Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-178.08 Last-Modified: 2000/09/19 By DR. DIX, Continued: Even ideologically the Party in itself was divided into strongly pronounced opposing groups, which was clearly shown at the very beginning of the presentation of evidence by Goering's testimony. These contrasts were fundamental, and they were not bridged by Hitler but rather deepened. They were the keyboard of his source of power on which he played. The Ministers were not responsible, governing persons, as in any other State where law is its foundation; they were nothing but employees with specialized training who had to, obey orders. And if a specialized Minister like Schacht did not wish to submit to this, it resulted in a conflict and resignation from his post. Even for this reason, Ministers could not, in the long run, take full responsibility for their departments, because they were not exclusively competent for it. A Minister, in accordance with Constitutional Law, must, in the first place, have access to the Chief of State, and he must have the right to report to him at any time. He must be in a position to reject interference and influences coming from irresponsible sources. None of these typical characteristics of a Constitutional Minister apply to the so-called Ministers of Adolf Hitler. The Four-Year Plan came as a surprise to Schacht. Similarly, the Minister of justice was surprised by such extremely important laws as the Nuremberg Decrees. Ministers were not in a position to appoint their staffs independently. The appointment of every [Page 388] civil service employee required the consent of the Party Chancellery. The intervention and influence of all possible agencies and persons of the various Chancelleries - Chancellery of the Fuehrer, Party Chancellery, etc. - asserted themselves. They were agencies placed above the Ministries and they could not be controlled. Special deputies governed over the heads of the departmental chiefs. Ministers - yes, even the Chief of the Reich Chancellery, as we have heard from Lammers - might wait for months for an audience, while Herr Bormann and Herr Himmler had free access to Hitler. The Anticamorra and Camarilla, an indispensable accessory of all absolutism, have at all times been difficult to comprehend as regards the personal responsibility of the individual, as well as the circles of which they are composed. That is not at all the same as the irresponsible influences exerted over Hitler and affecting him. Colonel-General Jodl described to us here how Hitler's sudden actions, the very ones which had the most serious consequences, could be traced back to influences of an entirely obscure and unknown sort, such as pure chance, conversations at a tea party, and so on. For the objective facts this bears out what I already mentioned in the beginning. And so this state of affairs eliminates even the possibility of the planning of a crime such as a war of aggression within a clearly, defined circle of persons or, for that matter, within the so-called Reich Government. But where no planning is possible, there also no plot, no conspiracy, is possible, the most striking characteristic of which is just this common planning, even though the participants have different and varied roles. Let us assume the broadest conceivable interpretation of the apparent exterior characteristics of the conspiracy. I am following Justice Jackson's line of reasoning. He who takes part in a counterfeiters' plot is guilty of conspiracy, even though he may have only written a letter or acted as bearer of the letter. He who participates in a plot for robbing a bank, is guilty of murder if, in the course of the robbery, not he but a third party in the group of planners committed murder. At all times, however, the prerequisite is a body of persons capable of evolving a common plan. Such a thing was not possible for Adolf Hitler's Ministers; it was not possible at all under Hitler. From this it follows that no conspirator could participate in Hitler's crime of having forced upon his own people and the world a war of aggression, except those who served Hitler as assistants. The forces at work in the Third Reich as depicted thus permit in thesis only the assumption that there was a punishable complicity or punishable assistance, but on the other hand, no punishable group offence such as a conspiracy. Whether such complicity or such punishable aid in the crime of a war of aggression committed by Hitler exists for the individual defendants personally can only be investigated and decided in each case individually. It is my task to investigate this only in the case of Schacht. A collective crime such as conspiracy on the basis of the actual conditions; already established is, however, excluded as inconceivable and impossible. But even if this were not the case, the subjective aspect of the deed is completely lacking in the case of Schacht. Even though the objective facts of a conspiracy; should exist within a circle of the accused, and even with the most liberal interpretation of the concept of conspiracy, the conspirator must be willing to accept a plate of conspiracy and the aims of the conspiracy, at least in the form of dolus eventualis. The severe character of the facts constituting a conspiracy can best be illustrates by comparison with a pirate ship. In reality every member of the crew of the pirate ship, even a subordinate, is guilty and an outlaw. But a person who did not even know that he was on a pirate ship, but believed himself to be on a peaceful merchant vessel, is not guilty of piracy. He is also innocent if, after realising the character of the ship, he has done everything he could to prevent any piracy as well as to leave the pirate ship. Schacht did both. As far as the latter is concerned, scientific theory on conspiracy also recognises that he is not guilty who has withdrawn from the conspiracy by a positive act [Page 389] before attainment of the goal of the conspiracy, even if he co-operated previously in the preparation of the plan for conspiracy, which was not the case with Schacht. In this connection, I also consider in my favour Mr. Justice Jackson's answer, when I put up for discussion, within the framework of Schacht's interrogation, whether the persecution of the Jews is also charged to Schacht. Mr. Justice Jackson said yes, if Schacht, had helped to prepare the war of aggression before he withdrew from this plan for aggression and its group of conspirators and went over unreservedly to the opposition group, that is, to the conspiracy against Hitler. This desertion would then be the positive act which I have mentioned whereby a person at first participating in a conspiracy would separate himself from it. This legal problem is not even to be considered as far as Schacht is concerned because the evidence has shown that he never desired to participate in the preparation for a war of aggression. As already stated, this accusation of the subjective fact of the conspiracy has been proved neither by direct nor by indirect evidence. For the events until the year 1938, I can point to the statements made previously. It has been proved that from 1938 on at the latest, Schacht waged the most conceivably severe battle against any possibility of war in such a form that he attempted to overthrow the person responsible for this danger of war, the person responsible for the will for aggression; thus the regime. Your Lordship, I have now arrived at the end of a section, if your Lordship would care to announce a recess now. THE PRESIDENT: We will adjourn. (A recess was taken.) DR. DIX: I beg your pardon for being late, but I was prevented from coming in. Gentlemen of the Tribunal, I have arrived at the evaluation of the beginning of the opposition by means of the various putsch actions, and I should like to continue. It is quite irrelevant and of incidental importance to investigate whether the attempts at a putsch which occurred within short or long intervals, as the case may be, during the war, were a means to secure better peace terms for Germany. This is absolutely meaningless for the legal evaluation of the criminality of Schacht's course of action. Doubtlessly, according to human reckoning, a successful putsch before the outbreak of war would have prevented the outbreak of war, and a successful putsch after the outbreak of war would at least have shortened the duration of the war. Therefore, such sceptical considerations about the political value of these putsch attempts do not disprove the seriousness of the plans and intentions for a putsch. And that is all that counts, for it proves first of all that a person who has been pursuing them since 1938 and even since 1937, if one includes the attempt with Kluge, could not possibly have had warlike intentions previously. One does not try to overthrow a regime because it involves the danger of war, if previously one has oneself worked toward a war. One does this only if by all one's actions, even that of financing armament, one wished to serve peace. For this reason, these repeated putsch attempts on the part of Schacht do not have any legal significance of a so-called active repentance for previous criminal behaviour, but they are, ex post facto, a proof that he cannot be accused even before 1938 of consciously working for war, because it would be logically and psychologically incompatible with Schacht's activity of conspiracy against Hitler. These putsches thus prove the credibility of Schacht in respect to his explanation of the reasons and intentions which caused him to enter actively into the Hitler Government and to finance the armament to the extent to which he did, namely to the amount of twelve billions. They prove, ex post facto, the purely defensive character of this financing of armament; they prove the credibility of Schacht's contention of having tactically achieved in addition a general limitation of armament. But if one believes this explanation of Schacht's, and I think one must believe it, then one cannot speak of Schacht's co-operation in instigating a war of aggression. [Page 390] This credibility is also proved by another circumstance. Schacht has contradicted the testimony of Gisevius and my suggestion along the same line, that he had admired Hitler at the beginning and had unreservedly considered him an ingenious statesman. He described this in his interrogation as an erroneous assumption. He said that he had recognized from the beginning many of Hitler's weaknesses, especially his sketchy education, and had only hoped to be in a position to control the disadvantages and dangers resulting from them. Through this contradiction, Schacht made his defence more difficult; but he is wise enough to have recognized this. Thus what he consciously lost and gave up from the point of view of evidence, which would strengthen his defence, he gains with regard to his credibility upon objective evaluation of evidence based on psychological experience. For a person who serves the truth by contradiction deserves increased credibility, even when the suggested untruth or the half-truth is more advantageous to him technically and tactically by way of evidence. There should be no doubt about Schacht's leading role in the activities of the various conspiracies about which Gisevius testified, precisely on the basis of this credible testimony. During the cross-examination, Mr. Justice Jackson confronted Schacht with photographs and films which superficially show a close connection with Hitler and his paladins. This can only have been done in order to throw doubt on the earnestness of his active opposition to Hitler. I must, therefore, deal briefly with this question of the photographs and films. Mr. Justice Jackson has coupled this accusation with another one in quoting speeches which seemingly show a great devotion on the part of Schacht toward Adolf Hitler even during the putsch period. This accusation is on the same level. I believe that this argument can stand up neither before the experiences of life nor what we can observe in history. History teaches us that conspirators, especially if they belong to the closer circle of dignitaries of the threatened head of State, show a special devotion for purposes of camouflage. It has also never been observed that such people show their intentions to the threatened victim by a hostile manner. One could cite many examples of this from history. There exists an effective German drama by a certain Neumann which concerns itself with the murder of Tsar Paul by his first Minister Count Palen. The Tsar believes to the very end in the ostentatious devotion of Count Palen even while the latter is already sharpening his knife. And in the historical documents left behind, there is an instruction by Count Palen to the Russian Ambassador in Berlin, very shortly before the assassination, in which Count Palen cannot speak highly enough about "Notre auguste empereur," etc. Significantly, this drama bears the title "The Patriot." Thus, there is a higher patriotism than the merely formal loyalty of a servant of the nation. It would be closer to the psychological truth if this presumptive devotion and assurances of loyalty during this period, assumed for the sake of appearances, were judged more in favour of the objective credibility of Schacht's' explanations than vice versa. As a conspirator, he had to camouflage himself especially well. To a certain degree, this had to be done by practically everyone who lived under this regime in Germany. Now, as far as these photographs are concerned, it is probably an inevitable consequence of every social, and thereby, also of joint representative membership in a body that one becomes a victim of the camera along with the members of the body whether one likes it or not. A member of a government cannot always avoid being photographed with these people on the occasion of their meetings. As a result, we have such pictures as show Schacht between Ley and Streicher, and the scene in the film showing the reception of Hitler at the railway station. Viewing such pictures ex post facto, these pictures are not pleasant to the observer; certainly not to Schacht either. But they do not prove anything. In a natural evaluation belonging to a normal, average experience of life, I consider these pictures without any value as evidence, either pro or contra. [Page 391] Foreign countries, too, through their prominent representatives, had social intercourse with Adolf Hitler's Government, and this not only through their diplomatic corps. I wish to assure you that the defence is in a position to produce pictures of a much more grotesque sort which do not seem nearly as natural as Schacht being photographed together with men who, after all, were his fellow dignitaries in the Third Reich. To produce such pictures, however, might not be very tactful on the part of the defence, but should it be necessary to investigate the truth in all seriousness, a defence counsel might have taken upon himself the odium of indiscretion. I do not believe that I have to do it in this case, because the irrelevance and insignificance of such a presentation of evidence through pictures of State occasions of the Third Reich seems to me to be obvious. The only incriminating point pressed by the prosecution which is left for me to argue now appears to be that Schacht, after his retirement as Minister of Economics, and even after his retirement as President of the Reichsbank in January, 1939, remained Minister without portfolio until 1943. Schacht declared that this had been stipulated by Hitler as a condition for his release from the Ministry of Economics. Hitler's signature, as that of the head of the State, was necessary for his dismissal. Had Schacht refused to remain as Minister without portfolio, he would surely have been arrested sooner or later as a political suspect, and thus been deprived of all possibility of action against Hitler. The witness Gisevius has testified as to the deliberations at that time between him and Schacht concerning the continuation of Schacht as Minister without portfolio. In these deliberations the idea was quite justly considered important that Schacht could be of more use to the group of conspirators as a scout or a patrol if he remained in this position, to outward appearances, at least, within the Reich Government. Even as Minister without portfolio, Schacht remained exposed to great danger, as is shown by his and Gisevius's declarations, and as becomes obvious from Ohlendorf's statement that Schacht already in 1937 was on the black list of the State Police. How much Hitler feared Schacht is proved by his later remarks to Speer which have been discussed here, particularly his remarks about Schacht after the attempted assassination on 20th July. I would also remind you once more of the memorandum of Hitler of 1936, which he gave to Speer in 1944 and which shows that he saw in Schacht a saboteur of his rearmament plans. It has been declared and proved by Lammers that Schacht tried later on to get rid even of this nominal position. Lammers and Schacht have proved furthermore that this position of Minister without portfolio was without any special importance. Hence, my nicknaming such a Minister "Fancy-Dress Major," that is a major without a battalion and command authority, a sham major. Schacht could not give up the position without scandal, and the same held true of the position of Reichsbank President. Schacht, therefore, had to manoeuvre in such a way that he would be thrown out. He succeeded in this, as I explained, as Reichsbank President, through the well-known memorandum of the Board of Directors of the Reichsbank and the refusal of credits by the Reichsbank in November, 1938, contained therein. As far as his position of Minister without portfolio was concerned, he succeeded in obtaining dismissal through his defeatist letter of November, 1942. In the meantime, he made use of the time for the attempted coup d'état in autumn, 1938, and for the various other attempted coups d'etat up to the one of 20th July, 1944, which finally caused him to be put in a concentration camp. A criminal reproach can on no account be made against him in his position as Minister without portfolio. For his proved conspiratorial activity against Hitler during all this time eliminates by force of logic the supposition that he had furthered Hitler's war plans and war strategy during this time. In any event, we can only raise - and this also only in the vacuum of abstraction - a political reproach against the Schacht of the years 1933-1937. But this, too, is fully compensated by the extraordinarily courageous attitude of Schacht after this period. To obtain its just evaluation, may I remind you of the interesting statement of Gisevius that he, who had looked with a certain scepticism upon Schacht's original attitude, not in [Page 392] a criminal but in a political sense, had then been completely reconciled with Schacht by the extraordinary courage which Schacht displayed as opponent and conspirator against Hitler after 1938. I am of the opinion, therefore, that the fact that Schacht remained as Minister without portfolio does not incriminate him either directly or indirectly, neither according to penal law (that is out of the question) nor morally, if one takes into consideration his behaviour as a whole, his motives and the accompanying circumstances and conditions.
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