That attempt must be futile in the case is being gone into with legally and factually exact methods. In this case, the results of this tribunal will be, at least in some cases, a bit of a disappointment to the prosecution, because it will become quite clear that the defendants were -- and after all it is my task to clear this for the Defendants August Frank and Hans Loerner -- were not the creators and leading of the system of concentration camps. August Frank and Hans Loerner were among the leading men of the troop administration of the Waffen SS, but with the affairs of concentration camps they were concerned only casually and as a side line. That applies also to the assertions of the prosecution that the Reinhardt Action Action had been one of the main tasks of the WVHA. That seertion had been proved by nothing, but the evidence had been rebutted clearly, as I have explained in my final plea.
If the Tribunal please, I could now start on Hans Loerner's final plea, but unhappily, the interpreting branch does not even have the German copies.
THE PRESIDENT: Well, you won't be more prepared in the morning to go on with the summation of Hans Loerner.
DR. RAUSCHENBACH: I don't know, of course, whether the first thing in the morning, I shall have the copy, at least in the German language, but in about twenty minutes I could sum up what I wanted to say, and, if I am not too swift, the interpreter might follow and that would be that. It's a very brief plea of 20 pages, which I can shorten a bit. I have only one copy, one typewritten copy.
THE PRESIDENT: That is a double burden. The interpreter hasn't the German copy nor the English translation. I think we have done a fair evening's work and we will probably return with this German translation at least.
We will recess until nine o'clock tomorrow morning. Sleep well.
THE MARSHAL: The Tribunal will recess until 0900 tomorrow morning.
(The Tribunal adjourned until 18 September 1947, at 0900 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 Nurnberg, Germany, on 18 September 1947, 0930-1730, Justice Robert M. Toms, presiding.
THE MARSHAL: Persons in the Courtroom will please find their seats.
The Honorable, the Judges of Military Tribunal No. 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 arc present in the Court.
THE MARSHAL: May it please your Honors, all the defendants are present in the Court.
DR. von STAKELBERG: Dr. Stakelberg for the defendant Fanslau. May it please the Tribunal. With the permission of the Tribunal I shall now begin with my final speech on behalf of the defendant Fanslau. May it please the Tribunal, this is with a heavy heart that I comply with my duty to conclude my defense of the defendant Fanslau with submission. It is the same heavy heart which I feel in the case of every defendant which are taken over for defense, and of which I feel I have a doubt whether I shall succeed in representing the right and in representing it. The task which the American people have taken over since they have occupied German soil, and with which we are faced again today is really a most difficult one as in recorded in the history of nations; the task is to establish the cross of truth and freedom on the site of atrocities and death, and, to establish a precious throne to which the American people may apply with a certain heart, that throne of justice. No throne which has ever been overthrown was more precious than it, and none has been over thrown more profoundly. It is no accident that the idea of greatest Americans, the idea of Lincoln and Jefferson were always concerned with it, and , it is with that point in view that in State and under civilization those were the fundamentals of internal law.
So far as the Germans are concerned, there is yet more at stake, nothing else then to save the German soul. The same German soul, which once through the centuries found expression in our branches of occidental civilization, which felt itself to be in agreement with the nations of the globe in a spirit of humanity, and for which we are searching in vain today; as we step through our destroyed cities, and see in the faces of those we meet only too frequently the expression of hatred and revenge, and face the indignities and denouncements, and with complete lack of pity. The road back has not been found. It can only be found from the spiritual opportunity by establishing those principles on which humane communication is always based, justice and love of ones neighbors, and it is that responsibility on which this trial is based. With that feeling I hope that my defense might be a contribution to a just sentence by the Tribunal.
We shall now come to the main part, (a), the fundamental question of law. Before realizing the proven evidence, I think it is necessary to explain what attitude is taken in the defense of Fanslau, on the fundamental question of law. Under Roman I, I have analyzed what law applies in this section, and I skip this section, but I should be grateful to the Tribunal, if the Tribunal would read it when they receive the written copy. Roman II, deals with the retroactive penal law. First, the fact that retroactive penal law is forbidden has become an invalid stipulation in all civilized penal codes. If one follows the historical development of this one idea, one finds the origin in the American States on the basis of many grave violations of law committed by the British Parliament, particularly when they threw out the Bills of Iniquities, 7759 which was the belief that one had to decide for all times to protect citizens by a bill of attainder forbidden in the law of justice "nullum crimen sine lege."
Maryland was among first of the Federalist which in its Constitution dated November 11, 1776, expressed this as follows: "Article XV. That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty, wherefore, no ex post facto law ought be made." In the Constitution of the United States of America of 17 November 1787, contained two previsions forbidding issuance of retrospective laws. One is concerned with Article I, Section IX, paragraph 3: "No bill of attainder or ex post facto law shall be passed." The other provision concerns legislative power as stated in Article I, Section X, paragraph 1: "That no state shall....pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. "This idea came to France from the United States where the king committed similar acts of criminal and arbitrary disposition as the British Parliament. It is contained in Article VIII, volume 24, of the year of 1789. It is in its original form in the Constitution, 24 June 1793, the law which punishes acts committed before the law existed constitutes felony, and retrospective power means that law will be a crime. Since then the principle of "nullum crimen sine lege" in the constitutions of civilized states has been recognized. I might refer here to Article IX, of the statement which I have submitted as Fanslau's Exhibit No. IX, and to the expert opinion of the International Tribunal of Hague, which is available in an extract submitted in Fanslau's Exhibit No. 15. In "2" of course it still mentions that "nullum crimen sine lege" must be modified; it will not apply to what is known as international crime, "res sua sponte sceleratae ac nefariae" or "mala in se", such as murder, plundering, blackmail, rape, inasmuch as it should be the perpetration of these actions which are regarded as objectively wrong in all civilized States, and can be recognized by the defendant Fanslau as such.
I admit that these prerequisites may be applied generally to the war crimes and crimes against humanity as laid down in Control Council Law No. 10. It is not my intention, therefore, to raise legal misgivings from the point of view of retroactive law against those two types of crimes. On the other hand, the principle of "nullum crimen sine lege"must be applied without limitation to those acts where only by the positive law the character of punishable crime can be applied, that is to say with the "delicta mere juris civilis" or with the "mala prohibits". Here we have, as I shall explain in detail later on, the newly established crime of membership in a criminal organization, declared to be a crominal organization, and the forms of participation which go beyond German penal codes by the control council law. In these cases consciousness of illegality, which according to prevailing legal conceptions is part of the intention, must be excluded from the beginning, as these deeds, at the time of their perpetration, did not constitute objective wrong or had been declared to be expressly criminal.
In the next paragraph I am dealing with the other principle of "nulla poona sine lege". I shall skip it, as I will a general analysis of Control Council Law No. 10, its aspect to international and territorial law.
I shall then come back to the crime of membership in an organization declared to be criminal by the International Military Tribunal. The International military Tribunal has declared such groups of persons within the SS as criminal who(a), after 1 September 1939; (b), became members voluntarily or remained members; and (c), had knowledge of the fact that the SS was being used for criminal acts or were entangled themselves in the commission of such crimes. Members of these groups had now been declared criminal by Control Council Law No. 10. That is not based on generally recognized principles of human law or dignity of the individual or international principles of law, but exclusively on the positive decision of Control Council Law No. 10.
The crime of membership is thus described to be "malum prohibitum" and not as a "malum in se." A similar provision did not exist in German penal legislation. Against the crime of membership the objection must be raised most emphatically of nullum crimen sine lege and of nulla poena sine lege. It is my conviction that to punish somebody for this newly created crime would be in violation against the principles named, and as such against the fundamental principles of legal thinking.
Third, the forms of participation should also be closely analyzed, which should under Control Council Law No. 10 explain the cause of crime. article II, Paragraph 2a, mentioned perpetrators, accomplices and instigators. These forms of participation are in accordance with German law. I might refer here to the extract from the German Penal Code which I have submitted as Defense Exhibit Fanslau No. 13. On the other hand, the forms of participation under Article II, 2 c through e, are not based on German penal law. These forms of participation seem to go back to institutions of Anglo-American Law and be based on the theory of conspiracy which prevails therein. According to this anybody who participated in the execution of a common criminal purpose, he is a perpetrator, whereby the important fact is that the punishable success could be anticipated providing that the commission was, or could have been known to be a probable consequence. Under German penal law the theory of conspiracy must be regarded outmoded. It played an important part in German penal legislation of the last century. Under conspiracy at that time, well understood, an arrangement made for common interests and common purposes by several persons for a joint commission of a crime, every conspirator, is whatever manner, showed himself to be prepared to participate in the act or by being present has shown his participation, was to be punished as a cooriginator of the crime. This applied in the penal laws of Bavaria, 1813, Saxony 1838, as well as in penal codes of other provinces. The The theoretic basis was, according to the opinion of Feuerbach, the famous Bavarian attorney, to be formed by the joint conspiracy.
Since the German Penal Code of 1876 came into effect the theory of conspiracy thus no longer exists in Germany. The reintroduction should come to naught because of the above-mentioned principle of nullum crimen, nulla poena sine lege.
I shall skip Paragraph IV, and I shall now turn to Main Part B, Participation in War Crimes or Crimes Against Humanity and Perpetration Thereof.
It seems to me that three questions should be analyzed more closely in the case of the Defendant Fanslau, his membership in the Administrative Office SS in the year 1938, his membership in the Viking Division in 1941, and his membership in WVHA to the 1st February, 1942 until the collapse.
1. His membership in the Verwaltungsamt, the Administrative Office SS.
The Defendant Fanslau was, from 1 March 1938 until June 1938 in charge of Main Department V 1 in the Administrative Office of the SS. I have reference here to affidavit Moser, Defense Exhibit Fanslau No. 24. This defendant is charged with processing the budgets of the Deathhead Units and concentration camps. Under II, I made legal comments on this. I made the objection here that as far as crimes by Germans before the war are concerned, a Tribunal of the victorious powers cannot be competent from the point of view of national sovereignty.
Under Paragraph 2 I have made a few factual comments. In addition to this there is the fact that at the time when Defendant Fanslau was in charge of Main Department V 1 of the administrative Office of the SS the budget of the Deathhead Units and concentration camps no longer was among the tasks of Main Department V 1. Kaindl, who was then in charge of former department V 1 b, and had been, as early as 1936, joined, together with his staff, the newly established inspectorate of the concentration camps.
I have reference here to Moser's affidavit contained in Document Book Frank No. II. Witness Karl has admitted on cross-examination that Kaindl's joining the inspectorate of the concentration camps had occurred in 1937. As far as the administrative task for the Allgemeine-SS was concerned, a special main department had been formed at that time without result. The Defendant Fanslau, as the man in charge of V 1 had to deal only with the affairs of special task units, the Verfugungstruppe. Again I refer to Affidavit Moser, Defendant Fanslau Exhibit 24. Any contact between the Defendant Fanslau with alleged criminal acts in the period of time when he was in charge of V 1 in the Verwaltungsamt of the SS does not exist.
I shall now refer to his membership in the Viking Division. At first I have not attacked the final statement by the Prosecution. In their final speech the testimony of the Witness Otto has once again been used. I may have reference here to the decision by the Tribunal that further proof against the veracity of Otto should not be submitted any more. For that reason I have regarded Otto as done with, and I am therefore surprised that the Prosecution have once again used his testimony.
Should the Tribunal think Witness Otto is still important, I would have to request that I would have to submit further proof, because I have such proof. Defendant Fanslau was from 1 December 1940 until the end of September 1941 the administrative official in charge of the Armored Grenadier Division Viking, and in the same position he was a commander of the supply battalion. The Viking Division has been charged by the Prosecution with crimes of a number of varieties. Jewish pogrom in Zloczow of 3 July 1941, testimony by witness, Dr. Jollek, excesses within the supply battalions, such as the shooting of Jews by Oberscharfuehrer Suerth in Zhitomir, and labor allocation and mistreatment of Jews testimony of Witness Sauer and Witness Goldstein, and finally the murder of Jews by Einsatzgruppen, allegedly in the area of the Viking Division (documents).First the Jewish pogrom described by Witness Dr. Jollek of 3 July 1941 cannot be laid at the doorstep of the Viking Division.
Dr. Jollek says that the German invasion took place two or three days previous to 3 July 1941. Witness Sauer testifies that when the Viking supply battalion marched through the town, it occurred five or six hours before the occupation of Zloczow. I shall quote.
"We went into billets at 500 meters behind the citadel and put up guards and sentries because the Russians had left the city only five or six hours previously. He also states that the supply battalion Viking had reached Zloczow in the afternoon of the first day of conquest between four and five in the afternoon and left it at dawn of the following day. The same testimony has been made by Mueller. That establishes that the Viking supply battalion left Zloczow in the morning after the day of conquest. As a supply battalion, after military experiences, would be the last to march into a town, it might be regarded as certain that the whole division that passed through Zloczow at that period of time and was then advancing on Tarnapol. That result also coincides with the description given by Witness Dr. Jollek of the troops who marched through the city. He testified at first it was the Wehrmacht which happened on the first and perhaps on the second day. Then only he said troops arrived whom he described as SS, and whose uniform he described to us in the most minute detail, perhaps with deathheads, some of them wearing field-gray steel helmets, fieldgray uniforms with the SS insignia and armlets.
The Armored Grenadier Division, Viking, never wore SS insignia, nor armlets nor gray steel helmets. The steel helmets had camouflage color, and they were not wearing field--gray uniforms but camouflage jackets. Here it is important to remember Fanslau's own testimony and affidavits Steiner and Schaefer which I have offered as Defense Exhibits Fanslau 28 and 29.
It must, therefore, be assumed that Witness Dr. Jollek regarded the Viking Division as part of the Wehrmacht because of their camouflaged uniforms. This is also borne out by this, the unit described by Dr. Jollek distributed food, but the Viking Supply Battalion did not. Dr. Jollek observed a medical officer with golden insignia, but golden insignia were worn only by medical officers of general rank, but no such officer was with the Viking Division. Dr. Jollek did, on 3 July 1941, see one member of the Army in Zloczow, but at the time when the Viking Supply Battalion marched through the town there were, according to Sauer's testimony, mountain troops still in the town. From these statements it can be seen on 3 July 1941 the Supply Battalion Viking and the whole Viking Division was at a distance of at least one or two days. marches from Zloczow and were advancing on Tarnopol. Jollek's memory of the technical insignia of the Viking Division on the trucks can come only from the days prior to July 3, 1941.Defendant Fanslau at that time was not with the Supply Battalion when it marched through Zloczow. He had passed through Zloczow at an earlier date. What happened on 3 July 1941 In Zloczow cannot be charged to the Viking Division and its members.
Any concrete representations against Fanslau have not been made. 2a. Witness Sauer has described that Oberscharfuehrer Suerth of the Bakers' Company had shot down six Jews with his own hand. Any responsibility of the Defendant Fanslau for this crime would only exist if he had. ordered this shooting, he had taken part in it, or not interfered although it was reported to him. A charge of participation of Defendant Fanslau has not been alleged by anybody.
Witness Sauer even stated that no report had been made about the incident. Defendant Fanslau himself has testified that he had never received any information about the incident, either officially or privately. Moreover, it seems highly doubtful whether the crime reported by Sauer was committed. What he said about incidental circumstances has been refuted and his whole testimony cannot be believed as it stands. Sauer, for instance, said that the Supply Battalion Bakery and Butcher Companies had been accommodated in one barracks in Zhitomir together. On the other hand, Defendant Fanslau said with the utmost certainty and by quoting details that the Supply Battalion had been accommodated outside Zhitomir. The some is maintained by Schaefer, Mueller and Stamminger, Sauer also alleged that the Defendant Tschentscher had also been in the barracks at a distance of about 400 meters from the spot of perpetration. As a matter of fact Tschentscher at that period of time was ill and in bed outside Zhitomir. Finally,Sauer alleged that he had seen Haupt-sturmfuehrer Braunagel in Zhitomir, but at that time Braunagel was bedridden and was in the hospital of Lublin and later on of Ulm. Sauer alleged that the crime committed by Suerth had been known through the Supply Battalion, but the witnesses Schaefer and Mueller and Stamminger dispute any such knowledge in the most convincing manner. I believe, therefore, that it cannot be proved with any certainty, beyond a reasonable doubt, that Suerth had really committed the crime which he was charged with. It is quite certain that Defendant Fanslau, as he had no knowledge of this alleged crime, cannot be held responsible.
b. While according to Sauer's testimony Jews were mistreated in the slaughterhouse of Tarnopol by members of the Butchers' Company, Sauer has made contradictory statements about an alleged employment of Jews. On direct examination by Mr. Fulkerson, he said, I quote:
"Q Well now, in Tarnopol did you see any signs of mistreatment of Jews, any signs that the civilian population was herded together in the manner which you have described?
"A No, I did not see that in Tarnopol.
"Q You saw no signs at all?
"A No, I saw no such signs in Tarnopol.
"Q Very well, what was the first place where you again saw such things?
"A That was in Zhitomir."
And a little later I quote again:
"A No, in our company we did not employ Jews because we had enough men and our Battalion was not big enough."
Questions on cross-examination about Tarnopol, I quote:
"Q Tell me, what about the next place, Tarnopol, were you working in the slaughterhouse there?
"A No, I was working in the sausage department."
Contrary to these clear statements were made on 20 August 1947 where Sauer admits that he had not seen Jews being employed, let alone being mistreated, in Tarnopol, he says on the first time, on the 21st of August, 1947, concerning the alleged employment of Jews in the slaughterhouse in Tarnopol, and I quote:
"Q Herr Sauer, you did not find any signs in Tarnopol that Jews were being herded together?
"A I did not see that civilians herded Jews together, but I might mention that there in our unit Jews and Ukrainians were employed in the slaughterhouse. I should like to add this."
When his attention was drawn to this contradiction Sauer said that he had not been asked that question before. That, of course, is again incorrect.
It has become clear from the just quoted extract of the record quite obviously that Sauer's memory extended somewhat overnight, very probably under Otto's influence. As Stamminger has said here on the witness stand concerning the employment of Jews alleged by Sauer, this is contradicted by the regulation issued for reasons of security and hygiene to employ outside forces in the supply units. This is borne out by Schaefer, Mueller and Tschentscher himself. So therefore his testimony is doubtful already, and there must be misgivings now that the observations reported by Sauer, even if one should assume them to be true, cannot be charged to the Viking Battalion.
The slaughterhouse in Tarnopol was under the orders of an outside unit which was the Army Butchers' Unit. As was confirmed by Defendant Fanslau, the Butchers' Company of the Viking Division only transferred a few butchers to help out, whereas their own establishment was outside Tarnopol.
The atrocities described by Witness Goldstein cannot be charged the Viking Division. Goldstein, it is true, speaks of SS units which he alleged committed the crimes, but he admitted himself that he was not in a position to differentiate between the Wehrmacht and SS. The Bakers' and Butchers' units which he has incriminated are not identical with those of the Viking Division. The units to which Goldstein referred were in the slaughterhouse and in the synagogues. The slaughter company of the Viking Division was outside the town. The pictures submitted by Goldstein have no probative value for this trial. They could only be identified by the witness because he had experienced similar scenes at different times. Whereas he stated at first they came from the first days of the invasion of Galicia he shortly afterwards admitted that the snaps were taken at Kielce and Radon, that is to say Western Poland, which had ceased to be a combat area since 1939. The only shapshot which shows an SS man in peacetime uniform was identified by him as a photograph taken at Lodz which at that time was part of the occupied area under the name of Litzmannstadt.
Any incrimination of Defendant Fanslau I cannot find at all in this respect.
3. Finally the Prosecution have attempted to charge the members of the Viking Division with responsibility or co--responsibility in the crimes committed by the Einsatzgruppen in the backwoods area of the Army. This was not a success. Defendant Fanslau, as was confirmed by Witness Steiner, described the swiftness of the advance which frequently created an empty space between the advancing combat unit and the occupying forces in the rear. No communications were kept up in that vacuum. This makes it plausible Defendant Fanslau, at a distance of some 100 kilometers, could not hear anything of the crimes committed by the SD.
Court No. II, Case No. 4.
Moreover, he took part only for three months in the Eastern campaign. It is a fact that has been described in detail by Steiner that the combat unit was committed only to the task of reaching its objective and when it had been reached, territorial tasks, such as the keeping of law and order, were not up to a combat unit. A troop advancing is always highly exhausted in the end so that need rest when they have stopped somewhere and it is not in a position to appreciate any news. Any responsibility as to what happened hundreds of kilometers in the rear, behind the advancing combat unit, was done by the units of an entirely different command, and therefore cannot apply, in my opinion, to the members of the combat unit. The SD was part of the troops in the rear, which becomes clear from the fact that the advancing combat unit did not know SD units. This was said by defendants Fanslau and Tschentscher and Sauer, and Stamminger.
Now, under III, I an dealing with Fanslau's membership in the WVHA: 1. The prosecution hold the view that in the scope of Fanslau's office Group of the WVHA, war crimes and crimes against humanity had be in committed. The participation of Defendant Fanslau as a perpetrator accomplice, or instigator has neither been asserted nor proved. No proof, no responsibility under article II, Section 2c of law 10, for participation and consent would apply to Defendant Fanslau. However, in accordance with the principle established by the Tribunal in Case No. 11; a. He had known of the intended crimes. b. He obtained that knowledge in good time in order to be able to take steps to prevent them. c. He had the power to prevent these crimes. The evidence has established that Defendant Fanslau did not even know of the crises mentioned in the indictment and proved by the prosecution and that his official position and official work was not such as would submit such knowledge to him.
A Concentration camps. What Fanslau knew about these concentration camps was their existence, but not their operation and the atrocities committed therein. To operate concentration camps was not among Court No. II, Case No. 4.his tasks.
The field of task of A-V/4, was not part of Office A-4, but of Office Group D, which had a personnel department of its own. The sphere of tasks, and it is described as A-V/4, was only there for formal reasons because A-V always stood for personnel matters in the files. According to the orders of Main Office Chief Pohl, the Chief of Office Group D, even after its incorporation into the WVHA, should maintain his own Personnel Department and remain independent in the way he processed his personnel. The personnel expert with Office Group D was Adjutant Harbaum, who also held other positions. This is the reason why in Document NO-1923, Prosecution Exhibit 552, matters pertaining to the adjutant and personnel are being treated within the area of Office Group D, jointly under the File Note A-V/4.
Fanslau had no official contact with Harbaum, and, in particular, he did not have the authority to issue orders. This description has not been shaken by the orders for transfer of concentration camp commandants, Pauly, Suhren, and Koegel, Prosecution Exhibits 716, 718, and 719.
From Document NO-1944, Prosecution Exhibit 88, it becomes clear that this transfer of the commandants had been requested of Pohl by Himmler. An intermediary agency, and I mean, such as Himmler's position and the relevant order by the SS Personnel Main Office, were not submitted, but it becomes clear therefrom that the orders for transfer signed by Defendant Fanslau referred to the SS Personnel Office. It may therefore be assumed that the SS Personnel Office, after Himmler's permission, issued a collective order, in accordance with Pohl's request and that the orders signed by Defendant Fanslau are only excerpts from this collective order.
Within the scope of work of Office Group D, from among the 2,800 to 3,000 administrative officers of the Waffen-SS, only 25 or 30 administrative officers had been transferred. These transfers were not the consequence of the incorporation of employees of concentration camps into the WVHA. Most of these officers were, at the time of the incorpora Court.
No. II, Case No. 4.
tion, already working with the Inspectorate. I have reference here to Document NO-2147, Prosecution Exhibit No. 30, which is a file note of 9 or 17 September, 1941, which contains the following sentences. I quote:
"The administrative officer is SS-Untersturmfuhrer Von Bonin. He has been appointed by SS-Obersturmbannfuhrer Kaindl."
Kaindl had joined the Inspectorate in 1936 as the Administrative Officer and was there in charge of the administration. After the transfer to Office Group D, Defendant Fanslau had no longer any influence on the activities of the Administrative Office. Thus he did not come into any closer contact with the concentration camps. The transfer of personnel and the files of personnel did not relate to any procedure concerning incidents within office Group D. As far as concentration camps were concerned, Defendant Fanslau regarded them as a protective measure against enemies of the State and those whom he took as being an asocial element. Personally, he only knew Stutthof Camp and when he inspected it, he never noticed anything negative. He never heard one word about atrocities in the concentration camps. His ignorance went so far that even after the capitulation, we thought the descriptions of conditions were enemy propaganda. I shall recall here Affidavit Herbert Fanslau, which is Defense Exhibit Fanslau No. 8. He felt so free of guilt that he volunteered to become an American prisoner of war, and gave his name and rank.
Knowledge of the existence of concentration camps is not incriminating to Defendant Fanslau. The principle of internment of enemies of the State for reasons of security has been recognized as legitimate, which becomes clear from the institution of internment camps of today. The knowledge as such of atrocities committed in concentration camps would be incriminating to Fanslau. That knowledge did not exist.
b. Extermination of the Jews. The prosecution have submitted great moving proofs for the execution of the program of extermination of the Jews by a small group of criminal men in high positions in the state.
Court No. II, Case No. 4.
The defendant Fanslau knew nothing about the extended extermination or the carrying out of the extermination; the Reinhardt Action, he did not even know by name; Gruppenfuahrer Globocnik, charged with this problem was a stranger to Fanslau. He knew nothing of Operation G, or Administration G, nor did his collaborators. The garrison administration of lublin was not even under the orders of the WVHA. The man in charge of the garrison administration of Lublin, Sturmbannfuehrer Wippern, was in his position before the WVHA was established. Unterfuehrers and NCOs were appointed by the Main Office, Operational Office, and not by the WVHA. This becomes clear from Fanslau's testimony and that of his colleagues Stein and Borsum. Within Office Group A, there was Hauptsturmfuehrer Melmer working for the Field A-II/3 and he was in charge of the Reinhardt Action. For this he had been given a special secret order by Pohl and as such was immediately under Pohl and was not allowed to discuss the matter with anybody else. When Defendant Fanslau, in May or June 1944, was charged with taking over Office Group A, Melmer and his field of tasks, A-II/3 were no longer part of Office Group A, but he was part of the staff as the man in charge of the question and as such was immediately under Pohl. Melmer, it is true, used the file note REINH A/11.3, with all incidents concerning themselves with the Reinhardt Action, which becomes clear from the letter of July, 1944, but Fanslau did not know this letter, nor was it addressed to A-V or the Chief of Office Group A. The auditing activity of co-defendant Vogt remained unknown to Fanslau. All the incidents with the extermination of the Jews were carried out under the utmost secrecy, top secret, most secret. Secrecy was observed in a very strong manner.
Defendant Sommer reports in his affidavit submitted by the prosecution, Document NO-2739, in Document Book XXVI, under paragraph 15, on a communication made by Gluecks concerning the extermination of the Jews. I quote:
"What I tell you now is secret. You must not talk to anybody Court No. II, Case No. 4.about it.
If you mention it to anybody at all, you will lose your head."
This explains how it was possible that Fanslau remained in total ignorance of these saddest chapters of German history, despite his high rank in the Waffen-SS. None of these crimes had anything to do with his rank, but was quite independent of rank and limited to that small circle of men who by their official position and their orders were implicated in the execution of this criminal enterprise.
c. Forced labor. I need not debate the question of how much about labor allocation of inmates is admissible. This will be left to my colleagues defending defendants who were directly concerned with the allocation of inmates, All I have to analyst is how much Fanslau knew about the allocation of inmates, labor allocation of inmates was not part of Fanslau's duties. He knew very well that inmates were being used but he did not know all the various types of work nor did he know anything about the fact that those concerned worked under very hard hours, to say nothing of inhumane conditions, and they were not paid for their work. In the contribution given by Office Group W for the public lecture, given before administration officers, it was said that only asocial elements are being referred to and it is found that work will educate them and make them useful members of human society. That type of sentence has been described as examplery and perhaps of far reaching influence so that an innocent reader cannot even detect the idea that here we were concerned with criminal elements. The term of asocial elements was a very familiar one to Fanslau. He thought they were men who did not work regularly, but were involved in sinister dealings, drunkards who did not give money to their families, and people of that type. He did not think that this term included Jews of members of the Eastern nations, such as the prosecution seem to have assumed at first. He did not take any part in conferences, or orders concerning compensation for or money paid to the inmates. When in May and June 1944, he was charged with taking over Office Group A Court No. II, Case No. 4.there was already an open budget in existence without restrictions.