Parallel to the murders in occupied Poland, it was an irreversible advance in the direction of genocide. The programme — euphemistically called the ‘euthanasia action’ — to kill the mentally ill and others incurably sick that he launched in autumn 1939 was to provide a gangway to the vaster extermination programme to come. And, like the destruction of European Jewry, it was evidently linked in his own mind with the war that, he was certain, would bring the fulfilment of his ideological ‘mission’.
It was some time in October that Hitler had one of his secretaries type, on his own headed notepaper and backdated to 1 September 1939 — the day that the war had begun — the single sentence: ‘Reichsleiter Bouhler and Dr med. Brandt are commissioned with the responsibility of extending the authority of specified doctors so that, after critical assessment of their condition, those adjudged incurably ill can be granted mercy-death.’ He took a pen and signed his name below this lapidary, open-ended death-sentence.124
By this time, the killing of mental patients, already authorized verbally by Hitler, was well under way. It suited neither Hitler’s style nor his instinct to transmit lethal orders in writing. The reason he did so on this one and only occasion was because of the difficulties, in a land where the writ of law was still presumed to run, already being encountered by those attempting, without any obvious authority, to build an organization in conditions of secrecy to implement a murderous mandate.125 Even then, knowledge of Hitler’s written authorization was confined to as few persons as possible. It was ten months later, on 27 August 1940, before even the Reich Minister of Justice, Franz Gürtner, faced with growing criticism of the illegality of what was inevitably leaking more and more into the open, was shown a facsimile of it.126
Indeed, there was no basis of legality for what was taking place. Hitler explicitly refused to have a ‘euthanasia’ law, rejecting the prospect of a cumbersome bureaucracy and legal constraints.127 Even according to the legal theories of the time, Hitler’s mandate could not be regarded as a formal Führer decree and did not, therefore, possess the character of law.128 But an order from the Führer, whatever its legal status, was nonetheless seen as binding.129 That applied also to Reich Justice Minister Gürtner. Once he had seen with his own eyes that Hitler’s will stood behind the liquidation of the mentally sick, and that it was not the work of Party underlings operating without authority, he gave up his attempts on legal grounds to block or regulate the killings.130 To a courageous district judge, Lothar Kreyssig, who had written frank protest letters to him about the crass illegality of the action, and on being shown Hitler’s authorization had exclaimed that even on the basis of positivist legal theory wrong could not be turned into right, Gürtner gave a simple reply: ‘If you cannot recognize the will of the Führer as a source of law, as a basis of law, then you cannot remain a judge.’ Kreyssig’s notice of retirement followed soon afterwards.131
The exchange between Gürtner and Kreyssig shows how far the acceptance of ‘Führer power’ had undermined the essence of law. The genesis of the ‘euthanasia action’ that Hitler authorized in writing in October 1939 provides, beyond that, a classic example of the way ‘working towards the Führer’ converted an ideological goal into realizable policy.
Hitler was indispensable to the process. His well-aired views from the 1920s on ‘euthanasia’ served after 1933 as an encouragement to those, most notably represented in the National Socialist Doctors’ League but by no means confined to fanatical Nazis, anxious to act on the ‘problem’ of what they described as the ‘ballast’ of society (
The notion of the ‘destruction of life not worth living’
