[Page 74]

DR. MERKEL (counsel for the Gestapo): Yes, sir.

DR. LOEFFLER (counsel for the SA): May it please the Tribunal, the objections and misgivings expressed yesterday by the defence regarding the criminal proceedings against the six accused organizations are particularly applicable when judging the SA.

No other organization is so much exposed to the danger of a sentence contrary to our sense of justice as is the SA. I ask the Tribunal's permission to submit the reasons for this fact.

The demand of the prosecution that the SA should be declared a criminal organization affects at least four million people at a conservative estimate. The limitation according to groups approved yesterday by Justice Jackson was gratifying and welcome; but it will have no appreciable effect on the members since the groups eliminated yesterday, the armed SA units and the bearers of the SA badge for physical culture, were not full members of the SA. The only persons so far eliminated, therefore, are the SA reserves. As no limitation according to time was made, these criminal proceedings will include everyone who ever belonged to the SA, even for a very short time, during the twenty-four years between its establishment in 1921 and its dissolution in 1945, that is to say, during a period of almost a quarter of a century.

We heard yesterday from the prosecution that the criminal acts charged to the organizations are the same as those charged to the main defendants, namely, Crimes Against Peace, War Crimes, and Crimes Against Humanity, as well as participation in the Common Conspiracy.

If we now contemplate the possible participation of these four million former SA men in these four important categories of crime, we get the following picture:-

Crimes against the laws or customs of war are not charged to the SA. It is true that the prosecution presented an affidavit, saying that the SA also took part in guarding concentration camps and prisoner of war camps and in supervising forced labour; but, according to the presentation of the prosecution, this did not occur until 1944 within the framework of the total war raging at that time, and it has not been charged that this activity of the SA involved any excesses or ill-treatment.

In none of the atrocities reported here by witnesses and documents did the SA, with its four million members, participate. The few offences against humanity charged to the SA by the prosecution and committed by individual members in the course of almost a quarter of a century, can in no way be compared with the serious Crimes Against Humanity of which we have heard here.

[Page 75]

Even the prosecution did not assert that any outrages, ill- treatment or excesses occurred when this operation was carried out. The fact that in connection with the seizure of power in the spring of 1933 individual excesses occurred and that the American citizens Roseman and Klauber, according to the affidavits submitted by the prosecution, were beaten on this occasion, is certainly regrettable. However, such excesses on the part of individual persons are unavoidable in organizations comprising millions of people and, considered, by themselves, are hardly proper ground; for declaring the entire organization criminal.

The participation, finally, of the SA as guard troops in concentration camps is, according to the presentation of the prosecution, restricted to single exceptions and ended anyway in 1934. The Commandant of the Concentration Camp Oranienburg, according to the presentation of the prosecution, was an SA Fuehrer. However, it is not asserted that he committed any atrocities.

The second case, the ill-treatment of prisoners in the camp of Hohenstein, by SA and SS members in 1934 led to criminal proceedings, and the SA men guilty were sentenced to imprisonment of up to six years.

As a last individual act there remains the participation of the SA in the excesses during the night from 10th to 11th of November, 1938, when the windows of Jewish stores were broken and the synagogues were burned. Here, too, the plan and the order did not originate with the SA. The SA was simply commissioned by the highest Party leadership to carry out this order. Finally, if we consider that during the political struggles of 1921 to 1933 the old SA was involved in brawls - often purely defensive-with political opponents, and that it did not develop into an organization with millions of members until after the seizure of power, we arrive at the following conclusion, expressed in figures:-

On the basis of the presentation of the prosecution at most two per cent. of all the indicted former SA members participated in punishable individual actions; ninety-eight per cent. of the four millions, in accordance with their own convictions, kept their hands clean of any such punishable individual acts.

Here, too, the prosecution will not want to insist that the excesses of these two per cent., considered by themselves, should brand the entire organization as criminal. The ninety- eight per cent., that is in round numbers three million nine hundred thousand former SA members, must nevertheless defend themselves here against the charge of having participated in the preparation of the war of aggression or in the planning or execution of the common conspiracy; or, formulated more strongly, against the charge of having belonged to organizations which pursued these criminal purposes.

What is the result if we apply the definition of the criminal nature of an organization as formulated yesterday by Justice Jackson and Sir David Maxwell Fyfe?

The SA members will acknowledge that the criteria under Points 1 and 2 as defined yesterday are also true for the SA, namely, that the SA was an aggregation of numerous persons with collective aims and a membership which was voluntary in principle. However, they will strenuously deny the application of the criteria 3, 4 and 5. Point 3 requires that the organization pursued objectively criminal aims in the sense of Article 6 of the Charter. The millions of members, if testifying here, would state that neither in the programmes nor in the speeches of their leaders had they been called upon to pursue such criminal aims or methods. Whether the leaders of the SA pursued such criminal aims in secret or not these people are not in a position to judge. Whether such criminal aims were pursued secretly by the leadership of the SA can be determined only by the Tribunal, and only now, when the archives have been opened, witnesses can testify, and the documents are submitted to the Court.

[Page 76]

I should like at this point to emphasize particularly that I, in agreement with my colleagues, do not consider this definition an adequate protection, since it means that a member may be punished even if he did not recognize the criminal nature of the organization, but ought to have recognized it by application of reasonable care. I know of no system of penal law in any modern civilized State which holds that negligence, even of a gross or serious nature, is sufficient to constitute guilt of a defamatory common crime, i.e., of a crime belonging to the group of gravest offences. A crime of this category can be committed only with intention. Perhaps the prosecution can later discuss this question on the basis of their knowledge of the particulars of Anglo-Saxon and other foreign legal systems.

This point seems of particular importance to me because - if neglected - there is the danger that the judges, particularly the Anglo-Saxon judges, will apply the political standards of their countries to German conditions. The sober political instinct that is characteristic of the citizens of England and America is non-existent in the Germans. We area politically immature people, credulous and consequently especially susceptible to political misguidance. The Court should not overlook this dissimilarity when passing its judgement on the good faith of the individual members of the organizations. According to the impressions which the SA defence had received to date from its visits to camps, and from numerous letters, the majority of SA members are convinced that they did not belong to any criminal organization. Among other reasons are the following subjective ones:-

It was generally known and has been specifically stated in the Organization Book of the Party - Document 1893-PS, Page 365 - that only a person whose character was unobjectionable could join the SA. It is further stated verbatim, and I quote: "Unobjectionable reputation and no criminal record".

The members of the SA maintain that they know of no case in which a gang of criminals or conspirators required in their regulations similar conditions for membership.

Part of the essence of a conspiracy is the idea that its criminal aims be kept secret from its opponents. An organization of several millions is, by its very nature, not suited to carrying out a plot. The leaders of the SA emphasized in numerous addresses that they wanted to maintain peace under all circumstances. They pointed out that Germany would be a great danger to European peace if she were without defence and arms in the heart of Europe, but that being in a state of preparedness was the best guarantee for securing future peace in Europe. The simple members point again and again to the fact that foreign powers gave diplomatic recognition to the leaders of National Socialism. They consider this fact not simply an act of "international courtesy" but are convinced that foreign governments would not have entered into relation with the German Government. if that government had consisted of obvious criminals.

I might mention a particularly characteristic example: the Indictment against the SA is substantiated by two documents. These are Documents 2822 and 2823-PS. According to these documents, as early as May 1933 Lieutenant Colonel Auleb, a deputy of the Reich War Ministry of that time, was detailed to the high command of the SA in order to assure liaison between the heads of the two organizations. But the whole affair was treated as strictly secret and it was ordered that Auleb should wear the SA uniform for the purpose of "camouflage." How, I ask, should or could a simple SA member have known anything of such affairs? I have mentioned here only a few points put forward by SA members which in the opinion of the defence do not constitute unfounded subterfuges, but which show that the majority of these people never thought of participating in a criminal conspiracy.

[Page 77]

The task which the SA had to carry out under Goering in the year 1923 was the protection of meetings. Anyway, it cannot be charged that as early as that the SA, in co-operation with Goering, planned the crimes stated in Article 6 of the Charter, or that these aims could have been anticipated at that time in any tangible form. Neither can it be charged that Goering ever made use of the SA after 1923 for carrying out any criminal plan. The man who led the SA from 1930 to 1934, Ernst Roehm, was an embittered opponent of Goering. After his death the SA was led by Victor Lutze from 1934 to 1943 and from 1943 until its dissolution by Wilhelm Schepmann.

According to Article 9, Paragraph 1 of the Charter, an organization can be declared criminal only in connection with any act of which a chief defendant may be convicted. From a legal and factual point of view I have the gravest doubts as to whether the facts of the case in 1923, as described by me, are sufficient to comply with the requirements of the Charter as far as the SSA is concerned. This could be done only if the Tribunal had reason to pass sentence now on Goering's activity as leader of the SA group for protecting meetings twenty-three years ago, including the November putsch, as a special crime. This, however, would be at variance with the fact that this entire action was settled with legal effect by the amnesty of the democratic Reich Government, whereby the matter was, disposed of at the time.

May it please the Tribunal, if it is a fact in the case of any organization, then certainly it is a fact in the case of the SA, that its being listed among the criminal organizations is contrary to the real picture. Large circles abroad, particularly those who were forced to leave Germany in 1933, knew nothing of the complete change of structure which the SA went through during the following years. The foreign countries heard at every Reichstag session the traditional song "The SA Marches", while as a matter of fact, the SA had long since lost all political influence and had been transformed en masse into an association with a huge membership, the very size of which rendered it harmless as far as conspiracy was concerned, and which showed all the characteristics of the so-called German club-mindedness. I refer in full here to the statements made by Colonel Storey himself in his speech for the prosecution. The organization through which the SA was then completely eliminated from political life was, as is well known, the SS, and this happened on

[Page 78]

This is the opportunity to point out the following facts: the SA, up to the higher ranks, is not, as a matter of principle, subject to arrest, unlike all the other organizations. The new Denazification Law which recently came into force after thorough consultation between German circles and the Military Government, and which is now the law in force throughout the entire American Zone, regards all SA members of a rank lower than that of Sturmfuehrer as neither active Nazis nor criminals. According to the electoral procedure now in force in the American Zone of Occupation, which was recently the basis for elections in thousands of German communities under the directives of the Military Government, the ordinary SA members, in so far as they were not Party members, were not only permitted to vote, but were also eligible for election. The same people who are before the Tribunal accused of serious crimes, may at the same time, according to the law in force, be elected as Community Councillors and, in fact, are being so elected.

I talked personally about two weeks ago to an SA man and asked him whether, following the notice of the Tribunal, he had reported here for interrogation. He declared that he saw no reason for doing that because in the meantime he had been elected and approved as a Community Councillor.

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