Review of Unsung Heroes of the Dachau Trials

      Benjamin Ferencz: I was there for the liberation, as a sergeant in the Third Army, General Patton’s Army…But the Dachau trials were utterly contemptible. There was nothing resembling the rule of law. More like court-martials…It was not my idea of a judicial process.

      The book Unsung Heroes of the Dachau Trials deals with the 7708 War Crimes Group of the U.S. Army. The young Americans in this group were responsible for gathering evidence, interviewing witnesses, apprehending suspects and securing convictions in trials held at Dachau conducted by the U.S. Army. Since remarkably little is known about the 7708 War Crimes Group, John J. Dunphy decided to write this book to educate the public about their activities. Dunphy states that he also wanted to preserve the testimony of the War Crimes Group members who agreed to be interviewed.[1]

      The desire to provide another refutation of what Dunphy calls “Holocaust denial” also figured in his decision to write this book. He states that he felt compelled to write his book upon learning about the book Innocent at Dachau. Dunphy, whose father served in the U.S. Army during World War II, says that researching and writing this book allowed him to see the war through his father’s eyes.[2]

      This article discusses some of the mistakes and misunderstandings made by Dunphy and the members of the 7708 War Crimes Group interviewed in this book.             

Dachau Atrocities

      Members of the 7708 War Crimes Group held a reunion in Alton, Illinois in September 2000. Ralph Schulz, a veteran of the group who grew up in Alton, said, “I’ll never forget the horror at the atrocities of Dachau.” Schulz said he “took photographs of a mass grave with the bodies of 135,000 murdered people.”[3]

      Schulz greatly exaggerated the number of people who died at Dachau. The book Dachau, 1933-1945: The Official History by Paul Berben stated that the total number of people who passed through Dachau during its existence is well in excess of 200,000.[4] Berben concluded that while no one will ever know the exact number of deaths at Dachau, the number of deaths is probably only a few thousand more than the official number of 31,951.[5]

      More importantly, Schulz also apparently did not understand that most of the inmates at Dachau died of natural causes. The book Dachau, 1933-1944: The Official History documents that approximately 66% of all deaths at Dachau occurred during the final seven months of the war. The increase in deaths at Dachau was caused primarily by a devastating typhus epidemic which, in spite of the efforts made by the medical staff, continued to spread throughout the camp. The number of deaths at Dachau includes 2,226 people who died in May 1945 after the Allies had liberated the camp, as well as the deaths of 223 prisoners in March 1944 from Allied bombings of Kommandos.[6]

      Schulz said: “I can still see the scratches of fingernails on the walls of the gas chambers where people tried to claw up the walls to escape the gas.”[7] Today no credible historian thinks that homicidal gas chambers were utilized at Dachau.[8]  

      Dr. Charles P. Larson, an American forensic pathologist, performed autopsies at Dachau and some of its sub-camps which confirm that most inmates at Dachau died of natural causes. Dr. Larson performed about 25 autopsies a day for 10 days at Dachau and superficially examined another 300 to 1,000 bodies. He autopsied only those bodies that appeared to be questionable. Dr. Larson wrote in regard to these autopsies at Dachau:

      Many of them died from typhus. Dachau’s crematoriums couldn’t keep up with the burning of the bodies. They did not have enough oil to keep the incinerators going. I found that a number of the victims had also died from tuberculosis. All of them were malnourished. The medical facilities were most inadequate. There was no sanitation…

      A rumor going around Dachau after we got there was that many of the prisoners were poisoned. I did a lot of toxicological analysis to determine the facts and removed organs from a cross-section of about 30 to 40 bodies and sent them into Paris to the Army’s First Medical laboratory for analysis, since I lacked the proper facilities in the field. The reports came back negative. I could not find where any of these people had been poisoned. The majority died of natural diseases of one kind or another.[9]

      Dr. Larson did report that a number of inmates had been shot at some of the German camps, and that the living conditions in the camps were atrocious. The average daily caloric intake of the inmates was far short of requirements, thus accounting for the extreme emaciation of many of the inmates. However, in his depositions to Army lawyers, Dr. Larson made it clear that he did not think the deaths at Dachau were part of a program of mass murder. Larson also sincerely believed that although Dachau was only a short ride from Munich, most of the people in the city had no idea what was going on inside Dachau.[10]

Female prisoners at Dachau wave at their American liberators. Originally it was proclaimed 238,000 people were cremated at Dachau.

Dachau Retribution

      Dunphy downplays the fact that Americans mass murdered German guards when they liberated Dachau. He quotes American Gen. Felix Sparks: “The total number of German guards killed at Dachau during that day most certainly did not exceed 50, with 30 probably being a more accurate figure.”[11] However, the evidence indicates that almost all of the 560 guards at Dachau were murdered when the Americans took control of the camp.

      Dachau was liberated on April 29, 1945, by the I Company of the Third Battalion, 157th Infantry Regiment, 45th (Thunderbird) Division, which was part of the Seventh Army of the United States.[12] Soldiers who liberated Dachau saw a trainload of dead bodies, horrific scenes of sick and dying prisoners, piles of dead bodies strewn around the camp, and smelled a stench in the air from the rotting dead corpses. A soldier writing home about what he had seen at Dachau stated:

“No matter how terrible, revolting or horrible any newspaper reports are about Dachau; no matter how unreal or fantastic any pictures of it may seem, believe me, they can never half way tell the truth about this place. It is something I will never forget.”[13]

      It was in this environment that American troops committed the mass murder of the German guards at Dachau. The German roll call morning report of April 29, 1945, stated that 560 German guards were stationed at Dachau on the day it was liberated by American troops. This figure of 560 was reported by Lt. Heinrich Skodzensky and a Swiss Red Cross official when they attempted to surrender the camp to American forces. The vast majority of the 560 German guards at Dachau were murdered by the end of the day.[14]

      About 10 SS guards managed to escape by disguising themselves as inmates. However, they were quickly discovered and either shot, beaten to death, or taken prisoner. Approximately another 10 soldiers at Dachau were shot in the guard towers while attempting to man machine guns. Along with perhaps 20 more guards who tried to resist or escape, they are the only guards who can be classified as killed in combat. All of the remaining 520 guards at Dachau were murdered in one way or another.[15]

Newly liberated prisoners jeer a prostrate German prison guard. Moments after this US Army photo was taken, the guard was beaten to death. In the background are the bodies of other German prisoners who have just been machine gunned by American GIs.

      Escaped or released inmates seeking revenge executed approximately 40 guards. The inmates used weapons obtained from American soldiers or taken from fallen SS troops to kill the German guards.[16] Jack Hallett, one of Dachau’s liberators, stated in regard to these executions:

“Control was gone after the sights we saw, and the men were deliberately wounding guards that were available and then turned them over to the prisoners and allowing them to take their revenge on them. And, in fact, you’ve seen the picture where one of the soldiers gave one of the inmates a bayonet and watched him behead the man. It was a pretty gory mess. A lot of the guards were shot in the legs so they couldn’t move….”[17]

      Approximately another 122 German guards were shot on the spot by American forces. This number includes Lt. Skodzensky, the newly arrived Camp Commander who was stationed at Dachau while recovering from wounds sustained at the Russian front. Eventually the situation was brought under control and the 358 surviving guards were rounded up and herded into an enclosed area and placed under guard. However, a machine gunner from M Company nicknamed “Birdeye” lost control and used a .30 caliber machine gun to murder 12 more German soldiers. This left 346 surviving German guards at Dachau.[18]

      American Lt. Jack Bushyhead was left in charge to guard the remaining German prisoners. Acting with what he believed to be compelling justification, Bushyhead lined up the remaining German guards along a high brick wall and disposed of them with bursts of machine gun fire. He then allowed three or four liberated inmates the satisfaction of completing the execution.

      First Lt. Howard A. Buechner later asked Bushyhead why he had allowed the mass murder of the remaining German guards. Bushyhead, who was an American Indian, said that he and his ancestors had always known discrimination, persecution and injustice without retribution. When in Dachau he saw death and atrocities far beyond human comprehension, he became an instrument of vengeance. Lt. Bushyhead claimed full responsibility for the murder of the German guards at Dachau.[19] 

      Accusations were drawn up against at least four officers and five enlisted men for the murder of the German guards at Dachau. Lt. Bushyhead was accused of violating the rules of the Geneva Convention, which protect prisoners of war regardless of atrocities they may have committed. The following is a report of how Gen. Patton handled the illegal American execution of the Dachau guards:  

      After a brief interchange, Patton ordered every officer, who had participated in the Dachau investigation to report to his office. He also demanded that they bring every document and photograph which they had collected. He then asked if they had placed every scrap of evidence in his hands. When assured that nothing had been withheld, he dumped all the papers into a metal wastebasket, asked for a cigarette lighter and personally applied the flame to the documents. The charges against Lieutenant Bushyhead had been dismissed. But, of greater importance, with this act, the written records of the executions at Dachau were stricken forever from the annals of military history. The incident would remain alive only in the minds of men, and here it was buried for more than 40 years. Officially, the hour of the Avenger had never occurred.[20]

      The court martial charges were dropped and all records of the mass murder of the German guards at Dachau were destroyed. Gen. Patton had decided that to pursue the matter further would have led to adverse publicity. One of the tragedies of this episode is that most of the German guards who were killed were a hastily assembled group of replacements for guards who had fled Dachau. These replacement guards at Dachau were innocent of wrongdoing and should never have been murdered.[21]

Dachau camp personnel surrender to American troops. A few minutes after this photo was taken, these German prisoners were lined up against a wall and machine-gunned to death. (US Army photo.)

Sworn Statements and Confessions

      Bill Kasich, a member of the 7708 War Crimes Group, was quite emphatic about the circumstances under which sworn statements and confessions were made. Kasich assured Dunphy that the American investigators he knew and worked with neither bullied nor beat anyone.[22]

      It is possible that all of the investigators working with Kasich acted properly in obtaining sworn statements and confessions. However, many investigators in the war-crimes trials did not act properly. For example, Benjamin Ferencz admitted in an interview that he used threats and intimidation to obtain confessions at the Dachau trials:

      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.[23]

      Ferencz, who enjoys an international reputation as a world peace advocate, further related a story concerning his interrogation of an SS colonel. Ferencz explained that he took out his pistol in order to intimidate him:

      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.[24]

      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.[25]

      Evidence was also presented that many of the defendants at the Dachau trial made their confessions after being tortured. For example, defendant Johann Kick testified:

      I was under arrest here in Dachau from sixth to 15th of May. During this time, I was beaten all day and night. I had to stand at attention for hours. I had to kneel down on pointed objects. I had to stand under a lamp for hours and look into the light, at which time I was also beaten and kicked. As a result of this treatment my arm was paralyzed for about 10 weeks.[26]

      Kick testified that as a result of these beatings, he signed the confession presented to him by U.S. Lt. Paul Guth.[27] Kick’s testimony regarding his torture, however, made no difference to the eight U.S. military officers who presided as judges in the trial.

Johann Kick

      Defense witnesses at the Mauthausen trial in Dachau repeatedly testified to improper interrogation techniques used by the prosecution. Defendant Viktor Zoller, the former adjutant to Mauthausen commandant Franz Ziereis, testified that Paul Guth said, “I received special permission and can have you shot immediately if I want to.” When Zoller refused to sign a confession, Guth acted as if he was going to shoot Zoller. Zoller still refused to sign the confession and wrote: “I won’t say another word even though the court might think I am a criminal who refused to talk.”[28]

      Defendant Georg Goessl testified that Guth told him to add the words “and were injected by myself” to his statement. If Goessl did not write down what Guth dictated, Guth visually demonstrated to Goessl that he would be hanged. Goessl testified that he then signed the false statement and planned to clear up the matter in court.[29]

      Defendant Willy Frey testified that the prosecution witnesses had never seen him before and wouldn’t be able to identify him if he didn’t have a number hanging around his neck. Frey testified that he had been severely beaten in Mossburg by an American officer. Frey signed his confession only because he was afraid of being beaten again.[30]

      Defendant Johannes Grimm testified that he signed a false statement that Lt. Guth had dictated to Dr. Ernst Leiss. When asked why he signed this false statement, Grimm replied:

“I already described my mental condition on that day. I had memories of the previous interrogations. My left cheekbone was broken and four of my teeth were knocked out.” Grimm further testified, “The only superior I had to obey was Lt. Guth telling me to write this sentence.”[31]

      Mauthausen defense attorney Lt. Patrick W. McMahon, in his closing argument to the Dachau Tribunal, said there was grave doubt that the defendants’ statements were freely given. Further, the striking similarity of the language made it obvious the statements contained only language desired by the interrogators. McMahon cited numerous examples in which defendants used similar language to say crimes committed at Mauthausen could not be ascribed to any one leader. In regard to shootings to prevent further escapes, McMahon also cited several examples where similar language was used in the defendants’ statements.[32]

      McMahon said in his closing argument:

      And so it goes with Drabek, Entress, Feigl, with Trauner, Niedermeyer, Haeger, Miessner, Riegler, Zoller, with Blei, with Eckert, with Striegel, with Eigruber, with Eisenhoefer, with Mack and Riegler. Let the court also note the unbelievable accusations that the affiants make against themselves. It is contrary to normal human conduct. People just don’t talk that way about themselves. Beyond any doubt, threats and duress were used to induce the signing of the untruthful statements in evidence.[33]                                                                                  

      Thus, the evidence is overwhelming that large portions of the confessions and statements used at the Dachau trials were obtained under duress. While it is possible that members of the 7708 War Crimes Group did not use or know about these improper procedures, these forced confessions were nevertheless quite common.  

Dachau kangaroo court room

Otto Skorzeny’s Trial 

      German SS-officer Otto Skorzeny was tried at Dachau after the war. The charges brought against Skorzeny included wrongfully obtaining United States uniforms and using them in combat.It was also alleged that Skorzeny and his men tortured and killed more than 100 U.S. prisoners of war. Additionally, Skorzeny allegedly removed and appropriated insignias of rank, decorations, uniforms and other items from U.S. prisoners of war. Finally, Skorzeny allegedly misappropriated Red Cross food and clothing parcels consigned to U.S. prisoners of war.[34]

      Skorzeny and his fellow defendants were found not guilty of all charges at his trial. U.S. Army 7708 War Crimes Group member Bill Kasich expressed his opinion that Skorzeny was acquitted because the Allies felt they could use Skorzeny’s skills against the Russians somewhere down the line. Dunphy also expresses surprise that the Dachau court found the defendants not guilty of what he calls blatant violations of the Geneva Convention.[35] However, Skorzeny was found not guilty because Skorzeny’s case had gone very poorly for the prosecution. 

       The American prosecutor summoned a German captain who accused Skorzeny of distributing poison bullets to his commandos to use against Americans during the Battle of the Bulge. The captain testified that he identified the poison bullets by a red ring around the case.

On cross-examination, defense attorney Lt. Col. Robert Durst showed the captain a bullet with a red ring around the case and asked, “Is this the type of bullet you are speaking of?” The captain said “Yes.” It only took Durst a few minutes to get the captain to admit that the bullet in Durst’s hand was a waterproof bullet, and that the poison bullets were entirely different in appearance. The captain confessed he had lied to the court.[36]

      The American-run court then attempted to convict Skorzeny for ordering his men to wear American uniforms during the Ardennes offensive. Skorzeny testified that he had given his commandos orders not to fight while in American uniforms, that they did not fire a bullet while in the disguise, and that his men had abided by the Hague Convention. Skorzeny also testified that the American and British had followed the same procedure many times.[37]

      The tribunal was not convinced that military units fighting for the Allies had worn German uniforms. Rumors were not acceptable as evidence in this particular court of law. The next day would bring the trial to a conclusion since the tribunal had other prisoners to try. Skorzeny had no further defense, and he didn’t sleep that night because he was worried about the trial’s outcome.[38]

      Skorzeny was surprised the next day when Durst called to the witness stand British Royal Air Force Wing Commander Forrest Yeo-Thomas. Yeo-Thomas testified that the British Secret Service often wore German uniforms, were always armed, and when trapped, used their guns without hesitation. He also explained that German soldiers were sometimes ambushed so that their papers and uniforms could be taken and used by British agents.[39]

      As Yeo-Thomas stepped down from the witness chair, Skorzeny and the other defendants stood at attention in a gesture of appreciation. The tribunal had to acquit the German defendants because otherwise they would have to admit that the victors fought under a different set of rules than the losers. Ironically, Skorzeny had won his case even though he had been defended by an American military lawyer, before a tribunal composed entirely of American military officers, and with his primary witness being a British military intelligence officer.[40]

Left: Forest Frederick Edward “Tommy” “The White Rabbit” Yeo-Thomas: In addition to receiving a Bar to his Military Cross, in 1946 he became one of just six SOE agents to be awarded the George Cross. In 1963 YeoThomas received a final award, being made a Commandeur of the Légion d’honneur. Right: Otto Skorzeny.

Professional Witnesses and Mock Trials

      Dunphy is highly critical of the book Innocent at Dachau by Joseph Halow. He also writes that “[Bill] Kasich was familiar with the book and thoroughly despised it.”[41]

      The book Innocent at Dachau claims that false witnesses were used at most of the American-run war-crimes trials at Dachau. Joseph Halow, a young U.S. court reporter at the Dachau trials in 1947, described some of the false witnesses at the Dachau trials:

      [T]he 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.[42]

      Stephen F. Pinter, who served as a U.S. Army prosecuting attorney at the American-run trials of Germans at Dachau, confirmed Halow’s statement. 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.”[43]

      The use of false witnesses has also been acknowledged by Johann Neuhäusler, who was an ecclesiastical resistance fighter interned in two German concentration camps from 1941 to 1945. Neuhäusler stated 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.”[44] The frequent use of such false witnesses calls into question the legitimacy of the Dachau trials.

      American attorney Col. Willis N. Everett, Jr. was assigned to defend the 74 German defendants accused of the Malmédy incident. The trial took place at Dachau from May 16 to July 16, 1946.[45] Everett and his defense staff of lawyers, interpreters and stenographers divided into several teams to interview the defendants. Everett wrote to his family of the experience:

      Several defendants today said they thought they had had a trial…a Col. sat on the Court and his defense counsel rushed the proceedings through and he was to be hanged the next day so he might as well write up a confession and clear some of his fellows seeing he would be hanged…another kind of court had black curtains…The Lt. Col. sat as judge at a black-draped table which had a white cross on it and the only light was two candles on either end. He was tried and witnesses brought in and he was sentenced to death, but he would have to write down in his own handwriting a complete confession. Then the beatings and hang-man’s rope, black hood, eye gougers which they claimed would be used on them unless they confessed. Not a one yet wrote out his statement but each stated that the prosecution dictated their statements and they said it made no difference anyway as they would die the next day. So, on and on it goes with each one of the defendants. The story of each must have some truth because they have each been in solitary confinement.[46]

      Such use of mock trials to obtain confessions was a disgrace to the American judicial system. Willis Everett was convinced that the Malmédy trial had been an ethical abomination. Approximately 100 of Everett’s friends and acquaintances and some additional American military officers advised Everett to forget about the Malmédy case and live in the present. Everett’s sense of ethics, however, set him on a mission to obtain justice for the Malmédy defendants.[47]

      Ultimately, because of Everett’s efforts, none of the Malmédy defendants were executed. They were gradually released from prison courtesy of the Annual Review Board and tensions resulting from the Cold War with the Soviet Union. Jochen Peiper was the last Malmédy defendant to leave prison, receiving his release on December 22, 1956.[48]             

American attorney Willis M. Everett, Jr.

Unfair Burden of Proof and Rules of Evidence

      Dunphy writes that anyone wanting to learn the truth about the Dachau trials should read Joshua M. Greene’s book Justice at Dachau: The Trials of an American Prosecutor. This book provides an introduction to the Dachau trials through the work of William Denson, a Harvard Law School graduate who prosecuted more alleged German war criminals than any other lawyer in the postwar era, and achieved a 100% conviction rate. Of the 177 guards and officers Denson prosecuted, 97 were sentenced to death, 54 to life imprisonment and the rest to sentences of hard labor.[49]

      The Dachau tribunal was composed of eight senior U.S. military officers with the rank of at least full colonel. The president of the court, Brig. Gen. John M. Lentz, was the former commanding general of the 3rd Army’s 87th Infantry Division.[51] These U.S. military officers with no formal legal training were not qualified to objectively review the evidence presented in the trial.

      Lt. Col. William Denson, the chief prosecuting attorney, used the legal concept of common design for establishing that camp personnel at Dachau were guilty of violating the laws and usages of war. The Dachau tribunal accepted Denson’s legal concept of common design. In common design, Denson had discovered a legal concept wide enough to apply to everyone who had worked in Dachau.[52] In essence, the Dachau defendants were all assumed to be guilty unless proven innocent.                   

      The rules of evidence used at the Dachau trial were also extremely lax. For example, hearsay evidence presented by the prosecution was routinely allowed by the judges. Such testimony was permitted at the Dachau trial if it seemed “relevant to a reasonable man.” This departure from normal Anglo-Saxon law was intended to compensate for the fact that some eyewitnesses had died in the camp.[53]

      Lt. Col. Douglas T. Bates, the chief defense attorney, was also not permitted to fully cross-examine all of the prosecution witnesses. For example, prosecution witness Arthur Haulot, a 32-year-old journalist and former lieutenant in the Belgian army, threatened to leave the trial after being aggressively cross-examined by Bates. An hour later, Bates and the other defense lawyers met with Haulot outside of the courtroom. Bates put a friendly arm around Haulot’s shoulder and said: “We just want to thank you. By speaking up, you got us properly scolded. We were doing what we had to do, and frankly it disgusted us. You won’t be bothered like that again.”[54]                       

      Such a change of tactics by the defense counsel would never have occurred if the trial had taken place in an American courtroom. However, at Dachau the defense attorneys were soldiers who took seriously reprimands from their superior officers who were judges in the trial.[55]

      Defense attorney Douglas Bates in his closing statement at the first Dachau trial challenged the court’s use of the legal concept of common design. Bates said:

      The most talked-of phrase has been “common design.” Let us be honest and admit that common design found its way into the judgment for the simple expedient of trying 40 defendants in one mass trial instead of having to try one each in 40 trials. Where is the common design? Conspicuous by its absence, established for the purpose of trapping some defendants against whom there was a shortage of proof—by arguing, for example, that if Schoep was a guard in the camp, then he was equally responsible for everything that went on. There are guards at each gate of this American post today. Is it not far-fetched to say they are responsible for crimes that may be committed within the confines of this large area? If every one of the defendants is guilty of participating in that large common design, then it becomes necessary to hold responsible every member of the Nazi Party and every citizen of Germany who contributed to the waging of total war—and I submit that can’t be done.

      I read this in Life magazine today: “Justice cannot be measured quantitatively. If the whole of Germany is guilty of murder, no doubt it would be just to exterminate the German people. The real problem is to know who is guilty of what.” Perhaps the prosecution has arrived at a solution as to how an entire people can be indicted as an acting part of a mythical common design.

      And a new definition of murder has been introduced along with common design. This new principle of law says, “I am given food and told to feed these people. The food is inadequate. I feed them with it, and they die of starvation. I am guilty of murder.” Germany was fighting a war she had lost six months before. All internal business had completely broken down. I presume people like Filleboeck and Wetzel should have reenacted the miracle at Galilee, where five loaves and fishes fed a multitude.

      There has been a lot of impressive law read by the chief counsel, and it is good law—Miller, Wharton. The sad thing is that little of it is applicable to the facts in this case. Perhaps we have not been diligent enough in seeking applicable law. Some think the prosecution has found applicable law in the Rules of Land Warfare on the doctrine of superior orders. We have no intention of arguing that executions by the German Reich were due process. Nevertheless, we contend that executions were the result of law of the then recognized regime in Germany and that members of the firing squad were simple soldiers acting in the same capacity as in any military organization in the world….

      If law cloaks a bloodbath in Germany, the idea of law will be the real victim. Lynch law, of which we have known a good deal in America, often gets the right man. But its aftermath is a contempt for the law, a contempt that breeds more criminals. It is far, far better that some guilty men escape than that the idea of law be endangered. In the long run, the idea of law is our best defense against Nazism in all its forms.

      In closing, I ask permission to paraphrase a great statesman. Never in the history of judicial procedure has so much punishment been asked against so many on so little proof.[56]

      Despite its unfairness, William Denson refused to acknowledge that the legal concept of common design should not apply in this case. Denson stated:

“I do not want the court to feel that it is necessary to establish individual acts of misconduct to show guilt or innocence. If he participated in this common design, as evidence has shown, it is sufficient to establish his guilt.”[57]

Conclusion

      Unsung Heroes of the Dachau Trials is useful in learning the views of some of the surviving members of the U.S. Army 7708 War Crimes Group. However, its attempt at establishing the justice and fairness of the Dachau trials is totally unconvincing.    

      Benjamin Ferencz acknowledges the unfairness of the Dachau trials:

      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…It was not my idea of a judicial process. I mean, I was a young, idealistic Harvard law graduate.[58]

      Ferencz states that nobody including himself protested against such procedures in the Dachau trials.[59]             

      The defendants did not receive a fair and impartial hearing in the Dachau trials. The use of interrogation methods designed to produce false confessions, lax rules of evidence and procedure, the presumption that the defendants were guilty unless proven innocent, American military judges with little or no legal training, unreliable eyewitness testimony, and the inability of defense counsel to aggressively cross-examine some of the prosecution witnesses ensured the conviction of most of the defendants in the Dachau trials.    

Group portrait of 40 defendants at Dachau. Convicted in a kangaroo court, 28 were hung to death

Endnotes


[1]Dunphy, John J., Unsung Heroes of the Dachau Trials: The Investigative Work of the U.S. Army 7708 War Crimes Group, 1945-1947, Jefferson, N.C.: McFarland & Company, Inc., Publishers, 2019, p. 1.

[2] Ibid., p. 2.

[3] Ibid., p. 4.

[4] Berben, Paul, Dachau, 1933-1945: The Official History, London: The Norfolk Press, 1975, p. 19.

[5] Ibid., p. 202.

[6] Ibid., pp. 95, 281.

[7] Dunphy, John J., Unsung Heroes of the Dachau Trials: The Investigative Work of the U.S. Army 7708 War Crimes Group, 1945-1947, Jefferson, N.C.: McFarland & Company, Inc., Publishers, 2019, p. 5.

[8] Cobden, John, Dachau: Reality and Myth in History, Costa Mesa, Cal.: Institute for Historical Review, 1991, pp. 28, 44.

[9] McCallum, John Dennis, Crime Doctor, Mercer Island, Wash.: The Writing Works, Inc., 1978, pp. 60-61.

[10] Ibid., p. 69.

[11] Dunphy, John J., Unsung Heroes of the Dachau Trials: The Investigative Work of the U.S. Army 7708 War Crimes Group, 1945-1947, Jefferson, N.C.: McFarland & Company, Inc., Publishers, 2019, p. 25.

[12] Buechner, Howard A., Dachau: The Hour of the Avenger, Metairie, La.: Thunderbird Press, Inc., 1986, p. 29.

[13] Ibid., p. 5.

[14] Ibid., p. 96.

[15] Ibid., p. 97.

[16] Ibid.

[17] Abzug, Robert, Inside the Vicious Heart: Americans and the Liberation of Nazi Concentration Camps, New York and Oxford: Oxford University Press, 1985, p. 94.

[18] Buechner, Howard A., Dachau: The Hour of the Avenger, Metairie, La.: Thunderbird Press, Inc., 1986, pp. 98-99.

[19] Ibid., pp. 91-92, 106.

[20] Ibid., p. 119.

[21] Ibid., pp. 107, 120.

[22] Dunphy, John J., Unsung Heroes of the Dachau Trials: The Investigative Work of the U.S. Army 7708 War Crimes Group, 1945-1947, Jefferson, N.C.: McFarland & Company, Inc., Publishers, 2019, p. 44.

[23] Brzezinski, Matthew, “Giving Hitler Hell”, The Washington Post Magazine, July 24, 2005, p. 26.

[24] Jardim, Tomaz, The Mauthausen Trial, Cambridge, Mass.: Harvard University Press, 2012, pp. 82-83.

[25] Ibid., p. 83.

[26] Greene, Joshua M., Justice at Dachau: The Trials of an American Prosecutor, New York: Broadway Books, 2003, p. 77.

[27] Ibid.

[28] Ibid., pp. 179-180.

[29] Ibid., pp. 184-187.

[30] Ibid., pp. 201-204.

[31] Ibid., pp. 205-210.

[32] Ibid., p. 218.

[33] Ibid.

[34] Dunphy, John J., Unsung Heroes of the Dachau Trials: The Investigative Work of the U.S. Army 7708 War Crimes Group, 1945-1947, Jefferson, N.C.: McFarland & Company, Inc., Publishers, 2019, pp. 93, 99.  

[35] Ibid., pp. 101-102.

[36] Infield, Glenn B., Skorzeny: Hitler’s Commando, New York: St. Martin’s Press, 1981, pp. 136-138.

[37] Ibid., pp. 139-140.

[38] Ibid., pp. 140-141.

[39] Ibid., pp. 141-142.

[40] Ibid., p. 142.

[41] Dunphy, John J., Unsung Heroes of the Dachau Trials: The Investigative Work of the U.S. Army 7708 War Crimes Group, 1945-1947, Jefferson, N.C.: McFarland & Company, Inc., Publishers, 2019, pp. 8-14.

[42] Halow, Joseph, Innocent at Dachau, Newport Beach, Cal.: Institute for Historical Review, 1992, p. 61.

[43] Sworn and notarized statement by Stephen F. Pinter, Feb. 9, 1960. Facsimile in Erich Kern, ed., Verheimlichte Dokumente, Munich: 1988, p. 429. 

[44] Frei, Norbert, Adenauer’s Germany and the Nazi Past: The Politics of Amnesty and Integration, New York: Columbia University Press, 2002, pp. 110-111.

[45] Parker, Danny S., Hitler’s Warrior: The Life and Wars of SS Colonel Jochen Peiper, Boston, Mass.: Da Capo Press, 2014, p. 148.

[46] Weingartner, James J., A Peculiar Crusade: Willis M. Everett and the Malmedy Massacre, New York: New York University Press, 2000, pp. 42-43.

[47] Ibid., pp. 119, 138.

[48] Parker, Danny S., Hitler’s Warrior: The Life and Wars of SS Colonel Jochen Peiper, Boston, Mass.: Da Capo Press, 2014, pp. 194, 200.

[49] Dunphy, John J., Unsung Heroes of the Dachau Trials: The Investigative Work of the U.S. Army 7708 War Crimes Group, 1945-1947, Jefferson, N.C.: McFarland & Company, Inc., Publishers, 2019, p. 14.

[50] Ibid.

[51] Greene, Joshua M., Justice at Dachau: The Trials of an American Prosecutor, New York: Broadway Books, 2003, p. 41.

[52] Ibid., pp. 42-43.

[53] Ibid., pp. 47-48.

[54] Ibid., pp. 55-57.

[55] Ibid., p. 57.

[56] Ibid., pp. 113-115.

[57] Ibid., p. 112.

[58] Stuart, Heikelina Verrijn and Simons, Marlise, The Prosecutor and the Judge, Amsterdam: Amsterdam University Press, 2009, p. 17.

[59] Ibid.

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