Military history

JUSTICE IN THE THIRD REICH

From the very first weeks of 1933, when the massive and arbitrary arrests, beatings and murders by those in power began, Germany under National Socialism ceased to be a society based on law. “Hitler is the law!” the legal lights of Nazi Germany proudly proclaimed, and Goering emphasized it when he told the Prussian prosecutors on July 12, 1934, that “the law and the will of the Fuehrer are one.” It was true. The law was what the dictator said it was and in moments of crisis, as during the Blood Purge, he himself, as we have seen in his speech to the Reichstag immediately after that bloody event, proclaimed that he was the “supreme judge” of the German people, with power to do to death whomever he pleased.

In the days of the Republic, most judges, like the majority of the Protestant clergy and the university professors, had cordially disliked the Weimar regime and in their decisions, as many thought, had written the blackest page in the life of the German Republic, thus contributing to its fall. But at least under the Weimar Constitution judges were independent, subject only to the law, protected from arbitrary removal and bound at least in theory by Article 109 to safeguard equality before the law. Most of them had been sympathetic to National Socialism, but they were hardly prepared for the treatment they soon received under its actual rule. The Civil Service law of April 7, 1933, was made applicable to all magistrates and quickly rid the judiciary not only of Jews but of those whose Nazism was deemed questionable, or, as the law stipulated, “who indicated that he was no longer prepared to intercede at all times for the National Socialist State.” To be sure, not many judges were eliminated by this law, but they were warned where their duty lay. Just to make sure that they understood, Dr. Hans Frank, Commissioner of Justice and Reich Law Leader, told the jurists in 1936, “The National Socialist ideology is the foundation of all basic laws, especially as explained in the party program and in the speeches of the Fuehrer.” Dr. Frank went on to explain what he meant:

There is no independence of law against National Socialism. Say to yourselves at every decision which you make: “How would the Fuehrer decide in my place?” In every decision ask yourselves: “Is this decision compatible with the National Socialist conscience of the German people?” Then you will have a firm iron foundation which, allied with the unity of the National Socialist People’s State and with your recognition of the eternal nature of the will of Adolf Hitler, will endow your own sphere of decision with the authority of the Third Reich, and this for all time.17

That seemed plain enough, as did a new Civil Service law of the following year (January 26, 1937), which called for the dismissal of all officials, including judges, for “political unreliability.” Furthermore, all jurists were forced to join the League of National Socialist German Jurists, in which they were often lectured on the lines of Frank’s talk.

Some judges, however antirepublican they may have been, did not respond avidly enough to the party line. In fact, a few of them, at least, attempted to base their judgments on the law. One of the worst examples of this, from the Nazi point of view, was the decision of the Reichsgericht, Germany’s Supreme Court, to acquit on the basis of evidence three of the four Communist defendants in the Reichstag fire trial in March 1934. (Only Van der Lübbe, the half-witted Dutchman, who confessed, was found guilty.) This so incensed Hitler and Goering that within a month, on April 24, 1934, the right to try cases of treason, which heretofore had been under the exclusive jurisdiction of the Supreme Court, was taken away from that august body and transferred to a new court, the Volksgerichtshof, the People’s Court, which soon became the most dreaded tribunal in the land. It consisted of two professional judges and five others chosen from among party officials, the S.S. and the armed forces, thus giving the latter a majority vote. There was no appeal from its decisions or sentences and usually its sessions were held in camera. Occasionally, however, for propaganda purposes when relatively light sentences were to be given, the foreign correspondents were invited to attend.

Thus this writer once observed a case before the People’s Court in 1935. It struck him more as a drumhead court-martial than a civil-court trial. The proceedings were finished in a day, there was practically no opportunity to present defense witnesses (if any had dared to appear in defense of one accused of “treason”) and the arguments of the defense lawyers, who were “qualified” Nazis, seemed weak to the point of ludicrousness. One got the impression from reading the newspapers, which merely announced the verdicts, that most of the unfortunate defendants (though not on the day I attended) received a death sentence. No figures were ever published, though in December 1940 Roland Freisler, the much-feared president of the People’s Court (who was killed during the war when an American bomb demolished his courtroom during a trial) claimed that “only four per cent of the accused were put to death.”

Established even earlier than the sinister People’s Court was the Sondergericht, the Special Court, which took over from the ordinary courts cases of political crime or, as the Law of March 21, 1933, which established the new tribunal, put it, cases of “insidious attacks against the government.” The Special Courts consisted of three judges, who invariably had to be trusted party members, without a jury. A Nazi prosecutor had the choice of bringing action in such cases before either an ordinary court or the Special Court, and invariably he chose the latter, for obvious reasons. Defense lawyers before this court, as before the Volksgerichtshof, had to be approved by Nazi officials. Sometimes even if they were approved they fared badly. Thus the lawyers who attempted to represent the widow of Dr. Klausener, the Catholic Action leader murdered in the Blood Purge, in her suit for damages against the State were whisked off to Sachsenhausen concentration camp, where they were kept until they formally withdrew the action.

Hitler, and for some time Goering, had the right to quash criminal proceedings. In the Nuremberg documents18 a case came to light in which the Minister of Justice strongly recommended the prosecution of a high Gestapo official and a group of S.A. men whom the evidence, he thought, plainly proved guilty of the most shocking torture of inmates of a concentration camp. He sent the evidence to Hitler. The Fuehrer ordered the prosecution dropped. Goering too, in the beginning, had such power. Once in April 1934 he halted criminal proceedings against a well-known businessman. It soon became known that the defendant paid Goering some three million marks. As Gerhard F. Kramer, a prominent lawyer in Berlin at the time, later commented, “It was impossible to establish whether Goering blackmailed the industrialist or whether the industrialist bribed the Prussian Prime Minister.”19 What was established was that Goering quashed the case.

On the other hand, Rudolf Hess, deputy of the Fuehrer, was empowered to take “merciless action” against defendants who in his opinion got off with too light sentences. A record of all court sentences of those found guilty of attacking the party, the Fuehrer or the State were forwarded to Hess, who if he thought the punishment too mild could take the “merciless” action. This usually consisted of hauling the victims off to a concentration camp or having him bumped off.

Sometimes, it must be said, the judges of the Sondergericht did display some spirit of independence and even devotion to the law. In such cases either Hess or the Gestapo stepped in. Thus, as we have seen, when Pastor Niemoeller was acquitted by the Special Court of the main charges against him and sentenced only to a short term, which he had already served while awaiting trial, the Gestapo snatched him as he was leaving the courtroom and carted him off to a concentration camp.

   For the Gestapo, like Hitler, was also the law. It originally was established for Prussia by Goering on April 26, 1933, to replace Department IA of the old Prussian political police. He had at first intended to designate it merely as the Secret Police Office (Geheimes Polizei Amt) but the German initials GPA sounded too much like the Russian GPU. An obscure post office employee who had been asked to furnish a franking stamp for the new bureau suggested that it be called the Geheime Staatspolizei, simply the “Secret State Police”—GESTAPO for short—and thus unwittingly created a name the very mention of which was to inspire terror first within Germany and then without.

In the beginning the Gestapo was little more than a personal instrument of terror employed by Goering to arrest and murder opponents of the regime. It was only in April 1934, when Goering appointed Himmler deputy chief of the Prussian Secret Police, that the Gestapo began to expand as an arm of the S.S. and, under the guiding genius of its new chief, the mild-mannered but sadistic former chicken farmer, and of Reinhard Heydrich, a young man of diabolical cast20 who was head of the S.S. Security Service, or S.D. (Sicherheitsdienst), become such a scourge, with the power of life and death over every German.

As early as 1935 the Prussian Supreme Court of Administration, under Nazi pressure, had ruled that the orders and actions of the Gestapo were not subject to judicial review. The basic Gestapo law promulgated by the government on February 10, 1936, put the secret police organization above the law. The courts were not allowed to interfere with its activities in any way. As Dr. Werner Best, one of Himmler’s right-hand men in the Gestapo, explained, “As long as the police carries out the will of the leadership, it is acting legally.”21

A cloak of “legality” was given to the arbitrary arrests and the incarceration of victims in concentration camps. The term was Schutzhaft, or “protective custody,” and its exercise was based on the Law of February 28, 1933, which, as we have seen, suspended the clauses of the constitution which guaranteed civil liberties. But protective custody did not protect a man from possible harm, as it did in more civilized countries. It punished him by putting him behind barbed wire.

The first concentration camps sprang up like mushrooms during Hitler’s first year of power. By the end of 1933 there were some fifty of them, mainly set up by the S.A. to give its victims a good beating and then ransom them to their relatives or friends for as much as the traffic would bear. It was largely a crude form of blackmail. Sometimes, however, the prisoners were murdered, usually out of pure sadism and brutality. At the Nuremberg trial four such cases came to light that took place in the spring of 1933 at the S.S. concentration camp at Dachau, near Munich. In each instance a prisoner was cold-bloodedly murdered, one by whipping, another by strangulation. Even the public prosecutor in Munich protested.

Since after the Blood Purge of June 1934 there was no more resistance to the Nazi regime, many Germans thought that the mass “protective custody” arrests and the confinement of thousands in the concentration camps would cease. On Christmas Eve, 1933, Hitler had announced an amnesty for twenty-seven thousand inmates of the camps, but Goering and Himmler got around his orders and only a few were actually released. Then Frick, the rubber-stamp bureaucrat who was Minister of the Interior, had tried in April 1934 to reduce the abuses of the Nazi thugs by issuing secret decrees placing restrictions on the wholesale use of Schutzhaft arrests and reducing commitments to concentration camps, but Himmler had persuaded him to drop the matter. The S.S. Fuehrer saw more clearly than the Minister that the purpose of the concentration camps was not only to punish enemies of the regime but by their very existence to terrorize the people and deter them from even contemplating any resistance to Nazi rule.

Shortly after the Roehm purge, Hitler turned the concentration camps over to the control of the S.S., which proceeded to organize them with the efficiency and ruthlessness expected of this elite corps. Guard duty was given exclusively to the Death’s-Head units (Totenkopfverbaende) whose members were recruited from the toughest Nazi elements, served an enlistment of twelve years and wore the familiar skull-and-bones insignia on their black tunics. The commander of the first Death’s-Head detachment and the first commander of the Dachau camp, Theodor Eicke, was put in charge of all the concentration camps. The fly-by-night ones were closed down and larger ones constructed, the chief of which (until the war came, when they were expanded into occupied territory) were Dachau near Munich, Buchenwald near Weimar, Sachsenhausen, which replaced theOranienburg camp of initial fame near Berlin, Ravensbrueck in Mecklenburg (for women) and, after the occupation of Austria in 1938, Mauthausen near Linz—names which, with AuschwitzBelsec and Treblinka, which were later established in Poland, were to become all too familiar to most of the world.

In them, before the end mercifully came, millions of hapless persons were done to death and millions of others subjected to debasement and torture more revolting than all but a few minds could imagine. But at the beginning—in the Thirties—the population of the Nazi concentration camps in Germany probably never numbered more than from twenty to thirty thousand at any one time, and many of the horrors later invented and perpetrated by Himmler’s men were as yet unknown. The extermination camps, the slave labor camps, the camps where the inmates were used as guinea pigs for Nazi “medical research,” had to wait for the war.

But the early camps were not exactly humane. I have before me a copy of the regulations drawn up for Dachau on November 1, 1933, by its first commander, Theodor Eicke, who when he became head of all the camps applied them throughout.

Article 11. The following offenders, considered as agitators, will be hanged: Anyone who … politicizes, holds inciting speeches and meetings, forms cliques, loiters around with others; who for the purpose of supplying the propaganda of the opposition with atrocity stories, collects true or false information about the concentration camp; receives such information, buries it, talks about it to others, smuggles it out of the camp into the hands of foreign visitors, etc.

Article 12. The following offenders, considered as mutineers, will be shot on the spot or later hanged. Anyone attacking physically a guard or S.S. man, refusing to obey or to work while on detail … or bawling, shouting, inciting or holding speeches while marching or at work.

Milder sentences of two weeks’ solitary confinement and twenty-five lashings were given “anyone making depreciatory remarks in a letter or other documents about National Socialist leaders, the State and Government … [or] glorifying Marxist or Liberal leaders of the old democratic parties.”

Allied with the Gestapo was the Security Service, the Sicherheitsdienst, or S.D., which formed another set of initials that struck fear in the bosoms of all Germans—and later of the occupied peoples. Originally formed by Himmler in 1932 as the intelligence branch of the S.S., and placed by him under the direction of Reinhard Heydrich, later internationally renowned as “Hangman Heydrich,” its initial function had been to watch over members of the party and report any suspicious activity. In 1934 it became also the intelligence unit for the secret police, and by 1938 a new law gave it this function for the entire Reich.

Under the expert hand of Heydrich, a former intelligence officer in the Navy who had been cashiered by Admiral Raeder in 1931 at the age of twenty-six for refusing to marry the daughter of a shipbuilder whom he had compromised, the S.D. soon spread its net over the country, employing some 100,000 part-time informers who were directed to snoop on every citizen in the land and report the slightest remark or activity which was deemed inimical to Nazi rule. No one—if he were not foolish—said or did anything that might be interpreted as “anti-Nazi” without first taking precautions that it was not being recorded by hidden S.D. microphones or overheard by an S.D. agent. Your son or your father or your wife or your cousin or your best friend or your boss or your secretary might be an informer for Heydrich’s organization; you never knew, and if you were wise nothing was ever taken for granted.

The full-time sleuths of the S.D. probably never numbered more than three thousand during the Thirties and most of them were recruited from the ranks of the displaced young intellectuals—university graduates who had been unable to find suitable jobs or any secure place in normal society. Thus among these professional spies there was always the bizarre atmosphere of pedantry. They had a grotesque interest in such side lines as the study of Teutonic archeology, the skulls of the inferior races and the eugenics of a master race. A foreign observer, however, found difficulty in making contacts with these odd men, though Heydrich himself, an arrogant, icy and ruthless character, might occasionally be seen at a Berlin night club surrounded by some of his blond young thugs. They not only kept out of the spotlight because of the nature of their work but, in 1934 and 1935 at least, because a number of them who had spied on Roehm and his confederates in the S.A. were bumped off by a secret band that called itself “Roehm’s Avengers” and took care to pin that label on the bodies.

One of the interesting, if subordinate, tasks of the S.D. was to ascertain who voted “No” in Hitler’s plebiscites. Among the numerous Nuremberg documents is a secret report of the S.D. in Kochern on the plebiscite of April 10, 1938:

Copy is attached enumerating the persons who cast “No” votes or invalid votes at Kappel. The control was affected in the following way: some members of the election committee marked all the ballots with numbers. During the balloting a voters’ list was made up. The ballots were handed out in numerical order, therefore it was possible afterward … to find out the persons who cast “No” votes or invalid votes. The marking was done on the back of the ballot with skimmed milk.

The ballot cast by the Protestant parson Alfred Wolfers is also enclosed.22

   On June 16, 1936, for the first time in German history, a unified police was established for the whole of the Reich—previously the police had been organized separately by each of the states—and Himmler was put in charge as Chief of the German Police. This was tantamount to putting the police in the hands of the S.S., which since its suppression of the Roehm “revolt” in 1934 had been rapidly increasing its power. It had become not only the praetorian guard, not only the single armed branch of the party, not only the elite from whose ranks the future leaders of the new Germany were being chosen, but it now possessed the police power. The Third Reich, as is inevitable in the development of all totalitarian dictatorships, had become a police state.

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