Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-176.08
Last-Modified: 2000/09/19

By DR. PANNENBECKER, Continued:

The demands for officials for the occupied territories was
concentrated in the Reich Ministry of the Interior. That is,
as the examination of the witness Lammers indicated - and I
quote from the above-mentioned Document 3082-PS - "the
unified co-operation of the supreme Reich authorities with
each other and with the Reich Commissioner, which is to be
adapted to the needs of Norway."

Also, the hearing of evidence for the defendants Rosenberg,
Frank and Seyss-Inquart, who functioned as chiefs of civil
administrations in the occupied territories; has on no
occasion revealed any kind of co-operation with the
defendant Frick

                                                  [Page 309]

either in his capacity of Reich Minister of the Interior or
of Director of the Central Office in this Ministry.

Now, the prosecution has referred to several documents in
order to prove that the defendant Frick exercised extensive
control over all occupied territories. Actually, however,
those documents reveal no more extensive an administrative
activity than what I have just stated. Document 3304-PS
gives proof of an administrative activity for the
incorporated Eastern territories. This coincides with my
statement of the case that the incorporated Eastern
territories, in their internal administration, were subject
to the Reich Ministry of the Interior by virtue of their
constitutional incorporation into the German Reich. The
document however, bears no reference to the administration
of the Eastern occupied territories, i.e., the Government
General, or to the occupied Soviet-Russian territories.

The other document submitted, 11039-PS, Exhibit USA 146,
proves the transfer of administrative personnel from the
department of the Reich Ministry of the interior to the
Reich Minister for the Occupied Eastern Territories, a
typical task of the central agency, which I have already
discussed. The prosecution has submitted further documents
which reveal that the Reich Ministry of the Interior had a
hand in the bestowal of German citizenship. Even this does
not, however, prove any administrative authority of the
defendant Frick for the occupied territories, but merely a
typical activity of a Minister of the Interior, whose
department is competent for the general regulations
concerning German citizenship, including cases where persons
living outside the Reich territory are involved. Neither,
therefore, can this activity of the Minister of the Interior
be proof of an extensive administrative policy and a general
responsibility of the defendant Frick for the administration
of the occupied territories.

In particular, in the occupied territories which were not
incorporated into the Reich Territory, Frick had no
authority or competence whatsoever as far as the tasks of
the police were concerned.

Hitler directly commissioned Himmler to carry out police
work in the occupied territories - see Document 1997-PS,
Exhibit USA 319 - Hitler's decree concerning the security of
the Eastern territories by the police, for which Himmler was
directly responsible. The same is revealed by Document 447-
PS - Exhibit USA 315 - a directive of the OKW, dated 13th
March, 1941, to the effect that the Reichsfuehrer SS in the
occupied Eastern territories is charged with special duties,
in the execution of which he acts independently and on his
own responsibility. It is not different either in the case
of the police tasks in the other occupied territories, which
at times were assigned either to the Reichsfuehrer SS
Himmler or to the SS and police chiefs who, for purposes of
discipline, were under Himmler only, although in many cases
they were actually assigned for service with the civil
administrative chief in question - the Governor General in
Poland for instance, see excerpt from Frank's diary in the
Frick document book under No. 25, also Exhibit USSR 223. In
no case, therefore, were police tasks in the occupied
territories under defendant Frick's jurisdiction.

Consequently, the defendant Frick bears no responsibility
for crimes against the laws of war and against humanity in
the occupied territories, as in these territories he could
neither order crimes nor prevent them.

Concerning the territory of the German Reich, I must now
examine the claim of the prosecution as to the
responsibility of the defendant Frick for all the police
measures, including the Gestapo, as well as for the
establishment and administration of concentration camps. May
I first refer to the documents submitted by me in evidence
which reveal that the police, including the Political
Police, were, in 1933, still the concern of the individual
"States" within the Reich, such as Prussia, Bavaria, etc.

In Prussia, the Secret State Police (Gestapo) and the
concentration camps were established and administered by
Goering in his capacity as Prussian Minister of the
Interior. The tasks of the Political Police were then
transferred by a Prussian law dated 30th November, 1933, to
the office of the Prussian Prime Minister, which

                                                  [Page 310]

was also administered by Goering. So that when the offices
of the Reich and the Prussian Minister of the Interior were
merged, in the spring of 1934, Frick did not assume control
of the Political Police as it still remained with Goering in
his capacity as Prime Minister.

A similar regulation prevailed in the other "States" where
Himmler was gradually given the duties of Special Deputy for
the Political Police. During this period, the Reich Minister
of the Interior had only the right of so-called "Reich
supervision" over the States, which Frick made use of by the
enactment of general instructions and legal measures: and
this is the only point where Frick, as Minister of the
Reich, could exercise any influence on the affairs of the
Political Police and concentration camps.

Frick made use of this possibility in accordance with his
basic attitude, as confirmed by the witness Gisevius, to
prevent and repress arbitrary actions by the Political
Police as far as was in his power in the circumstances then
prevailing. He endeavoured, by the enactment of provisions
of law and procedure, to restrict, the arbitrary practices
of the Political Police of the States.

I refer to Document 779-PS, submitted by me as Frick Exhibit
6.

This is a decree dated 12th April, 1934, containing
restrictive provisions of this sort under the descriptive
preamble - which I quote - "In order to remedy abuses
occurring in the application of protective custody."

This is followed by directives to the governments of the
States forbidding the application of protective custody in
numerous cases where it had previously been improperly
applied by the Gestapo. In this struggle of Frick against
arbitrary actions by the Political Police of the States, the
police had, of course, the greater advantage, because they
were under the direction of Goering and Himmler, with whom
the "bureaucrat" Frick - as Hitler disdainfully called him -
could not compare as regards influence in the Party and
State. For that reason the Political Police of the States in
practice frequently is regarded Frick's ordinances. But
Frick did not stand by idly as long as there was reason to
hope that through his intervention the unrestrained
practices of the Political Police of the States could be
directed into orderly and legally regulated channels.

I refer to Document 775-PS, Exhibit Frick 9, a memorandum
from Frick to y Hitler, which clearly and unequivocally
calls a spade a spade, mentioning legal q insecurity, unrest
and embitterment, and severely criticising individual cases
of misuse of the right to order custody by the Political
Police of the States.

Here I insert: The same document also proves that in the
struggle concerning the Church, the defendant stood clearly
on the side of the Churches. This is also proved by Neurath
Exhibit 1.

In his testimony the witness Gisevius refers to an
additional memorandum which he himself drew up for Frick as
a further attempt to restrain and legally control, through
severe criticism and suggestions, the arbitrary practice of
the Political Police of the States. All of these attempts
failed because Frick's political influence was too
insignificant and he could not assert himself against
Goering and Himmler, because, a fact which Frick did not
realize at the time, the practices of Goering and Himmler
were essentially in harmony with what Hitler actually wanted
himself. Thus, the documents submitted by the prosecution,
taken in conjunction with the evidence offered by the
defence, show that in the domain of the Political Police and
in ordering custody, Frick had a certain competency at a
time when the police was still a service belonging to the
individual States. This evidence also shows that during that
time Frick's jurisdiction was very limited, and it further
shows that Frick, acting within the bounds of his
competency, took action only in order to intervene against
the terror and arbitrary actions of the Gestapo through
general instructions and through repeated complaints in
individual cases, so that the conclusion is not justified
that Frick in any way positively participated in the
Gestapo's measure of terror and violence. At a later period
the legal situation changed.

                                                  [Page 311]

With Hitler's decree of 17th June, 1936 - Document 2073-PS,
Document Book Frick 35 - police tasks for the entire Reich
were combined and uniformly transferred to Himmler, whose
department was formally made a part of the Ministry of the
Interior under the title "Reichsfuehrer SS and Chief of the
German Police in the Reich Ministry of the Interior."

The question now is whether this new regulation conferred on
Frick, in his capacity as Reich Minister of the Interior,
any authority of command or any right to issue instructions
which could be enforced with regard to the Political Police,
its offices and functionaries.

When Himmler, in accordance with his own wish, which he
obtained because of his influence on Hitler, was appointed
Police Chief for the entire Reich, there did not exist in
Germany a police or security ministry, properly speaking.

This is the reason why the uniform direction of the police
through Himmler in person was formally attached to the Reich
Ministry of the Interior. But Himmler wanted to be more than
a department chief in the Ministry of the Interior.
Therefore a position entirely novel in German administrative
law was created for him and his purposes. The entire sphere
of the police was separated from the rest of the activities
of the Ministry of the Interior and placed under Himmler's
special jurisdiction under a newly created title of office
which, as a government office, contained the words
"Reichsfuehrer SS," thereby making it possible for Himmler
to carry out Political Police tasks under a title of office
characterising him as Reichsfuehrer SS and in that capacity
giving him apparent independence from any instructions
issued by a Minister of State.

In order to accentuate further the independence of his
office also within the bureaucratic hierarchy, Himmler was
given the further right, from the very beginning, to
represent police matters before the Cabinet independently
and on his own responsibility - like any Reich Minister -
which is also shown in the decree concerning his
appointment, Document 2073-PS.

This decree is a typical example of the overlapping of
competencies which Hitler favoured so very much in his
system of government. Himmler became part of the Ministry of
the Interior, and, as an official of the Ministry of the
Interior, was formally bound to abide by instructions of the
Minister. However, he was also an independent police chief
with the right to represent before the Cabinet on his own
responsibility matters pertaining to the police, thus
excluding Frick in that respect. In addition to that, his
orders simultaneously carried the authority of a
Reichsfuehrer SS, in which Frick had no authority at all to
interfere. The actual effects of this involved arrangement
brought out in even stronger measure the tremendous
influence of Himmler on Hitler. In keeping with his
convictions, to safeguard a well-ordered State apparatus,
Frick repeatedly tried to intervene through general
instructions intended to restrain the arbitrary acts of the
Political Police.

As late as 25th January, 1938, he tried through a decree to
curtail the admissibility of protective custody, and he
forbade it in a series of cases of improper application.

I refer to Document 1723-PS, Exhibit USA 206, an extract of
which under No. 36 is in the Frick document book. He
prohibited protective custody in lieu of, or in addition to
legal penalty, forbade its application by police authorities
of the medium or lower level and ordered the compulsory
prior hearing of accused persons. He decreed periodical
examination of the reasons for the continuance of
confinement and on principle forbade the protective custody
of foreigners whom the police had only the authority to
expel from the Reich in case of acts endangering the State.

An obvious plea is that the Gestapo in practice disregarded
all these instructions of Frick and that Himmler and his
subordinates maintained an absolute reign of terror and
violence.

This is correct and has been confirmed in detail by the
witness Gisevius. But something else is of importance to me
in the defence of Frick: to show that Frick

                                                  [Page 312]

himself disapproved such arbitrary acts and that he tried to
do all in his power to oppose such arbitrary acts.

Finally, however, Hitler forbade even this. He informed him
through Lammers  - as confirmed by him as witness - that he
was not to concern himself with police matters, that Himmler
could manage that better by himself and that the police were
doing well under Himmler.

Thus Himmler finally came to have the police completely in
his hands and he y also gave outward expression to this by
later dropping, with Hitler's consent, the designation in
his official title "in the Reich Ministry of the Interior,"
and simply referred to himself as "Reichsfuehrer SS and
Chief of the German Police," which is also shown in the
testimony of the witness Lammers.

I believe that, in view of the circumstances, the problem of
defendant Frick's criminal responsibility for the Political
Police and their arbitrary measures is not established by
the fact that the entire police was formally incorporated in
the Reich Ministry of the Interior after the year 1936,
since it has been proved that Frick himself did not
participate in arbitrary acts, but on the contrary, tried
again and again to intervene against such arbitrary practice
with all the power he possessed; which, however, was no
match for the personality of Himmler and his influence with
Hitler.

In order to obtain a fair judgement, I request consideration
of the actual situation as to command and power and not the
purely external circumstances of a formal incorporation of
the tasks involved in the Reich Ministry of the Interior.

I insert the following here: The prosecution, during their
presentation on 3rd July, 1946, submitted Document D-181,
Exhibit GB 528, and stated in connection with that document
that it proved that the Political Police were not only
formally incorporated with the Ministry of the Interior, but
that Frick was in fact responsible for the measures of the
police. Actually, the document only shows that Frick had
been included as Minister of the Interior in the proceedings
concerning the sterilisation of those suffering from the so-
called hereditary diseases. The document has nothing to do
with any measures of the police, least of all with any
measures of the Political Police. Moreover, there is no
information in it regarding Himmler's position in the
Ministry of the Interior.

In this connection, I must briefly deal with the reference
of the prosecution. to the fact that Hitler's decree
concerning the appointment of Himmler as Chief of the German
Police - Document 2073-PS - had also been signed by Frick ,
himself.

I believe that the relationship between Frick and Himmler,
as well as the different relations of both to Hitler, are
sufficiently clear to justify the conclusion that the
appointment of Himmler expressed solely an agreement between
Hitler and Himmler to which Frick would have objected in
vain.

We are confronted with the same problem which applies to so
many defendants, namely that of the formal counter-signing
of an order which was issued by Hitler and which was signed
as a matter of form by the head of a department, although
the department head had no influence on the order and could
not have prevented it, especially as the order would have
had full constitutional effect as a Fuehrer decree without
the minister's added signature.

I now have to deal with several documents which the
prosecution considers to have a bearing on actual activity
by the defendant Frick within the sphere of tasks of the
Political Police.

I have already dealt with Document 3304-PS, to which the
prosecution referred in this connection. It concerns an
ordinance on the assignment of a higher Police Chief to the
Reichsstatthalter (Reich Governor) in the Eastern
territories which were incorporated into the German Reich,
and hence deals with the administrative structure of the
Reich Governor's office in a part of the Reich.

The mentioned decree therefore falls within the framework of
the general competence of the Ministry of the Interior and
to that extent does not prove any special police activity.

                                                  [Page 313]

Moreover, this decree has nothing to do with any arbitrary
acts of the Gestapo.

On the same lines is the decree of 20th September, 1936 -
Document 2245-PS - concerning the appointment of police
advisers in the Prussian provincial administrations, which
were also subordinate to the Reich Ministry of the Interior
as offices of the general internal Reich administration.

The assignment of a police adviser to the office of general
administration in the province is a measure of internal
Reich administration.

This measure, too, had no connection with arbitrary acts of
the Gestapo, and also it particularly does not prove the
issue of any instructions by the defendant to the Gestapo.

The situation is no different with respect to the documents
which have been appraised by the prosecution as bearing on
the participation of the defendant in the establishment and
administration of concentration camps, or as an approval of
terror methods used by the Gestapo.

In the statement of 22nd November, 1945, the prosecution
referred to Document 2533-PS, as proof of the approval of
these arrangements by the defendant Frick.

I need not go deeply into the contents of the document.

It concerns an article by the defendant Frank in the journal
of the Academy of German Law, of which Frick has erroneously
been called the author by the prosecution. Another document,
in the opinion of the defence, does not contain sufficient
evidentiary value to be utilised for a legal judgement.

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