Nuremberg in Washington

For ten and a half months beginning November 20, 1945, American, British, French, and Russian jurists at Nuremberg sat in judgment on twenty-two German leaders accused of committing aggression against other nations, violating the rules of war, and committing “crimes against humanity”—deportations, enslavement, and genocide. This was an unprecedented event. Never before had a coalition of states organized an international military tribunal to punish war criminals.

Why did the Allies choose to try Nazi leaders before a new kind of international tribunal on unprecedented charges? Why didn’t they resort to summary execution of some of the captured leaders, as the British had suggested earlier in the war? Histories of the Nuremberg trials have justifiably stressed the extraordinary scale of Nazi atrocities as the principal reason why the Allies were moved to attempt this experiment in international law.¹ Bradley F. Smith, the author of two books on Nazi Germany and one on the Nuremberg trials themselves, thinks the emphasis should be elsewhere.

In a new and unfortunately narrow and unconvincing book, The Road to Nuremberg, Smith argues that earlier accounts of why the Allies set up the International Military Tribunal “miss the central locus of the decision-making process.” In his view, it was American officials in Washington and not the Allies in general who were principally responsible for the Nuremberg trial system. Moreover, though he acknowledges that the barbarities of the Nazis had much to do with the decision to hold a trial, he believes that a bureaucratic struggle in Washington over the Morgenthau Plan was the initial driving force.

In the summer of 1944, Secretary of the Treasury Henry Morgenthau, Jr., urged a postwar policy that would strip Germany of its industry and leave it with only “an agricultural population of small landowners.” Unlike many in the State and War departments, Morgenthau, a prominent Jew, insisted that the scale and horror of the Nazi atrocities had to be faced. He urged punishment of responsible leaders by summary execution without hearing or trial. He argued that trials for Germany’s leaders were likely to “reap a crop of martyrs” and offer “a sounding board for Nazi dogma.” Roosevelt approved Morgenthau’s plan as a way not only of dealing with the leading Nazis and eliminating Germany’s war-making capacity but also of dispelling fears that Britain and the United States would rebuild Germany as a bulwark against the USSR.

Secretary of War Henry Stimson, the former Republican secretary of state and the most influential member of Roosevelt’s Cabinet, strongly opposed the Morgenthau Plan. According to Smith, Stimson was less concerned than Morgenthau with Nazis and Nazi atrocities, and more interested in practical questions about postwar reconstruction. Morgenthau’s plan, he believed, would bring economic havoc to Germany and Europe and create the conditions for another world war. Arbitrary executions would morally compromise the Allies and deprive them of the chance to put the full story of Nazi crimes on the record. Stimson urged Germany’s economic reconstruction and the punishment of Nazi war criminals through judicial proceedings.

Smith thinks that Stimson was less interested in punishing war criminals than in working out a plan to counter Morgenthau’s, but he nevertheless asked his staff to work up a comprehensive proposal for war-crimes prosecutions. Lieutenant Colonel Murray C. Bernays, a War Department lawyer, suggested trying “the Nazi Government and its Party and State agencies” before an international court. They were to be charged “with conspiracy to commit murder, terrorism, and the destruction of peaceful populations in violation of the laws of War.” If the international tribunal sustained the conspiracy charge, it would sentence the principal Nazi leaders; and Allied civil and military courts would then go on to convict all Germans shown to have been members of any Nazi organization cited for criminal action.

This “first big step on the main road to Nuremberg,” Smith points out, suffered from two major legal flaws. It presumed guilt based on mere membership in an organization, and it charged the Nazis with criminal conspiracy, a concept largely alien to European law. But none of this, Smith asserts, deterred Stimson and Assistant Secretary of War John J. McCloy from supporting Bernays’s proposal. A carefully worked out legal scheme was of less interest to them than defeating Morgenthau.

The retreat from Morgenthau’s plan in the fall of 1944, however, all but ended the effort to make judicial plans for punishing war criminals. During the 1944 presidential campaign, Republicans claimed that Morgenthau’s proposal was stiffening German resistance on the Western front, and this led Roosevelt to deny publicly that he was following Morgenthau’s lead. In consequence, Smith argues, at the end of 1944 not a single government department had approved Bernay’s suggestion for prosecuting the Nazis; and the senior officers in the judge advocate general’s office of the War Department (JAG) vigorously challenged it, claiming there was no legal basis for convicting anyone for starting World War II, and that conspiracy could not be described as a crime under international law.

Only in January 1945, Smith writes, after the public had heard of the Malmédy massacre—the killing of some seventy American prisoners of war during the Battle of the Bulge—was the idea of prosecuting Nazi war criminals revived. If the JAG’s criticism of plans for prosecuting Nazi war criminals was accepted, one advocate of the war trial scheme complained, “it might be impossible to convict a single member” of the SS regiment that had “participated in the slaughter of our men.” Stimson, Secretary of State Edward Stettinius, and Attorney General Francis Biddle soon found that Malmédy was part of the Nazis’ “purposeful and systematic conspiracy to achieve domination of other nations and peoples by deliberate violations of the rules of war.” They accepted the need for a new legal approach, and jointly supported judicial proceedings against war criminals.

Bernays revised his proposal with the help of Roosevelt’s close adviser Judge Samuel I. Rosenman, whom FDR had asked to take charge of plans for punishing war criminals, and Herbert Wechsler, and assistant attorney general. Stimson, Biddle, and Stettinius soon proclaimed that the Nazis should be prosecuted for planning aggression and committing war crimes and crimes against humanity. Though the British remained unenthusiastic, they gave in to American and Russian pressure to hold a trial. The central elements of the Nuremberg proceedings were now in place.

Was this then the principal road to Nuremberg—through bureaucratic politics and a belated recognition of Nazi horrors? Smith thinks so. “After we allow for the spirit of the age as well as for the legal background, ranging from the Hague conventions to the resolutions of the League of Nations,” he writes, “the central fact is that the Nuremberg trial system was created almost exclusively in Washington by a group of American government officials. … Because this story has not been fully told,” he adds, ” … no search for marginal psychological or economic nuances will be possible.” But a critical reader could ask: why not? Surely, these so-called “nuances” or, more to the point, the idealistic hopes of the war years are as important in telling us why the US chose judicial proceedings over summary executions or any other means of settling with the Nazis. Why, after all, did Stimson, McCloy, and other War Department officials react to the concentration camps by favoring a complex trial with uncertain results rather than swift executions by a firing squad? Smith never says. The answer, I would suggest, lies in the wartime mood in which the decisions that led to the Nuremberg plan were made.

In January 1945, for example, after the Malmédy killings moved Stimson, Stettinius, and Biddle to endorse plans for war-crimes trials, Roosevelt accepted the recommendation without comment, as if the decision were a foregone conclusion. More telling was the fact that the issue was almost entirely ignored at the Yalta Conference in February 1945, where “nothing of importance” was decided about war criminals. “Instead of a summit decision,” Smith observes, “all that had resulted was the memorandum signed by the three US Cabinet members and an implementing instrument [the Bernays-Rosenman plan] which had only been seen by a tiny handful of American officials.” Yet in spite of this inaction, the Nuremberg plan became de facto American policy. Throughout the period after Yalta, State Department officials, Smith says, “generally acted … as if the plan was an established program of the US government.”

What Smith overlooks is that the American decision to stage the Nuremberg trials took place against the background of “one-world” thinking in the United States. Concentrating on bureaucratic process, on the many drafts and reformulations of the plans to try war criminals, he does not see that Nuremberg was part of the wartime American conviction that nations and peoples, joined in a worldwide struggle against transparent evils, were moving at least in their sentiments toward shared values and goals. “When you fly around the world in forty-nine days,” Wendell Willkie wrote in One World, his bestseller published in 1943, “you learn that the world has become small not only on the map, but also in the minds of men. All around the world, there are some ideas which millions and millions of men hold in common, almost as much as if they lived in the same town.”²

These ideas were thoroughly American: “Because America stands for a system wherein many groups, however diverse, are united under a system of laws and faiths that enables them to live peacefully together,” the publisher Henry Luce declared in a 1942 Life article, “American experience is the key to the future. … America must be the elder brother of the nations in the brotherhood of man.”³

Like Willkie and Luce, Henry Stimson believed that a new moral order could be imposed upon world affairs after the war. In his public statements, at least, Nuremberg became not simply one part of an answer to Morgenthau’s plan but a reassertion of the rule of law in a world brutalized by Hitler’s debased legal order. Nuremberg, he said, quoting Justice Robert Jackson, was “one of the most significant tributes that Power has ever paid to Reason.” It gave “dignity and method to the ordinary conscience of mankind.” Nuremberg, he also said, was a case of bringing “our law into balance with the universal moral judgment of mankind.”⁴

Other Americans, within and outside the government, shared Stimson’s belief. John McCloy felt that a trial would offer “implicit condemnation of ruthless and excessive force” in world affairs. Moreover, he believed that a “soundly conceived trial system” would set the postwar political tone inside Germany, and possibly eclipse the UN itself as a deterrent to future aggression by showing “future government leaders” where such action would lead. The trial was also seen by editorial writers across America as “a glorious example of the ability of the Allies to work together.” It was “a major proof” of “friendly cooperation” between the US and the USSR.

The trial, the PM columnist Max Lerner said, was “an immense and revolutionary effort to give utterance to a collective human conscience. … The surest basis of a future world society,” he added, “lies in the sense of our common plight. When a Negro is lynched, all of us are strung upon that rope. When the Jews were burned in the Nazi furnaces, all of us were burned.” Holding a trial before punishing Nazi leaders, McCloy argued, had become almost “a necessary concept” in the minds not only of “Anglo-Saxons” but also of “Latins” and “even Slavs.”⁵ As an international tribunal punishing uncivilzed Nazi acts, Nuremberg was one expression of the universalist notion that Russia, Britain, China, France, and the many smaller nations around the globe shared common assumptions about international conduct and law.

Nuremberg also conformed to wartime feelings in the United States about the German enemy. Public opinion polls during World War II indicated that most Americans opposed a harsh peace. As Jerome Bruner demonstrated in his wartime study of public feelings, between 70 and 80 percent of Americans felt that they were fighting against the German government and not the German people, who had been misled into the war by Hitler and the Nazis. Unlike World War I, when Americans stopped playing German music and banned the German language from school curricula, they did not now “hate” their enemies. “In this war,” Bruner pointed out, “sauerkraut is still sauerkraut, and no move has been started to ‘abolish’ kindergartens. Our enduring hatred has been reserved for enemy leaders not people.” Consequently, at the end of the war, a majority of Americans wanted a “humane” occupation of Germany in which its people were treated with kindness and consideration.

A series of polls in 1944-1945 showed that some 60 percent of Americans believed that Germany could rehabilitate itself and become “a good nation” ready for membership in a new world league. The polls also showed that a majority of Americans rejected suggestions that 400,000 or even 50,000 Germans should be executed after the war, saying instead that the number should not exceed 500.⁶ (In fact, only 11 were condemned to die by the Nuremberg tribunal.)

These idealistic impulses are almost entirely absent from Smith’s account. Constrained by a narrow concern with bureaucratic politics and legal form, he fails to see that the Nuremberg trial was essentially an effort to give concrete form to the peculiar American wartime vision of the world, in which nations would soon be ready to cooperate under the rule of law.

At the same time, Smith is too good a historian not to see this weakness in his work. “If the net is cast too widely when appraising the significance and impact of the American war-crimes planning that led to the Nuremberg trial,” he writes in defense of what he has done, “the central issues may be lost in a welter of moralizing and loose speculation.” Yet he himself cannot resist some of this speculation: “There has been a special quality of excess in American foreign relations in the postwar years that, when combined with an inclination toward overmoralizing, has often produced serious difficulties…. The war-crimes planning of 1944-1945 also showed these tendencies in rich and variegated forms….” But Smith devotes only “a final moment of reflection” to such matters, and larger issues are lost from view.

Had he pursued this broader question, he might have put more emphasis on the connection between Nuremberg and wartime beliefs and illusions in the United States. As William J. Bosch has shown in a study of American attitudes toward Nuremberg, three quarters of the American people approved of the trial because it conformed to their “idealistic, moralistic, and legalistic assumptions” about foreign affairs. It was these assumptions that account for the decision to take the road to Nuremberg and for much else in American planning for the postwar world.