When Hitler became Chancellor of Germany in January 1933, he wasn’t about to let the judiciary get in the way of his aspirations for absolute power.
Hitler viewed an impartial judicial system as a threat to his dream of a ‘thousand year Reich’; a golden era of Aryan supremacy.
After gaining power, Hitler took it upon himself to ‘coordinate’ the judicial system in order to ensure it was in line with Nazi ideals and objectives.
No longer were courts independent, or a check against government abuses of power – they quickly became just another mechanism for Hitler to consolidate his dictatorship.
Lawyers and judges who were Jewish or had socialist views or other ‘subversive’ views were quickly removed from their jobs.
Judges were required to swear allegiance to the Nazi party upon appointment and police were ‘liberated’ from the restraints of the accountability – much like ASIO officers in Australia now have immunity from both civil and criminal prosecution for ‘special intelligence operations,’ such as those ostensibly carried out for anti-terrorism purposes – even if the subjects of those raids are entirely innocent and officers commit heinous acts of brutality against them.
Hitler’s police were little more than legally sanctioned thugs – beyond the reach of the courts. The unfortunate people they targeted were often brutalised and placed into ‘protective custody’ – i.e. concentration camps – beyond the control of the judicial system.
Inside courtrooms, basic protections and legal principles were disregarded in favour of Nazi ‘common sense’ – with the motto of the courts becoming: “whatever is good for Germany is legal.”
The ‘People’s Court’ was established in 1942 for those accused of political crimes. It was a ‘kangaroo court’ where the outcome was nearly always a foregone conclusion. The Court was ruled with a heavy hand by the brutal President Roland Freisler, who acted as both interrogator and judge.
Criminal defence lawyers were strategically positioned away from their clients so that communication became impossible. Defence submissions were regularly cut-short and lawyers told to to “shut up” (in German, of course) when they tried to continue in their client’s defence.
Defendants were often forced to attend court wearing ill-fitting and humiliating clothing. One was forced to attend without his false teeth, and many were not provided with belts or suspenders to keep their pants up.
Freisler became famous for berating and belittling defendants, and their lawyers. He thundered at one defendant: “You dirty old man, why are you always fumbling with your trousers?” The hapless defendant was forced to hold onto his pants to prevent them falling down.
He regularly called defendants and their lawyers “pigs”, “murderers” or “rotten traitors” – even before evidence had been heard.
Those who were condemned to death were immediately taken outside and executed – there was no right of appeal.
Criminal defence lawyers who stood up against Freisler quickly found themselves out of a job, or even exiled or ‘eliminated’.
Some fled overseas before it was too late; others stayed, risking their lives in pursuit of justice.
Hans Litten, Criminal Lawyer (1904-1938):
Hans Litten was a prominent criminal defence lawyer who specialised in defending the downtrodden – including the poor and members of the Communist party, who Hitler despised.
Litten was a brilliant lawyer – and the most famous witness he ever interrogated was Hitler himself!
In 1931, Litten examined Hitler about why such an allegedly peaceful party used thugs and violence to bully others, exposing the methods and objectives of the Nazi party.
Litten cross-examined Hitler for three hours. After initially claiming he stood for peace and “100% legality,” Hitler’s story fell apart under Litten’s skilful questioning.
The results of the trial were widely publicised, much to Hitler’s embarrassment. He never allowed anyone to mention Litten’s name in his presence again.
After coming into power, Hitler ordered Litten’s capture and imprisonment. Litten’s family and friends urged him to leave the country, but he bravely refused to abandon his country or clients, saying “the millions of workers can’t get out…So I must stay here as well.”
Litten was arrested shortly thereafter and spent the rest of his life imprisoned. He died in a concentration camp in 1938, the year before World War II.
For five years, Litten endured prolonged torture and abuse by prison guards. At last, unable to stand it anymore and aged just 34, Litten took his own life.
A Lesson to Be Learnt
The story of the rise of the Third Reich and its total dominance of Germany is a horrifying example of the dangers of unrestricted state power.
The judiciary in Australia often face public criticism, from both the media and the government. Yet it is precisely its independence which allows judges to deliver unpopular judgments, or even declare government laws invalid without fearing for their jobs or their lives.
Nazi Germany is a stark and sobering reminder of the dangers of a government unchecked by the courts, and an unaccountable police force.
If nothing else, the German experience should remind us to be vigilant when tacitly authorising wholesale encroachments on basic legal safeguards and protections in an attempt to protect against a perceived enemy – whether that be the Jew or the terrorist.
As discussed in several recent blogs, there are concerning parallels between the removal of our basic rights and the conferral of power on law enforcement bodies here on the one hand, and the ‘slippery slope’ Germany went down in the years leading up to World War II on the other.
In addition to giving ASIO immunity from prosecution, hundreds of other laws have been passed in recent years taking away basic safeguards and protections, and handing law enforcement bodies more and more powers, including:
- Removing the right against detention without charge through instruments such as ‘control orders’ and ‘preventative detention orders’ – which means people can be arrested and held in custody, without charge, for protracted periods of time,
- Eroding privacy through ‘meta data retention laws’ – which give Australian police and law enforcement agencies greater access to our personal data than Hitler could ever have dreamed of, and carry the danger that selective data will be used out of context to falsely incriminate people,
- Amending bail laws to enable those suspected of terrorism and a range of other offences to be kept behind bars for years on little evidence,
- Diluting the right to silence and even removing it altogether in certain cases,
- Removing legal professional privilege in a range of situations,
- Reversing the presumption of innocence for certain offences,
- Bolstering the powers of law enforcement in a range of areas, including the powers of arrest.
The list goes on and on: in fact, NSW Chief Justice Tom Bathurst recently identified hundreds of laws which take away basic safeguards and protections of individuals in NSW. He found over 300 recent encroachments in three areas alone: legal professional privilege (162 encroachments), right against self-incrimination (183) and presumption of innocence (52).
Like in Nazi Germany, it seems that a significant part of our general population has been conned into believing the wholesale removal of our protections is necessary and will keep us safe, when in fact it is dangerous and unjustifiably hands the government and its agents enormous powers over us – rendering just about any person susceptible to targeting and abuse at the hands of law enforcement agencies.
Unlike pre-World War II times, all of us have the ability to distribute information through websites and social media, and each of us can let our government know we’re not ok with the wholesale removal of our fundamental safeguards and protections. Let’s use that voice.