Hitler's First Victims

by Timothy W. Ryback

  * * *

  * The “amnesty law”—the Law for the Discontinuation of Criminal Investigations (Gesetz über die Niederschlagung strafrechtlicher Untersuchungen)—was presented in draft form by Hans Frank on July 26, 1933, at a state cabinet meeting, and signed into law on August 2, 1933, by Epp in his capacity as Reich governor. The law did not actually amnesty the crimes but instead provided for the discontinuation of criminal investigations that could harm the reputation of the National Socialist government. It was restricted to crimes committed before July 25, 1933, with the intent of curtailing further criminal excesses by the SS and SA. (Lothar Gruchmann, Justiz im Dritten Reich 1933–1940: Anpassung und Unterwerfung in der Ära Gürtner, 2nd ed. [Munich; Oldenbourg, 1990], 332.)

  16

  Rules of Law

  ON JUNE 2, shortly after work hours began, Hartinger arrived at his office to discover to his astonishment that Wintersberger was now ready to sign the four indictments. As planned, Hartinger brought the four indictments along with the investigation files to Dr. Kiessner, who was waiting in his office. Kiessner took time to study Hartinger’s indictments, then later that morning, as agreed, delivered them personally to the homicide department of the Munich police. There, Kiessner was surprised to learn that all “political criminal cases” were henceforth being handled not by the state police homicide department but by the political police in the Wittelsbach Palace.

  “When I subsequently went to the Political Police, I was received with smirks and referred to the chief of police,” Kiessner recalled. “My attempt to see him did not succeed, however, since it was explained to me in the reception area that he was away on business.” Kiessner returned to his office and began preparing arrest warrants to send to Himmler with the investigation files.

  Hartinger was furious when he learned that Kiessner had been to the Wittelsbach Palace. “It would have been an absolute requirement to inform me, given the agreement between the two of us,” he later said. “We were dealing with a criminal case of a special nature that required from the outset cooperation between the court and the prosecutor’s office.” Hartinger had trusted Kiessner completely and could only attribute Kiessner’s act to “rashness.” Kiessner apologized, but the damage was done: Himmler had been alerted. “The appearance of the investigator in the offices of the SS apparently had the consequence that Minister of the Interior and Gauleiter Wagner probably learned of the matter from a party functionary responsible for police administration, and complained to the Bavarian Ministry of Justice,” Hartinger recalled, unaware that Wintersberger had briefed Himmler the previous afternoon.

  “As I was returning punctually to my office on the afternoon of June 2 from the lunch break, which was generally between twelve and two o’clock in the afternoon, I heard my telephone ringing just as I was unlocking my office door,” Hartinger recalled. “When I picked up the telephone, Minister Counselor Döbig was on the line and demanded that I personally bring him the four investigation files with the indictments immediately.” Hartinger explained that the files were with Kiessner and reminded Döbig that normal procedure was for indictments to be routed through the attorney general rather than through the minister of justice. “He answered in the negative and insisted that I immediately bring them myself.” Hartinger retrieved the files from Kiessner’s office and delivered them, as instructed, to the justice ministry. The plan was compromised. Hartinger knew the Nazis would be alerted. There would be no arrests. There would be no headlines.

  IRONICALLY, another criminal investigation claimed the news headlines the following day. “As the district party leader of the National Socialist Reichstag faction has learned,” the Völkischer Beobachter reported, “the investigating judge of the Reich Court, Reich Court Legal Counsel Vogt, concluded on June 1 the preliminary investigation against the suspects Van der Lubbe, Torgler, Dimitroff, Popoff, and Tanell for the arson attack on the Reichstag.” The editors splashed the revelation in a boldfaced headline, underlined in red, across the top of the newspaper with the sub-heading “Indictment for the Reichstag Arson Attack.” The article spoke of a communist conspiracy involving Marinus von der Lubbe, the Dutch communist apprehended at the scene, as well as Ernst Torgler, chairman of the communist faction in the Reichstag, and three Bulgarian communists. “This report will henceforth silence all the groundless slanderers,” the newspaper wrote, “who, on Jewish-Marxist command around the world, have claimed that Reichstag president and party comrade Göring personally set the Reichstag on fire.”*1

  Hartinger had calculated that Wäckerle’s arrest and resulting headlines would stay the killing in Dachau and blunt any SS reprisal. “It was clear to both of us that by issuing an arrest warrant we were turning the leaders and members of the SS into bitter enemies,” Kiessner recalled, “and placing our jobs, our freedom and even our lives in jeopardy.” The two men now found themselves perilously exposed. In the Munich II offices, there had been “boundless respect for the courage with which Herr Hartinger repeatedly entered the lion’s den.” One person recalled that when an SS guard halted Hartinger at the camp entrance with the threat “We will shoot you,” Hartinger responded, “Then you’ll have to shoot me. I’m coming in.” The “general and serious concern” was suddenly real and imminent. Steinbrenner recalled that the SS began making plans to have Hartinger “taken care of.” “I told my husband repeatedly that he should burn all his notes that could be dangerous if there was a house search,” Hartinger’s wife later said. “He refused to burn his register of the occurrences in the Dachau camp, because he hoped that the perpetrators could in fact one day be brought to justice.”

  Amid the crisis, Wintersberger appeared to have a change of heart. The chief prosecutor’s reluctance over the previous two months vanished. Wintersberger had closed the investigation into the shooting of the four Jews in Dachau on April 12, which required disregarding the eyewitness testimony of Erwin Kahn and affirming the SS account. He had delayed or terminated subsequent Dachau murder investigations. On the day Wintersberger met with Himmler, June 1, he closed the books on the Lehrburger shooting “because Wicklmayr’s assertions cannot be disproved at present.” But suddenly, a day after refusing to sign the indictments and arrest warrants, Wintersberger gave his full support to securing the return of the files. “I really do not know what was wrong with Wintersberger on that afternoon,” Hartinger wondered years later, “because after that he was fully behind me with the investigation and did everything possible.” Wintersberger reissued the four indictments with his own signature and called Döbig in the justice ministry demanding the return of the investigation files. Döbig informed Wintersberger that the cases had already been forwarded to Wagner in the ministry of the interior. “I explained to Minister Counselor Döbig that without the files I was not in a position to continue the necessary investigation,” Wintersberger noted in his files. Hartinger and Kiessner tried to reconstruct the investigation files. “This could not be carried out,” Kiessner remembered, “since the autopsy protocol, which was the decisive basis for the case, was not available in a second copy.”

  But the files were in fact in good hands. “I had Reich governor General von Epp call a meeting,” Hans Frank later told the Nuremberg tribunal, “where I produced the files regarding the killing and pointed out the illegality of such an action on the part of the SS and stated that representatives from the German public prosecutor’s office had always been able to investigate any death which involved a suspicion that a crime had been committed and that I had not become aware so far of any departure from this principle in the Reich.” The meeting, which took place on June 2, pitted Siebert, Epp, and Frank against Wagner and Himmler. Himmler was instructed to put an end to the killings and to undertake “personnel changes” within the camp.

  As Hartinger intended, the indictments caused “considerable unrest” within the Bavarian state government and eventually in Berlin. “After that I continued protesting against this method to Dr. Gürtner, the Reich minister of
justice, and at the same time to the attorney general,” Frank continued. “I pointed out that this meant the beginning of a development which threatened the legal system in an alarming manner. Heinrich Himmler eventually referred the matter to Adolf Hitler, who intervened personally in the matter. The proceedings were ordered to be quashed,” Frank recalled. “I handed in my resignation as [Bavaria’s] minister of justice but it was not accepted.”

  Amid the judicial wrangling, the killings in Dachau ceased. There were no Paragraph 159 deaths in Dachau reported during the month of June. The same held true for the first and second weeks of July. On July 15, Hilmar Wäckerle was dismissed as camp commandant. The news came in a terse, one-line missive from Himmler. “I am assigning you as of July 15 to the position of district officer in SS Unit 10,” it read, “and am hereby relieving you of your position as Adjutant I/29.”*2 The force of the law had cracked the sworn bond of SS loyalty.

  In the last week of July, when a reporter for the New York Times came to Dachau, he found the camp transformed from the time of the previous visit, three months earlier. The woodlands surrounding the Würm Mill Creek had been clear-cut, leaving a wide perimeter around the camp. The isolated clearing where Benario, Goldmann, and the two Kahns had been shot had been transformed into a fully operational shooting range. The swimming pool, not far from where Alfred Strauss had died, was now complete. The new commandant was Theodor Eicke, apparently rehabilitated.

  Eicke, middle-aged, thick-necked, with a full face, somewhat ruddy, had the hard, disciplined glare of a paymaster accustomed to parsimonious allocation. Familiar with budgets, staffing, and security from previous employment, Eicke was appalled by what he encountered on arrival. “In the entire facility there were only three men who knew how to use a machine gun,” Eicke claimed. “My men were housed in drafty factory halls. We were plagued by poverty and misery.”

  Eicke received a paltry 230 marks per month as camp commandant. “We were considered a necessary evil who did nothing except cost money; irrelevant men behind barbed wire,” he said. “I literally had to beg for money by the penny from the state budget to pay my officers and their guards.” Worse still, Eicke found that Dachau was being used as a dumping ground for troublemakers from SS units across southern Bavaria, transforming the facility into a “collecting pot of problem cases” that was rife with “disloyalty, embezzlement, and corruption.” Eicke said he dismissed sixty men within his first month on the job and sought to mentor those who remained. “I went energetically and happily about my work, I turned guards into junior officers and junior officers into officers,” he remembered. “Within a few weeks, a common willingness for sacrifice, deprivation, and a warm camaraderie created a model of behavior from which emerged a perfect esprit de corps. We did not become arrogant, because we really had nothing; behind the barbed wire we quietly went about our duties and ruthlessly removed anyone from our ranks who showed the slightest trace of disloyalty. Thus was formed and nurtured a guard unit in the quiet of the concentration camp. Their ideals were loyalty, bravery, and duty.”

  The new spirit pervading Dachau was already much in evidence when the Times reporter arrived in late July. The reporter, who referred to it as an “educational camp,” was particularly impressed with Eicke, who presented himself less as a military-style commandant and more as a “rest camp” administrator. It was his job, he said, to run an orderly facility, not to determine why or for how long a man was to be incarcerated. This had not been the case, he said, under the previous camp administration, which had been notoriously lax. Eicke had imposed discipline and order on detainees and guards alike. “This, both the prisoners and the camp’s commander Herr Eicke, agreed, was truer now than before,” the reporter observed. “Now camp life has settled into the organized routine of any penal institution.”

  Eicke assigned SS lieutenant Hans Lippert, who had replaced Erspenmüller as deputy commandant, to tour the facility with the Times reporter. Lippert showed him the machine guns mounted in the watchtowers, the barbed wire, the armed guards stationed along the walls, the clean barracks. “For their own comfort, the men see that any pig among them is cleaned up and stays clean,” Lippert said. The detainees snapped to attention each time they entered a barrack. The SS personnel were still quartered in barracks as spartan as those of the detainees. But there were noticeable improvements. Some buildings had been refurbished as workshops where craftsmen were put to work at their particular trade. The reporter saw tailors sewing gray prison uniforms, bootmakers producing boots, woodworkers building doors and windows, and locksmiths crafting various fittings. There was even a studio with a skylight where artists made crayon sketches on Nazi themes, medallions featuring Hitler, and metal swastikas. Hitler portraits sold for 50 pfennigs each. The detainees ranged from seventeen-year-old boys to white-haired old men. “All types were represented—sturdy peasants, sturdy laborers and bespectacled intellectuals,” the reporter noted, as well as “faces usually attributed to a city’s underworld,” and all looking “sour, grim, sullen, sad or merely apathetic.”

  The complaints had not changed. Many said they did not know why they were there. They did not know how long they would be detained. The reporter heard vague rumors of “disciplinary cells” but did not see them himself. He saw some work details with men stripped to the waist clearing brush beneath the blazing afternoon sun, watched over by armed guards, but the majority seemed to be languishing in the camp. “Most of them were lying in the grass and some were in the shade of the few available trees,” he wrote, “[…] some playing chess, a few reading books, most simply doing nothing. It was an almost idyllic picture of a rest camp.”

  By all appearances, Hartinger had stayed the homicidal impulses of the new government. “It was certainly an achievement that Wäckerle was gone,” Hartinger later said. “Of course, I could not have known that his successor would be even worse.”

  THE SUMMER LULL IN KILLING was illusory, of course. In mid-August, Franz Stenzer, who had nearly been struck by the bullet that killed Josef Götz, was shot in an alleged escape attempt. He was followed in September by Hugo Handschuch, a twenty-three-year-old, who was said to have died of a heart attack. In October, there were two alleged suicides, the voluntary camp doctor, Dr. Delwin Katz, and another detainee, Wilhelm Franz, an office worker from Munich. The following month, Fritz Bürck was shot in the head, chest, and stomach when he allegedly assaulted SS sergeant Wilhelm Birzle near one of the camp latrines. Hartinger registered another two suicides by hanging in early 1934.

  Dachau’s death toll hitched and lurched in the months and years to come, averaging twenty killings annually, with a brief slump in 1936, the year the Olympic Games came to Germany, then ballooned monstrously with the outbreak of war as Dachau’s myriad atrocities were franchised across the continent. Back in 1922, Emil Gumbel had warned that a society that condoned individual homicide risked condoning mass murder. “These so-called handcrafted murders are effective in contained circumstances, but only here,” Gumbel had observed. Expressing bitterness and resignation at the public indifference to “political murder,” he anticipated, with chilling prescience, more ambitious forms of killing. “For this,” Gumbel wrote, “different and better methods of an industrialized nature will be required.”

  The single-shot executions initially applied to Benario, Goldmann, and the two Kahns were repeated a millionfold with the mobile killing units that followed the path of the German armies across eastern Europe. The burning of corpses, like those of Willy Aron and the uncounted, unnamed Jews in Dachau’s abandoned munitions shed, were to be conducted in high-performance, cokestoked crematory facilities. The process of strangulation—first tested on Louis Strauss on the night of Monday, May 17, 1933—was enhanced through a crystallized chemical asphyxiate sold commercially as Zyklon B, transforming a homicidal act that originally required little more than brute force into an industrialized process involving closed ventilation systems, airtight chambers, and faux showerheads that consumed the
lives of millions of men, women, and children across the continent.

  We will never know the potential consequences or the course of events had the Hartinger indictments been delivered that June. The arrest of Wäckerle and his subordinates by the Bavarian state police would have come amid the final negotiations for the concordat in Rome. The domestic embarrassment, coupled with international outrage over forensic evidence of premeditated serial killing, possibly with chain-of-command responsibility, may well have compelled Epp and ultimately Hindenburg to act. “It would have been a great success for me had the arrests succeeded,” Hartinger later wrote. Hartinger insisted that these were not mere “fantasies.” “As I later learned,” he said, “there were discussions in this direction, but the ‘good spirits’ did not prevail.”

  In the end, the murder indictments may have failed to deliver on the hope Hartinger invested in them, but they did underscore the potential for change in the early days of the Third Reich, before the seemingly unimaginable had become seemingly inexorable. Hartinger may have lacked the aristocratic bearing of Raoul Wallenberg. He certainly possessed neither the charm nor the wiles of Oskar Schindler. He was little more than a balding, middle-aged civil servant, with a wife and five-year-old daughter. But like these two heroes of Holocaust rescue, Hartinger demonstrated the potential of personal courage and determination in a time of collective human failure. After the war, when attempts were made to honor him, Hartinger dismissed the efforts out of hand. “I was only doing what my sense of duty and my professional oath demanded,” he said.