Of those in the dock at the Nuremberg War Tribunal, Franz Schlegelberger was considered the most sympathetic, writes historian Doug Linder. In fact, he was the model for the character of Ernst Janning, the penitent German jurist portrayed by the incomparable Burt Lancaster in Judgment at Nuremberg.

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From 1931-1942, Judge Schlegelberger worked in the German Ministry of Justice, which was intended to be the institutional guardian of the rule of law. After the Nazi Party came to power in 1933, Schlegelberger made one tentative effort to restrain executive power: He objected to a decree retroactively imposing the death penalty on those blamed for the Reichstag Fire. 

This was a violation of the ancient legal maxim nulla poena sine lege (“no punishment without law”), he complained. This was quite likely the last time Schlegelberger — who joined the Nazi Party in 1938 —  would insist that anything other than the will of the Fuhrer was the supreme law.

In March 1940, Schlegelberger proposed an official policy requiring “that lawyers, like civil servants, be formally subject to release from their profession if they could no longer guarantee that they would at all times without reservation support the National Socialist state,” recalls Eli Nathans in the Law and History Review. As Minister of Justice, Schlegelberger reiterated that demand in an extraordinary conference of German jurists and lawyers in April 1941. 

The first item on the agenda at that gathering, recalls German historian Ingo Muller in his book Hitler’s Justice: The Courts of the Third Reich, was to hammer down any legal resistance to the Nazi Regime’s T-4 euthanasia initiative, which would eventually kill over 170,000 Germans (and train key personnel for service in the death camps). 

“Schlegelberg acquainted the participants `with all the decisions of the Fuhrer,’ so that `judges and public prosecutors would not cause grave damage to the legal system and the government by opposing measures they sincerely but mistakenly believe to be illegal, and would not place themselves in opposition to the will of the Fuhrer through no fault of their own,'” writes Muller. 

For reasons he never made clear, Schlegelberg resigned as Justice Minister in 1942. (One indirect consequence of that decision was the appointment of the deranged Ronald Freisler — a fanatical Communist who became a “Beefsteak Nazi” — brown on the outside, red in the middle — to head the so-called People’s Court, better known as the Blood Tribunal.) 

Although he never expressed contrition in terms akin to those used by his cinematic avatar Ernst Janning, Schlegelberger was perceived as a reluctant supporter of Hitler’s rule and given a lenient sentence. From the available records it appears that Schlegelberger’s most acute regrets dealt with what he experienced, rather than what he helped inflict on others.

The product of a pious Christian family, Schlegelberger was typical of the functionaries who implemented policies of torture and mass murder on behalf of the Nazi Regime. 

Those men “were not sadists or killers by nature,” observed Hannah Arendt in her book Eichmann in Jerusalem. This meant that some method had to be devised “to overcome not so much their conscience as the animal pity by which all normal men are affected in the presence of physical suffering.”

“The trick used by Himmler … was very simple and probably very effective; it consisted in turning these instincts around, as it were, in directing them toward the self,” Arendt continued. “So that instead of saying: What horrible things I did to people!, the murderers would be able to say: What horrible things I had to watch in the pursuance of my duties, how heavily the task weighed upon my shoulders!”

There are some striking similarities between Schlegelberger, the self-pitying instrument of Hitler’s will, and Judge Jay S. Bybee of the Ninth Circuit Court of Appeals, who played a key role in devising the Bush junta’s torture policies. Both of them came from conservative religious backgrounds; both believed in unqualified obedience to established authority. 

And as Bybee’s May 26 testimony before a closed-door meeting of the  House Judiciary Committee demonstrates, he — like Schlegelberger — has mastered Himmler’s method of redirecting pity from the victims of state-authorized crimes to the perpetrators thereof.

Bybee — described in a flattering profile as a pious man, a Sunday School teacher who established a household rule forbidding his children to hit each other — signed off on a series of memos written by John C. Yoo that “authorized” the torture of detainees, as long as the methods used fell short of “organ failure, impairment of a bodily function, or even death.” That standard, as we will shortly see, was meant as a suggested guideline, rather than a rule.

Although he told the House committee that certain degrading techniques employed by the CIA “were not authorized,” the memos he and Yoo devised purported to offer legal shelter for a torturer in the employ of the president who killed a detainee. 

Furthermore, since Yoo — who fleshed out the details on behalf of Bybee — has claimed that the president can authorize the sexual torture of a detainee’s child, it’s difficult to take at face value Bybee’s May 26 claim that forcing detainees to wear diapers and soil themselves somehow ran afoul of the torture guidelines he devised.

As the song says, Bybee wasn’t a bad man — just ambitious. He was appointed assistant Attorney General in charge of the “Justice” Department’s Office of Legal Counsel (OLC) on the understanding that he would receive a coveted judicial appointment if his performance pleased his boss, Attorney General Alberto Gonzalez.

For his part, Yoo had designs on Bybee’s position, which — although all but unknown to the public — offers access to lucrative and powerful positions in both the government and major government-aligned private law firms.

Yoo dutifully devised specious arguments in favor of unlimited presidential “war powers,” and Bybee eagerly gave them the OLC’s imprimatur. As Judge Andrew Napolitano points out in his book Lies The Government Told You, this is exactly the opposite of how the OLC is supposed to function: “[T]he OLC is supposed to work as a check on the executive branch, representing a line of defense against unlawful executive activity.”

The Bybee/Yoo view of presidential war powers was identical to that expressed by Schlegelberger. In an August 1, 2002 memo offering retroactive “authority” for the Bush regime’s existing practice of torture, Bybee endorsed the claim that those who tortured a detainee to death on presidential orders were immune to prosecution. Permitting enforcement of anti-torture statutes in any way, he insisted, “would represent an infringement of the President’s authority to conduct war.”

Schlegelberger’s work to institutionalize torture in the Third Reich displayed a hypocritical punctilio similar to that exhibited by Bybee. Muller points out that after defendants accused of “political” crimes began to display tell-tale signs of torture, the German Justice Ministry under Schlegelberger “legalized the terror, to such an extent that they even established a `standard club’ to be used in beatings, so that torture would at least be regularized.” 

Although torture of “normal” criminal defendants was still forbidden — and punishable by a prison term — Schlegelberger, like Bybee and Yoo, was willing to arrange a work-around on behalf of the Fuhrer’s dutiful servants.

In 1941, Police Captain Wilhelm Klinzmann was convicted of torture for beating an arson confession out of a farm laborer named Robert Blodling. When the German Supreme Court refused to hear an appeal of Klinzmann’s sentence, Schlegelberger created a new procedure called “cancellation” that, in Muller’s words, “gave the government a means to end every current investigation or trial independently of judicial decisions.” Thus “Klintzmann was [set] free and was not even considered to have a criminal record.” 

This practice of “cancellation” prefigured both the Bybee/Yoo doctrine of transcendent presidential war powers, and the Obama administration’s de facto ratification of Bush-era torture in the interests of “closure” — or, as the estimable Glenn Greenwald puts it, looking “forward” rather than “backward.” 

In search of personal gain, Bybee and Yoo perverted the law in order to enable torture. They are therefore liable to prosecution under bribery statutes. At the very least, Bybee should face impeachment, since bribery is specifically mentioned in the Constitution as an impeachable offense.

 

Obviously, Jay Bybee has ample cause for remorse — even leaving aside the fact that he enabled the torture of human beings, many of whom were (and are) completely innocent.

Yet when asked during the May 26 hearing if he had any regrets, Bybee displayed what Glenn Greenwald correctly describes as “sociopathic self-absorption.” 

According to the New York Times, Bybee described himself as “proud” of the suborned memos he signed at the OLC,  insisting that they were “well researched” and “very carefully written.”

“Still, he said the controversy surrounding his tenure there had been difficult,” observed the Times:

“`I have regrets because of the notoriety that this has brought me,’ he said. `It has imposed enormous pressures on me both professionally and personally. It has had an impact on my family. And I regret that, as a result of my government service, that that kind of attention has been visited on me and on my family.'”

 

Weep not for those drowned, beaten, blinded, suffocated, subjected to genital mutilation, and murdered because of policies Bybee crafted in the service of fuhrerprinzip and his own ambition. Spare your tears instead for Bybee himself, who — despite a lucrative, life-tenure judicial position — suffers profoundly as a result of being criticized for the pivotal role he played in institutionalizing such barbarism.

Himmler would recognize, and most likely admire, the ease with which Bybee has mastered the Nazi tactic of moral displacement. And Franz Schlegelberger may be driven to envy by the fact that his contemporary American counterpart found himself on the bench, rather than behind bars.