The Army Lawyer | Issue 3 2021View PDF

null Book Review

 

Book Review

The Malmedy Massacre


It beats the hell out of me . . . why everyone tries so hard to show that the prosecution were [sic] insidious, underhanded, unethical, immoral and God knows what monsters, that unfairly convicted a group of whiskerless Sunday school boys. What motivates you authors? I think that my staff did a hell of a great job. We didn’t have available the information that researchers have today, not even a small part of it, but still we came up with the hard evidence that satisfied the trial court that they were all guilty.1

In The Malmedy Massacre, Steven Remy reaches different conclusions than many historians regarding the true nature of the events surrounding the “Malmedy Massacre.” He persuades readers that an “apologetic narrative”2 was responsible for wrongfully convincing many that America mishandled war crimes trials. On 17 December 1944, at a crossroads in Baugnez near the Belgian town of Malmedy, eighty-four U.S. Soldiers were executed in the largest war crime perpetrated against U.S. forces in the European Theater of World War II.3 This incident became known as the “Malmedy Massacre.”

The American public was outraged and demanded justice.4 The perpetrators were captured and tried for committing war crimes in the case of United States v. Valentin Bersin, et al. (Malmedy Trial).5 Based on overwhelming evidence, mostly confessions, seventy-three German soldiers6 were convicted and received sentences ranging from ten years’ confinement to death.7 Subsequently, the defendants alleged that their confessions had been coerced through torture and physical abuse. Therefore, multiple investigations, review boards, and congressional hearings were tasked with reviewing the pretrial investigation into the Malmedy Massacre and the resulting trial.

For many historians, the Malmedy Massacre is a story of abusive U.S. interrogators, whose actions were compared to those employed by the Nazis.8 Remy paints a different picture—one of sensational news stories and an amnesty campaign in the form of a multi-front assault on the validity of U.S. war crimes trials in Europe that would eventually result in the release of all the Malmedy Trial defendants.9 Throughout the book, Remy’s purpose becomes evident: to prove that the “apologetic narrative”10 was false, and the allegations of torture and abuse were fabricated. The “amnesty campaign,”11 consisting primarily of members of the defense, the media, and the German clergy, pressed this narrative. Readers feel the author’s frustration that the facts were mischaracterized, and Remy is determined to set the record straight. He expertly lays out the entire sequence of events for readers in a well-researched and objective manner that leads them to the same conclusion.

The Amnesty Campaign & the “Apologetic Narrative”

Although the title of the book suggests otherwise, the focus of the book is not on the Malmedy Massacre itself. Remy devotes only one chapter to the massacre at the Baugnez crossroads, while the remainder of the book focuses on subsequent events—to include the pretrial investigation, trial, and aftermath.12 The vast swing of public opinion as to the legitimacy of the investigation and trial are the true heart of the Malmedy Massacre affair.

Remy expertly organizes the book to help readers understand the multitude of variables influencing the Malmedy affair, primarily focused on the multiple players involved. These players spread the defendants’ stories of forced confessions through physical abuse and torture, promoting what the author refers to as the “apologetic narrative.” The apologetic narrative is the perception that the judicial process was fundamentally unfair and “un-American”13 and, therefore, eroded the legitimacy of the trial and its verdicts. Remy categorizes the individuals involved into three general groups. These groups each influenced one another and, together, distorted the facts to become a powerful force discrediting the trials.

The Defense: Colonel Willis Everett

The first instrumental player was Colonel Willis Everett, the chief defense counsel for the defendants.14 The author is more interested in Everett’s involvement and actions following the trial than during the trial itself. Unsatisfied with the guilty verdict for the defendants, Everett immediately set out to petition anyone who would listen that the SS (Schutzstaffel) soldiers deserved a retrial.15 Remy paints Everett as a strong sympathizer for the defendants, not for the victims of the massacre or their families.16 However, Remy is a historian, not an attorney. What Remy and many readers may interpret as sympathizing might instead be zealous advocacy by an attorney on behalf of his clients. Everett was appointed to advocate for the defendants, regardless of his personal opinions. This is a perspective that perhaps only an attorney may appreciate.

Although Everett may not be the villain—or even the sympathizer—that Remy paints him to be, he is not without blame. Unsatisfied with the appellate process, Everett threatened to go to the press with his clients’ story of alleged abuse and coerced confessions.17 Although zealous advocacy is admirable, it is not a justification for subverting the judicial process. Everett’s actions to wield the “sword of public opinion”18 to gain a retrial look more like extortion than advocacy, and his willingness to distort19 facts regarding alleged abuse during the pretrial investigation make him at least complicit in creating the “apologetic narrative.”

The Press: “The Sword of Public Opinion”20

After the Malmedy Massacre, the predominant public viewpoint favored the perpetrators being brought to justice.21 Articles about the Malmedy Massacre appeared in popular American periodicals, and the American people were outraged.22 However, Remy’s so-called “sword of public opinion” would shift against the Malmedy Trial in the coming years. In early 1949, major publications began running stories discrediting the trial, focusing on allegations of abuse during the pretrial investigation.23 Here, one of the author’s major themes takes shape: the press was largely responsible for creating an “apologetic narrative” by failing to check facts and spreading false information.24 Yet, Remy shows that it was an article in the liberal periodical The Progressive25 that would serve as the turning point in public opinion.26

In early 1949, The Progressive published an article entitled American Atrocities in Germany.27 Remy articulates that this article was powerful in shaping public opinion due to the byline of Edward Leroy Van Roden, a Pennsylvania county judge.28 During the aftermath of the Malmedy affair, the Simpson Commission was one of several investigations conducted to review the proceedings.29 Van Roden’s status as one of three members of the commission provided credibility and influence to his statements. Like many other post-trial investigations, the Simpson Commission determined that the Army’s war crimes trials, to include the Malmedy Trial, were “essentially fair.”30 Nevertheless, Van Roden provided sensationalized statements of abuse to the media, which also influenced The Progressive article. He described the “Standard Operating Procedure [of] our American investigators”31 as having blood-soaked hoods used for interrogations,32 prisoners who had their teeth knocked out,33 and that “all but two of the Germans . . . had been kicked in the testicles beyond repair.”34

However, Van Roden would later admit that he never spoke with any individuals having a firsthand account of physical abuse during the pretrial investigation,35 nor did he “have a single scrap of evidence.”36 His unprofessional reporting of the facts and the lending of his byline to The Progressive article would wield the “sword of public opinion” to skewer the reputation of the Malmedy Trial. Remy glosses over the fact that Van Roden was not a journalist; he was a judge and member of the legal profession and should have understood the consequences of his impropriety. Yet, readers sense Remy’s disdain for Van Roden’s role in the affair, particularly by noting Remy’s inclusion of the harsh criticisms the congressional subcommittee aimed at Van Roden: “Those citizens of the United States who have accepted and published these allegations as truth . . . without attempting to secure verification of the facts, have done their country a great disservice.”37 Remy convincingly places Van Roden as a primary culprit for what would become the “apologetic narrative.”

Remy credits much of the “apologetic narrative,” and the fact that so many historians reached the wrong conclusions about the Malmedy affair, to the sensationalism of the media. Readers may draw a parallel to some of the unscrupulous media outlets of today that run with sensational headlines and biased articles instead of conducting thorough, neutral reporting of the facts. For readers, this creates a sense of foreshadowing that—if society is not careful—tomorrow’s historians may draw the wrong conclusions about the events of today.

The Clergy

The German clergy was the final group involved in creating Remy’s “apologetic narrative.” In 1945, at the end of the war in Europe, prominent members of the Catholic and Protestant Churches in Germany made public statements of collective guilt regarding the atrocities committed by Nazi Germany.38 However, much like the American press during that time, the churches’ viewpoints shifted; influential members of the clergy began speaking out against the war crimes trials, to include the Malmedy Trial.39 There are parallels between the author’s recount of the German clergy’s role in the amnesty campaign and the role of Everett and the press. However, after devoting an entire chapter to the clergy’s influence and their addition of “an aura of respectability”40 to the campaign to discredit the war crimes trials, Remy draws a lukewarm conclusion regarding the culpability of the German clergy. Although the clergy appears as complicit as the media, Remy wavers—either unconvinced of any ill intent or uncomfortable with such a critical conclusion. He considers that the clergy may have been deceived while tending to their congregations, the German people, and defendants. Regardless, it is clear to readers that the clergy played a significant role in the amnesty campaign that would eventually undermine the trial.

The Prevalence of Anti-Semitism

The final piece of Remy’s “apologetic narrative” is not a group of people, but an idea. Although The Malmedy Massacre contains several themes that readers may find disconcerting, the prevalence of anti-Semitism in both post-war Germany and the United States is the most alarming. After the war, thousands of German-born Jews became naturalized American citizens and participated in U.S. post-war efforts in Germany.41 Although Remy did not directly state it, Jews once again became the scapegoat because leaders in government, the church, and society began to blame them for many perceived shortcomings in post-war efforts. The author artfully weaves this issue throughout the book, noting that individuals from high-ranking clergymen to prominent U.S. politicians used terms such as “vengeful Jews,”42 “avenging angels,”43 and other disparaging terms to refer to Jewish immigrants. Remy astonishes readers with the realization that anti-Semitism did not die with Adolf Hitler and the Nazi party, but was a key component of the “apologetic narrative.”

Lessons Learned from the Malmedy Affair

As dual professionals, judge advocates can learn many lessons from Remy’s The Malmedy Massacre. The most important lesson that applies to both the profession of arms and the legal profession is the need for transparency. The trial team acknowledged legal methods used to solicit statements and confessions from the Malmedy defendants, to include the use of the “psychological approach”44 and “mock trials,”45 which were spun into salacious stories of abuse in the press. There was no real effort by the Army or the U.S. Government to provide adequate information to the public to counter those stories. They failed to control the narrative and, therefore, lost the information campaign.46 It is imperative that the U.S. Army, and specifically judge advocates, ensure fair and transparent handling of investigations and judicial matters. This is true whether investigating an alleged strike on a hospital in Afghanistan47 or trying sexual assault cases. Transparency is necessary to ensure that the American and global public remains confident in our military justice system.

Conclusion

The Malmedy Massacre is a must-read for every Army leader and judge advocate. Remy’s conclusions differ from many historians regarding the true nature of the events surrounding the Malmedy Massacre.48 Readers rely on Remy to portray the facts accurately—not as he saw them, but as they truly were; otherwise, Remy himself is complicit in furthering the distortion of the Malmedy affair. Although, at times, readers may feel lost in the myriad of facts and individuals involved, Remy’s extensive research convinces them that the Malmedy affair has been greatly misconstrued by history. TAL


MAJ Morningstar is a professor in the Administrative and Civil Law Department at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.


Notes

1. Steven P. Remy, The Malmedy Massacre: The War Crimes Trial Controversy 275 (2017).

2. The “apologetic narrative” is a perception that the judicial process was fundamentally unfair and “un-American,” therefore eroding the legitimacy of the “Malmedy Trial” and its verdicts. See id. at 274, 277.

3. Id. at 2. The engagement took place in the Ardennes region of Belgium during the German counter-offensive into Belgium and Luxembourg commonly known as the “Battle of the Bulge.” Id.

4. See id. at 37.

5. Id. at 127.

6. The German unit responsible for the alleged war crimes was a Waffen Schutzstafell (Waffen SS) battalion from the First SS Panzer Division “Leibstandarte SS Adolf Hitler” (“Personal Standard SS Adolf Hitler”) led by Lieutenant Colonel Joachim Peiper. See generally id. at 5–19.

7. Id. at 124. Forty-three defendants—including the unit’s leader, Lieutenant Colonel Peiper—were sentenced to death. Twenty-two were given life sentences, and eight were sentenced to anywhere from ten to twenty years. Id.

8. See id. at 84.

9. See id. at 247.

10. See id. at 274, 277.

11. See generally id. at 143.

12. Hereinafter, the “Malmedy Massacre” will refer to the massacre itself, whereas the “Malmedy affair” will refer to the entire chain of events to include the massacre, investigation, trial, and aftermath.

13. See id. at 92, 274, 277. The Malmedy Trial was not tried as part of the International Military Tribunal, nor as part of the Nuremburg Military Tribunals. Although it did not follow the procedures of a U.S. civilian court, it was tried by a military commission in accordance with military justice precedent. See id. at 91–92.

14. Id. at 82–83. Everett, a general law practitioner, initially considered himself unqualified for the task as he had no courtroom experience; however, he did his best to be a zealous advocate on his clients’ behalf, making requests for additional time for preparation and arguing passionately at trial. Id.

15. See generally id. at 128–42. Everett even went so far as to submit a writ petition to the U.S. Supreme Court, laying out his alleged grievances about the pretrial investigation and trial process. The Court denied his request in a close vote of 4-to-4. Id. at 146–47.

16. Id. at 130.

17. See id. at 136.

18. See id. at 135.

19. See id. at 149. The Administration of Justice Review Board (AJRB) was directed by the American Military Governor, General Lucius Clay, to review the Malmedy proceedings. The AJRB concluded that Everett “had at the very least distorted the circumstances of the investigation at Schwäbisch Hall.” Id.

20. See generally id. at 143–60.

21. See id. at 37.

22. See id. at 33–37. Articles about the massacre were published in Yank, Stars and Stripes, and Life. Id. nn.24–27.

23. Id. at 156–57. Articles were published in the Chicago Daily Tribune and Time magazine. Id. nn.38–39.

24. See generally id. at 156–59.

25. The Progressive was a magazine published by a Quaker organization that opposed American entry into World War II called the National Council for Prevention of War (NCPW). See id. at 153–54.

26. See generally id. at 155.

27. See id. at 155.

28. Id. The article was actually written by James Finucane, a member of the NCPW, based on Van Roden’s speeches about the Malmedy affair. With Van Roden’s permission, Finucane ghostwrote the article for The Progressive under Van Roden’s byline. Id.

29. See id. at 149. The Simpson Commission was appointed by the Secretary of the Army, Kenneth Royall. Members included judge advocate Charles Lawrence; Pennsylvania county judge Edward Van Roden; and the member for whom the Commission was named, Texas Supreme Court Justice Gordon Simpson. Id.

30. Id. at 150. The Simpson Commission did, however, note that the use of certain methods during the interrogations—specifically the use of mock trials—were “highly questionable” and could not be “condoned.” Id.

31. Id. at 154. Gordon Simpson, the head of the Simpson Commission, contradicted Van Roden’s account, stating that they had “bent over backwards to give fair trials to the Nazis.” Id. at 156.

32. Id. at 126.

33. Id. at 126, 153.

34. Id. at 126, 154.

35. See id. at 230.

36. Id. at 156.

37. Id. at 245.

38. See id. at 182. The German Catholic bishops met in Fulda in August 1945. A few months later, a council of Protestant Church leaders met in Stuttgart and penned the Stuttgart Declaration of Guilt stating “we not only know that we are with our people in a large community of suffering, but also in a solidarity of guilt.” Id.

39. See id. at 204–05. Numerous influential clergymen made statements both publicly and to members of the U.S. Government regarding “vengeful Jews” being largely responsible for corruption of the war crimes trials. Id.

40. Id. at 209.

41. Id. at 132.

42. Id. at 133, 137, 205.

43. Id. at 152. Many of the interrogators who were accused of abuse were Jewish, to include William Perl, Joseph Kirschbaum, Morris Elowitz, and Harry Thon. They were often referred to as “avenging angels” to be less obviously offensive. Id. at 152, 156.

44. Id. at 59.

45. Id. at 102. At trial, Lead Prosecutor Major Burton Ellis called one of the interrogators as his first witness. The witness described in detail the “psychological approach” the interrogation methods used to gain confessions—including the “tricks, ruses and stratagems” as well as the use of “mock trials.” Id.

46. See generally Joint Chiefs of Staff, Joint Pub. 3-61, Public Affairs I-11 (17 Nov. 2015) (C1, 19 Aug. 2016) (discussing information operations and the importance of the narrative).

47. See Matthew Rosenberg, Pentagon Details Chain of Errors in Strike on Afghan Hospital, N.Y. Times, (Apr. 29, 2016), https://www.nytimes.com/2016/04/30/world/asia/afghanistan-doctors-without-borders-hospital-strike.html.

48. Remy cites to other well-respected historians and authors, such as Rick Atkinson and Peter Caddick-Adams, who came to very different conclusions about the Malmedy incident. Remy, supra note 1, at 277.

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