"Non-Germans" Under the Third Reich (51 page)

In concrete terms, the issue was whether the Prussian Law of Police Administration of 1931, in any case in force as state law in the territories incorporated into the provinces of East Prussia and Silesia (the administrative districts of Zichenau and Kattowitz [Katowice]), should also be adopted in Danzing–West Prussia and the Warthegau. Both the Reich administration and the administrative authorities of the
Gaue
in question forcefully urged the adoption of the Prussian Law of Police Administration for reasons of law and order.
¹⁵
However, the Reich Ministry of the Interior was typically unwilling to assert itself against the new
Partikulargewalten
of the
Reichsstatthalter
(although it could have adopted the Prussian Law of Police Administration by simple decree on the basis of the Führer decree of October 8, 1939, cited above),
¹⁶
since the
Reichsstatthalter
rejected any commitment to Reich law, above all as regards its application to “non-Germans.”

The issue was not so much the formal provisions of the Prussian Law of Police Administration regarding the authority to issue police regulations and police orders, which, as mentioned before, had a similar effect. Rather, it was whether the
substantive
provisions and principles of the Prussian Law of Police Administration (the principles of legitimacy of the administration, of the commensurability and necessity of instruments, of police coercion, of legal remedies against police orders, etc.), that is, whether the normative liability of police powers should also apply for the “non-German” population. The greatest resistance to such a direct adoption of the Prussian Law of Police Administration came from the Posen
Reichsstatthalter,
who saw his legislative authority to issue decrees (but only with the consent of the Reich ministers involved and the minister of the interior) affected and jealously insisted on his autonomy. For this reason, Greiser viewed rule by decree as adequate. However, after the Reich authorities had raised doubts about this procedure, he ultimately declared his willingness to accept the adoption of the Prussian Law of Police Administration through a decree, to be issued not by the Reich Ministry of the Interior but by himself.
¹⁷
But the corresponding draft decree contained only the jurisdictional provisions of the Prussian Law of Police Administration and left all substantive police law to be regulated through administrative channels by the
Reichsstatthalter.
¹⁸

None of the agencies involved was satisfied with the Posen draft. The Reich Ministry of the Interior opposed it because Greiser had no intention of complying with its request for the adoption of the police law issued for the Sudetengau (or Sudetenland) after consultation with the
Reichsstatthalter
for Danzig–West Prussia,
¹⁹
where no great importance was attached to this issue and police regulations were issued “as required as sovereign administrative decisions,”
²⁰
ignoring formal legal principles. And of course the Reich Security Main Office (RSHA), which had received the draft six months earlier than the Reich Ministry of the Interior,
²¹
had objected sharply to the draft but for conflicting reasons. The aim of the policy of “police law replacement” pursued by the RSHA, termed as such in a letter to the Posen
Reichsstatthalter
dated October 18, 1941, was the elimination of the Prussian Law of Police Administration, because it was claimed that this did not do justice to the new police concept. The Posen draft represented “a certain legitimation of the Prussian Law of Police Administration by National Socialism” because it aimed at creating “a definitive situation.” The RSHA was completely opposed to a new Law of Police Administration and deemed the
temporary
adoption of the Prussian Law of Police Administration in the Warthegau by a special decree as more than sufficient. “The emphasis on the temporary nature of this measure would avoid the edict” being capable of being “regarded as a legislative policy decision in favor of the Prussian Law of Police Administration,”
²²
proposals that demonstrated that the police leadership under no circumstances intended to be bound to the constitutional principles of the Prussian Law of Police Administration. The police leadership was also supported by the deputy Führer and the NSDAP
Gau
leadership in the Wartheland, which had become seriously involved in the negotiations on Greiser’s draft decree.
²³
These agencies were completely opposed to the
general
adoption of the provisions of
Reich
law. If any dependence whatsoever upon Reich law proved to be necessary, the Prussian Law of Police Administration was to be formally adopted, but the
Reichsstatthalter
would be authorized to suspend certain provisions of importance to ethnic policy at his own discretion.

The Reich Ministry of the Interior was unwilling to stand up to the combined pressure of the political powers involved. The draft issued by the Posen
Reichsstatthalter,
who up until now had not given way an inch and had only with some difficulty been prevented by Berlin Party headquarters from proceeding with the issue of decrees without proper authority,
²⁴
was dropped; instead, the Reich Ministry of the Interior took the bull by the horns, so as to preserve at least the principle of uniform regulation, and sent its own draft decree “with utmost respect” to the
Reichsstatthalter
(and district presidents) of the Eastern Territories on December 4, 1941, requesting a reaction as quickly as possible;
²⁵
this draft incorporated almost every wish of the
Reichsführer
-SS and the Party leadership.

The draft envisaged the complete adoption of the Prussian Law of Police Administration in the Annexed Eastern Territories, subject to the provision of exemptions in the adoption decree. These exemptions, however, were quite extensive. For instance, appeals before an administrative court against a ruling refusing an appeal, against a police order by a district president under section 49 of the Prussian Law of Police Administration, and against the enforcement of an coercive act under section 57 of the Prussian Law of Police Administration were declared generally inadmissible, as was a petition for a court ruling against police penal orders under section 413 of the Code of Criminal Procedure. In addition,
all
legal remedies against police orders in security matters and against the enforcement of a coercive act were excluded. Furthermore—to open the floodgates for special legislation provisions—the
Reichsstatthalter
and the district presidents were empowered, with the consent of the Reich minister of the interior, to revoke the adoption of other regulations of the Prussian Law of Police Administration in the Annexed Eastern Territories, or adopt them only after a certain date, or to declare individual provisions applicable to certain ethnic groups only. Finally, there was also a proviso governed by the demands of ethnic policy that provisions of the Prussian Law of Police Administration “that cannot or can no longer be applied because of their wording … should be applied mutatis mutandis.”

Reichsstatthalter
Greiser had no objections to the adoption of the Prussian Law of Police Administration in this form; as regards the “non-Germans,” how-ever, he resisted the authorization to make regulations for individual ethnic groups by statutory provisions; the reason for this was that Greiser intended to exclude the Poles
arbitrarily
(e.g., by decree) from the German legal system and to exclude them from
all
legal remedies against police (penal) orders, well exceeding the remit of the draft. However, establishing this overtly did not (yet) seem feasible. Using the standard cover-up tactic, Greiser proposed that all police measures against Poles should simply be assigned to the province of the SIPO (the Gestapo), since its actions could not be challenged in any case. Specifically, he suggested that he should decide on the basis of an implementing decree to the adoption decree that police penal orders against Poles should, in principle, fall within the purview of the Security Police, “as in such cases, even if they were matters of a regular police nature, security policy aspects would always have priority.” The integration of this structure into the interpretation of the adoption decree would thus disbar the Poles from
all
legal remedies against police action.
²⁶

The Reich Ministry of the Interior understood only too well that this would undermine the entire system of police administrative law as well as the system of legal remedies and withheld its consent. Greiser sought to no avail to convince Party headquarters in a detailed letter dated January 14, 1942, that the “treatment of the Poles” demanded “special regulations.” Granting the Poles a right of appeal was “totally unacceptable.” In particular the issue of legal remedies, but also that of the enforcement of coercive acts, should “be assessed not only from a police point of view but first and foremost from the position of the racial struggle.” The Prussian Law of Police Administration did not meet these requirements at all; the authorities should not be bound by “restrictive provisions,” because “more drastic instruments” were needed for the “strict segregation of the Germans from alien races.”
²⁷

Negotiations still remained bogged down because the Posen
Reichsstatthalter
and the Security Police stuck to their position as described above and the Reich Ministry of the Interior did not give in.
²⁸
Finally, Greiser stated quite plainly that he was no longer particularly interested in any centralized regulation of the issue, because he had in any case created a fait accompli even before the submission of the draft by the Reich Ministry of the Interior on December 4, 1941. In an urgent dispatch to the HSSPF (higher SS and police leader) in Posen dated December 10, 1941, he reported the implementation of his long-advocated intention: in the attached circular decree dated August 23, 1941, he had ordered the exclusion of Poles from
all forms
of legal remedies against police orders (i.e., also against orders issued by the regular police) as well as the abolition of all restrictions imposed on the enforcement of police coercive acts—allowing for forced labor instead of coercive detention—and was not disposed to cancel these (usurped) powers.
²⁹
The Reich Ministry of the Interior was not willing to grant its consent under any circumstances to a general exclusion of legal remedies against orders issued by the Security Police and the exclusion of Poles from legal remedies against all police actions—especially not by the issue of a circular decree—this less because of any aspects of equality before the law for Germans and Poles than because any form of
Partikularrecht
(legislation by regional powers) ran counter to the plans for uniform legislation that the Reich Ministry of the Interior had been preparing for some time.

The uniform legislation proposed by the Reich Ministry of the Interior consisted of a reorganization of the entire administrative penal law for the Reich, to be implemented above all at the urging of the Security Police (the Gestapo) with the aim of extending still further the scope of police discretion not subject to review by the courts, that is, the latitude of the Gestapo to operate outside the law. Under the reorganization plans, all “nonjudicial violations” were to be punished by police penal orders, for which there would be recourse in the courts.
³⁰
This is a further example of the phenomenon of Nazi legislative policy, already described, by which the special legislative measures against “non-Germans” were frequently only the beginning of wide-ranging plans to discriminate against the German population as well, or to remove them completely from the scope of the law. However, the corresponding draft decree of the Reich Ministry of the Interior was not adopted because of the difficulties and power struggles associated with such a comprehensive reorganization.
³¹
This ultimately resulted in victory for those forces representing
Partikularrecht.

After being totally outplayed by the political authorities all along, the Reich Ministry of the Interior subsequently retreated in the question of the adoption of the Prussian Law of Police Administration in the Eastern Territories and in February 1943 elaborated another draft decree but without submitting its own opinion (the clearest possible indication of its defeat), which took full account of the endeavors of the posen
Reichsstatthalter,
the police leadership, and the Party leadership to achieve special legislation and declared the Prussian Law of Police Administration applicable to Germans only.
³²
This very brief draft, which envisaged the complete exclusion of legal remedies against all action by the Security Police (which consisted of the Gestapo and the
Kriminalpolizei
[the criminal police, as distinct from the political police (Gestapo)]) not only for Poles but also for Germans (something that had not been achieved in the Reich itself), was of course rejected by the Posen
Reichsstatthalter,
whose stance had been increasingly hardening with time. The NSDAP in the Wartheland also opposed the draft, but for other reasons. As it stated in a letter to the
Reichsstatthalter
on March 25, 1943, it believed that the draft was too far-reaching, because the exclusion of all legal remedies, particularly against the heavy actions of the Gestapo and the
Kriminalpolizei,
aroused a feeling of lawlessness in those affected and exposed them to the arbitrary despotism of the police, about which the Party, too, had no illusions.
³³