It turned out there’s a 2003 book about those trials, Justice at Dachau by Joshua M. Greene. Its focus is the U.S. Judge Advocate General officer who served as prosecutor, William Denson. Denson made the decisions which created, with the cooperation of General Lentz’s tribunal, the legal regime for that era’s “military commissions.” In light of the travails of the “legal” regime successive US administrations have tried to will into being since 9/11 to try “detainees” accused of terrorism, it makes suggestive reading. The legal issues were always difficult.
But U.S. political authorities decided that there must be trials. The intellectual authors of Nazi aggression and racial extermination were tried at Nuremberg by a court with judges from all the Allied powers. But 40 (relative) small fry -- camp commanders, doctors who experimented on living prisoners, especially brutal jailers -- were arraigned at Dachau, the concentration camp that the U.S. forces had recently liberated.
Prosecution was not simple because the conduct of the US forces that liberated Dachau had not been exactly exemplary -- though it is certainly not hard to understand why. When they came upon the concentration camp ...
Fairly quickly other officers restored US discipline. Nonetheless court-appointed defense lawyers at the Dachau trials, Army officers themselves, repeatedly argued that their German clients had been intimidated into signing confessions -- and perhaps they had.
Prosecutor Denson had to prove that the individuals charged were individually guilty although in the chaos of liberation (this trial took place just months after Germany surrendered) and because so many victims were simply dead, this was nearly impossible. He built his case around the idea that leaders of the concentration camps participated in a “common design” that included murder, cruelty, forced labor and other atrocities.
General Lentz’s court accepted these arguments, taking less than two hours to convict all 40 Dachau defendants. He pronounced:
The court pronounced 38 death sentences.
Why was such an outcome possible in 1945 but has proved nearly impossibly difficult to achieve now? There were US voices raised against the “victors’ justice” aspect of the trials even then and they came from the same sort of guardians of liberty who question the Bush and Obama military tribunals now. But these voices then were drowned out by the almost universal consensus at home (which the speakers shared!) that US forces had found unprecedented evil in Nazi Germany.
Today, we’ve seen the Bush administration respond to 9/11 by sweeping up hundreds, maybe thousands, of innocent people -- immigrant Muslims, Arabs, South Asians; naive travelers in Pakistan and Afghanistan, etc. -- and fail for years to sort out and charge most of them. Then they followed that up with a war on Iraq started on a phony pretense. There, they enabled widespread torture by US troops, private mercenaries, and spooks. Obama has tried to restart this anti-terrorism apparatus on the basis of secretive, if legally enacted, rules. But trust is broken and the demands of stupid politicians and the “national security” establishment ensure that trust cannot be re-established.
Maybe the lesson of the contrast between these two eras is that legitimacy of a legal regime is a fragile, delicate thing. When it is abused, trust departs, possibly gone for good.