The question now is whether this new regulation conferred on Frick, in his capacity as Reich Minister of the Interior, any authority of command or any right to issue instructions which could be enforced with regard to the political police, its offices and its functionaries. When Himmler, in accordance with his own wish, which he could gratify because of his influence on Hitler, was appointed Police Chief for the entire Reich, there did not exist in Germany a police or security ministry, properly speaking.
This is the reason why the uniform direction of the police through Himmler in person was formally attached to the Reich Ministry of the Interior. But Himmler wanted to be more than a department chief in the Ministry of the Interior. Therefore a position entirely novel in German administrative law was created for him and his purposes. The entire sphere of the police was separated from the rest of the activities of the Ministry of the Interior and placed under Himmler’s special jurisdiction under a newly created title of office which, as a government office, contained the words “Reichsführer SS,” thereby making it possible for Himmler to carry out political police tasks under a title of office characterizing him as Reichsführer SS and in that capacity giving him independence from any instructions issued by a minister of state.
In order to accentuate further the independence of his office within the bureaucratic hierarchy as well, Himmler was given the additional right from the very beginning to represent police matters before the Cabinet independently and on his own responsibility, like any Reich minister; this is also shown in the decree concerning his appointment, Document 2073-PS. This decree is a typical example of the overlapping of competencies which Hitler favored to excess in his government system. Himmler became part of the Ministry of the Interior and, as an official of the Ministry of the Interior, was formally bound to abide by instructions of the Minister. However, he was also an independent Chief of Police with the right to represent before the Cabinet on his own responsibility matters pertaining to the Police, thus excluding Frick in that respect. In addition to that, his orders simultaneously carried the authority of the Reichsführer SS, in which Frick had no authority at all to interfere.
In actual effect this involved arrangement also enhanced the tremendous influence of Himmler on Hitler. In keeping with his convictions, and to safeguard a well-ordered state apparatus, Frick repeatedly tried to intervene through general instructions intended to restrain the arbitrary acts of the political police. As late as 25 January 1938 he tried through a decree to curtail the admissibility of protective custody and he forbade it in a number of cases of improper application. I refer to Document 1723-PS, Exhibit Number USA-206, an extract of which under Number 36 appears in the Frick document book. He prohibited protective custody in lieu of, or cumulative to, a legal penalty, forbade its application by police authorities of the intermediate or subordinate levels, and gave orders that the accused should be heard before arrest. He decreed periodical examination of the reasons for the continuance of confinement and on principle forbade the protective custody of foreigners, whom the Police had authority only to expel from the Reich in case of acts endangering the State.
An obvious argument is that the Gestapo in practice disregarded all these instructions of Frick and that Himmler and his subordinates maintained an absolute reign of terror and violence. This is correct and has been confirmed in detail by the witness Gisevius. But something else appears of importance to me in the defense of Frick: To show that Frick himself disapproved of such arbitrary acts and that he tried to do all in his power to prevent them. Finally, however, Hitler forbade even this. He informed him through Lammers—as confirmed by the latter as witness—that he was not to concern himself with police matters, that Himmler could manage that better by himself and that the Police was doing well under Himmler.
Thus Himmler finally got complete control of the Police, and he gave outward expression to this by later dropping, with Hitler’s consent, from his official title, the words “in the Reich Ministry of the Interior,” simply referring to himself as “Reichsführer SS and Chief of the German Police,” which is also shown in the testimony of the witness Lammers.
I believe that, in view of the circumstances, the problem of the Defendant Frick’s criminal responsibility for the political police and their arbitrary measures is not established by the fact that the entire Police was formally incorporated in the Reich Ministry of the Interior after the year 1936, since it has been proved! that Frick himself did not participate in arbitrary acts, but on the contrary tried again and again to intervene against such arbitrary practice with all the power he possessed, which however was no match for the personality of Himmler and his influence with Hitler.
In order to insure fair judgment, I request that the actual situation as to power of command and authority, and not the purely superficial circumstances of a formal incorporation of the tasks involved in the Reich Ministry of the Interior, be taken into account.
I insert the following here: The Prosecution, during their presentation on 3 July 1946, submitted Document D-181, Exhibit GB-528, and stated in connection with that document that it proved that the political police were not only formally incorporated in the Ministry of the Interior, but that Frick was in fact responsible for the measures of the Police. Actually the document shows only that Frick as Minister of the Interior was officially contacted in the matter of the sterilization of those suffering from so-called hereditary diseases. The document has nothing to do with any measures of the Police, least of all with any measures of the political police. Moreover there is no information in it regarding Himmler’s position in the Ministry of the Interior.
Now I will continue with my plea: In this connection, I must briefly deal with the reference of the Prosecution to the fact that Hitler’s decree concerning the appointment of Himmler as Chief of the German Police—Document 2073-PS—had been countersigned by Frick himself.