"Non-Germans" Under the Third Reich (42 page)

EXCURSUS

Police Law

Although the discriminatory rules issued by the general and internal administration were still confined to Jews, Gypsies, and Poles (relatively clearly defined groups), the police (who until 1936 operated as Department 3 within the Reich Ministry of the Interior) extended the principle of special law without any limits whatsoever. This was primarily related to the general development of the police in the Nazi state.

In the same way, just as the new notion of police—without “restrictive” norms—went far beyond the traditional notion of security and regular police,
¹
the powers of the police were in principle unlimited and covered everything that was defined at that time as relating to internal security, especially the domains in which discriminatory practices were the rule. The omnipotence of the police on the internal front was such that the legal doctrine of police law postulated that the traditional relationship of the police to the law should be replaced by a limitation only to “suprapositive” law, which was defined by the political power itself acting independently of the norms.
²

This postulate merely referred to a situation in which the police no longer needed a written law; written law had become subordinate to a policy of secret instructions.
³
At the same time, as we have seen, the legal protection of the individual citizen by the administrative judiciary was either severely curtailed or completely abolished.
⁴

This transformation of police law and the firm establishment of sweeping powers of the police over internal policy was effected mainly in the regulation of the organization and responsibilities
⁵
of the police (about which I will not go into further detail here), especially through the integration of the police into the SS in 1936.
⁶
In substantive law, however, only a few changes were made, according to the mixture of revolutionary ideas and conservative retention of the traditional forms of the law peculiar to the National Socialist system. Thus, the traditional law system remained in effect but was
interpreted in the spirit of National Socialist ideology.
The results were identical for traditionals and for radicals—the omnipotence of the police, the flouting of legal restrictions on the police. Only the arguments for this omnipotence were different.

The majority of traditional police-law jurists defined the unlimited powers of the police as belonging to the (traditional) fields of police activities—security, order, and danger—but other radical jurists postulated a new general clause, “free of normative restrictions,” for police actions. (The latter argument was an abandonment of the century-old principle that interference by the state authorities in individual rights had to be based upon a law in the formal sense with clearly defined terms.) The difference between these two views lay less in the substance than in the formal way of arguing. With regard to practice, both sides based their arguments on the principle of unlimited powers of the police.
⁷

The most important implementation of the omnipotence of the police was the introduction of so-called
protective or preventive custody
in 1936,
⁸
which is dealt with in more detail in part 2 of this volume. This police custody, implemented in the concentration camps, was accepted by the courts as legal,
⁹
though it did not have a general basis in written law in the Reich. (The corresponding Law on the Gestapo of February 10, 1936, referred only to Prussia but was implemented analogously throughout the Reich and was not contestable before the courts.)
¹⁰
In formal terms, the decree of the Reich minister of the interior of November 11, 1938,
¹¹
is indicative of the boundless powers of the police, because it transferred the right to issue police decrees to
all the supreme Reich authorities
without any limitations on their type or content.

The terms for the new institutions and authorizations of the police, like those for police powers in general, were defined (according to the tried and tested method) not by normative regulations but only by internal administrative regulations with broad powers of discretion for the police. Thus, the police were entirely free to decide whether they should intervene from case to case.
¹²
This endless game of vague definitions and circumscriptions was the chosen means and the general method of every discriminatory action, especially in the police sector, thus reducing to a minimum or completely eliminating individual rights.
¹³
The method was used above all in the treatment of “non-Germans.”

1. Anti-Jewish Measures within the Purview of Traditional Police Law

The first attempts to replace the established terms of the law by vague definitions were made in the field of traditional police law. This concerned above all professional and commercial law, where the powers of the police were already rather wide. At the beginning of the National Socialist state, the juridical opinion followed the actual legislation, according to which the anti-Jewish legislation was valid only for the public service and did not concern trade and industry. Following the issue of the Nuremberg Laws (September 1935), two arguments were upheld: as the Reich minister of the economy pointed out in a circular,
¹⁴
racial descent alone did not justify a limitation on professional activities in trade and industry, limitations being restricted to the (actual) laws in effect.
¹⁵
Similarly, at the beginning the courts refused an analogous implementation of the Nuremberg Laws.
¹⁶
So the attempts by the police to act against Jews and Gypsies by means of commercial law on the sole ground of their racial descent were declared illegal: the Prussian Administrative Supreme Court in Berlin consistently ruled—against the strongest opposition
¹⁷
—that the fact of being Jewish did not in itself fulfill the conditions for unreliability in the sense of commercial law; the court argued on the ground (remarkable at that time) that the repeal and modification of laws was not within the responsibility of the judge.
¹⁸
Other courts, however, yielded as early as 1936, and increasingly from 1938 on, to the discriminatory practices of the police against Jewish traders. Their descent was used directly or indirectly by the police as a justification for professional interdictions.

For example, the District Administrative Court of Cologne ruled that “on the ground of century-old observations … and further from the National Socialist and the people’s concept of legal and honest trade … it basically had to be said that Jewish tradesmen … are known to be generally unreliable and ought therefore to be got rid of … this on the basis of … the general sentiment of the people, respect for which is the most fundamental and absolute duty of all the public authorities.”
¹⁹
The Württemberg Superior Administrative Court confirmed the police order forbidding a Jewish lay medical practitioner to take up his activity;
²⁰
similarly, the Bavarian Superior Administrative Court confirmed this line of thinking in the case of a Jewish estate agent by construing two types of “commercial reliability” (which was the condition in the code of trade and industry that was required in order to undertake activities), a professional and a moral one, the latter to be judged by German standards of honor. On the basis of vague suppositions of an alleged morbid predisposition and the former conduct of the plaintiff, going back to the remote past, the court denied his moral reliability “because his racial foreignness [prevented] him from being able to adopt the German notion of honor.”
²¹
Racial restrictions (a ban on the employment of German-blooded staff by non-Aryan innkeepers) could now also be imposed by subsequent injunctions; the relevant ministerial instructions of the “highest Reich authorities” were accepted without qualification in these cases, since, as was argued by the Bavarian Superior Administrative Court, though they were not normative, they were obligatory for everybody according to the principles of the Führer state.
²²
There was now, and had been since 1938, a reversal of the burden of proof procedures: not the state authorities but the Jews themselves had to prove that in spite of being Jews they were reliable (“honorable”) under the terms of the trade and industrial law (Bavarian Superior Administrative Court).
²³
The ban on “relations” between Germans and Jews became the excuse for closing Jewish businesses because of the “danger to public security and order,” and it was not the feared “excesses of the people” but the conduct of the Jewish businessman that was regarded,
contra legem
, as a danger to public security and order (Saxony Superior Administrative Court).
²⁴

For people who entered into business relationships with Jews, the treatment was somewhat less severe but nevertheless tougher than usual. The court challenge of a man whose itinerant trading license was withdrawn on account of alleged dealings with Jews was successful only because of lack of evidence (Supreme Administrative Court, Oldenburg).
²⁵
An innkeeper succeeded in reversing the decision to revoke his license to sell alcoholic beverages because he had purchased goods from Jewish firms, on the ground that this fact justified unreliability under the terms of section 2 of the Law on Public Houses only when there was an abuse of confidence under the particular circumstances of the case (Bavarian Administrative Court of Appeal).
²⁶

2. Imposition of the Police Statutes on “Non-German” Workers in the Reich Territory

The major thrust of the discriminatory activities of the police was not, however, directed against Jews of German nationality, since here the leeway for transgressions was very small. Intervention on such a limited scale could not be sufficient for a National Socialist police leadership striving for internal hegemony unbound by any regulations. Unbridled activity under special law was possible only in dealing with foreign and stateless subjects. Such people, classified as aliens, were automatically considered to be beyond the pale of the community of rights, so that the general administration disclaimed responsibility for them. This domain fell rather to the police, especially insofar as “security risks” due to aliens were concerned.

The primary target of the special laws enacted by the police was the millions of “non-German” workers who had come to the country since 1940, either voluntarily or under coercion. In principle, the Foreign Police Decree of August 22, 1938,
²⁷
and the Decree on the Treatment of Foreigners of September 5, 1939,
²⁸
which contained relatively firm definitions of offenses, were applicable to these cases; and though they did not open the way for judicial review by the courts, they allowed for appeals with the administration agencies against the decisions of the foreign police. Application of these regulations was, however, by no means in the interest of the police leadership, which was far more intent upon removing foreign workers completely from the purview of the law and subjecting them exclusively to the decrees of the Security Police, thereby cutting out or at least reducing or impeding the action of other authorities or branches of the administration. Accordingly, foreign civilian workers were removed from the ambit of the Foreign Police Decree,
²⁹
first tacitly and later by directives of a merely declaratory nature, and thus from the law in toto, since from then on there were no articles of general law whatsoever that applied to them.

The new basis for the implementation of total police intervention was initially the circular instruction by the heads of the Security Police (SIPO) and the SD proclaimed on September 3, 1939,
³⁰
on “principles of internal state security in wartime,” following directives by Hitler, and subsequent police instructions, which were not sufficient for this purpose, however, since they provided “only” for the preventive detention of actual or potential opponents of the regime or other undesirables.
³¹
Steps were quickly taken to establish a blanket authorization that could provide the boundless scope of discretion sought after. At the time of the institution of forced labor in the Reich, Himmler received from Göring in his capacity of plenipotentiary for the Four Year Plan on March 8, 1940, a secret authorization (to be discussed in more detail in part 2, below) to regulate the “conduct” of Polish workers in the Reich territory with a view to their “subjection.”
³²
This document, which was not made known to the administrative authorities, was to serve as the basis for all special directives on the treatment of “non-German” workers. A testimony to the thoroughness of the coordination and preparation of these special arrangements within the political leadership is the fact that on the very same day the authorization was handed over, a whole sheaf of directives concerning the conduct of (Polish) foreign workers was issued by the office of the
Reichsführer
-SS and chief of the German police,
³³
plus a police decree by the Ministry of the Interior concerning the imposition of a distinguishing mark for Polish workers in the Reich.
³⁴
These decrees constituted a uniform policy toward Polish workers in both the territory of the Reich and the Eastern Territories and General Government.