GUEST: Sol Wachtler
I’m Richard Heffner, your host on The Open Mind.
And this is a special one-hour broadcast that hopefully will serve as a cautionary tale for our own times as we examine the perversion of law in Nazi Germany where distinguished lawmakers and judges systematically betrayed the Rule of Law, becoming complicit in the largest mass murder of men, women and children in history.
Sol Wachtler, former Chief Judge of the State of New York, and my guest today, first roused my own interest in this subject – and my profound concern for its implications for Americans today – in 2002 when the Touro Law Center in cooperation with the Free University of Berlin Law School convened in Berlin, Germany the Simon Bond International Wannsee Seminar on “Tyranny, Justice & The Law: The Nazis and Beyond”.
As the Seminar’s Chair, Judge Wachtler wrote then that it was there in the “Wannsee Villa 60 years before that the political, legal, and judicial functionaries of the Third Reich met to devise an efficient method to resolve ‘the Jewish question’ [what became "The Final Solution" -- extermination of the Jews].
“Participants of that conference where the logistics of mass murder were agreed upon – were lawyers…[Judge Wachtler wrote, and] … Wannsee…serves as a powerful reminder of how fragile ‘the Rule of Law’ can be when threatened by the political power of the state”.
The mission of the Wannsee Seminar, my guest noted, was to impart to members of the legal establishment worldwide “…the relevant warning that when the law and the courts are motivated and dominated by state and political interests above the interests of justice, civilization is doomed”.
And today I would ask Judge Wachtler whether he and his colleagues at Touro College Law Center had the same warning in mind in presenting the film we’re about to see today: “Hitler’s Courts – Betrayal Of The Rule Of Law In Nazi Germany”, Produced and Directed by Joshua M. Green and Shiva Kumar. Judge Wachtler, did you have that in mind?
WACHTLER: I … actually … when we first thought about the idea of the Conference … and this goes way back to 1968 that I’ve been thinking about this … when I lectured over in Germany on the Constitution of the United States before the prosecutors and judges of Germany … it occurred to me that these prosecutors and judges … back in ’68 … were the same men who were Hitler’s judges and … they were still doing business … and it occurred to me “Where were they? Where were they when Hitler’s ascension brought about chaos internationally? Why didn’t they provide the bulwark that lawyers and judges should provide in order to stem the tide of un-civilization?”
Instead they became handmaidens to tyranny. They actually assisted Adolf Hitler in his demonic dictatorship.
HEFFNER: Well, what’s the answer though to your question? Where were they?
WACHTLER: Well …
HEFFNER: Why did this happen?
WACHTLER: Well … it happened very suddenly. It happened because the rule of law which was dominant in Germany was suddenly undermined. After the Reichstag fire in 1933, under the banner of terrorism the New Chancellor of Germany, Adolf Hitler, said “We have to provide certain temporary measures,” the Reichstag was not in session because of the fire, he said, “We have to provide certain temporary measures to stem this tide of terrorism.”
Who were the terrorists? Communists and Jews. And so a group of laws were passed … the first one being to reform the Civil Service, that is to get rid of all the Jews from the judiciary and from the legal establishment.
At first the judges protested, they said, “This is wrong.” But the head of the judicial conference went to meet with Adolf Hitler and came back and said to his fellow jurists, “This is only temporary, I’ve been assured by the Fuhrer that this will go away soon. But these laws become necessary because we’re living in a time of terror.” And that’s where the relevant message comes.
We’ve been very fortunate in this country because we have a strong judicial branch which has been monitoring what’s been happening as far as the legislative and executive branches are concerned.
But there is that relevant warning that if the interests of the State become paramount, then the citizenry is in serious trouble.
HEFFNER: But you’ve said that the Rule of Law was very strong in Germany.
WACHTLER: Yes, it was.
HEFFNER: So one can’t just say, “Well, for the Germans I can understand it.” You’re saying just the contrary.
HEFFNER: “For the Germans I can’t understand it.”
WACHTLER: Yes. It’s been of great mystery … and you’ll see in the film that we had collected by the way, not only in Wannsee … where the first half of the conference was held, we also filmed part of this in Nuremberg last year when we celebrated the 60th anniversary of the Nuremberg Trial. It was in a way … Wannsee was a symbol of the decomposition of the legal establishment and in Nuremberg the restoration of the Rule of Law, when the Nazis were tried.
But the, the undermining, and you’ll see it in the film … this debate going on … what caused this … is it a particularly German phenomenon? Is it particularly a sign of those times? What caused this? What was the rare combination of ingredients which caused a highly motivated legal and judicial system, under a Constitution, to suddenly become … again … a cooperative enterprise with a dictatorship?
HEFFNER: Okay, let’s look at the film now.
FILM STARTS … GERMAN speaking
SAFFERLING: They had this strong conviction that his was right. And they were here at the right place celebrating this party and celebrating this politic.
BACH: I mean, I, I as a child grew up in German and I saw what happened sometimes, you know, when they had these mass rallies and when I saw Hitler’s speeches.
BROWN: Ten thousand German lawyers and judges took an oath of personal loyalty to the Fuhrer.
MAJER: In Nazi arguments, the law is the will of the Fuhrer.
MAN: Because he brings the hope, the glory, the pride …
SAFFERLING: And then it all went horribly wrong.
NARRATOR: In 1933, less than a month after being elected Chancellor, Adolf Hitler used the pretext of a fire in the Reichstag building to suspend Constitutional law and place unlimited judicial authority in the hands of the government.
WACHTLER: There was a cataclysmic event. I mean think in terms of our Capitol burning down. The Reichstag was their Congress and the Reichstag couldn’t meet. And when the Reichstag is not in session, the Chancellor has emergency powers. So here you have Adolf Hitler given these enormous emergency powers to do almost anything that would be contrary to a democratic society.
BAZYLER: The German legal system in 1933 was a very sophisticated legal system. This was not primitive law, it was really seen … German legal science was really seen as the height of what the law was supposed to be about.
BROWN: After the burning the Reichstag which was more than a symbolic act in destroying the Parliament, ten thousand lawyers took an oath … not surprising … I’ve taken an oath as a lawyer to defend the Constitution of the United States. But ten thousand German lawyers and judges took an oath of personal loyalty to the Fuhrer which is the antithesis of what we think of as the Rule of Law.
BAZYLER: So the Nazis coming to power realized that the law was a very powerful instrument in order to get the German public to follow and to acquiesce in those early steps.
BROWN: The principal procedure governing German law during the Third Reich was something called The Fuhrer Principe and the idea was that Hitler had absolute discretion to make any ruling whatsoever in the interests of the State and that there were lesser, or subordinate Fuhrers who also followed The Fuhrer Principe and themselves had a wide discretion, limited only by what the Fuhrer above them had told them to do.
NARRATOR: Over the next 12 years the Nazi Party continued its subversion of Constitutional safeguards until Germany’s courts amounted to nothing more than tools for the implementation of National Socialism.
NARRATOR: Early in their subversion of law Nazi officials established special courts to deal with anyone the party deemed an enemy of the Reich. In these courts there was no pre-trial investigation. Judges determined arbitrarily what evidence to consider and there was no right of appeal.
WACHTLER: Now this is the time when the judiciary could have, and should have stood up and said, “Wait a moment. We have rules and laws here. This is our nation that is being corrupted.” And the Chancellor said, “This is only temporary because of the terror that has been visited upon Germany.”
NARRATOR: Once he succeeded in concentrating legal authority into his own hands, Hitler then had the tools for eliminating all those he deemed to be enemies of the Reich. Primary among these were Jews and other minorities.
Before the Nazi era, Jewish lawyers constituted a large percentage of Germany’s legal community. With Hitler’s rise to power Jews were no longer allowed to practice law. Eventually most lost their lives as well.
One who survived, Max Friedlaender, was a distinguished legal ethicist. After his escape from Germany, he wrote memoirs that offer a vivid portrait of life before, during and after the Nazi era.
FROM THE MEMOIRS OF MAX FRIEDLAENDER: On January 30, 1933 I was in Berlin for a meeting of the Board of Directors of the German Bar Association when a telephone call informed us that Adolf Hitler had become Chancellor. But it was only later, after the Nazis had swept aside all legal barriers to their reign of terror that we would come to understand the full implications of this event.
FROM THE MEMORIS OF MAX FRIEDLAENDER: The German Bar Association soon met its final fate. All votes on resolutions were held under the supervision of the SA and I would not have advised anyone to pass the dissenting vote. In a similar manner, the regional bar associations and the Bavarian lawyers association disappeared.
On April 7, 1933 the German government enacted a law forbidding attorneys of non-Aryan descent from representing Aryan clients. Anyone who dared do so, their names were published in the press, their businesses were boycotted and soon, it even became grounds for divorce.
BAZYLER: When the Nazis first came to power they ended up promulgating a number of laws that incrementally deprived Jews and other persecuted minorities, of civil rights. These incremental steps that we’re talking about … that results in the Final Solution … were all legal steps. I mean you can trace this, you can trace the Holocaust as a legal event.
FERENCZ: Genocide … the extermination of whole categories of human beings was a foremost instrument of the Nazi doctrine. We shall show that these deeds of men in uniform were the methodical execution of long range plans to destroy ethnic, national, political and religious groups which stood condemned in the Nazi mind.
If you begin with the assumption that you are a member of a superior race and that others who have a different color or a different religion or a different ideology are inferior, then it begins to follow that the superior one should dominate the inferior one; or eventually eliminate him as well.
NARRATOR: Doctrines of so-called “criminal types” were implemented that allowed Hitler’s courts the further liberty of condemning enemies of the State … not based on what they had done, but on the sole basis of who they were.
MAJER: The enemy, which we regard as enemy has to be pursued, not because he has done something wrong in our eyes, in the eyes of the State leadership, but because he is different. It was a principle of the National Socialist Constitution that the race is a very, very important point and that everybody has to be treated according to his race. This was official State doctrine. You couldn’t act openly against the State doctrine.
FROM THE MEMOIRS OF MAX FRIEDLAENDER: Perhaps future generations will read about the books that were burned, forbidden, boycotted … often not even for their content, but because of their author’s race. I was leafing through a recent Nazi commentary on laws governing attorneys. And I found sentences lifted verbatim from one of my own books. Roland Friesler, Undersecretary in the Prussian Ministry of Justice wrote a review.
He said, “For decades the German Bar had to accept the shameful fact that the law governing its conduct was commented on by Jews. Now at last a German commentary had appeared.”
It was a truly new way of fighting Jewish intellectual property. You just brand it as inferior, then copy it. And now praise it as an Aryan creation.
NARRATOR: In 1934 the People’s Court was established to try those accused of political offenses. Eventually the court came under the Presidency of Roland Friesler, a Nazi of such extreme sentiments that he shocked even his fellow Nazi judges.
NARRATOR: Friesler was one of an echelon of senior German jurists who paved the way for the betrayal of the Rule of Law in the 1930s.
Carl Schmidt, Hitler’s legal theorist, a wealthy and ambitious Conservative who described the Fuhrer as Germany’s “guardian of justice” … Erwin Bumke, the man who drafted Hitler’s emergency laws, these and other senior officials of Hitler’s Courts empowered police to disband organizations, seize assets, make arrests and determine, on their own initiative what constituted a threat to the State.
NARRATOR: The Nuremberg Laws reflected Nazi preoccupation with racial purity, an idea concocted from vague elements of religion, citizenship and heredity. Since the laws defined Jews as racially impure, marriage between Jews and non-Jews would defile the race and was now prohibited.
Resourceful judges found other applications for the Nuremberg Laws by arguing, for example, that because Jews were no longer considered full human beings, they did not qualify for legal rights. In effect Jews and other minorities underwent a civil death long before millions met their physical death in the camps.
FROM THE MEMOIRS OF MAX FRIEDLAENDER: I could no longer afford to live in the beautiful house that had been my family’s home for 28 years. Our dear friends, the Hertzfelders had an apartment available on the second floor of their house. I arranged to move in with them and began the painful process of selling my home.
GERMAN SPEAKING … MUSIC
FROM THE MEMOIRS OF MAX FRIEDLAENDER: The Hertzfelders and I had been listening to the radio before retiring. Around 4:00 a.m. on November 10th, 1938 I was awakened by loud voices. Five SA men yelled, “Police, open up.” And then declared that Hertzfelder and I were under arrest. When we arrived at our local police station something surprising happened. The officer on duty was someone I had known for a long time. He told the SA men “there’s been a mistake.” Then to us he said, “You’re free to go.” We walked home. We saw the Gestapo busying themselves in other homes. That same evening thousands of Jewish men, in particular nearly all the lawyers and physicians and former judges and prosecutors across Germany were arrested and dragged off to concentration camps.
BACH: I had an uncle who was Jewish, of course, and he was arrested during the … in 1938 … sort of … the Kristallnacht … when all Jews were arrested. He was beaten up. He was sent to a concentration camp, to Buchenwald … he was taken by bus and during the drive, they said they would see no reason why we should pay for you Jewish pigs for the journey to the concentration camp. So that you have to pay for that. “All right.” So he did. A few days later my aunt was summoned to the Gestapo … she came, she wanted to know what happened to her husband. So they said, “You know, your husband was sent to a … was … went to a work camp and he went by bus and of course he had to pay for that. But he paid twenty marks and the journey costs only 18 marks 80, so the one mark 20 we want to return to you. I mean we feel that it’s only right and proper and legal that we have to return that to you.”
I mean the whole thing, taking him there altogether, beating him up, threatening him, torturing him and then he has to pay for the journey and then to return the one mark 20 and that was in the name of the law.
Ferncz: And then you pass another law saying, “You will please come together in the market square, for being re-settled.” You never used the word “murdered”. And so they show up. And then they get on the train to be “re-settled.” And then, in accordance with the law you don’t want to waste their clothing; they have to take it off and they pile it up … and you can use it for distribution to the poor non-Jews.
And then, of course, no use wasting their hair. So you cut that off and use it for mattress stuffing. Then, of course, if they have gold crowns in their mouths, you’re not going to throw away gold so you rip it out of their mouth with a pliers. You get other Jews to do the job, become members of what they called the “Todten Commandos”, the Death Commandos … drags the body to the crematorium and put it on the fire to burn. And then the ashes … (crying) … sorry. Use the ashes for fertilizer in the fields. These are flashbacks that I get because I’ve seen all that. And it’s a very efficient way, legally, to eliminate a whole human body and the whole body politic.
FROM THE MEMOIRS OF MAX FRIEDLAENDER: The next day I suddenly received a call. “So you are not in Dachau yet? You were instructed to come to police headquarters between four and five p.m.”
The Hertzfelders urged me to leave Germany. I said good-bye to my old friends. I took a taxi to the train station. It is hard to believe … of all my friends and acquaintances in Munich, I am the only one who was lucky enough to be able to leave the country. Can anyone understand that I am sometimes ashamed to have been so favored by fate?
NARRATOR: With the official declaration of war, Nazi lawmakers moved into high gear as thousands of so-called “enemies of the Reich” were arrested and tried in Hitler’s Courts. By 1939, roughly 60% of all law school professors were Nazi appointees engaged in training a new generation of law makers … young zealots raised and educated under Nazi rule. And if some of this new generation harbored misgivings, hardly any ever dared question the Nazi distortion of the Rule of Law.
BAZYLER: The Germans saw themselves as being in danger. In their midst … from outside … and so they were very willing … when the Nazis came along to tighten their laws and say, “We need more national security,” but at that point Hitler’s Germany is the great example of then all civil rights being swept away for certain individuals.
WACHTLER: If you want to read a textbook appraisal of how to undermine the Rule of Law. Read some of Goering’s writings, where he talked about “First terrifying a people and then you can do almost anything you want with them, including forcing them to go to war.”
SAFFERLING: I think it was really hard, during that time, to get into a resistance, to get into a stable, sort of resistant attitude towards the political aims and, and goals that you were confronted with. Because the masses of the people, they just went with it.
NARRATOR: In 1934, Dr. Lothar Kryssig, a judge on the court in Brandenberg objected to Hitler’s euthanasia program and even attempted to prosecute Nazi officers to sending hospital patients to their death. Because he had been a respected citizen the courts encouraged him to retire ahead of schedule. But such leniency was extremely rare.
Dr. Johan von Donyanyi, at 36, the youngest member of the German Supreme Court also spoke out against the Nazi betrayal of justice. He was arrested and later executed at concentration camp Sachsenhausen. The overwhelming majority of Germany’s legal cooperated with the Nazi regime. Post war statistics estimate that by 1945 the number of death sentences handed down by Germany’s various courts had exceeded fifty thousand of which more than 80% were carried out.
Yet another blow to the Rule of Law took place in September 1942 when the Reich Ministry of Justice empowered the SS to change any court decision it deemed overly lenient. Thousands of prisoners were delivered to the SS at that time for summary execution.
On January 20th, 1942 a meeting took place in Wannsee outside Berlin. Among those present were Reinhard Heydrich, head of the Reich Security Main Office. Adolf Eichmann, Heydrich’s expert for deportations, and 13 other high ranking representatives of the Nazi Party.
Minutes from the meeting, known as the Wannsee Protocol spell out in clear terms plans for the deportation and murder of all European Jews. And the active participation of Germany’s public administration in the genocide. More than half the participants at Wannsee were lawyers.
WACHTLER: It was at this fireplace that Eichmann and Heydrich toasted with cognac. And their main toast was the fact that it was so easy for them to get all of the people and all of the participants around that table to agree to the extermination of 12 million Jews. And Heydrich made mention of the fact that he was particularly surprised that the lawyers and judges sitting around that table went along with all the rest.
BAZYLER: The question that really begs itself when you hear this legal …this description of what happened to the law and to the legal personalities in Germany is “How could highly educated individuals whose job was to use the law to protect people so willingly become part of this mechanism of the murder of 6 million Jews and other persecuted minorities?” And the answer to that is, is not a legal answer. It’s not, it’s not an answer that a lawyer can give or a law professor can give. It’s the question that needs to be asked of psychologists, sociologists.
BARRETT: As I look at the individual perpetrators and what they did and studied them in detail and read the transcripts of their interrogations and their testimony and so forth … I’ve got to tell you I find familiar human qualities … to a degree … these aren’t completely unfamiliar monsters. There are things in Albert Speer or Halmar Schacht or even Hermann Goering that are like us.
SAFFERLING: Maybe one characteristic of Germans is that they have a tendency to be … to perfectionism. They want to be perfect, in a sense. So they want to have, also, a perfect legal system. And this is where it got horribly wrong when the law turned out to be utterly unjust.
DOUGLAS: There are probably a lot of laws in the United States that you might think are stupid, that you might think are unwise. That you might even think are immoral. Let’s say you’re a judge. Is it incumbent upon you to insert your own personal conscience in deciding what laws you should be upholding and what laws you’re going to decide, “Well, you know, I think that law’s too stupid to uphold, so therefore I’m not going to uphold it.” I think we’d be very uncomfortable with judges who engaged in that kind of practice.
ZIMMERMANN: Take the case of a concentration camp guard, who was ordered to kill Jews in the camp. And who, eventually might have acted within the, the parameters of positive law as it stood at the time, in let’s say, 1943 or 1944. Could you still … would that, that norm of existing law as adopted by the Fuhrer or as adopted by the German Reichstag in ’38, ’39 … would that be a valid law? Or would it not so clearly contradict most fundamental values that we would set it aside by saying “There are rules out there which pre-date every given normative system, right, and which would therefore prevent …
GLICKSTEIN: Our Declaration of Independence talks about certain “inalienable rights” and among those rights are life, liberty and the pursuit of happiness. That’s natural law. I mean it doesn’t … that’s not written any place, the Founding Fathers all believed that there were certain rights that people just had as human beings; that they were entitled to. And I think those sort of principles, which are principles of morality … they can be stated other ways … you can … some people say well these are rights that come from God. And other people say they’re just inherent in the fact that you’re a human being.
DOUGLAS: It’s really about this whole question of conscience. This whole question of the status of law. What is the status of law in an unjust regime?
NARRATOR: The war in Europe has ended. The hour for which the world has been six years waiting has come. Unconditionally and finally, our German enemy has surrendered to Russia, to Britain and her commonwealth, to America, to the millions who fought with their hearts and souls.
GERMAN NEWS CLIP OF NUREMBERG
JACKSON: The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.
NARRATOR: In March 1947 the Justice Trial took place at Nuremberg. It was one of 11 subsequent trials that took place following the main Nuremberg trial of December 1945. The Justice Trial included 16 defendants who had been members of the Reich Ministry of Justice and its various courts. The trial raised the issue of what responsibility judges have for enforcing grossly unjust, but arguably binding laws. The charge was judicial murder and other atrocities committed by destroying law and justice in Germany. And by then utilizing the empty forms of legal process for prosecution, enslavement and extermination on a vast scale. In their own defense the accused claimed they had stayed to prevent the worst from happening. But after hearing 138 witnesses and introducing more than 2,000 pieces of evidence, the Nuremberg Court concluded that the defendants had consciously participated in a nationwide government organized system of cruelty and injustice in violation of the laws of war and of humanity. 10 of the 16 defendants in the Justice Trial were found guilty as charged. Four were sentenced to life imprisonment. Six were sentenced to terms ranging from five to 10 years. Six were acquitted for lack of evidence, one died before verdict and one was deemed a mistrial due to illness. The court ruled that the dagger of the assassin was concealed beneath the robe of the jurist.
SAFFERLING: I don’t know whether or not this is a German phenomenon; it took place in Germany and obviously Germans could be converted to this pervert idea.
FERENCZ: This is not a German phenomenon. This phenomenon exists in other parts of the world. There are people who are ready to kill and be killed for their particular ideals, because they’ve never learned tolerance; they’ve never learned compassion, they have been taught to hate.
BARRETT: A big issue is who was the perpetrator? And there are two polar positions, both of which are wrong in my view. One is the idea that the single madman, Adolf Hitler, mesmerized the country and by his evil decrees, perpetrated all of it, individually … you know, a one guy crime, in a sense. And the other view is that the entire German population is guilty as a matter of genetics and physical presence and citizenship. You know, the German people as a whole did it.
MARRUS: The beginning of wisdom, it seems to me is to look at Nuremberg in its context. It is a step and a very, very important step on the road to the international Rule of Law.
GLICKSTEIN: Nuremberg was a seed from which all of these international treaties, particularly those dealing with human rights … emerged. A judge in Nazi Germany could not have pointed to any principles of international law or any international covenants. Today we have that entire structure.
HARRIS: We can’t consider a nation as, as being isolated from the world and running its own affairs exclusively. It cannot be anymore. We have to live in this world community. No nation can be sufficient unto itself any longer.
WACHTLER: Perhaps given the time and the circumstances and history of Germany at that time it made them more vulnerable than most nations. But, even in this country, you can track our history going back to the Alien and Sedition Laws and the Palmer’s Raids and the McCarthy era and the internment of the Japanese in …during World War II. We have done things which, which in retrospect seem terrible.
BAZYLER: If we look at the United States in the 21st century, after 9/11 and we see that we have to deal with terrorism as a real problem and the law is one way … is, is … that has to be used for that … we have to also recognize the danger that Nazi Germany shows to us of going too far in the other way. Because democracy is very precarious. And Americans living in democracy, we think, “It always with us. There’s no way we can be a country without civil rights.” And Nazi Germany shows otherwise.
RAFUL: In this program we examine the fragile nature of democracy. And saw how even a Constitutionally governed nation could succumb to the rhetoric of despots. Great strides have been made in the past 60 years towards establishing an international Rule of Law. Yet without vigilance on the part of our lawyers and judges, the men and women who are charged with the task of safeguarding the Rule of Law any nation is vulnerable to fear and propaganda.
HEFFNER: Judge Wachtler, it’s still somewhat unbelievable to me that there wasn’t something particularly Germanic about the situation there.
WACHTLER: The only thing that might be considered Germanic, if you will, is the fact that the judiciary in Germany at that time came from Prussian origins and it was required that you have some 17 years of Internship before you could become a judge on the higher courts in Germany.
Now who could afford 17 years of Internship but the very … the children of very wealthy parents. And that was the Prussian aristocracy. So the judiciary was, almost by definition, conservative. And that was a start.
But that was not the only explanation. The other explanation was the fact that the Nazi regime held great appeal for the people and for the lawyers and for the judges …
HEFFNER: How so?
WACHTLER: Well because they were still smarting over Versailles and even very recently, Richard, when I went to Nuremberg for the second half of the Conference, you would see the, the professors in the law schools who were teaching law. They would explain the German mentality … they would say, “You have to understand that people a