Third Day:
Thursday, 22st November, 1945
That is the end of the prologue, as it were, to the dramatic
and sinister story that will be developed by the prosecution
in the course of this trial. Let it be noted here, however,
and remembered, as the story of the misdeeds and crimes of
these defendants and their fellow conspirators are exposed,
that at no time in the course of their alleged "legal"
efforts to gain possession of the State, did the
conspirators represent a majority of the people.
Now it is commonly said that the Nazi conspirators "seized
control" when Hitler became Chancellor of the German
Republic on 3oth January, 1933. It may be more truly said
that they seized control upon securing the passage of the
law for the Protection of the People and the State on 24th
March, 1933. The steps leading to this actual seizure of
power are worthy of recital. The Nazi conspirators were
fully cognisant of their lack of control over the
legislative powers of the republic. They needed, if they
were to carry out the first steps of their grand conspiracy
under the cloak of law, an enabling act which would vest
supreme legislative power in Hitler's Cabinet, free from all
restraints of the Weimar Constitution. Such an enabling act,
however, required a change in the Constitution which, in
turn, required two-thirds of the regular members of the
Reichstag to be present, and at least two-thirds of the
votes of those present.
The time-table of events leading up to the passage of this
enabling act, known as the law for the Protection of the
People and the State, is as follows:-
1. On 30th January, 1933, Hitler held his first Cabinet
meeting, and we have the original minutes of that meeting,
which will be offered in evidence. The defendants von Papen,
von Neurath, Frick, Goering, and Funk were present.
According to the minutes of this meeting, Hitler pointed out
that the adjournment of the Reichstag would be impossible
without the collaboration of the Centre Party. He went on to
say:
[Page 108]
2. The next event on this time-table was the Reichstag fire
on the 28th of February, 1933.
3. Taking advantage ot the uncertainty and unrest created by
the Reichstag fire, and the disturbances being created by
the S.A., the provisions of the Weimar Constitution
guaranteeing personal freedom, and other personal liberties
were suspended by a decree of the Reich President on
February 28th, 1933.
Then on 5th March, 1933, elections to the Reichstag were
held. The Nazis acquired 288 seats out of a total of 647.
On the 15th March, 1933, another meeting of the Reich
Cabinet was held, and we also have the original official
minutes of that meeting which bears the initials, opposite
their names, of the defendants who were present at that
meeting, signifying that they have read - I contend that it
is a reasonable inference to state that it signifies that
they read these minutes and approved them. The following
defendants were present at this meeting: von Papen, von
Neurath, Frick, Goering, and Funk. At this meeting,
according to these official minutes, Hitler stated that the
putting over of the enabling act in the Reichstag by a two-
thirds majority would, in his opinion, meet with no
opposition. The defendant Frick pointed out that the
Reichstag had to ratify the enabling act with a
constitutional majority within three days, and that the
Centre Party had not expressed itself negatively. He went on
to say the enabling act would have to be broadly conceived
in a manner to allow for deviation from the provisions of
the Constitution of the Reich. He further stated that as far
as the constitutional requirements of a two-thirds majority
was concerned, a total of 432 delegates would have to be
present for the ratification of the enabling act. The
defendant Goering expressed his conviction at this meeting
that the enabling act would be ratified with the required
two-thirds vote for, if necessary, the majority could be
obtained by refusing admittance to the Reichstag of some
Social Democrats. Now on the 20th March another Cabinet
meeting was held, and we also have the official, original
records of this meeting which will be offered in evidence.
The defendants Frick, von Papen, von Neurath, Goering and
Funk were present. The proposed enabling act was again the
subject of a discussion. Hitler reported on the conference
he had completed with the representatives of the Centre
Party, The defendant Neurath proposed a note concerning the
arrangement to be agreed to by the representatives of the
Centre Party. The defendant Frick expounded to the meeting
the contents of the draft of the proposed law, and further
stated that changes in the standing orders or rules of the
Reichstag were also necessary, that an explicit rule must be
made that unexcused absent delegates be considered present,
and if that was done it would probably be possible to ratify
the enabling act on the following Thursday in all three
readings.
It is interesting to note that, among the things recorded in
the official minutes of this Cabinet meeting, was the
defendant Goering's announcement that he had ordered SA
troops on the Polish border to be cautious and not to show
themselves in uniform, and that the defendant Neurath
recommended also that the SA be cautious, especially in
Danzig. In addition, the defendant Neurath pointed out that
Communists in SA uniforms were being caught continuously.
These stool pigeons had to be banned. justice had to find
means and wavs to make possible such punishment for
Communist stool pigeons, according to the defendant Neurath.
On 14th March, 1933, the defendant Frick announced:
"When the Reichstag meets on the 21st March the
Communists will be prevented by urgent labour elsewhere
from participation in the session. In concentration
camps they will be re-educated for productive work. We
will know how to render harmless permanently, sub-
humans who don't want to be re-educated."
[Page 109]
Thus the Nazis acquired full political control, completely
unrestrained by any provision of the Weimar Constitution.
I now offer the documents which establish the facts which I
have just stated, and I also present, for the assistance of
the Court and the defence counsel, the briefs covering this
portion of the case.
THE PRESIDENT: I wish to speak to Major Wallis. Would it be
possible for the prosecution to let defendants' counsel have
at least one copy between each two of them here in court ?
If not to-day, then to-morrow ?
COL. STOREY: If the Tribunal please, there has been some
misunderstanding and the briefs were delivered to the
defendants' document room. We have sent for some of them and
they should be here shortly. However, Sir, in all fairness
the briefs themselves are not in the German language,
because we had intended to take the trial brief and let the
lawyers follow it over the translating system and thus, when
it was finished, it would be translated into all languages.
However, in order to shorten the proceeding, Major Wallis
has made a summary, and he is giving the summary and will
offer the documents in evidence and later the briefs, as
needed, to the Tribunal, and to defence counsel, and,
unfortunately, in the rush of time, they have been put down
in the defendants' document room and we have sent for some
of them. We understand, also, if the Tribunal please, that
Dr. Kempner approached some of the distinguished counsel for
the defence, and learned that a great many of them not only
speak English, but understand it when they read it, and to
save the tremendous physical burden on facilities, the
briefs have not, as yet, been translated into German. If
there is objection, the only thing we can do is to withhold
them at this time, but we understood it would be agreeable
to pass them to them in English, and that is what we propose
to do at the present moment, and have German-speaking
officers in the document room who will translate for any of
them who may not be able to read German. Pardon me, to read
English.
THE PRESIDENT: Did you hear what Col. Storey said, Dr. Dix ?
DR. DIX: I have one request. We are here, as German defence
counsel, and in face of great difficulties. These
proceedings are conducted according to Anglo-American
customs. We are doing our best to make our way through these
principles, and would be very grateful if the President
would take into consideration our difficult situation.
I have heard - I am not quite sure if it was right-that
according to these
[Page 110]
I think in that way we shall easily overcome the
difficulties raised by the present situation, and we are
trying to cooperate in order to overcome any difficulties.
THE PRESIDENT: The Tribunal is glad that defendants' counsel
are making efforts to co-operate in the trial. After the
adjournment, the Tribunal will consider the best method of
providing defendants' counsel with as many translations as
possible, and you are right in thinking that you will be
able to make objections to any document after you have had
time to consider it.
DR. DIX: Thank you, Sir.
PRESIDENT: Yes, Major Wallis ?
MAJOR WALLIS: Having acquired full political control, the
Nazi conspirators now proceeded to consolidate their power,
and at this point I would like to impress upon the Tribunal
once again that with the exception of a very few documents,
the subject matter of my remarks is within the purview of
Judicial notice of the court, a matter of history well known
to these defendants and their counsel. Their first step was
ruthlessly to purge their political opponents by confining
them to concentration camps or by murder. Concentration
camps made their first appearance in 1933, and were first
used as means of putting political opponents out of
circulation by confining them to a so-called "protective
custody." This system of concentration camps grew and
expanded within Germany. At a subsequent stage in these
proceedings full and complete evidence of the concentration
camp system and the atrocities committed therein will be
presented to the Court, both by documents and films.
Illustrative documentary evidence of the arrest,
mistreatment and murder by the Nazi conspirators of their
political opponents is contained in the documentary evidence
offered by the United States.
As an illustration, affidavit of Raymond H. Geist, former
American Consul and First Secretary of the Embassy in Berlin
from 1929 to 1938, states (which will be offered):
The first wave of terroristic acts began in March, 1933,
more particularly from March 6th to 13th, 1933,
accompanied by unusual mob violence. When the Nazi Party
won the elections in March, 1933, the accumulated
passion blew off in wholesale attacks on the Communists,
Jews and others suspected of being either. Mobs of SA
men roamed the streets, beating up, looting and even
killing persons.
For Germans taken into custody by the Gestapo there was
a regular pattern of brutality and terror. All over
Germany victims were numbered by the hundred thousand." [Page 111]
During this period the conspirators created, by a series of
decrees of the Reich Cabinet, a number of new political
crimes. Any act or statement contrary to the Nazi Party was
deemed to be treason and punished accordingly. The
formations of the Party, the S.A., S.S., as well as the S.D.
and the Gestapo, were the vicious tools used in the
extermination of all opposition, real or potential. As the
defendant Goering said on 24th July, 1933 (I refer to
document 2494-PS, which will be introduced in evidence):
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(Part 7 of 8)
[MAJOR WALLIS continues]
"We might, however, consider suppressing the Communist
Party to eliminate its votes in the Reichstag and by
this measure achieve a majority in the Reichstag."
He expressed the fear, however, that this might result in
a general strike. The Reich Minister of Economy, according
to their official minutes, stated that in his opinion, it
was impossible to avoid the suppression of the Communist
Party of Germany, for, if that were not done they could not
achieve a majority in the Reichstag, certainly not a
majority of two-thirds but that, after the suppression of
the Communist Party, the passage of an enabling act through
the Reichstag would be possible. The defendant Frick
suggested that it would be best initially
"It is up to you, Gentlemen, to make the decision now.
It will be for peace or war."
On 24th March, 1933, only 535 out of the regular 747
deputies of the Reichstag were present. The absence of some
was unexcused; they were in protective custody in
concentration camps. Subject to the full weight of the Nazi
pressure and terror, the Reichstag passed an enabling act
known as the "Law for the Protection of the People and
State", with a vote of 441 in favour. This law marks the
real seizure of political control by the conspirators.
Article 1 provided: that the Reich laws can be enacted by
the Reich Cabinet. Article 2: provided the National laws
enacted by the Reich Cabinet may deviate from the
Constitution. Article 3: provided: National Laws enacted by
the Reich Cabinet are prepared by the Chancellor and
published in the Reichsgesetzblatt. Article 4 provided:
Treaties of the Reich with foreign states, which concern
matters of national legislation, do not require the consent
of the parties participating in legislation. The Reich
Cabinet is empowered to issue the necessary provisions for
the execution of these treaties.
"Immediately in 1933, the concentration camps were
established and put under charge of the Gestapo. Only
political prisoners were held in concentration camps.
On the 30th of June and 1st and 2nd July, 1934, the
conspirators proceeded to destroy opposition within their
own ranks by wholesale murder. In discussing this purge, the
defendant Frick stated, in an affidavit under oath, signed
on the i19th day of November, 1945, in the presence of his
defence counsel, as follows: This is document 2950-PS, It
has not yet been introduced in evidence, Sir:
"Himmler, in June of 1934, was able to convince Hitler
that Roehm wanted to start a putsch. The Fuehrer
ordered Himmler to suppress the putsch, which was
supposed to take place at the Tegernsee, where all the
SA leaders were coming
together. For Northern Germany, the Fuehrer gave the
order to suppress the putsch to Goering."
Frick goes on to say:
" Pursuant to this order, a great many people -
something like a hundred, and possibly more-accused of
high treason, were arrested and even put to death. They
were just killed on the spot. Many people were killed -
I don't know how many -w ho actually did not have
anything to do with the putsch. People who just weren't
liked very well as, for instance, Schleicher, the
former Reich Chancellor, were killed. Schleicher's wife
was also killed. Also Gregor Strasser, who had been the
Reich Organisation Leader and second man in the Party
after Hitler. Strasser, at the time he was murdered,
was not active in political affairs any more; he had
however separated himself from the Fuehrer in November
or December of 1932."
Frick goes on to say: "The S.S. was used by Himmler for the
execution of these orders to suppress the putsch."
"Whoever in the future raises a hand against a
representative of the National Socialist movement or of
the State, must know that he will lose his life in a
very short while. Furthermore, it will be entirely
sufficient, if he is proven to have intended the act,
or, if the act results not in a death, but only in an
injury."
The defendant Frick stated, in a magazine of the Academy for
German Law, 1936, which will be introduced as document 2533-
PS, as follows:
"By the world we are blamed again and again because of
the concentration camps. We are asked, 'Why do you
arrest without a warrant of arrest?' I say, 'Put
yourself into the position of our nation'. Don't forget
that the very great and still untouched world of
Bolshevism cannot forget that we have made final victory
for them impossible in Europe, right here on German soil."
And Raymond Geist, whose affidavit I previously referred to,
being document 1759-PS, states:
"The German people were well acquainted with what was
happening in concentration camps, and it was well known
that the fate of anyone too actively opposed to any part
of the Nazi programme was liable to be one of great
suffering. Indeed, before the Hitler regime was many
months old, almost every family in Germany had received
first-hand accounts of the brutalities inflicted in the
concentration camps from someone, either in the family
circle or in the circle of friends who had served a
sentence, and consequently the fear of such camps was a
very effective brake on any possible opposition."
And as the defendant Goering said in 1934 (and I refer to
document 2344-PS, which will be offered in evidence)
"Against the enemies of the State we must proceed
ruthlessly ... therefore the concentration camps have
been created, where we have first confined thousands of
Communist and Socialist Democrat functionaries.