Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Pleading-02-06 Last-Modified: 1999/06/15 76. On Paragraph 160 - Skeletons What the Court has found as the Accused's responsibility must be reviewed. The following points are striking: 1. The Accused had no powers of control over camp inmates. Gluecks was responsible for the camps. 2. In contrast, Brack, from the Fuehrer's Chancellery, was obviously in touch with Guenther and was probably of the opinion that as his Specialist Officer the Accused was competent and therefore referred to the latter. The Accused's name does not appear in Sievers' meticulously kept diary, but mention is made of Guenther, who always dealt with medical matters. 77. On Paragraphs 162/163 - The Accused's status in the RSHA 1. The fact that the perpetrators were not the Accused's subordinates has already been commented on. 2. Blume's statement was made in 1945. He himself was involved in the matter and spoke of Heydrich as Commander (Befehlshaber). There is no indication of what served as clarification of the order. There may have been a general indication of possible measures, but a clear order on extermination does not need to have been given. If one follows the Accused's Statement, the clarifications given in the discussion could only have been of a general nature. 3. The Judgment gives the impression that the Accused personally gave the order to prevent emigration. In fact he simply passed on the instruction he had received. 78. On Paragraph 164 - Transport to Lodz, October 1941 The Accused concedes that the complaint against sending the transport to the overcrowded Lodz Ghetto was justified, but not that the fault lay with him. The Accused says that the destination was Lodz or Minsk and that therefore he had the choice; he preferred Lodz because he knew that the Operations Units were active in Minsk. It is not proved that at this time the Accused knew that the Jews sent with the transports to Lodz would also be exterminated. At that time the Madagascar Plan had not yet been abandoned. It was also not yet known that Hitler would proceed seriously with his threats of extermination. 79. On Paragraph 165 Transportation to the extermination camps did not always and for all deportees mean extermination. In these camps there were major manufacturing plants, where at least 100,000 Jews were employed as forced labourers. The conclusion cannot be drawn from transports to these camps that the Accused knew of the later killings in 1941. If the Accused says that he did not deny his knowledge of the extermination, this was limited to the operations he had seen and on which he had reported. 80. On Paragraph 166 - Killing by gas 1. From the Accused's statement about his protest against the shootings it cannot be concluded that on the strength of this, the Accused then considered the possibility of killing by gas. His protest was directed against killing generally. 2. A conclusion can only be drawn from the Accused's Statement about the time of the events in Minsk: The debris of the tanks from the battles at Minsk and Bialystok lay scattered and untouched until 1942, as elsewhere on the Eastern Front, since all resources and forces were needed for the Army's continued advance. Such debris could give the observer driving past the impression that they were still relatively fresh. In contrast, however, the Accused's comment about his clothing must be taken notice of; that he wore a long padded leather coat. However, in September he would not yet be wearing such a garment. 81. On Paragraph 165 - Killing by gas vans 1. Attention is hereby called to the following important difference in the draft (which in this connection is decisive) of the letter by Wetzel, Ministry for the Eastern Occupied Territories: In the handwritten draft of the letter it says that the discussion took place with Brack, the Specialist Officer for Jewish Questions. In the subsequent typed draft it says, with Brack and the official for Jewish Questions. This changes the meaning. An application will be made to examine Wetzel. 2. The Accused's position in his police interrogation is his assumption on first sight of the documents. The Accused initially assumes that things probably were this way, and that he could not raise any objections to the documents. Nevertheless the Accused immediately points out after this that his signature is missing, thereby indicating his doubts. An application will be made to have the tape recording of the police interrogation played for verification. 3. It is striking that the name of the Accused is nowhere mentioned in the available files about the gas van matter; such a reference would have been expected if he was substantially involved. 82. On Paragraph 168 - Zyklon B gassings 1. The statement by Hoess, who is considered untrustworthy, cannot be used as evidence against the Accused. However, Hoess also admits that it was his deputy who first came across Zyklon B as a gas for killing; thus the use of this means of killing did not originate through the Accused's efforts. 2. The fact that Guenther from the Accused's Department dealt with gas matters does not exclude the Accused's description that Guenther did this on the basis of a special order from Mueller, about which the Accused had not been informed. The very fact that in his police interrogation the Accused mentioned the difference of opinion concerning the gas matter shows his candour and openness. Had he had any feelings of guilt, the Accused would probably have kept this conversation with Guenther completely secret. 83. On Paragraph 170 - The Accused's position 1. The Accused did not become a Head of Department until towards the end of the War; until then he was simply the Head of a Section. 2. The Accused followed his instructions to the letter and in matters which were not routine he obtained instructions from his superior, Mueller. The lawyers who were employed in the Accused's Section, Suhr and Hunsche, had practically a free hand in their area of expertise, as the Accused had no legal knowledge. The lawyers worked directly with the lawyers of other departments. 3. If Guenther had dealings behind the Accused's back, this very fact shows clearly that he had no freedom to act but had to take this freedom secretly. 84. On Paragraph 171 The Accused's powers cannot in any convincing fashion be deduced from the 1927 "Joint Administrative Rules for Ministries." It is obvious that a dictatorial approach governed proceedings in the RSHA, and democratic practices did not hold sway. Nor did the Accused during his period in office ever have the opportunity to read these general rules of procedure; he is relying on the practice as "he himself experienced it." In a dictatorial system close dependence reigns. Orders are issued from on high, and below obedience is shown. The Court is making a basic error in assuming that the Accused was free to use his discretion. 85. On Paragraph 172 - Signatures and references The Court acknowledges that letters written in the first person refer to the individual who heads the authority which appears on the letterhead. 86. On Paragraph 173 - Limits of discretion The Court's observations on the Accused's discretion as Specialist Officer are not convincing; they are theoretical, but ignore practice. 87. On Paragraphs 174/175 - Failure to use discretion 1. There are subordinates who submit their own drafts to their superiors for approval. But there are also superiors who prohibit the receipt of such unsolicited proposals from subordinates. In practice, there is no generally valid scheme; the conventions in the Foreign Ministry cannot be transferred to the Accused's Section. The Accused had no training, whether academic or bureaucratic, and he had to take things as he found them. 2. If Mueller once did not agree to the instructions presented to him, as the Accused says, this is no proof that as a subordinate he had drawn up these drafts according to his own discrettion. According to the Accused's testimony it should rather be assumed that he had previously received instructions and then the implementation in a draft was subjected to petty criticism by Mueller. 3. If Witness Six says that the Accused had greater authority than other Heads of Sections and to some extent "already stood alongside" Mueller, this is because there was no Group Chief between the Chief of Department and the Accused's Section as there was in other Departments. It was precisely because of his direct subordination to the Chief of Department that the Accused's position was more awkward than that of the other Hheads of Section. 4. Wisliceny describes the Accused's behaviour in a contemptuous fashion: According to him the Accused is a bureaucrat who shuns all responsibility and seeks to cover all eventualities by obtaining the approval of his superiors. However, this unfavourable description shows precisely what the true situation was, to the Accused's advantage. 5. The special position referred to by the witness Huppenkothen is also a result of the absence of the Group Chief. 6. The description given by SS Judge Morgen after 1945 is based on the account of one Dr. Bachmann. This hearsay report cannot be verified. It cannot be used as evidence against the Accused. Nor is this description tenable in terms of its content, because only Himmler or Kaltenbrunner could have a special assignment, not even Mueller - let alone the Accused. 88. On Paragraph 176 - Accused's statements about his position 1. The clash reported by the Accused in the so-called Sassen Documents between himself and SS Standartenfuehrer Wolff is no confirmation of any decisive position held by the Accused. Wolff was not an official superior of the Accused. The Accused had to refer him and his unreasonable request to his superior, Mueller. But this was precisely the approach which Wolff did not want, and he spoke rudely to the Accused. As his inferior, the Accused protected himself in his own way. 2. The Accused's opposition to emigration to Palestine was directed less against such departures and more against the alleged but highly unlikely order by the Fuehrer. At that time, the practice had developed of referring in all connections to a so-called order by the Fuehrer. In this case what was involved was an internal bureaucratic struggle, which the Accused fought as a subordinate for his superiors. 89. On Paragraph 177 1. No basis is provided for the Court's interpretation of the significance of the efforts to be covered. 2. The Accused did not on his own initiative submit to his superior "draft orders" which arose from his own endeavours, but in new matters he would first submit the questions with a request for instructions. This attitude of the Accused corresponds to the facts. 90. On Paragraph 178 Prevention of emigration - Prof. Meyers, Holland The exit permit which had already been issued, on payment of foreign exchange, could not be put into effect because of the negative attitude on the part of the Swiss authorities concerned. Only Himmler could take a decision on a further application for emigration. In dealing with such an application the Accused individually was certainly of importance as the intermediary Specialist Officer, and it is correct that it was difficult to gain access to the offices in the RSHA because of the standard security arrangements. But this gives no indication as to the authority of the Specialist Officer. The decision which in the case in question was then taken by the Accused's deputy is the rejection of the emigration that had been requested. The concession, of which a prospect was held out, to select Terezin as the destination on deportation is an insignificant relaxation in this borderline case, where authorization to emigrate had already been granted. 91. On Paragraph 179 - Scope of duties The Accused's duties were passing on the orders to round up the Jews to the implementing authorities and to ensure the availability of transport. Himmler's general orders were decisive. The Accused's duties must be contrasted with those of the other members of the offices: creating the legal foundations which had to be followed by the police, issuing the basic orders and instructions, confiscation of property, and reception and treatment in the camps. 92. On Paragraph 180 In the characterization of the Accused as one of those who pulled the strings, insufficient account has been taken of the Defence documents. Taken together, these provide a more favourable picture of the Accused. 1. The Accused's failure to be promoted is a vital indication of the actual importance of his role. The Accused's comments which are quoted in the Judgment, to the effect that as Section Head he could not have risen to a higher rank, were not properly interpreted in the Judgment. This restriction was linked to the position as Section Head. It would, however, have been easy to make the Accused a Department Head, which would have opened up possibilities of promotion. But even when the Accused finally became a Department Head, he was not promoted. 2. The assumption in the Judgment that the Accused was not promoted so that his important personage and his significant activities would not to attract outside attention is not supported by any facts. Some compensation at least for the drawbacks in terms of promotion would have to be proved here, such as an appropriate increase in pay or other benefits. But the Accused together with his family remained in modest circumstances and his activities brought him no economic advantages. Also under Hitler it was not customary to act in this fashion, and where special missions were carried out, they led to promotion and recompense. 93. On Paragraph 185 - The Accused's intentions to carry out exterminations If the Accused is said to have made threats about concentration camps, this must be contrasted with the fact that in practice he caused the emigration of the Jews of Vienna who were in concentration camps. A total of 150,000 Jews were able to emigrate and were not imprisoned. 94. On Paragraph 195 - Letter of 28 August 1941 This letter, which concerns the halting of the emigration, does not originate with the Accused. The letter is mentioned several times in the Judgment. 95. On Paragraphs 223/224 - Remaining in office The Court failed to appreciate that the Accused's statements to which reference was made refer to two different periods. The first request for a transfer concerned the transfer from Vienna to Linz, the Accused's home town. This request was made when no exterminations had as yet occurred. Had the request been approved, the Accused would have left the Jewish Affairs Section. Witness Six rejected this request and prevented the Accused from leaving. The Accused made his subsequent application to be relieved from the Department as a matter of urgency when, under orders, he had seen the atrocities in the East. 96. On Paragraph 236 - Measures against Jewish airmen The statement by Justice Musmanno is a hearsay report, which is not supported by other evidence. The information is said to have come from General Koller. At the time he himself was imprisoned in Nuremberg, where Witness Musmanno questioned him. In doing this General Koller was trying to prove that he had acted in favour of the Allies. At the same time, he took care to spare Kaltenbrunner, who was detained in the same prison. He would appear to have followed watchword that one could shift all responsibility to Eichmann, who was supposed to be dead. (-)Dr. Servatius Advocate
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