The Nizkor Project: Remembering the Holocaust (Shoah)
Nuremberg, war crimes, crimes against humanity

The Trial of German Major War Criminals

Two Hundred and Thirteenth Day: Wednesday, 28th August, 1946
(Part 3 of 13)

[Page 196]

[DR. KUBUSCHOK, Continued]

At first this was not clearly manifest in the working methods of the Cabinet. True, resolutions were no longer passed, but objections by the ministers were taken into consideration which, in individual cases, led to the withdrawal or modification of radical Bills. Nevertheless, the Reich Chancellor's right to formulate the principles of political directives was already more manifest. Hitler laid claim to this right for himself and made it clear that the responsibility was his alone. But more important than this development within the Cabinet were the influences from outside. The Party now set to work and took upon itself everything the Government had consciously refrained from doing. The boycott of the Jews and the smashing of the trade unions were measures taken by the Party. The ideas of the Party began to take hold of the masses. They carried out what the Party liked, in its slogan, to call: "Revolution." The witness Gisevius has summarized this development in the following terms, which are taken from his book, Pages 141 to 143:

"It is not individuals that rush to National Socialism; it is the masses themselves which are roused. Because nobody wants to lag behind events, all strive together to outstrip the revolutionary development by a short head. These easily swayed impulses, this irrational spiritual upheaval of the masses

[Page 197]

can alone explain the total swing over to Nazi ideas (Gleichschaltung) which occurred in this early summer of 1933 with sudden intensity but yet voluntarily and spontaneously .... As masses, they create a new will, open up a new road."
This movement also gripped the old political parties. They dissolved themselves voluntarily. They went even further; they assured Hitler that their former members would loyally collaborate with the National Socialist State; they called upon their former members to do so.
"The Bavarian People's Party cleared the way for every former member of their party to collaborate in the construction of the new Germany under Adolf Hitler's direct leadership.

"The Catholic Party (Zentrumspartei) by its dissolution enabled its supporters to put their forces and experience unreservedly at the disposal of the National Front under the leadership of the Reich Chancellor for positive collaboration in the consolidation of our national, social, economic and cultural life, and to work for the reconstruction of a legal State order (rechtsstaatliche Ordnung)."

Even the Social Democratic Party partly followed when the provincial committee (Landesvorstand) of the Social Democratic Party of Wurttemberg suggested to the holders of their mandates:
"to carry on their activity in such a way as to leave no doubt as to their national sentiments or their good will to support Germany's new political structure according to the plans of the national revolution."
The attitude of the masses, similarly influenced, is reflected in the results of the Reichstag election of 12th November, 1933, in which over 90 per cent of the electors voted for the NSDAP. I am aware of the fact that the correctness of these election results and the method of carrying out the election have been questioned. Whatever may have happened in regard to influencing and falsifying the election returns, one thing must have been clear to any impartial observer of the conditions prevailing at that time: that such manipulations can hardly have been of such significance that they could by themselves have brought about an overwhelming majority. It cannot be denied that in the conditions as they were at that time the majority of the voters, in the hope of bringing about a change of the existing difficult situation, put their trust in the Party, in the ideas and policies by which they saw hope of economic salvation. If one considers how the ideas of the Party had taken hold of the masses, and that the idea of the Party centred around the personality of Adolf Hitler, the result of the voting and the public feeling at the time was in itself a confirmation of the leadership idea. The vote was a carte blanche for the supreme party leader, the leader of the Cabinet, the Reich Chancellor.

By this development, Hitler's claim to power was strengthened on the one hand and, on the other hand, most of the Cabinet members did not think they should prevent such a development. These considerations may also have been influenced by the realization that they could not effectively oppose Hitler's seizure of power. In the main one restricted oneself, therefore, to seeking to avoid a radical development and, as far as possible, render less rigorous those changes made outside the State machinery. Thus we see legislation clearing up a situation created from without, giving it legally a more moderate orderly form. If the members of the Cabinet are reproached for moderating illegal conditions and at the same time giving them a legal basis, such reproaches should mainly be directed at the men from the non-radical camp in the Cabinet. They who, as was intended when the Reich Cabinet was formed, were appointed to restrict the National Socialist influence, did not use all their efforts to stem the disastrous development. They should have warned the easily influenced irrational masses and even have resigned from office, protesting loudly. It is idle to examine whether the conduct of these men was politically right or not, whether they were weak men who believed

[Page 198]

that they should avoid a perhaps hopeless resistance. The criminal aspect of these things can really only be judged from the angle as to whether it could be discerned at that time that the development was a preparation for the things that happened later and which are indicted under the Charter. If by the formation of the Cabinet a real revolution, a civil war, was avoided, they were entitled to believe that they had thus sacrificed at least something to the general mood in order to avoid a dangerous reaction of the incited masses. It was not unreasonable to hope that this trend would remain within the bounds of legality and reason and find its natural level. Politically, this was doubtless a false idea. The radical tendencies of those who, even after that, always went to extremes were underestimated. It must be borne in mind, however, that even those Cabinet members who came from the non-radical still clung to the idea that the responsible leader of the State would bring reason to bear and call a halt to this trend.

Those ministers who did not agree with this course tried to halt the development, but with diminishing success. Their attempts met with still less success when the authority of the Reich President, the weight of the bourgeois Right and the position of the Reichswehr ceased to form a counter-balance. Hitler understood how to use Hindenburg for his own purpose. The bourgeois Right no longer presented a close united front; many broke away and went over to the National Socialists. The parties dissolved themselves, and their followers were now robbed of their cohesion. Blomberg became a follower of Hitler. The ministers now in question had no support from the other side. Hitler made full use of the fact that he had been called by the people and that he was solely responsible to the people. To make open protest would have been impossible. The publication of Papen's Marburg speech was prohibited; his departure from the Cabinet as the result of this only served to make the circle of ministers, dissatisfied with developments, still smaller and thereby less influential. Any minister who entertained thoughts of resigning knew that his post would be filled by a new man who would not hinder, but would only further this development. Any minister who really had the interests of his Department at heart did not like the idea of transferring his field of work to these new men. It is clear that those who were confronted with this question did not want to endanger that which they in their fields of activity had laboriously achieved by curbing and correcting the effects of the laws, in conducting their policy as regards personnel and in other ways, and all they wanted to do was to continue this work also in the future.

The Head-of-the-State Law of 1st August, 1934, is the legal conclusion and the final word of the previous development. It is a Cabinet Law. Hitler demanded the consolidation of his office with that of the Reich President. According to his declaration this consolidation was not to be the final solution; only the momentary situation was to be considered, which was that he personally would not recognize a new Head of the State above himself, but on the other hand, he could not give up his office as Reich Chancellor. He pointed out that this measure would be sanctioned by a referendum, to take place after the death of Hindenburg. In this state of affairs the Cabinet did not consider itself able to oppose the demand of Hitler. The result of the plebiscite was a foregone conclusion. In any case Hitler would have achieved his aim, even if the Cabinet had refused to pass the law. The Cabinet Law of 1st August, 1934, is therefore actually nothing else but a preparatory law, which in any case could be and was achieved by a plebiscite. The legal sanctioning of the dictatorship, therefore, was only a confirmation of the powers held hitherto and a consequence of the overwhelming will of the people at that time.

This law clarified the situation, not only as regards power-policy, but also as regards constitutional law. The law represents the complete establishment of the monocratic principle in the State. In his person Hitler consolidated the right of the Reich President, especially the emergency powers law, with the right of the Reich Chancellor to determine the fundamental principle of policy. As

[Page 199]

Commander-in-Chief of the Armed Forces he finally held in his hand the strongest instrument of power in the State. Actually every State organ became dependent on his will and had to follow his directions. The Reich Cabinet was not excepted. This became outwardly apparent by the law concerning the oath of the Reich Ministers of 16th October, 1934. The new oath for the Ministers was the same as the general oath for civil servants and soldiers, and showed that the position of the minister had changed to that of a high-level State official bound by directives.

In line with this legal situation, the working procedure of the Cabinet and the significance of the Cabinet sessions also underwent a change. In so far as foreign policy decisions were concerned, Hitler only announced what his resolve was, mostly in one long monologue on the general political situation. Later on he only informed the Cabinet of the accomplished facts. He informed the Cabinet of the occupation of the Rhineland after the troops had already entered it. In the case of fundamental domestic political measures, for example, the Nuremberg Laws, the Cabinet as such was not previously consulted. The majority of the ministers were surprised when the law was suggested in the Reichstag Session of the Nuremberg Party Rally. In the drafting of minor laws of administrative importance only the completed draft and the reasons for it were submitted. In order to avoid the expression of departmental objections in the Cabinet session, the drafts were previously made "ripe for the Cabinet" in accordance with a directive of Hitler, i.e., the specialist ministers were given the opportunity in a preliminary discussion to voice their departmental objections to the departmental minister responsible for the initial draft. Only after these objections had been considered did the final draft reach the Cabinet session. Therefore, no allowance was made for a consultation in the Cabinet session. General political considerations which concerned these drafts were subject to the general decision of Hitler. If, therefore, a general political question did arise, about which Hitler's point of view was not yet known, the department was not able to deal with it until his directive had been obtained. Thus the Cabinet sessions not only lacked any political significance, but also any practical purpose. Hitler therefore convoked the Cabinet at less and less frequent intervals, until finally after a last session in February, 1938, which was merely called to receive a statement by Hitler, no further Cabinet sessions whatsoever took place.

Henceforth the Cabinet sessions were completely replaced by circulation procedure (Umlaufsverfahren). The working minister submitted the Bills to the other members of the Cabinet to enable them to raise objections in their own departmental fields. It stands to reason that basic political questions and political measures, which Hitler decided as he saw fit, were never dealt with by the circulation procedure. As was shown during the hearing of the witnesses, most of the ministers did not know any more about important political events than any other person. In most cases they learnt of the facts afterwards by Press or radio, unless it happened that something leaked through to them through secret channels which they too were prohibited to use. This may have happened more frequently in the sphere of the ministers than elsewhere. But this casual information did not give a comprehensive and authentic picture of the actual situation. Only the few close confidants of Hitler were really fully and authentically acquainted with the events. This confidence, however, was not necessarily given to a person occupying the post of a minister. The overwhelming majority of the ministers who did not belong to this close circle learned, for example, of the march into Austria, the setting up of a Protectorate and the introduction of the individual war measures, only after the measures had become effective and had been publicized.

The circulation procedure did not bring about any personal cohesion among the ministers. Even though, as a rule, the Bills were submitted to all ministers - this was not always done, as shown by Schacht's testimony - this did not mean a

[Page 200]

joint collaboration among all the ministers. This was only done to enable each minister to examine whether the interests of his department might be affected by the draft. The individual minister was thereby more strictly limited to his particular department. His task was merely to submit the objections of his department and to see to it that the powers of his department were not diminished or its competence impugned. Departmental interests are special interests, and if things are restricted to them no room is left for general aims and purposes.

The whole manner and form of the circulation procedure was designed to avoid the close co-operation of the ministers.

In the last phase of the development this intention of Hitler manifests itself clearly and openly. The hearing of the witnesses has shown that his ministers, except for the very small number who enjoyed his confidence, were not allowed access to him for years and that all efforts of the ministers to this end were in vain.

Several ministers made attempts to have the Cabinet meetings reintroduced and thereby provide an opportunity to express their opinion and obtain information. Hitler refused this with the remark that he wanted to have nothing more to do with this defeatists' club. He even forbade a personal gathering of the ministers arranged by Lammers in the form of an evening beer party.

If the prosecution works on the assumption that the Cabinet members as a group held the authoritative power in the conduct of the State and willfully directed its whole policy towards a contemplated unlawful war, then it can be said in rebuttal that the Cabinet had disintegrated and was no longer a cohesive whole, and out of this there had evolved a single directing head in the person of Hitler.

But other facts prove that there was no functional cohesion between the ministers. Between Hitler's directives and their execution by the departments of the individual ministers, higher level offices were created which, in their turn, had authority to issue directives to the individual minister. The departmental minister was, therefore, further removed from the headquarters of the decisive authority; he became merely the executive agent of superimposed directing offices. The "Trustee for the Four-Year-Plan," the "Minister-Councillor for the Defence of the Reich," the "General Plenipotentiary for the Employment of Labour" and offices were created by Hitler himself and provided with full legislative powers by him personally. Not only were these offices able to compel the departmental minister to issue specific administrative directives and ordinances, but what is more, they could themselves issue these directives to the subordinate offices over the heads of the departmental ministers and this diminution of their powers and authority was obviously brought about by Hitler intentionally. The Cabinet as an apparatus for the execution of his legislative orders seemed too unwieldy, too complicated and too obstructive, and the position of the minister in his department still too independent. Hitler therefore delegated legislative power to isolated or minor groups who, as men enjoying his special trust, ensured the prompt execution of his wishes. By the creation of these new subordinate offices, he restricted the power of the department. Amidst the confusion of the complex relations between the various levels, the difficulty of defining where competences and authorities began and ended, Hitler's orders and directives were the final solution, the sole reliable guide. His directives became more than ever indispensable, and the ministers had to refer to them. The picture given by the prosecution of a close group assembled in Cabinet sessions and functioning efficiently is thus considerably altered. An entirely new State apparatus was put into operation, a culmination of absolute powers in the person of Hitler, an intermediate stratum introduced by Hitler and subordinate only to him in the form of the newly created institutions discussed above, headed by men who were not all members of the Reich Cabinet as defined by the prosecution, and finally the individual departmental ministers as executive organs who in this organizational structure were naturally restricted solely to their own field of work.

[Page 201]

Finally the keeping of absolute secrecy, decreed by Hitler, was a further factor which prevented the ministers from combining. No minister was to know more than was absolutely necessary for him to carry out the task specially assigned to him. Even things which happened in his own department could be kept secret from the minister. I refer to the affidavit of Harmening from which it appears that the State Secretary was entrusted with the preparations for the intended war with Russia over the head of the minister and was ordered to keep it secret from his minister. No clearer proof is needed to show that Hitler revealed his plans only to those to whom he entrusted the task of carrying them out, and whom he considered specially suited for the purpose, irrespective of the position they held.

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