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6. Execution of Commandos and Paratroopers.

The next link in the chain of major crimes of which the Gestapo is accused is the charge that the Gestapo and the SD executed commandos and parachutists who had been captured and protected civilians who had lynched airmen. What can be said in this connection?

In Exhibit USA 500 - it is a secret order of the OKW of 4th August, 1942, concerning countermeasures against parachutists - the treatment of captured paratroopers is characterized as the exclusive concern of the Army, while that of single parachutists was transferred to the Chief of the Security Police and the SD. The latter task did not include their execution, but was to serve only the purpose of discovering possible sabotage orders on these parachutists and obtaining news about the intentions of the enemy.

On 18th October, 1942, Hitler ordered the destruction of all commando groups (Exhibit USA 501). This order was directed not to the German Police but to the German Army. Article 4 of that order stated that all members of such commandos falling into the hands of the Army should be transferred to the SD. Nothing can be learned about any part played by the Gestapo in these measures against the sabotage commandos. If, however, the Gestapo had played a part in it, a task not in the character of a police task would have been transferred to it, for the execution of which the Gestapo as an organization cannot be accounted responsible since doubtless under any circumstances only a small number of individuals participated in it.

Besides, the following should be pointed out: As Rudolf Mildner stated in his affidavit of 16th November, 1945 - Document PS-2374 - an order was issued

[Page 72]

Above all, the prosecution rests its case on an order of Himmler of 10th August, 1943 (Document USA 333), stating that it was not the task of the police to interfere in controversies between Germans and bailed-out English and American terror flyers, and from this the prosecution concludes that the Gestapo approved of lynch law. However, it is of significance that this order of Himmler's was addressed to all the German Police, above all to the uniformed regular police. For in case of the bailing out of Allied airmen, as a rule it was not Gestapo officials who made an appearance, but members of the uniformed regular police, the military police, or the local police. Only those branches of the police were in charge of street patrols, and not the Gestapo.

As proved by the numerous affidavits, all the Gestapo members were not informed of this order, but rather learned of it only through the statement Goebbels made over the radio.

The evidence given by the witness Bernd von Brauchitsch, first assistant to the Supreme Commander of the Luftwaffe, shows distinctly that that order was generally sabotaged. He stated: "In the spring of 1944 the civilian losses through air attacks rapidly increased. Apparently this made Hitler issue orders not only for defense but for measures against the airmen themselves. As far as I know, Hitler advocated the most severe measures. Lynchings were to be permitted more liberally. The Supreme Commander and the Chief of the General Staff did, it is true, condemn the attacks on the civilian population in the sharpest terms, yet they did not desire special measures to be taken against the airmen; lynching and the refusal to give shelter to the crews who had bailed out were to be rejected."

And his further statement is of particular importance. I quote:

"The measures ordered by Hitler were not carried out by the Luftwaffe. The Luftwaffe did not receive any orders to shoot enemy airmen or to transfer them to the SD."

7. The next point of the Indictment states: The Gestapo and the SD brought civilians from occupied countries into Germany in order to place them before secret courts and sentence them there.

On 7th December, 1941, Hitler issued the so-called "Nacht and Nebel" decree. According to this decree persons who had transgressed against the Reich or against the occupying power in the occupied areas would, as a measure of intimidation, be taken to the Reich where they were to be put before a special court. If, for any reason whatsoever, this was not possible, the transgressors were

[Page 73]

As may be seen from the distribution list in Document 833- PS, this order went only to the offices of the Wehrmacht and not to the offices of the Gestapo - with the exception of Amt IV of the RSHA itself. The execution of this decree was a task of the Wehrmacht, not of the Gestapo. According to directives contained in Document 833-PS, it was for the Counter-Intelligence offices to determine the time of arrests of individuals suspected of espionage and sabotage.

In the Western areas, for they were the only ones concerned here, this order was to be carried out therefore by the Wehrmacht which exercised police power through its own men or those of the Security Police who were directly subordinated to the Wehrmacht commanders-in-chief.

Only to that extent did the Security Police participate in the execution of this order. The Gestapo, which was numerically very weak in the occupied Western areas, was only involved to the extent that the RSHA established a Stapo office which had to take charge of those arrested. Through the Stapo offices, in agreement with the competent Counter-Intelligence offices, the details of the deportation to Germany were determined, particularly in cases where it still remained to be decided whether transport was to be conducted by the Secret Field Police, the Field Gendarmerie, or by the Gestapo. The Gestapo had no other tasks assigned to it by the "Nacht and Nebel" decree.

Just how active Gestapo officials or Gestapo offices actually were in the execution of this decree has not been determined in these proceedings. On the contrary, according to the testimony of witness Hoffman, it has been established that Amt IV rejected this decree and that it was not applied at all in Denmark for instance.

As this decree was to be kept strictly secret, and as it emanated from the highest Wehrmacht offices, we may assume with assurance that only the most intimate circle of individuals, those charged with its actual handling, knew the contents of this decree and its significance. The officials of the Stapo offices charged with the transport received instructions to see that the arrestees were brought to a certain place in Germany without being told for what purpose or on the strength of what decrees the arrest had taken place.

If this were the case - details have not been established - you cannot hold the entire Gestapo responsible for the practice of turning over prisoners to some offices in occupied territory in order to take them under orders to Germany.

The portion of my speech dealing with the deportation of members of foreign States to Germany for the purpose of condemning them under summary proceedings and the arrest of kindred will also not be read by me, but I beg the Tribunal to take judicial notice of it.

I should now like to continue on Page 60, section 10.

The next point of the Indictment concerns the killing of prisoners upon the approach of Allied troops.

As a basis for this charge Exhibit USA 291 of 21st July, 1944, has been submitted. It is an order by the Commander of the Sipo and the SD for the Radom district through which he informs his subordinates of the order of the Chief of the Sipo and the SD in the Government General, that in the case of unforeseen developments which would make the transfer of the prisoners impossible, they should be liquidated.

The question to what extent these or similar orders have existed or were known elsewhere, and to what extent such orders were carried out, is not a matter for consideration. The essential question for me to consider, namely, the participation of the Gestapo, has not been fully determined. On the basis of the affidavits before me, and the statements by the witnesses Straub and Knochen, the Gestapo only in a few places had prisons of its own. As a rule, there existed only one police prison to be used by all local police branches. The administration and supervision

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May I be permitted to dwell on two cases which came up during the proceedings: The witness Hartmann Lauterbacher has given evidence concerning an order, in accordance with which the inmates of the prison at Hameln in Westphalia were to be killed upon the approach of the enemy. The person who issued the order however, was not a Gestapo official, but the Kreisleiter of Hameln who, for doing so, was sentenced to seven years' imprisonment by the Fifth British Division, and those who were to execute that order were not Gestapo officials, but prison employees, who, however, refused to carry it out.

The second case concerns the camps Muhldorf, Landsberg, and Dachau, in Bavaria. I refer to the evidence given by Bertus Gerdes, the former Gaustabamtsaleiter under Gauleiter Giessler of Munich (Exhibit USA 291). It states t April, 1944, [N.B. sic? 1945.] the inmates of the Dachau concentration camp and of the Jewish work camps Muhldorf and Landsberg were to be liquidated; i.e., to be killed by order of Hitler. It is certain that the order was not given to the Gestapo, and, above all, that neither of these actions was carried out, owing to the refusal on the part of the Luftwaffe and the witness Gerdes - for their exoneration this must be stated here. Thus, at least in this case, crimes did not take place the frightful planning of which alone severely shocks our deepest feelings. What is of importance for the organization of the Gestapo, which I represent, is something which it is my duty as its defense counsel to draw to your attention: The order was given to the competent Gauleiter in Munich, who was to discuss it with the head of the Gau Staff and the competent Kreisleiter. Never was there any mention that the Gestapo should be used for its execution.

Regarding the next point, the confiscation and dividing up of public and private property, I beg the Tribunal to take judicial notice of 1t and I shall continue on Page 63 of the original, section 12.

The prosecution accuses the Gestapo of having employed the third degree method of interrogation. I had already spoken about this when I discussed the question whether the methods employed by the Gestapo were criminal. At this point I have the following to say with reference to this accusation:

The documents submitted by the prosecution made it perfectly clear that it was only permissible to employ third degree methods of interrogation in exceptional cases, only with the observance of certain protective guarantees and only by order of higher authorities. Furthermore, it was not permissible to use these methods in order to force a confession; they could only be employed in the case of a refusal to give information vital to the interests of the State, and finally, only in the event of certain factual evidence.

Entire sections of the Gestapo, such as the counter- intelligence police and frontier police, have never carried out third degree interrogations. In the occupied territories, where occupation personnel were daily threatened by attempts on their lives, more severe methods of interrogation were permitted, if it was thought that in this manner the lives of German soldiers and officials might be protected against such threatened attempts. Torture of any kind was never officially condoned. It can be gathered from the affidavits submitted, for instance, numbers 2, 3, 4, 61, and 63, and from the testimonies of witnesses Knochen, Hermann, Straub, Albath, and Best, that the officials of the Gestapo were continuously instructed during training courses and at regular intervals, to the effect that any ill-treatment during

[Page 75]

Then I beg official notice be taken of the subsequent pages and I shall continue on Page 65. Discussion of the crimes of which the Gestapo is accused leads me now to the third and last group - Crimes Against Humanity.

The prosecution alleges that the Gestapo, together with the SD, had been the foremost instrument for the persecution of the Jews. The Nazi regime was said to have considered the Jews as the chief obstacle to the "police State" by means of which it had intended to pursue its aim of aggressive war. The persecution and extermination of Jews is supposed to have served this aim too. The National Socialist leaders had regarded anti-Semitism as the psychological spark to inflame the populace. The anti-Jewish actions had led to the murder of an estimated six million human beings.

Truly a shattering accusation. What has been unveiled during this trial, and confirmed by the witnesses Hoess and Ohlendorf, forms the basis of a guilt which, unfortunately, will for ever adhere to Germany's name. Yet what must still be examined after these sad facts have been ascertained is the question as to the extent to which the Gestapo has participated in the persecution and extermination of Jews.

An examination which will lead to correct results is only possible if a differentiation as regards time is made concerning the activity of the Gestapo.

After the seizure of power, the Hitler Government had published a number of penal laws concerning the Jews. As far as these legal regulations contained penal clauses, possibly necessitating the employment of force by the police, the Gestapo may, under certain circumstances, have been connected with them. Infringements of such penal laws by Jews were comparatively few, and only the Nuremberg laws announced in 1935 caused increasing police activity, in which, however, during the first period, every case was handed to the proper courts for the passing of sentences. A change only occurred in the last years of the war. That the Gestapo began to act in these cases cannot be held against it because it, too, had to comply with the existing laws of the State, that is to say, it had to obey the orders of the State just as the soldier must obey orders.

Apart from that, other administrations, such as the Administration of the Interior of the Reich, the Finance Administration, and the Municipal Administration had, to a much greater extent than the Gestapo, become active against the Jews, that is to say, regarding their personal legal status as well as their property, houses, etc., those administrations are not being accused here.

Through the excesses of November, 1938, the Jewish problem became considerably more acute. It has been ascertained beyond doubt that this revolting action did not originate from the Gestapo. In fact, the prosecution implicates the Gestapo only to the extent that it did not intervene. Information on this point is contained in the testimony of the witness Vitzdamm, according to which during the conference on the 9th November, 1938, in the evening, in Munich, with Gestapo chiefs present, Heydrich declared quite openly that this action did not have its origin in the Gestapo. Over and above this, he explicitly forbade the Gestapo to participate in the action, and gave instructions to the Gestapo chiefs present to return to their departments at once and take all steps to stop the action. The contradiction contained in this testimony and the contents of Heydrich's teleprint letter, sent to all Gestapo departments during that night (Exhibit USA 240), can be explained by the fact that between this conference of Heydrich's with the Gestapo chiefs and the issuing of the order, a development had taken place which could only be limited but no longer stopped. When the Gestapo offices received Heydrich's circular, the holocaust of senseless destruction had already swept over Germany. Nothing remained to be done but the prevention of further excesses; that was done.

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