I, also, by the way take the point of view that the question whether the organizations in their entirety can be indicted here is an absolute terra nova in the history of jurisprudence and that it is something which in its extent and its scope and in its effects shakes the very foundations of jurisprudence. In addition, as has been mentioned, organizations are to be judged which ceased to exist almost a year ago. In the criminal procedure of all civilized countries it is a basic condition that the defendant still be alive; proceedings cannot take place against a dead defendant.
According to Mr. Justice Jackson’s statements today, the organizations of the Gestapo and SS, for example, are to be held responsible for the liquidation of the Jews in the East; and it is pointed out that because of the death of millions of Jews and the impossibility of determining who the individual perpetrators were, the organizations as such must be judged in order that the guilty be punished. Of course, the Defense holds the conviction and takes the point of view that the guilty must be punished, but only the guilty. It is a fact, for example, that an Einsatzgruppe of the SD, whose task it was to solve the Jewish problem in the East, contained on the average only about 250 members of the Gestapo. Considering the total number of 45,000 to 50,000 members of the Gestapo, this figure is thus a very small one. In the case of a general verdict against, for instance, the Gestapo, more than 45,000 people would be affected who had absolutely nothing to do with this matter. I refer to the example of a mass murderer who cannot be captured, and whose whole family is taken into custody in his stead and condemned.
In view of the very important statements which have been made today by the Prosecution regarding the question of the organizations, I ask the Tribunal for permission, after the record has been received, to state my attitude, if necessary, to just a few other points today; first of all, to the question of the time during which the Gestapo is to be considered criminal. In this connection I must assert that at least until the year 1939 the Gestapo was a lawful, legally established institution. It is also true that the Indictment refers to crimes which can be charged to the Gestapo only after the autumn of 1939, that is, after the beginning of the war.
Today the Prosecution have furthermore excluded secretarial and office workers from the Indictment. I am in agreement with this. It is in accordance with the motion made by me already in December. I submit further that not only the secretarial and office personnel but also all other employees be excepted, because the reason for dropping the charges against the office personnel is doubtless that the Prosecution are convinced that this office personnel had nothing to do with the crimes of which the Gestapo is accused.
It should also be considered whether the administrative officials of the Gestapo, who represented about 70 percent of the personnel of the Gestapo, should be excluded from the Indictment. All of the 500 applications received so far are from such administrative officials. These officials were trained only in the field of administration. They had neither the training nor the knowledge for the making of criminal investigators. They could not be used for the execution of any criminal actions, because they had no executive power. They were active only in matters of personnel and finance—personnel matters such as the appointment of officials, promotions, dismissals, and so forth; matters of finance such as the administering of budget funds, figuring out and compiling salary and wage lists, renting of offices, et cetera. These are all things which have nothing to do with executive power, and especially not with the crimes imputed to the Gestapo by the Prosecution. In my opinion these people are just as entitled to exemption as the secretarial and office personnel, who have already been exempted by the Prosecution.
I should like to touch briefly on one other point of view, that is, the question of voluntary joining of an organization—a question which has played an important role. On 7 June 1945 Mr. Justice Jackson, in his statement to the President of the United States, said, among other things, the following: Units such as the Gestapo and SS were fighting units and consisted of volunteers—people especially suited for and fanatically inclined to the plans of violence of these units. To what extent that is true of the SS, I do not know. As far as the Gestapo is concerned, it certainly is not true, for the Gestapo was a State organization founded by the Defendant Göring on the basis of the law of 23 April 1933. It was a police authority just as was the Criminal Police whose duty it was to track down crimes or the Regular Police who were responsible for controlling traffic. The personnel consisted mostly of life-long career officials, some of whom had been in the police service many years before the creation of the Gestapo, and who, when this police organization was created and in the ensuing years, were ordered to, detailed to, or transferred to this police authority. According to the German law affecting civil servants these officials were obliged to follow such orders. They had never come voluntarily to the Gestapo. At the most there might perhaps have been 1 percent who were voluntary members; but 99 percent of the members were forcibly ordered on the basis of this law.
That is what I have to say at the moment. I should like, however, to reserve for myself the right to speak some time later about today’s discussions.
THE PRESIDENT: Yes, certainly. We will adjourn now.
[The Tribunal adjourned until 1 March 1946 at 1000 hours.]