Afternoon Session
THE PRESIDENT: The Tribunal proposes to go until 4 o’clock without a break, if that is convenient.
DR. SAUTER: Gentlemen of the Tribunal, I have so far defined the position of the Defendant Funk in general statements; I am now going to deal with the criminal responsibility of the Defendant Funk on the separate charges made against him.
The first point of the Indictment deals with the support of the seizure of power by the Party, that is, the Defendant Funk’s Party activities from 1931 up to the end of 1932. The Defendant Funk is alleged to have helped the conspirators to seize power. This charge deals with the activities of the Defendant Funk from the date of his joining the Party in June 1931 up to the seizure of power on 30 January 1933. The Prosecution maintains that Funk’s activities on behalf of the Party during that period furthered the seizure of power by the National Socialists. That is correct. The Defendant Funk himself, when interrogated on 4 May, gave a detailed explanation of his reasons for considering the National Socialist seizure of power the only possible way of delivering the German people from the grave intellectual, economic, and social distress of that time. The economic program of the Party was, in his opinion, vague and mainly intended for propaganda. He himself wanted to gain recognition for his own economic principles in the Party, in order to work through the Party for the benefit of the German people. Funk gave a detailed description of these principles during his examination. They are based on the idea of private property, which is inseparable from the conception of the varying capability of a human being.
Funk demanded the recognition of private initiative and of the independence of the creative businessman, added to free competition and the leveling of social extremes. He aimed at the elimination of Party and class warfare, at a strong Government with full authority and responsibility, and at the creation of a uniform political will among the people. His conversations with Adolf Hitler and other Party leaders convinced him that the Party entirely accepted his principles and ideas. In Funk’s opinion he cannot be blamed for his support of the Party in its struggle for power. Funk believes that the discussions in this Trial furnish absolute proof that the Party came to power quite legally. But even the methods used by Funk to assist the Party cannot, in his opinion, be condemned. In any case the role attributed to him by the Prosecution does not fit the facts. The importance of Funk’s activities is at times greatly overestimated by them; in many other instances their judgment of these activities is completely false.
The evidence offered by the Prosecution consists mainly of references and extracts from reference books, and especially from a book by Dr. Oestreich, Walter Funk—A Life for Economy, which was submitted to the Tribunal as Document Number 3505-PS, USA-653. The core of this evidence is a “Program for Economic Reconstruction” by the Defendant Funk, which is printed on Page 81 of this book and which the Prosecution calls “the official Party declaration in the economic field” and “the economic bible for the Party organization.” This so-called “Program for Economic Reconstruction” forms the basis for the incorrect accusation made by the Prosecution on Page 3 of the trial brief, to the effect that the Defendant Funk assisted “in the formulation of the program which was publicly proclaimed by the Nazi Party and by Hitler.”
This “Program for Economic Reconstruction,” which was read word for word during the hearing of the Defendant Funk, actually did not contain anything unusual, let alone revolutionary, or anything which was in any way characteristic of the National Socialist ideology. The program indicates the need for providing work, creating productive credits without inflationary consequences, balancing public finances, as well as the need for protective measures for agriculture and urban real estate, and a redirection of economic relations with foreign countries. It is a program which, as Funk said in his testimony, might be advocated by any liberal or democratic party and government. The Defendant Funk only regrets that the Party did not fully subscribe to these principles. Later on his economic viewpoint involved him in constant difficulties and disputes with various Party offices, especially with the German Labor Front and the Party Chancellery, and with Himmler and most of the Gauleiter. This is also confirmed by the witness Landfried, who described these differences between Funk and the Party in detail in his interrogatory. Funk had the reputation in the Party of being mainly a liberal and an outsider. During that time, that is mainly in 1932, he established relations between Hitler and some of the leading personalities of German economic life. He also worked to promote understanding for National Socialist ideas and to gain support for the Party by trade and industry. By virtue of these activities he was frequently described as Hitler’s economic adviser. But that was not a Party office or a Party title.
In Document EC-440, USA-874, Funk states that Keppler, who was later appointed State Secretary, was considered the Führer’s economic adviser for many years before himself. By this reference Funk intended to show that the designation “Economic Adviser to the Führer” was given by the public to other persons also.
The period during which Funk was given Party assignments was a very short one. That these activities were never of decisive importance may be deduced from the fact that after the assumption of power Funk’s Party activities ceased completely. In other fields, such as food and agriculture, finance, and so forth, the Party incumbents who entered the civil service as ministers or state secretaries, et cetera, retained their Party office, which usually acquired greater importance. The elimination of the sole Defendant Funk from every Party office as soon as the assumption of power was complete shows clearly that the Party leaders did not attach much value to Funk’s work in the Party.
In cross-examining the Defendant Funk the Soviet Russian Prosecution showed him an article which had appeared on 18 August 1940 in the magazine Das Reich on the occasion of his fiftieth birthday (USSR-450). In this article the author, an economist by the name of Dr. Herle, emphasizes that Funk “as intermediary between the Party and economic circles had become a pioneer working toward a new spiritual attitude in German economic life.”
In this connection we may say that Funk never denied that he regarded it as his task to construct an economic system with an obligation toward state and community on the one hand, yet based on private ownership and private initiative and responsibility on the other. Funk always acknowledged and adopted the political aims and ideals of National Socialism. The majority of the German people embraced these goals and ideologies, as was proved by several plebiscites. Funk himself did not suspect that all the good intentions and idealistic aims, so often emphasized by Hitler when he came into power, would later crumble in the blood and smoke of war and sink to such an inconceivable inhuman level. Funk testified explicitly that he considered the authoritative form of government—by which he meant the strong state, a responsible cabinet, the social community, and an economic system with social obligations—a prerequisite in order to overcome the grave intellectual and economic crisis through which the German people were then passing. He always expressly acknowledged that politics must have precedence over economics.
On 30 January 1933, as Press Chief of the Reich Government, Funk took up the State office of a Ministerial Director in the Reich Chancellery. Six weeks later, however, the direction of press policy passed into the hands of Dr. Goebbels, when the latter became Reich Minister for Public Enlightenment and Propaganda; and the press department of the Reich Government, which Funk was to have directed, was merged in the newly established Ministry for Propaganda. For the time being he retained only the right to make his press report personally to Reich President Von Hindenburg and Reich Chancellor Adolf Hitler—until Hindenburg’s death. Then this activity also came to a complete standstill, so that the Office of Press Chief of the Reich Government existed only on paper. This was also expressly confirmed by the Defendant Fritzsche during his examination as a witness on 28 June.
The guilt of the defendant is inferred mainly from the fact that he was a State Secretary in the Ministry of Propaganda. The hearing of evidence has shown, however, that as State Secretary, Funk had nothing whatsoever to do with actual propaganda work. He made no radio speeches, nor did he speak at public meetings. Press policy, on the other hand, was dictated by Dr. Goebbels in person even at that time.
Even at that time, however, Funk gave particular attention to the wishes and complaints of the journalists. He protected the press against misuse by official departments and made every effort to safeguard the individuality of the press and to enable it to work in a responsible manner.
All this has been established by a number of witnesses to whom I refer on Pages 17 to 24; in particular by the witnesses Amann, Kallus, Fritzsche, Oeser, and Roesen. The two latter witnesses have indeed confirmed the fact that Funk as State Secretary in the Ministry of Propaganda also worked energetically on behalf of Jews and such persons as were oppressed and hindered in their spiritual and artistic work by the legislation and cultural policy of the National Socialists. Funk did so much on behalf of such people that he jeopardized his own official position to such an extent that the Ministry actually considered him politically unreliable.
As to defendant’s activity in the Reich Ministry of Propaganda, the Prosecution charges him as follows:
“By means of such an activity in the Ministry of Propaganda the Defendant Funk participated in establishing the power of the conspirators over Germany, and is particularly responsible for the persecution of ‘political dissenters’ and Jews, for the psychological preparation of the people for war, and for the weakening of the strength of and will for resistance of the victims selected by the conspirators.”
Also in this point of the accusation, the guilt of the Defendant Funk has been derived almost exclusively from the fact that he occupied the position of a state secretary in the Ministry of Propaganda. The hearing of evidence, however, has shown that Funk had nothing to do with actual propaganda activity in his position as State Secretary. Funk did not deliver any speeches, either through the radio or in public meetings. The press policy was directed by Dr. Goebbels in person ever since the Ministry had been established. However, Funk took care, to a large extent, of the wishes and complaints of the journalists. He protected the press against trespassing by Government offices and tried to secure for the press an individual look and an activity conscious of its responsibilities. This is expressed by the digest from the book written by Dr. Paul Oestreich: Walter Funk—A Life for Economy, Document 3505-PS, Exhibit USA-653, Document Book Funk Number 4b.
Some of Funk’s wordings from that period of his activity in the Ministry of Propaganda, as for example, the sentence “the press is no barrel organ” and the saying “the press should not be the scapegoat of the government” later have become all but household words.
As State Secretary Funk had, on the whole, only organizational and economic tasks, he managed the financial side of the activity of the numerous organizations and institutes which were controlled by the Ministry of Propaganda, such as, particularly, the Reich Broadcasting Company, further the German Trade Publicity Council (Werberat der deutschen Wirtschaft), the State-owned film combines, the State-owned theaters and orchestras and the State-owned press agencies and newspapers. As to art, and according to his artistic tastes, he occupied himself with music and theater. In the direction of the Ministry of Propaganda, a complete separation between political tasks on the one hand and organizational and economic tasks on the other hand took place. This has been stated in unison by all witnesses examined on this point. Minister Dr. Goebbels in person directed the propaganda policy, exercising complete, absolute and exclusive control. His assistants herein were, not his State Secretary Funk, but his old collaborators from the propaganda organization of the Party, who, for the most part, were taken over by him in a personal union into the newly created Ministry of Propaganda. Funk, however, did not belong to the propaganda department of the Party, neither before nor after the Ministry was established. The assertion of Mr. Messersmith in his affidavit, submitted under Document 1760-PS, according to which Goebbels had incorporated Funk into the Party organization, is erroneous, and can obviously be attributed to the fact that Messersmith had, as an outsider, no insight into the division of work within the Ministry of Propaganda, and moreover, apparently identified readily the propaganda activity of the Party with the propaganda of the State Ministry. This has been confirmed by the questionnaire submitted by Messersmith, as asked for by the Defendant Funk, on May 7th, 1946, (Document Book Funk, Supplement Number 5). This questionnaire shows that Messersmith cannot even state whether he had a conversation with the Defendant Funk a few times or only once; furthermore, that he does not remember any more what topic was discussed at that time, nor in what capacity Funk was present at this meeting. With such vague and unreliable statements of a witness nothing, of course, can be proven.
As a proof of the fact that Funk had nothing to do with the actual propaganda activity and—as the Defendant Göring has asserted here as a witness—did not play any important part at all in comparison to Goebbels, I refer to the affidavit of the former Reichsleiter for the press, Max Amann, of April 17th, 1946 (Document Book Funk, Exhibit 14). At first, the Prosecution has submitted an affidavit sworn by this witness, of December 19th, 1945 (Document 3501-PS); the statements contained therein have been, in the new affidavit of April 17th, 1946, supplemented and corrected in essential points. In this new statement, submitted to the Prosecution and to the Defense, the witness Amann gives evidence that also, according to his knowledge, Funk, as State Secretary in the Ministry of Propaganda, had nothing to do with the actual propaganda activity. For the rest, the witness confirms the statements of the Defendant Funk, namely, that he (Amann) did not know in person the distribution of activities and the interior management of the Ministry, and that his statements are exclusively based op information by other persons. The witness Heinz Kallus, on the other hand, worked for some years as an official of the Ministry of Propaganda. Kallus, too, confirms under oath in the answers, in the questionary addressed to him (Exhibit Number Funk-18), that on the whole Funk was engaged in administration and financial questions, and the same was testified by the Defendant Hans Fritzsche during his examination as a witness before this Tribunal on June 27th and 28th.
In the trial brief of the Defendant Funk, Page 9—Document 3566-PS—the Prosecution submitted the notes of an SS-Scharführer Sigismund as evidence for the importance of the position which Funk is supposed to have held in the Ministry of Propaganda. An official of this Ministry, by the name of Weinbrenner, is supposed to have declared to that SS-Scharführer that it was impossible to know whom Minister Goebbels would entrust with the office of radio superintendent, as Goebbels took most of the important decisions only in agreement with Under Secretary Funk. Now, Dr. Goebbels did not as a matter of course undertake the appointment to the leading post in broadcasting without getting in touch with Funk, the chairman of the administrative board of the Reich Broadcasting Corporation (Reichsrundfunkgesellschaft); this, however, does not prove anything concerning the nature and the significance of the activity of the Defendant Funk nor of the aims he pursued thereby. After all, the Prosecution has been able to submit but one single document bearing the signature of Funk as Under Secretary, namely, the fixing of a date for the coming into force of a decree for the execution of a law concerning the Reichskulturkammer, of November 9th, 1933 (Document 3505-PS); hereof the Prosecution deduces a responsibility or, at any rate, a co-responsibility of the Defendant Funk for the entire legislation for the control and co-ordination of the cultural professions (Kulturberufe).
This conclusion appears to be wrong; quite apart from the fact that the point in question is the fixing of a date for a decree concerning execution, therefore a purely formal act, it must be emphasized that this law was decided by the Reich Cabinet of which the Defendant Funk at that time was not a member.
Funk stated in his examination that, during the entire duration of his activity in the Ministry of Propaganda, he hardly gave his signature more than three times representing Dr. Goebbels. For the rest, the Defendant Fritzsche testified here as a witness, on June 28th, 1946, that the position of Dr. Goebbels’ long-time collaborator and personal advisor Hanke, who later on became Under Secretary and Gauleiter, corresponded far more to the usual position of an under secretary in the Ministry, than the one of the Defendant Funk. It was Hanke, too, who maintained the liaison of Minister Goebbels with the section heads and advisers of the Ministry, a task adhering otherwise to the under secretary in a ministry, but which was never entrusted to the Defendant Funk, although he was an under secretary.
It is proven by the affidavit of the former editor-in-chief of the Frankfurter Zeitung, Albert Oeser (Exhibit Number Funk-1), and of the attorney-at-law Dr. Karl Roesen (Exhibit Number Funk-2), as well as by the affidavits of the witness Heinz Kallus (Document Funk-18), that the Defendant Funk, in his position as an under secretary of the Ministry of Propaganda, energetically undertook to help Jews and other persons who were oppressed and thwarted in their intellectual or artistic activities by the National Socialist legislation and cultural policy, and that he did this under heavy risks to his own position.
Among the persons for whom Funk interceded were not only Jewish editors, but also many prominent German artists, and the witness Kallus (cf. his questionnaire in the Document Funk-18) mentions in this connection the Jewish proprietors of a big Berlin directory publishing firm, whom Funk had given permission to carry on with their business, against considerable resistance of the competent section of the Ministry and of the German trade publicity council (Werberat der deutschen Wirtschaft). The witness Kallus stated further, that, owing to this attitude toward the Jewish cultural workers, Funk was “suspect” to Dr. Goebbels and to the chief of the press section, Berndt, who was known to be particularly radical. Editor-in-chief Oeser explicitly states, as a witness, in his affidavit (Document Book Funk Number 1) that he has made his statements voluntarily to prove the “human attitude” of the Defendant Funk, and gives the names of eight Jewish editors of the Frankfurter Zeitung, whom Funk had given permission to carry on with their profession. In this connection, Oeser further remarks: “He (Funk) herewith proved his human understanding. Indeed, I have never heard from him (Funk), in the course of our conversations, any inhuman utterances. Owing to his (Funk’s) concessions, the endangered people obtained, in part repeatedly, the possibility to hope and to work anew with us and to prepare, without loss of income, their change of profession and their emigration.” Oeser, a well-known economic journalist, who always kept completely aloof from the Party, explicitly states that Funk, without any doubt, exposed himself by his attitude toward the Jews.
In the cross-examination of the Defendant Funk the Prosecution referred to an affidavit, produced by the Prosecution, of an editor called Franz Wolf; this witness expressed—Document 3954-PS, Exhibit USA-377—the opinion that Funk may well have given those exceptional permissions not out of human sentiments, but rather in order to maintain the high standard of the Frankfurter Zeitung. By the way, the author of the affidavit was actually one of the Jewish editors who were given permission to further exercise their profession by Funk. The assumption of the witness Wolf is in direct contradiction to the positive statements of the witness Oeser. The Defendant Funk, too, opposed this interpretation and has pointed out that at that time such considerations were of no importance to him. In later years, when the Frankfurter Zeitung was to disappear, he had, so he said, used his influence in order to insure the further publishing, out of material considerations too, as this newspaper was, as an economic paper, highly esteemed abroad and was the best commercial newspaper of the country. However, this does not alter the fact that Funk had, at that time, used his influence repeatedly and with success in favor of Oeser and his collaborators, for purely humanitarian reasons.
The witness Kallus finally declared in his questionnaire (Page 3 of Document Funk-18) that he remembers several occasions where Funk made possible the emigration of Jewish people under tolerable conditions. Kallus confirms hereby the statements of the witness Luise Funk (Document Book Funk, Exhibit Number 3), according to which the Defendant Funk often received, in the years when he was Under Secretary of State in the Ministry of Propaganda, letters of thanks from Jews who had emigrated at that time from Germany and who thanked Funk for having given them facilities for liquidating their businesses and for having procured them permission to take along abroad considerable parts of their fortunes.
Evidence concerning this second part of the Indictment has accordingly shown that Funk is guilty in the sense of this part of the Indictment neither in his official capacity nor by his actions. He has helped, as far as it was within his power, many Jews and many individuals who were endangered and hindered in their cultural work, out of their material and spiritual distress, although by doing so he jeopardized his own position.
Now, Gentlemen of the Tribunal, I turn to another subject—the charge appearing under Point 4 of my brief, Page 24 onward, namely, that he participated in the preparation of wars of aggression; a point which is dealt with by Figure 4 of the Indictment. The accusation against the Defendant Funk is: “that with full knowledge of the aggressive plans of the conspirators he participated in the planning and preparation for such wars.”
As evidence of this, the Indictment first of all points out that Göring’s Ministry of Economics was brought under the Four Year Plan as the “high command of the German war economy,” and was placed under Funk’s command. The Indictment also states that according to the Law for the Defense of the Reich of 4 September 1938 Funk, in his capacity as Plenipotentiary for Economics, was explicitly charged with the mobilization of German economy in case of war.
The Prosecution’s assertion that the Reich Ministry of Economics was brought under the Four Year Plan before it was handed over by Göring to Funk is quite correct, but the so-called “high command of the German economy” was not in the hands of the Reich Minister of Economics, Funk, but entirely in those of the Delegate for the Four Year Plan—that is, the Codefendant Göring. Göring has confirmed the fact that Funk was obliged to follow his instructions. In addition, the most important branches of production were managed—as we have already shown—by special plenipotentiaries of the Four Year Plan, who were under the control of Göring and received their instructions from Göring—not from Funk. The Reich Ministry of Economics itself was merely the office which carried out the directives of the Four Year Plan. The Defendant Funk has testified that some offices were only formally under his supervision and functioned in reality as autonomous institutions of the Four Year Plan.
Funk’s position as Plenipotentiary for Economics was vigorously disputed from the beginning. When the Defendant Funk was cross-examined, Document EC-255 was submitted, a letter from the Reich War Minister, Von Blomberg, to the Delegate for the Four Year Plan, Göring, dated 29 November 1937, wherein Blomberg proposes that the Defendant Funk, who had just then, on 27 November 1937, been appointed Reich Minister of Economics, should also be appointed Plenipotentiary for War Economy. This was not, however, done.
Göring himself took over the Reich Ministry of Economics to begin with, and only handed it over to the Defendant Funk in February 1938, 3 months afterward. Then the High Command of the Armed Forces—more especially the Army Economic Staff under General Thomas, whose name has been mentioned repeatedly—requested that the Plenipotentiary for War Economy should be bound in the future to follow the directives of the High Command in all questions concerning supplies for the Armed Forces. In this Document, EC-270, USA-840, the Economic Staff of the High Command of the Armed Forces claims a right to direct the Plenipotentiary for War Economy in nearly all his fields of activity.
The Defendant Funk tried by means of a conversation with Reich Marshal Göring and a letter to Reich Minister Dr. Lammers to clarify his position as Plenipotentiary for War Economy, and as such claimed to be placed under the direct command of Hitler and not bound to abide by the directives of the High Command of the Armed Forces. Göring and Lammers concurred with Funk’s opinion. It must, however, be emphasized most strongly that this did not affect Funk’s subordination to Göring, for all the other supreme Reich offices and ministers directly subordinate to Hitler’s command were also bound by the directives of the Delegate for the Four Year Plan, that is, by Göring’s directives.
It is a remarkable fact that according to the Reich Defense Law of 4 September 1938—the Second Reich Defense Law—the Defendant Funk did not become Plenipotentiary for War Economy, but Plenipotentiary for Economics, without the word “War,” and that this act explicitly stated that Funk was bound to comply with the demands of the OKW. The OKW, therefore, won its battle against Funk in the end.
But the individual economic departments, which according to the Reich Defense Law were under the direction of the Plenipotentiary for Economics for his special assignments, were equally unwilling to recognize him. In an interrogatory by the former State Secretary Dr. Hans Posse, Funk’s deputy as Plenipotentiary for Economics (Document 3819-PS, USA-843) which was produced during the cross-examination of the Defendant Funk, Posse states that the Plenipotentiary for Economics “never really exercised any function.” The ministers and state secretaries of the individual economic departments of finance, agriculture, transport, et cetera, did not, according to Posse, wish to be placed under Funk’s control, and even protested against it. Posse also mentions the disputes which Funk had with the Four Year Plan. He calls these conflicts “the struggle for power,” which in this connection simply means the authority to make decisions concerning the other economic departments. This was not a dispute between Göring and Funk; that is untrue because obviously Funk as Plenipotentiary for the Economics was still subordinate to Göring. Actually, this was a quarrel among state secretaries. The individual economic departments declared that they were subordinate to the Delegate for the Four Year Plan and refused to recognize the right of the Plenipotentiary for Economics to give them directives, since Funk himself was under the direction of the Four Year Plan. The state secretaries of the Four Year Plan supported the departments in their interpretation, and this lack of clarity and the overlapping of competencies caused the authority to issue directives to pass formally from the hands of the Delegate of the Four Year Plan a few months after the outbreak of the war.
Questioned by the Prosecution as to whether he had been in the habit of discussing important matters with Funk, the above-mentioned State Secretary Posse replied: “Yes; but these discussions did not produce results.” Posse confirms that the authority given to Göring was much more extensive and that Göring finally dissolved the office of the Plenipotentiary for Economics. According to Funk this happened as early as December 1939, a few months after the outbreak of the war. Funk retained only the formal right to issue decrees. This has also been confirmed by Lammers. Therefore, the Codefendant Göring’s statement that he was also of the opinion that Funk’s position as Plenipotentiary for Economics could be described as having existed only on paper is quite correct.
Naturally the office of the Plenipotentiary for Economics worked in continuous business relations with the other economic departments, with the Four Year Plan, with the staff of the department for defense economics of the German Supreme Command, and with the Plenipotentiary for Administration, that is to say, the Reich Minister of the Interior. As proof the Prosecution presented various documents showing that at the meetings of the Deputy Plenipotentiary for Economics and his staff, questions of finance, war production, labor, and others were discussed. In this connection the office of the Plenipotentiary once also treated the question of employing prisoners of war in the industry, but this was an entirely theoretical discussion (Document Number EC-488, USA Exhibit Number 842).
Why this General Staff economy work, which had to be done in times of peace for the eventuality of war, should be incriminating for the Defendant Funk is not clear. Besides, until August 1939 he personally did not take any interest in the details of these questions. All this work of the Plenipotentiary for Economics consisted of general preparations in case of war and did not apply to any special war. However, when Funk’s proposition for changing over from peacetime to wartime economy was worked out in co-operation with the other economic departments in August 1939, the danger of war with Poland was already pressing.
Nowhere in the material presented by the Prosecution is there a single indication of the fact that the Defendant Funk knew anything about military and political conversations and preparations which had as their object the planning of war—in particular, a war of aggression to be waged by Germany. Funk was never invited to take part in any conversations of this kind. He was, in particular, not present at the well-known discussion with Göring on 14 October 1938, which was treated exhaustively by the Prosecution on Page 24 of the trial brief. According to the Prosecution, Göring during that meeting referred to an order issued by Hitler for an unusual increase in armaments, especially weapons of attack. The Prosecutor declared during the session of 11 January 1946 that at that meeting Göring addressed words to Funk which were described as “the words of a man already at war.” Several documents included in the Funk document book and submitted to the Tribunal prove, however, beyond doubt that the Defendant Funk did not attend that meeting at all, as he was in Sofia at the time in order to conduct economic negotiations with Bulgaria. This exhibit, which the Prosecution obviously intended to use as a main exhibit, is thereby invalidated. On 25 August 1939, the date of Funk’s letter to Hitler to which I referred this morning, the German and Polish armies were already completely mobilized and stood face to face with each other. He was, therefore, compelled to act in that particular manner, and by that time he was no longer able to cancel any of the preparations. All this is corroborated by the diary kept by the witness Kallus and submitted in the Funk document book under Number 18. The Defendant Funk stated here on the witness stand:
“It was naturally my duty as Plenipotentiary for Economics to do all I could to prevent the civilian section of the economy from being shattered in the event of war, and it was also my duty as president of the Reichsbank to increase as much as possible the Reichsbank’s reserves of gold and foreign currency.”
He goes on to say:
“That was necessary on account of the general political tension at the time, and it was also necessary in case no war would come about but only economic sanctions which, in view of the political situation at the time, one could and must expect.”
Funk likewise says:
“It was also my duty as Reich Minister of Economics to increase production.”
That is an exact quotation from the Defendant Funk’s testimony. On this subject the witness Puhl, who was vice president of the Reichsbank, states in his interrogatory of 1 May, which is in the hands of the Tribunal, that the position of the Reichsbank in the last 7 months of Funk’s presidency before the outbreak of the war had not been materially strengthened, and that very little business had been done in the exchange of foreign assets for gold since January 1939. The Reichsbank’s cautious policy in regard to gold and foreign currency, according to this witness, was in line with its customary practice.
Puhl’s statement is important for the correct understanding of the reference made by Funk, in his letter to Hitler of 25 August 1939, to the conversion of foreign assets into gold. During the period of Funk’s presidency of the Reichsbank the transactions to which he alludes were no longer of any importance. The exaggerated phrases used by Funk in his letter to Hitler make the contents appear much more important than they actually were.
Funk explained this fact during his examination by saying that this letter was a private letter of thanks, that in those days every German was under a very great strain owing to the tense political events throughout Europe, and that he wanted to inform his Chancellor at this moment when the country was in danger of war, that he, Funk, had also done his duty. This was the first and only occasion on which Funk actively exercised his functions as Plenipotentiary for Economics.
Here I must insert something which is based upon some minutes which the Prosecution did not submit until the hearing of evidence had been concluded; Document 3787-PS. These are the minutes of the second meeting of the Reich Defense Council held on 23 June 1939. Funk, as Plenipotentiary for Economics, attended that meeting of the Reich Defense Council, which took place about 2 months before the beginning of the war. The text of the minutes, however, leaves no doubt whatever that they concern general, and therefore mainly theoretical, preparations for any war. Furthermore, to appreciate this document it must be remembered that during the war which broke out 3 months later the whole of the Defendant Funk’s assignments in connection with the distribution of labor was transferred to the Four Year Plan, since the main functions of the Plenipotentiary for Economics were formally and completely abolished, as I have previously shown, shortly after the outbreak of war.
To continue with my brief—the Defendant Funk has explained in detail during his examination that up to the very end he did not believe that war would come, but that on the contrary he thought that the Polish conflict would be settled by diplomatic means. The accuracy of this statement is also confirmed by the witnesses Landfried, Posse, and Puhl, the defendant’s three closest co-workers, in interrogatories submitted to the Court (Exhibit Numbers Funk-16 and 17 and Document 3849-PS). The danger of war with Russia came to Funk’s knowledge for the first time when he heard of Rosenberg’s appointment as plenipotentiary for the unified treatment of eastern European problems in April 1941. We remember that at that time Lammers and Rosenberg gave the Defendant Funk the same explanations, generally speaking, as those stated to the Tribunal here by all the witnesses heard on this question. He was told that the reason for the preparations for war against Soviet Russia was that the Soviet Russians were massing considerable forces along the entire border, that they had invaded Bessarabia, and that Molotov, in his discussions on the subject of the Baltic Sea and the Balkans, had made demands which Germany could not fulfill. As Rosenberg stated that the assignment given him by Hitler also included economic measures, Funk placed a ministerial director, Dr. Schlotterer, at Rosenberg’s disposal as liaison official. Schlotterer later took over the direction of the economic section of the Rosenberg Ministry and joined the Economic Operations Staff East of the Four Year Plan. The Ministry for Economics itself and Funk had practically nothing to do with economic questions in the occupied East and concerned themselves merely with questions bearing on German internal economy. The Ministry for Economics had no authority whatever to make decisions in the Occupied Eastern Territories. During his cross-examination the Defendant Funk was shown an extract from an interrogation of 19 October 1945, dealing with the subject “Preparations for War against Russia” (Document Number 3952-PS, USA-875). In this interrogation Funk stated that the Defendant Hess asked him at the end of April 1941 whether he, Funk, had heard anything about an impending war against Russia. Funk replied: “I have not heard anything definite, but there seems to be some discussion along that line.”
The explanation of this conversation at the end of April 1941 between two men who were not informed of the facts may well be that at that time Funk did not yet definitely know the reason for Rosenberg’s assignment, but knew only of suspicions and rumors.
On 28 May 1941 Rosenberg had a meeting with Funk (Document 1031-PS). In this meeting, as you may recall, they discussed the question of how the monetary problem in the East might be regulated in the event of war against Russia and the occupation of those territories by German forces. Gentlemen, in my opinion it is quite natural that in view of an impending war, even a war of defense, the authorities responsible for money matters should discuss the question of the handling of these matters in case enemy territory should be occupied. Funk was opposed to any solution likely to give rise to speculation; and he described the suggested rate of exchange for marks and rubles as entirely arbitrary. He agreed with Rosenberg that the Russian territory should have its own national currency as soon as conditions permitted. For the rest he demanded further investigation of these problems, especially since the matter could not be decided in advance.
Here too, therefore, Funk approached matters with his characteristic caution and endeavored to find a solution which would create stable conditions from the very start. If the necessity for printing ruble bills to meet the most urgent demands for currency was mentioned in the discussion with Rosenberg—though not by Funk—Funk did not see anything either unusual or criminal therein. If the currency of a country has been depleted, it is absolutely necessary for fresh money to be provided by the power responsible for maintaining a stable monetary system. Who made the banknotes was of no importance to Funk; the essential point for him was by whom the banknotes were issued and in what quantity. Moreover, the production of a new banknote requires months of preparation, so that the execution of such a plan—which, as I said, was in any case not Funk’s—could not have taken place until much later.
A few weeks after this discussion the war actually broke out. Funk knew that there was danger of war with Russia. That Germany had long been preparing for such a war was however as little known to him as the fact that Germany would attack and thus wage a preventive war. Funk was informed neither of the march into Austria nor of the negotiations in regard to the Sudetenland—in September and October 1938 he was not even in Germany—nor was he informed of the seizure of the remainder of Czechoslovakia. In the case of Poland, he knew that the conflict was acute, but nothing more; of Russia the same thing was true. But in both cases he was informed even of this only a short time before the actual outbreak of war. As far as wars with other countries were concerned, Funk received no information whatsoever before the opening of hostilities; he was only informed afterward.
All the facts I have mentioned form a clear indication that Funk knew nothing of Hitler’s intentions with regard to foreign policy, and that he had no knowledge whatsoever of the fact that Hitler was planning wars of aggression. In the summer of 1939 Funk certainly devoted particular attention to the conversion of German economy from a peacetime to a wartime basis. But as an official of the Reich, Funk considered it to be not only his right but also his duty to prepare the German people for a defensive war and to take the necessary economic measures.
However, the Prosecution believes that it can eliminate all these doubts by describing the Reichsregierung or the National Socialist Party as a criminal organization which conspired against other nations, and whose sole task was to plan and wage wars of aggression, to subjugate and enslave foreign nations, and to plunder and Germanize other countries. This deduction is erroneous, since those plans were devised and executed only by Hitler himself and a few of the men closest to him, of the type of Goebbels, Himmler, and Bormann. According to the evidence we have heard, there can be no doubt that even the highest officials of the State and the Armed Forces—and in particular Funk—were not informed of these plans, but that these plans were concealed from them by a cunning system of secrecy.
Any comparison with the secret societies mentioned by the Prosecution, which in other countries banded together in criminal organizations, as for example the Ku Klux Klan in America, is impossible for a further reason. The Ku Klux Klan was organized from the start as a secret society for the purpose of terrorizing and committing crimes. In 1871, after scarcely 6 years of existence, it was expressly forbidden by the North American Government through a special law, known as the Ku Klux Klan Act. At that time the Government even imposed martial law on it and fought it with every possible means. It was an organization with which the Government and Congress of the United States never had any dealings. A man like Funk would, of course, never have joined a secret society, a criminal organization against which the Government was fighting. However, the National Socialist Party in Germany was never a secret organization, but was a party recognized by the Government and considered lawful. The unity between this Party and the State was even declared in a special Reich law. Since 1934 the leader of this Party was at the same time the elected head of the Reich, and this head of the State and his Government have been constantly and officially recognized as a government by the entire world from 1933 on. It was due precisely to this international recognition of Hitler by every foreign country—a recognition which continued to be extended in part even during the second World War—that Funk and millions of other Germans never doubted the legality of the Government and that such doubts, if they ever entered their minds, were immediately dispelled. Millions of German officials and German soldiers assumed, just as Funk did, that they were only doing their duty in not withholding from the head of the State the recognition accorded to him by every country in the world.
The foreign countries, their statesmen as well as their general staffs, the press as well as the intelligence service of other countries, were certainly better informed about the German situation and also about the true aims of German politics than the German citizen who had no access to foreign newspapers, who was not permitted to listen to foreign radio stations if he did not want to land in jail or on the scaffold, who for years lived as isolated as in jail and could not even trust his neighbors and friends—not even his relatives—and dared not talk things over with anybody. Even ministers knew no more about Hitler’s true plans than any other fellow citizen and even of major State affairs they mostly learned only afterward through the newspapers or the radio. Who could have ever conceived the thought that foreign states would maintain diplomatic relations with a criminal organization and that official persons of foreign countries should recognize and call upon a man in whom they saw the head of a band of conspirators?
As already mentioned, Funk has never denied that in his plans and directives he naturally took into account the possibility of wars which might some day have to be waged by Germany, just as it is part of the duty of every general staff in the world to take such possibilities into consideration. At that time Funk had every reason to do so in his capacity as Minister of Economics and Reichsbank president; for the world situation since the first World War had been so tense, and the conflicting interests of individual nations had frequently appeared insurmountable to such a degree that, unless he wanted to be accused of neglecting or betraying the interests of his own people, every statesman had to make the preparations necessary for waging war. A preliminary activity of this kind is, therefore, not in itself of criminal significance; and Funk has no doubt that during those years the ministers of economics and bank presidents of other countries also made—and had to make—similar preparations for the event of war. In the case of Funk it is of no importance whether or not he for his part ordered such preparations, but only whether or not he knew that Hitler was planning aggressive wars and intended to wage such aggressive wars in violation of existing treaties and in disregard of international law.
But Funk, as he declared under oath, did not know this, nor did he act on this premise. Hitler’s constant affirmations of peace prevented such a possibility from entering his mind. Today, of course, we know on the basis of the actual events that followed and on the basis of the facts established by these proceedings, that those peace assertions of Hitler’s, which were still on his lips when he committed suicide, were in reality only lies and deception. But at that time Funk regarded Hitler’s protestations in favor of peace as perfectly genuine. It never occurred to him at that time that he himself and the whole German nation could be deceived by Hitler; he believed Hitler’s words just as did the entire world, and thus he was the victim of that deception just as was the entire world. If no blame attaches to foreign statesmen and generals who believed Hitler’s protestations, although they certainly were better informed on Germany’s rearmament than was Funk, the faith which he himself had in the head of the State cannot be called a crime.
Gentlemen of the Tribunal, I have now examined the Prosecution’s accusation that Funk had planned wars of aggression; and I turn to another point of the Indictment, which concerns Funk’s activities in the occupied territories and the charge of forced labor.
The Prosecution offered very little evidence against Funk on the subject of forced labor or the slave-labor program. In the main he is held responsible for the compulsory employment of foreign workers on the grounds that he was a member of the Central Planning Board from autumn 1943 on. The first session of the Central Planning Board at which he was present took place on 22 November 1943, that is to say, at an advanced stage of the war, and after that he very rarely attended meetings. The Defendant Speer testified to this, and it is also evident from the minutes of the Board, which were very carefully kept. And I should like to emphasize the fact that Funk never had anything to do with the employment of labor either in his capacity as Minister of Economics or as president of the Reichsbank. He was on principle opposed to taking in too many workers from the occupied territories, especially by force, because this interfered with the economic and the social life of these territories. The Codefendant Sauckel and the witnesses Landfried and Hayler have confirmed this, and it is also shown by the remarks made by Funk himself at the meeting held in Lammers’ office on 11 July 1944 (Document 3819-PS), which was frequently quoted in Court. Here, for instance, Funk expressed disapproval of ruthless raids to recruit foreign workers.
If Funk sent representatives to the Central Planning Board, he did so only to insure that the necessary raw materials were allocated to the industries engaged in manufacturing consumer’s goods and goods for export, but never to deal with questions of foreign labor, in which he was not at all interested. Although the Prosecution, in cross-examining the witness Hayler, on 7 May 1946, confronted him with a statement by Funk during the preliminary interrogation of 22 October 1945, Document Number 3544-PS, to the effect that he had “not racked his brain” over these labor problems, it must also be stated on the part of the Defense that in the next sentence of these minutes—in the same breath, so to speak—Funk declared that he had always done his utmost to prevent workers being taken away from their homeland, in this case France. This second sentence, although not quoted by the Prosecution, seems to be of special importance because it clearly reveals Funk’s disapproval of the compulsory measures used in connection with the utilization of foreign labor. The Defendant Speer, however, testified before the Tribunal on 20 June that the Central Planning Board made no plans at all for the utilization of labor. Only occasional discussions on questions concerning the utilization of labor took place here. The records containing the actual results of the negotiations and decisions of the Central Planning Board have not been introduced by the Prosecution. It has been shown that Funk, who attended only a few of the meetings of the Central Planning Board, never received the full notes but only the minutes, which revealed nothing. Before Speer was responsible for decisions on war production, and before Sauckel became Plenipotentiary General for the Allocation of Labor—that is, before 1942—the question of recruiting labor for production was dealt with by the Four Year Plan, that is, by Göring and not by Funk. Later on applications for workers required, as Speer has testified, were usually made by the industries directly to the offices controlling the allocation of labor. While Funk was still in charge of production in the Reich Ministry for Economics and working in accordance with the directives of the Four Year Plan, questions concerning the allocation of labor were not dealt with by the Reich Ministry for Economics at all, but by the Plenipotentiary General appointed under the Four Year Plan for the various branches of industry—that is, by Göring—by means of direct negotiation with the Plenipotentiary General for the Allocation of Labor. Speer clarified this in connection with Document Sauckel Number 12. He also clarified the fact that several branches of industry, such as overground and underground construction not falling within the competency of the Reich Minister of Economics, were cited in this document as belonging to it.
Some other items had been rectified previously already by Sauckel’s defense counsel. The various economic offices (Wirtschaftsämter) likewise did not request manpower from the Reich Ministry of Economics. They were, however, not offices of the Reich Ministry of Economics, but were incorporated in the so-called intermediate instance, that is, in the provincial authorities, or in the Gauleitungen.
An important point in this connection is the establishment of the fact that up to 1943, that is, up to the time in which Funk was at all competent in questions of production, foreign workers came to Germany through recruitment solely upon the basis of a voluntary decision. With respect to this, I refer to the decree of the Reich Minister for Labor promulgated on 30 July 1940, presented in Funk’s book of documents under Number 12, in which the conformity with obligations internationally agreed upon is specifically pointed out.
Finally it must be stated that Funk, at the time when he joined the Central Planning Board, no longer had any production assignments and could therefore no longer claim workers, so that in consequence he had no further interest in this aspect of the Central Planning Board’s activities.
Regarding Funk’s attitude toward the economy of occupied territory, and measures taken by him to insure the maintenance of orderly economic conditions and especially of stable conditions of currency, I refer to the questionnaires Landfried (Exhibit Number Funk-16) and Puhl (Exhibit Number Funk-17), as well as to testimony of the witnesses Hayler, Neubacher, and Seyss-Inquart. I will refer only to Document 2263-PS, introduced by the Prosecution during cross-examination of the Defendant Funk, a letter from the Under Secretary of the Ministry of Economics to the Armed Forces High Command of 6 June 1942, in which the transfer of 100 million Reichsmark from occupation money is requested for purchases by Roges Raw Material Incorporated (Rohstoffhandelsgesellschaft) on the black market in France.
Here we deal with the purchases in occupied territories mentioned before, resulting from instructions by the Four Year Plan. These, however, represent exactly those purchases against which Funk protested. His protests finally culminated in the decision of the Delegate for the Four Year Plan (Göring) to prohibit any such further purchases. As is known, Funk personally had no authority to issue instructions for the occupied territories. Moreover such controlled purchases by authorities must be looked upon in a different light from the uncontrolled purchases of the various State, Party, and Armed Forces agencies, against which Funk fought time and again (Questionnaire Landfried, Document Book Number Funk-16).
Summarily it must be said that the evidence submitted has proved beyond doubt that the Defendant Funk took a great many measures to prevent the exploitation of occupied territories and that the fact that he succeeded in preventing the devaluation of currency in occupied countries was in itself enough to protect them from suffering damage to an extent which cannot be evaluated in detail.
With that, Gentlemen of the Tribunal, I leave this point of the Indictment against Funk and turn to a further charge against him, namely, his participation in the elimination of Jews from economic life in November and December 1938, which forms Point 3 of the Indictment against him.
Gentlemen, the charges which the Prosecution has made against Funk contain many details with which, in view of the time at my disposal, I am unable to deal fully. With regard to such details I shall refer to statements made by Funk himself in this connection. First of all, however, I must deal more fully with what seems to me the most important of all the charges made against Funk, namely, that of playing a part in the persecution of the Jews. The Defendant Funk considers this to be the most important factor in his trial.
Gentlemen, no one in Germany has ever asserted that Funk was one of those fanatical anti-Semites who took part in the pogroms against the Jews or who approved of these proceedings and profited by them; Funk always condemned such actions. This can be explained not only by his natural disposition and the environment in which he grew up, but also by his years of work as a journalist, mainly in connection with that section of the press which dealt with economic policy and consequently kept him in continuous touch with the Jewish circles of importance to economic life. Experts in that field know, and still have respect for, Funk who even at that time showed an attitude that was free of all anti-Semitism, and friendly toward the Jews rather than hostile.
It is tragic to a certain extent that in spite of this the name Funk, of all names, has been repeatedly connected in this Trial with the decree of November 1933, as a result of which the Jews were eliminated from economic life. Whether he liked it or not, all questions concerning the treatment of Jews in the economic life of Germany were under the jurisdiction of his department as Minister for Economics. As an official it was his duty to issue the necessary executive instructions.
This was certainly particularly difficult for Funk, in view of his tolerant attitude. At that time he had already been a civil servant of the Reich Propaganda Ministry and the Ministry for Economics for 8 years, and yet, during all that time, the Prosecution could not cite a single instance of any display of anti-Semitism on Funk’s part or any evidence of his having urged or approved of the use of force, terrorism, or injustice against the Jews. On the contrary, we know from the statements of various witnesses that Funk repeatedly interceded for his Jewish fellow citizens in the course of these years; that he looked after them and tried in their interests to alleviate hardships, to prevent encroachments on their rights, and to spare the lives and careers of human beings, even if they were Jews or political opponents of his own.
It is, therefore, not surprising that this man, with his wide experience in the economic field, this man of far-reaching knowledge, with his frankly tolerant views, was most painfully affected when on 10 November 1938 he had to witness the destruction of Jewish homes and shops in Berlin, and when he received one report after another confirming the fact that Goebbels and his clique, exploiting the indignation of the populace over the assassination of a German by a Jew, were organizing such pogroms throughout Germany, and that these outrages were leading not only to the destruction of Jewish property, but also to the murder of many Jews and to the persecution of many thousands of innocent citizens.
The affidavit of this assistant, Ministerialrat Kallus (Document Book Number Funk-15) of 9 December 1945, and that of Frau Luise Funk of 5 November 1945 (Funk Document Book Number 3), prove clearly that Funk condemned such excesses most severely, that he was incensed to the extent of calling them filthy outrages even when addressing Dr. Goebbels himself, and that he threatened to resign in the event of a repetition. Even at that time he told the mighty Goebbels to his face that one should be ashamed of being a German.
All this, Gentlemen, expressed the justified indignation of a man who for years had made every effort to insure moderation toward Jews and political opponents and had received many a letter of gratitude for so doing—a man who had fought for years to prevent terrorism, to secure for all his fellow citizens the rights to which they were entitled, and to raise the standard of German economic life—and who now saw all his efforts frustrated in a single night by the brutal fanaticism of a Dr. Goebbels.
Funk himself, during his interrogation, gave us a vivid description of how, ever since he entered office as Minister of Economics in February 1938, he had been subjected to continuous pressure by Goebbels and Dr. Ley to eliminate the Jews from the economic life of the country in the same way as they had been eliminated in 1933 from its cultural life.
The witness Dr. Hayler stated here that Himmler also found fault with Funk for this. Funk himself testified to the difficulties which again and again occurred during those years with workers stirred up by propaganda, who were sometimes no longer willing to work under Jewish managers, or did not dare to do so; and how, in these oppressive conditions, numerous Jewish owners sold their businesses—frequently at cut prices—to people who seemed to Funk as the Minister of Economics entirely unfit to acquire or manage such businesses. Funk tried again and again to stem this overwhelming development. He made continual efforts to put a brake on this process of Aryanization; to provide for a reasonable and just settlement for Jewish owners of businesses; and to allow them to emigrate from Germany with their property. But Funk realized more and more clearly every day that he was too weak to stop this movement and that the radical elements around Dr. Goebbels and Dr. Ley were gaining the upper hand, in which they were unfortunately able to rely on Hitler’s authority. Hitler had allowed himself in the course of time to be won over more and more to the policy of radical treatment of the Jewish question by a few irresponsible advisers who are not sitting in the dock today.
The events of 9 November 1938 burst like a bombshell into this fight between Funk and other considerate people on the one side, and Goebbels and Ley on the other. As Dr. Goebbels himself admitted later to Fritzsche, they were aimed directly at the person of the Defendant Funk, who was thus to be confronted with a fait accompli. As the witness Landfried testified, Dr. Goebbels did in fact attain his ends through this operation of November 1938. Goebbels was able to refer later to Hitler’s own order for the Jews to be completely excluded from the economic life of Germany, although Funk, as the minister concerned, repeatedly made allusion to the relations with foreign countries upon which the German Reich and its economy depended.
The orders necessary to carry out this program were given by Göring in his capacity of Delegate for the Four Year Plan, on the direct orders of Hitler. Funk never had any doubt that in this particular affair Göring also was to a certain degree only a puppet, because he had always known Göring to be a man who condemned extreme radicalism in this particular question of the Jews. Funk’s views on this point were shared by wide circles of the German people, and the fateful Göring meeting of 12 November 1938 (Document 1816-PS) proved this to be correct. This document has been mentioned here repeatedly. At a meeting which preceded that of 12 November 1938, Göring sharply condemned the acts of terrorism which had occurred and declared to the Gauleiter present that he would make every Gauleiter personally responsible for acts of violence committed in his district. But what was the good of that?
In the course of the second meeting, the minutes of which were submitted to the Tribunal under Number 1816-PS, Goebbels ultimately succeeded in imposing his radical demands; and the course taken by this meeting forced Funk to admit that the complete elimination of the Jews from German economic life could no longer be delayed for the simple reason that the circles in power had become far too fanatical. It became evident to Funk that legislative measures were necessary if the Jews were to be protected from further acts of terrorism, looting, and violence and if they were to get any reasonable compensation. During the Göring meeting of 12 November 1938, Funk repeatedly expressed his views again, as is shown by the records. It was due to the efforts made by the Defendant Funk, with the support of Göring, that Jewish businesses were reopened for the time being, that the whole procedure was taken out of the hands of the arbitrary local agencies and put on a legal basis throughout Germany, and finally that in order to gain time in which to carry out this action a definite date was set for its completion. Anyone who reads carefully the minutes of the Göring meeting of 12 November 1938 will, in spite of their incorrect and incomplete formulation, be able to find definite and repeated indications of Funk’s moderating influence; namely, his insistence—repeatedly mentioned in the minutes—on the reopening of Jewish stores, his proposal that the Jews be allowed to retain at least their securities, and finally his attitude to Heydrich’s demand that the Jews be placed in ghettos. The minutes of 12 November 1938 prove beyond doubt that it was Funk who opposed Heydrich’s proposal by saying: “We don’t need ghettos. Surely the Jews could move closer together among themselves. The existence of 3 million Jewish people among no less than 70 million Germans can be regulated without ghettos.” This is a literal quotation.
Funk therefore wanted to save the Jews at least from being interned in ghettos. It must be admitted that at that time Funk did not entirely succeed in securing recognition for his point of view, so that the proposal that the Jews should be allowed to retain their securities, for instance, was turned down, although Funk pointed out, as the minutes show, that to realize the Jewish securities would suddenly flood the German stock market with securities to the value of 500 million Reichsmark and would, therefore, have serious consequences for the German stock market. The decisive question in judging the Defendant Funk is not so much his success as the fact that he made an obvious effort to save for the Jews all that could be saved in the circumstances; and we must not lose sight of the fact that in all those measures Funk acted only in his capacity as Minister of Economics, that is, as an official who merely gave the order to execute a command which Göring as Delegate of the Four Year Plan had issued on the orders of Hitler. Funk found himself in exactly the same position of constraint, as, for example, the Reich Minister of Finance, Graf Schwerin von Krosigk, who at that time had to order the punitive levy of 1,000 million Reichsmark to be paid by the Jews, or the Reich Minister of Justice and the Reich Minister of the Interior, both of whom issued similar executive instructions in their respective spheres. The Tribunal must decide the difficult legal question of whether a state official whose government has been legally recognized by all the governments of the world is liable to legal punishment for putting into effect a law—and I emphasize the word “law”—passed in accordance with the legislative system of this state. This legal problem is entirely different from the other question, dealt with in the Charter and by the Prosecution, as to whether or not the fact that an official order was given by a superior can serve as an excuse. I might add here that I shall not discuss this legal question because I shall leave it to the other members of the Defense. I shall discuss only whether an official who puts into effect a law passed by the internationally recognized government of his country thereby becomes liable to punishment. That is an entirely different problem from the one dealt with by the Charter.
Gentlemen, since this has not been dealt with before, I have to state the following; I read at the bottom of Page 50: Our natural sense of justice fully approves that a citizen, an official, or even a soldier, cannot defend himself by reference to the official order given him by his superior if this order obviously implies an illegal act, and especially a crime; and if in the existing circumstances and in due consideration of all the accompanying facts, the subordinate realizes, or should realize, that the official order is contrary to the law.
If the latter condition exists, in other words, if the official order obviously constitutes a breach of the law, it may in general be fully approved that the subordinate is not accorded the right to refer to his superior’s official order as an excuse and to maintain that he was only carrying out that order. In that respect this stipulation of the Charter contains nothing essentially new, but only the confirmation and further development of legal principles which are recognized to a varying extent in the penal codes of most civilized nations today. A certain amount of precaution, however, seems to be indicated in this matter, for it should not be forgotten, on the other hand, that obedience to the orders of a superior—not obedience to the law, but to a superior—is, and must in future remain the foundation of every government in all nations if the orderly functioning of the state administrative apparatus is to be secured; and that it would be dangerous for the civil servant to decide for himself whether to keep his oath of allegiance.
But, Gentlemen, in our case something different is involved: We are dealing here with the obedience of the citizen and especially of the civil servant, such as Funk was at that time, to a national law, which was legally promulgated in accordance with the constitutional rules of this State. If we wish to find a just and correct answer to this complicated juridical question, which so far has not been treated in literature, it will be pertinent to disregard entirely conditions in Germany and the present Trial, and to ask ourselves what decision would be given in a case where a civil servant of a different country—not Germany—carried out a law. Let us assume for instance, that some foreign country embracing a minority promulgated, in accordance with its constitution, a law exiling from its territory all members of this minority, or confiscating for the benefit of the state the property of such inhabitants, or turning over to the state or partitioning among other citizens the large agricultural estates of such inhabitants. Let us assume that such a case exists and let us ask ourselves: Does the civil servant in this nation really commit a crime if he carries out this lawful order? Is it really the duty of the official charged with the execution of this law to refuse to obey the law and to declare that in his personal opinion the law concerned is a crime against humanity, or has he even the right to do so? In such a case, Gentlemen, would any state today grant its civil servants permission to examine whether the law proclaimed is contrary to the principles of humanity or to the fluctuating norms of international law? What state would tolerate the refusal of its civil servants for such a reason to execute a law already proclaimed?
Or another example: Let us assume that the laws of a nation decree that certain new weapons are to be introduced into the armed forces, or that more warships are to be built, or that some preparations have to be made for war. Should an individual civil servant really have the right to refuse the execution of the law, even perhaps to sabotage its execution, and then to say, by way of explanation, that in his personal opinion concerning international law it involved the preparation of an aggressive war, consequently an international crime?
The Tribunal will have to decide these legal problems. But Funk may point out in his own defense the fact that by reason of his entire ideology and background it was especially painful to him to issue these executive instructions, although he believed he was only doing his duty as a civil servant.
In this connection I wish to remind you of Funk’s circular of 6 February 1939 (Document 3498-PS, Trial Brief Funk, Page, 19), where he emphasizes to his officials that it was their duty to “insure that it was carried out in a correct manner in every respect” and where he already feels impelled to disclaim personal responsibility for these measures by expressly emphasizing: “How far and how rapidly the powers conferred by the Four Year Plan are to be exercised will depend on the instructions to be given by me in accordance with the directives of the Delegate for the Four Year Plan.” This special reference made by the Defendant Funk to the legal decrees of the Four Year Plan, which was authorized to promulgate laws, originated in the defendant’s desire to express formally and solemnly, and to establish for the future, the fact that in issuing the executive instructions in 1938 he was a victim of his obedience to the State, a victim of his loyalty to the laws of the State to which he had sworn allegiance.
Funk’s circular of 6 February 1939, already mentioned on Page 19 of the trial brief, clearly expresses the qualms of conscience which had gripped Funk in those days, although he had not incriminated himself—qualms which, during his interrogation by an American officer on 22 October 1945, led to his complete nervous collapse, so that Funk was unable to restrain his tears and told the interrogating officer: “Yes, I am guilty; I should have resigned at that time.”
These same qualms of conscience gripped the defendant throughout the entire Trial and are still haunting him; and we remember that in the session of 6 May 1946, when this point was discussed, Funk was so deeply shaken that he could hardly continue talking and finally declared here before you, Gentlemen, that at that moment he fully realized that this, meaning the atrocities of November 1938, was the starting point of the chain of events leading to those horrible and frightful things of which we have learned here, some of which he too had already heard of during his imprisonment, and which culminated in Auschwitz. He felt, as he said during his interrogation on 22 October 1945, “deep shame and heavy guilt,” and he still feels it today; but he had put the will of the State and the laws of the State above his own feelings and above the voice of conscience since he, as a civil servant, was tied by duty to the State. He felt these ties all the more strongly as these legal measures were particularly necessary for the protection of the Jews in order to save them from losing their rights completely, and from suffering further despotism and violence. These are the very words of the Defendant Funk; and they represent his actual feelings. Today Funk still feels that it was a terrible tragedy that he of all people was charged with these things—he who never during his entire life said a spiteful word against a Jew, but had wherever he could always worked for tolerance and equality for the Jews.
If during his interrogation on 22 October 1945 Funk said: “I am guilty,” it need not be investigated here whether the defendant intended these words to apply to his criminal guilt, or only to a moral guilt which he saw in the fact that he had remained in an office which compelled him to carry out laws incompatible with his own philosophy of life. Funk was not in a position to decide for himself the complicated legal question of whether an official of an internationally acknowledged state can be punished at all if he only carries out laws passed in accordance with the legal constitution of this state. For the Defendant Funk his “guilt” did not lie in the fact that he had signed the executive instructions in November 1938, since this had been his duty as an official, rather did he consider himself guilty because he had remained a member of the Government although he found the acts of terror which had occurred intolerable, and abhorred them; he was not involved in the “conflict of conscience,” of which he spoke when he was interrogated, because he acted according to the laws which he considered necessary under the conditions prevailing at the time. This conflict was a result of the fact that he had not, in this difficult situation, listened to the voice of his conscience and had not resigned his ministerial office. But the decisive reasons for his attitude and his final decision to remain in office in spite of his feelings about the matter were certainly not material considerations. His reputation as a journalist and his abilities as such would easily have enabled him to find another suitable position. Much is to be said for the opinion that the Defendant was held in office above all by the thought that his resignation would in no way improve matters, but that on the contrary the administration would become still more radical under an unsuitable and fanatical successor, while by staying in office he might hope to alleviate much distress.
These considerations, which may have guided the Defendant Funk in the first place, were certainly correct up to a point. His State Secretary, Dr. Landfried, at least has testified that later on too Funk often expressed serious misgivings concerning the action taken against the Jews in November 1938 and showed very strong disapproval of all excesses and infringements of the law committed by various Government agencies in carrying out the action. Funk could talk openly to his confidant Landfried, and he often complained to him that he had no power to prevent such excesses. But, as he said to Landfried: “We of the Ministry of Economics should take particular care to see that no one makes illicit profits out of the Aryanization—that is, the transfer to non-Jewish ownership—of business firms.” And Ministerialrat Kallus described in his deposition of 19 April 1946 the various measures taken at that time by Funk to protect the interests of Jewish owners. Kallus also told us that Funk even made personal efforts to insure that his orders were carried out by his subordinates in a proper manner.
Gentlemen, thus a sense of duty on the one hand, and humane feeling on the other, were the motives which kept the defendant in office and thus brought him into a situation where he is today charged with criminal action.
Mr. President, I am now coming to a new subject and I have altogether about 15 more pages. Does the Court wish to adjourn now? It is 6 minutes to 4.
THE PRESIDENT: Can you finish it by that time, Dr. Sauter?
DR. SAUTER: There are 15 more pages; I should say about 8 or 9 minutes. On further thought, Mr. President, it will take about half an hour.
THE PRESIDENT: We will adjourn at this time.