Archive/File: imt/nca/nca-02/nca-02-15-criminality-01-05 Last-Modified: 1996/12/28 With respect to the Gestapo, the United States consents to exclude persons employed in purely clerical, stenographic, janitorial or similar unofficial routine tasks. As to the Nazi Leadership Corps we abide by the position taken at the time of submission of the evidence, that the following should be included: the Fuehrer, the Reichsleitung (i.e., the Reichsleiters, main departments and officeholders), the Gauleiters and their staff officers, the Kreisleiters and their staff officers, the Ortsgruppenleiters, the Zellenleiters, and the Blockleters, but not members of the staff of the last three officials. As regards the SA, it is considered advisable that the Declaration expressly exclude (1) wearers of the SA Sports Badge; (2) SA controlled Home Guard Units [Page 19] (SA Wehrmannschaften) which were not strictly part of the SA; (3) The Marchabteilungen of the N.S.K.O.V. (National Socialist League for Disabled Veterans); and (4) the SA Reserve, so as to include only the active part of the organization, and that members who were never in any part of that organization other than the Reserve should be excluded. The Prosecution does not feel that there is evidence of the severability of any class or classes of persons within the organizations accused which would justify any further concessions and feels that no other part of the named groups should be excluded. In this connection, we would again stress the principles of conspiracy. The fact that a section of an organization itself admitted no criminal act, or may have been occupied in technical or administrative functions, does not relieve that section of criminal responsibility if its activities contributed to the accomplishment of the criminal enterprise. E. Further Steps Before This Tribunal. Over 45,000 persons have joined in communications to this Tribunal asking to be heard in connection with the accusations against organizations. The volume of these applications has caused apprehension as to further proceedings. No doubt there are difficulties yet to be overcome, but my study indicates that the difficulties are greatly exaggerated. The Tribunal is vested with wide discretion as to whether it ill entertain an application to be heard. The Prosecution would be anxious, of course, to have every application granted that is necessary, not only to do justice but to avoid the appearance of doing anything less than justice. And we do not consider that expediting this trial is so important as affording a fair Opportunity to present all really pertinent facts. Analysis of the conditions which have brought about this flood of applications indicates that their significance is not proportionate to their numbers. The Tribunal sent out 200,000 printed notices of the right to appear before it and defend. They ere sent to Allied prisoner of war and internment camps. The notice was published in all German language papers and was repeatedly broadcast over the radio. The 45,000 persons who responded with applications to be heard came principally from out 15 prisoner of war and internment camps in British or United States control. Those received included an approximate 2000 from Dachau, 10,000 from Langwasser, 7,500 from Auer- [Page 20] bach, 4,000 from Staumuehle, 2,500 from Garmisch, and several hundred from each of the others. We undertook investigation of these applications from Auerbach camp as probably typical of all. The camp is for prisoners of war, predominantly SS members, and its prisoners number 16,964 enlisted men and 923 officers. The notice of the International Tribunal was posted in each barracks and was read to all inmates. The applications to the Tribunal were forwarded without censorship. Applications to defend were made by 7,509 SS members. Investigation indicates that these were filed in direct response to the notice and that no action was directed or inspired from any other source within the camp. All who were interrogated professed no knowledge of any SS crimes or of SS criminal purpose, but expressed interest only in their individual fate. Our investigators report no indication that the SS members had additional evidence or information to submit 'on the general question of the criminality of the SS as an organization. They seemed to think it necessary to make the application to this Tribunal in order to protect themselves. Examination of the applications made to the Tribunal indicates that most members do not profess to have evidence on the general issue triable here. They assert that the writer has neither committed, witnessed, nor known of the crimes charged against the organization. On a proper definition of the issues such an application is insufficient on its face. A careful examination of the Tribunal's notice to which these applications respond will indicate that the notice contains no word which would inform a member, particularly if a layman, of the narrowness of the issues here, or of the later opportunity of each member, if and when prosecuted, to present personal defenses. On the other hand, I think the notice creates the impression that every member may be convicted and punished by this Tribunal and that his only chance to be heard is here. In view of these facts we suggest consideration of the following program for completion of this trial as to organizations. 1. That the Tribunal formulate and express in an order the scope of the issues and the limitations on the issues to be heard by it. 2. That a notice adequately informing members as to the limitation on issues and the opportunity for later, individual trial, be sent to all applicants and published as was the original notice. 3. That a panel of masters be appointed as authorized in [Page 21] Article 17(e) of the Charter to examine applications and report those insufficient on their own statements, and to go to the camps and' supervise the taking of any relevant evidence. Defense counsel and prosecution representatives should of course attend and be heard before the masters. The masters should reduce any evidence to deposition form and report the whole to the Tribunal to be introduced as a part of its record. 4. The representative principle may also be employed to simplify this task. Members of particular organizations in particular camps might well be invited to choose one or more to represent them in presenting evidence. It may not be untimely to remind the Tribunal and defense counsel that the prosecution has omitted from evidence many relevant documents which show repetition of crimes by these organizations in order to save time by avoiding cumulative evidence. It is not too much to expect that cumulative evidence of a negative character will likewise be limited. Some concern has been expressed as to the number of persons who might be affected by the declarations of criminality we have asked. Some people seem more susceptible to the shock of a million punishments than to the shock of 5 million murders. At most the number of punishments will never catch up with the number of crimes. However, it is impossible to state even with approximate accuracy the number of persons who might be affected. Figures from German sources seriously exaggerate the number, because they do not take account of heavy casualties in the latter part of the war, and make no allowances for duplication of membership, which was large. For example, the evidence is to the effect that 75 percent of the Gestapo men also were members of the SS. We know that the United States forces have in detention a roughly estimated 130,000 persons who appear to be members of accused organizations. I have no figures from other Allied forces. But how many of these actually would be prosecuted, instead of being dealt with under the denazification program, no one can foretell. Whatever the number, of one thing we may be sure: it is so large that a thorough inquiry by this Tribunal, into each case, would prolong its session beyond endurance. All questions as to whether individuals or sub-groups of accused organizations should be excepted from the Declaration of Criminality, should be left for local courts, located near the me of the accused and near sources of evidence. These courts an work in one or at most in two languages, instead of four, and ear evidence which both parties direct to the specific issues. [Page 22] F. Conclusion. This is not the time to review the evidence against particular organizations which, we take it, should be reserved for summation after all the evidence is presented. But it is timely to say that the selection of the six organizations named in the Indictment was not a matter of chance. The chief reasons they were chosen are these: collectively they were the ultimate repositories of all power in the Nazi regime; they were not only the most powerful, but the most vicious organizations in the regime; and they were organizations in which membership was generally voluntary. The Nazi Leadership Corps consisted of the directors and principal executors of the Nazi Party, which was the force lying behind and dominating the whole German state. The Reichs Cabinet was the facade through which the Nazi Party translated its will into legislative, administrative, and executive acts. The two pillars on which the security of the regime rested were the armed forces, directed and controlled by the General Staff and High Command, and the police forces -- the Gestapo, the SA, the SD, and the SS. These organizations exemplify all the evil forces of the Nazi regime. These organizations were also selected because, while representative, they were not so large or extensive as to make it probable that innocent, passive, or indifferent Germans might be caught up in the same net with the guilty. State officialdom is represented, but not all administrative officials or department heads or civil servants; only the Reichsregierung, the very heart of Nazidom within the Government, is named. The armed forces are accused, but not the average soldier or officer, no matter how high ranking. Only the top policy-makers -- the General Staff and High Command -- are named. The police forces are accused, but not every policeman: not the ordinary police, which performed only normal police functions. Only the most terroristic and repressive police elements -- the Gestapo and SD -- are named. The Nazi Party is accused, but not every Nazi voter, not even every member; only the leaders, the Politische Leiter. (See Chart No. 14.) And not even every Party official or worker is included; only "the bearers of sovereignty," in the metaphysical jargon of the Party, who were the actual commanding officers and their staff officers on the highest levels, are accused. The formations or strong arms of the Party are accused, but not every one of the seven formations, nor any of the twenty or more supervised or affiliated groups. Nazi organizations in which membership [Page 23] was compulsory either legally or in practice (like the Hitler Youth and the Deutsche Studentschaft); Nazi professional organizations (like the Civil Servants Organization, the National Socialist Teachers Organization, and the National Socialist Lawyers Organization); Nazi organizations having some legitimate purpose -(like the welfare organizations), have not been indicted. Only two formations are named, the SA and the SS, the oldest of the Nazi organization, groups which had no purpose other than carrying out the Nazi schemes and which actively participated in every crime denounced in the Charter. In administering preventive justice with a view to forestalling repetition of these crimes against peace, crimes against humanity, and war crimes, it would be a greater catastrophe to acquit these organizations than it would be to acquit the entire 22 individual defendants in the box. These defendants' power for harm is spent That of these organizations goes on. If they are exonerated here, the German people will infer that they did no wrong and will easily be regimented in reconstituted organizations under new name behind the same program. In administering retributive justice it would be possible to exonerate these organizations only by concluding that no crimes have been committed by the Nazi regime. Their sponsorship of every Nazi purpose and their confederation to execute every measure to attain those ends is beyond denial. A failure to condemn these organizations under the terms of the Charter can only mean that such Nazi ends and means cannot be considered criminal and that the Charter of the Tribunal is considered a nullity.
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