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By DR. KUBUSCHOK, Continued:

In the new Government, too, Papen, as Commissioner for the
Saar territory, paid special attention to this question. We
see how he attempted to avoid also in the Saar question
everything that could in any way impair the relations
between the countries, even if only temporarily. Hence his
suggestion that there should be no recourse to a plebiscite
which might give renewed impetus to political chauvinism in
both countries. Hitler himself, not only before he took over
power, but as responsible chief of the Cabinet, had stated
time and again that Germany had no intention of bringing up
the question of Alsace-Lorraine, but that the Saar question
was the only problem still to be settled between the two
countries. And in so doing he followed entirely the
suggestions of Papen, which aimed at a peaceful settlement.

Papen is also accused of having deceived the contracting
party, namely the Vatican, when he concluded the Concordat
in July, 1933. By concluding the Concordat, Papen had
intended merely to strengthen Hitler's position and to
enhance his reputation abroad.

The hearing of evidence has shown that the Concordat in its
effects, too, was a bilateral pact, and that the legal
obligations of the Concordat during the treaty violations on
the part of Germany which followed soon afterwards offered
certain legal protection to the violated party, also.

The questionnaire of Archbishop Groeber concerns the
conclusion of the Concordat. It refer to Document 104 which
I submitted today, and I summarize it as follows:

Archbishop Groeber is of the conviction that the Concordat
was concluded due to the initiative of Papen. Furthermore,
he confirms that Papen succeeded in

                                                  [Page 226]

persuading Hitler to the conditions of the Concordat. In the
answer to question 4, in particular, he confirms that
Papen's activities while the Concordat was concluded were
dictated by his positive attitude toward religion. Finally
he confirms, in the answer to question 6, that the Concordat
was a legal "bulwark" and a support in face of the later
persecution of the Church. Answer 7 confirms that the
community of German Catholic workers, which I will mention
later, was not an organization protected by the Concordat.
In any case, it is entirely wrong to suppose that Papen had
any knowledge of intended future violations of the treaty
and that for that reason he had brought about its
conclusion. If he had wished to enhance Hitler's reputation
abroad, this means would have been the least suitable that
could be imagined. A struggle against the Church without the
Concordat would have met, it is true, with an unfavourable
reception abroad, but it would nevertheless have been an
internal German affair. Through the existence of an inter-
State treaty these Church persecutions constituted a
violation of an international treaty with resulting harmful
effects of a special nature upon prestige. One cannot
conclude a treaty for the purpose of gaining prestige if
immediately after its conclusion one proceeds to violate the
same treaty. This consideration alone already refutes the
assumption of the prosecution. Beyond this the accusation of
the prosecution is of symptomatic importance.

Every action of Papen's which has somehow come to light must
be interpreted in the sense of the conspiracy theory to
Papen's disadvantage, and the simplest procedure would be to
place the later development into the foreground claiming
Papen's co-operation in and knowledge of this development,
and to consider his previous contrary statements of opinions
as ambiguous and double-faced. This procedure is simple if
one considers the knowledge of later developments in
retrospect as self-evident and if one does not picture the
true factual situation at the time; above all, if one makes
no effort to re-examine the logic in the original proclaimed
intention and the further developments. Only in this manner
can one, as in this instance, come to a conclusion which on
closer consideration presupposes the folly of the person
acting at the time.

But quite apart from these deliberations the attitude of the
defendant towards religious matters does not admit of the
slightest doubt about the sincerity of his intentions. In
the hearing of the evidence, it was set forth that not only
his closest personal advisers in Church affairs, but also
the highest dignitaries of the Church who were in closest
personal as well as professional contact with the defendant
in these matters, emphasized that his attitude as a Catholic
was absolutely irreproachable at all times.

The lack of foundation of the whole indictment with regard
to Church questions is already made clear by the confutation
of the assertion of the prosecution that Papen himself broke
the Concordat by dissolving the "Work Association of
Catholic Germans". I refer in this respect to the
unequivocal testimony of the former secretary of the "Work
Association of Catholic Germans", Count Roderich Thun,
Defence Exhibit 47. It must be stated, however, that Papen
not only saw with regret the subsequent violations of the
Concordat by the Reich, but that he actively tried to oppose
them. The entire activities of the "Work Association of
Catholic Germans" consisted practically of nothing else but
the establishment of such violations of the Concordat in
order to furnish Papen with a basis for his constant
interventions with Hitler. After Papen's departure for
Vienna the practical possibility of such interventions
ceased to exist.

From all of Papen's speeches it is evident that his attempt
at safeguarding the Churches did not emanate from
considerations of political expediency of the day, but from
his fundamental religious attitude. I believe there is no
speech in which he did not express himself on this problem,
emphasizing time and again that only the Christian
philosophy of life, and thus the Christian Churches, could
be the foundation for the orderly government of a State. In
just this Christian foundation

                                                  [Page 227]

he saw the best protection against the tendency of the Party
to give preference to an ever-increasing extent to the idea
of sheer might over that of right.

With regard to Papen's report to Hitler of 10th July, 1935
(PS 2248), which was submitted during the cross-examination,
the prosecution fell victim to a quite obvious
misunderstanding. Papen refers in it to the favourable
result there would be in the field of foreign politics if
one could succeed in eliminating political

Catholicism without touching the Christian foundation of the
State. Papen does not state here his opinion on the past and
present situation, but furnishes advice for the future. The
content of this advice is definitely positive in the
ecclesiastical sense. It states that one may eliminate
political Catholicism, but the purely ecclesiastical
interests themselves, that is the Christian foundation of
the State, must remain untouched. These directives destined
for future times obviously contain criticism of the past as
well. We see here how, in connection with foreign political
activities, matters are discussed and brought up to Hitler
which, in themselves, belong to another field.

In his own testimony Papen replied to the accusation of the
prosecution that as a good Catholic he should have resigned
after the Pope had issued his Encyclical Letter "With Grave
Apprehension" of 14th March, 1937. Papen could refer, in
this connection, without any criticism and with full
approval, to the standpoint of the Church itself, which has
always been of the opinion that one should hold a position
so long as it still offers the slightest opportunity for
positive work. Owing to this wise attitude and to its
feeling of responsibility for the German Catholics, the
Church until the end never completely broke with the Third
Reich. One cannot ask an individual Catholic to take any
other standpoint. This all the less as Papen, in his purely
foreign political activities, came into no conflict
whatsoever with his Catholic conscience.

The accusation that in the autumn of 1938 he should have
protested to Hitler about the treatment of Cardinal Innitzer
is also lacking in foundation. Papen himself can no longer
remember today when and in what form he heard of these
occurrences at all. The German Press did not publish
anything about it, and in no case did such matters reach the
public via internal Church channels as the prosecution
assumes. In any case, at that time Papen had no possibility
whatsoever to intervene, being merely a private person and
on bad terms with Hitler for the moment.

I have already dealt with Hitler's development into an
autocrat. After the abolishment of joint reports to
Hindenburg, Papen's influence was reduced to a minimum.
Protests in Cabinet sessions coming from a single man, who
was unable to base these protests on requirements of his own
department, were of a purely declaratory nature. Meanwhile
the Nazi doctrines were being applied more and more in
practice. It became clear that the willingness of the early
days to compromise in agreeing to a rule by coalition was
slowly abandoned and that the National Socialist doctrine
kept gaining ground in all fields. It was clear to Papen
that he could not follow that course. It was likewise clear
that in the framework of his official position he could not
alter the general trend, despite his efforts to help in
individual cases. On the other hand, his theoretically still
existing position of Vice-Chancellor gave him certain weight
in public life. Thus he had to face the problem, whether he
should start forth with public criticism of prevailing
abuses as a last attempt to gain influence upon the
development through public discussion of the problems. In
case of failure, he would have at least achieved the public
branding of these abuses by a responsible party, even-if as
a natural consequence Papen would have to give up his
position and would thus no longer be able to aid many people
in individual cases.

In his Marburg speech of 17th June, 1934, Papen distinctly
branded all abuses which had become apparent until that
time. Such extensive public criticism remained unique in the
history of the "Third Reich".

                                                  [Page 228]


He realised that the danger of Nazism lay in the fact that
its different doctrines were so interlocked that they formed
an iron ring of oppression on all public life. Had one link
of that ring been faulty, the dangerous character of the
entire system would have been jeopardised. If only one of
the points discussed would have met with practical success
in a favourable sense, it would have meant a total change of
conditions. The system objected to could not have existed
another day if the freedom of public speech demanded by
Papen had been granted. It could not have been upheld if the
conception of justice and of equality before the law were
recognized. It could not have existed if freedom of religion
were guaranteed. A Marxist mass theory cannot be upheld if
the maxim of the individual's equality, common to all
confessions, is advocated.

Each of Papen's attacks in his Marburg speech - he had dealt
with the racial issue already in his Gleiwitz speech - was
in itself an attack upon the development of the entire Nazi
doctrine. Here the audience was clearly shown by a leading
member of the opposition in the Government where the
entirety of the abuses came from.

The consequences for Papen of such an action were obvious to
begin with.

Either Hitler would take into consideration the new state of
affairs after it had become a matter of public discussion,
or Papen was going to offer his resignation, since for
further co-operation he could no longer reconcile his
viewpoint with the path chosen by Hitler.

Evidently Hitler at that time did not consider it necessary
to make a concession to public opinion by deviating from his
line of action. He tried to kill the opposition by
forbidding the publication of the speech and by penalising
its distributors. Papen resigned. Hitler did not accept his
resignation immediately, since he obviously had to take
Hindenburg into consideration, wishing to clear up the
situation first of all with him. Meanwhile the events of
30th June took place.

What fate had been destined for Papen in the course of those
events will probably never be known definitely.
Particularly, it will never be elucidated whether people
were moved by different intentions.

The improvisation of the actions becomes best apparent in
the way they were carried out against the office of the Vice-
Chancellor. Bose was the first victim in the very building
of the Vice-Chancellery. Jung, who was arrested outside
Berlin, was also shot. His fate, though, became known to
Papen and the public only much later, as it had been hoped
at the beginning that he not only had left Berlin, but had
gone to Switzerland, having been warned by the measures
taken as a result of the Marburg speech. The other members
of the staff who could be apprehended were taken into
custody by the police and later sent to concentration camps.
As to Papen himself, one evidently hesitated to make a final
clear decision as to his fate. His close relationship to
Hindenburg would seem to indicate the advisability of not
burdening the list of victims of 30th June with so prominent
a name, after it had been burdened enough in relation to
Hindenburg with the crime camouflaged as self-defence
against Schleicher.

Anyway, within the framework of the accusation it suffices
to establish that whatever Papen's fate has been in the end,
the measures taken against him and his, people demonstrate
his absolute opposition against Hitler and the Nazi policy.

During the cross-examination the prosecution presented
letters to Papen, which outwardly seem to show at first a
certain divergence from his usual attitude.

In those letters Papen assures Hitler of his attachment and
loyalty and hides his real and material desires under polite
phrases which otherwise were in no way customary in his
relations with Hitler. It may appear surprising that a man
who opposed the system, who had been persecuted for that
reason and upon whose associates such incredible things had
been inflicted, chose to write such letters. But for a fair
judgement a correct understanding of the state of affairs at
that time is required. A state of lawlessness existed at
that time. It offered a favourable

                                                  [Page 229]

opportunity to get rid of troublesome opponents in the
course of those measures. The examples of Schleicher, of
Klausner and others have sufficiently shown that. There was
no way of knowing beforehand when and in what manner the
measures taken against the persons already involved in these
matters would end. Almost hysterically one believed one saw
in every man with opposing ideas a conspirator with these SA
groups, who sooner or later were really going to revolt
against Hitler.

How far indeed persons of the right on the ground of their
opposing attitude had joined hands with the SA, which was a
powerful factor at that time, has not been established with
certainty. Anyhow it could not be judged at that time
whether or not Hitler's statements in regard to persons not
belonging to the SA were correct.

For Papen the situation at that time was as follows: He knew
of Bose's assassination, but was as yet unaware of Jung's
fate. He hoped that the latter had escaped. Three of his co-
workers were in a concentration camp. These had first to be
released from there. And also in view of the future the
suspicion had to be dispersed that any one of them as well
as Papen himself had been in contact with the SA circles in
revolt.

If Papen ever wished to make any representations to Hitler,
the first requirement for any possible success would be to
show that he was far removed from such SA circles. Papen
therefore felt obliged to assure Hitler of his loyalty and
faith.

Besides, Papen had been convinced for years that Himmler and
Goebbels were behind the attack on him and the Vice-
Chancellery and that Himmler in particular wanted to
eliminate him, having been prevented from doing so only by
Goering, and that therefore in order to safeguard himself
against these two it was necessary to assure Hitler of his
irreproachable attitude.

In judging these letters it is not their form but their
content which is essential. The whole gist of the letters is
the demand of rehabilitation for his own person and his
associates. He demands court action. He advises Hitler to
strike out from his intended Justification Law all actions
directed against persons outside the SA circle.

But what is the meaning of these demands of Papen? Their
real significance is the defence of what is legal against
the illegal actions of the 30th of June. He demands an
objective and legal clarification of all that is to be
condemned in the events of 30th June. When we consider these
events of 30th June we must always bear in mind that they
fell into two parts. The first were measures against the SA
leaders, whose radicalism had always been known and who were
always to be connected with acts of violence and independent
activities which in the past had had to be condemned. An
intervention against such people could be explained as an
act of State defence against dangerous forces which were
ever ready for revolt.

The other part consisted of measures against individuals
outside the SA circle. A court investigation would have
resulted in the clearing up of these events and in the
condemning of the responsible persons.

I believe that if while applying cool criticism one pictures
to oneself the events at that time, one can only arrive at
the conviction that Papen's letters really had no other
purpose than to achieve what he had already proposed to
Hitler, namely a rehabilitation by means of a court
procedure of those persons who had been unjustly persecuted,
and the withdrawal of the validity of the measures in
question by means of a decree. If we come now to the heart
of the matter and to what was actually desired, we cannot
give to the form of these letters the meaning which is
ascribed to them by the prosecution.

That the form in particular did not represent an approval of
the measures of 30th June, but was merely used for the above-
mentioned purpose, is best shown by the examination of the
letter of 117th July. Though at that time Papen had achieved
the release of his co-workers from the concentration camp,
his other demands were not fulfilled by Hitler. So we now
see a piece of writing which is

                                                  [Page 230]

entirely lacking even in the most elementary forms of
politeness. Merely objective statements and objective
requests. A piece of writing signed only with the name of
Papen, without even a closing courtesy formula.

As to the affair in question Papen does not retreat from his
line of conduct for a single moment. He holds fast to his
resignation and demands immediate action on it, as the
letter of 10th July, 1934, shows (Document D 17/15). He
refuses to play any part in future Government activities. He
leaves Hitler immediately after having had him called out of
the Cabinet session on 3rd July. He keeps aloof from the
Reichstag session at which the justification Law is
confirmed. He rudely declines the offer to accept the
comfortable post of Ambassador at the Vatican. Such was his
negative attitude.

As to the positive one, he strives to bring about the
intervention of the Wehrmacht. He turns to his friend
General von Fritsch. Blomberg, owing to his attitude, is out
of the question. Fritsch will not act without a formal order
from the. Reich President. So now Papen endeavours to get in
touch with Hindenburg. But Hindenburg's entourage keeps him
off.

THE PRESIDENT: You might stop there.

(The Tribunal adjourned until 23rd July, 1946, at 1000 hours.)

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