"Non-Germans" Under the Third Reich (83 page)

2. The Influence of Hitler, the SS, and the Police Command

a. The Ousting of the Judiciary from the Field of General Criminal Jurisdiction

With an executive power at its immediate disposal, the police posed a greater threat to the activity and existence of the judiciary than did the Party, and the police were thus its major opponent.
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The origin of the totalitarian powers of the police, which reached across all branches of the traditional administration, was to be found in its wide-ranging jurisdiction, although this had no basis in theory. The most visible manifestation of this power was the activity of the Gestapo, regarded as the “central hub in the struggle against all enemies of the state.”
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The Gestapo operated something like a state within the state and never bowed to the principle of control of police action by the courts.
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After the police and the SS were unified at the central level in 1936,
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the police leadership became the principal force in the country. In common with the Party, the police held the view that the question of “non-German” could not be left in the hands of the judiciary. For this was a “political” matter, a field ominously widened in scope by the legal doctrine and which, according to the prevailing opinion, in no way came into the purview of the judiciary (starting with section 7 of the Prussian Law on the Gestapo of February 10, 1936, which ruled out all control of the Gestapo’s activities by the administrative tribunals).
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The abandonment of the principle of judicial control of police actions led to the situation in the Nazi system whereby “determined intervention” by the police carried more weight than “desperate clinging to legal principles.”
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Spurred on by Hitler’s revulsion and disdain for all legal activity,
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the police leadership basically considered the judiciary to be expendable, because “its completely different principles of thought and action were detrimental to the purposeful running of an effective administration.”
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This rise in power of the police was by no means a makeshift affair, however. Each phase of the escalating confrontation with the judicial authorities was meticulously prepared, in parallel with the campaign by the Party offices against the judiciary described above.

The first phase was a broad-based campaign in the press and malicious agitation against individual court rulings.

The second phase was direct intervention in the jurisdiction itself. This included applying “protective custody” unrestrictedly,
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a measure that had nothing to do with actual protective custody as provided for in general police law and which as such was governed by strict conditions (sec. 15 of the Prussian Police Administration Law), nor the protective custody described in section 20 of the Reich president’s decree of February 4, 1933.
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Bereft of all legal foundation and based only on the revocation of the basic rights anchored in the Reich president’s Decree of February 28, 1933, on the Protection of People and State and on Ministry of the Interior decrees,
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it was recognized in theory and practice as a “preventive measure” by the police, an admissible measure of constraint by the Gestapo in the defense against “actions by enemies of the people and the state.”
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In the present context, the way in which protective (or preventive) custody was implemented was to take suspects into custody before completion of the penal process and to commit them to a concentration camp, thus effectively removing them from the purview of the judiciary. This led to the grotesque situation whereby many courts chose to impose long-term imprisonment or apply a broad interpretation of the prevailing regulations in order to protect the accused from the Gestapo.
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To these cases must be added the far greater number of arrests that never came before the courts.
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In the view of the police, preventive/protective custody was the ideal “punishment,” especially for “non-Germans.”

The third phase of the police advance was the “rectification of rulings”
(Urteilskorrekturen)
on the personal order of Hitler or Himmler, with the result that people who had been sentenced to imprisonment were executed out of hand by the police.
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These shootings were frequently explained by “attempted escape” or “resistance” on the part of the prisoner,
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although neither the courts nor the population were taken in by such pretexts.
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Such practices were naturally directed first and foremost against “non-Germans,” who in any case were not considered to come under the protection of the law. The “rectification” of justice was exercised from the very beginning of the war,
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once it had been shown that no great resistance to the use of protective custody was to be expected from the judiciary. As the section head of the SD Inland (Interior), Otto Ohlendorf, explained to his subordinates in 1941, the new function of the police in wartime was to adapt jurisdiction once and for all to the political requisites of the national organization; the judiciary had not done its part “in removing the inadequacies in the legal system in the interests of the
Volksgemeinschaft,
” so that rulings that were “ in blatant contradiction with the sound thinking of the people” had to be “repaired,”
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In the final phase of the usurpation of criminal prosecution powers by the police, which began around the middle of 1941—the earlier “rectification measures” continuing unabated all the while—an increasing number of ordinary offenders were handed over to the Gestapo before judgment had been passed.
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At the same time the police exerted pressure on the judiciary to contest objectional rulings of its own accord.
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A far more important development, however, was that from now on the police no longer limited themselves to correcting individual court decisions, but began to call the whole judicial institution into question in all politically important cases, major criminality, and offenses by “non-Germans.” Was a system of justice necessary at all to prosecute “state and racial enemies”? Had the judiciary lived up to the expectations of the political of leadership? In the Nazi state, where all institutions and regulations were held in contempt, there was only one possible answer to such questions, because the principle of the rule of law was not compatible with that of authoritarian leadership. In the eyes of the radical champions of the Führer state, the regular justice system had failed, because it always dealt with individual cases and took individual viewpoints into account, and “for these reasons alone” it always found too leniently (“ in blatant contradiction to the demands of a rigorous administration of criminal justice in time of war”—so said the head of the Secret Police and SD of the Party Chancellery on October 22, 1942).
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Consequences needed to be drawn, new advances made. The process was made all the easier in that the weak leadership of the ministry showed little serious resistance to any of the moves by the SS and the police to increase their hold. As an illustration of the powerlessness of the judiciary, State Secretary Curt Rothenberger of the Reich Ministry of Justice had to “request” the
Reichsführer
-SS and chief of the German police to at least no publish press reports on the execution of people “who could not be sentenced to death” by the courts, “in order not to undermine court authority.” The best he achieved was that Himmler expressed his readiness to check personally whether such reports should or should not appear in the future,
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though, significantly, he forbade press reports on the execution of people who had not been tried by the courts at all.
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b. The Judiciary’s Part in the Process of Its Displacement by the Police

To understand this systematic process of displacement of the judiciary by the police, it is important to look at the part played by the judiciary apparatus itself, for it then becomes clear that the judiciary largely contributed to its own demise.

This process had already begun in Franz Gürtner’s era,
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and it reached its zenith when Thierack took over the ministry on August 29, 1942. Thierack’s declared aim was to remove objectionable categories of people from the criminal jurisdiction of the courts and to put them in the hands of the police. Thus it would not be a fair representation of events to assign responsibility for the fading role of the judiciary solely to the police, repeating the commonly held theory that the judiciary was simply an innocent victim. This is disproved by the (albeit rare) cases in which the justice chiefs protested energetically, and successfully, against the practice of protective custody for their detainees.
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Nor did the judicial leadership stand by passively in the usurpation of its legal powers. Indeed, from the beginning it actively promoted the takeover by close cooperation with the police. On the one hand, the justice authorities maintained extremely good relations with the police in many districts through personal contacts, exchanges of information, and so forth—beyond the call of duty—at least until the early years of the war.
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On the other, their protests—if indeed any were forthcoming—against the countless cases of police intervention were ineffectual,
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or they simply voiced complaints about such details as the number of people taken into protective custody or its imposition on certain individuals.
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This did not, of course, get them very far, because the judiciary and the court decisions themselves acknowledged the admissibility of the new regime’s practices “in principle,”
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provided that a formal distinction was maintained between a penalty and police “preventive measures.”
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Thus, from early on the police leadership was generally able to dismiss the judiciary’s protests and continue its advance unabated.

In a great many cases, furthermore, the judicial authorities not only tolerated the protective custody practice of the police, but they went out of their way to support it. An instruction from the ministry to the chief public prosecutors stated that as far as possible people under protective custody should not be detained in German prisons.
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In many cases in which an arrest warrant was rescinded, the judiciary actually handed the individual over to the Gestapo,
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either at the Gestapo’s request from case to case, or on the basis of “agreements” and contacts between the judiciary and the Gestapo or “good relations” between the committing magistrate and the Gestapop.
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The Reich Ministry of Justice expressly encouraged the department chiefs to maintain such relations.
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In some cases the contacts were even closer: from Hamburg it was reported that the public prosecutor directly informed the Gestapo of convictions in no small number of cases,
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so that it “ occurred to” the district court president that the public prosecutor was “apparently” working together with the Gestapo, having defendants committed to concentration camp whenever the ruling by a court did not suit him.
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The police authorities were sometimes instructed by the relevant Gestapo directorate to inform them of “political cases” before the trial, so that an arrest warrant could be issued and the accused brought to court or before the Gestapo on the basis of the latter’s instructions.
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aa. Institutionalized Cooperation: The Obligation to Provide Information and Channels of Information between the Judiciary and the Police and Party

Thus, whereas collaboration between the justice authorities and the police was largely a function of local circumstances, the passage of information to the police about forthcoming judicial measures occurred on a much broader scale, organized centrally as it was.

The first thing to mention is the general obligation of the justice authorities to keep the Gestapo informed. The decree of May 28, 1937,
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instructed the chief public prosecutors to appoint an official to the corresponding court of appeal as a “political defense representative” with whom the Gestapo could engage discussion of state police matters at any time; at the suggestion of the Reich minister of justice, almost all the chief public prosecutors assumed this office themselves.
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As of late 1937 the Ministry of justice itself housed an official whose brief was to assure the connection with the Reich Security Main Office (RSHA).
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After 1942 the justice authorities were obliged to provide the Security Service with information on request in the same way as other offices, since the SD was “also in the service of the state.”
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Mere lip service was paid to the Reich minister of justice’s claim to a reciprocal arrangement with the SD: as a secret organization, the Security Service was able to keep information from the judiciary at will.
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Well before this, of course, the SD had its informers in the judiciary offices and regularly sent police officers to hearings, whose anonymous secret reports were then read by the Party and the ministry.
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