D. Definition of Issues for Trial.

The progress of this trial will be expedited by clear definition of the issues to be tried. I have indicated what we consider to be the proper criteria of guilt. There are also subjects which we think are not relevant before this Tribunal, some of which are mentioned in the specific questions asked by the Tribunal.

Only a single ultimate issue is before this Tribunal for decision. That is whether accused organizations properly may be characterized as criminal ones or as innocent ones. Nothing is relevant here that does not bear on a question that would be common to the case of every member. Any matter which would be exculpating for some members but not for all is irrelevant here.

We think it is not relevant to this proceeding at this stage that one or many members were conscripted if in general the membership was voluntary. It may be conceded that conscription is a good defense for an individual charged with membership in a criminal organization, but an organization can have criminal purposes and commit criminal acts even if a portion of its membership consists of persons who were compelled to Join it. The issue of conscription is not pertinent to this proceeding but it is pertinent to the trials of individuals for membership in organizations declared criminal by this Tribunal.

We also think it is not relevant to this proceeding that one or more members of the named organizations were ignorant of its criminal purposes or methods if its purposes or methods were open and notorious. An organization may have criminal purposes and commit criminal acts although one or many of its members were without personal knowledge thereof. If a person joined what he thought was a social club but what in fact was a gang of cutthroats and murderers, his lack of knowledge would not exonerate the gang considered as a group, although it might possibly be a factor in extenuation of a charge of criminality brought against him for mere membership in the organization. Even then the test would be not what the man knew, but what, as a person of common understanding, he should have known.

It is not relevant to this proceeding that one or more members of the named organizations were themselves innocent of unlawful acts. This proposition is basic to the entire theory of the declaration of organizational criminality. The purpose of declaring criminality of organizations, as in every conspiracy charge,

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is punishment for aiding crimes, although the precise perpetrators may never be found or identified. We know that the Gestapo and SS, as organizations, were given principal responsibility for the extermination of the Jewish people in Europe but beyond a few isolated instances, we can never establish which members of the Gestapo or SS actually carried out the murders Any member guilty of direct participation in such crimes can be tried on the charge of having committed specific crimes in addition to the general charge of membership in a criminal organization. Therefore, it is wholly immaterial that one or more members of the organizations were themselves allegedly innocent of specific wrongdoing. The purpose of this proceeding is not to reach instances of individual criminal conduct, even in subsequent trials and, therefore, such considerations are irrelevant here.

Another question raised by the Tribunal is the period of time during which the groups or organizations named in the Indictment are claimed by the Prosecution to have been criminal. The Prosecution believes that each organization should be declared criminal during the period referred to in the Indictment. We do not contend that the Tribunal is without power to condition its declaration so as to cover a lesser period of time than that set forth in the Indictment. The Prosecution feels, however, that there is in the record at this time adequate evidence to support the charge of criminality with respect to each of the named organizations during the full period of time set forth in the Indictment.

Another question raised by the Tribunal is whether any classes of persons included within the accused groups or organizations should be excluded from the declaration of criminality. It is, of course necessary that the Tribunal relate its declaration to some identifiable group or organization. The Tribunal, however, is not expected or required to be bound by formalities of organization In framing the Charter, the use was deliberately avoided of terms or concepts which would involve this trial in legal technicalities about juristic persons" or "entities." Systems of jurisprudence e not uniform in the refinements of these fictions. The concept of the Charter, therefore, is a nontechnical one. "Group" or "organization should be given no artificial or sophistical meaning. or group was used in the Charter as a broader term, implying a looser and less formal structure or relationship than is in he organization." The terms mean in the context of e Charter what they mean in the ordinary speech of people. The

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test to identify a group or organization is, we submit, a natural and common-sense one.

It is important to bear in mind that while the Tribunal no doubt has power to make its own definition of the groups it will declare criminal, the precise composition and membership of groups and organizations is not an issue for trial here. There is no Charter requirement and no practical need for the Tribunal to define a group or organization with such particularity that its precise composition or membership is thereby determined. The creation of a mechanism for later trial of such issues was a recognition that the declaration of this Tribunal is not decisive of such questions and is likely to be so general as to comprehend persons who on more detailed inquiry will prove to be outside of it. An effort by this Tribunal to try questions of exculpation of individuals, few or many, would unduly protract the trial, transgress the limitation of the Charter, and quite likely do some mischief by attempting to adjudicate precise boundaries on evidence which is not directed to that purpose.

The prosecution stands upon the language of the Indictment and contends that each group or organization should be declared criminal as an entity and that ho inquiry should be entered upon and no evidence entertained as to the exculpation of any class or classes of persons within such descriptions. Practical reasons of conserving the Tribunal' time combine with practical considerations for the defendants. A single trial held in one city to deal with questions of excluding thousands of defendants living all over Germany could not be expected to do justice to each member unless it was expected to endure indefinitely. Provision for later, local trial of individual relationships protects the rights of members better than can possibly be done in proceedings before this Tribunal.

With respect to the Gestapo, the United States consents to exclude persons employed in purely clerical, stenographic, janitorial or similar unofficial routine tasks. As to the Nazi Leadership Corps we abide by the position taken at the time of submission of the evidence, that the following should be included: the Fuehrer, the Reichsleitung (i.e., the Reichsleiters, main departments and officeholders), the Gauleiters and their staff officers, the Kreisleiters and their staff officers, the Ortsgruppenleiters, the Zellenleiters, and the Blockleiters, but not members of the staff of the last three officials. As regards the SA, it is considered advisable that the Declaration expressly exclude (1) wearers of the SA Sports Badge; (2) SA controlled Home Guard Units

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(SA Wehrmannschaften) which were not strictly part of the SA; (3) The Marchabteilungen of the N.S.K.O.V. (National Socialist League for Disabled Veterans); and (4) the SA Reserve, so as to include only the active part of the organization, and that members who were never in any part of that organization other than the Reserve should be excluded.

The Prosecution does not feel that there is evidence of the severability of any class or classes of persons within the organizations accused which would justify any further concessions and feels that no other part of the named groups should be excluded. In this connection, we would again stress the principles of conspiracy. The fact that a section of an organization itself admitted no criminal act, or may have been occupied in technical or administrative functions, does not relieve that section of criminal responsibility if its activities contributed to the accomplishment of the criminal enterprise.

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