Under Siege: The Rule of Law

THE OPEN MIND
Host: Richard D. Heffner
Guest: Sol Wachtler
Title: Under Siege: The Rule of Law
VTR: 9/13/02

I’m Richard Heffner, your host on The Open Mind. And five years ago when I did the most recent of many programs with my guest today, I introduced him as among the most decent and concerned of human beings, as well as a dear friend and dedicated servant, Sol Wachtler, the former chief judge of the State of New York.

Now in the summer of 2002, outside of Berlin, in Germany, Judge Wachtler organized and chaired the quite extraordinary Simon Bond International Wannsee Seminar on Tyranny, Justice and the Law.

For it was there at the Wannsee villa 60 years before that political, legal and judicial functionaries of Hitler’s Third Reich had met to devise an efficient method to resolve “the Jewish question.” The so-called Final Solution, extermination of Europe’s Jews.

Participants in that original Wannsee meeting three generations ago, where the logistics of mass murder were agreed upon were largely lawyers and the premise of Judge Wachtler’s Wannsee Conference was that the corruption of the rule of law in Germany under Hitler provides a particularly relevant lesson for lawyers and judges in our own times. Indeed, in our own country.

Germany’s legal establishment seemed unable sufficiently to resist the powers of darkness and the Wannsee meeting presumably could serve as a powerful reminder of how fragile the rule of law can be when threatened by the political power of the State. And I want to ask Judge Wachtler whether his Wannsee Conference succeeded in that regard. And what it’s relevance is to contemporary Americans. Did it work?

WACHTLER: Yes. I think it did. It worked as an educational tool and as a cautionary note. The whole idea of this was born when I went to Germany in the late sixties, the government sent me there to speak on our United States Constitution. And I noticed that the … I was to speak to judges and prosecutors … and I noticed that my audience were all 10 or 15 years older than I. And it struck me, and I was in Stuttgart and Munich, it struck me that these were Hitler’s judges.

And what happened was after the occupation, they came back on the bench. And their judgments were rather startling. They gave full veteran’s benefits to members of the SS Death Head Squad. They gave widow’s pensions to those people who were executed at Nuremberg. And they tried as defectors those people who had left the German Army. So, since that time I always wondered … these men who had returned … what were they really like during Hitler’s Third Reich, and how could they … as people who are committed to the law … stand idly by, or even worse, become handmaidens to terror. To this tyranny, as you spoke of it.

And, so I thought this would be an interesting subject to explore. Because although we have read and heard much about what happened during that horrendous period in our history, we never really focused in on what the bench and the Bar were doing when Hitler was having his way with, with Germany.

HEFFNER: And you used the word “cautionary”. Again, let’s come back to that because you didn’t do this … I’m sure you didn’t … maybe you’ll contradict me … out of a sense of history, particularly. But of contemporary concern.

WACHTLER: Well …

HEFFNER: Am I wrong?

WACHTLER: Well … no, no, it was a contemporary concern. But interestingly enough this Conference which was planned with the Touro Law School and with the Free University of Berlin and the Institute on the Holocaust and the Law was planned before September 11th. In fact, I was with the Dean of the Turo Law School, in Berlin, on September 11th of last year. And so even though we didn’t think in that time that we would have this kind of need for concern with executive powers as it related to civil liberties, it certainly became more relevant after September 11th.

HEFFNER: Well, let’s not beat around the bush. What is it that you’re referring to?

WACHTLER: I’m referring to the powers that are taken, by prosecutors, taken by those people …by the Executive Branch, and of course, the prosecutorial arm is part of the Executive Branch, in trying to root out what they consider danger. And by rooting that out, they suppress the civil liberties of everyone else. This is what happened in Hitler’s Germany and I don’t mean to draw any comparisons at all. Because we have the kind of checks and balances and the kind of judiciary and the kind of Bar where this would not happen.

But it has happened in other nations where you have people who are afraid. And when people who are afraid … they tend to allow their leaders to take away their liberties. They say, “Look, I’m willing to give up certain of my liberties because I want this fear routed out.” And this is a dangerous path. What Hitler did was to say that the enemy, Communist and Jews … they are undermining Germany. And they sold that, or he sold that to the people. And having sold that to the people, he was able to enact these horrendous laws and the laws kept depriving people of their rights. And the laws were gained easily as acceptable by the, by the judiciary. And in three months, after he became Chancellor, the judges who at first were worried about him because they wanted to preserve the independence of the judiciary … in just three months time they were caving in to Hitler’s laws.

HEFFNER: To what degree, at your Wannsee Conference was there a recognition of the potential parallels between what the legal profession and you weren’t concerned only with the judiciary, but the degree to which the legal profession was willing to set aside the concept of the rule of law. To what degree did your participants see what you see?

WACHTLER: Well, they saw it very quickly and very readily. Of course, many of the participants were not Americans. We had, we had professors who were students of the Third Reich. We had a member of the Israeli Supreme Court, one of the prosecutors of Eichmann …Justice Bach was there. And they, they spoke in terms of … again, how quickly the Bar cooperated and caved.

And one of the things that bothered me, and has always bothered me, was that the legal profession has always held itself out as the bulwarks … the protectors and preservers of civilization. And yet if you look historically and forgetting Germany, in other nations as well, it goes … wherever there was genocide … Rwanda, Cambodia, Yugoslavia … the, the lawyers and the legal profession very, very quickly fell in with the tyrant. So that one of the purposes of this Conference, which again becomes even more relevant as time go on was to say to lawyers and judges all over the world … this is your responsibility. Your responsibility is to preserve the rule of law. And even though it might not be the most popular thing in the world because of the fear on the part of the populace, or because you want to curry favor with the Executive Branch or the leader or the tyrant or the Emperor or the Dictator, nevertheless, you have an obligation to protect the freedoms and the civil liberties of the citizenry.

HEFFNER: Has there been a time, has there been a place where your colleagues in the legal profession have by-and-large done just that?

WACHTLER: Yes. In this country. Right now. And it was very exciting. Recently we had judges throwing out 75 applications for search warrants, which were sought by the FBI saying that the objective of the search warrant did not measure up to the Constitutional standards. And so you can’t search and seize with those warrants.

We have the American Bar Association coming out with a resolution against certain powers that were contained in the Patriot’s Act, or in the Homeland Security Act. By the way, Richard, you would appreciate this … we had one of these professors, these scholars in Germany, who was critical of what was happening in this country … because, as I say, although this was planned before September 11th, the Conference was just held last July. And one of these German professors said, “you know, you called it the Patriot’s Act.” He said, “We have a similar thing in Germany where we gave more power to prosecutors. And what you call ‘Homeland Security’, we called ‘Fatherland Security’.”

Now again I think the analogy limps because we don’t have the kind of frail government structure that was had in Germany at that time. I don’t think that a dictator or a President or anyone else in this country could so override civil liberties and freedoms without there being a strong objection on the part of the people, as well as the Bench and the Bar.

HEFFNER: Can the Bench and the Bar, generally in this country … I mean you make reference to a particular court now that deals with the question of wire tapping, and other …

WACHTLER: Yes.

HEFFNER: … inquiries. The judiciary generally in this country … what’s your … in terms of the issues that you discussed at your Wannsee Conference. What do you have to say about it?

WACHTLER: Well, I … there have been some very, very encouraging rulings down in the South, and one in the mid-West. I can’t name the judges right now who have stood up to the fact that your conducting secret proceedings. Justice Brandeis once said that “sunlight is the best disinfectant”. That, that is our enemy, secrecy. The fact is that we must have at times processes which are held in secret in order to root out terrorism and so forth. But that should be the exception, not the rule.

We had the Palmer raids back in 1920 in fear of the Bolsheviks, where the Attorney General A. Mitchell Palmer arrested 10,000 people in 33 cities. No search warrants … because they looked Slavic, and that was grounds enough to arrest. And that’s one of the shameful chapters in our history. And I think we’re mindful of that. We interred the Japanese in California. These are …the McCarthy era … these are shameful reminders of our overreaction in times of fear. And I think that we’ve learned a lot from history and I think we’re much, much better today than we’ve ever been.

HEFFNER: Was there any conflict at Wannsee? Was there any … were there any disputes among the participants …

WACHTLER: Oh, yes.

HEFFNER: … at your Conference?

WACHTLER: Oh, yes. Oh, yes. There were those who insisted on the need for extraordinary measures in extraordinary times. Sometimes it was difficult to determine what times they would consider extraordinary and who should be empowered to identify “the enemy”. Terrorists are our enemy.

I think that the war against terrorism, by the way, is going to be endless. You know we have the war against poverty, the war against drugs, the war against cancer. These wars, I hope, will ultimately be won. The war against terrorism will not be won in our lifetime. So that the laws which are enacted now to protect ourselves are not temporary laws. These are laws with which we will have to live for as long as we live. So we have to be very careful that they’re not too repressive, and yet can still accomplish the objective of, of eliminating terrorism.

HEFFNER: Judge Wachtler in Germany … outside of Berlin at Wannsee … where there those, however, despite what you’re saying, who put their emphasis more upon the need to secure ourselves.

WACHTLER: Well, no … by this time, you see, the Wannsee Conference was held when Germany was well on its way. The problem that was confronted at Wannsee was the fact that they had millions of Jews in ghettos and in the concentration camps, and they didn’t know what to do with them. And so this group of men sat around and in a very callous fashion … they were summoned together by Reinhard Heydrich and Eichmann was there and Roland Freisler who was the Chief Judge of the People’s Court, a representative of the Minister of Justice, Thierack. These people, half of them lawyers, sat around this table and said, “what are we going to do with all these Jews?”. And their ultimate conclusion in an 85 minute conference was “murder them”. And then someone said, “well, wait a moment. We have … we need these trains to bring troops to the Eastern front, desperate.” And Heyriech said that our war against the Jews is as important as our war against the enemy. Certainly in Hitler’s mind.

So there was such an inflammation created on the part of the people against the identified enemy … that being the Jews … that they were almost willing to lose the war in order to extinguish the Jews. They thought that would be victory enough.

HEFFNER: Is that really the case?

WACHTLER: Oh, yes. Oh, yes. The, there was an almost maniacal pursuit in the extermination of all Jews. And Justice Bach told … he was … his office was right next door to Eichman’s cell in Jerusalem. And for nine months he spoke to Eichmann and Eichmann during that period made it very clear that the main objective were the children, you know to liquidate the children. So that the spawn would not be there to pollute Germany and the world. That’s how maniacal the pursuit came to extinguish the quote “identified enemy”.
And we have to be sure … not “we” but the entire world has to be sure that in identifying an enemy, we don’t become maniacal in our pursuit to extinguish that enemy.

HEFFNER: You know, I think we ought to look back to some of those discussions … I was looking back at a transcript of a program we did almost 30 years ago, you were a judge on the court of Appeals, you were not yet Chief Judge, and we spoke about the obligations of law schools, of the institutions that train lawyers … in this this country, train them to understand the obligations relating to the conflict, perhaps between the rule of law and the rule of a nation. And I asked you about the job that law schools do. What would you say now, 30 years later?

WACHTLER: Well, I, I … they’re dong better. As a matter of fact, as I say, Turo Law School was one of the sponsors of this program along with the Free University of Berlin Law School. And we’re trying now to generate a documentary from, from our experiences and from the Conference, to make a teaching tool which would be brought into law schools all over the world. And again, the emphasis will be the necessity for lawyers to recognize their obligation, their sacred obligation. You know Thomas Aquinas spoke of a secundum quid … people who are gifted must exercise the virtues of that gift. Lawyers who are given a license to practice law or are given a license to advise people who are held up on a pedestal … we make a lot of jokes about lawyers, but nevertheless, when a lawyer or a legal establishment puts it approval on a doctrine or on dogma, it’s more readily accepted by the people.

Hitler realized this, by the way. He felt that that he wanted to have the lawyers. At the Wannsee Conference Heidrich said to Eichmann, and this was reported by Justice Bach in a conversation he had with Eichmann … Heydrich, after the conference was over, they sat before the fireplace in the Wannsee Villa and Heirich turned to Eichmann and said, “I expected more of an argument from the lawyers. And they were the first to agree with us.” And that was frightening.

HEFFNER: Now is should be enormously frightening. Wouldn’t you make the assumption that today in this country that might not be as surprising. Or are you saying that “no”, it’s changed since those 30 years ago when we discussed …

WACHTLER: I must … I must tell you I have never been more proud of the profession than I have been during these past several months. When the American Bar Association comes out with a very thoughtful pronouncement as it relates to certain requests made by the Attorney General. Whether these requests were right or wrong, or whether they good or bad, the fact is that we have lawyers who are saying, “Whoa, wait a moment. We have a free society and to sacrifice that freedom in order to maintain a free society seems an illogical type of process.”

So that we have to, of course, limit certain freedoms. We have to be searched before we go on to an airplane. When a person has done something suspicious, that person must be interrogated. And the interrogation might even have to be held in secrecy.

But that should be, again, the exceptional occasion, and it shouldn’t be done as the Palmer Raids were done, where you just go out and have massive arrests and we don’t know where the people are held. Some of the proposals that have been made recently and that the American lawyers have objected to deprive people, American citizens, of the right to counsel, the presumption of innocence, the right to appeal, the right not to be forced into confession. All of these things were guaranteed by the Bill of Rights.

And when we celebrated September 11th we read the Declaration of Independence, no one alluded to the Bill of Rights. I think that this is very important. That this is one of the things that we fight for and have fought for and have died for, the maintaining of the freedoms which we hold so dear in this country.

HEFFNER: Most of the people who spoke on 9/11/02 I would imagine were trained as lawyers.

WACHTLER: Yes.. Yes.

HEFFNER: And yet you make the point …

WACHTLER: Well, I don’t think that that particular occasion necessarily mandated their speaking of anything except the enormous grief and sorrow and this incredible tragedy that we suffered. But I think that all those lawyers who spoke should have been very mindful and I think they were mindful of the fact that we have a war against terror right now that has to be fought and we have to do whatever we can, again, to defeat these terrorists. But at the same time we can’t defeat the freedoms which are so very important.

HEFFNER: And as I understand it, you’re saying, in response to my question … yes, indeed, our training institutions, our law schools are more now than before …

WACHTLER: Oh, yes. Far more now than before. As a matter of fact, right now, for example, the Bar that every lawyer takes in the United States of America, has a section, which they didn’t have at the time when we spoke 30 years ago, which relates to legal ethics. It’s a separate two hour part of the examination on the multi-state examination. Where lawyers have to be taught and then tested on their understanding of the obligations of a lawyer. So we have come a long way.

HEFFNER: And you’re saying those obligations included prominently, the recognition of the rule of law.
WACHTLER: Absolutely. Absolutely. That becomes at the forefront, as it should be, of lawyers and legal education. Because again, rightly or wrongly, lawyers are looked upon as the leaders of a, of a society. And if the legal establishment caves, and this was shown in Germany. If the legal establishment caves, then everything else falls very quickly behind.

HEFFNER: All right, let me go back to a point you made about the uses to which your Wannsee Conference can be put. How are you going to …

WACHTLER: Well …

HEFFNER: … make this known.

WACHTLER: Well, first of all, I learned a great deal about the history, about what happened and it explored an area which, as I said before, has never really been explored. And that is … what happened to the Bench and the Bar? How did it evolve. When you learn about history, you don’t necessarily then have to repeat that history. And so that lesson was learned by the participants of the Conference. And again it was all filmed and all documented; interviews were had; we’re bringing Justice Bach to this country soon and I do hope that you’ll be able to put him on The Open Mind, Richard, because he’ll tell you a fascinating story of that era.

But, this film that has been taken now, we hope to reduce to a documentary which we hope will be available again, then as a teaching tool. Because when you see it, when you hear it … and by the way, the venues for this Conference … were not in the sterile atmosphere of hotel rooms, we went to the places … we start at the Wannsee Villa, we went to the courtroom where the people’s court was convened …

HEFFNER: People’s Court?

WACHTLER: The People’s Court, that was Hitler’s euphemism, for, for the court which sentenced some 8,000 people to death. Now I’m not talking about the Eastern European Jews, and I’m not talking about the Death Camps … I’m talking about executions by virtue of judicial fiat … where these judges were sentencing people … if ;you displayed a picture of Adolph Hitler with a … and you drew his moustache a little bit too large, you could be tried and sentenced to death. And that’s what these courts were doing. Presided over by this Roland Freisler who was at the Wannsee Conference.

So we had one of sessions in his courtroom, which is still standing in Berlin. And the last session that we had was at the Sachsenhausen Prison Camp, concentration camp, which is right outside of Berlin. So we started at Wannsee and then we showed very dramatically, three days later, what the end result was by visiting the concentration camp.
HEFFNER: We only have a couple of minutes left. But you began by talking about your visits to Germany in the sixties. What happened to those judges you recognized as of necessity having participated in the Third Reich.

WACHTLER: One of the survivors of the concentration camp said “they died quietly and peacefully tending the gardens in their small cottages.” They were very, very, very few who were punished. And of all the judges in Germany during Hitler’s Third Reich, after exhaustive research, we were able to find one, single judge … a children’s court judge from Brandenburg, Germany, who refused to sign an order sentencing a massive amount of children who were considered defective, deformed to death. And he wouldn’t sign it. Judge Kreyssig was his name. And interestingly enough, he was not punished, he was removed from the Bench, but he was never put in a concentration camp. The only one of all the thousands of judges … only one let his voice be heard against the tyranny.

HEFFNER: That was less true, wasn’t it, of the religious groups … of ministers …

WACHTLER: Oh, yes. There were a great many ministers who stood up and who objected and who paid the ultimate price for that. And many people and not Jews who protected other Jews who thought that what Hitler was wrong. But those are not the people that were necessarily charged with the responsibility of enforcing law.

HEFFNER: And …

WACHTLER: … the people who were were the people who didn’t do their job.

HEFFNER: It’s a fascinating thing, and obviously, Judge Wachtler, the parallels you draw between what they did and what we must not do, and by “we” I mean people in your profession … are quite extraordinary. And thank you very much for coming back to The Open Mind.

WACHTLER: It was a great pleasure, Richard, thank ;you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150

Meanwhile, as another old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.