The occupation of the trade-union buildings by the SA, adduced by the Prosecution as another point, took place on the order of Reichsleiter Ley, who used the SA for this operation, and this happened after the seizure of power.
Even the Prosecution did not assert that any outrages, ill-treatment, or excesses occurred when this operation was carried out. The fact that in connection with the seizure of power in the spring of 1933 individual excesses occurred, and that the American citizens Rosemann and Klauber, according to the affidavits submitted by the Prosecution, were beaten on this occasion is certainly regrettable. However, such excesses on the part of individual persons are unavoidable in organizations comprising millions of people and, considered by themselves, are hardly proper grounds for declaring the entire organization criminal.
The participation, finally, of the SA as guard troops in concentration camps is, according to the presentation of the Prosecution, restricted to single exceptions and ended anyway in 1934. The commandant of the Concentration Camp Oranienburg, according to the presentation of the Prosecution, was an SA Führer. However it is not asserted that he committed any atrocities.
The second case, the ill-treatment of prisoners in the camp of Hohnstein by SA and SS members in 1934 led to criminal proceedings and the SA men guilty were sentenced to imprisonment of up to 6 years.
As a last individual act there remains the participation of the SA in the excesses during the night of 10 and 11 November 1938, when the windows of Jewish stores were broken and the synagogues were burned. Here, too, the plan and the order did not originate with the SA. The SA was simply commissioned by the highest Party leadership to carry out this order. Finally if we consider that during the political struggles of 1921 to 1933 the old SA was involved in brawls—often purely defensive—with political opponents and that it did not develop into an organization with millions of members until after the seizure of power, we arrive at the following conclusion, expressed in figures:
On the basis of the presentation of the Prosecution at most 2 percent of all the indicted former SA members participated in punishable individual actions; 98 percent of the 4 millions, according to their conviction, kept their hands clean of any such punishable individual acts.
Here, too, the Prosecution will not want to insist that the excesses of these 2 percent considered by themselves should brand the entire organization as criminal. These 98 percent, that is in round numbers 3,900,000 former SA members, must nevertheless defend themselves here against the charge of having participated in the preparation of the war of aggression or in the planning or execution of the common conspiracy, or, formulated more strongly, against the charge of having belonged to organizations which pursued these criminal purposes.
What is the result if we apply the definition of the criminal nature of an organization as formulated yesterday by Justice Jackson and Sir David Maxwell-Fyfe?
The SA members will acknowledge that the criteria under Points 1 and 2 as defined yesterday are also true for the SA, namely, that the SA was an aggregation of numerous persons with collective aims and a membership which was voluntary in principle. However, they will strenuously deny the application of the Criteria 3, 4, and 5. Point 3 requires that the organization pursued objectively criminal aims in the sense of Article 6 of the Charter. The millions of members, if testifying here, would state that neither in the programs nor in the speeches of their leaders had they been called upon to pursue such criminal aims or methods. Whether the leaders of the SA pursued such criminal aims in secret or not these people are not in a position to judge. Whether such criminal aims were pursued secretly by the leadership of the SA can be determined only by the Tribunal, and only now when the archives have been opened, witnesses can testify, and the documents are laid open to the Court.
Now, Point 4 of the Prosecution’s definition, if I understood Justice Jackson correctly yesterday, requires, beyond this, as an element of crime involving subjective guilt, that the aims and methods of this organization were of such character that a reasonable, normal man may properly be charged with knowledge of them.