Burning the Reichstag (38 page)

Despite his pomposity and self-importance, Gisevius often displayed considerable integrity and self-restraint when it came to what he could prove and what he could not, even when he urgently needed to prove his case. He admitted that he was far from certain how van der Lubbe had gotten mixed up in the Reichstag fire. During his long legal battle against Gewehr, Gisevius once asked Helmut Krausnick for supporting testimony. Krausnick warned Gisevius that he considered the chapter on the Reichstag fire the weakest part of Gisevius's book. Gisevius replied, “Say that!”
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The Nuremberg trials had, therefore, directly and indirectly, generated strong evidence that Nazi stormtroopers had burned the Reichstag in an operation led by Ernst and Gewehr, probably with Göring and Goebbels behind the scenes in some way. This evidence came from two former Gestapo men who were in a position to know—Diels and Gisevius—and who hated each other so bitterly that any point of agreement between them had to be taken seriously. It drew support from Göring's statement
to Kempner, particularly with its reference to the SA men who had told Diels about burning the Reichstag, which in turn is consistent with Sommerfeldt's recollection of similar evidence from Ernst; and from Göring's reluctance to summon Gewehr to testify.

The Nuremberg trials came at an unusual historical moment for Germany and the world: it is rare for a regime's documents to fall into the hands of enemies with an interest in exposing the information those documents contain. Nuremberg represented the first opportunity for sustained research, not only in the Third Reich's records but also through interrogations of its surviving leading soldiers and administrators. At the beginning investigators knew very little of how the Third Reich had worked, and knowledge came only slowly: it is startling to learn, for instance, that the records of the Wannsee Conference, a key step on the road to the “Final Solution,” emerged only in 1947, after Göring and Joachim von Ribbentrop were sentenced and dead.

This gradual accretion of knowledge, driven by the needs of legal prosecution and defense, also shaped the story of the Reichstag fire. In the late 1940s this story began to change, and the notion that Marinus van der Lubbe had acted alone and the Nazis had had nothing to do with the Reichstag fire gained ground. Once again, Rudolf Diels was at the center of it. Why Diels began to change his story had everything to do with two major developments: the long process of “denazification” in Germany, and the beginnings of the Cold War. The Reichstag fire, which had marked the beginning of Nazi power, continued to burn long after the Nazis' fall.

THE
GESTAPISTS'
TALE

IN HIS CLASSIC AND CONTROVERSIAL
The Origins of the Second World War
, the late British historian A.J.P. Taylor decried what he called “Nuremberg history”—by which he meant accounts of Nazi Germany written uncritically from the briefs of Nuremberg prosecutors, based upon the evidence they had gathered, and with the prosecutorial zeal they had brought to their work. The resulting narratives, said Taylor, saw careful planning, premeditation, and high efficiency where really there had been only contingency, improvisation, and chaos. He was, of course, correct. However, there is an opposite and equally unreliable kind of historical writing. We might call it “Persil letter history.” It has loomed particularly large in the story of the Reichstag fire.
¹

Persil letters (
Persilscheine
) were a phenomenon of the late 1940s and early 1950s. Named for the most popular brand of laundry detergent in Germany (the name “Persil” came from the two main ingredients, perborate and silicate) they were character references that Germans collected for their “denazification” cases. A good Persil letter could launder a person's brown past and return it to spotless white.

The “denazification” of Germany had been one of the Allies' main goals, announced in proclamations from the major wartime conferences. At the Potsdam Conference of July–August 1945 the United States, Great Britain, and the USSR agreed that the main purposes governing their occupation of Germany would include destroying the National Socialist Party and its affiliated organizations, ensuring “that they are not revived in any form,” and preparing for the “eventual reconstruction of German political life on a democratic basis.” To this end, war criminals would be punished and all members of the Nazi Party “who have been more than nominal participants in its activities” would be “removed from public and semi-public office, and from positions of responsibility in important private undertakings.”
²

In practice, however, the Allies very quickly found that the goal of removing Nazis from the civil service, the police, courts, schools, and universities clashed head-on with the goal of rebuilding an orderly and peaceful German democracy. To scrutinize the past of every adult German required an unsustainable bureaucratic effort, and no modern society could get by without the officials and professionals who had run the Nazi state. As the Soviet Union began to replace Germany as the Western Allies' main security concern, enlisting Germans on the Western side became a higher priority than prosecuting them. By March 1946 the Americans had handed denazification over to the Germans themselves, while retaining oversight. The procedure the Americans then devised for denazification in their zone in Germany's south and southwest was copied, with minor adaptations, in the French and British zones in the west and northwest as well.
³

This procedure began with a questionnaire, mandatory for all Germans over the age of eighteen, soon infamous for its 131 questions about the subject's political past. From the questionnaire a prosecutor would decide who was “affected” by the law, and would bring the cases of affected persons before a tribunal of lay judges nominated by the German political parties. These tribunals placed people into one of five categories: Category I for “Main Culprits,” II for “Incriminated,” III for “Less Incriminated,” IV for “Followers,” and V for “Exonerated.” Category I was intended for such persons as senior officials of the RSHA and all branches of the police, officers of the SS, and all members of the Gestapo. Category II was supposed to be for anyone who had held office in the Nazi Party, anyone who had joined the Party before May 1, 1937, and all members of
the SS and Waffen SS. Category V, on the other hand, was for those who “in proportion to their strength” had resisted the regime and thereby suffered disadvantages. The tribunals could hand out penalties, ranging from ten years' hard labor for Category I down to fines for Category IV.
⁴

In practice the tribunals proved extraordinarily lenient. Figures for the British zone give the idea: in a total pool of over two million cases, 1.3 percent were placed in Category III, 10.9 percent in IV, and 58.4 percent in V. A further 25.1 percent were judged not affected by the law, which meant the people had not belonged to any Nazi organizations or been active in such groups as the police or SS. The rest of the cases were stayed for one reason or another (the British military government reserved to itself decisions in cases of I and II, but this amounted to a tiny number of people: only ninety, for instance, in the most populous of the new German states, North Rhine-Westphalia). The practice grew even more lenient as successive amnesties covered people born after 1919, or those who had earned only modest amounts of money in Nazi Germany. This leniency has led most historians to class denazification as a resounding failure, or, in the famous coinage of historian Lutz Niethammer, a
Mitläuferfabrik
—a factory that made “followers” out of “main culprits,” rehabilitating where it should have punished. But however distasteful the results may look from a moral standpoint, such criticisms are both unhistorical and unrealistic. The paradox of all new regimes is that they are forced to operate with the personnel of the old. This is so even for the most radical and ruthless of them: Lenin's Bolsheviks had to get along with a civil service in which more than half of the officials in central commissariats, and perhaps 90 percent of those in the upper levels of the state bureaucracy generally, had held positions under the czar or the Provisional Government.
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Persil letters, then, were one of the main tools by which such large numbers of seemingly incriminated Germans managed to get themselves placed in categories IV or V. One study found that in Bavaria on average every second adult wrote a Persil letter for someone else. The higher the social status of the figure under scrutiny, the more Persil letters he or she was usually able to marshal. We must therefore be skeptical of the information these letters contained. Lutz Niethammer mocked their typical contents: SA men provided mutual assurances that their storm had been nothing but an outdoor club; Gestapo officers vouched for the courtesy of their interrogations; and former Nazi Party members said they had only joined on their bosses' orders.
⁶

Rudolf Diels, who both solicited and wrote a large number of Persil letters, was also characteristically sardonic about their accuracy. He remembered how, in 1940, a former colleague with an anti-Nazi political past had come to him to ask for a reference. Diels gladly confirmed the man's “National Socialist outlook,” as he had in “a hundred other cases.” In 1947 the same man wrote again to ask if Diels would attest that the man had
never
been a serious Nazi and that he was therefore qualified to be “a loyal servant of the new democracy.” Once more Diels happily complied.
⁷

While the wave of Persil letters crashed over the denazification tribunals, many of the most prominent figures of the Third Reich wrote memoirs, in some cases while awaiting execution at Nuremberg and elsewhere. Foreign Minister Joachim von Ribbentrop, Auschwitz commandant Rudolf Höss, and lawyer (we have seen him representing SA men in the Kurfürstendamm trial and in Königsberg) and governor of Nazi-occupied Poland Hans Frank fell into this category. Books appeared from generals like Erich von Manstein and Heinz Guderian; from senior civil servants like Otto Meißner and Martin Sommerfeldt; from leading politicians like Hjalmar Schacht and Franz von Papen; and, of course, from former Gestapo officers like Diels and Gisevius. Thus a tremendous amount of source material on Nazi Germany was generated by men who knew they might soon be hanged, metaphorically or otherwise, and whose minds were therefore wonderfully concentrated.

The German popular historian Jörg Friedrich has argued that German legal proceedings over Nazi crimes have gone on longer than those in other successor states to authoritarian regimes—as of the writing of this book there are still cases pending. They have also been wider in scope, as much concerned with followers as with leaders, and have taken the forms of civil as well as criminal trials. As a result, litigation has largely shaped the memory of National Socialism, and generated or unearthed the evidence that defines the Third Reich—from Nuremberg to the trial of Adolf Eichmann in 1961 to the trial involving Holocaust denier David Irving, who sued historian Deborah Lipstadt and Penguin Books in 2000, to the trial of John Demjanjuk, who died in March 2012 while appealing his conviction for crimes against humanity as a guard at the Sobibor death camp.
⁸

Since Nuremberg, the Reichstag fire, too, has been at the center of many denazification proceedings, criminal and civil trials, generating new evidence, discussion, and revision. The idea that Marinus van der
Lubbe burned the Reichstag on his own—a thesis to which elements of the Nazi regime had resorted during the investigation and trial of 1933—began to be revived by a small group of former Gestapo officers in the late 1940s, above all by Diels and his former subordinates Heinrich Schnitzler, Walter Zirpins, Helmut Heisig, and Rudolf Braschwitz. Not coincidentally, from the 1940s to the early 1960s, these ex-Gestapo men were under almost constant threat of prosecution.

What interest, then, did these former
Gestapisten
have in pushing the single-culprit theory after the war? A case against Rudolf Braschwitz suggests an answer. In 1961 the prosecutor's office in Dortmund investigated Braschwitz for perjury and “the prosecution of an innocent” in the Reichstag fire case. “I have been advised,” Braschwitz acknowledged for the record, “that in the present proceeding it is to be investigated whether I incriminated myself in connection with my police work in the solving of the Reichstag arson.” He could be found guilty if the evidence showed his investigations had focused on van der Lubbe while ignoring evidence implicating others. Since it would hardly help him to reply that he had worked hard to bring to court unreliable evidence against Dimitrov and the other subsequently-acquitted defendants, the obvious defense for Braschwitz was to insist that no one but van der Lubbe had been guilty.
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The justice minister of the state of North Rhine-Westphalia pressed the case against Braschwitz hard, at times against the legal advice of his own prosecutors. The minister argued that Braschwitz should be found guilty of perjury even if his testimony would not have made the difference between van der Lubbe's being found innocent or guilty, but rather only resulted in a harsher sentence. The minister thought the Reich Supreme Court would not have sentenced van der Lubbe to death had he committed the crime along with others—especially if the “others” had been “a group controlled by the National Socialist rulers.” Braschwitz was also potentially liable for the prosecution of an innocent person. Although the chief prosecutor argued that van der Lubbe had in any event not been innocent, the minister responded that Braschwitz might have been guilty of prosecuting an “innocent” van der Lubbe even had the young Dutchman only been found “guilty to a much lesser degree than he was charged.” In light of van der Lubbe's execution, the minister argued, Braschwitz might even be guilty of homicide.
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