was made public.17 The number of SS men summarily executed and the question as to whether their execution was at least understandable, though clearly not lawful, remains open.
The Setting for the Trial
Historically, the military has the power to try persons in military courts under a number of circumstances, including warfare conditions where there is no functioning local civilian government.18 That was certainly the case in Germany in the months after its surrender. The International Military Tribunal (IMT) tried the major Nazi defendants at Nuremberg, and the United States Military Tribunals presided over twelve different trials at Nuremberg after the IMT trial. Those were not the only trials, however. Acting under the same authority, the United States established U.S. Army courts, which sat in Dachau and presided over trials of 1,672 persons in 489 different proceedings from 1945 to 1948. Six of these 489 proceedings related to the administration of six concentration camps: Dachau, Buchenwald, Flossenbürg, Mauthausen, Nordhausen, and Muehldorf. This chapter deals with the trial at Dachau, focusing on the Dachau concentration camp and its satellites.19
The substantive law for these military tribunals is (1) violations of the laws and (2) usages of war, both concepts established by various treaties and practices. An initial requirement is that the conduct alleged to have been criminal occurred during an actual war since the laws and usages of war are operative only during an international conflict. Thus, it is not surprising that the Dachau case charge sheet (the equivalent of an indictment) alleges that, between January 1, 1942 (after Pearl Harbor), and Dachau’s liberation on April 29, 1945, the forty named accused acted pursuant to a common design and participated in the commission of certain criminal acts.
There were two charges. The first alleged that as part of this common design the defendants subjected the civilians of nations then at war with Germany to cruelties and mistreatment including killings, beatings, tortures, starvation, abuse, and other indignities. The second alleged the same conduct—cruelties, mistreatment, etc.—with respect to members of the armed forces of nations then at war with the German Reich who had surrendered and were unarmed prisoners of war in the custody of the German Reich. The technicalities of the charges required the prosecution to prove both that the defendants acted during wartime and that their acts were directed against either civilians or prisoners of war who were other than of German nationality.20
The tribunal consisted of eight army officers, seven colonels, and one brigadier general. Brigadier General John M. Lentz presided. Lieutenant Colonel William Denson, a Harvard Law School graduate, headed the prosecution team. Three captains joined him: William Lines, Richard McKusky, and Philip Heller.21 Three officers were assigned to specific defendants: Major Maurice McKeon represented fourteen defendants, including the lead defendant, Commandant Martin Weiss. Captain John May represented twelve defendants and Captain Dalvin Niles represented the remaining fourteen.22 Some of the difficulties with such mass representation by three defense lawyers will surface later in this chapter.
The trial began on November 15, 1945, and ended on December 13, 1945. It followed the usual contour of both military and civilian trials in the United States: preliminary motions, opening statements by both sides, direct and cross-examination of prosecution witnesses, direct and cross-examination of defense witnesses, closing arguments, and then a verdict by the eight officers constituting the court. The prosecution and defense called hundreds of witnesses and most of the forty defendants testified.
Preliminary Motions, Opening Statements, and the Prosecution’s Case
There were several facets to the preliminary defense motions. First, counsel argued that the defendants were prisoners of war and as such were entitled to a trial following the rules of the prosecuting power, which was not the case here. The prosecution responded that the accused were charged with violating the laws of war and, as such, were alleged criminals, not entitled to the protections afforded prisoners of war. The defense rejoinder was that as members of the Waffen-SS, they were part of the German army. The prosecution reiterated that the allegation that the defendants violated the laws of war trumped any status they might otherwise claim.23 The judges rejected the defense’s argument and noted that no legal rights would be denied the accused.24
The defense then asked that the charges be dismissed on two different legal grounds. First, the laws of war required that those injured by violations of those rules had to be nationals of a country other than that of the defendants: the charge made no reference to the nationality of the victims. Second, simply alleging that forty defendants acted pursuant to a common design, as the charge did, was too vague. These motions were denied as well.25 Finally, the defense lawyers asked the judges to sever the trials of the forty defendants on the grounds that their various defenses were antagonistic—a legitimate ground for a severance request in a conventional criminal case—requiring separate trials for each defendant.26 Conceding there were many defendants, the prosecution expressed confidence in the ability of the court to properly assess the evidence. The court denied the defense motion.27
The prosecution’s opening statement in the trial was short, covering barely two pages of transcript.28 Its first witness, Colonel Lawrence Ball, was a medical officer who arrived at Dachau on May 2, 1945, three days after its liberation. The defense immediately objected to his testimony, noting that the underlying charge was a common design to violate the laws of war from January 1, 1942 to April 29, 1945, the date of Dachau’s liberation. The defense claimed that no accused could be held accountable for the status of the camp at a time when he had no responsibility over it.29 The objection was patently absurd; camp conditions in the period immediately after liberation could easily lead to an inference as to the conditions just a few days, if not weeks and months, earlier. Obviously, evidence that on May 2, a Dachau inmate was on the verge of death by starvation and disease, weighing less than one-half the inmate’s normal weight, could justly lead to an inference (1) that the inmate was not the picture of health three days earlier and (2) that his condition came about while the defendants had responsibility over the camp. Nevertheless, the objection, coming at the very inception of the prosecution’s case, must be lauded since it was symptomatic of the vigorous nature of the defense and the extraordinary effort made by defense counsel on behalf of their clients, concededly operators of a vicious and inhumane killing machine.
The prosecution proceeded at two levels: an overview, which dealt with the general population of Dachau and how it was treated, and then the behavior of individual defendants. What follows are the facts established by many of the prosecution witnesses, the general thrust of which was not denied by any of the defendants. Their defenses, as will be seen, consisted not in a denial of the general conditions at Dachau, but rather that they were powerless to do anything other than what they did, since they were simply following orders. It was a repeat of the legal defense the Nazis first raised on trial in 1943 at Kharkov, and echoed again and again in subsequent prosecutions of Nazi defendants, even the high-ranking major war criminals before the International Military Tribunal at Nuremberg. In some instances of particularly horrid brutality, the defendants simply denied their involvement.
Meticulous records the SS kept showed that approximately 250,000 persons were “processed” through Dachau from its inception to its liberation, the vast bulk of whom were processed after the beginning of the Second World War.30 As noted earlier, Jewish prisoners were usually confined in the satellite camps, principally the Kaufering camps, where living conditions were the worst and the largest number of lives was lost. While the facilities at Dachau consisted of aboveground housing, actual buildings, the living facilities in the Kaufering camps were below ground with a covering over the entry hole. The defendant Otto Foerschner, in charge of the Kaufering camps towards the end of Dachau’s use, testified that the inmates lived in “earthholes.”31 Kaufering inmates slept on planks, not beds of any sort, and usually used their shoes as pillows.32 Not surprisingly, therefore, the death rate among Jews was the highest, approaching one in seven inmates during the seven months before liberation.33
Prison blocks built for 400 persons regularly held 800 to 1,200 prisoners during the last months. Sometimes, 2,000 were quartered in accommodations built for 400. Often three persons had to share one bed, really just a cot, and an unwashed blanket, not infrequently embedded