At the beginning, Eichmann tried to enter the game and play it according to the new rules; that was when he got involved in the fantastic “blood-for-wares” negotiations—one million Jews for ten thousand trucks for the crumbling German Army— which certainly were not initiated by him. The way he explained his role in this matter, in Jerusalem, showed clearly how he had once justified it to himself: as a military necessity that would bring him the additional benefit of an important new role in the emigration business. What he probably never admitted to himself was that the mounting difficulties on all sides made it every day more likely that he would soon be without a job (indeed, this happened, a few months later) unless he succeeded in finding some foothold amid the new jockeying for power that was going on all around him. When the exchange project met with its predictable failure, it was already common knowledge that Himmler, despite his constant vacillations, chiefly due to his justified physical fear of Hitler, had decided to put an end to the whole Final Solution—regardless of business, regardless of military necessity, and without anything to show for it except the illusions he had concocted about his future role as the bringer of peace to Germany. It was at this time that a “moderate wing” of the S.S. came into existence, consisting of those who were stupid enough to believe that a murderer who could prove he had not killed as many people as he could have killed would have a marvelous alibi, and those who were clever enough to foresee a return to “normal conditions,” when money and good connections would again be of paramount importance.
Eichmann never joined this “moderate wing,” and it is questionable whether he would have been admitted if he had tried to. Not only was he too deeply compromised and, because of his constant contact with Jewish functionaries, too well known; he was too primitive for these well-educated upper-middle-class “gentlemen,” against whom he harbored the most violent resentment up to the very end. He was quite capable of sending millions of people to their death, but he was not capable of talking about it in the appropriate manner without being given his “language rule.” In Jerusalem, without any rules, he spoke freely of “killing” and of “murder,” of “crimes legalized by the state”; he called a spade a spade, in contrast to counsel for the defense, whose feeling of social superiority to Eichmann was more than once in evidence. (Servatius' assistant Dr. Dieter Wechtenbruch—a disciple of Carl Schmitt who attended the first few weeks of the trial, then was sent to Germany to question witnesses for the defense, and reappeared for the last week in August—was readily available to reporters out of court; he seemed to be shocked less by Eichmann's crimes than by his lack of taste and education. “Small fry,” he said; “we must see how we get him over the hurdles”—wie wir das Würstchen über die Runden bringen. Servatius himself had declared, even prior to the trial, that his client's personality was that of “a common mailman.”)
When Himmler became “moderate,” Eichmann sabotaged his orders as much as he dared, to the extent at least that he felt he was “covered” by his immediate superiors. “How does Eichmann dare to sabotage Himmler's orders?”— in this case, to stop the foot marches, in the fall of 1944—Kastner once asked Wisliceny. And the answer was: “He can probably show some telegram. Müller and Kaltenbrunner must have covered him.” It is quite possible that Eichmann had some confused plan for liquidating Theresienstadt before the arrival of the Red Army, although we know this only through the dubious testimony of Dieter Wisliceny (who months, and perhaps years, before the end began carefully preparing an alibi for himself at the expense of Eichmann, to which he then treated the court at Nuremberg, where he was a witness for the prosecution; it did him no good, for he was extradited to Czechoslovakia, prosecuted and executed in Prague, where he had no connections and where money was of no help to him). Other witnesses claimed that it was Rolf Günther, one of Eichmann's men, who planned this, and that there existed, on the contrary, a written order from Eichmann that the ghetto be left intact. In any event, there is no doubt that even in April, 1945, when practically everybody had become quite “moderate,” Eichmann took advantage of a visit that M. Paul Dunand, of the Swiss Red Cross, paid to Theresienstadt to put it on record that he himself did not approve of Himmler's new line in regard to the Jews.
That Eichmann had at all times done his best to make the Final Solution final was therefore not in dispute. The question was only whether this was indeed proof of his fanaticism, his boundless hatred of Jews, and whether he had lied to the police and committed perjury in court when he claimed he had always obeyed orders. No other explanation ever occurred to the judges, who tried so hard to understand the accused, and treated him with a consideration and an authentic, shining humanity such as he had probably never encountered before in his whole life. (Dr. Wechtenbruch told reporters that Eichmann had “great confidence in Judge Landau,” as though Landau would be able to sort things out, and ascribed this confidence to Eichmann's need for authority. Whatever its basis, the confidence was apparent throughout the trial, and it may have been the reason the judgment caused Eichmann such great “disappointment”; he had mistaken humanity for softness.) That they never did come to understand him may be proof of the “goodness” of the three men, of their untroubled and slightly old-fashioned faith in the moral foundations of their profession. For the sad and very uncomfortable truth of the matter probably was that it was not his fanaticism but his very conscience that prompted Eichmann to adopt his uncompromising attitude during the last year of the war, as it had prompted him to move in the opposite direction for a short time three years before. Eichmann knew that Himmler's orders ran directly counter to the Führer's order. For this, he needed to know no factual details, though such details would have backed him up: as the prosecution underlined in the proceedings before the Supreme Court, when Hitler heard, through Kaltenbrunner, of negotiations to exchange Jews for trucks, “Himmler's position in Hitler's eyes was completely undermined.” And only a few weeks before Himmler stopped the extermination at Auschwitz, Hitler, obviously unaware of Himmler's newest moves, had sent an ultimatum to Horthy, telling him he “expected that the measures against Jews in Budapest would now be taken without any further delay by t he Hungarian government.” When Himmler's order to stop the evacuation of Hungarian Jews arrived in Budapest, Eichmann threatened, according to a telegram from Veesenmayer, “to seek a new decision from the Führer,” and this telegram the judgment found “more damning than a hundred witnesses could be.”
Eichmann lost his fight against the “moderate wing,” headed by the Reichsführer S.S. and Chief of the German Police. The first indication of his defeat came in January, 1945, when Obersturmbannführer Kurt Becher was promoted to Standartenführer, the very rank Eichmann had been dreaming about all during the war. (His story, that no higher rank was open to him in his outfit, was a half-truth; he could have been made chief of Department IV-B, instead of occupying the desk of IV-B-4, and would then have been automatically promoted. The truth probably was that people like Eichmann, who had risen from the ranks, were never permitted to advance beyond a lieutenant colonelcy except at the front.) That same month Hungary was liberated, and Eichmann was called back to Berlin. There, Himmler had appointed his enemy Becher Reichssonderkom-missar in charge of all concentration camps, and Eichmann was transferred from the desk concerned with “Jewish Affairs” to the utterly insignificant one concerned with the “Fight Against the Churches,” of which, moreover, he knew nothing. The rapidity of his decline during the last months of the war is a most telling sign of the extent to which Hitler was right when he declared, in his Berlin bunker, in April, 1945, that the S.S. were no longer reliable.
In Jerusalem, confronted with documentary proof of his extraordinary loyalty to Hitler and the Führer's order, Eichmann tried a number of times to explain that during the Third Reich “the Führer's words had the force of law” (Führerworte haben Gesetzeskraft), which meant, among other things, that if the order came directly from Hitler it did not have to be in writing. He tried to explain that
this was why he had never asked for a written order from Hitler (no such document relating to the Final Solution has ever been found; probably it never existed), but had demanded to see a written order from Himmler. To be sure, this was a fantastic state of affairs, and whole libraries of very “learned” juridical comment have been written, all demonstrating that the Führer's words, his oral pronouncements, were the basic law of the land. Within this “legal” framework, every order contrary in letter or spirit to a word spoken by Hitler was, by definition, unlawful. Eichmann's position, therefore, showed a most unpleasant resemblance to that of the often-cited soldier who, acting in a normal legal framework, refuses to carry out orders that run counter to his ordinary experience of lawfulness and hence can be recognized by him as criminal. The extensive literature on the subject usually supports its case with the common equivocal meaning of the word “law,” which in this context means sometimes the law of the land—that is, posited, positive law—and sometimes the law that supposedly speaks in all men's hearts with an identical voice. Practically speaking, however, orders to be disobeyed must be “manifestly unlawful” and unlawfulness must “fly like a black flag above [them] as a warning reading: ‘Prohibited!’” —as the judgment pointed out. And in a criminal regime this “black flag” with its “warning sign” flies as “manifestly” above what normally is a lawful order—for instance, not to kill innocent people just because they happen to be Jews—as it flies above a criminal order under normal circumstances. To fall back on an unequivocal voice of conscience—or, in the even vaguer language of the jurists, on a “general sentiment of humanity” (Oppenheim-Lauterpacht in International Law, 1952)—not only begs the question, it signifies a deliberate refusal to take notice of the central moral, legal, and political phenomena of our century.
To be sure, it was not merely Eichmann's conviction that Himmler was now giving “criminal” orders that determined his actions. But the personal element undoubtedly involved was not fanaticism, it was his genuine, “boundless and immoderate admiration for Hitler” (as one of the defense witnesses called it)—for the man who had made it “from lance corporal to Chancellor of the Reich.” It would be idle to try to figure out which was stronger in him, his admiration for Hitler or his determination to remain a law-abiding citizen of the Third Reich when Germany was already in ruins. Both motives came into play once more during the last days of the war, when he was in Berlin and saw with violent indignation how everybody around him was sensibly enough getting himself fixed up with forged papers before the arrival of the Russians or the Americans. A few weeks later, Eichmann, too, began to travel under an assumed name, but by then Hitler was dead, and the “law of the land” was no longer in existence, and he, as he pointed out, was no longer bound by his oath. For the oath taken by the members of the S.S. differed from the military oath sworn by the soldiers in that it bound them only to Hitler, not to Germany.
The case of the conscience of Adolf Eichmann, which is admittedly complicated but is by no means unique, is scarcely comparable to the case of the German generals, one of whom, when asked at Nuremberg, “How was it possible that all you honorable generals could continue to serve a murderer with such unquestioning loyalty?,” replied that it was “not the task of a soldier to act as judge over his supreme commander. Let history do that or God in heaven.” (Thus General Alfred Jodl, hanged at Nuremberg.) Eichmann, much less intelligent and without any education to speak of, at least dimly realized that it was not an order but a law which had turned them all into criminals. The distinction between an order and the Fiihrer's word was that the latter's validity was not limited in time and space, which is the outstanding characteristic of the former. This is also the true reason why the Führer's order for the Final Solution was followed by a huge shower of regulations and directives, all drafted by expert lawyers and legal advisers, not by mere administrators; this order, in contrast to ordinary orders, was treated as a law. Needless to add, the resulting legal paraphernalia, far from being a mere symptom of German pedantry or thoroughness, served most effectively to give the whole business its outward appearance of legality.
And just as the law in civilized countries assumes that the voice of conscience tells everybody “Thou shalt not kill,” even though man's natural desires and inclinations may at times be murderous, so the law of Hitler's land demanded that the voice of conscience tell everybody: “Thou shalt kill,” although the organizers of the massacres knew full well that murder is against the normal desires and inclinations of most people. Evil in the Third Reich had lost the quality by which most people recognize it the quality of temptation. Many Germans and many Nazis, probably an overwhelming majority of them, must have been tempted not to murder, not to rob, not to let their neighbors go off to their doom (for that the Jews were transported to their doom they knew, of course, even though many of them may not have known the gruesome details), and not to become accomplices in all these crimes by benefiting from them. But, God knows, they had learned how to resist temptation.
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IX: Deportations from the Reich—Germany, Austria, and the Protectorate
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Between the Wannsee Conference in January, 1942, when Eichmann felt like Pontius Pilate and washed his hands in innocence, and Himmler's orders in the summer and fall of 1944, when behind Hitler's back the Final Solution was abandoned as though the massacres had been nothing but a regrettable mistake, Eichmann was troubled by no questions of conscience. His thoughts were entirely taken up with the staggering job of organization and administration in the midst not only of a world war but, more important for him, of innumerable intrigues and fights over spheres of authority among the various State and Party offices that were busy “solving the Jewish question.” His chief competitors were the Higher S.S. and Police Leaders, who were under the direct command of Himmler, had easy access to him, and always outranked Eichmann. There was also the Foreign Office, which, under its new Undersecretary of State, Dr. Martin Luther, a protégé of Ribbentrop, had become very active in Jewish affairs. (Luther tried to oust Ribbentrop, in an elaborate intrigue in 1943, failed, and was put into a concentration camp; under his successor, Legationsrat Eberhard von Thadden, a witness for the defense at the trial in Jerusalem, became Referent in Jewish affairs.) It occasionally issued deportation orders to be carried out by its representatives abroad, who for reasons of prestige preferred to work through the Higher S.S. and Police Leaders. There were, furthermore, the Army commanders in the Eastern occupied territories, who liked to solve problems “on the spot,” which meant shooting; the military men in Western countries were, on the other hand, always reluctant to cooperate and to lend their troops for the rounding up and seizure of Jews. Finally, there were the Gauleiters, the regional leaders, each of whom wanted to be the first to declare his territory judenrein, and who occasionally started deportation procedures on their own.
Eichmann had to coordinate all these “efforts,” to bring some order out of what he described as “complete chaos,” in which “everyone issued his own orders” and “did as he pleased.” And indeed he succeeded, though never completely, in acquiring a key position in the whole process, because his office organized the means of transportation. According to Dr. Rudolf Mildner, Gestapo head in Upper Silesia (where Auschwitz was located) and later chief of the Security Police in Denmark, who testified for the prosecution at Nuremberg, orders for deportations were given by Himmler in writing to Kaltenbrunner, head of the R.S.H.A., who notified Müller, head of the Gestapo, or Section IV of R.S.H.A., who in turn transmitted the orders orally to his referent in IV-B-4—that is, to Eichmann. Himmler also issued orders to the local Higher S.S. and Police Leaders and informed Kaltenbrunner accordingly. Questions of what should be done with the Jewish deportees, how many should be exterminated and how many spared for hard labor, were also decided by Himmler, and his orders concerning these matters went to Pohl's W.V.H.A., which communicated them to Richard Glücks, inspector of the co
ncentration and extermination camps, who in turn passed them along to the commanders of the camps. The prosecution ignored these documents from the Nuremberg Trials, since they contradicted its theory of the extraordinary power held by Eichmann; the defense mentioned Mildner's affidavits, but not to much purpose. Eichmann himself, after “consulting Poliakoff and Reitlinger,” produced seventeen multi-colored charts, which contributed little to a better understanding of the intricate bureaucratic machinery of the Third Reich, although his general description was always in a state of continuous flux, a steady stream”—sounded plausible to the student of totalitarianism, who knows that the monolithic quality of this form of government is a myth. He still remembered vaguely how his men, his advisers on Jewish matters in all occupied and semi-independent countries, had reported back to him “what action was at all practicable,” how he had then prepared “reports which were later either approved or rejected,” and how Miller then had issued his directives; “in practice this could mean that a proposal that came in from Paris or The Hague went out a fortnight later to Paris or The Hague in the form of a directive approved by the R.S.H.A.” Eichmann's position was that of the most important conveyor belt in the whole operation, because it was always up to him and his men how many Jews could or should be transported from any given area, and it was through his office that the ultimate destination of the shipment was cleared, though that destination was not determined by him. But the difficulty in synchronizing departures and arrivals, the endless worry over wrangling enough rolling stock from the railroad authorities and the Ministry of Transport, over fixing timetables and directing trains to centers with sufficient “absorptive capacity,” over having enough Jews on hand at the proper time so that no trains would be “wasted,” over enlisting the help of the authorities in occupied or allied countries to carry out arrests, over following the rules and directives with respect to the various categories of Jews, which were laid down separately for each country and constantly changing—all this became a routine whose details he had forgotten long before he was brought to Jerusalem.