Hitler’s American Model: The United States and the Making of Nazi Race Law
Bill O’Reilly, late of Fox News, once made the following claim in an exchange with former NATO Supreme Commander Wesley Clark: “In Malmedy, as you know, U.S. forces captured SS forces who had their hands in the air and were unarmed, and they shot them down. You know that. That’s on the record. Been documented.” Of course, Clark knew nothing of the sort. O’Reilly had gotten the facts completely reversed, and not for the first time—several months earlier, he had made the identical misstatement on air. However astonishing, O’Reilly’s false claim was hardly unusual. It offered no more than an extreme example of the bizarre form that the Malmedy affair has assumed in collective memory.
The story of how a massacre of U.S. soldiers came to be remembered as an instance of American abuse of defenseless Nazis is the subject of Steven Remy’s rigorously researched new book, The Malmedy Massacre: The War Crimes Trial Controversy. Remy, an associate professor at Brooklyn College and CUNY’s Graduate Center, is hardly the first historian to write about the Malmedy affair. But whereas previous histories have largely accepted the myth of U.S. malfeasance, The Malmedy Massacre convincingly corrects the record. In so doing, Remy offers a timely study of the process of historical mythmaking—how false and distorted accounts come to constitute their own durable reality.
On December 17, 1944, on the second day of the German counteroffensive in the Ardennes, known as the Battle of the Bulge, a Waffen-SS combat group under the command of Colonel Joachim Peiper captured over 100 American soldiers at the Baugnez crossroads, near the Belgian town of Malmedy. As a fighting force on the eastern front, the Waffen-SS had left a long trail of atrocities that included the mass murder of Jews and Soviet POWs in Belarus. Now deployed in Hitler’s last desperate push to forestall defeat, the Waffen-SS sought to spread its trademark terror to the Western Front. Having assembled the captured Americans on a snowy field, members of Peiper’s combat group proceeded to mow them down with machine gun fire. All told, 84 GIs were murdered. News of the massacre—the single largest atrocity against American soldiers in the European theater—spread quickly, with Supreme Allied Commander Dwight D. Eisenhower demanding that the SS perpetrators be brought to justice.
After the end of the war, they were. From May to July, 1946, 74 members of combat group Peiper were tried by a U.S. military commission. It was one of hundreds of trials conducted by the Allies in occupied Germany. Most famous among these remains the Nuremberg trial of 22 leading Nazi officials before the International Military Tribunal, which, with its British, French, Soviet, and U.S. judges, was the first international criminal court in history. In the same Nuremberg courtroom, the U.S. military also staged 12 successor trials of nearly 200 leading political, military, and business functionaries of the Nazi state. Finally, on the site of the former Dachau concentration camp, the U.S. army tried over 1,500 Germans, including those responsible for the Malmedy massacre, for violations of the usages and customs of war.
The Dachau trials have largely faded from public memory. In part, this is because the accused were relatively small fish. The Nuremberg defendants represented major figures, such as Hermann Göring and Hans Frank, who were responsible for crimes against peace, war crimes, and crimes against humanity—spectacular atrocities that stretched over a continent and the span of years. The Dachau trials typically featured German civilians accused of murdering downed American airmen, and lower-level SS men charged with crimes against American soldiers and persons interned in concentration camps liberated by U.S. forces.
As trials conducted by the U.S. army, moreover, the Dachau proceedings were of minor interest to international jurists committed to building on Nuremberg’s path-breaking exercise in international criminal law. True, Nuremberg was staged under Allied military auspices, but the tribunal itself featured world-class legal talent largely drawn from the ranks of civilian life. The Dachau courts, by contrast, bore all the traits of standard army military commissions, with guilt determined by a panel consisting of five senior military officers, only one of whom was required to have any legal training.
Military commissions have played a long role in U.S. legal history. As early as 1780, George Washington convened a Board of General Officers to weigh charges of espionage against British Major John André, later executed by order of the commanding general. During the Civil War, as many as 6,000 trials were conducted by military commission. After the war, President Andrew Johnson used one to try the conspirators in the assassination of Abraham Lincoln, presumably out of fear that a civilian jury in Washington, D.C. might have southern sympathies and fail to convict. In 1942, little more than half a year after the United States entered the war in Europe, President Franklin D. Roosevelt hastily convened a military commission to try a handful of Nazi saboteurs who had landed on domestic shores. And in addition to their widespread use in occupied Germany, military commissions were established in both the Philippines and Tokyo to try suspected Japanese war criminals.
Most recently, in the wake of the 9/11 terror attacks, President George W. Bush created a military commission to prosecute suspects held in Guantanamo Bay. In its landmark decision in Hamdan v. Rumsfeld, the Supreme Court declared that Bush’s original design was in violation of both the Uniform Code of Military Justice and Common Article of Three of the Geneva Conventions. But the form has survived: a commission revamped during Barack Obama’s presidency is presently tasked with trying Khalid Sheikh Mohammed, mastermind of the 9/11 attacks, and Abd al-Rahim al-Nashiri, the architect of the bombing of the USS Cole in October, 2000.
The Malmedy trial, officially recorded as U.S. vs. Valentin Bersin et. al, charged 74 members of combat group Peiper not only with the massacre of the 84 American GIs at the Baugnez crossroads, but also with the murder of several hundred additional U.S. soldiers and Belgian civilians in the days that followed. Because military commissions are designed for a narrow range of cases—when, say, martial law has been declared or the crimes committed are incident to acts of the battlefield—they operate in a manner quite different from ordinary civilian courts. At Dachau, evidence typically barred from civilian trials, such as hearsay, was admissible. Convictions did not require unanimity—only a two-thirds majority of the panel of senior officers. All the same, conviction required proof of guilt beyond a reasonable doubt, and the accused enjoyed much the same rights accorded to U.S. soldiers facing court martial.
The prosecution, led by an army lawyer named Burton Ellis, presented a strong case. Several U.S. soldiers had survived the Malmedy massacre, either by fleeing or by playing dead, and were able to testify at the trial. Pre-trial interrogators had also succeeded in using various clever techniques and ruses, such as the staging of mock trials, to extract confessions from the accused. (This was well before the advent of Miranda rules, which require suspects to be informed of their constitutional rights in a custodial setting. In any case, these would not have applied to foreign combatants facing trial before a military commission.) During the trial, the prosecution drew heavily on these highly incriminating statements.
The defense, for its part, sought to challenge the court’s jurisdiction, but to no avail. Its other arguments proved no more persuasive. The accused claimed that the captured Americans had tried to flee, and thus were legitimate targets under the law of war. Defense lawyers noted that Francis Lieber, the German-born jurist who had famously advised Lincoln and the Union army on the law of war, had acknowledged that a commander was relieved of the obligation to give quarter in cases in which it was “impossible to cumber himself with prisoners.” Some of the accused acknowledged that killings had taken place, but insisted they had not participated personally. A handful claimed that they had been physically mistreated into confessing, but the defense called no medical witnesses to corroborate these claims. Many defendants appealed to superior orders, an appeal that did not constitute a defense proper, but which could be considered in mitigation of punishment.
After three months of trial, the commission returned its verdict. Of the 74 members of Peiper’s group, 43, including Peiper himself, were sentenced to death; the rest received lengthy prison terms. There were no acquittals. The evidence against each of the accused was not of equal strength; it was only by relying on a theory of “common design”—the idea that criminal responsibility could be imputed to all members of a criminal organization even in the absence of clear evidence that a specific member had directly participated in every criminal act—that prosecutors succeeded in securing such an astonishing conviction rate and such draconian punishments.
But no sooner had the convictions been announced than the attacks on the trial began. These were spearheaded by Willis Everett, an Atlanta attorney who had led the Malmedy defense. Certainly the defense had cause for complaint. The theory of common design, pioneered at Nuremberg, struck many observers as tantamount to collective punishment. And some of the ruses used by interrogators to extract confessions might have pushed the envelope of legitimate legal strategies.
Everett, however, blew past the criticisms. Earlier histories have portrayed Everett as a brave and lonely crusader, who, despite some less than savory qualities, labored tirelessly to expose a gross miscarriage of justice. Remy tells a very different story. In Remy’s pages, Everett emerges as paranoid, anti-Semitic, and conspiracy-minded. In private correspondence, he refers to the U.S. occupation as a “Jewish occupation” and to a member of the Dachau trial panel as the “Jew law member.” He became convinced that SS confessions had been extracted by force not because the record supported this conclusion, but because the interrogators had been German-born Jewish refugees. Although isolated instances of roughness could not be excluded, Everett inflated every allegation such that “what had been a rude gesture…became a threatening move, became physical contact, and finally became mistreatment.” And so Everett, in a barrage of furious letters to U.S. War Crimes Branch officials and in petitions challenging the verdict, came to depict SS war criminals as victims of Jewish interrogators bent on vengeance.
In his fury, Everett was not entirely alone. Charles Wennerstrum, the presiding judge in one of the 12 successor cases at Nuremberg, argued that the American trial program had simply convinced the German people that that “they lost the war to tough conquerors.” Supreme Court Justice William O. Douglas dismissed the program as an exercise in victor’s justice. Chief Justice Harlan Fiske Stone described the international trial at Nuremberg as a “sanctimonious fraud” and as “high-grade lynching party.” Everett’s allegations of detainee abuse also strongly resonated with politicians such as John Rankin, a prominent House member from Mississippi famous for his racial demagoguery and anti-Semitism.
Once the Malmedy story became about U.S. abuse, it was but one small step to complete the inversion and turn the victims into the murderers at the Baugnez crossroads.
A continent away in Landsberg prison, where the former members of combat group Peiper were serving time or awaiting execution, Everett’s agitations came as a godsend. The convicted war criminals joined together in repudiating their earlier confessions, insisting that their statements had been extracted through mistreatment—or worse. Tales of abuse grew ever more extravagant and ghoulish, as prisoners described instances of outright torture: teeth knocked out, fingernails set aflame, testicles crushed. Back home, the Quaker National Council for Prevention of War, a pacifist organization dedicated to American–German reconciliation, credulously picked up and repeated these stories, as did various newspapers and magazines. The Chicago Daily Tribune called for the court martial of the Malmedy prosecutors, and Time magazine described the inventory of alleged abuse as reading like a “record of Nazi atrocities.”
The stories fed on themselves. In occupied Germany, the allegations of abuse fueled public opposition to U.S. war crimes trials. Germans had followed the international trial at Nuremberg with polite indulgence, perhaps because they were afraid to register anything in the way of open dissent. But public opinion turned quickly and fiercely against the Nuremberg successor trials and those staged in Dachau. Former Nazis who wanted to avoid prosecution found strong support in the churches, as influential religious figures, such as Protestant clergyman Theophil Wurm and Catholic Archbishop Johannes Neuhäusler, joined the critics of the Allies’ “victor’s justice.” Allegations of detainee abuse also tapped into deep reserves of antisemitism. Many Germans, like Everett himself, came to see U.S. war crimes trials as Jewish revenge rituals.
With sensational stories swirling in the U.S. press and Germans unified in condemning the alleged abuse, the United States launched a series of independent investigations into the allegations, culminating in the creation of a subcommittee of the Senate Arms Services Committee, chaired by Raymond Baldwin, a reliable Republican from Connecticut. After months of hearings, the Baldwin committee issued its sober and carefully prepared report. The claims of systematic mistreatment and torture lacked, it concluded, any basis in fact.
Still, the controversy refused to go away. Wisconsin’s young Republican Senator, Joseph McCarthy, insisted that Baldwin had whitewashed evidence of abuse and attacked the U.S. trial program as “communist inspired.” Fellow Republican Senator William Langer of North Dakota joined the chorus of denunciation, likening the trials to Stalinist purges. Today it seems inconceivable that members of Congress could hope to score political points by defending persons who had massacred Americans—imagine a senator, outraged by the CIA’s waterboarding, seeking the release of Khalid Sheikh Mohammed. But emerging Cold War realities and large German–American constituencies in the Midwest made such grandstanding not just politically feasible but tactically shrewd.
In the absence of any real evidence of abuse—indeed, in the face of compelling evidence to the contrary—the calls for commutation and outright amnesty grew in volume. With the outbreak of war in Korea, the United States’ need to secure Germany as a reliable military ally trumped any misgivings about the premature release of war criminals. And so the members of combat group Peiper were spared the gallows and even lengthy prison terms. By Christmas 1956, the last of the convicted war criminals, Colonel Peiper, was a free man.
The Malmedy Massacre is not without its weaknesses: the writing is at best workmanlike and the narrative has its shortcomings. For instance, Remy offers no explanation for why 74 men stood trial, but only 73 verdicts were announced. (The answer: the prosecution of one of the accused, Marcel Boltz, was suspended when it turned out that Boltz was an Alsatian of French citizenship; Boltz was handed over to the French, who chose not to try him.) And Remy places McCarthy on Baldwin’s subcommittee when in fact the Wisconsin senator never actually served as a member but instead had received, as a courtesy, permission from Baldwin to attend the subcommittee’s hearings (which McCarthy then exploited to harass and hector witnesses). It is a small but curious mistake for a scholar who knows the case as intimately as Remy does.
All the same, The Malmedy Massacre is a solid account of history that current events have contrived to make exceptionally relevant. Remy could not have researched and written The Malmedy Massacre in anticipation of U.S. President Donald Trump’s politics of misinformation, yet he has delivered a sustained exploration into the creation, circulation, and ultimate acceptance of “alternative facts.” What makes this story particularly poignant is that Remy is not really telling us anything new. As he makes clear, the record had already been corrected by the Baldwin committee report nearly 70 years ago. What he documents, then, is the tenacity and durability of fake history. To those who subscribe to the pleasing shibboleth that the truth will always come out, Remy has delivered a disturbing counterexample.
Which returns us to O’Reilly. His on-air misstatements represented no more than an ironic confirmation of Remy’s account. Once the Malmedy story became about U.S. abuse, it was but one small step to complete the inversion and turn the victims into the murderers at the Baugnez crossroads. When confronted with his mistake, O’Reilly tellingly issued no apology or correction—instead, he simply modified his original claim, while still insisting that defenseless members of the SS had been murdered at the hands of their U.S. captors.
What, then, is the ultimate takeaway from the Malmedy story? Remy rightly observes that the “creation and perpetuation of self-serving myths about the past remains one the most powerful cultural and political forces in the modern world”—though one is left wondering why this should be unique to the modern word. And while his conclusion, that “unchallenged, such myths harden hearts and impede dialog and reconciliation between individuals, communities, and entire nations,” makes intuitive sense, it is a claim belied by the story he tells. At least in the case of relations between Germany and the United States, these “self-serving myths” ultimately worked to advance rather than impede the politics of Cold War cooperation. It may be hoped that willful distortions of the historical record inevitably come back to haunt those who craft and peddle such lies, but history, alas, often tells a different story.