12

Morgenthau’s Plan

The broad, popular demands that the U.S. take harsh action against those who had committed atrocities collided with the legal professionals at the State Department in much the same way as they had in the wake of the Armenian Genocide of World War I. This time, though, Herbert Pell and Secretary of the Treasury Henry Morgenthau, Jr., insisted upon clarifying the calculated ambiguities on war crimes policy in which the State Department had taken refuge for several years. State’s bureaucrats fought back and boldly pursued their own policies as President Roosevelt’s health deteriorated in 1944 and 1945.

By the summer of 1944, there were three main centers within the U.S. government engaged in long-range thinking about Germany and the USSR, and two of the three were dominated by leading advocates of the “Riga” faction within the State Department. The first of these was the European Advisory Commission, which was ostensibly an inter-Allied consultative committee created to work out the details of decisions reached at the Big Three summit in Tehran in November 1943. Roosevelt, Churchill, and Stalin had agreed in principle on key aspects of military strategy in Europe, a plan for a postwar United Nations Organization, and the general outlines of policies on war crimes and denazification. Though many details remained to be resolved, the three Allies agreed that they would eventually separate Prussia from Germany, that there would be some form of isolation or international control of the German military-industrial complex, and that Nazis would be permanently barred from any position of responsibility in postwar Germany. Stalin and Churchill disagreed on the location of several borders and on the extent of Soviet claims for reparations from Germany. Those questions were referred to the new European Advisory Commission (EAC) for study.

All of the U.S. representatives to the new commission—George Kennan, Philip Mosely, and E. F. Penrose—were openly hostile to any accommodations with the Soviets on postwar policy toward Germany.1 Instead, they used the EAC to promote a strategy calculated to rapidly establish a post-Hitler Germany as an economic, political, and eventually military bulwark against the USSR. The Soviets could see the drift at the EAC and soon decided to remain aloof from the postwar planning process that they had agreed at Tehran to support.

The second main planning committee was a politically similar group with overlapping personnel organized at State Department headquarters in Washington. This group and the U.S. delegation to the EAC each pushed for a “stern peace with reconciliation,” as the slogan went.² They favored rapid elimination of Allied controls on the German economy, maintenance of German industrial production at something close to wartime levels (though without arms production), and sharp limits on prosecutions for war crimes.

This ran counter to what Roosevelt had personally promised Stalin and Churchill on these issues at Tehran and other international conferences. This division between White House promises and the State Department’s implementation planning can be traced in part to Roosevelt himself. By 1944, FDR had grown so suspicious of the Foreign Service that he withheld even from his own secretary of state the details of his international commitments, including those reached at Tehran.³

The third center for postwar planning consisted of civil affairs specialists on the staffs of the War Department and of SHAEF (Supreme Headquarters, Allied Expeditionary Forces, Europe), commanded by General Dwight D. Eisenhower. SHAEF anticipated carrying much of the responsibility for the U.S. role in the occupation of Germany, so its civil affairs departments took up consideration of war crimes prosecutions and even aspects of U.S. economic policy toward Europe. During the spring and early summer of 1944, the SHAEF staff drafted a handbook of directives for use in the military administration of Germany that recommended that the occupation government import food and relief supplies into Germany and use German labor to operate coal mines, public utilities, and the transportation network. Overall, SHAEF ordered that the occupation forces should ensure that “the machine [of German society] works and works efficiently.”4

This strategy had considerable impact on the day-to-day conduct of the war itself. Army Air Forces officers favored saturation bombing of the coal mines in the Ruhr Valley in 1944, for example, as a means of striking at Germany’s most important energy supplies. But outside specialists (notably Frank Collbohm of Douglas Aircraft, who was later to found the RAND Corporation) successfully argued that these resources should not be destroyed because they would be useful for postwar reconstruction of Germany. The bombing was canceled.⁵

Morgenthau got hold of a copy of the SHAEF occupation policy handbook and of a collection of State Department planning papers on Germany. He contended that their approach failed to make good on the Allied promises to the victims of the war. They did not extirpate the roots of Nazism and would thus set the stage for renewed German aggression within the next decade, he contended. Morgenthau traveled to London in early August 1944, officially to review U.S. financial policy toward Britain, but in reality to investigate the whole scope of U.S. postwar policy.⁶

He met with Churchill, General Eisenhower and his staff, and with the U.S. staff at the European Advisory Commission. Anthony Eden provided Morgenthau with the confidential notes taken at Tehran concerning U.S., Soviet, and British grand strategy during the years ahead,⁷ and Herbert Pell briefed him on the obstructions faced by the UNWCC.⁸ Morgenthau aides Harry Dexter White and Bernard Bernstein provided him with detailed reports and copies of the State Department and War Department’s most recent policy documents, which they had obtained through service on interagency planning committees.9

For the moment, at least, Henry Morgenthau emerged as by far the best-informed senior U.S. official about the various inchoate U.S. postwar strategies for Europe.

He didn’t like what he saw. In Morgenthau’s eyes, the same factional split within the U.S. government over policy toward Germany and the USSR that had characterized much of the 1930s, and which had obstructed U.S. responses to the Holocaust, was also making it difficult to develop postwar plans for Germany, particularly in the case of U.S. war crimes policy and postwar treatment of the German industrial elite. SHAEF’s proposed handbook was the most immediate problem, as he saw it: if adopted, it would institutionalize policies that Morgenthau saw as appeasement of Germany.

To Morgenthau, Germany had been responsible for two world wars within his lifetime. He had seen German complicity in the brutal crimes of the Armenian Genocide during World War I and Germany’s direct responsibility for the Holocaust. The Nazis had ruled Germany with wide popular support for more than a decade, creating an effective system of indoctrination calculated to foster race hatred. More than that, Germany remained an industrial power capable of dominating European business and strongly influencing world events. Morgenthau tended to disregard the political (and legal) significance of splits and rivalries within Germany, because virtually the entire German power structure had publicly supported Hitler and participated to a greater or lesser degree in the regime’s crimes.

He saw German militarism and the country’s industrial and banking cartels as the root causes of European wars, and he believed that German culture showed an almost instinctive tendency toward brutality and aggression. Even if Germany was defeated militarily, the country was, for Morgenthau, inherently flawed, perhaps inherently criminal, and would remain the most important threat to world peace in the postwar years.

Meeting the German threat, he reasoned, required continuation of the U.S.-British-Soviet alliance into the postwar era. Only in this way could peace be maintained in Europe, and this in turn required Western acceptance of the USSR as an equal among nations, stripping Germany of its industrial centers in the Saar and the Ruhr, and implementing a broad program of mass reeducation of the German people—all of which had been agreed to at the Tehran Conference. At times, Morgenthau even argued that an entire generation of German children should be taken from their parents and educated in Allied schools. This extreme step was necessary so that the ideology the Nazis seemed to have so effectively inculcated in the parents might be trained out of the children.10

Upon his return to the U.S., Morgenthau approached FDR with a detailed critique of the SHAEF handbook. A few days later, Roosevelt blasted the handbook and sketched out for the first time his own vision of U.S. postwar policy for Germany. “This so-called ‘handbook’ is pretty bad,” Roosevelt wrote in a long memorandum to the secretary of war. “I should like to know how it came to be written and who approved it down the line.… It gives me the impression that Germany is to be restored just as much as the Netherlands or Belgium, and the people of Germany brought back as quickly as possible to their pre-war estate.” (That, of course, was precisely the intention of State’s planners.)

Roosevelt went on: “It is of the utmost importance that every person in Germany should realize that this time Germany is a defeated nation. I do not want them to starve to death but, as an example, if they need food to keep body and soul together beyond what they have, they should be fed three times a day with soup from Army soup kitchens. That will keep them perfectly healthy and they will remember that experience all their lives. The fact that they are a defeated nation, collectively and individually, must be so impressed upon them that they will hesitate to start any new war.”¹¹

FDR singled out pages of quotations from the proposed directives to emphasize his point. The conception that postwar Germany should be made to work “efficiently” was fundamentally wrong, as Roosevelt then saw it. “There exists a school of thought both in London and here which would, in effect, do for Germany what this Government did for its own citizens in 1933 when they were flat on their backs. I see no reason for starting a WPA, PWA or a CCC for Germany.…

“Too many people here and in England hold the view that the German people as a whole are not responsible for what has taken place—that only a few Nazi leaders are responsible. That unfortunately is not based on fact. The German people as a whole must have it driven home to them that the whole nation has been engaged in a lawless conspiracy against the decencies of modern civilization.”12

By September 4, Morgenthau’s team at the Treasury Department had drawn up a detailed counterproposal. Its “Suggested Post-Surrender Program for Germany” began by laying out the Tehran program for division of Germany and creation of non-German “international zones” in the Saar and Ruhr. It included bans on parades and marching bands—FDR was convinced that this was an important psychological measure—and provided an outline of permissible structures for local governments once the Nazis had been driven out.

The heart of the plan, however, was a series of harsh measures against German industry and against Nazi war criminals. The Ruhr—“the cauldron of wars,” in the words of the document—was to be “stripped of all presently existing industries [and] so weakened that it can never become an industrial area.” All plants and factories in the Ruhr were to be dismantled and moved or destroyed. The mines were to be sabotaged so as to “make it as difficult as possible ever to return the mines to operation.”¹³

The proposed measures against war criminals were equally harsh. Under the plan, the United Nations would draw up a list of “arch criminals … whose obvious guilt has been generally recognized.” They were to be summarily shot shortly after capture. A simple system of Allied military courts would be set up to deal with less well-known offenders. These courts could set death sentences for any German who had murdered hostages, who had killed persons because of their race, religion, or political conviction, or who had committed certain other crimes. All members of the Gestapo, SS, and Nazi party were to be arrested and detained “until the extent of guilt of each individual is determined.”¹⁴

Morgenthau convinced Roosevelt and Churchill to back the plan at the Quebec Conference later that month. He argued that title to the best German factories and industrial equipment should pass to the Allied countries, including the USSR, as partial payment for Nazi war damages. But Britain should become first among equals and assume virtually all of Germany’s highly lucrative export trade. This move would eventually end Britain’s growing financial dependence on the U.S. Some German resources would be closed down altogether to punish the Germans and, not coincidentally, to head off economic competition for Britain before it began. Morgenthau’s aides reassured Churchill that this strategy not only had the support of the U.S. president and his secretary of the treasury, but of England’s most prominent economist, Lord Keynes, as well. (Keynes had been among the most articulate opponents of heavy reparations for Germany after World War I, which gave his early support of the Morgenthau plan all the more weight.)15

On the legal front, Morgenthau strongly backed Pell’s insistence that Nazis must be punished for crimes against Axis civilians and that tough, immediate action be taken immediately to rescue Hungarian Jews bound for Auschwitz. Learning of Pell’s ongoing troubles with the State Department, Morgenthau contacted his former aide, John Pehle, the recently appointed chief of the U.S. War Refugee Board. Pehle went directly to the acting secretary of state, Edward Stettinius, who had taken over for the ailing Cordell Hull. Pehle said that the War Refugee Board needed a public U.S. commitment to punish those who were persecuting Axis Jews if its own efforts at rescue and relief were to be successful. Failure to take action against these atrocities would be a “fearful miscarriage of justice,” Pehle said, and would result directly in further loss of innocent lives in Europe.¹⁶

Stettinius sent Pehle a vague but courteous reply that basically ignored his plea.

Herbert Pell continued to pepper Washington with reports on UNWCC activities and requests for new “instructions,” by which he meant a reversal of State’s veto of prosecution of Nazis for crimes against the Jews of Germany, Austria, and Hungary. Green Hackworth ignored him. He considered his earlier letter to Pell (which had gone out over Secretary of State Hull’s signature) to have been perfectly clear. Hackworth was not about to issue new “instructions,” and he certainly did not intend to change his mind about the jurisdiction of the UNWCC.

But the situation was becoming increasingly embarrassing for the State Department. UNWCC chairman Cecil Hurst dropped a bombshell at a press conference in late August: No war crimes case had as yet been prepared against Adolf Hitler and other senior Axis leaders, Hurst said. There were only 350 names now on the UNWCC’s list, most of whom were small fry who had committed crimes against British POWs. The Washington Post, the Chicago Sun, and other major papers carried on their front pages a syndicated report from London stating that Herbert Pell had been “fighting a losing battle for speedy justice, but others have retarded everything.” The 350 names on the list were compared to “semiofficial estimates”—most likely leaked from Pell himself—that put the number of Nazi “war criminals” at 6 million: 1.5 million Gestapo and SS officers and 4.5 million SA (Sturmabteilung) brownshirt militia troops. These men were simultaneously criminals and “the greatest potential force and manpower reserve for a Nazi military rebirth,” the press report continued. “The legal basis of the commission’s work now bars punishment of Nazis for maltreating and slaughtering the Jews of Germany or of other Axis nationality, stateless persons or German-Jewish citizens of Polish, Czech, French or other Allied origin, [because] the Hague convention defines a war crime as an offense by one belligerent against the army or citizenry of another belligerent.”17

Pell offered his solution through the newspapers. The definition of international crimes should be rearticulated, he contended, to include “all offenses against persons because of race, religion or political beliefs, irrespective of the victim’s nationality or the territory on which the crimes were committed.”¹⁸

The proposal was visionary, yet it was in tune with the earlier legal conclusions of the London International Assembly and similar groups. It infuriated Hackworth. Lobbying in the press for policy changes was strictly forbidden for U.S. representatives abroad. Worse than that, the prevailing political climate suggested that Pell might succeed in his effort.

Hackworth began a determined campaign to have Pell dismissed once and for all. He cultivated Acting Secretary of State Edward R. Stettinius, who appears to have disliked Pell for his independence and refusal to be a team player rather than for differences over policy. The hostility was evidently mutual, for Pell remembered the acting secretary of state as “one of the stupidest men I have ever known.”¹⁹

The War Department meanwhile organized its own effort to head off Morgenthau’s initiative. Secretary of War Henry L. Stimson saw Morgenthau’s plan as a disaster for Germany and for Europe generally, for much the same reason that John Foster Dulles and others had opposed high German reparation payments in the wake of World War I. Harsh Allied punishment of Germany would lead to an unraveling of European business, he reasoned, and perhaps to revolution.

The secretary passed FDR’s tough marching orders to draw up a new handbook on Germany to his aide John J. McCloy, who in turn passed the problem of war crimes prosecutions to his specialist on the topic, attorney Murray Bernays. During two weeks in early September 1944, Bernays hammered out a six-page memorandum that in time became the legal foundation for much of the work of the International Military Tribunal at Nuremberg.

As Bernays saw his task, he was to defer action once again on the war crimes issue until the war was over, thereby avoiding reprisals against U.S. POWs. He did not intend to develop a plan to slow the pace of Nazi atrocities, as was favored by Morgenthau, Pell, and Pehle. Bernays’s work at the War Department up to that time had consisted in important part in heading off attempts by the American Jewish community, and from the OSS and other U.S. agencies promoting psychological warfare, to open anti-Nazi war crimes trials while the conflict was still under way.

“Bernays had trouble keeping his eye on wartime atrocities,” historian Bradley F. Smith has written. “By 1944 he must have seen reports of the exterminations, but they apparently did not penetrate his consciousness any more than they did that of most others in Washington. Ingrained doubts about atrocity stories, an inability to grasp the reality of the Holocaust, and the seeming futility of any effort to stop it, all played a part in this failure to comprehend reports of Auschwitz and other camps.”20 Bernays’s professional concern was primarily with U.S. POWs then in German hands, not with European refugees.

Bernays and the War Department did not create a war crimes prosecution strategy under their own steam: They were pushed into it by the White House, by Morgenthau and Pell, and by public sentiment. There is every indication that without this outside pressure, the War Department would have continued to let the matter drift, just as it had for the previous three years. Regardless of what Murray Bernays may have intended, the War Department used his legal advice primarily as a device to avoid taking direct action against Auschwitz and other death camps.²¹

Bernays is today widely credited with formulating a plan to try Nazi criminals for conspiracy to commit crimes in addition to the more conventional charges such as murder and pillage. Charges that the Nazis had a “common plan” to commit war crimes, crimes against peace, and crimes against humanity eventually became a centerpiece of the prosecution strategy at Nuremberg.

In fact, though, the concept of Nazi organizations as criminal conspiracies had been discussed among legal scholars since the beginning of the war. It was developed in part by Harvard’s Sheldon Glueck in articles in the New Republic, the Harvard Law Review, and in his 1944 book, War Criminals: Their Prosecution and Punishment. President Roosevelt even referred directly to the Nazis as a “lawless conspiracy” in his order to the War Department that provided the basis for Bernays’s work.22

Be that as it may, it was Bernays who drafted the legal memo that eventually became War Department policy. Under U.S. criminal law, prosecutors have the option of bringing an additional charge of conspiracy any time two or more persons act “by concerted action to accomplish an unlawful purpose,” that is, to work together to violate a law. In prosecuting bank robbers, for example, the state can seek a felony conspiracy conviction of the suspect who drove the getaway car, even if he never entered the bank.

Bernays suggested extending this principle to international law. If the Gestapo was found by an appropriate tribunal to have been a criminal conspiracy, he reasoned, any member of the organization could theoretically be prosecuted for each crime committed by its members, assuming that the accused Gestapo man was acting “in concert” with the rest of his organization. The same would be true for members of the Leadership Corps of the Nazi party, the SS, the German high command (though it was unclear exactly who that term might encompass), and for other allegedly criminal groups.

He proposed that shortly after Germany’s surrender an Allied tribunal should try several key Nazi organizations as criminal conspiracies, in addition to judging a handful of the highest-ranking Nazi leaders. If the court upheld the conspiracy conviction, that precedent would provide a legal framework for trials of thousands of second- and third-level Nazis who had carried out the criminal policies of their leaders. The finding also would likely eliminate the defense raised by subordinates of acting under orders.

All of the acts of the accused organizations could be placed in the public record during prosecutors’ efforts to prove that a criminal conspiracy existed. This sidestepped the thorny issue of whether or not Nazi actions prior to the outbreak of war in 1939 could be considered war crimes, because evidence going back to 1933 could be presented even though the prosecution was seeking convictions only on acts after 1939. It also permitted prosecutors to present evidence of Nazi atrocities against Axis nationals such as German and Hungarian Jews, at least as long as those deeds could be logically linked to more conventional war crimes.

On the other hand, Bernays’s strategy rejected the effort led by Pell and Morgenthau to set new legal precedents on crimes against humanity and, in fact, opposed almost any development of international law beyond the cramped structure that had existed since the 1919 Paris Conference. His brief failed to recognize any inherent human rights for Axis civilians beyond those granted by Axis governments, nor did it facilitate Allied action to rescue Jews bound for extermination camps. Regardless of what Bernays may have intended, his proposals often became props for those at the State and the War departments who favored a go-slow response to Nazi atrocities.

A bruising bureaucratic war of leaks erupted in Washington during the weeks that followed Bernays’s first draft, as members of each faction spread their version of the facts to the public through news reporters. Morgenthau’s group appears to have cast the first stone. Pell told columnist Drew Pearson in mid-September about the sabotage of the UNWCC. The following week, Pearson followed up with revelations of FDR’s stunning criticisms of SHAEF’s handbook on Germany. He also laid out Morgenthau’s version of the debate inside the U.S. government over the prosecution of war crimes. The Wall Street Journal published what amounted to the State Department’s reply the next day, stressing the most extreme features of Morgenthau’s plan and its potential to “deindustrialize” Germany. The New York Times and Washington Evening Star then weighed in with detailed reportage almost certainly leaked from the State Department that painted Morgenthau’s initiative as a nearly fanatic example of war hysteria. The Washington Post editorialized that Morgenthau’s economic strategy for Germany seemed to be the “product of a fevered mind.”23

At this point, the 1944 presidential election was only a month away, and the opposition Republican party made the most of the scandal in the Democrats’ camp. Republican candidate Thomas Dewey charged that Morgenthau had handed the Nazis a propaganda bonanza, and contended that German fears of Morgenthau had caused the Wehrmacht to dig in deeper and fight harder. The newspaper barrage dealt Morgenthau a serious political blow. FDR stepped away from Morgenthau’s plan in the weeks that followed, publicly opposing “deindustrialization” of Germany and favoring a more moderate approach. After Roosevelt won reelection, Dewey retracted the charge that Morgenthau had contributed to Germany’s will to fight, but by then the political damage had been done.

Herbert Pell was eager to clear the air with Roosevelt. In early December, he used the occasion of his son’s marriage to return to the U.S., where he hoped to win the President’s backing in the debate over atrocities against Jews in the Axis countries. At the State Department, Green Hackworth had other plans. That November, Congress had placed new restrictions on the President’s Emergency Fund, the source of Pell’s salary during the past eighteen months. The money as such was nearly meaningless to Herbert Pell, as he could easily afford to work without pay if necessary. But Hackworth knew that without a congressional appropriation for the post, Pell would be legally forced off the commission.

The legal advisor sent his aide Katherine Fite to Capitol Hill with a budget proposal that put the request for Pell’s salary at the bottom of the list of State’s priorities. Fite spoke in favor of the appropriation for Pell, but in terms that made it clear to Congress that there was little regard for Pell’s work at State and not much support for the UNWCC. After several meetings, a congressional conference committee deleted Pell’s salary during the markup of the appropriations bill, and the 1945 budget was passed without it.24

Herbert Pell met with Hackworth at least twice during Fite’s trips to the Hill, and at neither time did the legal advisor let on that Pell’s fate and that of the UNWCC were under discussion before a congressional budget committee. Instead, Hackworth used the meetings to quash Pell’s requests to attend war crimes policy gatherings then under way at the War Department and to pour cold water on Pell’s assertions that FDR was backing his plan to reclassify crimes against Axis Jews as war crimes. “I thought I made it clear … that nothing final and definite could be said at this time” concerning crimes against Axis civilians, Hackworth reproved Pell.²⁵ The U.S. representative should not act on any of his “impressions.” Acting Secretary of State Stettinius also knew that Pell’s ouster was imminent, but he too remained silent when the two men met.

Hackworth and Stettinius worked through the Christmas holidays to prepare the paperwork for FDR that they hoped would administer the coup de grace. They rehashed Preuss’s allegations against Pell from the previous spring, criticized Pell’s willingness to make public comments without instructions from Washington, blamed his dismissal on the congressional funding cuts, and falsely assured the President that Pell’s concerns were now being addressed by a new legal committee made up of Hackworth, Bernays, and other government attorneys. The only real question left, they said, was whether Roosevelt should personally tell Pell that his job was over, or if he preferred to let State do the firing.

“O.K.,” Roosevelt replied to Stettinius in a terse note in early January. “You do it. At last.”26

Hackworth believed he was meanwhile making considerable progress in his meetings with Bernays at the War Department. To Bernays’s face, Hackworth accepted the War Department proposal, but in working sessions he helped draft policy directives for U.S. commanders in the field that were as close as possible to the State Department’s (and Hackworth’s) strategy on war crimes. At the same time, Hackworth continued a behind-the-scenes effort to quash the compromise plan that he was drafting with Bernays. Despite lip service to the Bernays plan, Hackworth’s now-declassified memos document that he continued to try to head off use of a conspiracy prosecution against the SS and the Nazi party for at least the next six months.²⁷ In part due to Hackworth’s prompting, Attorney General Francis Biddle also opposed Pell’s initiatives and the War Department’s suggestions for conspiracy prosecution of Nazis, raising many of the same objections to war crimes enforcement that Robert Lansing had argued at the end of the previous world war.²⁸

The British Foreign Office remained of one mind with Hackworth on these issues, and its legal attaché in Washington leaked to him the classified Combined Chiefs of Staff policy papers on war crimes for his “personal use” in convincing other Washington departments to toe the line.²⁹ These orders limited war crimes prosecutions to narrowly defined cases, made no mention of crimes against humanity, and specifically excluded any “acts committed by enemy authorities against their own nationals”—which is to say, most crimes against European Jews—from postwar prosecution. There was, of course, no discussion whatever of prosecuting Allied leaders for bombing civilians (or hospitals and similar installations) in the Axis countries.

Equally important, the Combined Chiefs of Staff contended that no war crimes suspect was to be handed over to any other Allied country “except by arrangements among the governments concerned.”30 In the world of diplomatic etiquette, this last statement was worded to undermine compliance with the obligations of the Moscow Declaration without openly defying that agreement. The importance of blocking delivery of suspects was to grow considerably in the months ahead, and eventually it emerged as one of the most important means by which war criminals escaped justice.

In early January 1945, Hackworth’s effort to engineer Pell’s dismissal unexpectedly blew up in the legal advisor’s face. Shortly after FDR’s confidential note authorizing State to dismiss Pell, the President met Pell for lunch at the White House. As Pell tells the story in his unpublished memoirs, FDR reassured him of continuing support and encouraged him to return to London to lead the UNWCC in taking a tough stand on Nazi crimes against Jews. Elated, Herbert Pell returned to the State Department for what he believed would be a routine meeting with Edward Stettinius. It did not work out that way. Stettinius abruptly fired Pell without warning and with minimal courtesy. The dismissed UNWCC commissioner immediately called the White House, but FDR did not return his old friend’s telephone calls.³¹

Pell refused to give up and took his case to the newspapers, charging that the State Department leadership was quashing prosecution of Nazi atrocities. He used his dismissal to bring new attention and credibility to his earlier accusations that the State Department had sabotaged or obstructed a whole range of activities undertaken in response to the Holocaust. Newspaper editorial writers and columnists took up Pell’s cause and, more important, focused public attention on the legal technicalities that Green Hackworth and other department officials had quietly used to justify their policy of inaction in the face of the Holocaust.

A Washington Post editorial condemned Pell’s firing and attacked “certain legalistic-minded old-school individuals … [who] had failed to find any precedent in international law for the punishment of a country’s murder of its own citizens … and therefore refused to approve [U.S.] participation” in the prosecution of Germans who had destroyed German Jews. The problem, the Post continued in a second editorial, was “certain well-entrenched functionaries in the State Department.” The liberal New York daily PM published a series of investigative articles on the whole affair. “Who are the U.S. officials seeking to sabotage trial of Nazi killers?” the paper headlined. “Legally, Hitler is still safe” because of a State Department policy that was, in PM’s words, making “punishment of the men who perpetrated this war upon the world … impossible.”32

The firestorm of publicity forced the State Department publicly to cave in on the issue of prosecuting Germans for crimes against German Jews, though State continued to resist Morgenthau and Pell’s broader conception of breaking up the German corporate elite. The State Department issued a formal statement insisting—quite falsely—that it had supported the “aims” of Pell’s program all along.³³ Pell became a martyr, in effect, for the hard-line approach to Nazi crimes that had been espoused by the activists surrounding Morgenthau at Treasury and by much of the general public. “By crudely dismissing him,” historian Michael Blayney has written of this incident, the State Department “enabled Pell to arouse public wrath to such intensity that the Department was forced to yield.… Pell’s abrupt dismissal helped make the [Nuremberg] Trials virtually inevitable.”³⁴

The factional conflicts in Washington over what to do with Germany also began to emerge among U.S. military commanders in Europe well before the shooting war ended. U.S. troops crossed into Germany at Aachen in the fall of 1944, and it was there that the U.S. made its first effort to establish a post-Nazi government. The opposing drives underlying U.S. policy—toward continuity of German elites as a means of attaining stability, on the one hand, or toward a purge of the system that had given birth to Hitler, on the other—collided almost immediately. The events in Aachen became a prototype of what was to unfold throughout the Western zones of Germany and, in fact, throughout much of Europe.

The city had suffered severe war damage from Allied and German forces. Yet, within days of the U.S. victory, there emerged in Aachen “an elite made up of technicians, lawyers, engineers, businessmen, manufacturers, and churchmen,” according to military sociologist Saul Padover, who led a U.S.-sponsored research team in Aachen. “This elite is shrewd, strong-willed, and aggressive. It occupies every important job” in the new German administration that the U.S. permitted under the occupation.³⁵

Padover’s team conducted in-depth psychological and sociological interviews with dozens of people in Aachen, including most of the “notables” identified there. “Their strong point, especially in dealing with Americans, is that they are ‘anti-Nazi’ or ‘non-Nazi,’” Padover wrote. During the war, most had held senior positions at the Veltrup works, Aachen’s leading war production plant. “A striking fact about this new Aachen elite is its comparative youth. Their ages run from thirty-three to fifty. They all represent the upper middle class.… The leading men in this group had spent their working life and grew prosperous under the Nazi system and they knew little else. They had an antidemocratic conception of government and a ‘leadership’ [i.e., Führerprinzip] view of business.”

Aachen’s new leadership clique had a fairly clear-cut, long-range political-economic plan. The plan, “about which MG [U.S. Military Government] knew little and cared less, was a significant index of what one may expect from similar business groups in Germany,” Padover contended. Their vision, he said, was “an authoritarian corporate state,” somewhat similar to the Austrian model of the 1930s. Economically, they favored a tightly knit community of owners and managers of small enterprises supported by a limited “labor aristocracy” of foremen and artisans. The new leaders were said to be “violently opposed to popular elections, political parties, and trade unions.

“Under the nose of the MG,” Padover concluded, the new administration was “setting up the framework of an authoritarian, hierarchical, bureaucratic, corporate fascism—a type of Staendestaat that even the Nazis had rejected.”36

This group entrenched itself in the city administration by placing insiders in control of local ministries, Padover continued. The new administration’s chief building contractor and leader of its “Industrial Bureau,” for example, had been Aachen’s largest contractor under the Nazis and had made extensive use of forced labor. The executive officer and personnel director, Opt de Hipt, had been the Gestapo’s liaison inside the city’s most important war production plant, with responsibility for enforcing loyalty among the factory’s employees.³⁷

In short, the postwar leaders who emerged at Aachen were not ideological Nazis from the mold of Himmler or Hitler. They were instead the political, economic, and social technocrats who had actually run Germany during Hitler’s regime under the watchful eye of Nazi party activists.

There was an alternative for the administration of occupied German cities, though it could have been implemented only in the face of resistance of the existing elites. At Aachen the town and its surroundings had been in the hands of a coalition government made up of left-centrists, Social Democrats, and Communists for most of the decade prior to Hitler’s assumption of power. One of the first public opinion surveys conducted by U.S. forces in Germany found that 70 percent of the women and 83 percent of the men interviewed at random said that they would vote for Social Democrat or Communist candidates if elections were held.38 Theoretically, at least, the citizens of Aachen would have elected a more democratic and anti-Nazi administration had the military government permitted elections to be held.

The American response to the emerging leadership clique foreshadowed what was to unfold in the U.S. occupation zone over the next year. This was months before Germany’s surrender, at a time when Roosevelt was still in the White House, U.S. unity with the Soviets was still ostensibly strong, and anti-Nazi sentiment among U.S. forces was at a high tide. “Behind the scenes in the MG offices a storm was raging. It revolved around the basic question of retention of Nazis and other undesirable characters in office,” according to Padover. “MG itself was split into three wings, Right, Left, and Center. A majority of MG officers were on the extreme Right and supported the [new] administration; their business, they said coldly, was ‘efficiency,’ and not politics. A minority, consisting of the deputy [military governor] and two lieutenants, were more or less on the Left and urged the elimination of Nazis. In the Center was Major J., the Military Government Officer. Major J., an affable officer who knew little about Germany and nothing of the German language, was perfectly neutral on the subject of Nazis.” There were fifty-five Nazis in middle- and high-level posts in the local administration at that point, Padover reports. “Major J. said that one must go slowly in getting rid of them, because they were indispensable. ‘Where,’ he asked, ‘would you find competent people who are not Nazis?’”³⁹

Padover’s study concluded that the root of U.S. inertia in Germany involved politics, bureaucracy, and social attitudes based on class.

An MG team is judged on its efficiency and performance record. Thus when an MG group enters a city, its first consideration is functional, not political. No political intelligence officer accompanied the MG team into Aachen. In fact, no officer, outside of the medical officer, could speak German; none had any first-hand German experience.

An MG team, therefore, will employ almost anybody it believes capable of putting a town on a functioning basis. Thus Nazi sympathizers, Party members, or German nationalists, are appointed by MG as the only available specialists. These specialists, who look extremely presentable and have professional backgrounds similar to those of MG officers, then place their like-minded friends in secondary positions. As a consequence, MG’s initial indifference to the politics of the situation leads in the end to a political mess. Then comes the complicated attempts by CIC [Army counterintelligence] to weed out the undesirables, and the MG officers find themselves in the unpleasant position of having either to defend Nazis or of starting all over again.40

Padover’s study led to a scandal and reforms at about the same time the controversy over Pell’s dismissal erupted. Congressional and public pressure led the U.S. military governor to purge about two dozen former Nazis from the Aachen government. Most of these officials were in fact small fry, including the janitor at the local school. Aacheners responding to the U.S. public opinion survey asked openly, “Are you going to sit back now and let the big Nazis rule,” as an elderly woman put it, “now that you are satisfied that you have thrown out the Nazi janitors?”⁴¹