25 May 2012 By
Jacob G. Hornberger After the 9/11 terrorist attacks, the U.S.
government came up with the idea of instituting
military tribunals for trying suspected terrorists as
a possible alternative to prosecuting them under the
U.S. Code in regular federal courts. Since then, some
terrorist suspects have been accorded the federal
court route, others have been accorded the tribunal
route, and at least one has been treated as both a
criminal defendant and an "enemy combatant." I'll bet lots of Americans think that this idea to
establish a special tribunal to try suspected
terrorists was an original one. Not so. Some 80 years
ago, German chancellor Adolf Hitler did the same
thing. The German special tribunal for trying terrorists
was established in 1934, the year after Hitler became
chancellor. What had precipitated it was a major
terrorist attack on the German Reichstag by suspected
communists. Pursuant to established German legal procedures,
the government prosecuted the Reichstag Fire
defendants in the regular German courts, which
proceeded to acquit some of the defendants. Hitler was outraged. How could any court acquit
people who were obviously guilty of that major
terrorist attack on the German government? How could
any court permit terrorists to go free, enabling them
to commit more acts of terrorism? It was obvious to Hitler that the German courts
could no longer be entrusted with terrorist cases or,
for that matter, cases involving treason. Terrorists
are terrorists, and traitors are traitors. They need
to be punished, not acquitted. The regular German
courts were obviously not equipped to do the job
properly. It was obvious that Germany needed a special
court for trying terrorists and traitors, one where
the outcome would not be in doubt. So, Hitler established a special tribunal for
trying terrorism cases and treason cases. It was
called the "People's Court." Interestingly, Hitler
chose not to turn the matter over to the German
military but instead kept the People's Court under
civilian control. Nonetheless, it was a special
tribunal that would operate independently of the
German judicial system and answer directly to Hitler.
The outcome of trials in the People's Court was
never in doubt. But German officials felt good about
the process because at least people were being
accorded trials before they were found guilty and
punished. The People's Court was where German college
students Hans and Sophie Scholl and the White Rose
advocates were brought to trial. Why were they
prosecuted in the People's Court instead of the
regular German courts? Because as German citizens,
they were being charged with treason, which was
encompassed within the jurisdiction of the People's
Court. What had the Scholls and their White Rose friends
done? They had published pamphlets criticizing the
government's policies, both in domestic affairs and
foreign affairs. The pamphlets called on the German
people to oppose their government and to restore a
legitimate government to Germany. The German authorities considered such conduct
treasonous, especially since the pamphlets were
published and distributed during the middle of World
War II, when German citizens were being exhorted to
support the troops and the war effort. The German authorities did give the Scholl siblings
a speedy trial, one that took place within a couple of
days of their arrest. The trial was conducted in
secret, apparently out of national-security concerns.
The last thing that the authorities wanted was for
Germans to hear what had been printed in the White
Rose pamphlets. In fact, the trial was so secret that when Hans'
and Sophie's parents tried to enter the courtroom,
they were refused admittance. When their mother said
to a guard, "I'm the mother of two of the accused." He
responded, "You should have raised them better." The guard's mindset was not unusual. It was held by
the presiding judge of the People' Court, Roland
Freisler, and, in fact, by most Germans. They took the
position that the Scholl siblings and their friends
were bad people — traitors — for criticizing and
opposing their government during time of war. Hans and Sophie Scholl and several of their friends
received the death penalty and were quickly executed
by guillotine. Just before he was executed,
24-year-old Hans yelled, "Long live freedom!" In a fascinating end to the movie Downfall,
which depicted Hitler's last days in the bunker, his
secretary Traudl Junge, who had been one of the many
"loyal" Germans who had failed to question their
government's policies, stated, ….I was satisfied that I wasn't personally to
blame and that I hadn't known about those things. I
wasn't aware of the extent. But one day I went past
the memorial plaque which had been put up for Sophie
Scholl in Franz Josef Strasse, and I saw that she
was born the same year as me, and she was executed
the same year I started working for Hitler. And at
that moment I actually sensed that it was no excuse
to be young, and that it would have been possible to
find things out." To learn more about how Hitler's People's Court
operated and about the White Rose, see: The White Rose: A Lesson in Dissent" by Jacob G.
Hornberger Jacob Hornberger is founder and president of the
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