Robert Gellately

Backing Hitler

The creation of the new Gestapo system culminated with a Prussian law of 10 February 1936. According to this law virtually any actions taken by the Gestapo were no longer subject to court review, not even in the event of wrongful arrest, and no one could sue for damages. In other words, if the Gestapo was above the law even earlier, by early 1936 that situation was formalized. Henceforth, the only route open for any complaints was to appeal to the Gestapo head office (Gestapa). Far from being hushed up, the full implications of these developments were spelled out to the public in the press, so that no doubt could exist that citizens' basic legal rights were all but ended. Gestapo headquarters in Berlin simply wished to ensure that local officials did not overuse their powers of arrest and bring discredit on the police. Although in theory the legal immunity enjoyed by the Gestapo did not apply to the rest of the police, if and when they acted on behalf of the Gestapo, what they did could not be challenged either.

The Nazis worked out a clearly articulated volkisch or Fascist theory of the police by the mid-i930s, and proudly presented it for the edification and enlightenment of the public. The most succinct statement of this new theory was by Werner Best, the legal expert at Gestapo headquarters. Although his remarks were published in a specialist journal, summaries of them made their way into the popular press. Germans could now read that the police powers justified initially to fight Communism had a new rationale. Best stated flatly that the new police regarded 'every attempt' to realize or to maintain any political theory besides National Socialism 'as a symptom of sickness, which threatens the healthy unity of the indivisible volk organism.' All such efforts would be 'eliminated regardless of the subjective intentions of their proponents.' He now said that the new police watched over the 'health of the German body politic,' recognized 'every system of sickness,' and destroyed all 'destructive cells.' He summed up the mission of the Gestapo as follows:

The preventive police mission of a political police is to search out the enemies of state, to watch them and at the right moment to destroy them. In order to fulfil this mission the political police must be free to use every means required to achieve the necessary goal. In the National Socialist leader state it is the case, that those institutions called upon to protect state and people to carry out the will of the state, possess as of right the complete authority required to fulfil their task, an authority that derives solely from the new conception of the state and one that requires no special legal legitimization.

Best used the comparison between the Gestapo and the army at war, when he wrote that the Gestapo 'in its struggle against clever, determined and ruthless enemies must claim the same trust and the same powers as an army, which in fulfilment of its task—to destroy an enemy whose behaviour cannot be predicted—also cannot be bound by the letter of the law.' What had to be recognized about the police and the law, according to Best, was that above all 'for the fulfilment of its tasks, which could not be mastered according to fixed norms, the police must be given the same authority to take the necessary measures on the basis of its own knowledge and own responsibility so as to ensure the security of the people and state.'

This kind of volkisch or biological theory of the police was presented to the German people as the rational basis for what the new police did. Himmler reported calmly in March 1937 that the tradition of the nightwatchman state was dead, and so was the old liberal order in which, theoretically at least, the police were neutral. Whereas the old police watched but did not interfere to fulfil agendas of their own, the new police, he said, were no longer subject to any formal restrictions in carrying out their mission, which included enforcing the will of the leadership and creating and defending the kind of social order it desired.

According to Reichsminister Hans Frank, it was unthinkable for police to be restricted merely to maintaining law and order. He said that these concepts used to be considered value-free and neutral, but in Hitler's dictatorship, 'philosophical neutrality no longer exists,' that is, supporting or embracing any other political view besides Nazism was a crime. For the new police, the priority was 'the protection and advancement of the community of the people,' and police counter-measures were justified against every 'agitation' opposed to the people, and had to 'smother' them. The police could take whatever steps were necessary, including the invasion of house and home, 'because there exists no private sphere any more, in which the individual is permitted to work unmolested at the destruction of the basis of the National Socialist community's life.'

'Law is what serves the people and unlawful is what hurts it.' Hans Frank was fond of that motto, which was often conveyed to the public. Werner Best's typically more legalistic formulation ran as follows:

Law in a volkisch-authoritarian state is established by those organs of the people's order, which on behalf of the highest authority—that of the Flihrer—has the functions of regulating a specific area of social life. In what form this regulation is pursued, whether by an order from the Fuhrer, by law, by ordinance, by decree or by an organized regulation, is not important when the enforcement agency [the police] acts within the bounds of its mission.

These arguments were meant to appeal to citizens, even though they advocated nothing less than an unchecked authoritarianism, unrestricted police interventionism, and also the end of all pretences about the neutrality of the state. Citizens were asked to consent, to give up the sanctity of the private sphere, and to accept the new police and the order of things for which they were even given 'philosophical' explanations.

In keeping with these mission statements, the Gestapo began 'correcting' court decisions. The issue arose in an acute form in early 1937. At that time the chief judge of the notorious People's Court objected when Gestapo officials arrived in court to arrest a woman. The judge told the surprised policemen that the People's Court was sovereign and police had no business there. In the short run, the judge got his way, but two days later the Gestapo arrested the woman on the grounds that it was in keeping with their mission. On 21 April 1937, in order to avoid further public conflict between the Gestapo and the courts, the Minister of Justice informed the President of the People's Court—the most radical and Nazified of all the courts—that the actions of the Gestapo were valid and the judge was out of line. As his note stated, 'the character of protective custody as a preventive police measure that was to circumvent a threat to public order and security' was such that it could be requested and used in exceptional circumstances against 'enemies of state,' even when such people were found not guilty by the courts for want of evidence. In effect this decision gave the Gestapo a kind of'blank cheque,' and the police sent word of the decision to the Gestapo across Germany because of its 'fundamental importance.'

This resolution of the issue between the regular court system (Justiz) and what was termed 'police justice' (Polizeijustiz) did not settle the matter. On 25 January 1938, Interior Minister Frick (still officially Himmler's boss) tried to establish new guidelines for the uses of'protective custody' by the Gestapo. He repeated many of the worn-out phrases, but did not question the fact that protective custody was 'a coercive measure of the Gestapo,' nor that only its Berlin headquarters could issue arrest warrants. He wanted the measure used only 'against persons whose behaviour endangers the existence and security of the people and the state,' but acknowledged that 'protective custody' was long-term incarceration, and for the first time, that the place of confinement was the concentration camp. Technically speaking, detained persons were supposed to be informed of the grounds for their arrest, and, on paper, the Gestapo had to apply for the renewal of the detention orders every three months. However, such minimum safeguards were robbed of any meaning by the fact that Gestapo headquarters in Berlin, that is, the police itself, had the exclusive power to decide whether confinement was to continue. Decisions were made in secret, no defence counsel was permitted, and the imprisoned person was not even allowed to appear.

The Gestapo exercised the power to decide when, or if, a case involving Jews or anyone else would be dealt with through 'preventive police measures' or handed over to the courts, so that the police were operating in what has been well described as 'a sphere completely apart from the regular justice system.' They could dispense with procedures, more or less as they saw fit, especially if Jews were involved. The Gestapo could re-arrest men and women released after serving their court-ordered sentences. Just as in the final analysis, the Gestapo decided what was gossip and what was dissent or resistance, so too they could attribute a 'political' dimension to 'ordinary' crime. If an accused person was found not guilty in court, or if the verdicts did not meet police expectations, the Gestapo could administer a 'corrective,' and during the war simply inform the press that a 'violent criminal had been shot while resisting arrest.'