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Innocent in Dachau: The Trial and Punishment of Franz Kofler et al.

Joseph Halow

An unusual set of circumstances, over which I had only limited control, and timing, over which I had no control whatsoever, determined the course of my military career and led me to work as a court reporter at Dachau for the 7708 War Crimes Group in Germany after my discharge from the Army. Arriving in Germany innocent of war and politics, I found my preconceptions of right and wrong during wartime, as well as the justice of the postwar trials, challenged by what I observed and experienced during the Dachau trials. Many years later, my review of the records of those trials has only strengthened my belief that justice was not served at Dachau after the war.

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The war with Japan ended on August 15, 1945, and I reached the age of eighteen on August 20, 1945. Unhappy with my life in a small city in Pennsylvania and sure I would in any event soon be drafted into the army, when I registered for the draft on my eighteenth birthday I asked for immediate induction. I could not have enlisted, since this would have required parental permission, and the death of my eldest brother in Italy during the war against Germany had so profoundly affected my parents they would not have considered granting it. My mother, grief-stricken, could only proclaim that had George enlisted and not been drafted she would have felt she had sent him to his death.

The Army moved as rapidly on my request for immediate induction as a Federal bureaucracy is able. In this case it wasn't until October 23, 1945 before I was taken into the Army. This worked in my favor, for by fall the nation had such a backlog of servicemen awaiting discharge that thousands of men remained on terminal leave for weeks until the military service groups were able to process them.

I learned of the Army's desperate manpower situation within a few short days of my induction. At Fort Meade, Maryland, where each day thousands were being separated from the service, anyone with any office training whatsoever was immediately pulled from the ranks of the other recruits and put to work in Army Administration. The plan was to send these new recruits to basic training camps later, after the Army had been able to effect the discharge processing of so many World War II veterans.

I had grown up in Pennsylvania during the Great Depression, and, because of my father's heart condition, which would not permit him to work, we were probably even poorer than many of our neighbors. It never occurred to me that I would ever attend a university. I elected to pursue a commercial course in high school, so that I could have a well-paying job as soon as I graduated and I could begin a business career. Excelling in my studies, I broke the high school speed record in shorthand by passing a speed test at 175 words per minute.

This ability determined the course of my military service for the next two and a half years. I was not sent to a basic training camp but instead was put to work in G-4, the administrative office at Fort Meade. Hopelessly lost at a desk at which I was expected to work independently -- for I had no experience and I received virtually no guidance whatever -- I was pleased when, after only two or three weeks, I was asked to serve as a reporter on Army Retiring Board cases. The work was much easier than office administration, in which I was charged with responding to correspondence which I was unable to understand. Reporting required no experience, although attempting to record the proceedings faithfully is obviously stressful. This assignment lasted less than two months, for on my return to base from a Christmas furlough I learned that I was one of two enlisted men selected to go to China.

Chosen on the spur of the moment, we flew to China in propeller planes, and even under the A-1 priority assigned our travel, it was a week before we arrived in the city now called Beijing. We learned that our mission was to establish offices which would administer the negotiations the United States was then mediating between the Communists and the Nationalists. Today it is difficult for me to imagine the extent of my political naiveté during the time I was stationed in China. The intent of our mission there I found incomprehensible. It may have been because we were an immigrant family, but at home in Pennsylvania, before I entered the Army, I was not at all interested in even American politics. At that time I could not have distinguished between the Republicans and the Democrats. In China, although I worked in the Commanding General's office and had access to every bit of information available, no matter how highly classified it was, I failed to understand the differences between the Chinese Nationalists and the Communists. It seemed obvious to me then that we favored the Nationalists, but it was not until much later that I understood the reasons for establishing the Peiping Headquarters Group, as our outfit was named.

When I arrived in China I had been in the Army exactly two and a half months, and I was still completely lost in an office. Thanks to my buddy Smitty's administrative abilities and his experience, we soon earned a good reputation and were highly regarded by officers and the enlisted men alike.

My tour in China ended on the termination of the six-month period of temporary duty. Although Smitty and I could have stayed on, both of us elected to return. We were ordered to Washington, D.C., and there assigned to the Office of the Chief of Staff, Europeari Division, at the Pentagon.

After months of bored inactivity at the Pentagon, I was discharged from the Army on December 2, 1946. I longed to see more of the world, and sought a job with the Department of the Army abroad. Since I was still only nineteen, however, I was considered to be too young for overseas employment as a civilian. I argued that I had been overseas in the Army, where I had to manage essentially alone. The Civilian Personnel office agreed (probably because of the shortage of shorthand reporters in the European Theater). Despite my trepidation about being assigned to Germany, I left New York on the S.S. Marine Angel on December 10, 1946, and arrived in Bremerhaven, Germany, on December 21st. From there I traveled to Augsburg, where I awaited assignment as a pre-trial reporter on a war-crimes investigating detachment. There were at least fourteen such detachments, and each of them was to assign its own pre-trial reporter.

The first few months I spent in Germany were particularly unpleasant, due to an unusually severe winter and a shortage of fuel. We Americans had to cut back on our use of heating fuel, and so we were constantly cold, inside as well as outside our quarters. If our fuel rations were limited, rations for the Germans simply did not exist, and I later learned that they would frequently awaken to find frost on their inside walls, which remained frigid all day.

When the pre-trial detachments had finished their work, I was transferred to Dachau, to serve as an official reporter in the American trials at Dachau. The German cities I had seen had been so thoroughly destroyed by Allied bombers that it was a pleasure for me to come to Dachau. There, although one could purchase nothing in any of the shops, the buildings were at least intact. The summer of 1947, following the extremely cold winter, was also unusually warm and sunny, with mild weather which lasted through the fall. This made living conditions in Dachau very pleasant for me, though this contrasted starkly with the gloom involved in the cases we tried in court.

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So many years have passed since the war crimes trials that I should perhaps explain that my unit, the 7708 War Crimes Group, was assigned the function of administering and holding the war crimes trials which took place under the aegis of the American military government in Dachau, Germany. This included trials of cases involving concentration camps in Germany and Austria, as well as trials of isolated atrocity cases. The latter involved the fates of crews from American planes shot down during bombing raids over Germany. Fliers forced to parachute from their disabled planes were often attacked by civilians from the towns in which these bombing raids had taken place. The enraged German civilians would then kill the unfortunate fliers, either by beating to death or shooting them, sometimes both.

It was on one of these atrocity cases that I was tested for my ability to report officially. Working with an experienced official reporter, I was to sit through the trial in order to understand and learn the procedure. I then had to record and transcribe the proceedings of one official court session or "take," a period of approximately one and a half hours in court. Had I failed the test, I would doubtless have been transferred to some other function. I did pass the test, which proved to be more trying to my emotions than to my skill as a reporter.

I might have been indifferent regarding this trial had it not been for a young "accused" (as we called the defendants), who sat in the dock with several other, appreciably older, German civilians. He was so much younger than the others that I took note of him as soon as I entered the courtroom. I watched him throughout, and, undoubtedly because he sensed I was his peer, he watched me. Checking the record, I learned that the defendant, Rudolf Merkel, was six months younger than I; I was still only nineteen. The crime for which he was being tried had taken place when he was fifteen, when the other accused had attacked a flier who had parachuted into an area close to his town. Two of the older men had struck the flier, and on their instruction, Merkel had struck him twice with a stick.

My excitement during the proceedings had grown to a fever pitch by the time the court announced its sentences. When young Rudolf Merkel was sentenced to life imprisonment I was stunned. On hearing his sentence, young Merkel broke down. Tears streamed down his face, and he shook as he fought back the sobs which tore through his body. Throughout the trial I had sympathized with the murdered flier, my countryman, and had been deeply shaken to hear of his pathetic attempts to escape the attacks of the infuriated German townspeople. Now I was struck by the plight of this boy, and I had to look away to avoid crying with him. Listening to the testimony, I had already concluded that in his shoes I would have acted, despite my peaceful nature, as he had. Going a step further, I soon realized that had this happened in America those who had disposed of an enemy flier would have been considered heroes. We, the victors, considered them lawless criminals. I came to the conclusion that in such cases it is invariably the winners who determine whether those involved are heroes or terrorists.

After I had transcribed this testimony, I was told I had passed the test. My response was to say that I did not feel I was emotionally able to work in court. After three days, however, I realized that I had very little choice. I was under contract with the 7708 War Crimes Group as a reporter (technically a pre-trial reporter). To the best of my knowledge, there was no other position available to me. I returned to work, where, after my baptism of fire, I soon adjusted. I could listen to the sentences given the accused, even when I thought they were harsh, without ever again having to battle tears on their behalf. Then again, Rudolf Merkel was the youngest accused whose trial I recorded (I learned later that he was the youngest prisoner interned at Landsberg prison).

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Merkel's case was not the only trial I remember clearly. There were others that have stayed in my memory, either due to the crimes alleged, the sentences handed down, or simply the notoriety the case had gained. Some cases I remembered only for specific details, sometimes personal but more often regarding one or another of the accused. It was not until recently, however, following the declassification of the American military court files, that I was able to gain access to them. (They are held by the National Archives Records Administration at the Washington National Records Center in Suitland, Maryland.) What a thrill it was to look through the documents I had myself prepared more than forty years ago! The files served not only to confirm my recollections, but enabled me to review the complete documentation pertaining to the individual cases, including the reports of the review authority and subsequent correspondence.

When I started my review, I quickly checked the file on Rudolf Merkel. I discovered that he had been released from prison after serving seven years. I noted that his release was based on the same thing that had led me, long ago, to feel such pain at his sentence: his extreme youth. When his case came under review, his German counsel presented a strong statement on his behalf, indicating other instances in which, moved by political expediency, the Americans had excused the actions of boys slightly older than Rudolf Merkel was when he struck the fallen American. On his release, Merkel, who came from a village close to the French border, returned home, married and reared a family.

Apart from satisfying my curiosity, my review of the files allowed me to gain greater insight into the cases than was possible during my time in Dachau. My review of the files aroused my interest in writing about my experiences in Dachau. which involved reporting the trials of guards and Kapos at Mauthausen, Buchenwald, and their various subcamps, or Kommandos.

The isolated flier case had been particularly difficult for me to endure, since it was much easier to identify with a single victim, usually an American, known by name, rank and serial number. The concentration camp cases provided a different challenge, since they involved many victims not identified by name or nationality. The witnesses in the concentration camp cases were virtually all of the sort we court reporters termed "professional witnesses," those who spent months in Dachau, testifying against one or another of the many accused. They were fed and housed by the Americans at Dachau in comfort they could never have hoped to attain elsewhere in Germany in those days. They were also paid a fee for each day they spent at court. Thus it was to their economic advantage to testify, and many of them made a good living doing so.

As one might well imagine, the motive of the professional witnesses was also one of spite and revenge. Those of them who had been in the concentration camps hated the Germans and would have done anything to harm them. In many instances their vengeance included relating exaggerated accounts of what they had witnessed. It also included outright lying.

To complicate matters even further, those who investigated the cases and brought them to court were often untrained. Their major qualification for these jobs was that they spoke German. In most instances this was not difficult for them, since, as Jewish refugees from Germany, German was their mother tongue. Virtually all of these investigators also hated the Germans, as did a large portion of the professional staff assigned to work in the courts. Many of the investigators gave vent to their hatred by attempting to force confessions from the Germans by treating them brutally. This frequently emerged in the testimony of some of the accused in the court proceedings, and the accompanying documents in the files contain allegations of instances of severe beatings of the accused by some of these investigators. The most famous example of this brutality was in connection with the interrogation of the suspects in the "Malmedy Case," and was confirmed by the Army's review board. The military courts, set up as court martial, tended, however, generally to believe those who made the accusations, paying scant attention to testimony by and for the accused.

A popular accusation against an accused in the concentration camp case was that he had "so severely beaten prisoners that they died." Initially the "witnesses" were not even required to identify prisoners who had been so killed. Such accusations were responsible for many of the sentences which sent 229 of the 925 individuals accused in the 332 concentration camp cases to hang at Landsberg. Death sentences were, in fact, quite usual, as were sentences of life imprisonment.

There were also strong indications that the professional witnesses worked together, helping each other with their testimony. The witnesses would frequently attend sessions in a court trial, following which they would relate to their friends what had transpired. This helped their friends prepare for their own testimony.

The professional witnesses were known to the authorities in Washington, as is proved by a memorandum for the Judge Advocate General's Office in the Pentagon, speaking of a professional witness whose testimony was to be considered to be "unreliable." A note in the review of "The United States vs. Lauriano Navas, et al." (file no. 000-50-5-25) states that:

This admonition from the Office of the Chief of the War Crimes Branch, European Command, came unfortunately too late to have had any bearing during the war crimes trials, all of which were complete by the end of 1947. The sentences meted out by the courts and the subsequent documents prepared by the review authority demonstrate what I was able to observe, that there was very little caution applied in the acceptance of such testimony.

One of the factors which disturbed me the most in the concentration camp cases was the "common cause" finding by one of the courts, to the effect that anyone who had been in a position of any authority within a camp or any of its subcamps had to have known what was transpiring in that camp and was, as a result, guilty of participation in a common cause. This finding struck me even then as being grossly unjust, since there are various reasons why one remains at a specific post. This awakens the age-old argument about whether one follows commands and performs what he is ordered to do or whether he follows the dictates of his own conscience. It is obvious that in such instances such a choice would have been very difficult even in the United States (witness the plight and the shame suffered by the conscientious objectors in the United States during World War II and the cases of those who would not fight in Vietnam during the Vietnamese war). In a dictatorship such as the Third Reich, the latter choice would have meant certain death.

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One of the most memorable war crimes trials on which I worked was a subsidiary trial of the parent Mauthausen trial. I remember it vividly, despite its similarity to the other subsidiary concentration camp trials which I recorded; there was the usual intervention of professional witnesses and their confusion on the stand, leading, nevertheless, to the sentencing of the accused. What impressed me about this particular case was not so much the sloppy trial proceedings, the professional witnesses or any other aspect of the case, but the intervention of one witness and a single incident about which she testified. Her name was Danuta Drbuszenska. I still can see, in my mind, this young, blond, pretty Polish girl. Even her name fascinated me: a jumble of consonants so difficult to type I could not have forgotten it or her.

As in the other subsidiary Mauthausen Concentration Camp trials, the chief prosecutor required the court to take cognizance of the decision rendered in the parent Mauthausen case, "that the mass atrocity operation was criminal in nature and that the participants therein, acting in pursuance of a common design, subjected persons to killings, beatings, tortures, etc., and [the court] was warranted in inferring that those shown to have participated knew of the criminal nature thereof." The court indicated that those convicted in this case would also be considered part of this finding.

The trial was designated as "The United States vs. Franz Kofler et al." Originally there were eleven accused. Kofler himself was not a German but an Austrian. The other seven accused included two men, Michael Heller and Stefan Lennert, who had been born in Rumania but were Volksdeutsche, ethnic Germans. These men served in the German Schutzstaffel (SS) but their foreign nationality posed no problem for them, since the Volksdeutsche were considered German despite having been born outside Germany proper. Another of the accused was Gustav Petrat, a Lithuanian Volksdeutscher, a German born in Lithuania and a citizen of that country until he became a German citizen in 1942. Gustav Petrat was also a member of the SS.

The other four were German nationals, apparently born in Germany, who gave home addresses in Germany. These other Germans accused were Hermann Franz Buetgen, Quirin Flaucher, Arno Albert Reuter and Emil Thielmann.

Danuta Drbuszenska was the first witness, called to the stand by the prosecution. Because she was Polish, the proceedings had to be translated twice, leaving me, the first reporter to begin recording testimony in this case, more time than usual to observe. I noted that she was of about medium height, blue-eyed as well as blond, with a pale oval face on which she used no makeup whatever. Drbuszenska was slim, and she wore a simple, pale pink cotton summer dress with a small print, very light in color, indicating frequent laundering. In 1947 she was, as she testified, only twenty-one, little more than two years older than I.

Danuta Drbuszenska had been taken prisoner in Warsaw when she was only sixteen. After a brief stay at an internment camp at Lodz, Poland (then called Litzmannstadt and annexed by Germany), she was moved to the Mauthausen Concentration Camp complex. She and a group of other Polish women had, I understood, been housed in a barracks which the SS had turned into a brothel. This brothel served the German military on duty at the camp, as well as those inmates who could pay for such benefits or were being rewarded for some service to the camp.

Apart from her physical good looks, I was immediately taken by Drbuszenska's calm manner from the moment she entered the court room to take the witness chair. Her simple dress gave her a casual look. Her manner of speaking, in a very measured and even tone, was unhurried, giving the impression that she had all her thoughts collected and perfectly in order. I could not help but be impressed by her, and it was obvious that the court was as well. Hearing her testimony, taken in direct examination, I was convinced that her appearance would suffice to have Gustav Petrat, against whom she testified, sentenced to hang.

Drbuszenska's speech conveyed the impression that she was not aware of the severity of the statements she made, nor did she seem to notice the impression they were making on the court. She remained the coolest, most matter-of-fact witness of all those whose testimony I recorded in Dachau, even when presenting the lurid details of the incidents to which she testified. Drbuszenska remained unshaken even during the defense counsel's cross-examination. She appeared to have taken no note of me, but I watched her closely as she testified.

After giving her name, age, address and occupation (translated as "tailor" but which must have been "seamstress"), Drbuszenska was asked if she knew any of the accused in the case. She promptly responded that she knew "number six, Petrat." She said she knew another man but that he was not among the accused. She subsequently stated that she was to serve as a witness in another of the subsidiary camp case trials.

Drbuszenska testified that at Mauthausen she and the other women prisoners had to carry heavy rails, so heavy that it took five women to carry one. She stated that Petrat was the "SS man who was in charge of the lot of us," and she quickly came to the main points in her testimony by stating that whenever they went to the washroom he would beat them. Drbuszenska said that Petrat had first of all singled her out, for what reason she did not know. She stated that as the prisoners were gathering on the roll call square "to go to work," a report was made by the block eldest, a women, and Drbuszenska was "fetched out." Drbuszenska testified that Petrat had then struck her on the inside of the upper arm with a club constructed of wood and iron, leaving a scar about four inches long and about one inch wide. At the prosecution's request she arose calmly from the witness' chair and walked coolly toward the members of the court, where she slowly raised her right arm, turning so that each could see the scar on the inner side of the upper arm. The club, she testified, was about two and a half feet long and about as thick as her right wrist.

Following this, the witness then testified, the accused took her "back to his apartment," where he first grabbed her by the pigtails and gave her a beating. He then took her by her pigtails, winding them around his hands, and raised and lowered her until she fainted. While she was unconscious, Drbuszenska added, Petrat had taken her "hands back and tied them behind my back and up on a stake," where he let her hang for half an hour.

Drbuszenska said she regained consciousness only when she was back in the prisoners' block. She testified further that "My girl friends told me afterwards that I had been hanging for half an hour, but I couldn't say because I had been unconscious and I don't know if he went on beating me or not." (I was so absorbed by this girl and her manner that I did not then notice the similarity between her statements about being picked up and lowered by her hair and a statement made by Moses Meschel, a Polish Jewish witness in the subsidiary Mauthausen trial of the four Spanish kapos, who stated that he had been picked up by his ear and then thrown to the floor, where he landed on the ear by which he had been originally lifted!)

Something which did not occur to me then is that Drbuszenska was never asked how her friends knew she could have been hanging for a half an hour. She herself could hardly have even known that Petrat had hanged her by her pigtails, since, according to her own statement, she had fainted before all this had happened, and, according to her own statement, regained consciousness only after her return to the prisoners' block. Only she and Petrat were present in what she said was his apartment, where all this was purported to have taken place. This glaring inconsistency appeared not to have troubled the court at the time. I recall only that I briefly questioned the statement in my own mind, but then forgot it because what then transpired in the court seemed to me bizarre.

When Drbuszenska began the account of her alleged mistreatment, I looked at Petrat, the man she was accusing, and saw he was blushing a deep red! The former SS man looked down at the floor, then looked up again. He had a sheepish grin on his face, and looked for all the world like a foolish young boy caught with his hand in the cookie jar, as though he had merely committed some petty misdemeanor!

The contrast between the two of them was startling, as though they had switched roles: the girl testifying was so calm and composed as to seem hard, unpressed by concern or any apparent emotion, while the look on the face of the man she was accusing was absolutely adolescent, if not actually puerile. I don't know if any of the court members noticed his discomfort, but I immediately guessed that there had been, not cruelty, but deep intimacy between the two. To me Petrat's blush confirmed this.

Asked if she had ever again been personally mistreated by Petrat, Drbuszenska responded "After that he didn't hit me any more because I used to say to him 'Well, when the Americans come you will be finished in any case,' and he used to say 'No, you will be finished before me.'" This type of exchange between a reputedly tough SS non-com, charged with guarding prisoners at a concentration camp, and a young and attractive female prisoner would have been incomprehensible to me if they had not been lovers. I was young, but not that young, and I couldn't forget that at the time she was in the camp she had been my age. Had Petrat so disliked Drbuszenska (which was unbelievable to me), he would have been more apt to strike her or to ignore her rather than have spent time in adolescent chit-chat about who would be "finished" first and whether or not this would be before or after the Americans liberated the camp.

My speculation was interrupted by the further questioning of Drbuszenska. The prosecutor's next question was "Now, do you know of any mistreatment of any other prisoners at Mauthausen by Petrat?" She responded "Yes." When asked to tell the court about it, Drbuszenska testified that she and her friend Zilenska were helping another friend, Wisniewska, who, because of a hernia, had been unable to walk alone to the washroom which they used. When they arrived there Petrat was standing on top of a barrel, with another SS man, against whom Drbuszenska had also "brought some charges somewhere else." Since Wisniewska could not walk unaided, Drbuszenska stated, Petrat struck her on the head with the same club with which he had earlier hit Drbuszenska, so hard that "all the brains came out and there was so much blood flowing about so that two SS men got two prisoners to clean up the blood and put her on a stretcher and carried her to the crematory.'

When she was asked if her friend had been dead when she was carried away, Drbuszenska responded by saying "She was dead and she couldn't be anything else except dead because when he hit her all her brains had fallen out. She fell to the ground and didn't get up any more. We stood and cried." All this she recounted in the same, unbelievably calm manner, without any break in her voice, any change in the volume or the rate of speed at which she spoke.

Since their friend Wisniewska had been taken to the crematorium, Danuta Drbuszenska continued, she and her friend Zilenska picked up their towels and returned to the prisoners' block, exiting through a door which led directly into their block. Danuta and Zilenska then went, with another friend, to the crematorium, and with her two friends acting as look-outs for her, Danuta walked quietly over to the crematorium window and watched as Wisniewska's body was "put on a huge, what you might call a tray, and shoved inside the stove to be burned." She reported that there were more people there, "and I saw how he [Petrat] was rushing them onward. He said 'Hurry up, hurry up!' There was a five-minute alert and the Americans were to come in pretty soon." Drbuszenska stated that this incident had taken place on April 15, 1945, approximately three weeks before the Americans arrived at the camp.

During cross-examination, the defense counsel, Major William Oates, asked Drbuszenska if at the time Petrat struck her she did not have something in her hands. She responded that she had been holding a carrot, which she had stolen. The block eldest had seen her steal the carrot, and it was for this reason that she had been beaten. In response to further questioning by the defense counsel, Drbuszenska said that it was at their place of work where Petrat had struck her and, when asked to indicate approximately where Petrat was standing when he struck her, she indicated that it was about a foot and a half to the left (the scar was on her right arm). She then added quickly that when she saw him about to strike her she had raised her arm to scratch her head [emphasis provided by the author]!

The defense counsel asked Drbuszenska if she had ever had a love affair with Petrat (which confirmed my own feelings about what might have been the case). She did not answer this question but responded instead by saying, again coolly, "I would kill him if I could!" The next question was "And at the time he struck you with this object, that was what you were trying to do, wasn't it?" Drbuszenska responded "What he was after was that I was swearing at him because I didn't want to have anything to do with him, and when he passed I didn't even say 'Good morning' to him." The defense counsel then asked her, "You had been stealing food stuffs from other inmates and this wasn't the first time that you had stolen from your fellow countrymen, was it?" The prosecution objected to the question, but the court president overruled the objection. The witness responded "No, we were going to peel potatoes and I picked up this carrot while peeling potatoes, so it is quite untrue."

There was another accusation brought against Petrat which I still recall, although not with the same prurient interest. This was a statement made by Andor Fried, a seventeen-year-old Polish Jew. Fried was one of several witnesses who testified that Petrat had accompanied a long column of prisoners walking to Gunskirchen from Mauthausen during the last several days of the war. He appeared to be uncertain in his identification of Petrat, since the man he saw was following the procession at a distance of about one and a half city blocks. Fried asserted, nevertheless, that it had been Petrat, and he described how he saw Petrat, at such a great distance, had been killing stragglers or those who had fallen in the ditches by the wayside. Later in the trial, Andor Fried was recalled triumphantly by the prosecution to testify that, during a court recess, he had passed relatively close to the accused, who were then in the hall, and that Petrat had called him a "jüdisches Schwein!" (Jewish swine).

If Andor Fried was lying, and his story indicates he was at least not sure what he was saying was exact, Petrat might have been so offended by his statements, either untrue or at least exaggerated, that he could have called him a "jüdisches" or any other kind of a swine. But a witness who will lie about one thing can be counted on to lie again, and it is possible that Petrat never said anything of the kind to Fried. At that time, however, no one would have dared question such an accusation made by a concentration camp survivor.

The accusation that Petrat had been following the forced march was thoroughly refuted -- or at least cast in doubt -- by the witnesses for the defense. These witnesses said that Petrat could not have been accompanying the transport, since it was not his function. They pointed out that Petrat had been assigned to the Mauthausen Camp because he had been wounded so severely on the Russian front that he was no longer fit to fight. His physical condition would not have permitted him to ride a motorcycle. One of the defense witnesses said that the prosecution witnesses might have mistaken Petrat for Hans Altfuldisch, who had been tried and sentenced to death in the parent Mauthausen case.

Prosecution witnesses further testified that Petrat had beaten and killed inmates working at the stone quarry. He was accused of once having killed a fallen inmate by stamping on his head. Petrat was a dog leader, i.e., one who guarded work crews outside the camp with a leashed dog, and his dog was described as a savage animal, which tore pieces of flesh out of the inmates when she bit them.

Defense witnesses, on the other hand, testified that Petrats dog was a fat and lazy bitch, which might have threatened but would not attack. They also testified that Petrat would never have been permitted in the camp where the inmates were housed; yet, according to Drbuszenska, he was frequently in their washroom, which she herself admitted men were not permitted to enter.

The court evidently accepted the testimony of Drbuszenska, as well as the charges by some of the other witnesses. It found Petrat guilty and sentenced him to death by hanging. This did not surprise me at the time, for I had expected it ever since I had heard Danuta Drbuszenska's initial testimony.

The testimony presented against Quirin Flaucher, a prisoner, condemned him just as quickly as that against Petrat had condemned him. In Flaucher's case, however, testimony was presented by at least one credible witness, Jean Loureau, who had already testified in the Lauriano Navas case. He traveled to Germany from France once again for the Kofler trial. Loureau testified that Flaucher had been the block eldest of Block 8, which was the dispensary. Flaucher, a criminal inmate, had been made a kapo and given responsibility for the dispensary, which contained sick inmates of many nationalities. Some of the ill and infirm were Russians, classed as both prisoners of war and Russian political prisoners, but those in the dispensary also included Yugoslavs, Belgians, Frenchmen, Poles, Germans, Austrians, Italians and even Swedes.

Flaucher was, according to Loureau, particularly intolerant of prisoners suffering from diarrhea and unable to control themselves. If one of them attempted to get up from his bed to go to the bathroom, managed only to get out of bed and soiled the floor, Flaucher would become enraged and beat him severely.

Loureau described having witnessed one beating by Flaucher, from which his victim, an ill Yugoslav, ultimately died. Loureau said that he didn't know why Flaucher had beaten the Yugoslav, but that Flaucher had announced he was going to give the Yugoslav a beating of fifty lashes with the whip. According to Loureau, the Yugoslav was forced to bend over a stool, while Loureau(!) pinned the man's hands behind his back and an orderly held the man's head between his legs. Then Flaucher whipped him. The Yugoslav endured several lashes without uttering a sound, but he soon began to shout and try to get free. During the ensuing struggle the Yugoslav fell from the stool. When he did not obey Flaucher's order to get up, Flaucher discarded his whip, called the Yugoslav to him and began to beat him unmercifully, slapping him and striking him with his fists. When the Yugoslav again fell to the floor, Flaucher kicked him viciously, until the Yugoslav stopped shouting, for he was dead.

Loreau also testified that Flaucher was a homosexual who kept two boys, whom he used "as women," in Block 8. When asked if he had ever witnessed this, the witness responded that he had not, but that he had seen Flaucher kiss one of them. Virtually all other witnesses made similar statements about Flaucher, testifying that he would seek out young boys of about fourteen and fifteen and attempt to use them sexually. When the boys refused he would mistreat and frequently beat them. Augusta (Gussie) Lapins (now Augusta Lukomski) returned from her "take" in this trial and told me that one of the witnesses, Herbert Wisniewski, a young Polish Jew testifying against Flaucher, had collapsed on the witness stand during direct examination by the prosecution. He had been testifying to the effect that after the Polish uprising in Warsaw (late in 1944), the Germans had arrested a large number of young boys of about fourteen and fifteen whom they then brought to Mauthausen. Wisniewski said Flaucher had wanted to sleep with them, and when they would not comply, he had beaten them. The prosecution asked the witness "Did you see these beatings?," to which there was no response, since Wisniewski had at that moment fainted and fallen to the floor.

Two days later the prosecutor announced that he had a communication from Wisniewski, apologizing for having collapsed on the stand, but stating that he would not return to testify during the trial. The prosecutor said he had completed his examination of the witness, but the defense counsel moved his testimony be stricken from the record, since he had not had an opportunity to cross-examine the witness. Advised that Wisniewski would supply an affidavit, the defense counsel said that this would not serve his purposes. The court recessed briefly to discuss the defense's move but returned to deny it, stating that the defense counsel had refused to accept a sworn statement by the witness in lieu of an opportunity to question him in court. Yet the defense's motion should have been perfectly clear; it could not accept a statement which contained in it only what the witness or the prosecution wished to have in it, without any opportunity to question the witness about the points which the defense wished to raise.

The court found Flaucher guilty of the charges and sentenced him to death by hanging.

The other witnesses for the prosecution were from the groups of professional witnesses collected at Dachau. They continued to complicate the proceedings, for their testimony appeared to raise more questions than provide answers. Some of it was obviously fabricated, or so grossly exaggerated as to render it unbelievable. There were repeated instances of mistaken identity of the same accused and vague, uncertain statements about some of the others. These prosecution witnesses accused various of the other accused of indiscriminately beating and killing inmates. One witness, Simon Bressler, testified that Hermann Buetgen had continually beaten the inmates he was guarding at the stone quarry. Bressler provided a description of Buetgen which fit that of Michael Heller, another guard. The accused Buetgen had not worked at the quarry, but Heller, to whom the witness had not pointed and whom he apparently did not know, had been one of the guards stationed there. Bressler was asked "Did you ever see the accused, No. 2 [Buetgen], commit any atrocities against or upon any prisoner there at Mauthausen?" Bressler replied that "He would strike every prisoner, each individual prisoner. He would give him a blow, then another blow all the way down to the quarry." When asked "How many prisoners did you see this accused, No. 2, beat in this fashion?" Bressler responded "All of them. We were eight hundred men in the detail, and he struck all eight hundred of them."

Another prosecution witness, Josef Feldstein, who stated that he had been at Mauthausen from the end of 1942 until May 1945, when the camp was liberated by the Americans, pointed out accused Hermann Buetgen when asked if he knew any of those on trial. He identified him as "Wittingen," however, also ascribing to him functions which had been performed in Mauthausen by Michael Heller. When asked to spell the name, Feldstein said he only knew that "Wittingen" was the accused's name; he did not know how to spell it.

Feldstein was asked "Just what makes you so sure that this is the same man that you saw at Mauthausen?" and he responded "l have a good memory, and what I see I am able to remember after thirty years."

Jacob Sztejnberg, who testified for the prosecution, also definitely identified accused No. 2, Hermann Buetgen, as performing the functions of a Block leader or guard, which one might expect to have heard of Michael Heller. He said that Buetgen had been guarding the inmates working in the quarry and that he beat them severely, frequently causing some to die. Sztejnberg testified that Buetgen would beat prisoners who carried stones smaller than Buetgen wished.

In addition to testifying against Buetgen, Sztejnberg testified also against Petrat and Flaucher, whose name he said he did not know properly and which he mispronounced as "Laucher." When questioned about his testimony against Flaucher, which appeared to be vague, Sztejnberg, an arrogant witness, grew testy and made caustic comments to the prosecution, which was not calling into question, but merely attempting to clarify, Sztejnberg's statement. The court president was finally forced to call Sztejnberg before the court and instruct him that the court wanted "no more smart remarks," that he was to respond to the question raised and that the court would determine what was appropriate and what was not.

During the trial, the prosecution was clearly angered by the fact that some of its witnesses against one accused might speak well of another. Feldstein had accused Buetgen of deeds which could only have been committed by Michael Heller. But Wilhelm Mornstein spoke well of Michael Heller, as he accused Emil Thielmann of having committed atrocities, saying that Heller was "the opposite of Thielmann." He said that Heller always expressed horror at what he saw and had said he would be glad when he could get out of there.

Herbert Melching, a witness for the prosecution, testified that he had seen Franz Kofler, the Kommando leader and roll call leader, beat prisoners to death. When asked by the defense counsel how he could be sure that the prisoners had been beaten to death, he responded: "Because the blows were pretty hard." Melching admitted he had never seen any of the dead bodies, either physically or in photographs, of the men he presumed had died as a result of the beatings.

Kofler was also accused of having taken a group of five Jews from Block 5 into the washroom, whipping them there, then attempting to drive them into the electrically charged wire. When the men refused, Kofler so harried them that, weakened, they could be forced into the wire and electrocuted. Peter Bleimüller, another prosecution witness, testified that Kofler would come into the Jewish block once a week to beat the Jewish prisoners. He said that this was during the period of January and February of 1942, when no Jew survived more than three days in the camp. The defense's response to this was contained in testimony which Kofler presented voluntarily to the court. He asked why not one of the 180 inmates from Block 5 had testified that he forced Jews from Block 5 into the electrically charged wire. He said that the only one who had testified to this effect had been from Block 4.

One of the witnesses who testified against Kofler was a Josef Schwaiger. He testified that Kofler had beaten prisoners during roll call. During cross examination the defense counsel accused Schwaiger of having been angered because Kofler had taken away his girlfriend, and vowing that he would get even with him. The girlfriend to whom the defense counsel referred was a Mrs. von Schwertberg, who lived in a house near Mauthausen, where Schwaiger had frequently worked.

After Herbert Melching had appeared as a witness for the prosecution, he was subsequently recalled as a witness by the defense, over the prosecution's objections. Melching, who properly identified Buetgen, testified that as an electrician and as operator of the camp movie projector, Buetgen had no responsibility for guarding prisoners and could not have beaten and killed prisoners.

In the end it was obvious the court placed not only more confidence, but immediate and almost blind belief in the prosecution's witnesses, despite the confusion in their identification of the accused and their otherwise weak statements. As was usually the case in the Dachau courts, there is no indication that the testimony presented by the witnesses for the defense was even considered.

With virtually no testimony against Stefan Lennert which could even have begun to prove the charges made against him, the court found Lennert not guilty, the only one of the accused who was acquitted. Hermann Buetgen was sentenced to three years imprisonment at hard labor, and Arno Albert Reuter to two years imprisonment at hard labor. Emil Thielmann was sentenced to life imprisonment. Michael Heller and Franz Kofler, along with Quirin Flaucher and Gustav Petrat, were sentenced to death by hanging.

I saw Danuta Drbuszenska once more, quite by chance, shortly after the termination of the trial. That September there was a Volksfest (carnival) in Dachau, and I went to see what it might be like. Completely alone, I was wandering around the grounds when I suddenly saw Drbuszenska, who was, like me, wandering by herself through the crowd. I had thought she would not recognize me, but she did, and approached me as though we were old friends. We spent the afternoon together, hand in hand, enjoying some of what the Volkfest had to offer. There was no food to be purchased there, but there were side shows, a merry-go-round, and a tunnel of love. We parted late in the afternoon as friends.

Later, I regretted that I never thought to ask her about the trial, but at that time I had no interest in the accused, and my mind was on her rather than on the case. It surprises me now, but I don't even remember any discussion of what her plans might have been, whether she would continue to live in Germany or might consider returning to Poland. I never saw her again.

* * * * *

When, a few years ago, the U.S. Army declassified its files on the war crimes trials, I eagerly examined them. The records which most surprised and disillusioned me were those which dealt with the Franz Kofler trial, in which I had been so enchanted by Danuta Drbuszenska. So taken by her at the trial, I was startled when, in studying the case file, I found such discrepancies in her testimony that I could only conclude that she was an outrageous liar.

No one asked her, nor did she explain, how she could have been peeling potatoes when Petrat struck her, if she had been "fetched out" of the roll call, as she originally claimed. Nor did the defense question the differences in her statements about the work these Polish women actually performed. Drbuszenska had testified she was carrying rails at the camp, rails so heavy it took five women to carry one rail, which would suggest she was not merely peeling potatoes. Yet she could not have picked up a carrot had she been carrying rails, a job function which later witnesses testified, furthermore, was never assigned to the women. Drbuszenska, obviously, had been stealing food, and her denial of this accusation did not erase the doubts raised in my mind when I read the defense's question and her response.

At the time of the trial I was convinced she and Petrat had been intimate, and the fact that he blushed so intensely when she was testifying tended to confirm this for me. Since I could not imagine an older man blushing, a trait usually associated with younger people afflicted with a conscience, I now checked his identification sheet. I learned that he was only twenty-two at the time of the trial, and he had been about twenty at the time of the incident. Drbuszenska had been only nineteen at the time she claimed he had struck her and subsequently killed her friend Wisniewska.

It is impossible to imagine that Petrat took Drbuszenska to "his apartments only to strike her, and I could not believe he took her there only to twist her pigtails around his arm so that he could raise and lower her! (Witnesses subsequently testified, in fact, that Petrat had no apartment but was billeted with as many as twenty other enlisted men, which sounds far more credible.) Had Drbuszenska claimed that he had raped her she would have been more believable, for he was, after all, twenty and she nineteen at the time, and also very attractive. It further struck me as odd that in a regime such as that of Hitler a twenty-year old corporal could have had so much authority he could "kill and gas people and nobody would do anything to him," as I discovered Drbuszenska had claimed. The other SS personnel at the camps were seriously concerned about their responsibilities to their superiors. The camp commandant of Buchenwald -- hardly a junior-grade officer-had been tried, sentenced and executed because of such abuses of authority, yet Drbuszenska had blithely attributed the power to kill prisoners at will to Petrat, who was then only twenty! Her statement about Petrat's authority in the camp was obviously untrue.

Her later testimony is also completely out of harmony with her earlier statements that he apparently disliked and wanted to harm her. If this were so, he could never have engaged with her in the gossipy, teasing form of small talk she indicated they frequently shared.

If there had been a Zilenska, the prosecution appeared never to have bothered to contact her, to have her either submit an affidavit or testify in person to corroborate Drbuszenska's story. Since there was no one else to confirm or deny the accounting, in the absence of a third party the court had to choose which account they would believe: Petrat's or Drbuszenska's. Given the atmosphere of the time and place, there was never any question that the court would choose her statement, even if Petrat had testified.

The court -- and if not the court, certainly the Review Authority -- should have questioned Danuta Drbuszenska's statements about the fact that Petrat was always lurking around the women's washroom, where he would be at any time of the day she appeared there. Other witnesses testified that he was a "dog leader," testimony which must have had some degree of accuracy since it was logical and was repeated by diverse sources. Yet despite claiming she frequently encountered Petrat in camp, Danuta Drbuszenska did not once mention his dog. One wonders, if he was the dog leader, where he kept his dog when he was, as she alleges, stalking her in the camp. Drbuszenska stated Petrat was always there when she went to the washroom. This too is impossible to believe. What SS camp guard would be allowed to loiter in a woman's washroom?

Drbuszenska's testimony is clearly that of a woman who had been used and then rejected. Such instances are not rare (in the Army I frequently heard the cautionary expression that one "should not play around too close to the flagpole"). The defense counsel attempted to make this point in court, but in a court so biased against the accused he could not have hoped for success.

With regard to the other accused, I noted, with regret, that the court had obviously chosen not to follow the lead provided by the defense counsel, who had attempted to prove complicity among the witnesses against the accused. The fact that three witnesses, and possibly four, had so firmly identified Hermann Buetgen, but then attributed to him another function in the camp, one which applied only to Michael Heller, could hardly have been coincidental The testimony of a fourth witness, Wincenty Lipinski, in which he identified Hermann Buetgen as another of the accused, was stricken from the record. There exists nothing now to show either why it was stricken or with whom he had confused Buetgen. We shall, therefore, never know what Lipinski said or with whom he confused Hermann Buetgen, but it is quite likely that it was also Heller.

The prosecution had made one direct reference to the special findings during the proceedings, when toward the end of the trial the defense counsel had moved that Lennert, one of the accused, be acquitted since there was no evidence linking him to any crimes. The prosecution objected to this motion, indicating that one of the pretrial statements by Lennert had established he had been a member of the staff at Mauthausen and was, therefore, guilty under the common cause finding of the court in the Altfuldisch case.

These special findings were introduced in every subsidiary concentration camp trial and were accepted literally by the courts. It always seemed to me outrageous for anyone to assign guilt to an individual on the basis of where he worked, without taking into consideration that the individual might have been ordered to work there. Such a finding ignores the fact that an individual might have been strongly opposed, philosophically and morally, to the principles according to which he was forced to perform.

The review counsel for this particular case, Louie T. Tischer, obviously considered the special findings his authority for upholding the courts finding of guilty in each of the cases, except that of Stefan Lennert. He began and ended his review by citing the special findings. Although Tischer made mention of the witnesses, both those who testified in person and those who had provided extrajudicial statements, he clearly relied on the special findings to uphold every conviction.

At one point in the trial, the defense counsel had objected to a witness whom the prosecution had called. The defense counsel noted that this particular witness had been sitting in the courtroom two days earlier, listening to testimony presented by prosecution witness Fosel Schoeps against five of the accused. The court considered the objection and sustained it, denying use of the witness to prosecution. Evidently the court did not consider the fact that Schoeps might have been advising all the other witnesses on what was transpiring in the proceedings.

Regarding Hermann Buetgen, Tischer noted that several witnesses had confused Buetgen with Lennert, but he brushed aside their confusion and went on to rule that the incidents subsequently described by the witnesses were committed by Buetgen. This, I felt, was hardly conscionable, for the witnesses statements, as they appear in the record, clearly indicated they were lying. These false statements should at least have raised a question in the review counsel's mind. The evidence presented indicated very strongly that Buetgen was not and could not have been at the stone quarry. One also wonders how Heller could have been found guilty of the crimes the witnesses attributed to him there when these witnesses could not even identify him!

On the basis of testimony by several witnesses -- Lipinski, Schmeling and Milonia, a former Yugoslav inmate -- Michael Heller was sentenced to death by hanging. Peda and Lipinski had been questioned by the defense as to whether they had not discussed the case outside the court, only to have the two witnesses respond with conflicting statements. Many of the prosecution's witnesses testified in Heller's favor. It appeared, however, that all the positive testimony with regard to this accused -- even that presented by the prosecution's witnesses -- appeared to have been ignored. One such witness, Barzinsky, testified he had made a new uniform for Heller to wear on his furlough, which would have placed him outside the camp at the time he was alleged by some of the witnesses to have shot and killed inmates. But this testimony, too, played no role in the court's decision.

As I had expected, Gustav Petrat had been done irreparable harm by the testimony of Danuta Drbuszenska. Not only had the court never questioned her, neither did the review authority, Mr. Tischer. He quoted her testimony entirely, although he did mention that "she appeared to be slightly confused over one of the details," which he treated and overlooked as though it were a minor incident.

Other than for his blushing in court, I had not again thought of Gustav Petrat nor ever considered him as a human being, even during the trial, but I was suddenly overwhelmed by a feeling of compassion for him when I read the file in the archives. He was a man who was sentenced to death and subsequently hanged on the basis of testimony which was, by even the admission of the review counsel, flawed, and by other testimony which failed to identify him conclusively.

According to Petrat's statement, he had been transferred to Mauthausen because of wounds he had received in the war. Certainly this could have been verified. Even if the court and the review counsel had been convinced it had indeed been Petrat who had been following the march to Gunskirchen, they might also have asked themselves if he, as a low-ranking SS soldier in a dictatorship, had not merely been obeying orders.

In my review of the file, I sadly noted a pathetic sworn statement submitted by Gustav Petrat, which appeared to me to be, so many years after he had been hanged in consequence of his duty at Mauthausen, the echo of a lonely young ghost. The statement was prepared in German but was translated for the recipient, since it was submitted to the Military Governor of the U.S. Zone of Occupation. The statement, in translation, reads as follows:

It is now late to be considering the question of Petrat's personal innocence or guilt, since he was executed in 1948. Apart from some possible exaggerations, Petrat's statement must be considered credible. His comments with regard to the witnesses conferring with one another has the ring of truth and confirms what the defense counsel had already suspected and had indicated to the court during his interrogation of the witnesses: that there was discussion among the witnesses about the testimony. The witnesses' mistaken identification of the accused Buetgen firmly and clearly indicates collusion among the Prosecution's witnesses.

There can also be no question about the use of duress and physical force by the interrogators. This was confirmed by the review of the Malmedy case, but was present in other American cases as well. There were certainly American legal personnel who were disturbed by the beatings administered to the prisoners in order to extract confessions of guilt, but for the most part they kept silent. One investigator who did know and was deeply distressed was, surprisingly enough, Fred Fleischmann, an American Jew who had been forced to flee Germany during World War II. Fleischmann later complained bitterly about the beatings the German prisoners were forced to endure.

* * * * *

I was the reporter assigned to record the last session of the Nordhausen trial, which was also the last trial session held in Dachau. Following that I left Dachau for another post in Germany before returning to the United States, one month before my twenty-first birthday. I subsequently married, fathered three children, and spent the intervening years attempting to provide for my family.

My thoughts often return to the Dachau war crimes trials. My memories of my duties there have remained strong, and, like many Americans, I continue to hear much about German misdeeds during the war.

There is a time after which all things should end. The time is long past for one-sided recriminations over German war crimes and concentration camps. As anyone who worked in Dachau, impartially, could testify, there were also injustices committed in the trials instituted to punish the Germans. The Americans gave the defendants less than due process. Jewish and Polish investigators and witnesses took vengeance on many of the accused, some of whom had done nothing to them, many of whom they did not even know.

There were many innocents in Dachau. Most of them were not permitted free departure from the camp, and many lost their lives to the executioners at Landsberg, never again to return to their homes and families.

 _______________________________________________________

 

 

The Malmedy Trial:

Denial of the Obvious

By  John Wear

The Malmedy trial took place from May 16 to July 16, 1946 at Dachau before a military

tribunal of American officers operating under rules established by the Nuremberg International

Military Tribunal.[1] American historian Steven P. Remy has written a book titled

The Malmedy Massacre which disputes that the 73 German defendants in this trial

were improperly convicted.

 

Remy states in his book’s conclusion that American interrogators did not use physical

or psychological pressure to obtain information at any of their postwar trials. Remy writes:[2]

 

“There is no evidence that in the North African, European, or Pacific theaters American

interrogators relied on systematic forms of physical and psychological pressure to

obtain information from combatants or civilians. Nor is there convincing

evidence that they did so in war crimes investigations after the war.”

 

This article will document some of the physical and psychological

pressure used in the Malmedy and other American-run postwar trials.

 

Improper Postwar Interrogations

 

Scene from the Malmedy Show Trial

 

 

Contrary to Remy’s statement, physical and psychological pressure was frequently used

by interrogators in American-run postwar trials. Benjamin Ferencz, a Jewish American

war crimes investigator who received a Harvard law degree in 1943, was assigned to

investigate the concentration camps at Buchenwald, Mauthausen and Dachau.[3] Ferencz

admits that he used threats to obtain confessions. Ferencz relates a story concerning

his interrogation of an SS colonel in which he took out his pistol in order to intimidate him:[4]

 

“What do you do when he thinks he’s still in charge? I’ve got to show him that I’m

in charge. All I’ve got to do is squeeze the trigger and mark it as auf der Flucht erschossen

(shot while trying to escape)… I said ‘you are in a filthy uniform sir, take it off!’ I stripped

him naked and threw his clothes out the window. He stood there naked for half an

hour, covering his balls with his hands, not looking nearly like the SS officer he was

reported to be. Then I said ‘now listen, you and I are gonna have an understanding

right now. I am a Jew—I would love to kill you and mark you down as auf der Flucht

erschossen, but I’m gonna do what you would never do. You are gonna sit down and

write out exactly what happened—when you entered the camp, who was there, how many

died, why they died, everything else about it. Or, you don’t have to do that—you are

under no obligation—you can write a note of five lines to your wife, and I will try to deliver it…’

(Ferencz gets the desired statement and continues:) I then went to someone outside

and said ‘Major, I got this affidavit, but I’m not gonna use it—it is a coerced confession.

I want you to go in, be nice to him, and have him re-write it.’ The second one seemed

to be okay—I told him to keep the second one and destroy the first one. That was it.”

 

The fact that Ferencz threatened and humiliated his witness and reported as much to

his superior officer indicates that he operated in a culture where such illegal methods

were acceptable.[5] Any Harvard law graduate knows that such evidence is not

admissible in a legitimate court of law.

 

The defense counsel at the Mauthausen trial in Dachau insisted that signed confessions

of the accused, used by the prosecution to great effect, had been extracted from the

defendants through physical abuse, coercion, and deceit.[6] Ferencz

admits that these defense counsel’s claims were correct:[7]

 

“You know how I got witness statements? I’d go into a village where, say, an American

pilot had parachuted and been beaten to death and line everyone up against the wall.

Then I’d say, ‘Anyone who lies will be shot on the spot.’ It never

occurred to me that statements taken under duress would be invalid.”

 

Robert Kempner was the American chief prosecutor in the Ministries Trial in which 21

German government officials were defendants. Kempner was a German Jew who had

lost his job as Chief Legal Advisor of the Prussian police department because of National

Socialist race laws. He was forced to emigrate first to Italy and then to the United States.

Kempner was bitter about the experience and was eager to prosecute and convict

German officials in government service.[8]

 

Kempner bribed German Under Secretary Friedrich Wilhelm Gaus to testify for the

prosecution in the Ministries Trial. The transcript of Kempner’s interrogation of Gaus

reveals that Kempner persuaded Gaus to exchange the role of defendant for that of

collaborator with the prosecution. Gaus was released from isolation, and a few days

later a German newspaper reported a long handwritten declaration from Gaus in which

he confessed the collective guilt of the German government service. Kempner had given

Gaus’s confession to the newspaper.[9] Kempner had also threatened to turn Gaus

over to the Soviets unless Gaus was willing to cooperate with the prosecution.[10]

 

Attorney Charles LaFollete said that Kempner’s “foolish, unlawyer-like method of interrogation

was common knowledge in Nuremberg all the time I was there and protested by those of

us who anticipated the arising of a day, just such as we now have, when the Germans would

attempt to make martyrs out of the common criminals on trial in Nuremberg.”[11]

 

Kempner also attempted to bribe German State Secretary Ernst von Weizsäcker during

the Ministries Trial. However, von Weizsäcker courageously refused to cooperate.

Richard von Weizsäcker, who helped defend his father at the trial, wrote: “During the

proceedings Kempner once said to me that though our defense was very good, it suffered

from one error: We should have turned him, Kempner, into my father’s defense attorney.”

Richard von Weizsäcker felt Kempner’s words were nothing more than pure cynicism.[12]

 

 

Torture of Defendants

 

Allied prosecutors often used torture to help convict the defendants at Nuremberg and

other postwar trials. A leading example of the use of torture to obtain evidence is the

confession of Rudolf Höss, the former commandant at Auschwitz. Höss’s testimony at

the Nuremberg trial was the most important evidence presented of a German extermination

program. Höss said that more than 2.5 million people were exterminated in the Auschwitz

gas chambers, and that another 500,000 inmates had died there of other causes.[13]

No defender of the Holocaust story today accepts these inflated figures, and other key

portions of Höss’s testimony at Nuremberg are widely acknowledged to be untrue.

 

In 1983 the anti-Nazi book Legions of Death by Rupert Butler stated that Jewish Sgt.

Bernard Clarke and other British officers tortured Rudolf Höss into making his confession.

The torture of Höss was exceptionally brutal. Neither Bernard Clarke nor Rupert Butler

finds anything wrong or immoral in Höss’s torture. Neither of them seems to understand

the importance of their revelations. Bernard Clarke and Rupert Butler prove that Höss’s

testimony at Nuremberg was obtained by torture, and is therefore not credible

evidence in establishing a program of German genocide against European Jewry.[14]

 

Bernard Clarke was not the only Jew who tortured Germans to obtain confessions.

Tuviah Friedman, for example, was a Polish Jew who survived the German concentration

camps. Friedman by his own admission beat up to 20 German prisoners a day to obtain

confessions and weed out SS officers. Friedman stated that

“It gave me satisfaction. I wanted to see if they would cry or beg for mercy.”[15]

 

Joseph Kirschbaum was also accused of physical abuse at the Malmedy trial when German

prisoner Otto Eichler accused Kirschbaum of beating him. A review of the medical records

indicated that Eichler had received an injury, but it could not be proven that Kirschbaum had

caused the injury.[16]

 

 

False and Perjured Witness Testimony

 

False witnesses were used at most of the Allied war-crime trials. Stephen F. Pinter served

as a U.S. Army prosecuting attorney at the American trials of Germans at Dachau. In a

1960 affidavit Pinter said that “notoriously perjured witnesses” were used to charge

Germans with false and unfounded crimes. Pinter stated, “Unfortunately, as a result

of these miscarriages of justice, many innocent persons were convicted and some were executed.”[17]

 

Joseph Halow, a young U.S. court reporter at the Dachau trials in 1947,

later described some of the false witnesses at the Dachau trials:[18]

 

“…the major portion of the witnesses for the prosecution in the concentration-camp

cases were what came to be known as ‘professional witnesses,’ and everyone working

at Dachau regarded them as such. ‘Professional,’ since they were paid for each day

they testified. In addition, they were provided free housing and food, at a time when

these were often difficult to come by in Germany. Some of them stayed in Dachau

for months, testifying in every one of the concentration-camp cases. In other words,

these witnesses made their living testifying for the prosecution. Usually, they were

former inmates from the camps, and their strong hatred of the Germans

should, at the very least, have called their testimony into question...”

 

As is easily demonstrated by studying the Franz Kofler trial, these witnesses had often

never laid eyes on the men against whom they were testifying! That they lied in court is

clear from a close reading of the proceedings of the trials, for their

testimony is frequently full of contradictions and inconsistencies.[19]

 

An embarrassing example of perjured witness testimony occurred at the Dachau trials.

U.S. investigator Joseph Kirschbaum brought a former concentration- camp inmate named

Einstein into the court to testify that the defendant, Menzel, had murdered Einstein’s brother.

Menzel, however, foiled this testimony—he had only to point to Einstein’s brother sitting in

the court room listening to the story of his own murder. Kirschbaum thereupon turned to

Einstein and exclaimed, “How can we bring this pig to the gallows,

if you are so stupid as to bring your brother into the court?”[20]

 

The use of false witnesses has been acknowledged by Johann Neuhäusler, who was an

ecclesiastical resistance fighter interned in two German concentration camps from 1941 to

1945. Neuhäusler wrote that in some of the American-run trials “many of the witnesses,

perhaps 90%, were paid professional witnesses with criminal records ranging from

robbery to homosexuality.”[21]

 

 

Willis N. Everett, Jr.

 

American attorney Willis N. Everett, Jr. was the lead defense counsel at the Malmedy trial.

Everett was convinced that the Malmedy trial had been an ethical abomination.

Approximately 100 of Everett’s friends and some additional American military officers

advised Everett to forget about the Malmedy case and live in the present. Everett’s

sense of ethics, however, set him on a mission to obtain justice for the Malmedy defendants.[22]

 

Everett and another defense-team member prepared a 228-page critique of the investigation

and trial, stating that the Malmedy convictions had been secured primarily on the basis of

“illegal and fraudulently procured confessions.” The petition also argued that the trial was

a travesty of justice to German soldiers since the Allies were also guilty of the same violations

of international law. Everett sent this document to Lt. Col. Clio Straight’s office for inclusion

in the internal review process that was mandatory before verdicts and sentences became final.[23]

 

Everett began a multipronged campaign of judicial appeal, publicity and congressional 

pressure to get a retrial of the Malmedy case. Everett filed an unsuccessful petition with

the U.S. Supreme Court to rehear the Malmedy case. Everett then prepared an appeal

to the International Court of Justice in The Hague (ICJ). Everett knew there was little

chance the ICJ would accept his case since only states could be parties to cases before

the ICJ. The ICJ predictably refused to hear Everett’s appeal of the Malmedy case.[24]

 

Everett made a huge personal and financial sacrifice to free the Malmedy defendants.

The physical and emotional stress from the appeal process caused Everett to suffer

from declining health and at least one heart attack. Everett estimated his out-of-pocket

expenses to be as much as $50,000, to which must be added the income lost through

his neglect of his law practice. The West German consul in Atlanta later presented Everett

with a check for $5,000 as a gesture of appreciation for his inexhaustible efforts

on behalf of the Malmedy defendants.[25]

 

Why did Everett make such a huge personal and financial sacrifice? Remy writes:[26]

 

“Everett also believed the army had treated him shabbily. He had been given an assignment

for which he did not have the requisite experience or enough time, in his view, to prepare

the case. Though he and the other defense lawyers had nonetheless mounted a vigorous

defense, they lost the case, and badly. Facing the prospect of returning to his struggling

Atlanta law firm and professional obscurity, he viewed a challenge to the outcome of

the Malmedy trial as an opportunity for personal and professional redemption. Not least,

there was the possibility of considerable financial gain, as he believed he had a story

worth a great deal of money to the press.”

 

Remy provides no documentation for his contention that Everett challenged the outcome

of the Malmedy trial “as an opportunity for personal and professional redemption” and

“the possibility of considerable financial gain.” Everett had more to gain financially and

professionally by forgetting the Malmedy trial and working full time in his law firm.

Remy by his unsubstantiated statements is attempting to discredit Everett’s motives

for challenging the Malmedy verdict.

 

Conclusion

 

Steven Remy writes:[27]

“The creation and perpetuation of self-serving myths about the past remains one of the

most powerful cultural and political forces in the modern world. Gone unchallenged,

such myths harden hearts and impede dialog and reconciliation between individuals,

communities, and entire nations. They block the flow of honest and open-ended argument

about the past and its significance to the present. Understanding the relationship

between conflict and memory—individual and collective—will always be

difficult and inconclusive. The point is to keep having the arguments.”

 

Remy is correct that we should keep having the arguments. These arguments should

include the following from American attorney Warren Magee, who served as defense counsel

in the Ministries Trial:[28]

 

“‘An eye for an eye and a tooth for a tooth’ is the driving force behind the prosecutions

at Nuremberg. While it grieves me to say this, the prosecution staff, its lawyers, research

analysts, interpreters, clerks, etc. is largely Jewish. Many are Germans who fled their

country and only recently took out American citizenship. Jewish influence was even apparent

at the first trial, labeled the IMT. Atrocities against Jews are always stressed above all else…

With persecuted Jews in the background directing the proceedings, the trials cannot be

maintained in an objectivity aloof from vindictiveness, personal grievances, and racial

desires for revenge… Basic principles have been disregarded by ‘new’ Americans,

many of whom have imbedded in their very beings European racial hatreds and prejudices.”

 

The arguments should also include the following from Benjamin Ferencz:[29]

 

“I was there for the liberation, as a sergeant in the Third Army, General Patton’s Army,

and my task was to collect camp records and witness testimony, which became the basis

for prosecutions…But the Dachau trials were utterly contemptible. There was nothing

resembling the rule of law. More like court-martials. For example, they might bring in 20

or 30 people, line them up, each one with a number on a card tied around his neck. The

court would consist of three officers. None of them had any legal education as far as I

could make out; it was coincidental if they did. One officer was assigned as defense counsel,

another as prosecutor, the senior one presiding. The prosecutor would get up and say

something like this: We accuse all of you of being accomplices to crimes against humanity

and war crimes and mistreatment of prisoners of war and other brutalities in the camp,

between 1942 and 1943, what do you have to say for yourself? Each defendant would

be given about a minute to state his case, which was usually, not guilty. One trial for instance,

which lasted two minutes, convicted 10 people and sentenced them all to death. It was

not my idea of a judicial process. I mean, I was a young, idealistic Harvard law graduate.”

 

Ferencz states that nobody including himself protested

against such procedures in these Dachau trials.[30]

 

The Malmedy trial was probably closer to a fair judicial process than Ferencz’s aforementioned

description. However, the Malmedy trial was not a fair and impartial hearing. The lack

of documentary evidence, the use of mock trials and interrogation methods designed to

produce false confessions, military judges with little or no legal training, and unreliable

eyewitness testimony assured the conviction of all 73 German defendants in the Malmedy trial.[31]

 

---

Notes

[1]	Parker, Danny S., Hitler’s Warrior: The Life and Wars of SS Colonel Jochen Peiper, Boston, Mass.: Da Capo Press, 2014, p. 148.
[2]	Remy, Steven P., The Malmedy Massacre: The War Crimes Trial Controversy, Cambridge, Mass.: Harvard University Press, 2017, p. 279.
[3]	Stover, Eric, Peskin, Victor, and Koenig, Alexa, Hiding in Plain Sight: The Pursuit of War Criminals from Nuremberg to the War on Terror, Oakland, Cal.: University of California Press, 2016, p. 32.
[4]	Jardim, Tomaz, The Mauthausen Trial, Cambridge, Mass.: Harvard University Press, 2012, pp. 82-83.
[5]	Ibid., p. 83.
[6]	Jardim, Tomaz, The Mauthausen Trial, Cambridge, Mass.: Harvard University Press, 2012, p. 6.
[7]	Brzezinski, Matthew, “Giving Hitler Hell”, The Washington Post Magazine, July 24, 2005, p. 26.
[8]	Weizsäcker, Richard von, From Weimar to the Wall: My Life in German Politics, New York: Broadway Books, 1997, pp. 92, 97.
[9]	Ibid., pp. 97-98.
[10]	Maguire, Peter, Law and War: International Law & American History, New York: Columbia University Press, 2010, p. 117.
[11]	Frei, Norbert, Adenauer’s Germany and the Past: The Politics of Amnesty and Integration, New York: Columbia University Press, 2002, p. 108.
[12]	Weizsäcker, Richard von, From Weimar to the Wall: My Life in German Politics, New York: Broadway Books, 1997, pp. 98-99.
[13]	Taylor, Telford, The Anatomy of the Nuremberg Trials: A Personal Memoir, New York: Alfred A. Knopf, 1992, p. 363.
[14]	Faurisson, Robert, “How the British Obtained the Confessions of Rudolf Höss,” The Journal of Historical Review, Vol. 7, No. 4, Winter 1986-87, pp. 392-399.
[15]	Stover, Eric, Peskin, Victor, and Koenig, Alexa, Hiding in Plain Sight: The Pursuit of War Criminals from Nuremberg to the War on Terror, Oakland, Cal.: University of California Press, 2016, pp. 70-71.
[16]	Remy, Steven P., The Malmedy Massacre: The War Crimes Trial Controversy, Cambridge, Mass.: Harvard University Press, 2017, p. 141.
[17]	Sworn and notarized statement by Stephen F. Pinter, Feb. 9, 1960. Facsimile in Erich Kern, ed., Verheimlichte Dokumente, Munich: 1988, p. 429.
[18]	Halow, Joseph, Innocent at Dachau, Newport Beach, Cal.: Institute for Historical Review, 1992, p. 61.
[19]	Ibid., p. 312.
[20]	Ibid, pp. 312-313; see also Utley, Freda, The High Cost of Vengeance, Chicago: Henry Regnery Company, 1949, p. 195.
[21]	Frei, Norbert, Adenauer’s Germany and the Past: The Politics of Amnesty and Integration, New York: Columbia University Press, 2002, pp. 110-111.
[22]	Weingartner, James J., A Peculiar Crusade: Willis M. Everett and the Malmedy Massacre, New York: New York University Press, 2000, pp. 119, 138.
[23]	Ibid., pp. 120-122.
[24]	Ibid., pp. 150, 175, 181-183.
[25]	Ibid., pp. 199, 220.
[26]	Remy, Steven P., The Malmedy Massacre: The War Crimes Trial Controversy, Cambridge, Mass.: Harvard University Press, 2017, pp. 130-131.
[27]	Ibid., p. 280.
[28]	Ibid., p. 134.
[29]	Stuart, Heikelina Verrijn and Simons, Marlise, The Prosecutor and the Judge, Amsterdam: Amsterdam University Press, 2009, p. 17.
[30]	Ibid.
[31]	Remy, Steven P., The Malmedy Massacre: The War Crimes Trial Controversy, Cambridge, Mass.: Harvard University Press, 2017, pp. 58, 125.