in other party-directed activities would be grounds for immediate removal. If the persons affected wanted to argue their cases, they could do so later before appeals boards of non-Nazi Germans appointed by military government. 47
The effects of Law No. 8 were most evident in the records of military government's property control offices. The detachments in Wuerttemberg-Baden took control of 93 Nazi-owned properties in November, 168 in December, and 919 in the first quarter of 1946. In Bavaria, military government took control of a record 1,912 properties in December; and by December, property control had become the largest single military government activity everywhere in the US zone. As an index of the severity of Law No. 8, however, the fact should be noted that while 1,952 Nazi-owned properties were taken under property control in Wuerttemberg-Baden between November 1945 and May 1946, another 1,777 Nazi-looted, mostly "Aryanized" properties were recovered from Germans who had acquired them before 1945 in forced sales.48
From the beginning, Law No. 8 did not apply to agriculture, and the use of temporary revocable work permits made it virtually inapplicable in public health as well. Doctors and dentists, particularly, who lost their licenses because of party membership went on working with temporary permits, which were never revoked. Railroad employees, among whom were a large number of party members -some in the higher ranks actually in the automatic arrest categories- were already long past due for denazification, under the rules. The USFET
Service Forces, for whom they worked, regarded them as having vital, irreplaceable skills and had argued successfully that they were not public employees in the ordinary sense. At first they were also exempted from Law No. 8, but in early October, Clay extended the law's common labor provision to railroad workers. Two weeks earlier, he had pointed out to Lt. Gen. John C.H. Lee, commanding general of the Theater Service Forces, that "in view of the many attacks to which the entire occupation program has been subjected in the US press," potential trouble lurked in the railroad denazification figures, which showed that fewer than 10,000 of 50,000 known party members had been removed. Nevertheless, the railroad employees came off better than most. Theater Service Forces secured the authority to retain them until their appeals were decided; in the end, less than 20,000 employees were discharged.49
In addition to imposing the burden of property control, the enforcement of Law No. 8 forced military government to play a running game of hide and seek with a sizable part of the German population. Since the law did not require outright removal of the persons affected, businesses tried to meet the law's technical requirements by merely changing job titles, and owners attempted to have relatives or friends appointed trustees or to make deals with those who were appointed. Many no doubt, succeeded, and more would have if they had remembered, as they should have after a dozen years under the Nazis, that the CIC was reading their mail.50 Denunciations brought some to grief, but most employees-wisely on their part as it happened-did not share the Americans' faith in the permanence of denazification. (Where military government took the trouble to assign ousted Nazis to common labor in public works, medical insurance payments for heart ailments rose.) 51
With notable reluctance almost everywhere, the local German appeals boards began to serve in November and December. At first military government officers believed the appeals procedure was unfair because it placed the burden of proof on the appellant. They soon changed their minds, however, when they discovered that the appeals boards, not being required to establish adverse cases, were perfectly content most of the time to hear only the evidence produced by the appellants, usually in the form of affidavits attesting to nominal membership in the party. In Landkreis Eggenfelden, Bavaria, the board classified the appellants in 810 of the 864 cases it heard as nominal Nazis and only 36 as active. In Landkreis Ebermannstadt, Bavaria, the board found 2 active Nazis in the first 80 cases it heard. 52 The detachment in Ingolstadt, Bavaria, dismissed the chairman of its appeals board after it discovered that he had not decided against the appellant in a single case, even though one case concerned a war crimes suspect.53 At Bremen,
CONCENTRATION CAMP PRISONER IDENTIFIES SS GUARD
where the detachment kept a close watch on the boards and exercised its prerogative to review approved cases, the boards rejected 22 percent of the appeals and the detachment another 12 percent. The boards in Bavaria heard 90,000 appeals decided over 65,000 of them in favor of the appellant.54 Those whose appeals were accepted -using the figures for Bavaria and Bremen as a guide, probably two out of three- returned to their jobs and recovered their property. In February 1946 their ranks were increased substantially when businesses employing less than ten persons were exempted from Law No. 8.55
War Crimes Trials
The war crimes trials that were to be conducted under Army auspices in Germany and would last for four years began
in early April 1945 in the small Rhineland city of Duren, twenty miles east of Aachen.56 There, on 7 April, a First Army military commission convicted a German officer, Capt. Curt Bruns, of having caused the murder of two American prisoners of war during the Battle of the Bulge. The Bruns case was entirely within the traditional concept of war crimes as specific acts against the laws and usages of war committed by soldiers during hostilities.
The second case tried under the US occupation brought in another category of defendants. On 15 August 1944, an American pilot had bailed out over the village of Preist in the Rhineland. A rural policeman went to the spot where the airman landed to take him into custody. When the policeman arrived, two German soldiers home on furlough were helping the pilot out of his parachute harness. Before they had finished, Peter Back, a local Nazi Blockleiler, and a crowd of other civilians appeared on the scene. Back was carrying a pistol which he fired at the American, wounding him. The German soldiers protested, but Back ordered them to stand aside and shot the prisoner a second time. Back then called on the crowd to take revenge for a recent air raid on a nearby town, and two persons beat the dying pilot, one with a hammer, the other with a club. The policeman did not attempt to prevent the attacks. Military commissions sitting at Ahrweiler tried the policeman and two civilians on 1 June 1945 and tried Back after he was captured two weeks later. Back and the two civilians received death sentences and the policeman life imprisonment. Similar cases in which downed US airmen were the victims would make up the largest single category of trials involving crimes against Americans. By the end of summer 1945, war crimes investigating teams collected evidence in 800 such cases; the great majority charged to civilians or the police, very few to soldiers.57
The Back case was already extending the scope of war crimes to include nonmilitary acts committed away from the battlefield, when on 2 June Eisenhower asked the Combined Chiefs of Staff ( CCS ) to approve also the prosecution of concentration camp commandants and guards as war criminals. The Moscow Declaration, he pointed out, provided for returning Germans for trial and punishment to the countries in which their "abominable deeds" were done but said nothing about the crimes committed against United Nations citizens inside Germany. Swift punishment of these crimes, he believed, would have "a salutory effect on public opinion both in Germany and in Allied countries." 58 In reply, the CCS lifted all "previous restriction" on war crimes trials, "whether the offenses were committed before or after occupation . . . and regardless of the nationality of the victim." 59
Although CCS lifted the restrictions on trials, many questions concerning the kinds of crimes to be tried remained undecided. The decisions were made before the end of 1945, but all the cases completed or
brought to trial in 1945 or the first months of 1946 fell within three categories: battlefield crimes, offenses against Americans no matter where they were committed, and crimes relating to concentration camps and similar institutions. The concentration camp atrocities were later treated as crimes against humanity, but at this time they were among those not fully defined. Consequently, the early cases were treated as conspiracies to commit offenses against the United Nations troops and citizens, and were hence war crimes.
The authority to try war criminals, however, did not automatically imply the ability to bring them to trial. Evidence had to be collected and suspects and witnesses taken into custody were scattered in camps all over Germany and in the liberated countries. The CROWCASS list of suspects, growing by the hundreds every day, would eventually reach 150,000 and take months just to put into usable form. The War Crimes Group in Paris was virtually out of the picture until July when it moved to Wiesbaden, and the war crimes branches of the armies, like military government locked into the tactical command channels, were out of touch with the war crimes group and with each other. Of the five armies, only two were going to be around long enough to contemplate staging more than a few trials.
After moving into the zone, Third and Seventh Armies began sorting out and segregating the suspects and hostile witnesses. Before they were through, they would have 15,000 altogether, not including the thousands more in internment and prisoner of war camps who might be charged as members of criminal organizations. Third Army lodged its share in the Dachau concentration camp, and Seventh Army put its share into Civilian Internment Enclosure No. 78 near Ludwigsburg.60 Civilian suspects were usually fairly easy to identify by questioning witnesses at the scene, but soldiers, witnesses as well as perpetrators, had to be hunted among the anonymous millions in the prisoner of war cages, where they were likely to be found if they were not dead or prisoners of the Russians. Many, no doubt, were never found. Where names were known, the search was often surprisingly difficult. Where little more than the existence of the crime was known, the difficulties multiplied. One such instance was the Seventh Army's hunt for the SS men who had shot and killed 120 American prisoners of war in a field near Malmedy, Belgium, on 17 December 1944. The first step was to screen all the SS prisoners and identify those who had been members of the several elements of the 1st SS Panzer Division. This job alone would probably have been impossible if the suspects had been in the army rather than in the less numerous SS. Over several months, Seventh Army brought nearly a thousand SS men to Prison No. 1, an annex to Civilian Internment Enclosure No. 78. Among them were 400 men who had belonged to Combat Group Peiper, the unit in whose sector the massacre had occurred. These were kept isolated, totally out of communication with each other; the rest were returned to prisoner of war camps. Then began the long wait for uncertainty and isolation to take effect. Now and then, at intervals of weeks, a man would be convinced that somebody else had talked or would give himself away. Seventh Army had thought the case would be closed before the end of 1945. In March 1946, when
Headquarters, Seventh Army, left the theater, the search was still on and the suspects were transferred to Dachau, where the trial was not finished until October 1947.61
The Hadamar Hospital case in which German medical personnel were charged with having killed 45 Poles and Russians by injections, began on 8 October at the War Crimes Group headquarters in Wiesbaden, thus beginning the cases involving concentration camp and other mass atrocities. During the next month, Seventh Army began its trials at Ludwigsburg, and Third Army courts at Dachau began what was going to be a three-year session during which they would hear 489 cases against 1,672 accused and pass 297 death sentences.62 The Hadamar case was tried under a military commission. All the subsequent cases were tried by special military government courts that had nothing to do with current offenses against the occupation, dealt exclusively with war crimes, and were more like military commissions than like regular military government courts. Procedurally, however, the distinction was significant. Military commissions operated under the elaborate regulations for courts martial. The regulations for military government courts, on the other hand, specified
. . . rules may be modified to the extent that certain steps in the trial may be omitted or abbreviated so long as no rights granted to the accused are disregarded. Opening statements in particular may frequently be omitted. No greater formality than is consistent with a complete and fair hearing is desirable and the introduction of procedural formalities from the Manual of Courts Martial or from trial guides based thereon is discouraged except where specifically required by these rules.
The military government courts, moreover, were held to have extensive powers where war crimes were concerned, "because a state adhering to the law of war as a part of international law is interested in the preservation and envorcement of it irrespective of when or where the crime was committed, the belligerency or non-belligerency status of the punishing power, or the nationality of the victims." 63 With such streamlined procedures and extensive powers and the principle of common design, the Dachau concentration camp case, involving forty persons implicated in thousands of murders, was begun on 16 November 1945 and completed in four weeks.
While the early cases were being prepared and brought to trial, the categories of criminality were also being vastly expanded. In the London Agreement of 8 August 1945 (the charter for the International Military Tribunal), Justice Jackson and his British, French, and Soviet colleagues recognized four categories of crimes: war crimes, crimes against peace, crimes against humanity, and membership in groups which the International Military Tribunal might find to be criminal. Taken together, these categories made punishable the conduct of the war itself, all Nazi atrocities committed anywhere at any time, and mere membership in certain Nazi organizations such as the SS and the Gestapo.
The International Military Tribunal opened its trials of twenty-two major criminals and seven Nazi organizations on 20 November. After reconnaissance of Mu-
nich, Heidelberg, and Nuremberg, SHAEF had selected Nuremberg several months earlier as the "best choice from the historical and accommodations points of view." 64 Third Army provided the Headquarters Command, International Military Tribunal, which took charge of the prisoners, supplied guards for the court, and furnished billeting, messing, and transportation for court personnel and correspondents. USFET supplied press, radio, and motion picture facilities and communications to meet justice Jackson's requirement for "getting speedily and clearly to the world the record of evidence developed there." 65
Before the international trials began, JCS 1023/10, dated 8 July 1945 but apparently not issued until September, assigned to USFET, the responsibility for trying lesser offenders (all those not tried at Nuremburg) in all four categories of the London Agreement for crimes, committed since 30 January 1933, including racial and religious persecution.66 In December, Control Council Law No. 10 made the London Agreement's provisions the uniform legal basis for prosecution of war criminals and similar offenders in the four zones and authorized the zone authorities also to try any major criminals not brought before the bar at Nuremberg. 67
JCS 1023/10, in particular, and Control Council Law No. 10 laid a potentially mountainous new case load on the War Crimes Group. To investigate atrocities and crimes against humanity back to 30 January 1933 alone would probably have required a new organizational effort as least as extensive as that applied to war crimes since 1944; and trying the members of criminal organizations evoked a statistical nightmare. The Theater Judge Advocate, using 100,000 as the approximate number of persons in internment camps and assuming a three judge panel would take only one hour to try each person, figured that trying all the cases would take 375 judges four months. The OMGUS Denazification Policy Board, taking into account the SS, most of whom were held as prisoners of war, and the SA, the party storm troopers of whom only the leadership had so far been arrested, pointed out that the number to be tried might well be 500,000 rather than 100,000.68
After two months of often agonizing study in all offices concerned, talks in early December between USFET representatives and the Office, Chief of Counsel for the
Prosecution of Axis Criminality (Justice Jackson's office), resulted in one conclusion, namely, "that literal compliance with JCS 1023/10 is in practice out of the question." They therefore produced a plan for compliance as far as it was feasible. The USFET War Crimes Group would retain responsibility for the kinds of trials it was conducting, that is, war crimes and concentration camps. The other atrocities since 30 January 1933 would be turned over to German courts as a "test of German regeneration." Jackson's office would prepare and, after the international trials, conduct the cases against the major offenders whom the International Military Tribunal did not try and against the members of criminal organizations.69 Although the division of responsibility reduced the Army's direct share to a fraction of what it might have been under JCS 1023/10, it was still large and would in the end constitute the majority of the cases actually tried. As of January 1946, the War Crimes Group had referred 81 cases to trial and had 2,438 war crimes and 131 mass atrocity (concentration camp) cases on the docket. 70
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