Nuremberg was largely an American creation. ("Typical American humor," scoffed Karl Dönitz, in his Nuremberg cell.) Britain and the Soviet Union were forced to follow America’s lead. Roosevelt’s free-wheeling and haphazard administration thus offers the single most important and vivid example of how governments argue about international justice.

This grand American debate over Nuremberg was waged mostly between two of Roosevelt’s most powerful cabinet members: Henry Stimson, the secretary of war, and Henry Morgenthau Jr., the treasury secretary. Stimson insisted on trials for the top Nazis; Morgenthau wanted summary executions. In March 1945, Stimson, while emphasizing postwar economic and political issues over the question of war criminals, gave a good first-hand outline of the way the decision was made:

While more than a little self-congratulatory, this account is basically accurate. The Morgenthau Plan, which Churchill and Roosevelt initialed at the Québec Conference in September 1944, called for the summary execution of the Nazi leadership as war criminals. But Stimson managed to triumph, insisting that even Nazi war criminals be given the benefit of due process as it had evolved in America.

Protecting soldiers

Throughout these debates, the Allies were not much hamstrung by what is typically the biggest impediment to the prosecution of war crimes: a terrific reluctance to expose soldiers to unusual risks in order to apprehend suspected war criminals. In January 1943, long before anyone in the White House started thinking seriously about the punishment of war criminals, Roosevelt and Churchill had demanded unconditional surrender from the Axis. When the question of war criminals finally came to the administration’s attention, it therefore seemed that capturing the suspects would not be difficult or require additional risks for American forces. Germany was going to be occupied regardless; no extra risks were required to pursue a firm policy of prosecuting German war criminals.

To be sure, in those rare cases where apprehending war criminals put American troops at unusual risk, America was as eager to protect its soldiers as any other country. Japan did in fact get to impose one term of its surrender, that Hirohito not be dethroned, and certainly not be charged with war crimes. As Stimson noted in his diary, Japan only accepted the Potsdam terms "with the understanding that the said declaration does not comprise any demand which prejudices the prerogatives of his majesty as a sovereign ruler." America was not about to suffer through a devastating land campaign simply in order to try Hirohito. So MacArthur was told not to name Hirohito as a suspected war criminal.

In October 1944, the American Combined Chiefs of Staff wanted their field commanders to run speedy trials of captured war criminals who directly affected security or military operations; otherwise, "principally in order to avoid the danger of reprisals," the suspects were to be caught and tried later. The War Department viewed the Soviet Union’s Kharkov trials, in 1943, with "grave concern …since it fears that such action during the course of the war may lead to reprisals against American prisoners of war." And the White House was aware of the risks that American prisoners of war might face as Germany grew increasingly desperate.

America was as jealous of its soldiers’ lives as any state. But because of the preexisting policy of unconditional surrender, during the great White House argument over whether to have trials or not, the question of protecting American lives mostly did not come up.

"Let somebody else water it down": Morgenthau

Morgenthau was the most prominent American official who did not want war crimes trials. This was not because he did not want punishment. To the contrary, Morgenthau was more outraged than anyone in the cabinet at Nazi atrocities against Jews (Morgenthau was himself Jewish, a point not lost on Stimson). Morgenthau spent much of 1944 bombarding the White House with proposals for harsh treatment of Germany after the war–part and parcel of which was the summary execution of many Nazi war criminals. He had no patience for plodding legalism. His justice was to be swift and terrible.

Half a century after Nuremberg, it is hard to remember that it was perfectly intellectually acceptable during and after World War II to express doubt–as Arendt did–that Nazi horrors could rightly be lumped under the rubric of municipal law. Morgenthau, in his blazing anger, said, "it’s a question of attacking the German mind." He did not shirk from harsh measures:

In another outburst, in a Treasury Department meeting in September 1944, Morgenthau proposed mass deportations of millions of Germans–on the precedent, of all things, of Turkish expulsions of ethnic Greeks while Morgenthau’s father, Henry Morgenthau Sr. (see Constantinople chapter), was ambassador to the Ottoman Empire:

Morgenthau, an old friend of Roosevelt, was no minor crank. Eleanor Roosevelt called him "Franklin’s conscience," and said that her husband treated Morgenthau "as a younger brother." Morgenthau was one of the most powerful men in Washington, and he interpreted his portfolio broadly. On a host of issues, from the Ruhr to reparations, Morgenthau took a hard line against Germany. When Morgenthau’s aides balked at smashing the industrial capacities of the Ruhr, Morgenthau snapped, "Why the hell should I care what happens to their people?" He continued: "for the future of my children and my grandchildren, I don’t want these beasts to wage war." When the Morgenthau Plan was criticized as immoral, he snapped, "I suppose putting a million or two million people in gas chambers is a godlike action."

At first, Morgenthau dominated the White House’s postwar German policy. "Everybody is toying with the thing," he complained, "and here we are with one toe in Germany and just starting on it." Even Stimson at first considered the most expedient policy: simply shooting the Nazi leaders. In notes for a meeting with Roosevelt in August 1944, Stimson jotted:

Executions were clearly not unthinkable to Stimson and Roosevelt. (One irony: Stimson insisted that his soldiers must be able to claim afterwards that they were merely following superior orders–the defense that would be famously discredited at Nuremberg.)

Roosevelt left few written records of his attitudes on postwar Germany, but his instinct evidently was to follow Morgenthau’s hard line. After his meeting with the President, Stimson noted that Roosevelt "showed some interest in radical treatment of the Gestapo"–a possible reference to summary executions. Roosevelt, irked by what he saw as a generous War Department proposal to restore Germany, vehemently wrote:

Roosevelt refused to draw a veil over Germany’s deeds. To the contrary, he placed the widest possible blame for those deeds. Presumably the element of the Nuremberg trials that would have most appealed to Roosevelt was their educational value: the Germans would be fed soup and truth. It is not at all clear that Roosevelt’s first instinct was to give the Nazi leaders the benefit of trials.

"A better respect for the law": Stimson

"Let somebody else water it down," Morgenthau had said. Stimson, Morgenthau’s chief rival in making America’s policy on war criminals, was just the man for that job. In many ways, Stimson was just the opposite of his voluble cabinet colleague. Morgenthau was a New Deal Democrat; Stimson was a Republican. Unlike Morgenthau, Stimson was a lawyer, a product of the white-shoe American legal establishment. Morgenthau often spoke of the gas chambers. Stimson’s diaries almost never mention the Holocaust; if the secretary of war mentioned Jews at all, it was usually to complain about Morgenthau’s "Semitic" preoccupation with the Holocaust. Morgenthau pressed for American action to help Europe’s Jews; Stimson opposed immigration. Stimson was mostly worried about winning the war; Morgenthau was also obsessed with Nazi atrocities. But Stimson had long been a believer in punishing war crimes; in 1916, he had signed a letter to Woodrow Wilson protesting Germany’s deportation of Belgians, "in violation of law and humanity." It was, in the final account, Stimson’s cooler head that allowed America to constrain Morgenthau’s calls for harsh punishments of German leaders within a legalistic framework.

But Morgenthau held the field at first. Stimson was not above thoughts of vengeance; he once suggested to Morgenthau that SS troops should be put in the concentration camps they had set up for the Jews. But Stimson soon came to resist Morgenthau’s sweeping plans for pastoralizing Germany, questioning whether Germany could really be somehow reduced to its 1860 size of 40 million. "Well," Morgenthau replied, "that is not nearly as bad as sending them to gas chambers." "I find," Morgenthau concluded, "that Mr. Stimson tires very easily."

Morgenthau was not the only hard-liner wearing Stimson out. Stalin’s grisly toast at Tehran–to shooting at least 50,000 Germans–hung on Stimson’s mind, and he feared that such mass killings would embarrass the entire war effort. He had warned Roosevelt that

Stimson was clearly repelled at the prospect of Soviet executions, as something beneath America’s standards–even for Nazi war criminals.

These standards grew out of Stimson’s respect for basic American legal rights, with explicit reference to the Bill of Rights. Stimson, who equated the OGPU with the Gestapo, was horrified at Soviet domestic terror. "Stalin recently promised his people a constitution with a bill of rights like our own," Stimson wrote. "… It seems to me now that our success in getting him to carry out this promised reform, which will necessarily mean the abolition of the secret police, lies at the foundation of our success." This was a very American remedy for Stalinism.

Stimson clung to the idea of individual responsibility for war crimes, which would focus Allied vengeance against the guilty rather than all Germans. "In particular I was working up and pressing for the point I had initiated," he wrote:

Stimson’s disagreement with Morgenthau was not just about the wisdom of pastoralizing and partitioning Germany. Stimson, after his initial fumblings, became more and more appalled at Morgenthau’s idea of summarily killing war criminals.

Stimson’s legalism ran deep. Like the Treasury Department, the War Department agreed that the entire Gestapo should be detained. But while Morgenthau wanted to deal with such terror organizations in toto, Stimson and John McCloy, the assistant secretary of war, initially preferred to focus on individual criminal responsibility for specific Gestapo members. Stimson also worried, "How far can we go under the Geneva Convention in educating war prisoners against Nazism?" This respect for law also encompassed a fondness for trials. Stimson’s reasoning revealed a blend of pragmatism and ingrained legalism:

Stimson’s insistence on fair trials even led him to yield some of the military’s prerogatives. When he won the approval of George Marshall, the chief of staff, for war crimes trials, the two agreed on using civilian judges where possible, rather than military men. Afterwards, Stimson wrote in his diary: "It was very interesting to find that Army officers have a better respect for the law in those matters than civilians who talk about them and who are anxious to go ahead and chop everybody’s head off without trial or hearing."

The Morgenthau Plan

That desire to chop off heads without trial was quickly enshrined in a now-notorious Treasury Department plan. On September 5, 1944, Morgenthau sent Roosevelt what would become known as the Morgenthau Plan–synonymous with a devastatingly punitive peace. It proposed, among other things, a partition giving large tracts of land to Poland, France, and Denmark, the complete demilitarization of Germany, internationalization of the Ruhr, political decentralization, reparations, and re-education.

For the Nazi leadership, the Morgenthau Plan was perfectly clear:

Lower-level perpetrators of "crimes …against civilization," including racist killings, would get a trial before Allied military commissions, and then swift execution upon conviction. All senior Nazi Party and government officials, as well as the entire SS, Gestapo, and SA, would be detained until a determination of their guilt. Nazi Party members and sympathizers, as well as military officers and Junkers, were to be barred from public life. And SS men were to form reconstruction battalions in countries devastated by the war.

Compared to this, prior or subsequent American proposals for punishing war criminals look pallid. Morgenthau did make some concessions to legalism in the belief that the Nazis were criminals, and in the willingness to afford some kind of trial for lesser offenders. But what stands out is the call for summary execution for German leaders.

On September 4, in a stunning meeting at the Treasury Department, Morgenthau and some of his top aides discussed how to go about these summary executions. This was not idle talk. Their concern, in fact, seems to have been with making sure that a queasy American military, not used to such things, would not balk at carrying out such orders. Harry Dexter White, a Treasury Department official close to Morgenthau (subsequently found to be a Soviet spy), spoke approvingly of a suggestion made by Major General John Hilldring, a War Department official drafting American occupation plans. Hilldring, White told the meeting:

Hilldring’s suggestion of summarily executing 2,500 people went without comment from his colleagues. (In hindsight, once again, Hilldring’s position has a sharp irony to it: if there were to be executions, the American army wanted to have the excuse of following superior orders.)

Compared to some rhetorical flourishes by Morgenthau, this may seem a relatively small figure. Morgenthau once suggested eliminating all Nazi Party members; when told by McCloy that there were perhaps 13 million of them, Morgenthau said there were no more than five million. To get a proper sense of the scale of 2,500 summary executions, consider what the total scale of the American effort against lower-level war criminals would ultimately be. The judge advocate general had been given responsibility for war crimes committed either against American troops or in concentration camps liberated by American forces, which led to trials for 1,600 Germans. Of those, over 250 were killed, plus 21 at Nuremberg. In total, Telford Taylor later calculated, by spring 1948, some 3,500 Germans and 2,800 Japanese had faced war crimes trials. That is, if the Morgenthau Plan had been followed as its planners at the Treasury Department had envisioned it in this meeting, then the Allies would have summarily shot about 70% of the Germans who were ultimately charged with war crimes. In fact, after these trials, the total number of Germans executed was under 300.

Even compared to Britain, which preferred the execution of 50-100 top Axis war criminals (see Britain section below), 2,500 was a remarkable number. Unfazed, the Treasury Department team moved briskly to the logistical details of mass executions. White worried that the UNWCC seemed to have no list of war criminals to be shot. "American soldiers wouldn’t shoot them," he added–an implicit recognition that it would be hard to get American soldiers to do such a thing. "Somebody else would probably, but the commanding officer would not have to decide whether or not they are to be shot but rather merely to identify them."

White’s plan included identification by a senior Allied officer before the execution. "Churchill didn’t go that far," Morgenthau replied, sticking with the most summary of summary executions. "He said that any soldier meeting any of these people, their orders were to shoot them on sight." "And identify them afterwards," said Morgenthau aide Dan Bell. Herbert Gaston, the assistant secretary of the treasury, joked: "None of these people should be shot more than three times, Dan." Morgenthau then launched into a disquisition on the difficulty of doing summary shootings properly:

Morgenthau planned to do better.

John Pehle, the executive director of the War Refugee Board (which helped Jews in Europe), made the only legalistic argument in the meeting, worrying about shooting people on the basis of insufficient evidence, and proposing trials as a partial solution:

"Stalin has a list with 50,000," replied Morgenthau, evidently unimpressed by Pehle’s reticence. This might have been the kind of joke Morgenthau liked to throw into meetings, a self-parodying poke at his own toughness. (The presence of White makes it particularly bizarre.) Or maybe Morgenthau really did want to use the Soviet list. At a minimum, it showed that Morgenthau was just as aware of Stalin’s notorious Tehran suggestion as Stimson–but that Morgenthau did not object as bitterly as Stimson did.

Public opinion

The overwhelming majority of Americans would have agreed with Morgenthau. Legalism seems to have been largely an elite phenomenon. Ironically, while Stimson was insisting on the norms of the American domestic legal system, the American public was quick to disregard those same norms. There were overwhelming public calls for revenge, but of the swift and certain kind. Typically, as few as 10% or even 1% of respondents favored trials.

In July 1942, 39% of Americans thought Hitler should be hanged or shot, 23% thought he should be imprisoned or put in an asylum, and 3% preferred slow torture. Only 1% said he should be given a court martial. The results were roughly the same for the Nazi leaders: 35% for shooting, 31% for jailing, 5% for treating them as the Nazis had treated others, 2% for torturing, and 2% for a court martial. In June 1945, only 4% said Göring should be given a trial, but 67% said he should be killed–many respondents emphasizing "that the manner of death should be made as unpleasant as possible."

There was a slightly greater interest in legalism for lower-level war criminals in 1945. Some 45% of Americans wanted to kill Gestapo agents and Storm Troopers: "‘Kill them …hang them …wipe them off the face of the earth’ are typical replies." Only about 10% would try them, about as many as wanted to torture them. As for Nazi Party members who claimed they had just been following orders, 42% of Americans wanted to imprison them, 19% wanted to kill them, and 19% wanted to try them and punish them only if found guilty.

This lack of legalism was, if anything, more pronounced when it came to Japan. In December 1944, 33% of Americans wanted to destroy Japan as a country after the war, 28% wanted to supervise and control Japan–and fully 13% wanted to kill all Japanese people. In another poll, while 88% wanted to punish the Japanese military leaders, only 4% of Americans wanted to "Treat them justly, handle them under International Law, (or) demote them." Instead, typical suggestions included:

In sum, these polls suggest that wartime public opinion is untamed and violent, and that a democratic government that takes its cues directly from that public mood is likely to want revenge, not trials. Democratic mass outrage may make it impossible for a government to ignore the question of war criminals, but it is no guarantee of legalism. To the contrary, it was the liberal norms of elites like Stimson and Jackson that foreclosed the idea of summary punishment. When, in May 1945, the Treasury Department confronted Jackson with a Gallup poll showing that the American public wanted to use Germans for forced labor in the Soviet Union, Jackson stuck to his legalism: "I don’t give a damn what the Gallup Poll says."

Morgenthau versus Stimson

The Treasury and War Departments were on a collision course. The night of September 4, 1944, after spending part of his day planning 2,500 executions, Morgenthau had Stimson and McCloy over for dinner–and ran into the first overt opposition to those execution plans. "[W]e were all aware of the feeling that a sharp issue is sure to arise over the question of the treatment of Germany," Stimson wrote. "Morgenthau is, not unnaturally, very bitter and as he is not thoroughly trained in history or even economics it became very apparent that he would plunge out for a treatment of Germany which I feel sure would be unwise." In particular, Stimson, according to a Treasury Department memorandum, was "most interested" in the war criminals issue, and emphasized the importance of "a fair trial though not necessarily a public trial."

When a cabinet-level committee on postwar Germany met at the State Department the next day, there was a predictable explosion. Stimson met fierce opposition not just from Morgenthau, but also Cordell Hull, the secretary of state, and Harry Hopkins. "[T]o my tremendous surprise," Stimson "found that Hull was as bitter as Morgenthau against the Germans." Before this meeting, Hull had told Morgenthau, "The reason that I got along so well with the Russians was when I went to Moscow, the first thing I told them I would do was to bring up all these people before a drumhead court martial, and I would shoot them before sunset, and from that day I got along with the Russians beautifully." Hull, according to Morgenthau, said, "This Nazism is down in the German people a thousand miles deep, and you have just got to uproot it, and you can’t do it by just shooting a few people." Stimson, as Morgenthau noted, "didn’t even seem to like that and he went into a long legal discussion of how you would have to have legal procedure before you shot the people, and had to do all this on a legal basis. Well, Hull doesn’t want to wait; he just wants to shoot them all at dawn."

Morgenthau was elated. "I wanted to get up and kiss Cordell for the first time," Morgenthau cheered to Hopkins after the meeting. "I nearly fell through the floor," Hopkins said. Hopkins was particularly irritated by Stimson: "My God, he was terrible." Morgenthau agreed, sarcastically echoing Stimson’s views: "All you’ve got to do is let kindness and Christianity work on the Germans." Both Hopkins and Morgenthau were confident that Roosevelt would be on their side.

Stimson despaired. "I found myself a minority of one and I labored vigorously but entirely ineffectively against my colleagues," Stimson wrote in his diary after the meeting. "In all the four years that I have been here I have not had such a difficult and unpleasant meeting…." McCloy found Stimson "more depressed after the conference than he had ever seen him."

Stimson spent the rest of his day dictating a memorandum for posterity ("I feel that I had to leave a record for history that the entire government of this Administration had not run amuck at this vital period of history") detailing his objections to the Morgenthau Plan, which he sent to Roosevelt, Morgenthau, Hull and Hopkins. Stimson’s "basic objection" was to "the dangerous weapon of complete economic oppression. Such methods, in my opinion, do not prevent war; they breed war." Instead of partition, Stimson preferred war crimes trials:

Despite his drubbing, Stimson stuck by his legalism.

Stimson’s trial plans rested largely on his own understanding of American domestic norms. Even while Morgenthau’s view seemed triumphant, Stimson was thinking through the modalities of war crimes trials that would be a credit to the American legal tradition. In the middle of a heated cabinet-level fight at the end of the greatest war America had ever fought, the secretary of war was spending his time carefully reading an article from the American Bar Association Review. Stimson turned to the Pentagon’s top lawyer, judge advocate general Myron Cramer, for legal advice. They discussed Allied military tribunals, which Stimson wanted to supply "simply the skeleton of what we call the requisitional fair trial." The accused would get a chance to hear and answer the charges against them, and perhaps have the benefit of counsel, and maybe get to call witnesses; but "it must be free from all the delays that would go with the technicalities of courts-martial or the United States jurisprudence procedure should go in, absolutely." Cramer insisted that the accused have the right to call witnesses, to prevent "any charges of railroading these people." "A great many people think that the question of guilt of some of these people is already decided," Stimson said. "I’m taking the position that they must have the substance of a trial. I just wanted to know whether you agreed with me." "I agree with you absolutely," said Cramer.

If anything, Stimson’s legalism grew stronger. He showed Marshall one of Morgenthau’s memorandums

Strikingly, Stimson explicitly equated his trial proposal with nothing less than the Constitution, the holy of holies in American domestic politics. For Stimson and Marshall, Morgenthau’s summary executions simply stood against American domestic legal tradition.

Having invoked the Constitution, Stimson then went one better. He summoned a trusted friend to a private dinner at Stimson’s house, "so that I might enlist him in this battle": no less than Felix Frankfurter, a prominent Supreme Court Justice. The famed jurist, Stimson wrote:

Stimson was not just invoking the Supreme Court to show that war crimes trials were in keeping with American domestic traditions; he was enlisting it.

Roosevelt met with his dueling cabinet officers on September 9. But Stimson’s carefully crafted memorandum made no impact on the President. As Stimson wrote in his diary, Morgenthau launched into "a new diatribe on the subject of the Nazis," and Roosevelt limited himself to once again stating "his predilection for feeding the Germans from soup kitchens instead of anything heavier …." Stimson wrote: "It was a very discouraging meeting and I came away rather low in my mind."

Unbowed, Stimson gave a memorandum to Roosevelt that in essence proposed the scheme that would become Nuremberg. "Prompt and summary trials shall be held of those charged with such crimes and punishment should be swift and severe," Stimson suggested. The basic mechanism of trials was of tremendous importance:

Once again, Stimson’s argument relied on the export of American norms into Germany. It was not just that he insisted on "well-defined procedure" and "a dignified manner consistent with the advance of civilization"–a distinctively legalistic way of thinking about the punishment of enemy leaders, particularly in contrast with the furious Treasury Department plans. More strikingly, Stimson relied explicitly on the Bill of Rights. Fortified by his dinner with Frankfurter, and with a clear reference to their discussion of the common law of war, Stimson argued that the virtue of an international tribunal was that it was in keeping with no lesser authority than the Supreme Court. Morgenthau had complained before that Stimson wanted to reform the Germans with kindness and Christianity; here, Stimson seemed to want to reform them with the Bill of Rights and the Supreme Court.

The Québec Conference

On September 14, Roosevelt was to meet Churchill in Québec City to discuss many of the same German issues that were tearing the White House apart. Frankfurter, cheering Stimson up over another dinner at Stimson’s house, was confident that Morgenthau’s punitive paper "would not go anywhere and that the President himself would catch the errors and would see that the spirit was all wrong." Not so. Roosevelt invited only one cabinet member to Québec: Morgenthau. Morgenthau, Stimson wrote, "is so biased by his Semitic grievances that he is really a very dangerous adviser to the President at this time." If Morgenthau won out, Stimson thought, "it will certainly be a disaster."

The Québec Conference was a triumph for the Morgenthau Plan. Roosevelt and Churchill–after some strong initial reluctance–agreed to crush Germany’s industrial capacities and to convert "Germany into a country primarily agricultural and pastoral in its character," as the Québec directive put it. "The Treasury viewpoint was wholly accepted," Morgenthau reported to his staff. "…[T]he President put it this way: He said he had been groping for something, and we came along and gave him just what he wanted."

On the war criminals issue, the British government, which had been leaning towards summary executions for the top Nazis (see Britain section below), lined up with Morgenthau and Roosevelt: "The President and Prime Minister have agreed to put to Marshal Stalin Lord Simon’s proposals for dealing with the major criminals and to concert with him a list of names." There is scant doubt what this meant. Stimson complained of Roosevelt’s "recklessness" in using the army for summary executions, after McCloy reported that "he had heard from the British representatives here that the President was very firm for shooting the Nazi leaders without trial."

Morgenthau was elated. "The thing up at Quebec, all together, was unbelievably good," Morgenthau enthused on his return to Washington. "And as far as I went personally, it was the high spot of my whole career in the Government. I got more personal satisfaction out of those forty-eight hours than with anything I have ever been connected with."

Stimson once again plunged into an equal and opposite gloom. He railed privately against Roosevelt’s and Churchill’s ignorance and naïveté, and resorted again under pressure to an antisemitic analysis of Morgenthau’s influence:

Stimson sent yet another memorandum to Roosevelt (without the antisemitic references). The Treasury Department plans, Stimson wrote, "will tend through bitterness and suffering to breed another war," and, in a burst of hyperbole, "would be just such a crime as the Germans themselves hoped to perpetrate upon their victims–it would be a crime against civilization itself." Once again, Stimson tried to appeal to Roosevelt in terms of American domestic ideals, this time invoking both the Declaration of Independence and Roosevelt’s own "Four Freedoms" speech:

Riding high after Québec, Morgenthau had no patience for this. "I do not know what he means when he says he does not plead for a ‘soft’ treatment of Germany," Morgenthau wrote to Roosevelt in a rebuttal. "It was this same attitude of appeasement that was so fruitful in helping Germany plunge the world into the present war." Morgenthau’s interest was in "preventing World War III," by depriving the Germans of any "spark of hope for world conquest."

For reassurance, Stimson turned once again to his two favorite legalists, Marshall and Frankfurter. Marshall was "very much troubled, particularly about the report of Roosevelt’s attitude towards shooting without trial and that to me is the problem before us which is fraught with the most danger." Over yet another dinner, Frankfurter agreed too. "As to the shooting without trial," Stimson wrote, "he said that was preposterous and he agreed wholly with me that I should resist it with all means within my power."

The collapse of the Morgenthau Plan

Stimson, or some other enemy of the Morgenthau Plan, did have one final trick within his power: a perfect piece of Washingtonia. The Morgenthau Plan leaked. On September 24, The New York Times ran a front-page story under the headline, "Morgenthau Plan on Germany Splits Cabinet Committee," reporting that Stimson "violently opposed" the plan. As far as the press knew, the issue at stake was Morgenthau’s pastoralization proposals; this story did not mention executing war criminals.

The leak hit the Morgenthau Plan in its one weak spot. Most of Morgenthau’s ideas were fairly popular, but not pastoralization. In an April 1945 poll, only 13% of Americans approved of pastoralizing Germany, while 56% wanted only to keep close supervision over German industry. Stimson’s protestations of innocence notwithstanding, if someone had meant to use public opinion against Morgenthau, pastoralization was a clever issue. Roosevelt also worried that the Morgenthau Plan would stiffen German resolve on the Western front, putting American soldiers at risk.

"Now the pack is in full cry," Stimson wrote in his diary. Morgenthau immediately saw the danger. After follow-up stories and editorials in The New York Times and its rival, The New York Herald Tribune, Morgenthau asked Hull to plug the leaks: "I had understood that the War Department had been talking to Walter Lippmann," the most influential columnist in Washington. Public opinion quickly swung against pastoralization. "Give them another month," a Morgenthau aide said, "and it will be as dead as a doorknob as far as trying to get public acceptance."

That was optimistic. A mere three days after the Morgenthau Plan hit the front pages, Roosevelt called Stimson to recant. Roosevelt said that he had not really planned to pastoralize Germany. Roosevelt, Stimson wrote,

Roosevelt backed away from the Morgenthau Plan and the Québec Conference with an easy flexibility of conviction. Lunching with Stimson, Roosevelt "grinned and looked naughty and said ‘Henry Morgenthau pulled a boner’ or an equivalent expression, and said that we really were not apart on that…"

The whole Morgenthau Plan was destroyed by American public opinion, but not because of its summary execution plans. Had Americans evaluated the Morgenthau Plan on war criminals, they would probably have sided with Morgenthau. In practical terms, the Morgenthau Plan’s demise signaled a sudden reversal in America’s nascent war criminals policy. Trials became the order of the day. Stimson–the great advocate of exporting America’s domestic legal norms–suddenly found himself in charge.

From the Morgenthau Plan to the Bernays Plan

"I am sorry for Morgenthau for never has an indiscretion been so quickly and vigorously punished as his incursion into German and Army politics at Quebec," wrote Stimson. The center of gravity on war crimes policy shifted with breathtaking speed to the War Department. For all the twists and turns in the road, American war crimes policy was in its essence set: there would be trials for the German leadership and for lower-level perpetrators. To be sure, the exact nature of these trials would preoccupy officials well into 1945; fierce debates about international law would rage; White House officials would try to divine Roosevelt’s position. But the basic legalistic policy was set.

The War Department proved adept at drafting trial plans. Stimson had already found support for war crimes trials among military men like Marshall, and the department had well-established mechanisms for dispensing military justice, like the judge advocate general (JAG). By the time the Morgenthau Plan met its leaky demise, Stimson’s general preference for trials had already been more thoroughly elaborated by Murray Bernays, a young colonel in a special projects unit of the War Department’s personnel branch.

The Bernays Plan echoed Stimson’s objections to Morgenthau’s hard line. Summary execution, Bernays argued, "would not solve the problem of punishing the thousands of less outstanding culprits." Anything less than American legalism

If Nazi war criminals were not tried, "Germany will simply have lost another war. The German people will not know the barbarians they have supported, nor will they have any understanding of the criminal character of their conduct and the world’s judgment upon it." To Stimson’s satisfaction, Cramer, Bernays and other JAG officials had concluded that the Allies could set up local and international war crimes tribunals, the latter for war crimes that did not pertain to any one particular country. "[D]eeply interesting," Stimson noted. He had found a way to export the basics of American law.

In another way, the Bernays Plan bore unique signs of its American parentage. The War Department worried about the virtual impossibility of trying every single member of the SS, SA, Gestapo, and other Nazi terror organizations. Bernays and Stimson’s creative solution to this problem drew explicitly upon American domestic precedents: charging groups with a conspiracy to commit a crime. So Bernays proposed charging the German government, the Nazi Party, and the terror organizations with "conspiracy to commit murder, terrorism, and the destruction of peaceful populations in violation of the laws of war." Once these organizations had been convicted, any member of them could be swiftly punished; instead of proving individual guilt, national or Allied courts would only have to prove that the defendant had been a member of a criminal group.

This odd idea sprang from American domestic law–in particular, American domestic law as practiced by Henry Stimson. As a federal prosecutor under Theodore Roosevelt, a young Stimson had successfully slapped the sugar trust with conspiracy charges, convicting the organization of putting holes (17 of them, a fact Stimson never tired of repeating) in the scales at a port in order to underweigh the imported sugar and thereby dodge tariffs. When Bernays mentioned convicting the Nazis of a conspiracy to wage World War II, Stimson

What exactly did the American Sugar Refining Company have in common with the Gestapo? And yet Stimson’s inapposite analogy came to drive much of the formulation of American war crimes policy. Stimson had in mind "my picture of a big trial for conspiracy involving the leaders and actors all the way down who had taken part in the different atrocity camps and mass murder places." McCloy told a skeptical Morgenthau, "After Justice Jackson puts the Gestapo on the stand and has indicted them like the American Sugar Company or whatever it was, then he says, ‘By God, you’re guilty.’"

This is one of the more bizarre tributes ever paid to the rule of precedent, but it gives a telling impression of the extent to which America could be driven by a respect for its own law–even law that bore as little relation to the new situation at hand as 17 holes in a sugar scale did to the German atrocities. (The conspiracy charges worked particularly badly at the Tokyo trials.) To Stimson’s satisfaction, the War Department’s plans gave

What mattered was domestic legal norms.

On January 3, 1945, Roosevelt gave his imprimatur to the idea of war crimes trials. In a somewhat enigmatic memorandum to Edward Stettinius, now secretary of state, the President wrote: "The charges against the top Nazis should include an indictment for waging aggressive warfare, in violation of the Kellogg Pact. Perhaps these and other charges might be joined in a conspiracy indictment." Oblique as the memorandum was, Roosevelt’s position was a vindication for Bernays and Stimson’s conspiracy plan.

Trounced, Morgenthau remained skeptical of legalism. When confronted with plans for Nuremberg, he was displeased enough to compose a long memorandum to Harry Truman, although he never sent it. Caving to Stimson, Morgenthau accepted the idea of "simple and expeditious" trials, using "regular legal methods" even against the Nazis. But he worried that Allied legalists had

Morgenthau feared that the German criminals might "go free again" (presumably a Leipzig reference), if the Allies stuck to "all the technicalities and complexities of Anglo-American jurisprudence in the prosecution of war criminals." He feared trying "to transplant our technical legal procedures to Germany." Morgenthau concluded:

This was a remarkable mirror image of Stimson’s arguments, right down to the references to the Supreme Court. Morgenthau feared that American legal mechanisms would let the Nazis dodge true justice. Much as Morgenthau had disagreed with Stimson, the two men had understood each other perfectly: the issue at hand was the appropriateness of exporting America’s domestic legal norms.

It was only after all of this cabinet-level dueling that Truman plucked Jackson from the Supreme Court to represent America at the negotiations in London over Nuremberg’s charter, and then to lead the American prosecution at the tribunal. When Morgenthau doggedly raised some of his old objections to Jackson, Jackson could respond that he was simply doing his duty as a lawyer in the American tradition:

It was only after Stimson had confronted Morgenthau broadly that such a narrow argument could suffice. At the end of America’s most brutal war ever, the Germans would be accorded the benefit of legal procedure as it had evolved in America, because of an American belief in the rightness of its own domestic legalism.