Ep. 77- The Clemency and Paroling of Nazi War Criminals with Robert Hutchinson

The Nuremberg trials, though not perfect, represented in many ways an epic achievement in justice for crimes against humanity.  However, a darker and lesser-known element of the trials is what happened to the convicted Nazis after ward.

The overwhelming majority of sentences were never fully carried out and almost all those convicted at Nuremberg and in its subsequent trials especially were out of prison by 1958.

In this episode, I talk with Robert Hutchinson about his fascinating work on the US policy of releasing Nazi criminals from prison.

Robert W. Hutchinson is an Associate Professor of Strategy and Security Studies at the US Air Force School of Advanced Air and Space Studies.

Hutchinson, Robert W. After Nuremberg: American Clemency for Nazi War Criminals (2022)

Follow on Twitter @holocaustpod.
Email the podcast at holocausthistorypod@gmail.com

The Holocaust History Podcast homepage is here

You can find a complete reading list with books by our guests and also their suggestions here.

Transcript

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Waitman Beorn (00:00.632)
Hello everybody. Welcome back to the Holocaust History Podcast. I'm your host, Wayman Bourne. And this week, you'll be very happy to learn you're not going to be hearing from me anymore. That was just, just last week. And this week we're talking about the Nuremberg trial and its subsequent trials and the concept of justice and how it was not, not just arrived at, because that's a different topic, but how it was perhaps lost in the later years. So here we're talking about.

the issues of the fact that maybe folks don't know this, but that many, many, of those people convicted at Nuremberg and during the subsequent trials actually ended up not serving the vast majority of their sentences. And many of the people who received clemency or parole were not what we might consider to be borderline cases, but some of the worst of the worst. And so my guest today, Robert Hutchinson,

has written a great book really detailing the process, the policy, the factors involved in American predominantly and American reevaluations of Nazi war criminals, convictions, and issues of clemency and parole. And Robert, thanks so much for coming on.

Robert Hutchinson (01:19.38)
thanks for having me.

Waitman Beorn (01:20.91)
Can we, well, I guess, first of all, we should note that Robert works for the United States government, so he's had to give his little name right here. We'll let do that, and then we'll move on to our next thing.

Robert Hutchinson (01:28.371)
Yep.

Robert Hutchinson (01:32.562)
Yeah, I immediately forgot to do that. I'm Robert Hutchinson and I speak only for myself in a personal capacity. don't represent my views in or amount those of the Air Force or the Department of Defense in this podcast so much as they care about matters relating to the Holocaust and post-war criminal justice.

Waitman Beorn (01:49.922)
Great. Okay. So now we can talk about whatever we want. But maybe, maybe we can start by, you know, how did you get interested in this, this particular topic?

Robert Hutchinson (02:00.146)
Well, it's actually like if any grad students are listening, this is a perfect example of how not to write a book. But I had some time in the summer. I went to the University of Maryland and got my PhD there. And I had been visiting the area and I had some time. So I went to the archives, which are located in College Park, Maryland. And I decided to just kind of fish around because I wasn't sure what I wanted to do. But I wanted, I was interested in the Nuremberg trials and I

I thought maybe there was something in an article to be done there. And I had some older scholarship from the eighties and I saw something about a competency in parole process. So I started poking around there. And I had really no idea what I was doing. But one thing led to another and the files, we get files. And then the article ballooned into a book project quite accidentally. But what really got me kind of hooked were the contested

notions of what justice is, right? Because often when we think of trials, like if you're thinking about popular culture, whether it's your Law and Order episode or even the movie Nuremberg that came out recently with Russell Crowe and Remy Malek, it's a three-act play, right? Where the first act is a pre-trial investigation, the second act is the drama of the trial itself, and the third act that concludes the story is the conviction, one way or another, and justice is done. But what happens after that?

and is just what, by what definition is justice really done? And it turns out like for me and the story I'm telling, what really hooked me was could you say something new about Nuremberg by looking at the trials themselves as the start of a longer process rather than the end of one.

Waitman Beorn (03:41.282)
And that's a great summary of sort of where we're going because a lot of times I think even in teaching the Holocaust, we kind of draw a line in a Nuremberg and sort of say, Nuremberg is great. I mean, it wasn't perfect, but it was great. brought war criminals to justice and awesome. And then we move on to like sort of post-war memory and dealing with Holocaust and that kind of stuff. But actually, there's a second act to this, which is

Not so great. obviously we're going to get to that, but maybe just very, very briefly, I mean, I'm sure our listeners are kind of familiar with, you know, the general idea of Nuremberg, but maybe you can give like a two minute summary of sort of Nuremberg, the subject of tribunals and kind of the dynamics and mechanics of that, because then we're going to come to sort of how really it's the U.S. that's involved in revising these judgments.

Robert Hutchinson (04:36.913)
Yeah, so the war crimes trials I look at, there's essentially three big buckets of war crimes trials. There's the International Military Tribunal. So the four power tribunal that involves the British, the French, the Americans, the Soviet Union, the film Nuremberg came out, these go first. And then there's what's known as the Subsequent Military Tribunals, which is what I study conducted just by the American military occupation, each zone.

has its own version of these trials. The British have people they put on trial, the French have people in their zone they put on trial, and the Soviets have their own process. And this has to do mostly with the legal residency of whoever lives in the zone of the occupying powers is subject to their jurisdiction and investigation for crimes during the war. And the third big bucket is the US military's trials of concentration camp guards and prisoners at Dachau and also kind of low level.

war crimes committed in the field against US forces, the Malmedade massacre and that sort of thing. So my trials, my trials, the trials I study, the subsequent military tribunals conducted by the Americans, Telford Taylor and the Office of Prosecution and War Crimes, the best way to kind of conceptualize them is, and I don't mean to be provocative by saying this, I forget.

I footnote it in the book, but it's a great phrase. I've never forgotten it. Someone refers to it as liberal show trials, which is really kind of thought-provoking, but I think a useful concept. the subsequent military tribunals are meant to put the Nazi state on trial by trying representative classes of defendants from across a broad sweep of institutions, doctors, lawyers, military officers, Einsatzgruppen commanders, those involved in the concentration camp, big business, industrialists, war profiteers.

that sort of thing. And their liberals show trials because the trials have a pedagogical purpose in occupied Germany. In the American zone, the Americans hope to educate the West German, well, in the future, they'll be the West German people, but the German people as to the criminality of the prior regime, the dangers of, you know, that sort of New Deal era concern with busting the trust and the big concerns, you know, if only Krupp and Flick and all these industrialists hadn't gotten together and control too much of the economy, then Hitler wouldn't have

Robert Hutchinson (06:55.047)
remilitarized and all that. So they're educational. They're meant to be showpiece trials, putting the system on trial itself, representing all that still survives of it. But having said that, they're still liberal show trials in that what's most important is the guilt or innocence of any given defendant. And they're subject to complete legal norms in terms of

evidence treatment, discovery, ability to contest witness testimony, ability to have a lawyer for their own defense. So normal, they're subject to normal criminal and civil procedure as opposed to, for instance, the Dachau trials, which are kind of conducted under looser rules of evidence that govern military court marshals in the field. And so, you know, these trials take place from 1946 through 1949. The last one winds up with the civil servants of the ministries case.

And the United States is successful in prosecuting these people, but it's important to remember that over 120 people are investigated and prosecuted at these trials, only, you know, the 80s, high 80s or low 90s are actually convicted, right? So some are acquitted due to lack of evidence or a judge not responsible or time served and all that. So these are fair trials conducted under the rule of law.

Waitman Beorn (08:16.14)
Why? And even at the main trial, right? There was a couple of people that were that were acquitted as well, you know, at the other big one. Can you talk a little bit about because this is going to be, I think, relevant as we move forward the legal challenges of setting up these trials, right? Because they are a new thing in a lot of ways. They're a thing that is new, drawing on old things, but also trying to

Robert Hutchinson (08:19.942)
Yeah, yeah, absolutely.

Waitman Beorn (08:46.444)
you know, create a new form of justice for a essentially a new kind of crime. And that causes that causes problems. Well, on the one hand, as you say, they're normal in the sense that normal again, I guess I guess I should note or if I'm correct that normal in the sense of model of the American legal system of what what you can do in an American courtroom. But on the other hand, they're not. So can you talk about the ways in which they the challenges they have legally as well?

Robert Hutchinson (09:05.598)
Yes.

Robert Hutchinson (09:13.598)
Yeah, and this is where, you know, I can answer. Here's what's funny about this. So to be kind of nitpicky about this in the evidence, because the legal, the legality of these trials are contested constantly by the German defendants and conservative elements in the German public. And it's funny because from 1946 to 1949, the International Military Tribunal has already done kind of the hard work of establishing the legitimacy of these things. That's why these are the subsequent trials, right?

And the whole conceit of them, regardless to kind of this veneer of international law that's being woven at the time from the Atlantic Charter through the International Military Tribunal, is that even in the specific occupation zones, certain crimes are crimes everywhere, right? So we're not talking about novel concepts like genocide conventions or anything of that nature. We're talking about counts of, you know,

criminal conspiracy to advance a cause of waging aggressive warfare. You're talking about investigations of murder. You're talking about theft, plunder, or spoilage, whether it's of material assets or of people's time, wages, and space through enslavement and that sort of thing. Or you're talking about membership in a criminal organization, organizations deemed criminal by various statutes of the Allied Control Council occupation charter, so the SS, the SA.

the not the German military notably, despite the fact that many German military veterans will carp and complain for the next several decades about how they're being treated as a criminal organization under the Nuremberg statutes. And so there's a fair amount that's unprecedented in the staging of it and in the and in the atmospherics of it, but the judges are very much concerned because unlike the

In the Nuremberg trials, have a Supreme Court justice kind of prosecuting and you have this board of luminaries representing the four powers. All of the 12 successor trials are staffed by normal US federal judges. And the prosecutors are drawn from the JAG Corps, the Office of War Crimes. The defendants are also all military officers, but they're all people who are with backgrounds in law and who operate, who actually port, I think is a better word.

Robert Hutchinson (11:31.741)
the norms and processes of the American criminal justice system onto crimes committed in Germany during the war. And in order to maintain the conception of legality, all sorts of crimes are written out of the record, right? So one of the interesting things about discussing this work on a Holocaust podcast is how absent the Holocaust is from the trial record, not just because

of a general disinterest in hearing Jewish voices, although that's true also, but because of the types of crimes that the United States is investigating here, right? Like so any domestic crimes that take place in Germany before the war are kind of ruled out, right? So the euthanasia program is ruled out. Concentration camp confinement ruled out. Even some of the crimes that take place in German-administered territories in the general government are, you know, it's fuzzy as to how they fit in if there's not a direct linkage to, you know, murder,

in the war effort in one of the territories that the Americans are looking at. And so when you have incest group and commandos, they're in the dock for specific instances of mass murder. The fact that the populations are Jewish is incidental to the trial record, although it is remarked upon as kind of establishing motive and that sort of thing.

Waitman Beorn (12:47.182)
Yeah, I mean, and this is, you know, again, this is one of the things that's kind of shocking about, about, um, you know, what you're, what you're talking about in your book is of course, that along with, mean, everybody is pretty much bad, but I think some people are clearly, you know, sort of empirically bad and the Ansel's group are one of these trials. And they also, these guys are sort of not treated particularly differently than a lot of the other folks that, ended up getting

getting clemency or getting paroled, which we'll talk about in a minute. Can you talk about how we get to this idea of clemency in the first place? Because, you know, one might be mistaken for thinking, okay, Nuremberg, you know, we have all the evidence, the mountains of documents, you know, the case is made by trained attorneys, you know, ruled over by experienced judges. Someone is now guilty of, you know,

terrible things in regards to Third Reich, who would think about asking for clemency for these people?

Robert Hutchinson (13:51.409)
Yeah, and it's a this is kind of into the the big question of the book for me, like animated it is if you think of this as a policy decision, right? Prior to 1949, it was the policy of the US government to put war criminals in jail. And after 1949 is the policy of the US government to let them out. And so that's a tremendous reversal that takes place. Right. Like, how do you explain that absent outside of local circumstances of Cold War?

And so the clemency story is at the heart of this because it turns out a lot of the subjects I look at, the main characters in this book, apart from the war criminals themselves, are a lot of lawyers working through the State Department for the High Commissioner's office, the High Commissioner of Occupied Germany, John J. McCloy in particular, and then his successors. And these people start out like, if you take them seriously at their word, there is a conundrum that they have, which is what does it mean for justice to be done?

And for them, they're most concerned with the justice from the perspective of the prisoner rather than justice for the victims. And so much as it.

Every American knows you have a right to a fair trial. Got it. That's just, that's what the Nuremberg trials were. But by the 1940s, it's also recognized that appealing a verdict is a pretty normal procedure. And because Nuremberg is a special creation with a finite start and an end, right? It ends in 1949, it's done. There is no administrative mechanism anymore. It is over. How do people appeal their verdicts? By what mechanism can they do this? Because

it's only fair or it has become a norm in the American justice system that fair trial means you have the right not only to a fair trial, but the right to an appeal. And there is no appellate process. So you have at first prisoners working around the margins, you have a fairly, they're lawyers and interested third parties, whether it's kind of reactionary clerics in Germany or reactionary veterans organizations subsidize a lot of direct appeals to the Supreme Court.

Robert Hutchinson (15:58.496)
This is true of the International Military Tribunal defendants as well, where they question, they file writs of habeas corpus and say this is illegal treatment of these people or it should be viewed as prisoners of war rather than criminals on trial because it's against the laws of war to try a prisoner for certain things under many circumstances. And so you have unlawful imprisonment and then you have a challenge to the legal basis itself. There is no such thing as international law, cetera, et cetera.

The US Supreme Court refuses, it doesn't so much strike or delegitimize these appeals as it refuses to hear them on a four-four split. justices are interested in taking up, generally, four justices are interested in taking up the case. Four are interested in, four argue that they have no jurisdiction over this because it's a military project authorized through the executive. And then Robert Jackson, who would be the tie-breaking vote, thinks it's unseemly for him to weigh in since he was the chief architect of Nuremberg. And so he steps aside and...

the Supreme Court chooses not to weigh in on these procedures. Having said that, however, you have a significant backlog, right? Because as soon as the trials are done, all these appeals are filed, and then federal district courts await in the Supreme Court's appeal, much as it works today. It allows for injunctions that put sentences on hold, particularly executions. And so you have this like from 1946 to 1949, as all of the trials

reach their conclusion and all the verdicts are immediately appealed and the Supreme Court is choosing not to engage. You have the pressure from the defense attorneys meeting kind of an administrative pressure for what will be the final resolution to this. If the Supreme Court is declining to weigh in, then it's up to the American Occupation Authorities, first under military governor Lucius Clay and then under high commissioner for Occupy Germany, John J. McCloy, to step in and either say there will be no appeals

these sentences are final, that's that, execute the sentences, or to institute some sort of process to revise or review the sentences at additional time. And both do this, right? They respond to the petitions, they respond to German politicians and the lawyers, defense lawyers, and Lucius Clay commissions a group of his staff to review every single sentence. He sustains every single sentence except for one.

Robert Hutchinson (18:20.303)
which he kind of commutes from death to life in prison because there's an issue he views with a witness statement and Lucius Clay wants to be very, very careful with death sentences. He feels very strongly that only, you know, in absolute certainty circumstances do you execute a person. And so that's all done by 1948-49, but the one trial that hadn't been reviewed yet was the ministry's case, which doesn't conclude until the summer of 1949. Lucius Clay had already retired. John J. McCloy was inbound. And so the idea was John J. McCloy's staff says,

we have to finish this review. But instead of just reviewing the one case, John J. McCoy decides for various reasons to open it up and review all the sentences again. And again, the underlying argument here is about fairness and justice. And particularly in the context of the Cold War, they talk of American justice. American justice means a right to a fair trial, but it also means a right to an appeal. And because Nuremberg had no appellate process,

McCoy and his successors kind of de facto create one in order to hear the case again.

Waitman Beorn (19:24.172)
And so it's funny because it's almost like on the one hand, you you have these people, the war criminals convicted, the prisoners who refuse to recognize the legitimacy of the courts in which they've been convicted, but then also demanding that the courts act legitimately as an American court would. Right. So they kind of want to have both both sides of the the both pieces of the cake, I suppose.

Robert Hutchinson (19:48.468)
Yeah, intellectual consistency is not something that one finds in the Landsberg prisoners records. I mean, it's really amazing. When you read the statements, when you read the lawyers' cards, I mean, there's a fair bit of lawyering that everyone would be familiar with, right, in terms of vigorous legal representation and no stone unturned. But when it comes to the statements of the work criminals themselves, there is this remarkable dichotomy of a refusal to recognize

Waitman Beorn (19:51.814)
Right.

Robert Hutchinson (20:17.801)
the legitimacy of the court, a refusal to admit that they've done anything wrong. And yet they're filing clemency petitions, which usually, I mean, traditionally incorporate some sort of repentance or remorse or something like that. None of that here.

Waitman Beorn (20:35.022)
So what is the really before we move into some of the details, what is the what is the global or what is the political environment in which is taking place? Because that's also important, right? We have we Conrad Adenauer, West Germany, rearmament, Cold War, know, Truman, because one the things you talk about that's really interesting is that Truman sort of waffles on this and initially is very much like hang him high and then there's an about face.

Robert Hutchinson (21:05.659)
Yeah, mean, Truman, it's funny, Truman rather stands apart from this. Did you mean McCloy?

Waitman Beorn (21:12.11)
No, mean, you the Truman sort of changes at one point, he sort of, you know, he's very sort of, I'm not getting involved in this. We're not going to, we're not going to, we're not going to. And then, and then, you know, as, the political situation, the Cold War situation changes, he changes his, I mean, it's not, he's not sort of directly involved, but you know what I mean? Like his sort of attitudes.

Robert Hutchinson (21:18.868)
Yes.

Robert Hutchinson (21:32.051)
Yeah, my, my conceded is like to weigh into the kind of the historiographic weeds just a little bit, but without using names. So to keep it kind of vague and frustrating, right? Like the easy story to tell and there's elements of truth to it. And the prevailing kind of interpretation has been, you know, if I'm posing the question, why the policy reversal? Why the change from putting people in jail to letting people out of jail?

The Cold War is the smoke is the easy answer, right? And it seems like the intuitive answer. And it is in some ways, but not others. I'll talk more about that in a second. So the Korean War breaks out in the middle of this process, right? You have all these issues where, I mean, the arrival of John J. McCloy as High Commissioner signals a change in policy, right? Like Lucius Clay is there as a conqueror of Germany. He is there kind of subjecting Germany to military dominance and American rule in the American zone.

John J. McCloy comes in as the three zones of occupation have merged as the transition from military governors in the French, British, and American zones to something called high commissioners, which is representing kind of a mixed sovereignty over West Germany. So the new West German state has some sovereignty over some things and does not have sovereignty over other things. And the war criminals issue is one of those things. And so John J. McCloy comes in in 1949. He's thinking these things through.

It's post Berlin airlift, it's Cold War is heating up in Czechoslovakia and elsewhere. And then when the Korean War touches off, there's this tremendous scramble inside the State Department, inside the NSC, inside the Truman administration about Western rearmament. So all of those debates are taking place. And so the easy story to tell is, as you look at these converts, say, so the Cold War comes along and there's a policy shift led by Truman and his staff, Acheson, the Secretary of State, and McCloy.

to kind of buy West German goodwill for eventual membership in NATO and for reconstitution of some sort of military force to serve in a European defense community. Like all these debates are live from 1950 to 52. And so because the Western veterans organizations and because Conrad Adenauer are vociferously complaining about the so-called war criminals, that's something that always append to it, the so-called war criminals in Landsberg prison, that

Robert Hutchinson (23:53.074)
a turn to clemency and parole is a way to kind buy a Western and acquiescence, grease the skids for it's called war, realpolitik, essentially, right. But in the files, what is amazing is that there's, I mean, it's not amazing, right, because not everyone writes everything down the files and historians, know this, but there is no conflation of the two issues at all, which the absence of cause causation is not proof that causation is absent. But then

So apart from the fact that in McCloy's mind and his staff's mind, the issues are never linked, right? In fact, in the context of the Korean War and the types of security issues facing West Germany with the potential of a Soviet ground invasion, the war kernel issue is actually a very minor importance to everyone concerned. But when people like Adenauer bring it up or try to link the policies from 1950 forward, he's pretty quickly smacked down.

by McCloy, by Acheson, later on in the Eisenhower administration, by Dulles. Like there, is a pretty consistent through line in American policy that Americans will set the policy and set the terms of the war criminal agreement. And one of the issues I'm playing around with, and it's an important perspective, I think that in the historiography, an important turn of, you over the past 25 years or so has been looking at the agency enjoyed by some of these states, like West German agency,

under the American yoke and how Conrad Adenauer can cannily maneuver to achieve his own political ends and all this. But on this particular issue, the US government is sovereign. It can choose to ignore Conrad Adenauer. It owes him nothing. In fact, when he tries to exert his political influence, he's frequently smacked down and told to shut up because it's annoying to talk about the war criminals all the time. And so if you

want to understand why the Americans choose to let these people go. It's primarily for American reasons, internal to the State Department, internal to the Occupation Administration, and mainly focused around these conceptions of justice and American justice being done, led by McCloy and his staff.

Waitman Beorn (25:57.774)
I that's a really interesting thing to think about too, because I guess jurisdictionally, the Americans own these people, right? Because they're not in German prisons, they're in an American-run prison.

Robert Hutchinson (26:11.507)
Yeah, we don't often think of it this way. But I mean, it's kind of uncomfortable when you think about the legacy of like American Empire and that sort of scholarship. But John J. McCloy is essentially, you know, the sovereign over occupied his portion of occupied Germany when it comes to certain issues. There's less sovereignty after the West German Constitution is formulated and ratified in the Western States. But when it comes to the issue, the war criminals in Landsberg prison.

which is a prison staffed, as you said, and run by American officials, are wards of the US State Department. There are no Germans involved in this process at all. It is a direct line from the prisoner to the prison officials to John J. McFloy to President Truman himself. There are no Germans in the loop on this. And the same thing is true, by the way, in the British and the French zone initially for their prisoners.

Waitman Beorn (27:02.796)
I mean, it's such an interesting time to we're thinking about sort of post-war Germany, right? Because we have these trials taking place. We don't really yet have any German trials because the Germans aren't allowed to start trying their people until 1949 anyway. But we also have the sort of returning of German prisoners of war from the Soviet Union and then the expellees, people who are fleeing.

formerly German areas that are now behind the Iron Curtain. And all of this is kind of creating a weird mix of apologia for the Nazi state and for whose victims and these kinds of things. into this, and just to summarize what you've already said, we have Lucius Clay, the general who actually was Eisenhower's deputy but never actually was really a field commander so much during the war.

He does actually what you present as a pretty conscientious read through of all, like of, not just what the prisoners are saying, but also what the case was. Like, so, so rather than just reading, you know, I, I think I should have a new trial or I should be set free because he's also saying, okay, well, let me look at what the court ruled, what the judgment was in the case in a really sort of systematic and detailed way. He, as you said, signs off on almost all of them. And then he retires.

And then we have this guy, John J. McCloy commit. And one of the things I sent you in my questions was, you know, my normal question, my normal sort of professional question, but then I was like, what is the deal? What is the deal with this guy? Um, so can maybe, maybe you can tell us a little about who John J. McCloy is because he has, he has an interesting and not, not always stellar past immediate past coming into this. Um, what, is he trying? What is he supposed to do? What kind of a person is he?

Robert Hutchinson (28:43.775)
Yeah.

Waitman Beorn (28:59.563)
And how does that perhaps inform what he's going to do later on?

Robert Hutchinson (29:02.985)
Yeah, John J. McCloy, I'll give the joke answer first, and hopefully it doesn't bother your listeners that I'll give the real answer, but John J. McCloy is like the Forrest Gump of the 20th century of US foreign policy, where he's just there all the time. And he's a very frustrating figure to research and write on, because also he lives an incredibly long time, but he doesn't write much in terms of self-justifying memoirs. He's thinking about getting a project like that together at the end of his life, but it never comes through.

But he's there from like the aftermath of the first world war through the 1980s in the U.S. kind of foreign orbiting the U.S. foreign policy establishment. He's one of these uniquely kind of American Harvard guys from the New Deal era forward, even though he's a Republican. And he is an incredibly aggravating figure who I frequently found myself wanting to kind of reach into the pages and grabbed by the lapels and be like, what are you doing? You know, I mean, I just explain why this makes no sense. Why are you acting this way?

So John Jay McCloy is kind of an internationalist Republican, right, who's brought into the Truman administration, the War Department in 1941 as Assistant Secretary of War, because FDR tends to bring people like that into his cabinet as kind of a broader coalition before war breaks out, particularly internationalist Republicans. Before that, he has expertise, notionally, in Germany because he, as a lawyer working on Wall Street, he, in the interwar period, worked to adjudicate a lot of

property seizure and asset seizure claims that had happened in the United States during the First World War for German property and so German firms trying to get their compensation or settle those matters. And so he made a name for himself with that and had some German expertise. had law expertise, he had finance expertise. And so he was brought into the Department of War in 41. Once he's there, he's involved in like every consequential decision that happens for his portfolio includes initially he's working a little bit on land lease. He

is a central figure in the debate, not much of a debate actually, about incarcerating Japanese Americans for national security purposes on the West Coast. He's the central figure. Yes, he's for it. And in the 1980s, he testifies at the hearings that no compensation should be paid because they were justified. kind of, he's, McCloy is not a...

Waitman Beorn (31:14.412)
I'm guessing he's four.

Robert Hutchinson (31:30.047)
One pattern that McCoy has is he does not necessarily question his own actions, right? He's usually convinced that he's done the right thing. And there's not a lot of self-reflection on any of these decisions from the 1940s into the 1980s and 90s. so he did the Japanese American internment. He's at the center of the, it's more of kind of a non-traversy these days, right? But the bombing Auschwitz or the rail lines, he kind of weighs in and says, no, this is a...

waste of military resources. And then after his stint in the War Department, after the war's over, he goes and heads the World Bank for a while. And he's called back by Truman as the High Commissioner of Occupied Germany in 1949. And it makes sense, right? He's a guy with a deep business portfolio. He's got international finance experience. He's got experience at Germany. He's got experience in the War Department. He was an early advocate for the Nuremberg Trials.

And in a transitional phase where you're looking at 1949 of kind of the denazification period is ending and the US and the British and the French zone and the West German is pushing for reintegration on the world stage, particularly economic markets and industrialization and reconstruction and all that. He seems like a logical choice, given his kind of diverse portfolio of legal, military and financial expertise to jump in in a phase where Germany is rebuilding.

And once he's there, among many other things, he has an odd position where if you ask John J. McCloy, do you believe in Nuremberg? He will say, yes, unequivocally. You know, these people deserve to be punished for their crimes. I'm not questioning the legitimacy of the trials. People who try to appeal to his, people who question the legitimacy of the verdicts in private letters to him, whether it's German clerics or German lawyers or other interested parties.

are met with swift and insensitive rebukes about, don't peddle that nonsense somewhere else. So he seems like the perfect advocate to see the system through. But he becomes convinced that through his own review, based on his own metrics, that the trial processes, while legitimate, were deeply flawed in some cases and uneven in their application of justice. And we can talk more about how he comes to those conclusions, but essentially he is very preoccupied

Robert Hutchinson (33:50.77)
He uses the phrase a number of times with him and taken with this notion of American justice in the context of the Cold War with the Soviet Union and their show trials. It is not enough to just put war criminals in jail. The Americans have to prove on the international stage that they're brave enough and just enough to let them out if the facts dictate that they do so or reduce their sentences of the facts dictate they do so, because after all, the United States is not the Soviet Union and justice is real in the US.

Waitman Beorn (34:17.068)
Well, and there's a sort of connection here to the Dachau trials, right? Because there are allegations made that the Dachau trials and the pretrial investigations were in use torture and were not above board. Right. So maybe you can talk a little about that.

Robert Hutchinson (34:35.295)
Yeah, I need to get out of the habit of nodding vigorously while you're talking since this is a podcast and no one can see me.

Waitman Beorn (34:38.272)
No, it's fine. mean, like that's one of these it's one of these conventional pieces of like sort of conventional wisdom. A lot of people sort of say, well, you know, we did have a problem with with talk about, but actually. We didn't really.

Robert Hutchinson (34:47.123)
Yeah. Yeah. And I'll take a second and put a plug in for Steve Remy's book on the, the doc out trials. It's, great. I'm sorry. Steve Remy's book on the doc out trials by way of the Malmedy massacre, right? He has a book on the Malmedy massacre trial and how that galvanizes American public opinion. I draw on it quite a bit when I discuss this. So there are issues with the doc out trials that come to light in from 1946 to 1948, particularly the Malmedy massacre case. This is, you know, the

the execution of US troops during the Battle of the Bulge. And there are spurious allegations that are not substantiated, but kick up enough dust. It turns out that the defense attorney for one of these people, these are all JAG officials, right? The US provides military officers to act as defense counsel in these military tribunals for German war criminals. And one of these is a very kind of vociferous pro-German anti-Semite, which is not uncommon.

in the US military at the time, right? What's the book I'm looking around for? It doesn't matter. But The Enemy Within, think, the title. Joseph Bendersky's work talks about the interwar army and anti-Semitism in it, which is a fantastic, compelling read. Anyway, the defense attorney files a number of petitions that are picked up by the press alleging that in the interrogations prior to the Melmody massacre case,

German defendants are subjected to torture and abuse, particularly by Jewish interrogators. So sensationalist stories that use work phrases like Gestapo tactics and Jewish vengeance, coerced confessions under torture and that sort of thing. The allegations are all very dubious. They're not substantiated, but they are picked up in the press and end up in the House and the Senate fostering a number of congressional inquiries into the legality.

of pre-trial detainment practices and confinement and therefore touching on the legitimacy of the trials themselves. Because if, for instance, defendants confessions are being coerced under torture, that would render the findings of the trial invalid. A key figure, and Steve Remy does a great job in his book talking about this, a key figure in this is an early Joseph McCarthy before he sunk his teeth into kind of the HUAC stuff. He's a person who answers to a pretty strong ethnic German contingency in his district.

Robert Hutchinson (37:08.459)
or in his state. And Joseph McCarthy views US policy as wrongheaded, right? If you're keeping the Germans down, that means you're objectively aiding the Soviets, and that's where US security priority should lie. And so for McCarthy, it's a fool's errand to alienate the West Germans, particularly Western military people, by keeping them in jail, the war criminals in jail. so

there's a number of sensational hearings where Joseph McCarthy was waving around lists of abuse that's occurred, familiar tactics that we'll see later on. And what happens out of all of that is that the army directs an inquiry with the support of the Senate subcommittee into a review of the legitimacy of their practices. When McCloy hears of this in the parallel case, right, because the Nuremberg trials were conducted by

army officials, right? Like Telford Taylor is an army officer, but it's under the aegis of the State Department, not the US Army itself. They're two different things. But increasingly in this kind of clamor from around 1948-49, the Nuremberg trials are sucked into this narrative. And so McCloy says, okay, you the army is looking into its trials. We should do another more comprehensive thorough review of ours, just to make sure, you know, everything's above board, particularly since there's a number of impending

death sentences. McCloy, particular, as a person, was tremendously uncomfortable with administering capital punishment. And so he had a great deal of kind of hesitancy of implementing any of those executions unless he was absolutely, absolutely sure that there were no mitigating circumstances at all. And so every this narrative becomes bundled together. And so now all of a sudden, you're off to the races with two kind of independent bureaucratic inquiries, and they're going to lead

further than anyone initially anticipated.

Waitman Beorn (39:03.182)
Yeah, I so this is the next step, right? So, McCloy creates this advisory board. And this is going to be the whipping boy for a lot of the rest of the podcast, Because they are sort of the ones that make these decisions. And for all intents and purposes, seems like generally speaking, McCloy goes along with what they've suggested. So who is on this advisory board?

Like, who are these people and what are their qualifications to to review these sentences?

Robert Hutchinson (39:36.052)
So, okay, so you have, again, kind of in the tradition of what's been done up to this point, you have this advisory board which becomes known, advisory board for clemency on German war criminals that becomes known as the PEC panel after the head of it, David PEC, who's a New York circuit, the Supreme Court justice, so state level judge. You have a state department representative, Henry Snow, and then you have a,

a parole expert, Frederick Moran, from the State Board of Parole in New York. And so already you have a, okay, so parole is a word, is being brought into this from the beginning. And the structure of the board is interesting, right? Like I have sympathy, because I am not a lawyer myself, and I did not think I would spend this much of my early 30s teasing out the fine grain distinctions in law practices and all this. And while it's incredibly boring, I'll ask you to just...

indulge me for a second, the difference between an appellate court and a parole panel or a clemency panel. Because the subtle distinctions mean everything in this process. McCoy is very clear that he is not setting up an appellate court. He's setting up a parole and clemency board, and not a parole board initially, but a clemency panel, right, to adjudicate and to stow executive clemency on these people. The distinction is important because of what they do and how they function, right? Like,

An appellate court hears from the prosecution. It hears from the defense. It weighs evidence. It reviews the trial transcript. It reviews the trial evidence. It compares the trial evidence to any new evidence. It compares old statements to new statements. It marinates or ruminates on the process, the whole picture, before rendering some sort of verdict of sustainment or modification. A clemency panel

much more circumscribed than that. It doesn't really need to look at the trial record, right? It doesn't need to hear from the defense. doesn't need to hear, I'm sorry, it doesn't need to hear from the prosecution. It doesn't need to hear from witnesses. It just needs to take into account kind of prisoner statement, mitigating circumstances. You know, I wasn't there when they said I was, or actually you should have mercy on me. I have a health condition, or my family is suffering, and these sorts of things, right? So extraneous circumstances or claims that the sentences are disparate across cases, right? Like

Robert Hutchinson (42:00.06)
I got 10 years for the same crime that that guy got five years for. This is injustice, right? And so the distinction is important because this advisory panel is not an appellate court. It's supposed to be a clemency board, but it behaves as an appellate court in that it feels free to look at the body of evidence as summarized in a trial judgment and say, I don't know, I don't find that compelling. And that's it.

Waitman Beorn (42:28.312)
Right.

Robert Hutchinson (42:28.703)
Which is that's not how clemency panels work. And so what they actually do is over a course of it's the summer of 1950, it's like eight weeks, they go through 89 files. Essentially, they peruse them, they look at in their packet, each file is arguments from defense counsel as to why the verdict was improper, personal statements from the prisoner as to why they deserve mercy.

and then a summary of the judgment of themselves, right? Like the Nuremburg trials tens of thousands of evidentiary exhibits, hundreds of thousands of pages of written testimony, arriving at summary judgments on the order of hundreds of pages at the end. And so rather than looking at the trial record, that would take too long. They don't have it. These are hardworking civil servants essentially on their summer break on loan from the US.

And so McCloy says you have eight weeks. And so in that time, they only have time to consult the defense attorneys, the defense attorney documents, and then the summary judgments offered at trial published in the Nuremberg record. And so of course, there's going to be inconsistencies because the judgments make reference to documents from the trial record as opposed to documents directly reproduced there. The judgments depend on a whole slew of the judgments are actually very clear about this. They state explicitly that their findings are based on the entirety of the trial record, not just, you know,

this piece of evidence and that piece of evidence. And so this state court judge, the state department official, and this parole board official immediately go in with an eye towards questioning whether justice was done, even though that was well beyond the remit of what they were supposed to be doing.

Waitman Beorn (44:19.398)
And let me just let me let me just kind of jump ahead and then we'll come back because I want to I want to just when we talk about the decisions of this clemency of this advisory board, which is basically the one that make the decisions because McClory doesn't overrule them. like they've made the decision.

Robert Hutchinson (44:35.007)
Yeah, he adopts about like 90 % of the recommendations outright and the spirit of all the recommendations. So he might say, like they might say, reduce the sentence from life to 15 years and he might say, okay, or he might say 20, you know, but overall it's a vast agreement, vast.

Waitman Beorn (44:49.28)
Right. So let me just turn for our listeners. I'm just going to turn to one of these trials. The sort of the one that we could sort of agree is the clearest cut of all of them. And I'm just going to it's the Einsatzgruppen trial. The United States, it's case, it's trial number nine, United States versus Otto Ollendorf et al. So everybody on this list, everybody on this list was an Einsatzgruppen commander. Everybody on this list was guilty of

the murdering of thousands and thousands of men, women, and children who were not clearly not in any way involved in the war, et cetera, et cetera. Right. The clearest ever. I'm just going to go through. So here's a Bebenstein sentence of death revised to life released in 1958. Walter Bluma, sentence of death revised 25 years, released 955.

And I'm going to list. There's like everybody on this list with the exception of one, two, three, four people who are actually executed. Everybody on this list is out of prison by 1958 as the latest person. But most people are out by 1954. And if I go back to the first column, because you have these damning columns in the back of the book, these graphs, these tables.

The tribunal sentence for like half of these guys is death and almost all of them are out by 1954. So and that's the Iintefs group. And right. So that's like if we could say that you could certainly you can hem and haul about Krupp and the extent to which you know how bad a war criminal is he though he is a war criminal. But these guys are pretty clear. Right. So so this board is yeah. Go ahead. Sorry.

Robert Hutchinson (46:35.071)
Yeah, since you can I of stop you there for a second because like, since you mentioned Bluma, right, like, maybe this is an example, because I recognize too, for like your listeners, this all seems rather like abstract, like Bluma is some I actually have some notes in front of me, like I could give you an example of like, what this actually looks like. Yeah. And coincidentally, he didn't tell me to this at a time, like coincidentally, he picked Bluma and I had Bluma. So like, we're, we're, yeah, we're, we're mind blowing there. So like, what this actually looks like, right? So, Walter Bluma,

Waitman Beorn (46:46.594)
Yeah. Yeah. Yeah. Because I ask you, I ask, say, can you, can you walk through which one of these guys and sort of how this happens?

Waitman Beorn (46:57.943)
Nice.

Robert Hutchinson (47:04.371)
had commanded a mobile killing unit 7A of Einsatzgruppe B from May to August of 1941 operating in Belarus. So pretty short duration. But he received a death sentence at Nuremberg because he had admitted culpability for quote hundreds of killings by his unit on the stand while he was in command. That's usually in the Nuremberg trial itself, ironically, the people who admitted.

decalpability in murder were the ones who were sentenced to death, while the ones who denied it over and over and over again usually got the life sentences. Because there wasn't... So he was one who admitted that he had hundreds of killings and that he was in charge when these killings occurred. The real number, however, was likely much higher, probably in the thousands. He had claimed a trial that he objected to the killings, right? Arguing that his command was so brief, only lasting from May to August of 41 because of these objections.

And the judges had considered these claims and that they weren't reliable at trial. And they said this in the trial record, like, we don't believe this. He's not just sentenced him to death. The 1950 clemency board based on nothing but some recycled affidavits that had already been introduced at trial and discussed there and weighed by the judges. But absent the context of the broader record, recommended a reduction in Bluma sentence to 20 years because of all these claims where he wasn't really present.

the state in time or he had gone home and strenuously objected to Heydrich and others and thus been removed. The court hadn't like credence any of this. He couldn't really prove it, but he recycles the affidavits and the clemency board finds it compelling in effect overruling the tribunal and they recommend 20 years instead of death. McCloy is a little more squeamish about this because he admitted killing hundreds of people in the stand and so he says 25 years. So Blumish has served 25 years in prison. And this is where like we can talk more about this, but then.

the institutional bureaucracy kicks in, right? Because what does it mean to port a clemency system from the United States kind of prison system onto an international tribunal system? It means all sorts of bureaucratic norms and accommodations. Are war criminals special or are they just criminals? If they're just criminals, they're entitled to all the rights and privileges of criminals in any prison system, right? And given the progressive drift of criminal justice in the 1940s, that means

Robert Hutchinson (49:21.983)
taking pre-trial confinement into account, right? So Walter Bluma had been in jail for a certain number of years before the Hines' Grievance Trial takes place. okay, knock that off his sentence. So 20 years minus pre-trial confinement. Okay, so you're at 17 and a half or so. Then a one-third reduction for good behavior, which is standard. So every 10 days of good behavior without an incident, he accumulates one day against his final sentence. And all the, yeah.

Waitman Beorn (49:47.79)
And this one of those things that just to jump in, we were talking about this before we started recording. This is only thing that's completely absurd when we're talking about war criminals like this, because, oh yes, it's good behavior in this that you haven't reoffended or whatever. We'll talk about this when we get to parole, but we're talking about you haven't reoffended in genocide, right? So it's not like you can...

Robert Hutchinson (50:04.543)
Yeah. Yeah. And good behavior, particularly for these class journals. Now there are instances, like if you look in the trial records, not for most of the Nuremberg people I look at in this subsequent Nuremberg military tribunals, but if you look at the prison records and the prison conduct records, because both the Dachau trial prisoners and the Nuremberg prisoners are in the same prison at Landsberg, right? And because the Dachau trial prisoners are a much more holistic population of, you you have like

corporals and privates who had committed acts of violence in the field against American servicemen. You had low ranking concentration camp officials. You had less educated, more criminal people who would violate prison rules, who would have contraband, who would violate quiet hours, who would do things they weren't supposed to do and they were punished for this. But when you're looking at the profiles of like the 89 Nuremberg prisoners, right, all well-educated, older, upper middle class or upper class individuals, you don't have as much of

Right? So you're talking about almost a free one third off your sentence just for abiding by rules. Violations can be, I found one violation of things in Hans Joost's file, Hans Joost's file was on a security commander where he had a candle in his cell that he lit after hours when it was supposed to be dark. And so he was punished for that for a week or two, but then he began accruing dates as well. So you have a third of time off for good behavior. Later, we can talk more about it when we get there, but later a parole system is implemented. And so you're eligible for all.

once you've served two thirds of your sentence. So that takes 20, two and a half off for pretrial confinement. A third of that off is six more years for good behavior. So now you're at 12 minus another six years gives you two thirds of a sentence. So now you're at the magic number 1954, right? So that's how a death sentence becomes a six year sentence, right? So Blooma is eligible for parole at two thirds of a sentence, which means he's paroled in November, 1954.

And then his parole supervisor visits him, they're under observation. And ultimately in 1955, Bluma is viewed as rehabilitated and readjusted and reintegrated back in German society. And so supervision ends. But like, that's how it happens, right? It's almost, it's a very kind of amusing, but also horrifying, give a mouse a cookie type argument of, you know, if you're gonna take this intellectual category seriously and say, these prisoners are prisoners, they're criminals, just like any other criminal. And you give them,

Robert Hutchinson (52:28.871)
And then you plug, you take these war criminals and drop them in the US penal system. This is what happens. it's quite, and there's nothing controversial about it to those who are engineered. This is just normal practice.

Waitman Beorn (52:39.886)
I mean, that's the thing that that's one of the craziest things is this idea of parole. I didn't know about, I knew about the parole, but I didn't know that they literally tried to have parole officers that would like, you checking, checking your parole officer and they say, have you committed genocide this week? And you say no. And they say, great, you're doing, you're doing wonderful. mean, but, but they literally brought Americans over to act as, as parole officers for these guys, right?

Robert Hutchinson (53:03.731)
Yeah, they had American parole officers who supervised a number of German parole officers. So you had American supervisors and there's all sorts of, you know, kind of amusing, I wouldn't call them malfeasances, but like it's a funny thing, but it's also very horrifying and sad, right? Where, you know, what does it mean to rehabilitate a war criminal? Like, what does that even mean? Like these people wouldn't have committed their crimes absent the context of their dictatorship. And so therefore they don't have to pay for them.

because they were normal people before 1933 and they're normal people after 1945, therefore they don't have to suffer the consequences of their actions. even...

Waitman Beorn (53:42.05)
But they haven't even done the basic work of, of, you know, admitting their guilt, you know, cause I feel like, I feel like in the American system, you know, go to pour the parole board. What the parole board wants to hear you say is I was wrong for robbing that bank. And, know, I, I won't do it again. And like, I really thought about it and here's my plan for, how I'm going to be a better person. but these guys had the plan for how I'm going to be a functional member of society without going through the like, actually, I'm sorry.

Robert Hutchinson (53:56.328)
Never do it again.

Waitman Beorn (54:11.96)
for what I did.

Robert Hutchinson (54:13.299)
Yeah, here's another to the book writing process, right? Like all the credit in the world to my editor and to Yale University Press, because originally I proposed the story to end in like 1954 with the building of the parole systems. And then they kind of pushed me like, go a little further and see if there's anything, take it the story to 58. And that last chapter is some of the most like mind blowing stuff to me about this parole system and like, what does it mean for rehabilitation?

And so, and the entire mechanism, right? Like, so if you think about, and this isn't an argument, but like think comparatively about what the American criminal justice system looks like at this time domestically and the different experiences of justice that people are likely to have, whether they're petty criminals or murderers or just African-Americans moving through the system and the types of institutionalized skepticism and hostility towards their release and towards their success.

In West Germany, these people have every opportunity. They want for nothing, kind of sociologically. They all have ensconced family support networks that the American officials are making sure, like they're very concerned about, you know, like, well, his wife left him. We need to pay careful attention. Or we're like, but it looks very promising. You know, he met someone else and he's cohabitating with this person and he might remarry. this is good. This is good for us. This is good for the stability of the person.

they're given monetary recompense from the West German state. You had mentioned earlier about like the chaotic political time of returning prisoners of war from the Soviet Union. The war criminals are given the same pensions as those people by the state, right? Which sends a message about what the West German government at the time viewed as like this is essentially, so you're telling me that the essential kind of experience is the same between someone who was convicted in a court and sentenced for their crimes versus

someone, the Red Army just rounded up and made build roads in the East for eight years. These people are the same and should be treated the same categorically by the state in terms of compensation. They have support networks and aid societies, not just of other war criminals, even though it's technically illegal for them to associate with other war criminals, but all the support of the US government itself, which is genuinely committed to their rehabilitation.

Waitman Beorn (56:29.646)
I mean, it's amazing. mean, it's really amazing. It forms sort of what I think Robert Mueller was writing about this in his book about the sort of the three victim groups in Germany at the end of the war. You they're not the Jews. They're not the victims of the Nazi state. They're prisoners of war, expellees and survivors of allied bombing. So which is sort of that's like the the German.

German view of this. And it comes through well in your book here that these guys are all victims. They're all victims of Victor's justice and just serving their country, et cetera, et

Robert Hutchinson (57:01.193)
They're all three.

Robert Hutchinson (57:09.437)
Yeah. Yeah, no one is responsible for anything. And when we get into kind of, because people might wonder, like, what does it mean to question the legitimacy of Nuremberg? Like when I say that the various presidency and parole boards undercut the Nuremberg verdicts, what I mean is that it's very clear in the scholarship of Nuremberg and in the documentary record that appeals to higher orders, for instance, were roundly rejected at the time, right? That's not an excuse. Some things are wrong no matter the context, and you don't get to claim just because your boss ordered you to.

this is something that was exculpatory. But here, if you look at kind of the jurisprudence in the picture, like when McCoy justifies his findings or when his successors do, nobody's responsible for anything. Hitler's dead, so he's not responsible for anything. The underlings who carried out the policies on the ground are responsible in effect for doing things, but they wouldn't have if they weren't ordered by others. These people at the Nuremberg trials who are

you know, kind of the mid to upper strata of the Nazi dictatorship. Like these aren't ordinary men like Christopher Browning is looking at, right? These are elites of the Nazi empire, handpicked because of their high rank. What they say is that, all the, they're not responsible for anything because the rubber meets the road at many levels below them. Everything that they do, they wouldn't have done if people like Hitler, Hymnler, Heidrich and others hadn't have ordered them to do it. And so no one's responsible.

is the argument they make. And what strikes me is that a lot of credulous Americans believed this argument because for whatever reason they thought it made sense. Like, well, you know, I don't have time to read up on the in-depth functioning of power and the Nazi dictatorship and how it flows.

Waitman Beorn (58:51.022)
But this is one of the things that this is one of the things that really jumps out at me. And it really struck me because here you have a situation where, and I always tell, I tell my students this, I tell folks that, you know, if you're someone who is interested in the Holocaust history, the Holocaust, there's an even to good chance that you know more about the Holocaust than a lot of these people that were trying to sort it out at the time. Right. Because it's a, it's a really big thing to try to wrap your head around the Nazi state. It's incredibly complex. It's organizational structure is Byzantine and,

adversarial and there's all kinds of issues. It's really difficult. So these people that were attempting to prosecute Nazis at Nuremberg and in the German trials that happened later on, you know, they're working really hard, not just to win a case, but to understand the history that's relevant. And the people at Nuremberg did that. You know, they went through the thousands and thousands and thousands of pages of documents. They really, to the best of what the information had available.

They became masters of the history that they could understand. And then what you have, what it seems like from your depictions here is a group of sort of non-experts in the history, or in this case, the relevant facts of the case, if you will, come over, they're sort of parachuted in to sort of move fast and break things. And as you say, they're just kind of overruling stuff.

without any real justification based on vibes that, you know, that they don't have any, they don't have any substantive reason to say, I now believe this person, this defendant statement over what was presented in court because a, they're not even looking at what was presented in court. Right. I mean, they're, just saying, okay, well, this guy's he's made a case and that seems reasonable to me. And so, okay. Like we're gonna, we're gonna commute an Einstotz group and commander's death sentence to, you know,

Robert Hutchinson (01:00:24.287)
So.

Waitman Beorn (01:00:46.67)
12 years or whatever.

Robert Hutchinson (01:00:47.955)
Yeah. And I mean, and this is an uncontroversial statement alert on a podcast by historians for historians. Context is everything. Right. And so it's that. it's also the lack of context also manifests in the other big way that these people intervene and dispense what they view as justice willy nilly is the look at like the Krupp case is a great example here because Alfred Krupp has his property seized.

by the US occupation administration. It's the only time that penalty is leveraged. If you look at the judgment, it's very clear that the penalty is leveraged against Krupp, but not against other industrialists like Flick or whoever, because Krupp was granted certain grants and assets directly from Hitler himself. Like that's the thing that doesn't exist in other cases, but it exists in this case. Therefore, we are applying a penalty we have not here to for applied to Krupp personally, seizure of his assets.

So you have a lot of rhetoric from the moment that that is handed down where people like, this is communism. You're expropriating property. That's not American. Americans don't do this. Yes, they do. They do it all the time. It's the statute that's taken from, you US legal code and transport there. So all that aside. But by the time it gets to the clemency panel, they start saying, well, that's not just because the penalty only applies to him. It doesn't apply to anybody else. That's a penalty that was only leveraged in this case, but not others. And I don't understand because

this industrialist and that industrialist, they're all industrialists, they're all sentences, and then Krupp is no worse, they all use slave labor, Krupp is no worse than the others. And so therefore, the sentences need to be balanced. And so even though like Krupp was sentenced to 10 years while the other industrialists were sentenced to like two and a half or five, that's not an indication that the court has deemed his offenses worse, even though they're the same statutes, right? That somehow his offenses are worse and therefore deserve a different punishment. It's just like, no, that's a mistake. Even them up five.

everyone's eligible for parole, give him his property back. And it's insane.

Waitman Beorn (01:02:47.758)
I mean, it's like the example that jumped out where I don't know who was exactly, but, um, you know, essentially the, the advisory board was reaching down into the, the bureaucratic structures of an organization to say, well, actually, um, this guy, you know, didn't really have responsibility in this office. Responsibility lay.

with this other person. And I'm sitting here as a Holocaust historian, right? Someone who has studied this my professional life. And I think that I'm relatively familiar with it. And I'm like, these are debates that scholars are still trying to figure out in terms of like, who held sway, who had power, who really, what office was really making the decisions about these things. And you have these advisory boards saying, I don't really, yeah, I agree with this guy that he didn't. mean, it's crazy that

Because one would think, right, that in the absence of sort of, you know, it's kind of like, it's kind of like a, the, the, you know, assistant referee position in sports, like, unless there's clear and compelling evidence to overturn the play, right? You know, like that, that you would sort of go with the people that had done the most work on, trying to figure this out, you know, and then they don't.

Robert Hutchinson (01:04:03.005)
Yeah. And you raise a good point where it's like, can see, I hadn't thought of this at the time, but it's, it's, you're right that, what you see in microcosm are kind of debates that we're still struggling with playing out at the time, right? Like for scholars of the Holocaust, it's still like to comprehend what it means that the Holocaust was a state policy, right? And all the implications of that. Right? So what does it mean if something like this becomes the project of a state, project of a government orchestrated?

and carry it out. It means complicity and criminal culpability reaches down to a vast array of organizations that without that context, you might question why it reaches there, right? And so some of the officials are talking about like in the concentration camp case, for instance, there's a real struggle that the board has where all these people aren't sentenced to death or anything. They're sentenced to somewhere between 10 and 20 years for, because in the...

the WVHA, the SS concentration camp administration under Oswald Pohl, who's the ringleader who was sentenced to death for this. You have all these subsidiary officials who are responsible for different portfolios that if they're not there, the project of enslavement, mass murder, genocide does not take place. So you have officials whose job is to hire all the guards for the camps. So in the concentration camp empire, they're responsible for staffing, the whole thing. And in the judgment, one of them is actually named Heinz Fanzlau.

And his judgment actually says, he sentenced to trial four to 25 years. And the court says in his judgment, personnel were just as important and essential in the whole nefarious plan as barbed wire, watchdogs and gas chambers. The successful operation of the camps required the coordination of men and materials and fansyle supplied the men. Right. And so in context, you're like, yes, got it. I understand his his place in the organization.

This is kind of a white collar worker who never has a drop of blood on him, but he is essential for the whole enterprise to run. I can understand intellectually why he sends to 20 years. You take the context away and all of a sudden you have the board saying, I don't understand. Oswald Pol is in charge of the concentration camp empire. Oswald Pol orders executions, he orders transports, he orders abuse of prisoners, things of that nature. This guy hires guards for the camps. 20 years seems like a lot to me.

Robert Hutchinson (01:06:28.959)
Is that really his responsibility considering that he's just a minor official? I don't like that. so, know, Fenslau was recommended to reduce to 15 years, even though the judges at Nuremberg had very carefully weighed out his relative responsibilities within the bureaucratic system and come to a judgment of 20. And so ultimately he's released early too in all of this. And it's just, it's one of those things where

You know, we understand now with hindsight what the vastness of this enterprise entailed, like from every maker of train times tables to everyone who arranged a deportation locally, to everyone who ordered it, to all the military people who carried it out, to who organized and distributed the looted supplies to the German population, right? Like it's a vast group of perpetrators in this. And the folks who

weren't at Nuremberg who had no stake in the project put together, who didn't have the time or the inclination to gain that context, weren't, I don't think, good stewards of that legacy.

Waitman Beorn (01:07:40.142)
Yeah, I mean, and this is one of the things that I think is maybe a good thing to move to at this point in the conversation, which is, um, you know, what are the people who prosecuted these guys at Nuremberg thinking at this point and, Ben Ferenc, you know, he's great. So Ben Ferenc is the, was the prosecutor, lead prosecutor for the I.N. South secretive in trade case. And he appears, he appears throughout your story, both at the time, but also in these very weird, like post-war conversations.

Robert Hutchinson (01:07:59.786)
Yeah. Yeah.

Waitman Beorn (01:08:10.208)
with McCloy, which I think is really interesting. I'd like to hear about that. know, what are what are people saying about this? First of all, what are the what are the people directly involved in this saying? And then what is sort of the overall response of the world to this?

Robert Hutchinson (01:08:11.71)
Yeah.

Robert Hutchinson (01:08:26.111)
So the alternative title of chapter five of my book is Everyone Yells at John J. McCloy for Two Years. Because that's what it is. So we're working through this process. We've got the recommendations. McCloy acts on them. He accepts responsibility. In January of 1951, he convenes a press conference. He orchestrates this massive public relations campaign. We're going to print 700,000 copies of this report to convince the Germans that justice is being done with this typical

or a holdover progressive ideal from the American occupation, that only if the Germans were more informed, they'd agree more with the policies we're doing. And so by showing them that we've reviewed all the sentences very carefully and our rationale for reducing some sentences and keeping others, well, every German will show them and then they'll accept the legitimacy of this because we're proving to them that we're fair arbiters, right? We look at the Dürrenberg trials and we decide to tinker with the sentences a bit.

to make sure justice was done and they'll appreciate this. And no one appreciates it. No one at all, actually. Well, the war criminals do a little bit. McCloy's actions please no one. For the war criminals, he doesn't go far enough in repudiating the findings of the tribunal. For the German center left, which is often left out of this kind of real politik Cold War story that, you know, a significant.

minority of Germans are voting for left of center parties and want nothing to do with the amnesty project because these are the people with families who were trade unionists and so forth and were persecuted and abused or they're people who grew up with, know, who cohabitated with Nazi party bigwigs and have no patience for their kind of puffery during the war and hate them and loathe them just as much as the Americans do. So it doesn't please that constituency.

The British and the French, the Allies aren't consulted. And so they're left kind of scrambling as to like, what is this and what are the ramifications for when people start clamoring for similar reviews in our jurisdiction.

Waitman Beorn (01:10:26.894)
This is a question I should just stop. It's a question that I I was raised. It's not it's not the focus of your book. But what what are the French and the mean, what the Russians are doing, but what are the French and the and the British doing in terms of clemency? Is this a thing for them?

Robert Hutchinson (01:10:43.475)
Yeah, it's a thing for them. And every national context is different. And the Americans have the majority of the war criminals, like the most significant offenders. The British have a number of kind of famous military figures. And again, this has to do with like who has jurisdiction where because the American occupation is known as Bavaria and Berchtesgaden and all that. you, it's a lot easier to draw up.

these representational lists of bigwigs from various sectors of the party. Whereas the British are working with like Hanover and people who reside there and that sort of thing. And the French zone is even smaller. essentially the British and the French have their own trial program and they're dealing in their own way internally with the of the political pressures of the Cold War about and juggling with how much, how long should we keep these people in jail? But they don't move until the Americans move first.

And it's after McCloy does this that they follow suit. And again, because you have kind of these, and I'll come back to the prosecutors, I promise we haven't forgotten about that part of the question, but you have these kind of cascading moves towards more more clemency, where each act of clemency begets a further act in the name of fairness, right? So you can't have a situation where only Americans are reviewing the trial records and granting parole and time off for good behavior, especially in a unified West German state.

even if they're still French and British high commissioners, it only makes sense to rationalize the treatment of prisoners. And so therefore, after McCloy implements time off for good behavior, the British and the French implement time off for good behavior. After the Americans implement a parole system and two thirds of a sentence, the British and French implement a system. After McCloy reviews the sentences, the British and the French kind of review in their own way, grant clemency. And they're on a smaller scale because they have less prisoners than the Americans do. But so it doesn't please them.

Jewish organizations, Israelis are outraged and shocked. And the most vociferous critics of all are the prosecutors who actually took part in Nuremberg. Bagell and Frantz, Bagell and Frantz, Telford Taylor blows his stack multiple. There's some kind of comedic exchanges where Ben Frantz is trying to calm down Telford Taylor behind the scenes. And be like, now, before you go blowing your stack again, keep in mind, I tried my best and I wrote McCoy and

Robert Hutchinson (01:13:03.007)
I don't know what he's doing, losing your cool in print isn't going to help. A lot of members of the Roosevelt administration, any luminaries like Eleanor Roosevelt, people who support the UN Genocide Conventions and all of that, they berate him ceaselessly publicly and privately. And he becomes, he's one of these most frustrating of public figures. And I think we've all met these people in real life.

you know, people who when they're subject to criticism, it only convinces them of their own righteousness. The idea that, you know, if I wasn't doing the hard thing, if I wasn't doing the right thing, everyone wouldn't be yelling at me. Criticism is a sign that, you know, we're making progress here. I personally, I don't have that kind of ego. guess ego is the wrong word. But if every literally everyone was yelling at me, I'd probably wonder if I had done the right thing.

Waitman Beorn (01:13:54.543)
And this is Eisenhower administration by this point, right? Or it Truman?

Robert Hutchinson (01:13:59.072)
We're not there yet. It's Truman administration still, but even the Eisenhower administration, like McCloy is done in 52. And so that's McCloy. Yeah, that's still Truman, but in 51, it's still Truman.

Waitman Beorn (01:14:08.386)
That's Truman.

So clearly the Truman administration is at least not firing him. So they are supporting what he's doing.

Robert Hutchinson (01:14:18.141)
Yeah. Yeah. And it's one of those things where Truman, Atchison, McCloy is in a, he is sovereign over this issue, right? And there, I reviewed a lot of TS cable traffic back and forth between McCloy and the state department. It's all been declassified since, but he is left to his own devices, right? And given for lack of a better word, mission command where

They, Truman and Acheson, respect his judgment to the extent that Truman and Acheson are petitioned for one course of action or another from British officials or French officials or American officials or interested Germans. They merely tend to pass the correspondence to down the chain for comment. And they express confidence that like if McCoy thinks this is the right thing to do, well then we'll accept him doing this. And so despite like this kind of torrent of media criticism and criticism of the popular

I mean, Eleanor Roosevelt literally writes a column going, why are we freeing so many Nazis? Is the title of one of her weekly columns that's syndicated to papers across America. Truman stays aloof from it. And to the extent that people have an opinion at all, they hold with this tenet of faith that regardless of what one thinks of McCloy is doing, it is just proof that the Ameri-

Waitman Beorn (01:15:21.486)
you

Robert Hutchinson (01:15:45.13)
we Americans are reasonable and willing to reconsider. And this is not Victor's justice because if it was, we wouldn't care about getting it right. And so surely people will respond positively to the fact that we care so deeply about justice that we're willing to release some of these horrific individuals before we said we would. But that doesn't buy any credence at all. And McCoy's kind of chief contribution on this particular issue, he does a lot of other things, but on this particular issue,

From the moment he steps into office to the moment he leaves, the legacy is that very few West Germans believe in the legitimacy of the Nuremberg and fewer believe in its legitimacy when he's done than when he started.

Waitman Beorn (01:16:27.672)
I mean, and it makes sense because he basically by his actions is agreeing that that Nuremberg made a mistake, right? Because.

Robert Hutchinson (01:16:37.117)
Yeah, and that's something, it's an argument that's very interesting. The State Department lawyers and McCoy put a lot of stock in this idea that, well, we're just adjusting the sentences. We're not adjusting the verdicts. The verdicts stand for all time. The sentences are separate from that. And that might be true intellectually, but what does it look like if you're just an average person? It's like, well, if this was right, they wouldn't constantly be tinkering with these things because it's not just one review and then it's done. It's one review begets another review begets another review.

clemency upon clemency upon clemency.

Waitman Beorn (01:17:07.31)
Well, and it's also, as you point out, it's also the Americanization of this is a slippery slope because once you sort of say, okay, we're going to treat you like a normal prisoner, then all of these other things like parole kick in. Right. I mean, and also one of things that struck me is that clemency appeals for clemency in the American justice system, as I understand it, and I'm not an expert, but those are, they're not everyday things either. I mean, they're incredibly rare things.

for someone to have their sentence adjusted. I parole, sure, but, you know, a clemency reduction kind of, I mean, this is like not a, a, everyday thing, but yet it's happening to every one of these prisoners at Nuremberg.

Robert Hutchinson (01:17:36.212)
Yes.

Robert Hutchinson (01:17:46.496)
Yeah, it is very rare that it, yeah. You're talking about granting clemency to an entire, two abnormalities. You're talking about granting clemency to an entire class of defendant or prisoner, right? Which is rare. Usually it's based on an individual basis, but you're reviewing all of them at the same time. And then also normally when clemency is considered normally, I just did scare quotes because you can't see me, there's no video. Normal clemency procedures.

don't involve the types of delegation of the clemency power that McCoy has done, right? They imply concerted reviews by the executive themselves, the way that Clay did it. Like Clay did it with the assistance of his staff, but he was the final arbiter. Whereas McCoy kind of farms it out to this novel institution that's part parole board, part clemency panel, part appellate court, and then wholesale adopts the recommendations, which is not necessarily in the spirit of

Well, norms are norms, but it's not necessarily in the spirit of how it was usually conducted at the time. I'll play it.

Waitman Beorn (01:18:50.284)
Yeah, I mean, because I would imagine that, you know, in the normal system, it's an individual case. And so you take into account all the specifics. Whoever's making the final decision is doing the deep work of looking at all the specifics, you know, to whatever extent they can. mean, and I guess one place to close this, you know, and I'll let you have the final word on it, but, it's what is the legacy of this? And one of the things that jumped out at me because my first book was on

you know, the Wehrmacht and the Holocaust and Belarus. part of the, I mean, a lot of my sources for that were actually German trials. So I got very, very involved in sort of that aspect of it. And, you know, it really struck me that one of the, I guess for several people actually, you know, but in their statements for clemency or parole, you know, why I'm a good person and why do I need to be paroled, for example, or what have I done to deserve parole or clemency? It's

I'm helping the US Army write their histories of, know, which we know that they did that. You know, we know that we got von Melendon and all these people that were deeply complicit to come over and be able to tell. this is part of the, without getting into it, obviously, this is part of the origins of the Clean Wehrmacht Command. They're able to sort of write these sanitized histories. But I had never actually seen, you know, somebody who was a convicted war criminal saying, I've been helping the Americans.

American army, right? Right. This piece let me out of out of jail for it. And, you know, and that's just one example of sort of, and of sort of the damage that this kind of process does to the whole thing. But maybe can you sum up what do you think the the overall impact of McCloy at all is on sort of, you know, justice for Nazis justice in a larger sense, however, you want to sort of sum it up.

Robert Hutchinson (01:20:46.911)
Yeah, it gets at the fundamental question of what does justice mean in this context? And what is the purpose of punishment in international law? Because if it's meant for restitution purposes, well, these crimes are so enormous, no restitution is possible. If it's meant for, you know,

of coercive, not coercive, deterrent purposes, that also doesn't really fit the bill, right? Because if it's meant for rehabilitative purposes, these people don't need rehabilitation because they wouldn't have committed their crimes in the absence of their governing system anyway, for the most part, the people we're talking about. And so you get into these issues like the legacy for Nuremberg, it's mixed, right? Like to me, it's a road less taken or a road not taken. I closed the book with talking about like Rudolf Hess and Spam

And it might be true that the Cold War is the only thing that kept Rudolf Hess and Spandau until he was in his 90s. But that happened, because of the Cold War, because the British, the Americans, the French and the Soviets literally could not agree on anything. Clemency and parole was not possible for the IMT people. so Albert Speer is stuck in jail for his full sentence. Rudolf Hess is the only person who actually served life in prison.

who was convicted at a court for these sorts of crimes is stuck in jail. so this whole story is a story that didn't have to happen. It wasn't a natural outgrowth of anything. It wasn't a natural outgrowth of the Cold War. wasn't a natural outgrowth of the trials themselves. It was kind of a concerted project by people who had the best of intentions, but...

kind of in my view, missed the forest for the trees, right? In terms of like by being so preoccupied with these conceptions of what law is and what justice is and what the procedure means and right procedure versus fair procedure that they missed the big picture of what they were doing with reference to this population. And I think we can say that, you know, it's fairly damaging for the legacy of this. mean, it...

Robert Hutchinson (01:22:56.713)
tribunals that were convened in Rwanda and Yugoslavia in the 1990s actually learned from this example by instituting an appellate body as part of the conviction, part of the administrative procedure so that this sort of thing could be ad hoc business, could be avoided. So that's like a legacy in the shape of international law. I mean, I think this story goes hand in hand with the delegitimation of the whole Nuremberg war criminal project in the eyes of

the West Germans, that ultimately meant that by the 1960s, when it became time, when popular opinion and the wheel came around again, where there was more comfort in West Germany with pursuing justice for the Frankfurt Auschwitz trial and things of that nature, the All Might Sitzgrubben trial in 1958, which happened shortly after the story ends, right?

All the choice, this is so delegitimized by that point from the constant kind of American tinkering with the senses that the avenues pursued for justice are all German domestic avenues. And that comes with its own limitations and costs, right? Where statutes of limitations, regulations are much more kind of in the weeds there where justice almost becomes entirely symbolic, right? You're hoping to achieve a conviction so that you can sentence someone to 18 months in prison for crimes against humanity.

Waitman Beorn (01:24:03.991)
Yep.

Waitman Beorn (01:24:20.866)
I mean, that's an interesting timeline that you mentioned. It's kind of a good one to end on, but that 1958 is important for a couple of reasons, both of which you mentioned in the book, but which I would super highlight as well. One is the All Mindsets Group in trial, which is one of the first big German run trials of Nazi perpetrators. So before this, we have trials run by the Americans or the Allies. But also 1958 is the establishment of the Zentral Shut-up.

which is the central office for the investigation of Nazi violent crime in Ludwigsburg, whose sole job is to identify cases and hand them off to to state's attorneys to do and is is is part of this new generation of people who want to actually bring Nazis to justice. Right. And so and then you have shortly after that what you've talked about already, which is this whole the the issue of of statute limitation and what crimes can be prosecuted.

what Nazi crimes or what crimes committed under the Nazi state can be prosecuted, which is a whole other topic for a different book. But it's interesting that that sort of follows right along the end of, you know, the Americans essentially backing away from their sort of strident prosecution of Nazis.

Robert Hutchinson (01:25:41.108)
Yeah. And so when these people are brought to justice, it will not be under the legal rationale that the Americans imposed from outside, among the of the limited and imperfect and fragile German domestic legal system, which I mean, given some of the offices, there's no alternative to that. But it's a conception of what laws, what practices are fair, right? Because Nuremberg is tainted with Victor's justice and retroactive prosecution. And so the preoccupation from on forward is in proving

violations of German criminal statutes that have been on the books since like 1871, right? And so that is much more limited. Yeah. Yeah.

Waitman Beorn (01:26:15.692)
Yeah. Yeah. Yeah. So you have the problem with murder and what you have to basically you're limited by the early 1960s, you're limited to first degree premeditated murder and the requirements which are stringent. One of which is mindset, which is always a difficult thing to prove.

Robert Hutchinson (01:26:31.987)
Yeah. Yep. Yeah, it's much more, it's a continental legal system as opposed to a British and American legal understanding of what is required.

Waitman Beorn (01:26:41.836)
And the funny thing is, of course, to put a bookend on the whole conversation is the last trials that we've had most recently have gone back to that, you if you were at Auschwitz, we can prosecute your argument that you don't, you didn't have to do anything specific. We don't have to prove that you killed a person on X date. You know, just being part of the criminal conspiracy makes you guilty, which is kind of

In a certain sense, where Nuremberg kind of started and then McCloy backed off on and then from the 60s to like the late to like the 90s, German, German jurisprudence was no, have to prove you actually did a thing. And now we're back at the end.

Robert Hutchinson (01:27:23.327)
Yeah, we're back to this conception because a big problem that the Americans had trouble wrapping their heads around is the idea that crimes, as most lawyers conceive of them, are of specific finite duration. You did a thing on this date. So all the Nuremberg defendants were criminals not by dint of singular actions, but by dint of collective actions perpetrated over an incredibly long period of time that bled over into other.

agencies and concepts. And so it was very difficult to understand. But now, as you say, we're more back to that kind of proper understanding of what culpability means and looks like in a project of genocide.

Waitman Beorn (01:27:59.982)
Well, this was amazing. But before we let you go, we covered a lot of ground. This was really great. I'll ask the question we always ask our guests, which is, I don't know why I say we, it's just me. But what is one book on the Holocaust that you found particularly useful or you'd recommend to our listeners?

Robert Hutchinson (01:28:03.671)
yeah.

Robert Hutchinson (01:28:17.407)
I'm going to dodge the question. Here's why I'm going to do two. I'm going to do two answers. The first answer is the first thing that comes on is Ed Westerman's drunk on genocide. I saw you have an episode on this. I think it's fantastic. I love the mixture of the problem, the problematization of kind of the ordinary men argument. I love the mixture of gender history with what we in the military refer to as like the impetus of alcohol and legacy room culture, right? About like the importance of bonding events and in. Yeah.

Waitman Beorn (01:28:45.038)
Dining in, I drank my fair of a drug back in the day, it's a problem.

Robert Hutchinson (01:28:49.885)
Yeah, so I'm a big fan of that. I believe it's episode 13, if anyone's interested and hasn't listened yet, like Ed Westerman's book is genuinely new and interesting and I recommend to point out. And then I just wanted to do a shout out because this is the last book I have read recently. I finished it when I was on vacation last week. It's Richard Breitman's calculated restraint, what the allied leader said about the Holocaust. And I'll just put in a plug for anything Richard Breitman has written. He's written a book on FDR and the Jews. He wrote a book on the architect of genocide or Kimmel and the Final Solution.

And I'm an enormous fan of Richard Breitman as a scholar because there's no one better at identifying context, right, of decisions that are made. So when he's talking about how FDR is speaking about the Holocaust, he's looking contextually about domestic politics, international politics, interagency squabbles, and he has the archival receipts to back up everything he says. And he's not afraid to kind of take us to task in the historical profession for presentism.

and imposing standards of action on past figures without understanding that context. And so I really enjoyed the book. I'd say it's worth interviewing if you have a chance, but calculated restraint.

Waitman Beorn (01:30:00.31)
Yep. That's great. Thanks. mean, and also I'll give a shout to, I mean, hopefully if you're, if you're a frequent listener, you haven't forgotten this because it was just a week or so or last episode ago, but, um, Katarzyna von Kellenbach was on, um, and she talks about the other side of this, the same talk, some of the, some of the aspects that we talked about today, uh, looking at sort of how, um, these perpetrators viewed themselves and, and, and, and did the mental gymnastics of

of absolving themselves of guilt and also the sort of role of prison chaplains at Landsberg and other places in this as well. if you're looking kind of for a companion episode to this one, that might be good one.

Robert Hutchinson (01:30:41.789)
Yeah. I footnote her quite a bit because it's great. It's great stuff.

Waitman Beorn (01:30:46.638)
Yeah. so anyone else, again, thanks so much for listening. Please give us a like, subscribe, tell your friends. I really appreciate it. I've gotten some messages from folks and it's always great to hear feedback. And Robert, again, thanks so much for coming on and telling us about your work.

Robert Hutchinson (01:31:05.353)
My pleasure, thanks for having me.