Nazi Lawyers Laid Down the Nazi Law

I’m listening to Wanda McCaddon’s superb reading of Hannah Arendt’s Eichmann in Jerusalem again.  I’d missed a lot in my first listening.   It is a fascinating book, particularly if you feel any urgency to  learn about the progression and functioning of a totalitarian regime.  Arendt’s 1964 book is as good a single volume history of the Nazi period as any I’ve seen.  I’m looking forward to hearing Wanda McCaddon’s reading of Arendt’s The Origins of Totalitarianism, on hold at the library.

Arendt provides, among other things, a wealth of detail about the structure and day to day functioning of the Thousand Year Reich.   I just heard a bit that sent me dashing to the book, (also on loan from the library) and finding page 148, where Arendt discusses the role of Nazi lawyers in crafting laws that made all kinds of cruel and murderous practices perfectly legal and provided a sturdy  legal defense to any post-war charges.    When I say Nazi lawyers [1] I mean that all lawyers in the Third Reich were required to be Nazi party members in good standing,   I am also talking about Nazi judges, of course, every single one of them, up to supremely loyal Nazi Supreme Court judges, accountable only to the Fuhrer’s will.

As every self-respecting dictator demands: the supreme leader’s word is law.  In Nazi Germany Hitler’s every command had the force of law.  It was phrased Fuhrerworte haben Gesetzeskraft (Arendt, 148).   Even so, in certain cases, like codifying his command for the Final Solution, teams of expert Nazi lawyers got to work.  That particular secretly spoken order for the physical destruction of European Jews and other undesirables, “was followed by a huge shower of regulations and directives, all drafted by expert lawyers and legal advisers, not by mere administrators.” (Arendt, 149). 

Under Nazi law as crafted by the most learned Nazi lawyers (and it is now known that the Nazis studied the racial laws and practices of the American south [2] ), there was a strong “state action” defense Nazi state actors could raise if they were prosecuted, in the event the Nazis lost the war, for things like mass-murder.  The old Nuremberg Defense was heard over and over during those trials: “I was only following orders, bitch.”  This “state action” defense is a legal argument that any act done in one’s official state duty cannot be prosecuted as a crime.   Blood curdling capital crimes would have to be excused, under this theory, if executed under this principle of international law.  

American  law often grants the same exemptions to Americans acting under command of the United States of America, particularly in time of war.  Think of the second Bush administration’s secret torture memos that preemptively legalized illegal acts and  the immunizing of private mercenaries for all acts committed in liberating Iraq from a modern-day Hitler, etc.   Certain unspeakable acts, like machine gunning civilians from a helicopter, and then strafing the rescue van, or prying American bullets out of civilians accidentally killed in a raid, might be hard to justify under any theory.  These were the kinds of hard cases shrewd Nazi lawyers were prepared to defend under the “state actor” theory, a potentially useful defense for war criminals or those who may, arguably, have committed “crimes against humanity”.  

The idea of a novel legal concept like a “crime against humanity” was sneered at by Nazi lawmakers when they worked in a legal system that made the systematic murder of certain “stateless” civilians fully  lawful  (enemies of the state were commonly branded “stateless” for purposes of Nazi immunity from international laws regarding state citizens).   Nazi sneers about crimes against humanity only turned to determined, thoughtful frowns and hard legal thinking when things started to go badly for the Nazis.   Certain things, though, even to a Nazi lawyer, may have seemed hard to defend, in the worst case, where issues were no longer decided by Nazi judges under Nazi law.

Gassing a room full of naked men, women and children, for example.  You’d think that would be a cut and dried murder qualifying you for a death sentence if convicted.   Premeditated murder like that would likely be a tough rap to beat in virtually any courtroom in the world.   But the Nazis rewrote the legal norms of Germany, turning them upside down [3] and writing new laws to circumvent all existing law, and after the war, allowing defense lawyers to argue matters of post-Hitler international law at the Nuremberg Trails and later during the Eichmann Trail.   Eichmann’s lawyer argued unsuccessfully that since Eichmann was a German citizen only a German court had the jurisdiction to prosecute him.  The West German government in 1961 wanted nothing to do with a trial against a Nazi (for one thing, other prominent former Nazis were in high positions in that government.  The Germans were only too happy to let the Jewish State have the headache of trying Eichmann.    Eichmann’s defense, beyond his state actor status, is that he himself was no murderer, let alone a mass-murder, but a minor functionary who simply did lawful things under lawful orders from his lawful superiors.   A point Arendt does not dismiss — his being personally squeamish– though she ends her book stating that she would hang him based purely on the conviction that we should not have to share the earth with somebody like Eichmann.

The Nazis performed this revolution in law with an army of the best, brightest and most ambitious Nazi lawyers, without ever abolishing the liberal Weimar Constitution.  All that was needed to make that blueprint for democratic document work perfectly for the Nazis was a terrifying national emergency that required the immediate activation of special powers, and a quick yes/no vote in the Reichstag for an Enabling Act.   The emergency powers the Nazis seized were all legal and perfectly constitutional under the Weimar Constitution, leaving aside the troubling fact that the Nazis themselves almost undoubtedly arranged for the terrifying national emergency, the torching of Reichstag, the German Parliament.     Everything the Nazis did during the endless twelve year national emergency had been done with a brazen Nazi veneer of perfect legality under existing democratic law in Germany.   The early years in power were spent crafting timeless laws for the Thousand Year Reich.  

Sadly, when you think of justice as basic fairness, there is often a law, even in non-totalitarian societies, specifically created to allow things neither just nor fair, that can be cited in defense of terrible acts [4].   The best lawyer will make the strongest possible case for a particular section of that particular law prevailing over all other laws, all squishy moral considerations.   Eichmann was accused of mass murder.  Eichmann insisted that he had never murdered even a single person, hated bloodshed, so how could he possibly be culpable for jack shit under any law,  since he was simply lawfully doing his lawful job the whole time?  

Nazi lawyers were busy in those final days destroying incriminating legal documents and tightening up laws with an eye toward shoring up arguments that that arguably criminal acts done under state law could only be prosecuted by state officials.   This is the same practice racist Americans used for generations, under the doctrine of States’ Rights,  to ensure that local lynchings remained basically lawful activities, to be decided by local juries of people who knew the murderers to be damned good people who wouldn’t have done that kind of thing without a damned good reason.   Under almost any law you can cite, there are grotesque specifics the lawyer can argue to try to get the client off the hook.   It’s no mystery, really, that in Nazi Germany Nazi lawyers supervised the drafting of every important law.  

Or course, law is not the only way people are kept in line.   Controversial laws often come last, after the groundwork has been laid by the behaviors and attitudes tolerated and eventually applauded by the citizens.  This is the reason propaganda is so important, to sew the seeds of the beliefs necessary to promulgate laws that, in other situations, may not seem just, fair or humane.   The Nazis understood this keenly and taught future generations of politicians exactly how it should be done. The lessons have been well-learned and the battle for hearts and minds is being constantly waged by monied partisans on every side of every issue.  Life for the person on the street often changes long before the new laws are put into effect, or even drafted.

You live in a place where people who are too loud in their dissent will be politely asked to shut the fuck up.    Many times people get the hint, pick up the social cues and move someplace where they don’t have to argue politics all the time. Particularly after a few people who won’t shut up are made examples of.  

But say you have the odd, perverse partisan, living in the same place for many years, unwilling or unable to relocate.   His new neighbors all support the candidate he hates, and that candidate wins the national election.  The loud-mouthed opinionated fellow simply won’t shut up about his stinking opinion that the new leader is a Nazi.

There are ways to make this person shut up.  Perfectly legal ones, or at least perfectly reasonable, acceptable ones.  And if they are not strictly legal at the moment, but everybody involved goes along with current, extra-legal methods until better laws can be passed that will make complete assholes like this shut the hell up under penalty of law, well… call us pishers!

 

 

[1]  The lawyers in Germany were the first profession to fully and voluntarily Nazify, followed closely, if memory serves, by German doctors.     (Robert J. Lifton, The Nazi Doctors)

The requirement that every lawyer must be a loyal Nazi was essential to the creation and administration of the Nazi State.  In programmer parlance:  Nazi in, Nazi out.

[2]  The States’ Rights argument here is based largely on the right of a sovereign state to make and prosecute its own civil and criminal laws.   If an American state decides it is illegal for blacks and whites to marry each other, end of story.  If a state decides that sometimes an uppity black person needs to be taught a violent lesson to keep the others in line, so be it.    Those two racist state laws were later abolished, the first by a Supreme Court decision finding the law unconstitutional, the second by a series of Supreme Court decisions and the enforcement of a longstanding federal law to punish racially motivated terrorism, but it took more than a century.   A dark century of vicious racism at law, state law.  

[3]  Think of the cunning, lawyerly rebranding of commonly understood tortures as mere methods of “enhanced interrogation”.   Imagine John Yoo, the Korean-American Bush-Cheney loyalist who drafted the secret torture memo (along with a fuck named Bybee, later promoted to federal judge for life), not as a tenured professor of Constitutional Law at Berkeley, but as a perp on a water-board, being forced, under enhanced interrogation, to explain his actual thought process while writing that infernal legal justification for acts we had signed treaties to prevent, acts illegal under American law, the Nazi motherfucker.

[4]  The current, highly controversial, American policy  is to have U.S. border agents pluck the children of asylum seekers from their parents’ arms and throw the kids into prisons for children.  About 2,000 so far, under this balls-to-the-walls administration.  All perfectly legal, to hear the supporters of this policy tell it.   It is a form of brutal deterrence calculated to slow down the flood of people coming to our borders seeking asylum.  Sanctioned by Jesus Christ himself, as spoken by Paul (commanding all of Christ’s followers to never question the law, apparently– obedience to government authority being the highest spiritual calling of righteous Christians), according to our pious, God-fearing, scripture quoting  racist Attorney General.  Another guy I’d pay to watch sputtering on a water-board any time he refuses to honestly answer a simple question.

 

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