B. Opening Statement for the Defense[70]

B. Opening Statement for the Defense^[70]

Dr. Bergold: May it please the Tribunal, I undertake now to present the evidence for the defense. The prosecution has painted the blackest possible picture of the man I am here to defend. It has pronounced a moral judgment on him, even for the period of his life, which, according to the indictment, is not to be judged by this Tribunal.

Because of the great difference between the American and the German people I have no knowledge of whether such a method of prosecution is customary in the United States of America. The good principles of law which were practiced in Germany before 1933 provided that even counsel for the prosecution should not reproach the defendant for anything that is not subject to examination by the Tribunal. The meaning of this is that defense counsel also should be in a position to express his views with regard to these charges. This, according to my opinion, seems to be a fair principle.

Therefore, if it please the Tribunal, it shall be my aim in the course of my submission of evidence to prove by witnesses who have been approved and by the defendant himself that the charges made by the prosecution are incorrect, and I shall aim to prove that also for the charges which are not contained in the indictment.

Erhard Milch has never in his life been a traitor, as a person or in his profession, not even at the end of the National Socialist rule when he himself was threatened as to his life and his honor. As a man of high intelligence and great talent for organization, he always tried to do his best for his people and for the world.

To say of him that he misused his talent and devoted his life to a plan for conquest and enslavement of the world is to have a completely wrong conception of reality. He was never a militarist in the bad sense of the word. Never did he arm secretly before 1933 nor make use of the peaceful instrument of the commercial air fleet for any sinister purposes. He, the man who wanted to devote himself only to the tasks of peace, the man who in his capacity as director of the German Lufthansa collaborated with many European air transport companies and who conceived this collaboration as almost a forerunner of a unified Europe; he, the man who in 1937 devoted all his efforts, together with a few wise and courageous statesmen, to the attempt to bring about a full understanding and a large scale collaboration between France, Belgium, and Germany (unfortunately, the high Tribunal has not given me permission to furnish complete proof for this fact); he, Erhard Milch, truly never tried to enslave the world. If he had succeeded in his plans in 1937, then there would have been no 1938. And, all the more, there would not have been the horrible period of 1939 to 1945, the period in which the battle against intolerance became so hard and so complicated that we might think today that, as in an Arabian tale, this spirit of intolerance freed itself from the bottle and spread itself over so wide an area that, even today, it causes actions which one day must also be condemned by the just and the wise.

I shall prove that from the moment when this man tried, in 1937, to achieve his plans for peace he lost the confidence of his superiors. He never belonged to the intimate circle in which his superiors confided, even less so after 1937. They employed him unwillingly and only because they believed that they could not spare him because of his ability. It is cheap and easy to say now that this man should have denied his superiors the benefit of his talents. We shall prove that he tried to do so. But who can dare to judge with certainty what went on in the heart of such a man who was terribly aware of what dangers threatened his people, once the fateful step of starting the war had been taken? Neither did he want this step nor could he prevent it.

Should he really have chosen the path of revolt, this man who was brought up in a world in which, for all ages, military obedience had been an inviolate law, this man who had a passionate love for his people? How many human beings in any country are capable of breaking the chains of their education, and turn against the laws which have been inviolate for them ever since their childhood?

There is no punishable guilt, perhaps even no moral guilt in the fact that a man cannot free himself from the world of his education. Because it is the very essence of all education to give the man unbreakable laws and to create around him what philosophers call “the environment proper to his own nature.” Therefore, he has not made himself guilty by doing what his education and the conceptions of his environment made him call his duty, in a war which he did not want, which he tried to prevent; and the stopping of which he advised again and again after it had started. This duty, he felt, was to do his work and to prevent the worst which he anticipated, namely, the terrible devastation of his fatherland and its complete and helpless collapse.

I shall prove that he always, even after the war had broken out, concerned himself with questions of defense only; that he wanted to strengthen the fighter force, a defensive weapon with which he wanted to prevent the doom of the German cities. Perhaps, one day, the necessity for this doom will be judged differently. I shall prove that he condemned the attack against Soviet Russia as folly, and that he tried to prevent it. I shall show that in the spring of 1943 he submitted to Hitler detailed proposals for an immediate termination of the war and that he told him without reserve that the war was lost.

If it is true that from that moment onward he made efforts again and again to strengthen the fighter force, and that he took part in the creation of the Jaegerstab, who can reproach him with the intention to prolong the war if it will be proved that he knew that the enemy air forces would make a desert of Germany? Was it inhuman that he tried to prevent this total destruction even if the war was lost? He alone could not end the war. But he could try to prevent the inferno in Germany from becoming full reality. What true lover of his own country in any part of the world would not make the same attempt? Never can he be considered guilty on account of that, and even less so because of the fact that in other countries also voices have arisen and still arise which say that during the destruction of Germany many a thing happened which was not always compatible with military necessity.

Despite the pains he took, his superiors mistrusted him so much that both Goering and Hitler contemplated to have him put out of the way.

I shall show that he never endorsed the theory of the superman and of the master race; that he always remained humane and that he intervened on behalf of friends with disregard for his own security. He never was cruel. It may be that some of the minutes carry wild speeches about him which must strike your Honors who come from a different world and are used to different customs as terrible and incomprehensible. I shall prove to you that in the barracks yards, which made the first impress on the sensitive mind of young Milch, wild expressions were quite common and that in German barracks yards bombastic expressions were considered normal and truly militaristic style. Nobody in Germany did at any time take these expressions at face value. For this human element in particular, the old saying holds true that dogs which bark do not bite.

This man, however, was all the more inclined to use these shocking expressions due to the fact that in a number of accidents he had suffered severe concussions of the brain as a result of which he was more susceptible to fits of anger than other people; all the more so since he was overburdened with work and always frantic because time was too short. But witnesses will appear before this Tribunal who will confirm that no one in his surroundings took these fits of wrath, these crazy words, seriously; that these expressions never went further than the circle of his intimates, and that they in no way had any effect. His raving and yelling would make so little impression that when people around him noticed he was about to have another fit of rage, one would hear the familiar quotation: “In a moment somebody will be hanged again and then nothing happens.”

I shall show that this man knew nothing at all of the many abominable happenings which occurred out in the country, sometimes committed by persons who were under his command, and that, for example, the connection with the experiments at Dachau were so remote and incidental that he could not even surmise what the men there undertook to do. The sphere of his duties was so terrific, the burden of his work so great that he truly would have needed to be a superman if he were expected to have known all that the prosecution finds out today from records and from the examination of the offenders. It is appropriate to use a Latin quotation here with a little change: “Quod est in actis, non semper est in munde.” Not everything that the investigating mind uncovers at a later date and interconnects was so in actual fact. The poet says “Easy for him to speak who speaks last.” This man is charged with letting prisoners be abused and killed. I shall prove that this was not so. I shall even prove that, for example, he did everything possible to protect so-called terror fliers from being lynched. He was a man who tried to attenuate verdicts pronounced by competent courts of justice and who never favored death sentences.

The prosecution charges him with the enslavement of the peoples of Europe. I shall prove that he never aspired to enslavement; that information on deportations and shanghaiing never reached him; and that, on the contrary, information reached him which was bound to confuse his judgment and which permitted him to engage in deeds which now are considered as wrong. Up to this day the opinion still prevails that everybody in Germany knew everything about all the cruelties. Slowly, however, the recognition comes through that this is not correct. In the “Neue Zeitung”, the official organ of the military government, a German anti-Fascist by the name of Arnold Weiss Reuthel, whose book on the concentration camps is considered noteworthy by the newspapers, published an article “On the Psychological Causes.” There he states literally:

“One would have termed anybody who informed the public of such happenings a scoundrel or a lunatic. This also explains why people who did not see these things with their own eyes and did not suffer from them day after day, even today still refuse to believe that they actually happened. Yes, to me too it seems today often a dream and impossible when I think back and try to persuade myself that they really happened, the fearful excesses to which I was a witness during my 5 years in the concentration camp.”

Thus writes, be it noted, a man who suffered for years in a concentration camp himself. It has been proved again and again that the most painstaking secrecy was maintained regarding the atrocities. This is no hollow talk. This is the truth. The actual perpetrators dissembled, denied, lied, in a way that could not have been surpassed in cunning. The documents show you, Honorable Judges, that it was forbidden for Rascher to make reports without Himmler’s authorization. Himmler wanted to draw the veil of secrecy over everything. But even with a Hitler, Sauckel, for example, soft-pedalled all his doings in the procuring of the foreign workers. Regarding this, I will submit evidence.

I shall also show that the assignment of these workers was not a point in any program existing from the outset; that it was exclusively an emergency device which the exigencies of the war forced upon Germany. So at least all this had to appear to him, the man who did not belong to the innermost circle. That he could not think otherwise will be demonstrated to the Court, to the Tribunal.

It is misleading when the honorable representative of the prosecution in his opening speech points out that this man had more to do with the use of forced labor than any other man in Germany. The International Military Tribunal, in its judgment on Speer, whose position, as no one in this courtroom can doubt, was far more powerful and significant than that of this man here, has stated:^[71] “Speer’s position was such that he did not have to deal directly with the atrocities and the carrying out of the forced labor program.” On Sauckel, the International Military Tribunal says:^[72] “It is nevertheless established beyond all doubt that Sauckel had the over-all responsibility for the slave-labor program.” I shall offer evidence that Sauckel actually also had the sole power over the manner in which the people were recruited and brought to Germany, and over the urgent work for which they were required.

The prosecution submitted much evidence in Document Books No. IA and IB which contain the speeches and decrees of all kinds of persons and offices in Germany and in the territories formerly occupied. In my opinion, however, it never proved that the defendant knew of all these things, much less that he had anything to do with them. I shall prove that he knew nothing of all this and that it was all so far remote from his sphere of action that, logically speaking and considering his numerous tasks, he could know nothing about it.

I ask permission to remark here that in cases of this kind it is perhaps after all not in keeping with the rules of true justice to charge one person with everything that happened somewhere and was committed by someone among a people of eighty million. In my opinion the concept of conspiracy is in such a case inflated to the point of monstrosity. It was created for conditions of a narrower and smaller scope where it was within the framework of a man’s possibilities to keep an over-all view of his associates and their deeds. But to extend the concept of conspiracy over an entire nation and, simultaneously, over numerous organizations with millions of members, that no longer can be commensurate with true justice. This would result in the creation of a conspirator to whom would be ascribed a Godlike stature. That, however, would be a distortion of an intelligent legal thought.

It must, therefore, be demanded that in the case of each document, of each act, with due consideration of the extent of the defendant’s working sphere and, consequently, with due consideration for his working capacity, one should examine whether he could obtain knowledge thereof, whether he could humanly anticipate, examine any of them, and by reason of his authority, could somehow prevent them.

Finally, I shall prove to you that the documents submitted to you as official documents are not exact, not reliable; that they never were examined by the defendant and his associates, and that they contain inaccuracies, distortions, and wilful deceptions.

Regarding the powers and position held by the defendant, a number of witnesses and the defendant himself will attest that his powers were not so great nor so permanent as the prosecution assumes.

We will show that while the Medical Inspector of the Luftwaffe was subordinate to him in his capacity of Inspector General of the Luftwaffe, this subordination was more a formal than a practical one, that the staff of the Medical Service was not at all subordinate to him and that especially he did not have under his direction the DVL (German Experimental Institute for Aviation).

We shall further prove that even the Central Planning Board did not have the significance that the prosecution assumes, that this agency was much more an advisory and information agency, that it was chiefly occupied with the allocation of raw materials and that only those decisions of the meetings were binding which were summarized in the so-called “Results.”

Finally, we shall show that although, it is true, the defendant was one of the founders of the Jaegerstab, he was not its chief and that his importance in this connection was far less than it would appear on first consideration. The work of the Jaegerstab and of the defendant was aimed solely at the protection of Germany against bombing attacks, and Milch very soon lost all influence in this Jaegerstab.

In the presentation of all this evidence, I would ask the high Tribunal to have in mind one difficulty which, particularly in this case, is nearly insurmountable.

The documents submitted by the prosecution are only parts of a body of material the extent of which can be termed gigantic. When one considers that the Jaegerstab, for instance, from the time of its establishment held daily meetings and that from those meetings only these few stenographic records of a few sessions have been submitted that appear in the document books of the prosecution, then one realizes that not even five percent of the material pertaining to the Jaegerstab has been submitted.

Similar, although perhaps not equally striking, is the situation with reference to the minutes of the Central Planning Board. All these documents which were not submitted are not accessible to me at all. Does not, however, justice demand that the material in its entirety should be available to the defense counsel for examination? Already it has been possible for me to discover in the incriminating documents numerous passages which throw a different light on the indictment. Is it not highly probable, then, that numerous other passages may be found in all of the other material likely to extenuate to a high degree the guilt of the defendant, or which, in any case, might show many things in a better light?

In an ordinary trial with a considerably narrower scope it is much easier for a defendant to conduct his defense than here where material of such volume is at hand that even if he had the best of memories, it would be impossible for him to point out to me, his counsel, where and what kind of exonerating material can be found. That simply surpasses the capacity of the human memory, of the human ability to think.

In passing, I would say that probably in all of the armies which fought in this war the responsible men used strong language during meetings and discussions which, had they all gone down in records, would today cause the milder ones to shake their heads. Wrath, impatience, worry, and anguish because of damages sustained frequently lead responsible persons to wild utterances. What counts is not whether such words are uttered but the deeds which come after such excitement dies away.

The prosecution had many long months to prepare its case. We, the defendant and I, received the real documents on the indictment only in January. It is beyond human capacity to examine everything within such a short period of time with the thoroughness which is necessary to assemble the required counter-evidence. The presentation of argument on the part of the defendant must therefore, be full of gaps. It is particularly difficult in this case because within the short time available for preparation it is impossible to study all the problems which are brought to light as a result of the Dachau experiments. This calls for special technical knowledge which a man such as the defendant, who never studied medicine, simply cannot possess. However, as this trial is held simultaneously with the trial on the Dachau experiments,^[73] the danger exists that the important and exonerating facts brought to light there, through the defendant experts and their well informed counsel, cannot be properly appraised in the present case, and in this way the cause of justice is endangered.

All of this I merely say in order to ask your Honors not to lose sight of these angles in judging this present case. Honorable Judges, please bear that in mind also when examining the documents which I shall submit and, giving ear to that extent to the voice of humanity and of justice, lend your assistance to a man who, cut off for so long and bitter a time from all his information and other aids to support his memory, has been called upon to defend himself before you. If at any time the fundamental principle of penal justice, which exists since the days of the wise Romans, should find application, “In dubio pro reo” (In case of doubt favor the accused), it should find strict application in this case. That is what I wanted to tell you as an introduction.