Arrests without Warrant or Judicial Review: Preventive Police Action in Nazi Germany, as of February 28, 1933
The Nazis employed a comprehensive strategy to control all aspects of life under their regime. In tandem with a legislative agenda by which they unilaterally required or prohibited certain public and private behaviors, the Nazi leadership dramatically redefined the role of the police, giving them broad powers—independent of judicial review—to search, arrest, and incarcerate real or perceived state enemies and others they considered criminals.
The Supreme Court failed to challenge or protest the loss of judicial authority at this time. In general, it approved of the Nazi leadership's decisive action against left-wing radicals (e.g., communists) that seemed to be threatening the government's stability. Further, the Supreme Court had been the court of first instance for treason cases since the Imperial period but, by the 1930s, it was overburdened with such trials and had endured relentless criticism from all sides for the judgments it rendered. The court was ultimately relieved to have responsibility for political crimes removed from its jurisdiction.
The security police (not to be confused with paramilitary units such as the SS or the SA, which also imposed public order) was composed of two primary arms: the Secret State Police (Gestapo), which investigated political opposition, and the Criminal Police (Kripo), which handled all other types of criminal activity. The Gestapo was empowered to use “protective custody” (Schutzhaft) to incarcerate indefinitely, without specific charge or trial, persons deemed to be potentially dangerous to the security of the Reich. Protective custody had been introduced in the German general law code before World War I to detain individuals for their own protection or to avert an immediate security threat if there were no other recourse. Now the Gestapo employed protective custody to arrest political opponents and, later, Jews, as well as Jehovah's Witnesses who, because of religious conviction, refused to swear an oath to the Nazi German state or to serve in the armed forces. Individuals detained under protective custody were incarcerated either in prisons or concentration camps; within two months of the Reichstag Fire Decree, the Gestapo had arrested and imprisoned more than 25,000 people in Prussia alone.
The Kripo used a similar strategy called “preventive arrest” (Vorbeugungshaft) to seize any individuals determined to be a threat to public order. As the guidelines show, the Kripo was given limitless power for surveillance and was authorized to seize persons on the mere suspicion of criminal activity. As with those held by the Gestapo under protective custody, those held by the Kripo under preventive arrest had no right to appeal or access to a lawyer, and their arrests were not liable to judicial review. They were generally interned directly in a concentration camp for a period determined by the police alone. By the end of 1939, more than 12,000 preventive arrest prisoners were interned in concentration camps in Germany.