According to Nobleman, the legal division faced an impossible challenge of creating a standardized system that would be reliant on regular officers rather than lawyers and would consistently produce the same consequences for the each offense. Procedures had to be simple and formulaic, thereby restricting judicial discretion to virtually nil, yet MGOs’ ability to adaptively govern had to be retained. Therefore, fundamental questions of criminal justice remained with these officers, including the offense charged and determination of guilt.100 Resolving these two conditions proved so vexing that planners fell far behind the progress of the war, and their indecision ultimately derailed the project. In April 1944, Eisenhower ordered them to provide new directives by D-Day in June. They had submitted nothing by September. Frustrated, his forces on the verge of invading of Germany, Eisenhower scraped the project, promulgated an MG Legal Code for Nazi Germany—Section 2M—and authorized frontline officers to follow a 1943 directive that maintained the military’s original approaches to law and order.101 These orders “authorized [MGOs] to establish such military courts for the control of the population of the occupied areas as may seem … desirable, and to establish appropriate regulations regarding their jurisdiction and power.”102 This 1943 directive reached back to a traditional American interpretation of martial law, instructing officers to “establish military commissions and provost courts to try inhabitants for offenses affecting the military administration.” The result was that MGOs were given carte blanche to do as they thought necessary to ensure security.103
American martial law was first established in Germany in September 1944 in the village Kornelimünster, on the Belgian border outside Aachen. Aachen was subsequently captured after a month-long battle through October that saw an American force of one hundred thousand waylaid by a German defense less than one-fifth the size.104 MGOs followed Eisenhower’s September orders and enforced martial law through tribunals that followed the two-tiered structure. Most were perfunctory trials before the local MG commander or his delegate lasting little more than a few minutes.105
The Allied advance in the west stalled over the winter of 1944–45, and for three months Aachen and its surrounds were the only areas of Germany under American and British control. American MG established strict martial law in the city and in the surrounding rural district, enforcing curfews and restrictions on travel. Bombing and subsequent fighting had destroyed much of the city, and looting and thievery occurred, but Germans mostly passively accepted Allied rule. The vast majority of offenses were minor violations of MG’s social controls including curfews and restrictions on unauthorized travel. The conviction rate was near 98 percent and punishments were harsh. The average sentence for violating curfews and travel bans was three months. Yet on the whole, occupied Germans behaved cordially as MG predicted. Locals were recalled to administrative posts and life returned to a semblance of peacetime normality.106
This rough-and-ready approach to occupation in Aachen quickly became a problem in the United States. Being the only part of Germany under American occupation, this toehold in Nazi territory drew media attention and then sustained criticism, surprising a military leadership used to patriotic support. In January 1945, a series of news stories describing the MG of Aachen’s overly accommodating embrace of Germans sparked public outrage.107 The stories originated with three officers from the Office of Strategic Services (the forerunner to the modern Central Intelligence Agency), Saul K. Padover, Paul Sweet, and Lewis F. Gittler, who discovered that Aachen’s MG detachment had appointed former Nazis and German elites (many of whom had profited from Nazism) to positions of power in the city’s government.108 Their Padover-Sweet report accused MG of facilitating the emergence of a “new elite” antithetical to American democratic values and the Allies’ transformational aims for Germany. The press attention concerned Eisenhower and sparked fears within SHAEF that other MG detachments would be investigated, making it difficult to justify expedience over social transformation. In response, Eisenhower ordered outspoken support for denazification and implementation of democracy in occupied Germany.109 Raymond Daniell of the New York Times pointed out a few months later that this rhetorical shift did not change MG practice on the ground. In fact, there remained a “vast difference between the avowed policy towards Germany enunciated at top and the manner in which it is administered at the level where it touches the German people.”110 While the war continued, MG detachments continued to operate like Hamilton in Nuremberg and Joublanc in Augsburg. They exercised control through local institutions staffed by Germans and, beyond removing overt Nazis, only barely considered administrators’ former Nazi affiliations. This maintenance of the arch-occupier approach aligned with instructions to restore basic infrastructure and government administration, suggesting that overt concerns about the unique dangers of Nazism were little more than a gloss on long-standing institutional thinking.111
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