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The Nuremberg Legacy
How the Nazi War Crimes Trials Changed the Course of History
By Norbert Ehrenfreund
Palgrave MacmillanCopyright © 2007 Norbert Ehrenfreund
All rights reserved.
WITNESS TO THE HOLOCAUST
It was April 1945. The second World War was coming to a quick end in Europe. As the 71st Infantry Division advanced across southern Germany toward Austria I began to hear the stories. The men talked of Nazi gas chambers and torture and concentration camps. I was skeptical. It was all hearsay, maybe. Rumors abound in wartime. Who would do such things?
I was a forward observer with B Battery, 607th Field Artillery Battalion, attached to General Patton's Third Army. The assignment meant that I was to go forward with the infantry company commander and call for fire from our four 105-millimeter howitzers whenever he wanted it. On our right flank, the Seventh Army was engaged in bitter fighting in Nuremberg but our artillery was not called in. General Eisenhower wanted us to make a straight line to Austria. Our orders were to meet the Russians there, coming west. By the end of the month the Germans were surrendering in droves. Many of them wanted to know if they could help us fight the Russians. We told them they were crazy if they thought we were going to do that. The regular army Germans were giving up but we had to be careful of Waffen SS strongholds.
The Waffen SS was the combat arm of Hitler's elite SS organization (the Schutzstaffel) commanded by one of the most hated of all Nazis, Heinrich Himmler. The SS, I found out later, committed revolting brutalities, murdered hostages, massacred Jews and ran the concentration camps. The Waffen SS troops were the fighting units of the organization and were supposedly restricted to purely military operations. With the regular German Army (the Wehrmacht) crumbling, the Waffen SS was composed mostly of fanatic teenagers sworn to fight to the death. They had no backup support but they had guns and ammunition. Hiding in the woods in small units, the Waffen SS youth could be dangerous.
As we crossed the border and started through the Austrian countryside, the company commander devised a clever system to conduct the campaign with a minimum of casualties. He found out that I spoke some German, and seeing the weakening nature of the opposition, he took me aside and laid out the plan. The Austrian telephone system was still working well in most towns. As we advanced toward Vienna, I was to phone ahead to the Nazi command post—usually a city hall—of each city or village, and ask to speak to the German officer in charge. I would tell him in my broken German that we were Americans coming in with heavy artillery ready to fire on his command post. Unless he raised the white flag of surrender we would blast the place. The idea seemed odd. This was not part of our training at artillery school in Fort Sill, Oklahoma. I agreed to try, and practiced my little speech in German. What followed was indeed a strange way to fight a war. As soon as we arrived in a community with a telephone I would ring up the military commander in the next town down the road. Often I had the assistance of a frightened but willing Austrian civilian.
"Halten sie weisse Fahne hoch!" I shouted into the phone. "Weisse Fahne hoch!", which meant "Raise the white flag high!" They seemed to understand, for in a few minutes we would see a white sheet go up and we would move in to capture the village without firing a shot and, more importantly, without losing any men. We moved rapidly from town to town this way.
One time we had a problem. The SS commander on the phone sounded like a fanatic. When I finished my speech he exploded with a string of obscenities, followed by a slamming down of the phone. I called for a single round of artillery on his headquarters. Shortly afterwards the white flag went up.
Near Lambach, Austria we found that the stories of the concentration camps were true. North of the city the 5th Infantry Regiment came upon hundreds of men, women and children, mostly Hungarian Jews, who had been held in a concentration camp at the Gunskirchen Lager. Some were dead, some dying of starvation. Many lay in a dense patch of pine woods, abandoned by their Nazi guards who left them without food and water when the German army retreated. The guards had fled as the 71st Division approached. The inmates tried to flee in search of food, and the Americans found many crowding the trails near the camp area. They had been living for months on a slice of bread and a bowl of soup each day. The Americans evacuated the survivors to a hospital in Wels. I saw enough and heard enough to realize that I had become a witness to what was later called the Holocaust.
In May the city of Steyr, about eighty miles west of Vienna, fell to the 71st Division without the firing of a single shot. Located near the Enns River, Steyr had a population of about 40,000, and it seemed as though the whole city turned out to give us a warm reception. They treated us like liberators, not enemies. As we drove through town in a column of jeeps and trucks and howitzers, the citizens of Steyr lined the streets cheering. We had never been greeted this way anywhere in Europe. The Austrians hung out of second- and third-story windows waving and smiling at us. What happened to the war? Wasn't it supposed to be still going on? My telephone lineman, Floyd Reid, was a mountaineer from West Virginia. Seated in the back of our open jeep, Reid sensed the friendly mood of the crowd. He picked up a banjo he kept under the seat and began to play a hillbilly song. The Austrians laughed and cheered all the louder. I was worried about snipers from one of the windows, and we kept our carbines and pistols at the ready but no incidents occurred.
We thought we would pass through Steyr and go on to Vienna. General Dwight Eisenhower, the Allied Commander in Europe, had other ideas. He sent down word that the Russians would take Vienna and we were to stay in position and wait for them. This was a big disappointment because we had imagined capturing Vienna and celebrating the end of the war in that romantic city. Instead we holed up in the woods outside Steyr and waited. Our position was on the southernmost flank of the Allied western front. I had orders not to call for artillery fire because the shells might fall on the Russians coming from the east.
So we waited. Several days went by with no sign of the Russians. My forward observer platoon consisted of four men: a jeep driver, a radio operator, a telephone lineman and myself. We were growing restless. The Russians hadn't shown up and we were tired of sitting around. Somehow I wrangled permission to move forward. The four of us climbed into the jeep and took off to look for the Russians. As we drove east we passed long lines of German prisoners walking westward. They were guarded by two GIs riding in a jeep behind them with machine guns at the ready. The Germans waved as if they were happy to see us. They were glad to know they were going to be prisoners of the Americans rather than of the Red Army, who they feared would treat them with brutality. As we passed the GIs, they yelled "The war's over!" We didn't know whether to believe them because that rumor had been going around for days, always turning out to be false.
We didn't see any Russians that day so we returned to our headquarters. Along the road more GIs waved and yelled at us: "The war's over! The war's over!" At headquarters the news was confirmed. My driver had a flask of whiskey in the glove compartment and the four of us shook hands and had a drink together. The next day the Russians finally arrived and a meeting took place on the banks of the Enns River. At first our commander, Colonel Sydney C. Wooten of the 5th Infantry Regiment, tried to talk with their commander, but the colonel could not understand Russian and the Russians did not know English. They stood there gesturing with their hands, trying to communicate, to no avail.
The two officers wanted so much to converse, both well aware that this was a historic moment. They had important matters to discuss, such as who would occupy what. The precise lines of the occupation zones of the Soviet and American forces would be decided later at a higher level, but in the meantime these two regimental commanders had to agree on the immediate details of territorial possession. A Russian officer came forward and tried to speak in German. Someone whispered to Colonel Wooten that the 5th Regiment had an artillery forward observer who could speak a little German. So I was summoned and the Russian and I were able to converse in a limited manner, enabling the two commanders to make some sense to each other. Soon a Russian interpreter arrived and the language problem was resolved.
It was a momentous occasion. The Red Army had closed with the Americans in the south. The Germans between us had been squeezed into unconditional surrender. Smiles and handshakes and embraces all around. Songs and vodka. The Russians had women soldiers in their ranks. GIs gave them flowers. Later, Major General Willard G. Wyman, commanding general of the 71st Division, gave a party for the Russians. Long tables were set up in the woods with tablecloths and real dishes. The war was definitely over. Soon the camaraderie would be over, too. In six months the greatest trial in history would start at Nuremberg.CHAPTER 2
THE DEFINING MOMENT
The Nuremberg trials almost never happened. As world War II drew to a close, strong opposition to the trials came from men of power on both sides of the Atlantic. In London, Winston Churchill, the British prime minister, was burning with the suffering of the British people at the hands of Hitler's aerial attacks. Churchill said the Nazis did not deserve a trial; a trial would only give them a chance to spout their Nazi propaganda. Hitler and his gang had forfeited any right to legal procedure. After a summary hearing, they should be taken out in the yard and shot by a firing squad. In Washington, the United States Secretary of the Treasury, Henry Morgenthau, Jr., took the same position. Morgenthau had more power than the other cabinet members. He was a close friend and adviser to President Franklin D. Roosevelt, and the president listened to what he said. Morgenthau not only wanted summary execution of the Nazi leaders; he also had a plan to destroy Germany economically to make sure that it could never rise to power again. Follow Churchill, Morgenthau advised his friend Roosevelt. The people want revenge, not a long drawn-out legal proceeding.
Two camps, bitterly opposed to each other, formed in Washington. On the one side stood Morgenthau, who reportedly had Roosevelt in his pocket. The other side came from the War Department and its adamant Secretary of War, Henry Stimson, who insisted on a trial with due process. In opposing Morgenthau, Stimson believed that to execute the Nazis without trial would sow the seeds of another world war. Stimson was desperately looking for a plan that would impress Roosevelt. That is when Murray Bernays came on the scene. Bernays, relatively unknown at the time, had been a successful New York lawyer but now found himself working in the War Department with the rank of lieutenant colonel and head of the Special Projects branch. He was a specialist in problems involving the treatment of American prisoners in German hands and had worked closely with various projects involving the war in Germany. In early September, Stimson picked Bernays as the logical choice to develop a proposal for a trial that would win Roosevelt over. Meanwhile the Morgenthau plan, with Churchill's support, was gaining strength.
Roosevelt and Churchill planned a meeting in Quebec to discuss what to do with the captured Nazi leaders. Roosevelt invited Henry Morgenthau to be at his side during the meeting. Stimson was not invited. He felt snubbed, and was so upset he fired off a cable to Roosevelt in Quebec warning him that to execute the Nazi leaders without giving them the chance to defend themselves would be similar to what the Nazis were doing to their victims. It would be, he told Roosevelt, a "crime against civilization." On September 15, 1944, the feared decision came down. Roosevelt and Churchill signed a summary of the Morgenthau plan. Roosevelt sided with Churchill. The Quebec meeting was over, there would be no trial.
A feeling of doom descended over the Pentagon and the offices of the War Department. The talk went around Washington. It was settled. The Nazi leaders would be executed as soon as they were captured and identified. But on the very day of the Roosevelt-Churchill agreement in Quebec, Bernays laid a six-page plan for trial of the major Nazi criminals on Stimson's desk. Bernays based his plan on the concept that Hitler's regime was a giant criminal conspiracy to conquer Europe and kill all the Jews on the continent. He branded the Nazi atrocities as war crimes. Everyone who conspired to create the Nazi movement was a war criminal and had to be tried and punished if found guilty. The plan, wrote historian Joseph Persico, was "beautiful in its simplicity."
Due mostly to Stimson's tenacity, Morgenthau's victory at Quebec was short-lived. Stimson refused to give up. He was adamant that as to the agreement to shoot the Nazis without a trial, "there would be nothing of the sort done" so long as he was Secretary of War. Stimson insisted on a private conference with Roosevelt. On October 3, 1944, having reviewed the Bernays memorandum, Stimson sat down with the president to make his plea for trial.
At the time Roosevelt's health was failing. Already an invalid who could not stand or walk by himself, Roosevelt was further worn out by twelve years of work and responsibility as president of the United States. In addition he was in the middle of a campaign for his fourth term with the election only weeks away. Stimson was worried that the president's illness would lead him to make a bad decision on the question of a trial for the Nazi leaders. Stimson's views were that a trial was essential both morally and politically. A trial would not only help establish America's place as a moral leader in the world but would also produce a full record of the Nazi atrocities. Morgenthau's plan to destroy Germany's industrial capacity and turn the country into an agricultural state could only lead to disaster. Stimson brought out a copy of the Quebec agreement and pointed out the folly of it to the president. By the time Stimson finished talking, Roosevelt admitted that he had made a mistake at Quebec and said that he regretted initialing the Morgenthau plan. The result was a fatal blow to the idea of summary execution.
In the next few months the Bernays plan went through many changes. William Chanler, a friend of Stimson and a leading New York lawyer, suggested another part of the framework, adding Hitler's waging of aggressive war as one of the major crimes to be charged. The modified Bernays plan, however, was still riddled with flaws. One was the prospect of convicting hundreds of thousands of Nazi Party members simply by proving their organization was criminal. This lacked due process protection because it did not give the Nazis a chance to defend themselves in court. The central idea of criminal conspiracy, however, held fast. Roosevelt liked it.
Two events in Washington—Stimson's victory in persuading Roosevelt to drop the idea of executing the Nazis without trial, and the modified Bernays plan—were major steps on the road to Nuremberg. But Roosevelt still would not make a definite commitment.
In February 1945 the three Allied leaders—Roosevelt, Stalin and Churchill—met at Yalta, a Ukrainian city on the Black Sea. Victory was imminent. Questions still existed as to whether there should be a trial and if so what kind. By now the list of potential war criminals was growing. All agreed the Nazis were guilty of war crimes and had to be punished, but there was no agreement on how this should be done or what kind of punishment should be meted out. Roosevelt was sick and weary and lacked the strength to argue vigorously. The three Allied leaders left Yalta without having decided these issues. They would never meet again.
Excerpted from The Nuremberg Legacy by Norbert Ehrenfreund. Copyright © 2007 Norbert Ehrenfreund. Excerpted by permission of Palgrave Macmillan.
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