Burning the Reichstag (58 page)

Legally, at least, this is where the story of the Reichstag fire ends. Arthur Brandt had asked a court in the 1950s to come to just such a conclusion, and it had refused to do so, as had the court that in 1967 absurdly converted van der Lubbe's death sentence into prison time. In 2008, though, it seemed self-evident to Germany's top prosecutor that van der Lubbe had been convicted under laws in themselves so unjust that they vitiated the result, whatever the state of the evidence. That this was self-evident to a senior prosecutor is a sign of how far the debate, and Germany itself, have come.

HANNOVER, JULY 2008

“
ARE YOU SURE YOU WANT TO
take this subject on? Do you know what happens to people who write about the Reichstag fire?”
¹

When I met him in the summer of 2008, Herr Ministerial Counselor (ret.) Fritz Tobias was ninety-five years old, a slight, wiry man with the remorseless, unblinking glare that lawyers I know call a “cop stare.” Although he had lived in Hannover since well before the Second World War, he still spoke with traces of the hard-boiled accent of his native Berlin. He liked to insist on the point. Berliners are known for their tough humor; this humor is what kept him going, he said.

I was at the beginning of my research on the Reichstag fire controversy. I had fallen into this project more or less accidentally. Earlier I had written a book on the Weimar-era German trial lawyer Hans Litten, who was one of thousands arrested the night of the fire. I tried to find out something about these arrests—what kind of documents might remain, especially concerning how someone might have ended up with his name on the arrest lists. I quickly learned that these lists, their timing, even their very existence, formed one of the sites of contention in the Reichstag fire controversy. I had not before paid much attention
to this question. I assumed that the prevailing opinion—van der Lubbe did it alone—was correct. The vehemence of the controversy baffled me. Why, after all, could one care very much who burned the Reichstag? The Nazis had done one or two worse things. A public building, even a large and symbolically freighted public building, did not seem very important next to Auschwitz, Treblinka, Babi Yar, Leningrad, and Stalingrad. But when an issue puzzles a researcher, perhaps that is a sign that something else, something more interesting, is going on below the surface. I began to grow curious about the fire. At about this time my friend, the Berlin lawyer Gerhard Jungfer, mentioned to me that he had been involved in the last effort to re-open the Reichstag fire trial; he had an extensive file on the case. Would I like to read it? I would and did, and was surprised at how much evidence lawyers like Arthur Brandt, Robert Kempner, and Gerhard and his colleagues had raised, evidence that pointed to the Nazis as culprits. I read Tobias's book and most of the other literature about the fire.

I learned that Tobias was still alive. I thought it would be a good idea to talk to anyone I could who had been involved in the debates, on whatever side they might be. I found Tobias's address (a confusing one to a non-German—
In den Sieben Stücken
—“in the seven pieces”? Really?) and wrote asking if I could visit him. I did not expect an answer. I remember telling the postal clerk when I mailed the letter that this was probably a stamp wasted. At least I would know I had tried. Then to my surprise Tobias wrote back within days, inviting me to see him in Hannover. I really only had one thing to ask him: Why? What was this whole thing about?

His answer was brisk and clear. “You think the Communists are gone? They're not gone. Their state is gone, but they're not.” The Reichstag fire controversy was all about the Communists. The acquittals of Torgler, Dimitrov, Popov, and Tanev had given Stalin and his followers an enduring propaganda weapon. The acquittals proved that the charges against them were nothing but Fascist propaganda. They used this outcome to argue that every
other
allegation of a Communist crime was nothing but Fascist propaganda. Tobias told me that before he became interested in the Reichstag fire, he thought he might research the massacre in the Katyn Forest—a mass murder of Polish officers carried out by the Soviets in 1940 and blamed on the Nazis. There was clearly a pattern to his preoccupations.

Communism did not, however, exhaust Tobias's explanations for the controversy. He defined himself in purely Enlightenment terms: He had no need of religion, he said, he was interested only in science, in rationality, in facts. Sounding a little like Mr. Gradgrind, he insisted that what distinguished him from his opponents was that “I have facts! Facts!” Whereas—a point he repeated frequently—they had only lies, forgeries, and legends. “My enemies,” he said—for him they were never merely opponents—“are all fanatics.” Virtually in the same breath, and with cop stare firmly in place, he went on to denounce these “enemies” as “fools, Communists, and criminals.” It was not clear if those were three separate categories.

He did not see much rationality anywhere else—not in ordinary people, not in leaders, not in history. He believed that most things in history happened by accident or blunder. Perhaps this explains why some of his most enthusiastic early champions were British historians like A.J.P. Taylor, who held much the same view. There is a kind of historical pattern, he said: In a crisis, the leader is called upon to make a decision, which, time and time again, he does on the basis of fears, preconceptions, and pressures to act. Having acted, the leader must stick to his course, however foolish it may begin to appear. This, for Tobias, was the story of the Reichstag fire: Hitler had been trapped by his spontaneous and sincere accusation of the Communists. He could not back away from it without looking weak, something Hitler could never permit himself. Tobias thought it was the same with the Night of the Long Knives, in which only Gisevius's machinations convinced Hitler that Ernst Röhm and the SA were plotting against him. Having denounced Röhm as a traitor, Hitler again could not back down. Tobias applied the same reasoning to the Cuban Missile Crisis and the attacks of September 11, 2001. I was unable to convince him that the Kennedy of the Cuban crisis would have responded differently to September 11th than did George W. Bush.

His opinion of general public intelligence was no higher. As we spoke he gestured around his office, toward his extensive library and his vast collection of files, and wondered rhetorically why he went on trying to enlighten people. “I could just relax here,” he says, “read my books, have a nice time.” His belief in the general incompetence of human beings extended to such issues as global warming: he was a convinced “climate change skeptic,” on the basis that we insignificant and inept human beings could never have such an influence on the planet.

Accusations that he had Nazi sympathies clearly infuriated him even more than the submental criminality of his “enemies.” “I was fully unincriminated,” he said. He used the evocative German word
unbelastet
, literally “unburdened.” What about the accusations from some quarters that he worked for the Geheime Feldpolizei, the “Secret Field Police,” the Nazi military police? “As if that were the same thing as being with the Gestapo,” he replied. Libel can be prosecuted as a criminal offense in Germany, but the prosecutor's office, Tobias said, would not touch this one. “Why not?” I asked. “If it is untrue, then it is libel.” “It's
mudslinging
,” he said (
Verleumdung
). He waved a hand and looked away. “This is what I have to put up with all the time.” Why wouldn't he consent to the release of his military records, which would end the matter? “Why should I have to go through this, to prove it every time?” he asked in return.

Later in the conversation he rolled back his sleeves and gestured to scars from an American shelling in Italy at the end of the war. “I suffered under the Nazis,” he said.

Tobias lived in a comfortable suburban bungalow. Its most notable features were its wild but beautiful back garden—and his private archive.

This archive is legendary among Reichstag fire researchers. Hans Mommsen cited some of his findings to the “Tobias Archive,” but writers who disagreed with Tobias were unable to gain access to it. Various German public archives, including the large Federal Archives, were interested in acquiring it, but Tobias was reluctant to give it up, even in his will. He had invested enormous time and money in chasing down the documents, he told me. Why should his enemies profit from his labor? “I should just burn it all,” he growled. The cop stare intensified.
²

Nonetheless Tobias was proud to show me around five or six rooms of his house filled with documents, carefully organized in binders in the German fashion, neatly labeled and installed in floor-to-ceiling bookcases. By no means did these files pertain only to the Reichstag fire. He had binders on many other subjects in German history and about politics in all regions of the world, especially those burdened with terrorism or civil war. Many of the files covered the assassination of John F. Kennedy—naturally, Tobias thought Lee Harvey Oswald acted alone. Ever the good political policeman, he had files on his opponents as well, newspaper clippings and other information, none of it flattering. Visiting Tobias again a year later, I noted with some trepidation that one of his files was about me.

On the Reichstag fire itself, Tobias's document collection was overwhelming. Some of these binders held the source material for his
Spiegel
articles and his book. But he had gone on researching the fire ever since, for half a century, writing to people who might have information, interviewing witnesses, arranging (as we have seen) the placing of Rudolf Diels's papers in the State Archives of Lower Saxony, contributing articles to newspapers and magazines and zealously clipping out others, often enough launching or intervening in the rancorous litigation of which the participants in this debate have been so fond.

When I met Tobias I had as yet no very fully formed view on his controversy. This is what I had told him in my letter; I wanted simply to hear and understand his side. But it never seemed to occur to Tobias that I might not fully agree with him, not then in 2008, not when I visited him a year later, not in the correspondence we exchanged until his death. Not even my increasingly skeptical questions (“Why do you think Diels accused Heini Gewehr? Why did he agree with Gisevius?”) seemed to trigger any doubt. Probably the extraordinary rancor of the Reichstag fire controversy in Germany had conditioned Tobias to hear respectful courtesy as agreement. In any event neither of us was very interested in my view. I wanted to know what he thought; he wanted to tell me. “Ask me any question and I'll make a speech,” he said, and making speeches was mostly what he did. I had the feeling he had made the same speeches many times before.

This perhaps explains why, toward evening on that July day, he offered me material from his files. I could take a binder or two back to my hotel, read them, make copies if I like. What would I like? I had not expected or asked for such a generous offer, but I knew my answer. Without hesitation I asked for his files on Rudolf Diels.

This appeared to be the wrong thing to say. Tobias froze. The Diels documents had nothing to do with the Reichstag fire, he said. The cop stare returned. Why was I so interested in Diels? I explained that I thought Diels was both fascinating and important. Surprising me again, he walked to one section of his shelves, studied the binders for a few moments, and then selected and gave me two of them.

That night, reading through the files in a Hannover hotel room, I came across Diels's July 1946 letter to the British delegation at Nuremberg, with its accusation that Heini Gewehr had burned the Reichstag in “this first crime of the National Socialists.” I felt pieces moving around in
my mind. This was an original, with Diels's inimitable signature at the bottom, and red pencil underlining that looked like it was from Tobias himself. Where had Tobias found this document? How long had he had it? Why had he never mentioned it? Why had he always insisted that Diels knew nothing about the fire? By the time I returned the binders to Tobias the next day my views were already changing.

After he read the acknowledgments section of one of my earlier books, the late Herr Ministerialrat Fritz Tobias wrote me that he thought I had a decent capacity for gratitude. The normal rule, he said, was that doing someone a favor just makes you one more enemy. I am under no illusions that he would have liked the book that resulted from my study of his fire and his controversy, and I am reasonably sure he would have changed his mind about my gratitude could he have read it. But though it might have surprised him, in fact I remain extremely grateful for the courtesy he showed me on the two occasions I visited him in Hannover, and for his surprising generosity in letting me see and even copy his files on Rudolf Diels. He was, whatever else, a pioneer in the literature of Germany's contemporary history, and any book on the Reichstag fire has to take him seriously.

Herr Professor Hans Mommsen was also extremely friendly and courteous, and patient with my questions, when I visited him in 2010. Heinrich Schnitzler's sons Herr Dierk and Herr Klaus-Michael Schnitzler went well out of their way to meet me in Bonn in 2012 to allow me to see their father's papers, and gave permission for me to use the picture of their father that appears in this book. My dear friend Gerhard Jungfer let me work through his huge file of documents on the Reichstag fire case and told me about his involvement in the last (unsuccessful) effort to re-open the trial in the early 1990s. I must also extend my deep thanks to Professor Karl Otmar von Aretin, Dr. Alexander Bahar, Professor Christoph Graf, Herr Hersch Fischler, Herr Markus Henneke, Herr Peter-Ferdinand Koch, Herr Günter Strumpf, and Dr. Friedrich Winterhager, who were generous with time, correspondence, and materials. I spoke to Mr. Thomas Polgar and Mr. Peter Sichel, both retired from the CIA, about another project, but their comments about people like Kempner, Diels, Gisevius, and the general
atmosphere of early postwar Germany were both fascinating and unexpectedly helpful for this one.