Opening address for the United States for Prosecution of Axis Criminality/Part 3

THE CONSOLIDATION OF NAZI POWER

We shall now consider the steps, which embraced the most hideous of crimes against humanity, to which the conspirators resorted in perfecting control of the German State and in preparing Germany for the aggressive war indispensable to their ends. The Germans of the 1920's were a frustrated and baffled people as a result of defeat and the disintegration of their traditional government. The democratic elements, which were trying to govern Germany through the new and feeble machinery of the Weimar Republic, got inadequate support from the democratic forces of the rest of the world. It is not to be denied that Germany, when world-wide depression was added to her other problems, was faced with urgent and intricate pressure in her economic and political life which necessitated bold measures.

The internal measures by which a nation attempts to solve its problems are ordinarily of no concern to other nations. But the Nazi program from the first was recognized as a desperate program for a people still suffering the effects of an unsuccessful war. The Nazi policy embraced ends always recognized as attainable only by a renewal and a more successful outcome of war. The conspirators' answer to Germany's problems was nothing less than to plot the regaining of territories lost in the First World War and the acquisition of other fertile lands of Central Europe by dispossessing or exterminating those who inhabited them. They also contemplated destroying or permanently weakening all other neighboring peoples so as to win virtual domination of Europe and probably of the world. The precise limits of their ambition we need not define for it was and is as illegal to wage aggressive war for small states as for large ones.

We find at this period two governments in Germany – the real and the ostensible. The forms of the German Republic were maintained for a time, and it was the outward and visible government. But the real authority in the State was outside of and above the law and rested in the Leadership Corps of the Nazi Party.

On February 27, 1933, less than a month after Hitler became Chancellor, the Reichstag building was set on fire. The burning of this symbol of free parliamentary government was so providential for the Nazis that it was believed they staged the fire [page 126] themselves. Certainly when we contemplate their known crimes, we cannot believe they would shrink from mere arson. It is not necessary, however, to resolve the controversy as to who set the fire. The significant point is in the use that was made of the fire and of the state of public mind it produced. The Nazis immediately accused the Communist Party of instigating and committing the crime, and turned every effort to portray this single act of arson as the beginning of a Communist revolution. Then, taking advantage of the hysteria, the Nazi met this phantom revolution with a real one. In the following December, the German Supreme Court with commendable courage and independence acquitted the accused Communists, but it was too late to influence the tragic course of events which the Nazi conspirators had set rushing forward.

Hitler, on the morning after the fire, obtained from the aged and ailing President von Hindenburg a Presidential decree suspending the extensive guarantees of individual liberty contained in the Constitution of the Weimar Republic. The decree provided that:

Sections 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Reich are. suspended until further notice. Thus, restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press, on the right of assembly and the right of association, and violations of the privacy of postal, telegraphic, and telephonic communications, and warrants for house-searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed. (1 390-PS).

The extent of the restriction on personal liberty under the decree of February 28, 1933 may be understood by reference to the rights under the Weimar Constitution which were suspended:

Article 114. The freedom of the person is inviolable. Curtailment or deprivation of personal freedom by a public authority is only permissible on a legal basis. Persons who have been deprived of their freedom must be informed at the latest on the following day by whose authority and for what reasons the deprivation of freedom was ordered; opportunity shall be afforded them without de- lay of submitting objections to their deprivation of freedom. Article 115. Every German's home is his sanctuary and [page 127] inviolable. Exceptions may only be made as provided by law. Article 117. The secrecy of letters and all postal, telegraphic and telephone communications is inviolable. Exceptions are inadmissible except by Reich law. Article 118. Every German has the right, within the limits of the general laws, to express his opinions freely in speech, in writing, in print, in picture form or in any other way. No conditions of work or employment may detract from this right and no disadvantage may accrue to him from any person for making use of this right. Article 123. All Germans have the right to assemble peacefully and unarmed without giving notice and without special permission. A Reich law may make previous notification obligatory for assemblies in the open air, and may prohibit them in the case of immediate danger to the public safety. Article 124. All the Germans have the right to form associations or societies for purposes not contrary to criminal law. This right may not be curtailed by preventive measures. The same provisions apply to religious associations and societies. "Every association may become incorporated (Erwerb der Rechtsfaehigkeit) according to the provisions of the civil law. The right may not be refused to any association on the grounds that its aims are political, social-political or religious. Article 153. Property is guaranteed by the Constitution. Its content and limits are defined by the laws. Expropriation can only take place for the public benefit and on a legal basis. Adequate compensation shall be granted, unless a Reich law orders otherwise. In the case of dispute concerning the amount of compensation, it shall be possible to submit the matter to the ordinary civil courts, unless Reich laws determine otherwise. Compensation must be paid if the Reich expropriates property belonging to the Lands, Communes, or public utility associations.

"Property carries obligations. Its use shall also serve the common good." (2050-PS).

It must be said in fairness to von Hindenburg that the Constitution itself authorized him temporarily to suspend these fun-[page 128]damental rights "if the public safety and order in the German Reich are considerably disturbed or endangered." It must also be acknowledged that President Ebert previously had invoked this power.

But the National Socialist coup was made possible because the terms of the Hitler-Hindenburg decree departed from all previous ones in which the power of suspension had been invoked. Whenever Ebert had suspended constitutional guarantees of individual rights, his decree had expressly revived the Protective Custody Act adopted by the Reichstag in 1916 during the previous war. This Act guaranteed a judicial hearing within 24 hours of arrest, gave a right to have counsel and to inspect all relevant records, provided for appeal, and authorized compensation from Treasury funds for erroneous arrests.

The Hitler-Hindenburg decree of February 28, 1933 contained no such safeguards. The omission may not have been noted by von Hindenburg. Certainly he did not appreciate its effect. It left the Nazi police and party formations, already existing and functioning under Hitler, completely unrestrained and irresponsible. Secret arrest and indefinite detention, without charges, without evidence, without hearing, without counsel, became the method of inflicting inhuman punishment on any whom the Nazi police suspected or disliked. No court 'could issue an injunction, or writ of habeas corpus, or certiorari. The German people were in the hands of the police, the police were in the hands of the Nazi Party, and the Party was in the hands of a ring of evil men, of whom the defendants here before you are surviving and representative leaders.

The Nazi conspiracy, as we shall show, always contemplated not merely overcoming current opposition but exterminating elements which could not be reconciled with its philosophy of the state. It not only sought to establish the Nazi "new order" but to secure its sway, as Hitler predicted, "for a thousand years." Nazis were never in doubt or disagreement as to what these dissident elements were. They were concisely described by one of them, Col. General von Fritsch, on December 11, 1938, in these words : Shortly after the first war I came to the conclusion that we should have to be victorious in three battles if Germany were to become powerful again: 1. The battle against the working class-Hitler has won this. 2. Against the Catholic Church, perhaps better expressed against Ultramontanism. 3. Against the Jews." (1947-PS). [Page 129]

The warfare against these elements was continuous. The battle in Germany was but a practice skirmish for the worldwide drive against them. We have in point of geography and of time two groups of crimes against humanity – one within Germany before and during the war, the other in occupied territory during the war. But the two are not separated in Nazi planning. They are a continuous unfolding of the Nazi plan to exterminate peoples and institutions which might serve as a focus or instrument for overturning their "new world order" at any time. We consider these Crimes against Humanity in this address as manifestations of the one Nazi plan and discuss them according to General von Fritsch's classification.