Abstract
In April of 1945, members of the U.S. army massacred twenty unarmed prisoners near Tambach, Germany. This paper examines the army's response, and why despite abundant evidence and multiple confessions the military justice system failed to convict anyone for the crime. The system faltered due to an incomplete shift in the nature of military justice, one that sought to turn it from a disciplinary tool into one capable of punishing war criminals. The incident at Tambach was not unique, and instead shows a system in crisis – one unable to hold soldiers accountable for illegal violence on the battlefield.
On 8 April 1945, 2nd Lt. Vincent Acunto, of F Co., 345th Infantry, 87th Infantry Division of the U.S. Army was engaged in combat outside the German town of Tambach. At some point, he asked, “Who wants to shoot some prisoners?” and he and unknown members of the 345th Infantry's 2d Battalion took seventeen German prisoners, all unarmed adolescents, into the nearby woods and did just that. Acunto admitted his actions when later pressed, but he justified them by claiming he was acting on the instructions of a superior officer, 1st Lt. Hayley F. Thomas, G Co. 345th Inf. More unsettling, Lt. Acunto claimed shooting prisoners was common within the division and high ranking officers had instigated and condoned the practice. A court-martial found his story compelling; they acquitted him. But instead of bringing his superiors to trial, the army let the matter drop. No one was held responsible for the killings. 1
This failure was a product of the military justice system. A disparate bunch of soldiers and officials, from mud-encrusted grunts to star-clad generals, from conscript lawyers-in-uniform to bespectacled political appointees, the American military justice system of the Second World War was designed for discipline rather than justice. Its apparatus for handling internal war crimes cases was built from improvised parts, shorthanded, undertrained, and unprepared to deal with what occurred at Tambach.
That should come as little surprise because it was not intended to. The idea of a “war crime” was less than a century old, and through 1934, War Department publications gave American troops the authority to execute prisoners at their discretion should they deem it necessary, going so far as to state that “all troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none.” Reprisals, not trials, were the central mechanism for states to punish enemy soldiers, and they assumed that if the enemy wanted justice they could take it for themselves. This would change modestly after the Leipzig war crimes trials in 1921, and then only for members of the defeated German army and with little success. It was the 1943 Moscow Declaration on Atrocities that committed the Allied powers to trials for all German war criminals and, out of a somewhat strained sense of fairness, their own. 2
At the same time, military justice was civilianizing. For most of its history military justice was, as the author of the American Manual for Courts-Martial told the Maryland Bar Association in 1919, concerned with “victory, not justice.” Soldiers were subject to a system designed to maximize the disciplinary power of commanders. Judge advocates played virtually no role in the system's day-to-day goings on and there was no requirement that a lawyer of any stripe be involved in a court-martial. 3 Americans widely viewed it as draconian and arbitrary. “I contend…that the existing system of Military Justice,” wrote the acting Judge Advocate General of the U.S. Army in 1919, “must ever result in such injustice as to crush the spirit of the individual subjected to it, shock the public conscience, and alienate public esteem….” In 1920 a slate of reforms lurched towards professionalizing the system and increasing the protections of soldiers subjected to it. Pre-trial investigations were now mandatory; at least one judge advocate had to be present to answer questions about the law for the lay officers on the court; the judge advocate corps had to review serious cases for procedural correctness and was given the power to overturn verdicts for those improperly found guilty. 4
The Second World War was thus a singular moment in the history of military justice, where a system built for discipline suddenly found itself expected to investigate and try war crimes cases, and to try them in greater accordance with civilian ideas about the rights and protections due to the accused. No great expansion of the machinery of military justice accompanied these changes, no thought given to whether the existing machinery, a small number of professionals supplemented on an ad hoc basis by amateurs, could meet them. 5
The killings at Tambach therefore reveal a system in crisis. The army had not provided the manpower and administrative apparatus required to respond quickly and effectively to the mass shooting of POWs, to gather evidence to successfully prosecute perpetrators, to oversee the system to ensure it was functioning and to make adjustments if it was not. These problems made it difficult to secure convictions even in clear-cut cases. The neglect of military justice had left the army unequipped to meet the expectations of the civilian government, and by 1945 that neglect had taken on the character of active indifference to enforcing these new legal requirements. 6
Background
The pageant of institutional failures that was the Tambach affair fell against the backdrop of the last days of the American drive into Germany. American forces had defeated the German offensive in the Ardennes by late January 1945, and the Wehrmacht's collapse swiftly followed. By the end of March, the United States Army crossed into Germany, engaging in a breakneck pursuit of retreating German forces. The 87th Infantry Division advanced roughly one hundred miles in the ten days before their arrival at Tambach, learning of the liberation of the Ohrdruf concentration camp and the extent of Nazi crimes. Resistance was light, and Lt. Acunto's 345th Infantry Regiment moved to attack on 6 April. Roadblocks and sporadic sniper fire hindered their progress, but they did not slow until they reached the twin towns of Tambach-Diehartz. Open fields, German observation posts, and defensive positions surrounded the town. As they approached on 7 April, machine guns and cannon greeted them. The regiment shelled the town and settled in for the night. 7
Near dawn, three companies of German adolescents, pressed into impromptu service from a nearby Hitler Youth school by SS die-hards, attacked across the open fields outside of Tambach. For half an hour the forest edge strobed with gun fire as they made a last, vain charge. In the end, F Company, 2d Battalion, 345th Infantry recorded 44 Germans killed with more wounded and captured. The Americans lost only six killed in taking Tambach. Soon, however, rumors began circulating that not all the prisoners had made it back to the cages. 8
Reporting
Rumors are not reports, however, and the first and most grievous failing of the justice system was that the army had no system for reporting war crime allegations. 9 The army expected military police to refer serious crimes to higher authority for investigation, a system that may have worked in the rear, but not at the front. Most divisions had only a platoon of MPs, who also maintained discipline, directed reinforcements, and protected supplies. 10 Most infantrymen encountered them only in the rear, and then only sporadically. Soldiers informed their superiors as their inclinations dictated, and their commanders did as they wanted with those reports. If they let the matter drop, they were unlikely to have to defend their decision to anyone except their immediate superiors. Understandably, soldiers who felt their primary job was to win the war did not express much interest in playing detective.
The Tambach killings were only revealed due to the persistence of Sgt. William Sanders and his battalion commander Lt. Col. Harald Sundt, both of the 607th Tank Destroyer Bn., then attached to the 87th Infantry Division. 11 On 8 April, Sgt. Sanders overheard discussions of how U.S. soldiers with the 345th Infantry had killed fifty prisoners of war nearby. He went into the woods looking for the bodies and found seventeen. 12
The sergeant returned to his fellows, who were still discussing the killings. Maj. Robert Aranow, the 345th Infantry Regiment's artillery liaison officer, overheard the discussion. He said he was not convinced it was murder, and ordered Sgt. Sanders to stop spreading “false rumors.” 13 Maj. Aranow called over Col. Douglas Sugg, commander of the 345th Infantry, who lay into Sanders: “Do you know that starting rumors is a very serious offense and I can have you court-martialed? My boys don’t kill Germans that way.” As the officers left, Maj. Aranow gave the sergeant some advice: “From now on keep your mouth shut. You can see things but don’t talk about them. We can’t have rumors like that.” 14
Sgt. Sanders might reasonably have dropped the issue. Instead, he persisted. He found a receptive ear in Lt. Col. Harald Sundt, commander of the 607th Tank Destroyer Battalion. He agreed to view the scene. On arrival, they discovered there were now only eight bodies. They concluded the others had been moved. 15
The colonel was certain what he saw confirmed Sgt. Sanders’ claims of a massacre. The next day, he reported the incident to Maj. Gen. Frank L. Culin, commander of the 87th Infantry Division. He stated he believed men in the division were shooting prisoners and “personally he would not stand for it.” Culin ordered him to investigate. 16
The men of the 607th TD Bn. were atypical, however. Many others heard about or saw the shootings and did nothing. Several enlisted men and at least three officers, including Maj. Frank Ramsay, visited the massacre site. Despite being the ranking officer present, Ramsay felt no responsibility to report what he knew was a massacre of prisoners. He “assumed the instance had already been reported” since “there were many officers who came down there and at least one member of the battalion staff.” Without any clear rules on who was required to report a war crime, no one felt personally responsible. 17
Nor was this blasé attitude toward homicide confined to Sanders’ section of the line. In a separate incident that took place the night before Lt. Acunto's fateful bout of volunteerism, Lt. Elliot Schechter of the 607th TD Bn. was resting on his jeep as American forces reached Tambach's outskirts. He saw Pfc. Francis Facchiano, from the medical detachment assigned to 3rd Bn., 345th Infantry, and a man Schechter believed to be an Italian camp follower working in L Company's mess walk past with three Germans in civilian clothes. Americans had recently liberated the Italian from the concentration camp at Ohrdruf, and the regiment clothed him and took him on as a cook. They stopped about twenty-five yards away and took the civilians into the woods. Lt. Schechter would later claim that Pfc. Facchiano “shot one of them with a German pistol in his hand and [the camp follower] shot the other two with a rifle he had” while he and his comrades “just looked at it open mouthed.” 18
One of Lt. Schecter's comrades in the 607th, Lt. Richard Seidel, tried to report the killings. When Seidel reached the rear, he told Capt. William C. Prisk, a staff officer with the 3rd Bn., 345th Infantry, what he had seen and that “[he]…would like to have [such things] stopped.” Capt. Prisk replied, “[Y]ou haven’t been shot at today, have you?” The lieutenant retorted that he was used to being shot at and still felt killing prisoners “was not the proper thing to do and against all principles of the American Army.” 19 Later, the captain sought him out. There had been a mistake; Prisk thought he had “referred to our men not capturing any prisoners” since “[Germans] are sometimes shot by the Infantry before they are taken prisoner.” Once it was clear he was “referring to Jerries [that had been shot] after [being captured he] tried to make it right with [Seidel] and immediately put out the order to the battalion that there would be no more of that if it had been going on.” 20
They reported the matter to the acting commander of 3rd Battalion, Lt. Col. Arthur Woodside, who doubted the civilians had been shot after surrendering. The Germans had killed a popular officer earlier that day, and “the whole company was practically in tears.…With the men feeling this way,” Woodside later said, “I didn’t think there’d be any prisoners.” Still, he agreed to discuss it with Lt. Col. Robert Moran once he returned from leave. 21
On their commander's return, Woodside and Prisk gave him a brief report. All agreed the camp follower was responsible. Woodside “put out an order that displaced [persons] or any released prisoners of war would be kept out of the area and would not be permitted to travel with the companies,” and the matter was settled. 22
If the army wanted to address American violations of international law, it can only be said that this reporting system was painfully inadequate. Most soldiers who knew about the killings said nothing. Of those who spoke out, only Sgt. Sanders’ report went anywhere, and only because Lt. Col. Sundt took aggressive action.
The simplest explanation for this failure is that none of those responsible were prepared for the task. Indeed, the unwillingness of senior officers to believe American soldiers would murder prisoners showed inexperience and naïve confidence in their comrades. Col. Douglas Sugg, commander of the 345th Infantry, claimed he simply could not conceive of it because he “had never previously at any time heard of…any of my soldiers…shooting any prisoners.” 23 Other officers’ disbelief came from a skepticism that dismissed reports as wild rumors. One officer thought the bodies of Lt. Acunto's victims had been piled for removal and the reports were from men who let their imaginations run wild. 24 Line officers’ practical orientation further blunted this preparedness. Lt. Col. Woodside was preoccupied winning his battalion's last serious fight of the war. The battle, he said, “was my main consideration. One or two more dead Germans at that stage didn't enter my head.” 25
But officers’ legal ignorance also played a role, and some believed their men had broad latitude in refusing quarter. The officers of 3rd Bn., 345th Infantry openly acknowledged surrendering men were being shot, something they did not see as criminal despite the U.S. Army's Rules of Land Warfare explicitly forbidding “declar[ing] that no quarter will be given” or harming an enemy soldier who “laid down his arms.” 26 This is not surprising since the army gave officers only sporadic training on the laws of war, with rote monthly recitations of the army's Articles of War serving, and training on international law and the Rules of Land Warfare occurring haphazardly and at the discretion of individual units. After the war the army concluded that its responsibility to educate its officers in the law surrounding war crimes “was not adequately discharged.” 27
Investigation
Even if the army had had a functional way for soldiers to make reports, the military justice system was unprepared to mount an effective investigation. Theoretically, the army's investigative apparatus was well developed. The Provost Marshal's Office maintained Criminal Investigation Detachments to handle serious crimes committed by U.S. troops. In practice, frontline troops were on their own, and so they relied on whatever officers were present. Exacerbating the problem was that battlefield crimes were difficult to investigate regardless of the quality of personnel. Crime scenes were often lost, trampled, or contaminated by fighting. The Tambach investigations were characterized by unusual zeal and efficiency, with untrained personnel doing exceptional work with few resources. But even then, the investigations nearly failed, barely gathering enough evidence for trials. And this was only possible because the war had wound down, with personnel otherwise needed for fighting now available for the task.
As with reporting, successful investigations began with the few officers willing to expend their time and energy, and here none distinguished themselves more than Lt. Col. Harald Sundt of the 607th TD Bn. Sundt brought allegations of the seventeen youths killed in the woods to the commander of the 87th Infantry Division, Maj. Gen. Culin, marking the start of the Army's formal investigation. After meeting with Culin, Sundt ordered his adjutant, Capt. Harold Haberkorn, to question anyone with information on the killings. On 10 April, Haberkorn met with Sanders and enlisted men from the 607th who knew about the killing in the woods. Most testified they had seen men from the 345th Infantry march a group of prisoners down a road, some commenting in passing that the prisoners “wouldn’t get very far.” 28 Two affiants offered leads on who might have organized the killings. One claimed he’d seen 1st Lt. Haley F. Thomas of 2nd Bn, 345th Infantry order his men to take seven prisoners into some trees, followed by shooting shortly afterwards, the first substantive lead in the case. 29 The other stated he had heard a lieutenant solicit volunteers to “take care of the prisoners.” 30 Lt. Elliot Shechter (also of the 607th) heard about the investigation, and went to tell Haberkorn about the medic and the camp follower executing three German civilians, finally bringing that separate incident to the formal attention of the military justice system. 31
If the investigation in the 607th TD Bn. shows what a diligent officer like Sundt could accomplish, a parallel effort shows the pitfalls of this ad hoc system. Col. Douglas Sugg, commander of the 345th Infantry, ordered a concurrent investigation into the Acunto killings, this one perfunctory and slipshod. Sugg initiated this parallel investigation only after his division commander had been informed of the allegations, and then explicitly to get ahead of the allegations against his men. 32 He assigned his adjutant, Lt. Duane Essam, to the task. On 12 April, Essam spoke with members of the 2nd Bn., 345th Infantry, taking statements from only ten men, most near verbatim copies of each other, who did little more than affirm that yes, they heard prisoners may have been shot, but no, they did not know who participated. 33 He made no effort to talk to or coordinate his efforts with anyone from the 607th TD Bn. Based on Essam's report, Sugg decided that further efforts were unnecessary. 34
Maj. Gen. Culin was unimpressed. The report from the 607th left Culin certain something had happened at Tambach. He appointed a Board of Officers to investigate further, knowing he needed to act quickly and that CID assets were not at hand. 35
The Board's effort was more productive than earlier efforts, uncovering the names of several possible perpetrators. Between 23 and 28 April, three senior officers interviewed almost all the principals from the previous investigations, including key witnesses from the 607th TD Bn, and every available man from 2d Battalion, 345th Infantry in batches of five. Of these, forty-four were questioned at length. 36
The Board's work demonstrates the severe practical limitations war crimes investigations operated under. Indeed, its thoroughness was only possible because the war was virtually over. The investigation required the commitment of several senior officers and took substantial portions of three battalions off the line for nearly a week. Immobilizing an entire infantry regiment, possibly a whole division, would have been impossible during the Normandy breakout or the Battle of the Bulge. 37 The timing also made it far less likely that key witnesses would be killed during the twenty days between the crimes and the investigation's conclusion. These were nearly ideal conditions.
These conditions allowed the Board to make headway in uncovering the truth of the killings. Two enlisted men from the 607th TD Battalion identified Pfc. Francis Facchiano of the 3rd Bn., 345th Infantry as the medic who had been involved in killing the three civilians with an Italian camp follower. Both realized what was happening after hearing the first shot, and then saw the camp follower kill the remaining civilians, though each noticed a German pistol in Facchiano's possession. 38 Facchiano denied shooting anyone but admitted being with the camp follower during the killings. When asked to speculate what might have driven the man to murder, Facchiano said he had been close with an officer killed that day. 39
They also questioned 1st Lt. Hayley F. Thomas of 2nd Bn., 345th Inf. about allegations he had organized the larger batch of killings on the morning of 8 April. Thomas claimed ignorance, maintaining he had given orders the prisoners be taken through the woods, but only because that was the shortest route to the command post. He had heard rumors of prisoners being killed, but knew nothing further. 40
Thomas was not the only officer scrutinized for the killings. One soldier identified 2nd Lt. Vincent Acunto, 2nd Bn., 345th Inf., as having asked, “Who wants to shoot some prisoners?” before leading the resulting volunteers into the woods. 41 When called before the Board, Acunto admitted he had asked for volunteers to kill the men, but claimed he had acted on instructions from Thomas, who had been the ranking officer on the scene. He said Thomas had been “broken up and in a bad state because he had just lost one of his officers and he was talking about shooting the prisoners… . He told me . . . get a volunteer for each prisoner to take them back in the woods and shoot them… . I think there were somewhere about six prisoners…in that group.” Acunto gave no explanation for how the other eleven prisoners might have been shot. 42
The Board's report was scathing. They were convinced Facchiano and Acunto were guilty of murder and should stand trial. Thomas’ role was less certain, but it was felt there existed a “presumption [of guilt] that is so strong that trial is recommended.” However, Acunto and Thomas would only stand trial for “approximately seven” of the seventeen murders. The Board found no evidence indicating the parties responsible for the other ten deaths, nor did it see how to find them given the wall of silence that existed. Not one witness offered the name of any enlisted man that may have been party to either batch of killings. The Board castigated 2nd Bn. for having “a poor disciplinary situation.” It demanded the commander be relieved. It gave Col. Sugg special attention for failing to “pursue a positive and forceful line of action to investigate the reports” as commander of the 345th, and for accepting “a perfunctory negative report” that had failed to seek out key witnesses from the 607th TD Bn. It also recommended Sugg be tried for conduct prejudicial to good order and discipline, though here it recorded its only dissenting vote. 43
The Board was uneven in its disciplinary recommendations. The 2nd Battalion's officers came in for ready and repeated censure, while those in 3rd Battalion who had also failed to investigate the deaths of the three civilians in the incident with the camp follower went unmentioned. The Board also neglected to pursue several smaller matters that surfaced during the investigation. These included allegations of American soldiers using a prisoner as a human shield and subsequently executing him and an enlisted man's allegation of a lieutenant shooting a lone prisoner. Neither received sustained inquiry from the Board. While the first allegation was vague enough to be understandable, the allegation against the lieutenant was more specific. The officer reportedly had a prominent bandage on his chin, and Vincent Acunto identified Lt. Richard Gerrish, HQ Co., 2nd Bn., 345th Infantry as having had such a bandage. Gerrish was not questioned about the allegations. 44
We might be tempted to attribute these failures to Maj. Gen. Culin's decision to assign inexperienced officers to such a serious matter, but it is unclear that the army had a better option for him to avail himself of. The task of handling violent crime generally fell to members of the Provost Marshal's office, either military police or the more specialized Criminal Investigation Detachments. These organizations were officially responsible but forever shorthanded, especially by war's end. Violent crimes by American soldiers spiked as the army drove through Germany. The Criminal Investigation Detachments handled 1,673 violent crimes between March and April, roughly forty-five cases per detachment and three per man, plus innumerable non-violent or military offenses. The seven CIDs in Germany had a total of 105 men, and handled a disproportionate number of violent cases. 45 Given the mismatch between workload and manpower, commanders understandably sought support elsewhere.
War crimes investigations were also inherently difficult, demanding swift, skillful action to have any hope of success. Preserving enough battlefield evidence to support trial was nearly impossible except under the most favorable conditions. Such crimes almost inevitably saw the total destruction of virtually all relevant physical evidence. 46 Unlike a civilian crime scene where bodies are left in place until police have gathered evidence, a battlefield works differently. The U.S. Army sought to clear the dead as quickly as possible. The task of the Graves Registration units (who ensured the dead received prompt, marked burials) began “as soon as the area [was] free from hostile fire.” 47 In the 87th Infantry Division, Graves Registration typically began the day after the battle, once the fighting moved on. After finishing with the American dead, they would drag German bodies to collection points to be sent to the rear for processing, at which point they were no longer available to the justice system. 48
Maj. Gen. Culin and the Board of Officers could hardly have been more thorough given available resources. Their principal hurdles – the inadvertent removal of evidence by Graves Registrations Units and the silence of the enlisted men of the 345th Infantry – could have been mitigated by swift action from skilled criminal investigators, but they were too few to effectively police the theater, at least at the front. Yet despite scant initial evidence, diligence and luck allowed the Board to turn a “fishing expedition” into a recommendation for the trials of over half a dozen individuals. 49
Trials
If the military justice system's handling of war crimes cases has to this point been characterized primarily by improvisation and amateurism, we will find that its formal courts-martial deviate from these themes only by degree. Courts-martial were rigidly organized, with entire field manuals devoted to their meticulous procedures. 50 But when it came to war crimes, those responsible for enforcing the law again had to muddle through as best they could.
Courts-martial were overwhelmingly staffed by regular officers who might have some experience with the system but who were rarely trained lawyers and almost never judge advocates. Infantry divisions had only two judge advocates; airborne and armored units received just one. At best, a court might have one judge advocate as a law member – assigned to answer procedural and legal questions for the court – and another to prosecute or defend the case. This was only possible if no other courts-martial were in session and the judge advocates were not otherwise occupied. 51 No other officers on the court were attorneys.
To exacerbate the problem, the army's laws pertaining to the particular problem of mass murder were muddled. Murder was plainly illegal, but no clear guidance existed on whether a soldier was complicit if he was present but did not pull the trigger. More seriously, there was no clear guidance on whether a soldier's legal culpability was diminished if he killed on a superior's orders. The War Department's guidance on international law had held until November of 1944 that a soldier “will not be punished [for offenses] committed under the orders or sanction of their…commanders,” despite the fact that the Articles of War held that such orders were only a defense if a reasonable man would believe them lawful. The War Department updated its guidance on the problem of superior orders by 1945, but here only said that the law allowed a court to use its discretion in determining whether superior orders could serve as a defense. Even judge advocates lacked answers as to how these laws interacted, as there was no established precedent to guide them. 52
These problems rapidly became apparent at Tambach. Given the number of men involved and the case's complexity, Maj. Gen. Culin conferred with Staff Judge Advocate Capt. William Rooney of the 87th Infantry Division and judge advocates from VIII Corps, First Army, and Ninth Army about how to proceed. They decided to begin with the most clear-cut cases, formally bringing charges against Facchiano and Acunto on 7 May. 53
Facchiano's case was murkier from an evidentiary perspective, but simpler legally. It hinged on whether he had opened fire on the civilians or just acted as an accomplice. The former was difficult to prove but clearly illegal. To hedge their bets, the prosecution also charged Facchiano, a medic, with carrying a weapon in violation of the laws of war. 54
The prosecution focused on proving Facchiano had personally killed a civilian with an illegal weapon. Three principal witnesses claimed to have seen Facchiano shoot a prisoner with a German pistol. 55 The prosecution failed to probe Facchiano's knowledge of the camp follower's intentions, nor did they question how a supposedly unarmed medic wound up escorting prisoners in the midst of a battle, or how Facchiano could have failed to recognize what was happening once they left the road. They had to, since judge advocates had no clearly established legal standard for when soldiers could be found guilty of a murder where they did not physically harm the victims. 56
The defense took a three-pronged approach to establish reasonable doubt. First, they introduced witnesses who had seen the killings but claimed Facchiano was not the shooter. Second, they introduced testimony that suggested these particular prisoners had been soldiers fighting in civilian clothes, making it legally ambiguous if their killing constituted murder. Finally, they claimed officers favorable to the prosecution had coached witnesses to falsely implicate Facchiano. 57
Lacking the physical evidence to corroborate or contradict witness accounts, the case proved beyond the skills of the prosecution, none of whom were judge advocates. Facchiano was acquitted. 58
The facts of Acunto's case were more straightforward, if not their legal implications. The prosecution started with an advantage: Acunto had admitted to gathering volunteers to shoot prisoners. To counteract this, the defense had to prove “the accused was acting under orders of a superior officer [Hayley F. Thomas], and…that the acts were justifiable to him…because of the mental attitude of…the soldiers in the Division [and] the higher ranking officers.” The law member, there to answer legal questions for the regular officers that constituted the rest of the court, agreed this could constitute a defense under the Articles of War if it could be demonstrated that in the 87th Infantry Division, killing prisoners was “a sort of addition to the rules of land warfare as set forth in the field manual.” 59 As we will see, this was a suspect interpretation of the law, but no judge advocates were present that day to dispute it.
To prove such an unofficial policy existed, the defense introduced testimony seeking to establish a climate of divisional support for killing prisoners. An officer who had been at the replacement depot with Acunto testified that veterans told new soldiers that sometimes prisoners were shot after combat and this was normal practice. 60 Other witnesses testified to an indifference to the laws of war in the division. A sergeant explained, “I don't know any cases where they have been shot but if I did hear one I wouldn't pay too much attention to it because I don't give a damn about them.” Both men also testified that in early March Maj. Gen. Culin himself had helped set the unit's attitudes towards prisoners. A German sniper had “shot three tankers. One of them was killed and the other two wounded,” the sergeant recalled. “The man had been captured and the General, hearing it, said, ‘Has he been shot?’ and the answer was, ‘No, sir.’ The General said, ‘Why not?’” Purportedly, the story was common knowledge within the unit and there had “been cases where prisoners came in and some of the boys would quote that case.” 61 Finally, the commander of 2nd Battalion, 345th Infantry claimed George Patton had personally told them “not to line up any prisoners against the wall and shoot them…. Shoot the bastards before they get to the wall.” 62
The defense's strategy was wildly successful; the court acquitted Acunto after less than an hour's deliberation. 63
The acquittals ended Facchiano and Acunto's involvement, but highlighted the problems bedeviling the military justice system. The proceedings were first reviewed by a judge advocate to ensure correct procedures had been followed and the law had been applied fairly and correctly, and to note if the court had handed down a conviction out of step with either the law or the facts. This task fell to Capt. William J. Rooney, acting Staff Judge Advocate for the 87th Infantry Division, and revealed deep disagreements over the nature of criminal responsibility for killing prisoners. 64
In Facchiano's case, the review was straightforward, the law being clear. Rooney supported the court's decision. The central question had been whether Facchiano's involvement constituted conspiracy to commit murder “in conjunction with” the camp follower. Given the “paucity of evidence” that Facchiano “aided and abetted in commission of the crime,” Rooney believed the court could not reasonably have ruled him guilty. 65
Rooney was less pleased with the court's acceptance of Acunto's legal gambit, a case he believed should have been open and shut. Acunto admitted to asking for volunteers to murder POWs. While his ignorance of the laws of war was readily apparent, it could not exonerate him. Rooney believed that even if Acunto received orders from a superior officer to shoot the prisoners…[it] would not, if true, absolve him from responsibility.…To “save his own neck” the accused offered evidence of remarks alleged to have been made by the Third Army Commander and the Division Commander. Such remarks could not, even if true, form a basis or justification for the actions of the accused.
66
Review
The acquittals were not the end of the affair. They instead marked the final phase of any case – a review ensuring justice had been done. Rooney's reviews started this process; it was a judge advocate's responsibility to check for procedural correctness and address any shortcomings. But the justice system was not prepared to deal with the possibility that its own officers might attempt to subvert it. Soldiers regularly alleged that the system showed favoritism towards commanders and a general diffidence towards the rights of the accused; the army had instituted a system of appellate review solely to combat this problem. 69 Few were prepared to deal with a situation where a court appeared biased on behalf of the accused because of the victim's uniform. If the army suspected that a court or a commander had deliberately ignored the law, remedies existed, but required the intervention of extremely senior officers or even the Secretary of War and were not undertaken lightly.
Nor could they be done quickly. The system for holding commands accountable was ponderously slow, demanding unreasonable amounts of time and attention from senior personnel. The lack of speed would prove a problem at Tambach because the army was up against the end of the war and the immutable fact that virtually all of the principle players would be demobilized within a year as the wartime army dismantled itself. Yet if we are inclined to see this as an unusual time pressure, it is worth noting that in some ways it was more forgiving than the war had been up to that point. Staggering casualties, particularly in rifle companies, had been very common. Had the events at Tambach taken place earlier in the war chances were good that most of the principals would have been killed, wounded, or captured. Unlike civilian justice, military justice did not have the luxury of time. 70
The first part of the accountability process lay with Maj. Gen. Culin of the 87th Infantry Division, who decided how to handle the other soldiers the Board of Officers had recommended for trial, several of whom had undermined efforts to find those responsible for Tambach. By 13 May, the division judge advocate preferred charges against seven officers, including Col. Sugg and Lt. Thomas for conduct prejudicial to good order and discipline. Five, including Col. Sugg, were to face a court for concealing information about the killings, while the lieutenant was to stand trial for murder. 71 The division conducted another round of investigations (though no record of these investigations exists) and Maj. Gen. Culin decided against trying any of the accused. By 22 June he concluded there was “insufficient evidence to warrant trial by general court-martial,” despite the fact that some, like Douglas Sugg, had given official statements admitting to ignoring reports of serious misconduct. He left no record of why he found this evidence insufficient. 72
Staff Judge Advocate Rooney was not the only officer to protest the outcome of Lt. Acunto's trial. On 26 June, Maj. L.A. Whitener, JAGD, reviewing the case within a broader end-of-war assessment of courts-martial to alert the army to the existence of any “bad military situation[s]” that might need to be reported, offered a strongly worded opinion. He agreed the court had erred seriously in acquitting Acunto, and further contended that this “shocking case of barbaric, inhumaine [sic] and wholly unjustified murder of POWs” went unpunished because “everyone from company commander through Division commander, including the Army commander, ordered or recommends the summary execution of prisoners of war.” 73
Whitener's review did what it was supposed to do; alert the highest levels of the army to the failures of its divisional courts. Once again, the case benefitted from having occurred at war's end when unusual resources were available. The European Theater's highest-ranking officer and the Secretary of War would have been hard pressed to address the issue had they been asked in June 1944. Instead, in June 1945, the senior judge advocate in Europe could send Whitener's report to Eisenhower and expect a response. Eisenhower's office sent it to the theater Adjutant General for further action. The report from the Adjutant General's office minced no words: the 87th Infantry Division had failed totally in their duty to administer justice. Acunto's acquittal was “a grave miscarriage of justice” and the court “failed to perform their sworn duty.” They excoriated the Facchiano court for their “manifest error” in acquitting him. No less than Supreme Headquarters Allied Expeditionary Force castigated Maj. Gen. Culin for not taking administrative action against the court's members and for allowing Col. Sugg and Lt. Thomas to escape court-martial, among others. The AG suggested that letters of reprimand be issued to the officers of the court. Unfortunately, the report noted, the 87th Infantry Division had left the theater in early July, and its members could not easily be recalled. The AG's recommendations were forwarded to the theater commander “for such further action as may be deemed appropriate.” 74
Whatever might have been appropriate, the war's end meant little could be done. Of the nine members of the Acunto court, seven had already left the service. The remainder of the 87th Infantry Division was “scattered.” Further action would require extraordinary measures, so the AG recommended the matter be brought to Secretary of War Robert Patterson. 75
Patterson believed the country better served by secrecy than justice; the Tambach cases were an embarrassment and no good could come from dragging them into the light. In a meeting on 9 November with Acting Judge Advocate General Thomas H. Green, Patterson stated there was “no useful purpose in continuing an investigation under the circumstances” and had Green put all records into the JAG office's secret file. There would be no further action against the five officers who had been slated to be tried for their role in the events at Tambach, and no further scrutiny of Culin's role in the proceedings. 76 Despite the Adjutant General's belief that the 87th Infantry Division's officers had failed absolutely in their duty to see guilty men punished, the army's efforts to bring the killers of twenty unarmed people to justice would die on the Secretary of War's desk.
Conclusions
If the army's handling of the Tambach killings seems deficient, one should note how improbable it was they were handled so well. From the beginning, the army was unusually lucky in their efforts. They enjoyed solid reporting, a thorough if imperfect investigation, eyewitness testimony, and a confession, more than could be asked for in any of the myriad rumored atrocities that dogged American soldiers through Europe. 77 Despite this, the army failed to secure any convictions for the killing of at least twenty unarmed prisoners. Ambiguity surrounding who could be held legally responsible for the killings tangled judge advocates in their efforts to convict Facchiano and Acunto, and encouraged both officers and enlisted men to resist efforts to locate other perpetrators. In the aftermath, the army's ponderous review procedures coupled with their ill-defined process for censuring members of a court-martial and the difficulty of taking action against soldiers who were or were in the process of being demobilized helped thwart any effort to remedy what high-ranking officers saw as an egregious failure of the court and of the 87th Infantry Division's command.
At its root, the problem was that the military justice system was still built to enact an older conception of the laws of war, one designed to provide a system of punishment to increase a commander's control over his forces to better achieve his military objectives. The army had not yet adapted to a world that expected them to enact justice in accordance with civilian mores, mores which increasingly demanded substantive protections for the rights of the accused and systematic punishment for war crimes. The War Department was not blind to these shortcomings. A final summary report on the administration of military justice in the European Theater concluded that To the extent that the objectives of military justice were to facilitate the accomplishment of the primary military mission and to insure the security of the military forces, its administration in [Europe] was effective. To the extent that the objective was distributive justice – the award of proper punishment for offenses – it was below both the ideal and a standard believed to be practical and attainable.
Some of these shortcomings were the product of the system's origins as a tool of discipline. Both the War Department and the army's senior leadership had been willing to accept an acute shortage of military police and judge advocates from the war's outset to allow scarce manpower to be allocated to the more pressing problems of combat. The situation was only modestly addressed by infusions of police (and a more limited number of lawyers) once the system had fallen almost to pieces in late 1944, and trained personnel could not be willed into existence in 1945. 79 Rank amateurs might try drunks and deserters with some success but to expect them to enact Nuremberg in miniature was absurd, however well some officers performed at Tambach.
To have any hope of dealing with mass homicide, the army needed a sufficient body of trained professionals following well-established procedures, but by the war's end it had neither. That they entered the war without them is understandable; it was not yet clear to anyone in 1940 that barbarity would be the conflict's defining feature. That they left without remedying the situation speaks to the institution's indifference to the problem, especially given that Tambach was not without precedent. In 1943, members of the 45th Infantry Division had killed at least 72 prisoners near Biscari airfield. Only one of the confessed killers was convicted, and then released a year later after his brother's congressman began asking uncomfortable questions. Then Undersecretary of War Patterson would quash efforts within the Judge Advocate Corps’ to study the case and disseminate information about how to better handle similar incidents in the future. Those incidents were not long in coming. The army would investigate allegations of the massacre of a hundred prisoners of war during the Battle of the Bulge, and at least twenty-one during the Liberation of Dachau, among many others, rumored or reported. 80 The War Department had wagered, correctly, that their failure to punish war criminals would have no great repercussions for the country. Success, meanwhile, seemed poised to raise the ire of both those on the homefront increasingly concerned about draconian army justice and those abroad who might use the moral failings of U.S. soldiers to embarrass the government.
The Second World War has often been cast as “The Good War,” a clean war between uniformed combatants against which the grubby ambiguity of modern warfare compares unfavorably. But Tambach suggests that that distinction lay not so much in how the war was fought, but in how that fighting was adjudicated. The Second World War was the first war the U.S. fought with the clear expectation that individual war criminals would face trial and punishment for the killing of prisoners. Because that expectation only crystallized after the war had begun it showed—for a brief moment and with unusual clarity—the inadequacy of the pre-war military justice system for handling such serious crimes.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Harry Frank Guggenheim Foundation and the U.S. Army Center of Military History.
