(zu Seite 27)
vom 26. VII. 1949, S. 10 397 ff
(Stellungnahme zu Vorgeschichte und Stand der Untersuchungsarbeiten der sog. Malmedy-Kommission — "Special Armed Services Subcommittee to investigate the Dachau trials of those accused of war crimes during the Battle of the Bulge")
Mr. McCarthy. Mr. President, I should like to discuss in detail today a matter which I certainly do not enjoy discussing. I think it is a subject, however, which must be gone into in detail and brought to the attention of the Senate. It appears to me that it is especially appropriate to bring the matter up at this time while we are discussing the subject of giving financial aid to Europe. The subject I wish to discuss hat to do with the conduct of the American forces in meting out justice, or alleged justice, in the American occupied zones of Europe. It has to do with the investigation, or alleged investigation, by Army committees, and by one of our own Senate subcommittees.
Within the last 10 years this country has been involved in two major conflicts, both centering around the all-important issue of human rights — one, a fighting war with the totalitarian government of Hitler; the other, a cold war with the totalitarian government of Stalin.
The Senator from Connecticut (Mr. Baldwin) I know will wish to take exception to some of the things I am going to say, and for his convenience I give him a copy of my statement.
The first was the most expensive fighting war — in terms of the number of lives lost and the billions of dollars spent — that this country has ever fought. The second is the most expensive single project — in terms of dollars spent — that this country has ever embarked upon. Both of these conflicts have been concerned with stopping the spread of principles exactly opposite to ours. We have embarked upon both largely for the purpose of bringing to the people of the world the same standards of human rights that have been developed in this country. We have felt that it was a dangerous threat to our way of life to allow either of those governments, with their disregard for human rights, to move forward unchecked and force their set of standards on other people.
If then we feel it is this important to keep alive in the world the principle of the dignity of man, and our standards of justice and right; if we think it important enough to sacrifice the lives of hundreds of thousands of young men, and jeopardize the economy of our country by giving away billions of dollars, then it is of utmost importance that we demonstrate at all times to the people of the world that our form of government actually is what we say it is — that it is more fair, more honest, more decent than the governments they have known under Hitler or Stalin, and that our form of government stands for the rights of the individual over and above those of the state. In the face of what it has cost us to date to halt the spread of dictator-ships and totalitarian governments, it is our duty to demonstrate by our actions the purpose behind these two great conflicts — our firm belief in the importance of the rights of the individual.
A very serious question has been raised as to whether a few incompetent and irresponsible men representing this country in western Europe today are not going a long way toward defeating this purpose.
The manner in which some of the war crimes trials in Europe have been conducted does not in any way reflect the principles of fair play, decency, and honesty for which we Americans profess to stand. To look at the record of those trials it would appear that we have forgotten why we fought a war with Hitler and why we are spending billions of dollars abroad in an attempt to sell the democratic way of life over communism.
Regardless of the fact that the Nazis committed horrible acts of cruelty before and during the war, and regardless of the fact those guilty of war crimes are entitled to no sympathy, the fact is that representatives of the American people and of the United States Army are guilty of sacrificing the basic principles of American justice, guilty of failing completely to protect the rights of the innocent and convict only the guilty, and guilty of adopting many of the very same tactics of which we accuse Hitler and Stalin. The cost of their ignorance, bungling, and incompetence has been to almost completely nullify any moral value which the war crimes trials might have had.
The account which I am giving today will be an account of the manner in which members
and hirelings of the United States Army conducted war crimes trials and of the subsequent investigations of the conduct of these trials by two civilian judges, by an Army board, and by a subcommittee of the Senate Armed Services Committee. It is not a picture of which the American people can be proud. As Bishop Theophilus Wurm of Stuttgart, the aged leader of German Protestantism, said in a blistering statement issued to the press on the onesidedness and the problematic character of the methods used in the war crimes trials :
Never will the people of the town of Schwabisch Hall, who in the nights heard the cries of pain of the tortured beyond the prison walls, be made to believe that these investigators were servants of justice and not servants of revenge.
In order to give a clear picture of this situation, it is necessary first to recall some recent history with which most of us are acquainted.
On the 16th day of December 1944 the German Army started its final all-out attempt to destroy the Allied armies in Europe. The first target was our main supply port of Antwerp. In a period of several weeks, they destroyed and captured a vast amount of American equipment and killed and wounded hundreds of thousands of Americans. This entire operation, in which the Germans penetrated the Allied lines approximately 70 miles, is known as the Battle of the Bulge.
A combat team under Lieutenant Colonel Peiper was one of the German units involved in this final push. Combat Group Peiper was assigned the task of reaching the Mass River within a period of 2 days. This meant breaking through the Allied lines and traveling many miles in Allied-held territory.
During the Battle of the Bulge many war crimes were charged against various units of the German Army. Thirteen major incidents, besides a sizable number of minor incidents. One of the Major incidents was the massacre of between 40 and 80 Americans at the Malmedy Crossroads. All of the trials for war crimes perpetrated during the Battle of the Bulge, however, have come to be classed in a group known as the Malmedy cases. These war crimes trials were held at Dachau. In referring to the Malmedy cases, the reference is not only to the actual Malmedy Crossroads massacre, but also to a great number of alleged war crimes that occurred during the entire Battle of the Bulge — some of them at great distance from the Malmedy Crossroads.
It seems to be definitely established that part of Peiper's group was responsible for the crossroads massacre. Apparently there is no question about it. Most of this group were killed by Allied soldiers as they pushed forward into the Allied lines. The few survivors of the Peiper group who were at the crossroads as well as the balance of the Peiper units were rounded up from various prison camps at the end of the war and charged with most of the atrocities that occurred during the Battle of the Bulge, such as the shooting of Belgian civilians as well as American prisoners of war. After extended interrogation by members of the United States Army, practically all of the accused either signed confessions or signed statements implicating their coaccused. Seventy-four of the group were tried at Dachau and all convicted except one, who committed suicide during his questioning.
After the convictions, members of both the prosecution and defense teams who returned to this country made public statements to the effect that the methods used in getting convictions neither protected the rights of the innocent nor convicted the guilty, and that from the trial records there was no way of knowing whether guilty men or innocent men were being hanged.
One of the returning prosecuting attorneys, for example, stated that the deputy judge advocate in the European theater told the trial staff to "give the accused a fair trial and then hang them", and that the law member of the court ordered all members of the trial staff at Dachau in December 1946 to "pay less attention to the principles of American justice and jurisprudence in the trials of war criminals, and forget any knowledge of the spirit upon which our form of government was founded and fostered."
The claims of improper conduct on the part of American Army officers and civilians employed by the Army to obtain statements and confessions from the accused were so startling in nature that the then Secretary of the Army, Kenneth Royall, appointed two outstanding judges — Judge Edward van Roden of Pennsylvania and Judge Gordon Simpson of Texas — to go to Europe and make a complete investigation of the vast welter of charges and countercharges and give him a report thereon.
After an investigation, the Van Roden-Simpson committee made a report, which perhaps can best be summarized in the words of Judge Van Roden who said :
From the conduct of these trials, it is impossible to know whether the men being hanged are guilty or innocent.
The two civilian judges who were chosen to head this committee because it was felt they could and would approach the problem in an objective and disinterested manner, brought back a sordid story — a story to the
effect that the American interrogation team tortured the defendants by means of beatings, kickings, and other physical abuse, that they conducted mock trials and threatened harm to families of the accused in order to get the accused to sign confessions dictated by members of the interrogation team.
Some of the statements and confessions — The report states —
were obtained by the use of mock trials in which one or more persons attired as Army officers pretended to preside as judges and others attired in Army officers' uniforms pretended to be the prosecutor and, defender of the accused.
The report and the statements of other disinterested witnesses describe in detail the weird proceedings which took place during a mock trial and which were designed to intimidate the accused and lead him to believe it was his last chance to talk and that he was actually on trial for his life.
If I may describe the mock trial — and on this there is practically no dispute between the defence and the prosecution — one of the members of the prosecution team would go to the cell where the accused, who might or might not be guilty, was being kept in solitary confinement. In the middle of the night, the accused, his head covered with a black hood, would be led into a small dark room. In the center of the room a table covered with a black cloth on which stood a crucifix and lighted candles. On the interrogation team were phony judges.
Many members of the interrogation team were American citizens of very recent origin — German political refugees from Hitlerian Germany — employed by the Army because of their hatred for the defendants for the purpose of getting confessions from the accused, would then proceed to "try" the case — one pretending to be the defense counsel of the accused, another acting as the prosecuting attorney, others masquerading as judges and others as witnesses testifying against the accused. As one of them said, he would get a confession from any of the defendants that he murdered Abraham Lincoln, if such a confession were wanted.
The man would be brought up to the room where phony judges sat behind the table. There was a phony prosecution attorney, and there were phony witnesses. Then the defendant would be assigned a phony defense counsel.
Up to this point there is no dispute whatsoever in the testimony. After the trial was completed — and from this point on there is a difference of opinion — many of the witnesses give the remainder of the picture as follows : When the trial was completed, and after the defendant was sentenced to be hanged, the phony defense counsel who, during the trial, had won the confidence of the defendant, would go back to his cell and say, "If you will sign this confession which we have prepared, instead of hanging at sunrise we will get you off with 5 or 10 years."
There is evidence that at times phony priests and phony ministers were used. If those methods did not work, then the final set-up which was bragged about by Mr. Steiner — incidentally, he bragged so much about the confessions he obtained that an investigation which was made, indicated so bad a situation that finally he was discharged. Mr. Steiner was one of the interrogation teams.
I do not condemn men like Steiner so much, because he had every reason to hate and dislike members of the German Army. But I do condemn those who hired him to get confessions. He bragged about how he would take a man out, after a phony or mock trial, put a black hood over his head, lead him up three or four steps, put a rope around his neck and tighten it until he was unable to breathe, then loosen the rope and tell him that if he would sign a confession, he would get off with only 5 or 10 years imprisonment, instead of being executed. Of course it is not too difficult to get confessions under such circumstances.
. . . .
Beatings, kickings in the testicles, and other types of physical abuse of prisoners were also a part of the softening-up process employed by our questioners to get confessions from the accused despite the fact that it is one of the oldest established rules of Anglo-Saxon law that confessions secured by means of torture are absolutely worthless.
Obviously this system was effective in producing whatever type of confession or statement the questioner desired. It is an unquestioned fact that an innocent man will scream just as loudly as a guilty man when being tortured, and likewise that an innocent man will sign a confession the same as a guilty man if tortured enough.
The system was 100 percent productive in these cases. The trial records of this group of Dachau cases show that 74 of the accused were tried; 73 were convicted on the basis of confessions signed by the accused or statements by coaccused. The seventy-fourth man, incidentally, committed suicide during his questioning. If it had not been for that, so the chief prosecutor said, he would have had a perfect record and would have convicted all 74.
The Van Roden-Simpson Report, written by two civilian judges who had no personal interest whatsoever in the trials, was made public in January 1949.
Three months later, in March 1949, an Army
board headed by Col. John Raymond concluded another investigation into the conduct of war crimes trials of these cases and submitted its report thereon. This Army board was appointed to further investigate the charges, confirmed by the Van Roden-Simpson Committee, that physical torture, mock trials, mock hangings, and so forth, were employed to secure confessions with which to convict the accused.
The Raymond Board substantially confirmed the findings of the Van Roden-Simpson Committee. In fact, it added the findings that members of the Army's prosecution staff, under the guise of "taking care" of the husband's case, "fraternized" — for want of a better word — with wives of the accused who moved into the town of Dachau during the trials. The Raymond Army Report also stated that "representatives of the prosecution threatened harm to relatives of the accused if they would not confess." In fairness, however, it should be stated that several of the prosecution team who took the wives of some of the accused to the officers' club and got them liquored up, and so forth, were discharged, and were sent back to the United States.
As to charges of physical violence, the Raymond Board cited from an affidavit signed by Dr. Knorr, the dentist at Schwabisch Hall, which showed that he "treated 15 or 20 of the suspects for injuries to the mouth and jaw, apparently inflicted by blows."
After confirming the charges that convictions were secured by means of confessions and statements gotten from the accused as a result of torture, the Raymond Board concluded :
The methods employed in interrogation, however, had a definite psychological effect on the defendants and resulted in their being more amenable to giving statements.
This statement in the Army report, as much as the charges of misconduct against the Army prosecution staff, greatly disturbed our Special Senate Investigating Committee and convinced our members that the matter should be investigated thoroughly and completely by a fair and impartial committee.
It was decided by a unanimous vote of our Special Senate Investigating Committee that we investigate the conduct of the war crimes trials in American occupied Europe for the purpose of (1) recommending any changes we consider desirable or necessary in the judicial system under which these trials were conducted, and (2) determining the facts in regard to the alleged torture and duress used in obtaining confessions from accused and statements from witnesses, and to determine whether it was possible to know whether we were hanging the guilty or the innocent.
I very strongly felt that because of the actions of a group of vengeance-minded, irresponsible, and completely incompetent men representing this country in western Europe our Government had been placed in the position of condoning a brand of brutalitarianism worse than that practiced by the most morally degenerate in either Hitler's or Stalin's camp — as though morality and right could be determined by national tags.
I felt that if we in the United States Senate were to sit idly by and not raise a voice against the use of Hitlerian and communistic tactics by a group which is certainly not representative of the American Army or the American people, it could mean only one thing to the world. It could only mean that their ways were our ways and that the democratic way of life, which we are spending billions of dollars to sell to the people of the world, sanctioned a brand of justice that compares unfavorably with the worst in history.
If the criminal phase of a judicial system protects the rights of the innocent and convicts and properly punishes the guilty, then it is a good system; otherwise, it is bad. If what the Van Roden-Simpson Committee and the Raymond Board said is true, then the American system of meting out justice in western Europe was neither effective in protecting the right of the innocent nor in convicting the guilty.
If the tactics used by our Army could be justified because they "created the right psychological atmosphere in which to secure confessions," then by the same rule either a Hitler or a Stalin could justify his actions in like manner.
After unanimously agreeing to conduct an investigation into the conduct of war crimes trials in western Europe, it was decided by our Special Senate Investigation Committee to invite the Judiciary and Armed Services Committees to participate.
The chairman of the Armed Services Committee vigorously protested against such an investigation by our committee on the ground that the Armed Services Committee alone had jurisdiction to conduct the investigation. He, thereupon, appointed the Senator from Connecticut (Mr. Baldwin) chairman of a Special Armed Services Subcommittee to "investigate" the Dachau trials of those accused of war crimes during the Battle of the Bulge. Other members were the Senator from Tennessee (Mr. Kefauver) and the Senator from Wyoming (Mr. Hunt).
The selection of members to this Armed Services Subcommittee greatly disturbed those of us who were concerned with getting a fair and unbiased investigation. It was, of course, extremely unusual that a Republican Senator should have been appointed chairman of a
committee which was controlled by the Democrats. The reason for this departure from the usual Senate rules was, however, rather easy to see. The selection of the Senator from Connecticut (Mr. Baldwin) was even more unusual and questionable in view of the fact that he had previously indicated on the Senate floor on January 27, 1949, that he believed the charges of misconduct were groundless. He did request an investigation, however, so as to give a certain young man from Connecticut an opportunity to answer these groundless charges.
It later developed that the young man from Connecticut, whom the chairman of this subcommittee defended on the Senate floor, was Dwight Fanton, his law partner.
Major Fanton was in command of the team that got the confessions and statements from the accused. He was in complete charge of those who both the Raymond Army Board and the judges' committee reported had used physical force, mock trials, and so forth, to get confessions. Whether these charges against Major Fanton were true or false — whether he was completely competent, as he claims, or shamefully incompetent as the above report and the testimony of some of the witnesses would indicate — was one of the very important matters upon which the committee would have to make a decision.
I felt that another investigation of this matter would be a complete waste of time and effort if it were not conducted in a completely fair and impartial manner. I felt that the Senator from Connecticut (Mr. Baldwin), because of his close personal connection and his partnership with Major Fanton, one of the men whose actions were to be investigated, and because of his previous statement on the Senate floor, labeling as groundless the charges found to be true by both the Van Roden-Simpson committee and the Raymond Army Board, was most assuredly not the man to head up an investigation which, if it were to be worthwhile, had to be impartial and unbiased.
When it was called to the attention of the Senator from Connecticut (Mr. Baldwin) that an investigation of his own law partner by him would be a farce since he had already in a speech on the Senate floor, in effect labeled Fanton simon-pure, Baldwin did not step aside to let a disinterested Senator take over the chairmanship.
. . . .
While I do not doubt that the Senator from Connecticut honestly felt that it was necessary for him to head this subcommittee so as to bring out what he considered to be the truth, it has long been the practice of judges and chairmen of committees to step aside under similar circumstances — not because they themselves felt they could not be fair, but because conditions were such that in the eyes of the public a fair hearing would be impossible.
. . . .
Mr. President, let me make it clear that I am not asking the Senate to discharge the Senator from Connecticut as chairman of the subcommittee. If the Senator from Connecticut thinks it is proper for him to sit in judgment on his own law partner, and do something which I think is completely shameful, I do not believe that it is incumbent upon the Senate to discharge him. I think, however, we should recognize that fact that the work of the committee and its report will be completely useless and worth nothing at all.
I wish to repeat what I have already said : I do not doubt that the Senator from Connecticut honestly felt that it was necessary for him to head this subcommittee so as to bring out what he considered to be the truth. However, it has long been the practice of judges and chairmen of committees to step aside under similar circumstances, not because they themselves felt that they could not be fair, but because conditions were such that in the eyes of the public a fair hearing would be impossible.
I understand that the Senator from Connecticut is very shortly to go on the bench. I sincerely hope that when he sits on the bench, if ever a situation like this arises, in which he is called upon to pass upon the rights of someone as close to him as Mr. Fanton is, he will have learned a lesson, and will disqualify himself.
The Senator from Connecticut has said that no one is on trial today. I submit that someone is on trial. The entire United States Senate is on trial. The American system of justice — if we can call it that — in our occupied area is on trial. We should be engaged in the most soulsearching investigation to find out whether or not all the charges and countercharges which have been made by two disinterested judges who went to Europe are true. In their report they say, in effect that the Senator's law partner was criminally incompetent in the way he conducted the investigation. The Senator's job was to determine whether or not that report was true.
Prior to being appointed chairman of the subcommittee the Senator from Connecticut rose on the floor of the Senate on January 17 and asked for an investigation not to determine whether or not the charges of the Van Roden-Simpson committee and the Raymond board were true or false. He himself had previously decided that they were false. He said those charges were groundless. He asked for an investigation so as to give "a young man from Connecticut" an opportunity to come before
the committee and prove that the charges were groundless. At that time the Senator did not notify the Senate that this young man from Connecticut was his former law partner. I cannot believe that the Senator went before the Armed Services Committee and told the Armed Services Committee that Maj. Dwight Fanton was his law partner, and that Maj. Dwight Fanton was in charge of all the medieval torture methods, and that, having that information in mind, the committee said, "Senator Baldwin, we want you in charge of the subcommittee".
It is not a question of whether the Senator from Connecticut can fairly conduct the subcommittee. It is a question of what the people of the Nation will think about the United States Senate. It is a question of what the people of the world will think about this country if we appoint a man to conduct an investigation and make a report on his own law partner, who is now bragging that he himself is writing the report.
. . . .
He has so bragged an dozen times. The Senator knows that. I went to the office of the Senator from Connecticut and asked him, for his own good, not to take the chairmanship of this subcommittee. The Senator knows that I have a high regard for him. I explained to the Senator how improper I thought it was, and what the people of the Nation would think about it. The Senator from Connecticut said, "No; I will take it up with the committee, and if they are willing to have me sit, I will continue."
It is a reflection upon the integrity of the entire Senate that a chairman should have been appointed to a subcommittee whose job it was to investigate his own law partner, a man whom he had already defended. Furthermore, in maintaining this position, the Senator from Connecticut aggravated the feeling that a deliberate whitewash was being conducted by the United States Senate.
Ralph Shumacker, the former law partner of the Senator from Tennessee (Mr. Kefauver), the second member of the subcommittee, was a member of the interrogation team at the time of the alleged brutalities, and later assistant trial judge advocate in the trials being investigated.
The third member of the subcommittee, the Senator from Wyoming (Mr. Hunt) did not, to my knowledge, have any personal connection with the case. The Senator from Tennessee has appeared on the floor and stated that Ralph Shumacker was not his law partner, but a young lawyer employed, by his law firm for 2 years, so the statement is corrected to that extent.
. . . .
Mr. President, I may say in connection with the young man Shumacker, the former employee of one of the members of the subcommittee — and I say this to give the Senate some conception of how these young men regarded their duties and what they felt their duties were toward the defendants and toward the court — that when Mr. Shumacker was on the stand and I was questioning him, after Colonel Ellis had left the stand, I said to him, "Mr. Shumacker, do you feel that it was Colonel Ellis's duty, when he found that a confession was false, when the chief of the prosecution found that a confession he had presented to the court was false, then to so notify the court?"
Mr. Shumacker came up with the unusual answer. "Not if it would hurt his case".
Of course, Mr. President, it would hurt his case. If for example, someone, had extracted from John Jones a false confession to the effect that he had murdered someone, and if the prosecution introduced that confession in the trial, and thereafter learned that the confession was false, and so stated in court, and so notified the court it would lessen the chance of a conviction. Yet, according to that witness, the prosecuting officer should have taken the position that it was not his duty to tell the court that the confession was false, if it would hurt his case.
Mr. President, I was designated by the Senate Special Investigating Committee to sit in with the Armed Services Subcommittee as an observer, because of our committee's interest in the matter.
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As the hearings progressed, I became more and more convinced that the subcommittee was interested almost solely in a complete whitewash of those involved.
Under my cross-examination of the committee's witnesses, however, rather fantastic concepts of the rights of the accused and the method of administering justice were developed. For example — and I ask any members of the Senate who ever were lawyers to listen to this — for example, Major Fanton issued an order, "SOP No. 4", which gave the interrogators, some of whom were not American citizens, the right — Mr. President, listen to this, if you will — the right to offer immunity to any of those charged with being war criminals if they would tell a story of sufficient value to convict other alleged war criminals.
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This, of course, placed a premium upon lying and, in my opinion, was responsible for freeing some of the worst of the war criminals. If, for example, Defendant Jones were accused, of killing four American prisoners of war during the Battle of the Bulge, he could
be offered his freedom by one of the interrogators, after having first obtained Fanton's permission, if he would sign a statement which would effectively convict other war criminals.
. . . .
"SOP Nr. 4" also proceeded that "any ruse or deception may be used in the course of the interrogation." In this connection it should be noted that the Army board found that one of the ruses used was mock trials, and another one was telling the accused that his family would be deprived of ration cards if he did not sign a confession.
The above orders issued by Major Fanton, who was in charge, become doubly important when viewed in connection with what Colonel Ellis, the chief of the prosecution staff, felt were his duties to the court and to the defendants.
To give an idea of the background of the man whom the Army selected to handle one of our most important criminal cases, Colonel Ellis, on the stand, testified he had graduated from law school, I believe, roughly 10 years previously, or thereabouts, or, I think he had been in private practice for 10 years. I think that was it. Upon being asked whether he had tried any criminals cases, he replied they were not exactly criminal cases, but he had tried about 10 cases. Upon further questioning it was developed that the 10 cases he tried during the 10 years he had been in private practice, the 10 times he had been in court, were default divorce cases. That is the background of the lawyer whom the Army selected to try this most important criminal case.
I hope the Senate will understand I am not criticising Colonel Ellis. I think the young man just did not have the ability. He did not have the legal ability to perform the work that was assigned to him. That was not his field. It was the fault of whoever selected him for that work. His conception of his duties as chief prosecutor can perhaps best be shown by a very brief excerpt from his testimony under my cross-examination at the hearing. He was being questioned in regard to a confession — which had been obtained, according to the defendant, after medieval torture methods were used on him — a detailed confession of the deliberate murder of a Belgian woman in the town of Bullingen, a confession which the Army Frankfort board found to be false.
Question by Senator McCarthy : Did you not think it was your duty to tell the court that your investigator went over to this town of Bullingen and that your investigator reported back to you that it appeared that the confession was false and that this woman was not shot?
Colonel Ellis. I do not think my duty went to that extent . . .
Later, Mr. Shumacker, one of the interrogation team and also one of the prosecuting attorneys, in referring to this testimony on the part of Ellis and in an apparent attempt to justify Ellis's position, had this to say :
I do not believe, Sir, that it is the duty of an attorney on either side of the case to point out the weaknesses of his case.
The question and answer immediately following this comment on the part of Shumacker shed some further light on the qualifications of the prosecution staff.
Question by Senator McCarthy : You said you did not think any attorney should present any weaknesses in his case. Now I, myself, have been in a number of court martial proceedings, both as prosecutor and as defense attorney. I have always understood that a prosecutor in a courtmartial case had a duty to present not necessarily what you or I would consider a strong case, but rather all of the facts, and if there are any facts which would help the court, not to find a man guilty, but do determine whether he should be found guilty or not, that then it is the duty of the prosecuting attorney and the defense attorney, to present all those facts to the court? Is that not the clear duty you have?
This is a question being asked the prosecuting attorney, and here is his answer :
I think I tried one court martial case in my experience.
Before the hearings commenced, I was informed by the staff that the first witness to be called was an alleged survivor of the Malmedy crossroads massacre.
I informed the subcommittee at that time that if this were done, it would immediately justify the fears of those of us who felt that the subcommittee was interested in clouding the issue and whitewashing those involved.
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It was called to the subcommittee's attention that everyone agreed that the Malmedy massacre occurred, that it was an atrocious and unexcusable war crime, and that those who were guilty of this atrocity should be punished.
I reminded the subcommittee that there was no question about the Malmedy massacre having occurred, and that there was no necessity for proving this. The question which we were to determine was the question of whether or not we had the right men, whether we were hanging the guilty or hanging the innocent.
I informed the subcommittee that in my opinion the only purpose of calling witnesses to rehash the details of this war
crime was to inflame the public mind and attempt to create a blind demand for vengeance on someone in retribution without regard to the question of the guilt or innocence of those being punished.
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The core of the situation we were investigating was, of course, the truth of the charges that members and employees of our military were guilty of applying torture to the accused in order to secure confessions. The four men principally charged with these alleged brutalities were Mr. Perl, Mr. Kirschbaum, Mr. Steiner, and Mr. Thon, at least three of whom were refugees from Hitlerian Germany. It appeared that two of these interrogators had very ample grounds to thoroughly hate the German race. For example, there was testimony to the effect that Steiner's mother had been killed by the Germans and it also appeared that Perl's wife had been confined in a concentration camp for approximately 1 1/2 years. While it would be difficult to criticize those four men for hating the German soldiers after they had personally suffered so heavily at the hands of Hitlerian Germany, the members of our Army who hired them and gave them such unlimited latitude in handling prisoners, most certainly were guilty of shameful conduct, and the man in the Army who did the hiring, was none other than our friend Maj. Dwight Fanton.
On the one hand those men denied the charges of torturing defendants, to secure confessions, while on the other hand statements of defendants and Army personnel at Schwabisch Hall confirmed the charges. It was obvious, therefore, even before the hearings started that either those who charged the interrogators with brutalities or the interrogators themselves were lying,. It was obvious also that neither group would admit having committed perjury.
If the charges were true, then they were so repugnant to the American sense of fair play and decency that the men guilty should be exposed. If, on the other hand, the charges were not true then the men accused of brutally mistreating the accused in order to get confessions should be cleared in the eyes of the public.
One of the interrogators appeared before the subcommittee and testified that under no circumstances did he ever kick, beat, starve, or mentally torture any of the defendants in order to get a confession. That was Mr. Perl. He had previously testified at the trial at Dachau, both times under oath. When his answers before our subcommittee appeared directly contradictory to those he made at Dachau and when he was questioned as to when he was telling the truth — at Washington or at Dachau — he retorted that he was telling the truth at both times.
By way of explanation he quoted a philosopher's definition of the truth to the effect that, and I call the attention of the Senate particularly to this. Here was a man caught telling contradictory stories under oath, and this was his definition of the truth. He said :
The truth has many faces each of which when taken alone is a lie, but when taken together constitute the truth.
Let me repeat that. This mans a definition of truth by the interrogator who was caught in deliberate lying, according to the record. He said :
The truth has many faces each of which when taken alone is a lie, but when taken together constitute the truth.
I thereupon suggested to this interrogator, Perl, that he submit to the Keeler lie detector which has been proven infallible in hundreds of important criminal cases and which has been used extensively in Wisconsin, Michigan, Illinois, and other States with the consent of the defendant. He reluctantly consented to do so.
The chairman of the subcommittee immediately ridiculed the idea and took the position that it was unfair to suggest that anyone wearing the American uniform would be guilty of deliberate lying.
At that time I withdrew from taking part in these proceedings and made the following statement :
I wish to announce that I will no longer take part in the hearings of the Armed Services Committee investigating the war crimes trials. I arrived at this decision with great reluctance, but I can no longer conscientiously participate.
I was designated by the Senate Investigations Subcommittee to participate with the subcommittee of the Armed Services Committee in this inquiry. Since April 18, 1949, I have sat with this committee, listened to and cross-examined witnesses. I am convinced of several things : (1) that the subcommittee is not sincere in its investigation; (2) that it is not conscientious in pursuing the facts.
As a practicing lawyer and a judge on the circuit bench in Wisconsin, I know and respect the American system of justice. I believe the world expected a demonstration of American justice to be applied to even our defeated enemies. Instead Gestapo and OGPU tactics were used.
I have listened to testimony and seen documentary evidence to the effect that accused persons were subjected to beatings and physical violence in such forms as only could be devised by warped minds. They were subjected to sham trials, to mock
hangings, and families were deprived of rations — all of which the prosecution justified as being necessary to create the right psychological atmosphere in which to obtain confessions. I am firmly convinced that innocent as well as guilty persons thus put in the right psychological atmosphere will confess to or make statements supporting anything.
I want no murdering Nazis freed.
I do want the innocent protected from the abuse of Hitlerian tactics. Fascist interrogation, and the communistic brand of justice.
Consistently the evidence pointed to four interrogators. One in the course of his appearance before the subcommittee agreed to take a lie detector test as to whether or not brutalities were used in securing confessions or statements. The chairman of the subcommittee objected to the use of the lie detector test. The subcommittee chairman submitted the question to the Armed Services Committee, but they objected to securing such facts as would be developed by the lie detector test. I accuse the subcommittee of being afraid of the facts. I accuse it of attempting to whitewash a shameful episode in the history of our glorious armed forces. I accuse it of compounding a wrong, perpetrated by a few members and impugning the fair name of the millions of men and women who served with valour and distinction in the armed services. I accuse it of sabotaging our efforts under the European Recovery Act, setting at naught that which we spent and are spending billions to accomplish. If this is allowed to stand, if the whitewash succeeds, the United States can never protest the use of these methods by totalitarian countries. If the United States condones these actions by a few men, all the world can criticize and forever after question our motives.
In this connection it might be well to cite the facts in several cases which I consider rather typical insofar as the value of the confessions and statements secured at Schwabisch Hall are concerned.
Max Rieder confessed to the very brutal murder of an unarmed woman in the little Belgian crossroads hamlet of Bullingen. His confession, like all of the confessions obtained, was very detailed. It explained how he walked into the house, exactly where he found the husband and wife, how he asked if any American soldiers were around and when he was informed that there were no American soldiers in the house how he then stopped back two meters and shot the woman through the forehead. He explained how the husband ran out of the house before he could shot him and how he and his companion made sure the woman was dead before leaving the house. "Otherwise", his confession reads, "I would have shot her again." The confession goes into gruesome detail as to how the brains were seeping out the back of her head onto the floor of the cottage. The defendant was convicted and sentenced to die.
This defendant, however, as well as practically every one of the other 73 defendants convicted in this mass trial, signed an affidavit claiming that he was tortured until he signed the confession and that there was not one word of truth in it.
An Army board known as the Frankfort Board which reviewed this case set forth the fact that an investigator was sent to the town of Bullingen to investigate the matter and found that the confession was completely false. The investigator brought back affidavits from the registrar, the burgomaster, and the woman's husband, witnessed by the parish priest, to the effect that the woman in question was killed by a shell or grenade while fleeing from a raid and that she was the only woman in this little village who had died during the war from other than natural causes. The undertaker also certified that there were no bullet wounds on her body. The Frankfort Board therefore, held that the conviction, on this ground, must be set aside.
The final authority, that is the Army board reviewing the case, in the Judge Advocate's office in Germany, however, dismissed the recommendation of the Frankfort Board and upheld the conviction without any discussion of the facts in the case — listen to this, if Senators will — except the statement that the defendant was old enough to know it was wrong to kill Belgian civilians.
Can anyone conceive of such a thing, Mr. President. Here we have a confession which the Frankfort Board says was utterly false. It was shown by the husband's statement that the woman was not shot. Therefore the Frankfort Board found there was no truth in the confession, and recommended that the conviction be set aside. What does the Judge Advocate's office in Germany, under General Clay, do? It upholds the conviction without discussing the evidence, and merely says "that the defendant was old enough to know it was wrong to kill Belgian civilians."
That is one example of American justice.
Another case was that of Rudolph Pletz who was convicted of one of the most unexcusable crimes. The facts offered by the prosecution were to the effect that Pletz was a machine gunner in one of a line of tanks travelling through a small Belgian village, that there were some 25 or 35 unarmed American prisoners of war standing with their hands over their heads in front of a little crossroads
store and that Pletz opened up with his machine gun with no orders whatsoever to do so and deliberately murdered all of the unarmed American prisoners. He was convicted and sentenced to death.
The defense in this case claimed that no American prisoners had ever been shot in this particular town, but that there had been an unfounded rumor of such a shooting and that the interrogators, without even checking to determine the truth of the rumor, had decided to convict someone of the "crime". The evidence was, for example, that these prisoners were not even prisoners of his tank unit. There was no evidence whatsoever that Pletz operated under any order. The evidence was that this young man opened up with his machine gun and mowed down 25 or 35 unarmed American prisoners of war.
The Frankfort Army Board recommended the conviction be set aside because investigation showed that, first, not a single individual in the little Belgian hamlet had ever heard of any American prisoners of war being killed in that town; second, the grocer before whose store they were allegedly murdered stated positively that he knew nothing about any shooting, and third, the American unit which came through this town immediately after the German tank corps passed through found no indication whatsoever that any American prisoners had been killed.
Again the final reviewing authority's action was fantastic, I believe, beyond words. It ignored the Frankfort Board investigation and dismissed the matter by merely stating that because of the youth of the defendant, his sentence would be reduced to 20 years.
It is said the defendant was 21 years of age. Men younger than that were hanged, so the youth of the man had nothing to do with the case. There we have a case in which the Frankfort Army Board said there was not a word of truth in the case against the defendant; that no one in the little hamlet had ever heard of any American prisoners of war being killed in the hamlet; the grocer before whose store they were said to have been murdered said he know nothing about any shooting, and the American unit which came through immediately after the German tank corps passed through, found no indication whatsoever that any American prisoners had been killed; that no bodies of Americans were found. Yet the final reviewing authority does not bother to go into the evidence at all. It merely says that because of his youth his sentence will be reduced to 20 years. Any man who has ever been inside of a court, who has any conception of justice, could not fail to see the injustice that was done in that case. Either this young man was guilty of the most deliberate willful murder of which we ever have heard, by deliberately mowing down 25 or 35 unarmed American prisoners, with their hands over their heads, or if he was not guilty of that, he was guilty of nothing. If he was guilty of such deliberate murder obviously he should have been hanged. If he was not guilty, certainly he should not serve 20 years.
Multiply these examples by hundreds and Senators will have some conception of American justice as meted out to a defeated enemy over whom we now have the power of life and death.
Mr. President, America came into Europe with clean hands. The people of the world had come to respect not only America's great military and economic power but also to respect and admire her conception of decency and fair play and above all her judicial system, which gave every man, no matter how unimportant, and no matter how much in the minority, his day in court. This vast wealth of good will and admiration which had been built up over the years is being dissipated by a few men of little minds who, unfortunately, in the eyes of the world, represent the American people.
Those of us in Washington who are charged with the job of representing the American people must not continue to blind our eyes and close our ears to a situation which is building up an unnecessary volcano of hate and which can do more to communize western Europe than all the workings of Stalin's agents. History has written with an indelible hand — yes, written in blood, if you please — that a nation cannot sow degenerate winds without ultimately reaping the whirlwind.
Recently the Baldwin committee announced that it had decided to take this investigation to Germany and that they were going to take with them three Public Health Service doctors to submit all the defendants to a physical examination in order to determine the truth of the charges that mental and physical torture was used to get confessions. In other words, they are going to look for bruises and marks of beatings and kickings that took place more than 3 years ago.
This, of course, is proper in the few cases where permanent disability is claimed in the affidavits. However, all the defendants are to be given a physical examination on the theory that if no bruises still remain after the passage of 3 years' time, then the claims of torture are untrue.
Rather conveniently, the subcommittee has overlooked the fact that a mock trial leaves no scars or bruises, nor does a mock hanging, nor does the fact that a man has been threatened that harm will come to his family leave the kind of scars and bruises that can be seen even by the expert eye of a doctor. Even
the kickings, the beatings, after 3 years' time, leave no marks.
The doctors' report showing no bloody scars will, of course, be of assistance in seeing this investigation through to the glorious finish of a whitewash report. The medical report will supply part of the proof needed to support a committee report that the actions of the interrogators were above reproach.
The trip, obviously, will not only be a complete waste of time and effort, but a complete waste of money. It will cost thousands to transport the three subcommittee members, the staff, the Army officers who have been invited by the subcommittee to go along, and the three Public Health doctors to and from Germany with all the additional living expenses and cost of conducting the investigation.
In this connection, it should be remembered that at the time I suggested that the lie detector be used on the interrogators charged with torturing the defendants, one of the objections raised was the cost of transporting these four men all the way to Chicago.
In closing I would like to predict the contents of the report which the Armed Services Subcommittee will issue after it has finished its investigation.
First. It will attempt to call up all the emotions of war hatred and concentrate solely on the gruesome details of the Malmedy crossroads massacre, which is one of the many war crimes involved in these cases.
Second. It will wave the flag and speak of the white crosses over the graves of the American dead.
Third. It will ask, in self-righteous phrases, why — in view of the massacre and the atrociousness of this war crime — the Government of the United States of America should concern itself with applying decent rules of justice to these "vicious criminals".
Fourth. It will purposely avoid the inescapable fact that the conduct of these trials makes it impossible to know whether what they call vicious criminals or innocent men have been convicted and are being hanged.
Fifth. It will refuse to recognize the fact that accused men are not guilty unless and until proven so.
Sixth. It will disregard, gloss over, or attempt to discredit the findings of the committee composed of two disinterested and impartial judges selected by the Army Secretary to investigate this matter and also the findings of the Army Board which found the charges to be true.
Seventh. It will reflect what in my opinion was the main concern of the committee during the hearings — namely, a whitewash of the law partner of the chairman of the subcommittee and those who worked under and with him.
Our Special Senate Investigating Committee, whose original interest in this matter spurred the Armed Services Committee on to commence their so-called investigation, is no more satisfied today that this matter has been given a fair and impartial hearing than it was when the first meeting of the Armed Services Committee was called on this matter and the members to the subcommittee were selected.
In my opinion, the chairman's sense of values that places the reputation of a few men over and above the reputation of American standards of justice and respect for human rights has made a fair hearing impossible. A complete failure to understand the relationship of the conduct of these trials to our purpose for fighting a war and for launching a multibillion dollar aid-to-Europe program has helped to make a fair hearing impossible.
In a final attempt to get at the truth and make it known to the world that neither the United States Government nor the American people condone this complete disregard for individual rights and this prostitution of American principles of justice, the Special Senate Investigating Committee voted unanimously to request the Inspector General of the Army to conduct a thorough investigation of all European war crimes trials conducted by our military forces including —
One. A thorough investigation of all the death cases.
Two. A spot check of a number of cases which were tried by the Army in an attempt to determine whether the facts found by the Van Roden-Simpson committee are true or false.
Three. That the Inspector General make a complete investigation of conditions at Landsburg Prison. This is something with which the Senator from Connecticut and his subcommittee have had nothing to do. I do not in any way blame them for not going into this matter. It was without the scope of their inquiry. The reason for the last request is that we have had almost an unlimited number of complaints from the clergy, both Catholic and Protestant, in regard to the treatment of prisoners at Landsburg Prison — complaints to the effect that the administration at Landsburg has made it almost impossible for either Catholic or Protestant chaplains to operate within the confines of the prison walls. That is where the so-called war criminals are quartered.
In closing it might be well to remember the words of Winston Churchill when, as a young man, he was pleading for the lives of the Cape rebels in the Boer War :
Over battlefields the grass grows quickly; Over gallows the grass grows never.
(zu Seite 28)
by William Henry Chamberlin
("Human Events", a weekly analysis for the American citizen, Vol. VI, No. 20, Issue Number 277, May 18, 1949)
With the recent conviction of nineteen out of twenty-one defendants the thirteenth and last of a series of so-called war crimes trials, held with American participation or under American auspices in Germany, has come to an end. As a result of these trials 1539 persons were found guilty and 444 were condemned to death. Most of these sentences have been executed; some have been commuted; a few are still pending.
The cost of these unprecedented trials to United States taxpayers is estimated at from nine to twelve million dollars. The cost in the sacrifice of basic ideals of equity, legality and sound international relations is immeasurable. For these trials were not, as Supreme Court Justice Robert H. Jackson and others have asserted, a vindication of eternal principles of law and morality.
On the contrary, the whole organization and procedure of these trials represents a negation of some of the most essential elements in the Anglo-Saxon conception of the rule of law. Senator Taft put his finger on an fundamental defect when he said recently :
"My objection to the Nuremberg trials was that, while clothed with the forms of justice, they were in fact an instrument of government policy, determined, months before at Teheran and Yalta."
Other points of criticism, which future objective historians and legal commentators are not likely to overlook, may be briefly summarized as follows :
(1) There was no pretense of equal responsibility before the law. Only Germans were punished, in many cases for actions which were also committed by some or all of the victorious Powers. Yet what distinguishes a genuine court of justice from a lynching mob is the observance of the principle that law is applied universally and objectively.
(2) The very important principle that judges and juries should have no personal interest or prejudice in the cases they conduct was not and could not be observed in a trial of vanquished by victors.
(3) This defect of the trials was aggravated by the excessive participation of American citizens of very recent origin — German political and racial refugees who in some cases were animated by an altogether understandable desire for revenge.
(4) The conduct of at least some of the trials was vitiated by the extortion of confessions by methods of extreme brutality and deceit.
(5) Like many other developments of the Twentieth Century these trials of vanquished by victors represent retrogression, not progress. They recall the practices of twenty centuries ago, when captured rulers were strangled after being led in Roman triumphs. They are more likely to promote wars of extermination than to serve as war deterrents.
(6) The trials set dangerous precedents and violated such known principles of national and international law as the rule that there can be no ex post facto punishments. Among the precedents are the holding of military and civilian officials responsible for carrying out the orders of their superiors.
Under this precedent every military or naval officer who takes part in framing war plans may be indicted as a promoter of aggressive war — if his country is on the losing side.
These considerations hold good quite irrespective of the fact that acts of horrible cruelty were committed by the Nazis before and during the war, and that many of those who suffered death or imprisonment in the war trials are entitled to no sympathy on the basis of their records. The real case against the war trials is not what they did to some fifteen hundred Germans, but the serious injury they inflicted on Western standards of impartial justice and moral consistency.
One of the counts in the indictment against the Nazi leaders at Nuremberg was the planning and waging of wars of aggression. It is now a matter of public historical record, and was well known at the time of the Nuremberg proceedings, that the German attack on Poland on September 1, 1939, closely followed a secret agreement with the Soviet Union dividing a large part of Eastern Europe between the two Powers. In accordance with this treaty the Soviet Union invaded, annexed and oppressed the eastern half of Poland, and later overran the three independent Baltic republics, Latvia, Lithuania and Estonia.
If the punishment of aggressive war was the purpose of the Nuremberg tribunal, then the place of the Soviet representatives was in the dock with the accused, not on the bench with the judges. In view of the markedly different treatment meted out to Nazi aggression and to Soviet aggression, it seems a reasonable deduction that the Germans were punished not for waging aggressive war, but for losing it. Many moral inconsistencies and legal non sequiturs of the Nuremberg judgment are pointed out in Montgomery Belgion's excellent work, Victors' Justice (now available in an American edition, Henry Regnery Company, Hinsdale, Illinois). One is especially worth noting. This is the verdict in the case of Admiral Karl Doenitz. The tribunal stated :
"In view of all the facts proved and in particular of an order of the British Admiralty announced on 8 May, 1940, according to which all vessels should be sunk at sight in the Skaggerrak, and the answers to interrogatories by Admiral Nimitz stating that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that nation entered the war, the sentence on Doenitz is not assessed on the ground of his breaches of the international law of submarine warfare."
The implications of this ruling are breathtaking. A German naval commander was granted immunity if he committed only breaches of international agreements about submarine warfare which had been consistently practiced by the Americans and the British! However, this principle was not observed in many of the war crimes judgments. For, apart from the maniacal extermination of the Jews, almost every Nazi war crime was committed by all or some of the victorious Powers. This is true as regards forcible annexation of foreign territory, launching of aggressive war, rape, looting and other excesses committed against civilians, mass uprooting and expulsions, large-scale exploitation of war prisoners for slave labor. Such actions are either criminal, regardless of who commits them, or they are not. The war crimes tribunals meted out punishment only to Germans.
The moral value of the war crimes trials was further nullified by the methods often used to extract confessions. Most notorious and unsavory was the third degree treatment applied to the defendants in the Malmedy trial, a large group of German soldiers charged with killing American prisoners during the Battle of the Bulge.
An Army commission, headed by Justice Gordon Simpson of the Texas Supreme Court, investigated this matter recently and came to the conclusion that "highly questionable methods which cannot be condoned" were used in obtaining the "evidence" and "confessions" on which the Malmedy verdicts were based. Judge Edward L. Van Roden, a member of the commission, spelled out these methods as : beatings and brutal kickings; knocking out teeth and breaking jaws; mock trials; solitary confinement; posturing as priests; very limited rations; promises of acquittal.
Colonel Willis M. Everett, an American officer in the two world wars, appointed counsel for the defendants, submitted a long affidavit to the Supreme Court which contains the following statement, among many other allegations of torture and improper pressure :
"The American prosecutors would make many threats of violence and torture directed toward the mothers, fathers, sisters, wives and children of various accused unless they signed complete dictated confessions of acts and deeds never committed by them, and acts and deeds other accused never witnessed by them."
Methods frequently employed by investigators in the war crimes trials may be judged from the stenographic record of the interrogation of Dr. Friedrich Gauss, former legal expert of the German Foreign Office, by Robert Kempner, former official of the Prussian Government, now an American citizen. Trying to extort a confession, it was hinted by Kempner that if Gauss did not say what the prosecution desired he would be handed over to the Russians. The following expressions were also used in the examination of Dr. Gauss :
"You must think it over . . . You know the old German law — — Mitgefangen — mitgehangen (Captured together — — hanged together) . . . If I had to save my neck I would commit any kind of perjury. You must help us to clarify the matter."
The war crimes trials were as politically inexpedient as they were lacking in consideration for basic principles of law and equity. Cold-blooded reprisals inflicted by victors on vanquished, after hostilities are ended, leave a far more rankling sense of resentment than ruthless acts in the heat of combat. There seemed to be a concerted effort in the trials, whether by accident or design, to "get" representatives of German groups who were most opposed to Communism, notably businessmen.
The most hopeful redeeming feature of this ill-judged experiment in one-sided vengeance,
masquerading under the forms of justice, was the outspoken courage of those Americans who risked abuse and misrepresentation by speaking out vigorously on the issues of principle involved.
Honorable mention should go to Colonel Everett, to Judge van Roden and to Judge Charles F. Wennerstrum, of the Iowa Supreme Court. After sitting on a trial of German generals Judge Wennerstrum sharply criticized the spirit and methods of the prosecution and summed up the whole case against the war trials when he remarked that "the victor in any war is not the best judge of war crime guilt".
Such individual criticism would not have been possible, or at least would not have been heard, under totalitarian regimes. The best policy now would be to wind up this "victors' justice" as quickly as possible, to redress immediately the grossly unjust sentences, to leave to the new West German State a wide latitude in reviewing sentences, and to hope — against the probabilities — that the precedent set will not aggravate the ferocity of the next war — should such a catastrophe occur.
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