stories 24 - 37
1946 - 1949
NUREMBERG TRIALS AND TRIBULATIONS
In the spring of 1946, I was recruited by the Pentagon to return to Germany to assist in additional war crimes prosecutions at Nuremberg. As soon as I was gainfully employed, I married my childhood sweetheart, Gertrude, who had been waiting patiently for me for many years. My first assignment was to collect evidence in Berlin that would support a dozen planned trials once the proceedings against Nazi Field Marshal Goering and cohorts was over. My new bride joined me in what we expected would be a brief honeymoon. When secret files were discovered that showed the deliberate massacre of over a million Jews and Gypsies by special SS extermination squads, I was made the Chief Prosecutor of “the biggest murder trial in history.” All 22 defendants were convicted, and 13 were sentenced to death. I was 27 years old and it was my first (and last) criminal case. Some of the details of the trials and life in Germany between 1946 and 1948 are here recorded.
how to gain fame in nuremberg
sliding off the alps
preparing for trial
the biggest murder trial in history
mass murderers seek to justify
judgment day for mass murderers
closing down the nuremberg trials
Story 24: Detained for Impersonating an Officer
It was not immediately clear to me where my new official assignment for the War Department would take me. The International Military Tribunal trial in Nuremberg against Goering and leading Nazi defendants had started with Robert Jackson’s opening statement on November 20, 1945. At that time, I was already on my way back to the States, following a slightly unauthorized detour to Switzerland. I knew very little about the IMT trial; but I knew a great deal about the U.S. Army War Crimes Commissions at Dachau where German prisoners of war were being hastily condemned. I had no idea that Col. Telford Taylor, one of Jackson’s chief assistants, was about to be promoted to Brigadier General and begin a dozen proceedings in Nuremberg designed to expose the entire panorama of Nazi criminality. By March 1946, with the IMT trial well under way, Taylor was in Washington trying to hire staff to help with his unprecedented new responsibilities. He called on Mickey Marcus to help with the recruitment.
Marcus was born in Brooklyn and received a free West Point military college education. He had been a boxer and was known as a shrewd and tough cookie—my kind of guy. “Benny,” he said, “you’ve been there, you’ve seen it—you’ve got to go back.” Marcus suggested that I have a word with Taylor.
Of course, I first checked on Taylor’s background. I learned that he was a Harvard Law graduate with a distinguished career in public service. It was no surprise that he had also checked on my credentials. He referred to a letter of recommendation from Harvard Professor Sheldon Glueck, for whom I had served as research assistant, and who was regularly consulted by the War Department as an expert on war crimes. Taylor had also uncovered some of my military records that, understandably, caused him some concern. He noted that my army file indicated that I was occasionally insubordinate. “That is not correct, Sir,” I replied.” I am not occasionally insubordinate. I am usually insubordinate.” I explained that I did not obey orders that I know were manifestly stupid or illegal. I remarked that I had been checking up on him too and I didn’t anticipate that he would give such orders. Taylor tried to conceal a smile. “You come with me,” he said, firmly. By March, 1946, I was on my way to Nuremberg.
The official tailor in the Pentagon outfitted me with my new uniform that the War Department required be worn by all Americans serving in occupied Germany. It was the standard U.S. Army officers garb with green gabardine jacket and pink trousers. Of course, it had to be shortened to fit me. Four small golden stripes were sewn on the sleeve, as required, to show that I had served two years in combat. Instead of metal bars on the shoulders to indicate rank, the uniforms for Taylor’s staff had a cloth patch sewn on the arm to identify them as members of OCCWC—the new Office of the Chief of Counsel for War Crimes. No one in Germany had ever seen such an insignia.
About two dozen new OCCWC recruits set sail from New York harbor with tearful wives and girlfriends waving at the pier. The journey on the U.S. troop transport was uneventful. The OCCWC rookies who were not busy throwing up became fast friends starting on a new and challenging adventure. Once disembarked, we all proceeded by train from Bremerhaven to our destination.
Nuremberg had been a picturesque city. Courtesy of the allied air forces, it had been converted into a pile of rubble. Part of the old stone courthouse had been repaired for use by the International Military Tribunal where Jackson and Goering would soon be sparring. The Grand Hotel had been partially reconstructed for use by transient officers. It was there that we were lodged to await further instructions.
Not one to sit around doing nothing, I soon decided to explore what was left of the town. Dressed in my new uniform, I hopped on a rickety street car, and crossed the bombed-out city to the suburb of Fuerth and began my walking tour. I had not gone far before being halted by a Military Police jeep occupied by a Lieutenant and driver. “Let me see your pass!” demanded the officer. I explained that I had none. He eyed me suspiciously. Then came the order, “Get in, you’re under arrest!” I was happy to oblige since I was tired of walking and I anticipated some merriment. At M.P. Headquarters, a Captain told me that I was being charged with the crime of impersonating an officer. That was more than ridiculous, it was an insult! I suggested, firmly but gently, that the Captain phone the Nuremberg area commander, who had welcomed the group on our arrival, and inform him that an arrest had been made and Benny Ferencz was in custody. He did so with some pride. Almost immediately, the dazed Captain began to sputter frantically. All I could hear was, “Yes, Sir; yes, Sir; yes, Sir; sorry, Sir. Sorry, Sir.” The embarrassed Captain personally escorted me back to the hotel, apologizing all the way. Some people, when given power, seem to forget about the presumption of innocence. In the army, the higher the rank, the stronger is the presumption of guilt.
Story 25: How to Gain Fame in Nuremburg
After a few days of temporary residence in the Grand Hotel, about half a dozen OCCWC lawyers were moved into what was euphemistically termed “Bachelor’s Quarters.” We were lodged in a nice little villa complete with housekeeper. The house had been “requisitioned” by the U.S. Army, which is a polite way of saying that the former owners had been kicked out. Krieg ist Krieg! War is hell! The house was located in Fuerth about ten miles from the Nuremberg court and would have been ideal except for the fact that we were not supplied with food. We also lacked any means of transportation to get back to the hotel, which was the only place that meals might be had. These minor technicalities of food and transport had apparently escaped the minds of Congressional budget planners. The other five lawyers, noting that I was the only one accustomed to dealing with supply problems, elected me to find a solution. I accepted the challenge thrust upon me with such confidence by my so-called friends.
I first phoned the motor pool and ordered that a jeep be sent immediately to rescue six members of the OCCWC. The Corporal in charge explained apologetically that he had no authority to dispatch vehicles for such purposes. After I threatened that the death through starvation of General Taylor’s staff would be on his head, he consented to risk an exception. I was sworn to secrecy. When a jeep and driver arrived, I directed that he take me to the quartermaster depot. There I was greeted by a friendly sergeant who told me his name and where he was from. I told him that I too had been a sergeant and we got rather friendly as he told me about his life back in Kalamzoo, or wherever it was, and I explained the problem back in Fuerth. Nothing in the army gets done without filling out lots of forms in many copies. Most of them are incomprehensible. My new “friend,” I shall call him Bill, produced the forms needed to authorize distribution of food to a new mess hall. One of the questions asked was the number of persons to be served. I, being an honest man, replied that it might vary but six were there now. “Sorry, Buddy” said my ex-friend Bill, handing me the uncompleted forms, “There has to be a minimum of twenty-five. I can’t help you.” I thanked him for his effort. After some further casual conversation, I elicited that Bill would be going off duty in half an hour to be replaced by a Corporal named Joe, from Texas. I thanked Bill again, wished him well and departed.
After driving around for half an hour, I returned to greet Corporal Joe with a big Hello, telling him that I had heard about him from my old pal, Sergeant Bill, who had to go off duty before completing the forms I held in my hand. I said I was confident that Joe could handle it. He proudly agreed. A little flattery can go a long way, especially with a G.I. from Texas. When he came to the question about how many men were to be fed, I replied, with my usual honesty: “Well it’s a new mess and the number varies. Let’s take the minimum of twenty-five and if I need more, I’ll come back and talk to Bill.” No problem. I was now assured of sufficient surpluses to be able to trade with nearby farmers, offering real American canned goods in exchange for fresh fruits, vegetables, and eggs, which in Germany in the spring of 1946, was a luxury. My mother often told me that a varied diet of fresh foods is essential to health, and I was willing to sacrifice our surplus rations to improve the health of my endangered housemates.
Another minor inconvenience had to be overcome. My dear friend Joe from Texas apologized that the beer ration would have to be picked up directly from the local Nuremberg brewery. When I assured him that I would take care of it, he agreed that I was doing him a great favor. My need for regular transportation became more acute than ever. I headed for the nearest army motor pool. I explained to the Sergeant on duty that OCCWC was on an important mission authorized by the President of the United States and we could not function without additional transport. The Sergeant did not come from Texas. He pointed out bluntly that the table of organization contained no vehicles for civilians employed by OCCWC. Period. I then spotted a German command car parked at the back of the motor pool. It looked like an oversized jeep that could hold about nine passengers or enough food for an army of twenty-five. When I inquired to whom that vehicle was assigned, I was informed that it was captured booty and couldn’t be assigned to any U.S. soldier. I noted that I was a civilian and I would be willing to take the heap off his hands and forgo other demands. With some relief, he agreed. I thanked him for his ingenuity and drove off in my new Nazi command car.
I still had the little problem of how to handle the beer ration that had just been approved by my dear friend Joe of Texas. I don’t recall precisely how many barrels of beer were authorized for consumption by twenty-five soldiers, but if that amount were ever consumed by only six civilians, they would soon realize why an army kitchen is called a mess. Beer, along with most foodstuffs, was strictly rationed. My authorization for beer had to be presented to the Nuremberg brewery that had to account for all distributions. It was an enormous plant, with heavy horses pulling heavy loads of heavy beer being unloaded by heavy men. There was no way I could dispose of so much beer without help. I learned that the brewery wagons delivered its barrels to all the local Beer Gardens. The bars would usually serve fresh draft beer but they also had glass bottles with attached snap-on-rubber caps for those who preferred to have their drinks at home. I located the Bierstube closest to our quarters on the Lindenstrasse and made a deal with the owner. I would instruct the brewery to drop off my kegs at the local bar. In turn, the bartender would put the beer into bottles that would be kept on ice pending my pickup. In appreciation, he could keep half for himself. It was an offer no respectable bartender could refuse.
In the meantime, work at the OCCWC offices in the courthouse consisted of planning and preparing for the subsequent trials. General Taylor, with the help of some knowledgeable friends in Washington, had outlined a number of potential trials against German doctors who performed medical experiments, industrialists, bankers, lawyers, generals, diplomats, and others who had made it possible for Hitler’s machine to carry on their murderous activities. Most of the new staff had neither experience nor knowledge of such matters. The staff could spend time studying documents that had been assembled by Jackson’s staff, meeting in conferences, or lounging in the courtroom listening to the IMT trial that, after a few days, was getting boring. Fraternization with Germans was prohibited, but enforcement was impossible.
The monotony was broken by lots of partying within the Nuremberg colony. Jackson’s staff and Taylor’s staff knew that we had won the war, and that alone would be cause for rejoicing. Hard liquor could be had for fifty cents a bottle at the Post Exchange. But there never seemed to be enough beer to satisfy the thirst of the victors. The Benny Beer Distribution System was ready to meet any emergency. If any of my friends, or friends of my friends, or friends of friends of my friends urgently needed a few cases of beer, all they had to do was phone me. Once I was convinced that it was in the interest of my country to meet the demand, I phoned my partner at the local bistro and authorized him to hand over a set number of cases of beer to the applicant who would identify himself by the code words, “ Benny sent me!” This sharing of the wealth, so to speak, also helped prevent me from being surrounded by a bunch of drunken lawyers. The system worked reasonably well. Soon I had a great reputation. My initial fame came not for my skill as a lawyer but for my mysterious ability to provide unlimited quantities of free beer to the legal staff and their friends.
Story 26: Life in Berlin 1946
I shipped out to Germany without my dear spouse. At the time, except for a few of the highest-ranking people, no wives were allowed to accompany their husbands overseas. As soon as I sailed, Gertrude applied for a job with the War Department to work in Nuremberg. She was promptly hired as a secretary, but as soon as it was discovered that her husband was stationed in Germany, her employment was cancelled. The honeymoon would have to wait. My wife remained stranded in New York for several months while I was working very hard in the rubble of Berlin searching for evidence of war crimes. The Army bureaucrats were conquered by a stronger army—no force can stop outraged American women eager to rejoin their husbands. In due course, Army regulations changed. Dependents, including women and children, could finally be reunited with loved ones serving their country overseas.
My wife was on the first army transport of wives scheduled to sail from New York to Germany. Before the ship could leave port, it broke down. Departure was delayed for a week of repairs. No sooner had they set out to sea than fire broke out on board. Despite such minor incidents and ailments, the ship managed to reach harbor in September 1946, with its cargo of frustrated females. Unable to stop wives from reaching their husbands, the army counterattacked with its usual brilliance. They issued a new regulation—husbands would not be allowed to reach their wives! It was announced to all concerned that under no circumstances would husbands be allowed to come near the ship when it docked. They were ordered to wait patiently until the missing spouse was safely delivered to her husband in the designated, approved new living quarters somewhere in Germany. I considered such restraints as an unlawful assault on the sanctity of marriage. Duty called.
It was a real emergency. No sooner had my wife boarded ship than I was ordered to leave Nuremberg to set up the OCCWC office in Berlin. There was no way to communicate to my wife that I had been transferred. My plan of action was simple. With my usual respect for military authority, I obtained Berlin Military Command orders for me to proceed to Bremerhaven with authorization to arrest any war crimes suspects. I had no difficulty driving onto the dock. Military Police had set up a barrier and checkpoint. I explained my mission and waited patiently while a special security pass was prepared. I was asked my name, office, purpose, and the name of the suspect to be removed from the ship. When the name of the passenger happened to coincide with my own, the clerk raised an eyebrow. I said it was a secret operation and it was OK. The pass was issued. The ship was tied to the pier as I sauntered toward the gangplank. Suddenly a shout went out from a crowd of eager ladies leaning over the rail, “It’s Benny! It’s Benny!” I smiled and waived. They cheered.
I found out later that my dear wife had assured the 40 companions who shared her compartment five decks below sea-level, that her husband Benny would be at the dock. Her shipmates were waiting anxiously to see if she was right. I galloped up the gangplank amid hurrahs and slaps and hugs from all the ladies. Gertrude was rushing to meet me at the gangway. It was there that we embraced, amid laughter, tears, and kisses—until spotted in amorous embrace by the Captain of the ship. “Who let that man on board?” he bellowed. I presented my Berlin papers and the MP pass. “That’s not worth the paper it’s written on,” he screamed. “Get that man off my ship!” With two glowering MP giants hovering over me, I went quietly, as I was always wont to do under such circumstances. I did manage to warn my wife not to go to Nuremberg, and that I would meet her at the Bahnhof in Berlin. As I stood on the pier to wave goodbye to all the ladies, they bombarded me with slips of paper giving me names, addresses, or phone numbers of their husbands. I promised to contact them all, and I did. At least part of my mission was accomplished.
As for Gertrude, all I could do was return to Berlin and hope for the best. The Berlin Command had prepared a special celebration for the first arrival of wives. The station was decorated with American flags and every soldier awaiting his wife or family was assigned a car and driver to help the new arrivals. A military band was poised to break into welcoming music as soon as the train pulled into the station. As Military Command failed to provide me with the benefits given to all the others, I was assured, after they had checked the manifest, that my wife would not be on the train. Despite my protests, they had confirmed, with true military precision, that she and her luggage were safely en route to Nuremberg. I stood on the platform sadly as the train rolled in slowly and the band blared loudly. My head kept turning like a spectator at a tennis match as the windows of each car came and drifted by. Suddenly, to my surprise and delight, there was Gertrude standing in the train’s doorway, shouting, and waving furiously. I took her home to our little villa in Dahlem. The luggage was delivered the next day. Finally, our honeymoon began.
It was an unreal world. On the train en route from Bremerhaven to Berlin, Gertrude saw the devastation and destruction and had cried all the way. She knew that the Germans caused the war, but her sympathy for the innocent civilian victims moved her deeply. Russian troops that had conquered Berlin had fought fiercely for every house. In the horrors of war, some soldiers took rape as a reward for conquest. German currency, the Reichsmark, was worthless. Food for Germans was rationed, and in small supply. American cigarettes became the currency of choice, along with American soap and coffee. The black market flourished. The bomb-scarred Opera House in the Soviet Sector was quickly restored, and singers and dancers from the Bolshoi came to Berlin to show that Russian artists had more “Kultur” to offer than the murderous Nazis. Gertrude and I spent many happy evenings watching splendid Soviet opera and ballet that we could never have afforded in New York. The audience included high-ranking French, British, Soviet, and American officers. Some tickets were also reserved for Germans, who could be seen in the cold hall during intermission munching pieces of bread. They all recognized that it’s bad to lose a war; nations should consider the consequences before they start one.
The assessment of German responsibility posed difficult legal and moral problems. After Chief U.S. Prosecutor Jackson and the Prosecutors for the British, French, and Soviet Union had made their final arguments before the International Military Tribunal, most of their staff were eagerly heading for home. General Telford Taylor, as the newly designated Chief of Counsel for War Crimes, was now swinging into high gear. His assignment was to indict the supporting industrialists, politicians, and others who enabled the Nazi leaders to commit massive international crimes. His fresh crew of inexperienced lawyers would have to prove the violation of existing international laws. Time was of the essence. My job, as organizer and Chief of the Berlin Branch, was to scour the official German records in the Nazi capital to supplement evidence previously assembled in Paris and Frankfurt. It kept me and the supporting staff of researches and investigators hopping. My dear wife had been led to believe that our sojourn in Germany would only be a vacation. One learns often in life that sometimes compromises are necessary—even when one expects an overdue honeymoon.
Our staff needed all the help we could get. I kept tight watch on the work produced by each employee, and maintained close liaison with the lawyers in Nuremberg. Taylor was pushing the trials forward as desired by the Pentagon. The Berlin office had to deduce what evidence might be persuasive. Incriminating documents had to be found and rushed to eager attorneys preparing the “Subsequent Proceedings.” When one of our researchers quit, I managed to replace her with another woman who had studied German, and who was diligent and reliable and could fulfill a variety of essential tasks. Besides, she was pretty, and was also my wife. For some strange reason however, Gertrude seemed to resent having to ride to work in a cold open truck with other staff members while I was driven in a chauffeured limousine. She was disinclined to recognize that it might look bad if the boss showed favoritism to one staff member just because she happened to be his spouse. I learned that the army slogan “Rank has its privilege” may work in the military, but it’s not particularly suitable for domestic tranquility. My wife was a firm believer in equal justice for all.
From time to time, my dear Gertrude would interrupt my hectic schedule to remind me gently that we were supposed to be on a honeymoon. I decided that we should take an official vacation from the rigors of the cold Berlin winds of 1946, and we set out to see the world. Fortunately, we were able to benefit from many guided tours arranged for U.S. troops stationed in Germany. Accompanied by a busload of American army wives and schoolteachers, we visited the beautiful recreational centers in Garmish and Berchtesgaden, and took a tour through Switzerland’s most scenic cities. In Milan, we stopped to visit its famous opera house, and photographed the gas station where, when Italy was liberated, the Italian Dictator Mussolini had been left hanging from the rafters by his heels. The Resistance fighters also hanged his mistress at his side. I guess it added a certain romantic touch.
We looked forward to attending midnight mass on Christmas Eve in the Vatican in 1946. It was nightfall when our traveling group was unloaded at the Excelsior Hotel in Rome where, presumably, the Army had made reservations. The concierge expressed shock and regret that all the rooms were already taken. There were about 50 helpless women sitting on their luggage and weeping. It took me quite some time and effort to finally arrange lodging for all of them and for ourselves. We landed in a fleabag hotel with a solitary light bulb hanging over the bed. Since we were exhausted by the ordeal, and it was only 10 PM, we decided to rest before heading for the holy midnight celebration. We did not shut off the light and we kept our clothes on since there was no heat. Soon, I was awakened by my wife’s anguished cry, “It’s 2 A.M. Oh, my God!” That was as close as we came to prayer that night. We had missed the midnight mass. There was nothing left to do but go to sleep and blame it on Divine providence. The Pope is a kindly man, and I hope we will be forgiven. It took us a few days back in Berlin to recover from the stress of our recreational joy.
Story 27: The Case of the Missing Maybach
The car assigned to me for official use was a beautiful convertable Maybach limousine, of Rolls Royce caliber, cherished by Hitler’s top henchmen. I mounted a small American flag on each front fender. When I settled down in the plush leather passenger seat, the top of my head was barely visible. When the car suddenly disappeared New Year’s Eve, my beloved Maybach got me into hot water.
An accomplice, Eugene Klein, of the OCCWC staff, was a Hungarian refugee who had served in the U.S. Air Corps and he knew his way around. He managed to get tickets for a gala 1946 New Years Eve celebration that would take place at Berlin’s leading cabaret, the Cafe Wien on the Kurfurstendam. Of course, it was illegal at that time for Americans to be caught frolicking in German bars. However, this night, like Passover, was different from all other nights. We had a distinguished visitor from Nuremberg, Patty Bull, who was writing something about the Nuremberg trials and whose father happened to be Chairman of the Joint Chiefs of Staff at the Pentagon. I felt it my patriotic duty to be hospitable. I invited Lt. Col. Bill Wuest to escort our distinguished guest in his staff car and meet us at the cafe. Gene Klein, my wife, and I came along in my impressive Maybach, driven by my German chauffeur, an elderly gent named Barrs, who always wore the black cap from his old uniform. When we all arrived at the raucous cafe, the champagne was waiting on our reserved table.
Of course, I knew that official cars were to be used only for official purposes and German drivers were prohibited from leaving their vehicles unattended. But it was freezing cold outside, and being a man of tender heart, I invited old Barrs to come in to warm himself and have a beer. The elaborate cabaret festivities had hardly begun when Barrs came rushing toward me in a panic. The Maybach was gone! He had parked it carefully on the sidewalk right in front of the entrance, practically resting on the cafe door, and when he went out to check on it, it had disappeared. We were in the British sector, but I suspected that Russian agents had snatched the conspicuous vehicle. Lt. Col. Wuest kept moaning to himself, “My commission is at stake. My commission is at stake.” I told him to drop me off at the nearest British MP station and I would search for my missing Maybach. He was ordered to take all the other guests back home with instructions to forget that they had ever left their hearth that night. He did as he was told. The British MPs raced with me all around the Soviet sector border but my beloved car was nowhere to be found. The MPs expressed regret and took me home.
The next morning I received a phone call from the Military Police in the American sector. My Maybach had been found, and was now located in the MP vehicle compound, but the car was no longer in useable condition. And my driver was in jail. Have a nice day! The Maybach had been found exactly where my driver had left it. It appeared that someone had come from the café, driven the car somewhere, and then returned it. According to the police, the thief’s poor driving skills had stripped the gears. Since the thief had been able to bring the vehicle back to the scene of the crime, my investigative instincts told me that the MPs wrecked it when getting it to the yard. I offered to have the car repaired—which I could have done for a few cartons of cigarettes distributed at the factory in East Germany—but the offer was refused. The car was well known as a gas-guzzler that the motor pool was eager to abandon.
A few days went by before I could obtain the release of my driver by pulling rank and claiming “superior orders” as his defense—without acknowledging that I was the superior who gave the order. It was not too long thereafter when a young Lieutenant appeared at my office and informed me sheepishly that charges had been filed against me. I, of all people, was accused, among other things, of using a military vehicle for an unauthorized purpose, illegally frequenting German premises that were off limits, and causing damage to government property valued at several thousand dollars that I was expected to repay. As required, the Lieutenant asked whether I was familiar with the Articles of War. I said I was. He pulled out a fat folder that seemed crammed with affidavits from MPs, mechanics at the motor pool, witnesses at Cafe Wien, and others. He asked me to sign a statement admitting the facts. I refused, noting that all of the charges were completely unfounded. I reminded him that it was my right under the Articles to remain silent. However, if he would leave his file with me, I would study the charges carefully and give him a detailed written reply. I didn’t say when. He thanked me, handed me his entire folder, and departed.
I studied the documents carefully. What struck me most was the fact that the file had eight copies of everything. From my days as a clerk in the artillery and with the Judge Advocates, I knew that every such file had to have eight copies; no less and no more. The friendly Lieutenant had left his entire case in my hands. I really liked that fellow. Since the file was too thick to fit in the shallow center drawer of my desk, I carefully deposited the entire folder for safekeeping in the spacious wastepaper basket. About ten days went by before I received a call from my Lieutenant friend. I apologized for being too busy trying to get evidence against major war criminals that I just couldn’t be diverted by unjustified trivia. I promised to get to it as soon as I could. Being a very honest man, I still didn’t say when. About two weeks later when the Lieutenant called again, I said I could no longer find the file and I hoped he had received it back in the mail. The poor fellow was beginning to panic. He said he could not possibly duplicate the affidavits of all of the witnesses since many were no longer in Berlin. I expressed my regrets and best wishes. In pursuing criminals, one must be very cautious. I did not learn of the conclusion of the case until a later date, but that’s another story.
Story 28: Kidnapping Germany’s Greatest Surgeon
January 1947 was freezing cold in Berlin. Coal was rationed for everyone, and even the Americans suffered. Early one snowy Sunday morning, I was awakened by a phone call from the U.S. Consul General in Bern, Switzerland. He reported that a member of my staff, Alfred Booth, had fallen ill while on vacation and was in a Swiss hospital in Zurich dying of cancer. The only one who could possibly save him, according to the Swiss physicians, was Dr. Ferdinand Sauerbruch, Germany’s most famous surgeon. Frankly, I didn’t know Sauerbruch from sauerkraut but I did know Alfred Booth. He was an intellectual who had been forced to flee Germany as a political opponent of the Nazis. He had found work as a bricklayer in New York and was glad when he was able to return to Germany after the war to help prosecute Nazi industrialists. He was an excellent researcher and I valued his friendship. I would do whatever I could to try to save his life.
All I needed was to locate Sauerbruch, wherever he was; persuade him to undertake the operation; get permission to move the prominent surgeon, who was a war crimes suspect, out of East Germany; transport him as quickly as possible from his present location to the hospital in Switzerland where Alfred Booth lay dying; arrange the fastest transport humanly possible from Berlin to Switzerland; get the Swiss government to permit Sauerbruch to enter; transport the physician to the patient; have the Swiss hospital permit the German doctor to operate on the dying American; get him safely back to Berlin; and then hope for the best. The last part was easy. The rest was impossible. So I grabbed the phone and went to work. No problem.
The first mission, as I learned in the artillery, was to locate the target. I phoned the telephone operator for information. In my best broken German, I flashed the name General Taylor, and explained that it was a matter of life or death. I had to locate Prof. Dr. Ferdinand Sauerbruch immediately. Within a minute, I had the professor’s wife on the line. Yes, she knew where her husband was. He was operating on someone in Lichterfelder. Where’s Lichterfelder? About 20 miles outside of Berlin—in the Russian zone. I told her to get him on the phone and tell him to get ready to leave for Switzerland immediately for an emergency operation on an important American. Then, to make sure she would do as told, I explained that I would try to arrange for her to accompany her husband on the trip. That did it. No German citizens were allowed to leave the country without consent from the quadripartite Kommandatura, which would never have agreed. The prospect of a visit to Switzerland suddenly turned Frau Professor Dr. Sauerbruch from an enemy to a friend. A carrot can have more power than a stick—especially if it’s accompanied by a good Swiss meal.
The next step was to call up the reserves. I got my aide, Eugene Klein, on the phone, told him it was an emergency, and ordered him to get three military sedans from our motor pool and show up at my home immediately. I then phoned Lt. Col. Wuest, my staff army liaison man, who was just returning from church. I explained the situation briefly and told him I needed official orders authorizing a German doctor named Sauerbruch and his nurse to be transported to Switzerland on a U.S. rescue mission. “Why does everything have to happen on Sunday?” he moaned. “Do it now!” I replied. Illness knows no Sabbath. He was to report back and stand by for further orders. Rail travel through several borders would be too slow and too late. I needed an airplane. I phoned Templehof airport which was under U.S. military control. I reached the person in charge. It turned out to be a female sergeant on duty on Sunday. She confirmed that there was an empty plane on the tarmac but she had no authority to do anything, and the officer-in-charge was nowhere be found. I explained the situation, stressed that I was acting for General Taylor and we needed a plane immediately to save an American in Switzerland. “His life is in your hands.” I said. I assured her that General Taylor would vouch for her. “Count me in!” she said. She promised to find a pilot
I still needed permission from the Swiss and some way to get Sauerbruch out of the Russian zone. Snow was on the ground and more was coming down. I phoned the Swiss Consulate in Berlin and managed to get the home phone of the Consul. His wife told me he was skiing in Berlin’s Grunewald park. Gene Klein pulled up with his fleet of three sedans. I briefed him and instructed him to find the Consul in the woods and bring him in. Then I called back to Mrs. Sauerbruch to see if she had been able to contact her famous husband. She confirmed that she had spoken to him and he was eager to accept the assignment—on condition, of course, that she could go with him. There was one slight obstacle, however. The road between Lichterfelder and Berlin was blocked by snow. There appeared to be no way we could get the doctor out.
I contacted the MPs and explained the situation to the sergeant in charge. He responded immediately. He would get a fleet of snowplows out on the road to rescue the stranded surgeon. I phoned back to Mrs. Sauerbruch. Meanwhile, her husband had phoned saying he was hitching a ride on a Russian army truck that would get him back to his hospital—which was in the Russian sector. The airport reported that because of foul weather, they might need a “command pilot” qualified to fly in a snowstorm. Lt. Col. Wuest reported that he had obtained the needed military orders. I told him to proceed to the airport. Klein called to say that he had located the Consul in the woods but no visa could be issued without the official seal so they were heading for the Consulate to pick it up. I asked him to find one of our Swiss staff members so that he would be available to help when the plane landed in Zurich. He was also to pick up Mrs. Sauerbruch on the way. We would all rendezvous at Sauerbruch’s hospital, known as the Charite, in East Berlin. I hopped into my waiting sedan and raced for our agreed assembly point.
The scene at the hospital was memorable. The doctor had just arrived, still dressed in his white medical gown. The Swiss Consul was carrying his skis in one hand and an official seal in the other. Mrs. Sauerbruch, who remembered to bring their passports with the big swastika on the cover, was busy stuffing clothes into a suitcase. A crowd of German nurses swarmed around their idol in excitement that he was going to get out of Berlin. Some cried and some cheered as I gave the order, “Let’s roll!” Our convoy, with the Stars and Stripes flying from my front fender, sped past the Russian sentries at the gate as they stood at attention and saluted. We were on the way to the U.S. airport at Templehof.
The snow was falling. The pilot was warming up the engines. I hugged the sergeant who had authorized the flight. The passengers and luggage were put on board. The flight captain asked to see the orders. Lt. Col. Wuest handed them to me. There it was: The official U.S. ARMY BERLIN HQ letterhead over a TRAVEL AUTHORIZATION. The typed in portion said that a German national named Sauerbruch and his wife were authorized to proceed by rail to Frankfurt! I thought I was going to die. I had requested flight authorization to Switzerland. Wuest explained apologetically that it was the best he could do. I folded the paper in half so that only the Letterhead and the TRAVEL AUTHORIZATION was visible. I passed it quickly under the pilot’s nose and then stuffed it into his pocket saying the snow was getting heavier, night was falling, and there was no time for delay. He agreed, and the plane took off.
It would be nice to have a happy ending to this story. But alas, life isn’t always so accommodating. Soon after the operation, Booth passed away. Sauerbruch said he had come too late. But Mr. and Mrs. Sauerbruch remained in the fanciest hotel in Zurich and lived it up for a week. If I didn’t get them back to Berlin soon, there would be a major diplomatic incident. As far as I was concerned, the Sauerbruch’s could come back by mule train. But that and rail travel was also out of the question when the French refused to grant a suspected war criminal a laissez-passer through their zone. If I didn’t get them back to Berlin soon, there might be more onerous unforeseen consequences. As a good American citizen, I did not wish to see my Government embroiled in any imbroglios—particularly if I would probably be the first victim. I therefore personally paid for the private airline tickets to bring the Sauerbruchs from Zurich to Frankfurt, and then I arranged for them to be taken by military aircraft back to Berlin.
Professor Dr. Sauerbruch was so grateful that he promptly sent a letter of appreciation to the Commanding General of the Berlin Command. He expressed regret that he had not been able to save the life of Alfred Booth who worked for the OCCWC, and he would therefore waive his normal fee for the surgery. He would however appreciate it if the U.S. Army, that had been so accommodating by providing him with a private military plane, would kindly pay his hotel bill, including the cost of several silk shirts, which amounted to about $1000. The General’s response, when he phoned me, was, “What the (expletive) is this about?” I explained that there must be some mistake and he was not to worry about it. Since it involved an OCCWC staff member, I would take care of everything. I already had pending charges for a missing Maybach limo. I didn’t need any more charges about a misappropriated airplane and a war crimes suspect snatched from under the Russians’ noses in violation of Kommandatura decrees. What next?
Even in times of adversity and sorrow, one can find a happy ending. After its passengers had been deposited in Zurich, the army plane was ordered to depart. They were back in Berlin before they were missed. A brief story in the Army paper Stars and Stripes referred to a mercy mission by the Air Force; I hoped the Air Force command hadn’t read it. Mrs. Booth, who was in New York while these events took place, was grateful for what we had tried to do to save her husband. She insisted on paying the Sauerbruch’s hotel bill, and even reimbursed me for their flight tickets back to Frankfurt. The Commanding General heard no more about the incident, and therefore neither did I. It was deliberately forgotten. What remained unforgettable for me was the fact that when a human life was at stake, everyone I approached, from the sergeant at Templehof who took it upon herself to release an army plane, to the MPs who sent snowplows out to rescue a stranded German doctor, to the pilot who was ready to fly into a storm, to the phone operators, and the staff and others, all were prepared to do whatever they could in an effort to save one human life. This true reflection of the finest in human character is worth remembering.
Story 29: Sliding Off the Alps
In the early postwar years in battered Germany, private transportation was practically nonexistent. During the periods that the Court was in recess, it was possible for Gertrude and I to take some time off so that I could fulfill my promise of a honeymoon vacation. It was more than a subtle reminder when, even though she could not yet drive, she acquired for us a new, practically unused, Mercedes sedan of about 1938 vintage. That was a very good year. I learned that the vehicle had been found in a Berlin garage where it had been stored on blocks during the war years when gas was unobtainable. It had been “liberated” by a G.I. who, being the usual honest American, paid the Nazi owner with a pair of slightly used paratrooper boots. The U.S. soldier then resold the war booty to my wife for $1,400 cash. I suspect he was raised in Hell’s Kitchen in New York. For our vacations, everything under communist control was “Off Limits,” but we did a pretty good job of seeing the rest of Europe.
One of our early goals was to pay our respects to the memory of those who had been killed in combat. We visited U.S. Military cemeteries whenever we could. In Belgium we paused at the grave of General George Patton, who had been my commander during the race from the beaches of Normandy across the Rhine on to the final battle at Bastogne. We visited many war monuments during our travels, but always came away wondering why we didn’t put a sign at every gate or memorial asking, “Was This Really Necessary?”
In 1947, as winter approached, we drove our faithful Mercedes to various army resorts around Bavaria where lodging cost one dollar per day. We could afford that. Private accommodations in Czechoslovakia, Switzerland, and Italy cost a little more. The dollar was king. We checked out of our hotel in Merano, Italy, heading toward Munich in Germany. There was one little difficulty. The Italian Alps were between us and our destination, and the Brenner pass through the mountain was closed. Now, I am not a man to be daunted by a little obstacle like the Alps. My military map clearly showed a very thin red line leading from where we were to where we wanted to go. The topography was not indicated. Demonstrating my true grit, determination and leadership qualities, I declared, “No problem!” We drove off merrily into the wild blue yonder.
The view was magnificent as we headed for the village of San Leonardo, the last Italian town marked on the map. We stopped to take photographs of the dense forests that covered the mountains. As we continued our climb, the road kept getting narrower. We began to encounter foresters who shouted at us, “Retournato! Retournato!” which I took to be cowardly Italian remonstrances that underestimated the power of the American spirit to stay the course. We pushed our trusted Mercedes onward, despite Gertrude’s repeated pleas to turn back. Soon, patches of snow began to appear on the ever-narrowing path. We had almost reached the pinnacle when the car suddenly skidded toward the edge of the road. A few more inches, and it would have gone over the side; it might have been found years later in the forests 10,000 feet below—if we were lucky. Fortunately, the vehicle became mired in the snow.
Gertrude, peering down into the abyss, was speechless and trembling, with tears in her eyes. There was no way that we could make the top of the ridge. The weather was getting colder. The nearest town was at least 20 miles behind us. We would probably freeze if we tried to walk back. No person and no lights were in sight. Our only hope was to get the car out of the snow and get back to town.
In the darkness, Gertrude slipped out of the car to act as my guide. I put the car in reverse and carefully edged it away from the cliff, fearing all the while that it might slide over the side. Just as it returned to the safety of the roadway, it skidded further into a ditch alongside the mountain wall. My efforts to rock the car out of its trap were in vain.
I concluded that it would take a magician to get us out. As a teenager I had studied magic and was familiar with the tricks a young Hungarian Jewish boy named Harry Weiss from Budapest. He went by the name of Houdini, and gained world renown with his ability to escape from any locked box. The trick was performed by concealing a small jack on his person and using the jack to press the nails out of the side of the box to make his escape. I recalled that the Mercedes had a small jack that could lift the car to repair flat tires. I slid under the car and placed one side of the jack against the mountain and the other against the hubcap. By slithering under the car from front to back for about two hours, jacking it inch by inch, I was able to move the car back on to the road. Hocus Pocus!
The rest was relatively easy. After some time, I was able to swing the car around so that we were facing forward rather than rolling backward. In due course, we reached the foot of the mountain and were able to limp back to the hotel in Merano that we had left about 12 hours earlier. The room clerk was frightened to see this apparition covered with mud from head to toe asking if he could get his room back. We got a good night’s sleep, had the car repaired, and then continued our journey, via the Gotthard pass, that was a much longer but a much safer ride. We were glad to get back home alive. We had learned an important lesson. Even at the risk of seeming irresolute or lacking in leadership, if you find that you are on the wrong road, it is better to turn back. A persistent driver that ignores the truth and continues doggedly in the wrong direction may take you over the cliff..
Story 30: Unplanned Parachuting Into Berlin
Please allow me to jump ahead of my story to tell you a story about jumping. In March 1948, while waiting for the Judges to decide one of the cases, myself, General Taylor, his Deputy James McHaney, and our wives, had a rather memorable experience. We all faced sudden death together. We were flying from Berlin back to Nuremberg on an old C-47 propeller aircraft with two engines. Army regulations prescribed that all passengers be strapped in a harness with two large rings in the front. That was where a parachute could be attached in an emergency. We were also required to sign a waiver of all possible claims. No one paid much attention to such bureaucratic nonsense; not even Mary Taylor, who was five months pregnant. When we assembled for the flight from Berlin to Nuremberg, the weather was miserable—it was cold and windy and raining hard. Visibility was poor. No civilian aircraft would have been allowed to fly. My dear wife, Gertrude, told me that she had dreamt of dead pigeons the night before. I jokingly warned the pilot, a cheerful young Lieutenant, Tom Squires of Texas, “Be careful, the life you save may be my own.”
With help from a crew member, we climbed into our harnesses. When my wife complained that the straps were too loose, I replied, in my usual jocular manner, that she probably wouldn’t fall out. I am sometimes noted for my bad jokes. We had been aloft for only a few minutes Taylor noticed that the right engine was spewing oil. Within moments, a stream of smoke poured along the fuselage and the engine began to backfire, rocking the plane with its explosions. The pilot immediately shut down the engine. The old workhorse was supposed to fly on one engine—it didn’t.
The drag from the dead engine (if I may use the term) was pulling us down. The aircraft dropped from about 6,500 feet to about 2,500 feet and was falling fast. There was danger of fire or explosion or that the second engine would stall. The navigator, Captain James Moore of New York, quickly hooked a parachute pack to the harness of each passenger. He reminded us to count to ten before pulling the ripcord to avoid being impaled on a wing. Suddenly the order came, “Everybody out!” Below us were the ruins of the city of Berlin.
Gertrude took her official army identification card from her purse and put it into her pocket so that her body could be identified. I grabbed her hand and we rushed to the rear. Crew members were struggling to get the door open. The door was supposed to drop off when a lever was pulled. It didn’t. The wind pressure kept pushing the door back. I managed to get my left knee outside. The rest of me was still inside. Suddenly the door opened wider and I fell out into the clouds. I could see the plane continuing downward out of sight. I had no idea when I would hit the ground, but I felt it might not be advisable for me to count too slowly. I preferred a hasty, “One, two, ten!” and yanked the ripcord.
A large billowing parachute exploded above me as I swayed wildly with the wind. My first reaction was of relief that I was out of the aircraft and not lying in pieces on the ground. Then came the realization that my wife and my friends were trapped in a plane that was about to explode or crash. It was such a horrible feeling of guilt that I felt like climbing back to join and be killed with the others. When I broke through the clouds I could see that I was dropping fast into the ruins below and I might not have many options. A survival instinct must have taken over. Suddenly, I slammed into the ground. I was in the middle of a soccer field. I was unhurt and promptly unhooked my parachute. During the war, I had applied for assignment as a paratrooper, but the army rejected me on the theory that I might go up instead of down. They never did recognize my talents.
As soon as I caught my breath, I called out to some astounded youngsters nearby to get me to a phone. They ran with me to a house where, after some difficulties I managed to contact the control tower at Tempelhof. After becoming exasperated by the routine questions, such as my name, rank, and serial number, I shouted that the General’s plane was crashing, damn it, and search parties and ambulances should be dispatched immediately. I gave them my location, which, I learned, was in the Soviet sector of Berlin. I was relieved when informed by the tower that the C-47, with one pilot and copilot had just been guided to an emergency landing at Gatow airport in the British sector. What happened to any others on board was unknown.
I phoned the local German police station which promptly sent a squad car to pick me up. No sooner had I arrived at the precinct than another squad car arrived and a policeman reported that an American woman had jumped off a roof nearby and was injured. I asked for a description. He replied that she was wearing a checkered jacket. “That’s my wife,” I screamed in German, “Let’s go!” We piled into the Police Volkswagen with its horns blaring and raced to a tall apartment house where a crowd was milling about. I galloped up two flights of stairs while tenants kept pointing the way. There, in a small apartment, I found Gertrude stretched out on an old couch. Her hair was disheveled, and her head and legs were wrapped in white rags. I was very relieved and happy to see her in any condition. When she saw me, she burst into hysterical crying. When she had witnessed my fall from the plane, she concluded that I would surely be killed. No one before had ever been so shocked and happy to see that I was still alive.
Gertrude, who had followed me out of the plane, later explained that she must have lost consciousness and forgot to pull the ripcord. Fortunately, the wind brought her back to her senses and she remembered that she had to pull the ring to which the cord was attached. She did so, and the little string came out in her hand. The army never told us that it was supposed to break off that way. Gertrude was convinced that the parachute, like the engine and the door, was also defective and that her end had come. In a moment, the main parachute flew open and she began to think she might be saved. She also felt that, if she survived, I too would probably be safe.
Her shoes had flown off on their own during Gertrude’s unscheduled flight outside the aircraft. The wind blew her to a five story building with a sloping tile roof, which she slid down slowly. There was still some air in the chute and she landed in the bushes on the ground below. En route, she floated past a window from which a frightened tenant was peering with a petrified gaze, as if the Russians were again about to attack. Gertrude didn’t much resemble a Russian paratrooper and she was picked up by a few kindly neighbors and taken in to the upstairs apartment. She had enough presence of mind to ask someone to call our Berlin Office and the airport. Gertrude’s thighs were bruised by the sudden jerk of the loose straps on the harness and her leg was cut on the tiles when she slid off the roof, but in her shocked condition, she was unable to judge the severity of her injuries. That’s when I rushed in for the cheerful and tearful reunion.
We were reminded by some of the German tenants that we were in the Soviet sector and it would be best for all concerned if we left as quickly as possible. Relations between the Soviets and its former allies had been cooling rapidly. We were on the verge of a cold war that might turn hot at any moment. Soon, a U.S. Army ambulance arrived on the scene. Two American medics rushed in and delivered first aid. No sooner were we ready to depart than we were surrounded by Jeeps filled with Russian soldiers. An interpreter made clear that we were to follow them. We were accompanied by one Soviet jeep in front and one in back—just to make sure that we didn’t get lost. Our first stop was at a Red Army hospital. Gertrude was taken in on a stretcher that was placed on the floor. They insisted that she stay. The others should get back in the ambulance. When I refused to leave my wife, some burly Red soldiers, each grabbing me under one arm, made plain that I had no choice. We could not resist Soviet hospitality.
I was back in the ambulance when the search convoy of American troops surrounded the Soviet Jeeps. The commander of the unit was an American Captain who served as a liaison officer. I explained to the commander that my frightened wife was injured and lying on the floor of a Soviet hospital where no one spoke anything but Russian. He promised to send the ambulance that was in his convoy to rescue her. Meanwhile, I was to proceed to the Kommandatura or Soviet Headquarters for interrogation. There, a fat Russian Major asked me a number of stupid questions and I replied in kind. I told him that we were Nuremberg prosecutors out to convict 24 leading Nazis of murdering over a million Soviet citizens. Did he really think my wife and I were planning an aerial attack on the Soviet Union? It didn’t take too long to convince him that it was in his best interest to let me go.
Sergeant Dudley, our crew chief, was also there for interrogation. He had dislocated his shoulder trying to keep the C-47 door open. From the Kommndatura, we were both taken to the American army hospital in Berlin, where all survivors of the jump were being assembled. General Taylor had suffered painful back injuries when he landed on a concrete intersection in the Russian sector. German civilians had whisked him away directly to the U.S. Army’s 279th General Hospital. As soon as I arrived at the American hospital I inquired about the others and hastened to the bedside of my Chief. The General was worried about the other passengers and crew, and particularly about his pregnant wife. I reported that she was safe and sound. She had also landed on a roof and fallen three stories to the street, in the French sector. She was taken to what was known as The Jewish Hospital, before being transported by taxi to the 279th. Aside from a few bruises and a black eye she seemed to be in excellent condition. A few months later she gave birth to a handsome baby boy named John.
Jim and Marilyn McHaney soon arrived from the French sector where they made their unscheduled landing. Marilyn was last seen on the plane with her head buried in her hands; she and Jimmy were refusing to jump. How they left the plane I cannot say since I was busy elsewhere at the time. Marilyn had landed on the banks of a stream and suffered only a sprained ankle. Jim had landed unhurt on a flat roof and descended by climbing through the skylight. Finally, Gertrude arrived in an American ambulance to report happily that she had been interrogated, but was treated well at the Russian Military Hospital.
The only serious injury was sustained by the radio operator, who had a compound skull fracture. He lay in a coma for several days before being tenderly restored to health by a German nurse. He later married the German girl who had brought him back from the brink of death. The day after our jump, I went back to the Kommandatura to retrieve my parachute which the Russians had taken from me. I explained that it was property of the U.S. Government and they had better hand it over. I safeguarded it for the government for many years, and it became a favored tent when we celebrated family parties in my garden back home. We returned to Nuremberg on the last train out of Berlin. All air traffic between Berlin and western Germany was blocked starting that day—the cold war was on..
Story 31: The Making of a Prosecutor
As tensions between the U.S. and its former ally the USSR mounted, there was increased pressure to find evidence in the official Berlin archives to help convict the important German leaders awaiting or on trial in the Nuremberg courthouse. German doctors accused of barbaric medical experiments and euthanasia were denying all charges. Prosecutors needed overwhelming evidence to prove that industrialists were responsible for the seizure of foreign assets and the inhumanities committed against slave laborers. Ministry of Justice leaders were being charged with abusing their offices by persecuting, executing, or imprisoning political opponents. Generals and high-ranking SS officers faced accusations of responsibility for war crimes and crimes against humanity. Diplomats who paved the way for Hitler’s wars of aggression were called to account. Almost without exception, all defendants responded to the Nuremberg charges with the standard reply: “Not guilty!” There could be no convictions without proof of guilt beyond reasonable doubt. The dozens of researchers methodically combing the ruins of Berlin knew that documentary evidence was vital if justice was to be done.*
It must have been the spring of 1947 when one of our many diligent researchers, Fred Burin, burst excitedly into my office. He had come upon some German files while searching through a Foreign Ministry annex located near the Tempelhof airport. He had found a nearly complete set of secret reports that had been sent by the Gestapo office in Berlin to perhaps a hundred top officials of the Nazi regime. Many Generals were on the distribution list, along with high-ranking leaders of the Third Reich. The recipients were among those very many Germans who always denied any knowledge of Nazi criminality.
The reports described the daily activities of special SS units bearing nondescriptly called “Einsatzgruppen”—roughly translated as “Special Action Groups.” They were organized in four units ranging from about 500 to 800 men each. Their secret reports bore an innocuous title, which translated as “Report of Events in the Soviet Union.” The Einsatzgruppen (EG) Reports covered a period of about two years, starting immediately following the Wehrmacht’s assault against the Soviet Union on June 22, 1941. The EG Commanders reported in meticulous detail how many innocent civilians they had deliberately killed as part of Hitler’s “total war.” All Jews and Gypsies were marked for extermination, together with others who might be perceived as enemies or potential enemies of the Reich. On a little adding machine, I added up the numbers murdered. When I passed the figure of one million, I stopped adding. That was quite enough for me. I grabbed the next plane down to Nuremberg to report the findings to General Telford Taylor.
Taylor, as Chief of Counsel, recognized the importance of the evidence, but he faced an administrative problem. The program for a limited number of prosecutions had been fixed and approved by the Pentagon. Public support for German war crimes trials was on the wane. The prospect of getting additional appropriations for more lawyers or trials was bleak. I countered that we had in our hands clear cut evidence of genocide on a massive scale and a trial of the leading criminals could be completed quickly. It would be unforgivable if we allowed the perpetrators to escape justice. In desperation, I suggested that if no one else was available, I could do the job myself. He asked if I could handle it in addition to my other responsibilities. I assured him that I could. “OK,” he said. “You’ve got it.” And so I became the Chief Prosecutor in what was certain to be the biggest murder trial in human history. I was 27 years old, and it was my first case. I had no idea it would make history.
As soon as General Taylor agreed that Einsatzgruppen commanders should be prosecuted, I began the move from Berlin to Nuremberg. My wife stayed behind to close out the house and await news that new quarters had been found. Lt. Col. Bill Wuest agreed to take charge of administration and call me if he ran into any trouble. In May 1947, we moved to Nuremberg where we found a small house that had been requisitioned by the army. My rank entitled me to a much grander residence, but the home in Fuerth bordered on a large meadow with the River Pegnitz flowing in the background and the little villa had a very neat garden where I learned all I needed to know about gardening. The plot was tended by an old German gardener named Ludwig who spoke with an unintelligible Bavarian dialect. It was only fair that I didn’t understand him since he could not understand me, either. Every evening Ludwig peddled up on his rusty bicycle, fetched a few cans of rainwater from an old bathtub near the potting shed, and sprinkled the little seeds that he had stuck into the ground. To a boy raised on the sidewalks of New York, the end product looked like a miracle.
Under Ludwig’s tender ministrations, there soon appeared neat rows of every conceivable vegetable. Our deal was that we could take whatever we needed and Ludwig could keep the rest. I tried to cut out the middleman by planting some tomato seeds and some lettuce seeds around a tree that Ludwig watered regularly. I’m not crazy about broccoli, spinach, and stuff like that, but I figured that a little lettuce and tomato is a good thing to add to a cheese sandwich. When Ludwig noticed the sprouting of little green sprigs that were the sole product of my labors, he smiled. He somehow made clear that it wasn’t going to work. He was quite right. The most important thing I learned was that, in times of adversity, what Ludwig knew about gardening was more useful than anything I had learned at Harvard. I concluded that I had better stick to the law.
*Ossip Flectheim was one of the scholars in the Berlin Branch. Like many other staffers, he was a refugee from Nazi Germany. He was assigned to a team scouring the files of the German Foreign Ministry. Ossip was studious, diligent, and well-informed, but I noticed that he was falling behind in his work. I suspected that he was also working on something else. I decided to shut my eyes and say nothing. The wisdom of my decision became apparent years later. After the Nuremberg trials were over, Flechtheim remained in Berlin and became a very respected Professor at the Free University. I was a frequent guest at his home in Dahlem. On his bookshelf, I noted a copy of his Ph.D. thesis dealing with the history of political life in Germany. I remarked that I was pleased to see that his work at the Berlin Branch had been so productive. “I didn’t think you knew,” he said, as we both laughed. He inscribed one of his books on world peace to me. I guess he was grateful that I didn’t fire him. So was I. Sometimes looking away in silence is the best policy.
Story 32: Preparing for Trial
One of the first steps taken in preparing for the Einsatzgruppen tribunal was to safeguard the looseleaf binders containing the secret daily reports of the murders committed on the Eastern front by the SS extermination squads. The files were locked in a U.S. Postal sack and placed under guard at the Berlin Document Center commanded by U.S. Lt. Col. Helms. It may be recalled that Helms’s brother was an SS officer, but that posed no risk since he was already safely in the bag as a Prisoner of War. The next step was to match the evidence of the crimes with the known perpetrators who were in custody. To have one without the other would lead to more frustrations than convictions.
There were about 3,000 members of the Einsatzgruppen who spent practically every day on the Eastern front murdering innocent men, women, and children. Since the days when merchant vessels first crossed the seven seas, it has been established law that he who sails on a pirate ship, knowing the purpose of the voyage, shall, when apprehended, walk the plank or be hanged from a yardarm. As tempting as the idea might be, there was no way the U.S. Navy could sail into landlocked Nuremberg with planks from which 3,000 men could be shoved gently into the sea. Who of these 3,000 would be selected for the honor of being tried in a Nuremberg court of law depended upon other considerations, which, to most rational people, might appear slightly stupid.
We were able to put together a fairly complete roster of EG officers. The lists were sent around to all Allied POW camps with requests to extradite the suspects to the Nuremberg prison. Those SS leaders who were already held in the Nuremberg jail as potential witnesses would be given priority as defendants. As their hosts, we owed them that measure of hospitality. The total number of mass killers to be tried depended upon finances and furniture. No Nuremberg tribunal could try more than 24 defendants in the same trial. The reason was that there were only 24 seats in the dock. Historians may not believe it, but it’s true. It really wouldn’t look nice to have to jam killers together or to have some of them sitting around on the floor during the trial. It was unfortunately inevitable that some fish, including big ones, might escape the net completely. Justice is always imperfect. Nuremberg never sought to try more than a small sampling of major offenders. We did not use a lottery to select the chosen 24, though it might have been almost as good. We had to select from those whose names appeared prominently in the captured documents and who were already imprisoned and competent to stand trial.
Having been a former combat sergeant, I decided that no enlisted man would be prosecuted. The traditional U.S. military practice, and probably the same is true for all militaries, is to exonerate the higher-ups and stick it to those at the bottom. I believed then, and now, that responsibility starts at the top. Our primary targets for prosecution were the highest ranking officers and the most educated killers we could lay our hands on. They were given a legal presumption of innocence, even though, given the evidence, such a presumption was rather absurd. As the Chief Prosecutor, I accepted the challenge to prove beyond doubt that every one of the 24 SS officers chosen for prosecution was guilty beyond doubt of the crimes charged.
I do not wish to imply that I handled the trial completely by myself. All Chief Prosecutors were aided by an array of lawyers, translators, researchers, interrogators, secretaries, and administrative assistants. General Taylor, as Chief of Counsel, was an outstanding jurist of impeccable character, eloquence, and skill. One of his Deputies, James McHaney of Little Rock, Arkansas, was in charge of other cases against high- ranking officers of the SS. I gladly consulted with both of them on all policy matters and benefited from their advice. We became fast friends. Our friendships were further bonded, as you can imagine, as the three of us and our wives, had to parachute out of a plane falling over the ruins of Berlin. But that was another story.
It was clear that if I was to convict 24 defendants I would need additional legal help. Every individual accused was entitled to a fair trial on the merits and his personal guilt had to be established beyond reasonable doubt. When he gave me the assignment, Taylor had stipulated that no new staff could be hired, and time was of the essence. I canvassed the other trial teams that were busy prosecuting industrialists, Foreign Ministers, doctors, lawyers, and leading SS functionaries and some of the other Chief Prosecutors were eager to be of assistance—it was easier to assign someone to a new trial than it was to fire him. I thus managed to assemble four lawyers from other trials: Arnost Horlik-Hochwald, a Czech, Peter Walton from Georgia, John Glancy from New York, and James Heath from Virginia. Heath was older than most of us, and spoke with a soft drawl reflecting his southern upbringing. He was a handsome gentleman who, despite his mature age, had served as an enlisted man in the war. He was also an alcoholic who had difficulty focusing on any assigned task. For Heath’s non-performance on other cases, Taylor felt he should be fired. Heath and I had shared the same quarters when we first arrived in Nuremberg and he had become my pal. I persuaded Taylor to let me try my luck with him. It sometimes pays to give a man a break when he is down; it’s always worth the effort.
The Defense Counsel arrayed against us was formidable. Each defendant was entitled to be represented by a lawyer of his choice, plus one assistant counsel. After the trial, in 1948, I wrote an article in the Journal of Criminal Law and Criminology on “Nuremberg Trial Procedure and the Rights of the Accused.” I pointed out the complete fairness of the proceedings. In fact, as the trial was about to open, I thought it was quite unfair—to the prosecution! The 24 defendants could be supported by 48 German lawyers, almost all of whom had been members of the Nazi Party and who knew the facts much better than the five War Department recruits representing the prosecution. The German lawyers were given special rations, and their pay came from occupation funds. At least 30 days before trial, they received copies of every document the prosecution intended to use in evidence. They had ample time to prepare for trial.
I was frequently asked, after the trial started, whether as a totally inexperienced young lawyer, I was nervous about facing Germany’s mass killers, including six SS Generals, who would have shot me on sight. No, I was not nervous. They were nervous. I didn’t murder anyone. They did. And I would prove it. I would convict the accused on their own official records.
There were three judges assigned to hear the “Einsatzgruppen Case,” as it was officially called. Judge Richard S. Dixon had been a Judge of the Superior Court of the State of North Carolina. Judge John J. Speight was a prominent member of the Alabama bar. The Presiding Judge was Michael A. Musmanno, who had been with the Court of Common Pleas in Pennsylvania. He had been a Captain in the U.S. Navy during the war, and proudly wore his naval uniform beneath his black judicial robes. It was Musmanno who dominated the whole trial. The other two judges were the silent type. I don’t recall that they said anything during the trial or, if they did, that it was worth remembering. When the defendants were arraigned on September 15, 1947, to enter their pleas of guilty or not guilty, Judge Musmanno asked each one to confirm that he had received and understood the indictment and that he was represented by Counsel. When he called the name of Emil Hausmann, I rose to explain that the defendant died subsequent to the filing of the indictment. Two days after receiving the indictment, Hausmann had committed suicide. The case against him was dropped. That left 23 to go.
Some defendants created special problems. As I was reading the indictment, one defendant, Eduard Strauch, suddenly stood up in the dock and then disappeared from my view. The military guards jumped forward with their clubs raised as he lay writhing on the floor. It appeared that he was having an epileptic fit. He was removed from the room and my reading of the charges continued.
Strauch was arraigned a few days later with Otto Rasch, who had been temporarily excused by the Court when his Counsel stated that he was too ill to understand the pleadings. I vividly recall when Rasch’s German lawyer, Dr. Hans Surholt came to my office with a request that the case against his client be dropped because of illness. When I asked what ailed his client, he replied that it was Parkinson’s disease, which caused Rasch’s s body to tremble. I stated that if I had killed as many people as he had, I too would be shaking. “Is he breathing?” I asked his Nazi lawyer. “If so, I am going to indict the son-of-a-bitch.”
Rasch, who held two doctorate degrees, had been the commander of an Einsatz unit that boasted it had slaughtered 33,771 Jews in “Babi Yar,” a ravine near Kiev. The two-day massacre began on September 29, 1941, a day when Jews assembled to celebrate their holiest religious holiday, Rosh Hashona. The genocide, which was immortalized in a poem by the famous Soviet poet Yevtushenko, may have set a world record for deliberately concentrated mass murder. I was not going to drop a case that was provable by the defendant’s own top-secret reports. When Dr. Rasch, General of the SS, was brought in on a stretcher, he acknowledged that he understood the proceedings and pleaded alike with the others, “Not guilty!” A two-week recess was declared. On September 29, 1947, the Prosecution was ready to proceed with the presentation of its case against 23 defendants. It was the fifth anniversary of the infamous Babi Yar massacre.
Story 33: The Biggest Murder Trial in History
“The Einsatzgruppen Case” opened in the main courtroom of the partially restored Palace of Justice in the partially destroyed city of Nuremberg, Germany. Twenty-two somber defendants, closely guarded by American soldiers, entered the paneled chamber via a lift that took them from the prison below the courtroom directly into the dock. These very ordinary looking men were Hitler’s eager executioners accused of “the murder of more than one million persons, tortures, atrocities, and other inhumane acts.” Arranged before them sat rows of former Nazi Party members chosen by the prisoners as their defense counsel. To their right stood tables reserved for members of the prosecution. Behind them were rows of visitors of varied nationalities who had come to see justice in action. Facing the accused was a raised tribune for the three American judges clad in black robes. Translators were poised for the novel rendition of simultaneous translation into the earphones at every seat. The trial was about to begin. The Associated Press called it “The biggest murder trial in history.”
As I was preparing my opening statement, there was never any doubt in my mind that all of the defendants deserved to be convicted. Nearly 200 contemporaneous secret reports, backed up by dozens of affidavits given by the accused themselves when they were first arrested, were incontrovertible. At the same time, I was keenly aware that there was no way for the scales of justice to balance the murder of more than a million innocent human beings against the lives of two dozen of their executioners. It was my hope that the trial would serve a more useful and enduring purpose; that it might somehow help to deter the repetition of such horrors in the future. I was determined to do whatever I could to help lay a foundation for a more humane world than the one that had indelibly traumatized me during World War Two.
When Presiding Judge Michael A. Musmanno called upon the prosecution to make its Opening Statement, I began by noting that it was “with sorrow and with hope” that we were about to disclose the deliberate slaughter that was the tragic fulfillment of the Nazi program of intolerance and arrogance. Vengeance was not our goal, nor did we seek merely a just retribution. The victims had been killed solely because they did not share the race or ideology of their killers. We asked the Court to affirm the legal right of all human beings to live in peace and dignity, regardless of their race or creed. “The case we present is a plea of humanity to law.” That theme, of trying to use international law for the protection of the most fundamental rights of human beings everywhere, has guided me throughout my life.
The Opening Statement for the Prosecution that detailed the crimes of each defendant had been carefully prepared by the EG team and approved by General Taylor. The genocide perpetrated against Jews and Gypsies had been crimes against humanity and war crimes in violation of existing international law. We promised to show that every man in the dock committed those horrendous crimes with full knowledge and intent. I concluded, “The defendants in the dock were the cruel executioners whose terror wrote the blackest page in human history. Death was their tool and life their toy. If these men be immune, then law has lost its meaning and man must live in fear.” Little did I realize that these words spoken in the Nuremberg courthouse in September 1947 would resonate across the world again half a century later. They were quoted by Professor Antonio Cassese, President of the new UN special Tribunals for crimes in Yugoslavia and Rwanda, in his September 1997 annual report to the United Nations. I must admit that I was deeply touched that the words I had uttered as a young man of 27 had not been completely lost in the wind.
The Defense Counsel took their turns in making Opening Statements on behalf of each Nazi client. Whatever arguments could conceivably be made or invented were put forth. Defendants challenged the authenticity of their own official secret reports. They denied that atrocities had been committed. If abuses had occurred, it was not while they were in command. Besides, killing all those people, who were enemies of the Reich, was quite legal—it was self-defense against Bolshevism. Those “eliminated” were partisans who had been convicted by German military courts. Of course, they never used the term “murder;” that would be crude. Jews were “resettled,” or “eliminated,” or “liquidated,” or simply, “the Jewish problem was solved.” Whatever euphemism was used, the conclusion was always the same: the Jews were all killed. The same applied to the Gypsies. The judges listened attentively. Presiding Judge Musmanno announced: “The Prosecution may now proceed with its case.”
I did not intend to call a single witness. I knew that every survivor of a concentration camp would be eager to testify that any one of the defendants was responsible for the murder of his or her family. But I also knew that witness testimony can be fallible, and I did not have to risk it. I would rely upon the captured official German documents to prove the guilt of each defendant. A typical EG Report, for example, said, “In the city of Minsk, about 10,000 Jews were liquidated on 28 and 29 July (1941), 6,500 of whom were Russian Jews—mainly old people, women, and children—the remainder consisted of Jews unfit for work….” We knew which unit made the report and who was in command. And we had hundreds of such statements, including totals for each unit that added up to more than a million executions. When the report said only that the area was “cleansed of all Jews” and no numbers were given, I took a count of only one. I believed in being very fair to the accused, especially since I had over a million more murders to hang around their necks. Despite constant intrusions by defense counsel objecting to the translation or some other technicality, the Prosecution submitted its evidence and rested its case after two days. I suppose that the Guinness Book of World Records might have noted it as the fastest prosecution in a trial of such magnitude. The next move was up to the defendants.
Story 34: Mass Murderers Seek to Justify Genocide
The Prosecution’s documentary evidence against the 24 leaders of the Einsatzgruppen was presented in only two days. The defense consumed 136 trial days, during which time they presented their objections, alibis, excuses, and justifications for mass murder of Jews, Gypsies, and other presumed opponents of the Nazi regime. Prosecutors could afford to be accommodating. They held the trump cards that revealed the truth. When, for example, a defense lawyer objected vehemently that a Prosecution exhibit was only a photostatic copy, he was invited to inspect the original in my office and I promised to correct any error. Some of the accused argued that their own self-incriminating reports were a pack of lies designed to please the Nazi higher-ups. The suggestion that the SS Commanders would deliberately lie to the dreaded SS Chief Himmler but not to the Nuremberg tribunal may have been flattering to the American judges, but it was not particularly persuasive.
When defendants insisted that they knew nothing about the murderous plans of the EG, we introduced a September 21, 1939 order from the Chief of the Security Police, Reinhardt Heydrich, to all EG units describing in detail how Jews were to be rounded up for annihilation. Among many other such revelations, we produced the July 31, 1941, instruction from Reich Marshal Hermann Goering, who had ordered the Security Police to carry out “a complete solution of the Jewish question.” The efficient Germans could not resist the temptation to brag about their achievements and to leave an impressive written record of their accomplishments. They weren’t so proud when they faced a war crimes court and their own murderous chronicles were submitted for scrutiny by international or American jurists.
Count One of the Indictment against the Einsatz leaders charged the defendants with being principles and accessories in a “systematic program of genocide,” the details of which were spelled out in the charges. The term “genocide” had not appeared in the indictment against Goering and cohorts by the International Military Tribunal since it was a term then unknown in criminal law. It was a newly-coined word invented by a Polish refugee lawyer named Rafael Lemkin. I had met Lemkin in the halls of the Nuremberg courthouse. He had fled from his homeland after his entire family had been murdered by the Nazis. Like the Ancient Mariner of Coleridge’s poem, he collared anyone he could, to tell them the story of how his family had been destroyed by Germans. Jews were killed just because they were Jews. He invented a special name for the efforts to destroy groups of people solely because of their race, religion, or nationality. He called it “Genocide,” and insisted that it be treated as a very special international crime.
The somewhat lost and bedraggled fellow with the wild and pained look in his eyes had written a book describing Axis Rule in Occupied Europe, which he thrust into my hands. It was my tribute and respect for him, and to the validity of his argument, that I deliberately used the term “genocide” in my opening statement to describe the activities of the EG. Today, there is worldwide recognition, based on a universally accepted United Nations Convention, that genocide is a crime that must be condemned and punished wherever it occurs. Lemkin proved that one determined individual, in persistent pursuit of a just cause, can make a difference. As an American, a veteran, and a human being, I feel a bit ashamed that it took the United States forty years to ratify the 1948 Genocide Convention that was hailed worldwide—except among isolationist and conservatives who tried to block it in the U.S. Senate.
One of the more interesting, and repulsive, arguments in defense of genocide was put forward by the lead defendant, SS General Otto Ohlendorf. He was a fairly handsome man, father of five children, and had earned a degree in economics. He was distinguished by the fact that Einsatzgroup D, the unit under his direct command, reported that they had killed 90,000 Jews. Of course, he denied any culpability. I would have loved to cross-examine Ohlendorf myself, but I decided to assign the role to James Heath, whose mature stately manner and southern drawl might make a better impression on the Germans, and avoid any taint of Jewish vengeance. Jim knew that he was on the verge of being fired because of his incapacitating alcoholism. It would be his last chance, and we went over the questions and possible answers carefully. My confidence in him had not been misplaced. He lived up to my expectations and even Telford Taylor, who wanted him fired, agreed that Heath did a fine job of grilling the Nazi General.
When Ohlendorf was asked to verify that his unit had murdered 90,000 Jews, the SS General began to quibble. He said he couldn’t confirm it. The reason given was that sometimes his men exaggerated the body count. “Would the General care to venture an estimate?” “No.” “Was it perhaps 80,000 or only 70,000?” “That was possible.” “Or perhaps 100,000?” “Maybe.” “And were there many Jewish children among those who were killed?” “Yes, of course.” But, added Ohlendorf, he never allowed his men to do as some other units did. He told his men never to use infants for target practice nor smash their heads against a tree. He ordered his men to allow the mother to hold her infant to her breast and to aim for her heart. That would avoid screaming and would allow the shooter to kill both mother and child with one bullet. It saved ammunition. Ohlendorf said he refused to use the gas vans that were assigned to his companies. He found that when the mobile killing vehicles arrived at their destination, where they were supposed to dump their asphyxiated human cargo into a waiting ditch, some of the captives were still alive and had to be unloaded by hand. His troops had to drag out corpses amid vomit and excrement and that was very hard on his men.
Judge Musmanno seemed to be fascinated by Ohlendorf’s testimony. He elicited the confirmation that all captured Jews were shot simply because they were Jews. Ohlendorf explained, like a school teacher, that those with Gypsy blood were unreliable and might help the enemy and therefore they too had to be killed. When asked by Heath and the Judge why Jewish children were slaughtered, Ohlendorf explained patiently that if the children learned that their parents had been killed, they would grow up to become enemies of Germany. He was interested in long-range security for his country. Hence killing all Jewish men, women, and children was a military necessity. Isn’t that clear?
Another outrageous Ohlendorf argument was that killings by the Einsatzgruppen were in self-defense. According to Hitler’s reasoning, with which Ohlendoirf agreed, Germany was threatened by Communism. Jews were known to be bearers of Bolshevism, and Gypsies could not be trusted. Both groups posed a potential threat to the security of the German State. It followed, logically, that all such opponents had to be destroyed. In total war, humanitarian rules are suspended by all sides—he recalled the Allied bombing of Dresden and the U.S. atomic bomb dropped on Hiroshima. He did not seem to notice that it was the one who struck the first blow who should expect legal retaliation.
Ohlendorf argued that even if Hitler was mistaken in his belief that the Bolsheviks, Jews, Gypsies, and others posed a mortal threat to Germany, the “executive measures” by the Einsatzgruppen were justified as anticipatory self-defense. The defendant insisted that he was in no position to second-guess the Head of State. Accepting Hitler’s orders without question showed the absence of any criminal intent. If the accused believes in good faith that anticipatory self-defense is lawful, the criminal intent required for conviction is lacking. Hence Ohlendorf, admitted killer of about 90,000 innocent people, should be acquitted—despite his assurance that he would do it again. Ohlendorf’s reasoning struck me as a recipe for world catastrophe.
Story 35: Judgment Day for Mass Murderers
Throughout the Einsatzgruppen trial, both the prosecution and the judges were determined to be absolutely fair to every defendant. I frequently doubted that equal consideration was being given to the Prosecutors. To be sure, it was a fault we could tolerate better than the accused since, for us, it did not risk fatal consequences. It was annoying, however, when the court regularly accepted evidence, such as remote hearsay, obviously falsified documents, or biased witnesses that should have been excluded. Well-founded objections by the prosecution were systematically overruled. Finally, Judge Musmanno made his position clear, as he laid down what came to be known as “The Penguin Rule.” He informed the Prosecutors that he would admit anything offered in evidence by the defendants, “up to, and including the sex life of a penguin.” I was, of course, quite annoyed. What I didn’t quite realize, and discovered only later, was that the learned judge could afford to be tolerant because he wanted to give the accused every possible right. He was confident that he would not be deceived by spurious submissions, and that in the end, the court would have the last word.
The defendants submitted what Prosecutors called “affidavits by the bushel” to provide an alibi or justification for their evil deeds. It was not uncommon, when a defendant swore that he was nowhere near the scene of the crime, that our investigative division uncovered letters bragging about how many Jews he had just “eliminated.” We should not have been surprised that Nazis who would be willing to die for their country would also be willing to lie for their country.
After all the evidence was submitted, every defendant was invited to make a Final Statement. There were no surprises. Most of the glum looking men in the dock simply summed up previous arguments made by attorneys or in briefs submitted on their behalf. Several of the accused men decided it might be better to remain silent. The cat and mouse game had gone on for several months. The Prosecutors were patient. After all, we were the cats. Four and a half months after the trial began, Chief of Counsel, Brigadier General Telford Taylor, who had not previously taken the floor, made the Closing Statement for the Prosecution. He summarized the evidence and the arguments in his usual elegant way.
Taylor noted that obedience to orders that were obviously criminal was illegal. Under German as well as international law, it had long been held “that one is not legally authorized to kill defenseless people.” Responsibility for the atrocities of “total war” rests not on those who finish the war but on those who start it. “The laws of war develop by common observance, so they are not changed merely because one country breaches them.” He compared the defendant’s contention, that they were only acting to protect Germany, to the argument of a burglar who breaks into a house, shoots the owner, and then claims it was necessary “self-defense.” He stressed that racial killing was always a prime objective of Hitler’s war. He asked the judges to protect international law and counseled “firmness rather than leniency to those adjudged guilty of this terrible crime against humanity.”
The judges ordered a recess for almost two months to weigh the evidence and arguments and to study the copious briefs submitted by Counsel. It was April 8, 1948 when the Court reconvened to render its Opinion and Judgment in open court. It took the judges two days of reciting in tandem to conclude reading the 175 printed pages. Every argument raised by any defendant was carefully analyzed and compared to the evidence. The authenticity of the EG Reports was confirmed and illustrative extracts showed the basis for the Court’s conclusions. The judgment noted that Jews were sometimes killed by working them to death rather than shooting, or by leaving the executions to local Ukrainians who could be incited to conduct pogroms under SS supervision. Jewish prisoners-of-war were systematically annihilated by the EG after all fighting had ceased. The Court described various sadistic means of execution by the EG, including the camouflaged gas vans that carried the aged, infirm, and children on a free ride to their unmarked graves.
The most comprehensive portions of the Judgment were the fifty-five pages analyzing the validity and interpretation of the applicable law. Every defense argument regarding jurisdiction, self-defense and necessity, superior orders, and non-involvement was put under the judicial microscope and systematically rejected. The decisions reached by the International Military Tribunal on September 30, 1946 were reaffirmed and upheld. The war crimes trials were not victor’s justice or an arbitrary exercise of power, but instead the expression and upholding of existing international law. Every German soldier carried a paybook which included the phrase, “The civilian populations should not be injured.” “Certainly no one can claim,” wrote the EG judges, “that there is any taint of ex post factoism in the law of murder.” Murder was not a crime invented retroactively by the prosecution.
The court gave detailed consideration to the defense argument that the accused were acting in self-defense of their country that was threatened by Bolshevism, Gypsies, and Jews. The Tribunal was astounded that such a proposition could be advanced in all seriousness, since it failed to recognize the distinction between patriotism and murder. Jews were killed because they were Jews, even if they posed no threat to anyone. Nazi rulers started an aggressive war—not the other way round. The argument that the Jews constituted an aggressive menace to Germany was dismissed as untenable and “opposed to all facts, all logic, and all law.”
Judge Musmanno felt strongly that “where law exists a court will rise.” He saw an international criminal court as a means of the diminishing crimes against humanity and combating hatred and violence between ideologies. He expressed the hope that mankind, with intelligence and will, would be able “to maintain a tribunal holding inviolable the law of humanity, and by doing so, preserve the human race itself.” The basis for each individual judgment was spelled out. I suddenly developed a much greater respect and affection for Judge Michael Musmanno. When the trials were over, I relayed my admiration of Naval Captain Musmanno in a letter of appreciation to the U.S. Secretary of the Navy.
Story 36: Death by Hanging
When I entered and took my seat at the Prosecutor’s table on the day of sentencing, the courtroom was empty. It was April 10, 1948, and the past two days had been spent listening to the three Judges read their massive judgment that rejected all arguments put forth for the defendants. I knew it would be a grim day—especially for those accused of the cold-blooded murder of more than a million innocent men, women, and children. Slowly, the room filled with German defense counsel, members of the prosecution staff, translators, clerks, and a smattering of visitors in the gallery. The assemblage was called to order as the Judges filed in wearing their black robes over their civilian clothes. The defendant’s dock was empty. No defendant was in sight. Soon, the dark paneled door, leading into the center of the dock from the prison below, slid open. SS General Otto Ohlendorf stepped out. He was flanked by two very tall black guards in crisp U.S. Army uniforms. Their white batons were gripped in both hands on the ready in front of them. Ohlendorf glanced at the guards and the judges and slowly put on the earphones that were handed to him.
Judge Musmanno spoke, “Defendant Otto Ohlendorf, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.” The condemned man stood erect, took off his earphones, and without any expression, nodded and stepped back into the small lift that then slowly descended, as if into Hell. The next prisoner was brought in. “Defendant Erich Naumann, on the counts of the indictment on which you have been convicted, the Tribunal sentences you to death by hanging.” Other prisoners followed, one at a time. And so it went, down the line. Defendants Paul Blobel, Walter Blume, Martin Sandberger, Willy Seibert, Eugen Steimle, Ernst Biberstein, Werner Braune, Walter Haensch, Adolf Ott, Waldemar Klingelhofer, Heinz Schubert, and Eduard Strauch were all convicted of being mass killers. All fourteen were sentenced to be hanged by the neck until dead.
Several of the defendants had been Generals in the SS. Almost all the rest were high-ranking commanders. Some were sentenced to life imprisonment or long prison terms. They were not ordinary criminals. In civilian life, several had earned degrees in law or economics before joining the Nazi Party and taking positions as Gestapo leaders. One of the defendants had been an opera singer, and another a Lutheran clergyman. One thing they all had in common was a fervent desire to serve their Fuehrer, even if that meant killing enormous numbers of innocent men, women, and children. Another thing they had in common was that despite their denials, there was no doubt that each one was responsible for Crimes Against Humanity, War Crimes, and Membership in Criminal Organizations—as charged in the indictment. The time had come to answer for their crimes.
Strange as it may seem, listening to the sentences was a grueling experience, not merely for the defendants but also for the Presiding Judge and the Chief Prosecutor. I knew that Michael Musmanno was a devout Catholic. For about a week before the sentencing he had retreated to a monastery to consult with his priest and with his conscience. The levity he had displayed during the trial, much to my annoyance, had completely disappeared as the Judgment and Sentences were read slowly and somberly. It is not an easy thing to condemn another human being to be hanged. As the Judge read each sentence I checked off the name on a list I had before me in which I had noted what I thought might be the penalty. Musmanno was much more severe than what I had expected. Each time he said “Death by hanging” it was like a hammer blow that shocked my brain. When any of the Nuremberg trials was brought to a close, it was customary for the Chief Prosecutor to invite his staff to his home to celebrate the event. I asked to be excused from my own party.
I had never asked for the death penalty, although such a recommendation from the Prosecutor was widely expected and it was surely deserved by these unrepentant mass murderers. I felt that it might trivialize the magnitude of the crimes by suggesting that it could be settled, and perhaps then forgotten, by executing a handful of genocidal killers. We owed it to the millions of victims to try to give their deaths some greater significance. Perhaps by revealing the depths of their suffering, and demonstrating that law would not condone such atrocities, the cry “Never Again” might become a reality. I had made it clear when I began my Opening Statement, at the end of September 1947, that mine was not a demand for vengeance but “a plea of humanity to law.” General Telford Taylor, in making the Closing Statement for the Prosecution, had only called for “firmness rather than leniency” when judging the perpetrators of these terrible crimes. At the beginning of April 1948, when the long legal Judgment was read, I felt vindicated. Our pleas to protect humanity by the rule of law had been upheld.
It has always been clear to me that the documentary evidence against the perpetrators of over a million murders was so overwhelming that nothing more would be needed to convict them. I made a special point of never seeing any of my defendants until they appeared in the courtroom. I didn’t want my views to be tainted by any personal considerations that might diminish my determination to hold the killers to legal account for their malicious deeds. After the sentences were read and I was convinced that Ohlendorf was sure to hang, I decided to pay him a visit in the prison beneath the courtroom.
I knew that Ohlendorf was the father of five children and that he was an intelligent and relatively honest man. Perhaps there was something that I could do for him before he died, such as telling his family that he loved them. We met in a small cubicle with a strong glass partition through which we could speak. I asked him, in German, whether there was anything I could do for him. Some small favor perhaps? His bitter reply was that the Jews in America would suffer for what I had done. I was stunned by his answer. The man had learned nothing, and regretted nothing. I looked him in the eye, stood up and said slowly, in English, “Goodbye, Mr. Ohlendorf.” I never saw him again.
One of the rules governing the subsequent Nuremberg trials was that each case had to be reviewed by the U.S. Military Governor, who had power to reduce but not increase any of the penalties. It was March 1949 before the review was completed by General Lucius D. Clay, the respected Military Governor. After due deliberation, he confirmed all of the sentences. Petitions to the U.S. Supreme Court were rejected on May 2, 1949. Our rules stipulated that no death sentence could be carried out until confirmed by the Governor in writing. Some imaginative defense lawyers had filed new appeals in various courts. General Clay, a West-Pointer who was not a lawyer, decided to leave the little chore of signing death warrants to his successor. Mr. John J. McCloy, a distinguished Wall Street lawyer and former Assistant Secretary of the Army, replaced Clay in 1949 and received the new title of U.S. High Commissioner. There was a new and independent West German government. The cold war was heating up and the winds were beginning to change. The Nuremberg murderers would benefit from the cooling breeze.
While waiting for legal formalities to be completed, the convicted prisoners were cooling their heels in a U.S. Army War Crimes Prison in the town of Landsberg in Bavaria, where, years before, Hitler had written “Mein Kampf.” In 1949, the West German Government abolished the death penalty. Various religious and political groups began beseeching McCloy to spare their former heroes. He appointed a Board of three qualified American civilians to advise him. He gave them secret instructions that they were not to challenge any of the Nuremberg findings of fact or conclusions of law. They were only to consider personal circumstances, such as grave illness or inequities in sentences that might justify humanitarian considerations. The Board spent the summer of 1950 deliberating in the pleasant environs around Munich. When I offered to be of assistance, they declined, saying it was not a judicial review or an appellate proceeding but merely a panel that could only recommend clemency. The final decision was up to McCloy.
McCloy didn’t have to worry about Dr. Rasch, who, as you recall, had been hauled into the arraignment on a stretcher. He did “the Babi Yar job” where 33,771 Jews were murdered in two days in 1941. He died before I could prove him to be one of the biggest mass-killers in human history. I was consoled only by the fact that he would be judged by an authority higher than the High Commissioner. Another one of the EG defendants, Eduard Strauch, who managed to kill over 10,000 Jews in Riga while he was an EG Commander, also slipped the noose. He was extradited to the British after being sentenced to death by the Americans. That left McCloy with only thirteen EG defendants who had been condemned to death who were awaiting his decision.
McCloy, whom I had gotten to know as a kind and intelligent man, confirmed the death penalty for only four of the thirteen EG leaders. The crimes committed by Otto Ohlendorf, Paul Blobel, Werner Braune, and Erich Naumann, said McCloy, “placed clemency out of reason.” McCloy varied some of the recommendations of his Clemency Panel. He was not just rubber-stamping or passing the buck. Many, including Telford Taylor, accused McCloy of being politically motivated and seeking to curry favor with the new German military. In his conclusion explaining his decision, the High Commissioner affirmed that everyone must respect the rule of law, and explained that he had tried “to temper justice with mercy.” It seemed to me that some of his decisions showed more mercy than justice.
On June 7, 1951, Ohlendorf and the other three EG commanders were hanged from the gallows at Landsberg Prison.* As political and humanitarian pressures mounted, the others convicted in the subsequent Nuremberg trials, as well as by the U.S. Military Commissions, were quietly given their freedom. Industrialists convicted of slave labor abuse, doctors who performed medical experiments, SS and Wehrmacht officers, as well as Foreign Ministry officials condemned for massive crimes against humanity, were all quietly allowed to go home. By May 5, 1958, all of the prisoners still detained at War Crimes Prison Number 1 in Landsberg had been released. While the releases may be seen as a perversion of justice, the Nuremberg trials set an enduring precedent that “never again” would crimes against humanity be tolerated.
* I recall a German newspaper clipping of a memorial service showing a large crowd giving Ohlendorf a Nazi salute as a final tribute. Years later, I received a copy of a German TV film showing the actual hanging of the Einsatzgruppen defendants, the medical reports showing the minutes elapsed before death was pronounced, and a photo of SS General Otto Ohlendorf, neatly dressed in a black suit, lying dead in his coffin.
Story 37: Closing Down the Nuremberg Trials
When the Einsatzgruppen case was completed, General Taylor appointed me to be his Executive Counsel with administrative responsibilities for the remaining trials. I received a promotion from the simulated rank of “Colonel” to the civilian equivalent of a “Brigadier General.” Since the War Department had discharged me as a sergeant of infantry when the war ended, my meteoric rise in rank may have set an army record. At a height of 5 feet 1/2 inches, I may also have been the shortest “General” since Napoleon Bonaparte.
One of my wrap-up functions was to turn over to the appropriate German authorities all incriminating evidence regarding suspects who, because of time, financial, or other policy constraints, had never faced the Nuremberg judges. The new Bavarian Minister of Justice, Camille Sachs, a survivor of Nazi concentration camps, and his son, Hans, were entrusted with seeking additional prosecutions where such action was indicated. A “de-nazification” process run by the local governments sought out early supporters of the Hitler regime to impose civil or monetary penalties according to the degree of their complicity. Years later, the German Federal Government created a Central Office in Ludwigsburg to bring other German war crimes suspects to justice, but as many former Nazis were not willing to incriminate their colleagues, it grew increasingly difficult to obtain convictions in the German courts. The meager Nuremberg sampling remained the guiding light for the development of international criminal law.
One day I received a frantic call from Lt. Col. Wuest, who had been left in charge of our Berlin Branch. The Colonel responsible for the Berlin motor pool had directed Wuest to turn in all ten vehicles that still were assigned to our office. I telephoned the Colonel immediately and introduced myself as the Executive to GENERAL Taylor, with emphasis on the rank. He defended his order by noting that since the trials were ending he saw no need for further investigations or vehicles. He also could not refrain from expressing his pent up indignation that the former head of our Berlin office, “some guy by the name of Ferencz” had wrecked one of their finest sedans, a Maybach, and should have been court-martialed but got away with it.
Obviously, the officer on the line did not realize that he was talking to the man he was castigating. As the case had been dropped, I assured the Colonel that he could count on me to be fully cooperative. I would instruct our office to surrender three jeeps immediately and release the remaining seven as soon as feasible. With a volley of “Yes Sirs,” the Colonel thanked me profusely for my understanding. I inadvertently failed to mention that we could probably manage well with only five vehicles instead of seven.
One of my responsibilities as Executive Counsel was to deal with intransigent personnel problems. Collaboration among staff members and attorneys was very important, since newly discovered evidence might be vital to rebut alibis and lies offered by the defense. One of our able researchers, named Von Eckert, discovered the minutes of a conference that took place on January 20, 1942, when Nazi leaders met and agreed upon the detailed plan for “The Final Solution of the Jewish Problem.” In short, the Jews in Europe, estimated at some twelve million people, were all to be systematically murdered. Ordinarily, such powerful evidence would immediately be shared by all the Prosecutors. It wasn’t done.
The minutes of the meeting that became famous as “The Wannsee Protocol” was given to Robert M.W. Kempner, who was in charge of “The Ministries Case.” He had been a Prussian police official before fleeing to America. One of the participants in the murderous conspiracy was a lead defendant in “The Justice Case” headed by a feisty attorney, Charles M. LaFollette, of Minnesota. Of course, Kempner should have shared the evidence with LaFollette. But he didn’t. Perhaps he wanted it kept secret for use in rebuttal or perhaps he planned, at some opportune moment, to reveal it to the press with which he was very friendly. When Von Eckart learned that the document was not being shared, he blew the whistle. Very shortly thereafter, the enraged LaFollette stormed into my office to put me on notice that he was going to murder Kempner.
I didn’t think that killing the Chief Prosecutor of the Ministries Case was such a good idea since good replacements were hard to come by. I managed to straighten it out by finally coaxing Kempner to hand over the document from his locked drawer and by presenting it personally to LaFollette with apologies. Bob Kempner and I remained friends long after Nuremberg. I think he appreciated the fact that I had saved his life—or at least, his job.
In the 1990’s, the German government converted the villa at Wannsee into a museum that displays in shocking detail the original minutes of the Wannsee Protocol and the biography of all the murderous participants. No one, other than a liar and a fool, who sees those documents and the records of the Einsatzgruppen case, could ever doubt, or dare deny, the authenticity and horrors of the Holocaust. Nuremberg’s preservation of the historical record of incredible deeds may be its most lasting contribution.
Before closing shop in Nuremberg, over 150 tons of official Nuremberg trial records had to be assembled for shipment to Washington. Duplicates, in English and German, were to go to various educational institutions. Representatives of the Prosecution, Defense Counsel, and Court supervised the preparation of accurate and objective summaries of each of the twelve trials. I briefly served as first Editor of what became known as the “Green Series.” The publication was intended to record the historical truth and lay a foundation for the future development of international penal law.
General Taylor sent me to Washington to coordinate the transfer of records to the Judge Advocate Division of the War Department where a Colonel Young was to offer assistance. Since I have a terrible sense of direction, a good part of each morning was spent wandering through the maze in search of my office in the Pentagon. In due course, fifteen volumes were published in English by the U.S. Government Printing Office. An identical text was prepared in German. Unfortunately, it was never published, and since seems to have been lost. The U.S. Berlin command argued that there was an insufficient supply of paper and no further editions were needed. High-ranking army officers, with no legal training, failed to recognize that advancing the rule of law internationally was a means for preserving the peace and thereby protecting the lives of military personnel.
The historical value of the Nuremberg trials was hardly perceived by those who were involved in the process. Most of us were very young, enjoying the euphoria of victory, and the excitement of new adventures. Germany was in ruins, money had no value, we were victors in a land whose beaten inhabitants were primarily concerned with their own survival. We were constantly aware of the visible residue of the terrible war and its many innocent victims. The highest price had been paid by those who had barely survived the German concentration camps. Their only desire was to find the remnants of their families and to leave the cursed and blood drenched land as soon as humanly possible.
Concentration camp survivors did not understand why they were still alive. “Why me? Why me?” was the plaintive cry heard over and over again, as if there were some rational explanation for their unearned feelings of guilt. What hand guided them to safety and why? My wife and I frequently asked ourselves what strange happenstance had brought us to Germany. Our stay had been interesting and fruitful but Gertrude and I were eager to return home to start a normal life. After barely escaping death by plummeting off the Alps and later parachuting from a burning plane over the ruins of Berlin, perhaps it would be reasonable to wonder if Fate had something else in store for us? We would soon find out.