style="font-size:15px;"> 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
