Court No. II, Case No. IX.
or a group it will be sufficient for the pending trial to point to the fact that neither in the proceedings before the IMT nor in the indictment in Case IX was it alleged, stated, or much less proved that the Einsatzgruppen had been an organization or group of the SS. On the contrary, they were military units of a special kind, which were not intended to last. They were not formed by a voluntary union of a majority of persons, likewise their tasks and their aims were not established by unanimous agreement of their members. At the time of the formation of the Einsatzgruppen the members knew neither the aims nor the tasks. They were not asked either, nor did they give their consent, as to whether they wished to participate in the tasks of the Einsatzgruppen or not. The Einsatzgruppen were rather formed by a military order and the members were individually assigned by military orders. The exceptional temporary character of the Einsatzgruppen was so strongly marked that they were not even organized into an independent actual unit. Outside of a relative majority of conscripted civilians who had been drafted for labor, the Einsatzgruppen comprised detailed members of the Gestapo (Secret State Police), of the Criminal Police, of the SD, of the Regular Police, of the Waffen-SS and of the Armed Forces. The men detailed to the Einsatzgruppen wore the uniforms of their home organization (i.e. the regular and drafted members of the Regular Police wore the uniform of the Regular Police), the groups of the Regular Police even continued to exist within the framework of the Einsatzgruppen formally as complete units with their own equipment and administration, although their members were individually employed for all tasks of the Einsatzgruppen according to expediency and necessity. could have made them an organization or group within the meaning of the Nuernberg Statute (compare statement of the Chief Prosecutor JACKSON in the IMT Transcript p. 5187-88 and the confirmation by the English Chief Prosecutor, Transcript p. 5206.)
Court No. II, Case No. IX.
entail any kind of membership in the SS, nor did it constitute a new membership in a new organization or group.
Court No. II, Case No. IX.
the Prosecution takes as a point of departure the fact that Ohlendorf had been ordered against his will to the Einsatzgruppe D (See Pros. Doc. NO 2875 in Doc. Book of the Pros No. III.) That such an order by Himmler or Heydrich did not leave any alternative to the person concerned, and that a refusal to obey this order would have entailed severe punishment, is also acknowledged by the IMF. But, since the IMT tries to divest this irresistible coercion of its import by tracing it back to the voluntary membership as an offical in the Security Police or the SD, the representative of the Prosecution in Case IX, Mr. Walton, in cross-examining the defendant Ohlendorf also attempted to demonstrate this causal connection in the case of the defendant Ohlendorf, However, without success. the time of the Russian campaign, Ohlendorf had no employment connection with the SD. Neither was he draft-deferred for wartime employment in the SD. Rather, Ohlendorf had a mobilization order for the Reichsgruppe Trade, the organization by which he was employed (Sea doc. No. 54, Exh. No. 59 in Ohlendorf Doc. Bk. IV). This fact alone had, up to 1941, prevented his drafting into the army for which he was drafted originally. And only this retention by the Reich Group Commerce made his compulsory induction by the Reichsfuehrer-SS in 1941, possible. Mr, Walton asked: "Is it not a fact that if you had been a member of the SS and the SD before the war, you would have been inducted to some branch of the Armed Forces different from the SS and the SD"?
Answer:
"Unfortunately, I cannot decidethis theoretically, for, as I said before, I was draft-deferred for the Reich Group Commerce. However, very many persons were inducted into the Einsatz who were not members of the SS and who had nothing whatever to do with the SS, and who could be inducted just for the reason that, up to that date, they Court No. II, Case No. IX.
were in a position beyond the immediate reach of the Armed Forces, that is, for example, in protected enterprises". .....
And then, Mr. Walton, himself, asked:
"Then, it was due to your draft-deferment that you were not assigned to the Armed Forces, but to the SS and the SD units?" And Ohlendorf answered, in accord with the true state of affairs: "That is so." of the Reich Group Commerce and not as a full-time member of the SD. Like hundreds of others, he was taken away from civilian private employment. Furthermore, his honorary membership in the SD was, by his being ordered to Russia, not affected at all. Just like any other person inducted into the Einsatzgruppe from civilian life under compulsion by the state, he remained, during the time he was a member of the Einsatzgruppe in Russia, in his private employment relationship as an employee of the Reich Group Commerce and received from there his salary all the time he was with the Einsatz in Russia (See affidavit Dr. Franz Hayler in Suppl. Doc. Bk. Ohlendorf, Doc. No. 64, Exh. No. 65.). Ohlendorf's honorary position in the SD as Head of Office III, SD Interior Service of the RSHA was suspended. During this time he engaged in no activities whatever in the SD, rather, his membership was inactive (See affidavit Hoettel in IMT trial, Transcript p. 14504/5 and Ohlendorf's uncontradicted statement in the same instance, Transcript P. 1831-32.) I am citing from this statement:
"The fact that I commanded an Einsatzgruppe has no connection with my position in Office III, which was given me as a person and not as Head of Office III. I.e., as Head of an Einsatzgruppe I had an entirely new function and a position completely separated from my former position".
Ohlendorf's activity in Einsatzgruppe D must therefore be considered independent from his honorary affiliation with the SD, to say Court No. II, Case No. IX.
nothing of the circumstance that even before the war and at the time he was ordered to Einsatzgruppe D, he was no longer a voluntary member of the SD and had, already in 1938, given up his employment in the SD to remove himself from dependence on the SS and the SD. activity of Office III, SD Interior in the RSHA, and the activities of the Einsatzgruppen which can be charged as war crimes and crimes against humanity. Such a material connection has not even been alleged, much less been proved by the Prosecution. Such a connection is also in contradiction to the task of Office III SD-Interior of the RSHA, which was so aptly described in the C.I. Handbook Germany, published by Supreme Headquarters Allied Forces, Office of the Assistant Chief of Staff, G/2 Counter Intelligence Subdivision. It says therein under sub-section IV "The German Intelligence Service" as follows: "..... The SD within the Reich, RSHA Office III, with its local branch offices constitutes the Party news agency inside of Germany. It maintains for its purposes a network of news men for every sector of German life, ... drawn from all social strata and callings. The information supplied by them is worked into situation reports which the Regional District Offices then relay to the RSHA. These reports are extremely candid and give a complete picture of the state of mind and the atmosphere in Germany ..." their charge regarding Count 3, that Ohlendorf, within the SD Office III of the RSHA, had committed war crimes and crimes against humanity, or had known about such crimes in the sphere of the SD, one can ascertain that the Prosecution has made no attempt whatever to blame Ohlendorf of such facts to say nothing of proving them. the SD Main Office and of the Office III SD-Interior of the RSHA, which determined the tasks and activities of the Organization of the SD-Interior, offers no points of departure for criminal activities in Court No. II, Case No. IX.
the sense of Article 6 of the Statute. It was designed for consideration of political and criminal investigation of objective information material. Accordingly, neither Office III nor its regional substructure the SD-Sections, were connected, for example, with the opposite departments (KPD, SPD, Jews, etc.) or with police affairs (Sabotage, espionage, etc.). The organizations were, rather organized according to sectors of public life and, correspondingly were charged with the departments for Justice and Administration, Folkdom and Public Health, Culture, Science and Education and Economics. Furthermore, the Office III SD Interior of the RSHA had no executive power whatever and absolutely no aims and purposes requiring the practice or support of police executive measures, neither for their own Offices nor for any other Office. The Presiding Judge of this Tribunal, himself, ascertained this in the course of the cross-examination of the defendant Seibert in regard to his activity in Office III, in which Seibert headed one of the 4 Groups: (I am quoting from p. 2521 of the Transcript).
Pres. Judge: "Well, no, Dr. Gawlik, it is quite right that you show here that the work in this Office was entirely legal and correct . . . and further on - I quote Pres.
Judge: "That is absolutely right, Dr. Gawlik, but now that is settled. And if the Prosecution does not refute it then it is so, namely that his activity in this special Office does not include anything criminal . . ." of Office III differ in no respect in their character and their activity from Group III D in which the defendant Seibert worked. under the leadership of the defendant Ohlendorf? him, "How do the people concerned react to the measures of the National Court No. II, Case No. IX.
Socialist Reich and its leading organization, and what effect do these measures have on these people, actually or in the forseeable future, to gather suitable facts, opinions, moral and mental reaction by a network of reporters from every social sphere and all ways of life, and to transform them into reports. The resulting reports were evaluated and condensed, and published by Office III as "Reports from the Reich", appearing at first daily, later once a week, and made available to all the leading departments in the Party and State. They spheres of life. The intent and purpose of this reporting service were to replace the positive opposition, lacking in the Third Reich, and the healthy and positive public criticism necessary in a sound commonwealth. (See, among other, Affidavit Hans Fritzsche, Doc. Book I, Doc. No. 6, Exh. No. 28). For a better understanding of this activity I wish to refer to Ohlendorf's conception, which I shall present later of the National Socialist State, as Ohlendorf wanted to develop it through his work. In order to have at least a substitute for the missing public criticism about National-Socialist politics, Ohlendorf built up the SD-Interior Service in spite of the constant resistance and opposition of the influential hierarchy of the Third Reich. The numerous affidavits of his co-workers in SD-Interior and the recipients of the SD-Reports prove exactly what is said in the above mentioned C.I. Handbook: (Doc. Bk. I, Doc. No. 5, Dr. Gerhard Klopfer, 10, Dr. med.
Hans Ehlich, 11, Dr. Hans Roessner, 12, Dr. jur.
Erhard Maeding, 17, Dr. Heinrich Malz, 25, Dr. Justus Beyer, 27, Dr. Hans Roessner, Court No. II, Case No. IX.
Document Book IV Document No. 56, by Dr. med. Ehlich, " " 57, by Heinz Wanninger, as well as the testimony of the defendant Seibert about the work of the Group Economy, of Office III, Ohlendorf himself has given a detailed statement to this effect as a witness in his own defense.
of Ohlendorf was practically an illegal matter since he lacked any authorization of the competent authorities for this activity. He carried it out on his own responsibility. The SD, as the only information service of the Party, had been authorized by the Party only as its own information service. Bormann, the chief of the party chancellory, was right in actually accusing the SD-Interior that it was no longer doing any work in the fields of enemy intelligence and was dealing with questions which only concerned the individual party offices, and that it was becoming the "mouthpiece of defeatism". The SD-Interior under Ohlendorf's command, although an institution of the Party but in opposition to the chief of the Party Chancellory and even in opposition to the Reichsfuehrer SS to whom, in his capacity as the chief of Office III of the SD-Interior, Ohlendorf was subordinated in accordance with the table of organization, had developed into the vary opposite of what these offices expected, namely into the mouthpiece of the positive opposition. organizations evolved in the course of the war more and more to an actual, and partly very strong opposition, against the faulty development of National Socialism realized by Ohlendorf, and against the practice of National Socialism and its conspicuous leading personalities. It was only thanks to Ohlendorf's tactical skill and diligent conduct that he was able to remain in this state of opposition till the end of the regime, which not only was for the benefit of his own Court No. II, Case No. IX.
people but also for all the other nations and national groups within the territories occupied by Germany.
Let me quote nere only the most conspicuous proof for this contention: 1.) In Ohlendorf's efforts for anthroposophy the defense has quoted, as an example, the attempt made by Ohlendorf to sustain, in an absolutely tolerant manner, a spiritually manifold life in contrast to the onesided aspirations of Nazi ideologists; although he was opposed to the ideology of anthroposophy, the latter, having been persecuted during the time of the Nazi regime and finally outlawed, nevertheless found in Ohlendorf its best supporter and protector against all attempts by the offices of the NSDAP and the Nazi state to extermina this philosophy and all its institutions from public life. The affidavits of Dr. Elisabeth Klein and of Dr. Rudolf Hauschka give proof to this. Frau Dr. Klein confirms that Ohlendorf, with respect to the anthroposophical society and its institutions did not only show a tolerant attitude but also used his influence on behalf of the se institutions, although they were fanatically rejected by the highest Party leaders like Heydrich and Bormann. She furthermore confirms that Ohlendorf for that reason was opposed and isolated by a number of authorities. Dr. Hauschka confirms that, in anthroposophical circles, Ohlendorf had the reputation of a daring fighter against the Nazi cultural terror and that he used his influence on behalf of anthroposophy under very great risk for his own person without that in many cases the then persecuted persons had even suspected this. Frau Dr. Barlen eventually confirms, in rounding off this subject that a document from the files of the Reichsfuehrer-SS which came to her notice as late as during the days of collapse, contained an expression of strong distrust against Ohlendorf on the part of the Reichsfuehrer SS. 2.) The defendant Ohlendorf attempted twice to stop the Jewish policy of the Third Reich and steer it into an orderly course. The first cause was the elimination of the Jews from the economy with the climax of the so-called "crystal night" (Kristallnacht") and the following defamatory discrimination of the Jews (Yellow Star, etc.)
He put his SD-machinery to work in order to investigate these incidents and in detailed reports he expressed his opinion against these acts. In 1939/40 Ohlendorf twice suggested to Heydrich to create a Jewish minority state (Affidavit by Dr. Ehlich, Doc. No. 10, Exhibit No. 33). Ohlendorf at that time met with a sharp repudiation. Moreover, von der Heyde confirms in his affidavit that Ohlendorf repeatedly and successfully used his influence at the competent Section IV for Jewish employees of the I.G. Farben without even knowing them. As for the rest compare also the affidavit by Frau Barlen.
Ohlendorf's attitude and conduct in regard to the Jewish question can only then be understood if one is familiar with his views about people and race which became the leading motives of his thinking and acting and therefore also of his activity in the SD. To this point I quote from the affidavit by Dr. Hans Ehlich since in his group this view of Ohlendorf had to be expressed more clearly:
"Ohlendorf had quite a clear fundamental conception of the people's character. To him nation meant a community of people of the same race shaped together by a common history, language and culture. To him folkdom was the expression of a nation's character and the outward forms of its national existence. The nation as a community, based on the changing relationship of the individual, and the people as a whole were to him the expression of the natural law of mankind, a divine act of creation. Thus, Ohlendorf saw in the various nations neither superior nor inferior races but the various tones of the creative symphony "mankind". He regarded race merely as a biological conception. To him the various nations were not superior or inferior but different in character. He therefore regarded as wrong and directed against the laws of mankind the domination of one nation with its principles of life over another nation. On the contrary he aimed to achieve an order of nations in which every nation can develop in accordance with its character and its possibilities and qualifications.
Neither did he consider a nation to be bound to a state organization. Ohlendorf frequently indicated, by giving the Polish people as an example, that a people can retain its national existence for long times without being organiz ed into a state. The Jewish people too, was mentioned by him as a proof for this fact. Therefore, for the purpose of solving the Jewish question he was of the opinion that the aim could only be achieved through creation of a closed Jewish territory in which the Jewish people were to create a state in accordance with their national character...." and conduct of those personalities of the Third Reich who were outstanding authorities in regard to this point.
If his assistant Roessner in the above, under paragraph 1) quoted affidavit describes Ohlendorf's aim as a will for the accomplishment of a way of life in accordance with the German and European character for the promotion of moral liberty and responsibility of the individual, and if he proves that this will was borne by a humanitarian thought taken from the depths of the nations, then these conceptions and motives of Ohlendorf are incompatible with the fundamental idea of race hatred and racial contempt as charged in this indictment.
Ohlendorf himself answered my question: Why did you instruct the SD to oppose, of all people, Reichsleiter Ley, Goebbels and Bormann ? I quote the answer: "Because these three men, as nobody else, challenged the moral value of the human being." The moral value of the human being and his inner freedom was the fundamental motive for his acting and thinking and to him it also meant the recognition and promotion of the human rights of every race and folkdom. 3.) Ohlendorf, as a result of his work in the SD, has also successfully employed this conception for the best possible treatment of the foreign workers.
The best proof for this is the memorandum prepared in connection with these questions concerning the treatment of the foreign workers, which was issued on 15 April 1943 by the Reich Ministry of Propaganda and the RSHA, the Reich Security Main Office. The points contained in this memorandum orginate from the reporting system of Office III. It was only due to the urgent representations of Ohlendorf that this memorandum was issued, that the respective authorities in the Party and State used their influence that injustices, chicanneries, insults and mistreatment towards these people were prohibited, that the barbed wire fences around the camps of the Eastern workers were removed and that otherwise a housing, fit for human beings, and a supply with food, was ordered. (Affidavit by Dr. Ehlich, Doc. Book I, Doc. No. 10, Exhibit No. 33. pages 46/47). 4.) The policy of violence, applied in the Ukraine by the Gauleiter and Reich Commissioner Koch, was repeatedly and continuously attacked by Ohlendorf after his return from Russia. As a result, he came into a serious conflict with Himmler to whom Koch had made a complaint. Himmler, at that time, instructed Kaltenbrunner the SD ought to be decimated and that at last it was time for the SD to discontinue its reports, otherwise its responsible chief would be put into custody. 5.) In a manner, similar to that against Koch, Ohlendorf also turned against the policy of violence applied by Terboven in Norway. In this case he changed from the indirect fight to the open fight against Terboven and also ordered the co-defendant Braune, who at that time was in Norway and previously active in the SD, to use all means in taking steps against Terboven's negative acitvity. With regard to the result of this order by Ohlendorf I refer to the evidence and the Final Flea in the case against Braune. 6.) As a result of his work in the SD, Ohlendorf was in strong opposition to almost all known representatives of the Third Reich, because of their conduct not only towards their own people but also towards other nations.
and requested the letter's dismissal from the SD. Goebbels prohibited the issue of the SD reports in the Ministry of Propaganda and accomplished that Himmler prohibited the "Reports from the Reich" because he regarded the strong criticism, practiced therein, as a spread of defeatism. and openly heedless drawing up of the SD reports; he was right in being under the impression that Ohlendorf and his assistants made themselves the mouthpiece of an opposition. Sauckel's policy with respect to the foreign workers was likewise strongly attacked by Ohlendorf as it is confirmed by the witness Dr. Michel. Because of the oppositional activity of the SD, Bormann at first attempted to get control over the SD. When, due to Ohlendorf's resistance, he did not succeed, he finally banned in 1944 all full time and honorary party functionaries from participation in the activities of the SD Interior Service and threatened to report to the Fuehrer.
The hostile attitude Himmler's towards Ohlendorf which is confirmed by various affidavits and also by a letter of Himmler, could be traced solely to Ohlendorf's activity in the SD Interior Service Office, III of the Reich Security Main Office (compare among others affidavit by Dr. Franz Hayler).
Moreover, Himmler's Chief Adjutant, Karl Wolff, makes a statement concerning Himmler's rejection of Ohlendorf.
Wolff testifies about the open conflict which broke out between Himmler and Ohlendorf in the fall of 1939 because of the system Ohlendorf applied in directing the Sd Interior Service. By order of Himmler, Wolff had had to request Ohlendorf to resign from his service in the SD since an agreement between him and Ohlendorf was not possible.
If I summarize the points of view concerning Ohlendorf's membership in the SD, the following picture in regard to this question will result and I am in the position to demonstrate this picture by quoting Prosecution Document NO-2875, Volume III D, page 56 and the following pages.
1934 in Kiel and 1935 in Berlin, because of his critical behavior towards National Socialist institutions, he nevertheless takes up again a suggestion by his former teacher, Professor Jens Jessen, and declares his readiness to accept a political-critical intelligence mission in the field of economy within the SD, which up till then had been unknown to him. This was Ohlendorf's only motive for entering the SD, and it cannot be disputed that it contained no criminal aims whatsoever. or the will to agree to criminal purposes. ing personalities of National Socialism, who did not want open criticism. Partly it was made impossible for him to work in the way he wanted. This caused him as early as in 1937/38 to endeavor his separation from the SD. However, he succeeded to dissolve his service relationship to the SD only as a full-time employee, on an honorary basis Heydrich, the Chief of the SD Main Office, forced him to say on, on the basis of the peculiar service relationship of fealty obligating only one side. Thus from 1938/39 Ohlendorf was only honorary director of the Main Office II, Economics of the SD Main Office. Warsaw in November 1939, was again prevented by Heydrich.
Court No. II, Case No. IX.
and soul. Already in 1937 Heydrich declared: "Nobody can leave the Security Police, unless we do not want him anymore. In this case however the road leads through the concentration camps." It is therefore wrong if the IMT puts the compulsion exerted merely under the pressure of the loss of an official position. Besides it is not possible at all to attribute such a motive to the defendant Ohlendorf, since, as I proved above, he had given up his position with the SD and since 1938 was forced against his will to continue as a member. III of the RSHA was put on a new basis inasmuch as the service with this office was considered war service and the members thereof placed under martial law. Every attempt, even as much as a request for leaving the SD was made punishable. The official compulsion to remain in the SD was the same as the obligation to which every soldier was subjected and which made any separation impossible without endangering body and soul. And contrary to the prerequisite assumed in the quotation of the IMT judgment that this compulsion was possible only through the martial laws and therefore losses its value because the person concerned was a voluntary member of the organization when the compulsive situation commenced, this fact is not true for the defendant Ohlendorf, since, as already pointed out, and which has been proven, he was since 1938 at the latest, only an involuntary member of the SD. feel assured by the evidence, the findings of the Court and the Prosecution that the possibility for exculpation granted in this point by the IMT-judgment and the statements of the Prosecution in the IMT-trial, is achieved for the defendant Ohlendorf, inasmuch as it is established, that according to what his superiors told him before he entered the SD 1) the purpose of the SD was the reporting on abuses and miscarriage of developments within the National Socialist Reich; that is the Court No. II, Case No. IX.
2) his motive for entering the SD and therefore the SS was a politic possible to him by Party organizations; also the opposite of 3) once this aim does not seem to him to be sufficiently guaranteed 1938 to be permitted to leave the SD.
Indeed he does leave full time employment with the SD.
A complete separation from the SD, however, is refused him.
But he is able to enter into a fulltime 4) As a compulsory member of the SD Office III he did not participate in criminal acts in the sense of Art.
6 of the statute, but on the 5) As member of Office III SD-Interior Service his retention in this criminal.
Also no concrete act in any form of complicity or Court No. II, Case No. IX.
6) On the other hand, Ohlendorf was aiming and working in the SD in 7) The defendant Ohlendorf, during the period that is of relevance outside the SD.
Theqquestion of his criminal membership with the 8) The Einsatzgruppen and Einsatzkommandos were not organizations or conditions for the criminality of organizations.
In particular the SS.
Therefore they did not establish membership in such an 9) His membership with the SD was at the start of the war and after 1938 not voluntary.
At the start of the war he had no service Reichsgruppe Trade.
So the causal connection is missing for
a) a service relationship within the SS or SD based thereon, and
b) its voluntary existence. 10) During his assignment in Russia his activity with SD Office III Court No. II, Casa No. IX.
that could be based on aiding crime in any form within his organization, the SD Office III of the RSHA that was declared to be criminal. ment is concerned, regarding the organizational connection of SD Office III with the Einsatzgruppe, I shall explain while dealing with the organizations and the activity of the Einsatzgruppen and shall then disprove the existence of such a connection.
THE PRESIDENT: The Tribunal will be in recess until 1:45.
(A recess was taken until 1345 hours, 4 February 1948.)
(The hearing reconvened at 1345 hours, 4 February 1948).
THE MARSHAL: Take your seats please.
THE PRESIDENT: Dr. Aschenauer, would you mind? Dr. Mayer wishes to make a statement.
DR. MAYER: Mayer for Braune.
Your Honor, I have a request to make to the Tribunal. It is that the defendant Braune be excused from the session tomorrow afternoon so that the defendant Braune will be able to have a discussion with a Dr. Rheinford who, as a prosecution witness, is staying in the witnesses' part of the prison here. This Dr. Rheinford was the legal advisor of the brotherin-law of the defendant, and the defendant wants to discuss difficulties concerning an inheritance matter of his which occurred because his fatherin-law died. I would be very grateful to the Tribunal if they would permit the defendant Braune to do this, thus enabling him to settle his private financial affairs.
THE PRESIDENT: The record will show the purpose for which the defendant Braune will be excused tomorrow afternoon from attendance in court. The marshal will make all necessary arrangements.
DR. MAYER: Thank you, your Honors.
THE PRESIDENT: You may continue Dr. Aschenauer. DR. ASCHENAUER: declares the SD - Department III of the RSHA - to be a criminal organisation, I consider it proper, going beyond the range of tasks of Department III under Ohlendorf's direction, to clarify several organizational mistakes which are contained in the IMT verdict and which according to general opinion are open to attack as individual findings among the reasons given in support of the verdict.
In the reasons in support of the verdict it says: