The Gestapo and German Society: Enforcing Racial Policy 1933-1945 (7 page)

2. BURNING OF THE REICHSTAG AND EMERGENCY DECREES OF 1933

The crucial events that culminated in the emergence of the Gestapo began with the burning of the Reichstag building on 27 February 1933. The next day the so-called Reichstag-fire decree 'suspended until further notice' the guarantees of personal liberty as stipulated in the Weimar constitution.
Section 2 of the decree made it possible for the national government to abolish the independence of the federal states and to begin introducing its appointees into the police and justice systems. Among other things, the decree gave the police the right to issue detention orders to hold suspects in 'protective custody', that is, without due process. The decree suspended freedom of speech, of the press, of assembly and association, and permitted violations of the privacy of postal, telegraphic, and telephone communications. Personal privacy and property rights were encroached upon when the police were given permission to exceed previous legal limits on house-searches and confiscations.23

There is continuing controversy over whether the Nazis set fire to the parliament buildings as part of a systematic and well-considered plan, or exploited a situation not of their own making, or just fumbled their way forward. However, there is little dispute about the net effect of the emergency decrees promulgated as a result of the fire.24
Along with several earlier and additional follow-up measures decreed in short order (which made much more drastic punishments possible) they constituted a 'kind of coup d'etat' and introduced into Germany the novel condition of 'permanent emergency' which lasted until 1945.25
Though presented politically as necessary to fight Communism, the decrees provided 'the formal basis for the Lawless State [Unrechtsstaat]'.26
The preamble to the measure which spoke of an alleged Communist threat 'without doubt legitimized' the state of 'permanent emergency' with the public at large, at least for the anti-Communist majority.27

The Reichstag-fire decrees had a dramatic effect on the formal-institutional evolution of the political police because they provided a new 'legal' basis. The developments which followed those measures need to be examined carefully. It is, however, important to keep clearly in view the ways in which the public responded in the circumstances because the participation, compliance, or accommodation of ordinary citizens plays such an important role in the creation of the 'police state'. Popular anxiety about Communist subversion, as well as a desire to see the end of what remained of the hated Weimar Republic, drew attention away from the arbitrary arrests and beatings, as well as the first 'wild' concentration camps established around the country in the days and weeks following the burning of the Reichstag.

In the campaign for what would be the last even remotely free elections of
5 March, the Nazis conducted what was termed a 'national uprising'; in its name they terrorized their opponents, made much of the threat from the Left, and appealed to the people to give Hitler a chance. As he had promised repeatedly, 'heads were rolling', as the state went after the Communists and others allegedly representing a danger to the nation. 'Brutality and repression in the interests of "peace and order"' increased Hitler's popularity and came to play an important part in the `Hitler myth'.28

3. FROM SECRET POLICE TO THE GESTAPO LAWS OF 1936

From the perspective of 1936 a prominent official in the Berlin headquarters of the Gestapo could reflect on what he considered to have been the decisive change which resulted from the Reichstag-fire decree as follows:

Whereas hitherto the police, under paragraphs 112ff. of the Code of Criminal Procedure, could only make arrests as auxiliaries of the Public Prosecutor when he was instituting criminal proceedings, or could under certain conditions ... take people briefly into police custody, they were now entitled, when combating subversive activities, to use the most effective means against enemies of the state-deprivation of freedom in the form of protective custody."

The notion of 'protective custody' (Schutzhaft) was not without precedent in Germany even before 1914, although then it was designed to protect someone from a danger, such as being mobbed. That definition was soon broadened, but when applied, for example, towards the end of the Weimar days, the suspect person was to be released within twenty-four hours or brought before a judge. The concept was not specifically mentioned in the so-called Reichstag-fire decree, but the suspension of the legal right to personal freedom, central to the decree, opened the way for police to arrest and detain any suspect deemed a 'threat' to the state. In the absence of legal recourse, and intimately linked to the formation of the burgeoning concentration-camp system, this form of custody could easily be misused. Unlike imprisonment following judicial procedures or the police detention orders (limited in time), 'protective custody' could amount to an unlimited incarceration without trial. It was designed, moreover, not simply to deal with indictable offences, but also to be used in a preventive fashion, that is, to undermine 'threats from subversive elements' before they materialized.;"
The ability to order 'protective custody' was to become an extremely effective and important weapon in the hands of the Gestapo, one that set the Nazi police clearly apart from earlier periods.

(a) Creation of the Gestapo in Prussia

Political police forces existed in most of the federal German states before 1933, so that the Gestapo did not have to be created from scratch, but resulted from a process of modification and transformation. The first organization explicitly called the Secret State Police, or Gestapo, was created by Hermann Goring in early 1933, in part to hold his own in the power-struggles inside the Nazi leadership, and also to deal with political opponents, especially the Communists. He was in an advantageous position to create a new political police because, as the Prussian Minister of the Interior, he was effectively in charge of Prussia's police. Goring found Rudolf Diels, a young and ambitious police official, and put him in charge of Department (Abteilung) IA of the Prussian Police. Diels, who had already ingratiated himself to Goring, notably by providing him with secret information on political enemies, was ordered at the end of January 1933 to begin a systematic search for Communist Party functionaries. Within the Berlin Police Presidency Diels created a special department `For the Fight against Communism'.31
At the beginning of May this department and the remainder of what had been Department IA moved into what would become the infamous No. 8 Prinz Albrecht Strasse near the government quarter of Berlin.32

'In order to assure the effective struggle against all of the efforts directed against the existence and security of the state', a new organization was created on 26 April 1933 by a special law for the establishment of a Secret State Police Office (Gestapa). The law was designed to provide the necessary preconditions for speedy and successful results.33
By the end of that month Diels was effectively in charge, and spread the organizational network all over Prussia from Berlin headquarters.34

Another important organizational innovation was the creation in each Government District (Regierungsbezirk) of regional Secret State Police posts (Staatspolizeistellen, usually shortened to `Stapostellen'), so that Berlin Gestapo headquarters spread its control to the rest of Prussia, the largest state in the country. A law of 3o November 1933 freed the Gestapo from the jurisdiction of the Prussian Minister of the Interior and gave local Gestapo posts, henceforth responsible to Berlin, a considerable degree of independence from the control of traditional police or administrative authorities. A significant step towards the extension of Gestapo competence and centralization had been taken, and it was well on the way to becoming an identifiable
institution. Any business that touched on 'the political' came under its aegis.35
Local police were in effect subordinated, for they were to follow instructions issued from Berlin. The significance of this last point would later become clearer: in effect members of the Gestapo would operate as high-level officials who could commandeer such assistance as was required to carry out specific tasks.36

Furthermore, these new laws not only removed the Gestapo from the administration of traditional police authority but gave it a role no political police had hitherto performed in Prussia or anywhere else in Germany. Nevertheless, the second law left important issues unsettled so that it later proved necessary to add various provisions. Since some of these cancelled each other out, only the net results need be mentioned. Local Stapostellen were in the future to become 'independent organs of the Gestapo', that is to say, they were to sever ties with local/regional state authorities. Senior appointments were to be made from Berlin. Of course co-operation with the regular local administrative officials was to be continued. Yet, with the measures taken as of 8 March 1934 'the Prussian Gestapo with all its ramifications was now divorced from the rest of state administration' and had formally become an independent body.37

Goring remained the nominal head of the Gestapo until 1936, but already in 1934, as it grew stronger, he began to lose control. In January 1934 Prussia's police as a whole were subordinated to the Reich, and by 20 April, when Himmler was named Prussian deputy chief and inspector of the Prussian police, and (two days later) Heydrich became chief of the Prussian Gestapa, a separate Prussian police ceased to exist. Rivalries and conflicts continued within the organization, but it was nevertheless well on the way to becoming a crucial component of the dictatorship, especially because these two ambitious leaders had already established their control over the SS as well as the political police elsewhere in the country. Apart from Prussia and Berlin, important developments affecting the shape of the Secret Police during the early phase took place in Bavaria.

(b) Creation of the Gestapo in Bavaria

The transformation of the political police in Bavaria followed a pattern broadly similar to that in Prussia, although there were important differences. The changes were effected in Bavaria as part of the co-ordination, or Nazification, of the state after the appointment of Hitler and in the days following the Reichstag fire. Because of the central importance of Bavaria to the present study, a brief word needs to be said about the ways in which the National Socialists `seized' power there.

The `seizure of power' in Bavaria

Even after Hitler was appointed Chancellor, and backed by the considerable powers conferred by the Reichstag-fire decrees, the Nazis were unable to win the nation-wide majority they had hoped for in the elections of 5 March 1933. Bavaria as a whole voted within a point (43.1 per cent in favour) of the national figure (43.9 per cent). But inside Bavaria there was considerable fluctuation in the support, with, for example, largely Protestant Upper and Middle Franconia voting respectively for the Nazis at 48.7 and 51.6 per cent, while the three districts with the highest percentage of Catholics gave the lower percentage of votes to the Nazis.38

The Bavarian government did what it could to resist the usurping of its powers by the national government, which was bent on centralizing power in its own hands and ending 'particularism' once and for all. Even before the March elections the emergency decrees made it possible for Berlin to `take over the powers of the supreme authority' in states where it was considered `necessary for the restoration of public security and order'.39
Such open-ended provisions were bound to cause considerable anxiety in the south of Germany, with its traditional suspicion of Prussia and Berlin. During Hitler's interview with Bavarian Prime Minister Heinrich Held, on i March 1933-lust before the March elections-the new Chancellor said he had no intention of intervening in Bavaria by (for example) taking over the police authority (as he would do in Hamburg, Bremen, Lubeck, and Hesse, between 5 and 7 March).4"
In the wake of the election, which did not settle matters one way or the other, Nazis in Munich, as in other parts of Germany, decided to treat the results as a victory and moved to take power.

At a meeting with Held on 9 March 1933, the head of the SA, Ernst Rohm, Gauleiter Adolf Wagner, and Himmler demanded that he agree to appoint General Ritter von Epp as Federal Commissar for Bavaria. Outside Held's headquarters the SA was threatening to erupt in violence; these were scenes reminiscent of the beer-hall putsch of November 1923, when Hitler and a motley group of Nazis and allies sought to take power in Bavaria by force. There were important differences the second time round, not least the existence of the Reichstag-fire decree, which could be readily applied to any local situation threatening 'law and order'. Arbitrary interference in states' rights by a determined Hitler government could not be stopped.

Bavarian Prime Minister Held made pre-emptive strikes of his own against the Communists in Bavaria to prove that he had the situation in hand, and appealed to President Hindenburg and Chancellor Hitler, but to no avail. By the end of 9 March Held passed over the reins of power to Epp, who named Wagner his Interior Commissar, gave Himmler the job as Commissar of the Munich Police Presidium, and Hans Frank that of Minister of Justice. Nazis had the strategically important positions and commenced immediately to organize the terror.41

Across Bavaria, very much as elsewhere, local 'seizures of power' 'used the tactic of pushing legally elected mayors out of office, accompanied by force, or rumor of force, from assembled SA men. With a pseudo-legality provided by Berlin, plus local NS will and action, the representatives of the old order left protesting, but they did leave.
112 There was less uniformity in localities across Bavaria than such a statement might indicate. There were marked contrasts from place to place in the political landscape. Districts with a tradition of support for National Socialism-such as Middle Franconiareacted differently from places more reticent in their support. The smoothness of the transition also depended on local Nazi attitudes and the willingness of mayoral incumbents to leave. Strong-arm tactics and 'spontaneous' violence from below were also used, approaches which served to intimidate opponents 'by adding to the atmosphere of fear necessary' for their suppression, which in turn 'served the purpose of the party leadership for a while'.43
In this context it is important to look at the role of the SA in the co-ordination of Bavaria, and then examine the less ostentatious manner in which the political police were given vastly new powers in that state.