A. Opening Statement for the Prosecution[64]

A. Opening Statement for the Prosecution^[64]

Mr. Denney: May it please your Honors, this defendant is Erhard Milch, Field Marshal in the Luftwaffe, Inspector General of the Luftwaffe, State Secretary in the Air Ministry, Generalluftzeugmeister, sole representative of the Wehrmacht on the Central Planning Board, Chief of the Jaegerstab,^[65] and member of the Nazi Party.

This man is accused of war crimes and crimes against humanity in that he took part in the program for the enslavement and ill-treatment of the civilian population of vast territories conquered by the armed forces of Germany and in the employment of prisoners of war in tasks forbidden by the laws and customs of war. He is also accused of the torture and murder of concentration camp inmates and prisoners of war who were made the unwilling subjects of savage and fatal medical experiments.

The life of Erhard Milch is a story of personal and professional betrayal. A man of high intelligence, of great executive ability, he misused these talents to dedicate them to a scheme for conquest and a plan for the enslavement of the world. The 10 years of military service of the defendant from the age of 18 to 28 which took him through the First World War were a perfect preparation for the tasks to come. From 1915 to 1919, Milch was a scout, observer, adjutant and squadron leader in the German Air Force. At the very infancy of military aviation, the defendant began an association which was to last through his entire public career. It was at this time that he learned the needs and the problems of flying men, a knowledge which was to stand him in such good stead in his work as the founder of the Luftwaffe.

The defendant never dissociated himself from the aims and ideals of German militarism. He became one of the silent army of men who remembered, hated, and hoped; but unlike many others, this man did not sit idly by. He did not wait passively for Germany to rise again, he devoted his best efforts towards that end. In 1921, only 1 year after his discharge from the army, we find him working as chief of air operations [flights] in the new business of commercial aviation.

There is no necessity to fill out in detail the successive steps in the defendant’s rise in civilian air transportation—a few broad strokes suffice. The next significant event in his career came in 1925 when he joined the state-sponsored Lufthansa which within 3 years he was to form into the nucleus of a new air force. It is no euphemism that he was called the Father of German Air Transportation.

When Hitler came into power in 1933, Milch acceded to the requests of both Goering and Hitler and assumed the additional duty of State Secretary in the Air Ministry. It was understood from the start, and it was confirmed in 1937, that Milch would succeed Goering as Chief of the German Air Force in the event of the latter’s death or withdrawal. By the time the new Luftwaffe had publicly emerged from such embryos as the Air Sport League, the Air Defense League, and the Flying [Flieger] Hitler Youth, the defendant had become a Generalleutnant (the equivalent of the American major general). The honors which followed: field marshal in the Luftwaffe in 1940, which was gained from 2 months’ participation in the invasion of Norway; Generalluft-Zeugmeister in 1941; member of the Central Planning Board in 1942; Chief of the Jaegerstab in 1944, were proof alike of the evil genius of Erhard Milch and of his complete compatibility with the Nazi ambitions and methods.

This defendant became a member of the Nazi Party in May 1933. His work in the Party was important. He was indeed one of the little group of specialists of whom Mr. Justice Jackson, in his closing address before the International Military Tribunal, aptly said:

“It is doubtful whether the Nazi master plan could have succeeded without their specialized intelligence which they so willingly put at its command. They (speaking of Goering, Keitel, Jodl, and the rest) did so with knowledge of its announced aims and methods and continued their services after practice had confirmed the direction in which they were tending. Their superiority to the average run of Nazi mediocrity is not their excuse. It is their condemnation.”^[66]

Various Germans allowed themselves to be absorbed into the Nazi Party for a variety of reasons. Depression, financial and business betterment, ambition, discouragement with the previous political situation, and human weakness in the face of terrorism, all played their part in the recruitment of the Nazi machine. There were few cases in which a man made as clear, as deliberate, and as discreditable a choice of Nazism as did Milch.

The high esteem in which the defendant was held by Hitler and his position within the inner circle of Nazi militarists can be seen from the fact that he was one of a party of fourteen of Hitler’s highest and most trusted officers who attended a conference in the new Reich Chancellory on 23 May 1939, at which Hitler made known to his military chiefs his plans and objectives. (L-79.)

All in all, two points stand out in even a quick survey of Milch’s career: First, he never accepted the defeat of Germany in the First World War; his life between the wars was devoted to the work of placing Germany in a position to challenge the world in the matter of air supremacy; and second, he was a man who was unlikely to allow either difficulty or honor to stand in the way of the accomplishment of his purpose—the objectives of the Nazi Party. If these characteristics are borne in mind, much of the defendant’s fanaticism and the unbelievable savagery with which he adhered to the Nazi plan for conquest at the expense of all values of human decency may be seen as the natural consequences of the acts of a man with his criminal philosophy.

We have then, at the outbreak of the war this man, already within the inner circle, already devoted to the Nazi scheme of things and quite essential to their fulfillment, with a record of organization and with the work of preparation behind him—poised with his companions for the kill. We see the air armadas, which were the labor of his love, helping to shatter Poland within 18 days, helping to reduce the Lowlands to smoking ruins within a few days’ time, assisting in the subjugation of the French military machine and in driving the British from the continent in a period of a few weeks. We see the hordes of the Fatherland racing on and on with the air arm always overhead, preparing the way, until Germany had overrun a territory from the Normandy Coast to Moscow, and from the North Sea to El Alamein.

Then began the occupation, the next step in the plan of the Third Reich—an empire which was to last a thousand years. Over an entire continent there spread the deadly rigor of a “Pax Germanica” in which there was to be one citizen class, one race of supermen, and the balance, one class of slaves. At first the occupation overlords maintained the appearance of legality. They gave receipts for the property they plundered, they offered inducements to the laborers they shanghaied, they went through the mockery of signing contracts which were both illusory and fraudulent. But even this sham disappeared as the war went on, and as early as 1942, the German occupation appeared in public as the ugly thing it was, complete with armed recruiters, military escorts on deportation trains and prison camps for the workers brought into Germany. Mr. Justice Jackson, in his opening address on behalf of the United States of America before the International Military Tribunal,^[67] vividly described the character and extent of the slave-labor program in the following words:

“Perhaps the deportation to slave labor was the most horrible and extensive slaving operation in history. On few other subjects is our evidence so abundant and so damaging. In a speech made on 25 January 1944 the defendant Frank, Governor General of Poland, boasted, ‘I have sent 1,300,000 Polish workers into the Reich.’ (059-PS, p. 2.) The defendant Sauckel reported that ‘out of the 5 million foreign workers who arrived in Germany not even 200,000 came voluntarily.’ * * * Children of 10 to 14 years were impressed into service * * *.

“When enough labor was not forthcoming, prisoners of war were forced into war work in flagrant violation of international conventions (016-PS). Slave labor came from France, Belgium, Holland, Italy, and the East. Methods of recruitment were violent (R-124, 018-PS, 204-PS). The treatment of these slave laborers was stated in general terms, not difficult to translate into concrete deprivations, in a letter to the defendant Rosenberg from the defendant Sauckel, which stated:

“ ‘All the men’ (prisoners of war and foreign civilian workers) ‘must be fed, sheltered, and treated in such a way as to exploit them to the highest possible extent at the lowest conceivable degree of expenditure * * *’ (016-PS)”.

Working as we do every day with crimes of unbelievable enormity, we are apt to become quite deadened to the hideous nature of specific crimes. It is, therefore, well to stop and consider the particular offenses with which this man stands charged.

Crimes are best evaluated in terms of the rights they violate. The evil, slavery, which is the deprivation of another’s liberty, is best judged through a consideration of its opposite good, freedom. Freedom is, to an extent, properly regarded as the symbol of human progress, the measure of civilization. Much of man’s history can be expressed in terms of his fight for freedom. Man’s personal freedom is his most precious prerogative, the exercise of his free will is his distinctive function. The building of a legal structure to protect the freedom of the individual is the basic purpose of good government. Men have lived for freedom, worked for it, fought for it, and died for it.

It is precisely because of their destructive effects on the freedom of the individual that governments such as the Nazi German State are so hatefully and essentially evil. The Nazi rise to power is a story of duress which ripened into slavery, first for the people within Germany and then for those in the lands she conquered. The enforced labor program was no expedient forced upon Germany by the exigencies of war. It was a basic concept of the Nazi scheme and the permanent destiny of those who would come under the German yoke.

It is most natural, therefore, that Control Council Law No. 10, which was enacted for the guidance of this and other tribunals which are set up for the trial of the principals in the crime of Nazi Germany, should deal in very severe terms with that most Nazi of all crimes—slavery. Article II, paragraph 1 (sec. b) specifically names among the enumerated war crimes the ill-treatment or deportation to slave labor of civilian populations from occupied territory and the murder or ill-treatment of prisoners of war. Paragraph 1 (sec. c) specifies as a crime against humanity, deportation of civilian populations. Article II, paragraphs 2 and 3 proclaim that anyone taking a principal or consenting part in these crimes, or belonging to a plan or enterprise for the commission of these crimes, is guilty of an offense for which the death penalty may be prescribed.

The prosecution will prove that Milch was a principal in the deportation into slave labor of civilian populations from occupied territories. It will show that he was involved in the murder and ill-treatment of prisoners of war. Evidence will be presented which will prove that he was engaged in plans and enterprises which directly involved the use of slave labor. We will show that this man was as much concerned with the employment of slave labor as was any man in Germany. In his positions as a member of the Central Planning Board, as Generalluftzeugmeister, and as Chief of the Jaegerstab, he had full opportunity to hear all the grim details of the exploitation of slave labor. He participated in decisions and formulated basic policies with reference to its use, and over and above all this he showed his personal animosity and his gratuitous fanaticism in constantly urging the most repressive and cruel measures in the procurement and exploitation of foreign workers.

During the course of this trial, an attempt will be made to distinguish among that which this defendant did as Generalluftzeugmeister, as Chief of the Jaegerstab, as State Secretary for Air, and as a member of the Central Planning Board. At times it will be difficult, if not impossible, to state in just which capacity he was acting at a particular time. We must emphasize now that it is not essential to the proof of this case that we should be able always to specify the exact capacity in which the defendant acted. The multiplicity of his connection with the slave-labor program is his greatest condemnation, and it is because he knew so much and did so much that there can be no excuse for him.

Erhard Milch operated at a policy level high in the chain of command above the work boss and the concentration camp guard. We need not show him driving the workers to their tasks or crowding them into the hovels in which they lived. We are not primarily concerned with the minute details of the slave-labor program which were carried out by minions who obeyed men like the defendant. We were dealing with a planner of a great crime, and it has not been difficult for the law to seek out and punish those who plan as well as those who obey. The law would indeed be derelict if only those were punished who pulled the trigger to kill, or, comparably speaking, ran a slave camp in which people worked an 84-hour week and dragged out a miserable existence under conditions from which death was welcome relief.

This defendant cannot plead in truth that he did not know that the use of slave labor was wrong. He cannot use even the technical excuse, so common among the Nazis, that this was not illegal because the Nazi law authorized it. Official sanction of slavery would have been a law so evil that even the Nazi masters dared not proclaim it. A search through the mass of decrees and pronouncements which passed for law during the regime of Adolf Hitler fails to reveal sanction for slavery of foreign laborers. On the other hand, certain prohibitory laws survived from a more respectable day.

Paragraph 234 of the German Criminal Law (published in 1942 in Munich and Berlin, pp. 364-365) provides that “whoever seizes another by ruse, threat or force in order to expose him in a state of helplessness, or to deliver him into slavery, bondage, or a foreign military or naval service shall be punished for kidnapping by confinement in a penitentiary.” This law was in force during the Nazi regime and was published in the most recent edition of German Criminal Law which we have been able to find.

That maltreatment was commonplace in the course of the enforced labor program in Germany is well known; that starvation, murder, and all types of personal abuses took place is notorious. All of this was found as a fact in the decision of the International Military Tribunal. There can be no question of the responsibility of the defendant for the murders and privations which were the inevitable byproduct of the slave-labor program.

But we need not follow the crime of slave labor down to its last detail in order to show the defendant as the murderer he was. We can and will prove that he directly participated in crimes of which murder was often the intended and on numerous occasions the inevitable result.

The prosecution charges, and will prove, that he took an important, responsible, and essential part in the practice of experiments upon human beings carried out against their wills and in callous disregard of the lives of its victims.

Cut then to bare essentials the charges set forth in paragraphs 8 and 9 of count two of the indictment and in paragraph 11 of count three can be summarized by the statement that the defendant was officially connected with and took a consenting part in enterprises in which criminal medical experiments were performed upon involuntary subjects.

The nature and extent of these experiments and the fact that they were conducted for the specific benefit of the Luftwaffe will be shown in some detail. We will prove that the defendant was the responsible Luftwaffe officer with ultimate supervisory authority over the experiments. The Court will see that throughout the duration of these experiments, the defendant was constantly treated by all concerned as the ultimate authority within the Luftwaffe in control of the experimental equipment and in charge of certain personnel who were actively engaged in them.

Evidence will be presented which will prove that the defendant was thoroughly informed of the criminal activities of Dr. Rascher, the experimenter, and his associates. We will prove that a conference was held at the defendant’s office, that films were shown there, that communications were sent to him from highest Nazi sources which specifically referred to opposition on the part of “narrow-minded doctors” to the experiments. A web of evidence will be adduced to portray the defendant, as he really was, an active partner in crime. We will show that the defendant authorized the initiation of freezing experiments and that he ordered an extension of the high-altitude experiments for a period of 2 months, during which extended period a number of experimental subjects died.

At the conclusion of the evidence with respect to the medical experiments upon human beings there will remain no doubt that Erhard Milch was a knowing, willing, and active participant in murder.

Throughout the trial the prosecution will place before the Court a number of statements which will portray him as a man who believed no tears should be shed for the victims of total war when German soldiers every day were making the ultimate sacrifice for the Fatherland. This man was not a hard-headed, single-minded production chief whose only problem was to get things done and whose rash statements were the impetuous remarks of an over-worked executive. Milch will be shown as a man who boasted of his responsibility in the hanging of prisoners of war, who urged that any effort on the part of foreign workers to strike during enemy action should be met with rifle fire, who offered protection to slave supervisors who should mistreat their subjects. We will show that he was not too busy to inform himself fully of everything with which he was officially connected and that over and above this he went out of his way to learn the most minute details of matters with which he was very remotely connected.

And now a brief word about the type of evidence with which the prosecution will prove its case. It must be borne in mind that we are not concerned with a single localized incident or with a series of such incidents. The proof which we must show cannot be brought forth from the daily events of ordered society. It must be drawn from the cold ashes of a broken nation. The documents which will be brought into Court have been taken from all corners of a continent. They have one common feature which elevates them in the hierarchy of evidence to a place above the story of sincere but fallible eyewitnesses. These documents are official German records, some of them records of the defendant’s own organizations. In some cases they bear the defendant’s signature or his handwritten initials. In every case they are authentic records compiled by Germans, accurate because there was no reason for falsification or exaggeration, thorough because of a national fetish for attention to detail, reliable because they were made at times when the German fortunes of war were high and their scriveners had no reason to fear that one day they would be confronted with their hand-made records of criminality.

It would seem that at this point there should be some discussion of the various organizations with which the defendant was connected.

We are concerned principally with that part of the OKW (Oberkommando der Wehrmacht), Supreme Command of the Armed Forces, known as the OKL (Oberkommando der Luftwaffe), the High Command of the German Air Force. The Chief of the OKL was Reich Marshal Hermann Goering. His Inspector General and State Secretary in the Air Ministry was the defendant Erhard Milch. As such, from July 1940, he held the rank of field marshal (comparable to the American rank of general of the armies).^[68]

The other two branches of the OKW with which we are incidentally concerned were the OKH (Oberkommando des Heeres), High Command of the Army, and the OKM (Oberkommando der Marine), High Command of the Navy. The army was commanded by Field Marshal von Brauchitsch until December 1941, at which time it was taken over by Hitler. The navy was commanded by Grand Admiral [Admiral of the Fleet] Raeder until 1943, thereafter by Grand Admiral Doenitz.

The Luftwaffe Medical Service came under this defendant in his capacity as Inspector General of the Luftwaffe. The Medical Service was headed by Dr. Erich Hippke until January 1944; thereafter it was headed by Dr. Oskar Schroeder.

There was an experimental institute in Berlin called the DVL which was a technical research institution for aero-research. This was subordinate to the defendant in his position as Generalluftzeugmeister.

We now turn to the Central Planning Board. This was established by a Goering decree, pursuant to a Hitler order of 22 April, 1942. The Board consisted of Albert Speer, Erhard Milch, and Paul Koerner. Later, by a supplementary Goering decree, in September 1943, Walter Funk was added to the Board. Speer and Milch were the dominant members, and Koerner and Funk played comparatively minor roles. The Central Planning Board was, in effect, a consolidation of all controls over German war production. The Board was found by the International Military Tribunal to have “had supreme authority for the scheduling of German production and the allocation and development of raw materials. * * *”^[69] Hand in hand with this goes the corollary of the procurement and allocation of labor. Reich Marshal Goering, in his decree of 22 April, 1942, stated in part——“It (the Central Planning Board) encompasses that which is fundamental and vital. It makes unequivocal decisions and supervises the execution of its directives”. The Central Planning Board requisitioned labor from Sauckel with full knowledge that the demands would be supplied by foreign forced labor, and the Board determined the basic allocation of this labor within the German war economy. Sauckel was the servant of the Central Planning Board in the procurement of slave labor. There are records of some 50-odd meetings of the Board between the time of its establishment in 1942, and 1945. The defendant was present at all but a few of these meetings and on occasion his was the dominant voice. The International Military Tribunal found that the Central Planning Board determined the total number of laborers needed for German industry, and required Sauckel to produce them, usually by deportation from occupied territories.

It is worthy of note that Speer was appointed Reich Minister for Armaments and Munitions on 2 February 1942, Sauckel was appointed Plenipotentiary General for Labor Allocation on 21 March 1942, and the Central Planning Board was created on 22 April 1942.

Turning now to the defendant’s position as Chief of the Jaegerstab. The Jaegerstab was formed pursuant to a Speer decree of 1 March 1944, for the purpose of increasing the production of German fighter aircraft, which, because of effective and heavy raids by strategic air forces of Great Britain and America, had suffered a production decrease to a figure below 1,000 planes a month.

Because of this reduced production of fighter planes, Milch had requested Speer to establish a commission to deal with this most vital problem. The commission was created and Speer and Milch were joint chiefs. The Jaegerstab was actually a group of experts, drawn from the various phases of German industry and supplemented by representatives of the various Ministries concerned, such as Labor, Supply, Transportation, Power and Energy, Raw Materials, Health, Repairs, and so forth.

Meetings were held almost daily, in the beginning at the Air Ministry in Berlin and later at Tempelhof airfield in the same city. The Jaegerstab functions were these: the quick repair of plants damaged in bombing or strafing operations, the dispersal of German aircraft plants, and the construction of underground factories for aircraft production.

As it was with the Central Planning Board, so it was with the Jaegerstab, a major problem was the procurement of slave labor. The workers for the Jaegerstab were procured from the Sauckel Ministry, from occupied countries, and from the SS, who supplied concentration camp inmates and Hungarian Jews.

So successful was the work of the Jaegerstab that Speer decided to enlarge its functions to include other phases of armament and munitions production. Accordingly, on 1 August 1944, he issued a decree expanding the functions of the Jaegerstab and changing its name to Ruestungsstab.

The position of Generalluftzeugmeister was taken over by the defendant in 1941, following the death of Colonel General Ernst Udet. In this post the defendant was in charge of all technical research in the Luftwaffe and his was the over-all responsibility for all aircraft production. As such he spoke for the Luftwaffe in the meetings of the Central Planning Board and in conferences with Hitler. It is obvious that here again the procurement of labor was a primary consideration for one who had the complete responsibility for keeping the Luftwaffe in the air.

In the trial before the International Military Tribunal, it was determined that 5,000,000 laborers were deported to Germany. Of these, 4,800,000 did not come voluntarily.

The evidence will show that the defendant’s responsibility was as great, if not greater, than was Sauckel’s. Erhard Milch raised his voice in demanding that foreign labor be procured by any methods and in advocating that cruel and repressive measures be taken by those in charge of these laborers. There is no record of any utterance by him, which can be offered as a mitigating circumstance to his complete complicity in the criminality of the slave-labor program.

The evidence on the altitude and freezing experiments will reveal him as a man completely without concern for the welfare and lives of the wretched, unwilling victims of the criminal tortures conducted for the benefit of the Luftwaffe.

The series of trials, of which this is one, if it is to serve its purpose in exposing and punishing the abuses of Nazidom, must strike hard at the cores of savage German militarism and its technical counterpart, industry for war. Erhard Milch is the foremost example of the union between German militarism and German heavy industry. What useful purpose is served by condemning these two and allowing their sponsors, men like Milch, to go unpunished?

We take it as a fundamental proposition that man is not the helpless product of his environment. Civilization is a lengthy chronicle of men who triumphed over difficulty. Its survival depends on the moral fibre of individuals who can use circumstance, not be determined by it. If society must answer for the actions of men, and not men for the course of society, then, indeed, governments are our masters and not our servants; then, indeed, law dictates but does not express justice. Erhard Milch lived during years of violence and in an evil environment but he was a man well able to overcome these factors and become a force for good. It was by his own free choice that he followed the line of least resistance and became one of the evil spirits who cast a dark shadow of war and crime over Germany and the world. He had a choice between the easy wrong and the hard right—he chose the former. Peace, order, and progress depend on men of sufficient courage to choose at times a hard, just path. Ours indeed is an exacting standard, but the rewards are great, and the alternative is chaos.