President's Message: What Would You Have Done? - By David E. Moore

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Thursday, August 31st, 2017

In January of 1933, Adolf Hitler was sworn in as Chancellor of Germany. Convincing the German masses that he alone was their hope for the restoration and preservation of Germany, he quickly began to consolidate his power and implement his programs.

In February, the Reichstag building that housed the German Parliament was burned. Many historians believe the fire was started by Nazis; others attribute the fire to the hand of a lone-wolf socialist. Whatever the truth, the Nazis immediately seized the propaganda opportunity and proclaimed it to be the result of a Communist Party conspiracy (which nearly all historians agree it was not).

In addition to arresting and charging several Communists, including their party leader, Hitler and the Nazis used the event as an opportunity to round up and detain their political and ideological opponents under the guise of national security. The day following the fire, at Hitler’s urging, Germany suspended many rights of its residents—including freedom of the press, freedom of assembly, rights related to privacy, and warrant requirements.

The Nazis enacted a rule of “protective detention” or “protective custody” that had nothing to do with protecting the poor soul who was detained. Without judicial review, the police could now arrest and detain opponents of the Nazis. The police alone would now decide whether or not a person posed some threat to the regime, and if so, they could arrest them without a warrant. What began as a way to stifle political opposition soon morphed into a tool to be wielded against racial enemies: the Jews, the Poles, the Gypsies and others. The doctrine of preventive detention was later expanded to include societal enemies—the criminals, the homeless, people with disabilities, homosexuals, and anyone else who fell beneath the standards of the Third Reich.

In March 1933, Germany passed the Enabling Act, essentially giving Hitler dictatorial powers. A month later, Jewish lawyers and judges, with some limited exceptions, were excluded from practicing law. A boycott of Jewish businesses was begun by the Nazis.

After the death of Hindenburg, in 1934 Hitler assumed total control of Germany, becoming Fuhrer and Chancellor and eliminating the presidency.

Then, in September 1935, the Nuremberg Laws were enacted by the Nazis, furthering Hitler’s assault against the Jewish community. The Nuremberg Laws revoked German citizenship for Jews and prohibited marriage and sexual relations between Jews and other Germans. Jews were defined as those who had three or more Jewish grandparents, regardless of their religious affiliation. For the moment, those with lesser degrees of Jewish ancestry retained their rights as Germans, but those of mixed blood would see their rights continue to diminish in the future. While the Nuremberg Laws originally mentioned only Jews, in November the laws were extended to include other “inferior” races, including Gypsies and Blacks.

Where were the lawyers and judges of Germany during Hitler’s march to fascism and the coming atrocities of genocide? After all, in 1933, Hitler had promised that he would safeguard judicial independence in his government. That turned out to be a hollow assurance. For very soon after rising to power, Hitler began a process to remove judges who failed in his words “to recognize the requirements of the hour.”

Dissatisfied with the results of the Reichstag arson trial in which all but one of the defendants were acquitted of arson by the court, Hitler began to create a system of “special courts,” courts who would all too willingly adopt and enforce the Nazi designs. Judges were instructed to no longer be shackled by the old written laws, but instead they were to be guided in their decisions by a concept of gesundes Volksempfinden, which translates into “healthy folk sentiment.” Essentially, judges were challenged to figure out what the Fuhrer would want as a result in the case before them, and then they were given a green light to apply whatever rules necessary to get them there. Most judges got the message. Apparently, the German Supreme Court certainly did since they reportedly never decided a single appeal of the race laws in favor of a defendant.

In 1942, Hitler ratcheted his grip on the legal system with two appointments: Otto Thierack as Reich Minister of Justice and Roland Freisler as President of the People’s Court in Berlin. The People’s Court was designed to speed up the process of purging Germany of her internal enemies. Under Freisler, the People’s Court conducted sham trials where Freisler would praise the Reich, berate the defendants, and convict them without fail. Today, you can watch recordings of this mockery of justice online. Freisler obviously took a perverse pleasure in screaming at the poor souls standing in front of him as he sentenced them to death.

Back to Otto Thierack. As Reich Minister of Justice, he regularly wrote letters to Third Reich judges and prosecutors, training them to be even more radical in their treatment of de­fendants, instructing them to interpret all cases with the ultimate goals of the Fuhrer as their guide. He constantly urged judges and prosecutors to impose more death sentences on the enemies of the Reich.

Thierack even wrote letters of guidance to the defense bar. He warned defense attorneys that they should never criticize the Nazi judicial system. He urged them to put forward less than their best efforts in defending those accused of political and race crimes.

Thierack once penned, “We must free the German Nation of Poles, Russians, Jews and Gypsies.” In another letter, he proclaimed, “In criminal proceedings against Jews, the decisive factor is their Jewishness, rather than their culpability.”

And later, when the rubber-stamp convictions and death sentences of the Nazi judicial machine did not meet the demands of the Fuhrer’s time schedule, Thierack simply removed Jews, Poles, Gypsies, and others from the jurisdiction of the courts and signed them over to the SS, where their fates could be determined in a more expeditious manner. Thierack wrote, “In so doing, I base myself on the principle that the administration of justice can only make a small contribution to the extermination of these people.”

So, where were the members of the German Bar during this atrocious process? Obviously, there were some who were true believers and supported Hitler’s sick views. But the others, how could they stand by and let this happen? Did they fail to recognize the warning signs in the beginning, only to feel powerless later in the process? Were they paralyzed by fear, by thoughts of self-preservation? Why did the majority of them fail so miserably to do anything?

In Germany, there were certainly pockets of resistance to the Nazis. Early on, the resistance mostly came from the left through political opponents like the Social Democratic Party, the Communist Party, or worker’s unions. There were other dissenters such as the student-led White Rose resistance group. What is stunning to me is that according to most historians, there was so little defiance from the legal profession.

To be sure, there were some who stood up.

Among those was Hans Litten, who dared to take Hitler on during the future Fuhrer’s ascension. In 1931, Litten represented two workers who had been stabbed by members of the SA, also known as Brownshirts or Storm Troopers, the paramilitary organization whose brutal intimidation and thuggery played an integral role in Hitler’s rise to power. During the trial, Litten actually subpoenaed Hitler and had him on the stand for three hours. Litten’s goal in the process was to expose Hitler, who at that point was trying to pass himself off as a “politician of the people,” as the instigator in chief of the SA violence. During his examination, he skillfully and logically tried to show how Hitler had encouraged the SA to violently attack opponents of the Nazi Party. Hitler attempted to deny the accusations. Apparently, as Litten scored points with his questioning, Hitler would lose control on the stand and shout at Litten. Unfortunately, at critical junctions of the testimony, in an attempt to control the damage being inflicted, the judge actually interceded on Hitler’s behalf and limited Litten’s questions.

Hitler never forgot Litten. As Hitler’s political fortunes rose, Litten’s friends and family begged him to leave Germany. He refused. Two years after the dramatic courtroom spectacle, in the immediate aftermath of the Reichstag fire, Litten was taken into protective custody. Litten was moved to a series of concentration camps, where he was regularly singled out for particularly gruesome torture due to his previous treatment of the Fuhrer. During some of the torture sessions, his captors would try to extract information about Litten’s friends and former clients. After years of enduring such treatment, and unable to take any more, Litten took his own life by hanging himself.

Rudolf Olden, like Litten an early critic of Hitler, was a lawyer and author. He was one of the first to speak out on Hitler’s mistreatment of the Jews. After the Reichstag fire, the Nazis searched a court for Olden in an effort to locate him and take him into protective custody. They were looking in the wrong court, and Olden, warned by friends, was able to escape. The next day, Olden, on wooden skis, was able to cross the border into Czechoslovakia.

In exile, Olden continued his attack on the Nazis and Hitler through numerous publications, including Hitler the Conqueror, Debunking of a Myth. Olden eventually wound up in England, where he continued to rail against the Nazi regime. In 1940, along with his wife, he boarded a ship to America for a speaking engagement at a New York university. En route, his ship was torpedoed by a German U-boat, and he and his wife both perished.

President's Message: What Would You Have Done?

Another example is Dr. Michael Siegel, who was practicing law in Munich. On March 10, 1933, he walked into a police station to attempt to ascertain why his client, a prominent Jewish department store owner, had been taken into protective custody. Siegel was taken into a room and savagely attacked by members of the SA. With teeth knocked out, an eardrum perforated, and his trousers shorn off, Siegel was paraded shoeless through the streets of Munich by the SA. As shown in the photo above, around his neck hung a sign proclaiming “I will never again complain to the police.” After the SA threatened to shoot him, Siegel made a break for it and managed to get away. He ultimately fled Germany and immigrated to Peru, where he died in 1979.

These three men are a sample of those lawyers who did have the courage to resist. As I think about those who did not, I am reminded of the poem written by German Lutheran pastor Martin Niemöller.

Niemöller, a nationalistic conservative, initially supported Hitler. Later, however, he became an outspoken opponent of the Nazis and their attempted control of German churches and the clergy.

As a result of his new stance, in 1937 he was taken into protective custody. He was moved to various camps before ultimately being imprisoned at Dachau. As the Allies closed in, Niemöller and 140 or so other prisoners who were deemed by the Nazis as having some potential value as hostages were moved to a different location. Although their guards had orders to shoot the group if capture was imminent, they did not and Niemöller was liberated.

He later wrote:

First they came for the Communists,
and I did not speak out—
Because I was not a Communist.

Then they came for the Trade
Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews,
and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to
speak for me.

What would you have done? What would I have done? I hope I would have had the prescience to recognize what was happening and the ability to trust my moral compass. I hope I would have had the courage to take a stand. I pray I will.