dtufail/nuremberg-trials-corpus huggingface dataset:
DR. SAUTER: In such a case, Gentlemen, would any state today grant its civil servants permission to examine whether the law proclaimed is contrary to the principles of humanity or to the fluctuating norms of international law? What state would tolerate the refusal of its civil servants for such a reason to execute a law already proclaimed? Or another example: Let us assume that the laws of a nation decree that certain new weapons are to be introduced into the armed forces, or that more warships are to be built, or that some preparations have to be made for war. Should an individual civil servant really have the right to refuse the execution of the law, even perhaps to sabotage its execution, and then to say, by way of explanation, that in his personal opinion concerning international law it involved the preparation of an aggressive war, consequently an international crime? The Tribunal will have to decide these legal problems. But Funk may point out in his own defense the fact that by reason of his entire ideology and background it was especially painful to him to issue these executive instructions, although he believed he was only doing his duty as a civil servant.
DR. SAUTER: In this connection I wish to remind you of Funk's circular of 6 February 1939 (Document 3498-PS, Trial Brief Funk, Page 19), where he emphasizes to his officials that it was their duty to "insure that it was carried out in a correct manner in every respect" and where he already feels impelled to disclaim personal responsibility for these measures by expressly emphasizing: "How far and how rapidly the powers conferred by the Four Year Plan are to be exercised will depend on the instructions to be given by me in accordance with the directives of the Delegate for the Four Year Plan." This special reference made by the Defendant Funk to the legal decrees of the Four Year Plan, which was authorized to promulgate laws, originated in the defendant's desire to express formally and solemnly, and to establish for the future, the fact that in issuing the executive instructions in 1938 he was a victim of his obedience to the State, a victim of his loyalty to the laws of the State to which he had sworn allegiance.
DR. SAUTER: Funk's circular of 6 February 1939, already mentioned on Page 19 of the trial brief, clearly expresses the qualms of conscience which had gripped Funk in those days, although he had not incriminated himself-qualms which, during his interrogation by an American officer on 22 October 1945, led to his complete nervous collapse, so that Funk was unable to restrain his tears and told the interrogating officer: "Yes, I am guilty; I should have resigned at that time." These same qualms of conscience gripped the defendant throughout the entire Trial and are still haunting him; and we remember that in the session of 6 May 1946, when this point was discussed, Funk was so deeply shaken that he could hardly continue talking and finally declared here before you, Gentlemen, that at that moment he fully realized that this, meaning the atrocities of November 1938, was the starting point of the chain of events leading to those horrible and frightful things of which we have learned here, some of which he too had already heard of during his imprisonment, and which culminated in Auschwitz. He felt, as he said during his interrogation on 22 October 1945, "deep shame and heavy guilt," and he still feels it today; but he had put the will of the State and the laws of the State above his own feelings and above the voice of conscience since he, as a civil servant, was tied by duty to the State. He felt these ties all the more strongly as these legal measures were particularly necessary for the protection of the Jews in order to save them from losing their rights completely, and from suffering further despotism and violence. These are the very words of the Defendant Funk; and they represent his actual feelings. Today Funk still feels that it was a terrible tragedy that he of all people was charged with these things-he who never during his entire life said a spiteful word against a Jew, but had wherever he could always worked for tolerance and equality for the Jews.
DR. SAUTER: If during his interrogation on 22 October 1945 Funk said: "I am guilty," it need not be investigated here whether the defendant intended these words to apply to his criminal guilt, or only to a moral guilt which he saw in the fact that he had remained in an office which compelled him to carry out laws incompatible with his own philosophy of life. Funk was not in a position to decide for himself the complicated legal question of whether an official of an internationally acknowledged state can be punished at all if he only carries out laws passed in accordance with the legal constitution of this state. For the Defendant Funk his "guilt" did not lie in the fact that he had signed the executive instructions in November 1938, since this had been his duty as an official, rather did he consider himself guilty because he had remained a member of the Government although he found the acts of terror which had occurred intolerable, and abhorred them; he was not involved in the "conflict of conscience," of which he spoke when he was interrogated, because he acted according to the laws which he considered necessary under the conditions prevailing at the time. This conflict was a result of the fact that he had not, in this difficult situation, listened to the voice of his conscience and had not resigned his ministerial office. But the decisive reasons for his attitude and his final decision to remain in office in spite of his feelings about the matter were certainly not material considerations. His reputation as a journalist and his abilities as such would easily have enabled him to find another suitable position. Much is to be said for the opinion that the Defendant was held in office above an by the thought that his resignation would in no way improve matters, but that on the contrary the administration would become still more radical under an unsuitable and fanatical successor, while by staying in office he might hope to alleviate much distress.
DR. SAUTER: These considerations, which may have guided the Defendant Funk in the first place, were certainly correct up to a point. His State Secretary, Dr. Landiried, at least has testified that later on too Funk often expressed serious misgivings concerning the action taken against the Jews in November 1938 and showed very strong disapproval of all excesses and infringements of the law committed by various Government agencies in carrying out the action. Funk could talk openly to his confidant Landfried, and he often complained to him that he had no power to prevent such excesses. But, as he said to Landiried: "We of the Ministry of Economics should take particular care to see that no one makes illicit profits out of the Aryanization-that is, the transfer to non-Jewish ownership- of business firms." And Ministerialrat Kallus described in his deposition of 19 April 1946 the various measures taken at that time by Funk to protect the interests of Jewish owners. Kallus also told us that Funk even made personal efforts to insure that his orders were carried out by his subordinates in a proper manner. Gentlemen, thus a sense of duty on the one hand, and humane feeling on the other, were the motives which kept the defendant in office and thus brought him into a situation where he is today charged with criminal action. Mr. President, I am now coming to a new subject and I have altogether about 15 more pages. Does the Court wish to adjourn now? It is 6 minutes to 4.
THE PRESIDENT: Can you finish it by that time, Dr. Sauter?
DR. SAUTER: There are 15 more pages; I should say about 8 or 9 minutes. On further thought, Mr. President, it will take about half an hour.
THE PRESIDENT: We will adjourn at this time. [The Tribunal adjourned until 15 July 1946 at 1000 hours.]
MARSHAL: May it please the Tribunal, the Defendant Ribbentrop is absent today.
PRESIDENT: Would it be convenient to Counsel for the Prosecution and the Defense if at 2 o'clock today we were to deal with those interrogatories and affidavits which have come in since the last applications were made?
SIR DAVID MAXWELL-FYFE: (Deputy Chief Prosecutor for the United Kingdom): My Lord, it would be perfectly convenient for the Prosecution.
THE PRESIDENT: Dr. Sauter, do you think it would be convenient for the Defense Counsel to deal with those matters at 2 o'clock?
DR. SAUTER: Certainly, Mr. President; I will inform the other defense counsel that these applications will be discussed at 2 o'clock.
DR. RUDOLF DIX (Counsel for Defendant Schacht): I agree with my colleague, Dr. Sauter, that this should be done. But if this is done at 2 o'clock it will interrupt my final speech. I should be very grateful if it could be done immediately after Dr. Sauter finishes his speech, so that I could present my plea coherently. It would be very awkward if I were interrupted.
THE PRESIDENT: Certainly, Dr. Dix. Very well; we will do it immediately after Dr. Sauter's plea.
DR. SAUTER: May I speak now, Mr. President?
THE PRESIDENT: Yes, Dr. Sauter.
DR. SAUTER: May it please the Tribunal; before the adjournment on Friday, I explained in conclusion the position and the attitude of the Defendant Funk with respect to the Jewish question. On this occasion I pointed out that in connection with the executive instructions issued late in 1938 on the legal exclusion of the Jews from economic life' the Defendant Funk acted only in his capacity as a Reich official and in the performance of the duties of that office. On Friday, I finished my statements in that respect with the words: It was a sense of duty on the one hand, and humane feeling on the other, which kept the Defendant Funk in of lice and thus brought him into a situation where he is today charged with criminal action. Now, Gentlemen of the Tribunal, I turn to the last chapter of my appraisal of the Defendant Funk, of his motives and actions, and will now deal with the gold deliveries by the SS to the Reichsbank, and with the relation of the Defendant Funk to the concentration camp question. That is to say, I am going to refer to Page 58 of the written speech which has been submitted to you. It is a peculiar tragedy in the life of the Defendant Funk that he was not only forced by fate in the year 1938 to issue executive instructions for laws which he always inwardly condemned and repudiated more than anybody else' but that once again, in the year 1942, he became involved in a particularly horrible manner with Jewish persecutions. I am thinking now of the deposits made by the SS in the Reichsbank, that is to say, the matter on which a film was shown here of the steel vault of the Frankfurt Branch of the Reichsbank and about which two witnesses have testified, namely, Vice President Emil Puhl and Reichsbank Councillor Albert Thoms.
DR. SAUTER: The Defendant Funk was already examined about this matter of the gold deposits at the preliminary proceedings on 4 June 1945, (see 2828-PS); at that time, however, no details were disclosed to him, and Funk made the same statement then as he did before this Tribunal, namely, that he was only briefly told about the matter in question on a few occasions, and that he had not attached any importance to it at all. That is also the reason why the Defendant Funk could not at first recall those happenings very well during the proceedings here. He did not know anything more about them than he had already said. Nevertheless, Gentlemen of the Tribunal, Funk had to expect that this matter would be brought up in the Trial, at any rate in the cross-examination. And this was actually done by the American Prosecution on 7 May 1946, who submitted an affidavit by the witness Emil Puhl, Vice President of the Reichsbank, in which at first sight Puhl appeared to make serious accusations against the Defendant Funk. Now it is remarkable that since the beginning of this Trial the Defendant Funk has repeatedly referred to this very witness Puhl for various points, and that since December 1945 he has repeatedly requested that the latter be interrogated. Measured by ordinary human standards, Funk would certainly not have done this if he had had a bad conscience and had reason to expect to be compromised in the most damaging way by his own witness regarding the concentration camp matter. But the oral examination of the witness Emil Puhl here before this Tribunal showed beyond a doubt that Puhl could no longer in any way maintain the incriminating statements in his affidavit, as far as the character of the Defendant Funk and his knowledge of the particulars of the SS deposits were concerned.
DR. SAUTER: It is true that Funk, as he recalled after Puhl's testimony (and concerning this I submitted on 17 June 1946 a corrected copy of his sworn testimony), was once asked by ReichsFuehrer SS Himmler whether articles of value which had been seized by the SS in the Eastern Territories could be deposited in the vaults of the Reichsbank. Funk answered this question in the affirmative and told Himmler that he should delegate somebody to discuss the matter with Vice President Puhl, and settle the details. Hammer at that time told Funk that his GruppenFuehrer Pohl could do this and that the latter would get in touch with Vice President Puhl. That was all that Funk at that time, I believe in 1942, had discussed with Reichsfuehrer SS Himmler and which he on that occasion also repeated to his Vice President Puhl who was actually directing the business of the Reichsbank and therefore responsible for this affair. There was nothing extraordinary in this question of Reichsfuehrer SS Himmler, at least nothing which Funk could recognize. For, as far as Funk knew, the SS was at that time in charge of the entire police service in the Occupied Eastern Territories. For that reason it often had to confiscate valuables just as the ordinary police did in the interior, that is, within Germany. Moreover, all gold coins, foreign currency, et cetera, in the Occupied Eastern Territories had to be turned in according to law, and these deliveries in the Eastern Territories were naturally made to the SS, because there were no other state offices equipped for that purpose. Funk also knew that the concentration camps were under the direction of the SS and thought that the valuables which were to be given to the Reichsbank by the SS for safekeeping belonged very probably to that category of valuables which the entire population was obliged to deliver.
DR. SAUTER: Finally, as has been ascertained in the course of this Trial, the SS was constantly just as much engaged in the fighting in the East as the Armed Forces, and like the latter the SS had also collected so-called booty in the abandoned and destroyed towns of the East and delivered it to the Reich. Therefore, there was nothing at all extraordinary for Funk in the fact that the SS possessed gold and foreign currency and brought it in for delivery in the regular way. Now, the essential point in this whole business is the question whether the Defendant Funk knew or saw that among the objects delivered by the SS there were unusual quantities of gold spectacle frames, gold teeth, and similar objects which had come into the hands of the SS not through legal but criminal confiscations. If-and I emphasize, Gentlemen, if-it could be proven that the Defendant Funk had seen such objects in the deposits of the SS, this would naturally have caused him some surprise. But we heard the witness Puhl say in the most positive way that the Defendant Funk had no knowledge of this and, indeed, that Vice President Puhl himself knew no further details about it. In any case Funk never saw what particular gold objects and what quantities the SS delivered. Now, it has been said against Funk that he himself entered the vaults of the Berlin Reichsbank several times, and from this one felt entitled to draw the conclusion that he must have seen what objects had been delivered to the Reichsbank by the SS. This conclusion is obviously wrong because the evidence shows that during the entire period of the war Funk went to the vaults of the Reichsbank only a very few times for the purpose of showing these vaults and the bullion of the Reichsbank stored there to special visitors, especially foreign guests. But on those few visits to the vaults he never saw the deposits of the SS. He never observed what in particular the SS had deposited in his bank.
DR. SAUTER: This is established beyond doubt, not only by the sworn statement of the Defendant Funk himself, but also by the oral testimony of Vice President Puhl and Reichsbank Councillor Thoms here in this courtroom. This Prosecution witness, who is certainly free from suspicion and who by his own admission volunteered to testify, has declared here under oath that the valuables were delivered by the SS in locked trunks, boxes, and bags and were also stored away in these containers, and that Funk was never present in the vaults when the bank employees made an inventory of the contents of an individual box or trunk. The witness Thoms, who was in charge of these vaults, never saw the Defendant Funk there at all. Therefore, Funk neither knew of the proportions which the deliveries of the SS gradually assumed in the course of time, nor did he know that the deposits contained jewelry pearls, and precious stones, and also spectacle frames and gold teeth. He never saw any of those things and none of his officials ever reported to him about them either. Now it is the opinion of the Prosecution that Funk, as President of the Reichsbank, surely must have known what was kept in the vaults of his bank; but this conclusion is also evidently mistaken and does not take into consideration actual conditions in a large central issuing bank. Funk, who was also Reich Minister of Economics, had in his capacity as President of the Reichsbank no occasion whatever to bother about the deposit of an individual customer, even if this happened to belong to the SS. As President of the Reichsbank he did not bother about any deposits of other clients of his bank either, since this was not his job. On only one occasion, following a suggestion of his Vice President Puhl, he asked Reichsfuehrer SS Himmler-this was during his second conversation with him-whether the valuables deposited by the SS in the Reichsbank could be converted into cash in the legal course of business at the Reichsbank. Himmler gave his permission and Funk passed this information on to his Vice President Puhl.
DR. SAUTER: But in this matter he was only thinking of gold coins and foreign currency, that is to say, of those particular valuables which had to be turned in to the Reichsbank as a matter of course in the German Reich and which could be and had to be converted into cash by the Reichsbank. The idea never occurred to Funk that the deposits might contain gold teeth or other such remarkable objects which had their origin in criminal acts in concentration camps. He heard about these things to his horror for the first time here in the courtroom during the Trial. The only remaining point in the statement of the witness Puhl which might excite a certain amount of suspicion, Your Honors, was the question of preserving secrecy, which in fact played a very important part indeed in the examination of the witness. Vice President Puhl stated here at the beginning of his testimony that the Defendant Funk had told him that the matter of the SS deposits must be kept especially secret. Funk, on the other hand, has always denied this in the most insistent manner and declared under oath that he never talked to Puhl at all about any such secrecy. Thus at the very beginning, here in the courtroom, we had one statement pitted against another, oath against oath. Vice President Puhl's statements regarding this point, however, seemed somewhat contradictory from the beginning For on one occasion Vice President Puhl said that this secrecy had not struck him as anything extraordinary, since after all secrecy is preserved about everything that occurs in a bank. In answer to a special question, Puhl then stated repeatedly that he did not notice at all that the Defendant Funk had supposedly spoken about preserving secrecy. When, however, the affidavit of the witness Thoms of 8 May 1945 was read and pointed out to the witness Puhl, the latter finally stated here under oath on 15 May 1946 that it was plainly visible from this affidavit that the desire for secrecy emanated from the SS. The SS considered it important that this business should be transacted secretly.
DR. SAUTER: The SS, as Puhl said, had been the ones originally responsible for the imposition of secrecy. This was the literal conclusion of the witness Puhl's sworn statement and at the end of it he again confirmed that the obligation for secrecy was desired and imposed by the SS. The initial contradiction regarding this point between the statements of the Defendant Funk and those of the witness Puhl was hereby completely eliminated, Your Honors, in favor of the defendant. Puhl himself could no longer maintain his original assertion that it was Funk who had ordered the SS deposits to be kept secret. Therefore, in arriving at your verdict, you must proceed from the premise that the statement of the Defendant Funk is correct in this point also and deserves preference, for he has declared under oath from the very beginning and with the utmost certainty that he himself knew nothing about keeping anything secret and that he had never spoken of any such secrecy to Puhl, either. Moreover, there was absolutely no reason for Funk to say anything to Puhl about any special secrecy, since Funk was obviously of the opinion that the valuables involved were only of the kind which had to be turned in and confiscated, and which came within the regular lawful business of the Reichsbank and need not be kept secret, regardless of whether these things which had to be turned in were the property of a prisoner in a concentration camp or the property of a free individual. It was never made clear by the evidence submitted why the SS on their part stressed the importance of preserving secrecy to Vice President Puhl and why, furthermore, the SS opened the deposit in the name of Melmer instead of in the name of the SS, and the Prosecution for their part did not attach any importance to clearing up this point. However, in any case, the demand of the SS for secrecy evidently did not strike Vice President Puhl as unusual any more than it did the witness Thoms who had nothing at all to do with the matter but who confirmed the fact that this secrecy was nothing unusual.