That Eichmann had at all times done his best to make the Final Solution final was therefore not in dispute. The question was only whether this was indeed proof of his fanaticism, his boundless hatred of Jews, and whether he had lied to the police and committed perjury in court when he claimed he had always obeyed orders. No other explanation ever occurred to the judges, who tried so hard to understand the accused, and treated him with a consideration and an authentic, shining humanity such as he had probably never encountered before in his whole life. (Dr. Wechtenbruch told reporters that Eichmann had “great confidence in Judge Landau,” as though Landau would be able to sort things out, and ascribed this confidence to Eichmann's need for authority. Whatever its basis, the confidence was apparent throughout the trial, and it may have been the reason the judgment caused Eichmann such great “disappointment”; he had mistaken humanity for softness.) That they never did come to understand him may be proof of the “goodness” of the three men, of their untroubled and slightly old-fashioned faith in the moral foundations of their profession. For the sad and very uncomfortable truth of the matter probably was that it was not his fanaticism but his very conscience that prompted Eichmann to adopt his uncompromising attitude during the last year of the war, as it had prompted him to move in the opposite direction for a short time three years before. Eichmann knew that Himmler's orders ran directly counter to the Führer's order. For this, he needed to know no factual details, though such details would have backed him up: as the prosecution underlined in the proceedings before the Supreme Court, when Hitler heard, through Kaltenbrunner, of negotiations to exchange Jews for trucks, “Himmler's position in Hitler's eyes was completely undermined.” And only a few weeks before Himmler stopped the extermination at Auschwitz, Hitler, obviously unaware of Himmler's newest moves, had sent an ultimatum to Horthy, telling him he “expected that the measures against Jews in Budapest would now be taken without any further delay by t he Hungarian government.” When Himmler's order to stop the evacuation of Hungarian Jews arrived in Budapest, Eichmann threatened, according to a telegram from Veesenmayer, “to seek a new decision from the Führer,” and this telegram the judgment found “more damning than a hundred witnesses could be.”
Eichmann lost his fight against the “moderate wing,” headed by the Reichsführer S.S. and Chief of the German Police. The first indication of his defeat came in January, 1945, when Obersturmbannführer Kurt Becher was promoted to Standartenführer, the very rank Eichmann had been dreaming about all during the war. (His story, that no higher rank was open to him in his outfit, was a half-truth; he could have been made chief of Department IV-B, instead of occupying the desk of IV-B-4, and would then have been automatically promoted. The truth probably was that people like Eichmann, who had risen from the ranks, were never permitted to advance beyond a lieutenant colonelcy except at the front.) That same month Hungary was liberated, and Eichmann was called back to Berlin. There, Himmler had appointed his enemy Becher Reichssonderkom-missar in charge of all concentration camps, and Eichmann was transferred from the desk concerned with “Jewish Affairs” to the utterly insignificant one concerned with the “Fight Against the Churches,” of which, moreover, he knew nothing. The rapidity of his decline during the last months of the war is a most telling sign of the extent to which Hitler was right when he declared, in his Berlin bunker, in April, 1945, that the S.S. were no longer reliable.
In Jerusalem, confronted with documentary proof of his extraordinary loyalty to Hitler and the Führer's order, Eichmann tried a number of times to explain that during the Third Reich “the Führer's words had the force of law” (Führerworte haben Gesetzeskraft), which meant, among other things, that if the order came directly from Hitler it did not have to be in writing. He tried to explain that this was why he had never asked for a written order from Hitler (no such document relating to the Final Solution has ever been found; probably it never existed), but had demanded to see a written order from Himmler. To be sure, this was a fantastic state of affairs, and whole libraries of very “learned” juridical comment have been written, all demonstrating that the Führer's words, his oral pronouncements, were the basic law of the land. Within this “legal” framework, every order contrary in letter or spirit to a word spoken by Hitler was, by definition, unlawful. Eichmann's position, therefore, showed a most unpleasant resemblance to that of the often-cited soldier who, acting in a normal legal framework, refuses to carry out orders that run counter to his ordinary experience of lawfulness and hence can be recognized by him as criminal. The extensive literature on the subject usually supports its case with the common equivocal meaning of the word “law,” which in this context means sometimes the law of the land—that is, posited, positive law—and sometimes the law that supposedly speaks in all men's hearts with an identical voice. Practically speaking, however, orders to be disobeyed must be “manifestly unlawful” and unlawfulness must “fly like a black flag above [them] as a warning reading: ‘Prohibited!’” —as the judgment pointed out. And in a criminal regime this “black flag” with its “warning sign” flies as “manifestly” above what normally is a lawful order—for instance, not to kill innocent people just because they happen to be Jews—as it flies above a criminal order under normal circumstances. To fall back on an unequivocal voice of conscience—or, in the even vaguer language of the jurists, on a “general sentiment of humanity” (Oppenheim-Lauterpacht in International Law, 1952)—not only begs the question, it signifies a deliberate refusal to take notice of the central moral, legal, and political phenomena of our century.
To be sure, it was not merely Eichmann's conviction that Himmler was now giving “criminal” orders that determined his actions. But the personal element undoubtedly involved was not fanaticism, it was his genuine, “boundless and immoderate admiration for Hitler” (as one of the defense witnesses called it)—for the man who had made it “from lance corporal to Chancellor of the Reich.” It would be idle to try to figure out which was stronger in him, his admiration for Hitler or his determination to remain a law-abiding citizen of the Third Reich when Germany was already in ruins. Both motives came into play once more during the last days of the war, when he was in Berlin and saw with violent indignation how everybody around him was sensibly enough getting himself fixed up with forged papers before the arrival of the Russians or the Americans. A few weeks later, Eichmann, too, began to travel under an assumed name, but by then Hitler was dead, and the “law of the land” was no longer in existence, and he, as he pointed out, was no longer bound by his oath. For the oath taken by the members of the S.S. differed from the military oath sworn by the soldiers in that it bound them only to Hitler, not to Germany.