But from a purely factual point of view there can be no question here of a common plan or a conspiracy. As chief of the Audit Department A IV of the WVHA, the authority of the defendant Joseph Vogt in relation to the other offices and departments of the WVHA, was precisely defined, both theoretically and practically. The presentation of the evidence will show that his conferences with the Chief of office A were concerned solely with his official activities in matters of auditing. Vogt was never asked to attend other conferences within the WVHA, on the financial affairs of the SS, concentration camp concerns, labor allocation of the prisoners or other economic matters. His official contacts with the other offices of the WVHA were restricted to the absolutely necessary; otherwise Vogt had no close personal contact with any of the leading functionaries of the WVHA. His office was always rather isolated in accordance with his special sphere of activity. This was shown when his office especially was the only branch of the WVHA to be transferred away from the main office of the WVHA in June 1943. The numerous documents submitted by the prosecution so far which are supposed to prove the crimes in the indictment, were unknown to Vogt until the present time, except for a few which contain nothing against him. The presentation of evidence will show that Vogt neither intentionally nor consciously participated in a common criminal plan. This then dispenses also factually with the conspiracy count of the indictment.
II.
In figure 2 count I of the indictment concerning the establishment of a common plan or a conspiracy, the prosecution had brought in the forms of participation contained in article II paragraph 2 of Control Council Law No. 10. But in contrast to the conception of conspiracy laid down in article II figure 1a of Control Council Law, No. 10, thus is not a question of independent facts of a criminal case, but merely different forms of participation. Therefore in order to establish guilt based upon these legal provisions, it would be necessary to prove the criminal participation of the defendant in a definite case of a particular crime. Such proof has not yet been submitted by the prosecution.
The defense will prove that the sphere of work and the activities of the defendant in office A IV of the WVHA, as well as in his former offices, had nothing to do with the incriminating actions set down in figure 3 count I of the indictment. Office A IV was mainly concerned with the formal and calculatory preliminary auditing of accounts of approximately 400 disbursement offices of the Waffen SS in the home districts. The final checking of the accounts of these finance offices was done by the Supreme Auditing Court of the German Reich. They alone were allowed to give technical directions to the defendant in his activities as a senior examiner and to supervise his activities as such. With the establishment of the WVHA in 1942, the preliminary examination of the accounts of the concentration camps finance offices was added to the task of the preliminary examinations of the accounts for these Armu Finance offices. The former had belonged hitherto to the sphere of activities of the preliminary examination office of the Main office "Budget and Building" (Haushalt und Bauten). As the presentation of evidence will prove, these preliminary examinations were not put into practice, as the representative of the Supreme Auditing Court abandoned them owing to difficulties caused by the war.
The defendant, therefore, has never actually carried out a preliminary examination of the accounts of the concentration camps finance offices. Furthermore, it will be proved that office A IV never had any control over the administration of the concentration camps.
Therefore the defendant can not be connected with the administration of the concentration camps, the allocation of labor, the food and accommodation, still less with the maltreatment and killing of prisoners in the concentration camps. Furthermore, the defendant Vogt has never visited a concentration camp.
III.
The defendant Vogt has been connected with the so-called "Action Reinhardt", because he also checked the account "R", when checking the finance office of the Garrison Administration of the Waffen SS at Lublin. The defense will show that the defendant was left in complete darkness regarding the "Action Reinhardt" when the chief of his office group gave his orders, and that he did not receive any information about this action in Lublin. The defendant only carried out the checking of the account R, because the money transactions made through this account had become a part of this finance office by their entry in the cash book of the garrison finance office Lublin, and he had orders to audit this finance office. In the course of this audit, the defendant was also shown a suit case with precious stones and jewellery as well as a building consisting of three rooms where clothing and shoes were stored. The audit carried out by the defendant was, however, not concerned with these valuables and textiles.
We shall show that the defendant was entirely credulous even after making the audit at Lublin. This already follows from the fact that in his audit report which he made his chief of his group after concluding the audit, he expressly objected to the sums being paid into the account "R", merely on the strength of a certificate of the higher SS and police leader Globocnik and not, as laid down in the finance office regulations, on the written authority of the owner from whom the money or the foreign currency had been taken away. That the defendant acted in good faith is proved also by the fact that after completing audit, he informed the commission of the Supreme Audit Court of the German Reich of the matter. Thus Globocnik's intention of completely eliminating the supreme audit court in the administrative handling of the action "Reinhardt" was at least partly defeated. In this connection I would particularly refer to document NO-725, Exhibit No. 481 as presented by the prosecution (Pohl's ordinance of 9 December 1943 on the administration of Jewish assets) and NO-059 Exhibit No. 488 (Globocnik's report of 5 January 1944 on the administrative handling of the action Reinhardt).
The evidence will show that Vogt neither knowingly nor intentionally participated in the action Reinhardt and is therefore not guilty on this count.
IV.
My above statement shows that also counts II and III of the indictment are not proved, which refer to the individual responsibility of all defendants in connection with the individual War Crimes and Crimes against Humanity. The prosecution could not show in their presentation of evidence that Vogt played a responsible part, according to criminal law, in one of the mentioned War Crimes or Crimes against Humanity.
V.
There only remains count IV of the indictment concerning membership of the SS as a criminal organization. In so far the defense will try to prove to the High Tribunal that the defendant Vogt had no knowledge of the criminal aims or actions of the SS, that his was just a mere membership based upon transfer of a civil Reich office to an office in the SS administration, and that therefore he is not covered by the jurisdiction applicable to the SS in the verdict of the International Military Tribunal.
DR. HAENSEL: Dr. Haensel for the defendant Georg Loerner. The translation of my speech has not been completed as yet, and with the permission of the Tribunal, and if Your Honor please, I shall read my speech slowly, i.e. in the same manner in which my colleagues did it.
THE PRESIDENT: Do you have a German copy of your opening?
DR. HAENSEL: The German copy is being translated. I have a few copies here but I think we can do without them.
THE PRESIDENT: The interpreters would like one so as to follow you in translating. Do you have a copy for the interpreters.
DR. HAENSEL: Because my colleagues have already submitted the legal aspects, I will be able to shorten my statement very much.
THE PRESIDENT: I notice it originally contained 23 pages, which frightenes the interpreters somewhat.
DR. HAENSEL: I believe that after we have heard so much here on the legal aspect of conspiracy in the addresses, the Tribunal might assume that we, the defense counsel, here, have also a conspiracy of our own. Therefore, it will not be necessary to refer again to Roman II - A, in detail.
THE PRESIDENT: I think we can remember those numbers now. The Tribunal will assume that the position which has been taken by one counsel as to the conspiracy will apply to all of you. You are all riding in the same boat.
DR. HAENSEL: That is correct, Your Honor, that is, provided that the conspiracy will not be directed against us, although, in this respect, we are actually in the same boat. I would request permission to omit these paragraphs from my speech.
THE PRESIDENT: We not only agree to that, we urge it.
DR. HAENSEL: In that case I would like to try, if the interpreters have enough patience, to start with the remainder of my statement in this way only. However, I am also prepared to begin my opening speech tomorrow morning.
THE PRESIDENT: The interpreters say, shoot. That is, go ahead.
DR. HAENSEL: With respect to the remaining articles which I have to shoot at here, I find myself in the situation of King Leonidas at Thermopylae, where he was threatened with the Persians having so many arrows that the sun would be darkened. Leonidas answered "Then shoot. We'll fight in the shadow." Therefore, I'll fight in the shadow which has been case by the arrows shot by my learned colleagues. I'll try to speak only of a special sector, which I have already treated with a more or less successful hypothesis, and that is the psychological.
A.
Your Honors, Legal Aspects I consider it my duty to show you in a few brief words the trend to be adhered to in the defense of Georg LOERNER.
The great essayist Lord MACAULAY was of the opinion that the history of the world was a trial, in which the past is brought to trial before the present. The Nuernberg trials, beginning with the War Crimes trial before the International Military Tribunal, are not intended to be trials in this sense, but real criminal proceedings, because they sentence people to punishment. The proceedings and the manner in which the law is applied, should therefore be no different from that of a normal case, where the particular deed of one or several people is to be judged by the laws recognized as legally binding for all.
"Some 20 broken men are sitting in the dock", said Robert H. JACKSON, Chief Prosecutor for the U.S.A. in his opening speech on *1 September 1945. "Taken individually, their fate is of little account. But as the defendants represent the evil forces which for a long time to come will linger in the world, even when they have become dust, this trial is therefore of such importance."
As in the case of the I.M.T. trials, the following results from the reasons and the evidence submitted by the prosecution: More has been submitted than is perhaps necessary for a direct basis for a verdict of of guilt for the individual defendants, because the "evil forces" are behind the defendants, and their ominous actions must be revealed and rendered harmless together with the defendants.
In the I.M.T. trial the prosecution accused Rosenberg, for instance, of breeding a false ideology in the people, by his kind of philosophy, which had psychologically prepared them for aggressive war. Therefore the defense wanted to develop all this pseudo-philosophy and systematically to justify it as neo-romanticism, as a so-called modern sprout on the tree of knowledge. Lord Justice Lawrence rejected these attempts by declaring that Rosenberg was not brought before the court for his ideas, but because of his deeds, not because of his doctrine, but for its practical application.
Thus the judge averted the danger, which was to be found in the reasons for the indictment of the first trial, and which has again become almost more clearly discernible in this trial. This danger lies in the fact that a judgment of history is formed by the prosecution in this particular case versus Pohl and others, a judgment on events which have become historical, pronounced by means of criminal proceeding against individuals. But both trials are on quite a different level and should be kept apart, otherwise the criminal case becomes a show case, one not in the sense of consciously defeating the ends of the law, but in the sense of a verdict which has jurisdiction over the body and soul of certain persons, but which aims at the impersonal factors, such as the "evil forces", quoted by Robert H. Jackson. The difference between this historical trial and criminal proceedings is the fact that those people thus acting are held responsible to history for the evil forces operating through them; where as in criminal proceedings, circumstances permitting, such "evil forces" can lessen or even exclude the responsibility.
The prosecution endeavours to prove the enormous guilt of the defendants, by presenting for instance all the horror evoking events 1179 a connected with the concentration camps.
The task of the defense as opposed to this is summarized in a brief sentence: It must not attempt only to justify these horrible events as such, but merely to discuss to what extent the consciously responsible guilty behaviour of the defendants contributed to these events.
The extent and the number of the victims is of decisive importance for the historical method of approach. On closer and more penetrating consideration the following apparently strange result ensues for the individual whose particular share in the guilt is to be determined here. The individual guilt does not increase in any mathematical progression with the number of victims mentioned in this trial. One murder suffices to have a person's life legally delivered to the executioner. But if one speaks of the murder of millions of people, forces are set in motion, and conceptions are aroused in us, which suddenly overshadow the individual guilt, and remind us that evil forces and a destiny exist which surpass the power of the individual, and into which we are all forced.
In the opening speech on 8 April 1947, one of the prosecution cried, (page 55 of the German record) "It is literally impossible to comprehend the enormity of the crimes committed in Auschwitz, Treblinka and Maidenek etc." Certainly this is correct, but the prosecutor failed to see that in doing so he had wandered from the prosecution's sphere of arguments to that of the defense. These events can no longer be understood, by any of us. But did the defendants understand them? Did the defendant whom I represent understand them or could he understand them? Could he have been so involved as to be made personally corresponsible?
Posterity working on a psychological basis will confirm with great interest that the prosecutor did not add any legal argument to the phrase just quoted by me, for one cannot add to it, but continued, "We will show a film in this respect in support of the tribunal which shows the warehouses of these death camps filled with clothes, shoes, spectacles and bales of human hair." The logic is simply disconnected. The ratio, the power of consideration fails, and we can only have recourse to this series of apocalyptical pictures which were burnt into our memory.
I shall never forget the shorn human hair mentioned above, and the individual features of the victims, who in the suffering they have overcome, already attain what we imagine to be transcendental sublime greatness, completely raised above this valley of misery. But I was never far distant from the bridge which led from the hell of these events to that, may I say, bourgeouis narrow-mindedness of my client the defendant, who went to his work in the morning, to lunch at noon, and in the evening to his family, to wife and children, and who was absolutely incapable of having such a vision or the idea of such a vision.
I am, however, fortunate to be able to refer not only to the judgments of eminent former Courts, but from the reasons for the verdict in the MILCH-case (case II) we know the principles upon which the High Tribunal, which will pass judgment in this case, based its decision in the MILCH-case and will, therefore, presumably do the same in the present case.
It take it from this judgment that for us it is a matter of proving that the defendant did not give orders to commit crimes against the laws of war, against humanity, that he did not originate these crimes, that he had no knowledge of such acts, knowledge by which he failed to prevent these acts having the power to do so. This is my aim.
If you want to make the acquaintance of the personality of Georg Loerner then you will enter the simple, bourgeois, German atmosphere. Georg Loerner was nineteen years old when he fought in the First World War. He was severely injured, and it took a few years in order to learn how to walk again. He had a severe injury in the joint of his knees. His father was a locksmith. The business, however, turned into a small factory. That is the picture of his German life at that time, suddenly again slowed down through the time after the war, the inflation. Georg Loerner and his brother, Hans, were unable to carry on their business, as a result of the inflation and the deflation, and they became bankrupt. Then they had certain bourgeois demands, and it was impossible for them to carry on in their business, and there was only thing left for them: the SS. The SS which was increasing its membership at that time, and which tried to obtain organizers in its ranks. It used people who appeared reliable and efficient, and it tried to get such people into its administrative organization in order to put them to a good use.
That is how Georg Loerner began, and he went along, and he grew along, and he rose along in the ever increasing Waffen SS, and finally an organizational genius like Pohl gave him a position and a future in the newly created WVHA as office head.
(Amtschef) We shall have to explain that a man like Loerner did not know anything about the things which took place within the inflationally built up structure of the WVHA this main office which had been newly organized, and that he only knew of the things that happened to a very small extent.
The organization which had been established was organized in such a way that no one could see further than the particular task he was assigned to.
When we think quietly about all these things, we shall always think of the criminal concepts of Hitler's with horror. However, his organizational ability cannot be doubted. This art of organizing had its effects on the men who were working under him, of whom Pohl is one. We have to discuss a number of detailed points on the subject. My colleagues have already, for their individual clients given a resume of the various 521 documents which have been submitted by the Prosecution with reference to those defendants. Now, I, on my part also, want to make another statement. That is, I want to give an approximate idea of the monstrous amount of work which was being carried out within this giant complex of the WVHA. We would not only have to present the twenty-one volumes which we have here, but one thousand volumes in order to give an average of the working time there; we could see then, that the conditions which prevailed in the concentration camps could not come to the knowledge of an active office head like Georg Loerner because he had so much work to do within his own field of work that he could not possibly see into these things which he was not directly concerned with.
Therefore, on the one hand, I shall try to describe to you just what the field of work of such a man included and then I shall have to show just how he tried to perform this work, and furthermore if he had any time left at all to look beyond his small field of responsibility.
I shall not deal with the subjects which my colleagues have discussed in detail, above all with the Action Reinhardt, and with the surprising lack of knowledge about these incidents. Above all I shall have one subject which perhaps will concern us most intensely, and that is the question of the extent of Georg Loerner activity as of Oswald Pohl's deputy. We believe we will be able to assume that he was only a formal deputy, and I believe that we shall be able to put before the Tribunal decisive material to that effect. In the verdict of the Tribunal in the Erhard Milch case the old proverb was applied, "Mitgegangen, mitgefangen, mitgehangen" which means in English, "Once you're in it, you can't slip out of it with impunity". Georg Loerner was "in it" However, he did not go along with them.
In order to remain informed he was perhaps located very far in the background. However, from his position in the background he was not able to overlook the things which took place within the huge field of task of the WVHA. He was completely in the shadow of Oswald Pohl, and even if the shadow may somewhat darken the picture of this man, then it will be our duty to show in our evidence that we can put Georg Loerner into the proper light so that we can again recognize him as he is. The basis of this character is that of a simple, honest man yes, one could even say that of a "petit bourgeois" whom fate threw into a time which he could not tackle.
THE PRESIDENT: I think perhaps we had better recess at this time and let whoever is to follow, Dr. Bergold, begin tomorrow morning without interruption. We may have some translations in the morning which will ease the burden somewhat too.
We will recess until nine-thirty tomorrow morning.
THE MARSHAL: The Tribunal is in recess until 0930 o'clock tomorrow morning.
(The Tribunal adjourned until 5 May 1947, at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Oswald Pohl, et al, defendants, sitting at Nuernberg, Germany, on 15 May 1947, 0930-1630, Justice Toms presiding.
THE MARSHAL: Persons in the courtroom will please find their seats. The Honorable, the Judges of Military Tribunal II. Military Tribunal II is now in session. God save the United States of America and this honorable Tribunal. There will be order in the court.
THE PRESIDENT: Marshal, you will please ascertain if all of the defendants are present in the court.
THE MARSHAL: May it please Your Honors, all the defendants are present in the court.
THE PRESIDENT: It has been represented to the Tribunal that there are no more translations of opening statements ready, but the translators are working on them as quickly as they can and we hope to have a number of them ready so that we can proceed at two o'clock. Our experience yesterday made it very difficult for the translators and I think it would be better if we waited until we got the actual translations. It is more accurate and we can do it faster if we have the translated copy, so the Tribunal will be in recess until two o'clock this afternoon.
(Discussion ensued between the President and defense counsel.)
Everything is changed now. The procedure is different. Don't go away, and I shall call the other judges, as I find out now we have three opening statements which are ready.
MR. ROBBINS: I should like to announce that two additional documents have not been distributed in English or German, simply because they have been lost by the Document Room, and unless they can be found shortly they will be withdrawn; that is, Exhibit 108 in Book IV, and Exhibit 446-A in Book XVII.
THE PRESIDENT: Is one of the defendants absent this morning?
DR. HOFMANN: Yes.
THE PRESIDENT: Why?
JUDGE PHILLIPS: He was excused yesterday.
THE PRESIDENT: Let the record show that the defendant Frank is not present in Court this morning, having been previously excused by the Tribunal.
DR. HOFFMANN: If the Tribunal pleases, I should like to interrogate the witness, Dr. Karoly.
THE PRESIDENT: If the Counsel wishes, Judge Speight will act as the Commissioner to take the testimony of Dr. Karoly at 4:30 this afternoon.
DR. HOFFMANN: Very well, Your Honor; I thank you very much.
THE PRESIDENT: Marshal, is there one more copy of this document?
THE MARSHAL: Those were distributed to me through the proper channels, and those are the only copies I have, Your Honor.
DR. HOFFMANN: May it please the Tribunal, I have only four copies; three for the Tribunal and one for the interpreters. Those are the only copies I was able to obtain.
THE PRESIDENT: Proceed.
Your Honors, None of the 600 documents, submitted by the Prosecution, contain anything that could be interpreted as unfavorable for the defendant Rudolf Scheide, whose Defense Counsel I am.
These documents do not even contain his name, much less any order or ordinance which he might have issued, within the sphere of concentration camp matters, with which the Prosecution is charging him here. In none of the statements of the witnesses which we have heard here, has anything been said, which might connect his name or person with any one of the concentration camps.
On the other hand, I gather from the indictment, that the prosecution considers the Economic and Administrative Main Office, in its entirety, as a criminal organization.
Hereby, the Prosecution refers to the decision of the International Military Tribunal by which the SS was declared a criminal organization and to the fact, that for all cruelties, which were committed in concentration camps, the SS in general and the Economic and Administrative Main Office in particular were made responsible.
However, the Prosecution was not forced by the judgment of the International Military Court to take proceedings before this Court against the defendant Rudolf Scheide. Every Allied Power can prosecute a member of an organization, which has been declared criminal, but not every member can be charged with all, with which the organization has been reproached in general. A member of the SS, picked at random, would not be indicted in this way before this Court. The defendant Rudolf Scheide would not have been indicted in this manner either, if he had been SS-Fuehrer in a different official department.
Of course, in this connection it has to be considered that the International Military Tribunal in Nurnberg pronounced guilty only those, who officially became members of the SS, such members of the organization who became or remained members, knowing that they were used for actions which have been declared criminal by article 6 of the law (Statut), or such members of the organization who were involved in the committing of such crimes, with the exclusion, however, of people, who were put into the ranks of the SS by the Government, so that they had no choice in the matter and who did not commit any such crimes.
Nevertheless, in the case before us, the Prosecution considers all members of the Economic and Administrative Main Office, who are here as defendants, as a collective and thus, deduces from this the common responsibility for anything, with which the Economic and Administrative Main Office, as a whole, has been charged, without consideration for the individual defendant.
Therefore, the Prosecution believes, that it needs no documents or statements of witnesses for a special charge against each individual defendant.
(page 3 of original)
In this, the Prosecution no doubt relies on the fact, that the impression made by the documents and in particular by the statements of the witnesses, is so deep that one would be easily inclined to reject and condemn everything, connected with these concentration camps matters, perhaps including the defendant, Rudolf Scheide, even if he is not been mentioned in the documents and statements by witnesses.
I object, however, to this conception of the Prosecution, which, without consideration of actual evidence of an individual guilt, desires to see the defendant Rudolf Scheide sentenced, simply because, for a time, he belonged to the Economic and Administrative Main Office. I hope to obtain an individual critical examination for the defendant Rudolf Scheide, of his field of activity, which he had in this Economic and Administrative Main Office, without consideration of the Prosecution's opinion of the Economic and Administrative Main Office as a whole.