4. PURGE OF POLITICAL OPPONENTS AND TERRORIZATION

A. The Nazi conspirators ruthlessly purged their political opponents. Soon after the Nazi conspirators had acquired political control, the defendant Goering, 3 March 1933, stated:

"Fellow Germans, my measures will not be crippled by any judicial thinking. My measures will not be crippled by any bureaucracy. Here, I don't have to give justice, my mission is only to destroy and exterminate, nothing more! This struggle, fellow Germans, will be a struggle against chaos and such a struggle, I shall not conduct with the power of any police. A bourgeoise state might have done that. Certainly, I shall use the power of the State and the police to the utmost, my dear Communists! So you won't draw any false conclusions; but the struggle to the death, in which my fist will grasp your necks, I shall lead with those down there-those are the Brown Shirts." (1856-PS)

In 1934 Heinrich Himmler, the Deputy Leader of the Prussian Secret State Police, stated:

"We are confronted with a very pressing duty-both the open and secret enemies of the Fuehrer and of the National Socialist movement and of our National Revolution must be discovered, combatted and exterminated. In this duty we are agreed to spare neither our own blood nor the blood of anyone else when it is required by our country." (2543-PS)

Raymond H. Geist, former American Counsel and First Secretary of the Embassy in Berlin, Germany 1929-1939, has stated:

"Immediately in 1933, the concentration camps were established and put under charge of the Gestapo. Only 'political' prisoners were held in concentration camps * * *.

"The first wave of terroristic acts began in March 6-13, 1933, accompanied by unusual mob violence. When the Nazi Party won the elections in March 1933-on the morning of the 6th-the accumulated passion blew off in wholesale attacks on the Communists, Jews, and others suspected of being either. Mobs of SA men roamed the streets, beating up, looting, and even killing persons * * *.

"For Germans taken into custody by the Gestapo * * * there was a regular pattern of brutality and terror. Victims numbered in the hundreds of thousands all over Germany." (1759-PS)

The Sturmabteilung (SA) had plans for the murder of former Prime Minister Bruening, but his life was spared through the negotiations and activities of the defendant Hess and Dr. Haushofer, President of the Geopolitic Institute of Munich, because they feared his death might result in serious repercussions abroad. (1669-PS)

From March until October 1933 the Nazi conspirators arrested, mistreated and killed numerous politicians, Reichstag members, authors, physicians, and lawyers. Among the persons killed were the Social Democrat Stolling; Ernst Heilman, Social Democrat and member of the Prussian Parliament; Otto Eggerstadt, the former Police President of Altona; and various other persons. The people killed by the Nazis belonged to various political parties and religious faiths, such as Democrats, Catholics, Communists, Jews, and pacifists. The killings were usually camouflaged by such utterances as "killed in attempting to escape" or "resisting arrest." It is estimated that during this first wave of terror conducted by the Nazi conspirators, between 500 and 700 persons died. (2544-PS; see also 2460-PS and 2472-PS.)

On 30 June, and 1, 2 July 1934, the Nazi conspirators proceeded to destroy opposition within their own ranks by wholesale murder (2545-PS). In making a formal report of these murders to the Reichstag on 13 July 1934, Hitler stated:

"The punishment for these crimes was hard and severe. There were shot 19 higher SA leaders, 31 SA leaders and SA members and also 3 SS leaders as participants in the plot. Also 13 SA leaders and civilians who tried to resist arrest and were killed in the attempt. 3 others committed suicide. 5 members of the Party who were not members of the SA were shot because of their participation. Finally, 3 SS members were at the same time exterminated because they had maltreated concentration camp inmates." (2572-PS)

In this same speech, Hitler proudly boasted that he gave the order to shoot the principal traitors and that he had prosecuted thousands of his former enemies on account of their corruption. He justified this action by saying,

"In this hour I was responsible for the fate of the German people." (Voelkischer Beobachter (People's Observer), Berlin ed., issue 195, 14 July 1934, Beiblatt, p. 2.)

The conspirators took advantage of this occasion to eliminate many opponents indiscriminately.

In discussing the Roehm purge, the defendant Frick stated:

"On account of this order, many, many people were arrested * * * something like a hundred, even more, were even killed who were accused of high treason. All of this was done without resort to legal proceedings. They were just killed on the spot. Many people were killed-I don't know how many-who actually did not have anything to do with the putsch. People who just weren't liked very well, as, for instance, SCHLEICHER, the former Reich Chancellor, were killed. SCHLEICHER's wife was also killed as was GREGOR STRASSER, who had been the Reich organization leader and second man in the Party after Hitler. STRASSER, at the time he was murdered, was not active in political affairs anymore. However, he had separated himself from the Fuehrer in November or December of 1932." (2950-PS)

Such a large scale of extermination could not be carried out without errors. Shortly after the event, the Nazi conspirators arranged for a Government pension to be paid to one of its citizens, because "by mistake" the political police had murdered her husband, Willi Schmidt, who had never engaged in any kind of political activity. It was believed at the time that the man intended was Willi Schmidt, an SA leader in Munich, who was later shot on the same day. (L-135)

The Nazi conspirators formally endorsed their murderous purge within their own ranks by causing the Reichstag to pass a law declaring that all measures taken in carrying out the purge on 30 June and 1-2 July 1934 were legal as a measure of State necessity (2057-PS). Referring to this act of approval on the part of the Nazi-controlled Reichstag, Goering stated:

"The action of the Government in the days of the Roehm revolt was the highest realization of the legal consciousness of the people. Later the action which itself was justified, now has been made legal by the passage of a law." (2496-PS)

Furthermore, the leader of the Nazi conspiracy on 25 July 1934 issued a decree which stated that because of the meritorious service of the SS, especially in connection with the events of 30 June 1934, the organization was elevated to the standing of an independent organization within the NSDAP. (1857-PS)

B. The Nazi conspirators used the legislative and judicial powers of the German Reich to terrorize all political opponents.

(1) They created a great number of new political crimes. The decree of 28 February 1933 punished the inciting of disobedience to orders given out by State or Reich Government authorities or the provocation of acts "contrary to public welfare." (1390-PS) A month later, in order to give themselves legal justification for murdering by judicial process their political enemies, the Nazi conspirators passed a law making the provisions of the above decree applicable retroactively to acts committed during the period from 31 January to 28 February 1933. (2554-PS) Referring to these laws, the defendant Goering stated:

"Whoever in the future raises a hand against a representative of the National Socialist movement or of the State, must know that he will lose his life in a very short while. Furthermore, it will be entirely sufficient if he is proven to have intended the act, or, if the act results not in a death, but only in an injury." (2494-PS)

On 21 March 1933 a decree was issued which provided for penitentiary imprisonment up to two years for possessing a uniform of an organization supporting the government of the Nationalist movement without being entitled thereto, or circulating a statement which was untrue or greatly exaggerated, or which was apt to seriously harm the welfare of the Reich or the reputation of the Government, or of the Party or organizations supporting the Government. (1652-PS)

The Nazi conspirators caused a law to be enacted punishing whoever undertook to maintain or form a political party other than the NSDAP. (1388-PS)

The Nazi conspirators enacted a law which made it a crime deliberately to make false or grave statements calculated to injure the welfare or the prestige of the Reich, or to circulate a statement manifesting a malicious or low-minded attitude toward leading personalities of the State or the Party. The law also applied to statements of this kind which were not made in public, provided the offender counted on his statements being eventually circulated in public. (1393-PS)

In commenting on the above law, one of the leading Nazi conspirators, Martin Bormann, stated:

"Although it must absolutely be prevented that martyrs are created, one must take merciless action against such people, in whose attacks a bad character or attitude, decisively inimical to the State, can be recognized. For this purpose, I request the Gauleiters to report here briefly all crimes, which must absolutely be punished, and which have become known to the districts, regardless of the report to be made to the district attorney's office * * *.

"The district and local leaderships are to be notified accordingly. However, if it should be decided from wherein this or that punishable case, that the miscreant is to be given a simple or strong reprimand by the court, I shall give the directive for the future, that the Districts are informed of the names of the persons.

"I therefore request, to see to it, that these compatriots be especially watched by the Ortsgruppen, and that it be attempted, to influence them in the National Socialist sense. Otherwise, it will be necessary to place the activities of such persons, who do not want to be taught, under exact control. In these cases, it will eventually be necessary, to notify the Secret State Police." (2639-PS)

On 24 April 1934 the Nazi conspirators passed a law imposing the death penalty for "any treasonable act." Included in the law was a declaration to the effect that the creating or organizing of a political party, or continuing of an existing one was a treasonable act. (2548-PS)

(2) By their interpretation and changes of the penal law, the Nazi conspirators enlarged their terroristic methods. After the enactment of these new political crimes, the Nazi conspirators introduced into the penal law the theory of punishment by analogy. This enabled them legally to punish any act injurious to their political interests even if no existing statute forbade it. The culpability of the act and the punishment was determined by the law most closely relating to or covering the act which was in force at the time. (1962-PS)

In interpreting this law, Dr. Guertner, Reich Minister of Justice, stated:

"National Socialism substitutes for the idea of formal wrong, the idea of factual wrong. * * * Even without the threat of punishment, every violation of the goals toward which the community is striving is a wrong per se. As a result, the law ceases to be an exclusive source for the determination of right or wrong." (2549-PS)

Referring to the penal code of Nazi Germany, the defendant Frank stated in 1935:

"The National Socialist State is a totalitarian State, it makes no concessions to criminals, it does not negotiate with them; it stamps them out." (2552-PS)

The Nazi conspirators also revised the criminal law so that the State could, within one year after a decree in a criminal case had become final, apply for a new trial, and the application would be decided by members of a Special Penal Chamber appointed by Hitler personally. Thus, if a defendant should be acquitted in a lower court, the Nazi conspirators could rectify the situation by another trial. (2550-PS)

In direct contrast to the severity of the criminal law as it affected the general population of Germany, the Nazi conspirators adopted and endorsed a large body of unwritten laws exempting the police from criminal liability for illegal acts done under higher authority. This principle was described by Dr. Werner Best, outstanding Nazi lawyer, in the following terms:

"The police never act in a lawless or illegal manner as long as they act according to the rules laid down by their superiors up to the highest governing body. According to its nature, the police must only deal with what the Government wants to know is being dealt with. What the Government wants to know is being dealt with by the police is the essence of the police law and is that which guides and restricts the actions of the police. As long as the police carry out the will of the Government, it is acting legally." (1852-PS)

C. The Nazi conspirators created a vast system of espionage into the daily lives of all parts of the population.

(1) They destroyed the privacy of postal, telegraphic, and telephonic communications. They enacted a law in February of 1933 providing that violations of privacy of postal, telegraphic, and telephonic communications were permissible beyond legal limitations. (1390-PS)

Dr. Hans Anschuetz, the present District Court Director (Landgerichtsdirektor) at Heidelberg, Germany, recently stated:

"Subsequently, the system of spying upon and supervising the political opinions of each citizen which permeated the entire people and private life of Germany, was, of course, also extended to judges." (2967-PS)

(2) They used the Secret State Police (Gestapo) and the Security Service (SD) for the purpose of maintaining close surveillance over the daily activities of all people in Germany. The Gestapo had as its primary preventive activity the thorough observation of all enemies of the State, in the territory of the Reich. (1956-PS)

The SD was an intelligence organization which operated out of various regional offices. it consisted of many hundreds of professional SD members who were assisted by thousands of honorary members and informers. These people were placed in all fields of business, education, State and Party administration, and frequently performed their duties secretly in their own organization. This information service reported on the activities of the people. (2614-PS)

D. Without judicial process, the Nazi conspirators imprisoned, held in protective custody and sent to concentration camps opponents and suspected opponents.

They authorized the Gestapo to arrest and detain without recourse to any legal proceeding. Officially, this power was described as follows:

"The Secret State Police takes the necessary police preventive measures against the enemies of the State on the basis of the results of the observation. The most effective preventive measure is without doubt the withdrawal of freedom which is covered in the form of protective custody. * * * While protective arrests of short duration are carried out in police and court prisons, the concentration camps under the Secret State Police admit those taken into protective custody who have to be withdrawn from public life for a longer time." (1956-PS)

The Nazi conspirators issued their own orders for the taking of people into protective custody and these orders set forth no further details concerning the reasons therefor, except a statement such as "Suspicion of activities inimical toward the State." (2499-PS)

The defendant Frank stated:

"To the world we are blamed again and again because of the concentration camps. We are asked, 'Why do you arrest without a warrant of arrest?' I say, put yourselves into the position of our nation. Don't forget that the very great and still untouched world of Bolshevism cannot forget that we have made final victory for them impossible in Europe, right here on German soil." (2533-PS)

The defendant Goering said in 1934:

"Against the enemies of the State, we must proceed ruthlessly. It cannot be forgotten that at the moment of our rise to power, according to the official election figures of March 1933, six million people still confess their sympathy for Communism and eight million for Marxism. * * * Therefore, the concentration camps have been created, where we have first confined thousands of Communists and Social Democrat functionaries. * * *" (2344-PS)

U.S. Ambassador George S. Messersmith, former Counsel General in Berlin, Germany, 1930-34, and Raymond H. Geist, former American Counsel and First Secretary of the Embassy in Berlin, Germany, 1929-1939, have recently stated:

"Independent of individual criminal acts committed by high functionaries of the German government or the Nazi Party, such as the murders ordered by Hitler, Himmler and Goering, all high functionaries of the German government and of the Nazi Party * * * are guilty in the highest degree of complicity in and furtherance of the cardinal crimes of oppression against the German people, persecution and destruction of the Jews and all of their political opponents." (2386-PS)

Commenting further on the Nazi conspirators' use of concentration camps to destroy political opposition, Raymond H. Geist stated:

"The German people were well acquainted with the goings on in concentration camps and it was well known that the fate of anyone too actively opposed to any part of the Nazi program was liable to be one of great suffering. Indeed, before the Hitler regime was many months old, almost every family in Germany had had first hand accounts of the brutalities inflicted in the concentration camps from someone either in the relationship or in the circle of friends who had served a sentence there; consequently the fear of such camps was a very effective brake on any possible opposition." (1759-PS)

The Nazi Conspirators confined, under the guise of "protective custody" Reichstag members, Social Democrats, Communists, and other opponents or suspected opponents. (2544-PS; L-73; L-83; 1430-PS.)

E. The Nazi conspirators created and utilized special agencies for carrying out their system of terror.

(See Chapter XV, Sections 5 and 6, on the Gestapo, SS, and SD)

F. The Nazi conspirators permitted organizations and individuals to carry out this system of terror without restraint of law.

(1) Acts of the Gestapo were not subject to review by the courts. In 1935 the Prussian Supreme Court of Administration held that the orders of the Gestapo were not subject to judicial review; and that the accused person could appeal only to the next higher authority within the State Police itself. (2347-PS)

In 1936 a law was passed concerning The Gestapo in Prussia which provided that orders in matters of the Gestapo were not subject to review of the Administrative Courts. (2107-PS)

On the same subject, the following article appeared in the official German Lawyer's Journal, 1935.

"Once again the court had to decide on the question of whether political measures could be subjected to the review of the ordinary courts. * * * The case in question concerned the official performance of his duty by an official of the NSDAP. * * * The principle of the importance and the mission of the Party and its 'Sovereign Functionaries' cannot be overlooked. Therefore, the plaintiff should have been denied the right to be in court." (2491-PS)

(2) Where no definite law protected terroristic acts of Nazi conspirators and their accomplices, proceedings against them were in the first instance suppressed or thereafter their acts were pardoned. In 1935, proceedings against an employee of the Gestapo accused of torturing, beating, and killing of inmates of a concentration camp were suppressed (787-PS; 788-PS). In June 1935 twenty-three SA members and policemen convicted of the beating and murder of inmates of the Hohnstein concentration camp were pardoned (786-PS). The prosecutor was forced to resign from the SA. (784-PS)

LEGAL REFERENCES AND LIST OF DOCUMENTS RELATING TO PURGE OF POLITICAL OPPONENTS AND TERRORIZATION

Document Description Vol. Page

Charter of the International Military Tribunal, Article 6, especially 6 (a) ......................... I 5

International Military Tribunal, Indictment Number 1, Section IV (D) 3 (b) ......................... I 19

Note: A single asterisk (*) before a document indicates that the document was received in evidence at the Nurnberg trial. A double asterisk (**) before a document number indicates that the document was referred to during the trial but was not formally received in evidence, for the reason given in parentheses following the description of the document. The USA series number, given in parentheses following the description of the document, is the official exhibit number assigned by the court.

*784-PS Letters from Minister of Justice to Hess and SA Chief of Staff, 5 June 1935, Concerning penal proceedings against merchant and SA leader and 22 companions because of inflicting bodily injury on duty. (USA 732) ......................... III 559

*786-PS Minister of Justice memorandum, 29 November 1935, concerning pardon of those sentenced in connection with mistreatment in Hohnstein concentration camp. (USA 734) ......................... III 568

*787-PS Memorandum to Hitler from Public Prosecutor of Dresden, 18 June 1935, concerning criminal procedure against Vogel on account of bodily injury while in office. (USA 421) ......................... III 568

*788-PS Letters from Secretary of State to the Minister of Justice, 25 June 1935 and 9 September 1935, concerning criminal procedure against Vogel. (USA 735) ......................... III 571

1388-PS Law concerning confiscation of Property subversive to People and State, 14 July 1933. 1933 Reichsgesetzblatt, Part I, p. 479 ......................... III 962

1390-PS Decree of the Reich President for the Protection of the People and State, 28 February 1933. 1933 Reichsgesetzblatt, Part I, p. 83 ......................... III 968

1393-PS Law on treacherous attacks against State and Party, and for the Protection of Party Uniforms, 20 December 1934. 1934 Reichsgesetzblatt, Part I, p. 1269 ......................... III 973

1430-PS Compilation of Leading Men of the System Era, June 1939 ......................... IV 15

1652-PS Decree of the Reich President for protection against treacherous attacks on the government of the Nationalist movement, 21 March 1933. 1933 Reichsgesetzblatt, Part I, p. 135 ......................... IV 160

*1669-PS Correspondence between Dr. Haushofer and Hess, 24 and 28 August 1933. (USA 741) ......................... IV 184

*1759-PS Affidavit of Raymond H. Geist. (USA 420) ......................... IV 288

*1852-PS "Law" from The German Police, 1941, by Dr. Werner Best. (USA 449). (See Chart No. 16) ......................... IV 490

*1856-PS Extract from book entitled "Hermann Goering - Speeches and Essays", 3rd edition 1939, p. 27. (USA 437)....IV 496

*1857-PS Announcement of creation of SS as independent formation of NSDAP. Voelkischer Beobachter, 26 July 1934, p. 1. (USA 412)....IV 496

1956-PS Meaning and Tasks of the Secret State Police, published in The Archives, January 1936, Vol. 22-24, p. 1342....IV 598

1962-PS Law to change the Penal Code of 28 June 1935. 1935 Reichsgesetzblatt, Part I, p. 839....IV 600

2057-PS Law relating to National Emergency Defense Measures of 3 July. 1934. 1934 Reichsgesetzblatt, Part I, p. 529....IV 699

2107-PS Law on Secret State Police of 10 February 1936. 1936 Preussiche Gesetzsammlung, pp. 21-22....IV 732

2344-PS Reconstruction of a Nation by Goering, 1934, p. 89....IV 1065

2347-PS Court decisions from 1935 Reichsverwaltungsblatt, Vol. 56, pp. 577-578, 20 July 1935....IV 1066

*2386-PS Joint affidavit of George S. Messersmith and Raymond H. Geist, 29 August 1945. (USA 750)....V 39

*2460-PS Affidavit of Rudolf Diels. (USA 751).....V 205

*2472-PS Affidavit of Rudolf Diels, 31 October 1945. (USA 752)....V 224

2491-PS Extract from Legal Review, published in Lawyers' Journal, 1935....V 235

2494-PS Prime Minister Goering's Press Conference, published in Voelkischer Beobachter, Berlin edition, 23-24 July 1933, p. 1....V 236

2496-PS Extract from Goering's address to Public Prosecutors of Prussia on 12 July 1934 from the Archive, 1934, Vols. IV-VI, p. 495....V 236

*2499-PS Original Protective Custody Order served on Dr. R. Kempner. 15 March 1935. (USA 232)....V 236

2533-PS Extract from article "Legislation and Judiciary in the Third Reich", from Journal of the Academy for German Law, 1936, pp. 141-142....V 277

2543-PS Extract from The Mission of the SS, published in The National Socialist Magazine, Issue 46, January 1934.....V 288

*2544-PS Affidavit of Rudolf Diels, former Superior Government Counsellor of the Police Division of the Prussian Ministry of the Interior. (USA 753)....V 288

2545-PS Extract from Hitler's cleaning up act in Reich, published in Voelkischer Beobachter, Berlin edition, No. 182-183, 1-2 July 1934, p. 1...V 290

2548-PS Law about changing rules of Criminal Law and Criminal Procedure of 24 April 1934. 1934 Reichsgesetzblatt, Part I, p. 34....V 291

2549-PS Extract from "Germany's Road to Freedom" as published in Documents of German Politics, Vol. 3....V 292

2550-PS Law on modification of rules of general criminal procedure, 16 September 1939. 1939 Reichsgesetzblatt, Part I, p. 1841....V 293

2552-PS Excerpt concerning criminals, published in Journal of the Academy for German Law, No. 3, March 1935.....V 293

2554-PS Law concerning adjudication and execution of the death penalties of 29 March 1933. 1933 Reichsgesetzblatt, Part I, p. 151....V 294

2572-PS Hitler's speech to the Reichstag on 13 July 1934, printed in The Third Reich, Vol. II, p. 247.....V 302

*2614-PS Affidavit of Dr. Wilhelm Hoettl, 5 November 1945. (USA 918)....V 337

2639-PS Ordinances of the Deputy of the Fuehrer, published in Munich 1937....V 345

*2950-PS Affidavit of Frick, 19 November 1945. (USA 448).....V 654

*2967-PS Affidavit of Dr. Hans Anschuetz, 17 November 1945. (USA 756)....V 673

*L-73 Affidavit of Bruno Bettelheim, 10 July 1945. (USA 746)...VII 818

*L-83 Affidavit of Gerhart H. Seger, 21 July 1945. (USA 234)....VII 859

*L-135 Affidavit of Kate Eva Hoerlin, 9 July 1945. (USA 747).... VII 883