Burning the Reichstag (49 page)

The first leader of the Federal Office for Constitutional Protection was Otto John, whom Diels had known since before the Nazis. For a few years Diels cultivated John, or perhaps vice versa. According to an American report, John visited Diels every four weeks to get his advice. In 1953, when British authorities arrested a number of Nazi activists from the so-called Naumann Circle, Diels sent John a typically cynical letter, eloquently revealing his attitude both to the new West German state and to his own past: “You must now be rather burdened with work,” he wrote, as “bannings, house-searches, indictments, and arrests” were going on “
urbi et orbi
like in the good old days.”
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Schnitzler knew what Diels was up to and wanted to join in. As early as March 1948 he was already wondering how he might use his knowledge of Communists from his days in the political police to find employment in one of the new agencies. “Can't I capitalize on this material?” he asked. Schnitzler knew that some kind of intelligence organization was being formed “in a legendary castle near Frankfurt.” He wanted Diels's help. “Can't one discuss these things with the relevant gentlemen? You certainly have first-class connections in this regard.”
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It seems that until Otto John got the Constitutional Protection job in late 1950, Diels had been angling to head the agency. Thomas Polgar, at the time a young CIA officer in Germany closely involved in the oversight of the Constitutional Protection, says that Diels was never considered for the job. Indeed he was “lucky not to be prosecuted.” But at the time many high-profile former Nazis were landing senior positions in the West German government, and in fact Hubert Schrübbers, who led the Constitutional Protection from 1955 to 1972, was eventually forced to resign over revelations of his Nazi past. Diels could, and clearly did, entertain hopes. A 1949 CIC report claimed that “Diels is anxious to head the new
Geheimpolizei
[secret police] of the Bundesrepublik [Federal Republic].” Diels, continued the report, was a friend of Chancellor Adenauer, whom Diels had helped in the Nazi years. The CIC thought that Diels was a strong contender for the job “since he is politically clever.” A September 1950 report had it that Diels had been in touch with a senior official who wanted Diels to meet with Adenauer and President Theodor Heuss to talk about heading the Constitutional Protection. Diels's friend Alfred Martin told the CIC that Diels had been “secretly proposed as chief of the security police.”
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The 1949 CIC report also claimed that Diels saw Gisevius as his rival for the job. On the face of it, Gisevius might have been a more plausible candidate. He had good connections with important figures in American intelligence, such as Allen Dulles and William “Wild Bill” Donovan. “Gisevius has applied for the job as head of the Secret Police of the Bonn Government and is held in some favor by the Americans and British,” the report continued. Gisevius's problems lay more with the Germans. Thomas Polgar remembers that Gisevius was “absolutely hated” by German traditionalists, for having been a “traitor” during the war and a key witness in several postwar trials of senior Nazi officials. Yet like Diels, Gisevius was also “tainted by earlier associations with Nazi security services.”
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In July 1954 Constitutional Protection chief Otto John appeared to defect to East Berlin. Whether in fact the Soviets kidnapped him, as he claimed after returning to West Germany in late 1955, remains unclear. Diels's reaction to John's disappearance was fierce and public. “Persons who commit treason will always be unreliable,” he told an American intelligence agent, playing on John's involvement in the Valkyrie resistance. Diels jeopardized his pension by writing a scathing pamphlet,
The John Case: Background and Lessons
, in which his far-right political sympathies re-emerged, after a period in which his legal problems had forced him at least to try to sound democratic in public. Diels vented his contempt for the Allies, the Nuremberg proceedings, even the most conspicuous victims of the Nazis: the Communists, who “were compensated with outrageous sums of money” because “Hitler got in the way of their civil war plans,” and (presumably referring to Holocaust survivors and refugees) the “whole armies of black gypsies, who were showered with hecatombs of money.”
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For this pamphlet Diels was subjected to harsh criticism in the Bundestag, and since he was technically still a civil servant, a disciplinary hearing from the government of Lower Saxony, which (as always) he managed to scrape through without serious penalty. He returned to another kind of old habit: “As a consequence of that publicity,” said a 1954 CIC report, “Diels stored all his files and personal papers at an undisclosed hiding place.”
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It was in this milieu of past and present intelligence officers, with their mix of Cold War concerns and resentments from the recent past, that Tobias was operating as an official of Lower Saxony's Office for Constitutional Protection. There are hints that Tobias's work on the Reichstag fire might have been at least in part the product of an official commission. These hints are supported by Tobias's having lied under oath about some of his intelligence background, and having kept quiet for many years about another element of it.

Gisevius and his lawyers suspected that the vitriol in Tobias's writing might stem from an official, if covert, assignment to attack advocates of Nazi responsibility for the fire like Gisevius himself. Tobias gave some revealing nonanswers to their questions. “I have never taken advantage of my official position as a member of the Office for Constitutional Protection to acquire material in an illegal manner,” he testified in 1961. But when asked if he had acquired documents
legally
through the Constitutional
Protection, Tobias declined to answer, citing the preservation of official secrets. Had he gathered information on Gisevius himself through the office? Again, he denied having done so illegally. When asked whether he had gathered information about Gisevius in the course of an official investigation, he replied again, “I decline to answer with reference to my duty to maintain official secrets.” He did, however, admit that in working on the Reichstag fire he had gathered whatever material he could about those who had written about it. There is in fact no doubt that he used his position to collect documents relevant to the Reichstag fire that were only available to government officials. A look through the publicly accessible van der Lubbe files at the Berlin Landesarchiv, the archives of the city of Berlin, to say nothing of Tobias's own document collection, quickly confirms this practice. He either had official authorization to do this or he made illegal use of his position with the Lower Saxon Constitutional Protection. There isn't a third possibility.
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There is also no doubt that Gisevius was a target of the German security services. In the early 1950s he lived in the United States, and therefore fell into the jurisdiction of the Federal Bureau of Investigation. In 1953 the Bureau became concerned that Gisevius might be a “subversive” when an informant (who had to be German and might have come from one of the German constitutional protection offices) warned that Gisevius was connected to Otto John. Remarkably, even in 1953, before John's disappearance, the Bureau was worried that “any information obtained by the subject [Gisevius] will find its way to Dr. Otto John,” and, through him, to the Soviet Union. The Bureau's sources also reported that Gisevius had connections to the writer and editor Eugen Kogon, the pastor Martin Niemöller, and other advocates of West German military neutrality in the Cold War. This was a policy that ran directly counter to the goals of the Adenauer administration as well as to those of the Truman and Eisenhower administrations; West German military strength was essential if NATO countries were to mount any credible deterrent against a possible Soviet attack.

It is unlikely that the FBI could have harbored these fears or obtained this information without the aid of German intelligence services. Every mention of the specific source of the information that Gisevius would pass information to Otto John is blacked out in the publicly available copies, but, along with the “several sources” who in 1950 doubted whether “Gisevius would be found acceptable [as head of the Constitutional Protection]
even by the Allies at the present time [and that] Adenauer's reaction to a possible nomination of Gisevius was ‘Only over my dead body,'” he was probably a German official. Chancellor Adenauer himself called Martin Niemöller an “enemy of the state” whose opposition to German rearmament amounted to “treason”; Adenauer's Interior Minister Gustav Heinemann left the cabinet because of his dispute with Adenauer on this issue, and because of his close ties to Niemöller; and Gisevius was if anything closer to Heinemann than to Niemöller. One FBI report had it that Gisevius's reputation among pro-American, pro-Adenauer Germans was “very bad.” Even after Otto John won the Constitutional Protection position, there were reports in the German press, monitored by American intelligence, that Gisevius was in line for a similar job in Bonn. The FBI report continued that if he got it, it would “create adverse feeling against the United States.”
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Tobias betrayed the same kind of hatred for Gisevius that Diels and Schnitzler had felt, and expressed it even more intemperately. In a lecture in Göttingen early in 1961 he spoke of a legendary Central American king who was merciful in all respects save one: he executed historians who wrote untruthfully. Tobias said he regretted that the Federal Republic had no such law. Asked about this lecture later while testifying, Tobias said bluntly that had Gisevius lived in Central America, he “would have been in danger of being punished.” He approvingly repeated criticisms of Gisevius from people with obvious biases, like Diels, and even Manfred Roeder, a vicious Nazi military judge who had investigated resistance figures like the theologian Dietrich Bonhoeffer and the Canaris-Oster circle of which Gisevius himself was a part. Tobias wrote to Helmut Krausnick that one had to hear Roeder himself speak in order to understand Gisevius's “evil role.” Even for Tobias this is an extreme example of preferring the word of a serious Nazi to that of a resistance fighter. Tobias misrepresented and misstated facts regarding Gisevius's involvement with the Reichstag fire investigation and trial, his testimony at Nuremberg, and the notion that he had remained a Gestapo agent until the end of the war.
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Tobias claimed, under oath, that he had only been working for the Lower Saxon Constitutional Protection since July 1959. Newly available documents, however, reveal that Tobias was working there at least by the summer of 1954. Although it may be true, as Rudolf Augstein and others wrote, that a change of administration led to Tobias's being transferred to
another department in the mid-1950s, a 1958 memo drafted by an official of the West German Justice Ministry records that Tobias “must at some point have been occupied with work for the Constitutional Protection in Lower Saxony …
In this period he claims he intended to seek out the truth regarding the circumstances of the Reichstag fire trial
(emphasis added).” Although Tobias claimed several times that he had completed his research on the Reichstag fire by 1957, his correspondence with Zirpins and others shows that he went on working right up to the publication of his book in 1962, and indeed beyond—he never stopped interviewing people and gathering documents on the subject.
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Tobias had therefore not only researched the Reichstag fire while working for the Constitutional Protection, he later covered this fact up. As so often in this story, the cover-up is significant. There is another intriguing fact about Tobias's intelligence connections. In an interview in the autumn of 1996, he told a former
Spiegel
reporter, Peter-Ferdinand Koch, that he had worked for the British SIS after the war. His job was to be a “scout,” which involved interrogating former Gestapo officers to identify those who might be useful for British intelligence. He would have had ready access to such people from his work for the Hannover denazification committee. Tobias also told Koch that he had referred both Diels and Paul Karl Schmidt to the
Spiegel
as potential authors. This might be what Tobias meant when he told Augstein in 1958, “I expressed my sympathy and trust to you ten years ago.” Tobias's work for the British may also be reflected in the 1958 federal Justice Ministry memo noted above, which recorded that Tobias had worked for the Constitutional Protection and that “he
also
spoke occasionally of intelligence work” [emphasis added]. Were the story about his working with the SIS true, it would be another indication of how deeply Tobias involved himself in the post-war careers of these ex-Nazis, and of how much he tried to cover up those ties later on.
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Lower Saxony was perhaps the German state in which senior officials made the greatest efforts to shelter former Nazi police officers from investigation by the Ludwigsburg Central Office. In one case, a former Gestapo officer from Tilsit who was being investigated for murder (and after the war worked for North Rhine-Westphalia's Constitutional Protection) was shielded from arrest by Lower Saxon colleagues. In 1961 a remarkable member of the Ludwigsburg Central Office, the prosecutor Barbara Just-Dahlmann, made a sensational speech alleging that just this sort of police
interference was seriously hampering the prosecution of war criminals. The Central Office could not just send its investigation documents to any police authority in West Germany, she said, because it couldn't be sure that the documents wouldn't fall into the hands of an officer under investigation. One of the strongest reactions to her speech came from the interior minister of Lower Saxony, Otto Bennemann, who insisted that the police in Lower Saxony had made extraordinary efforts to keep their ranks clear of Nazi criminals and that many of his officers had been persecuted in the Third Reich. Historian Annette Weinke argues that this was willful blindness on Bennemann's part, and she suggests that Bennemann criticized Just-Dahlmann strongly in order to cause trouble for her. Bennemann was Fritz Tobias's boss, and his aggressive willingness to defend his own people raises an important issue. Weinke suggests that one of the motives for Bennemann's words was to defend Walter Zirpins, whose Lodz case was by then prominent in the news. What else might Bennemann or other authorities have been willing to do to defend their officers? We have seen that Tobias was probably referring to officers like Zirpins when he mentioned his “clients,” and his book can be read as a vindication of them—even if at times Tobias seemed to be vindicating Zirpins against the latter's own will. The prime minister of Lower Saxony in these critical years, from 1946 to 1955 and from 1959 to 1961, was the Social Democrat Hinrich Wilhelm Kopf. During the Nazi period Kopf was deeply involved in, and profited mightily from, the “aryanization” of Jewish homes and business in Germany and Poland; in 1948 he had been forced to defend himself against accusations about his wartime conduct which the Polish government passed to the British.
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