Donovan's Devils

by Albert Lulushi

  With that, the prosecution rested.

  * * *

  Wolfe chose not to make an opening statement for the defense. He called back von Zangen as his first witness to testify about Dostler as an officer. Von Zangen described him as “very exact” and “very reliable in the execution of his duties,” adding that Dostler “was a general who, as opposed to his outer appearance, was absolutely a soldier with a heart.”

  General von Senger, the second defense witness, also testified to Dostler’s very good reputation as an officer during peacetimes. Wolfe used von Senger’s testimony to establish the fact that all German soldiers and officers were bound by the oath given to Hitler when he rose to power, which, in von Senger’s words, was “very short and it contained practically only the expression of loyalty and strict obedience to the Führer, Adolf Hitler himself.” There was no question of disobeying orders issued by Hitler or under his authority, von Senger said. Generals, especially toward the end of the war, were punished not only for disobeying strict orders but also for acting on their own initiative, without clearing their actions with the Supreme Command of the Wehrmacht first.

  In cross-examination, Roche asked von Senger whether the oath he and Dostler had given to Hitler bound them to carry out orders even when they were in violation of well-established principles of international law, including orders like the Führerbefehl, which demanded the summary execution of prisoners of war. Von Senger explained that it was the responsibility of the government to issue orders that complied with the international law and not of the individual officers who had to execute them. “I am convinced that, as things were, the Führer gave out orders which in some way interfered with international law,” von Senger said. “We on the front who had to execute these orders were certain that he would make a statement or by some other means inform opponent governments of his decisions, so that we would not be responsible for carrying out his orders.” When Roche asked whether von Senger or any other general could have refused to take the oath or resign if they objected to the orders, von Senger explained that before the war doing so would have led to “great disadvantages, both economic and personal, and for my family also.” After the war started, there was a special order from the Führer that forbade a general from resigning because he disagreed with the decisions of the Supreme Command. “He was to remain on duty and he was bound to carry out the orders,” von Senger said.

  Next, Wolfe informed the commission that Dostler desired to take the stand as a witness and give sworn testimony. General Jaynes, the president of the commission, explained to Dostler that he had the right to do one of three things. First, he could remain silent and the court would not presume that he was guilty merely because he remained silent. Second, he could provide an unsworn statement, oral or written, personally or through his counsel, about the matters in front of the commission. Finally, he could take the stand, be sworn like any other witness, and testify on his behalf. Statements he made under oath carried greater weight with the commission than those made in an unsworn statement. However, if he chose to take the stand, he was subject to cross-examination by the trial judge advocate and the commission could allow greater latitude in the questions than in the cross-examination of other witnesses. Dostler replied that he understood his rights and desired to be sworn in as a witness.

  In the first part of the examination, Wolfe asked Dostler to summarize his career in the military since the time he joined the army in 1910 and up to the point where he surrendered to the American troops on May 2, 1945. Then, the questions moved to the Führerbefehl. Dostler explained that the Führerbefehl the prosecution had introduced in the trial was not the complete order that had lain on his desk in March 1944 when the Americans had been captured. “The complete Führerbefehl has as its subject commando operations and there was a list of what it construed as commando operations,” Dostler said. “I know exactly that a mission to explode something, to blow up something, came under the concept of commando troops…. In addition, there was something said in that Führerbefehl about the interrogation of men belonging to sabotage troops and the shooting of these men after their interrogation.”

  Then, Wolfe asked Dostler to recount the sequence of events related to the fifteen Americans. According to Dostler, he learned about the capture of the commando troops from the morning report of the Almers Brigade on March 25, 1944. Dostler remembered the terms “commando troops” and “English-speaking Italians” from that report. He discussed his report with his chief of staff, Colonel Kraehe, and his chief of intelligence, Captain zu Dohna. Since it appeared that this commando unit would come under the Führerbefehl, Dostler “had the Führerbefehl brought to us and studied it in a detailed fashion and we studied again the morning report. As it appeared without a doubt that the operations came under the Führerbefehl, an order was given by me and sent out that the men were to be shot.” This was between nine and ten o’clock in the morning of March 25.

  Dostler said he reflected about the matter and had a telephone conversation with Colonel Almers, who gave him further details about the commando unit, telling him that they were soldiers in uniform and that the matter should be examined further. As a result, Dostler said, “I told Colonel Almers the order which had been given out is not to be carried out. I shall examine the matter further and you shall hear from me.” Dostler had another meeting with his staff officers Kraehe and zu Dohna and decided to ask von Zangen’s headquarters what to do with these men, since the Führerbefehl explicitly forbade sending them to a prisoners of war camp.

  Kraehe called about noon and spoke with Nagel, von Zangen’s chief of staff. Late in the afternoon, Kraehe reported that a telephone call had arrived ordering the men to be executed. Dostler ordered Kraehe to forward the order to the Almers’s headquarters. In the evening, while they were in the mess hall, a telephone call came for zu Dohna. After taking the call, zu Dohna reported that it had been an inquiry from Kesselring’s headquarters about why the Americans had not been shot yet. Later that evening, Dostler had another telephone conversation with Almers in which he told him that the matter had been ordered. Then, at three o’clock in the morning of March 26, he received a call from Klaps asking for more time to interrogate the men. “I answered he is allowed to interrogate the men until early in the morning but he could not go further as the execution had been ordered by higher headquarters,” said Dostler.

  In cross-examination, Roche got Dostler to concede that troops under his command had executed the fifteen American soldiers on March 26, 1944, without trial or judicial proceedings. Dostler also admitted that his first order to Almers, sent in the morning of March 25, said, “The captured Americans are to be shot immediately.” When pressed further, he admitted knowing that the captured men were Americans and not “English-speaking Italians” as he had said earlier. Dostler also admitted that he had issued the first order without taking the matter up with any higher headquarters. Thus, Roche implied, Dostler had sealed the fate of the Americans in the morning of March 25 and the fact that they had not been executed until the following morning was only due to the intervention of the subordinate officers in La Spezia, as recounted in the testimonies of Koerbitz, Schultz, and Klaps. When Roche asked Dostler whether he had any reason to disbelieve their testimonies, his answer was, “No.” Roche then brought up the Führerbefehl, but Dostler held firmly his position that the document presented in the trial was only a partial version of the order as it existed in March 1944.

  “Would you have ordered the execution of these fifteen American soldiers if it had not been for the Führerbefehl?” Roche asked.

  “No,” Dostler said. “I have waged war in many fronts, and I have never ordered the execution of any prisoners of war.”

  “Do you believe that if in this case you had not carried out the execution of these fifteen American soldiers that you yourself would bave been shot?”

  “I had to count on being referred to courts-martial because of nonexecution of the Führerbefehl.”
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  At the end of the cross-examination, a member of the commission, Colonel Notestein, referred Dostler to a paragraph of the Führerbefehl which said that if commando troops fell in the hands of the Wehrmacht through indirect means they were to be turned over immediately to the Sicherheitdienst, or the Secret Police. Dostler explained that zu Dohna, his chief of intelligence, had contacted the SD to transfer the men, but the SD had refused to take them. When pressed by Notestein, Dostler admitted that he had issued his first order to execute the Americans before attempting to contact the SD to turn over the men, as called for in the Führerbefehl.

  Dostler’s testimony marked the end of the defense case. By the end of the depositions, Dostler’s main line of defense that the order for the execution of the Americans had come from upper echelons had been thoroughly undermined. By Dostler’s own admission, his direct commander, General von Zangen, had not given the order and Nagel, von Zangen’s chief of staff, did not have the authority to give such an order on his own. If Nagel had received approval from Kesselring’s headquarters, why would Kesselring reverse himself with the telegram sent to Klaps the day after the Americans had been executed? When Wolfe asked Dostler to explain this contradiction, he said:

  I heard for the first time about that telegram in this trial. Something must be wrong here. I spoke to Almers on the day after the execution and we talked about the matter, and Almers did not mention anything relating to that telegram. In addition, it is very unusual that a telegram of that sort would have come directly to the Almers headquarters instead of passing through me or my headquarters.

  There was a possibility that Kesselring’s headquarters had confirmed the order based on verbal conversations over the telephone with Nagel. Then, when they received the written cable from Klaps, they sent the order to stop the execution, either because they truly wished to stop it, or simply to provide cover for themselves by establishing for the record that they had been against it. The fact that the same headquarters ordered all records related to the matter destroyed two weeks later is certainly an indication that someone in Kesselring’s circle had considered the issue to be damning enough that it warranted burying.

  * * *

  When the trial resumed the next day, October 11, 1945, it was time for closing arguments. Roche summarized the witnesses’ statements that the fifteen men of the ill-fated Ginny mission had been members of the United States Army on a military mission and in uniform when they were captured. Instead of being treated as prisoners of war, the men were executed, their execution was summary, without a trial or judicial proceeding, and Dostler had given the order or command for the execution.

  This was a flagrant violation of the international laws of warfare, not only as set by The Hague and Geneva Convention, but going back hundreds of years. Roche said, “This court is sitting in the city of Rome where it was once the custom to seize captives and drag them along through the triumphal arch up to the Forum and then slaughter them. That custom has long died out. It is abhorrent to the decent feelings of civilized man. It had been against the law for at least five hundred years. It is against the law today, as all concerned agree.”

  Roche told the commission that there was no argument with the points he had summarized thus far. “The accused had conceded most of them,” Roche said. “His guilt is thereby established. The only question which you must answer, the only question left unsolved or unanswered is this: To what extent is his guilt mitigated by the fact that he was acting under superior orders?” Roche said that there was no mitigation. Not only could Dostler not hide behind the Führerbefehl but a strict reading of it showed that he had not obeyed with its provision to hand over the captured Americans to the SD. And, there were grounds to believe that he had never consulted with General von Zangen or his chief of staff on the matter. What aggravated the matter was that Dostler had issued the original order to execute the men and had stuck with his decision, despite the efforts of Almers, Klaps, and others to change his mind. “It is pretty obvious that with the exception of the accused, no one had the stomach for this execution,” said Roche.

  Roche concluded his argument with these words: “For a violation of any of the laws of war, international law provides the penalty of death as a possible penalty. As a result of this particular violation of the law of war, fifteen American soldiers died. I leave to this commission the drawing of the conclusion from these two propositions.”

  There was a lunch recess, and when the trial resumed, it was Wolfe’s turn to make his closing argument. Wolfe began by accepting that there was no question that the execution of the Americans had been a violation of the Geneva Convention. The issue was whether Dostler was the criminal responsible for the crime. “It cannot be denied in this case that the Führerbefehl was the reason why the execution was carried out,” Wolfe said before proceeding to walk the commission through the different paragraphs of the order that substantiated Dostler decision. Then, he evoked the testimony the German officers, especially the generals among them, to the fact that “obedience to orders as they understood them was an inherent requirement of any officer in the German Army” and that to disobey the orders subjected them to trial by a German court-martial.

  Wolfe’s argument was that obedience to superior orders was at the heart of the matter. He reminded the commission that according to policy, principle, or legal and military precedent of the United States, “a subordinate officer is never treated as a war criminal or is punished or tried for an act which he has been ordered to commit by competent authority.”

  As far as the prosecution’s statements that Dostler had acted in violation of the requirement to turn over the prisoners to the secret police, Wolfe explained that the Americans had fallen into the hands of the Wehrmacht from the beginning, they were not handed to them by the police, and therefore, that clause of the Führerbefehl did not apply. Besides, Wolfe said, “if reports of the activities of the SS are to be believed, of what they had done to prisoners, these men are much more fortunate to have been executed than turned over to the SS.”

  Those who complained about Dostler’s initial order—Sessler, Klaps, and Koerbitz—did not do so because they had a better understanding of the Führerbefehl than Dostler. They could not have had access to the Führerbefehl, Wolfe argued. It was kept extremely secret, to the point where no true copy of it had been found as of the time of the trial and the document produced as evidence was a copy of uncertain provenience secured from the French intelligence. Sessler, Klaps, and Koerbitz, Wolfe argued, were engaged in exactly the same kind of work as the fifteen captured Americans. They realized that carrying out the Führerbefehl would expose them to the same treatment at the hands of the Americans someday. “They felt that as a matter of local ethics, courtesies of their profession, of their own trade, that these men should not be executed because of the danger of reprisals on them,” Wolfe said, adding, “and I agree with them.”

  When presented with the complaints, Dostler rescinded his order of execution and passed the matter to higher command for a decision. Had he been acting in a vindictive and cruel manner, he would have simply ignored them and asked that the prisoners be shot, Wolfe said. With regards to which higher authority had sanctioned the execution, Wolfe pointed out that Dostler’s inquiry must have gone up to the Supreme Command of the Southwest, Kesselring’s headquarters. The absence of the witnesses that Dostler had requested hurt his ability to prove this conclusively, but there were two facts that nevertheless were convincing. The first one was that the order not to carry out the execution came to the Almers headquarters several hours after the fact. Had they intended to the stop the execution, Wolfe implied, they could have sent the order in time to stop the execution, which they knew was imminent. The most convincing fact was that Kesselring’s headquarters had ordered the destruction of all records two weeks after the execution. “Somebody knew they had done wrong,” Wolfe said. “Somebody wanted to cover up their tracks and it was not General Dostler. He never ordered the Brigade to
destroy a single record. If we had those records today we would know the truth perhaps.” Driving home this point, Wolfe told the commission, “The only conclusion you can draw from that is that we are not trying the right man in this case. I think General Kesselring’s headquarters knew of this; that they ordered the execution and that they intended to fix the responsibility on some intermediate commanding general if they could do so.”

  Wolfe spoke for close to ninety minutes and then came in for a strong finish.

  Judge not lest ye be judged…. This time we won the war; next time we might not win it. Next time, you gentlemen, might be sitting here and this gentleman might be sitting there…. It would be most unfortunate indeed were we to hold General Dostler as a war criminal, and to be treated as a common felon because he performed what he thought to be his duties as a soldier and as an officer….

  The United States as a nation has a glorious background. We are protectors and defenders of the law and the right…. Trying in an unlawful and illegal manner this general here, convicting him contrary to the precepts upon which our great nation was founded, would be no more than what Adolf Hitler did when he executed these fifteen men in violation of law. Whatever the true facts may be, I don’t know. The trial judge advocate, the defense counsel, and the members of this court are only trying to do their job, but I say this:

  That if we don’t do our duty, that if we simply find a man guilty because of political pressure or because he lost the war or he is in our power and we can do what we want to do to him—we might as well not have won the war. We might as well not have won the war unless we are going to make a bigger and better contribution to civilization, and unless we are going to establish the sacred laws and enforce those laws governing the rules of warfare and the living between nations.