The Chairman

by Kai Bird

  Krupp may have had his freedom, but the disposition of his property was still an open question. McCloy insisted that the Krupp industrial empire was still subject to HICOG’s decartelization laws, and this meant the industrialist might be forced to sell off much of his steel and coal interests. Negotiations began in September 1951 and continued for a grueling eighteen months. Krupp just stalled for time, knowing that German sovereignty was soon to be restored. Meanwhile, no buyers stepped forward to make any offers on his Ruhr properties. The Ruhr barons and most of the German people regarded the Krupp concerns as something of a national trust and resented McCloy’s efforts to see it dismantled. In the end, long after McCloy left Germany, Alfried signed a document pledging to segregate his heavy industry from his other holdings and to keep out of the armaments business. He had no intention of carrying out this pledge, and by 1953 a Krupp plant was actually assembling jet fighters in collaboration with an American firm. Krupp was back in business.

  Krupp was only the most sensational of McCloy’s clemency decisions in 1951. He also dramatically reduced the sentences of all the remaining convicted doctors who had experimented on concentration-camp inmates. One doctor was paroled immediately for time served, and the life sentences of five others were reduced to fifteen or twenty years. Freed also were four of the seven high-ranking Nazi judges who had administered Gestapo justice. Nearly half of those convicted in the concentration-camp case were paroled.

  The most troubling clemency decisions, however, occurred in the Einsatzgruppen case. McCloy told his staff in early January 1951 that some of these men “have committed crimes that are historic in their magnitude and horror.” He did not reveal that the Peck Panel had already recommended clemency in a large number of the cases, but the transcript of this meeting depicts a man struggling to reconcile himself with the unpleasant task at hand. “There are some, I am convinced,” he said, “who, if they are not innocent—I wouldn’t apply ‘innocent’ to these people—are not deserving of the death penalty, but there are some who, by reason of remoteness or protest, are, in my judgment, entitled to clemency. . . .”45 He said he hadn’t yet made his final decisions, but as he later explained to Judge Peck, he had discovered some “little new evidence that tended to indicate some clemency” in the case of one condemned man. “Having some doubt in my mind about him, there were three others that I felt uneasy about if I let him off.”46 What he meant was that evidence had been submitted by defense counsel claiming that some of these individuals had at some point attempted to evade orders to round up and kill Jews. This seems to have been an important factor in a few of his clemency decisions.47 But it still does not explain why he found cause to reduce the sentences of most of those convicted in the Einsatzgruppen case. Two prisoners out of the twenty convicted were freed immediately; thirteen others had their sentences reduced.48

  True, he confirmed the death sentences of five men who directly participated in mass killings. These included Einsatzgruppen leaders like Otto Ohlendorf and Paul Blobel, who was responsible for the Babi Yar massacre of thirty-three thousand Jews. Also slated for execution was Oswald Pohl, the chief administrator of the concentration camps, whom McCloy called a “slave driver on a scale probably never before equalled in history.”49 But it is still difficult to fathom how McCloy could make a distinction between someone like Pohl and any number of the Einsatzgruppen officers whom he decided to parole. Why execute Einsatzgruppen leaders like Blobel, and reprieve other members of the extermination squads? When the documentary record is explicit on this point, the distinctions he made were rather curious. For instance, in the case of an SS officer who confessed to having personally executed fifteen hundred Jews, McCloy reprieved the man because he had later refused to carry out any further murders.50

  At Nuremberg and afterward, the Americans had always stressed the idea that individual German officers could and should have refused certain orders. In 1951, McCloy and other HICOG officials were still trying to convince the German public that “superior orders” was not a defense. The Peck Panel itself had been astonished and disappointed to learn “that the majority of the defendants still seem to feel that what they did was right, in that they were doing it under orders. This exaltation of orders is even more disturbing as an attitude than as a defense.”51 So, in a perverse sense, politics required the singling out for clemency of an SS officer who had, belatedly, resisted an “illegal” order. Forgotten, for the moment, was the enormity of the crime to which this individual had confessed. The Nuremberg judges used the fact that some officers had successfully refused “illegal” orders as evidence that all the defendants could have resisted such orders from the very beginning.52 Evidence of resistance after the fact was no defense at Nuremberg. But now, in the wake of the clemency decisions, it seemed that any war criminal who gave evidence of having resisted such orders at any time could be rewarded with a reduction in his sentence.53

  All of these clemency decisions are difficult to explain. For example, in the case of SS Lieutenant Heinz Hermann Schubert, the Peck Panel recommended that Schubert’s death sentence be reduced to eight years. McCloy’s legal aides suggested that this was “perhaps going too far,” so he commuted the sentence to a full decade.54 The only reason either McCloy or his clemency panel stated for such a sharp reduction was that Schubert was “a relative subordinate” and that “he did not know why the individuals were being executed.”55 Schubert, however, was one of only three officers to whom SS General Ohlendorf said he routinely assigned the task of supervising mass executions. Schubert’s own signed confession and testimony at Nuremberg stated that he had personally supervised a “special action” at Simferopol in which seven or eight hundred people were machine-gunned to death. From October 1941 to June 1942, he served as Ohlendorf’s adjutant, in which capacity he had full access to all the Einsatzgruppen chief’s correspondence and other files. He freely admitted that he had carried out inspections of these “special actions” so as to ensure that they were carried out according to Ohlendorf’s strict orders: “For a short time, when the people who were to be shot were already standing in their positions in the tank ditch, I supervised the actual shooting. . . . I know that it was of the greatest importance to Ohlendorf to have the persons who were to be shot killed in the most humane and military manner as possible because otherwise—in other methods of killing—the moral strain [seelische Belastung] would have been too great for the execution squad.” No wonder many Americans found it difficult to fathom how the Peck Panel could have read of these things and then recommended clemency for such a man.

  McCloy’s clemency decisions contain little internal logic as to why one mass murderer was condemned to death and another given a commutation. It is clear, however, that the high commissioner was under intense political pressure from a broad spectrum of German society to commute as many sentences as possible. McCloy also found the prospect of placing his signature on a death warrant extremely distasteful. On the other hand, he was well aware that these men had committed unspeakable crimes and the judgments at Nuremberg should not be discredited by too sweeping a reduction of sentences. He attempted to construct a balanced clemency package, one that could be seen as a reasonable compromise by most Germans and the makers of public opinion in the West. In this he failed, for the Germans generally thought he had not been lenient enough, and the rest of the world saw his action as one of mass clemency dictated by simple political expediency.

  McCloy believed otherwise, telling his critics that he had acted strictly on the basis of his own conscience. His liaison in the State Department, Henry Byroade, acknowledged on Capitol Hill that “it appeared that we were trying to buy the Germans. I must tell you that I have never seen anything hurt anybody so much, because this was a question of McCloy before God.”56 McCloy would always remember how he had agonized over individual cases; he told his staff that he was “becoming an expert on the Landsberg cases.”57 But he actually had neither the facts nor the time to review the evidence accumulat
ed at Nuremberg over a period of many months. Compared with the reviews conducted by Clay’s lawyers—who typically wrote fifty pages on each individual case—McCloy’s clemency-panel reviews were skimpy and incomplete, amounting to a few paragraphs each.58

  He failed to understand—or had forgotten—that one of the fundamental purposes at Nuremberg had been to make an example of only a few of the thousands of war criminals who could have been convicted. By freeing Alfried Krupp and his fellow directors, he discredited the whole notion that German industrialists shared in the responsibility for what had happened during the Holocaust. Tampering with the individual sentences handed out to Einsatzgruppen killers allowed many Germans to harbor doubts about the truth of all the Nuremberg judgments.

  HICOG’s public-opinion surveys demonstrated that for most Germans the clemency confirmed their suspicion that the Nuremberg judgments had been “victor’s justice.”59 McCloy had not meant to do it, but the Landsberg clemency decision discredited the unique international judicial process that he himself had helped to create back in 1945.

  Throughout the spring of 1951, McCloy became increasingly disturbed by the tenor of the German reaction to his clemency package. While, outside Germany, McCloy was attacked for being too soft, inside Germany he was deluged with appeals to commute the remaining death sentences. More than a thousand letters arrived at HICOG headquarters complaining that he had not been lenient enough; McCloy was shocked at the fanatical nationalist tenor of many of these letters. He was also disturbed that, for a solid month after the clemency decisions were announced, neither Adenauer nor any other major German politician came to his defense.60

  The nature of the appeals, even when they came from prominent German church and civic leaders, demonstrated that the German people still had no understanding of the crimes committed by the Third Reich. McCloy wrote the archbishop of Cologne, who had made an appeal for Oswald Pohl’s life, “It has been a source of great concern to me that many of the leaders of German thought . . . instead of recognizing the enormity of the conduct of the condemned war criminals and the justice of their punishment, rather manifested a tendency to put my words and those of my officials under a microscope for the purpose of detecting flaws which, whether they be genuine or unsubstantial, have nothing to do with the main issues involved in these cases.” He protested that, if anything, he had erred on the side of “leniency, and not of severity.”61

  And yet, repeatedly that spring, he was forced to reconsider his decisions. Once he stayed up until 2:00 A.M. studying yet another appeal from a German law student in behalf of SS Brigadier Erich Naumann, who had been condemned to death for commanding an extermination squad on the Russian front. But his mind was made up, and the more he studied the documents, the more certain he was that the five men he had condemned to death should hang. He told Naumann’s benefactor, “I hope you will one day take the time to read the records in these cases so that you can judge for yourself the extent of the murders which these ‘Einsatzgruppen’ committed. Conservatively estimated they were engaged in the business of slaughtering seven to ten thousand people a day and Naumann was the head of one of the big four organizations which did this horrible work. It is hard for the imagination to grasp it but it actually took place and every objective German should one day realize this and convince himself of it. I say this not for the purpose of fixing guilt, but in the hope that the average German may see it as a phenomenon which did, at one time, afflict his country and which must in the future be recognized and avoided.”62

  Such appeals to good sense fell on deaf ears, for it was apparent that Germans across the political spectrum were opposed to having the death sentences carried out. The hangings had been postponed several times that spring, because of last-minute appeals to the U.S. Supreme Court, and members of the local contingent of foreign correspondents could see that McCloy was anxious to put the whole business behind him. Drew Middleton of The New York Times pointed out to his readers that no American official had come to Germany with a “more sincere desire to help the Germans gain a position of trust and responsibility in Europe than did Mr. McCloy. . . .” And yet, Middleton reported, “Now he is the target for such vilification and abuse as no other American official in Germany has received during the occupation. He has striven not to become embittered and it will be interesting to see how long he can maintain his calm under abuse. . . . If this is the way the Germans treat their friends, it is not surprising they have so many enemies.”63

  Felix Frankfurter no doubt read Middleton’s dispatch, and even though his court was then considering some of the appeals from the death sentences, the justice wrote his old friend a note of reassurance: “I am sure that the decisions you reached you reached on the basis of those relevant considerations of conscience. . . . Happily you have not only the wisdom to understand that one must find serenity in the consciousness of one’s own duty done, but also the self-discipline to wrest that serenity from deflecting influences no matter how irritating or distorting.”64 Finally, on June 6, 1951, after all the appeals had been rejected, the five men sentenced to death—in addition to two others, condemned in a separate review by General Handy—were hanged. After it was all over, McCloy wrote Frankfurter, thanking him for the court’s expeditious dismissal of the final appeals: “It might have become almost farcical if action had not been taken when it was. It was a most unpleasant ordeal, but in connection with it I think I experienced some human reactions that had never come my way before.”65

  The whole business had been a distasteful experience which taxed his conscience and characteristic equanimity. But afterward, he never expressed any regrets. When William Manchester confronted him with a set of excerpts from the Nuremberg transcripts that tended to contradict everything he had said about the Krupp case, he looked at the material and commented, “That’s ancient history.”66 For him, what was important was the task at hand, the creation of a democratic West German state aligned with the West. The Nazis belonged to history. Nuremberg was necessary to establish a modicum of symbolic justice, but he lacked any feelings of vengeance for those who had perpetrated the crimes. This attitude extended even to the highest-ranking Nazis still imprisoned in the four-power prison in Spandau. After visiting Spandau in January 1951, he told the British and French high commissioners that he thought a review of those cases was warranted. This did not happen only because the Soviets refused to consider any clemency for men like Rudolf Hess and Albert Speer.

  As McCloy was leaving Germany, an incident occurred that in retrospect illustrates both his basic good intentions and his naïveté. He had established a program whereby German adolescents were given the opportunity to spend a year living in the United States. In the summer of 1952, he heard that Albert Speer’s sixteen-year-old daughter, Hilde, had been barred from enrolling in the program because of her father’s conviction as a war criminal. McCloy thought this visitation of the father’s sins upon the daughter misplaced, so he raised the matter with Dean Acheson, who quickly overruled U.S. immigration authorities. In the meantime, McCloy arranged for young Hilde to spend her year in Hastings-on-Hudson, where she stayed with a neighbor of his in-laws. One day that year, McCloy invited Hilde Speer for tea at the Zinsser household and had a frank but easygoing discussion with the teenager about her father. The conversation left a strong impression on the child; shortly afterward, she wrote a letter to her father in which she referred to her visit with the former high commissioner and asked some heartfelt questions: “What I cannot understand is how these educated people did not turn against him [Hitler] when he began persecuting the Jews. . . . I know that at the end you were no longer in agreement with him. But what I do not understand is why you did not break with him in 1940.”

  Albert Speer wrote back to his daughter an equally frank letter, explaining, “The fault is mine and expiation there must be. . . . I am one of the few taking the view today that the Nuremberg trial, despite its defects, was necessary.” But, oddly enough, McCloy as early as 1951 tho
ught Speer, comparatively speaking, as much entitled to clemency as any of the other men he had freed. Later in the 1950s, he wrote Speer’s wife, “I have a very strong conviction that your husband should be released and would be very happy if I could do anything to expedite such release.”67

  Speer served out his sentence, as he rightly should have, for of all the high-ranking Nazi leaders convicted at Nuremberg none had more responsibility and effective power than the minister of armaments. Like many people, McCloy had been impressed by Speer’s contrition at Nuremberg. Alone among all those indicted, Speer had openly acknowledged his ultimate responsibility for everything that had happened under the Third Reich, though in the same breath he had carefully made it clear that he had never had specific knowledge of the systematic killings in the concentration camps. He was a murderer, he said, but one who had known nothing about the deaths of his victims. Speer preserved this stance through several best-selling books after his release from Spandau, but historians who have plumbed the Third Reich’s archives know that this was a myth.68 As armaments minister, Speer was as knowledgeable about the concentration camps as some of the men whom McCloy executed. McCloy’s “strong conviction” that Speer deserved clemency can be explained only by his ignorance of the record and his characteristic sympathy with a man who otherwise seemed to be well bred, highly educated, and sensible. After he had spent less than two years as high commissioner, his hard-nosed attitude toward the Nazis had mellowed. Only six years after the war, these men and their singular crimes were truly ancient history.

  CHAPTER 19

  Negotiating an End to Occupation

  “Our [decision-makers] . . . were unwilling to contemplate at any time within the foreseeable future, under any conceivable agreement with the Russians, the withdrawal of United States forces from Germany. . . . Our stand meant in effect no agreement with Russia at all and the indefinite continuance of the split of Germany and Europe.”