having been thrown over the entire population,” therefore suggesting that every German police officer posed a threat to occupation security. This suggests a poor understanding of internal SS structures. Although all police fell under SS control—and ultimately that of Heinrich Himmler—the SD was SS intelligence and was not responsible for policing. But the authors of the Police Handbook appear to have used the specter of the SD to demonstrate the pervasiveness of Nazism.92 This view of Nazi Germany as different from other enemies was maintained in the Public Safety Manual of Procedures for Germany published in September 1944 on the eve of the first incursions into Germany. It adjusted MG approaches toward the specifics of Nazism so that enforcing order became suspending Nazi law, shutting down Nazi courts, and arresting Nazis.93
For the political establishment in Washington, however, Nazism posed a unique, existential threat to world peace such that Secretary of the Treasury Henry Morgenthau’s plan to permanently break Germany into four agrarian states was not especially radical. Although not adopted, the Morgenthau Plan was seriously considered within Roosevelt’s administration until early 1945 because it answered the American public’s and the Allies’ fear of Nazism and German militarism.94 In Britain, Lord Robert Vansittart’s plan was virtually identical, and British paymaster general Frederick Lindemann, First Viscount Cherwell, openly called for his government to support Morgenthau’s vision.95 The common thinking in Washington was only barely less extreme, and the consensus fell on using occupation to transform Germany into a peaceful member of the democratic Western world order.96
Transformational ambitions were the antithesis of the military’s approach to MG. The War Department and key generals like Eisenhower resisted MG’s becoming an agent for social change. But they agreed that American legal principles like due process separated Western democracies from arbitrary Nazi rule and should be emphasized during the occupation. Fair legal practice complemented the good governance required in the arch-occupier model. If Nazi concepts of state supremacy over law and justice were also undermined, then so much the better.97
American military government was predicated on honorable officers imposing the law fairly and justly, but the historical reality was quite different. Rather than viewing the law as a transcendent, impartial arbiter of behaviors, MGOs had historically tended to use martial law (through MG Legal Codes) subjectively in order to enforce their authority. This subjectivity was clearest in the promulgation of the occupation laws themselves, which were determined on a case-by-case basis by the theatre commander who tailored the military’s court martial code. Local commanders then enforced this specific law through a two-tiered tribunal system in which commissions handled minor offenses and provost courts tried serious offenses. They were free to interpret the legal code, allocate cases to different courts, and consequently assign punishments largely as they saw fit.98 Bringing greater equity in procedure and outcome to this system required entirely rewriting criminal justice policy, and from late 1942, the army recruited numerous civilian lawyers to standardize the MG Legal Code and tribunal system.99
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,
