The following entry discusses matters treated more extensively by the author in “Carl Schmitt’s Path to Nuremberg: A Sixty-Year Reassessment,” which appears in Telos 139. The issue also includes the first publication of a recently discovered transcript of an interrogation of Schmitt on April 11, 1947, by Nuremberg prosecutor Robert Kempner.
The subject of Carl Schmitt and Nuremberg involves all the major aspects of intriguing historical research. It contains prominent personalities, momentous historical episodes, significant impact on longstanding heated (often hostile) interpretive debates, and decades-long documentary discoveries and revelations. The spatial settings of the collapsed Third Reich and a Nuremberg cell are also dramatic. And within these are juxtaposed—in juridical, intellectual, and moral confrontations—Schmitt and returning émigrés serving in official capacities with the American Military Government (OMGUS) or Nuremberg prosecuting teams. On the surface it appears as a black-and-white story of good and evil, the pursuit of justice against, at best, a significant collaborator and, at worst, the person legally culpable for providing the intellectual and legal foundations for Nazi oppressive policies at home and wars of aggression and war crimes abroad. But as is so often the case in history, this particular morality play is complicated by documentary evidence, which categorically shatters such simplistic dichotomies.
From the time Telos first published the main body of Schmitt’s Nuremberg documentation in 1987 to the latest archival revelations from the papers of Robert M. W. Kempner, the Nuremberg prosecutor, and Karl Loewenstein, the OMGUS advisor in Berlin, the basic narrative has been drastically altered. In this respect, both the documentary and interpretive histories of Schmitt and Nuremberg also serve as landmarks in the progress in this field since the time when, in intellectual discourses in the United States, Schmitt was simply dismissed with the indignant comment of “that war criminal.”
Ironically, it was Schmitt (not Kempner) who first revealed the existence, and then encouraged publication, of the complete documentary record of his interrogations and written disquisitions at Nuremberg. For decades, Kempner held steadfast to the shortened edited version of the transcripts of his interrogations of Schmitt that he published in Das Dritte Reich im Kreuzverhör (1969). The subsequent discovery in the National Archives of the transcripts of three interrogations of Schmitt from April 1947 showed Kempner’s version to be incomplete, distorted, and unreliable. Moreover, Schmitt then made available copies of the important disquisitions that he had written at Nuremberg upon Kempner’s request but which thereafter Kempner never acknowledged. Schmitt had secretly made exact shorthand copies of these disquisitions, later published by Telos in English and Helmut Quaritsch in German. Together, the full interrogations and disquisitions refute the Kempner version of Schmitt as the thinker who not only “poisoned the young” but actually provided the theoretical foundations and motivations for the domestic and foreign policy of the Third Reich, including wars of aggression and war crimes. Most recently, research in the newly available Kempner Papers has brought to light even more unacknowledged documentation, including the originals of Schmitt’s handwritten disquisitions and other revealing documents. Most surprising, however, was the discovery of the only surviving transcript of a fourth (completely unknown) interrogation of Schmitt that had occurred on April 11, 1947. It has now been published for the first time in Telos 139. Aside from its inherent documentary value, this fourth interrogation and related material show that, contrary to other interpretations, Kempner was determined to prosecute Schmitt. Nevertheless, the factual information in Schmitt’s written disquisitions about his actual writings and activities during the Nazi years, combined with the judicial constraints of the trials, quickly proved Kempner’s case of legal culpability unfounded, though discussions of Schmitt’s intellectual and moral responsibility remain open to this day.
The perhaps more important related question of the motives and expectations of those responsible for Schmitt’s various arrests and internments, culminating in Nuremberg, has likewise been illuminated by additional new evidence in the Karl Loewenstein Papers. These papers now provide a fuller, well-documented, and more accurate account than the various contradictory and inaccurate explanations Kempner and others reiterated for over half a century. Among these documents are Loewenstein’s diaries during his service in the legal department of OMGUS in Berlin and his evaluations and initiatives regarding Schmitt contained in his various reports to OMGUS urging Schmitt be arrested and tried as a “war criminal” who “contributed more for the defense of the Nazi regime” than any other individual. The substantial extant evidence clearly contradicts the repeated claims of Kempner and others that Schmitt was already under automatic arrest, interned in Berlin, and sent to Nuremberg at the request of the American Military Government.
Instead, archival material shows that the impetus for the various arrests and internments of Schmitt from August 1945 to April 1947, as well as the push for his prosecution, emanated from German émigrés in OMGUS or with prosecuting teams in Nuremberg. At each stage, they took the initiative and persisted in action against him. Moreover, all had known him personally, or of him professionally, as a colleague, student, and/or political opponent in Weimar and the early stages of the Third Reich. After a year of internment without charges, initiated by an insistent Loewenstein, Schmitt had been cleared by both the American and German authorities because he presented no security threat and no other grounds existed for his incarceration. He was living free in Berlin by October 1945, when months later new initiatives brought his re-arrest and Nuremberg interrogations, where once again, when examined, the evidence showed no case against him.
There are other highly significant dimensions to the information and contentions in the interrogations and reports on Schmitt. Foremost among these is that those seeking his prosecution as a war criminal, for having been an influential Nazi thinker and theoretical “instigator” of wars of aggression and war crimes, had such a superficial grasp of his case. It was all premised upon the faulty assumption that through his work and reputation he had significantly influenced the policies and practices of the Third Reich. This perspective, which had been developed abroad, never attempted a thorough examination of his writings or an analysis of his actual personal, political, and professional relationships with the institutions and policies of the Nazi regime. Indeed, when in his OMGUS reports Loewenstein wrote from personal knowledge of Schmitt in Weimar and an extensive scholarly familiarity with his works at that time, he actually refuted Kempner’s claims that Schmitt had sought to undermine Weimar democracy, establish a dictatorship, and for thirty years promoted the conquest of Europe. For Loewenstein depicts Schmitt as one of the most world-renowned “political writers of our time,” whose analysis of Weimar’s political structure, if followed, “might have led to its preservation.” Moreover, Schmitt’s Verfassungslehre was “probably the best treatise on democratic constitutional law in Germany,” and earlier than most he warned against the “overthrow, by legal methods, of the Weimar Republic by Hitler.” Schmitt’s subsequent turn to Nazism, Loewenstein argued, was an opportunistic path of a morally flawed personality with inherent authoritarian tendencies.
Beyond documentary revelations and contesting narratives, Schmitt’s case again highlights the question of whether one can separate certain ideas (and thus find them incisive and useful) from the personal failings and complex biographies of the thinkers who generate them. More specific to Schmitt, it relates to properly and realistically understanding and judging intellectuals in oppressive and dictatorial regimes, particularly those of a totalitarian and murderous nature. In this respect, Schmitt’s case parallels that of Martin Heidegger. And while one should not avoid, minimize, or excuse the reprehensible compromises that Schmitt did make with the Nazis, the overwhelming amount of evidence clearly establishes that he neither prepared the way for their seizure of power nor provided the theoretical foundations for their policies or practices. The Third Reich was not the fulfillment of his theories, and he did not welcome it enthusiastically as later charged. A perceptive critical analyst of the crisis of Weimar parliamentary government, Schmitt favored strong presidential authority and action to restore and maintain order, peace, and stability in a time of governmental paralysis and latent civil war. He actually did provide the legal and political theories for the Presidential System of Hindenburg (1930 and 1933), in which emergency powers and other legal presidential authorities were used to attempt to stabilize Weimar economically as well as politically. And, as should be common knowledge by this point in the debate, he served as the adviser to Chancellor Schleicher in his efforts to preclude a seizure of power, through force or legal democratic means, by the Communists and Nazis. As Schmitt honestly responded to Kempner during the newly discovered interrogation, “For me the Schleicher government offered the only option to stem the chaos.”
