dtufail/nuremberg-trials-corpus huggingface dataset:
DR. BERGOLD: Unfortunately, a legend has already been woven around Bormann's personality, his activity, and his survival. But for the sober judgment of jurists legends are not a valid basis for a verdict free from any doubt. In view of the innovation created by the Charter-completely novel in the history of law of all times and all nations-in passing a final, irreversible sentence upon an absent defendant, I beg the High Tribunal to make use of their right to adopt such a procedure only after having considered the hitherto existing legal concepts and, especially when examining the case, to consider the prerequisites set down in a precise manner by Russian law. I therefore expressly propose that the Tribunal decide either to suspend the proceedings against the Defendant Bormann because of his proved death, or to postpone his trial until he is personally heard and can personally state his case and that the Tribunal make no use of its right according to Article 12.
THE PRESIDENT: I call on Dr. Kubuschok on behalf of the Defendant Von Papen.
DR. EGON KUBUSCHOK (Counsel for Defendant Von Papen): Before beginning my final plea I should like to submit to the Tribunal a few completed interrogatories which have since been received and of which some have also been translated. Since I refer to them in my final plea, I should like to submit them now.
THE PRESIDENT: Yes, Dr. Kubuschok.
DR.KUBUSCHOK: First of all I submit the completed interrogatory which has been received from the witness Tschirschky as Document Number Papen-103. I now submit a copy in English and in French. On this occasion may I draw the attention of the Tribunal to the fact that Tschirschky was the secretary of the Defendant Von Papen who, at the time when he was in Vienna, was called to Berlin by the Gestapo and then emigrated to Great Britain, where he has presumably obtained British citizenship by now. The correspondence with reference to this Tschirschky case was the subject of the cross-examination. With reference to the numerous questions dealing with Papen's vice-chancellorship and his activities in Vienna, the witness has expressed himself in great detail and in all cases answered in the affirmative. Presumably the Tribunal do not want me to discuss these questions in detail now. The copies submitted to the Tribunal will be sufficient. But perhaps I could quote the last paragraph from Question 1: "Regarding his relation to the NSDAP, I can say that during the time when I was working with Von Papen, Von Papen's attitude was a negative and, in fact, a hostile one in every respect." It appears important to me to refer to the answer to Question 2, which deals with the safety measures during the formation of the Government on 30 January...
THE PRESIDENT: Dr. Kubuschok, the Tribunal does not wish you to comment twice on the interrogatory. If you want to comment upon it to the Court in your speech, well and good. You comment now as you put it in, and then presumably you may make some observation later on in your speech.
DR.KUBUSCHOK: Mr. President, during the plea I will refer only very briefly to the special questions answered in this interrogatory. On the whole I do not refer to them in my plea. In my plea I merely give a summary of the answers, but I do not deal with the questions themselves again.
THE PRESIDENT: Dr. Kubuschok, the Tribunal thinks the appropriate course for you to take is to put in these interrogatories now, and when you deal with them in your speech, you can refer to any particular passage that you want.
DR. KUBUSCHOK: Yes. In its present written form the reference is very brief and does not even consist of a sentence. Besides . . .
THE PRESIDENT: When you get to it.. .
DR. KUBUSCHOK: Shall I read it then?
THE PRESIDENT: Yes.
DR. KUBUSCHOK: Very well. I have submitted the completed interrogatory of  Tschirschky as Document Number Papen-103 and then the completed interrogatory of Archbishop Groeber as Document Number Papen-104. Groeber has to do with the conclusion of the Concordat. I am also submitting the interrogatory of Archbishop Roncalli as Document Number Papen-105, and finally, the interrogatory from the Polish Ambassador Jan Gavronski, which is Document Number Papen-106. These are documents which I received already translated. In addition I would like to ask the Tribunal to allow me another document, which in spite of all my efforts I have not yet been able to have translated. It is an affidavit from a foreign correspondent, Rademacher von Unna. He had transmitted in a letter to my colleague Dr. Dix, on 29 May 1946, an affidavit for Papen which arrived here about 3 weeks ago. Of chief interest in this affidavit is one paragraph. I should be most grateful to the Tribunal if I could read the paragraph so that the Tribunal would be in a position to see if this affidavit is relevant, and if so, to permit me to submit this document. Then I would submit the original, and the translation could be supplied as soon as completed.
THE PRESIDENT: You have not shown it to the Prosecution yet, have you?
DR.KUBUSCHOK: I had submitted the German text at the time, but now it has been in the Translation Division for 2 weeks, and I have not been able to get it yet. I have already mentioned the document during the last session when we discussed evidence, and the Tribunal informed me that I should submit it on another occasion, when the matter came up for discussion.
THE PRESIDENT: Is it long?
DR. KUBUSCHOK: It is not long. The document is a page and a half, and I will read a paragraph which is shorter than half a page. Only that paragraph is of real importance to me.
THE PRESIDENT: Does the Prosecution object to this?
MAJOR JONES: My Lord, I have not seen a copy of this document, but we have no objection in principle; I have not seen the document myself, and it is a little difficult to give any opinion as to whether we would object, if we had the opportunity of examining it.
THE PRESIDENT: Dr. Kubuschok, perhaps the best would be for you to read the document and the Prosecution can move to strike it out of the record if they object to it.
MAJOR JONES: Yes, My Lord. That would be quite a convenient course for the Prosecution, My Lord.
DR. KUBUSCHOK: I shall read from that affidavit from Rademacher von Unna, dated 29 May 1946, which was executed in Milan, half of the penultimate paragraph. The executor of the affidavit in this communication is referring to a statement made by Von Papen which is worded as follows: "He, Papen, would, however, not allow himself to be deterred by anybody from carrying out his mission in the way he himself understood it: to be an intermediary and peacemaker; and therefore he would show anyone the door who might wish to misuse him in Austria for obscure purposes. "In this connection it is worth mentioning that a member of the Austrian Government, a state secretary whose name I have forgotten, was making efforts to establish personal, but secret, contact with the German Ambassador in order to offer him his services for the German cause. Herr Von Papen turned down this offer, giving as his reason the fact that he refused to participate in conspiracies which were directed against the official policies of the Ballhausplatz. Up to now he had attempted to co-operate openly and loyally with the Federal Government; and he, on his part, would not use any other means." As an explanation I should like to add that the member of the Austrian Government who is mentioned here is Neustaedter-Sturmer. Your Lordship, may it please the Tribunal, Papen is accused of taking part in a conspiracy to commit a crime against peace. With respect to time the Prosecution limit the discussions of the facts of the case to the termination of his activity in Vienna. They admit that as far as the subsequent period is concerned, especially during his activity as Ambassador in Ankara, no indications were found to support the accusation. In other words, according to this viewpoint Papen is said to have taken part in the preparatory actions for unleashing a war of aggression-which actions the Prosecution have placed very far back chronologically-but he is not said to have actively participated in the immediate preparations and in the crime against peace itself.
DR. KUBUSCHOK: The Prosecution deal with Papen's activity as Reich Chancellor in the last pre-Nazi Cabinet, with the part he played as Vice ChancelIor in Hitler's Cabinet until 30 June 1934, and with his activity as Minister in Vienna. They were faced with the task of proving that during this period preparatory actions for a crime against peace actually took place, and that Papen, in full recognition of these aims, collaborated in the preparations. Since the counts of the Indictment deal with a field of activity which is in itself a legal one, and since the criminal element cannot be introduced into the individual acts except in the direction of their aims, judgment of the Papen case lies essentially in the subjective sphere. The Prosecution are faced with the fact that Papen's own views, which often came to light, and the policy which he actually pursued cannot be made to agree with the interpretation given by them. Therefore, they seize upon the premise that he is a double-faced opportunist who has sacrificed his real sentiments, or those displayed, to the existing conditions of the day and to Hitler's will. In consequence, it must be the task of the defense to elucidate his personality in order to prove that Papen's actions and statements follow a uniform, consistent line and that his entire attitude de facto was such as to preclude connecting him with the offenses of the Charter and that those of his actions which are under discussion must have been undertaken in pursuit of other aims than those which the Prosecution think they can recognize. Furthermore, the defense will outline Papen's entire political activity with regard to its legality; and within the framework of this activity it will deal with the actions considered punishable by the Prosecution and will finally submit counterevidence showing that he actively worked against a political development as represented by the facts brought forward in this Indictment.
DR. KUBUSCHOK: We shall arrive here at a just evaluation only if the question of political expediency and correctness is left out of discussion and if we accept the politician as he reveals himself to us with the opinions and attitudes derived from heritage and tradition. Moreover, an essential element in judging fairly will be the necessity of eliminating what we have learned during the Trial concerning later years and this later period. We shall have to direct our consideration only to the time of the actions themselves, and only then shall we obtain a clear picture of what Papen could see and expect at that time. The Prosecution gives the date of Papen's initial participation in the conspiracy as 1 June 1932, the date of his appointment as Reich Chancellor. However, it does not answer the question as to what circumstances are to indicate to us Papen's entry into the clique of conspirators alleged to have been already in existence. Indeed, it is impossible to give an answer to this. Papen's activity as Reich Chancellor cannot be regarded in any way as activity having to do with a Hitler conspiracy. The idea behind the formation of the Cabinet, the entire leadership of the Government during his chancellorship, and finally his departure from office are too clear to allow us to read into them a promotion of National Socialist ideas, a paving of the way for National Socialism, or even participation in a conspiracy allegedly already in existence. The Papen Cabinet was formed at the time of an unusual economic, political, and parliamentary depression. Unusual means had already become necessary under the preceding Cabinet. They were to be continued now, in part on entirely new lines. In times of unusual crises a parliamentary legislative body probably always offers certain difficulties. Therefore, even in the days of Bruening's Cabinet, the Reichstag was practically completely excluded from legislation which the Emergency Powers Law gave to the Reich President. It was now thought necessary to work along completely new lines.
DR. KUBUSCHOK: A cabinet of men who were experts in their own field but who were not bound to any party was to do away with these difficulties. Therefore the new Cabinet was intentionally created without the collaboration of parties. The task with which the new Government was faced and the program necessarily resulting from the conditions of the time brought with them, of necessity, an attitude hostile to National Socialism. To strike at the roots of the depression, government policy would have had to attack the causes for the growth of the National Socialist movement. These consisted of discontent with economic conditions and the political situation abroad. But on the other hand one could think of doing peaceful reconstructive work of any lasting benefit only if some modus vivendi could be found with the National Socialist Party. The Party had not only constitutional power practically to paralyze every government activity; but with nothing more than influence on the masses by its propaganda it promised amelioration of domestic political conditions, the first prerequisite for far-reaching economic measures. Papen was faced with this situation in the last days of May 1932, when to his complete surprise he was commissioned by Hindenburg to form a presidential cabinet. With regard to his governmental activity, I wish to limit myself in my defense against the Indictment to the following details: The formation of the Cabinet of 1 June 1932 took place contrary to previous parliamentary custom without any previous consultation with the National Socialist Party. Epoch-making new economic laws subsidized by unprecedented financial appropriations were decreed in order to combat unemployment and at the same time to stifle at its source the seemingly invincible growth of the National Socialist Party. The aim of the new economic measures and the limited financial possibilities demanded application of these measures over a long period of time.
DR. KUBUSCHOK: The labor market was to be stimulated by the use of funds to consist of the future savings in public taxes if the measures were successful. The economic laws were based only on this exploitation of financial possibilities. No use was made of unproductive public work projects intentionally, nor was the labor market artificially stimulated by armament orders. These long-range economic measures, which could be successful only during an uninterrupted government policy, made their acceptance by the Reichstag appear especially urgent. In the field of foreign politics Papen continued the course which the Bruening Cabinet had pursued; and in so doing he placed particular emphasis on these points of honor, the recognition of which would have brought no damage to the other parties of the treaty but which would have taken from the National Socialist Party a powerful propaganda weapon to influence the masses. At the conference of Lausanne Papen openly explained the domestic political situation in Germany. He pointed out that ideological points mainly were involved, the nonrealization.of which would give the National Socialists the impetus they desired. He explicitly emphasized that his efforts were the last attempt of a nonradical Cabinet and that in the event his policy failed only National Socialism would profit from it. Papen strove to make the National Socialist Party take a share of the responsibility without wishing to entrust to it the key position of Reich Chancellor-a share in the responsibility which would have forced this party of negative politics to recognize actual conditions and which would thus have eliminated its attractive demagogic propaganda. These first attempts by Papen to bring about the participation of the National Socialist movement in the work of government are regarded by the Prosecution as paving the way for National Socialism.
DR. KUBUSCHOK: However, this is actually nothing but an attempt to find a basis of some kind for practical governmental work, an attempt which had to take into account the experience of the Bruening Cabinet and the development of the National Socialist Party. The fact could not be disregarded that already the Reich presidential election in March 1932 had brought Hitler 36.8 percent of all the votes. If one takes into consideration that Hindenburg was the opposing candidate and that Hindenburg's personality certainly caused many followers of the NSDAP to vote in this special case not in accordance with Party directives, the fact follows that a heretofore hardly known opposition party had arisen which outnumbered by far all the other parties and the antagonism of which was able to paralyze a priori any governmental activity. Hence followed, what was a foregone conclusion for Papen, the endeavor to get this party out of its status as an opposition party. This decision would be all the easier if the firm conviction were there that a share in the responsibility of government would turn the opposition party from its radical course and above all curb it considerably in its further development. The best evaluation of Papen's governmental activity, seen from the standpoint of the National Socialists, comes from the fact that it was the National Socialist Party which opposed Papen's decisive economic legislation and with its vote of no confidence-pronounced jointly with the Communist Party-brought about the end of the Papen Cabinet. The subsequent negotiations of the still acting Reich Chancellor, especially the events of 1 and 2 December 1932, show again his unequivocal attitude toward the NSDAP. Papen proposed a violation of the Constitution to Hindenburg. He wished to exhaust this last means in order to avoid a Hitler chancellorship. Schleicher opposed this solution on the grounds that in the event of a civil war, which might then break out, the Government would not remain master of the situation with the police and military forces at its disposal.
DR. KUBUSCHOK: In the light of these clear historical events, the attempt of the Prosecution to give a different interpretation to the facts and to these clearly recognizable unequivocal motives is of little avail. What then are the points which the Prosecution believe that they can marshal in the face of this? For one thing, Papen in his first negotiation with Hitler, and a short time after forming his Government, consented to rescind the order prohibiting the wearing of uniforms, a measure which, even if it had merely been taken as a political deal to have the Cabinet accepted, is quite natural according to parliamentary rules. Not only was the NSDAP the strongest party in the Reichstag, but due in particular to its general political influence in public life it constituted an instrument of power of the first order. Therefore, it could not a priori be driven into a state of opposition if it was intended at all to pursue a realistic policy of long duration and seriously to try to overcome the emergency through a revolutionary economic program. The repeal of the prohibition of uniforms was based also on more basic reasons, since it was a one-sided prohibition against a single party; the opposing organizations were not limited in this respect and the acknowledgment of the law of parity here could only eliminate dangerous propaganda material. The repeal of the prohibition of uniforms was furthermore by no means the announcement of a license for political acts of violence. It was reasonably to be expected that the warning of the Reich President, announced with the proclamation of the decree, that acts of violence resulting from the decree would bring about an immediate prohibition of the organizations as such, would prevent just such pernicious results. The claim of the Prosecution that the repeal of the prohibition concerning uniforms was the main cause of the increase in the number of National Socialist seats at the July election is completely at variance with the facts.
DR. KUBUSCHOK: I refer to the already-mentioned result of the Reich presidential election of March 1932, at which the real situation did not even become completely manifest because of the fact that Hindenburg was the opposing candidate. The election of 21 July 1932 brought 13,700,000 National Socialist votes, whereas in the Reich presidential election of 10 March 1932 Hitler had already received 13,400,000 votes. There are no grounds whatsoever for assuming that the appearance of uniforms, which, incidentally, had been replaced earlier by camouflage standardized clothing even during the period of prohibition, might have had any determining influence on the outcome of the elections. Much more important and in a negative sense more decisive for the outcome of the elections was certainly the general prohibition of political parades and demonstrations proclaimed by the Papen Cabinet at the beginning of the election campaign. Public meetings and political parades are the most important expedient for a demagogically led party. To lose this possibility just before the election was undoubtedly a much greater loss for the NSDAP than the previous advantages it had received in the form of permission to wear uniforms. In the letter of 13 November 1932 in which Papen again tries to induce Hitler to participate in the Government, the Prosecution see an effort, undignified in its form and blameworthy in its essence, to smooth the path of National Socialism to power. They forget that Papen conducted the November elections in sharp opposition to the NSDAP, because he tried to remove the Party from the key position in which it could not, without Hitler, numerically form a majority with the parties from the Social Democrats to the parties of the extreme right. They forget that this result had not been achieved, that the key position even with 196 seats remained with Hitler and that, therefore, it was necessary to make another attempt to win Hitler over for a presidential cabinet under some conservative chancellor.
DR. KUBUSCHOK: They overlook in this respect that Papen's proposals here again had the definite aim of excluding the NSDAP from the Reich chancellorship. For National Socialism a cabinet under a conservative politician, who would have had to determine the principles of the policy in line with the Constitution, would only have permitted the Party's influence to be felt in this or that department; but in return for this influence it would have been obliged to share the responsibility through its participation in the government. Seen in retrospect from the standpoint of the opposition to National Socialism one could indeed have welcomed nothing more enthusiastically than just such a participation by the Party in the government, limited in influence and sharing the responsibility. The end of an opposition policy which was so tremendously favorable for propaganda purposes would undoubtedly have stopped the growth of the National Socialist movement and the conversion of its radical elements. To write the letter in a polite form was the official duty of the Reich Chancellor toward the leader of the strongest party in the Reichstag. It is a foregone conclusion that, in using this form and because of the purpose of the letter, the writer does not refer to negative points only but also to those positive elements which could lead to co-operation in the Government. In order to be able to find the least indication during the period of Papen's Reich chancellorship of his sympathy with the ideas of National Socialism, the Prosecution have seen in the temporary elimination of the Prussian Government by the decree of 20 July 1932 intentions which in no way could pass the test of an objective examination. The so-called coup d'etat of 20 July, as the Prosecution term the execution of the decree of 20 July 1932, had not the slightest thing to do with promoting the National Socialists.