Source : M. Broszat & H. Krausnick , Anatomy of the SS State (London, 1965), pp.143-173.
Himmler thereupon wrote to the Prussian Minister President on 6 November:
'On the occasion of my interview with the Fuehrer on 1 November 1935, I laid before him the Reich/Prussian Minister of the Interior's memorandum of 29 September forwarded to me on 29 October and requesting subordination of the Stapostellen to the Regierungs-praesidenten with particular reference to the Koenigsberg office and the Oberpraesident of East Prussia. The Fuehrer has decided that no change should be made in the position of the Koenigsberg Gestapo.'
Continuous complaints from representatives of the civil administration nevertheless forced Himmler and Heydrich grudgingly to embark upon negotiations for a new Prussian Gestapo law; after months of wrangling it was eventually issued on 10 February 1936 superseding the 26 April and 30 November 1933 laws. It reads as follows:
'The State Ministry has resolved the following law:
1i The duty of the Gestapo is to investigate and suppress all anti-State tendencies throughout Prussia, to assemble and evaluate the results of any unrest, to keep the State government informed, to keep other authorities abreast of any conclusions of importance to them and to put forward suggestions. The Chief of the Gestapo in agreement with the Minister of the Interior will lay down in detail the duties to be transferred to the Gestapo.
ii The responsibilities of the constituted legal authorities remain unaffected.
2i The Chief of the Gestapo is the Minister President.
ii Current business will be transacted on his behalf by a Deputy Chief of Gestapo nominated by him.
3i The highest Gestapo authority in the Land is the Gestapo. It has the prerogatives of a Land Police authority.
ii The Gestapo is located in Berlin.
4 At intermediate level Gestapo duties will be carried out by Stapostellen in the individual Land Police districts [Landes-polizeibezirke]. Gestapo duties on the frontier will be the responsibility of special frontier commissions. In other respects Gestapo duties will be carried out by the Kreis [district] and Ort [locality] Police authorities acting as agents for the Stapostellen.
5 Stapostellen are at the same time subordinate to the Regierungs-praesident concerned, will conform to his instructions and will keep him informed of all political police matters. The Head of the Stapostelle is at the same time the Regierungspraesident's expert political adviser.
6 Appointment and dismissal of Gestapo officials will be the responsibility of the Chief of the Gestapo in agreement with the Minister of the Interior in accordance with the general legal provisions concerning appointment and dismissal of officials of the Land.
7 Neither the instructions nor the affairs of the Gestapo will be open to review by the administrative courts.
8 The Chief of the Gestapo in agreement with the Minister of the Interior will issue executive instructions for the present law.
9 The law of 26 April 1933 concerning the formation of Gestapo headquarters, the law of 30 November 1933 concerning the Gestapo and paragraphs 1 to 3 of the Executive Ordinance attached to the law of 8 March 1934 on the Gestapo are hereby repealed.
10 The present law will come into force on the day following its promulgation.
Berlin, 10 February 1936. Prussian State Ministry.
(Seal) Goering Frick'
Some indication of the Gestapo's reaction to this law is given in an
article by Dr Best in the periodical Deutsches Recht [German Law] of 15 April 193 6; the article concludes:
'To summarise, it is clear that the principles of the 30 November 1933 Gestapo law were proved sound by more than two years experience and could therefore have been perpetuated in the new law of 10 February 1936. Now, however, the desire of the civil administration authorities to have a hand in the activities of the Gestapo has been largely met.
How far this present arrangement regarding the Prussian Gestapo will develop into one for a future Reich Gestapo depends in details upon the solution of numerous questions concerning future reform of the Reich and the administration. One thing is clear: the basic principles upon which the new political police of the Third Reich has developed must under no circumstances be abandoned if serious damage to the fulfilment of its tasks is to be avoided.'
The reference to the civil administration authorities having a hand in the activities of the Gestapo undoubtedly refers to the paragraph subordinating the Srapostellen to the Regierungspraesidenten. At the same time, however, Stapostellen were also subordinate to Gestapo headquarters and nothing was laid down as to what was to happen if the head of a local Gestapo Office received contradictory instructions from the Gestapo and the Regierungspraesident. Moreover the executive instructions attached to the 10 February law and issued on the same day laid down that the Oberpraesidenten and Regierungspraesidenten were to conform to Gestapo instructions on all matters relating to the Gestapo and that in case of urgency Gestapo offices were entitled to address demands to all police authorities within their area subject only to informing the Landrat [ Land District President or Magistrate]. Dr Best's article quoted above says elsewhere:
'The highest Gestapo authority in a Land is the Gestapo. This makes it clear that no other Ministry is entitled to take final decisions in political police matters. This sets the seal upon the distinction between the Gestapo on the one hand and the administration on the other; the former operates according to special principles and requirements, the latter works on general and regularly legalised rules - and the distinction has been shown to be essential by the foregoing basic considerations.'
Here the decisive point emerges once again: the Gestapo operated upon an entirely different principle from that of the civil administration - not on regularly legalised rules but "according to special principles and requirements". This is tantamount to saying that it operated as the instrument of the Fuehrer's authority and that to execute the Fuehrer's will it had no need of further legitimisation in law. This principle is clearly entirely incompatible with that of the rule of law as applied to governmental action; if recognised to be valid (and that it was so recognised can be deduced from paragraph 7 of the Gestapo law where it was laid down that Gestapo orders and affairs were not subject to review by the administrative courts), then it is clear that any provision subordinating the intermediate and lower level Gestapo offices to the civil administration authorities was illusory; in other words, from the Gestapo point of view it was no more than a minor tactical concession. In individual cases the Gestapo had only to quote its own principles in order to suspend any legally based regulation which might stand in its way. When therefore in an article on the new law in Deutsche Verwaltung [German Administration] a representative of the civil administration said:
'The position of the Gestapo as the highest authority in a Land is therefore of significance primarily from the organisational point of view', he was indulging in pure wishful thinking.
Reichsfuehrer-SS and Chef der
Deutschen Polizei'*
A few months later Himmler and Heydrich recouped themselves handsomelfor the tactical concessions forced on them over the Gestapo law; on 17 June 1936 by decree of the Fuehrer and Chancellor, the Party post of Reichsfuehrer was formally amalgamated with the newly created governmental office of Chief of the German Police. This was the all-important step in transformation of the German Police into an instrument of Fuehrer's authority. But a clear dimust be drawn between two aspects of the creation of this new institution. In the first place the entire German Police Force was how centralised, a process referred to at the time as Verreichlichung ['Reich-ifying']. This was something at which the Reich Ministry of the Interior itself had aimed and it implied no more than a concentration of governmental strings of power. The other aspect, however, was that the Police was now riveted to the SS - and the object of this was to de-governmentalize the Police. A process was thus initiated which first diluted and then gradually obliterated governmental authority over the police - the process of integrating the police into the sphere of authority of the Reichsfuehrer-SS. All attempts by the Reich Ministry of the Interior to prevent this development remained fruitless.
Under the Weimar Republic police authority had rested with the Laender; they were responsible for police organisation, employment and discipline. Article 9 of the Reich Constitution laid down that the Reich Minister of the Interior was responsible only for overall supervision and legislation:
'In so far as the issue of general regulations is required the Reich has legislative authority over
1 Welfare services
2 Preservation of law and order.'
In addition under Article 48 of the Weimar constitution there had been a Reich Executive, an institution used by the National Socialists from 5 March 1933 onwards as a pretext for installing Reich Commissars for Police Affairs in those Laender where they had no parliamentary majority.
* Abbreviated RFSSuChDtPol.
The basic step in the abolition of tile authority of the Laender over their police and therefore in the centralisation of the police force was the 30 January 1934 Law on the Reconstruction of the Reich which in essence transferred the police powers of the Laender to the Reich. An important material step was the amalgamation on 1 November 1934 of the Prussian Ministry of the Interior with that of the Reich, thus placing by far the largest and most powerful police force in the country under control of the Reich Minister of the Interior. A further instance of the centralisation process was the declaration of the Saar police as a Reich police force on 1 March 1935 when the Saarland was re-incorporated into the Reich.
From the outset the SS played a decisive role in the negotiations on centralisation; with unconcealed support from Hitler it made every effort at this juncture to remove the police from the authority of the Minister of the Interior (1). It was probably in May 1936 that Heydrich entered into preliminary verbal negotiations with the Ministry of the Interior; as a result the latter prepared three drafts of a Fuehrer decree concerning 'The concentration of police authority in the Reich'. They proposed that Himmler should be no more than "Inspector of the German Police" and in that capacity subordinate to the Reich Minister of the Interior. Himmler's position at the head of the German police was therefore already accepted as a fact and the - Ministry of the Interior was merely trying to ensure that, as far as possible, he was subject to properly constituted governmental authority. This was of course exactly what Himmler wished to avoid; accordingly on 9 June 1936 he put forward counter-proposals through Heydrich. The latter moreover stated that the Fuehrer wished Himmler to be officially entitled Reichsfuehrer-SS und Chef der deutschen Polizei considering it important that in his new capacity he should be on a level with the Commanders-in-Chief of the Army and Navy. The draft handed over by Heydrich accordingly included the following:
'1 In order to concentrate police responsibility throughout the Reich under one hand, a Chief of the German Police will be appointed; conduct of work on all police matters within the authority of the Reich/Prussian Minister of the Interior will be transferred to him.
2 The Reichsfuehrer-SS Heinrich Himmler will be nominated Chief of the German Police.
He will be personally responsible to the Reich/Prussian Minister of the Interior.
He will be entitled: Reichsfuehrer-SS und Chef der deutschen Polizei.
3 The Chief of the German Police will rank as a Reich Minister and will participate in meetings of the Reich Cabinet.'
Frick, the Reich Minister of the Interior, discussed this draft with Hitler on the same day and attempted to oppose Himmler's demands. He was successful, however, only on the subject of ministerial rank, it being agreed that Himmler should only be summoned to meetings of the Cabinet as a State Secretary (Permanent Official). For the rest all Frick could do after his interview with Hitler was to make a unilateral amendment to Himmler's draft, adding the words "within the Reich Ministry of the Interior" to the title Reichsfuehrer-SS und Chef der deutschen Polizei in the four places where the latter appeared. This was intended to demonstrate that the police remained closely linked to the civil administration. On 11 June, advised by Pfundtner, a Ministry of the Interior official, Frick went so far as to delete Reichsfuehrer-SS from the proposed new official title; the very next day, however, at an interview with Frick, Heydrich insisted upon the original wording and also upon an amendment to the paragraph on Himmler's participation in Cabinet meetings to the effect that he "would" rather than "might" attend. Heydrich did agree a "limiting clause" to the effect that Himmler's attendance at Cabinet would be only in so far as matters connected with the sphere of activity of the RFSSuChDtPol are concerned; what this concession was worth, however, can be judged from the fact that Heydrich - as will be shown later - considered 90 per cent of all administrative matters to be the concern of the police.
The final text of the decree read as follows:
'1 To ensure unified control of police duties in the Reich, a Chief of the German Police will be appointed within the Reich Ministry of the Interior; power of direction and executive authority for all police matters within the sphere of the Reich/ Prussian Ministry of the Interior will be transferred to him.
2 i The Deputy Chief of the Prussian Gestapo, Reichsfuehrer-SS Heinrich Himmler, is hereby nominated Chief of the German Police within the Reich Ministry of the Interior.
ii He will be personally and directly subordinate to the Reich/ Prussian Minister of the Interior.
iii For matters within his sphere he will represent the Reich/ Prussian Minister of the Interior in the latter's absence.
iv His title will be Reichsfuehrer-SS und Chef der deutschen Polizei within the Reich Ministry of the Interior.
3 The Chief of the German Police within the Reich Ministry of the Interior will take part in meetings of the Reich Cabinet in so far as matters within his sphere are concerned.
4 1 hereby charge the Reich/Prussian Minister of the Interior with the execution of this decree
Berlin, 17 June 1936.
The Fuehrer and Reich Chancellor Adolf Hitler
The Reich Minister of the Interior
Frick'
A circular from the Reich/Prussian Minister of the Interior of 15 May 1937 shows the extent to which the Reichsfuehrer-SS und Chef der deutschen Polizei was considered as an independent authority. The Minister criticised certain doubts which had arisen concerning the authority of the "Reichsfuehrer-SS und Chef der deutschen Poliz ei within the Reich Ministry of the Interior", i.e. whether he was empowered to take decisions reserved under law or other regulations to the Minister himself. The circular laid down that within his sphere of responsibility he was the Minister's permanent representative (not merely in the 's absence as in the 17 June decree) and that in every case his decisions were ministerial decisions irrespective of whether the official title of the Ministry or his own special title was used. The effect, therefore, of the establishment of the Chief of Police within the Ministry of the Interior was rather to guarantee to the Chief of Police the rights of a Minister than to establish the Minister's authority over the police. This is reminiscent of Best's on the subordination of local Gestapo offices to the Regierungspraesidenten as being an instance of the civil administration taking a hand in the activities of the Gestapo. It should further be noted that after Himmler himself had become Reich Minister of the Interior and General Plenipotentiary for Reich administration (25 August 1943), from November of that year he allowed the words "within the Ministry of the Interior" to lapse from his official title as Chief of Police.
References:
For details regarding the background to the decree concerned see H.J. Neufeldt's article on the origin and organisation of Ordnungspolizei Headquarters in Schriften des Bundesarchivs No. 3 Koblenz, 1957.
