Malmedy Massacre Trial

Lt. Col. Jochen Peiper, 1 SS Panzer Korps

Col. Jochen Peiper, the main one of the 73 accused in the Malmedy Massacre Military Tribunal proceedings, was not a member of the Nazi party, although he had joined the Hitler Youth as a young boy and then, at the age of 19, applied for admission to the elite Waffen-SS in 1934. (He was a Lt. Col. at the time of the Battle of the Bulge, but was promoted to Colonel afterwards.) Sepp Dietrich reviewed his application and admitted him into the "Leibstandarte-SS Adolf Hitler," one of the most prestigious outfits in the SS. In 1943, the Leibstandarte das Reich and Totenkopf divisions were formed into the new 1 SS Panzer Korps, which was sent to the Eastern Front. After the Korps won a decisive battle at Kharkow, more SS outfits were formed and the Leibstandarte Adolf Hitler was combined with the 2nd SS Panzer Hitler Jugend division to form a new 1 SS Panzer Korps.

Peiper had started his military career as an adjutant to Reichsführer-SS Heinrich Himmler, the head of the SS and the arch fiend who masterminded the Holocaust. Himmler is shown in the photograph below on a visit to inspect the troops at the Eastern front, some time after the invasion of Russia in June 1941. He is the man who is wearing an officer's cap in the exact center of the photo, behind the tank.

Heinrich Himmler visits a Waffen-SS tank division on Eastern front

A big part of the reason that Lt. Col. Everett worked so hard to free the Malmedy Massacre accused was that Peiper was a likable, charming man with a charismatic personality. But this was not enough to sway the judges of the American military tribunal, who regarded all SS men as evil. It didn't help that the name of Peiper's outfit contained the words "Adolf Hitler" or that they wore the infamous Death's Head emblem on their caps. The SS guards in the concentration camps wore the same symbol on their caps which might have caused some confusion in the minds of the Americans.

Lt. Col. Jochen Peiper on the Eastern front

After Lt. Col. Everett raised hell about the way the Malmedy Massacre proceedings at Dachau had been conducted, things changed somewhat. In another Dachau proceeding, which began in August 1947, Lt. Col. Otto Skorzeny and nine others were charged as war criminals for the illegal use of US Army uniforms and with killing more than 100 Prisoners of War during the Battle of the Bulge. Lt. Col. Rosenfeld was also the law member of the panel of judges in this proceeding, but this time he allowed defense testimony that US troops had worn German uniforms in combat during World War II in similar efforts to confuse the enemy.

An affidavit from the Malmedy Massacre proceeding was introduced by the prosecution in the Skorzeny case, and when the defense protested, Lt. Col. Rosenfeld dropped the charges of killing POWs. There were no corroborating witnesses for the killings, and Rosenfeld ruled that the case could not be tried on affidavits alone. This was an important ruling because in all the war crimes military tribunals conducted in Germany after World War II, witnesses were not required to appear in person and affidavits were allowed to be entered, so that the defense had no opportunity to cross-examine the person who signed the affidavit.

Although there was an automatic review process in which American military personnel reviewed all the Dachau proceedings, there was no appeal process for war crimes verdicts handed down by the American military court. This did not seem fair to Everett, who was a southern gentleman from a prominent family in Atlanta, GA. Everett prepared a 228-page analysis of the pre-trial interrogations and the trial, which he sent to the officers who would be conducting the automatic review of the case. This report included the accusations against the prosecution interrogators.

When 12 of the death sentences were upheld by the review board, including that of Col. Jochen Peiper, Everett decided to petition the US Supreme Court for a writ of habeas corpus on the grounds that the 73 accused were being illegally held in Landsberg prison after being convicted as a result of "illegal and fraudulently procured confessions."

When the news of Everett's charges, that the Malmedy Massacre accused had been forced to sign confessions, was leaked to the media, the American public was outraged. World War II was "the Good War" in which Americans fought for their democratic ideals and their freedom. The Malmedy Massacre case had made a mockery of the rights of the accused to a fair trial. This was not the American way. American soldiers had fought and died to preserve this freedom.

The scandal was even worse because the interrogators and the law member of the panel of judges, who were accused of violating the rights of the accused in the Malmedy Massacre case, were Jews who had used their power to get revenge on the defeated Germans for the Nazi crimes against the Jews. There was criticism of the case because so many of the Jews on the prosecution team were not native-born Americans. For example, Everett called them "recent arrivals" and author Freda Utley referred to them as "un-American."

In an article published in the American Mercury in 1954, Freda Utley wrote as follows:

....two of the "un-American" investigators employed by the U.S. Army to extract "confessions" from German prisoners of war, namely, Lt. Colonel Ellis and Lt. Perl, told Judge Von Roden of the Simpson Commission in 1949 that force was necessary in view of the difficulty in obtaining evidence. Perl said: "We had to use persuasive methods." He further admitted that these methods included "some violence and mock trials," and that the prosecution's case in the Malmedy cases rested on the evidence thus obtained.

    Colonel A.H. Rosenfeld, who was Chief of the Dachau branch of the U.S. War Crimes Administration until he resigned in 1948, when asked at a press interview before leaving Germany whether there was any truth in the German allegations concerning mock trials, replied, "Yes, of course. We couldn't have made those birds talk otherwise. It was a trick and it worked like a charm."

When the case came to the attention of Secretary of the Army Kenneth C. Royall, he ordered a stay of execution for the 12 men who were scheduled to be hanged in just a few days, and then directed General Lucius D. Clay, the highest authority of the American occupation in Germany to investigate Everett's charges against the prosecution. Not satisfied with that, Royall then appointed a three-man commission, headed by Judge Gordon Simpson of the Texas Supreme Court, to investigate not only the Malmedy Massacre case, but other Dachau proceedings, which had involved the same Jewish interrogators. The other two members of the commission were Judge Edward L. Van Roden and Lt. Col. Charles Lawrence, Jr.

After a six-week investigation conducted from an office which they set up in Munich, the Simpson Commission made its recommendation to Royall. The Commission had looked at 65 mass trials of German war criminals in which 139 death sentences had been handed down. By that time, 152 German war criminals tried at Dachau had already been executed. The 139 men who were still awaiting execution were staff members of the Dachau concentration camp, SS soldiers accused of shooting POWs at Malmedy and German civilians accused of killing Allied pilots who were shot down on bombing missions over Germany. On January 6, 1949, they recommended that 29 of these death sentences, including the 12 death sentences in the Malmedy Massacre case, be commuted to life in prison.

In February 1949, an article entitled "American Atrocities in Germany," which was allegedly written by Judge Van Roden, was published in The Progressive. In his article, Van Roden wrote as follows:

American investigators at the U. S. Court in Dachau, Germany, used the following methods to obtain confessions: Beatings and brutal kickings. Knocking out teeth and breaking jaws. Mock trials. Solitary confinement. Posturing as priests. Very limited rations. Spiritual deprivation. Promises of acquittal. Complaints concerning these third degree methods were received by Secretary of the Army Kenneth Royall last Spring (1948).

The statements which were admitted as evidence were obtained from men who had first been kept in solitary confinement for three, four, and, five months. They were confined between four walls, with no windows, and no opportunity of exercise. Two meals a day were shoved in to them through a slot in the door. They were not allowed to talk to anyone. They had no communication with their families or any minister or priest during that time. This solitary confinement proved sufficient in itself in some cases to persuade the Germans to sign prepared statements. These statements not only involved the signer, but often would involve other defendants.
Our investigators would put a black hood over the accused's head and then punch him in the face with brass knuckles, kick him, and beat him with rubber hose. Many of the German defendants had teeth knocked out. Some had their jaws broken.

All but two of the Germans, in the 139 cases we investigated, had been kicked in the testicles beyond repair. This was Standard Operating Procedure with American investigators. Perl admitted use of mock trials and persuasive methods including violence and said the court was free to decide the weight to be attached to evidence thus received. But it all went in.

SS 2nd Lt. Kurt Flamm testified on May 27, 1946

The photograph above shows Herbert Rosenstock, the interpreter, seated next to SS 2nd Lt. Kurt Flamm who is answering questions put to him by the prosecutor, Lt. Col. Burton F. Ellis, who is standing. Note the marks on the face of 2nd Lt. Flamm.

Van Roden also mentioned in his article that the accused in the Dachau proceedings could not be re-tried because the American Army had accepted the Russian idea that "the investigators determine the guilt or innocence of the accused, and the judge merely sets the sentence." By the time his article was published, 100 of the 139 men whose trials had been investigated were dead, including 5 of the 29 men whose sentences they had recommended to be reduced.

As the military governor of the American occupation in Germany, General Clay answered to no higher authority; he continued to order executions to be carried out, although he delayed the executions of the Malmedy Massacre convicted men because of the ongoing controversy. Like Everett, General Clay was a southern gentleman from Atlanta, and like Everett, he had become a hero to the German people when he ordered the Berlin airlift in 1948.

Judge Van Roden ended his article with these words:

The American investigators who committed the atrocities in the name of American Justice and under the American flag are going scot-free. At this point there are two objectives which should be aimed for:

1. Those prisoners whose death sentences have not been commuted and who have not yet been hanged should be saved, pending full judicial review.
2. American investigators who abused the powers of victory and prostituted justice to vengeance, should be exposed in a public process, preferably in the U. S., and prosecuted.

Unless these crimes committed by Americans are exposed by us at home, the prestige of America and American justice will suffer permanent and irreparable damage. We can partially atone for our own misconduct if we first search it out and publicly condemn and disavow it. If we wait for our enemies to blazon our guilt abroad, we can only bow our heads in shamed admission.

Shortly after this article was published in The Progressive, a Senate sub-committee disclosed that the article had actually been written by James Finucane, an anti-war activist who obtained the information used in the article from Rudolf Aschenauer, a German attorney for the accused. Finucane, who was the Associate Secretary of the National Council for Prevention of War, also gave similar information to Senator Joseph McCarthy. Finucane had heard Van Roden speak at a public meeting and had asked him if he could use his name in the byline of an article; Van Roden gave his permission.

Van Roden later testified before the Malmedy Massacre Investigation Hearings Committee on Armed Services in 1949 that he had not written the article himself and that he could not confirm the allegations of physical abuse of the accused. The source for this information is "The Malmedy Massacre" written by Richard Gallagher in 1964.

Prior to the Simpson commission report, the Supreme court had deadlocked in its decision on Everett's petition for a writ of habeas corpus. Justice Robert Jackson abstained and refused to vote to break the deadlock on the grounds that he had participated in the prosecution of the major war criminals at the Nuremberg International Military Tribunal.

The plan to take the case to the Supreme Court had been a long shot since most legal experts agreed that the Supreme Court did not have jurisdiction in this case. Everett had left the army by this time and was practicing law as a civilian, but he continued to fight to get a new trial for the Malmedy Massacre accused.

On February 22, 1949 Everett petitioned the International Court at the Hague, alleging that the United States of America had violated international law. Although he knew that his petition would probably be rejected because only a state, not a person, was allowed to petition the International Court, Everett was desperate to delay the scheduled executions of his "Malmedy boys." His reasoning was that Germany was not a state at this point, so he was petitioning on behalf of the German people. He again submitted his report with the accusations of brutality against the prosecution, but his petition was nevertheless rejected.

Meanwhile, in February 1949, Republican Senator William Langer of North Dakota introduced Senate Resolution 39, calling for a Senate investigation of the US military justice system in occupied Germany. He then inserted Everett's petition to the Supreme Court, with its sordid accusations against the Jewish prosecutors, into the Congressional Record. An ad hoc subcommittee of the Senate Armed Services Committee, headed by Republican Senator Raymond Baldwin of Connecticut, was formed to investigate Everett's accusations.

Senator Baldwin was an attorney in the law firm of Pullman and Comely, where one of his associates in the firm was Dwight Fanton, who had been in charge of the Malmedy Massacre case before Burt Ellis took over. Along with Morris Ellowitz, one of the accused interrogators, Fanton denied during a press conference that any improper methods of interrogation had been used.

Another member of the subcommittee was Democratic Senator Estes Kefauver, who had practiced law with Raphael Schumacker, the second most important member of the prosecution team in the Malmedy Massacre case. Normally, an investigation such as this would have been held by the Senate Judiciary Committee, but in his book "A Peculiar Crusade," author Weingartner wrote that "The army had been successful in getting the investigation switched from the Judiciary Committee to Baldwin's subcommittee."

In March 1949, about a month before Baldwin's subcommittee began its hearings, General Lucius D. Clay commuted 6 more of the death sentences to life in prison, but not the death sentence of Col. Jochen Peiper, who was the main person in the Malmedy Massacre case. Peiper did not personally shoot any American Prisoners of War, but he was the one who had allegedly ordered his armored unit not to take prisoners.

Pvt. Samuel Bobyns attempts to identify the SS man who saved his life

In the photo above, Private Samuel Bobyns, a U.S. Army ambulance driver, gets admiring glances from two secretaries as he attempts to identify the accused SS man who saved his life. The woman on the left, who is wearing glasses, is Veronika Gal Sors, a Hungarian Jewess who was sent to Dachau from Budapest, Hungary in 1944. Because she spoke fluent English and German, Veronika was employed as an interpreter by the U.S. Army until 1947.

Senator Joseph McCarthy, who later became well known for conducting a witch hunt for Communists in America, first gained notoriety as a member of the Baldwin subcommittee, where he took Everett's side. Senator McCarthy withdrew from the hearings in protest when it became clear to him that the committee was biased in favor of the Malmedy Massacre prosecutors. In a speech on the Senate floor on July 26, 1949, McCarthy accused Senator Baldwin and Senator Kefauver of "white-washing" the investigation because of their close association with two of the men under investigation.

The subcommittee was presented with post-trial affidavits from the SS men which were consistent in alleging that they had been beaten and coerced into making confessions. A dentist signed an affidavit that the SS men had suffered broken teeth and fractured jaws. According to Weingartner's book, Herbert Strong, the German-born Jewish civilian attorney, who had assisted the defense team at Dachau, testified that "Colonel Rosenfeld had been prejudiced against the defense, having ruled too often against it when the law seemed to be on its side."

Another witness, court reporter James J. Bailey, testified that he had seen Jewish interrogator Lt. William Perl strike the German prisoners. Kurt Teil, an interpreter for the army, testified that both Perl and another Jewish interrogator, Harry Thon, had spoken approvingly to him about violent methods of interrogation, and claimed that Thon showed him one of the SS men who was lying motionless in his cell with a hood still over his head after he had been interrogated.

When a member of the committee asked why a medical examination of the SS men had not been conducted to determine if they had been beaten, an examination was ordered three years after the fact, and the results showed that none of the men had scars or damaged testicles.

On October 13, 1949, the subcommittee published its proceedings, including its final report. According to Weingartner in his book "A Peculiar Crusade," the final report concluded, in Weingartner's words, that

On the basis of the medical examinations, allegations that physical force had been employed to induce confessions were rejected as being without foundation.

That mock trials had been employed, albeit in only a handful of cases, could not be denied and was condemned in the report, but less as an illegitimate device than as an unnecessary complication of the investigative process that could be misinterpreted or misrepresented by critics.

The German defendants, in the subcommitte's view, had been abnormal human beings, a condition that had both necessitated and justified the use of creative investigative techniques.

The senators conceded that the threat of withholding ration cards from family members had, on occasion, been used against certain suspects; they could hardly have done otherwise, since one of the interrogators questioned by the subcommittee had testified to the use of that tactic. The subcommittee did not condemn the use of the stratagem but expressed doubt that such threats could have had much effect "on the type of individual under interrogation."

Beyond expressing the opinion that the investigation would have been better handled if personnel trained for such work had been available and noting, in what might have been a veiled version of Everett's anti-Semitism, that the use of interrogators who were not native-born Americans had aggravated the "natural resentment that exists with a conquered country," the subcommittee found little reason for substantive criticism of the pretrial investigation.

The unfavorable report of the Baldwin subcommittee was the end of the line for Everett. He had spent $40,000 to $50,000 of his own money on the case, or the equivalent of half a million dollars in today's money. His law practice was neglected as he worked tirelessly to free the Malmedy Massacre accused, long after he had left the army. His health was ruined and a heart attack had prevented him from personally testifying before the subcommittee. There was nowhere else that he could go to get a retrial for the six "Malmedy boys" still on death row at Landsberg prison.

In the middle of 1949, the US Army was replaced by the US State Department as the occupation authority in Germany under High Commissioner John McCloy, who was now the civilian authority who represented the United States in its zone of occupation. General Clay was replaced by General Thomas T. Handy as the highest military authority in Germany. In September 1949, the Federal Republic of Germany was set up under the leadership of Konrad Adenauer, although West Germany was still under American occupation. The Simpson Commission had recommended a clemency and parole board for convicted German war criminals and this was implemented at the end of 1949.

According to Weingartner, the last 6 death sentences of the men convicted in the Malmedy Massacre proceeding were finally commuted by General Handy in 1951, after the fledgling Federal Republic government demanded a halt to the execution of German war criminals as a necessary precondition to rearmament and their cooperation with the Allies in the Cold War against the Communist Soviet Union. In 1955, a Mixed Parole and Clemency Board was set up with 3 Germans and one representative each from the US, Great Britain and France, and as a result, General Sepp Dietrich was paroled in October 1955.

But it was not that easy for General Dietrich to escape justice, since he was one of Hitler's closest associates. Hitler thought so highly of him that he once commented that if he ever had a son, he would want him to be like Dietrich. After he was paroled, Dietrich was tried again by a German court for his role in the execution of 6 SA men in June 1934. As a result of his loyalty to Adolf Hitler, who had ordered the executions, Dietrich rose rapidly in the ranks, although he was a Bavarian peasant who was barely literate. He was convicted by the German court and served 18 more months in prison before he was released in February 1959, due to ill health.

Dietrich was a swashbuckling figure who was so esteemed by the Waffen-SS men that 6,000 of them turned out for his funeral, after his death on April 21, 1966 at the age of 74.

Hitler's favorite general, Josef "Sepp" Dietrich

General Sepp Dietrich, charged with being a war criminal

Eventually all 73 of the convicted German war criminals in the Malmedy Massacre case were released from Landsberg prison, including Col. Peiper who was freed on December 22, 1956, the last of the accused to finally walk out of Landsberg.

Peiper had been born on January 30, 1915, so he was just short of his 30ieth birthday when the Malmedy Massacre happened. If Germany had won the war, Peiper would have been showered with praise and honored as one of his country's greatest heroes, a soldier who had fought honorably for his country. Instead, he ended his military career as a war criminal; he spent 11 of the best years of his life in prison, including 55 months on death row. After he was freed, he could not overcome the stigma of being a convicted war criminal. He took a series of jobs, but was unable to keep any of them. Finally, in 1972, he moved to the French village of Traves.

Just as he was starting to write a book on the Malmedy Massacre, Peiper was killed on July 14, 1976 when his house was firebombed. Peiper had been warned to leave, but he refused; he died as he had lived, with a weapon in his hands, refusing to be driven out of his home. His charred body was found in the ruins of his burned home. The date of July 14th was the French Bastille Day, the equivalent of the American 4th of July. A group of Frenchmen, wearing ski masks were photographed as they announced "We got Peiper." This photo was published on November 7, 1976 in the New York Times Magazine.

The bodies of the Malmedy Massacre victims were buried in temporary graves at Henri-Chappelle, 25 miles north of the village of Malmedy. The temporary cemetery was made into a permanent military cemetery after the war, and 21 of the murdered heroes of the Battle of the Bulge are still buried there. A stone wall has been erected as a memorial in honor of all the victims of the Malmedy Massacre near the site of the tragedy.


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