The Nizkor Project: Remembering the Holocaust (Shoah)

Third Day: Thursday, 22st November, 1945
(Part 7 of 8)

[MAJOR WALLIS continues]

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:

"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

[Page 108]

to request an enabling law from the Reichstag. At this meeting Hitler agreed to contact representatives of the Centre Party the next morning to see what could be done by way of making a deal with them.

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]

During this period, taking advantage of the decree suspending constitutional guarantees of freedom, a large number of Communists, including party officials and Reichstag deputies, and a smaller number of Social Democrat officials and deputies, were placed in protective custody. On 23rd March, 1933, in urging the passage of the enabling act, Hitler stated before the Reichstag:
"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.

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

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Anglo-American principles, it is necessary to prepare objections immediately, if one has any objections to the contents of a document, and that this is not possible unless one does it at once. This is a point on which I would like to make my request. I am convinced that both the trial brief and the documents will be made available to us, and we will see if we can have a German translation of one or the other. If this trouble can be spared, if the defence counsel needs a translation, we shall have it, but I should like-I have one request-that we have leisure to raise an objection later when we have had a chance of discussing it.

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):

"Immediately in 1933, the concentration camps were established and put under charge of the Gestapo. Only political prisoners were held in concentration camps.

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."

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

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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."

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):

"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.

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