There seems to be some misunderstanding as to just what we mean, or at least we do not agree as to what is to be meant by treating these organizations as generally voluntary. The test which has been advanced by the counsel for the organizations would, it seems to me, completely nullify any practicable procedure.
Now let us contrast the Wehrmacht and the SS to get at what I mean by regarding an organization as generally voluntary. The Wehrmacht was generally a conscript organization, but it may have had a good many volunteers in it. I do not think we would be justified, because there were volunteers, in calling the Wehrmacht a voluntary organization. The SS, on the other hand, was generally a voluntary organization, but it did have some conscripts, and I do not think it would be any more just to carry the SS into the class of conscript organizations because of a few members than it would to classify the Wehrmacht as voluntary because of a few members. In other words, in neither case would we be justified in allowing, as we might say, the “tail to wag the dog.” It is a question of the general character of the over-all organization that decides what these organizations are.
Now, of course, if the Tribunal saw fit to say that its declaration was not intended to apply to any groups, sections, or individuals who were conscripts, that is one thing. I have no quarrel with that. From the very beginning I have insisted that of course we were not trying to reach conscripts. But if you sit here week after week determining who is a conscript and just where that principle leads, that, I think, would be quite apart from what we ought to do here.
A great deal of argument is addressed to the fact that proof is lacking—or that here should be stronger proof—that these organizations’ real criminality was known to the members; and the inference seems to be that we must prove that every member—or, at least—that we cannot hold members who did not know this criminal program on the part of these organizations. I think this gets into a question, perhaps, of the sufficiency of proof rather than one of principle, but it seems to me again that we have the common sense division.
If someone organized a literary society for the study of German literature and accumulated some funds and had a home, a house, and some of the defendants became its officers and secretly diverted its funds to a criminal purpose, while all the time to the public it was presenting only the appearance of being a literary society, it might very well be that a member should not be held unless we proved actual knowledge. Or, if a labor union, ostensibly for the purpose of improving the welfare of its members, has its funds or properties or the prestige of its name diverted by those who happened to gain control of it to criminal purposes, then you have a situation where the members might not be chargeable with knowledge.
But when I speak of knowledge sufficient to charge members, as I did, I do not mean the state of mind of each individual member. That would be an absurd test in any court of law. In the first place, it is never a satisfactory thing to explore the state of mind of an individual; and, in the second place, it is impossible to explore the state of mind of a million individuals. So we might as well drop this from consideration, if that were to be the test.
But let us look at this over-all program. How did these few men who were the heads of this Nazi regime kill 5 million Jews, as they boast they did? Now, they didn’t do it with their hands; and it took disciplined, organized, systematic manpower to do it. That manpower wasn’t casually assembled. It was organized, directed, and used. Can the killing of 5 million Jews in Europe be a secret? Weren’t the concentration camps known in every one of our countries? Were they not a byword in every land in the world—the German concentration camps—and yet we have to hear that the German people themselves had no knowledge about it.
Our public officials were protesting against the slaughter of Jews diplomatically and in every other way, and yet we are told this was a secret in Germany. The name of the Gestapo was known throughout the world, and there isn’t a man among counsel who would not have turned white if, in the night at his door, someone rapped and said he was representing the Gestapo. The name of that organization was known—unless we are to assume that it was singularly secret in Germany, but known to the rest of the world.
That sort of thing bears on this question of what men who joined these organizations ought to know. There was no declared and ostensible purpose of the SS, SA, and several of these organizations, except to carry into effect the Nazi program. They would make themselves masters of the streets.
The story is all in the evidence, and I won’t go on to repeat it. The program was an open, notorious program, and these were the strong-arm organizations. So it seems to me that we get down to the situation where, as Chief Justice Taft once said to the Supreme Court of the United States on a somewhat similar question: “We as judges are not obliged to close our eyes to things that all other men can see.” And this was notorious and open.