Hitler was the exponent of an idea. He was not only the representative of a Party political program, but also of a philosophy which separated him and the German people from the ideology of the rest of the world. As a convinced enemy of parliamentary democracy, and obsessed with the conviction that this was the true ideology, he was devoid of tolerance and the spirit of compromise. This produced an egocentric ideology which recognized as right only his own ideas and his own decisions. It led to the “Führer State,” in which he was enthroned on a lonely height as the incarnation of this faith, blind and deaf to all misgivings and objections, suspicious of all those who he thought might constitute a threat to his power, and brutal to everything that crossed his ideological path.
This outline of his character, which has been verified by the evidence, is incompatible with the Prosecution’s assumption that a partnership of interests might have existed between Hitler and the defendant. There was no partnership of interests and no common planning between Hitler and the men who were supposed to be his advisers. The hierarchy of the Führer State, in connection with the Führer Order Number 1, which gives the crudest expression to the separation of work, can only admit of the conclusion that the so-called co-workers were merely mouthpieces or tools of an overwhelming will, and not men who translated their own will into deeds. The only question, therefore, which can be raised is whether these men were guilty in putting themselves at the disposal of such a system and in submitting to the will of a man like Hitler.
This problem requires special examination in the case of soldiers, because this submission to the will of some person, which is contrary to the nature of a free man, is for the soldier the basic element of his profession, and of the duties of obedience and allegiance which exist for the soldier in all political systems.
The legal problem of conspiracy in the sense of the Indictment has been dealt with by my colleague Dr. Stahmer and by Dr. Horn. In the specific case of the Defendant Keitel I should only like to refer to two sentences of the speech as the starting point of my statements:
(1) “It is not sufficient that the plan be common to them all; they must know that it is common to all of them, and each one of them must of his own accord accept the plan as his own.
(2) “That is why a conspiracy with a dictator at the head is a contradiction in itself. The dictator does not enter into a conspiracy with his followers; he concludes no agreement with them; he dictates.”
Dr. Stahmer has pointed out that no one acting under or on account of pressure can therefore be a conspirator. I should like to modify this for the circle to which the Defendant Keitel belonged. To say that the defendants belonging to the military branch acted on account of or under pressure, does not accurately represent the real circumstances. It is correct to say that soldiers do not act voluntarily, that is, of their own free will. They must do what they are ordered, regardless of whether or not they approve of it. Accordingly, when soldiers engage in any action, their will is disregarded, or at least not taken into consideration; it will in fact always be disregarded because of the nature of the military profession, and in applying the Leadership Principle in the Armed Forces it cannot appear as a causal factor in the initiation and execution of orders. In this military sphere, therefore, we are not dealing with an abstract and thus theoretical deduction, but with a conclusion which is bound to result from the nature and practice of the military profession, when we maintain that the function of the Defendant Keitel was based on military orders. The activity of the Defendant Keitel with regard to the initiation of orders, decrees, and other measures by Hitler, even insofar as they are criminal, cannot therefore be considered as common work, that is, as the result of a common plan within the meaning of the term “conspiracy.” Keitel’s activity in regard to the execution of orders consists in the proper transmission of orders in the operations sector and in the proper execution of orders concerning the administration of the war, that is, in the so-called ministerial sector.
No matter how this activity in itself might be qualified in terms of the penal code, the Prosecution have not, I think, so far submitted anything which could refute this train of thought as to the conspiracy.
This is a soldierly principle, and is valid wherever the military command system exists. The significance of this statement is particularly important in the case of the Defendant Keitel. For the validity of such evidence might be questioned by saying that Keitel’s functions were not those of a soldier, or at least not only those of a soldier; and that he is therefore not entitled to claim consideration purely on the grounds of the existing system of command. The unfortunate nature of his position and the many and varied assignments, not all of which can be fitted into the framework of a system, which fell to him as Chief of the OKW, tend to obscure for us the primary factor with regard to the Defendant Keitel, namely, that no matter what Keitel did, or with what authority or organization he negotiated or was in contact, he was always motivated by his function as a soldier and by some general or particular order issued by Hitler.
The existence of a conspiracy seems to me incompatible with the theory of a soldier’s functions and with Keitel’s position as head of the OKW, and cannot logically be derived therefrom. In all cases in which the Prosecution has claimed conspiracy to be prejudice, the purpose of this conspiracy is an activity indulged in by the members in perpetrating acts which differ from their normal private activity. The ex contrario proposition is that the activity which a man must practice because it belongs to his profession or office cannot be termed a conspiracy. It may be added that the soldier does not act on his own initiative, but on orders received. A soldier may therefore take part in a conspiracy aimed against the duties he has undertaken as a soldier; but his activity within the scope of his military functions can on no account be termed a conspiracy.