The Art of Occupation. Thomas J. Kehoe
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 of the twenty-three noncapital offenses listed in Article II were generic prohibitions against conduct more regularly considered criminal such as “counterfeiting” (Art. II, Sec. 27), “bribery” (Art. II, Sec. 29), and “resisting arrest” (Art. II, Sec. 38). But the antipartisan focus was evident in these regulations as well. Each MG detachment commander was to announce curfews for which violation was criminal (Art. II, Sec. 22). Similarly, “failure … to have possession of a valid identity card” (Art. II, Sec. 25) was criminalized, along with “dissemination of any rumor calculated to alarm or excite the people or to undermine the morale of the Allied Forces” (Art. II, Sec. 40). In the same vein, “defacement or unauthorized removal of written or printed matter posted under authority of Military Government” (Art. II, Sec. 35) was also illegal; such behavior defied Allied authority and could ignite wider discontent.60
Restricting liberties allowed MGOs to confine and regulate Germans, an emphasis in the MG Legal Code that was further elaborated by the inclusion of catchall laws Sections 21 and 43.61 Together, the MG Legal Code and court system gave MGOs the means to articulate the near unfettered power invested in them by command. MGOs could in turn pursue the twin aims of immediate security and the transformation of German society, though they were never to sacrifice the former for the latter.
Practical Concerns
Early in the planning process it became apparent that the State Department was not capable of assuming responsibility for the occupation when the war ended. MG would continue in Germany for an undetermined period of time. At the beginning of April 1945, Roosevelt rejected Morgenthau’s plan to permanently dismantle Germany. The president died shortly after on 12 April, but the imperative for transforming Germany remained.62 Within four days of Roosevelt’s death, new president Harry Truman approved Joint Chiefs of Staff Directive 1067 (JCS 1067), which outlined a radical plan for denazification and demilitarization to be carried out by the military in the imminent transition from war to peace. This directive was the final fusing of political and military views into a formalized policy for Germany. Although not as draconian as Morgenthau’s plan, it nevertheless carried forward the same basic perception that, in the words of contemporary US Army historian Harold Zink, “the German people [were] a menace to humanity and guilty of crimes,” and it extended the military’s wartime priorities into the postwar occupation.63 Though the Americans would help restore a unified and industrialized Germany, JCS 1067 authorized sweeping changes to the perceived cultural underpinnings of Nazism, including the attempt to achieve what David Large calls the “demilitarization of the German mind.”64
JCS 1067 required the dissolution of all Nazi institutions, disbandment of military and paramilitary formations, and removal from public positions of power “all members of the Nazi Party who [had] been more than nominal participants.”65 This order extended beyond government to positions in civic leadership and business. The directive also established a structure for Germany’s democratization. The school system was to be denazified by changing textbooks and the curriculum.66 Decentralization was particularly important to the Americans and their approach to policing. The Americans believed that the Third Reich’s centralized state police strengthened the regime. Policing and law enforcement more broadly were devolved to the MG districts, which neatly allowed existing military strategies to dovetail with the transformative agenda.67
The State Department remained the intended agency to ultimately enact Germany’s transformation from Nazism to democracy. But the State Department would not assume control until September 1949, when the High Commission for Occupied Germany (HICOG) was formed. The military held power until that point and, whether explicitly intended or not, was at the forefront of transformative occupation. This reality only exacerbated