Archive/File: imt/tgmwc/tgmwc-22/tgmwc-22-213.03
Last-Modified: 2001/02/21

[DR. KUBUSCHOK, Continued]

At first this was not clearly manifest in the working
methods of the Cabinet. True, resolutions were no
longer passed, but objections by the ministers were
taken into consideration which, in individual cases,
led to the withdrawal or modification of radical Bills.
Nevertheless, the Reich Chancellor's right to formulate
the principles of political directives was already more
manifest. Hitler laid claim to this right for himself
and made it clear that the responsibility was his
alone. But more important than this development within
the Cabinet were the influences from outside. The Party
now set to work and took upon itself everything the
Government had consciously refrained from doing. The
boycott of the Jews and the smashing of the trade
unions were measures taken by the Party. The ideas of
the Party began to take hold of the masses. They
carried out what the Party liked, in its slogan, to
call: "Revolution." The witness Gisevius has summarized
this development in the following terms, which are
taken from his book, Pages 141 to 143:

  "It is not individuals that rush to National
  Socialism; it is the masses themselves which are
  roused. Because nobody wants to lag behind events,
  all strive together to outstrip the revolutionary
  development by a short head. These easily swayed
  impulses, this irrational spiritual upheaval of the
  masses

                                             [Page 197]

  can alone explain the total swing over to Nazi ideas
  (Gleichschaltung) which occurred in this early
  summer of 1933 with sudden intensity but yet
  voluntarily and spontaneously .... As masses, they
  create a new will, open up a new road."

This movement also gripped the old political parties.
They dissolved themselves voluntarily. They went even
further; they assured Hitler that their former members
would loyally collaborate with the National Socialist
State; they called upon their former members to do so.

  "The Bavarian People's Party cleared the way for
  every former member of their party to collaborate in
  the construction of the new Germany under Adolf
  Hitler's direct leadership.
  
  "The Catholic Party (Zentrumspartei) by its
  dissolution enabled its supporters to put their
  forces and experience unreservedly at the disposal
  of the National Front under the leadership of the
  Reich Chancellor for positive collaboration in the
  consolidation of our national, social, economic and
  cultural life, and to work for the reconstruction of
  a legal State order (rechtsstaatliche Ordnung)."

Even the Social Democratic Party partly followed when
the provincial committee (Landesvorstand) of the Social
Democratic Party of Wurttemberg suggested to the
holders of their mandates:

  "to carry on their activity in such a way as to
  leave no doubt as to their national sentiments or
  their good will to support Germany's new political
  structure according to the plans of the national
  revolution."

The attitude of the masses, similarly influenced, is
reflected in the results of the Reichstag election of
12th November, 1933, in which over 90 per cent of the
electors voted for the NSDAP. I am aware of the fact
that the correctness of these election results and the
method of carrying out the election have been
questioned. Whatever may have happened in regard to
influencing and falsifying the election returns, one
thing must have been clear to any impartial observer of
the conditions prevailing at that time: that such
manipulations can hardly have been of such significance
that they could by themselves have brought about an
overwhelming majority. It cannot be denied that in the
conditions as they were at that time the majority of
the voters, in the hope of bringing about a change of
the existing difficult situation, put their trust in
the Party, in the ideas and policies by which they saw
hope of economic salvation. If one considers how the
ideas of the Party had taken hold of the masses, and
that the idea of the Party centred around the
personality of Adolf Hitler, the result of the voting
and the public feeling at the time was in itself a
confirmation of the leadership idea. The vote was a
carte blanche for the supreme party leader, the leader
of the Cabinet, the Reich Chancellor.

By this development, Hitler's claim to power was
strengthened on the one hand and, on the other hand,
most of the Cabinet members did not think they should
prevent such a development. These considerations may
also have been influenced by the realization that they
could not effectively oppose Hitler's seizure of power.
In the main one restricted oneself, therefore, to
seeking to avoid a radical development and, as far as
possible, render less rigorous those changes made
outside the State machinery. Thus we see legislation
clearing up a situation created from without, giving it
legally a more moderate orderly form. If the members of
the Cabinet are reproached for moderating illegal
conditions and at the same time giving them a legal
basis, such reproaches should mainly be directed at the
men from the non-radical camp in the Cabinet. They who,
as was intended when the Reich Cabinet was formed, were
appointed to restrict the National Socialist influence,
did not use all their efforts to stem the disastrous
development. They should have warned the easily
influenced irrational masses and even have resigned
from office, protesting loudly. It is idle to examine
whether the conduct of these men was politically right
or not, whether they were weak men who believed

                                             [Page 198]

that they should avoid a perhaps hopeless resistance.
The criminal aspect of these things can really only be
judged from the angle as to whether it could be
discerned at that time that the development was a
preparation for the things that happened later and
which are indicted under the Charter. If by the
formation of the Cabinet a real revolution, a civil
war, was avoided, they were entitled to believe that
they had thus sacrificed at least something to the
general mood in order to avoid a dangerous reaction of
the incited masses. It was not unreasonable to hope
that this trend would remain within the bounds of
legality and reason and find its natural level.
Politically, this was doubtless a false idea. The
radical tendencies of those who, even after that,
always went to extremes were underestimated. It must be
borne in mind, however, that even those Cabinet members
who came from the non-radical still clung to the idea
that the responsible leader of the State would bring
reason to bear and call a halt to this trend.

Those ministers who did not agree with this course
tried to halt the development, but with diminishing
success. Their attempts met with still less success
when the authority of the Reich President, the weight
of the bourgeois Right and the position of the
Reichswehr ceased to form a counter-balance. Hitler
understood how to use Hindenburg for his own purpose.
The bourgeois Right no longer presented a close united
front; many broke away and went over to the National
Socialists. The parties dissolved themselves, and their
followers were now robbed of their cohesion. Blomberg
became a follower of Hitler. The ministers now in
question had no support from the other side. Hitler
made full use of the fact that he had been called by
the people and that he was solely responsible to the
people. To make open protest would have been
impossible. The publication of Papen's Marburg speech
was prohibited; his departure from the Cabinet as the
result of this only served to make the circle of
ministers, dissatisfied with developments, still
smaller and thereby less influential. Any minister who
entertained thoughts of resigning knew that his post
would be filled by a new man who would not hinder, but
would only further this development. Any minister who
really had the interests of his Department at heart did
not like the idea of transferring his field of work to
these new men. It is clear that those who were
confronted with this question did not want to endanger
that which they in their fields of activity had
laboriously achieved by curbing and correcting the
effects of the laws, in conducting their policy as
regards personnel and in other ways, and all they
wanted to do was to continue this work also in the
future.

The Head-of-the-State Law of 1st August, 1934, is the
legal conclusion and the final word of the previous
development. It is a Cabinet Law. Hitler demanded the
consolidation of his office with that of the Reich
President. According to his declaration this
consolidation was not to be the final solution; only
the momentary situation was to be considered, which was
that he personally would not recognize a new Head of
the State above himself, but on the other hand, he
could not give up his office as Reich Chancellor. He
pointed out that this measure would be sanctioned by a
referendum, to take place after the death of
Hindenburg. In this state of affairs the Cabinet did
not consider itself able to oppose the demand of
Hitler. The result of the plebiscite was a foregone
conclusion. In any case Hitler would have achieved his
aim, even if the Cabinet had refused to pass the law.
The Cabinet Law of 1st August, 1934, is therefore
actually nothing else but a preparatory law, which in
any case could be and was achieved by a plebiscite. The
legal sanctioning of the dictatorship, therefore, was
only a confirmation of the powers held hitherto and a
consequence of the overwhelming will of the people at
that time.

This law clarified the situation, not only as regards
power-policy, but also as regards constitutional law.
The law represents the complete establishment of the
monocratic principle in the State. In his person Hitler
consolidated the right of the Reich President,
especially the emergency powers law, with the right of
the Reich Chancellor to determine the fundamental
principle of policy. As

                                             [Page 199]

Commander-in-Chief of the Armed Forces he finally held
in his hand the strongest instrument of power in the
State. Actually every State organ became dependent on
his will and had to follow his directions. The Reich
Cabinet was not excepted. This became outwardly
apparent by the law concerning the oath of the Reich
Ministers of 16th October, 1934. The new oath for the
Ministers was the same as the general oath for civil
servants and soldiers, and showed that the position of
the minister had changed to that of a high-level State
official bound by directives.

In line with this legal situation, the working
procedure of the Cabinet and the significance of the
Cabinet sessions also underwent a change. In so far as
foreign policy decisions were concerned, Hitler only
announced what his resolve was, mostly in one long
monologue on the general political situation. Later on
he only informed the Cabinet of the accomplished facts.
He informed the Cabinet of the occupation of the
Rhineland after the troops had already entered it. In
the case of fundamental domestic political measures,
for example, the Nuremberg Laws, the Cabinet as such
was not previously consulted. The majority of the
ministers were surprised when the law was suggested in
the Reichstag Session of the Nuremberg Party Rally. In
the drafting of minor laws of administrative importance
only the completed draft and the reasons for it were
submitted. In order to avoid the expression of
departmental objections in the Cabinet session, the
drafts were previously made "ripe for the Cabinet" in
accordance with a directive of Hitler, i.e., the
specialist ministers were given the opportunity in a
preliminary discussion to voice their departmental
objections to the departmental minister responsible for
the initial draft. Only after these objections had been
considered did the final draft reach the Cabinet
session. Therefore, no allowance was made for a
consultation in the Cabinet session. General political
considerations which concerned these drafts were
subject to the general decision of Hitler. If,
therefore, a general political question did arise,
about which Hitler's point of view was not yet known,
the department was not able to deal with it until his
directive had been obtained. Thus the Cabinet sessions
not only lacked any political significance, but also
any practical purpose. Hitler therefore convoked the
Cabinet at less and less frequent intervals, until
finally after a last session in February, 1938, which
was merely called to receive a statement by Hitler, no
further Cabinet sessions whatsoever took place.

Henceforth the Cabinet sessions were completely
replaced by circulation procedure (Umlaufsverfahren).
The working minister submitted the Bills to the other
members of the Cabinet to enable them to raise
objections in their own departmental fields. It stands
to reason that basic political questions and political
measures, which Hitler decided as he saw fit, were
never dealt with by the circulation procedure. As was
shown during the hearing of the witnesses, most of the
ministers did not know any more about important
political events than any other person. In most cases
they learnt of the facts afterwards by Press or radio,
unless it happened that something leaked through to
them through secret channels which they too were
prohibited to use. This may have happened more
frequently in the sphere of the ministers than
elsewhere. But this casual information did not give a
comprehensive and authentic picture of the actual
situation. Only the few close confidants of Hitler were
really fully and authentically acquainted with the
events. This confidence, however, was not necessarily
given to a person occupying the post of a minister. The
overwhelming majority of the ministers who did not
belong to this close circle learned, for example, of
the march into Austria, the setting up of a
Protectorate and the introduction of the individual war
measures, only after the measures had become effective
and had been publicized.

The circulation procedure did not bring about any
personal cohesion among the ministers. Even though, as
a rule, the Bills were submitted to all ministers -
this was not always done, as shown by Schacht's
testimony - this did not mean a

                                             [Page 200]

joint collaboration among all the ministers. This was
only done to enable each minister to examine whether
the interests of his department might be affected by
the draft. The individual minister was thereby more
strictly limited to his particular department. His task
was merely to submit the objections of his department
and to see to it that the powers of his department were
not diminished or its competence impugned. Departmental
interests are special interests, and if things are
restricted to them no room is left for general aims and
purposes.

The whole manner and form of the circulation procedure
was designed to avoid the close co-operation of the
ministers.

In the last phase of the development this intention of
Hitler manifests itself clearly and openly. The hearing
of the witnesses has shown that his ministers, except
for the very small number who enjoyed his confidence,
were not allowed access to him for years and that all
efforts of the ministers to this end were in vain.

Several ministers made attempts to have the Cabinet
meetings reintroduced and thereby provide an
opportunity to express their opinion and obtain
information. Hitler refused this with the remark that
he wanted to have nothing more to do with this
defeatists' club. He even forbade a personal gathering
of the ministers arranged by Lammers in the form of an
evening beer party.

If the prosecution works on the assumption that the
Cabinet members as a group held the authoritative power
in the conduct of the State and willfully directed its
whole policy towards a contemplated unlawful war, then
it can be said in rebuttal that the Cabinet had
disintegrated and was no longer a cohesive whole, and
out of this there had evolved a single directing head
in the person of Hitler.

But other facts prove that there was no functional
cohesion between the ministers. Between Hitler's
directives and their execution by the departments of
the individual ministers, higher level offices were
created which, in their turn, had authority to issue
directives to the individual minister. The departmental
minister was, therefore, further removed from the
headquarters of the decisive authority; he became
merely the executive agent of superimposed directing
offices. The "Trustee for the Four-Year-Plan," the
"Minister-Councillor for the Defence of the Reich," the
"General Plenipotentiary for the Employment of Labour"
and offices were created by Hitler himself and provided
with full legislative powers by him personally. Not
only were these offices able to compel the departmental
minister to issue specific administrative directives
and ordinances, but what is more, they could themselves
issue these directives to the subordinate offices over
the heads of the departmental ministers and this
diminution of their powers and authority was obviously
brought about by Hitler intentionally. The Cabinet as
an apparatus for the execution of his legislative
orders seemed too unwieldy, too complicated and too
obstructive, and the position of the minister in his
department still too independent. Hitler therefore
delegated legislative power to isolated or minor groups
who, as men enjoying his special trust, ensured the
prompt execution of his wishes. By the creation of
these new subordinate offices, he restricted the power
of the department. Amidst the confusion of the complex
relations between the various levels, the difficulty of
defining where competences and authorities began and
ended, Hitler's orders and directives were the final
solution, the sole reliable guide. His directives
became more than ever indispensable, and the ministers
had to refer to them. The picture given by the
prosecution of a close group assembled in Cabinet
sessions and functioning efficiently is thus
considerably altered. An entirely new State apparatus
was put into operation, a culmination of absolute
powers in the person of Hitler, an intermediate stratum
introduced by Hitler and subordinate only to him in the
form of the newly created institutions discussed above,
headed by men who were not all members of the Reich
Cabinet as defined by the prosecution, and finally the
individual departmental ministers as executive organs
who in this organizational structure were naturally
restricted solely to their own field of work.

                                             [Page 201]

Finally the keeping of absolute secrecy, decreed by
Hitler, was a further factor which prevented the
ministers from combining. No minister was to know more
than was absolutely necessary for him to carry out the
task specially assigned to him. Even things which
happened in his own department could be kept secret
from the minister. I refer to the affidavit of
Harmening from which it appears that the State
Secretary was entrusted with the preparations for the
intended war with Russia over the head of the minister
and was ordered to keep it secret from his minister. No
clearer proof is needed to show that Hitler revealed
his plans only to those to whom he entrusted the task
of carrying them out, and whom he considered specially
suited for the purpose, irrespective of the position
they held.

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