NAZI JUSTIZ TEACHES HOW TO DETECT
& PREVENT GENOCIDE - IS AMERICA LISTENING?
Richard W. Stevens
Of the Nazi Holocaust we say: Never again! But what if the machinery for genocide were being installed right now in America? How would we detect the signs of the deadly tornado before it strikes?
Richard Lawrence Miller's recent book, Nazi Justiz: Law of the Holocaust (1) explains the five major steps leading from the 1933 election of Adolf Hitler to the calculated mass murder of Jews (and others) that started in 1941. Nazi Justiz shows how the Nazi laws and legal philosophy converted, in five steps, Hitler's anti-Jewish hatred into genocide.
Public Health, Nazi Style
Regardless of whatever underlying reasons might have existed, Hitler outwardly believed and convinced others that Jews endangered public health. Hitler wrote in Mein Kampf, for example, that Jews were menaces to society, they were dirty, great masters of the lie, sneaking parasites on all of humanity, filthy, unwashed, maggots in a rotting body. Jews were the lowest form of life, would corrode German culture, and could infect Aryans. Jews could cause blood poisoning to Aryans by their proximity, their ideas and their spoken words. (2) Racially-correct science developed theories and scholars published papers proving these accusations. Generous government funding flowed to build think tanks and huge libraries to focus on race issues. German academic staffs gained prestige and comfortable careers working to protect the public health from Jews. (3)
For Nazis, to hate Jews was as natural as fearing an epidemic or avoiding an open cesspool. Who can argue against public health? Aryan actions to eliminate the Jews were sensible -- the Nazis were just doing it to protect themselves and their children.
Five Steps to Genocide
The Nazis used the German legal system to implement their plans to rid Germany of the public health menace (Jews). Accordingly, the Nazi government enacted statutes, generated regulations, and enforced them all through the police and courts. Nazi Justiz describes how the lawful persecution moved Germany through the five steps(4) that led to the genocide: Identification, Ostracism, Confiscation, Concentration, and Annihilation.
Step One: Identification(5) Step Two: Ostracism(6) Step Three: Confiscation(7) Step Four: Concentration(9) Step Five: Annihilation(10)
Bizarre as it may seem to Americans, the five steps to Nazi genocide were entirely legal under German law. The German judicial system was not merely a weak protector of Jews rights -- it actively supported the Nazi persecutors. (11) Many pre-Nazi and post-Nazi factors combined to make this so:
♦ Germany s legal profession dated only from 1870, and a large proportion of lawyers were already affiliated with the government.(12)
♦ Germany lacked any tradition of lawyers opposing government power. Judges and prosecutors were practically united against the defendant.(13)
♦ Judges were civil service bureaucrats on a career track, not necessarily accomplished lawyers or scholars.(14)
♦ Germany s written constitution (like its U.S. counterpart) protected personal liberties, but any law passed by a two-thirds vote of the legislature (Reichstag) would supersede any constitutional provision that conflicted with the law.(15)
♦ The German President, in an emergency, was authorized to suspend parts of the constitution. Before Hitler s election as Chancellor, the President had suspended the constitution more than once without causing public alarm.(16)
♦ Citing a national emergency, Chancellor Hitler caused the German President in 1933 to issue an emergency decree which suspended until further notice several sections of the constitution. The decree declared it a criminal act to provoke or incite an act contrary to public welfare. The Decree eliminated freedom of the person, the freedoms of speech, press, assembly, association, the right to privacy in mail and telephones, and the warrant and due process requirements for searches and seizures of private property.(17)
♦ The Reichstag passed an enabling act to empower Hitler s cabinet ministers to make laws with the same validity as those passed by the Reichstag, and those laws could disregard the constitution.(18)
♦ The Nazi Party, by decree, became the source of law. Party statements and Hitler's speeches attained the force of law that guided judge's decisions.(19)
♦ The first principle of Nazi legal authority was civic duty. The courts had a civic duty to uphold the law, and the law s purpose was to protect the state. (20)
♦ The second principle of Nazi legal authority was the educational nature of law. Under this principle, the courts were to use the law to teach the people a lesson. One Nazi theorist announced the rule: No crime without punishment. (21)
♦ Combining the first and second principles, Nazi judges and bureaucrats were expected to read Nazi decrees as guides and minimums. These Nazi officials received the authority to fashion the law to promote the public good as defined by the Nazis. Punishments were supposed to exceed the stated minimums to prove the judge s commitment to his civic duty. One Nazi thus declared: He who sticks to the letter of the law or refuses to go beyond it, because the orders are not given to do so, confirms the fact that he is willing to do only the minimum of what the community asks of him.(22)
This framework of laws and traditions encouraged Nazi officials to zealously carry out the Nazi plans. When the law was aimed at the Jews (and other non-Aryans and defectives"), the officials had every reason to read all laws liberally and creatively, and to impose all penalties excessively and punitively.
Parallels in America?
America is not yet overtly following the Nazi path to genocide. But the key question is: Is the social and governmental machinery in place to make genocide possible? Using the elements set forth in Nazi Justiz, the following chart shows how some of the machinery might be in place right now.
Eternal Vigilance is Key
Richard Miller, author of Nazi Justiz, sums up the lessons from his study of the Nazi institutions with these messages:(43)
♦ Disregard identifying labels on victims; remember them as ordinary persons. ... Holocaust victims differed in no way from you and me.
♦ The outcome of the destruction process is lethal. Annihilation of victims can be avoided only by abandoning the destruction process. In the beginning it looks so limited, every new increment so reasonable.
♦ To prevent another Holocaust our task must be to recognize any destruction process that is underway and to stop it, perhaps before its perpetrators even realize what they are doing. ... As soon as we see our productive, ordinary next-door neighbors somehow being identified as deviant by our government, we now know enough to leap to their defense before they are ostracized, before their property is seized, before they are concentrated in certain areas, before they are annihilated.
1. Richard Lawrence Miller, Nazi Justiz: Law of the Holocaust (Praeger Publishers: 1995) (referred to here as NJ").
2. Adolf Hitler, Mein Kampf (Boston: Houghton Miflin Co., 1971), pp. 57, 59, 91, 123, 150, 232, 289. See also NJ, pp. 31-35, 70.
3. NJ, pp. 14, 36-40
4. NJ, p.3; drawing from Raul Hilberg, The Destruction of the European Jews (1967), p. 1189.
5. NJ, pp. 9-18, 24, 36-40, 73-75.
6. NJ, pp. 43, 54-95.
7. NJ, pp. 97-129.
8. An estimated $8 billion worth of property was confiscated by Nazis from Jews. NJ, p. 131. Proceeding for a least 10 years, huge amounts of property (everything from business interests to personal belongings) were transferred, by Aryanization, forfeiture and auction, or outright confiscation, to ordinary German citizens. Ibid, pp. 113-129. There is no way many Germans could have honestly claimed later that we didn t know what was happening to the Jews.
9. NJ, pp. 133-141.
10. NJ, pp. 143-170.
11. NJ, pp. 43.
12. NJ, p. 44.
13. NJ, p. 44 & n.4.
16. NJ, pp. 44-45.
17. NJ, pp. 44-45.
18. NJ, p. 45.
19. NJ, p. 46.
20. NJ, p. 47.
21. NJ, p. 48.
22. NJ, pp. 48, 50. This expectation of harshness itself became law in 1935. NJ, p. 49.
23. Liz Spayd, Puffing and Persecution; New Laws, Warnings Make Smokers Feel Under Siege, Washington Post, March 15, 1994, p. B-1 (laws, stigma, and exclusion); Jessica Lee & Richard Benedetto, $34M to fight teen smoking OK d. But congressional leaders take little action on settlement deal, USA TODAY, Sept. 4, 1997, p. 8A (laws targeting smokers).
24. Richard W. Stevens, Disarming the Data Doctors: How to Debunk the Public Health Argument for Gun Control, Firearms Sentinel (JPFO, Inc: Winter 1997), p.2 (citing sources); David B. Kopel, The Ideology of Gun Ownership and Gun Control in the United States, 18 Qtly. J. of Ideology 3, 14 (1995), citing Barry Bruce-Biggs, The Great American Gun War, 45 The Pub. Interest 37, 61 (1976) (stereotypes about firearms owners); Arthur L. Kellermann, et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 New Engl. J. Med. 1084 (Oct. 7, 1993) (example of public health research and conclusions); Eunice Moscoso, Popular gun shows attracting criminals, extremists, study says, Atlanta Journal & Constitution (July 18, 1996), p. A8 ("gun control advocates study); William Norman Grigg, Crackdown on Extremism, The New American (July 7, 1997) pp. 15-17 (describing movement, in parallel with Soviet KGB program, to identify all militias as extremist patriots who are enemies of the people").
25. John W. Whitehead, Politically Correct: Censorship in American Culture (Chicago: Moody Press, 1995), p. 12-16, 18, 21 (citing original sources).
26. Peter Cassidy, We have your number: the push for a national ID card, The Progressive (Dec. 1994), p. 28-30. See Jay Simkin, et al., Lethal Laws: Gun Control is the Key to Genocide (JPFO: 1994) pp. 28-29 (describing government databases).
27. Rajiv Cahandrasekaran, Database firms set privacy plan; Personal information curbs intended to preempt regulation, Washington Post (June 10, 1997), p. A1.
28. Liz Spayd, Puffing and Persecution, supra note 23.
29. David B. Kopel, The Ideology of Gun Ownership, supra note 24; W. N. Grigg, Crackdown on Extremism, supra note 24, p. 17 (plans to emphasize extremism"). For examples of media stereotyping with government help, see Eunice Moscoso, Popular gun shows attracting criminals, extremists, study says, Atlanta Journal & Constitution (July 18, 1996), p. A8 (Rep. Charles Schumer (D-N.Y.) touting gun control advocates study); but see, Jack Levin, Militias reflect public s mistrust, USA Today (March 31, 1997), p. 15A (discusses how stereotypes unfairly portray some militia groups). See documentation of media bias and hostile portrayal of firearms owners in Jay Simkin, et al., Lethal Laws, supra note 26, pp. 34-37.
30. John W. Whitehead, Politically Correct, supra note 25; Professor attacked for racist comment, Washington Times, Sept. 16, 1997, p. A6; Mary Ann Roser, Texas professor s remarks on minorities irk Jackson, Washington Times, Sept. 17, 1997, p.A6 (describing protests and denunciations of college professor for stating his views).
31. Liz Spayd, Puffing and Persecution, supra note 23; Jessica Lee & Richard Benedetto, $34M to fight teen smoking OK d, supra note 23.
32. James Bovard, Lost Rights: The Destruction of American Liberty (St. Martin s Press, 1994), pp. 216-224 (state registration laws and New York City confiscation); Jay Simkin, et al., Lethal Laws, supra note 26, p. 37, 70 (President Clinton s position; New York City s program). In the 20th Century, the first seven major genocides in the 20th Century were preceded by gun registration or gun control laws. Lethal Laws, supra note 26, pp. 14, 87, 91, 98-99, 150-52, 188-89, 230-33, 283-99, 305-06,
33. Neal Knox, BATF Again Registering Guns, American Rifleman, (April 1995), p.14 (BATF agent admits computer database contains 60 million records); James L. Pate, Gun Gestapo Gang-Bangers, Soldier of Fortune (July 1995), p. 59 (ex-BATF agent describes BATF Firearms Tracing Center in West Virginia).
34. See 31 C.F.R. ? 103.21 ("suspicious transactions); 31 C.F.R. ? 103.22 ($10,000 transactions); 31 C.F.R. ? ($10,000 international transactions); 31 C.F.R. ? 103.26 (power to enforce stricter requirements where necessary"); 31 C.F.R. ? 103.29 (records of cash or draft transactions of $3,000 or more); see also, Clinton to hit drug dealers with new money-transferring rules, report says, Atlanta Constitution, May 9, 1997, p. A1 ($750 transactions).
35. See, United States v. Parcel of Real Property at 6109 Grubb Road, 886 F.2d 618, 110 A.L.R. Fed. 553 (3d Cir. 1989) (overview of the law); Daniel A. Klein, Supreme Court s views as to due process requirements, under Federal Constitution s Fifth and Fourteenth Amendments, concerning forfeitures of property to government as a result of unlawful conduct, 126 L.Ed. 2d 799 (1996) (detailed legal article with comprehensive list of cross-references); James R. Healy, Facts on forfeiture, USA Today, March 5, 1996, p. 10A (forfeiture in a nutshell). See also, Leonard W. Levy, A License to Steal: The Forfeiture of Property (University of North Carolina Press, 1995); Steven B. Duke, Albert C. Gross, Casualties of war: Drug prohibition has shot gaping holes in the Bill of Rights, Reason (February 1994), p. 20 et seq. The U.S. Attorney General has directed all federal prosecutors and FBI agents to reinvigorate their efforts in using asset forfeiture as a law enforcement tool. William R. Schroeder, Civil forfeiture: recent Supreme Court cases, 65 FBI Law Enforcement Bulletin (October 1996), p. 28 (encouraging use of civil forfeiture).
36. Two Supreme Court cases explain the legal and practical rationales given to justify this program: Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S. 214 (1944). A thorough study is found in: Peter Irons, Justice at War (Oxford Univ. Press, 1983).
37. For examples of eugenics rhetoric in the 20th century (from the founder of Planned Parenthood), see Margaret Sanger, Woman, Morality, and Birth Control (New York: New York Publishing Company, 1922), p. 12; Margaret Sanger, The Pivot of Civilization (Swarthmore College Library ed. 1922), pp. 116, 122, 189 (cruelty of charity); and see Margaret Sanger s statements in the periodical Birth Control Review, October 1921 (eugenics and birth control), April 1932 (segregation or sterilization of inferiors), and April 1933 (eugenics to eliminate bad stock of Latins, Slavs, Blacks, Hebrews"); see also the speech of Margaret Sanger quoted in Birth Control: What It Is, How It Works, What It Will Do", The Proceedings of the First American Birth Control Conference (Birth Control Review, Gothic Press, 1921) (eugenic purpose of birth control). A bold statement of eugenic ideals is found in F. Kennedy, The problem of social control of the congenital defective -Education, sterilization, euthanasia, 99 Am. J. Psychiatry 13-16 (1942) (advocates killing of defective children at age 5; view endorsed by unsigned editorial of same publication). A long list of names of directors and members of American Eugenics Society (now the Society for the Study of Social Biology) is available at www.africa2000.com/ENDX/aedata.htm. Other Internet sources for eugenics information and Margaret Sangers books are available at www.all.org/eugenics.htm.
38. See, 77 Am. Jur. 2d United States ? 24 (1997) (discussion with citations).
39. Executive Order 11490, Assigning Emergency Preparedness Functions to Federal Departments and Agencies, 34 Fed. Reg. 17567-17599 (October 30, 1969) [reprinted in full at 41 Fed. Reg. 24301 (June 15, 1976)] (assigns all planning and control duties to 28 executive agencies). Section 102(b) states that the Order is designed to assure the continuity of the federal government in any national emergency type situation that might confront the nation. Section 105 of this Order implies the unilateral power of the President to invoke the plans: [These plans] may be effectuated only [when] authority ... is provided by a law enacted by the Congress or by an order or directive issued by the President pursuant to statutes or the Constitution of the United States.
40. The Commerce Clause is found in the U.S. Constitution, Art. I, ? 8, cl. 3. Key cases broadening federal power under this clause were United States v. Darby, 312 U.S. 100, 61 S.Ct. 451 (1941) and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942). See also Robert H. Bork, The Tempting of America (Free Press: 1990), pp. 51-58 (brief but clear explanation of this point).
41. James Bovard, Lost Rights, supra note 32, pp. 49-52.
42. Randall Kelso & Charles D. Kelso, Studying Law: An Introduction (St. Paul, Minn: West Publishing, 1984), pp. 274, 286-87, 395.
43. NJ, pp. 172-73 (author s italics omitted here).