Original subtitles

(quiet dramatic music)

(speaks in foreign language)

- They had the strong conviction that this was right,

and they were here at the right place,

celebrating this party, and celebrating these politics.

- I mean, I as a child grew up in Germany.

And I saw what happened sometimes, you know,

when they had these mass rallies.

And when I saw Hitler's speeches.

- 10,000 German lawyers and judges took an oath

of personal loyalty to the Fuhrer.

- In Nazi arguments, the law is the will of the Fuhrer.

- Because he brings the hope, the glory, the pride.

- And then it all went horribly wrong.

(somber music)

(speaks in foreign language)

(speaks in foreign language)

(crowd cheering)

- In 1933, less than a month

after being elected Chancellor,

Adolf Hitler used the pretext of a fire

in the Reichstag building to suspend constitutional law.

And place unlimited judicial authority

in the hands of the government.

- It was a cataclysmic event.

I mean, think in terms of our Capitol burning

down.

The Reichstag was their Congress.

And the Reichstag couldn't meet.

And when the Reichstag is not in session,

the Chancellor has emergency powers.

So here you have Adolf Hitler given these

enormous emergency powers to do almost anything

that would be contrary to a democratic society.

- The German legal system

in 1933 was a very sophisticated legal system.

This was not primitive law.

It was really seen, German legal science,

was really seen as the height

of what the law was supposed to be

about.

- After the burning of the Reichstag,

which was more than a symbolic act

in destroying the parliament,

10,000 lawyers took an oath.

Not surprising, I've taken an oath as a lawyer

to defend the Constitution of the United States.

But 10,000 German lawyers and judges

took an oath of personal loyalty to the Fuhrer,

which is the antithesis

of what we think of as the rule of law.

- So the Nazis coming to power realized

that the law was a very powerful instrument.

In order to get the German public to follow

and to acquiesce in those early steps.

- The principal procedure governing German law

during the Third Reich

was something called the Fuhrerprinzip.

And the idea was that Hitler had absolute discretion

to make any ruling whatsoever in the interest of the state.

And that there were lesser or subordinate Fuhrers

who also followed the Fuhrerprinzip,

and also themselves had wide discretion,

limited only by what the Fuhrer

above them had told them to do.

(speaks in foreign language)

- Over the next 12 years,

the Nazi party continued its subversion

of constitutional safeguards until Germany's courts

amounted to nothing more than tools

for the implementation of National Socialism.

(speaks in foreign language)

(crowd cheers)

Early in their subversion of law, Nazi officials

established special courts to deal with anyone

the party deemed an enemy of the Reich.

In these courts, there was no pre-trial investigation.

Judges determined arbitrarily what evidence

to consider, and there was no right of appeal.

- Now, this is the time when the judiciary could have

and should have stood up and said, wait a moment

we have rules and laws here,

this is our nation that is being corrupted.

And the Chancellor said, this is only temporary

because of the terror that's been visited upon Germany.

(speaks in foreign language)

- Once he succeeded in concentrating

legal authority into his own hands,

Hitler then had the tools for eliminating all those

he deemed to be enemies of the Reich.

Primary among these were Jews and other minorities.

Before the Nazi era, Jewish lawyers constituted

a large percentage of Germany's legal community.

With Hitler's rise to power, Jews were

no longer allowed to practice law.

Eventually most lost their lives as well.

One who survived, Max Friedlaender,

was a distinguished legal ethicist.

After his escape from Germany, he wrote memoirs

that offer a vivid portrait of life before,

during and after the Nazi era.

(somber music)

- On January 30th, 1933,

I was in Berlin

for a meeting of the Board of Directors

of the German Bar Association

when a telephone call informed us

that Adolf Hitler had become Chancellor.

But it was only later, after the Nazis had swept aside

all legal barriers to their reign of terror,

that we would come to understand

the full implications of this event.

(speaks in foreign language)

(crowd cheers)

The German Bar Association soon met its final fate.

All votes on resolutions were held

under the supervision of the SA,

and I would not have advised anyone

to cast a dissenting vote.

In a similar manner, the regional Bar Associations

and the Bavarian Lawyers' Association disappeared.

On April 7th, 1933, the German government enacted

a law forbidding attorneys of non-Aryan descent

from representing Aryan clients.

If anyone dared do so, their names were published

in the press, their businesses were boycotted,

and soon it even became grounds for divorce.

- When the Nazis first came to power,

they ended up promulgating a number of laws

that incrementally deprived Jews

and other persecuted minorities of civil rights.

These incremental steps that we're talking

about that results in the Final Solution

were all legal steps.

And you can trace this.

You can trace the Holocaust as a legal event.

- Genocide, the extermination

of whole categories of human beings,

was a foremost instrument of the Nazi doctrine.

We shall show that these deeds of men in uniform

were the methodical execution of long-range plans

to destroy ethnic, national political and religious groups

which stood condemned in the Nazi mind.

- If you begin with the assumption

that you are a member of a superior race,

and that others who have a different color

or a different religion,

or a different ideology

are inferior, then it begins to follow

that the superior one should dominate the inferior one,

or eventually eliminate him as well.

(somber music)

- Doctrines of so-called criminal types

were implemented that allowed Hitler's courts

the further liberty of condemning enemies of the state

not based on what they had done,

but on the sole basis of who they were.

- The enemy, which we regard this enemy,

has to be pursued, not because he has done something wrong

in our eyes, in the eyes of the state leadership,

but because he is different.

It was a principle of the National Socialist Constitution

that race is a very, very important point,

and that everybody has to be treated according to his race.

This was official state doctrine.

You couldn't act openly against the state doctrine.

(speaks in foreign language)

- Perhaps future generations will read

about the books that were burned, forbidden, boycotted,

often not even for their content,

but because of their author's race.

I was leafing through a recent

Nazi commentary on laws governing attorneys.

And I found sentences lifted verbatim

from one of my own books.

Roland Friesler, Undersecretary in the Prussian

Ministry of Justice, wrote a review.

He said, "For decades, the German Bar had to accept

"the shameful fact that the law governing

"its conduct was commented on by Jews.

"Now at last a German commentary has appeared."

It was a truly new way of fighting

Jewish intellectual property.

You just brand it as inferior, then copy it,

and now praise it as an Aryan creation.

- In 1934, the People's Court was established

to try those accused of political offenses.

Eventually, the court came under the presidency

of Roland Freisler, a Nazi of such extreme sentiments

that he shocked even his fellow Nazi judges.

(speaks in foreign language)

Freisler was one of an echelon of senior German jurists

who paved the way for the betrayal

of the rule of law in the 1930s.

Carl Schmitt, Hitler's legal theorist,

a wealthy and ambitious conservative

who described the Fuhrer as Germany's guardian of justice.

Erwin Bumke, the man who drafted Hitler's emergency laws.

These and other senior officials of Hitler's courts

empowered police to disband organizations,

seize assets, make arrests,

and determine on their own initiative

what constituted a threat to the state.

(speaks in foreign language)

(crowd cheers)

The Nuremberg laws reflected Nazi

preoccupation with racial purity,

an idea concocted from vague elements

of religion, citizenship and heredity.

Since the laws defined Jews as racially impure,

marriage between Jews and non-Jews would defile

the race and was now prohibited.

Resourceful judges found other applications

for the Nuremberg laws, by arguing for example

that because Jews were no longer considered full

human beings, they did not qualify for legal rights.

In effect, Jews and other minorities underwent their civil

death long before millions met their physical death

in the camps.

(dramatic music)

- I could no longer afford to live

in the beautiful house that had been my family's

home for 28 years.

Our dear friends the Hertzfelders had an apartment

available on the second floor of their house.

I arranged to move in with them,

and began the painful process of selling my home.

(somber music)

(speaks in foreign language)

(dramatic music)

(metal clangs)

The Hertzfelders and I had been

listening to the radio before retiring.

Around four a.m. on November 10th, 1938,

I was awakened by loud voices.

Five SA men yelled, "Police, open up!"

And then declared that Hertzfelder and I were under arrest.

When we arrived at our local police station,

something surprising happened.

The officer on duty was someone I had known for a long time.

He told the SA men there's been a mistake.

Then to us he said you are free to go.

(somber music)

We walked home, and saw the Gestapo

busying themselves in other homes.

(somber music)

That same evening, thousands of Jewish men,

in particular, nearly all the lawyers and physicians

and former judges, prosecutors across Germany,

were arrested and dragged off to concentration camps.

(somber music)

- I had an uncle who was Jewish, of course,

and he was arrested in 1938,

during the sort of, you know, the Kristallnacht,

when all Jews were arrested.

He was beaten up, he was sent to a concentration camp,

to Buchenwald, he was taken by bus.

And during the drive, they said, they see no reason

why we should pay for you Jewish pigs

for your journey to the concentration camp.

So you have to pay for that, all right, so he did.

A few days later, my aunt was summoned to the Gestapo.

She came, she wanted to know, what happened to her husband.

So they said, you know, your husband

went to a work camp,

and he went by bus,

and of course he had to pay for that.

But he paid 20 marks, and the journey costs

only 18 marks 80.

So the one mark 20 we want to return to you.

I mean we feel that it's only right and proper

and legal that we have to return that to you.

I mean, the whole thing, taking you there

altogether, beating him up, threatening him,

torturing him, and then he has to pay for the journey.

And then to return the one mark 20.

And that was in the name of the law.

- And then you pass another law, saying you will please

come together in the market square for being resettled.

You never used the word murdered.

And so they show up, and they get

on the train to be resettled.

And then, in accordance with the law,

you don't want to waste their clothing.

You have to take it off and then pile it up,

and you can use it for distribution to the poor non-Jews.

And then of course no use wasting their hair,

so you cut that off and use it for mattress stuffing.

And of course, if they have gold crowns in their mouth,

your not gonna throw away gold,

so you rip it out of their mouth with pliers.

You get other Jews to do the job,

become members of what they called

the (speaking in foreign language) the death commandos.

Drag the body to the crematorium

and put it on the fire to burn.

And then the ashes,

(man crying)

I'm sorry.

(man crying)

Use the ashes for fertilizer in the fields.

These are flashbacks that I get,

because I've seen all that.

And it's a very efficient way, legally

to eliminate a whole human body

and the whole body politic.

- The next day, I suddenly received a call.

So, you are not in Dachau yet?

You are instructed to come to police headquarters

between four and five p.m.

(somber music)

The Hertzfelders urged me to leave Germany.

I said goodbye to my old friends.

I took a taxi to the train station.

It is hard to believe of all my friends

and acquaintances in Munich, I am the only one

who was lucky enough to be able to leave the country.

Can anyone understand that I am sometimes ashamed

to have been so favored by fate?

(somber music)

(gunshots fire)

(jet engines whoosh)

- With the official declaration of war,

Nazi lawmakers moved into high gear,

as thousands of so-called enemies of the Reich

were arrested and tried in Hitler's courts.

By 1939, roughly 60% of all law school professors

were Nazi appointees engaged in training

a new generation of lawmakers.

Young zealots raised and educated under Nazi rule.

And if some of this new generation harbored misgivings,

hardly any ever dared question the Nazi

distortion of the rule of law.

- The Germans saw themselves as being in danger.

In their midst, from outside and so they were very willing

when the Nazis came along to tighten their laws,

and say we need more national security.

But at that point, Hitler's Germany is

the great example of then all civil rights

being swept away for certain individuals.

(crowd chanting)

(speaks in foreign language)

- If you want to read a textbook appraisal

of how to undermine the rule of law,

read some of Goering's writings,

where he talked about first terrifying a people

and then you can do almost anything you want with them,

including forcing them to go to war.

- I think it was really hard during that time

to get into a resistance.

To get into a stable sort of resistant attitude

towards the political aims and goals

that you were confronted

with.

Because the masses of the people, they just went with it.

(crowd cheering)

- In 1934, Dr. Lothar Kreyssig,

a judge on the court in Brandenburg,

objected to Hitler's euthanasia program,

and even attempted to prosecute Nazi officers

for sending hospital patients to their death.

Because he had been a respected citizen,

the courts encouraged him to retire ahead of schedule.

But such leniency was extremely rare.

Dr Johan von Donyanyi

at 36 the youngest member

of the German Supreme Court, also spoke

out against the Nazi betrayal of justice.

He was arrested and later executed

in a concentration camp, Sachsenhausen.

The overwhelming majority of Germany's legal community

cooperated with the Nazi regime.

Postwar statistics estimate that by 1945,

the number of death sentences handed

down by Germany's various courts

had exceeded 50,000

of which more than 80% were carried out.

(somber music)

Yet another blow to the rule of law took place

in September 1942,

when the Reich Ministry of Justice

empowered the SS to change any court decision

deemed overly lenient.

(somber music)

Thousands of prisoners were delivered to the SS

at that time for summary execution.

(somber music)

(birds twittering)

On January 20th 1942, a meeting took place

in Wannsee, outside Berlin.

Among those present were Reinhard Heydrich,

Head of the Reich Security main office,

Adolf Eichmann, Heydrich's expert

for deportations, and 13 other high-ranking

representatives of the Nazi party.

Minutes from the meeting, known

as the Wannsee Protocol, spell out in clear terms

plans for the deportation and murder

of all European Jews, and the active participation

of Germany's public administration in the genocide.

More than half the participants in Wannsee were lawyers.

- It was this fireplace, where Eichmann

and Heydrich toasted with cognac

and their main toast was the fact

that it was so easy for them to get all

of the people and all the participants

around that table to agree to the extermination

of 12 million Jews and Heydrich made mention

of the fact that he was particularly surprised

that the lawyers and judges sitting

around that table went along with all the rest.

- The question that really begs itself

when you hear this description

of what happened to the law and to the legal personnel

in Nazi Germany is how could highly-educated individuals,

whose job was to use the law to protect people,

so willingly become part of this mechanism

of the murder of 6 million Jews

and other persecuted minorities.

And the answer to that is not a legal answer.

It's not an answer that a lawyer can give

or a law professor can give.

It's a question that has to be asked

of psychologists, sociologists.

As I've looked at the individual perpetrators

and what they did and studied them in detail,

I read the transcripts of their interrogations,

their testimony and so forth, I've gotta tell you,

I find familiar human qualities.

To a degree, these aren't completely unfamiliar monsters.

There are things in Albert Speer, or Hjalmar Schacht

or even Hermann Goering that are like us.

- Maybe one characteristic of Germans is

that they have a tendency to lean to perfectionism.

They want to be perfect.

So they wanna have also a perfect legal system,

and this is where it got horribly wrong

when the law turned out to be utterly unjust.

There are probably a lot

of laws in the United States

that you might think are stupid,

that you might think are unwise,

that you might even think are immoral.

Let's say you're a judge.

Is it incumbent upon you

to insert your own personal conscience in deciding

what laws you should be upholding

and what laws you're gonna decide,

well, you know, I think that law's too stupid

to uphold, so therefore I'm not going

to uphold it.

We'd be very uncomfortable with judges

who engage in that kind of practice.

Take the case of a concentration camp guard

who was ordered to kill Jews in the camp,

who eventually might have acted

within the parameters of positive law

as it stood at the time

in let's say 1943 or 1944.

Would that norm of existing law

as adopted by the Fuhrer, as adopted

by the German Reichstag in '38, '39,

would that be a valid law?.

Or would it not so clearly contradict the most fundamental

values that we would set it

aside by saying there are rules out there,

which predate every given normative system, right?

Which would therefore prevail.

- Our Declaration of Independence

talks about certain inalienable rights

and among those rights are life, liberty

and the pursuit of happiness.

That's natural law.

I mean, that's not written any place.

The Founding Fathers all believed

that there were certain rights

that people just had as human beings

that they were entitled

to, and I think those sort of principles,

which are principles of morality,

they can be stated other ways.

Some people say, well these are rights

that come from God and other people say

they're just inherent from the fact

that you're a human being.

- It's really about this whole question

of conscience and this whole question

of the status of law.

What is the status of law in an unjust regime?

(church bells ringing)

- War in Europe has ended.

(trumpets playing)

The hour for which the world has spent six years waiting

has come.

Unconditionally and finally,

our German enemy has surrendered

to Russia, Britain and her Commonwealth,

to America, to the millions who fought

with their hearts and souls.

(brass band playing)

(dramatic music)

(speaks foreign language)

(dramatic music)

(speaks foreign language)

(dramatic music)

The privilege of opening the first trial in history

for crimes against the peace of the world

imposes a grave responsibility.

The wrongs which we seek to condemn

and punish have been so calculated,

so malignant and so devastating

that civilization cannot tolerate their being ignored.

Because it cannot survive their being repeated.

- In March 1947, the Justice Trial took place

at Nuremberg.

It was one of 11 subsequent trials

that took place following the main Nuremberg trial

of December 1945.

The Justice Trial included 16 defendants

who had been members

of the Reich Ministry of Justice,

and its various courts.

The trial raised the issue

of what responsibility judges have

for enforcing grossly unjust but arguably binding laws.

The charge was

judicial murder and other atrocities committed

by destroying law

and justice in Germany,

and by then utilizing the empty forms

of legal process for persecution,

enslavement and extermination on a vast scale.

In their own defense, the accused claimed they had stayed

to prevent the worst from happening

but after hearing 138 witnesses,

and introducing more than 2,000 pieces

of evidence, the Nuremberg court concluded

that the defendants had consciously participated

in a nationwide government-organized system

of cruelty and injustice, in violation

of the laws of war and of humanity.

10 of the 16 defendants in the Justice Trial

were found guilty as charged.

Four were sentenced to life imprisonment.

Six were sentenced to terms ranging

from five to 10 years.

Six were acquitted for lack of evidence.

One died before verdict.

One was deemed a mistrial due to illness.

The court ruled that the dagger

of the assassin was concealed

beneath the robe of the jurist.

- I don't know whether or not this is a German phenomenon.

It took place in Germany

and obviously Germans could be converted

to this perverted idea.

- This is not a German phenomenon.

This phenomenon exists in other parts

of the world.

There are people who are ready

to kill and be killed for their particular ideals,

because they have never learned tolerance.

They have never learned compassion.

They have been taught to hate.

- A big issue is, who was the perpetrator?

And there are two polar positions.

Both of which are wrong, in my view.

One is the idea that the single madman,

Adolf Hitler, mesmerized the country,

and by his evil decrees perpetrated all of it.

Individually.

A one-guy crime, in a sense.

The other view is that the entire German population

is guilty as a matter of genetics,

and physical presence and citizenship

The German people as a whole did it.

The beginning of wisdom, it seems to me,

is to look at Nuremberg in its context.

And it is a step and a very, very important step

on the road to the international rule of law.

- Nuremberg was a seed from which all

of these international treaties,

particularly those dealing with Human Rights emerged.

- A judge in Nazi Germany could not have pointed

to any principle of international law

or international covenants.

Today, we have that entire structure,

- And we can't consider our nation

as being isolated from the world

and running its own affairs exclusively.

It cannot be anymore.

We have to live in this world community.

No nation can be sufficient unto itself any longer.

- Perhaps given the time and the circumstances and history

of Germany at that time,

it made them more vulnerable than most nations.

But even in this country you can track our history,

going back to the Alien and Sedition laws

and the Palmer's Raids and the McCarthy era.

Internment of the Japanese during World War Two.

We have done things, which in retrospect seem terrible.

- If we look at the United States in the 21st century,

after 9/11, then we see that we have to deal with terrorism.

It's a real problem.

And the law is one way to approach this,

It has to be used for that.

We have to also recognize the danger

that Nazi Germany shows to us

of going too far the other way.

Because democracy is very precarious.

And Americans living in democracy,

we think it's always with us,

that there's no way we can be a country

without civil rights

and Nazi Germany shows otherwise.

(mournful music)

- In this program, we examined the fragile nature

of democracy, and saw

how even a constitutionally governed nation could succumb

to the rhetoric of despots.

Great strides have been made

in the past 60 years with courts

towards establishing an international rule of law.

Yet without vigilance on the part of our lawyers and judges,

the men and women who are charged

with the task of safeguarding the rule of law,

any nation is vulnerable to fear and propaganda.

Thank you for your attention.

(somber music)