It is true that Rascher wrote interminable reports as to the results of these experiments, but there is no proof that they ever reached the defendant. On the contrary, they were addressed to Himmler and to Rudolf Brandt, his adjutant. At the Nuernberg conference in November 1943, which was held after all experiments had been finished, reports were made which even to a mildly curious lay person might have indicated that the experiments had been tinged with excesses and fatalities. But two facts are striking. First, the defendant was not present at the conference and only received a report of it later; and, second, the experiments were at that time all over.

It must be constantly borne in mind that this is an American court of justice, applying the ancient and fundamental concepts of Anglo-Saxon jurisprudence which have sunk their roots into the English common law and have been stoutly defended in the United States since its birth. One of the principal purposes of these trials is to inculcate into the thinking of the German people an appreciation of, and respect for, the principles of law which have become the backbone of the democratic process. We must bend every effort toward suggesting to the people of every nation that laws must be used for the protection of people and that every citizen shall forever have the right to a fair hearing before an impartial tribunal, before which all men stand equal. We must never falter in maintaining, by practice as well as by preachment, the sanctity of what we have come to know as due process of law, civil and criminal, municipal and international. If the level of civilization is to be raised throughout the world, this must be the first step. Any other road leads but to tyranny and chaos. This Tribunal, before all others, must act in recognition of these self-evident principles. If it fails, its whole purpose is frustrated and this trial becomes a mockery. At the very foundation of these juridical concepts lie two important postulates (1) every person accused of crime is presumed to be innocent, and (2) that presumption abides with him until guilt has been established by proof beyond a reasonable doubt.

Unless the court which hears the proof is convinced of guilt to the point of moral certainty, the presumption of innocence must continue to protect the accused. If the facts as drawn from the evidence are equally consistent with guilt and innocence, they must be resolved on the side of innocence. Under American law neither life nor liberty is to be lightly taken away, and, unless at the conclusion of the proof there is an abiding conviction of guilt in the mind of the court which sits in judgment, the accused may not be damnified.

Paying reverent attention to these sacred principles, it is the judgment of the Tribunal that the defendant is not guilty of the charges embraced in count two of the indictment.

COUNT ONE

Count one of the indictment charges the defendant with the commission of specified war crimes, as defined by Article II of Control Council Law No. 10, in that he was a principal in, accessory to, ordered, abetted, took a consenting part in and was connected with, plans and enterprises involving slave labor and deportation to slave labor, resulting in the enslavement, torture and murder of civilians of foreign countries. The indictment further charges that he similarly participated in the use of prisoners of war in war operations and work having a direct relation to war operations, resulting in inhuman treatment and death to captured members of the armed forces opposed to Germany. The indictment alleges that these acts were in violation of international law and the recognized principles of civilized warfare and in specific violation of numerous treaties and conventions to which Germany was a party.

It is claimed by the prosecution that the defendant’s responsibility for these alleged crimes arises from his activities in three capacities (1) as Aircraft Master General (Generalluftzeugmeister); (2) member of the Central Planning Board; and (3) chief of the Jaegerstab. The Central Planning Board was established by a decree of the Fuehrer, dated 29 October 1943. That decree fitted the task of production of material goods of every kind into the framework of the Four Year Plan and charged the Central Planning Board with the procurement and distribution of material of every description. The Board consisted of Reich Minister Speer, Under Secretary Koerner, and the defendant. On 1 March 1944, the Jaegerstab was established, consisting of Speer, Saur (a subordinate of Speer), and the defendant. The Jaegerstab concerned itself exclusively with the material needs of the Luftwaffe, and was headed, naturally, by the defendant. It became apparent that neither of these two bodies could adequately deal with the problems of production without constantly dealing with the question of labor supply. Meetings of the Central Planning Board were held at least weekly and the minutes of those meetings which were offered in evidence show a constant and unremitting concern with the problem of labor. Fritz Sauckel was in supreme command of the procurement of labor for the entire war effort, and his conduct in carrying out his task has been vividly portrayed in the judgment of the International Military Tribunal:[[158]]

“* * * As local supplies of raw materials and local industrial capacity became inadequate to meet the German requirements, the system of deporting laborers to Germany was put into force. By the middle of April 1940 compulsory deportation of laborers to Germany had been ordered in the General Government; and a similar procedure was followed in other eastern territories as they were occupied. A description of this compulsory deportation from Poland was given by Himmler. In an address to SS officers he recalled how in weather 40 degrees below zero they had to ‘haul away thousands, tens of thousands, hundreds of thousands.’ On a later occasion Himmler stated:

“ ‘Whether ten thousand Russian females fall down from exhaustion while digging an antitank ditch interests me only insofar as the antitank ditch for Germany is finished * * *. We must realize that we have 6-7 million foreigners in Germany * * *. They are none of them dangerous so long as we take severe measures at the merest trifles.’

“During the first two years of the German occupation of France, Belgium, Holland, and Norway, however, an attempt was made to obtain the necessary workers on a voluntary basis. How unsuccessful this was may be seen from the report of the meeting of the Central Planning Board on 1 March 1944. The representative of the defendant Speer, one Koehrl [Kehrl], speaking of the situation in France said: ‘During all this time a great number of Frenchmen were recruited, and voluntarily went to Germany.’