by Kai Bird
However much McCloy denied it, the campaign did influence him. Benjamin Ferencz, the only one of the Nuremberg prosecutors still working in Germany at the time, recalled that McCloy was in a “generous and kindly” frame of mind, and “anxious to make a gesture toward the Germans.”16 In mid-October, he commuted the five-year sentence of Baron Ernst von Weizsàcker, who as a Nazi Foreign Office official had been convicted of complicity in the deportation of some six thousand Jews from France to Poland in March 1942. Von Weizsàcker’s aristocratic lineage and his résumé as a respected member of the old-guard German diplomatic establishment made him a popular candidate for clemency.17 That there was no outcry against this individual act of clemency may explain why McCloy was so unprepared for the storm of controversy that would soon envelop him.18
Early in November 1950, he sent John Bross back to Washington to convey his tentative decision to carry out nine of the fifteen German death sentences. Acheson sat down with Truman on November 16 and explained McCloy’s intentions. The president concurred that day, and Acheson quickly cabled McCloy that he had White House backing for whatever he did.19 Ten weeks later, when McCloy made his decision public, he confirmed the death sentences of only five of those condemned.
Why had he changed his mind on four of the death sentences? German public opinion was an obvious answer. Politics was another. Adenauer’s popularity in the opinion polls had fallen to 24 percent in late 1950, while support for the antirearmament SPD had risen to 40 percent. The SPD won local elections that November campaigning as the party of peace. McCloy cabled Washington that the situation “is not good and may be serious. . . . Adenauer’s outright championship of the West has to be supported. We can see no one else who has taken a similar stand.”20 Rearmament of Germany was HICOG’s number-one priority in that bleakest of Decembers, when it seemed for a moment that General MacArthur’s forces might be pushed completely off the Korean peninsula. Adenauer was the only German leader willing to support German rearmament on American terms, and there was no better way to assist him politically than to do what was most popular on the clemency issue. On December 5, when Adenauer wrote McCloy a letter specifically urging clemency for Krupp,21 the high commissioner replied, “. . . of the Krupp case I will give, I assure you, proper weight and attention to the comments and recommendations you make in your letter.”22
For all these reasons, McCloy was inclined to accept the Peck Panel’s recommendations on the Krupp case without delving too deeply into the Nuremberg record. Understandably, he was far more concerned with the death cases, and even went to Landsberg to talk personally with some of the inmates. “Some, particularly the generals, were arrogant; they deliberately turned their backs,” he later told the historian William Manchester. “But others were quite decent. They walked right up and shook hands with me.” He didn’t ask to see the prison’s most famous inmate, Alfried Krupp.23
After putting off Adenauer repeatedly, McCloy promised that he would announce his final clemency decisions shortly after the first of the year. Toward the end of January 1951, he closeted himself in his home for days, reading and rereading the Peck Report and the original Nuremberg judgments. Charlie Thayer, his political liaison in Bonn, later recalled, “His nerves got tauter and tauter, his temper shorter and shorter.” Finally, he set himself a deadline, January 31, to announce his decisions. On the evening of January 30, a German Defense Office official showed up at Thayer’s residence and pleaded that someone should make one last appeal to McCloy. If the death sentences were sustained, he said, the European Defense Community would never happen. Thayer called in Sam Reber, McCloy’s political counselor, and the three men argued the issue for another hour. Twenty yards away, Thayer knew that McCloy was locked in his study, trying to come to a firm decision. The evening was growing late when two more Germans drove up; as they got out of their limousine, Thayer recognized Adenauer’s advisers on defense matters, Generals Adolf Heusinger and Hans Speidel. They warned that, if the Landsberg prisoners were hanged, the prospect of “Germany as an armed ally against the East was an illusion.” Speidel had a personal interest in the matter, since his brother General Wilhelm Speidel was one of the “red-striped” Landsberg convicts. Thayer and Reber argued with the Germans well past midnight, and finally, when Thayer’s living room was strewn with copies of the Bible, Shakespeare, Milton, and other books the Germans were using to bolster their pleas for mercy, Reber agreed to go in and see McCloy. By this time, according to Reber, the high commissioner had already made his decision.
The next day, it was announced that five of the fifteen death sentences would be carried out, and that the sentences of sixty-four out of the remaining seventy-four war criminals had been reduced. Fully one-third of the Landsberg inmates would be released immediately, including Alfried Krupp and eight members of his board of directors who had been convicted with him. Thayer’s friend from the German Defense Office called to say, “Your visitors of last night asked me to tell you that they think it’s the best solution we could have hoped for under the circumstances.”24
No other decision McCloy made in his years in Germany aroused greater furor than this mass clemency. Most Germans strongly approved the commutation of sentences and criticized the decision to hang five of the prisoners, all of whom had directly participated in mass murders. Adenauer himself called upon McCloy to reconsider the executions. But outside of Germany, the decisions were greeted with a mix of outrage and incredulity that only five years after the war such men could be freed. British and French newspapers harshly criticized McCloy, as did such old friends as Winston Churchill. The Washington Post published a Herblock cartoon depicting a smiling McCloy opening Krupp’s cell door, while in the background Stalin snapped a propaganda photo. Telford Taylor was furious, and wrote a piece in The Nation calling the decision an act of “political expediency.” Taylor argued that, “Wittingly or not, Mr. McCloy has dealt a blow to the principles of international law and concepts of humanity for which we fought the war.” Taylor was incensed that he and the other Nuremberg prosecutors had not been consulted.25
Eleanor Roosevelt wrote McCloy to ask, “Why are we freeing so many Nazis?” Congressman Jacob Javits protested that the Krupp family’s entire fortune should be forfeited for “misdeeds against humanity.”26
McCloy’s critics were right to characterize his decisions as a mass clemency. That’s what it was, if only judged by the sheer numbers of war criminals released. But they overlooked the fact that it might have been worse. McCloy had actually been rather more severe in his sentencing than the Peck Panel. He accepted the panel’s recommendations in fifty out of the ninety cases; but in twenty-four cases—most of them involving Einsatzgruppen veterans, SS concentration-camp guards, and doctors who had experimented on concentration-camp inmates—he imposed stiffer sentences than recommended by the Peck Panel. In another sixteen cases, he imposed less severe sentences than the clemency board proposed. Remarkably, he had rejected nearly half of the Peck Panel’s recommendations. Such a dramatic discrepancy underscores the personal responsibility he assumed for the clemency decisions. Once he had appointed the Peck Panel, the easy thing to do would have been to leave the matter entirely in its hands. Instead, he had looked at each of the cases and made his own decisions. Now he would have to defend them.
He told Eleanor Roosevelt that the defendants hadn’t had the opportunity for an appellate review of their cases, as would be normal in the American and British judicial systems. In fact, as McCloy well knew, General Clay’s legal staff had conducted such a review and confirmed all but a handful of the sentences. Regarding Krupp, he had stated in his clemency announcement, “I can find no personal guilt in defendant Krupp, based upon the charges in the case, sufficient to distinguish him above all others sentenced in the Nuremberg Courts.” Specifically, the confiscation of personal property was “repugnant to American concepts of justice.”27
The Nuremberg judgments, of course, were reached not under precepts of American law, bu
t under an amalgamation of international law, and expropriation was provided for in the proceedings. Other war criminals besides Krupp had their property confiscated.28 Flick was not subjected to confiscation only because his holdings were in corporations traded on the public stock exchange. Confiscation in his case would have been a complicated affair, and injured the assets of other shareholders in his companies. This was not the case with Krupp, who was the sole proprietor of all Krupp enterprises.
McCloy told Javits, “I am inclined to think that the son [Alfried] took his [Gustav’s] place in the dock largely because his father was on his death bed at the time.”29 For years afterward, McCloy advanced this explanation, telling interviewers, “We tried him reluctantly and the confiscation troubled me. I consulted my French and British colleagues, and they agreed with me. My feeling—it was a feeling—was that Alfried was a playboy, that he hadn’t had much responsibility. I felt that he had expiated whatever he’d done by the time he’d already spent in jail. Oh, I don’t doubt that he’d supported the Nazis early; he was a weakling.”30 In a private letter to a friend, he explained, “This man, you know, was not the real Krupp . . . but was a son who came into the board late in the war and exerted very little if any influence in the management of the company.” He was also “doubtful” that Krupp was really guilty of the slave-labor charge.31 But, then, he had not read the Nuremberg evidence against Krupp. Nor was it clear that Alfried had been tried for the crimes of his father. The Nuremberg prosecutors had intended to try both the father and the son from the very beginning.
McCloy’s strongest justification for clemency in the Krupp case was that the industrialist’s twelve-year sentence was “out of line with sentences for crimes of similar gravity” in other cases.32 “When considered according to a standard of fairness,” writes the Harvard-trained historian Thomas Schwartz, “McCloy’s actions emerge as a reasonable attempt to temper justice with mercy in a series of difficult and complex cases.”33 McCloy used this argument in answering Eleanor Roosevelt: “After detailed study of this case, I could not convince myself that Alfred [sic] Krupp deserved the sentence imposed upon him.”34
It was true, of course, that the Nuremberg trials issued a wide variety of sentences, even in roughly comparable cases. McCloy thought it only reasonable to revise these sentences according to some standard-offairness criteria. But this approach revealed a misunderstanding about what had happened at Nuremberg, where prosecutors like Telford Taylor were forced by constraints of time and practicality to make an example of only a small fraction of the Germans who could be tried for major war crimes. A relatively small group of men from certain categories—Nazi Party leaders, diplomats, the police and army, the party organizations, and big business—were carefully chosen as a representative indictment of the German state that had initiated war. Many more industrialists and business leaders, such as one of Hitler’s personal bankers, Hermann Abs, could have been chosen for prosecution. Abs escaped the docket, according to some of the Nuremberg prosecutors, only for lack of time. As such, these were political trials, and there was nothing particularly fair in a judicious sense about who was chosen for prosecution. All these men were indictable, and many more could have been tried and convicted. Short of keeping the Nuremberg tribunals active for years on end, the interests of justice required judgment against a select few whose position and crimes were politically symbolic of the Nazi era. Krupp stood trial not only because he had approved the use and gross mistreatment of slave workers, but precisely because his name was Krupp. McCloy never accepted this salient fact, explaining to a friend, “I could see no reason to keep this man in jail merely because his name was Krupp.”35 Actually, not to have convicted a Krupp would have been an appalling omission, for one could not make a convincing example of the Nazi who ran death camps like Auschwitz without prosecuting at least several of the men of wealth, position, and influence in German society who directly profited from concentration-camp slave labor. Krupp bore a special responsibility, not only because he was guilty of using slave labor and plundering, but also because as a Krupp he was the most recognized symbol of all those German industrialists who aided Hitler. McCloy was correct to observe that Krupp had been singled out but, in many people’s judgment, incorrect not to see the political justice of that act.
The Nuremberg proceedings were remarkably judicious, and, considering the crimes committed, many of those convicted got off with relatively lenient sentences. Krupp’s could have been far more severe than twelve years in prison and forfeiture of all his property. His sentence was more severe than Friedrich Flick’s seven-year term because at Nuremberg it was demonstrated that Krupp’s use of slave labor was far more extensive than Flick’s. But it was nevertheless true that some of those convicted of being accessories to mass murder received lighter sentences than Krupp. McCloy’s well-intentioned attempt to second-guess the Nuremberg judges and somehow make the various sentences internally consistent inevitably led to a reduction of many sentences to some common denominator. This was particularly true of the cases involving industrialists.
He had a hard time equating the crimes of an Einsatzgruppen commander like Otto Ohlendorf, a man who admitted his personal responsibility for the death of upward of ninety thousand people, with the war profiteering of German businessmen.36 Late in 1950, he observed that too often many of the “big Nazis” were receiving lighter fines and sentences from the German de-Nazification tribunals than “little Nazis.” He explained this phenomenon to Washington by saying, “The ‘big Nazi’ referred to was sometimes a man of influence, possibly a devoted Nazi, who made large contributions to the party and urged his employees to join. But he may have been a benevolent employer, and one who never persecuted anyone. So when he came before his peers and neighbors who sat on the courts, these people had no grievance against him. . . . On the other hand, the ‘little Nazi’ . . . was assessed a heavier penalty. It was too much to expect these farmers, artisans and work-a-day people to reason that had it not been for the benevolent ‘big Nazi’ with his big contributions to the party, hoodlums and Gestapo could not have prospered.”37 Though he could understand the special culpability of the “big Nazis,” when it came to a wealthy and politically well-connected man like Krupp, he suspended his good judgment.
It was bitterly cold at 9:00A.M. on February 3, 1951, when the Landsberg Prison doors swung open and Alfried Krupp walked out. Behind him were twenty-eight other freed prisoners, including eight of his fellow Krupp directors.38 The men were greeted by a bevy of foreign correspondents, German reporters, and cameramen ready to record the event. Now that he was once again the “sole proprietor,” Krupp was a national celebrity. Jack Raymond of The New York Times cabled his editors that Alfried was “greeted like a returning hero. . . .” Later that morning, at Landsberg’s finest hotel, while the press corps was kept at bay, Krupp hosted a breakfast for his fellow directors and friends. As a gesture of welcome, the hotel’s owner uncorked two bottles of champagne, which naturally led the press to report that Krupp had had a “champagne breakfast.” Alfried later recalled, “Two bottles for forty people—it didn’t seem like too much. But Mr. McCloy was very annoyed.” The subsequent press conference only made things worse. Alfried came across as cool, imperious, and unrepentant. “My life,” he told reporters diffidently, “has always been determined by the course of history, not by me.”39
Many Germans assumed the timing of McCloy’s clemency decision was directly related to the Korean War. Fritz Ter Meer, the convicted I. G. Farben executive who was freed by McCloy in August 1950, drolly observed, “Now that they have Korea on their hands, the Americans are a lot more friendly.”40 McCloy sharply resented any such implications, telling William Manchester, “There’s not a goddamn word of truth in the charge that Krupp’s release was inspired by the outbreak of the Korean war. No lawyer told me what to do, and it wasn’t political. It was a matter of my conscience.” He could rightly point out that he had appointed the Peck Panel prior to the outbre
ak of the war. But people like Benjamin Ferencz, who admired McCloy and talked to him frankly, recall, “At the time there was a sense of panic about the Russians, a feeling that there was an urgent need for an understanding with the Germans. McCloy couldn’t detach himself from that atmosphere.”41
Domestic German political considerations certainly weighed heavily on McCloy’s mind. By 1951, McCloy’s priorities were the restoration of West German sovereignty, the building of a European Defense Force with German assistance, and the creation of a West European economic community centered on the sharing of the Ruhr’s coal and steel industrial production. To these ends, he needed the cooperation of West Germany’s business community. The Ruhr industrial heartland had to be revived, and quickly. McCloy himself acknowledged that he feared “a hell of a howl if I let the confiscation [of Krupp’s property] go through.”42 By this time in his tenure as high commissioner, he was beginning to come under the influence of such prominent business leaders as Hermann Abs, the astute and powerful chairman of the Deutsche Bank, and one of the Krupp family’s bankers.43 Abs, Hans-Gunther Sohl, Kurt Birrenbach, and even his old friend Eric Warburg probably encouraged the high commissioner to release Krupp. When it happened, the restoration was greeted with universal acclaim among the Ruhr’s business leaders. Baron von Lersner, of the Vereinigte Stahlwerke, wrote McCloy, “The liberation of Alfried Krupp has rejoiced our economic leaders.”44