Hence, after the tape-recorder had addressed the court, the death sentence was a foregone conclusion, even legally, except for the possibility that the punishment might be mitigated for acts done under superior orders—also provided for in Section 11 of the Israeli law, but this was a very remote possibility in view of the enormity of the crime. (It is important to remember that counsel for the defense pleaded not superior orders but “acts of state,” and asked for acquittal on that ground—a strategy Dr. Servatius had already tried unsuccessfully at Nuremberg, where he defended Fritz Sauckel, Plenipotentiary for Labor Allocation in Göring's Office of the Four-Year Plan, who had been responsible for the extermination of tens of thousands of Jewish workers in Poland and who was duly hanged in 1946. “Acts of state,” which German jurisprudence even more tellingly calls gerichtsfreie or justizlose Hoheitsakte, rest on “an exercise of sovereign power” [E. C. S. Wade in the British Year Book for International Law, 1934] and hence are altogether outside the legal realm, whereas all orders and commands, at least in theory, are still under judicial control. If what Eichmann did had been acts of state, then none of his superiors, least of all Hitler, the head of state, could be judged by any court. The “act of state” theory agreed so well with Dr. Servatius' general philosophy that it was perhaps not surprising that he should have tried it out again; what was surprising was that he did not fall back on the argument of superior orders as an extenuating circumstance after the judgment had been read and before the sentence was pronounced.) At this point, one was perhaps entitled to be glad that this was no ordinary trial, where statements without bearing on the criminal proceedings must be thrown out as irrelevant and immaterial. For, obviously, things were not so simple as the framers of the laws had imagined them to be, and if it was of small legal relevance, it was of great political interest to know how long it takes an average person to overcome his innate repugnance toward crime, and what exactly happens to him once he has reached that point. To this question, the case of Adolf Eichmann supplied an answer that could not have been clearer and more precise.
In September, 1941, shortly after his first official visits to the killing centers in the East, Eichmann organized his first mass deportations from Germany and the Protectorate, in accordance with a “wish” of Hitler, who had told Himmler to make the Reich judenrein as quickly as possible. The first shipment contained twenty thousand Jews from the Rhineland and five thousand Gypsies, and in connection with this first transport a strange thing happened. Eichmann, who never made a decision on his own, who was extremely careful always to be “covered” by orders, who—as freely given testimony from practically all the people who had worked with him confirmed—did not even like to volunteer suggestions and always required “directives,” now, “for the first and last time,” took an initiative contrary to orders: instead of sending these people to Russian territory, Riga or Minsk, where they would have immediately been shot by the Einsatzgruppen, he directed the transport to the ghetto of Lódz, where he knew that no preparations for extermination had yet been made—if only because the man in charge of the ghetto, a certain Regierungspräsident Uebelhör, had found ways and means of deriving considerable profit from “his” Jews. (Lódz, in fact, was the first ghetto to be established and the last to be liquidated; those of its inmates who did not succumb to disease or starvation survived until the summer of 1944.) This decision was to get Eichmann into considerable trouble. The ghetto was overcrowded, and Mr. Uebelhor was in no mood to receive newcomers and in no position to accommodate them. He was angry enough to complain to Himmler that Eichmann had deceived him and his men with “horsetrading tricks learned from the Gypsies.” Himmler, as well as Heydrich, protected Eichmann and the incident was soon forgiven and forgotten.
Forgotten, first of all, by Eichmann himself, who did not once mention it either in the police examination or in his various memoirs. When he had taken the stand and was being examined by his lawyer, who showed him the documents, he insisted he had a “choice”: “Here for the first and last time I had a choice…. One was Lódz…. If there are difficulties in Lódz, these people must be sent onward to the East. And since I had seen the preparations, I was determined to do all I could to send these people to Lódz by any means at my disposal.” Counsel for the defense tried to conclude from this incident that Eichmann had saved Jews whenever he could—which was patently untrue. The prosecutor, who cross-examined him later with respect to the same incident, wished to establish that Eichmann himself had determined the final destination of all shipments and hence had decided whether or not a particular transport was to be exterminated—which was also untrue. Eichmann's own explanation, that he had not disobeyed an order but only taken advantage of a “choice,” finally, was not true either, for there had been difficulties in Lódz, as he knew full well, so that his order read, in so many words: Final destination, Minsk or Riga. Although Eichmann had forgotten all about it, this was clearly the only instance in which he actually had tried to save Jews. Three weeks later, however, there was a meeting in Prague, called by Heydrich, during which Eichmann stated that “the camps used for the detention of [Russian] Communists [a category to be liquidated on the spot by the Einsatzgruppen] can also include Jews” and that he had “reached an agreement” to this effect with the local commanders; there was also some discussion about the trouble at Lódz, and it was finally resolved to send fifty thousand Jews from the Reich (that is, including Austria, and Bohemia and Moravia) to the centers of the Einsatzgruppen operations at Riga and Minsk. Thus, we are perhaps in a position to answer Judge Landau's question—the question uppermost in the minds of nearly everyone who followed the trial—of whether the accused had a conscience: yes, he had a conscience, and his conscience functioned in the expected way for about four weeks, whereupon it began to function the other way around.
Even during those weeks when his conscience functioned normally, it did its work within rather odd limits. We must remember that weeks and months before he was informed of the Führer's order, Eichmann knew of the murderous activities of the Einsatzgruppen in the East; he knew that right behind the front lines all Russian functionaries (“Communists”), all Polish members of the professional classes, and all native Jews were being killed in mass shootings. Moreover, in July of the same year, a few weeks before he was called to Heydrich, he had received a memorandum from an S.S. man stationed in the Warthegau, telling him that “Jews in the coming winter could no longer be fed,” and submitting for his consideration a proposal as to “whether it would not be the most humane solution to kill those Jews who were incapable of work through some quicker means. This, at any rate, would be more agreeable than to let them die of starvation.” In an accompanying letter, addressed to “Dear Comrade Eichmann,” the writer admitted that “these things sound sometimes fantastic, but they are quite feasible.” The admission shows that the much more “fantastic” order of the Führer was not yet known to the writer, but the letter also shows to what extent this order was in the air. Eichmann never mentioned this letter and probably had not been in the least shocked by it. For this proposal concerned only native Jews, not Jews from the Reich or any of the Western countries. His conscience rebelled not at the idea of murder but at the idea of German Jews being murdered. (“I never denied that I knew that the Einsatzgruppen had orders to kill, but I did not know that Jews from the Reich evacuated to the East were subject to the same treatment. That is what I did not know.”) It was the same with the conscience of a certain Wilhelm Kube, an old Party member and Generalkommissar in Occupied Russia, who was outraged when German Jews with the Iron Cross arrived in Minsk for “special treatment.” Since Kube was more articulate than Eichmann, his words may give us an idea of what went on in Eichmann's head during the time he was plagued by his conscience: “I am certainly tough and I am ready to help solve the Jewish question,” Kube wrote to his superior in December, 1941, “but people who come from our own cultural milieu are certainly something else than the native animalized hordes.” This sort of conscience, which, if it rebelled at all, rebelled at murder of people “from our own cultural milieu,” has survived the Hitler regime; among Germans today, there exists a stubborn “misinformation” to the effect that “only” Ostjuden, Eastern European Jews, were massacred.