Malmedy massacre trial



The Malmedy massacre trial (U.S. vs. Valentin Bersin, et al.) was held in May–July 1946 in the Dachau concentration camp to try the German Waffen-SS soldiers accused of the Malmedy massacre of December 17, 1944. The highest-ranking defendant was the former SS general, Sepp Dietrich. It attracted great attention because of the nature of the crime and the later disputes about the conduct of the trial.

Before the trial
The Malmedy massacre outraged the American military, and after the war the United States Army sought to bring those responsible to justice. During the early investigations, however, it was not possible to prevent the accused from communicating with one another, which compromised their testimony. Only in December 1945, when they were confined in Schwäbisch Hall, a civil prison requisitioned by the military occupation, was it possible to stop concerted communication among the accused. Interrogations were held there between December 1945 and April 1946.

The U.S. Army investigators faced a shortage of German-speaking staff and were forced to rely on recent immigrants to the US who had little understanding of American criminal law. Furthermore, some of the investigators had been forced to flee Germany by the Nazi regime and were hardly unbiased. Two of the main investigators, a Lieutenant Perl and a civilian auxiliary, were German Jews who had emigrated to the United States before the war.

The preliminary investigations were not conducted in compliance with legal standards. It was proven that some defendants had been subjected to mock trials, including false death sentences, to extort confessions. An investigation led by a controversial United States Senate Subcommittee after the trial would conclude in 1949 that the defendants were not actually tortured or deliberately starved. The Senate Subcommittee did acknowledge that some may have been beaten by their guards.

Trial


The trial – Case Number 6-24 (US vs. Valentin Bersin et al.) – was one of the Dachau Trials, which took place from May 16, 1946 to July 16, 1946. The defendants appeared before a military court of senior American commissioned officers. The court functioned according to rules founded previously by the international military tribunal at the Nuremberg Trials.

The defendants were 75 former members of the Waffen SS, mostly from the 1st SS Panzer Division "Leibstandarte Adolf Hitler". Highest in rank were General Sepp Dietrich, commander of the 6th SS Panzer Army, his chief of staff, General Fritz Krämer, Lieutenant General Hermann Priess, commander of the I SS Panzer Corps and Colonel Joachim Peiper, commander of the 1st SS Panzer Regiment - the core element of Kampfgruppe Peiper, which conducted the massacre.

The counts of indictment related to the alleged massacre of more than three hundred American prisoners of war "in the vicinity of Malmedy, Honsfeld, Büllingen, Ligneuville, Stoumont, La Gleize, Cheneux, Petit Thier, Trois Ponts, Stavelot, Wanne and Lutrebois", between December 16, 1944 and January 13, 1945 during the Battle of the Bulge, as well as the massacre of about one hundred Belgian civilians in the vicinity of Stavelot.

The defense was directed by Colonel Willis M. Everett Jr., a lawyer from Atlanta, assisted by other American and German lawyers. Everett had little or no experience in criminal law and was intimidated by having to defend 75 people on very short notice. The German lawyers, although experienced, were completely unfamiliar with the American military judicial system. The prosecution was led by Colonel Burton L Ellis.

The prosecution's evidence was based primarily on affidavits collected before the trial from the defendants and from witnesses. The prosecutors admitted that many statements had been obtained from the defendants by various ruses and tricks. These illegal procedures were not repudiated by the court despite repeated defense objections, and the affidavits were accepted when they accused the informant himself and co-defendants.

Six defendants, including Peiper, complained to the court that they had been victims of physical violence or threats of violence meant to force them to provide extrajudicial confessions. Those in charge of the interrogations denied it and the court ignored the objections.



The defendants were invited to confirm the statements they had made under oath. After nine of them had taken the stand, it became obvious that they had accused fellow defendants to minimize their own roles. It was clear to Everett that this would weaken the position of the defense. He persuaded the remaining defendants to give up their right to be heard by the court. Of the nine who testified, only three had cited mistreatment they had suffered.

For most of the accused, the defense showed that they either had not participated, or had done so by obeying a superior's orders.

The court ruled that all but one of the defendants were guilty in some degree. Forty-three were condemned to death by hanging; the rest were sentenced to from ten years to life in prison. Peiper was sentenced to death. Dietrich received a life sentence, Priess 20 years imprisonment. Those sentenced to death requested execution by firing squad, citing their military status; however, this was refused.

The court's deliberations were short, only a few minutes being devoted to each individual.

Verdicts
On July 16, 1946 the verdict was delivered on 73 members of the Kampfgruppe Peiper.
 * 43 sentenced to death by hanging, including Peiper
 * 22 sentenced to life imprisonment
 * 2 sentenced to 20 years imprisonment
 * 1 sentenced to 15 years
 * 5 sentenced to 10 years

After the trial
Once the court had pronounced the sentences, the case could have been closed. In fact, this was only the beginning. One of the issues with the trial was that if it had been held in an American court with standard United States of American federal standards on jurisprudence, then the mock trials used for obtaining statements and confessions alone would have placed the trial in serious jeopardy of being declared a mistrial or having the charges thrown out of court entirely.

Review procedure
Pursuant to procedure, an in-house review was undertaken by the American Occupation Army in Germany; the trial was carefully examined by a deputy judge. Taking into account the doubts which surrounded the investigation phase, he issued in several cases recommendations of free pardon or commutation of the death sentences, which were often followed by General Lucius Clay, the Commander of the American zone in occupied Germany. This procedure can however not be regarded as a true appeal procedure.

Other appeals
Colonel Everett was convinced that a fair trial had not been granted to the defendants: in addition to dramatic mock trials, "to extort confessions, U.S. prosecution teams 'had kept the German defendants in dark, solitary confinement at near starvation rations up to six months; had applied various forms of torture, including the driving of burning matches under the prisoners' fingernails; had administered beatings which resulted in broken jaws and arms and permanently injured testicles'."

Furthermore, in Germany proper, voices rose from various circles to speak for the sentenced men. Among others, the Princess Helene Elisabeth von Isenburg, founder of Stille Hilfe, a movement for the assistance of prisoners of war and internees (sometimes presented as an organization assisting ex-Nazis), managed to mobilize certain members of the Catholic and Protestant hierarchies in Germany in favor of the defendants. Rudolf Aschenauer, who had been the defender of one of the accused in the trial of the Einsatzgruppen, had also been in touch with the defendants and had worked for the revision of the trial results.

Approximately sixteen months after the end of the trial, almost all the defendants presented affidavits repudiating their former confessions and alleging aggravated duress of all types. Among others, they claimed to have been punched in the mouth and testicles, resulting in irremediable disabilities.

Colonel Everett lodged appeals to the Supreme Court of the United States and the International Court of Justice at The Hague. The latter declared itself incompetent, since it acknowledged only procedures engaged by states and not by individuals. The Supreme Court made no decision. Four judges decided in favor of a revision and four against. It was impossible to obtain a majority, the ninth judge, Robert Jackson, refusing to issue an opinion because he had been a prosecutor in the main Nuremberg trial.

The Simpson Commission
The turmoil raised by this case caused the Secretary of the Army, Kenneth Royall, to create a commission chaired by Judge Gordon A. Simpson of Texas to investigate. Apparently, the Commission was not interested only in the facts of the Malmedy massacre trial, but had also to deal with other cases judged by the International Military Tribunals (in fact mainly American) in Europe.

The commission arrived in Europe on July 30, 1948 and issued its report on 14 September. In this report, it notably recommended that the twelve remaining death sentences be commuted to life imprisonment.

The commission confirmed the accuracy of Everetts accusations regarding mock trials and neither disputed nor denied his charges of torture of the defendants. The Commission expressed the opinion that the pre-trial investigation had not been properly conducted and that the members felt that no death sentence should be executed where such a doubt existed.

One of the members of the commission, Judge Edward L. Van Roden of Pennsylvania, made several public statements affirming that physical violence had been inflicted on the accused.

Furthermore, under his signature, an article denouncing the conditions under which the assumed guilt of Malmedy defendants and of other questionable cases was going to be published in February 1949 with the assistance of the National Council for Prevention of War. To the charges of violence confining with torture, Van Roden notably added that during the instruction, the defendants had been put in cells isolated for periods from several months or had been starved.

This article would cause great turmoil in the United States, because it described behaviors in total contradiction with the American principles of fair play. In response, General Clay commuted six more death sentences to life imprisonment. He however refused to commute the six remaining death sentences, including Peiper’s, but the executions were postponed.

The Senate subcommittee
The trial became so infamous that the Senate decided to investigate. Choosing a committee that would carry on the investigation was not easy. Ultimately, the case was entrusted to the Committee on Armed Services over the Judiciary Committee and the Committee on Expenditures in the Executive Departments. The investigation was entrusted to a subcommittee of three senators of which the chairman, Raymond E. Baldwin, had been a member of the same law firm as one of the trial prosecutors.

The subcommittee was set up on March 29, 1949, at the beginning of the Cold War and during the Berlin blockade and worked during several months. Its members went to Germany and during its hearings, the commission heard from no less than 108 witnesses.

A young and ambitious Senator, Joseph McCarthy, had obtained from the subcommittee’s chairman authorization to attend the hearings. McCarthy's state, Wisconsin, had a large population of German extraction, so some have alleged that McCarthy had political motivations in his work on behalf of the Malmedy defendants.

Although McCarthy was only attending because of Baldwin’s courtesy, McCarthy seemed to have successfully taken complete charge of the subcommittee’s investigations and tried to press his views. He used quite aggressive questioning, even towards the survivors of the massacre, whom he on occasion accused of being liars. Employing tactics for which he would be later become infamous, McCarthy often distorted the facts in order to corroborate his vision of the case, e.g. stating that all of the investigators were Jewish, or that many of the sentenced had been 15 or 16 years old teenagers.

The last clash took place in May 1949 when he asked that Lieutenant Perl to be given a lie detection test. Since this had been rejected by Baldwin, McCarthy left the session claiming that Baldwin was trying to whitewash the American military.

While McCarthy may not have been impartial, neither were two of the members of the three-man subcommittee; the chairman Senator Raymond Baldwin and Senator Lester Hunt were "determined to exonerate the Army at all costs". The third member of the committee, Senator Estes Kefauver, displayed a lack of interest in the case, he attended only two of the first fifteen hearings.

McCarthy sought to denounce Baldwin in front of the whole Senate, but his efforts were repudiated by the Commission on Armed Forces, which clearly showed its support for Baldwin and eventually adopted the report of the subcommittee.

The subcommittee report
In its report, the subcommittee acknowledged some facts, such as the mock trials, the use of hoods or containment. On the other hand, its findings did not support the most serious charges, like the beatings, torture, the fake hangings and the starvation of the defendants. In addition, the subcommittee considered that commutations of sentences pronounced by General Clay had occurred because of U.S. Army recognition that the investigations had not always been properly carried out or that procedural irregularities could have occurred during the trial.

On the other hand, the commission did not take a position on the culpability of the condemned. On the contrary, it endorsed the conclusions General Clay issued in the particular case of Lieutenant Christ. In summary, Clay had written that “he was personally convinced of the culpability of Christ and, that for this reason his death sentence was fully justified. But, to apply this sentence would be equivalent accepting a bad administration of justice, which led him, not without reserve, to commute the death penalty to life imprisonment”.

The report of the subcommittee was strongly influenced by testimony of the CIA presented in secret hearings arranged with the help of the Army's Counter Intelligence Corps as reported in the Oral History of Col. Justice M. Chambers, the subcommittee's chief investigator.

Last commutations
Ultimately, the commission report combined with the intensification of the Cold War, which required that the United States have the West Germans on their side, led the American Army to commute the last death sentence to life imprisonment. In following years, all of the men were released, one after another, the last being Joachim Peiper.