Military tribunals: in 1945 and today

In all the harrowing reading and writing I’ve been doing lately about World War II era Europe (here, here, and here, and more to come), I made a surprising discovery: A sometime uncle of mine, Brigadier General John M. Lentz, was the president of the military tribunal in 1945 that set the precedents for U.S. war crimes trials of the lesser Nazis brought before courts for atrocities. (I call General Lentz a “sometime uncle” because his wartime marriage to my aunt broke up just about when I came on the scene and I never knew him as “family.”) The discovered connection sent me on a hunt for more information.

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.

Of great concern was the accusation that any convictions [Denson] might win would amount to nothing more than "victor's justice." The term denoted executions handed down by courts guided more by vengeance than due process, and it hovered darkly over the Dachau trials, threatening to destroy not only the validity of guilty verdicts but the credibility at those who, like himself, sought to defend the integrity and effectiveness of international law. In war, the accusation implied, victors will always be in the right, the defeated always culpable of crimes for which they must pay. Many who understood the depth of the Holocaust tragedy felt that executing Hitler's henchmen without trial was a perfectly legitimate punishment. Why dignify Nazi killers by providing them with trials? The murder of six million Jews and millions of other victims merited a swifter, more effective kind of response. To insist on proving in a courtroom what had so obviously been done was not to serve justice but to make a mockery of it. Allowing Nazis to stand trial, these voices argued, also meant risking that many might go free.

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.

When [Denson’s assistant Paul] Guth informed them they were going to trial, it came as a complete and stunning surprise. Given their own experience, the Germans had fully expected to be summarily executed. Some laughed, others stood with their mouths open not knowing what to say. Even more incredible were the rights Guth then described. If they wished, they could summon anyone of their choosing to defend them. if they did choose to bring in their own lawyers, Uncle Sam would pay the legal fees. None of the accused would be obliged to testify. If they did testify, they could refuse to take an oath. And perhaps most· surprising of all, the prosecution would limit itself, voluntarily, to a maximum of ten witnesses against anyone accused. The Germans could hardly believe their ears.

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 ...

"Are you Americans?" the voices cried out in a dozen languages.

The soldiers nodded, and there followed an eerie wailing that grew to a roar, and out from the barracks staggered the remnants of Dachau's victims, the healthier running in front, others limping, crawling behind. …Meanwhile, outside the gates, Lt. Col. Donald E. Downard had come upon something that made him doubt his eyes. A line of open boxcars stood silently on railroad tracks leading to the camp, overflowing with corpses. Downard counted thirty-nine cars, maybe two thousand bodies. Many showed signs of cannibalism and other horrors that challenged his sanity.

The men entered the camp. Four Germans approached with their hands on their heads. Walsh, weeping, in anger, pushed them into one of the boxcars, opened fire with his pistol, then returned to the camp to grab more Germans. Others in Thunderbird [unit], caught up in the wave of raw emotion, grabbed any Germans wearing SS insignia and lined them up against a brick wall outside a coal yard. Walsh ordered his men to shoot them if they moved. A young private, following orders, set up a machine gun. 'The SS prisoners, aware of their captors' intentions, began moving toward the Americans. "Let them have it!" someone shouted. Someone else yelled, "fire!" Salvos erupted from Browning automatic rifles. The machine gun strafed left to right, right to left.

… Outside, camp inmates begged the Americans for guns and knives with which to shoot and decapitate the Germans. The Americans obliged. A young Rainbow corporal stood agape, watching an inmate stomp an SS trooper's face until he ceased to move. "You have a lot of hate," the young soldier said. The prisoner looked at him and nodded. "I don't blame you," the soldier said and moved on.

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 evidence presented to this court convinced it beyond any doubt that the Dachau concentration camp and its by-camps subjected its inmates to killings, beatings, tortures, indignities, and starvation to an extent and degree that necessitates the indictment of everyone, high and low, who had anything to do with the conduct and operation of the camp. This court reiterates that it sits in judgment under international law and under such laws of humanity and human behavior that are commonly recognized by civilized people.

"Many of the acts committed at Dachau," Lentz said, "clearly had the sanction of the high officials of the German Reich and the de facto laws and customs of the German government. It is the view of this court, however, that when a state sets itself up above reasonably recognized international law, or transcends civilized customs of human behavior, then the individuals effecting such policies must be held responsible for their part in violating international law and the customs and laws to humanity."

The court pronounced 38 death sentences.
*** I have no trouble believing that a kind of justice was done here. As an opponent of the death penalty, I’d have locked them up for life, but decent humanity recoils from the system which these men willingly, even eagerly, served. Some sort of trial was needed to make that declaration -- these military tribunals could have been far less credible than they were. Honorable people tried to maintain some vestige of legal process in a a terrible situation.

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.