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.