The Nazi Hunters (16 page)

Denson staunchly defended the Dachau trials right up to his death in 1998, arguing that they were as fair as they could be under the circumstances—and absolutely necessary. While insisting he took no special pride in the convictions he won and the death penalties that were carried out, he told a class at Drew University in 1991: “
There is something, however, that does create a sense of pride in my heart. When a survivor comes up to me and says, ‘We thank you for what you’ve done for us.’ ”

Ferencz and Denson had much in common: they were both young men when they prosecuted what would prove to be historic cases against those who had implemented the most draconian decisions of Hitler’s regime. They believed in the notion that those who murdered and tortured at will had to pay the price for their actions. This was both to set a precedent for future generations and for the sake of their victims who deserved nothing less, as Denson indicated—and Ferencz certainly agreed.

But Ferencz has always insisted his Nuremberg trial, far more than the Dachau trials or any subsequent efforts to bring Nazis to justice, achieved those aims. The men he convicted, he argues, were “
majors and colonels who shot thousands of people every day, thousands of children,” he points out. There was no need to talk about “common design” since there was well-documented evidence of how they carried out those mass killings. And these weren’t just the trigger men, but the commanders of the units full of trigger men. As far as he was concerned, this set the bar as high as it could go.

Ferencz had a strong case, but his attitude also betrays a trait that would become increasingly visible among the relatively small group of people who would become known as Nazi hunters: their tendency to see their own efforts as always the most important, and to question—and often denigrate—the performance and, at times, the motives of others in the same field.

Ironically, though, several of the Einsatzgruppen leaders benefited from more leniency than the “
lesser Nazis,” as General Clay called them, who were tried in Dachau.
Despite growing pressure to drastically reduce many sentences, Clay stood firm in early 1949 when he reviewed the cases of Ferencz’s twenty-two Einsatzgruppen commanders, reaffirming all thirteen death sentences.
But then John J. McCloy, a Wall Street lawyer who had served as assistant secretary of war, replaced Clay and took the title of U.S. High Commissioner. In 1950, he set up an Advisory Board of Clemency to review the sentences in the Einsatzgruppen case and other trials. With Adenauer and others pressing for the commutation of all death sentences, both the advisory board and then McCloy moved to accommodate them—if not fully, at least to a large extent.

In early 1951, McCloy accepted almost all the recommendations of the advisory board and even made further reductions in the terms of some of those in prison, while commuting more death sentences than it had suggested. In the end, he only upheld four of the thirteen death sentences in Ferencz’s Einsatzgruppen case. With the major power rivalry intensifying, the priority was to line up West Germany as an ally in the struggle against communism. McCloy believed he had nonetheless
defended the principle that some crimes were too big to allow for mercy by holding fast on the four men from Ferencz’s trial. They were hanged on June 7, 1951.

Telford Taylor, Ferencz’s boss who had made the closing argument in the Einsatzgruppen case, branded McCloy’s actions “
the embodiment of political expediency.” Ferencz, who had never specifically asked for the death penalty, was more understanding, pointing out that McCloy’s training as a business lawyer never included condemning men to die. “
To sign a paper saying, hang them, I knew he had difficulty with that,” he said. But he added that “if punishment was imposed for good reason, it should not be reduced without good reason. In most cases there was no good reason that I was aware of.”

In a letter to Ferencz in 1980, McCloy hinted at second thoughts about his decision. “
If I had all the facts I now have, I might have reached a more just result,” he wrote. By 1958, all the remaining Einsatzgruppen leaders who were convicted at Nuremberg were out of prison, including those who had been initially sentenced to death. They, like so many of their former partners in mass murder, lived out the rest of their lives as free men.

After “the biggest murder trial in history,” Ferencz had no desire to continue prosecuting war criminals. He turned his attention elsewhere—namely, to seeking material assistance for the survivors. With the help of both Clay and then McCloy, who provided initial loans to set his plans in motion, Ferencz named himself director general of the Jewish Restitution Successor Organization “
to impress the Germans with a title,” he recalled. He hired staff and sent them to real estate registries around the country with instructions to claim any property transferred after 1933 or that listed a Jewish name. Next he helped set up the United Restitution Organization with offices in nineteen countries, and involved himself in complex negotiations with Adenauer’s new government, other countries, and numerous victims, not only Jews. Ferencz stayed with his family in Germany until 1956 to continue this work, and all four of his children were born in Nuremberg.

While Ferencz stresses that it took a long time for many Germans
to shed their anti-Semitism and acknowledge their victims, he was impressed by the willingness of the new German authorities to begin what would be an unprecedented effort to compensate them. “
It never happened in history that a country paid its victims individually—inspired by Adenauer who said terrible crimes were committed in the name of the German people,” he pointed out.

But it was his role as the chief prosecutor in the Nuremberg Einsatzgruppen trial that fueled the passion that has continued to consume him into his tenth decade. At every opportunity he has argued that conflicts must be resolved through “law not war,” and urged support for the International Criminal Court.
On August 25, 2011, Ferencz delivered the closing argument in the Court’s first trial in The Hague, the case against Thomas Lubanga Dyilo, a Congolese rebel leader accused of recruiting child soldiers. Ferencz was ninety-one when he spoke on that occasion, invoking the lessons of Nuremberg. In July 2012, Dyilo was found guilty and sentenced to fourteen years in prison.

Today, Ferencz is dismissive of the value of pursuing some of the cases against aging, relatively minor Nazi camp guards and officials. “
Forget it,” he said. “For Christ’s sake, I’d throw those small fish back into the pond.”

Most Nazi hunters who followed Ferencz took a different view, rejecting his notion that only Nuremberg-level defendants merited prosecution. That would effectively provide immunity to the vast majority of mass murderers. Ferencz argued that he still wants to ensure that big fish from any era are held to account, providing an example for the whole world to see—even if, in the case of the Nazis, he continued to insist that his fish were almost the only really big ones.

• • •

A big part of the motivation for holding the war crimes trials was exactly that: to provide examples of justice at work for the whole world to see. By presenting the record of the Third Reich, aggression by aggression, mass murder by mass murder, atrocity by atrocity, the trials were critical to establishing exactly what had happened—and establishing the principle that the perpetrators bore direct responsibility for those crimes, whatever they understood their orders to be.
To make sure that the evidence
reached a broad audience, the Allies represented at Nuremberg set up a film unit that was supposed to lead to the joint production of a documentary about the International Military Tribunal proceedings against the major defendants.

Not surprisingly, the American and Soviet representatives could not agree on a common approach, and those two victors decided to make separate documentaries. But more startling was the fate of their respective efforts: the Soviets produced a film that they distributed relatively quickly, while the American filmmakers were immediately caught up in fierce internal battles about what kind of documentary they should make—and, ultimately, were blocked from showing the result of their labors in the United States. After it was shown in Germany in the late 1940s, the American film, which was called
Nuremberg: Its Lesson for Today
, was largely forgotten.

The reason for the film’s consignment to seeming oblivion: it was not completed until 1948, the year when Washington’s political priorities had shifted dramatically. “
The Cold War was the major factor, because we were investing in rebuilding Germany,” said film producer Sandra Schulberg. “It became really inconvenient to rub people’s noses in the story of the Nuremberg trial and the Nazi atrocities when you were trying to bring Germany back into the European community.”

Schulberg was born in 1950 but has a direct personal connection to the documentary. Her father was Stuart Schulberg, the film’s writer and director, who had joined the Marines after Pearl Harbor and was assigned to the OSS film unit, headed by the famed director John Ford. His brother Budd Schulberg, already a successful novelist and later the writer of the Academy Award–winning script for
On the Waterfront,
had enlisted in the Navy and was also assigned to the OSS film unit. Both of them ended up racing around Germany and its former occupied territories searching for incriminating Nazi footage right after the war.

The Nazis had sought to destroy much of that celluloid evidence, and the Schulbergs found themselves ordering the Third Reich’s former enforcers to help them collect what was left. In the northern Bavarian town of Bayreuth, Stuart and his small team commanded resentful SS prisoners
to prepare a large stash of film footage for transport. Two GIs stood guard with their guns pointed at them as they loaded the heavy crates. “
They still had their black uniforms on, and their cocky little overseas hats,” Stuart recalled. “The Aryan SS-ers were suffering—we could see that. Whenever they got orders from us, their lips curled a little. It reminded me of the tigers and lions who perform in the circus ring, obeying in a sullen, whipped, mad way.”

Such footage proved extremely valuable to the prosecutors at the Nuremberg International Military Tribunal, allowing them to strengthen their case by showing dramatic images. The OSS produced
The Nazi Plan
, a history of the National Socialist movement, and
Nazi Concentration Camps
, using film shot by U.S. and British troops as they liberated the camps. When screened at the trial, the latter film, in particular, stunned even the defendants.

After he was discharged in late 1945 and returned to the United States, Budd Schulberg declined an offer to write the script for the American film about the trial itself, suggesting Stuart instead. Pare Lorentz, known as “FDR’s moviemaker,” was the head of the War Department’s Film, Theater and Music section and in that capacity took charge of the Nuremberg project. Taking up Budd’s suggestion, he asked Stuart to write the script, and fought a battle to prevent General Clay’s military government from taking the film over; back in Washington, the War Department and the State Department also entered the fray. By 1947, Lorentz was so frustrated by the infighting, along with funding and other problems, that he resigned from the War Department.

Stuart labored on, producing several drafts of the proposed script for review, enduring often angry critiques from those who wanted to put their own mark on it. But in the end, his version won out. The film was organized around the four counts leveled at the defendants: conspiracy, crimes against peace, war crimes, and crimes against humanity. In straightforward but compelling terms, it laid out the Third Reich’s record in each of those areas, weaving in footage from the trial itself. Chief U.S. Prosecutor Robert Jackson had authorized the filming of portions of the trial.

In mid-1947 as the Americans finally began work on their film, they learned that the Soviets had completed their version, which of course focused on the Red Army’s role in defeating Germany, largely ignoring the contribution of the Western Allies. This led to embarrassing headlines in the U.S. media. “
Claim Internal U.S. Army Snarl Let Reds Beat Yanks on Nuremberg Film,”
Variety
proclaimed on June 11.

While some senior U.S. officers in Germany were still hoping to delay or even derail the documentary, the Soviet film may have spurred its completion and release. The American film premiered before a German audience in Stuttgart on November 21, 1948, and it was shown throughout West Germany in 1949. Stuart reported that the critical reception was “
unexpectedly good,” and it played to packed houses. “Audiences sat through the picture in stunned silence and then filed out, wordless and disturbed,” he wrote. He quoted an information official of the U.S. military government as saying: “This film tells the Germans more about Nazism in 80 minutes than we’ve been able to tell them in three years.”

Even before that success in Germany, Supreme Court Justice Jackson, who had returned from Nuremberg, and others were pushing for its release in the United States as well. The New York Bar Association had requested a screening of the film, but Washington refused to authorize it. The only film they could obtain, it turned out, was the Soviet version. Infuriated by that news, Jackson wrote to Secretary of the Army Kenneth Royall on October 21, 1948, making a passionate appeal for the distribution of the film back home. He reported that he had already written to Harrison Tweed, the president of the New York Bar Association, who had called him up afterward to ask if he could read his angry letter to the group “
if he cut out the profanity.” Jackson’s response: “I told him he could read it if he would not cut out the profanity.”

Jackson’s fundamental argument was that the film served multiple purposes: helping Germans understand why they needed democracy; counteracting the Soviet propaganda film that gave “the impression that they conquered and then conducted the trials pretty much single-handed”; and furthering the goals of both Roosevelt and Truman by presenting an accurate version of the historical record that explained why the war had
to be fought in the first place and the perpetrators brought to justice. “I cannot see why we should not reap for the United States whatever advantage it has,” he concluded.