American Clemency for Nazi War Criminals

In contesting the findings of the tribunals, the clemency petitions of 1950 were not entirely original, drawing on years of argumentation set down in prior petitions to Lucius Clay and the U.S. Supreme Court, and reaching back to arguments made by defense attorneys at the tribunals themselves. Petitioners described prosecution and rebuttal witnesses as not credible or otherwise unreliable, as opposed to the highly credible but unfortunately often un-locatable defense witnesses. The documentary evidence upon which the judgments relied had been misconstrued by the prosecution, was fake or forged, or was otherwise “invalid” in some way. Official titles such as “office-head” in the WVHA, RSHA, or SS or the title of “deputy” to an important figure in the Nazi regime were titles only, “without any real authority and power.” The judgments too were invalid, or as one inmate contended, based on “assumptions and deductions” that went well beyond the evidence. Specific instances of war crimes or crimes against humanity were not crimes at all, either because the petitioner claimed ignorance of their existence or because they occurred as a result of legally binding orders from a higher authority. In any event, most petitioners claimed that they were absent from their posts at the crucial moment of action or decision. To the limited extent that the petitioners grappled with their own culpability in the crimes of the Third Reich, the general approach was to attempt to refute one or more highly specific aspects of the judgments as problematic or in error and then, in turn, use this instance to invalidate every finding of the tribunal in each case. The Advisory Board would ultimately seize on these hyper-specific errors as justification for reducing many prisoners’ sentences.

Former Einsatzgruppen commander Heinz Jost marshalled several interlinked arguments to explain away his unit’s mass murder operations. While Jost admitted that he held the position of head of Einsatzgruppe A from March to August 1942 and served at the same time as overall commander of the Security Police and SD in Reichskommissariat Ostland (a territory encompassing the Baltic states and a significant portion of Belarus), he claimed that superior orders limited his personal responsibility for the criminal acts that occurred in his jurisdiction. Failing that, Jost argued that most of the mass executions of Jews described by the prosecution had taken place before his arrival at the front. But even if civilians had been murdered under his command, such instances were “justified,” in Jost’s opinion, as part of the legal suppression of partisan bands. Such justifications were, at the very least, disingenuous, given the subjective definition of what constituted illegal resistance to the German occupation. German officials were empowered to treat resistance as racially ascribed (all Jews were communists, and thus partisans) and viewed their duties as preventative, up to and including the execution of civilians who appeared ready to join a partisan band.

In Jost’s self-conception, he was blameless, a dedicated administrator who had protested the best he could within the limited means at his disposal to countermand the criminal orders foisted upon him by his superiors. Jost even went so far as to claim that his delaying tactics had “prevent[ed] the deaths of tens of thousands of people,” and that “due to my attitude no mass killings of Jews or other innocent people (mental insanes) took place, but innumerous people which were to be executed according to the order were kept alive.” Einsatzgruppen commander Jost had been in the business of saving lives! Although the court had unequivocally rejected these arguments at trial, Jost’s petition argued that the life sentence the tribunal gave him was itself evidence that clemency was warranted, noting that if the court really believed he was guilty it would have sentenced him to death as it did others of similar rank. So, in an argument later echoed by the Advisory Board itself, prisoners like Jost deserved, in effect, “double clemency,” in that the very fact that the tribunal neglected to sentence them to death served as a justification to further reduce their sentences later.

Paul Blobel, sentenced to death in the Einsatzgruppen case for at least 60,000 murders perpetrated by units under his command, declared that he was no Nazi “fanatic” and provided a series of contradictory claims about errors made by the tribunal in his case. First, Blobel argued, his assignment to the Russian front at the head of an Einsatzkommando was “not a voluntary decision on my part” but the result of an “official war-order” issued pursuant to the invasion of the Soviet Union; refusal of an official order was impossible. Blobel next claimed that his unit was subordinated to the 6th Army in the field and was a catchall for various security and occupation functions, with an unclear delegation of operational authority. Thus, all the evidence his conviction relied upon, including the daily reports of the Einsatzkommando’s murderous activities, either did not refer to the unit functions under his responsibility, or were confusing his command with a different SS unit operating in the same area. In short, the documents did not say what they appeared to say.

Next, Blobel claimed that his unit, consisting of approximately 45 men, was too small to have killed so many people. Nevertheless, Blobel was confined to bed with a head injury when most of the murders occurred and so could not have taken part. Also, he never received any written orders to kill civilians from his superiors. But the board, Blobel continued, should try to understand the difficulties of his situation, as, during the war, he was trapped between two extremes (rejecting orders or following them) that in either case led to the same fate: Blobel’s own death and the suffering of his family. Also, he had been fighting in the East “an opponent who remains the true enemy of all mankind.” So, in sum, Blobel was forced to serve in the East against his will, much to his anguish, but he never received any illegal orders or committed any illegal acts, and even if he did (which he could not have done, either because of manpower limitations or his own ill health), he would have been completely justified in doing so because of the brutality of the enemy and the dangers to his family if he refused.

Blobel’s attacks on the veracity of the documentary record were standard fare. During the tribunals, defendants had disputed the validity of their signatures on documents and engaged in extended bouts of sophistry over the appropriate English translation and meaning of the notation im Auftraug (on behalf of), wherein subordinate officials signed documents in the name of their superiors. At trial, the signing subordinate then blamed whatever policy or action was described in the document on their superior while the superior blamed the subordinate. The one exception was Alfried Krupp, who, while litigiously disputing every facet of his conviction, begged the Americans to free his compatriots because “at all times they occupied positions in the Krupp Firm which were subordinated to that of my Father or myself.” Fortunately for Krupp, the Advisory Board and the newly-appointed US High Commissioner for Germany, John McCloy, who would be recognized for decades as one of the leading pillars of the Cold War establishment, either disregarded or were not convinced by this admission. They would recommend the reduction of Krupp’s sentence based on the rationale that he was not actually in charge of his own company during the war.

Unable to suppress documentary evidence at trial, the prisoners’ clemency petitions instead sought to “contextualize” it. Former Krupp executive Karl Eberhardt, for instance, claimed that even though his name was on a distribution list for all manner of documents detailing Krupp’s wartime dependence on slave labor, he never read them (that is, his secretary had not passed them along). It was unfair, he argued, for the tribunal to impart knowledge of slave labor to him merely from his senior position in the company and the documents bearing his name. Other prisoners, such as Erhard Milch, acknowledged the accuracy of individual documents but denied that they were of any great significance. In Milch’s case, the prosecution had presented meeting minutes showing that Milch had repeatedly pressed to increase the numbers of slave laborers in German industries and treat them more brutally to meet higher production quotas. In his clemency petition, however, Milch claimed that his violent outbursts during meetings, as recorded in the minutes, were “only words” and urged the Advisory Board to consider his deeds instead (which included orders matching his words). Hedging his bets, Milch also asserted that his discomfiting wartime utterances and deeds were the unfortunate byproduct of a head injury.

Another approach used by petitioners, particularly former doctors and judges, was to deny that the acts attributed to them by the tribunals were crimes at all. Former physician Hermann Becker-Freysing argued that while he “regretted the tragic circumstances which had forced us to carry out the experiment” compelling concentration camp inmates to consume seawater to test experimental water purification measures, this did “not constitute a crime from a medical or ethical point of view,” as the results were “harmless.” Moreover, Becker-Freysing concluded, “If I made myself guilty by the fact that the experiment was carried out in a concentration camp and my ignorance about conditions generally therein,” then the four years he had already served were certainly enough to atone for his actions. Erwin Tschentscher, a WVHA department head responsible for provisioning concentration camp guards, made a similar argument, claiming both that he was ignorant of the “terrible occurrences” within the camps and that his actions were largely irrelevant anyway, since he was a mere quartermaster. Although his work furthered the efficient running of the concentration camp system, with all its horrors, Tschentscher denied that he was part of a criminal enterprise. Hans Bobermin, meanwhile, in a somewhat novel argument, proclaimed that he was wrongly convicted of plunder because the 400 brickworks he administered for the WVHA (seized from their Polish owners after the German invasion) lay exclusively in the territory ceded to Germany by the Soviet Union in the secret protocols of the Molotov-Ribbentrop Pact, and were thus legitimate business acquisitions.

Other petitioners appealed to the pressures of war to justify their actions. Fritz Fischer, who had conducted a range of deadly experiments on concentration camp inmates without their consent, was willing to admit that his actions “constitute a true crime.” Still, Fischer argued, his life sentence was too severe because his conduct was motivated by patriotism rather than cruel or base intentions, a claim which implicitly rejected the idea that war crimes could exist at all outside of these specific motivations. Such arguments also attempted to leverage the widespread idea that base intentions should act as a punishment multiplier while pure motives should be exculpatory against the Nuremberg verdicts, which, given the enormity and long duration of the defendants’ criminal acts, could not readily establish the perpetrators’ emotional state. Noting that he was only 27 when war broke out, Fischer claimed that he was swayed by the arguments of a charismatic superior who offered him a path to serve the Fatherland—researching experimental treatments to save the lives of scores of the thousands of daily casualties from the Eastern Front. In the next section of his petition, however, Fischer cast aside his self-portrait of youthful naïveté in favor of the contradictory explanation that, knowing the experiments were wrong, he begged his superior for a transfer to a different assignment only to be “strictly and severely” rebuffed, participating only against his will from that point on. As was the case in the petitions filed on Fischer’s behalf by concerned relatives, the suffering and death of Fischer’s victims went unacknowledged.

Some petitioners, particularly those who saw themselves as respectable businessmen, expressed shock and resentment at the tribunal’s characterization of their activities as comparable to the crimes of their truly murderous contemporaries. In so doing, they affirmed the false narrative, already circulating at the time of the Nuremberg trials, that the crimes of Nazism were mainly attributable to a small minority of deviant or psychotic individuals in the exclusive employ of SS field units and concentration camps. Karl Mummenthey, wartime head of the SS enterprise Deutsche Erd- und Steinwerke (German Earth and Stone Works), renowned for its abusive and deadly treatment of concentration camp slave laborers, wrote that the tribunal’s judgment describing him as a “bad man,” “robber,” and “murderer,” was completely unjustified and “burdens my soul.” After all, Mummenthey claimed, other agencies assigned inmates to him for employment, and since the concentration camp laborers were housed in sub-camps controlled by the police or SS, their poor treatment was not his responsibility. Poor working conditions were also the fault of other agencies’ administrative decisions or the general deprivations of the war, not Mummenthey—how could he be compared to a murderer? Even if his actions were indeed criminal or negligent (a point he refused to concede), Mummenthey argued, the nature of his work meant that his peers were the lightly punished industrialists of the Flick, Farben, and Krupp trials, not the SS officers of the WVHA or Einsatzgruppen. He was, after all, just a businessman. Hans Bobermin, who administered 400 brickworks dependent on forced and concentration camp labor also protested his 15-year sentence as far too harsh. How, Bobermin asked, were his activities any different from those of the executives at Siemens or Messerschmidt, who were also dependent on slave labor during the war but did not find themselves in the defendant’s dock?

Friedrich Janssen, the chief financial officer of Krupp beginning in 1943 (just the type of man Bobermin and Mummenthey compared themselves to), also resented the tribunal’s conclusion that he had facilitated the illegal compulsory employment of prisoners of war and concentration camp inmates in the firm’s armaments works. Even though he held a seat on Krupp’s board of directors and admitted that one of his principal duties was to allocate funds to pay the state for utilizing the prisoners and concentration camp slaves, Janssen wrote, “It was not my job as the man responsible for financial and commercial matters to concern myself with labor matters.”

Former Wehrmacht officers jailed for their role in overseeing the liquidation of Soviet prisoners of war or civilian massacres on the Eastern Front or in the Balkans had a more difficult path to tread, since, as in the Einsatzgruppen case, these murders were well documented. In their petitions, these prisoners admitted that excesses had taken place, but either denied that their men were responsible or justified the killings by citing the exigent circumstances of a particularly brutal anti-partisan campaign.

Although Helmut Felmy (former commander of the LXVIII Army Corps in Greece from May 1943 to October 1944) devoted a lengthy section in his petition to blaming the reprisal killings for which he was convicted on a separate SS unit operating outside the scope of his authority, he justified his actions by describing the extent of partisan resistance in his sector. Convicted specifically for the destruction of an entire Greek village, Kalavryta, and the massacre of hundreds of Greek civilians there, Felmy explained that it was a hotbed of communist partisan activity, and that, following a massacre of several German soldiers, the command staff “had to make a difficult choice,” since rank-and-file soldiers could not be restrained from “expiatory measures” against the partisans. Furthermore, Felmy explained, the Greek hostages “were selected out of those classes of the population which were suspected to be in connection with gangs, and to assist them (transmission of communications, keeping of arms, functionaries etc.) … not blindly taken out of the population.” How the German troops under Felmy’s command, or the separate SS unit on which Felmy also blamed the atrocities, determined that these Greeks were affiliated with the partisans was left unsaid. Regardless, Felmy justified the destruction of Kalavryta by noting that as late as 1948–1949, the “gangs” that ruled the village were causing considerable trouble for the royalist Greek government, which had also taken and shot hostages in attempts to pacify the area. “The cruelties of the partisans, the peculiarity and seriousness of the fight against gangs which was burdened until now to the German troops,” Felmy wrote, were now well known to the Greek government and its British and American allies. Any resulting atrocities were the unfortunate, but natural, byproduct of war, not war crimes.

Hubert Lanz, Felmy’s contemporary and commander of the XXII Mountain Corps after September 1943, claimed ignorance of the retributions visited upon the Greek countryside but still spent a lengthy portion of his petition blaming the partisans for any reprisals, just as Felmy had. “The facts are,” Lanz wrote, “the German troops were exasperated by the treacherous and cruel methods of warfare applied by the partisans (who threatened Greece for years to come after the war had ended), and by their being supported by the population.” This was tantamount to a “state of emergency,” which automatically invoked the standing reprisal authorizations of the Wehrmacht High Command calling for the execution of either 50 or 25 hostages in retaliation for every German soldier killed, depending on the locality. Even as Lanz claimed that reprisals were justified under the circumstances, he also argued that this process bypassed him entirely; he had no authority to countermand OKW directives and was informed of shootings by his staff only after the fact. Wilhelm List, former overall commander of Armed Forces Southeast (Greece and Yugoslavia) in 1941, first argued that any reprisal orders bypassed his command—going straight from OKW to individual commanders in the field—before transitioning to a defense of the harsh anti-partisan measures, which he claimed to have inwardly opposed at the time. List condemned the “treacherous and cruel underground terrorism” of the Bolshevist partisans as the first violation of international law in the area, and argued that this “enforced on us” the duty to respond harshly. List also expressed confusion about how his humanitarian desire to put down the partisan uprising as quickly as possible could be judged so harshly by the tribunal.

In weighing the effects of his conviction for war crimes and the psychical and mental strains of prison life, longtime civil servant Hans Heinrich Lammers’ petition encapsulated the assumptions and feelings of most of his fellow prisoners. “After 45 years of blameless service as a state official, during which I believe having fully done my duty for my country and the people,” Lammers wrote, “I am wrongfully considered a professional criminal.” How had this happened? If he was guilty at all, Lammers explained, “then this guilt is most emphatically not of criminal nature but might perhaps be moral nature, and is rooted in the fact that I also served a political regime which led my country into utter ruin and that I did not foresee this event, and consequently kept on following a wrong political trend … The thought of my present situation destroys in me every belief in right and justice, since there is no possibility given to me who, during his life as an official but also in his private life, have always upheld the principles of right and justice and succeeded in doing this as far as possibilities allowed.” As head of the Reich Chancellery, Lammers had affixed his signature to many criminal decrees originating from Hitler and other Reich officials on matters ranging from the plunder of Jewish assets to the murder of Allied prisoners of war, and attained intimate knowledge of the scale and scope of the Holocaust. Yet Lammers portrayed himself as a good and decent person, a man of no firm political inclinations apart from an unshrinking desire to serve his country.

From Einsatzgruppen commanders to physicians and industrialists, SS men to military officers, all saw themselves as relatively blameless for the horrors of the Third Reich. If they had sinned, their sins were well-meaning: a naïveté about politics, a susceptibility to Nazi propaganda, unquestioning patriotism, and outsized fear for the lives of their loved ones. Although every prisoner objected to the tribunal judgments on technical grounds (this or that piece of evidence was flawed or interpreted incorrectly, the tribunals denied them due process or were themselves illegitimate exercises in vengeance or ex post facto law), their petitions also revealed their collective lack of personal engagement with their own pasts. Any serious reflection on their own actions was largely absent. No matter their position in the German dictatorship, the prisoners were passive observers of their own lives—history happened to them, fate drew them along, others made decisions, and they were left to agonize over the wreckage of it all. Although some remembered with great precision actions that they claimed to have taken to undercut the criminal system that grew up around them (countermanding an order, sparing a life, helping an acquaintance escape to safety), cognizance of their own culpability for taking part in that system remained lost.

At no point did any of the prisoners reflect on the decisions they themselves had made that led them to the fate they lamented so much. There were no criminals among these men; criminals were poor, uncultured, dishonorable, and shirkers, rather than fulfillers of duty and destiny. Insomuch as they were willing to admit responsibility or regret for the heinous crimes of National Socialism, these feelings were transfixed upon abstracts: the loss of an ideal, the ruination of a Fatherland—never on a specific decision, decree, or action to kill, steal, or enslave in the name of the state, or aid and abet others in doing so.

Their American captors could not possibly begin to understand what had been taken from them. Promising careers, pensions, estates, bank accounts, furniture, and family members had been unjustly stripped away by vengeful occupiers. The sufferings of their families had robbed the prisoners of their physical and mental health, while the Nuremberg tribunals had robbed them of their reputations and their freedom. The ruination of Germany by Hitler and his closest followers during the war, meanwhile, had deprived them of their aspirations for a revitalized Germany and reinvigorated the Bolshevist threat. Criminality was antithetical to their self-conceptions as apolitical, bourgeois, Christian citizens, who knew no higher ideals than honor, duty, and love of country. The fact that the tribunals had come to a different conclusion spoke only to their illegitimacy—the real criminals were already dead or remained unpunished. To the extent that the prisoners were willing to conform their petitions to the long-held legal tradition of a supplicant begging his sovereign for mercy, they begged McCloy and the Advisory Board for mercy on behalf of their families, their fellow countrymen, and their nation—the prisoners themselves had no reason to beg forgiveness of anyone.

The Americans had made a grave error. The tribunals had misunderstood the nuances of governance in the Nazi dictatorship, which titles bestowed power and which did not, which orders existed only on paper and which had been carried out, the realities of the life-or-death struggle against communism on the Eastern Front, or the “fact” that anyone who disobeyed or questioned authority invited the swiftest of retributions. They had not understood that no one grasped the true scale or scope of the Third Reich’s crimes until after 1945 and that, even then, certainly not one of the petitioners had been in favor of a Final Solution to the Jewish question. The petitions acknowledged “excesses,” and “unpleasant duties,” “requisitions,” “supply problems,” and “work,” not murder, robbery, or slave labor. And, in their final analysis, the petitioners asked, did any of this even matter anyway? For the Americans to pretend that they too had not raped, pillaged, or murdered innocents while solemnly moralizing about the tenets of international law was base hypocrisy.

These arguments, repeated in clemency petitions to McCloy and his successors from 1950 to 1958, strained credulity and regularly incensed American officials who had taken part in the Nuremberg trial program. Given the chilly reception these same arguments had received from American appellate courts and Military Governor Clay, the petitioners had little cause for optimism. Yet, in the absence of competing narratives from victims or prosecutors, the Advisory Board would take them more seriously than any previous American institution had done, internalizing and reproducing variants of these arguments in their report to McCloy recommending sentence reduction after sentence reduction. As the following chapters reveal, page by page the board succumbed to the seeds of doubt planted by the endless attacks on documents, witnesses, facts, and the very idea that the prisoners possessed any responsibility for their own actions.

McCloy began the Landsberg Report by noting, “It is a fundamental principle of American justice that accused persons shall be given every opportunity to maintain their innocence. If found guilty, it is recognized that they should be permitted to establish mitigating circumstances.” This was the basis for the board’s work, which McCloy briefly reviewed, although he was sure to emphasize that, in the end, every decision was his alone. McCloy’s criteria for mercy, echoing the Advisory Board’s own rationale, included disparities in sentences across cases, reevaluations that showed the prisoner “was of relatively subordinate authority” and thus not as responsible for the crime in question as the tribunal judgment indicated, new evidence that exonerated the defendant in some way, any indication that the defendant “had the courage to resist criminal orders at personal risk,” and acute illness or some other such “special circumstances of similar nature.”

The wartime conduct of the physicians tried in Case 1 constituted a “betrayal of the medical profession,” particularly since “several of the men for whom clemency is asked were not only physicians, but also professional soldiers of very high rank.” McCloy continued, “If there had been any sense of obligation to either profession, they would not have played any consenting role in these outrages.” Nevertheless, all nine prisoners received clemency for “lack of primary responsibility, age, and limited participation,” including the reduction of five life sentences to two 20- and three 15-year terms.

McCloy used similar language in describing his decisions in Case 3 (the Judges Trial), noting that the defendants “cast discredit” on their profession, since they eagerly disregarded judicial principles “to advance the most brutal racial and political principles.” As a lawyer himself, McCloy “had difficulty in finding any justification for clemency in any of these cases.” Yet again, however, because the board had recommended that he do so, McCloy drastically shortened the sentences of all seven prisoners in the case, reducing three life sentences to 20 years and approving four outright releases: three 10-year sentences reduced to time served and a life sentence canceled for medical hardship.

In Case 2, regarding the single defendant Erhard Milch, McCloy castigated Milch’s wartime conduct as “not subject to question” given “his almost violent advocacy of and pressure for slave labor and disregard for the life and health of such labor.” McCloy characterized the board’s recommendation that Milch’s sentence be reduced from life to 15 years as “a sharp reduction considering the high responsibility of this man.” Nevertheless, as in the other cases, McCloy was “prepared to follow it.”

McCloy described the group of six defendants remaining in prison from Case 8 (RuSHA) as “all connected with former government ministries charged with carrying out the almost unbelievably brutal racial concepts of Hitler and Himmler.” “Guilt,” McCloy continued, “attends all the defendants in some measure,” in that all were linked to population transfers, the kidnapping and “Aryanization” of children, sterilizations, and forced abortions of racially undesirable children. Yet again, however, because of the “relatively subordinate roles” of the defendants and the “relatively restricted nature of the relationship of these defendants to the crimes” of the organization, McCloy granted all of them clemency. Three were released outright, and the other three saw significant reductions in their sentences. One of the individuals who was apparently remote from the crimes of the RuSHA was Otto Hofmann, the head of the RuSHA from 1940 to 1943, who had overseen the very policies McCloy deemed so abhorrent.

McCloy’s conclusions in Case 10 (the Krupp Trial) also echoed the Advisory Board’s argument that the punishment visited upon the former armaments executives was unjust given that the judgment, as written, “made it difficult to allocate individual guilt among the respective defendants,” regardless of the defendants’ proven involvement with criminal activity. While the tribunal had convicted the Krupp executives on the counts of plunder (assets illegally seized from France and Holland and acquired by Krupp during the German occupation) and the employment of civilian slave labor and illegal (compulsory) prisoner of war labor at Krupp facilities, McCloy ruled that the Krupp industrialists were not fully responsible for these actions.

On the first charge, McCloy argued that because of the central control the German government exercised over economic matters that intersected with war production, it was the state, not Krupp, that occupied Holland and France, seized assets there, and allocated those assets for Krupp to purchase at a discount. On the slave labor charge, McCloy again placed the onus of responsibility on state institutions, writing, “Slave labor was allocated by governmental authorities and the conditions under which the labor was confined and worked were directed entirely by the concentration camp commanders in the case of the civilians and the army in the case of the war prisoners.” While it was indisputable that “this labor was inhumanely treated … there is likewise no doubt that the industrial concern and its management were not primarily responsible for this treatment.”

McCloy left unsaid who was responsible for the crimes of the Krupp enterprise, no small omission given the enormity of the contradiction with the factual record established at the tribunal. Moreover, McCloy judged the sentences in the Krupp case as disproportionate to those meted out to other industrialists and, with that in mind, reduced all nine sentences to time served. Finally, McCloy voided the property confiscation decree against Alfried Krupp. In the process, he ignored the tribunal’s reasons for the asset forfeiture (that Krupp had acquired this property illegally as a reward for service to the Reich), deriding that aspect of the judgment as “repugnant to American concepts of justice.” For McCloy, the punishment constituted unjustified “discrimination” against Alfried Krupp, whose offenses paled in comparison to those of outright murderers whose property had not been seized. In this instance, McCloy had been informed of the careful legal analysis done by his predecessor, Lucius Clay, that had resulted in Clay affirming the judgment against Krupp, with slight modifications, in 1949, but McCloy overturned Clay’s decision anyway.

Reflecting specifically on the rationale behind his decision in favor of Krupp 33 years later, McCloy also revealed feeling that the tribunal was “doing [Alfried Krupp] dirt,” because, like the Advisory Board, McCloy had not consulted the entirety of the trial record and believed the pernicious myth that Alfried Krupp was unjustly punished for the crimes of his father, who, due to ill health, was spared prosecution. Again, in spite of later accusations, particularly by leftist press outlets, that the freedom of Krupp represented an expedient alliance between Germany’s largest arms manufacturer and its new imperialist American overlords, McCloy’s decision in this case was driven more by revulsion against the “un-American” act of state asset forfeiture and the perception that Alfried Krupp was a persecuted innocent.

McCloy was somewhat less merciful when it came to the SS officers and military leadership, but here too he reduced sentences in most individual cases while expressing outrage at the collective record of these groups’ wartime atrocities. Indeed, of the 11 sentences McCloy affirmed, five were for high-ranking military officers in the Hostages and High Command Trials, one was Oswald Pohl in the WVHA/Concentration Camp Trial, and the remaining five were SS officers from the Einsatzgruppen Trial. Of the Einsatzgruppen defendants in Case 9, “at least many of them, [were] typical of the most inhuman and degrading aspect of the whole Nazi spectacle.” The murders which these individuals committed “were on such a large and vicious scale that the mind has difficulty comprehending them.” The evidence against them was generally irrefutable, consisting of the careful organizational reports of the killing squads and the self-incriminating testimony of the Einsatzgruppen leaders. While “no rationalization or explanation whatever can justify the existence of these organizations themselves, or the policy which motivated them,” the board had found grounds for clemency because of “subordinate responsibility, or the relative remoteness of his connection with the murders, and in some cases, the refusal of the prisoner himself to continue in this brutal business.”

Of the 21 defendants in the Einsatzgruppen case, McCloy upheld five death sentences, commuted another nine to sentences ranging from life to 15 years’ imprisonment, reduced two life sentences to 10 years, released two prisoners on 10- and 20-year sentences outright, and substantially reduced the sentences of the three remaining prisoners. When it came to the conduct of German military officers in cases 7 and 12 (the Hostages and High Command trials) McCloy was eager to dispense with the notion that the goal of the postwar trials had been to “malign the German military profession as a whole.” McCloy was particularly sensitive to this slander against impartial American justice. The sentences imposed on the military officers at Nuremberg, McCloy argued, “were based on charges of excess beyond anything which could possibly be justified on the grounds of military security.” The charges included “savage measures of reprisal and oppression against civilian populations far exceeding the limits of international law or accepted military tradition.” While McCloy had made every effort to take “the bitter character of partisan warfare” into account, “there still remained excesses which cannot be rationalized or excused.” Nevertheless, many of these sentences required revision. Any remaining sentences reflected the individual responsibility of offenders on a case-by-case basis, not “the honor of the German military profession.”

In the Hostages Trial, for instance, McCloy noted that he had affirmed the life sentences of Wilhelm List and Walter Kuntze because of the energy they dedicated to the “terrorization policy of their Command,” which went far beyond “the mere transmittal of a patently illegal order.” Despite McCloy’s effort to give full weight to the brutal conditions of partisan warfare in the occupied Balkans, “the conclusion is inescapable that these highly responsible officers … passed far beyond the limits permitted by justifiable military consideration, both in their acts of omission and commission.” Yet McCloy indicated that because List and Kuntze were both elderly, a medical parole might soon be appropriate for both. As to the other defendants in the case, the officers charged with “excessive reprisals” saw significant reductions in their sentences “because they had lesser responsibility or, in some cases, showed evidence of humane consideration.” So while McCloy affirmed Kuntze’s and List’s life sentences, he reduced four other sentences ranging from seven to 20 years to time served, and reduced two other sentences, one of 15 years and one of 20 years, to 10 years’ imprisonment.