SIR DAVID MAXWELL-FYFE: My Lord, might I mention the letter from General Warlimont which we discussed yesterday in connection with Dr. Laternser's application to call Colonel Buerker. My Lord, the Prosecution had the opportunity of considering the letter and they are quite prepared to admit that the part of the letter which relates to Colonel Buerker that is, Division "A" of the letter, contains what Colonel Buerker would say if he were called. We are quite prepared to make the admission or stipulation which your Lordship suggested yesterday. The other parts of the letter, "B" and "C," relate to a statement of General Warlimont himself, and a statement of a Major Meier. Dr. Laternser has not made any application with regard to these parts and he is quite prepared that they should not be read. Dr. Laternser is prepared to agree with our suggestion that the first part relating to Colonel Buerker be treated as the evidence that Colonel Buerker would have given if he were called.

THE PRESIDENT: Then perhaps you will read Paragraph "A" of the letter?

DR. LATERNSER: I shall read from a letter from General Warlimont:

"Nuremberg, 23 August 1946. To Attorney Dr. H. Laternser."

I shall leave out part of it and I begin at:

"(A) About 10 or 14 days ago, early in the morning, there came to see me in the generals' camp at Dachau a colonel of the General Staff of the former German Army, Buerker, who is also detained there, and whom I have known for many years. He told me that he had learned from the radio news the evening before of the Russian accusation against the OKW for alleged preparation of bacterial warfare. In this connection he recollected an incident during his short activity as Chief of the Organization Department of the Armed Forces Operations Staff, which he related to me more or less as follows:..."

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And now comes a direct quotation:

"In the autumn of 1943, probably in late September, there came to see me in my office three gentlemen who were unknown to me. One of them belonged to the Army Medical Inspection, and the second presumably was from the research office of the Army Ordnance Branch; as to the third I can no longer recall his name nor to which office he was attached. They explained to me that in their opinion research work for countering any bacterial warfare from the enemy side was no longer adequate. Their mission, which was exclusively limited to research for defense purposes, would have to be extended. They were convinced that it was essential to exhaust every possibility, even to the extent of a counterattack which might be contemplated. The gentlemen urged me to discuss this with the Chief of the OKW (Keitel). I had only just taken over the position of Chief of the Organization Department at the beginning of September 1943, after 2 months' preparatory training with my predecessor, Colonel Muench (who was killed in action), and up to then had not heard anything at all about this matter. When making my next report to the Chief of the OKW I brought up the matter. He was extremely angry, and said to me in an unusually sharp tone, 'That was forbidden a long time ago and there ran be no question of such a thing, or words to that effect."

THE PRESIDENT: Dr. Kubuschok.

DR. EGON KUBUSCHOK (Counsel for the Reich Cabinet): Mr. President, Gentlemen of the Tribunal: The proceedings which the Prosecution proposes to conduct against the organizations are in many respects an innovation. For the first time organizations with millions of members stand before the judge of a criminal court, for the first time a judgment is awaited with respect to the civilian and military leaders of a state. This brings to light the importance as well as the complexity of proceedings of that kind. It therefore follows that it is the duty of counsel for each organization to deal generally with all the factual and legal problems of these proceedings.

The Prosecution base their indictment on the hypothesis that according to general principles of law there exists a collective criminal responsibility, and that in consequence a criminal condemnation of a group as such is also possible. They attempt to justify this criterion of law by examples from the penal laws of various civilized countries; it becomes clear, however, that none of the examples mentioned amount to a criminal condemnation of the organizations as such, but only to the condemnation of the individual because of his membership in an organization declared

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criminal. Nor could it be otherwise. Criminal responsibility can only apply to an individual. All criminal law is based upon the concept of guilt, the recognition of a criminal act as such, and the firm determination to carry out this act. Only the individual has the faculty to recognize and to form a will, and therefore to have a concept of guilt.

It is a different matter whether, as a result of the developments of our age, responsibility of the organization is established for the domain in which, because of its very nature, it is bound to harm the interests of the state. We are here concerned with infringements of administrative order, not with the domain of criminality rooted in ethics. Laws were created to prevent these infringements, to punish the organizations as such because of their responsibility in producing pernicious effects and to do so by means which can be applied to the organizations as such. A punishment under administrative law, or a fine because of prejudicing state interests by an organization, is practicable, and for the sake of expediency the laws of various countries have regulated it. This procedure is based on a merely objective establishment of the facts as distinct from an examination of the question of guilt, which is not possible.

Using this as a starting point, we must examine what the significance is of the conviction which the Prosecution has demanded. First of all this requires an establishment of the facts of historical portent. Furthermore, the establishment of the criminal character of the organization represents a retroactive outlawing of the organization, which in the meantime has been legally and actually dissolved; and, what is more, it includes all members of the organization. Such a declaration of criminality involves them all, and by its effect, to use Mr. Justice Jackson's words, the "bad" elements are segregated from the "good" elements.

Finally, and this is the decisive and at the same time the most problematical implication of such a declaration: by virtue of Control Council Law Number 10 it creates to a large extent the establishment of guilt for the individual member. The Control Council Law Number 10 is as yet a skeleton law, so to speak. Article II d provides that membership in an organization declared criminal by the Tribunal is liable to punishment. Once the Tribunal has given such a judgment, the former gap in the criminal provision is fined. The name of the convicted organization then, so to speak, becomes part of the wording of the penal provision. The criminal nature of the organization is now no longer a characteristic of the facts. Therefore, there is no need for the individual perpetrator to know of this characteristic of the organization. The criminal action now to be adjudicated by the court of the Control Council Law arises from the mere fact of membership. Therefore, only the objective

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and subjective elements of membership as such are subject to adjudication by the Court. The individual member who in this Trial is called to account is faced with an incidental decision already reached, which deprives him of all other subjective and objective pleas which do not concern his membership as such. When the question of his guilt comes up, he can no longer plead that he did not know of the criminal aims of the organization, that he did not foster them, no longer advance motives for his entering into the organization or remaining a member of it.

The incidental determination goes even further and affects the very substance of Article II, Figure 2 e, of the Control Council Law, according to which each member of an organization declared criminal also shares the responsibility for all the crimes which the condemned organization is charged with having committed.

In actual fact, the conviction of the organization constitutes a conviction of the individual member who belonged to the organization. The fiction of criminal responsibility of the organization thus brings about what no system of criminal procedure which has ever existed has so far recognized: the guilt of the members is abstractly disassociated from them, and transferred in toto to the organization, with the result that, the guilt of the organization having been established, it is no longer necessary to furnish complete proof of the guilt of the individual member.

If one considers these consequences and the inescapable effect which the declaration has of proscribing all members, the definition of "criminal character" to be applied by the Court to the organization because of the absence of legal provisions can have but one result: the individual member will of necessity be included in the Court's argumentation; the concept of the organization can be understood merely as the sum total of individual members. This means that the procedure for the determination of guilt now advocated must be dealt with as a procedure against the individual members, not against what is abstractly termed an organization. This recognition gives rise to the difficulty of the present proceedings which, according to the statement made by the Prosecution, are expected to facilitate the procedure of the subsequent trials; but according to the generally adopted viewpoint of the individual guilt of the perpetrator, this actually means the shifting of the determination to another court. It is true that this Court has an advantage arising from the fact that, because of its connection with the proceedings against the 21 major defendants, it can with greater ease and with more uniformity form an idea of the actual basic questions. To shift basic decisions to a court which of necessity must take a global view of all the historical events is in itself a laudable thought, but one should not ignore the

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limits of what is possible in practice. If the Court had merely been given the task of determining historical events and of judging whether a group of members of the organizations indicted participated in them, this task could be solved with comparative ease. In this case, however, the Court is given the task of making a declaration on the total aims and the total results of the activities of an organization, a declaration which in the light of the foregoing must take into consideration the knowledge, will, and action of each individual member of the organization. This gives rise to the difficulty of finding a basis for a judgment which is in accordance with the wording of the Indictment.

Another general legal viewpoint cannot be omitted in order to arrive at the definition of the concept of "criminal organization." By the pronouncement of proscription, already inherent in the verdict, and by the incidental determination, which is to be valid for the subsequent proceedings, the proceedings affect each member of the organization. Because of his membership he is to be outlawed and punished. The law which retroactively declares punishable the membership in the organizations under discussion is undoubtedly a new law. The legal aspect of the retroactive law has already been dealt with in the proceedings against the 21 individual defendants. The Prosecution at that time declared that in, applying a retroactive law there was justification for including actions which the perpetrator at the time of their commission knew to constitute an infraction of the general moral and ethical laws, or universal laws. However, the case is different when it comes to the indictment of the organizations. The judgment is not now concerned with the fact that an individual perpetrator committed a criminal act regardless of his awareness of its general condemnation, although at the time of commission a law against it did not exist. The point now to be decided is whether a person incriminates himself by being a member of an organization. Assuming that the organization in question actually had and carried out aims which were contrary to the general law of ethics or to universal laws, this does not of itself establish that the member of the organization was aware of his guilt by becoming a member or continuing to be a member. An organization ran be criminal, or its activities can be criminal, but it does not necessarily follow that the individual member who joins it or remains in it, even though he may have knowledge thereof, must under all circumstances take upon himself the guilt of those who set the criminal aims and were active in carrying them out. This becomes particularly evident in the case of an organization whose purpose was originally legal and which subsequently set

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for itself and pursued a goal partly or entirely illegal. A member who still remains in it may do so from various motives, not necessarily immoral ones. It is quite conceivable that such a member resolves to remain in the organization because he believes that in so, doing he may be able to influence the execution of the illegal aims, that is, either to prevent them totally or partly, or at least to attenuate them. In regard to the criminal deed with which he is charged, arising from the mere fact of membership in the organization, such a member is not aware of a criminal or even a moral wrong. He can judge his membership in the organization merely in the light of the law which was in force at the time when his action was committed. This can only be the law of his own country. A member can be incriminated only on the basis of what the laws and jurisdiction of his country have established in terms of criminal responsibility arising from membership in organizations. I therefore must confine my discussion to that which so far was known abstractly to a German national about the law and jurisdiction in connection with that question. There are very few German penal laws which deal with criminal membership in an organization. In his speech of 28 February 1946 Mr. Justice Jackson discussed these laws. All these laws govern only individual proceedings against a member.

The established opinion of German jurisprudence and adjudication on Articles 128 and 129 of the Penal Code, and other similar provisions of law dealing with the question of membership, is that formal membership is not sufficient to establish the facts involved in a case of criminal law, but rather continued activity to achieve the illegitimate aims of the organization. The member must prove his membership in the organization by his deed, and he must consciously further the illegitimate aims by his actions. It is not deemed sufficient that the member, having knowledge of the illegitimate aims of the organization, should outwardly proclaim his membership, thereby expressing his approval of the aims endorsed by his membership, but he must participate in the achievement of the aims by his own activity in the organization. Therefore, according to German law, it is immaterial whether the outward appearance of his membership can be construed to mean that he approves of the aims of the organization and thus possibly enhances in any way the reputation of the organization before the world. This eliminates all cases where proof of the knowledge of criminal aims or of active participation, by the member in the achievement of these aims is not forthcoming; also it particularly eliminates those cases where the member disapproved of the aims and did everything in his power to prevent the achievement of the aims, or at least to mitigate them.

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A member of an association could therefore, if he had moral unobjectionable reasons for joining or remaining in an association, rely on this abstract German legal principle. Therefore a retroactive law which makes the simple fact of membership punishable cannot possibly furnish the justification sought by the Prosecution in the case of individual defendants. Here there is no infraction of a general legal disposition or general moral principles which originally must necessarily make him conscious of the illegality of his conduct. Such a violation is, provided the reasons for becoming or remaining a member are not morally objectionable, not established. In order to establish the concept of "criminal organization!' underlying its judgment, the Court must take into consideration the knowledge and activity of the individual member. It must be established that through his membership in the organization the member approved of its criminal aims, and actually advanced them by his own activity. In defining the criminal concept it will have to be borne in mind that all crimes mentioned in, Article 6 of the Charter concern unlawful warfare, and that especially the crimes against humanity, Article 6 (c), must be connected with the planning or execution of such a war.

In summarizing I should therefore like to establish the following: An organization can be declared criminal only if all the individual members conceived a common plan for an unlawful war, or if they joined in a war which gave rise to the crimes willed by the planners, as stated in the Charter. The individual members not only must have joined the organization with such knowledge, but they also must have consciously advanced these aims by their activity. I do not deny that the Tribunal faces a very difficult task in connection with this legal argumentation. In my deduction I started out from the Prosecution's concept that the proposed declaration would also comprise the question of guilt of the individual member, and that in subsequent proceedings such a member is reduced merely to the objections which refer to the fact of the membership itself. An absolutely necessary consequence of this concept is that the Tribunal will have to apply its decision to the sum total of cases of individual members, in order to prevent the decision issued from embracing also the verdict of guilty against all individual members without an individual examination of the, question of guilt having been carried through for each individual, whereby the innocent in fact would be declared accomplices indiscriminately and without having been heard. The only means to avoid this would be for a modified verdict merely to establish objective historic events without thereby at the same time taking a decision as to the individual member and his subjective guilt. It is quite clear to me that such a modification would give rise to legal scruples with

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regard to the Law of the Control Council. As it is, we can approve of such a solution only if the Court can eliminate these scruples and actually guarantee thereby that in later proceedings the case of each individual member be examined to the extent which I have mentioned. If the organization in the last analysis is conceived as representing the bulk of the individual members, this will lead to the conclusion that the shaping of its purpose presupposes a general expression of the will of all members. Without the totality of the members, a change in the purpose of an existing organization cannot be realized. All members must at least know the new aim and must be determined to sponsor it. Otherwise, if this new aim be a criminal one, the previous legal organization would be split in two, one with legal tendencies and another with criminal ones. It would then be impossible to declare the entire organization to be a criminal one.

Furthermore, the question is to be examined as to whether it is sufficient, in establishing the criminal character of an organization, that a further criminal purpose be added to a hitherto legal one. Here also my previous conclusion should be considered that the definition "criminal" must comprise the total aim of the organization as a body. Should the criminal purpose be only a part of the aim and sufficient to allow the whole of the organization to be declared a criminal one, the legal aim would be simultaneously discredited by this general definition. Would not then even those acts which were committed for the purpose of the fulfillment of the legal aims, be illegal ones as acts of an entirely criminal association? In respect to the case of the Reich Cabinet it seems impossible to me to declare this institution as such to be definitely criminal, whereas at the same time there can be no doubt that at least the legal acts were fully legal in their effect. The legislation of the Reich Cabinet since 30 January 1933, which comprises all state administrations, has still today its predominant legal force. It would be an absurdity to consider these legislative acts as valid, if the aim of the Cabinet was unrestrictedly criminal. Another presupposition for the declaration proposed by the Prosecution, which we must consider, is the freedom to join the organization, freedom which must not only be present at the joining of the organization, but also particularly at the changing of the original aim When remaining in the organization. It must therefore be actually examined whether the right to remain in the Cabinet voluntarily was always conceded, or whether the legal and actual conditions abolished that right, at least from a certain date onwards.

Finally the question must be examined as to whether there existed throughout a cohesive connection between the persons who

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are indicted as members of the Reich Cabinet. Only such a connection would justify any acts charged to the Reich Cabinet being considered as having been committed by the Cabinet as a whole. This problem is already evident, because the Prosecution, who for their part also generally consider a cohesive co-operation of the members of the organization to be necessary, have legally established the unity of persons which they designate as "Reichsregierung" by the criterion of the right to participate in the meetings of the Cabinet. As these Cabinet sessions were discontinued in the course of time, it remains to be examined whether afterwards, in their stead, there was any other tie which bound the members in the same way in the performance of the activity under consideration by the Prosecution. Starting from these general, considerations dealing with the organizational problem as such, and the special problem of the case of the Reich Cabinet, the result of the evidence must now be examined in order to establish whether the requirements for a sentence exist as argued.

First, I wish to turn to the numerical limitation of the circle of persons indicted. The Prosecution start from the right to participate in the Cabinet sessions. They thereby suppose that the criminal activity assumed by them took place within the framework of the personal connection afforded by the sessions. They overlook, however, the fact that a number of persons mentioned in Appendices A and B of the trial brief were merely entitled to participate in those deliberations of the Cabinet sessions which concerned their own administrative sphere. The Prosecution obviously desire to stress the resolution of all the participants, particularly in matters of general politics, so that those members who were entitled to attend the consultations only occasionally and in part must, as a matter of course, be excepted from the organization in question. I therefore refer to Appendices A and B, where the Prosecution have stated the extent of the right of participation for each of the persons mentioned.

With reference to Appendix B, I should like to state that the commanders-in-chief of the Wehrmacht branches, that is, Fritsch, Brauchitsch, Raeder, and Doenitz, were only entitled to participate in Cabinet meetings on the basis of the Fuehrer directive of 25 November 1938, that is to say, not generally. With reference to the legal point in the case of Keitel I refer to Dr. Nelte's final speech. Schirach also had the right to participate only when his sphere of activities was involved. In the case of Axmann this is shown correctly in Appendix B, but in the case of Schirach it has been overlooked. In this respect, therefore, we have to supplement the list in Appendix B with reference to Fritsch, Brauchitsch, Raeder, Doenitz, Keitel, and Schirach. In addition to the above conclusion,

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I believe that Reich Commissioner Gereke's right of participation was also restricted. Moreover, this case seems equally worthy of mention because Gereke resigned already in April 1933.

In this connection those who, while they had the right of participation in the Cabinet sessions, had no voting right and were only present for information, should also be mentioned. In this category were the Chief of the Press, Dietrich, and State Minister Meissner.

The question of the voluntary status of membership in the Reich Cabinet cannot be answered uniformly. In dealing with the question of voluntary entry into the Cabinet, those cases will particularly have to be considered, in which state secretaries who previously did not belong to the circle of persons included by the Prosecution were, through, the resignations of the ministers over them, immediately entrusted with the conduct of ministerial affairs and thus entitled to participation in the Cabinet sessions. To a certain extent their entry into their new post must be considered as part of their civil service career.

The question of a member's remaining in the Cabinet must be judged differently according to the time. Legally, the following must be borne in mind in this respect: According to Article 11 of the Reich Minister Act of 27 March 1930, the Reich Ministers could ask for their release at any time. An alteration of the legal position could already have occurred by virtue of the Ministers' Allegiance Act of 17 October 1934, which is Document Number 22. According to this, the ministers had to swear allegiance and obedience to Hitler. A letter of resignation could be construed as a breach of allegiance and obedience and therefore be considered legally inadmissible. The question can however really be left at that. The legal consequences deriving from the ministers' oath are in any case expressly and legally established by the German Civil Service Act of 26 January 1937 (2340-PS), which was put into effect on 1 July 1937. By this law the Reich Minister Act of 27 March 1930 was cancelled. Article 161 stipulated that the Reich Ministers could now be discharged by Hitler alone.

Legally, therefore, it was no longer possible for a Cabinet member to resign after 1 July 1937. It will be objected that nevertheless cases occurred where Cabinet members obtained their release. The cases of Gereke, Hugenberg, Papen, Schmitt, and Eltz von Ruebenach are prior to this time and must therefore be excluded.

In the subsequent period various Cabinet members endeavored to resign. They mostly failed, as we have heard on many occasions, during the hearings of the individual defendants. Many only succeeded in being discharged from their department while being provided with a new title or a new office, so that they again came

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within the category of persons implicated by the Prosecution. Darre was relieved of his official functions and even expelled, but could not obtain his official dismissal as minister. Schacht had for that reason been preparing to break with Hitler for a long time, which brought him into a concentration camp; State Minister Popitz was executed as a participant in the plot of 20 July 1944.

Thus we see that in spite of the legal position, it was actually not possible for a member of the Cabinet to resign against Hitler's will. Even the Prosecution admit that, apart from the voluntary status of membership, a cohesive co-operation of the members must be established in order to consider the Reich Cabinet as an organization or group within the meaning of the Charter. They hold that this cohesive association can be seen in the Cabinet meetings and the circulating procedure. I shall show by the following that there was no such collective co-operation among the members of the Cabinet, and that as time went on there was even a definitive split in the Cabinet. The evidence shows that three interlocking factors brought about a split in any internal cohesion of the Cabinet. These three factors are as follows:

(1) The development of Hitler's absolute domination, which increased until it became an absolute dictatorship;

(2) The establishment of superior and subordinate offices among the Cabinet ministers originally possessing equal rights within the Cabinet, through the authority to give orders conferred on the plenipotentiaries, special delegates, et cetera;

(3) A carefully guarded secrecy which precluded the individual minister from gaining any knowledge outside his department, and thus made any super-departmental co-ordination impossible.

In this connection it is necessary to consider historically the state of affairs as it developed, and to find the reasons. Until 1932 one might feel inclined to assume that the Reich Cabinets displayed a certain "cabinet solidarity." At that time Cabinet meetings were continuously taking place, during which all bills as well as differences of opinion on questions which affected the sphere of several ministers were submitted for consideration and decision. Resolutions were passed on the majority of votes. Even at that time and at that stage of practice and knowledge the idea of a collective responsibility of ministers was rejected. In the authoritative Manual of German Constitutional Law (Handbuch des Deutschen Staatsrechts) by Anschuetz and Thoma, the well-known lecturer on constitutional law, Baron Marshal von Bieberstein, wrote in 1930, Page 529; I quote:

"General principles throw a most doubtful light upon the affirmation of collective responsibility for majority decisions because, especially in jurisprudence, one can only talk of

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responsibility in regard to rational beings. An established state practice in the sense of such an affirmation cannot be proved for the Reich; on the contrary, the competent ministers make themselves personally responsible ... Above all, German political practice does not know the principle of 'cabinet solidarity' as admitted abroad, especially in England, which involves a collective liability for all individual actions ..."

This denial of a collective liability holds good not only for the responsibility of the ministers to the Reichstag, but also in the proceedings before the State Tribunal, before which the ministers could be indicted and sentenced for their activity, much in the same way as the English "impeachment."

Moreover, at that time already a restriction was placed on the passing of resolutions by the Cabinet, and thus on the free decisions of the ministers, by the right of the Reich Chancellor to determine the policy for which he then bore' the sole responsibility. There were no discussions and consultations about these directives of the Reich Chancellor; they were binding upon the ministers. Bieberstein wrote about this in his thesis, on Page 528:

"The situation is different as regards the encroachments which ... his (the minister's) free decision suffers through the binding force of the Chancellor's directives. Since it was his duty to conform with these, his position was similar to that of a subordinate in the hierarchy of authorities in regard to the orders of a superior; thus he himself was not able to examine whether in his conduct he was complying with duty, and the result was that he could only show that he had acted in accordance with orders, and not whether he had acted rightly. Thus the responsibility is shifted to the person giving the orders."

This was equally true of the proceedings before the State Court, the German "impeachment."

Thus we have to admit that, already in a period of a purely democratic German form of government and state procedure, "cabinet solidarity" did not exist in spite of regular Cabinet meetings, and that the ministers certainly did not work in cohesive cooperation as soon as at the Cabinet meeting the Reich Chancellor asserted his right to determine policy.

For the period prior to the establishment of the Hitler Government, it will further have to be considered that the government authority had slowly devolved upon the person of the Reich President by the application of the Emergency Decree Law. Already at that time the normal legislative body, the Reichstag, was enacting laws only to a diminishing extent; the decisive laws were being issued

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by the Reich President on the strength of the Emergency Decree Law. The ministers, therefore, were no more than advisers of the Reich President. It is a symptom of this development that the Papen Cabinet had already been, established purposely by Hindenburg as a Presidential Cabinet, whereby the Cabinet was composed of people in whom Hindenburg had confidence, and whom he had appointed as departmental ministers. The position of the Reich Chancellor therefore gained considerably in importance, because neither the ministers nor the Reich Chancellor had been appointed as exponents of the parties, with the result that their position with relation to the parties was more independent than had been the case previously. The Reich Chancellor was the liaison man between the Cabinet and the Reich President. It was this position in particular which gave him a distinct superiority over the other ministers.

That was the situation when Hitler became Reich Chancellor. In its early stages his Cabinet also was a Presidential Cabinet, which depended on the confidence of the Reich President and his Emergency Decree Law. Up to the time of the passing of the Enabling Act of 24 March 1933, all laws were issued on the strength of the emergency powers and therefore were under the responsibility of the Reich President.

The Enabling Act was the decisive factor in the further development. The legislative powers were now transferred to the Reich Cabinet. These were not conferred on Hitler personally but on the Reich Cabinet. I do not claim that the Reichstag of that time already regarded Hitler as the Reich Cabinet. But it is certain that the Reichstag was influenced by the system of emergency decrees which had been the Government's policy for a long time. Therefore by its nature this new emergency legislation created by the Reichstag had no other purpose than to legalize this state of affairs for a future emergency. Thus a Reich Cabinet whose inner structure and working methods had been shaped during the time of the Presidential Cabinet came to hold power. It is true that the sole responsibility, such as was assumed by the Reich President when passing the emergency decrees, was not transferred to Hitler. Yet to a certain extent he filled the gap caused by the elimination of the Reich President. This became apparent to the outside when the Reich President's right to sign laws was transferred to him. To this was added his right as Chancellor to determine the basic guiding principles of policy. Both factors together doubtlessly resulted in a considerable strengthening of Hitler's position and power in the Cabinet over and against his ministers. The seeds for his later autocracy had been sown.

At first this was not clearly manifest in the working methods of the Cabinet. True, resolutions were no longer passed, but objections

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by the ministers were taken into consideration, which in individual cases led to the withdrawal or modification of radical bills. Nevertheless the Reich Chancellor's right to determine the principles of political directives was already more manifest. Hitler laid claim to this right for himself and made it clear that the responsibility was his alone. But more important than this development within the Cabinet were the influences from outside. The Party now set to work and took upon itself everything the Government was careful to refrain from doing. The boycott of the Jews and the smashing of the trade unions were measures taken by the Party. The ideas of the Party began to take hold of the masses. They undertook what the Party liked to term a "revolution." The witness Gisevius has summarized this development in the following terms, which are taken from his book, Pages 141 to 143:

"It is not individuals that espouse the cause of National Socialism; it is the masses which are roused. Because nobody wants to lag behind events, all strive together to outstrip the revolutionary development by a short lead. These easily swayed impulses, this irrational spiritual upheaval of the masses can alone explain the Nazi co-ordination which occurred in the early summer of 1933 with sudden intensity, although voluntarily and spontaneously.... As a mass they

create a new will, open up a new road."

This movement also gripped the old political parties. They dissolved themselves voluntarily. They went even further; they assured Hitler that their former members would loyally collaborate with the National Socialist State; they called upon their former members to do so. The Bavarian People's Party

"...cleared the way for every former member of their party to collaborate in the construction of the new Germany under Adolf Hitler's direct leadership."

The Catholic Party by its dissolution -- I quote --

"...enabled its supporters to put their forces and experience unreservedly at the disposal of the national front under the leadership of the Reich Chancellor for positive collaboration in the consolidation of our national, social, economic, and cultural life, and to work for the reconstruction of a state order based on law."

Even the Social Democrat Party partly followed, when the provincial committee of the Social Democrat Party of Wuerttemberg suggested to the holders of their mandates

"...to carry on their activity in such a way as to leave no doubt as to their national sentiments or their good will to support Germany's new political structure according to the plans of the national revolution."

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The attitude of the masses, similarly influenced, is reflected in the results of the Reichstag election of 12 November 1933, in which over 90 percent of the electors voted for the NSDAP. I am aware of the fact that the correctness of these election results and the method of carrying out the election have been questioned. Whatever may have happened in regard to influencing and falsifying the election, one thing must have been clear to any impartial observer of the conditions prevailing at that time: that such manipulations can hardly have been of such significance that they could by themselves have brought about an overwhelming majority. It cannot be denied that in the conditions as they were at that time the majority of the voters, in the hope of bringing about a change of the existing difficult situation, put their trust in the Party, in which they believed they already saw the partial success of its economic measures. If one considers how the ideas of the Party had taken hold of the masses, and how the idea of the Party centered around the personality of Adolf Hitler, the result of the voting and the public feeling at the time was in itself a confirmation of the leadership idea. The vote was a carte blanche for the Supreme Party Leader, the Leader of the Cabinet, the Reich Chancellor.

By this development, Hitler's claim to power was strengthened on the one hand, while on the other most of the Cabinet members did not feel that they ought to prevent such a development. These considerations may also have been influenced by the realization that they could not effectively oppose Hitler's seizure of power. In the main one restricted oneself, therefore, to seeking to avoid a radical development and, as far as possible, to render less rigorous those changes made outside the state apparatus. Thus we see legislation clearing up a situation created from without, giving it legally a more moderate orderly form. If the members of the Cabinet are reproached for moderating illegal conditions and yet at the same time giving them a legal basis, such reproaches should mainly be directed at the men from the non-radical camp in the Cabinet. When the Reich Cabinet was formed, they had been appointed with intent to restrict National Socialist influence, but later they failed to use all their efforts to stem the disastrous development. They should have warned the easily-influenced irrational masses and even have resigned from office, protesting loudly. It is idle to examine whether the conduct of these men was politically right or not, whether they were weak men who believed that they should avoid a perhaps hopeless resistance. Me criminal aspect of these things can really only be judged from the angle as to whether it could be discerned at that time that the development was a preparation for the things that happened later and which are indicted under the Charter. If by the formation of the Cabinet a real revolution, a civil war, was

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avoided, they were entitled to believe that they might thus at least sacrifice something to popular feeling in order to avoid a dangerous reaction of the incited masses. It was not unreasonable to hope that this trend would remain within the bounds of legality and reason and find its natural level. Politically, this was doubtless a false idea. The radical tendencies of those who even after that kept tending towards extremes were underestimated. It must be borne in mind, however, that those Cabinet members who came from the non-radical parties still clung to the idea that the responsible leader of the State would bring reason to bear and call a halt to this trend.

Those ministers who did not agree with this course tried to halt the development, but with diminishing success. Their attempts met with still less success when the authority of the Reich President, the weight of the bourgeois Right and the position of the Reichswehr ceased to form a counter-balance. Hitler understood how to use Hindenburg for his own purpose. The bourgeois Right no longer presented a closely united front; many dissented and went over to the National Socialists. The parties dissolved themselves, and their followers were now robbed of their cohesion; Blomberg became a follower of Hitler. The ministers concerned had no support from any other quarter. Hitler made full use of the fact that he had been called by the people and that he was solely responsible to the people. To make open protest would have been impossible. The publication of Papen's Marburg speech was prohibited; his exit from the Cabinet as the result of this only served to make the circle of ministers dissatisfied with developments smaller and thereby less influential. Any minister who entertained thoughts of resigning knew that his post would be filled by a new man who would not hinder, but would only further this development. Any minister who really had the interests of his department at heart did not like the idea of transferring his field of work into these new hands. It is clear that those who were confronted with this question did not want to endanger that which they in their fields of activity had laboriously achieved by curbing and correcting the effects of the laws, in conducting their policy as regards personnel and in other ways, and all they wanted to do was to continue this work also in the future.

The Head of the State Law of 1 August 1934 is the legal conclusion and the final word of the previous development. It is a Cabinet law. Hitler demanded the consolidation of his office with that of Reich President. According to his declaration this consolidation was not to be the final solution; only the momentary situation was to be considered, which was that he personally would not recognize a new head of the State above himself, although on the other hand he could not give up his office as Reich Chancellor. He

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pointed out that this measure would be sanctioned by a referendum, to take place after the death of Hindenburg. In this state of affairs the Cabinet did not consider themselves able to oppose the demand of Hitler. The result of the plebiscite was a foregone conclusion. In any case Hitler would have achieved his aim, even if the Cabinet had refused to pass the law. The Cabinet law of 1 August 1934 is therefore actually nothing but a preparatory law, which in any case could be and was achieved by a plebiscite. The legal sanctioning of the dictatorship therefore was only a confirmation of the powers held hitherto, and a consequence of the overwhelming will of the people at that time.

This law clarified the situation not only as regards power-policy, but also as regards constitutional law. The law represents the complete establishment of the monocratic principle in the state sector. In his person Hitler consolidated the rights of the Reich President, especially the Emergency Decree Law, with the right of the Reich Chancellor to determine the fundamental principles of policy. As Commander-in-Chief of the Armed Forces he finally held in his hand the strongest instrument of power in the State. Actually every state organ became dependent on his will and had to follow his directions. The Reich Cabinet was not excepted. This became outwardly apparent by the law concerning the oath of the Reich Ministers of 16 October 1934. The new oath for the ministers was the same as the general oath for civil servants and soldiers, and showed that the position of the minister had changed to that of a high-level state official bound by directives.

In line with this legal situation, the working procedure of the Cabinet and the significance of the Cabinet sessions also underwent a change. Insofar as foreign policy decisions were concerned, Hitler only announced what his resolve was, mostly in one long monologue on the general political situation. Later on he only informed the Cabinet of the accomplished facts. He informed the Cabinet of the occupation of the Rhineland after the troops had already entered it. In the case of fundamental domestic political measures, for example the Nuremberg Laws, the Cabinet was not previously consulted. The majority of the ministers were surprised when the law was proposed in the Reichstag Session of the Nuremberg Party Rally. In the drafting of minor laws of administrative importance only the completed draft and the reasons for it were submitted. In order to avoid the expression of departmental objections in a Cabinet session, the drafts were previously made "cabinet-ripe" in accordance with a directive of Hitler, that is to say, the departmental ministers were given the opportunity in a preliminary discussion to voice their departmental objections to the minister responsible for the initial draft. Only after these

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objections had been removed did the draft reach the Cabinet session. Therefore, no allowance was made for a consultation in the Cabinet session. General political considerations which concerned these drafts were subject to the sole decision of Hitler. If therefore a general political question did arise, about which Hitler's point of view was not yet known, the department was not able to deal with it until his directive had been obtained. Thus the Cabinet sessions not only lacked all political significance, but also all practical purpose. Hitler therefore convoked the Cabinet at less and less frequent intervals, until finally, after a last session in February 1938, which was merely called to listen to a statement by Hitler, no further Cabinet sessions whatsoever took place.

Henceforth the Cabinet sessions were completely replaced by circulation procedure. The working minister submitted the bills to the other members of the Cabinet to enable them to raise objections in their own departmental fields. It stands to reason that basic political questions and political measures which Hitler decided as he saw fit were never dealt with by the circulation procedure. As was shown during the hearing of the witnesses, most of the ministers did not know any more about important political events than any other person. In most cases they learnt of the facts afterwards by press or radio, unless it happened that something leaked through to them through secret channels which they too were forbidden to use. This may have happened more frequently in the sphere of the ministers than elsewhere. But this casual information did not give a comprehensive and authenticated total picture of the actual situation. Only the few close confidants of Hitler were really fully and authentically acquainted with the events. This confidence, however, was not necessarily given to a person occupying the post of a minister. The overwhelming majority of the ministers who did not belong to this close circle learned for example of the march into Austria, of the setting-up of a Protectorate, and of the introduction of the various war measures only after the measures had become effective and been publicized.

The circulation procedure did not bring about any personal cohesion among the ministers. Even though as a rule the bills were submitted to all ministers -- although this was not always done, as shown by Schacht's testimony -- this did not mean a joint collaboration among all the ministers. This was only done to enable each minister to examine whether the interests of his department might be affected by the draft. The individual minister was thereby more strictly limited to his particular department, His task was merely to submit the objections of his department and to see to it that the powers of his department were not diminished

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or its competence impugned. Departmental interests are special interests and if things are restricted to them no room is left for general aims and purposes. The whole manner and form of the circulation procedure was designed to avoid close co-operation among the ministers.

In the last phase of the development this intention of Hitler manifests itself clearly and openly. The hearing of the witnesses has shown that his ministers, except for the very small number who enjoyed his confidence, were not allowed access to him for years on end and that all efforts of the ministers to this end were in vain. Several ministers made attempts to have the Cabinet meetings reintroduced, thus to provide an opportunity to express their opinion and obtain information. Hitler refused this with the remark that he wished to have nothing more to do with this defeatists' club. He even forbade a personal gathering of the ministers arranged by Lammers in the form of an evening beer party.

If the Prosecution work on the assumption that the Cabinet members as a group held the authoritative power in the conduct of the State and wilfully directed its whole policy towards a contemplated, unlawful war, then it can be said in rebuttal that the Cabinet had disintegrated and was no longer a cohesive whole; out of this there had evolved a single directing head in the person of Hitler. Other facts too, prove that there was no functional cohesion between the ministers. Between Hitler's directives and their execution by the departments of the individual ministers, high-level offices were inserted, which, in their turn, had authority to issue directives to the minister. The departmental minister was thereby even further removed from the headquarters of the decisive authority; he was now merely the executive agent of two superimposed directing offices. The "Delegate for the Four Year Plan," the "Ministerial Council for the Defense of the Reich," the "Plenipotentiary General for the Allocation of Labor," and similar offices were created by Hitler himself and provided with full legislative powers by him personally. Not only were these offices able to compel the departmental minister to issue specific administrative directives and ordinances, but, what is more, they could themselves issue these directives to the subordinate offices over the heads of the departmental ministers. This dismemberment was obviously brought about by Hitler intentionally. The Cabinet as an apparatus for the execution of his legislative orders seemed too unwieldy, too complicated and too obstructive, and the position of the minister in his department still too independent. He therefore delegated legislative power to isolated or minor groups who, as men enjoying his special trust, insured the prompt execution of his wishes. By the creation of these new subordinate offices, he restricted the power

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of the department. Amidst the confusion of the complex relations between the various levels, the difficulty of defining where competencies and authorities began and ended, Hitler's order was the

ultimate remedy, the sole reliable guide. His directive now became more than ever indispensable, and the ministers had to refer to it. The picture given by the Prosecution of a close group assembled in Cabinet sessions and functioning efficiently is thus considerably altered. An entirely new state apparatus was put into operation, a culmination of absolute powers in the person of Hitler, with an intermediate stratum, introduced by Hitler and subordinate only

to him, in the form of the newly-created institutions discussed above, headed by men who were not all members of the Reich Cabinet as defined by the Prosecution, and finally the various

departmental ministers as executive organs, who in this organizational structure were naturally restricted solely to their own field of work.

Finally the keeping of absolute secrecy by Hitler was a further factor which prevented the ministers from combining. No minister was to know more than was absolutely necessary for him to carry out the task specially assigned to him. Even things which happened in his own department could be kept secret from the minister. I refer to the affidavit of Harmening, from which it appears that the state secretary was entrusted with the preparations for the intended war with Russia over the head of the minister and was ordered to keep it secret from his minister. No clearer proof is needed to show that Hitler revealed his plans only to those to whom he entrusted the task of carrying them out, and whom he considered specially suited for it, irrespective of the position they held.

Everything which in a democratic government is considered a matter concerning everybody, which affects the entire Cabinet, is here shifted to one department and considered as its exclusive task. What really should be an affair of the Government is simply labelled an administrative task, and then dealt with by simple administrative instructions. It was dealt with behind the closed walls of the department into which no other -minister had the right

or opportunity to peer. As an example of this I refer to the handling of the concentration camps and the later so-called "final solution of the Jewish question." By virtue of a special mandate

issued by Hitler, Himmler handled this question as a purely administrative matter for which his department alone was competent. Also, this departmental matter came under the ban of secrecy.

This development must be considered over and against the line taken by the Prosecution that the entire Cabinet from the very beginning had worked in the closest secrecy with Hitler in planning

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and carrying out the illegal war. The confidential collaboration necessary for the execution of a common conspiracy can in no way be reconciled with the development as described. Hitler's endeavor to curtail and control in every way the ministers' field of responsibility, his endeavor to replace the total joint responsibility of the Cabinet by a single department, the establishment of super-departmental central offices outside the Cabinet, his endeavor to prevent even personal contact between the ministers -- all these things are in no way compatible with the theory of the Prosecution.

Notwithstanding this, if I am to fulfill my duty as counsel, I must examine whether the group of persons outlined by the Prosecution did conceive the idea of planning and executing the crimes mentioned in the Charter, and if so, when.

Various statements by the Prosecution seem to indicate that the date on which the Prosecution assumes this to have started is placed as early as 30 January 1933, the day the Cabinet was formed. It would consequently be only logical to assert that the purpose for which the Cabinet was formed was in itself criminal. In this connection I need say little, and would merely refer to the statement which I made in defense of the Defendant Von Papen. I wish to supplement the reasons I gave then by adding the statement which Bruening made in 1932 to the Minister Count Schwerin-Krosigk. I refer to my Affidavits Numbers 1 and 3. Bruening, who at that time was the responsible Chancellor of the Reich, already admitted the impossibility, if the economic and political crisis persisted, of continuing to govern almost exclusively with the emergency powers of the Reich President. He declared that the agitation of the National Socialists could be effectively combated only by obliging them to take responsibility. It is interesting to hear this statesman, who had such a pronounced sense of responsibility, confirm at such an early date that which 6 months later became a fact.

This political development arising from the needs of the moment, together with the constitutional necessity of forming a Cabinet, and the heterogeneous composition of this group, in any case give the he to any criminal intention by the formation of the Cabinet. In addition I would like to say that negotiations with individual members of the Cabinet took place only on a very small scale, that a large number of members were taken over into the new Cabinet because of their former membership in the Government, simply because the Reich President, Von Hindenburg, had requested it. If the forming of the Cabinet is assumed to be a criminal act then this cannot be reconciled with the fact that Hindenburg, who was responsible constitutionally for the formation of the Cabinet, and indeed was very active in doing so, is not mentioned in the list of

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persons set out by the Prosecution in Appendices A and B. Since deceased members were also mentioned by name, and the group of Cabinet members was not outlined according to formal constitutional law, but drawn up from the practical standpoint, I believe I can deduce from this fact that the Prosecution do not consider the formation of the Reich Cabinet on 30 January 1933 to be a criminal act. At least the Prosecution assume the existence of a common plan for the commission of crimes mentioned in the Charter even before the Cabinet started its activity, and see in the development of the legislative work of the Cabinet a reason to assume a common aim to plan and carry out an unlawful war. I will now leave the discussion of these alleged indications and consider a date which is of particular moment for this question.

It is the 5th of November 1937, the day of the conference between Hitler and his War Minister, the three commanders-in-chief of the Services, and the Foreign Minister, at which he expounded his future plans. I need not open again the discussions started by counsel for the various defendants as to whether Hitler gave a true and complete account of his plans to those present. His statement dicloses at least one thing: that he first informed only a very limited circle of his plans. If he here admitted that he was revealing his most secret plans to those present, and that he had purposely refrained from informing the Cabinet -- as is customary in other countries -- of such far-reaching decisions, it is clear that he mentioned these things for the first time to his chosen circle, and that he was particularly anxious that the remaining Cabinet members should continue to be kept in the dark about his plans. Hitler expounded the view that it was necessary for war to come soon. He asserted that he had come to this conclusion in the course of his 4 years of rule, and that this conclusion was the result of the experiences gained during this time, that economic measures would not give the nation the means to live. Even if we should be skeptical about the truth of this declaration of Hitler's, one thing is certain there cannot have been a common plan for a criminal war uniting Hitler and all the members of the Cabinet since 30 January 1933, as stated by the Prosecution, if on 5 November 1937 he announced to a number of these Cabinet members that he had arrived at this decision, which involved planning for war, in that very hour as a result of his observation of developments during the past 4 years. If Hitler, when making this statement, goes out of his way to say that the remaining Cabinet members are excluded from this knowledge, it clearly shows that he does not consider the Cabinet as such to be the right circle to receive information about plans of this kind. Thus it is clearly proved that, at least up to this date, no such common plan existed in the Cabinet,

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a plan which could only have come into being under the leadership of Hitler.

At what date after 5 November 1937 could such a common plan have been decided on? Only one more Cabinet meeting took place, on 4 February 1933, at which Hitler merely informed those present of the changes in personnel without making known the reasons for them. The question of war plans was not touched upon in any way whatsoever. If the Prosecution construe the right to take part in the Cabinet meetings as proof of a mutual bond between the Cabinet members, they will have to accept the contention of the other side that such a bond no longer existed in the ensuing period. To a certain extent the circulation procedure now generally adopted took the place of the Cabinet meetings. It should however be borne in mind that the circulation procedure was perhaps a suitable method for pursuing a previously existing collective purpose by means of separate acts of legislation; on the other hand, it is unthinkable that this written circulation procedure could be the vehicle for such common planning of so comprehensive a crime. In the case of such a decision, which because of its very nature had to be secret, there must be some sort of connection in point of locality. Within the bounds of a Cabinet meeting this would have been possible. In a discussion of documents by means of a circulation procedure this would appear to be impossible. Over and above all these considerations it must also be affirmed that according to the whole of the evidence such a plan to start a forbidden war was never communicated to the Cabinet, let alone discussed or even commonly conceived.

I have still to deal with the supposition of the Prosecution that the legislative activity of the Cabinet was wholly directed towards the planning of a war of aggression. The Prosecution believes that the purpose of the legislation was to give Hitler complete control, to consolidate that control, and thus prepare and carry through the war of aggression.

The Prosecution are aware that neither the establishment of totalitarian control nor the individual decrees issued by the Cabinet constitute a crime under the Charter. They believe, however, that they are able to establish a relation between this totalitarian control or the individual decrees and the crimes of the Charter, claiming that the plan was purposely designed from the first to commit crimes set forth in the Charter. To attain this aim, and to avoid any opposition to the planning, the totalitarian control of Germany was necessary. A number of decrees issued by the Cabinet would bring about its establishment.

Some of these laws pointed directly to the aim pursued. Others, by their terroristic and inhuman nature, showed that they were

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directed towards this goal. The Prosecution follow the assumption that dictatorship was a prerequisite for the subsequent crimes mentioned in the Charter, and that the establishment of the dictatorship was a part of the plan for the crimes mentioned in the Charter.

In rebuttal it must be stated that it is impossible to conclude a cause from an effect, in order to prove that the cause had of necessity to lead to the effect. This view would be correct only if the establishment of the dictatorship could find its compelling motive in the planning of the crimes. The view breaks down if it could appear that the establishment of the dictatorship was necessary, or even expedient, for other reasons. Such reasons did exist. The call for unified power is a natural phenomenon in times of special crises. A unified power is more quickly able to take measures which are necessary to put an end to the critical conditions. At all times and in all countries there has therefore been a tendency towards unification in times of crisis. This is provided for in the constitutional law of every country. Emergency measures then shift the power from a large body, such as parliament, to a smaller circle. We faced this development in Germany already at a time when we could still be regarded as a country with a democratic government. This is proved by the emergency law, which already in Bruening's time was extensively applied. I have already pointed out at an earlier stage that the idea of unification was further promoted by the Fuehrer concept held by the Party. The people believed that the deeper cause for the economic crisis could be found in the lack of unified leadership. Although the German people had received the gift of purest democracy with the Weimar Constitution, in their whole past they had not been educated for it. The gradual, organic development towards free democratic thinking and the education for critical judgment were lacking. This psychologically explains why, when the democratic republic was in great economic difficulties, the cause was not seen in the actual conditions themselves, but was sought in the lack of unified leadership. Consequently, the idea of the Fuehrer principle and of placing the direction of the people's destinies in the hand of one person was popular. It was reflected in the elections, which in any case had to be taken as a recognition of the principles of the NSDAP, and therefore of the Fuehrer idea. Nor can it be denied that the rigid concentration and orientation of all spheres towards the direction by a single supreme authority did in many ways help to carry through the certainly comprehensive and daring economic measures.

THE PRESIDENT: Shall we break off now?

DR. KUBUSCHOK: Very well, Sir.

[A recess was taken.]

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DR KUBUSCHOK: Before the recess I was saying that considerations of expediency could justify the establishment of a dictatorship. I continue.

The recognition of this alone would furnish the justification, necessary within the framework of considerations based on criminal law, for co-operation of the Cabinet members in the development leading to the dictatorship. In any case this would exclude the unqualified conclusion drawn by the Prosecution, namely, that the establishment of a dictatorship necessarily means the setting of the aim towards aggressive war. I

The Prosecution also considers the legislation of the Reich Cabinet, which it views as terroristic and repressive, to be directed towards the establishment and consolidation of a dictatorship having as its aim an aggressive war. In so doing it has particularly in mind the anti-Jewish legislation. This too must be examined here only from the viewpoint of whether in purpose and substance it can actually be regarded as being directed at an aggressive war. The Prosecution pointed out that Himmler in his Posen speech in 1943 stated he was happy to see in this advanced phase of the war that it was no longer possible for the Jews to constitute an internal danger.

Such a statement may, if considered superficially, justify the conclusion that now actually all legislative und administrative measures taken against the Jews to a gradually increasing degree were directed towards achieving the result welcomed by Hitler. Here, however, one will have to differentiate between the restrictions imposed upon the Jews by legislation and what was done to the Jews under Himmler's administration by shutting them up in concentration camps and exterminating them. Only the last mentioned measures, the segregation of the Jews from the rest of the population, their complete isolation in Polish ghettos and concentration camps, and finally their physical annihilation, constituted what Himmler could consider making the conduct of the war easier. As compared with this, not one of the laws issued by the Reich Cabinet, even the Nuremberg Laws passed by the Reichstag, while undoubtedly unqualified measures of repression, provides for the hermetical sealing-off of the Jews from any association with the rest of the population. The laws finally led to the Jews' being excluded from public positions and the economy and to a restriction of their personal freedom which violates even the most elementary rights of the individual. From their effects it must be recognized that they were aimed at rendering life for the Jews in Germany difficult in every respect. This was coupled with the widely propagated aim of getting Jews to emigrate.

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I believe it is precisely this point which goes to prove that the persecution of the Jews, insofar as it was carried out by legislation, did not have an aggressive war as its goal; not even indirectly through the consolidated dictatorship. One cannot set aggressive war as one's goal on the one hand, and on the other hand create by legislative measures a situation which forces emigration on people robbed of the foundation for their very existence. If one wants an aggressive war, it would be the height of folly to expel members from the body of one's own people, thereby making them enemies, and to drive them into foreign countries, into countries which one must consider as the future enemies within the framework of war planning. Thus, I believe that the entire anti-Jewish legislation can be dismissed as not constituting a necessary factor for the commission of the crimes within the meaning of the Charter. I would like to supplement this by saying that a great many of these laws were not passed, as may be thought, with the full agreement of all Cabinet members; the laws clearly show traces of compromise, and reveal that some of the ministers knew how to moderate the general purpose of the law and to limit its effect, as I have already pointed oat during the defense of the Defendant Von Papen. The fact that a minister participated in such legislation in no way means that he agreed with the purpose of the law and approved it. In this connection I should like to refer to the statement made during cross-examination by the witness Schlegelberger concerning the letter addressed by him to Lammers. Schlegelberger states that some Party agency, probably the SS Office for Race, intended to remove all partly Jewish persons to the East. In this instance the Ministry of Justice had an opportunity of stating its point of view in connection with a divorce question. The stand he first took, as outlined in the letter addressed to Lammers, and which merely consisted in rejecting the contemplated measure, was of no avail. He therefore felt obliged to moderate the measure by some practical proposal. Hence his proposal, which deals with the prevention of any issue of mixed race, as desired by the Race Office, and which suggests exempting all those persons of mixed race from whom no further offspring can be expected. In this connection, he also proposes that a person of mixed I race should be exempted from being sent to the East if he agrees to be sterilized. In considering such a proposal, it is difficult to disregard human sentiments, and to judge it with the objectivity necessary in a trial. But in this instance one can only come to the conclusion that here an attempt was made, admittedly barbaric, to avoid even worse and inescapable measures. Certainly it is a problem to determine how far one may participate in one evil in order to prevent another still greater evil. In any case the motives must be considered here too. When dealing with the case

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in point, the main thing is that even the Schlegelberger proposal desired to avoid at least the geographical elimination of persons of mixed race from the German population. Bearing in mind the points of view expressed by Himmler in his speech at Posen, this alone is a determining factor when considering the war of aggression.

Turning now to the further legislation, there is no need to deal with such as was introduced before 30 June 1934. I refer here to my statements in the Papen case.

The Law of 3 July 1934, by which the measures of 30 June were justified, is considered by the Prosecution as the first law of open injustice, by which crimes were subsequently sanctioned. Here also one will have to concede that the measures on 30 June 1934 had no relation to the planning of, a war of aggression. What Roehm himself planned, and to what extent he worked with any of the Reichswehr agencies, cannot be determined. In any case, the elimination of a man like Roehm and his followers cannot be considered as the elimination of an obstacle in the way of a war of aggression. If other Hitler opponents were killed, who certainly had nothing to do with Roehm, then that is plainly a case of murder, but here too, especially in view of the personalities concerned, this cannot be brought into relation with a war of aggression.

The law itself, in substance, exempts from punishment only those who assisted "in defeating aims of high treason and treason." Thus, the law does not cover those cases which concern persons outside the "Roehm circle." Some of them were sentenced, and some Hitler exempted from punishment by virtue of his right of reprieve.

In this connection I refer to the affidavits of Meissner and Count Schwerin-Krosigk, as well as to the statements of the witness Schlegelberger. Most of the ministers knew that a tension existed between Hitler and Roehm The actual events surprised them. The statements concerning the events which Hitler made at the Cabinet meeting of 3 July 1934 were essentially the same as his declarations made to the Reichstag meeting of 13 July 1934. On the basis of this description the ministers could not help being of the overwhelming opinion that it was really a case of high treason, and that the immediate defensive measures taken by Hitler were necessary in order to prevent the revolt from spreading. Hitler admitted himself that some excesses had occurred and that persons were seized who had nothing to do with the revolt. For these cases he promised a legal inquiry.

If the law in its wording actually limited itself to the persons who participated in the revolt, then the ministers thought that they could answer for this law. One may have misgivings about

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this law, but one must not disregard the fact that by crushing of this revolt it could be thought that a state of constant disorder and acts of violence by the Roehm followers were done away with once and for all. Therefore one cannot conclude from this law that it would be an accepted rule, also in the future, that measures which were not justified by formal law would be sanctioned afterwards and placed outside the regular channels of law. It may appear justified that one should wish to do away legally and once and for all with this problem of unrest, particularly since the guilt in the cases dealt with by the law appeared to be evident. In any case, many at that time interpreted this legal treatment of the case to mean that the principle of the obligation to prosecute political crimes also was maintained.

The laws connected with rearmament have been specially singled out by the Prosecution and thereby alleged to point to the plan for aggressive war. In this connection the Prosecution mentions the formation of a Reich Defense Council in April 1933, and the two secret Reich Defense Laws of 1935 and 1938.

In his testimony the Defendant Keitel stated that as early as 1929 an interministerial working committee had been formed to deal with questions of Reich defense. This committee was not in the least concerned with operational or strategic questions, or with questions of armament or procurement of war material. On the contrary, it dealt exclusively with measures which had to be taken in the civil sector in the event of the Reich being drawn into a war. Chief among the measures of this category were the preparations for evacuation in case of war-undeniably a defensive measure.

There was no change in the technical work of the committee when in April 1933, instead of the voluntary collaboration of individual experts from the ministries, every minister was obliged to send an expert to the commission. It was only for this purpose that the ministers grouped together to form the Reich Defense Council. This council never worked as a group or held consultations; the work was done in the same manner as hitherto on the Reich Defense Committee. A survey of the work it did can be found in the Mobilization Book for Civilian Authorities, published in 1939, which contained a list of the administrative measures to be taken by the civil authorities in case of a mobilization. The contents of the book in no way show an aggressive intent. The preparations that were made were obvious state security measures for the event of war. One cannot conclude either that a war of aggression was being planned because the work of the committee was kept secret. It is only natural and a generally accepted fact that measures for the defense of a country are not revealed to the public.

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The work of the Reich Defense Committee continued until the outbreak of the war. Nor did it change when the unpublished Reich Defense Law of 21 May 1935 finally gave a legal basis to the Reich Defense Council, which had been founded in April 1933 through an internal Cabinet decision.

As the interrogation of Goering, Lammers, Schacht, Keitel, and Neurath has shown, this Reich Defense Council did not hold a single meeting. There was not a single conference, nor was the procedure of circulating questionnaires to consult members ever employed. It merely carried on the work of the Reich Defense Committee, which has already been discussed here. The Reich Defense Council was merely an over-all organization for the committee.

By the Reich Defense Law of 21 May 1935 the position of the Plenipotentiary for War Economy was also created. He was given the right already in peacetime to secure the economic forces for the event of a war and to give directions to this end. Actually, Schacht, as Plenipotentiary for War Economy, did not take any measures in his official capacity. In practice, already in 1936 these tasks were given to the Delegate for the Four Year Plan. Here again it must be pointed out that organizational and precautionary measures for the event of a war are an ordinary procedure. By themselves they cannot in any way be considered proof of aggressive intentions. To take economic measures for the event of a war was an absolute necessity for Germany, owing to her dangerously exposed economic and geographical position in the event of a war. One could not afford to await the outbreak of a war to make the organizational preparations, because an uncontrolled German industry would not have been able to survive in case of war.

In condemning this purely defensive preparation the Prosecution stated that defensive measures were uncalled for because no country had the intention of attacking Germany. In answer to this, it must be pointed out that it is the responsibility of the leaders of a country, where vital questions are concerned, to take precautions for even the remotest eventualities. There is never a time when a country can completely exclude the possibility of sooner or later being drawn into a war from the outside.

When changes came about in the leadership of the Armed Forces through Hitler's decree of 4 February 1938, it was not at first noticed, because the Reich Defense Council never met, that its personnel composition according to the Reich Defense Law of 1935 was no longer in line with the new decree. It was only when Keitel, as head of the council, pointed them out that these discrepancies were removed by the new Reich Defense Law of 4 September 1938, and at the same time -- in the Nazi regime people were generous as

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regards organizational matters and they went in for ballyhoo and boosting -- a huge apparatus was set up. The Reich Defense Council was remodeled; the committee suffered some change in its personnel. In addition to the "Plenipotentiary for War Economy," a "Plenipotentiary for Administration" was created. Both of these, together with the Chief of the OKW, formed the "Three Man College"; and most of the other ministers were subordinated to them in separate

groups. The whole apparatus, with the exception of the committee, was to start to function only after the outbreak of a war, when the extensive legislative powers of the "Three Man College" were also to become effective. However, when the war did break out, Hitler did not concern himself with these preparations on paper, but set up the Council of Ministers for the Defense of the Reich, which virtually replaced the organizations existing hitherto. Only later, when the legislative machine of the Council of Ministers was found to be too slow, did the authority of the "Three Man College" appear again, and decrees were based on its decisions. Even if it was the

duty of the "Three Man College", just as generally it is the duty of every department, to have ready in its own particular field those measures which are necessary in a purely defensive sense, one cannot infer from this any aggressive intentions, or even consciousness of an approaching war. Such general war preparations are of necessity based on the supposition of the possibility of war. There is no indication in them of aggressive intentions. If there were, then one would be forced to the conclusion that every country was latently planning aggression, since no state can afford not to make such preparations.

The "Three Man College" did not hold any conference until the outbreak of the war, and therefore could neither have worked towards a war nor made any plans for a war of aggression. The same is true of the Reich Defense Council. It did meet twice, but how very unimportant these meetings were, and what is more, how little suited they were to the drawing-up of secret plans, is shown by the fact that of the 12 members of the council only a few were present, whereas there was a very large number of experts from the individual departments. The large number of persons who attended -- at one meeting about 40 and at the other as many as 70 -- would have made it impossible to discuss a subject which required to be handled so discreetly. As a matter of fact, the business of these two meetings was limited to the Defendant Goering's announcing part of the contents of the unpublished Reich Defense Law. Apart from that there were no meetings or written discussions with the members of the council.

Therefore, in summing up it can only be said that an organization had been created for the event of a war, but that in practice

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it never functioned. If the purpose of this organization really had been the preparation of a war of aggression, then, in view of the great number of tasks which it would have been necessary to undertake because of the time factor, the organization would have had to start work already in peacetime.

The "Law Concerning the Rebuilding of the Wehrmacht" of 16 March 1935 and the "Military Service Law" of 21 May 1935 have also been made the subject of argument by the Prosecution. I do not wish to discuss at this point whether these laws constitute a violation of the Versailles Treaty or not, since the only thing that is relevant for the judgment is whether the fact of the issue of these laws can be considered as proof of plans of aggression. The necessary publication of the entire contents of these laws alone shows that they were not the basis for such a plan. The limitation to a comparatively small number of divisions in the law of 16 March 1935 excludes any idea of a war of aggression.

Neither is the introduction of compulsory military service an indication of a plan of aggression. Compulsory military service was introduced, as in most countries, and apart from its resulting in an increase 9f fighting reserves, it undoubtedly also had certain non-material advantages.

In order to judge these laws which concerned the military organization, it must be borne in mind that the introduction of compulsory military service in March 1935 called for a new set-up of the military organization. In previous years practically nothing had been planned in this field. It was not surprising, therefore, that a decree was now issued containing the principles required. This complete and necessary reshaping of an organization demanded the passing of the laws in question, but it provides no grounds for concluding that a war was being planned.

As regards the question of whether all the Cabinet members were informed of the situation, we need not establish whether at the outbreak of war German armament was really ready for an attack or not. The legal basis -- it was only from this aspect that the majority of Cabinet members had to deal within their departments with questions of rearmament -- could give no comprehensive insight into the actual extent of rearmament. They were dependent upon whatever information was furnished them. Judging by the extent of the rearmament, the generals themselves were of the opinion that it could only have a defensive nature. Hitler himself told them nothing about any aim at an aggressive war.

Finally, mention must be made of the law of 13 March 1938 which announced Austria's Anschluss to Germany. This law was not passed by all of the Cabinet members. The ministers had not previously been informed in any way of the march of events. They

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merely received word in the usual way about the entry of the troops. As regards the other laws brought up by the Prosecution, the idea that they should have any connection with the planning of a war of aggression is, in my opinion, so far-fetched that I need not go into them in detail. There are factual reasons for the creation of these laws which cannot be denied. These are contained in the official preamble of the bills, as shown in my document book. These preambles were added to the bills in the course of circulation, and informed the ministers of the meaning and purpose of the law. Moreover, these laws were issued at a time when, as I have explained above, there was no longer any cohesion among the Cabinet members. This is especially true of those laws which were issued during the war and which have not been mentioned in detail by the Prosecution. At this period the Cabinet can no longer be considered as functioning collectively in any way. At that time the complete reorganization of the legislative procedure was already visible to the outside world by the fact that the essential laws were issued by the newly-created offices endowed with full legislative powers and set up for the different spheres of activity. Stress was laid on the Fuehrer decrees and the Fuehrer orders, especially as regards all fundamental and general political questions. From the very start, this excluded the ministers from any other functions save the purely departmental, subordinate work. The idea of a Cabinet working in unison, with the members making free decisions, had for a long time been nothing but a myth. Consequently, the responsibility for each individual law can be placed upon the individual minister or ministers who participated in making it, but not upon the Cabinet.

The Prosecution sees in the activity of the Reich Cabinet the aim to commit the crimes mentioned in the Charter, more especially in the fact that a close connection existed between the highest Reich offices and the Party. Individual ministers are alleged to have held the highest Party offices. The "Law To Insure Unity of Party and State" is said to have brought about co-operation between the Party and the state offices. By this infiltration of the Party into Government leadership, Party ideas had actually become part and parcel of Government leadership.

In reality, neither the "Law To Insure Unity between Party and State" nor later decrees could secure full co-operation of the Government with the Party. It was here that the differences of opinion between the ministers and the leading Party offices were most marked. The ministers looked on their tasks in the administration as purely matters of State. The Party had to struggle constantly, supported by Hitler's decrees, to have a bigger say in the affairs of the state offices. The witness Schlegelberger has given a clear account of this. He declared that a considerable part of the work

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in the state offices, especially in the Ministry of Justice of which he himself was the head, was directed to warding off the repeated attempts of the Party offices to make their influence felt. We saw Fuehrer decrees which were supposed to accomplish this up till the very end of the war -- an indication that the Party never fully succeeded in its intended penetration into the Government administration. It is, therefore, not possible to follow the Prosecution in its claim that owing to the infiltration of the Party the state apparatus was really an instrument of the Party.

In summing up I therefore come to the conclusion that the proceedings have in no way proved that collectively the members of the groups included in the Indictment ever desired a war of aggression and its criminal consequences as stated in the articles of the Charter, or that they even set it up as their goal and directed all their activities towards it. As long as it is at all possible to speak of a certain cohesion in the Cabinet, that is, until the death of Hindenburg in 1934, probably not even Hitler had any clear conception of this aim. Even if he himself had perhaps reckoned with this possibility and taken it into account in his decisions, nevertheless all the circumstances show that the group of people indicated here were the least suitable to be informed of such plans or even possibilities. The fact that on 5 November 1937 Hitler did not consider he could have sufficient confidence in the Cabinet to reveal to it his intentions, that he made even greater efforts to divide the Cabinet and carried his secrecy so far as to withhold from the competent minister preparations which concerned a certain department, as in the case of Darre divulging them only to some expert official, shows quite plainly that collectively the Cabinet neither had knowledge of the alleged aim nor could have directed its activities towards it. If the theory of the Prosecution were correct, Hitler would have left the existing organization as it was and would not have completely reshuffled the key positions. His alleged loyal followers in the conspiracy, once the common plan had been conceived, would have been best suited to carry it out. Also, when we consider the persons forming the Cabinet, it seems absurd to imagine so close and intimate a collaboration between its members and Hitler. Here were men from the most widely divergent camps. The ministers of the individual departments, of whom some had been taken over by Hitler and others newly assigned, were not all of them his party followers. Most of them had had no close connection with him. It is impossible to explain psychologically how and when Hitler should have won over these people not only to share his Party ideas for the achievement of the common aim but also to commit the capital crimes of the Charter. Furthermore, we see a constant change in the composition of the Cabinet. People like Hugenberg, Papen, Schmidt, Eltz von Ruebenach, and Schacht left the Cabinet. All of

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them had differences with Hitler, some of which were for far less weighty reasons than the crimes mentioned in the Charter. But according to the Indictment all these people, from the very start of their activities as ministers, are alleged to have acquiesced blindly in the criminal plot. Does it seem probable -- to mention only the case of Eltz von Ruebenach, which has been brought up by the Prosecution -- that when receiving the golden insignia of, the Party a man should express his religious scruples against Nazi ideas, if on. the other hand he was already involved in such-criminal aims and had worked for them for years? Is it not clear from his letter to Hitler that he had no doubts as to the integrity of the work of the, Cabinet? How could a man like Minister Popitz, who paid for his active opposition with his life as one of the conspirators in the plot of 20 July 1944, be connected with such aims and their attainment?

The circle of persons mentioned in the Indictment under the conception of "Reich Cabinet" is small. It is precisely this fact which shows how dangerous it is to attempt to define the character of a group of persons, and at the same time of an individual, by means of the declaration sought by the Prosecution.

The Indictment is directed particularly against the Secret Cabinet Council and the Council of Ministers for the Defense of the Reich. I need say little about the Secret Cabinet Council. It never met, and so never took any decisions or displayed any activity. It was founded for personal reasons connected with the departure of the Foreign Minister Von Neurath. In this Cabinet council, which was merely called into being by a law, but which in reality was never active, it would not have been possible to elaborate or execute plans.

The Council of Ministers for the Defense of the Reich had been founded by a decree of Hitler at the start of the war. It is incomprehensible to me on what grounds the Prosecution should single out this Council of Ministers in the Indictment as a separate institution within the framework of the Reich Cabinet. All its members belong to the Cabinet and, except for Lammers, they are all present in the dock. It can therefore have no practical value for the declaration asked for with regard to the number of people accused, unless the Prosecution themselves have doubts as to the acceptance of their arguments concerning the Cabinet and want to insure the sentencing of at least this part of the Cabinet members, as a minimum of their Indictment.

My arguments for the Reich Cabinet are equally valid for the Council of Ministers. Moreover, the Prosecution have omitted to make any statements in support of their assertion of participation in the Charter crimes.

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It is clear to me that the scope of this Trial makes it impossible to establish, even in the small circle of the Cabinet members, the intentions, acts, and motives of individual members. The precept in Article 9 of the Charter is not an inflexible precept. It should make provision for the inclusion of a greater number of persons. The case of the Reich Cabinet embraces a numerically small circle; 17 of them are present in the dock. Apart from these only 20 are still alive. It is quite possible by ordinary and legal means to form a clear judgment of their former activities, both objectively and subjectively, by separate proceedings. This is also necessary in view of their former important place in public life. To put all of them now into one category and by the verdict to outlaw all of them, including those members who are dead, and to deprive them in subsequent proceedings of an argument which would affect an essential part of their defense-for this there are no reasons of any practical nature. In the case of the Reich Cabinet, considerations of expediency should not lead to the sacrifice of the universal principles of legal life for the sake of practical requirements.

Finally, I feel obliged to express the following idea which generally touches the problem of the organizations: Mr. Justice Jackson said that considerations of expediency could also influence the verdict asked for by the Prosecution. He believed that otherwise a great number of participants in the crimes would not be included. Some of the anonymous perpetrators would perhaps remain in the background. He believes that one can also see a political reason for the verdict asked for in the principle that the "good ones" should be separated from the "bad ones."

I have explained in my statements that a general condemnation of an organization would necessarily and ultimately include in the essential points a condemnation of possibly innocent persons, But is this sacrifice of the absolute principles of justice to considerations of political expediency really necessary, and can it be advocated? Anyhow, will it be possible to attain by this means what it is sought to establish for political reasons?

The greater the circle of persons included in a verdict, the less dishonor does it bring to those affected. If several million members are declared criminals, and if one considers that the dependents and friends of these outlaws are also affected by such a declaration, I believe that whatever it is intended to attain by the separation of "good ones" and "bad ones" will not be accomplished. If the circle is extended in this manner, the person who judges first visualizes those persons who in his opinion neither did nor willed any wrong The desired result can be attained only if the circle of affected persons is limited to an extent which allows, even when judging critically, a just separation of really bad elements. The possibility

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of outlawing morally, and to some extent also physically, a part of the population from the body of the nation is numerically limited. I ask that this also be considered if one has in view the aim of a general appeasement.

Neither do I believe that the verdict applied for is necessary in order to bring to punishment those wrong-doers who up till now have remained anonymous. Those who can be considered as wrongdoers have for the greater part been arrested. Their examination in the internment camps and in the denazification proceedings provides an easy way of determining the real culprits. Therefore, if the condemnation of all members of an organization is not necessary in order to attain the desired aim, the encroachment on the security offered by the law, which such a condemnation necessarily entails, gives- rise to serious misgivings.

One of the worst oppressions we in Germany suffered under the Nazi regime was the feeling of legal insecurity. We, who had to deal professionally with these matters, experienced daily what it means for a legal-minded person to know that there was no legal system based on fundamentals and codes to give the individual that protection which alone makes him a free person. This feeling of insecurity, this feeling that on the grounds of some consideration of political expediency one could be pounced upon at any hour by that system based upon violation of this primitive human right, weighed upon every German. Now that the whole situation has changed we all would like to think that these things have been abolished once and for all time. After the experience of the past we consider that the principle of justice in particular must be without compromise. One desires to live with the conviction that only he can lose his freedom whose criminal activity is established beyond question in a legal trial provided with all possible legal guarantees. That is why countless people look with eager expectation to the first tribunal which will help this principle to prevail, and be recognized by the world as an example-this principle which has been trampled under foot for years. All of us who were called to co-operate in these proceedings found this hope strengthened in all phases of the Trial. The Tribunal now faces the decision whether a verdict according to the motion of the Prosecution shall in effect include innocent people too. Representatives of the Prosecution have declared, of course, that by cautious use of the legal possibilities the number of persons to be subsequently prosecuted could be limited to include only such people as are really guilty. However, even if this intention could be carried out in full in all zones of occupation, still in spite of this method, however desirable, the fact remains that the verdict in itself establishes the legal precept and provides the legal possibility for prosecuting the mere fact of membership. Even if one does not agree with the legal aspect of the possibility

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I have developed, the legal question concerning material and procedure is of so problematic a nature that for the individual innocent member there is no absolute legal guarantee that he will not be prosecuted. The result would be that a situation would be created in which a great number of people would live in a state of suspense without knowing whether they will ever be prosecuted and sentenced on the basis of legal possibilities.

This applies more especially to the minor cases which in any case would probably be sent back to the national tribunals in order of procedure.

The number of members and their relatives affected by the trial of the organizations is so vast that a situation would be created which would make it impossible for millions to achieve that high purpose which we have set: to regain the feeling of judicial and legal security.

THE PRESIDENT: The Tribunal will adjourn until 2:00 o'clock.

[A recess was taken until 1400 hours.]

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Afternoon Session

THE PRESIDENT: The Tribunal has just received an application, dated 18 August, from Dr. Berges; that application is denied.

I now call upon Dr. Boehm

HERR GEORG BOEHM (Counsel for the SA): Mr. President, High Tribunal: It is in contradiction to the fundamental right of every man to be made responsible only in accordance with the degree of his own guilt if he is subjected, by the possible result of the collective indictment against the organizations, to Law Number 10 of the Allied Control Council. Atonement without guilt has been considered unjust since the beginning of human history. He who desires to punish therefore has to establish the guilt of each individual, if more than one have participated in a crime. If the planning of a crime is considered punishable as an act of preparation, then only those can be punished who, in accordance with hitherto prevailing legal and moral principles, participated in the plan -- that is to say, who joined together in deliberate and conscious co-operation for just that purpose.

At no time have the legal principles which I have just explained and which have evolved from fundamental human rights been replaced in the criminal law of any nation by the legal concept of a "conspiracy." Guilt arises within the meaning of the legal conception of the conspiracy advanced by the Chief Prosecutor if: (1) an association existed with a joint and common aim, (2) these aims were criminal, (3) the pursuance of these aims definitely involved the criminal deed, meaning that the latter was foreseeable, and finally, (4) the manner of carrying out the deed was in accordance with means either agreed upon at the time of joining, or else

subsequently approved.

We must, therefore, examine the following: (A) to what extent the collective elements of a conspiracy indicated here correspond to the legal concept advanced by the Prosecution; and (B) to what extent these collective elements were brought to realization by the members of the organizations.

Thus viewed, the foregoing elements of a conspiracy as defined not only by German concepts of law, but also in accordance with well-known penal laws of other civilized countries, seem to agree completely with the definition established by the Prosecution in the Court session of 28 February 1946; so that, if we recognize the soundness of this argument, we have only to examine the aforementioned second question, namely, to what extent members of the SA became criminally involved in the commission of such acts as have now been defined in accordance with the elements of the crime in question. This question touches upon a judgment of import and

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a question of fact. Primarily, it is a judgment of import, inasmuch as the concept "criminal," which is used in connection with the aims of the organizations, requires a clear definition.

For German subjects, actions committed within the German power sphere can be criminal actions only if they are punishable by the German penal laws. According to hitherto recognized principles of international law, one nation is not bound to consider criminal what other nations consider criminal, but only what this nation has adopted as "criminal" in its own moral and legal consciousness. At any rate, after conscientious investigation of this question we find that the German people without exception -- that includes also the mass of the members of the SA indicted in Nuremberg -- has never differed in its basic moral and legal attitude from the fundamental laws of the rest of the civilized world. Millions of its members, too, consider a war of aggression a crime as defined in Article 6 of the Charter. Furthermore, no SA members, without exception, would ever argue the point that actions such as defined in Article 6 of the Charter as crimes against humanity have always been contradictory to their principles, too, and will, therefore, from their standpoint deserve to be judged criminal.

Accordingly, apart from the foundation for the Trial which is contested, it only remains for the Defense to investigate the question of fact as to whether the accused organization, the SA, at any time endeavored to realize such criminal aims, or endeavored to realize permissible aims containing methods of a criminal character. This has been alleged by the Prosecution.

The aims of the accused organizations were clearly outlined by the Party program and its statutes. The means for the realization of these aims found their visible limitation in the Reich laws and regulations published in the Reichsgesetzblatt. As an accused organization, the SA can be considered only as an association of persons whose common and general endeavor was exclusively directed towards realizing the aims pointed out to. them with means which were permissible under German law. Thus, the aims and the legally restricted means for the realization of these aims, which were openly known not only to the members of the accused organizations but to the entire world, cannot have been considered criminal by the world which not only formally recognized the National Socialist Government even after the union of Party and State was emphasized, despite their knowledge of the aims and legally restricted methods for which this National Socialist Government was responsible, but also gave repeated and visible expression to this recognition before the German people by concluding a whole series of international treaties ending with the Munich Agreement of 29 September 1938, and the Russo-German Non-Aggression Pact and the Secret Amendment of 24 August 1939.

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The criminal character of the SA alleged by the Prosecution therefore must be proved differently than by merely referring to a criminal character of the National Socialist idea in itself. If the idea itself is not already criminal, then the criminal character of an organization serving to carry out this idea can be derived, if at all, only from the criminal methods which, to use a phrase of the Tribunal, "were so completely evident, or had become, so generally known to the members of the accused organization in some other way, that it can be generally assumed with justice that the members had been informed of these purposes and activities." Thus the Tribunal itself has defined with unequivocal clarity the objective and subjective characteristic elements in the case which must be fulfilled if the International Military Tribunal is to characterize the SA as a criminal organization.

For the purpose of describing an organization or an individual, only typical characteristics may be used. Characteristics which we find in other countries also, without their hitherto having given occasion to designate the persons displaying these characteristics as criminal, cannot, in all fairness, be used in the proceedings before the International Military Tribunal in order to prove the criminal character of the accused organizations. Thus it does not appear just to the Defense if the Prosecution attempts to deduce the criminal character of the accused organizations, for instance, by stating that the Party and their organizations effectively controlled the machinery of the State, quite apart from the fact that the SA never had any power to do this.

Even if we assume the use of such methods by the SA, they are not unique in the world, and do not belong to the past. But as long as these methods are not regarded and treated as criminal all over the world, they should not justly be used as a typical manifestation of the criminal character of the indicted National Socialist organizations. The allegation of the Prosecution to this effect must, therefore, be dismissed with this statement on the establishment of proof of a criminal quality.

Just as little can one, to prove the criminal character of the SA, use occurrences which took place entirely outside of the organization, occurrences about which "in general it can no longer be justly assumed that members were informed."

Accordingly, the Defense of the SA has to prove that, (1) there did not exist at any time a common and joint plan of the SA members to commit crimes of the nature indicated in Article 6 of the Charter; (2) that neither at the time of their joining, nor during any other subsequent period of time, were the majority of SA members trained to carry out the Party program, or the

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special objectives of the SA, by the use of illegal means, particularly, by the employment of terrorism and violence; (3) that if illegal actions have been established, the result of the examination and interrogation of many thousands of members showed that these happenings lack the characteristics of a plan involving the majority of the members, and that therefore-since they were entirely outside of any common or joint plan-they can be charged only to certain individuals, or very narrowly defined categories or groups of persons within the SA.

It is not true that behind those horrible and shameful events there existed, from the very beginning, a general and common plan by a mass organization to commit actions of this type, or that these actions really "were so completely open, or had otherwise so generally come to the knowledge of the members that the members as a whole can rightly be charged with knowledge in a criminal respect."

As for the crimes against peace presented by the Prosecution, it must be made clear first of all that preparations for a war of aggression, if they are to lead to the desired goal, must under all circumstances remain secret. Even if it were true that the Reich Cabinet or the General Staff had prepared a war of aggression, there is an almost irrefutable assumption that they not only did not inform the indifferent majority of millions of SA members, but on the contrary took particular pains to have these preparations remain secret. But if such preparation was unknown, then the millions comprising the majority could at no time have become aware that the defensive war begun by the Reich leadership was in reality, as the Prosecution contends, a war of aggression, participation in which might perhaps be considered as a crime against the peace.

Crimes against the customs and rules of warfare are by nature individual actions of highly restricted groups of persons or formations, which are likewise kept secret by the higher leadership in order to prevent the international legal principle of retaliation from being applied. Even if it were possible to see a punishable participation in the mere approval of such violations of the recognized rules and laws of warfare, the Prosecution would still be confronted by the hitherto unsolved, and seemingly insoluble, problem of first proving that at least the overwhelming majority of SA members knew about such a planned commission of crimes against the customs and rules of warfare. Quite aside from these assumptions, which are contrary to substantial contentions of the SA, however, evidence can be introduced by the Defense, after questioning many thousands of SA members, that if violations of the law occurred they turned out to be, according to a legally necessary analysis as to time and

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place, on the whole only mutually independent actions by individual persons or highly restricted groups of persons lacking any common goal; therefore there is no justification for treating them as "typical manifestations" of a uniform plan which might justify characterizing the SA as criminal.

It will not be possible, in the face of this evidence of the Defense, to advance the objection that the conclusions drawn by the latter cannot be accepted without reservation because the investigation extended, to only a part, of the millions of members comprised in the indictment against the organizations and that, therefore, a generalization of the result such as expressed in the conclusions drawn by the Defense does not appear justified.

It is not the fault of the Defense, Your Honors, that part of the members could not be heard, for in co-operation with the General Secretary's Office, the Defense did everything possible to have the witnesses brought from the Russian Zone with whom, up to the time when they were named as witnesses, they were still able to correspond. I furthermore declare that the members of the SA who live in the Russian Zone could not be given the hearing to which they were entitled, since, according to my information, most of them were kept in ignorance of the charge

against the organizations. This is one of the most serious objections against the Trial which will always remain in history.

THE PRESIDENT: Dr. Boehm, that is a most improper observation of you to have made. There is no evidence that members of the SA have been kept in ignorance. On the contrary, the same notices have been posted in the camps in the Russian Zone as in other zones and, moreover, the Defense Counsel Dr. Servatius, who has been in the Russian Zone, has made no complaint to the Tribunal. We consider that as an observation which no counsel ought to have made.

HERR BOEHM: Yes, Mr. President, but it -was precisely from the mouth of my colleague, Dr. Servatius, that I received this information.

THE PRESIDENT: Dr. Boehm, Dr. Servatius said no such thing to this Tribunal. On the contrary, he said that he had been properly treated in the Russian Zone.

DR. ROBERT SERVATIUS (Counsel for the Leadership Corps of the Nazi Party): Mr. President, I have been in the Russian Zone and in accordance with my wishes was able to visit two camps. In- my final plea I have pointed out and declared that, according to the information placed at my disposal, the announcement was made in all camps. I myself had only had time to visit two camps, which I picked out personally. Indeed, I have also stated that here in court.

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THE PRESIDENT: Thank you.

HERR BOEHM: In that case, I must have completely misunderstood the information which was given me, Mr. President.

Moreover, I should like to stress the limitations imposed on the Defense by the fact that, in spite of all our efforts and the most exact indication of the addresses, some of the witnesses who live in other zones did not show up. In particular, the witnesses Fust, Lucke, Alvensleben, and Wallenhoefer are missing. Because of the absence of these witnesses, we also lack the statistics about the SA and the relief fund that are necessary to form a true judgment of the events before the year 1933, which would have shown the terrorism employed against the SA. Moreover, part of the documents which had been requested and were approved by the Court did not reach the hands of the Defense.

Accordingly, the International Military Tribunal when passing judgment can only proceed from the premise that illegal acts were committed only by a limited number of persons, or numerically restricted groups of persons, whose activities can no more place the stamp of "criminality" on the organizations as a whole than a number of crimes, such as are found in any nation, could characterize that nation as a criminal nation.

To sum up, from the point of view of the Defense, one may state that the charge raised against the SA organization as a whole, which in its effects includes even the war dead, lacks those basic, theoretical, and material prerequisites the neglect of which, implicit in any unfavorable decision of the Court, cannot be reconciled with "healthy popular sentiment" any more than with the aspirations of the United Nations, born of such painful experience, to restore confidence in fundamental human rights, and to create conditions under which justice and respect for international law can be maintained.

The Prosecution state that the declaration of criminality is necessary in order to create the necessary conditions for convicting a large part of the direct perpetrators who cannot be convicted individually, as well as to punish their moral accomplices. According to the charges of the Prosecution, the Supreme SA Leadership to cite the main charges-must have done or tolerated the following: (a) prepared or planned, that is, ordered, a war of aggression; (b) tolerated or carried out atrocities or other crimes in the concentration camps.

The presentation of evidence has clearly established that no orders were given to that effect by the Supreme SA Leadership, and that no misdeeds were tolerated. Moreover, the assertion that in most cases the real perpetrators are not to be found is not true.

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If a war of aggression really was planned, only a few people, but never 4,000,000, could have been concerned in this planning. The perpetrators of the Jewish persecutions, which were limited as to place and time, are known or can be ascertained. Since the localities of the Jewish persecutions in November 1938 are known and the perpetrators can be convicted by witnesses or else by documents, as is proven by the present trials for the Jewish pogroms in 1938, for instance in Weissenburg and Hof, it is unnecessary to create an assumption through a declaration of criminality, especially since these deeds were repudiated by the majority of SA members. In the same way, the. localities where concentrations camps were situated and the names of those responsible for the deeds committed there are well known. This is borne out by the numerous trials against concentration camp commanders and guard units. Are millions of SA members, 70 percent of whom were at the front during the second World War when these terrible happenings took place in the concentration camps, to be made responsible for them, when even former ministers claim that they had no knowledge of these events? Let the actual perpetrators be seized! A collective arrest, however, of 4,000,000 men, is unprecedented and unique in the history of penal law. It is inhuman and based upon an extension of the concept of "accomplice" which disregards all the legal security and the principles of all criminal codes.

The basic idea in the conspiracy is that it is punishable to join an organized group of persons which, at the moment of joining, is already prohibited. The persons joining, therefore, must be aware upon their admission that they are committing an unlawful action.

A retroactive declaration of criminality, the aim of which is to make proceedings possible against individual members retroactively, violates the principle nulla poena sine lege. The International Control Council expressly established this principle in its first law on the administration of justice in Germany. The International Tribunal cannot disregard a general legal principle of the interallied legislative organ which is authoritative for Germany.

In case of a declaration of criminality, still another principle would be violated. By their recognition of the German State and thus of its leadership, by the constant participation of representatives at noteworthy occasions, such as at SA maneuvers, and also by different agreements, the Allied powers gave evidence that they recognized the German leadership and its organizations as legal. The document which I quoted, SA-229, "The Political Ordinances of the Interallied Rhineland Commission and their Application in the Years 1920-1924," established that on 21 March 1925 the Rhineland Commission revoked the ban on the German Liberty Party

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(Freiheitspartei) and the National Socialist Party. An affidavit from the Palatinate (Affidavit Number General SA-42), which was submitted by the Defense, shows that all social functions organized by the NSDAP and the SA were approved by the French occupation Authorities before the year 1930. The foreign offices of the Allied nations must have had better insight into the over-all political situation than millions of ordinary SA men, who, considering the political situation, could not have been aware that they were committing an illegal act by entering or remaining in the SA.

The present prosecution of an organization which was recognized at that time contradicts the universally accepted legal principle nemo in factum proprium venire potest; that is, "Nobody may belie his previous conduct." This principle of Roman law, which is used as a rule of interpretation in the League of Nations, can command universal validity.

Concerning the SA, the Prosecution employ a number of oversimplifications regarding purpose, place, time, and assisting groups of persons, which alone enable the Prosecution to provide a basis for the declaration of criminality. In other words: the Prosecution act as if throughout the entire time there had existed a uniform personality, "the SA," with a uniform leadership, responsibility, common purpose, intention, membership, and uniform conduct. Without such generalizations the Prosecution would never accomplish their aim; for instance, in the question of aggressive warfare and the persecution of the Jews. By doing so they ignore the real problem of mass liability, which can be solved justly only by a great number of individual statements, and which requires the investigation of the agreement of action and aim in a majority of the members. In contrast to such an opinion we cannot stress too strongly the actual schism among the SA concerning the objectives of the leadership circles, as well as the members generally, and the limitation in time and space of the deeds which stamp everything which happened within an organization of four minions merely as occurrences, restricted as to time, locality, and persons, which took place during a period lasting over 20 years. It would have been necessary for the Prosecution to prove that the majority of the members of the SA had the intention, the inner win, and the knowledge of the criminal purpose and its component elements, besides being generally aware of its unlawfulness. Since this is impossible, they put forward the theory that the facts of the case and the objectives were so obvious that anyone could have recognized them. If all this was so clear to millions of ordinary people, why did the Allies maintain relations and make agreements until 1939 with this nation which was maintained by bands of criminals? The theory that in view of this state of affairs the members could

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have known, and ought to have known, the criminal aims and deeds, involves the abandonment of any real examination of the knowledge of the majority of the members. '

Practically speaking, the Prosecution content themselves with the fiction of premeditation. In doing so they tend to overlook innumerable speeches which were made in order to deceive the German people; they forget (1) that quotations from foreign sources concerning the value of the National Socialist State were reprinted in the press; (2) that in the course of these 12 years the actual events were presented to the German people and to the majority of SA members in a veiled or cleverly justified form.

That, furthermore, premeditation can only be considered in conjunction with concrete facts, to which I propose to refer later, is so obvious that it is unnecessary for me to say anything further. I merely want to point but that innumerable affidavits contained in the collective summarization, which I have submitted prove ignorance of, and nonparticipation in, the following crimes: persecution of the Jews, the planning of a war of aggression, and the commission of atrocities of all kinds.

But above all I should also