Читать книгу The Art of Occupation - Thomas J. Kehoe - Страница 12

2 A Conflict of Visions?

In August 1941, a few months before the United States entered the war, Roosevelt and Churchill issued the Atlantic Charter, characterizing the “Nazi tyranny” as uniquely dangerous. In their view, its militarism and foreign aggression came from an aberrant history, culture, and even a deviant German psyche. This assessment of Nazism as an extraordinary threat to international peace became the Allies’ rationale for pursuing an occupation aimed at transforming Germany.¹ More than the British or even the Soviets, the Americans were eager to characterize a transformational aim through distinct policies, which became the five D’s of Germany’s occupation: denazification, demilitarization, decartelization, decentralization, and democratization. The five D’s clearly (if simplistically) identified key problems with Nazi Germany and offered straightforward solutions, an equation that resonated with Washington’s political establishment and the American public.

The extent to which the US military implemented the aims characterized by the five D’s has important ramifications for interpreting law and order in American-occupied Germany. One widely accepted interpretation dichotomizes Washington idealism and military pragmatism. The War Department and SHAEF are portrayed as staving off efforts to use MG to transform Germany. This narrative of civil-military conflict may explain key events including the Padover-Sweet incident in Aachen and Eisenhower’s promulgation of a military court system and legal code based in prewar thinking. For many historians, the conflict also goes a long way toward explaining why the American occupation appears fractious and disorganized.² Historians of MG tend to agree that the military rejected the more radical aims popular in Washington, viewing them as impractical and incompatible with traditional occupation strategies. MG’s mission was, in turn, sensibly limited to maintaining order and restoring infrastructure and local government.³

A binary framing masks important historical nuances, not least of all that US military officers including Eisenhower shared the prevailing view of Nazism, which necessitated a different type of war and occupation. There is important explanatory power in unraveling the nature of this civil-military division and the extent to which military versus civilian priorities shaped the course of the occupation.

The Pressures on Washington

World War II fundamentally changed the American view of the world beyond the United States. It broke down a tenacious culture of isolationism that existed through the nineteenth and twentieth centuries.⁴ The rise of aggressive regimes in Italy, Japan, and Germany in the 1920s and 1930s began to change popular thinking, though Americans’ and Congress’s fears of Nazism lagged behind international developments. Roosevelt and his administration had a better appreciation of the danger posed by Hitler. Yet through the 1930s, the president oscillated between idealistically believing he could quell Hitler’s expansionist desires with diplomacy and laying American fortunes with Britain and France. Through the second half of the decade it became clear to him that German aggression could not be abated. Even so, after Hitler created the Sudetenland crisis in Czechoslovakia in 1938 by claiming that the Czechoslovak majority was persecuting ethnic Germans, Roosevelt publicly endorsed the Munich Agreement negotiated by British prime minister Neville Chamberlain. In its wake, Roosevelt called for peace and even asked Italian dictator Mussolini to intercede with Hitler to achieve permanent stability in central Europe. In a private cabinet session, however, Roosevelt criticized the prime minister’s plan to appease Hitler by forcing Prague to cede its border territories to Germany.⁵

Isolationism prevailed within the United States despite these developments in Europe, and Roosevelt was hamstrung in 1938 by a stalwartly isolationist Congress. Through the 1930s, Congress repeatedly passed “neutrality pacts” preventing greater US involvement overseas.⁶ After the Munich Agreement failed to curtail Hitler and German forces occupied the entirety of Czechoslovakia, Roosevelt positioned the United States firmly on the side of the British and the French, casting any coming war as an ideological contest between “freedom” and “democracy” on the one hand versus militarism, authoritarianism, and unbridled expansionism on the other. For the president, Hitler’s aims threatened to unwind in Europe the very idea of national inviolability as espoused in international law and subordinate the continent to German power.⁷ Roosevelt committed the United States to becoming the “great arsenal of democracy,” the financial—if not military—protector of the existing world order, at least in Europe and parts of the Americas.⁸

The outbreak of European war in 1939 did not end isolationism, and Roosevelt was forced to maintain a “short of war” strategy in which the United States aided Britain and France without providing troops.⁹ A slim majority of Americans supported war against Nazi Germany and Imperial Japan before the attacks on Pearl Harbor; it would take the surprise by the Japanese, followed by Hitler’s and Mussolini’s quick declarations of war against the United States, before the public’s opinion turned decisively and motivated congressional support for intervention.¹⁰ The realization that war could reach US territory terrified ordinary Americans, shaking their belief that they were separated from the machinations of major powers in Europe and Asia. In the wake of Pearl Harbor, people from California to New York, and across the Midwest, took steps to protect themselves from highly improbable Axis bombing and invasion. These fears drove punitive measures against so-called enemy aliens: Italians, Germans, and—notably—Japanese within the United States. On 19 February 1942, Roosevelt issued Executive Order 9066, which ordered the detention of nearly all Japanese people in the United States on suspicion that they maintained allegiance to their ethnic homeland and endangered US security.¹¹

New ideological enemies redefined the measure of victory. In the great moral contest that Roosevelt described, victory could not be brokered or diplomatically mediated. Polls from 1942 show that the majority of Americans believed defeating the Axis powers meant destroying Nazism and Japanese militarism and fundamentally changing both societies. A significant minority desired vengeance and even something like genocide; 13 percent wanted to “annihilate” all Germans, and 15 percent sought the destruction of the Japanese people. Similar minorities hoped for some sort of overt punishment of Germans and Japanese (20 percent and 14 percent respectively), though what this meant in practice remains unclear. For Roosevelt, such a rapid turn in attitudes meant there was no politically viable end to the war in which a Nazi government or Imperial Japanese regime survived, whether he would have accepted it or not.¹²

A new US standard for victory aligned with feelings in Britain and the Soviet Union, both of which had already suffered terribly before the United States entered the war. Of the two, the Soviets had and would suffer the most. The Nazis were waging an explicitly existential war against them that would ultimately result in approximately twenty-five million Soviet deaths. In 1941, with German forces on Moscow’s doorstep, Stalin faced the real prospect of seeing his nation, communism, and even himself destroyed.¹³ Moreover, the Nazis intended to either exterminate or subjugate all the Slavic peoples that fell under their control.¹⁴ Although the British would not suffer anywhere near this level of destruction, they had experienced the ignominy of repeated defeats through 1940 and 1941. The Germans drove the British Expeditionary Force back across the English Channel in 1940 when France fell and had beaten them across North Africa and defeated them in Crete and mainland Greece. Although victory in the Battle of Britain helped prevent German invasion in 1940, the British Isles were in constant danger of being isolated and starved by a concerted U-boat campaign. For both Churchill and Stalin, these experiences of unbridled German aggression required a reciprocal response.¹⁵

At the Casablanca Conference in January 1943, it was Roosevelt who first articulated the Allies’ objective of total victory over Nazi Germany. At the conference, the three Allied powers agreed to portray the war as an ideological conflict with Nazism, to seek its annihilation, and to demand Germany’s unconditional surrender. The framing was mostly rhetorical. An alliance between the United States and Britain on one hand and the Soviet Union on the other was in reality based in brute national interest that only barely overrode ideological enmities. Nonetheless, a desire for Germany’s unconditional surrender facilitated agreement on remodeling the country’s politics, societal structures, and even culture during a postwar occupation, even if the scope and nature of a postwar Germany and world order remained undefined.¹⁶

Their objectives were marginally clarified on 1 November 1943 when, after a series of meetings in Moscow, a European Advisory Commission (EAC) was established to oversee intergovernmental planning for Germany’s occupation. Though in reality little more than diplomatic window dressing, the EAC crystallized the Allies’ shared intention to transform Germany into a nonaggressive, democratic member of the international community, and it laid the groundwork for a three-power Control Commission in which the United States, Britain, and the Soviet Union would jointly govern Germany after the war. Fundamental questions on how transformation would occur, what it meant, and even what “democracy” meant remained unanswered. This lack of shared understanding on crucial issues hampered coordinated planning. The three Allies also had fundamentally different perceptions of Nazism’s root causes, the Soviets viewing it as unbridled capitalism and the British as imperial competition. For the Americans, Nazism was the inverse of Jeffersonian-style democratic capitalism.¹⁷

The Allies were clear, however, about their desire to replace Nazism, agreeing that it was an expression of systemic cultural and moral deviance in Germany, though without agreement on fundamental questions about the cause of Nazism and the character of a transformed Germany, their only agreement was that some form of radical transformation should be enacted. Political scientist Adam Roberts has recently labeled this sort of forced change through military occupation as “transformative occupation,” a concept that originated with the Allies during World War II, though none of them (nor the US military) used the term.¹⁸ Defining such an occupation as distinct from nation-building, postconflict reconstruction, and straight military occupation remains a challenge. Roberts’s definition of such projects as “[those] whose stated purpose (whether or not actually achieved) is to change states that have failed, or have been under tyrannical rule” is useful, but we can go further.¹⁹ A transformative occupation fuses the other three missions (nation-building, reconstruction, and military occupation). Following conquest, victorious states seek to reconstruct anew a conquered state through an occupation that is militarily enforced (or at least military-backed), which necessitates addressing all aspects of governance and building a new nation while subjugating the occupied people.²⁰ For Roberts, the occupier’s vision is paramount to isolating transformative occupation as a discrete event. It is characterized by viewing as feasible the ability to forcibly change a state’s character in fundamental ways, which separates it from simple occupation, reconstruction, and even nation-building based on existing social and societal infrastructure. The Allies tacitly agreed on this more radical interpretation of the occupation of Germany. They sought not merely to end Nazism, but to create an entirely new state.²¹ They agreed to remove the existing political, social, and cultural structures and replace them so as to refashion the very character of Germany.

The Military’s Approach

Shortly after the Nazi surrender in May 1945, the outspoken General George Patton questioned Eisenhower over the reach of denazification, arguing that the program was removing too many decent German administrators. Patton was the hero of the North African campaign, the capture of Sicily, and the Battle of the Bulge, but he had also earned a reputation for indiscretion and impulsiveness, and both were on display here. Eisenhower disagreed: “Victory is not complete until we have eliminated from positions of responsibility and, in appropriate cases, properly punished, every active adherent to the Nazi Party.” For the SHAEF commander, Nazism was more than a distasteful set of political views; it was a morally and mentally corruptive system of state control that had infected Germany and required excision.²² This view accorded with the prevailing attitude in Washington, but Patton disagreed and, in September 1945, publicly criticized the program as misguided and likened members of the Nazi Party to Democrats and Republicans.²³

Patton’s assertion appeared to absolve many Germans of the regime’s crimes, which was profoundly distasteful for Americans within and outside the military, and he was made to apologize for it. Patton may have been indiscrete, but his opposition to denazification exemplified one strand of thinking within the US officer corps. In this view, the occupation of Germany was little different from other US occupations and existing strategies could be employed successfully. Moreover, transformative aims did not align with the arch-occupier—“minimum change … maximum control”—approach. This position was not easily reconciled with the popular hatred of Nazism that many (if not most) US officers shared.²⁴

The tension between pursuing transformative ends and taking a more traditional approach to MG played out on the ground in Germany as MGOs took radically different actions. Some MGOs in Patton’s mold were pragmatic and eschewed denazification, while others eagerly removed Nazi Party members and sympathizers. Both approaches were problematic, and MGOs struggled to find the right balance. The retention of former Nazis created animosity among DPs and non-Nazi Germans, but removing too many people left administrations understaffed. The MG commander in Dachau district, on the outskirts of Munich, described in his diary a debate with the local German regional administrator about the nature of government. The German opposed Nazism yet claimed to support “benevolent dictatorship” because the masses lacked good judgment.²⁵ The nature of Nazi governance had been the problem, in his view, rather than its particular racial, dictatorial vision. Therefore, the Americans could retain former party members who accepted the new regime.²⁶ This was a disturbing position for the American officer to face, not least of all because the region was home to the infamous original Nazi concentration camp, which was publicly opened in March 1933, shortly after the Nazis gained power. The American officer’s forceful disagreement appears to come from an understanding of this history. He argued that removing Nazis was necessary for securing democracy. But he added a caveat, acknowledging that for the US military, ideological transformation of Germans came second to the establishment of security and order.²⁷

MGOs across the zone echoed this preference for order and security. During the first eighteen months of the postwar occupation (1945–46), most district MG commanders reiterated Eisenhower’s sentiments while actually prioritizing stability of government. This divergence between action and rhetoric stemmed from tension in the military’s approach to occupation and, in turn, from the instructions MGOs received. Military planners had spent three years from December 1941 attempting to balance the perceived uniqueness of the Nazi threat against existing American strategies for MG. Their initial plans reflected an understanding of how American occupation was previously conducted during the nineteenth and twentieth centuries, ideas initially codified after World War I.²⁸ Planners focused on short-term, wartime pacification of the enemy to protect frontline operations. The SHAEF Handbook for Military Government in Germany: Prior to Defeat or Surrender retained this limited approach despite being published in December 1944, after the invasion of Germany was underway. The “prior to defeat or surrender” addendum expressed the planners’ continuing effort to distinguish wartime occupation from postconflict governance. In their view, MGs existed to assist combat operations. MG detachments ensured social order and prevented resistance. Restoring local government and a semblance of normal life was only important insofar as it supported this primary objective.²⁹

Separating wartime strategies for MG from postwar governance allowed planners to maintain the American myth of apolitical occupation in which US military operations overseas were different from European imperialism. In this self-glorifying narrative, the United States was a liberationist world power, projecting force only out of vital necessity, even in co-opted European colonies like the Philippines, Cuba, and Puerto Rico.³⁰ This division allowed military strategists planning for the occupation of Nazi Germany to avoid thinking about postwar concerns, which were pushed onto the State Department, the intended leader of Germany’s social, political, and cultural transformation.³¹

In the past, there had been good practical reasons to separate wartime occupation from postwar aims. The US military was historically small compared to its European counterparts, and prior to World War II regular combat units primarily conducted occupation. The US military had therefore sought to minimize the number of soldiers employed in rear areas in order to maintain frontline combat effectiveness. From the Rhineland experience after World War I, Smith recognized that this minimalist approach was little different in practice from the colonial models used by the British and the French.³² And when assessed as purely military operations together with all the British and French experiences, minimalist occupations appeared to have a long record of success.³³

At the beginning of World War II, American planners imagined a limited occupation of dissected German territory similar to the previous Rhineland operation. The decision to pursue total victory over Nazi Germany dramatically enlarged the scope of MG to replacing the existing government and remaining for a potentially indefinite period of time. It was not a mission that planners were conceptually prepared for, and as documents like the SHAEF Handbook for Military Government in Germany indicate, they never really shook the Rhineland case as a working model. Most precedent in American history involved asymmetric, colonial-style endeavors, in action if not in name. The best analogue for the planned conquest of Nazi Germany was the Union’s occupation of the Confederacy during and after the Civil War. In that case, however, the Union officers’ understanding of Southern government and a shared language minimized cultural challenges. The Civil War was about reincorporating US territory. And such was the cultural affinity felt for the South that it was only after considerable debate within President Lincoln’s administration that he ordered the Confederate states be treated as foreign territory for the purposes of occupation by Union forces, which included abrogating local law and imposing martial law.³⁴

The thinking of men like Barrows at the School of Military Government in Charlottesville offered a possible solution to bringing an expanded occupation of Germany into line with the military’s existing approaches to MG. Barrows and men like him—many of whom ended up teaching at Charlottesville—argued that despite the military’s best efforts to conceptually separate martial rule during wartime from postwar governance, American forces had in the past been involved in numerous engagements that continued after combat ended. The US military therefore already had available a suite of strategic options for postwar occupations. For Barrows, the question of wartime versus peacetime military occupation could be reformed to “discussion … of the termination of military government,” which he noted could “only be done by Congress”; until then, however, “military government continues.”³⁵ This interim period before MG ended became what Charlottesville instructor Joseph Harris called a “breathing spell,” a period of months or even years after the end of open warfare when MG remained and prepared for the assumption of civilian control.³⁶

Barrows acknowledged that even when the scope for MG was expanded, the military’s adherence to remaining apolitical was a problem. In existing thought, a military governor “[could not] create civil government,” Barrows noted, because “this right is reserved for civil power.” But he argued that there was “no doubt” that a military governor’s “authority and powers … continue undiminished into the period of peace following war and until Congress itself provides otherwise.” As a result, the governor was implicitly (if not explicitly) vested with responsibility for more comprehensive governance during the interim period. Barrows showed that the civil-military division so ardently advocated in American MG strategy had been violated repeatedly when it benefited the United States. During the Mexican-American war for example, the military governor of the then-occupied Mexican territory of California organized its application for US statehood by calling civil delegates and holding a constitutional convention. And in later years, commanders in Guam and American Samoa took similar political actions.³⁷

Military planners partially adopted Barrows’s style of thinking, defining four phases of MG beginning with wartime occupation and followed by postconflict (transitory) military governance, postwar military administration, and finally, postwar civil administration. The overarching objectives throughout remained to ensure social control and prevent resistance, but MGOs were instructed to expect different social conditions in each operational phase as their subsidiary priorities changed accordingly. According to Harris, the first phase retained the traditional aims of MG: “maintenance of law and order, the protection of our troops … and the advancement of the military mission [were] the primary and practically the only considerations.” During the second transitory period, MGOs were “to restore the normal governmental services and … encourage citizens to proceed with their normal activities.” During the postwar military administration, MG was to “operate on a stable and more long-range basis,” addressing “administration and reconstruction” in place of civilian government, which then ultimately assumed responsibility for the fourth phase.³⁸

The progression of MG in Germany would approximately adhere to these four phases, though Barrows and Harris were aware when presenting their ideas in 1942 that overtly declaring the potential political ends of American occupation remained unpopular within the military. The desire to view MG as a strategic operation was so strong that it led to confusing positions on seemingly straightforward issues. On the question of occupying formerly German-controlled “neutral territory”—such as French, Belgian, and Dutch lands—the military recognized that civilian governments could not immediately be restored and that military priorities would remain paramount during ongoing war. The simple answer was to view such areas as liberated war zones until enemy action was pacified. But subjecting allied peoples to martial rule was contrary to the liberationist aims of the war. In the Judge Advocate General (JAG) office’s Law of Belligerent Occupation from June 1944, the writers took pains to show how occupation of such “neutral” space could be legitimate under existing international law. They also concluded that it was easier to presume that if MG existed, then so did a state of war. For the purposes of martial law, liberated Allies were to effectively be treated the same as occupied enemies.³⁹

Harris acknowledged the institutional resistance that drove such counterintuitive conclusions in his class at Charlottesville and forced the extended four-phase concept of MG into the existing binary civil-military division, telling students: “Another classification, which may be more logical, is to divide military government into two phases: 1) the phase in which military considerations are paramount; and 2) the phase in which military considerations are no longer paramount.”⁴⁰ Such reasoning allowed MG to exist during the transition from combat to liberation and also during the restoration of the former status quo in liberated, non-enemy states. It was a difference without real distinction for the trainees, beyond paying deference to the prevailing wisdom that continued to shape MG strategies. MG existed where war and danger remained, and the same principles of pacification and control were paramount.⁴¹

The attempt to confine MG to the period before the restoration of civilian control and also tailor it to a total occupation of Nazi Germany led to quixotic contradictions in the instructions for MGOs. These were subtle, yet apparent, in the 1943 edition of FM 27-5, which for instance obtusely states: “Military government may extend beyond [military] operations until it achieves the ends of national policy towards which the operations are directed.”⁴² The manual predicted that officers would likely face more difficult postconflict conditions than previously expected but advised that they rely on existing strategies for implementing control, which included retaining “local laws, customs, and institutions of government … except where they conflict with the aims of military government or are inimical to its best interests.”⁴³ This meant that “so far as is practicable … subordinate officials and employees of the local government” were to be retained, which in Germany nearly always meant former Nazis of some stripe.⁴⁴

The contradictions were more glaring in handbooks dealing explicitly with Nazi Germany. In the preamble to the Public Safety Manual of Procedures, Lieutenant General A. E. Grasett, the assistant chief of staff for SHAEF, tried to straddle the competing problems of a limited scope for MG and the annihilation of Nazism. On the one hand he wrote, “The maintenance of law and order is the keystone to the whole problem of an efficient Military Government, and it is therefore desirable that as early as possible, the civil public safety agencies should be reorganized and controlled so that they will cooperate fully.”Yet on the other hand he continued, “Since, however, the Nazi Party have made the German police their main instrument for imposing their will upon the German people, the responsibilities of Military Government Public Safety Officers for purging, reorganizing, and controlling the German police will be particularly heavy.” There was no provision for how an MGO was to rectify these seemingly contradictory demands.⁴⁵

The manual’s attempts to balance competing demands had particular import for law enforcement. The War Department recognized that denazification would diminish the police force and create gaps in other important government agencies. It therefore instructed MGOs that “police vacancies must be filled at once” to ensure good order. “Responsibility” for staffing was to go to the German “temporary head of the police force,” who would presumably avoid hiring former Nazis.⁴⁶ The writers recognized that finding politically untainted German police officers would be nearly impossible given that government positions in the Nazi state mostly required party membership. Yet a reconstituted German police force was necessary to achieve law and order and, in keeping with a strategy of indirect rule, would “be responsible for the day to day maintenance of civilian law and order” including “the detection and investigation of crime.” Decisions about the ideological corruption of each police officer would therefore have to be made on a case-by-case basis and were also subordinated to ensuring occupation security. By retaining the final decision, MGOs and the German police they selected were thus vested with virtually unfettered control over the extent and progress of political transformation.⁴⁷

This conflict over policing extended to contradictions between manuals. The German Police Handbook painted an insidious image of Nazi corruption of the entire police force.⁴⁸ While recognizing the potential danger posed by police, the Public Safety Manual explained that “a policy of decentralization of command and democratic control [could not] be put into complete operation in the early stages of occupation.” It described the existing “German police machine” as “efficient” and therefore useful. Police units were to be “left unchanged except as necessary to remove Nazi adjuncts and influences or to facilitate the imposition of Military Government control.”⁴⁹

Other manuals also incorporated this contradiction between the requirements of denazification and ensuring security. The opening chapter of the Handbook for Military Government in Germany outlines seven objectives for MG, starting with “imposition of the will of the Allies upon occupied Germany” and the “elimination of Nazism, fascism, German militarism, the Nazi hierarchy, and their collaborators.” “Restoration and maintenance of law and order” was ostensibly secondary and only important “insofar as the military situation [permitted].” The handbook goes on to order a punitive regime for Germany, “always [to] be treated as a defeated country and not as a liberated [one].” MGOs were even meant to refrain from “steps … toward economic rehabilitation,” and “no relief supplies [were to be] imported or distributed for the German population.” Moreover, “under no circumstances [were] active Nazis or ardent sympathizers [to] be retained in office for the purpose of administrative convenience or expediency.”Yet the very next line equivocated: “Although the Nazi Party and all subsidiary organizations will be dissolved, administrative machinery of certain dissolved organizations may be used when necessary to provide essential functions, such as relief, health, and sanitation, with non-Nazi personnel and facilities.” Left unspecified was where the people and facilities to operate these resurrected organizations would come from, as were the conditions under which punitive measures were to be overridden in favor of “relief” efforts.⁵⁰

The ambiguity in the instructions that MGOs received ultimately vested them with extensive discretion in governance. Clearly they were to pursue prescribed objectives such as arresting Nazis, shutting down German courts, suspending Nazi law, and restoring basic infrastructure and governmental administration; but they could also decide how to achieve these ends. Their shared understanding of MG as essentially a system of laws and their fixed objective to restore and ensure order—whether to protect the front during wartime or “win the peace” afterward—provided the keel for an approach that invited (and indeed almost lauded) variation between commands.⁵¹ Extensive discretion was in keeping with the traditional practice of US military occupation, in which theater commanders retained virtually unfettered power and delegated this authority to officers below them. These officers in turn exercised nearly total control over their respective regions. The military touted as a virtue this hierarchical delegation of authority to officers on the ground because it provided them the flexibility to deal with the unique circumstances.⁵²

A new MG court system provided a unifying framework for all SHAEF occupation forces entering Germany from December 1944; this included the British and the Americans until SHAEF’s dissolution in July 1945. There was still hope within SHAEF of creating a unified legal procedure following failure of the legal planners in September 1944, and the Americans briefly revived their two-tiered provost courts. British legal planners had previously suggested, in 1943, reshaping their colonial courts for the occupation. Such courts were less overtly military, they argued, and even if in practice little different from American martial courts would provide some change from the Nazi approach to criminal justice. SHAEF ultimately adopted the British three-tiered system in October 1944, using the colonial rather than military names—summary, intermediate, and general—and applied it to all MG commands in the west, which later included the French. Americans continued to intermitently use provost courts until February 1945.⁵³

Summary courts were for minor offenses and were the most common type of court established. A single officer sat as judge, and every person arrested was required to have an initial hearing in these courts. The judge-officer decided whether to adjudicate the case and could impose sentences of up to one year in prison, fines, or both. He could also refer more serious cases to the higher courts. The intermediate courts were the next highest and required a panel of three judges. These courts adjudicated serious but noncapital offenses and could impose sentences of up to ten years’ imprisonment, fines, or both. The highest courts, the general courts, also had three judges and heard the gravest crimes. They could impose any fine, term of imprisonment, or death.⁵⁴ In the American Zone there were approximately 343 MG courts operating when the war ended, though given that officers retained the power to establish and dissolve them as needed, there may have been others for which records are lost.⁵⁵ The Americans, the British, and the French maintained these courts in varying forms through the end of the military occupation in 1949. In the American and British Zones, the MG courts formed the primary criminal justice system between 1944 and July 1946, after which responsibility was steadily ceded to German courts. Thereafter, the MG courts continued to hear serious cases that German courts could not, such as threats to occupation security, and cases involving DPs and Allied personnel.⁵⁶

Eisenhower’s MG Legal Code was similarly employed across the west. It was shaped by the Allies’ fear of German resistance, and although the German Criminal Code of 1871 remained in force to prosecute standard crimes, the specially promulgated MG code provided means of intensifying restrictions over Germans.⁵⁷ There were three primary articles, the first of which listed twenty offenses for which a death penalty could be applied. The second included twenty-three acts where the maximum punishment was any fine or term of imprisonment up to and including life imprisonment. The third article established criminal culpability for conspiracy, a new offense in Germany that was designed to curtail resistance activities and help prosecute Nazis for their complicity with the regime’s crimes.⁵⁸

Beginning with “espionage,” many of the twenty capital offenses in Article I nominated clear acts of resistance: “2) Communication with enemy forces”; “4) Armed attack on, or armed resistance to, Allied Forces”; “9) Unlawful possession of a firearm”; and “14) Sabotage of any war material of the Allied Forces.” The remaining offenses could have either facilitated resistance or in some way damaged the Allied administration: “12) Assisting any member of the enemy forces to avoid capture”; “15) Willful destruction, removal, interference with, or concealment of, records or archives of any nature, public or private”; and “19) Stealing, or obtaining by fraud, property of the Allied Forces.” The first twenty offenses also conceptually linked acute social disorder to potential resistance. “Plunder, pillage or looting” (Art. I, Sec. 16) and the “incitement to, or participation in, rioting or public disorder” (Art. I, Sec. 18) were both potentially capital crimes.⁵⁹

Many of the twenty-three noncapital offenses listed in Article II were generic prohibitions against conduct more regularly considered criminal such as “counterfeiting” (Art. II, Sec. 27), “bribery” (Art. II, Sec. 29), and “resisting arrest” (Art. II, Sec. 38). But the antipartisan focus was evident in these regulations as well. Each MG detachment commander was to announce curfews for which violation was criminal (Art. II, Sec. 22). Similarly, “failure … to have possession of a valid identity card” (Art. II, Sec. 25) was criminalized, along with “dissemination of any rumor calculated to alarm or excite the people or to undermine the morale of the Allied Forces” (Art. II, Sec. 40). In the same vein, “defacement or unauthorized removal of written or printed matter posted under authority of Military Government” (Art. II, Sec. 35) was also illegal; such behavior defied Allied authority and could ignite wider discontent.⁶⁰

Restricting liberties allowed MGOs to confine and regulate Germans, an emphasis in the MG Legal Code that was further elaborated by the inclusion of catchall laws Sections 21 and 43.⁶¹ Together, the MG Legal Code and court system gave MGOs the means to articulate the near unfettered power invested in them by command. MGOs could in turn pursue the twin aims of immediate security and the transformation of German society, though they were never to sacrifice the former for the latter.

Practical Concerns

Early in the planning process it became apparent that the State Department was not capable of assuming responsibility for the occupation when the war ended. MG would continue in Germany for an undetermined period of time. At the beginning of April 1945, Roosevelt rejected Morgenthau’s plan to permanently dismantle Germany. The president died shortly after on 12 April, but the imperative for transforming Germany remained.⁶² Within four days of Roosevelt’s death, new president Harry Truman approved Joint Chiefs of Staff Directive 1067 (JCS 1067), which outlined a radical plan for denazification and demilitarization to be carried out by the military in the imminent transition from war to peace. This directive was the final fusing of political and military views into a formalized policy for Germany. Although not as draconian as Morgenthau’s plan, it nevertheless carried forward the same basic perception that, in the words of contemporary US Army historian Harold Zink, “the German people [were] a menace to humanity and guilty of crimes,” and it extended the military’s wartime priorities into the postwar occupation.⁶³ Though the Americans would help restore a unified and industrialized Germany, JCS 1067 authorized sweeping changes to the perceived cultural underpinnings of Nazism, including the attempt to achieve what David Large calls the “demilitarization of the German mind.”⁶⁴

JCS 1067 required the dissolution of all Nazi institutions, disbandment of military and paramilitary formations, and removal from public positions of power “all members of the Nazi Party who [had] been more than nominal participants.”⁶⁵ This order extended beyond government to positions in civic leadership and business. The directive also established a structure for Germany’s democratization. The school system was to be denazified by changing textbooks and the curriculum.⁶⁶ Decentralization was particularly important to the Americans and their approach to policing. The Americans believed that the Third Reich’s centralized state police strengthened the regime. Policing and law enforcement more broadly were devolved to the MG districts, which neatly allowed existing military strategies to dovetail with the transformative agenda.⁶⁷

The State Department remained the intended agency to ultimately enact Germany’s transformation from Nazism to democracy. But the State Department would not assume control until September 1949, when the High Commission for Occupied Germany (HICOG) was formed. The military held power until that point and, whether explicitly intended or not, was at the forefront of transformative occupation. This reality only exacerbated the practical and philosophical problems that military planners had grappled with throughout the war. During the phase of direct military control over the occupation (from the invasion of Germany in October 1944 to July 1946), small MG detachments were required to govern large German city and rural districts virtually autonomously and were therefore reliant on local administrators and police, all of whom had in some way been affiliated with the Nazi regime. Later, as German administrations increasingly gained responsibilities for governance under American oversight, occupation security remained paramount and the balancing of security and stability with transformation remained.⁶⁸ American MG consistently prioritized occupation security as a necessary precursor to societal change, even if it rarely articulated this reality openly.⁶⁹