Since, according to my statements, the real defendants are the members of the organizations, these rights should be accorded to each individual member of the organizations. In spite of this point of view, which will still be discussed in detail in our final presentation, and in reserving all possible rights, the Defense does not overlook the fact that this is practically impossible within the framework of this procedure.
Its solution must be found, since the Prosecution has raised the accusation against the organizations, on the basis of the Charter and in the present form. This leads to the necessity to conduct the procedure wherein the aim of all people concerned can only be to find a best possible sulution on a declaration to come as close as possible in general and in considering the point of view of all individuals.
In this connection the Defense is realizing its duty, in the same way as the Prosecution, to help for a fair decision by the Tribunal.
If now the tremendous number of people who are affected by the Prosecution precludes by tremendous difficulties coming to a sensible, reasonable solution of this problem, there must still be sufficient grounds for judgment as well as for the aims of the organizations, the actions and the subjective point of view of individual members of the organization.
To make any headway in this procedure, it has to be tried, by typifying, to come to some decision for all of them. We do not ignore the great difficulties in coming to a just decision, given the use of a typical phenomenon as basis for judgment. It would be quite impossible to try to bring a lot of individual witnesses before the Court in order to provide a clear picture about the typical case. The only way, in our opinion, in which it is possible to bring individual testimony, is to separate it locally and in matter of time from this Tribunal. One means to achieve this can be found in the investigation of individual members We believe that the investigation of individual cases could be taken care of in a sure form in such a way that in each camp one or more speakers should to this work, that is to say, of course, under the supervision and with the assistance of the defendant's counsel. That then these speakers as witnesses could present to the Tribunal a picture of the actions with the subjective point of view of Individual members.
We believe that there would be a way to get a clear and conscientious picture, and that would be that these speakers should make affidavits about the main points which have been specified by the prosecution; that they should get affidavits from inmates of the camps.
These speakers could then say under oath to what percentage, on the basis of these affidavits, individual inmates of the camps had taken part in the criminal actions mentioned in the Prosecution's case, or had known anything about it.
Certainly there are certain difficulties to be considered in order to get a true picture. In order to get a true picture, one will have to take the suspicion away from the individual inmates, but that they could present material in their own favor, that they could present material which would serve to prosecute them.
We consider it, therefore, necessary that these affidavits should be presented to the Court as evidence; that the Prosecution should make a statement that this material will not be used for personal indictment. With this statement no immunity would be expressed for individual members, but the individual inmates of the camp would be assured that the statement he has made under oath would not be an accusation against himself in a future proceeding.
If the Prosecution does not want to do this, there will still be the possibility, without using these affidavits, to get information based on the testimony of these speakers, who could make statements about the percentage of the people who took part in the criminal activities and those who didn't,
THE PRESIDENT:Since you haven't finished, I think we had better adjourn for ten minutes.
( a recess was taken.)
DR. KUBUSCHOK:Before the recess I pointed out a suggestion that would make it easier to recognize the action of those who would come into consideration in this trial. The hearing of this evidence would have to be extended to a sufficient number of camps in all the zones of occupation. From the results of the hearing of this evidence, there could be drawn from, the typical phenomena the conclusion regarding the criminal activity and attitude of the individual member of the organization, or the opposite, and at the same time, finally, a conclusion regarding the presence or absence of the criminal character of the organization.
If the Prosecution is in agreement with the Defense so far, I believe that we have found a way of proving the relevant questions, including all positive and negative elements.
To the extent that the hearing of inmates of camps should not suffice, which is particularly true of the SA, there will come into question the hearing of all members of the organization who are not in custody. Here, too, a way would probably be found which would then both make possible and make more easy the execution of the tasks of the Tribunal.
DR. SERVATIUS:I appear in behalf of the Leadership Corps.
I should like to take a position toward the questions that have come up now before the Court. It is not possible for me to take an attitude toward the profound and well presented case that Justice Jackson has just finished. I should like to simply say a few words on behalf of a number of my colleagues and then we should like to take our definitive position toward the presentation of Justice Jackson. Perhaps the Tribunal will give us the opportunity to do this later.
I should like to take an attitude toward this question in a more technical sense, in order to fulfill my duty of presenting the Defense's attitude toward these questions.
In the first question it was asked, which evidence is admissible and which of the proofs should be presented in the main trial here before this Tribunal? The answer is that those proofs are relevant at all times that assist in the demonstration of criminality. When we examine the concept, "criminality," it is seen that there is no factual situation in criminal law, nor can there be one, for it is not here a question of determining facts but of a world judgment, whether an act is criminal in the same way that it is an evaluation, whether the act is good or bad. Consequently, the Charter does not oblige the Tribunal to pass judgment and declare such-and-such to be criminal. It simply states that the Tribunal may pass such a verdict, but not that it must.
I can thus be seen that the Tribunal is here confronted with the task which is basically different from the activity of a judge. A judge is obliged when certain facts are presented to his attention to pass judgment, but this Tribunal is to determine the culpability of a set of facts on the basis of which a court will later deliver judgment. Such a task is the job of a legislator and not of a judge.
The Tribunal here fulfills this task in the capacity of a legislature, determines what is criminal and sets a precedent.
In this way the Tribunal creates a precedent for the judges in the individual trials that will follow. The same precedent which will be given to the judge is the basis for his judgnent. In this way the forms of evidence are reversed which Judge Jackson referred to and I am prevented from making the objection that the activity of the Tribunl is here that of a legislature. It can also be seen that without the intervention of the Tribunal the Signatory Powers could have determined without further ado that all members of the organization should be put on trial for their membership in the organization.
Law No. 10 of the Allied Control Aouncil that was often mentioned today corroborates this interpretation, for this is the basis for the law that is expected of this tribunal. The examples that have here been presented by Justice Jackson to substantiate the criminal nature of the organization show again and pain and again that it is a question of laws and not of judgements.
The characteristic of the legislative function determines that considerations of practicality are most important. Justice Jackson asked in a previous presentation that he might proceed with out further ado with the members of the organizations.
It is legal consideration, legal-political considerations on an ethical basis. It consequently follows that the members of the organizations are punishable, and "punishable" is equivalent to "criminal".
( A short interruption.)
THE PRESIDENT:Yes, you may continue.
DR. SERVATIUS:In order to determine the fact, the Tribunal as legislature must collect the material to be used. The judge can, on the basis of the indication given to him, easily determine what is relevant to the proof, of what must be proved, and therefore what he can admit as proof.
It is characteristic that this determination here in this matter makes for difficulty. The legislator behaves differently from the judge. He contemplates the phenomena and signs, all that are relevant, that are important, for the content of his law. In this matter he must have a picture of the entire problem and must take into consideration both the good and bad side of the matter.
It is a basis principle of justice that only the guilty be punished. If the legislator wishes to achieve this, he must examine whether only guilty people will be affected by his laws. He must consequently also investigate the objections that any person affected by his law could make. The innocent person is protected in this way, that is the individual case the guilt of the individual must be proved unless the legislator actually intends imprisoning the person without proof.
Every killing of a human being is punishable, whether the person who who did the deed wished death or not. If the legislator does not went to permit such an objection, then he must himself examine the material that loads to such an extraordinary measure.
The material to be examined depends therein from the content of the law that is to be passed.
Sofar as the individual trials that are to come later, where all the objections remain open, the Tribunal does not have to concern itself with at.
The Tribunal must consider whether the innocent people will have their rights guaranteed in the individual trial later, and whether their right will be guaranteed. It is absolutely necessary to the Tribunal to present everything which the perpetrator later in an individual trial would not have an opportunity to concern itself.
In anticipation of the ruling of the Tribunal, it has already been determined in law No. 10 that every member can be punished, and the punishment itself determined of that we have heard in previous presentations. It appears as if the Tribunal can simply pass a judgment on bloc without having any other right to modify it, and consequently without any influence on the legal effect of its verdict, but such an effect is in contradiction both to the basic principles of the Yalta conference, which was that of transferring to the Tribunal the legal powers, and, of the signatory powers. Necessarily, in order to do just the principle of justice, namely, that of punishing only the guilty, is on the basis of examination of the relationship of the facts through the hearing of the members in question.
Consequently, the Tribunal must have the right of determining individual cases, or its disposition of their punishability, to determine the objections which will remain open to the individual; and the Tribunal must also be able to demonstrate the effect of its judgment by regulation of the capital punishment. I believe that according to what I have heard today, nothing has been said to contradict this.
According to the sense of the Charter, the Tribunal may not, or, according to the sense of the Charter the Tribunal is not allowed to transfer its responsibility to the individual trial, in which by simply drawing back, and leaving the decision in this matter up to the court where the introduction of which and the acceptance of which might be very different.
The members of the organization have specifically the right to be heard before the International Military Tribunal, and in consideration of the significance of the situation, it will have the right in every case itself to a serious, moderate adjudication of all these concerned. To what extent then can the Tribunal concern itself with the material in the finishing of the evidence.
I believe the Tribunal in order to determine the punishability must investigate the most typical relation of, and, whether each individual can be transferred to a later trial. This distinction between typical and individual, however, is not easy.
The presentation of the principle has a double meaning. On the one hand the mentioning of a member by saying that he did not know the criminal nature of the organization could mean, on the one hand, that such a purpose never existed, and, on the other hand, it might mean that a member simply did not know what actually the present criminal purposes of the organization were. The first obviously is of the effect on the organization, and the second is one of the effect on the individual. On the basis of this presentation, I should like to answer that question to the Tribunal as follows:
The criminal facts in a legal sense of the word are not here present in determining of the criminality, or to the determination of the punishability as a legislating task of the Tribunal. Relative to this fact in a legal sense of the terms is in truth the examination of the legislative material to which the objections of the members of this group organization belong. To what extent the Tribunal itself must have to examine the material depends on the extent and the effect to which it can and will give to it its verdict. Only that it is typical -- that it is not typical, and as a legal consideration unimportant, can it be left to the individual trial.
Under point two and three the Tribunal asked the question regarding the limiting of the circle of the membership and the length of time of the criminality. Both questions touch the same problem, namely, whether such a limitation is dependent on a motion on the part of the Prosecution or whether the Tribunal itself can limit the content of the verdict it passes.
I believe Justice Jackson today expressed the opinion that the Tribunal has the right, but as regards the political leaders, the Prosecution reserves to itself the right, in case a limitation is asked regarding the membership, to undertake now trials against these members who are excluded from this one, or to take other measures.
However, such a right is not given to the Prosecution in the Charter. It also stands in contravention of the natural rulings of the Tribunal and with its decisions and, possibly, to an acquital ruling, which could not be eliminated by an objection on the part of the Prosecution.
To such a limiting motion, the evidence to be examined can not be limited.
For the judgment on the indicted organizations can include this material in its whole. It is not permissable to take out sick elements of a group and to pass judgment on those sick elements and on then to consider the entire organization as criminal.
That that which is to be considered a group or an organization by the Tribunal is not to be determined at the discretion of the Prosecution is also to be seen in Article 9, Paragraph 1 of the Charter, according to which the criminal character must stand in some relationship to the acts of one of the main defendants.
This can only be understood to mean that the organization in its membership, temporarily, must be influenced by the actions of one of the major defendants. However, this is not for the Prosecution to decide, but for the Tribunal.
Consequently, I should like to answer questions two and three as follows. Question two: A limiting of the incriminating period can hot depend on a motion of the Prosecution. The Tribunal can and must itself limit the length of time if the organizations or groups were not throughout the whole period of their existence criminal. If the actions of the min defendant, as a member of the organization or group, were not incriminating during the whole, period of the existence of the organization, then such a limitation must follow.
Question three: For the limiting of the circle of membership, the same is true as is true for the limitation of the period of time.
The Tribunal can on its own iniative limit the effect that its verdict will carry in the case of all groups and organizations. It must undertake this limitation if the actions of the main defendant in his capacity as member of the organization are not to incriminate certain cir*es of people. A limitation of the indictment or the effect of the judgment does not limit the evidence material for the groups or organizations.
Those were the remarks I wanted to make in answer to the questions of the Tribunal. I would also new like to take on attitude toward a question that was brought up today; namely, the right to a legal hearing, if the Tribunal permit me to enter into this question.
According to Article 10 of the Charter, every member of an organization can be put on trial if the organization is hold to be criminal.
The decision is left up to the Tribunal. The essential task of the Tribunal is to hear the case. Without the hearing of the individual, a judgment is impossible, and there could be no verdict.
So far the Defense has about 15,000 applications from about 50,000 members, and in order that the Tribunal should not reach the false conclusion that most of the members consider themselves guilty, I must say that such guilt is disputed by all those who have submitted applications. I shall go into the reasons why so few applications have been submitted and I shall show that the omission of other applications did not rest on their tacitly accepting their guilt. There is no lack of interest or disregard for the Court which are the cause of this slight number of applications.
The statements made in the press and the radio regarding the right to be heard took place at a time when in the destroyed cities there were few newspapers being published and raiios were a rarity. The announcement took place at a time of paper shortage, and for the most part were simply not understood.
In the internment camps, where a great number of people affected were interned, the Tribunal ordered an announcement to be made. To what extent this announcement actually was made, I have not been able to determine. Justice Jackson showed various documents this morning and I shall from them be able to inform myself.
But the fact that so few applications have been made gives cause for thought but to the extent that the people affected have even known of their right, it was apparently so far not possible for them to make applications to the Court. At the time of the announcement, the postal service was not working between the various zones, and there are still no postal connections with Austria, where there are tens of thousands of men in custody.
In the announcement to the organizations, two ways were used to replace the lack of postal facilities to make these announcements public. Both of them proved to be insufficient and are the main reason why we have so few application These members who are not in custody were to submit their applications at the nearest military station.
I know of no case in which an application was made through these channels.
The attempt to use this vary came to naught from the lack of cooperation of the offices, for which I might give here a characteristic example.
It was said that they should submit their applications to the commanding officer of their camp. Only in the case of a few camps, weeks and months after the beginning of the trial, were the applications received and, even so, only from a part of the camps in the American and British zone and from a camp in the United States. From the Soviet, Polish and French zones, as well as from Austria, and other camps in foreign countries, no applications have been received, so far as I know. I shall leave it to the Tribunal to form its opinion of these facts.
Almost immediately the events showed, however, that an accusation of the members of the organizations cannot be the reason. I should like after many difficulties to point out only one striking example which will give a picture of the situation.
At one camp, roughly 4,000 members of the various organizations asked, in November 1945, to make use of their right. A few days ago I was told in a camp by a guard officer that at that time no applications were permitted since those in custody, according to the rules of the camp, could communicate with anyone outside the camp. If the application was to be transmitted further, an army order would be instituted. However, there was no such order and the present restrictions were strictly adjered to.
Another reason for the lack of application in these circumstances is that those concerned had certain disadvantages. The care was expressed that the CIC would persecute the people who applied because of their application. This fear was particularly inspired by the fact that the announcement of the right to make applications was associated with the notice that the appliers would have no sort of immunity. The effect of this was that even those who were not in custody, of whom only in the most infrequent cases did any submit application and then frequently anonymously, and then under false names.
It would have been welcomed if the Tribunal could inform public opinion that such fears are without foundation and that the participation of all is invited so that a falsely based decision can be avoided. Here if that were done a large part of the lack of applications would have been met.
From all this it can be seen that already the first stage of the making of applications has showed such serious deficiencies that the legal theory is so far usury. But even those applications that have been received are to that extent worthless with a few exceptions, and for the following reasons the Tribunal shall on the nasis of the application decide whether the person has a rig* to a hearing. But this can, for practical purposes, only occur if these applic* tions give also the reasons for the application. Such reasons are entirely lac* ing in the application or are irrelevant.
An application with no contents or an application that simply sticks to generalities can form no basis for Judgment. In a part of the application the person applying does not even mention his official function as a member of the organization or his civilian profession. This faulty form of application can b* traced back in the case of the men in custody by issuing regulations of the camp commander that, namely, a provision allowing only block or group applications or prescribing certain forms to be filled out. For all those effected, whether in custody or not, a sensible establishment of the reasons for the application is not possible because those accused only know their organizations as "criminal", but they do not know in what this criminality consists.
As far as further applications are made in the individual cases, there are directed against the purely assumed contents of the indictment. In order to relieve the situation, the defense counsel have visited various camps to find out what was wrong and to collect the pertinent information. I shall not so in the difficulties on this activity. I should not like to go into the limitations placed on the length of time that we could stay in the camp, etc., but I must mention that the success of the visits to the camps was lacking as far as the sworn affidavits collected in the camps and the written presentations of the members in custody which until today did not come into my hands. They were given to the camp commander, but they have not yet reached me.
Under these circumstances it can be seen that today, three months after the beginning of the trial, even the technical basis for the trial, for the realisation of the hearing of the members of the organizations have not been provided. Defense counsel for the large organizations are not in a position to make up for this lost time in a short period of time new.
On the other hand, the actual material is extremely exhaustive.
In the case of the political leaders there are twenty or so categories, such as the workers' front propaganda section, organization section, and so forth, w hich must be examined as to their official function and financial function and as to their criminality. None of this can be ignored, and even the appearance of less than careful treatment of the subject must be avoided. I shall not enter into the difficulties that confront the defense counsel. It is based on the fact that certain question of law and procedure have only new been explained by the Prosecution.
The fact is that these members in custody are particularly interested that their case should be decided quickly. Nevertheless, we are obliged by circumstances to make an application. Namely, I apply that the case against the groups and organizations that are to be declared criminal should be separated from the main trial and be carried but as an individual subsequent trial. This application is in accordance with the particular nature of the trial of which I spoke at the beginning of my brief.
I should like to add to my application a suggestion regarding the possibility of a legal hearing. Here I am obliged, because of the suggestions made this morning regarding the carrying cut of the hearing of the members of the organization -- according to that suggestion, an officer should carry out these interrogations. I cannot be energetic enough in objecting to this suggestion. In my opinion, it is one of the main rights of the defense counsel to collect his own information and it is the light of every defendant to speak with his counsel. It would be incomprehensible if the Allied Prosecution carries on both its prosecution and our defense. One did not expect that an officer would have such objectivity in such a matter nor such understanding for the feelings of the person he was interrogating as would be necessary.
My application is consequently this: That in every camp a German lawyer should be present who receives his information from the main defense counsel and instructs the members in the individual camp and collects his information. Then, in a relatively short period of time, a selection of the material could be carried out by the defense, both in what effects the individual, as well as the material that is to be submitted to the Tribunal as evidence.
Elimination of defense counsel, as was suggested this morning by the Prosecution, is objectionable, and I should really hove to seriously consider how I could carry on my defense if such a suggestion were entertained by the Tribunal.
DR.MERKEL (Counsel for Gestapo): Regarding the general questions concerning the admissibility of declaring an organization criminal, on the question of the technical submission of evidence and on the general criminal character of the organizations, I prefer what my colleagues has just said.
I have simply a few additional remarks to make.
Regarding the question of applications, I can say from my own experinece that it has also affected me strangley that the length of time that passed between the formulation of individual applications in the individual camps andtheir arrival in the hands of the defense were extraordinarily long. I should like to mention, for example, that a few days ago we received applications from a camp that were drawn up in November or December. I, myself, in order to get information, sent letters to camps and I sent them as much as six or seven weeks ago and I have so far received no answer to these letters.
In the Camp Herzbruck, for example, a detailed application from a member of the SS and Gestapo was made and was supposed to have been sent to the defense counsel. Neither the defense counsel nor myself have received this application. I have here applications from members of the Gestapo. In my opinion, this is one of the reasons why there are so few, that a large number of those in custody do not know that they are being represented in this trial.
The announcement of this fact, in the camps, took place in November of last year. Defense counsel for the organization, according to the record, on 17th of December, were appointed only after that date. The pertinency of my objection can be assumed from the following: About three weeks ago, in a German newspaper an article appeared regarding the question of the organization and in this article it states literally that the organizations are not represented in the Nurnberg trial. It is, however, a fact that in the first part of the defense, for months, counsel for the or animations have been sitting -- even the public doesn't know we are here -how much less the inmates of camps know that they are being represented. That is about all I had an that subject to say.
I also take the point of view that the question whether here the organizations in their entirely can be accused, is an absolute innovation in jurisprudence and that it is something which, in its extent and its effects, shakes the very foundations of law. Organizations areto be judged which not existed for over almost a year.
In the juridical procedure of all coun-
tries, it is a basic principle, that the person being defended should still be alive, which here is not the case.
According to Justice Jackson's statements today, the organizations, the Gestapo and SS, should be held responsible for the liquidation of the Jews in the East. He pointed out that the millions of Jews who were killed and the impossibility of determining who were the individual perpetrators, should be the reason why the organization should be made guilty of these acts. Of course, the defense is not convinced of that and its point of view is that the guilty individuals -- but only the guilty individuals -- should be punished.
It is a fact, for example, that in the case of an Einsatzgruppe of the SD, it was suggested that in the liquidation of the Jews in the East, only about two hundred, members of the Gestapo belonged to this Enisatzgruppe. In a total number of 45,000 to 50,000 members of the Gestapo, this figure of two hundred is a very very small one. In a general verdict against, for instance, the Gestapo, 45,000 people and more would be concerned who had absolutely nothing to do with this matter. I refer to the example of a mass murderer who cannot be caught and whose family is taken into custody in his place and condemned.
In consideration of the very important presentations being made in this matter, I request the Tribunal for permission to address the Tribunal after having had time to examine what has been said today. I should like to take an attitude towards only a few questions today; first of all, to the question of the time during which the organizations are to be considered as criminal. Here I must assert that at least in the year 1939, the case has been such that the prosecution is concerned with the crimes that took place after the beginning of the war in 1939. Only such crimes are laid at the feet of the Gestapo.
THE PRESIDENT:Will you repeat your last sentence?
DR. MERKEL:Regarding the length of time, I should like to say that until the year 1939, acts cannot be seen as criminal because they took place on the basis of a legal Reich organization and the indictment actually accuses the Gestapo of crimes that were committed only after 1939, after the beginning of the war.
The Prosecution further took excerpts from the Indictment. I refer to an application made in December.
I determine that no only the secretarial personnel be eliminated from the charges in the Indictment. The reason why the Indictment against the secretarial personnel was eliminated was that according to the conviction of the Prosecution, this secretarial personnel had nothing to do with the crimes of which the Gestapo is accused.
I shall further have to consider whether the administrative officials of the Gestapo, which make up about 70% of the whole membership of the Gestapo, should be exempted from the Indictment. As far as I can see from the applications I have before me so far, they are almost exclusively from such administrative officials. These officials were trained only in the field of administration. There were no criminal elements among these people. They were not schooled in criminality. They could not be used for the execution of any violent or criminal actions nor could have been responsible for them because they had no executive power. They were active only in matters of personnel and economy; for example, in the appointments of officials, promotions, dismissals, and so forth; economic matters, keeping of books, and taking care of the offices, and what not.
These are all things with which the executive branch of the Gestapo was concerned and we must consider that these things have nothing to do with the crimes of which the Gestapo was concerned and these people should be exempted from the Indictment just as the secretarial personnel has been exempted.
Only one other point I should like to bring up and that is the question of voluntary joining of an organization. On the 7th of June, 1945, Justice Jackson, in his communication to the President of the United States, said among other things, the following: "The units, such as the Gestapo and SS, were fighting units and consisted of volunteers, particularly fanatical people." To what extent that is true of the SS, I don't know. So far as the Gestapo is concerned, it certainly is not true, for, the Gestapo was anorganization founded by Goering on the basis of the law of 22 April 1942. It was a police organization just like the criminal police or ordinance police were responsible for keeping communications open. It consisted in the greatest part of the professional officials who, in part, had been police officials long before the creation of the Gestapo and who, on the creation of this police organization, were ordered, commanded, or appointed to positions in the Gestapo. According to the laws affecting public officials in the Reich at that time, these officials were obliged to take these positions. They were never voluntary members of the Gestapo. It might perhaps be that one percent of the Gestapo were voluntary members of the Gestapo. The rest were forced into that membership on the basis of the laws I have just cited. That is all that I have to mention at the moment. I should like, however, permission to continue.
THE PRESIDENT:Yes, certainly. We will adjourn now.
(The Tribunal adjourned until 1 March, 1946 at 1000 hours)
Official transcript of the International Military Tribunal in the matter of The United States of America, the French Re public, the United Kingdom of Great Bri tain and Northern Ireland, and the Union of Soviet Socialist Republics against Hermann Wilhelm Goering, et al, Defendants, sitting at Nurnberg, Germany, on 1 March 1946, 1000-1300, Lord Justice Lawrence presiding.
THE PRESIDENT:At the conclusion of the argument on the organizations, which the Tribunal anticipates will finish before the end of today's session, the Trinumal will adjourn into closed session. Tomorrow morning at 10 o'clock the Tribunal will sit in open session for consideration of the applications for witnesses and documents by the second four Defendants. Will the Defendant's Counsel who was in the middle of his argument now continue? Dr. Merkel, had you finished?
DR.MERKEL (Counsel for the Gestapo): Yes, sir.
DR.LOEFFLER (Counsel for the SA): High Court, the objection made yesterday by the defense, regarding the accusation of the six accused organizations, affects very particularly the question of the SA.
In the case of no organization is there such a danger of an offense against one's feeling of justice than in the case of the SA. I request of the high court permission to submit reasons for this fact.
The application on the part of the Prosecution that the SA should be considered criminal affects, conservatively estimating, at least four million people. As useful as the subdivision was that Justice Jackson gave his approval to yesterday, nevertheless its effect in terms of numbers is not relevant, because the groups eliminated yesterday, the SA wehr units and other groups, did not actually belong to the inner membership of the SA, so that so far only the SA reserve has been exempted.
But since, on the other hand, a temporal limitation was not made, there will in this proceeding, be included all who belonged to the SA during the twentyfour years of its existence, between its foundation in the year 1921 and its dissolution in 1945, that is to say, a period of almost a quarter century. All those who were at any time during that long period, members, are under indictment.
We heard yesterday from the Prosecution that the criminal acts of which the organizations are accused are the same of which the main Defendants are accused, namely, crimes against peace, crimes against the usages and customs of war, and crimes against humanity, as well as participation in the general conspiracy.
If we contemplate the possible participation of these four million people in these four possible categories of crimes, then we see the following: Crimes against the customs and usages of war are not held against the SA. The Prosecution presented an affidavit, according to which the SA also took part in watching concentration camps and prisoners of war camps, and also the guarding of forced labor; but, according to the presentation of the Prosecution, this occurred only in 1944 for the first time, within the scope of the total war taking place at that time, and it was not asserted that at that time the SA committed any excesses or mistreatment.
Of all the cruelties of which we have heard here in documents and through witnesses, the SA, with its four million members, was never concerned. The few offenses against humanity of which the SA is accused by the Prosecution, and of which individual members in the course of almost a quarter century have been guilty, can in no way be compared or equated with the serious crimes against humanity of which We have heard now.
The other point brought up by the Prosecution, namely, the occupation of union property, happened on the instifation of Reichsleiter Ley, who used the SA for this operation, and this happened after Hitler's seizure of power.
The Prosecution also did not assert that in the execution of this operation any ill treatment, excesses, or violent actions took place. In connection with the seizure of power in the Spring of 1933, that individual excesses occurred, and that Rosemann and Klauber, according to the affidavit submitted by the Prosecution, were in connection with those events beaten, is certainly deplorable, but such excesses of individual people are unavoidable in such movements involving millions of people and are hardly designed to serve as grounds for declaring the whole organization criminal.
The participation, finally, of the SA as guard troops in concentration camps is, according to the presentation of the Prosecution, a unique exception, and it ended anyway in the year 1934.