Picturing Justice, the On-Line Journal of Law and Popular Culture

F.C. DeCoste
Faculty of Law,
University of Alberta


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That the Holocaust proceeded from a debate about the limits of law may surprise those who, lead perhaps by the popular media, take the Holocaust as an expression of mindless hatred. Many may be surprised as well to discover that the Holocaust was a surprise to all involved, victims, bystanders and perpetrators alike.

Feature article

Conspiracy: "All our actions must be predicated on law."

by F.C. DeCoste

So speaks SS Obergruppenführer Reinhard Heydrich in this (HBO/BBC 2001), the second (afterHeinz Schirk's 1984 German-language Wannseekonferenz), and very much more accomplished, dramatic depiction of the Conference of 20 January, 1942, at the Wannsee Haus in suburban Berlin, concerning the fate of European Jewry. What was at issue at Wannsee was not whether Jews would die -- the barbarity had already begun some seven months earlier with the gassing of Jews at Chelmo -- but rather whether the killing of Jews would be pursued as state policy as regards all Jews and throughout the whole of Europe under German occupation or influence. So there ensues, in the film as it did in life, a discussion concerning whether such a policy could sound in law and, if so, what law might then mean.

The major players in this discourse are Heydrich, head of the Reich Security Main Office and favored deputy of Reichsführer SS Heinrich Himmler, as chair and convenor (brilliantly delivered by Kenneth Branagh as Edith Wharton's blond beast, a being at once carnal and cultured: in rejecting sterilization as the answer to the "Jewish Question" -- "Dead men don't hump. Dead women don't get pregnant. Death is the most reliable form of sterilization. Put it that way"; yet the adagio of Schubert's C Major String Quintet remains for him, the concert-competent violinist, music to "tear your heart out"); SS Obersturmbannführer Adolf Eichmann, Heydrick subordinate and head of the Gestapo Jewish Evacuation Office (here wonderfully rendered by Stanley Tucci, not merely as the apotheosis of the suckup/kickdown bureaucratic functionary, but in contrast to Branagh's Heydrich, with subtlety, as the brutish and contemptuous common man: his sneering condescension for the staff at Wannsee -- SS comrades one and all -- opens the film (amid the hum of silver being polished, drapes drawn, crystal cleaned, flowers arranged, name cards inscribed, wine, cognac and cigars placed, and very German foods prepared, the sound of broken wine glasses: Eichmann to what appears to be the chief steward at Wannsee, "Do we have enough? How many fell?"; "I'm sure we have a sizable inventory, sir"; "You're sure or you know?"; "I know sir"; "Itemize the cost. He pays. Make it a separate report to me. And keep him where I don't see him"; then leeringly to a female steward, his SS jacket held open in her arms ready to envelope him properly for the meeting, "Smile. It is a fine day"); and his venomous denunciation of Heydrich's "passion for Schubert's sentimental Viennese shit" very nearly concludes it); Dr. Wilhelm Stuckart, chief draftsman of the Nuremberg Laws of 1935 and head of the Four Year Plan, Ministry of the Interior (Colin Firth's wonderful performance makes of Stuckart an Albert Speer, the squeamish in-but-not-of Nazi); and Friedrich Wilhelm Kritzinger, Ministerial Director, Reich Chancellery, representing Hitler (Jonathan Coy's portrayal matches Firth's in excellence and in design).

That the Holocaust proceeded from a debate about the limits of law may surprise those who, lead perhaps by the popular media, take the Holocaust as an expression of mindless hatred. Many may be surprised as well to discover -- as Raul Hilberg, the dean of Holocaust studies, seeks always to remind us -- that the Holocaust was a surprise to all involved, victims, bystanders and perpetrators alike (indeed, Hilberg reports that Heydrich himself was "ashen-faced" on first being informed that the Final Solution meant the physical destruction of European Jewry). However, conceiving of the Holocaust in any other fashion -- as an orgy of murder rather than as an act of state framed by the discourses of civilized life or as a vision pursued and planned rather than as a sequence of events made possible, but not inevitable, by certain moral and political commitments -- shelters us from the Holocaust's horrific historical and moral burden: its revelation, as human possibilities, of a new form of death, Vernichtung, death as manufacture, desacralized and meaningless, nothing, and of a new form of being, Lebensunwertig, life unworthy of life, meaningless even to itself, an insult to life. It is its invention of these -- this understanding of morality and this form of being -- that will forever burden Germany with shame and guilt, and the rest of the world with an irreparable harm, that insidious mistrust which ever since shrouds our sense and experience of life.

That this film (directed by Frank Pierson, and written by Loring Mandel: wonderfully and intelligently by both) discloses that debate and surprise, and in a manner that lays bare the intellectual and legal architecture of the destruction that followed Wannsee, makes of it a towering achievement, not least for lawyers. Indeed, for lawyers especially: not only because seven of the Conference's fifteen participants held advanced degrees in law (Stuckart; Kritzinger; Dr. Roland Freisler, Ministry of Justice and later president of the People's Court, the infamous Volksgerichtsgof; Dr. Josef Bühler, representing Hans Frank, Governor General of Occupied Poland and former Reich Minister of Justice and President of the Academy of German Law; SS Oberführer Gerhard Klopper ("How many lawyers are in this room? Raise your hand. Oh, Jesus Christ. It's worse than I thought") director of the Party Chancellery's legal division under Martin Bormann; and Drs. Karl Eberhard Schöngarth and Rudolf Lange, SS Oberführer and Sturmbannführer respectively and distinguished from other participants by their service as commanders of Einsatzgrupppen murder battalions on the Eastern Front (two other participants also held doctorates: Alfred Meyer, a Ph.D. in political science, and Georg Leiberandt, a combined doctorate in theology, philosophy, history and economics, both representing the Reich Ministry for the Occupied Eastern Territories); nor only because, as Hilberg puts it, "Lawyers were everywhere and their influence was pervasive. Again and again, there was a need for legal justification"; but also, and perhaps more profoundly for the present, because the discourse at Wannsee concerning law and the limits of power to perfect the world and the place of difference in law remains for lawyers central to their deciding whether lawyering has the point and passion of an office or is instead a practice of service to power.

All of the lawyers at Wannsee, save two, had no hesitation at all in affirming the latter: for instance, Klopper (devastatingly delivered as corpulent -- yet still sly and intelligent -- corruption by Ian McNeiece), "We make the law we need" and, then, in response to Stuckart's cri de coeur concerning "the obligation to maintain a lawful society," "Fuck"; and Freisler (perfectly played by Owen Teak as the banal, self-serving ideologue who would later become Hitler's favorite legal executioner, presiding as the screaming judicial interrogator at the show trials of White Rose students Hans and Sophie Scholl in 1943 and of the Bomb Plot accused in 1944), "Let's get it done, and if we skip a few steps, so be it" and, then, "Well, the Ministry of Justice which I represent, can live with it, gladly." Indeed, it fell to Stuckart and Kritzinger alone among them to carry law's brief against the legal cynicism and political millenarianism of Heydrich. But Heydrich was to win the day, not only because his cynicism would let loose brute power against his interlocutors (Heydrich to Stuckart alone in conversation: "Every agency will come to follow my order or asses will sting. And there are no shortages of meat hooks on which to hang enemies of the state. ... You have a choice to make. ... I do not wish to see the bullies -- I admit we have more than our fair share of them in the SS -- take too much of an interest in you" "Interest in me?" "Do you not think", drippingly, dropping his cigarette at Stuckart's feet; to Kritzinger, again alone: "You'd be a hard man to bring down, but certainly not impossible. ... Sitting again at that table, I will ask for your agreement to what has been proposed." "And I must answer now?" "Oh, you will answer now or you will answer later." "I will not oppose you." "I want more than that." "Of course." "Good. We understand each other."), but also, and more instructively, because he, unlike they, blinded each of them by personal and professional conceit, recognized the inevitability of the destination -- as possibility, if not always, as here, as practice -- bred of subordinating law to power's ambition and of permitting law to take account of difference.

Just before the Conference begins, Stuckart and Kritzinger share, sotto voce, conspiratorially, their mutual disdain for their fellows, for the SS especially. Stuckart to Kritzinger: "It is very complex. These laws, a lot of time and thought has been put to them and some of these here -- well you notice all the SS -- have little idea of what is lawful in their respect for what they do." Kritzinger: "Certainly not these gentlemen. To them the laws are like ice cream. Easy to melt." Heydrich knows his quarry well, and showing false and indeed silly, and then destroying, this elitism -- about intelligence about and commitment to the law -- becomes the focus of his conduct of the meeting.

Good manager he, he first recounts the path of the Reich's Jewish policy: first the Nuremberg Laws, which aimed "to expel them from all means by which our people would have to deal with them" and "established the fundamental legality for the creation of a Jew-free society" and then the pursuit of "a vigorous policy of emigration" ("But who would take more of them? Who would want them was the policy's ultimate limitation. Every border ... rejects them. Even America.") and finally the consequences of the Reich's military successes in Poland and in the East ("The dimensions of this problem ... have magnified astoundingly: five million!"). The past to which all present, Stuckart and Kritzinger especially included, had consented, thus recalled, Heydrich commences with the Reich's response to "this new situation" as expressed in Reichmarshall Hermann Göring's directive of 31 July, 1941 to himself -- "you have a copy in your folders" -- "the operative words ... 'bringing about a complete solution to the Jewish Question in the German sphere of influence in Europe.'" Heydrich: "Now, for that I read the cleansing of the entire continent of Europe. ... All of Europe.... No Jews. Not one." Then: "The policy that will take the place of emigration is evacuation"; and "Everything we have done flows from the Nuremberg Laws.... And now we have to examine those. ... The exemptions written into the law allow too many Jews to remain among us." Thus, does he confront the law, in stages and by manoeuvre: now, it remains only for the Conference to determine the meaning of evacuation and the future warrant of the Law.

Lange (remarkably delivered by Barnaby Kay as a near sullen mix of lawyer and murderer) puts the question to Heydrich: "Dear General, sorry. I have the real feeling I evacuated thirty thousand Jews already by shooting them at Riga. Is what I did evacuation? When they fell were they evacuated?" Heydrich: "Yes, in my personal opinion, they are evacuated." Kirtzinger: "Explain!" "I have just done so." "That is not.... No, that is contrary to what the Chancellery has been told. I have directly been assured, I have, that .... Purge the Jews, yes. But to annihilate them ... That we have undertaken to systematically annihilate all the Jews of Europe, no that possibility has personally been denied to me by the Führer." Heydrich with bemused condescension: "And it will continue to be." "Yes, I understand. Yes, he will continue to deny it." Heydrich with barely concealed contempt: "My apologies. Do you accept my apologies?"

Then Stuckart on the meaning of Law: "The Nuremberg Laws are very specific. ... I find the plan unworkable. I find the plan personally insulting in that I have given years to codifying the laws.... My work, these laws, any legal code worthy of the name restricts the enforcers of it as well as its subjects. There are some things you cannot do." Heydrich: "As you see it." Stuckart, lecturing: "To kill them casually without regard for the law, martyrs them which will be their victory. Sterilization recognizes them as a part of our species but prevents them from being a part of our race. They will disappear soon enough. And we will have acted in defense of our race and of our species and by the law." Then less: "I'm pointing out the difficulty of casting every Jew ... into the sausage machine, and if that's the plan, I'm asking that some legal framework be built." Kritzinger at one point in support: "He believes in the supremacy of law. ... You accept casually the obliteration of legal distinctions and the use of extreme, inconceivable measures. ... That is where we have come." Heydrich, exasperated: "I can't give a damn rule for everything."

But all of this protest is posture. The proof lies not in their revealing themselves as cowards in collapsing before Heydrich's threats, but in their refusing to acknowledge that their National Socialist commitments -- to the Nuremberg Laws, to the Führer, to political millenarianism -- meant the death of law and of their professional commitments, save each as private conceit or else, as here, as public petulance. In this, by contrast, Heydrich is wise. To Kritzinger: "This is the moment to be practical until such time as Germany can afford your philosophy, which is what? Hound them, impoverish them, exploit them, imprison them, just do not kill them and you are God's noblest of men. I find that truly remarkable." To all a reminder of Führerprinzip: "I would like to remind all of you that our Führer enunciates the goal. Our task, to turn his vision to reality. We can debate the 'how'; we can debate the 'when' up to a point; we cannot debate the 'if'. ... His word is above all written law." To Lange, his self-understanding: "Beautiful lake. When the War ends, I shall come to this house and rise to see it every day and dream comforting things. I am a dreamer as I think you are. ... We look forward to a better day, a peaceful world, a German culture triumphant. That is what we work for. ... We are servant soldiers, are we not? ... That is what we are indeed." (Heydrich was not, of course, to live his dream: Reinhard Tristan Eugen Heydrich -- Protector of Bohemia and Moravia and Himmler's trusted organizer of the machinery of genocide -- was to die on 4 June, 1942 from injuries sustained in the British organized assassination attempt of 27 May.) Then, to all, the "triumphant German vision": "So this is my commandment to you here. Link arms, your units, your ministries, apply your intelligence, apply your energies. The machinery is waiting. Feed it. Get them on the trains. Keep the trains rolling. And history will honour us for having the will and the vision to advance the human race to greater purity in a space of time so short Charles Darwin would be astonished."

At Wannsee, these core elements of Hitlerism -- collective, identity-based difference, authoritarianism, and utopianism -- became radicalized. Wannsee was the Hitler revolution, and with it, the world changed (Kirtzinger to Lange: "This is more than war. Must be a different word for this"). Thereafter, Jewish difference became Otherness, and radicalized Otherness meant legal nudity, a flagrant, utter, exposure to the claims of insistent and ubiquitous power. The Führerprinzip ceased to serve as a vague grundnorm and became instead cause for a false legality characterized by prerogative law and unrestrained interpretation by ideologically driven judges, lawyers, and legal scholars. And now taken seriously, the millenarianism championed in Mein Kampf made the inconceivable conceivable: Eichmann, "We expect to be able to process 2500 an hour, not a day"; someone, "Sixty thousand Jews a day go up in smoke!"; Heydrich, "We can achieve that. Imagine."

Imagine. And yet we continue to imagine that somehow the law can make whole the world, that it can count and construct difference, that its constraint is properly, electively, porous: like they before us, provided only the cause be right and the warrant redemption.

Posted August 1, 2003

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