by Kai Bird
Less than six months after arriving in Germany, McCloy felt rather pleased about his tenure. At an end-of-the-year press conference, he hailed the election of a West German government and the signing of the Petersberg Agreement as two major achievements. The future, he said, now rested not so much with the high commissioners as with the Germans themselves. He then made a point of saying that the touchstone of whether they would be able to develop a liberal state remained their attitude toward Jews. There had been a number of “debasing” incidents of anti-Semitism, but he said such things had been strongly criticized in the German press.86
At the time, McCloy’s hopes for German democracy seemed overly optimistic. The next day, The New York Times published a poll showing that 60 percent of all West Germans could not name their own elected chancellor.87 Nor had German attitudes toward Jews changed. It was common knowledge among HICOG employees that even Jewish Americans like Buttenwieser still encountered quite a bit of anti-Semitism.88 And many Germans were openly clamoring for the end of the denazification program and the release of imprisoned Nazi war criminals.89 Even with Adenauer, McCloy found it difficult to discuss de-Nazification. The chancellor steadfastly ignored his arguments that more attention should be paid to cleansing the German civil service of its “authoritarian, Bismarckian” influences. He told Adenauer that it was one thing for “little Nazis” to take their place in the community, but many Americans were worried by the prospect that prominent Nazis might regain their influence.90 Two former Nazis were in Adenauer’s first Cabinet: Dr. Hans Christoph Seebohm, minister of transportation, and Dr. Thomas Dehler, minister of justice. Seebohm was an ultranationalist who in 1951 publicly denounced the “monstrous crime the victors had committed against Germany, Europe and the whole world.” Der Spiegel later described him as a “prototype of the eternal Nazi.”91 That both men had faithfully served the Third Reich and now had seats in Adenauer’s Cabinet disturbed McCloy. In addition, one of Adenauer’s closest advisers, Dr. Hans Globke, had been an influential civil servant in the Nazi Interior Ministry. Globke was one of the co-authors of the notorious Nuremberg racial-purity laws of 1935, and had helped to write the 1933 emergency legislation that gave Hitler dictatorial powers. Yet Adenauer, who chose to believe Globke’s claim that he had attempted to mitigate legal measures already demanded by Hitler, was now relying on him as a private, unofficial adviser.92 When questioned about his controversial aide, Adenauer told McCloy, “I can’t run the country without him.”93
Other prominent men with unsavory backgrounds gradually became part of Adenauer’s “kitchen Cabinet,” including such wealthy and powerful financiers as Hermann Abs and Robert Pferdmenges. Both men had collaborated with the Nazis, and though they were not prosecuted at Nuremberg, they were placed on the Allied war-criminal list. Abs knew Adenauer from the 1920s, when they served as fellow directors of the Deutsche Bank, one of the “big three” German banks. Pferdmenges controlled the Oppenheim banking house in Adenauer’s hometown of Cologne, and the chancellor had long counted him as his most intimate friend. They were kindred spirits, men of culture and conservative judgment, and Adenauer came to rely on their advice regarding a wide range of issues.94 (In later years, McCloy himself would count both bankers as personal friends.)
That the chancellor required the services of such men made it difficult to persuade the German public that lower-level Nazis should be purged from the civil service. By 1949, the policy of de-Nazification had run its course. Immediately after the war, U.S. occupation authorities had identified 3.6 million indictable individuals for political or war crimes—or 20 percent of the population in the U.S. sector. This unmanageable number was eventually cut down to about 930,000 individuals, who were processed through a total of 169,282 trials. Over 50,000 were convicted, and 806 death sentences were handed down, of which 486 were carried out. Hundreds of thousands of these individuals were fined, imprisoned, or forced out of civil-service or other white-collar jobs. Inevitably, justice was administered unevenly: thousands of schoolteachers and low-ranking civil servants who had been pressured to join the Nazi Party were penalized by the de-Nazification courts, while prominent industrialists who had given millions to the party—but never joined it—went untouched.95 Such inequities discredited the process to the point where many genuinely anti-Nazi Germans hesitated to testify against their countrymen. When pressed, some Germans began to argue that the Führer had lost his mind only in the last several years of the war, that the crimes against humanity were his crimes, and those who carried them out were unavoidably following orders. Moreover, as the West German state came to be perceived as a bulwark against the communist East, a small but newly vocal right wing suggested that Hitler’s mistake had been to fight the West instead of turning the full force of Germany’s armor against the Kremlin. Even Germans in the political center now found it easy to argue that those condemned to death for their services to the Third Reich—known as the “red-shirts” for the prison garb they wore that signified their capital offenses—should be shown some mercy.
It was in this atmosphere that a delegation of distinguished German lawyers came to see McCloy in November 1949 about the convicted Nazi war criminals still in prison. The lawyers spoke of a “miscarriage of justice” and urged McCloy to consider a general amnesty, or at least to establish some kind of parole board to review the sentences. They particularly wanted him to reprieve those war criminals facing the death sentence. McCloy’s response to this initial appeal was to tell the lawyers that he didn’t know whether a review of the sort they were talking about was appropriate, but that certainly anybody could bring to his attention evidence of a miscarriage of justice. As to the death sentences, he pointed out that they had been stayed, pending court appeals. That did not mean, he warned, that “some or all of those sentences would not be carried out.” He then asked the head of the delegation whether he had read the record in any of these cases. As McCloy recounted to his staff, the man “hesitated just long enough to say ‘yes’ to convince me that he hadn’t.” It was a shame, McCloy said, that the Nuremberg war-crimes proceedings on these cases had not been published in German.96
If McCloy was thus initially disposed to take a hard line on the war-crimes cases, the machinery within the HICOG bureaucracy was beginning to move in the opposite direction. In part, this was McCloy’s own responsibility. General Clay had told McCloy he regretted that he had been unable to leave a clean slate regarding the pending death sentences. McCloy mistakenly interpreted this to mean that the sentences had not been reviewed; in fact, Clay had already reviewed the cases and confirmed the sentences. Only the Supreme Court appeals prevented him from carrying out the sentences prior to McCloy’s arrival. Nevertheless, in October, McCloy requested a memo from the Justice Division of HICOG on whether he had the power to “alter, after confirmation, the sentences imposed by the military tribunals at Nuremberg.” He was promptly told that, indeed, he had the power to do just about anything he wished.97
And now the Germany that McCloy was attempting to rehabilitate began to pressure him into exercising that power. In November 1949, the archbishop of Cologne wrote the high commissioner a plea for clemency in behalf of the war criminals awaiting execution. The archbishop argued that these men had already suffered the anguish of awaiting execution for two years, and that, “thereby, they have already repented.” He pleaded with McCloy to take into account that these men had “acted by orders of higher headquarters. . . .” McCloy was initially inclined to tell the archbishop that it was his “impression” that “there are some offenses so shocking and so criminal in their aspect that it would be most difficult to find any possible basis for clemency.” He wanted, in fact, to tell Washington that he was prepared to carry out the executions as soon as the final appeals before the Supreme Court were rejected. But these impulses were set aside when his old friend and general counsel, Chester McClain, informed him that HICOG was “working on a plan for a parole board for the war crimes cases. . . .” McCloy was alw
ays willing to reconsider his initial judgments, and if McClain had set in motion the bureaucracy to do this, he would not stand in his way.98 It was a decision filled with momentous consequences.
Telford Taylor, one of the American prosecutors at Nuremberg, provided McCloy with a hint of the controversy he would soon face if he took the road to clemency. Those condemned to death, Taylor wrote to McCloy at the end of the year, included the administrative head of the entire concentration-camp system, Oswald Pohl, and the leaders of the special SS killing squads who carried out the slaughter of some one million Jews and others during the invasion of the Soviet Union. “They are, without any question, among the most deliberate and shameless murderers of the entire Nuremberg list, and any idea of further clemency in their case seems to me out of the question.”99 There is no record of McCloy’s reply.
CHAPTER 16
The Dilemma of German Rearmament
“Germany always had two bosses: one, the General Staff; and the other the Rhine industrialists. We still have the latter only a little chastened. Let us not take on the other for a while.”
MCCLOY TO HENRY STIMSON JUNE 28, 195O
McCloy was genuinely appalled by the tendency of the German public to turn “squalid butchers into patriots and martyrs.”1 He was annoyed by appeals in behalf of proven war criminals, particularly when unaccompanied by any recognition of the crimes these men had committed. Always an avid reader of history, he was now developing a strong interest in what little was known of the German resistance to the Third Reich. He had met and became good friends with such resistance figures as Elizabeth Struenck, Inge Scholl, and Fabian von Schelabrendorff.2 The courage displayed by the handful of German students who paid with their lives for publicly opposing Hitler deeply impressed him, and led him in later years to assist his son in researching a Princeton undergraduate thesis on the topic. The resistance, in fact, was never more than a handful of individuals, some of whom were motivated by less-than-democratic ideals. Some were monarchists, and some had willingly participated in the regime’s Judeocide. The Nuremberg prosecutors were shocked to learn that one of the army officers involved in the July 20 plot to assassinate Hitler had served as the commander of an Einsatzgruppen mobile killing squad used to carry out the first large-scale murders of Jews on the Eastern front. If McCloy gradually came to exaggerate the strength and importance of the noncommunist resistance, it was nevertheless astute of him to emphasize its symbolic value in building a new, democratic Germany.3
In this frame of mind, McCloy answered an appeal by the pope’s personal representative in Bonn for a blanket amnesty of all war criminals. Writing early in 1950, he told Bishop A. J. Muench, “I do not believe that world opinion generally is prepared to accept the proposition that those crimes have yet been sufficiently atoned for or that the German people should now be allowed to forget them.” But he also informed the church leader that as a matter of law he was interested in establishing a parole board where “reasonable and proven grounds” for individual clemency might be considered.4
By mid-January, his staff had already drafted the charter for just such a clemency board; the guidelines specified that the board would not review the decisions of the Nuremberg or other war-crimes trials on any “questions of law or fact.”5 In other words, the proposed parole board was not to undermine the legitimacy of the Nuremberg decisions by questioning either the unique legal grounds on which the Germans were tried, or the facts introduced as evidence in each case. McCloy was not one of those in the New York legal community who had scoffed at the war-crimes trials, and he had no intention now of overturning those decisions. Back in 1946, when the Nuremberg trials were in progress, he had bitterly complained to Acheson about the “ignorance” displayed by most of his colleagues in their attitude toward the proceedings.6 Now, as high commissioner, he proposed that his parole board should recommend clemency only in those few cases where some individuals’ sentences were deemed excessive when compared with similar cases.
There was one aspect of the whole business that made him uneasy. Clay had left him the unsavory task of carrying out the executions of sixteen war criminals sentenced to death. Publicly, he displayed a businesslike attitude toward the task, telling the press that it was his desire “to dispose of these [death sentences] as promptly as possible but in a dignified and just way.”7 But privately, when making the argument to Acheson for establishing a clemency board to review the death cases, he wrote, “. . . my own conscience is involved and though I am quite prepared to make the ultimate decision and accept ultimate responsibility, I require the help of such a group.” Acheson quickly gave his assent, “inasmuch as you feel so strongly. . . .”8
As McCloy cast about for possible candidates to sit on his clemency board, reports began to surface that the high commissioner intended to review the war-crimes cases. The mere hint that the death sentences might not be carried out led a convention of the Jewish War Veterans of America to vote a resolution calling on McCloy to reject all pleas for clemency. The New York Times suggested that he had once again postponed the death sentences out of consideration for German public opinion. Simultaneously, the Times and other papers were running a series of stories early that year suggesting that Nazism and ultranationalists were again on the rise in Germany. During a brief trip back to the United States, McCloy told a Boston audience that, though “some evil embers are lying about,” the Neo-Nazi threat was greatly overrated.9
He returned to Frankfurt in early February 1950, determined to correct the public’s perception of his handling of the Germans. A few days later, in Stuttgart, he spoke to an audience of fifteen hundred Germans who sat in shocked silence as he bluntly told them that it was still far too early to contemplate any changes in the Allied occupation powers. The German people were still far too “apathetic or negative” in their political attitudes. In his judgment, there was still “too much traditionalism and authoritarianism in German life;. . . many undesirable former Nazis and nationalists were finding their way back into important places. . . .” He was determined, he said, to use all his powers to prevent Germany from ever again endangering the peace in Europe, and that meant, among other things, that “there will be no German army or air force.” He then rebuked Adenauer’s minister of justice, ex-Nazi Dr. Thomas Dehler, for suggesting that Germany’s postwar difficulties were the fault of the Allies.
The New York Times hailed this new tough line and observed, “. . . no United States official in the last eighteen months has talked to the Germans about Germany as Mr. McCloy did today.”10 The next day, he had a three-hour meeting with Adenauer, who, when asked whether the meeting had been friendly, snapped, “You saw how he [McCloy] walked to the door with me and how we shook hands.” Afterward, McCloy admitted the chancellor was reluctant to talk about his Stuttgart speech: “He was very disturbed about it, very upset.”11
Not everyone, however, was convinced by this choreographed display of “getting tough with the Germans.” The liberal New York Post suggested that one firm speech wasn’t enough, that the Germans wouldn’t get the message until the last of the Nuremberg death sentences were finally carried out. The New York Compass, a left-liberal paper, observed, “McCloy has talked back at the Nazis before this. And he has then gone right ahead building his so-called free democratic German puppet state on a broad base of Hitler sympathizers and anti-Semites.”12 The truth was that he just did not believe the Nazis were a threat any longer. No doubt there would be incidents, such as when a right-wing member of Adenauer’s governing coalition in the Bundestag publicly questioned the authenticity of the Holocaust, inciting a fistfight outside the parliament.13 And later that spring, he would be forced to condemn as a “disgrace” a rash of desecrations of Jewish cemeteries and synagogues.14 But McCloy placed enough confidence in his executive powers—which included extensive intelligence surveillance and wiretapping of neo-Nazis—to conclude that such incidents were of little political significance. Even though many Germans might still harbor a
nti-Semitic prejudices, the experience of total war and unconditional surrender had sapped them of any desire to participate in another totalitarian movement. Quite the contrary: polls commissioned by McCloy’s public-affairs man, Shep Stone, revealed that most Germans were politically apathetic and decidedly antimilitarist.
The real challenge, McCloy believed, was still the difficult problem of how to create a democratic, pro-American state out of the Western half of a divided Germany. The threat to this U.S. foreign-policy priority came from the left, not the right, and in the months ahead he would have to find ways of broadening Adenauer’s political base while stalemating the left-wing forces of the SPD. It was Schumacher’s attractive vision of a unified Germany, achieved at the cost of neutralization and permanent demilitarization, that threatened McCloy’s agenda in 1950. He realized that broadening Adenauer’s base necessarily meant making the right kind of symbolic concessions on matters of national pride. A discreet end to the unpopular de-Nazification proceedings would measurably improve the standing of Adenauer’s coalition government, allowing the chancellor to portray himself as the one politician who could win back German sovereignty. Still, it was a thin line McCloy had to walk.
When Adenauer appealed to him in April 1950 to commute the remaining sixteen death sentences on the grounds that the German Basic Law prohibited capital punishment, McCloy replied, “The enormity of the crimes for which these defendants were convicted exceeds the bounds of normal imagination.” But then, while strongly defending the legitimacy of the Nuremberg proceedings, he told Adenauer that he had now established a procedure for reviewing each case to determine whether there were any “circumstances justifying clemency in individual cases.”15 A month earlier, he had finally selected three men to serve on a clemency board: David W. Peck, a New York State Supreme Court justice; Frederick A. Moran, chairman of the New York Board of Parole; and Brigadier General Conrad E. Snow, assistant legal adviser to the State Department. Peck had many years’ experience as an appeals judge, Moran was familiar with American parole practices, and Snow could provide expertise on issues of international law.
