Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-213.05 Last-Modified: 2001/02/21 [DR. KUBUSCHOK, Continued] The law of 3rd July, 1934, by which the measures of 30th June were justified, is considered by the prosecution as the first law of flagrant injustice, by which crimes were subsequently sanctioned. Here also one must take the view that the measures of 30th 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 the 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 saved from punishment by virtue of his right of quashing proceedings against accused persons (Abolitionsrecht). In this connection I refer to the affidavits of Meissner and Schwerin-Krosigk, as well as to the statements of the witness Schlegelberger. Most of the ministers knew that tension existed between Hitler and Roehm. The events themselves surprised them. The statements concerning the events which Hitler made at the Cabinet meeting of the 3rd July, 1934, were essentially the same as his declarations made to the Reichstag meeting of 13th July, 1934. On the basis of this description [Page 206] 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 this law, but one must not disregard the fact that by the 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 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 be advanced that one wanted to do away legally and once and for all with this question of unrest, particularly as 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. Those laws have been specially singled out by the prosecution which are connected with rearmament, and for this reason alone are alleged to point to the plan for an aggressive war. In this connection the prosecution mentions the formation of a Reich Defence Council in April, 1933, and the two secret Reich defence 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 defence. This committee was not in the least concerned with operative 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 departmental chiefs of 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 Defence Council. This Council never worked as a group or held consultations; the work was done in the same manner as hitherto on the Reich Defence 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 all measures, even those for the defence of a country, are not revealed to the public. The work of the Reich Defence Committee went on continuously until the outbreak of the war. It did not change even when the unpublished Reich Defence Law of 21st May, 1935, finally gave a legal basis to the Reich Defence Council, which had been founded in April, 1933, through an internal Cabinet decision. As the interrogations of Goering, Lammers, Schacht, Keitel and Neurath have shown, this Reich Defence Council did not hold a single meeting. There was not a single conference, and the procedure of circulating questionnaires to consult members was also not used. It merely carried on the work of the Reich Defence Committee, which has already been discussed here. The Reich Defence Council was merely the covering organization for the Committee. [Page 207] By the Reich Defence Law of the 21st of May, 1935, the position of the Plenipotentiary for War Economy was also created. He was given the right to organize the economic forces for the event of a war, and to give directions for this end. Actually, Schacht, as Plenipotentiary for War Economy, did not take any measures towards this end in his official capacity. In practice, already in 1936, the tasks relative to this objective were given to the Trustee of 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. One could not afford to wait until the outbreak of a war to make the organizational preparations. From the start, 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, with regard to vital questions, 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. As changes came about in the leadership of the armed forces through Hitler's decree of 4th of February, 1938, at first it was not noticeable, for the Reich Defence Council never met, that its personnel composition, according to the Reich Defence Law of 1935, was no longer in line with this decree. It was only when Keitel, as Head of the Council, pointed them out that these discrepancies were removed by the new Reich Defence Law of the 4th September, 1938, and at the same time - in the Nazi regime people were generous as regards organizational matters and they loved exaggeration and artificial distension - a huge apparatus was set up. The Reich Defence Council was reconstituted; 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 a "Three-man-Council"; 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-Council" 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 Defence 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-Council" appear again, and decrees were based on its decisions. Even if it was the duty of the "Three- man-Council," 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 the 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-Council" did not hold any conferences 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 Defence Council. It did meet twice, but how very unimportant these meetings were, and what is more, how little suited they were, for 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 [Page 208] 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 announcing part of the contents of the unpublished Reich Defence 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 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 in peace time. The "Law concerning the Rebuilding of the Wehrmacht" of 16th March, 1935, and the "Military Service Law" of 21st 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 the laws can be considered as a proof of plans for 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 16th March, 1935, excludes any idea of a war of aggression. Neither is the introduction of compulsory military service an indication of a plan for aggression. Compulsory military service was introduced as in most countries, and apart from it resulting in an increase of fighting reserves, it undoubtedly had an ideological basis. 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, there need be no discussion as to 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 13th March, 1938, which announced Austria's Anschluss to Germany. This law had not been agreed upon by the whole of the Cabinet members. The ministers had not previously been informed in any way of the march of events. They 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 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 laws. 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 [Page 209] 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 organizational reshaping of the legislative procedure was already visible to those outside by the fact that the essential laws were issued by the newly created offices which were 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 held to the charge of the individual only or of those ministers who participated in making it, but not to the charge of 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 Ensure Unity of Party and State" was said to bring 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 Ensure 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 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 have seen 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 its permeation by 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 one can speak at all of a certain cohesion in the Cabinet - 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 had taken it into account in his decisions, nevertheless all the circumstances show that the group of people indicted here were the least suitable to be informed of such plans or possibilities. The fact that on the 5th 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 minister himself preparations which concerned a certain department, as in the case of Darre, divulging them only to a competent expert official, shows quite plainly that collectively the Cabinet neither had the knowledge of the alleged aim nor could have directed its activities towards it.
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