Burning the Reichstag (44 page)

This was a note of something new. Fritz Tobias had served on a denazification tribunal in Hannover in the late 1940s; upon entering the Lower Saxon Interior Ministry he became a patron of such former Nazi police officers as Wehner and Zirpins—although, he said, Diels “kept out of my way.” In the mid-1950s he entered the story of the Reichstag fire, and would dominate it for nearly six decades.

FRITZ TOBIAS AND HIS “CLIENTS”

THERE WAS SOMETHING VERY AMERICAN
about Fritz Tobias. He was selfmade and self-reliant, regarding authority with suspicion and treating received wisdom with disdain. In the United States men like Tobias tinker with inventions in the garage, or fill web pages with arcana about the Kennedy assassination (actually a major preoccupation for him as well) or UFOs or climate change (in which Tobias did not believe). As a German of the wartime generation he became obsessed with the Reichstag fire. And he came to haunt it, no less than Diels, Goring, Gisevius, or the cipher at its core, Marinus van der Lubbe. For more than a half-century Tobias's account of the fire has been the dominant narrative.
¹

Fritz Tobias was born in Berlin in 1912. His father, Martin, was a porcelain painter. Tobias's mother died in early 1919 and Martin came back from the First World War suffering the effects of wounds. The older brothers left the house as soon as they could, leaving Fritz as the target of his father's ambitions. On Sundays Martin Tobias would drag him along to Berlin museums and art galleries, awakening Fritz's interest in science, art, and history. He became “an insatiable bookworm” who did well enough in school to be admitted to a
Gymnasium
, an academic high school
for the university-bound, through a special program for the gifted offspring of poorer families. In 1926, however, Martin Tobias moved to Hannover to take a job helping to found a new union. There Fritz was put into a vocational high school (
Oberrealschule
) rather than a
Gymnasium
, and was glad to leave school at his first opportunity for an apprenticeship in a Social Democratic bookstore.
²

That was where he was working on April 1, 1933, when an SS squad seized the bookstore. The SS men fired through the windows and lined the staff up against the wall. “We didn't know what was going to happen,” said Tobias later with some considerable understatement. The Nazis closed down the bookstore and Tobias was out of a job. He went to a business college and learned typing and shorthand, skills that, as it turned out, would serve him well in myriad ways. He worked in a lawyer's office in Hannover until the outbreak of the Second World War (the lawyer, he said, was a very decent man, proving in reverse the adage that a good lawyer must necessarily be a bad person).

At the start of the war Tobias was drafted into the army. Here, too, he did clerical jobs, in the Netherlands, Russia, and finally Italy, where he ended up as a prisoner of the Americans after being seriously wounded. He was treated in an American hospital and given blood transfusions. “Maybe I have black blood now,” he said in a 2009 interview. In the army he was promoted rapidly, although he never asked for any such thing. “If all German soldiers had been as efficient as I was,” he said in the same interview, “we would have won the war.”

After the war he ran into Otto Brenner, one of the most important of German labor leaders, for many years the chairman of the huge union IG Metall. Brenner had been a customer in Tobias's bookstore before 1933 and remembered him with respect. Brenner brought Tobias into the Head Denazification Committee for Hannover, where he eventually became the deputy chair. This job would have involved Tobias in the denazification of important people in Hannover, including Diels, or at least allowed him to get information about their cases—which would turn out to be very important in Tobias's later role as a historical researcher.

Again, Tobias's superiors kept promoting him. He rose to be a division leader (
Abteilungsleiter
) in the Lower Saxon Ministry for Denazification. His supervisor asked him if he wanted to rise to the next rank and become a government counselor (
Regierungsrat
), which might be called the lowest rank of the senior positions in a German ministry. Tobias says
he was not enthusiastic about this prospect, and looked into the question of what kind of pension a government counselor got. When he learned the answer he signed on, and eventually he rose to the very senior position of ministerial counselor (
Ministerialrat
) in the Office for Constitutional Protection.
³

His was, by any measure, a post-war German success story. Even by the early 1950s Tobias had become an influential figure in Hannover. One of the old Nazis whose denazification case Tobias handled was Bernhard Wehner, the man who wrote about police issues for the
Spiegel
. “Who would have thought,” Wehner wrote to Tobias in early 1951, “that I would exchange such lines with the ‘Feared One' from Hannover's Ministry of the Interior.”
⁴

Wehner and Walter Zirpins, the two most important post-war promoters of a sanitized version of the history of the German criminal police, also became Tobias's protégés in the early 1950s, in Wehner's case even as Tobias worked on his denazification. Tobias seemed to have had a special soft spot for former Nazi policemen, and played a critical role in helping them return to their careers after the lean years of detention and denazification. In return, it seems, he adopted their view of recent history.
⁵

After the war Bernhard Wehner was investigated, though never prosecuted, for war crimes. He had joined both the Nazi Party and the SA in 1931 and the SS in 1940. In a letter to Tobias of July 21, 1951, Wehner remembered how seven years earlier he had stood in front of the “genius of the thousand-year Reich”—Hitler—to report on Count Claus von Stauffenberg's assassination attempt the day before. Wehner wondered what would have happened to him after the war if he had had to identify a still-living Stauffenberg as the would-be assassin. “Perhaps it is not always a misfortune to come too late.”

All of this information on Wehner comes from Tobias's own file, and none of it suggests that Wehner was anything other than a convinced Nazi who would gladly have sent Stauffenberg to the gallows. Indeed, in one installment of his
Spiegel
series on the criminal police, Wehner relayed how Hitler had asked him if it were not a miracle that he had survived Stauffenberg's attack. Wehner obliged: “Yes, my Führer, it is a miracle.” Yet, seven years later, Tobias tried to arrange a police job for Wehner in Lower Saxony, and when that did not work out, used connections to win him an appointment as chief of the criminal police in Dortmund (where Wehner became, among other things, the boss of Reichstag fire detective
Rudolf Braschwitz). Wehner recalled the “decency and humanity” Tobias had shown him. “My family and I owe our livelihood mostly to you.”
⁶

In 1950 the
Spiegel
commissioned Wehner to investigate allegations of corruption in the police department of the Lower Saxon Interior Ministry. Wehner's research, although never actually published in the
Spiegel
, provided evidence for the prosecution and dismissal of the head of the criminal police department, whose replacement was none other than Walter Zirpins. Tobias seems to have lurked in the background of all of this, pulling strings. Wehner kept him fully informed about the investigation, and there were rumors later that Tobias's intrigues got Zirpins his job. When Zirpins scored his triumph in the Halacz investigation, Wehner wrote Tobias “Dear God how I envied Zirpins … Without the ‘45 collapse that would have been
ipso facto
my job.”
⁷

Why exactly Tobias, who was nominally a Social Democrat, developed such a protective fondness for Nazi police officers remains unclear. That it proved crucial for the Reichstag fire controversy, however, is certain. Still, Tobias might not have emerged as the central player in the Reichstag fire controversy had it not been for a chain of events beginning with efforts to re-open the Reichstag fire trial in 1955.

IN 1954, A LAWYER NAMED ARTHUR BRANDT
decided to return to Berlin. Brandt had begun practicing law there in 1921 and was involved in some of the most famous trials of Weimar Berlin, including the so-called Cheka trial of a number of Communist agents in which Paul Vogt, later the examining magistrate in the Reichstag fire trial, did the judicial investigations. Like most left-leaning and Jewish lawyers, Brandt was in mortal danger when the Nazis came to power. He fled to Switzerland the day after the Reichstag fire, found his way to America, became an American citizen, and qualified for the bars of New York and Massachusetts (after an interval producing figure-skating performances and getting his daughters to appear in films with skating legend and movie star Sonja Henie).
⁸

Brandt returned to Berlin with the intention of specializing in restitution cases for victims of Nazism. One of his first cases came from Johannes Marcus van der Lubbe, Marinus's older brother, who asked Brandt to take up Marinus's rehabilitation. In 1951 the government of West Berlin had passed a law, known as the WGG, for “Restitution for National Socialist injustice.” The WGG allowed victims (or their survivors) to apply to overturn judicial verdicts that had been based on laws
serving the “strengthening of National Socialism” or “National Socialist ideas,” or on “racial, religious, or political grounds.” The point was that only the actions of the Nazi
court
mattered, not those of the prisoner. Even a guilty prisoner was entitled to restitution and rehabilitation if the verdict had been a “Nazi” one in the ways the law specified.
⁹

Marinus van der Lubbe, executed in a highly political trial on the basis of a Nazi law passed retroactively against him, should have fitted these terms perfectly. The law did not require evidence of his innocence, in other words evidence that someone else had burned the Reichstag. As Brandt argued in one of his briefs to the court, there could hardly be any doubt that the judgment condemning van der Lubbe to death had “served the strengthening of National Socialism” and that it was reached on “political grounds.”
¹⁰

But West Berlin courts of the 1950s sometimes interpreted the law in surprising ways, demonstrating just how hard it was for victims of Nazism to get their claims recognized in postwar Germany. The Berlin Court of Appeals ruled in 1956, for example, that the heavy tax imposed on Jews who left Germany after 1933 was not one of those laws which “strengthened National Socialism,” nor was it a product of Nazi ideology. Similarly, the “pulpit paragraph,” under which the regime could punish dissident clergymen, did not amount to Nazi injustice because such provisions had existed in German law before the Nazis. The same point applied to Nazi persecution of gay men.
¹¹

When Brandt submitted his petition to overturn the Reich Supreme Court verdict at the end of September 1955, the press took immediate notice. Brandt's petition set off a chain of actions and reactions that amounted to a rebirth of controversy over the Reichstag fire. Most of the important subsequent events in the controversy were direct or indirect products of Brandt's case.
¹²

First came Cold War paranoia. Two days after Brandt had submitted his petition, the West German embassy in the Hague cabled the Foreign Office in Bonn to inform officials that from a newspaper interview with J.M. van der Lubbe it seemed that the initiative for the retrial application came from an “unnamed mysterious go-between, who will also take on costs.” This mysterious go-between had apparently contacted J.M. van der Lubbe six weeks earlier. However, the embassy thought that Brandt's preparations for the trial had already been going on for a year, and reported that J.M. van der Lubbe had emphatically denied that Communists were
behind the retrial application—exactly what the embassy meant to imply by “unnamed mysterious go-between.”
¹³

Although Brandt only needed to show that the Reich Supreme Court had condemned van der Lubbe for purely political reasons or on the basis of Nazi laws, as lawyers often do he “argued in the alternative”: the Nazis had also executed van der Lubbe, Brandt claimed, for a crime he had not actually committed. With this argument Brandt began to be drawn into the search for answers to the Reichstag fire mystery.
¹⁴

Brandt claimed he was approached by a young man who declared himself a former stormtrooper. This man told him that van der Lubbe had been nothing but a stooge of the SA; the witness himself had brought van der Lubbe into the already-burning Reichstag through a side-entrance. Although Brandt recorded the man's evidence in a notarized statement, he felt he could not use it for the litigation, as the former SA man was convinced that he would be killed were Brandt to make his name public. Nonetheless Brandt used the man's information in his arguments to the court, without naming the source.
¹⁵

“I heard it from an SA man” had been the classic trope of unreliable Reichstag fire stories from the
Brown Book
on. Such a man probably approached Brandt and probably made a statement along the lines that Brandt claimed. Brandt's reputation for integrity was such (he was “a man of honor,” as Berlin lawyer and historian of the bar Gerhard Jungfer put it to me) that he deserves the benefit of the doubt. Furthermore, in the 1990s Brandt's daughter Helga still remembered being with her father when he met the putative SA man. Gisevius claimed to have heard a tape recording of the man's statement.
¹⁶

But of course this does not mean the statement was true. Because of Brandt's discretion we do not know who the SA man was. He could have been lying for any number of reasons. There is no trace of the notarized statement today, and the Local Court (
Amtsgericht
) in Bremerhaven, where the statement was apparently taken and where it would then have to be archived, informed me that it could not be located without knowing its number. There are also factual reasons to be skeptical. Van der Lubbe could not have been smuggled into the Reichstag when the building was already visibly burning; by that time Scranowitz and Poeschel had already arrested him.
¹⁷