Archive/File: imt/tgmwc/tgmwc-08/tgmwc-08-71.01
Last-Modified: 1999/11/22

                                                   [Page 74]

SEVENTY-FIRST DAYFRIDAY, 1st MARCH, 1946THE PRESIDENT: At
the conclusion of the argument on the organizations, which
the Tribunal anticipates will finish before the end of
today's session, the Tribunal will adjourn into closed
session. Tomorrow morning at 10 o'clock the Tribunal will
sit in open session for consideration of the applications
for witnesses and documents by the second four defendants.
Will the defendant's counsel who was in the middle of his
argument now continue? Dr. Merkel, had you finished?

DR. MERKEL (counsel for the Gestapo): Yes, sir.

DR. LOEFFLER (counsel for the SA): May it please the
Tribunal, the objections and misgivings expressed yesterday
by the defence regarding the criminal proceedings against
the six accused organizations are particularly applicable
when judging the SA.

No other organization is so much exposed to the danger of a
sentence contrary to our sense of justice as is the SA. I
ask the Tribunal's permission to submit the reasons for this
fact.

The demand of the prosecution that the SA should be declared
a criminal organization affects at least four million people
at a conservative estimate. The limitation according to
groups approved yesterday by Justice Jackson was gratifying
and welcome; but it will have no appreciable effect on the
members since the groups eliminated yesterday, the armed SA
units and the bearers of the SA badge for physical culture,
were not full members of the SA. The only persons so far
eliminated, therefore, are the SA reserves. As no limitation
according to time was made, these criminal proceedings will
include everyone who ever belonged to the SA, even for a
very short time, during the twenty-four years between its
establishment in 1921 and its dissolution in 1945, that is
to say, during a period of almost a quarter of a century.

We heard yesterday from the prosecution that the criminal
acts charged to the organizations are the same as those
charged to the main defendants, namely, Crimes Against
Peace, War Crimes, and Crimes Against Humanity, as well as
participation in the Common Conspiracy.

If we now contemplate the possible participation of these
four million former SA men in these four important
categories of crime, we get the following picture:-

Crimes against the laws or customs of war are not charged to
the SA. It is true that the prosecution presented an
affidavit, saying that the SA also took part in guarding
concentration camps and prisoner of war camps and in
supervising forced labour; but, according to the
presentation of the prosecution, this did not occur until
1944 within the framework of the total war raging at that
time, and it has not been charged that this activity of the
SA involved any excesses or ill-treatment.

In none of the atrocities reported here by witnesses and
documents did the SA, with its four million members,
participate. The few offences against humanity charged to
the SA by the prosecution and committed by individual
members in the course of almost a quarter of a century, can
in no way be compared with the serious Crimes Against
Humanity of which we have heard here.

                                                   [Page 75]

The occupation of the trade-union buildings by the SA,
adduced by the prosecution as another point, took place on
the order of Reichsleiter Ley, who used the SA for this
operation, and this happened after the seizure of power.

Even the prosecution did not assert that any outrages, ill-
treatment or excesses occurred when this operation was
carried out. The fact that in connection with the seizure of
power in the spring of 1933 individual excesses occurred and
that the American citizens Roseman and Klauber, according to
the affidavits submitted by the prosecution, were beaten on
this occasion, is certainly regrettable. However, such
excesses on the part of individual persons are unavoidable
in organizations comprising millions of people and,
considered, by themselves, are hardly proper ground; for
declaring the entire organization criminal.

The participation, finally, of the SA as guard troops in
concentration camps is, according to the presentation of the
prosecution, restricted to single exceptions and ended
anyway in 1934. The Commandant of the Concentration Camp
Oranienburg, according to the presentation of the
prosecution, was an SA Fuehrer. However, it is not asserted
that he committed any atrocities.

The second case, the ill-treatment of prisoners in the camp
of Hohenstein, by SA and SS members in 1934 led to criminal
proceedings, and the SA men guilty were sentenced to
imprisonment of up to six years.

As a last individual act there remains the participation of
the SA in the excesses during the night from 10th to 11th of
November, 1938, when the windows of Jewish stores were
broken and the synagogues were burned. Here, too, the plan
and the order did not originate with the SA. The SA was
simply commissioned by the highest Party leadership to carry
out this order. Finally, if we consider that during the
political struggles of 1921 to 1933 the old SA was involved
in brawls - often purely defensive-with political opponents,
and that it did not develop into an organization with
millions of members until after the seizure of power, we
arrive at the following conclusion, expressed in figures:-

On the basis of the presentation of the prosecution at most
two per cent. of all the indicted former SA members
participated in punishable individual actions; ninety-eight
per cent. of the four millions, in accordance with their own
convictions, kept their hands clean of any such punishable
individual acts.

Here, too, the prosecution will not want to insist that the
excesses of these two per cent., considered by themselves,
should brand the entire organization as criminal. The ninety-
eight per cent., that is in round numbers three million nine
hundred thousand former SA members, must nevertheless defend
themselves here against the charge of having participated in
the preparation of the war of aggression or in the planning
or execution of the common conspiracy; or, formulated more
strongly, against the charge of having belonged to
organizations which pursued these criminal purposes.

What is the result if we apply the definition of the
criminal nature of an organization as formulated yesterday
by Justice Jackson and Sir David Maxwell Fyfe?

The SA members will acknowledge that the criteria under
Points 1 and 2 as defined yesterday are also true for the
SA, namely, that the SA was an aggregation of numerous
persons with collective aims and a membership which was
voluntary in principle. However, they will strenuously deny
the application of the criteria 3, 4 and 5. Point 3 requires
that the organization pursued objectively criminal aims in
the sense of Article 6 of the Charter. The millions of
members, if testifying here, would state that neither in the
programmes nor in the speeches of their leaders had they
been called upon to pursue such criminal aims or methods.
Whether the leaders of the SA pursued such criminal aims in
secret or not these people are not in a position to judge.
Whether such criminal aims were pursued secretly by the
leadership of the SA can be determined
only by the Tribunal, and only now, when the archives have
been opened, witnesses can testify, and the documents are
submitted to the Court.

                                                   [Page 76]

Now, Point 4 of the prosecution's definition, if I
understood justice Jackson correctly yesterday, requires,
beyond this, as an element of crime involving subjective
guilt, that the aims and methods of this organization were
of such character that a reasonable, normal man may properly
be charged with knowledge of them.

I should like at this point to emphasize particularly that
I, in agreement with my colleagues, do not consider this
definition an adequate protection, since it means that a
member may be punished even if he did not recognize the
criminal nature of the organization, but ought to have
recognized it by application of reasonable care. I know of
no system of penal law in any modern civilized State which
holds that negligence, even of a gross or serious nature, is
sufficient to constitute guilt of a defamatory common crime,
i.e., of a crime belonging to the group of gravest offences.
A crime of this category can be committed only with
intention. Perhaps the prosecution can later discuss this
question on the basis of their knowledge of the particulars
of Anglo-Saxon and other foreign legal systems.

This point seems of particular importance to me because - if
neglected - there is the danger that the judges,
particularly the Anglo-Saxon judges, will apply the
political standards of their countries to German conditions.
The sober political instinct that is characteristic of the
citizens of England and America is non-existent in the
Germans. We area politically immature people, credulous and
consequently especially susceptible to political
misguidance. The Court should not overlook this
dissimilarity when passing its judgement on the good faith
of the individual members of the organizations. According to
the impressions which the SA defence had received to date
from its visits to camps, and from numerous letters, the
majority of SA members are convinced that they did not
belong to any criminal organization. Among other reasons are
the following subjective ones:-

It was generally known and has been specifically stated in
the Organization Book of the Party - Document 1893-PS, Page
365 - that only a person whose character was unobjectionable
could join the SA. It is further stated verbatim, and I
quote: "Unobjectionable reputation and no criminal record".

The members of the SA maintain that they know of no case in
which a gang of criminals or conspirators required in their
regulations similar conditions for membership.

Part of the essence of a conspiracy is the idea that its
criminal aims be kept secret from its opponents. An
organization of several millions is, by its very nature, not
suited to carrying out a plot. The leaders of the SA
emphasized in numerous addresses that they wanted to
maintain peace under all circumstances. They pointed out
that Germany would be a great danger to European peace if
she were without defence and arms in the heart of Europe,
but that being in a state of preparedness was the best
guarantee for securing future peace in Europe. The simple
members point again and again to the fact that foreign
powers gave diplomatic recognition to the leaders of
National Socialism. They consider this fact not simply an
act of "international courtesy" but are convinced that
foreign governments would not have entered into relation
with the German Government. if that government had consisted
of obvious criminals.

I might mention a particularly characteristic example: the
Indictment against the SA is substantiated by two documents.
These are Documents 2822 and 2823-PS. According to these
documents, as early as May 1933 Lieutenant Colonel Auleb, a
deputy of the Reich War Ministry of that time, was detailed
to the high command of the SA in order to assure liaison
between the heads of the two organizations. But the whole
affair was treated as strictly secret and it was ordered
that Auleb should wear the SA uniform for the purpose of
"camouflage." How, I ask, should or could a simple SA member
have known anything of such affairs? I have mentioned here
only a few points put forward by SA members which in the
opinion of the defence do not constitute unfounded
subterfuges, but which show that the majority of these
people never thought of participating in a criminal
conspiracy.

                                                   [Page 77]

Also the fifth criterion set up yesterday by the prosecution
to define a criminal organization, the close connection
between the main defendants and the SA, is in the case of no
organization so difficult to prove as in the case of the SA.
This may, at first, sound surprising; of the main defendants
here, six were high-ranking members of the SA. Nevertheless,
a closer scrutiny shows that there were no close connections
at all. Except for Goering, none of the chief defendants
ever exercised command authority over the entire SA. The
rank which these defendants had in the SA was an honorary
rank, and so to speak, merely decorative. Consequently, the
prosecution has mentioned only Goering's connection with the
SA in its recent list of the criminal elements. But even
Goering's connection with the SA, curiously enough, is very
slight and is actually confined to a period of three-
quarters of a year, i.e., nine months, namely from February
1923 to 9th November, 1923, that is to say, twenty-three
years ago. Goering was never, as stated in Appendix A of the
Indictment, Reichsfuehrer of the SA. That is an error.
Rather, in February 1923 Goering was commissioned to take
over the command of the then existing Party group for the
protection of meetings, the so-called Sturmabteilung.
Goering led the SA until the November putsch of 9th
November, 1923. On that day his command over the SA came to
an end and was never revived. Later Goering was given by
Hitler honorary command of the unit "Feldherrnhalle." He was
the honorary commander, not the active commander of this
unit. I believe the difference between honorary and active
command of a regiment is known in all States. I do not have
to give any further explanation. Honorary command has a
purely decorative significance.

The task which the SA had to carry out under Goering in the
year 1923 was the protection of meetings. Anyway, it cannot
be charged that as early as that the SA, in co-operation
with Goering, planned the crimes stated in Article 6 of the
Charter, or that these aims could have been anticipated at
that time in any tangible form. Neither can it be charged
that Goering ever made use of the SA after 1923 for carrying
out any criminal plan. The man who led the SA from 1930 to
1934, Ernst Roehm, was an embittered opponent of Goering.
After his death the SA was led by Victor Lutze from 1934 to
1943 and from 1943 until its dissolution by Wilhelm
Schepmann.

According to Article 9, Paragraph 1 of the Charter, an
organization can be declared criminal only in connection
with any act of which a chief defendant may be convicted.
From a legal and factual point of view I have the gravest
doubts as to whether the facts of the case in 1923, as
described by me, are sufficient to comply with the
requirements of the Charter as far as the SSA is concerned.
This could be done only if the Tribunal had reason to pass
sentence now on Goering's activity as leader of the SA group
for protecting meetings twenty-three years ago, including
the November putsch, as a special crime. This, however,
would be at variance with the fact that this entire action
was settled with legal effect by the amnesty of the
democratic Reich Government, whereby the matter was,
disposed of at the time.

May it please the Tribunal, if it is a fact in the case of
any organization, then certainly it is a fact in the case of
the SA, that its being listed among the criminal
organizations is contrary to the real picture. Large circles
abroad, particularly those who were forced to leave Germany
in 1933, knew nothing of the complete change of structure
which the SA went through during the following years. The
foreign countries heard at every Reichstag session the
traditional song "The SA Marches", while as a matter of
fact, the SA had long since lost all political influence and
had been transformed en masse into an association with a
huge membership, the very size of which rendered it harmless
as far as conspiracy was concerned, and which showed all the
characteristics of the so-called German club-mindedness. I
refer in full here to the statements made by Colonel Storey
himself in his speech for the prosecution. The organization
through which the SA was then completely eliminated from
political life was, as is well known, the SS, and this
happened on

                                                   [Page 78]

the occasion of the so-called Roehm putsch in 1934. That
indeed the SA and SS always confronted each other like rival
brothers is a fact which, in the interests of truth, should
not remain unmentioned. For all these reasons the SA is
judged on a completely different basis, even by German
opponents of National Socialism, and this has already led to
contradictory results, the speedy elimination of which by
the prosecution or the Tribunal would be highly desirable.

This is the opportunity to point out the following facts:
the SA, up to the higher ranks, is not, as a matter of
principle, subject to arrest, unlike all the other
organizations. The new Denazification Law which recently
came into force after thorough consultation between German
circles and the Military Government, and which is now the
law in force throughout the entire American Zone, regards
all SA members of a rank lower than that of Sturmfuehrer as
neither active Nazis nor criminals. According to the
electoral procedure now in force in the American Zone of
Occupation, which was recently the basis for elections in
thousands of German communities under the directives of the
Military Government, the ordinary SA members, in so far as
they were not Party members, were not only permitted to
vote, but were also eligible for election. The same people
who are before the Tribunal accused of serious crimes, may
at the same time, according to the law in force, be elected
as Community Councillors and, in fact, are being so elected.

I talked personally about two weeks ago to an SA man and
asked him whether, following the notice of the Tribunal, he
had reported here for interrogation. He declared that he saw
no reason for doing that because in the meantime he had been
elected and approved as a Community Councillor.

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