dtufail/nuremberg-trials-corpus huggingface dataset:
DR. GAWLIK: Keitel declared further that concerning the competencies of the SD an erroneous conception had existed which had led to the wrong interpretation of the abbreviation "SD." In this connection I also refer to the affidavit of the former Chief of the General Staff of the Luftwaffe, Koller (Document Number Jodl-58, Pages 179 and following, in Document Book Jodl). In this affidavit Koller reports upon a situation conference with Hitler. At this conference Hitler gave the order to turn over all bomber crews of the various Allied forces to the SD and to liquidate them through the SD. Then Koller describes a conversation he had with Kaltenbrunner after this conference. According to Koller, Kaltenbrunner made the following statement during this conversation: "The Fuehrer's conceptions are quite erroneous. The tasks, too, of the SD are constantly being misinterpreted. Such things are no concern of the SD." The French Prosecution has submitted a great number of documents in which the SD is mentioned. I have shown these documents to the witness Knochen, who was examined before the Commission. Knochen was the Commander of the Security Police and the SD in France. In connection with these documents he said that there had been a confusion in terminology, and that SD should be interpreted as "Field Police." To my question: "What does turning over to the SD mean?" the witness Knochen answered, and I quote: "that means transfer to the Executive Section IV of the Security Police." I showed the witness Dr. Hoffmann Document 526-PS before the Commission. Hoffmann was an official of the Security Police and never belonged to the SD. Document 526-PS concerns the carrying out of a Commando order in a Norwegian fjord. This report states: "Fuehrer Order carried out by SD." To my question to the witness Hoffmann, what was to be understood by SD, he answered literally: "Since this seems to be an executive measure, SD must here be interpreted as Security Police; the Wehrmacht often mixed up the two ideas." The Prosecution has furthermore submitted Document Number 1475-PS.
DR. GAWLIK: This is a report of the commander of the prison at Minsk, dated 31 May 1943, in which he reports that Jews had been brought into the prison by the SD, through Hauptscharfuehrer Ruebe, and that the gold bridges, fillings, and crowns had been removed from their teeth. In this connection I have submitted Affidavit Number SD-69 of Gerty Breiter, a stenographer employed with the Commander of the Security Police and the SD in Minsk. Gerty Breiter states that Ruebe was an official of the Gestapo, and that the SD in Minsk had nothing to do with Jewish affairs. The sole activity of the SD in Minsk was to make reports upon the general attitude and opinions of the public. There were no SD prisons in Minsk. This confusion in terminology is apparently due to the fact that the members of the SS special formation "SD" which, as I said in the introduction, was something entirely different from the SD Intelligence Service, wore the SS uniform with the SD insignia. In the territories occupied by Germany, all members of the RSHA, including all members of the Stapo and Kripo, even those who were not members of the SS or SS candidates, wore the SS uniform with the SD insignia. Thus every member of the Sipo was characterized as an SD man, and measures carried out by the Security Police were considered to be SD measures. I refer in particular to the Commission record and to the Court record (Session of 1 August 1946).
THE PRESIDENT: Did you say then that all members of the SS, including the Kripo and the Sipo, when they were working in the East were in the uniform of the SS with an SD badge on them?
DR. GAWLIK: Yes. The witness has given this in evidence, Your Lordship.
THE PRESIDENT: Go on.
DR. GAWLIK: In this connection I would point out that about 90 percent of all members of Aemter III and VI were unpaid, and only a small part of them belonged to the SS or were SS candidates (Affidavit Number SD-32). During the war a large number of the members of the SD, Aemter III and VI, were women. These persons were not entitled to wear the uniform of the SS formation SD. According to the subdivisions of the trial brief against the Gestapo and the SD, I shall discuss: a. The charge of Conspiracy b. Crimes against Peace c. War Crimes d. Crimes against Humanity. I shall now refer to the conspiracy charges. I still do not have Evidence III of the English trial brief against the Gestapo and SD. Aemter III and VI are accused of having participated in a conspiracy to commit crimes against peace, war crimes, and crimes against humanity. There are three possibilities for an organization to be in contact with a circle of conspirators: I. The organization can belong to the circle of conspirators. This presumes that all the members of the organization participated in the agreement or the secret plan to commit illegal actions or to carry out legal actions by illegal means. It must therefore be proved (a) that such a plan existed, and (b) that all members adopted this plan as their own (Archbold: Pleading, Evidence, Practice , Page 1426). Second possibility: Organizations can have the aim and the purpose of supporting participants in a conspiracy. For this is required: (a) A secret plan or an agreement; (b) the organization must objectively have pursued the aim of aiding one or more of the participants in the execution of the plan; (c) all members must have known of it and desired it. Third possibility: The organization can be used objectively by conspirators to carry out the secret plan without the members realizing it. In this case there can be no question of punishable participation of the organization, because the characteristic of factual culpability is lacking. The organization is merely an unpunishable tool and cannot be declared criminal.
DR. GAWLIK: On Case I the Prosecution has submitted that not all participated in the conspiracy, though all contributed to the offenses (Session of 20 December 1945). This indicates that the Prosecution does not want to contend that the organizations were participants in the conspiracy. I shall therefore not deal further with this question. The punishable support of a conspiracy, Case II, also requires (a) the existence of a secret plan, (b) knowledge on the part of the members. Therefore the existence of a secret plan and the members' knowledge thereof must also be proved. Hitherto it has in no way been shown that such a plan for the commission, of crimes against peace, war crimes, and crimes against humanity actually existed. This has already been presented in detail by counsel for the principal defendants and I do not want to repeat these statements, but I should like briefly to point out the following: A conspiracy cannot be considered proved until evidence is brought as to: time, place, persons among whom this common agreement was reached, and nature of the contents. Even if such a plan should have existed, it has in no way been shown that it was known to members of the SD, and that therefore they had in mind the purpose of supporting such a conspiracy with their activity. The Prosecution has derived the fact that such a conspiracy existed in particular from facts mentioned in the so-called key documents. The facts mentioned in these documents were, however, kept strictly secret and were known only to the persons immediately concerned with them. Members of the organizations which participated had no knowledge of these things; this can be assumed as being known to the Court. If the fact of a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity, arises from the key documents, the members of the SD did not know this, and therefore did not have the intention of supporting such a circle of conspirators with their activity.
DR. GAWLIK: The facts which the Prosecution produced to prove that members of the SD knew of a conspiracy cannot be regarded as "violent" assumptions, nor as "probable" assumptions, but at most as "light" or "rash" assumptions which are without significance (Archbold: Pleading, Evidence, Practice , 1938, Pages 404, 405). Furthermore, I believe that the examination of witnesses and the affidavits has brought proof that members of the SD had no knowledge that a secret plan for the commission of crimes against peace, war crimes, and crimes against humanity existed and that, therefore, there was no intention in the SD to support such a circle of conspirators with their activity. It is, thus, impossible to pass sentence on the SD for participation in a conspiracy, because proof is lacking that (a) a circle of conspirators did in fact exist, and (b) the members of the SD had knowledge of this fact and intended to afford assistance to such a circle of conspirators by their activities. Therefore, in this Trial before the International Military Tribunal it does not matter whether the SD supported the SS, the Gestapo, the Party, or individual persons of the State leadership, unless the Prosecution has brought proof of the prerequisites which I have indicated: (a) existence of a secret plan for the commission of crimes according to Article 6, and (b) knowledge on the part of the members of the SD. Furthermore, the factual submission of the Prosecution concerning the co-operation of the SD with the SS, the Gestapo, or other persons, requires correction. I have already explained that the SD did not form part of the SS, but that the Domestic Intelligence Service and the Foreign Intelligence Service were independent organizations. The question arises whether the independent organization of the SD aided the independent organization of the SS in pursuing its aims and tasks. The Prosecution have claimed that this was the case.
DR. GAWLIK: In refutation of this I wish to draw attention to the testimony of the witness Hoeppner and to the affidavit (Number SD-27) by Albert, who have stated that the SD could be considered an SS Intelligence Service only until the beginning of the year 1934, but that this task had been discontinued as from that date, so that the SD became the general Intelligence center for the State and the Party. These facts have been corroborated both by the witnesses Ohlendorf and Hoeppner and by the SS witnesses Pohl, Hausser, and Reinecke. As regards the position of the SD in relation to the Police, the Prosecution have maintained that the SD formed part of a uniform police system and that the two sections had been merged into a powerful, politically centralized police system (Session of 19 December 1945). Specifically, the SD did not become part of the Police or of a police system either by the appointment of Himmler as Deputy Chief of the Gestapo in Prussia, or the appointment of Heydrich as Chief of the Security Police and the SD in June 1936, or by the institution of the Reich Security Main Office (RSHA) in September 1939. 1 refer to the, statements of the witnesses Hoeppner, Roessner Wisliceny, and Best in connection with this subject. In refutation of the Prosecution's claim it must be established that the SD never formed part of the Police (Affidavits SD-2, 27, 28, 33, 34, 35, 61, 63), nor did the SD ever have to undertake police work in any sphere of life (Statement by Hoeppner, SD-2, 18, 63). As to organization, the position of the SD with regard to the Security Police within the Reich was different from that in the occupied territories. I refer to the Headquarters Manual of the United Nations, which I submitted as Document Number SD-70, where the organization of Aemter III and VI is correctly given, and also to the testimonies of the witnesses Best, K. H. Hoffmann, Hoeppner, Dr. Ehlich, Dr. Knochen, Straub and Affidavits Numbers SD-25 and 26.
DR. GAWLIK: They all show that within the Reich the agencies of the SD, Aemter III and VI, were always independent with regard to the Security Police. No connection between the SD and the Security Police was formed either by the Higher SS and Police Leaders or by the inspectors of the Security Police and the SD. The latter enjoyed personal privileges of inspection over the agencies of the Security Police and those of the, SD, and therefore they did have knowledge of some of the ordinances relating to any one of the agencies under their control. However, it is not permissible to conclude, from the simple fact that they issued or received some decree, that such decree was necessarily within the competence of the SD. The point is rather, as with all decrees of the Chief, the inspectors, and the commanders of the Security Police and the SD, whether they were dealt with by Aemter III and VI. This can be ascertained from the reference numbers. Only those decrees showing the reference numbers III and VI came within the scope of the Domestic Intelligence Service or the Foreign Intelligence Service and might be charged to the SD. As regards the Higher SS and Police Leaders I wish to refer to Affidavit Number SD-34, for the inspectors of the Security Police and the SD to Affidavit Number SD-35 and the testimony of Hoeppner. In the territories occupied by Germany the Security Police and the SD for purposes of organization were united under the commanders of the Security Police and the SD. The Domestic Intelligence Service was dealt with by Department III, the Foreign Intelligence Service by Department VI, while Department IV was the Gestapo and Department V the Criminal Police. Thus, one cannot speak of a uniform organization of Aemter III and VI in the Reich and abroad.
DR. GAWLIK: The Domestic Intelligence Service in Germany, the Foreign Intelligence Service in Germany, and the activities of the Stapo, the Criminal Police, and the SD in the occupied territories, united for organizational purposes under the commanders of the Security Police and the SD, represented different organizations. It must be noted that, as to their tasks, the Independence of Aemter III and VI in foreign countries was ensured (Affidavit SD-56). Special reference must be made to the relationship between the SD and the Gestapo. The Prosecution have suggested that the Gestapo was the executive organ, while the SD attended to espionage (Session of 19 December 1945). This description of the relationship between the Gestapo and the SD is not correct. Actually, it is hardly possible to define clearly the relationship between the Gestapo and the SD for the entire period from 1931 until 1945. It varied according to time and place. As regards the period before 1934, I have already shown that presumably there were no relations between the Gestapo and the SD, since at that time the SD was the Intelligence service of the SS. The decree of 1938, defining the functions of the two bodies, whereby the Gestapo was entrusted both with combating and detecting enemy activities, must have been of primary Importance. As far as the SD Hauptamt was concerned, this concluded the activities of its former Central Department II/1, which had dealt with enemy detection, in contrast to Central Department II/2, which provided an analysis of the domestic scene. The Central Department II/1 of the SD Hauptamt was accordingly dissolved (Affidavit SD-27). The Amt III of the RSHA, which is indicted here, was the former Central Department II/2, dealing with the analysis of the domestic scene (Affidavit SD-27). The activity of Central Department II/1, consisting of enemy detection, cannot be charged to Amt III.
DR. GAWLIK: The tasks and aims of Central Department II/1 were completely different from those of Amt III, and the former never was part of the latter; nor can it be regarded as the predecessor of Amt III, which had been the Department II/2 of the SD Hauptamt. The contradictory statements of witnesses as to the co-operation between the SD and the Gestapo can undoubtedly be traced to this evolution of the SD and the change in the tasks allotted to it. Actually, co-operation between Amt III, which had developed out of Central Department II/2, and the Gestapo was never any closer or more extensive than In the case of other authorities. However, the Central Department II/1 had never been an intelligence center for the Gestapo either, but operated entirely independently of that institution (Affidavits SD-16, to 19, 27, 55). Dr. Best, a witness for the Gestapo, has perhaps provided the best characterization of the relationship by stating that in those years experiments were continually being made with the SD. In trying to prove the close co-operation existing between the Stapo and the SD the Prosecution have mainly based their accusation on the book by Dr. Werner Best, Die Deutsche Polizei (Document Number PS-1852). In testifying, the author has explained that this was a private piece of work devoid of any official character; Best also stated that he had simply described a development with an eye to the future. The Prosecution have also referred to Documents 1956-PS, Das Archiv, and 1680-PS, the article, 10 Jahre Sipo und SD , and also to a statement by Heydrich on occasion of the Day of the German Police. The Prosecution have further mentioned Document 1638-PS, the decree of the Reich Minister of the Interior, dated 11 November 1938, on the co-operation of all offices of general and interior administration with the SD. In refutation of the interpretation of this decree, as given by the Prosecution, I wish to refer to the testimony of the witnesses Best and Hoeppner, and to Affidavit Number SD-36.
DR. GAWLIK: With regard to the testimony of the witnesses Albath, Oldach, and Huelf I refer to Affidavit Number SD-71 by Schraepel to Affidavit Number SD-36, Figure 4c, and to Number SD-28. In establishing the relationship between the Stapo and the SD I refer to the testimony of Ehlich, Roessner, and Hoeppner, and to Affidavit Number SD-70, Section 6. In connection with Exhibit Number RF-1540 I refer to the testimony of the witness Roessner. In substantiation of the fact that it may very well be correct that witnesses before the Tribunal, the Commission, or in their affidavits stated that the task of the SD had not consisted in supplying the Gestapo with material leading to the persecution of Political enemies, I am submitting two instances of evidence by persons who have not the slightest cause to give protection to the SD. The first concerns the affidavit given by Dr. Ritter, the well-known professor of modern history at the University of Freiburg. Dr. Ritter is an enemy of National Socialism and has never been a member of the Party or any of its organizations. He belonged to the Goerdeler Circle, and was to have been Minister of Culture in a cabinet to be formed by Goerdeler following 20 July 1944. Dr. Ritter's lectures were regularly recorded by the SD, Amt III. However, it is obvious from his affidavit that the SD failed to turn over the material collected against him to the Gestapo, although he was known to be an enemy of the regime. When Dr. Ritter was arrested in connection with 20 July 1944 his statements before the Gestapo could have been refuted by the material in the possession of Amt III, which however was not done. Document Number SD-71, which I have also submitted, is a letter referring to the Prosecution Document R-142, which has repeatedly been mentioned during these proceedings.
DR. GAWLIK: This is a letter by the local SD office in Kochem stating that the plebiscite of 10 April 1938 in Simmern had been checked and that It had been found that a clergyman, Wolferts, had voted "No." Wolferts has died in the meantime, but from a letter by his daughter it has been established that neither the SD nor the Gestapo took any steps against Wolferts on the grounds of his vote. Such activities of the SD, therefore, were not intended to provide the Gestapo with material leading to the persecution of political enemies. In connection with this document I also refer to the testimony of the witnesses Hoeppner and Roessner. At the same time I wish to draw attention to the fact that it was the task of the SD to co-operate with all authorities, as can be seen from Documents Number SD-3 to 8, which I have submitted. On the subject of the relationship between the SD and the Party the witness Hoeppner has spoken at considerable length. It is true that the SD was to keep the Party informed; a direct connection between the Party and the SD, however, has never existed (Document SD-15a, Affidavit SD-27). This has been established not only by the testimony of witnesses for the SD, but also from the statements of the witnesses interrogated on behalf of the Party; I refer to the testimony of Kuehl, Von Roedern, Biedermann, Schneider, Lauterbacher, Hirt, and Wolf. The witness Meyer-Wendeborn testified that the SD had developed on its own and had never received instructions. I also refer to the testimony of the witness Kaufmann, who was Gauleiter in Hamburg and stated that he was familiar with everything that occurred in his Gau with the exception of the activities of the Stapo and the SD. In support of their claim that the SD had secretly marked ballot sups in order to be able to identify persons voting in the negative or turning in invalid ballot slips in a plebiscite, the Prosecution have put in another document emanating from the local SD office at Erfurt and dated May 1938 (Document GB-541).
DR. GAWLIK: I would point to the fact that it was a local and therefore subordinate office, and by analogous reference to my Document Number SD-69 it may equally be assumed that nothing at all was undertaken with regard to persons voting in the negative. This, after all, is the essential criterion. These two documents are certainly not sufficient to provide proof for the fact that in general the SD was allotted the task of keeping a check on the plebiscites with a view to eliminating enemies of a conspiracy. As counter-evidence showing that these activities on the part of the local SD offices at Erfurt and Kochem were completely removed from the normal activity of the SD, I wish to refer to the Affidavit Number SD-27 by Albert, who was employed in the central office in Berlin. Albert has stated that the central office in Berlin never issued any instructions to affix secret markings to ballot slips in elections or plebiscites. As a matter of fact, there is no connection between the documents from Erfurt and Kochem. Erfurt calls for a report on probable negative voters before the election. Kochem reports after the election that persons belonging to the election committee in one small village of the area had marked ballot slips. This election committee had nothing to do with the local SD office. I also refer to the 196 affidavits for the entire territory of the Reich, which I have compiled in a list, and where it is stated that it was not the task of the SD to mark ballot slips or undertake similar action in order to detect negative voters. Such instructions or orders were never issued by the central office. The Prosecution have also suggested that the SD had exercised direct influence on the choice of Nazi leaders, and have submitted the affidavit by Dr. Hoettl (Document 2614-PS) in substantiation of their claim.