Legislating The Holocaust

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Bernhard Losener was a bureaucrat in the Third Reich's Interior Ministry between 1935 and 1942 with specific responsibility for the “Jewish Desk” in the Ministry. His chief claim to fame - or infamy - is that he helped to write the Nuremberg Laws for Adolf Hitler in 1935. The Nuremberg Laws were famous for finally codifying legal disabilities for Jews under the Nazi regime. The surprising feature of these memoirs is that Losener claimed to have spent his time at the Jewish Desk working against Nazi anti-semitism by obstructing efforts to extend the “Jewish” legal disabilities to “mischling” - Christian Germans with a Jewish parent or grandparent.

At the Jewish desk, Losener had direct interactions with Eichmann and Stuckart and Heydrich and was at meetings where Goring mentioned the Final Solution. His memoirs put me in mind of the Kenneth Branagh movie “Conspiracy,” which was about the Wannsee Conference, except that Losener missed out on being at the Wannsee Conference in January of 1942 because he had resigned from the Jewish Desk in December of 1941 because, he claims, of his moral revulsion at learning about the mass murder of Jews in Riga.

“But even here there was a point beyond which I could not remain in my position. Shortly before Christmas 1941, Govt. Counselor Feldscher came to my office and told me what a reliable acquaintance of his had related the day before; about being an eyewitness to the mass murder of German Jews near Riga, especially Jews from Berlin. It was so gruesome that I will refrain here from relating details. For the first time I learned that my worst fears for the fate of the deportees had come to pass— or better put, had been far exceeded. I sought an immediate and urgent conference with Stuckart.”

And:

“At first Stuckart countered: “Don't you know that these things are happening on the highest orders?” I pointed to my breast and replied that there was a judge here who told me what I had to do. Stuckart, now likewise agitated, began to remonstrate with me, I was, he said, completely “cramped up” [verkrampft] because of my years of rejection of the Party's position and that I was “not dynamic enough” and had “held too rigidly to the Nuremberg Laws,” This was why “the leadership in the Jewish Question” had “slipped further and further away from, us.” I had not understood, he continued, the need to maintain contact with the Party and the Reich Security Main Office, and thus had brought about the entire and constant friction and difficulties. This was, he added, the reason why I had not been promoted. The conference lasted about 50 minutes, but for all the tension the tone remained decent.”

Losener claims that the principle of the Nuremberg laws was more protective of Jews and Mischling than we understand today:

“What was stipulated in the Blood Protection Law, the only one of the two laws with any actual substance? The prohibition of marriage between Jews and those of “German blood”; the prohibition of extramarital sexual relations between them; the prohibition upon Jews to employ female domestic servants of German blood under the age of 45, and the prohibition (which was not likely to have been seen as hardship) for Jews to fly the Hitler flag, along with severe punishments for violating these prohibitions, These four prohibitions, proclaimed by the Führer, the highest authority in the Reich, were meant to bring order into what had become a chaotic situation and to mark the end of the persecution of the Jews. Soon there were signs that the Party (by which I mean not only the Party itself, but particularly the SS, SD, Gestapo, Goebbel's Ministry, etc.) had scorned the Nuremberg Laws from the moment they were announced and had no intention of respecting the limits they imposed. The Nuremberg Laws were a thom in their flesh. The following years were punctuated by their repeated assaults on the laws and by demands to suspend or sharpen this or that paragraph. While the legal barrier was never really an obstacle to the spiraling terror, its existence nonetheless served as [an] annoying reminder that the continuing persecution was “illegal.” From September 1935 on, I thus waged a tough battle to prevent the laws from changing— that is, worsening. Even though I was granted nominal success, developments cancelled it out. In December 1941, when I requested to be removed from my position and transferred, Stuckart reproached me for a lack of “dynamism” and for stubbornly clinging to the solution of the Nuremberg Laws, which he called the source of all the difficult tension with Heydrich and the SS (more on this below).”

In that regard, the instant book is mistitled according to Losener:

“It is a misjudgment of historical truth to see all the misery, all the murders and other atrocities committed against the Jews, as simply the result of the Nuremberg Laws— as though they had, in a manner of speaking, unleashed everything Hitler's Germany has on its conscience, or that without them none of this would have happened, or at least taken a less murderous shape. For me, given my knowledge of the facts that never became publicly known, or particularly those that have today slipped from memory, it is a simple statement of objective fact to point out the following: the completely hellish form of the persecution of the Jews in later years became horrible reality not as a result of, but rather despite the Nuremberg Laws. Whoever sees it differently does not know the reality of it. All the atrocities were prompted and carried out by the Party, SS, SD, etc. The RMdI was completely excluded from them, and ail its legal recommendations were disregarded.”

Is this true. Losener's memoirs are biased in favor of protecting Losener, or at least his memory, but it is interesting that he understands that he has to protect himself from the charge that he was an anti-semite. After all, wasn't everyone in that culture an anti-semite? Hadn't antisemitism been a good thing? Had cultural mores changed so much so quickly that he wasn't afraid of being unmasked to other Germans as a “Jew-lover”?

Bryan Mark Rigg in [[ASIN:0700613587 Hitler's Jewish Soldiers: The Untold Story of Nazi Racial Laws and Men of Jewish Descent in the German Military (Modern War Studies) (Modern War Studies (Paperback))]] depicts Losener as something of a hero in his efforts to protect Mischling's legal rights. (The fact that Losener ended up in the custody of the Gestapo because of his very tangential involvement in the July 20 Conspiracy also helps the credibility of Losener's claims.)

Losener also participated in - or drafted - laws that protected Jews in “protected marriages,” i.e., where the Jew was married to an Aryan. The argument that justified protecting these Jews was similar to the one that protected Mischling, namely that persecuting a Jew who was related to an Aryan would inflict suffering on innocent Aryans:

“marriages: I pointed out that one could not also stick the Aryan spouse [of a Jew] and the half Jewish children into a ghetto. The Party (which the “Four Year Plan” had naturally asked for its position) finally gave in, but not without negotiating some concessions. Goering then obtained Hitler's fundamental approval. This is how the concept of “privileged mixed marriages” took shape. The only such marriages excluded from this designation were those in which the children were regarded as Jews, as well as those which were childless and in which the husband was the Jewish spouse. At any rate, according to Paragraph 7 of this law of 30 April 1939, the great majority of all mixed marriages were privileged and freed from its oppressive provisions.”

Under Nazi logic, this argument sold...for some time.

It also saved lives. the diarist Victor Klemperer survived the Nazi regime because of his marriage to his Aryan wife. I've never understood why Klemperer managed to survive, or the significance of this designation, but in an insane world, saving anyone was a blessing.

This book also provides Losener's Nuremberg trial testimony “against” Stuckart. The point of the testimony seems to have been to establish that Stuckart knew about the Holocaust, but Losener seems to depict Stuckart as an accomplice in his efforts to protect Mischling. Interestingly, in “Conspiracy,” the Stuckart character - played by - voices the same, almost pedantic, points while denying that he is a “Jew-lover.” Losener's point about Stuckart's “plan” to sterilize “half-Jews” was that this would protect that group from deportation to death camps, and the sterilization could never occur during the war.

Losener claims that he was never attracted to Nazi anti-semitism, which he thought was campaign hyperbole:

“A. In the political election campaign, it was always customary that before an election took place, enormous exaggerations are voiced. I think it is like this all over the world, and it is also like this in Germany. The slogans on the platforms were exaggerated slogans which were mentioned again and again in order to get the voters over to the side of the Party and to appeal to their baser instincts, and it was customary that every voter who had a mind deducted a lot from the statements made by the electioneers during the election campaign. It has been our experience that after a Party got into power and became responsible for government it would then modify the slogans used during the election campaign. And it was like this that not only I, but many others, thought that the whole propaganda slogans in ethnic problems and racial questions was election propaganda. I myself never believed that these slogans then would be adhered to so literally later on.”

And:

“A. I have to give a longer answer to this question. I said that I was horrified by the extent to which the Party followed up its racial persecution. I realized very soon that it would not be possible for the full-blooded Jews to obtain anything through the Ministry or through the government. The limitless hatred of Hitler and of the Party was too strong for that. However, what I did believe possible was to do something for the so-called “mischlings”, the persons of mixed Jewish blood. In 1933 already the trend of the Party was obviously to equalize the so-called “mischlings” (or persons of mixed Jewish blood) with those of pure Jewish ancestry as far as the laws were concerned. That meant, of course, that the Party would want to extend the laws concerning Jews in general to those with two Jewish grandparents and to those with one Jewish grandparent only. In this field, however, they were rather uncertain yet as to what they were to do and they still listened to arguments on the other side. With my resistance work against the Party, I started on this very point, but my activities were not very effective. My arm, in my capacity as referent, was not long enough. It did not reach far enough. I could only have influence on Party policy through private conversations, and of course, the field of activity was very limited.”

This is an interesting book. I don't know what to make of Losener; I think we need to be careful in claiming him as a “righteous gentile,” but, then, perhaps he was.

In any event, the memoirs are useful background information on the process and players leading to the Holocaust.