Hitlers Courts - Betrayal of the rule of Law in Nazi Germany (2005) - full transcript
(quiet dramatic music)
(speaks in foreign language)
- They had the strong
conviction that this was right,
and they were here at the right place,
celebrating this party, and
celebrating these politics.
- I mean, I as a child grew up in Germany.
And I saw what happened
sometimes, you know,
when they had these mass rallies.
And when I saw Hitler's speeches.
- 10,000 German lawyers
and judges took an oath
of personal loyalty to the Fuhrer.
- In Nazi arguments, the law
is the will of the Fuhrer.
- Because he brings the
hope, the glory, the pride.
- And then it all went horribly wrong.
(somber music)
(speaks in foreign language)
(speaks in foreign language)
(crowd cheering)
- [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.
- It 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.
- 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.
- After the burning of the Reichstag,
which was more than a symbolic act
in destroying the parliament,
10,000 lawyers took an oath.
Not surprising, I've
taken an oath as a lawyer
to defend the Constitution
of the United States.
But 10,000 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.
- 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.
- The principal procedure
governing German law
during the Third Reich
was something called the Fuhrerprinzip.
And the idea was that Hitler
had absolute discretion
to make any ruling whatsoever
in the interest of the state.
And that there were lesser
or subordinate Fuhrers
who also followed the Fuhrerprinzip,
and also themselves had wide discretion,
limited only by what the Fuhrer
above them had told them to do.
(speaks in foreign language)
- [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.
(speaks in foreign language)
(crowd cheers)
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.
- 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's
been visited upon Germany.
(speaks in foreign language)
- [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.
(somber music)
- [Narrator] On January 30th, 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.
(speaks in foreign language)
(crowd cheers)
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 cast a dissenting vote.
In a similar manner, the
regional Bar Associations
and the Bavarian Lawyers'
Association disappeared.
On April 7th, 1933, the
German government enacted
a law forbidding attorneys
of non-Aryan descent
from representing Aryan clients.
If anyone dared do so,
their names were published
in the press, their
businesses were boycotted,
and soon it even became
grounds for divorce.
- 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.
And you can trace this.
You can trace the
Holocaust as a legal event.
- 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.
(somber music)
- [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.
- The enemy, which we regard this 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 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.
(speaks in foreign language)
- [Narrator] 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 has 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 Freisler, a Nazi
of such extreme sentiments
that he shocked even
his fellow Nazi judges.
(speaks in foreign language)
Freisler 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 Schmitt, 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.
(speaks in foreign language)
(crowd cheers)
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 their civil
death long before millions
met their physical death
in the camps.
(dramatic music)
- [Max] 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.
(somber music)
(speaks in foreign language)
(dramatic music)
(metal clangs)
The Hertzfelders and I had been
listening to the radio before retiring.
Around four 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 are free to go.
(somber music)
We walked home, and saw the Gestapo
busying themselves in other homes.
(somber music)
That same evening,
thousands of Jewish men,
in particular, nearly all
the lawyers and physicians
and former judges,
prosecutors across Germany,
were arrested and dragged
off to concentration camps.
(somber music)
- I had an uncle who
was Jewish, of course,
and he was arrested in 1938,
during the sort of, you
know, 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 see no reason
why we should pay for you Jewish pigs
for your journey to
the concentration camp.
So 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
went to a work camp,
and he went by bus,
and of course he had to pay for that.
But he paid 20 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 you 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.
- And then you pass another
law, saying you will please
come together in the market
square for being resettled.
You never used the word murdered.
And so they show up, and they get
on the train to be resettled.
And then, in accordance with the law,
you don't want to waste their clothing.
You have to take it off
and then 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.
And of course, if they have
gold crowns in their mouth,
your not gonna throw away gold,
so you rip it out of
their mouth with pliers.
You get other Jews to do the job,
become members of what they called
the (speaking in foreign
language) the death commandos.
Drag the body to the crematorium
and put it on the fire to burn.
And then the ashes,
(man crying)
I'm sorry.
(man crying)
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.
- [Max] The next day, I
suddenly received a call.
So, you are not in Dachau yet?
You are instructed to come
to police headquarters
between four and five p.m.
(somber music)
The Hertzfelders urged
me to leave Germany.
I said goodbye 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?
(somber music)
(gunshots fire)
(jet engines whoosh)
- [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 lawmakers.
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.
- 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.
(crowd chanting)
(speaks in foreign language)
- 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.
- 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 goals
that you were confronted
with.
Because the masses of the
people, they just went with it.
(crowd cheering)
- [Narrator] In 1934, Dr. Lothar Kreyssig,
a judge on the court in Brandenburg,
objected to Hitler's euthanasia program,
and even attempted to
prosecute Nazi officers
for 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
in a concentration camp, Sachsenhausen.
The overwhelming majority
of Germany's legal community
cooperated with the Nazi regime.
Postwar statistics estimate that by 1945,
the number of death sentences handed
down by Germany's various courts
had exceeded 50,000
of which more than 80% were carried out.
(somber music)
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
deemed overly lenient.
(somber music)
Thousands of prisoners
were delivered to the SS
at that time for summary execution.
(somber music)
(birds twittering)
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
in Wannsee were lawyers.
- It was this fireplace, where 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 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.
- The question that really begs itself
when you hear this description
of what happened to the law
and to the legal personnel
in Nazi 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 not a legal answer.
It's not an answer that a lawyer can give
or a law professor can give.
It's a question that has to be asked
of psychologists, sociologists.
As I've looked at the
individual perpetrators
and what they did and
studied them in detail,
I read the transcripts
of their interrogations,
their testimony and so
forth, I've gotta tell you,
I find familiar human qualities.
To a degree, these aren't
completely unfamiliar monsters.
There are things in Albert
Speer, or Hjalmar Schacht
or even Hermann Goering that are like us.
- Maybe one characteristic of Germans is
that they have a tendency
to lean to perfectionism.
They want to be perfect.
So they wanna have also
a perfect legal system,
and this is where it got horribly wrong
when the law turned out
to be utterly unjust.
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 gonna decide,
well, you know, I think
that law's too stupid
to uphold, so therefore I'm not going
to uphold it.
We'd be very uncomfortable with judges
who engage in that kind of practice.
Take the case of a
concentration camp guard
who was ordered to kill Jews in the camp,
who eventually might have acted
within the parameters of positive law
as it stood at the time
in let's say 1943 or 1944.
Would that norm of existing law
as adopted by the Fuhrer, as adopted
by the German Reichstag in '38, '39,
would that be a valid law?.
Or would it not so clearly
contradict the most fundamental
values that we would set it
aside by saying there are rules out there,
which predate every given
normative system, right?
Which would therefore prevail.
- 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, 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.
Some people say, well these are rights
that come from God and other people say
they're just inherent from the fact
that you're a human being.
- It's really about this whole question
of conscience and this whole question
of the status of law.
What is the status of
law in an unjust regime?
(church bells ringing)
- [Announcer] War in Europe has ended.
(trumpets playing)
The hour for which the world
has spent six years waiting
has come.
Unconditionally and finally,
our German enemy has surrendered
to Russia, Britain and her Commonwealth,
to America, to the millions who fought
with their hearts and souls.
(brass band playing)
(dramatic music)
(speaks foreign language)
(dramatic music)
(speaks foreign language)
(dramatic music)
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 persecution,
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.
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.
- 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 perverted idea.
- 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 have never learned tolerance.
They have never learned compassion.
They have been taught to hate.
- 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.
A one-guy crime, in a sense.
The other view is that the
entire German population
is guilty as a matter of genetics,
and physical presence and citizenship
The German people as a whole did it.
The beginning of wisdom, it seems to me,
is to look at Nuremberg in its context.
And it is a step and a
very, very important step
on the road to the
international rule of law.
- 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 principle of international law
or international covenants.
Today, we have that entire structure,
- And we can't consider our nation
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.
- 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.
Internment of the Japanese
during World War Two.
We have done things, which
in retrospect seem terrible.
- If we look at the United
States in the 21st century,
after 9/11, then we see that
we have to deal with terrorism.
It's a real problem.
And the law is one way to approach this,
It has to be used for that.
We have to also recognize the danger
that Nazi Germany shows to us
of going too far the other way.
Because democracy is very precarious.
And Americans living in democracy,
we think it's always with us,
that there's no way we can be a country
without civil rights
and Nazi Germany shows otherwise.
(mournful music)
- In this program, we
examined 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 with courts
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.
Thank you for your attention.
(somber music)
(speaks in foreign language)
- They had the strong
conviction that this was right,
and they were here at the right place,
celebrating this party, and
celebrating these politics.
- I mean, I as a child grew up in Germany.
And I saw what happened
sometimes, you know,
when they had these mass rallies.
And when I saw Hitler's speeches.
- 10,000 German lawyers
and judges took an oath
of personal loyalty to the Fuhrer.
- In Nazi arguments, the law
is the will of the Fuhrer.
- Because he brings the
hope, the glory, the pride.
- And then it all went horribly wrong.
(somber music)
(speaks in foreign language)
(speaks in foreign language)
(crowd cheering)
- [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.
- It 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.
- 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.
- After the burning of the Reichstag,
which was more than a symbolic act
in destroying the parliament,
10,000 lawyers took an oath.
Not surprising, I've
taken an oath as a lawyer
to defend the Constitution
of the United States.
But 10,000 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.
- 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.
- The principal procedure
governing German law
during the Third Reich
was something called the Fuhrerprinzip.
And the idea was that Hitler
had absolute discretion
to make any ruling whatsoever
in the interest of the state.
And that there were lesser
or subordinate Fuhrers
who also followed the Fuhrerprinzip,
and also themselves had wide discretion,
limited only by what the Fuhrer
above them had told them to do.
(speaks in foreign language)
- [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.
(speaks in foreign language)
(crowd cheers)
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.
- 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's
been visited upon Germany.
(speaks in foreign language)
- [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.
(somber music)
- [Narrator] On January 30th, 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.
(speaks in foreign language)
(crowd cheers)
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 cast a dissenting vote.
In a similar manner, the
regional Bar Associations
and the Bavarian Lawyers'
Association disappeared.
On April 7th, 1933, the
German government enacted
a law forbidding attorneys
of non-Aryan descent
from representing Aryan clients.
If anyone dared do so,
their names were published
in the press, their
businesses were boycotted,
and soon it even became
grounds for divorce.
- 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.
And you can trace this.
You can trace the
Holocaust as a legal event.
- 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.
(somber music)
- [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.
- The enemy, which we regard this 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 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.
(speaks in foreign language)
- [Narrator] 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 has 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 Freisler, a Nazi
of such extreme sentiments
that he shocked even
his fellow Nazi judges.
(speaks in foreign language)
Freisler 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 Schmitt, 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.
(speaks in foreign language)
(crowd cheers)
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 their civil
death long before millions
met their physical death
in the camps.
(dramatic music)
- [Max] 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.
(somber music)
(speaks in foreign language)
(dramatic music)
(metal clangs)
The Hertzfelders and I had been
listening to the radio before retiring.
Around four 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 are free to go.
(somber music)
We walked home, and saw the Gestapo
busying themselves in other homes.
(somber music)
That same evening,
thousands of Jewish men,
in particular, nearly all
the lawyers and physicians
and former judges,
prosecutors across Germany,
were arrested and dragged
off to concentration camps.
(somber music)
- I had an uncle who
was Jewish, of course,
and he was arrested in 1938,
during the sort of, you
know, 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 see no reason
why we should pay for you Jewish pigs
for your journey to
the concentration camp.
So 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
went to a work camp,
and he went by bus,
and of course he had to pay for that.
But he paid 20 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 you 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.
- And then you pass another
law, saying you will please
come together in the market
square for being resettled.
You never used the word murdered.
And so they show up, and they get
on the train to be resettled.
And then, in accordance with the law,
you don't want to waste their clothing.
You have to take it off
and then 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.
And of course, if they have
gold crowns in their mouth,
your not gonna throw away gold,
so you rip it out of
their mouth with pliers.
You get other Jews to do the job,
become members of what they called
the (speaking in foreign
language) the death commandos.
Drag the body to the crematorium
and put it on the fire to burn.
And then the ashes,
(man crying)
I'm sorry.
(man crying)
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.
- [Max] The next day, I
suddenly received a call.
So, you are not in Dachau yet?
You are instructed to come
to police headquarters
between four and five p.m.
(somber music)
The Hertzfelders urged
me to leave Germany.
I said goodbye 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?
(somber music)
(gunshots fire)
(jet engines whoosh)
- [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 lawmakers.
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.
- 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.
(crowd chanting)
(speaks in foreign language)
- 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.
- 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 goals
that you were confronted
with.
Because the masses of the
people, they just went with it.
(crowd cheering)
- [Narrator] In 1934, Dr. Lothar Kreyssig,
a judge on the court in Brandenburg,
objected to Hitler's euthanasia program,
and even attempted to
prosecute Nazi officers
for 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
in a concentration camp, Sachsenhausen.
The overwhelming majority
of Germany's legal community
cooperated with the Nazi regime.
Postwar statistics estimate that by 1945,
the number of death sentences handed
down by Germany's various courts
had exceeded 50,000
of which more than 80% were carried out.
(somber music)
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
deemed overly lenient.
(somber music)
Thousands of prisoners
were delivered to the SS
at that time for summary execution.
(somber music)
(birds twittering)
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
in Wannsee were lawyers.
- It was this fireplace, where 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 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.
- The question that really begs itself
when you hear this description
of what happened to the law
and to the legal personnel
in Nazi 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 not a legal answer.
It's not an answer that a lawyer can give
or a law professor can give.
It's a question that has to be asked
of psychologists, sociologists.
As I've looked at the
individual perpetrators
and what they did and
studied them in detail,
I read the transcripts
of their interrogations,
their testimony and so
forth, I've gotta tell you,
I find familiar human qualities.
To a degree, these aren't
completely unfamiliar monsters.
There are things in Albert
Speer, or Hjalmar Schacht
or even Hermann Goering that are like us.
- Maybe one characteristic of Germans is
that they have a tendency
to lean to perfectionism.
They want to be perfect.
So they wanna have also
a perfect legal system,
and this is where it got horribly wrong
when the law turned out
to be utterly unjust.
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 gonna decide,
well, you know, I think
that law's too stupid
to uphold, so therefore I'm not going
to uphold it.
We'd be very uncomfortable with judges
who engage in that kind of practice.
Take the case of a
concentration camp guard
who was ordered to kill Jews in the camp,
who eventually might have acted
within the parameters of positive law
as it stood at the time
in let's say 1943 or 1944.
Would that norm of existing law
as adopted by the Fuhrer, as adopted
by the German Reichstag in '38, '39,
would that be a valid law?.
Or would it not so clearly
contradict the most fundamental
values that we would set it
aside by saying there are rules out there,
which predate every given
normative system, right?
Which would therefore prevail.
- 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, 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.
Some people say, well these are rights
that come from God and other people say
they're just inherent from the fact
that you're a human being.
- It's really about this whole question
of conscience and this whole question
of the status of law.
What is the status of
law in an unjust regime?
(church bells ringing)
- [Announcer] War in Europe has ended.
(trumpets playing)
The hour for which the world
has spent six years waiting
has come.
Unconditionally and finally,
our German enemy has surrendered
to Russia, Britain and her Commonwealth,
to America, to the millions who fought
with their hearts and souls.
(brass band playing)
(dramatic music)
(speaks foreign language)
(dramatic music)
(speaks foreign language)
(dramatic music)
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 persecution,
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.
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.
- 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 perverted idea.
- 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 have never learned tolerance.
They have never learned compassion.
They have been taught to hate.
- 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.
A one-guy crime, in a sense.
The other view is that the
entire German population
is guilty as a matter of genetics,
and physical presence and citizenship
The German people as a whole did it.
The beginning of wisdom, it seems to me,
is to look at Nuremberg in its context.
And it is a step and a
very, very important step
on the road to the
international rule of law.
- 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 principle of international law
or international covenants.
Today, we have that entire structure,
- And we can't consider our nation
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.
- 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.
Internment of the Japanese
during World War Two.
We have done things, which
in retrospect seem terrible.
- If we look at the United
States in the 21st century,
after 9/11, then we see that
we have to deal with terrorism.
It's a real problem.
And the law is one way to approach this,
It has to be used for that.
We have to also recognize the danger
that Nazi Germany shows to us
of going too far the other way.
Because democracy is very precarious.
And Americans living in democracy,
we think it's always with us,
that there's no way we can be a country
without civil rights
and Nazi Germany shows otherwise.
(mournful music)
- In this program, we
examined 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 with courts
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.
Thank you for your attention.
(somber music)