“Bernays had trouble keeping his eye on wartime atrocities,” historian Bradley F. Smith has written. “By 1944 he must have seen reports of the exterminations, but they apparently did not penetrate his consciousness any more than they did that of most others in Washington. Ingrained doubts about atrocity stories, an inability to grasp the reality of the Holocaust, and the seeming futility of any effort to stop it, all played a part in this failure to comprehend reports of Auschwitz and other camps.”20 Bernays’s professional concern was primarily with U.S. POWs then in German hands, not with European refugees.
Bernays and the War Department did not create a war crimes prosecution strategy under their own steam: They were pushed into it by the White House, by Morgenthau and Pell, and by public sentiment. There is every indication that without this outside pressure, the War Department would have continued to let the matter drift, just as it had for the previous three years. Regardless of what Murray Bernays may have intended, the War Department used his legal advice primarily as a device to avoid taking direct action against Auschwitz and other death camps.21
Bernays is today widely credited with formulating a plan to try Nazi criminals for conspiracy to commit crimes in addition to the more conventional charges such as murder and pillage. Charges that the Nazis had a “common plan” to commit war crimes, crimes against peace, and crimes against humanity eventually became a centerpiece of the prosecution strategy at Nuremberg.
In fact, though, the concept of Nazi organizations as criminal conspiracies had been discussed among legal scholars since the beginning of the war. It was developed in part by Harvard’s Sheldon Glueck in articles in the New Republic, the Harvard Law Review, and in his 1944 book, War Criminals: Their Prosecution and Punishment. President Roosevelt even referred directly to the Nazis as a “lawless conspiracy” in his order to the War Department that provided the basis for Bernays’s work.22
Be that as it may, it was Bernays who drafted the legal memo that eventually became War Department policy. Under U.S. criminal law, prosecutors have the option of bringing an additional charge of conspiracy any time two or more persons act “by concerted action to accomplish an unlawful purpose,” that is, to work together to violate a law. In prosecuting bank robbers, for example, the state can seek a felony conspiracy conviction of the suspect who drove the getaway car, even if he never entered the bank.
Bernays suggested extending this principle to international law. If the Gestapo was found by an appropriate tribunal to have been a criminal conspiracy, he reasoned, any member of the organization could theoretically be prosecuted for each crime committed by its members, assuming that the accused Gestapo man was acting “in concert” with the rest of his organization. The same would be true for members of the Leadership Corps of the Nazi party, the SS, the German high command (though it was unclear exactly who that term might encompass), and for other allegedly criminal groups.
He proposed that shortly after Germany’s surrender an Allied tribunal should try several key Nazi organizations as criminal conspiracies, in addition to judging a handful of the highest-ranking Nazi leaders. If the court upheld the conspiracy conviction, that precedent would provide a legal framework for trials of thousands of second- and third-level Nazis who had carried out the criminal policies of their leaders. The finding also would likely eliminate the defense raised by subordinates of acting under orders.
All of the acts of the accused organizations could be placed in the public record during prosecutors’ efforts to prove that a criminal conspiracy existed. This sidestepped the thorny issue of whether or not Nazi actions prior to the outbreak of war in 1939 could be considered war crimes, because evidence going back to 1933 could be presented even though the prosecution was seeking convictions only on acts after 1939. It also permitted prosecutors to present evidence of Nazi atrocities against Axis nationals such as German and Hungarian Jews, at least as long as those deeds could be logically linked to more conventional war crimes.
On the other hand, Bernays’s strategy rejected the effort led by Pell and Morgenthau to set new legal precedents on crimes against humanity and, in fact, opposed almost any development of international law beyond the cramped structure that had existed since the 1919 Paris Conference. His brief failed to recognize any inherent human rights for Axis civilians beyond those granted by Axis governments, nor did it facilitate Allied action to rescue Jews bound for extermination camps. Regardless of what Bernays may have intended, his proposals often became props for those at the State and the War departments who favored a go-slow response to Nazi atrocities.
A bruising bureaucratic war of leaks erupted in Washington during the weeks that followed Bernays’s first draft, as members of each faction spread their version of the facts to the public through news reporters. Morgenthau’s group appears to have cast the first stone. Pell told columnist Drew Pearson in mid-September about the sabotage of the UNWCC. The following week, Pearson followed up with revelations of FDR’s stunning criticisms of SHAEF’s handbook on Germany. He also laid out Morgenthau’s version of the debate inside the U.S. government over the prosecution of war crimes. The Wall Street Journal published what amounted to the State Department’s reply the next day, stressing the most extreme features of Morgenthau’s plan and its potential to “deindustrialize” Germany. The New York Times and Washington Evening Star then weighed in with detailed reportage almost certainly leaked from the State Department that painted Morgenthau’s initiative as a nearly fanatic example of war hysteria. The Washington Post editorialized that Morgenthau’s economic strategy for Germany seemed to be the “product of a fevered mind.”23
At this point, the 1944 presidential election was only a month away, and the opposition Republican party made the most of the scandal in the Democrats’ camp. Republican candidate Thomas Dewey charged that Morgenthau had handed the Nazis a propaganda bonanza, and contended that German fears of Morgenthau had caused the Wehrmacht to dig in deeper and fight harder. The newspaper barrage dealt Morgenthau a serious political blow. FDR stepped away from Morgenthau’s plan in the weeks that followed, publicly opposing “deindustrialization” of Germany and favoring a more moderate approach. After Roosevelt won reelection, Dewey retracted the charge that Morgenthau had contributed to Germany’s will to fight, but by then the political damage had been done.
Herbert Pell was eager to clear the air with Roosevelt. In early December, he used the occasion of his son’s marriage to return to the U.S., where he hoped to win the President’s backing in the debate over atrocities against Jews in the Axis countries. At the State Department, Green Hackworth had other plans. That November, Congress had placed new restrictions on the President’s Emergency Fund, the source of Pell’s salary during the past eighteen months. The money as such was nearly meaningless to Herbert Pell, as he could easily afford to work without pay if necessary. But Hackworth knew that without a congressional appropriation for the post, Pell would be legally forced off the commission.
The legal advisor sent his aide Katherine Fite to Capitol Hill with a budget proposal that put the request for Pell’s salary at the bottom of the list of State’s priorities. Fite spoke in favor of the appropriation for Pell, but in terms that made it clear to Congress that there was little regard for Pell’s work at State and not much support for the UNWCC. After several meetings, a congressional conference committee deleted Pell’s salary during the markup of the appropriations bill, and the 1945 budget was passed without it.24
Herbert Pell met with Hackworth at least twice during Fite’s trips to the Hill, and at neither time did the legal advisor let on that Pell’s fate and that of the UNWCC were under discussion before a congressional budget committee. Instead, Hackworth used the meetings to quash Pell’s requests to attend war crimes policy gatherings then under way at the War Department and to pour cold water on Pell’s assertions that FDR was backing his plan to reclassify crimes against Axis Jews as war crimes. “I thought I made it clear … that nothing final and definite co
uld be said at this time” concerning crimes against Axis civilians, Hackworth reproved Pell.25 The U.S. representative should not act on any of his “impressions.” Acting Secretary of State Stettinius also knew that Pell’s ouster was imminent, but he too remained silent when the two men met.
Hackworth and Stettinius worked through the Christmas holidays to prepare the paperwork for FDR that they hoped would administer the coup de grace. They rehashed Preuss’s allegations against Pell from the previous spring, criticized Pell’s willingness to make public comments without instructions from Washington, blamed his dismissal on the congressional funding cuts, and falsely assured the President that Pell’s concerns were now being addressed by a new legal committee made up of Hackworth, Bernays, and other government attorneys. The only real question left, they said, was whether Roosevelt should personally tell Pell that his job was over, or if he preferred to let State do the firing.
“O.K.,” Roosevelt replied to Stettinius in a terse note in early January. “You do it. At last.”26
Hackworth believed he was meanwhile making considerable progress in his meetings with Bernays at the War Department. To Bernays’s face, Hackworth accepted the War Department proposal, but in working sessions he helped draft policy directives for U.S. commanders in the field that were as close as possible to the State Department’s (and Hackworth’s) strategy on war crimes. At the same time, Hackworth continued a behind-the-scenes effort to quash the compromise plan that he was drafting with Bernays. Despite lip service to the Bernays plan, Hackworth’s now-declassified memos document that he continued to try to head off use of a conspiracy prosecution against the SS and the Nazi party for at least the next six months.27 In part due to Hackworth’s prompting, Attorney General Francis Biddle also opposed Pell’s initiatives and the War Department’s suggestions for conspiracy prosecution of Nazis, raising many of the same objections to war crimes enforcement that Robert Lansing had argued at the end of the previous world war.28
The British Foreign Office remained of one mind with Hackworth on these issues, and its legal attaché in Washington leaked to him the classified Combined Chiefs of Staff policy papers on war crimes for his “personal use” in convincing other Washington departments to toe the line.29 These orders limited war crimes prosecutions to narrowly defined cases, made no mention of crimes against humanity, and specifically excluded any “acts committed by enemy authorities against their own nationals”—which is to say, most crimes against European Jews—from postwar prosecution. There was, of course, no discussion whatever of prosecuting Allied leaders for bombing civilians (or hospitals and similar installations) in the Axis countries.
Equally important, the Combined Chiefs of Staff contended that no war crimes suspect was to be handed over to any other Allied country “except by arrangements among the governments concerned.”30 In the world of diplomatic etiquette, this last statement was worded to undermine compliance with the obligations of the Moscow Declaration without openly defying that agreement. The importance of blocking delivery of suspects was to grow considerably in the months ahead, and eventually it emerged as one of the most important means by which war criminals escaped justice.
In early January 1945, Hackworth’s effort to engineer Pell’s dismissal unexpectedly blew up in the legal advisor’s face. Shortly after FDR’s confidential note authorizing State to dismiss Pell, the President met Pell for lunch at the White House. As Pell tells the story in his unpublished memoirs, FDR reassured him of continuing support and encouraged him to return to London to lead the UNWCC in taking a tough stand on Nazi crimes against Jews. Elated, Herbert Pell returned to the State Department for what he believed would be a routine meeting with Edward Stettinius. It did not work out that way. Stettinius abruptly fired Pell without warning and with minimal courtesy. The dismissed UNWCC commissioner immediately called the White House, but FDR did not return his old friend’s telephone calls.31
Pell refused to give up and took his case to the newspapers, charging that the State Department leadership was quashing prosecution of Nazi atrocities. He used his dismissal to bring new attention and credibility to his earlier accusations that the State Department had sabotaged or obstructed a whole range of activities undertaken in response to the Holocaust. Newspaper editorial writers and columnists took up Pell’s cause and, more important, focused public attention on the legal technicalities that Green Hackworth and other department officials had quietly used to justify their policy of inaction in the face of the Holocaust.
A Washington Post editorial condemned Pell’s firing and attacked “certain legalistic-minded old-school individuals … [who] had failed to find any precedent in international law for the punishment of a country’s murder of its own citizens … and therefore refused to approve [U.S.] participation” in the prosecution of Germans who had destroyed German Jews. The problem, the Post continued in a second editorial, was “certain well-entrenched functionaries in the State Department.” The liberal New York daily PM published a series of investigative articles on the whole affair. “Who are the U.S. officials seeking to sabotage trial of Nazi killers?” the paper headlined. “Legally, Hitler is still safe” because of a State Department policy that was, in PM’s words, making “punishment of the men who perpetrated this war upon the world … impossible.”32
The firestorm of publicity forced the State Department publicly to cave in on the issue of prosecuting Germans for crimes against German Jews, though State continued to resist Morgenthau and Pell’s broader conception of breaking up the German corporate elite. The State Department issued a formal statement insisting—quite falsely—that it had supported the “aims” of Pell’s program all along.33 Pell became a martyr, in effect, for the hard-line approach to Nazi crimes that had been espoused by the activists surrounding Morgenthau at Treasury and by much of the general public. “By crudely dismissing him,” historian Michael Blayney has written of this incident, the State Department “enabled Pell to arouse public wrath to such intensity that the Department was forced to yield.… Pell’s abrupt dismissal helped make the [Nuremberg] Trials virtually inevitable.”34
The factional conflicts in Washington over what to do with Germany also began to emerge among U.S. military commanders in Europe well before the shooting war ended. U.S. troops crossed into Germany at Aachen in the fall of 1944, and it was there that the U.S. made its first effort to establish a post-Nazi government. The opposing drives underlying U.S. policy—toward continuity of German elites as a means of attaining stability, on the one hand, or toward a purge of the system that had given birth to Hitler, on the other—collided almost immediately. The events in Aachen became a prototype of what was to unfold throughout the Western zones of Germany and, in fact, throughout much of Europe.
The city had suffered severe war damage from Allied and German forces. Yet, within days of the U.S. victory, there emerged in Aachen “an elite made up of technicians, lawyers, engineers, businessmen, manufacturers, and churchmen,” according to military sociologist Saul Padover, who led a U.S.-sponsored research team in Aachen. “This elite is shrewd, strong-willed, and aggressive. It occupies every important job” in the new German administration that the U.S. permitted under the occupation.35
Padover’s team conducted in-depth psychological and sociological interviews with dozens of people in Aachen, including most of the “notables” identified there. “Their strong point, especially in dealing with Americans, is that they are ‘anti-Nazi’ or ‘non-Nazi,’” Padover wrote. During the war, most had held senior positions at the Veltrup works, Aachen’s leading war production plant. “A striking fact about this new Aachen elite is its comparative youth. Their ages run from thirty-three to fifty. They all represent the upper middle class.… The leading men in this group had spent their working life and grew prosperous under the Nazi system and they knew little else. They had an antidemocratic conception of government and a ‘leadership’ [i.e., Führerprinzip] view of business.”
Aachen’s new leadersh
ip clique had a fairly clear-cut, long-range political-economic plan. The plan, “about which MG [U.S. Military Government] knew little and cared less, was a significant index of what one may expect from similar business groups in Germany,” Padover contended. Their vision, he said, was “an authoritarian corporate state,” somewhat similar to the Austrian model of the 1930s. Economically, they favored a tightly knit community of owners and managers of small enterprises supported by a limited “labor aristocracy” of foremen and artisans. The new leaders were said to be “violently opposed to popular elections, political parties, and trade unions.
“Under the nose of the MG,” Padover concluded, the new administration was “setting up the framework of an authoritarian, hierarchical, bureaucratic, corporate fascism—a type of Staendestaat that even the Nazis had rejected.”36
This group entrenched itself in the city administration by placing insiders in control of local ministries, Padover continued. The new administration’s chief building contractor and leader of its “Industrial Bureau,” for example, had been Aachen’s largest contractor under the Nazis and had made extensive use of forced labor. The executive officer and personnel director, Opt de Hipt, had been the Gestapo’s liaison inside the city’s most important war production plant, with responsibility for enforcing loyalty among the factory’s employees.37
In short, the postwar leaders who emerged at Aachen were not ideological Nazis from the mold of Himmler or Hitler. They were instead the political, economic, and social technocrats who had actually run Germany during Hitler’s regime under the watchful eye of Nazi party activists.
There was an alternative for the administration of occupied German cities, though it could have been implemented only in the face of resistance of the existing elites. At Aachen the town and its surroundings had been in the hands of a coalition government made up of left-centrists, Social Democrats, and Communists for most of the decade prior to Hitler’s assumption of power. One of the first public opinion surveys conducted by U.S. forces in Germany found that 70 percent of the women and 83 percent of the men interviewed at random said that they would vote for Social Democrat or Communist candidates if elections were held.38 Theoretically, at least, the citizens of Aachen would have elected a more democratic and anti-Nazi administration had the military government permitted elections to be held.
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