[Page 308]

The demands for officials for the occupied territories was concentrated in the Reich Ministry of the Interior. That is, as the examination of the witness Lammers indicated - and I quote from the above-mentioned Document 3082-PS - "the unified co-operation of the supreme Reich authorities with each other and with the Reich Commissioner, which is to be adapted to the needs of Norway."

Also, the hearing of evidence for the defendants Rosenberg, Frank and Seyss-Inquart, who functioned as chiefs of civil administrations in the occupied territories; has on no occasion revealed any kind of co-operation with the defendant Frick

[Page 309]

Now, the prosecution has referred to several documents in order to prove that the defendant Frick exercised extensive control over all occupied territories. Actually, however, those documents reveal no more extensive an administrative activity than what I have just stated. Document 3304-PS gives proof of an administrative activity for the incorporated Eastern territories. This coincides with my statement of the case that the incorporated Eastern territories, in their internal administration, were subject to the Reich Ministry of the Interior by virtue of their constitutional incorporation into the German Reich. The document however, bears no reference to the administration of the Eastern occupied territories, i.e., the Government General, or to the occupied Soviet-Russian territories.

The other document submitted, 11039-PS, Exhibit USA 146, proves the transfer of administrative personnel from the department of the Reich Ministry of the interior to the Reich Minister for the Occupied Eastern Territories, a typical task of the central agency, which I have already discussed. The prosecution has submitted further documents which reveal that the Reich Ministry of the Interior had a hand in the bestowal of German citizenship. Even this does not, however, prove any administrative authority of the defendant Frick for the occupied territories, but merely a typical activity of a Minister of the Interior, whose department is competent for the general regulations concerning German citizenship, including cases where persons living outside the Reich territory are involved. Neither, therefore, can this activity of the Minister of the Interior be proof of an extensive administrative policy and a general responsibility of the defendant Frick for the administration of the occupied territories.

In particular, in the occupied territories which were not incorporated into the Reich Territory, Frick had no authority or competence whatsoever as far as the tasks of the police were concerned.

Hitler directly commissioned Himmler to carry out police work in the occupied territories - see Document 1997-PS, Exhibit USA 319 - Hitler's decree concerning the security of the Eastern territories by the police, for which Himmler was directly responsible. The same is revealed by Document 447- PS - Exhibit USA 315 - a directive of the OKW, dated 13th March, 1941, to the effect that the Reichsfuehrer SS in the occupied Eastern territories is charged with special duties, in the execution of which he acts independently and on his own responsibility. It is not different either in the case of the police tasks in the other occupied territories, which at times were assigned either to the Reichsfuehrer SS Himmler or to the SS and police chiefs who, for purposes of discipline, were under Himmler only, although in many cases they were actually assigned for service with the civil administrative chief in question - the Governor General in Poland for instance, see excerpt from Frank's diary in the Frick document book under No. 25, also Exhibit USSR 223. In no case, therefore, were police tasks in the occupied territories under defendant Frick's jurisdiction.

Consequently, the defendant Frick bears no responsibility for crimes against the laws of war and against humanity in the occupied territories, as in these territories he could neither order crimes nor prevent them.

Concerning the territory of the German Reich, I must now examine the claim of the prosecution as to the responsibility of the defendant Frick for all the police measures, including the Gestapo, as well as for the establishment and administration of concentration camps. May I first refer to the documents submitted by me in evidence which reveal that the police, including the Political Police, were, in 1933, still the concern of the individual "States" within the Reich, such as Prussia, Bavaria, etc.

In Prussia, the Secret State Police (Gestapo) and the concentration camps were established and administered by Goering in his capacity as Prussian Minister of the Interior. The tasks of the Political Police were then transferred by a Prussian law dated 30th November, 1933, to the office of the Prussian Prime Minister, which

[Page 310]

A similar regulation prevailed in the other "States" where Himmler was gradually given the duties of Special Deputy for the Political Police. During this period, the Reich Minister of the Interior had only the right of so-called "Reich supervision" over the States, which Frick made use of by the enactment of general instructions and legal measures: and this is the only point where Frick, as Minister of the Reich, could exercise any influence on the affairs of the Political Police and concentration camps.

Frick made use of this possibility in accordance with his basic attitude, as confirmed by the witness Gisevius, to prevent and repress arbitrary actions by the Political Police as far as was in his power in the circumstances then prevailing. He endeavoured, by the enactment of provisions of law and procedure, to restrict, the arbitrary practices of the Political Police of the States.

I refer to Document 779-PS, submitted by me as Frick Exhibit 6.

This is a decree dated 12th April, 1934, containing restrictive provisions of this sort under the descriptive preamble - which I quote - "In order to remedy abuses occurring in the application of protective custody."

This is followed by directives to the governments of the States forbidding the application of protective custody in numerous cases where it had previously been improperly applied by the Gestapo. In this struggle of Frick against arbitrary actions by the Political Police of the States, the police had, of course, the greater advantage, because they were under the direction of Goering and Himmler, with whom the "bureaucrat" Frick - as Hitler disdainfully called him - could not compare as regards influence in the Party and State. For that reason the Political Police of the States in practice frequently is regarded Frick's ordinances. But Frick did not stand by idly as long as there was reason to hope that through his intervention the unrestrained practices of the Political Police of the States could be directed into orderly and legally regulated channels.

I refer to Document 775-PS, Exhibit Frick 9, a memorandum from Frick to y Hitler, which clearly and unequivocally calls a spade a spade, mentioning legal q insecurity, unrest and embitterment, and severely criticising individual cases of misuse of the right to order custody by the Political Police of the States.

Here I insert: The same document also proves that in the struggle concerning the Church, the defendant stood clearly on the side of the Churches. This is also proved by Neurath Exhibit 1.

In his testimony the witness Gisevius refers to an additional memorandum which he himself drew up for Frick as a further attempt to restrain and legally control, through severe criticism and suggestions, the arbitrary practice of the Political Police of the States. All of these attempts failed because Frick's political influence was too insignificant and he could not assert himself against Goering and Himmler, because, a fact which Frick did not realize at the time, the practices of Goering and Himmler were essentially in harmony with what Hitler actually wanted himself. Thus, the documents submitted by the prosecution, taken in conjunction with the evidence offered by the defence, show that in the domain of the Political Police and in ordering custody, Frick had a certain competency at a time when the police was still a service belonging to the individual States. This evidence also shows that during that time Frick's jurisdiction was very limited, and it further shows that Frick, acting within the bounds of his competency, took action only in order to intervene against the terror and arbitrary actions of the Gestapo through general instructions and through repeated complaints in individual cases, so that the conclusion is not justified that Frick in any way positively participated in the Gestapo's measure of terror and violence. At a later period the legal situation changed.

[Page 311]

The question now is whether this new regulation conferred on Frick, in his capacity as Reich Minister of the Interior, any authority of command or any right to issue instructions which could be enforced with regard to the Political Police, its offices and functionaries.

When Himmler, in accordance with his own wish, which he obtained because of his influence on Hitler, was appointed Police Chief for the entire Reich, there did not exist in Germany a police or security ministry, properly speaking.

This is the reason why the uniform direction of the police through Himmler in person was formally attached to the Reich Ministry of the Interior. But Himmler wanted to be more than a department chief in the Ministry of the Interior. Therefore a position entirely novel in German administrative law was created for him and his purposes. The entire sphere of the police was separated from the rest of the activities of the Ministry of the Interior and placed under Himmler's special jurisdiction under a newly created title of office which, as a government office, contained the words "Reichsfuehrer SS," thereby making it possible for Himmler to carry out Political Police tasks under a title of office characterising him as Reichsfuehrer SS and in that capacity giving him apparent independence from any instructions issued by a Minister of State.

In order to accentuate further the independence of his office also within the bureaucratic hierarchy, Himmler was given the further right, from the very beginning, to represent police matters before the Cabinet independently and on his own responsibility - like any Reich Minister - which is also shown in the decree concerning his appointment, Document 2073-PS.

This decree is a typical example of the overlapping of competencies which Hitler favoured so very much in his system of government. Himmler became part of the Ministry of the Interior, and, as an official of the Ministry of the Interior, was formally bound to abide by instructions of the Minister. However, he was also an independent police chief with the right to represent before the Cabinet on his own responsibility matters pertaining to the police, thus excluding Frick in that respect. In addition to that, his orders simultaneously carried the authority of a Reichsfuehrer SS, in which Frick had no authority at all to interfere. The actual effects of this involved arrangement brought out in even stronger measure the tremendous influence of Himmler on Hitler. In keeping with his convictions, to safeguard a well-ordered State apparatus, Frick repeatedly tried to intervene through general instructions intended to restrain the arbitrary acts of the Political Police.

As late as 25th January, 1938, he tried through a decree to curtail the admissibility of protective custody, and he forbade it in a series of cases of improper application.

I refer to Document 1723-PS, Exhibit USA 206, an extract of which under No. 36 is in the Frick document book. He prohibited protective custody in lieu of, or in addition to legal penalty, forbade its application by police authorities of the medium or lower level and ordered the compulsory prior hearing of accused persons. He decreed periodical examination of the reasons for the continuance of confinement and on principle forbade the protective custody of foreigners whom the police had only the authority to expel from the Reich in case of acts endangering the State.

An obvious plea is that the Gestapo in practice disregarded all these instructions of Frick and that Himmler and his subordinates maintained an absolute reign of terror and violence.

This is correct and has been confirmed in detail by the witness Gisevius. But something else is of importance to me in the defence of Frick: to show that Frick

[Page 312]

Finally, however, Hitler forbade even this. He informed him through Lammers - as confirmed by him as witness - that he was not to concern himself with police matters, that Himmler could manage that better by himself and that the police were doing well under Himmler.

Thus Himmler finally came to have the police completely in his hands and he y also gave outward expression to this by later dropping, with Hitler's consent, the designation in his official title "in the Reich Ministry of the Interior," and simply referred to himself as "Reichsfuehrer SS and Chief of the German Police," which is also shown in the testimony of the witness Lammers.

I believe that, in view of the circumstances, the problem of defendant Frick's criminal responsibility for the Political Police and their arbitrary measures is not established by the fact that the entire police was formally incorporated in the Reich Ministry of the Interior after the year 1936, since it has been proved that Frick himself did not participate in arbitrary acts, but on the contrary, tried again and again to intervene against such arbitrary practice with all the power he possessed; which, however, was no match for the personality of Himmler and his influence with Hitler.

In order to obtain a fair judgement, I request consideration of the actual situation as to command and power and not the purely external circumstances of a formal incorporation of the tasks involved in the Reich Ministry of the Interior.

I insert the following here: The prosecution, during their presentation on 3rd July, 1946, submitted Document D-181, Exhibit GB 528, and stated in connection with that document that it proved that the Political Police were not only formally incorporated with the Ministry of the Interior, but that Frick was in fact responsible for the measures of the police. Actually, the document only shows that Frick had been included as Minister of the Interior in the proceedings concerning the sterilisation of those suffering from the so- called hereditary diseases. The document has nothing to do with any measures of the police, least of all with any measures of the Political Police. Moreover, there is no information in it regarding Himmler's position in the Ministry of the Interior.

In this connection, I must briefly deal with the reference of the prosecution. to the fact that Hitler's decree concerning the appointment of Himmler as Chief of the German Police - Document 2073-PS - had also been signed by Frick , himself.

I believe that the relationship between Frick and Himmler, as well as the different relations of both to Hitler, are sufficiently clear to justify the conclusion that the appointment of Himmler expressed solely an agreement between Hitler and Himmler to which Frick would have objected in vain.

We are confronted with the same problem which applies to so many defendants, namely that of the formal counter-signing of an order which was issued by Hitler and which was signed as a matter of form by the head of a department, although the department head had no influence on the order and could not have prevented it, especially as the order would have had full constitutional effect as a Fuehrer decree without the minister's added signature.

I now have to deal with several documents which the prosecution considers to have a bearing on actual activity by the defendant Frick within the sphere of tasks of the Political Police.

I have already dealt with Document 3304-PS, to which the prosecution referred in this connection. It concerns an ordinance on the assignment of a higher Police Chief to the Reichsstatthalter (Reich Governor) in the Eastern territories which were incorporated into the German Reich, and hence deals with the administrative structure of the Reich Governor's office in a part of the Reich.

The mentioned decree therefore falls within the framework of the general competence of the Ministry of the Interior and to that extent does not prove any special police activity.

[Page 313]

On the same lines is the decree of 20th September, 1936 - Document 2245-PS - concerning the appointment of police advisers in the Prussian provincial administrations, which were also subordinate to the Reich Ministry of the Interior as offices of the general internal Reich administration.

The assignment of a police adviser to the office of general administration in the province is a measure of internal Reich administration.

This measure, too, had no connection with arbitrary acts of the Gestapo, and also it particularly does not prove the issue of any instructions by the defendant to the Gestapo.

The situation is no different with respect to the documents which have been appraised by the prosecution as bearing on the participation of the defendant in the establishment and administration of concentration camps, or as an approval of terror methods used by the Gestapo.

In the statement of 22nd November, 1945, the prosecution referred to Document 2533-PS, as proof of the approval of these arrangements by the defendant Frick.

I need not go deeply into the contents of the document.

It concerns an article by the defendant Frank in the journal of the Academy of German Law, of which Frick has erroneously been called the author by the prosecution. Another document, in the opinion of the defence, does not contain sufficient evidentiary value to be utilised for a legal judgement.

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