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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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