Translation

2o the
Federal Linister of Justice,
Dr. Dehler, or his official deputy,
. in 3o nn
iiAte, I
,ret - Security I nformation
7 January 1953

This doctment /s
p
art
of
art
!tt
_

lt separated
from
the tite
sr2alt sillocted to Individual systematic resists.
rzeD
ur.;Avis 'ra)
cza:zsma "It
;Las am4,
32:11
wIE"'It 4=9=II

Ual Ito
4 -- Vs
7-2' CI. ...111
t.1
Subient: I nvestintion Procedure azain:,t the businessman
Otto hietdorf, and others,
for offenes in the intsr-)retation of
:.,rtdoles 128, 129, 4 9
b of the Penal Code
ReZeJehce: Previous reort.Ddated. 9., 18, :, nd 21 October 1952
I n iriew of the "act that the investiations have non rec: a final
sta summarize ms
1. Histor-

the =on.adure
I t mar be taken for .zranted by now thi7.t it ii common kno7lec..,
thg t the basis of t
h
e--, -,--. ocer re is that
p_ ot onciee o the :I ne--, ca cc canc=ed.
the fir -t of 1 7;51 -- i-t
-1---' ,,..1.zai n. ,--- .' : o: -' 7-:.-i ,-(-) 117H4 7 4JJCOWO
=

1261 ligs 12.1:.,i'.'r. '-' ' SOV- i_tI' ''''.-7,=': '-' ,10 ? 7 t' er 1et ' - ,117, .--ov.1(1
...c -J4 2/0 u,
J0 ha-le .) ,-e- ' o set ui: :.-Ji illcrill,... 4--foo--,:3 _ :, -:7! .,, t e,Titnry occ-::
wi
C=1 Las Ca
ws ' )-; the ,ne-Y-. orhiz,tion -nd eetb-
-- at
taJ lished without the 1 -:now1e5 ,-e n aerman
Cl,col Ca 0
CJ7 1c wI n r(iviewin - rocedure alSueu sued from
cw 31
th 7 e diclosare of this orn1,Fl.tioh, it tht it is divied
C-J =r,
in two distinct )arts:
0 LI cr, at
Durin the first part, 7;hich covezs the ricd r' Tfro-, the =isco-,,re, of
fhP nntil t;! 1.o ' relerLq e fthe.arretd e x.:cused on
tember 1952, investitions concentrateC. or the cla-rification of
the (lI ction . tillether 02 not the ori;anization was built and led,
..imcroan military azencles
The second part of the invest-i ations beieins ' ith the speech of
Linistor Preide-:t Zinn before the LandtaL on 8 October 1952.
2rom then on the invetiL;-atiome centered principally aroaar the nature
XI MX of the oranizationt s activities. There was, in the first -.place,
a suspicion that the orcnization planned, to remove political
o2]ppnents, its preparations consietinL of ashland up a list of pros-
cribed persons.
Public criticism experienced in rezard to scyme of the Llet,,el-trec
in the course of the iyrocedure, is doubtleesly based on the fact
that no attention was paid to the circumstance that investiations
had to follow up several different lines in both periods of the
procedure.
Secret - Scc,grity
Trl'ornatio-.
The investigation procedure started from the point that the business-
man Hans Otto,aformer member of the BDJ Land Lianagement, and
himself a member of the staff of the "guerilla organization", made
confidential statements concerning a secret organization founded in
1951
by Erhard Peters, former 2nd Chairman of the FfJ; he
made those statements on 9Septer-lber 1952before the Polizeipraesi-
dium FrankfuTt/L, while involved in the case of a denunciation for
bribery made against an official of the Criminal Police in Frankfurt.
This organization (he said) was called "Techniecher Diehst des 3DJ"
(Technical Service of the TDJ), and occubied itself with inc mill-7
tary training of its members so as to be ready for guerilla warfare
and sabotage in case Soviet-hussians should occupy ',Vest Germany. On
13 September, the Poliezeipraesidium Frankfurt/L., by order of the
Hesse Linister Freeident; began large-scale measures againsYthe
leaders and members of the "Technischer:Dienst" living in Hesse;
this ended up in the apprehension of the treasurer and adjutant, the
businessman Otto Rietdorf from Frankfurt/M.; of the Land
Chairman of Hesse, the commercial employee leudolf "Kaderma-
cher from Neu-Isenburg near Frankfurt/L.; and of the training
chief of the organization, the businessman Friedrich Karl Kleff
from Hamburg. The acaused were brought before the Amtsgericht (Luni-
cipal Court) in Erankfurt/., which issued a warrant of arrest on the
grounds
"that they had participated in an organization whose existence,
statutes, or purpose were to be kept a secret from the Govern-
ment of the State, and that they had participated as ring-
leaders in on organization whose pur-oose and activities were
bent on committing punishable acts,
offenses in the interpretation of Articles 128, 129 of the
Penal Code".
At this stage, I received on 17 September the dossiers including the
report of the Director of Public Prosecution in Frankfurt, in order
to examine whether the p rocedure should be taken over by me pursuant
to Art 74 a par 2 of the Law on Judicature. This report, which was
handed over personally on 10 September, with the dossiers, by the
ijirector of Public Prosecution Buchthal and by the First Prosecuting
Attorney Donath, presents the main points of the summary of evidence
as follows:
"In Larch 1951, the Second Chairman of the 1;und Peutscher Jugend
(BDJ) Erhard Peters, whose whereabouts are unknown at
this time, began establishing the so-called Technischer Diehst
des BDJ, which is said to have been completely separated from
the BDJ at a later date. This organization Peters teamed a
political and armed resistance movement, It aimed at armed
resistance, in case of anceian occupation, by blowing up bridges
and i sabotage acts. In roY-ar, to d)rmetic policies, the
U0
i tinitltiwtowof the orani,I;E,tion were to onbrace also the struLble
ks et:ova , oeI fainmeasures in con GC 'Lion with
6 ,/tc sepatsa., sOlej problem of remilitarization.
" to 11''
si olecs
hr,!con,noisJanco , nC -resistance nots were built up in tho
zone, for the purpose of camouflae, the firm of Johann
Saxer, :3Jes Loroch/HeJse, etab-
-
Li.o.).Iti 1 a
- 3-
lished, the manager of which is the father of Peters, the
businessman Emil Peters in Lersch/Hesse. The firm of Saxer was
financed by Peters junior, who received large amounts for his
organization. It has not yet been found out just Who the real
financiers and wireDullers of Technischer Dienst are. The con-
siderable funds, amounting to more than 12 -:.00C DL, are said to
have been furnished by f.mAmerican civilian, the landscape-
painter ter1inn Car woo d , whose present whereabouts are
unknon."
Then follow details on the commercial camouflage of the organization,
and on the training in Waldmichelbach. The report does not say what
the arganization's other punishable acts were. The vague hint that
in regard to domestic policies "the missions of this organization
also embraced the struggle against the KPD, and certain SPD measures
in connection with the problem of remilitarization" did not disclose
a susnicion of punishable acts of this kind; according to the
findings at the time, this hint was based on nothing but one sentence
in the statements made by Otto on 9 September: "In regard to
domestic policies, the aims were directed against XPD and SPD". The
warrants of arrest were made out on the basis of the investigations
at the point they had then reached; in defining the suspicion (on
which the warrant of arrest is based), the report of the Director of
Public Prosecution in Fr ankfur t /Le is also restricted to the Articles
128, 129 of the Penal Code.
As the statements of the accused at the time allowed the -eresumption
that the organization was backed by American euarters, while on the
other hand the Director of Public Prosecution in Frankfurt/E., on
handling over the material,reported that the American Military govern-
ment in Hesse denied, that its agencies had promoted "Technischer
Dienst des BDJ", it could not but be of decisive import for the future
procedure whether or not the organization stood by order of the occu-
pation power. In order to clarify this question, my assistant was
sent to Cologne and Bonn on 19 September. On 23 September he wrote
a memorandum concerning the result of the visits he paid to the Federal
Lgency for the Protection of the Constitution, and to the - Ministry for
All-German Affairs:
"On 19 September I then reported the matter to Dr. John, President
of the Federal Agency for the Protection of the Constitution, who
declared that the Federal Agency for the Protection of the Consti-
tution, including Vice-President hadtke -- who is mentioned in
the dossier, but who was not present on the day I made my report
-- had nothing to do with the matter. However, as far as he was
informed, American agencies had occupied themselves with traing
some of the BDJ members with arms. He recommended that to this
end I contact the federal Ministry for All-German Ai-fairs in
Bonn. There I again reported the facts to State Secretary
The0i,qAmp.nd his assistant, Oberregierungsrat Dr. von Dellings-
, t-k th. kligeitithAJI, I was assured that the Linistry had only made one
k tt
oconar'tz te a tor. tioatiotle:t7the BDJ, which was at the occasion of their Whitsunday
01. sela l eavillua
'mnting, but that they had nothing at all to do with the occur-
rences rences which are the subject of the procedure. The finistry,
- Pnt I n ciormatio-o
- Securii,
y
iniormaiiou
- 4 -
like the Federal Agency for the Protection of the Constitution,
had. even repeatedly warned the members of the 13DJ Executive Com-
mittee against setting up military organisations, or against
occupying themselves with military affairs,. However (they con-
tinued) the Ministry was aware that American agencies were of a
different opinion, and had. given the BDJ, until hay 1952, some
kind of assistance, presumably also of a financial 'nature. Upon
my request the I:anis-try undertook to ask the American agencies
to state their opinion, and to return the dossiers (which I had
given Dr. v. Dellingshausen for his information) together with
their opinion during the first part of this week. The federal
Agency for the Protection of the Constitution was to heve a part
in this (note; e.g. the request to be made to the American
agencies). I have called attention to the urgency of the matter,
and to its being a matter which involves -rreets,
After seme inetermediate provisional declarations, t7-Le details of
I related in my report of 21 October ; the federal Lo:e:ecor for the Pro-
tection of the Co7stituticr rerorted on 30 Se-ctember o tbe of
if approach to VIP : r tinant Amemicen
:The cntente of tt
as6:1.9-nt in thrr!
r.ee:).79; Dr 0 Un1 Tau rs e the IMme71 . eeLency
tir Protctio-o +.1-!e Cooeti -Fr1- 4o - Colo,Te
,,, fte17, 0 0 r ThPoninins of the of Lmeric; -.11 Coca-
-nat. -joy' rower moult h Henc'ue ,q over -tomorrow morni n.,7, 0 It -,Ai? ..= 1
1 j_0 -` .rFI to s-qy that the accused had anted 1, :r ord.er 0-f the
Lrnerinn ? .L...chcy. It was not roble to make this statement
sooner because of mrnl Treecott I s absence, Dr. Nollau is of
the opinion that the basis for the continuation of the nrocedure
is no loner eY4 stent bec,-.-olce the CO-'21;ill.l?Ptnnt
no obections to relesse the accused from
custody."
This statement constitutes, as was exnres--I ly confirmed at a later
occasion, an official declaration on the part of General Trescott s
aznae; , which, aocordin. :; to the j c. r, ire of that agency, wae addressed to
me with an eye on the present investigation procedure.
fir
this official declaration of the Amel,:. icans it was established that
the .
organisation was based on initiative and, directives of a military
agency of the American Occupation Power, and that, therefore,. it '.1.Te..s
not a secret organization established by the private initiative of the
German individuals concerned.
Regardless of how the objective legal situation might have been eva-
luated in view of these facts, there was no doubt that the accused
could not be charged with the elements of Articles 12R, 129 of the
Penal p,cAkv,
as they, correctly, stated to have 1.en under military
uc,
IACOrlt.rs-'0101 trrl
occupation power. 2,s no accusation of other puniehable
IA As. Iva pte
. wxv,c" trota o'u4v4Ptuter. oe raised, and ',.vas not discernible at tais point, the
U.? -
-cAcca.ed had to be released from custody. They were released on 30
Only on the followine day did President Dr. John of the Federal. Agency
September by teletype 'message addressed to the prison in Frankfurt/110
for the Protection of the C
onstitution call again; he stated what has
SeelTrity TrformaVon
''107.":1 by
t e1 1Y
been laid down by my assistant in a memorandum as follows:
.
"that, on the basis of the latest declarations of the Amerran
agency, it has become a matter of doubt, whether the accused
could feel authorized to do what they did. President Dr.
John hinted that the accused might possibly have been double-
de aline.
At the moment when this telephone conversation took place, the
accused had already been released . from custody. thy assistant had
asked -1-; _r0 John during the afore-mentioned telephonic conversation
to send over any new material which might lead to different evalua-
tion, in order to render possible an investigation into the question'
of re-arrest. However, no further statements in this regard have
been made. The unsubstantiated allusion made during the telephone
conversation on 1 October was no sufficient basis for a new arrest.
During the investigations made up to that point, the material con-
fiscated during the police investigation in Hesse had, on the whole,
remained in the hands of the Public Prosecutor in 2rankfurt/L, The
Director of Public Prosecution, Frankfurt/LI had merely attached to
the report of 17 September a folder concerning the military courses
held in the Odenwald; this was what a remark in this report was
referring to which spoke of the confiscated material. If my substi-
tute, Bundesanwalt Schruebbers -- who in the meantime left my agency
because of his appointment to Attorney-General in Duesseldorf -- left
the rest of the confiscated material in the hands of the Public Pro-
secutor in Frankfurt/k0 , he probably believed that the material had
been made subject to a first check by the Director of Public Prose-
cution in Frankfurt, and that it did not contain anything of material
importance for the procealre with the exception of the folder which
had been handed over. Actually, the confiscated material had appar-
ently not been sorted out at the time when the dossier was handed
over to me, not even by the AttorneyGeneral in FrankfurtAIT., as
otherwise it would be incomprehensible that there is no indication
at all in the report of 17 September. The result of a later examina-
tion, which must have taken Place between 17 September and 8 October,
was not communicated to me by the Director of Public Prosecution in
Frankfurt/L., whom I had informed of my taking over the procedure on
2 October; I learned of it only through the declaration which the
4nister President Zinn made in the Hesse Landtag on 8 October. Fart
c9f the material was given me on 17 October after I had asked the

- .C 'Director of Public Prosecution in Frankfurt for it on 10 October;

the rest I received on 24 October.
The declaration made by Minister President Zinn presented a quite new
object for examination by the future investigation procedure, an ob-
ject which may be outlined by the catchword "list of proscribed
persons%
. after a meeting on 14 October between the Federal Minister of Justice,
the Hesse Minister President, and representatives of Hesse authorities,
I considered the re-arrest of the accused hietdorf, and a proposal to
issue a warrant of arrest against Peters on the basis of that meeting
as well as on the basis of the suspicion of "Fememord" (note/murder
following a sentence pronounced by a Vehmic C ourt); which suspicion
- 1.2$ 3 ,41aV- Lra1orlm6L:H)
Securi fniorina,
arose because of the article published in No.42 of the "Spiegel".
Before the police could carry out the order to arrest Peters and
Rietdorf, both accused came here on their own accord, and were
thoroughly questioned by my assistants during the night of 15/16
October. After the first questioning they had been provisionally
arrested. However, after the interrogations which included Otto
who had made the first report, and Hans Breitkopf who had been
collected in Bremen, the accused were again released as there was
no suspicion . vhich would have ju tified the arrest.
On 20 October I informed all Directors of Public Prosecution that
I had taken over the prosecution in the investigation procedure
against members of the "guerilla organization" which procedure the
Attorney-General Frankfurt/1d0 had initiated simultaneously under
the auspices of Art.129 of the Penal Code; I requested them to
inform me as soon as possoble, if necessary with the material they
may have Obtained, of any findings arrived at in a cA, areas of
jurisdiction of the Directors of Public Prosecutiontwhich might have
bearing on this procedure.
In Hamburg and Bremen, the local Directors of Public Prosecution had
instituted proceedings against members of the organization; in
Hamburg, nine warrants of arrest had been issued for offenses covered
by Article 128, and in Bremen two warrants of arrest for offenses
covered by Articles 129, 49 b of the Penal Code. After havin::s dis-
cussed with the pertinent Directors of Public Pros4cution, on 21 Oct,
the stage of those procedures then arrived at, I took over those two
procedures in accordance with Art. 74a of the Law on Judicature. gR
At this time, only the warralts of arrest .against the accused Breit-
kopf, Semat and Topp were still Dending. I had these three accused
brought to this town. Lfter their inte=p ation throun my assistant,
I presented to the Second Criminal Senate of the Fezle-0 1 Court for
their decision the writ of habeas corpus suI)::, i tted by th e se three
accused. By decision of 12 :Tovelsber, the Senate cance l led the ,i,:x -
rf.,..nts of arrest, stating:
"The consesuent results of the isvesigation procedure did not
lroduce sufficient substance to the charge of offense in the
it, nter-oretation of Articles 120, 129, 49 b of the Penal Code,
047 r1
4 0 OP,0 ehis pertains, in ',)articular, to the suspicion that the organi-
zation, to which the accused belonged, purported crimes against
,a sc .
the life of persons whose names are contained in the so-called
"list of proscribed persons" and in other lists and card
indices."
This reasoning correspondgR4ed to r q y own opinion of the fects.
The Attorney-General in ISunich presented voluminous investigation
material on 5 7 ovember, accompanied by a report of the Director of
Public Prosecution in Lunich II , fhich investigations had been con-
ducted by the 3svarian Land. Police in the entire Land Bavaria. The
Praesidium of the i3avarian Land Police computed the results of the
investigations of :50 October us follows:
"In Bavaria, evelythia6 has been done, in accordance with
Art.163 of the Code of Criminal Procedure, to throw lieht upon
this obscure affadr. However) no proof could be produced so
far for the ex istence of a punishable act in the interpretation
( 13 iitj
-:ret - Se9-urity InformatoD
of Articles 49a, 49b, 127, 128, 129, and 211 of the Penal Code."
The Attorney-General in Munich also stated that he did not believe -
that there was sufficient evidence for a punishable act in the inter-
pretation of Articles 49a, 49b, 211 ff-of the Penal Code.
On 6 November, the Attorney-General in Stutte art submitted the findings
of the Pain Criminal Police Agency of the Land Police in Wuerttemberg,
with a report of the Public Prosecution in : i-tuttgart, which says in
regard to the "list of proscribed persons":
"There were no lists from Baden-Wuerttemberg in the folder which
contained the lists of persons submitted by the Land leaders.
The big green card index containing names (see Annex III of the
Police Report) was checked for names from Baden-Wuerttemberg.
The index is made up for office purposes and contains names
which have come up in "Technischer Dienst" in some connection ar
other. The cards usually contained a remark about where the
names had been found in the files of "Technischer Dienst", for
instance a collection of evaluations of important persons, for
instance Kalbfell - see Annex I of Police Re-: -Dort, page 41 -- and
Schoettle -- same page 43. These two evaluations alone prove
that the collections are no lists of political opponents (see
p043Schoettle, whose opposition to the KPD is pointed out),
but merely constituted a. collection of material for evaluation".
On 23 December, the Attorney-General in Braunschweig submitted to me,
for my information, a procedure pending before the Public Prosecutor
in Braunschweig; here a Braunschweig journalist by the name of
Dortants accuses an alleged former SS officer by the name of Anders of
having occupied himself with making out
"bladk lists"
and of having said that in "Case X" the persons so listed would be
"done away with" (umgelegt werden). In the course of these investiga-
tions which, in their present stage, do not present a clear picture,
the name of the accused Peters appears once; however, for the time
being there is no direct connection with the "guerilla organization".
I have not received information from other Attorneys-General concerning
proceedings which may have bearing on this case.
, The principal accused and other persons invo1ve0 -- Peters, Rietdorfs,
e -reitkopf, Otto, Plots, Lueth, Tapp, Sewat, Wagner, and J7ioimann were
euestioned by my assistants in thorough interrogations, SO'il2of -,i!hich
were repeated, b'imultaneously, by ru orders, officials of ji:LE: federal
Criminal Agency interrogated Land. Chairman and oV-k r. ,: r rf'.obers of the
,?
organieation, to wit, the accased, and witnesses, Kaufeld, Kirchhof,
Wolf, Schmidt Zietlos, 3uxell, Pintscher, Waibel, Depr, Schroeder,
iiersusing, Fischer, and LaderLlacher.
Combining what is said above, with the investiations conducted by the
Wuerttem: berg and Bevarian Land Palice, it can be stated that by non: all
leading )ersons in the orahization, all alembers of the staff, und all
other persons inn, position to give information have been heard, as far
as they coilld be onotioned by German authori t ies. This restriction .
refers to the ArlZriCFMS infolved who could not be questioned. I have
tried, by informal contact -- in fart through the Federal Agency for
Seuurii-V
IorrnaA
cret -
SecuriV Information
the Protection of the Constitution, and in part in talking to an
American representative of the Staff of the High Commissioner who
had been sent to me -- to obtain access to the statements of those
Americans who had been concerned with leading and supervising the
guerilla organization. However, this attempt was of no avail.
At the moment, only supplementary investigations are being made
concerning some detahhed points; this, however, would merely mean
completion of the over-all picture. For instance, the Federal
Agency for the Protection of the Constitution has been asked to try
to find the as yet unknown agents who produced the rawamatcrial for
the lists of personnel (see 11 5)which Hofmann and Dr. Wagner fur-
nished the BDJ. No change of importance is expected in the over-all
picture by these and other supplementary investigations. The inves-
tigations have reached a certain final stage; I am unable to discern
any sources to be tapped for new evidence.
II. Result of the investigations
I wish to compile the result of previous investigations under several
headings which, in part, follow from the natural structure of the
material, or, in part, played asp ecial role in the public discussion
of the affair..
1. The American commission
As has been said at the beginning, there is no longer doubt, after
the various public statements made by American agencies, that the or-
ganization was established upon the initiative of American military
agencies. All persons concerned stated that the organization was set
up, financed, and continuously supervised by an American officer who
was called "Garwood". In Garwood t s former residence in Steinbach/Oden-
wald searches produced an English organization plan Which, to judge
from its contents, originated in the American Army.There is hardly
any doubt as to the genuineness of this c: : ocument. Although American
agencies have made no officiql statements concerning this matter, the
American representative to whom this document was submitted, did not
doubt that it is genuine, although my assistent called his attention
to the objections raised by others. Incidentally, several Germans
concerned with this matter, who know Garwood t s handwriting, declared
unanimously that the handwritten amendments in the document were made
by Garwood.
The "missions of the organization" are being described in this organi-
ze, 'nalplan as follows:
*41'
to set up, to train, and to maintain, a secret resistance
movement in the East and West zones of Germany, which is in a
,
position to conduct guerilla and sabotage activities against
,z
the entering and occupying Soviet forces,
B. to collaborate as much as possible with the western forces
during the period before the war, on D-Day, and during the
period of occupation of Germany by enemy forces."
Concerning the intended "activity of the organization", this jmerican
organizational plan states:
- 4 - -
-,cre
t
- Security Iniormauuu
- 9 -
"At During the period before the warA
The peacetime mission of the organization is the perfectiening
of tactics, of the intelligence connections, of the knowledge
of the terrain, and of sabotage methods.- Its second mission
is to serve as an information service system in cooperation
with other organizations, and to collect material concerning-
the requirements on higher level.
B. On "D-Day":
The principal effort of the organization during this period
should be to destroy the strategical potential, which is the
organization's present destination,
C. After D-Day, and during the ensuing occupation:
The remaining leaders will begin to reorganize, and to start
on surprise attacks and active sabotage. This means the be-
ginning of resistance*"
The following text speaks of "the Allied commander who employs and
lends support to the resistance fighters" assigning a liaison officer
to the Echief of the resistance movement".
Prom all that it follows plainly that it was the intention of official
American agencies to make the organization a link in the chain of an
extensive military planning; that in case of war it would have to carr,
out certain military missions under American or Allied command; and
that in the moentime it was to prepare itself for these military mis-
sions to be carried out in case of w e er. Therefore, it we s not Garqoodi
private undertaking, but, according to the official Americen version,
a military formation , ehich was ke pt secret because it was eat naea to
be used as a guerilla group at a leter date.
On the whole, the Germans involved agreed that they resisted the idea
of guerilla warfare which they believed to have no se nse , and that
their plans were to she-bherd able-bodied men to "safe areas" in the
West and the South in case of an occupation by Russians. However,
their thoughts exclusively centered around the war they feared.. Except
for unsubstantiated utterances made by Otto, there has been no indica-
tion that the organization had pegged out goals in regard to domestic
policies.
WXo4ver should try to find the ideas of the organization in the
as,
. T wcal regions of the "Yreikorps" and the "Kampfverbaende" after the
'.VVt World War, overlooks one important psychological element. The
\ .
sis from where the so-called guerilla organization started was panic
aZi* ,
fear; this was the over-all impression gained from the numerous
4%
interrogations. Many members of the organization were former officers
who were afraid of death or deportation in case of occupation by the
R u s sians. Their desire was directed more upon salvation from personal
danger than upon pcilitical power.
-
Certainly the desire to work in this organization was also, in part,
due to the richly flowing funds. According to the cautious statements
made by the accused Peters on this point, the American payments to the
organization between -say- March 1951 and September 1952 must have
-
Se curity Inform at 0 D.
-
SteArity Information
hret
amounted to at least 500.000 DE. It was not possible to get full
information on the 'strength of the organization; the statements
of: the persons concerned vary between 1000 and 4000. However, the
statements made by the Land Chairmen indicate that the figures are
actually lower than those they may have given to the American
agencies, perhaps for financial reasons. Hardly more than 100
metbers of the organization were trained in Waldmichelbach.
2. Connections with BDJ
Some of the leading. persons in the guerilla organisation, especially
the accused Peters, came from the BDJ; recruiting, especially
during the first period, was mainly done among BDJ members. Beyond
that, an organizational connection between BDJ and gaerilla organi-
zation was not discernible. The fact that the organization f during
its initial period, appeared as "Technical Special Service of the
BDJ" has been explained as a camouflage Deasure, and this seems to
be credible because under that name recruiting would be much less
conspicuous. Actually the organization, although it was at first
set up in offices close to the BDJ, was never a sub-organization of
the BDJ, but was independent from it because it received American
guidance and funds. However, all persons concerned who were aware
of internal developments -- for instance Otto -- stated unanimously
that in SUM=of 1951 the BPJ was se7)arated, as far as offices and
personnel was concerned, from the ;BDJ by express order of the
American liaison officer, and that they were kept separate for
security reasons Although Peters had been e lected 2nd Chairman of
the BDJ in Lay 1951, he had, according to his own statement, re-
signed from this position already in June of 1951; at say rate, it
could not be proved that he had actively worked in the
. 3LJ after
that time.
Nor did the questioning of Paul Lueth, former 1st Chairman of the
BDJ, reveal in any way that Lueth . himself, or tne 13DJ as an organi-
zation, had had any influence upon the "guerilla organization%
3. The "Civil War Document"
eo0''
Public discussion has pointed
out that the memorandum on "Leesures
to Combat Ip terne l Disturbances", cunfiscetec.I. e mone the props rty of
the accused Ircietdorf, is proo:n . of the o:zEnization t s tchdenc:: to
exert influence ovflr ors 7 _ , olicies. The a. 002 :opp
written t1-at
eHisg that
ooni ed 1LY. Le narts of the document frau nit ol(7. :rikoDrs
' ,,ezsd.mical "Der Leiter-
contailed. an order issued
zoia 11(2ichswehr commander at e time of interral unrci, I have in
.in tried to find that periodical in one of the af=an.li-or=ies.
no vr
ever, a private source explained to me in th c . th,0: Topm(s
m emorandurri :3p2arently reproluces - .parts of an order froLl General
is mice curing the tides of internal disturbances after the
Pirst World Wer.
Perch 1r51, To the ,-oc..,sc:(1 Peters this meiJorandum eLi oh
jag to his own e t?tement he
-1.ae, -Lide for the 2DZ; Pc:ters was
then still the Second Chairfl of the B2J. Peters states to
h,-Ive
- 2SSOC1 in on, for e l
ination, to in officer he knew', alleL;eftly a
certain Colonel Doez. k in Berlin, and then to have put it avr a,7 as being
insignificant 7Decase that officer rated it rather low. Rietorf
asserts to have seen the document for
the first time when the written
i,3111,ykaiOka1A0:11
be,cality iniormatleD_
- 11 -
material of the organization was being destroyed, and to have taken
it because he found it interesting. . Investigations are being 'lade
as to the whereabouts of Colonel Doerk.
Tcpp t s memorandum indeed shows critical, and mostly ironical, remarks
written in the margin; their tenor seems to indicate that they were
made by a military man. The date of the memorandum (March 1951) does
not seem to indicate that its ideas resulted from the guerilla organi-
zation because in Lerch of 1951 that organization was only in its
initial stage. llor are the contents compatible with the aims set for
it by the Ameridans, or with the ideas which have been found to occupy
the minds of the other members of the organization; in any case, the
organization was guided by the thought that a war might break out, and
was not at all concerned with internal disturbances. Therefore, one
cannot draw conclusions from the Topp memorandum as to the rature of
. the ideas other members of the guerilla organization may have fostered;
at least, it cannot be disproved that this is an essay of purely
theoretical character, without inner connection with the organization,
and which was not actually used in any way, nor was even seriously
worked on inside the organization.
4p The suspicion of a "Fememord" aroused by the "Spiegel" article,
was found to have no basis. All investigations made in this regard
have produced no proof for a "Fememord". In the Deantime, the "67,iee1"
disclaimed its own information.
5. The "List of Proscribed Persons"
The declaration made by the Hesse ninister President Zinn before the
Landtag on 8 October 1952 may serve as a basis to start from, as that
declaration was largely responsible for the idea which the public con-
ceived of the suspicions. According to the Landtagl s Printed 'latter
ill No. 32, the Hesse Linister President stated in this respect:
"At the same time, the organization outlined for itself a mission
in regard to home politics. The Section I f, the so-called
'Abwehri (counterintelligence) was supposed to find in the
Federal Republic persons who, in the opinion of the Technischer
Dienst des 3DJ5 miht be considered politically unreliable in
case of a military clash with the Soviet Union; or who, according
to the presumption of the Technischer Dienst des BDJ, might be
considered for employment in German administration under the
Russian occupation; or who, in the opinion of the Technischer
. #L-ist of the BDJ, are opposed to a German contribution in the
Ag-Wnse, or to the Contractual Agreef2nt and to the Y. DC Contract
,=according to the confession made by the chief of the couvIterin-
t
' telligence, those persons were to be Ika1tgeste1lt 7 (note: this
word may mean anything between ostracize, ee). ice,
with) in Case X. a to ceefeYeion, hc
and the other leading persons of the orgLnization undretood that
term to moan "elmate", receseary h'He us? of wea-eorc".
A etrikin Pa etau is it, that there were oely 15 indeez cards-on
coa:eleist:2 among the cofiscated material of the couleterilitelli-
Le-_, nce, but
'roxil;. e'hcep 30 cards on leadin eocial-Cemocrats. "
After mentioning a few namies of social-de:Locratic politicians,
cont'-eued:
Se.oarity informatlfrn
OWtaircity
- 12 -
"The index cards contain a description of the person, and a
detailed - n erson al ' hi sto ry of that person. It is remarkable
that many of the SPD members found in the card 4 .- 1 de:sr are
being suspected (by them) of haying connections with the
communists, for instance, the Hesse Minister of Interior
Heinrich Zinnkann. All of you know the Hesse Ministers Zinn-
kann and Metzger, and all of you know how senseless and untrue
such statements are. That there are only a few communists in
the card indexl may perhaps be explained by the fact that one
of the prominent members of the organization is suspected of
having connections with Karlshorst and Panko7;0
In addition to the card index, a list was found of approximately
120 prominent SPD members, incluing the first Chairman Erich
011enhauer. The cards belonging to that list are not there.
There was also a series of lists of SPD members, which we con-
fiscated."
The investigations revealed what follows:
The Organization, which had been given the additional task of "in-
formation service" in the American organization plan of which extracts
have been reproduced, maintained in its staff a section "Securit
whose mi ssion was to be that of "Abwehr" (counterintelligence) in the
meaning apelied to it by military formations.
That section was led until fall of 1 951 by Hans- Otto, who was then
relieved in the management of that section by the accused Rietdorf.
The declaration of the Hesse Minister President mentioned Otto as the
leading man of that counterintelligence agency, but this is true only
to a very limited degree. The interrogation of Otto by my assistant
proved that he did not know the most important card indices and lists
of that section because they were prenared only after he gave up the
position of chief of that section. Therefore, dito, when questioned
by my assistant, was forced to make considerable corrections in several
points of the statements he made before the police and before the
German-American Investigation C ommittee in regard to the contents of
lists and card indices; he tried to vindicate himself by saying that
he had accepted as true, and had corroborated, statements made by
persons who had been interrogated before him on behalf of the contents
of lists and card indices, without having actual knowledge of the facts.
For instance, he told my assistant, concerning his assertion which was
repeated by the Hesse Minister President in his declaration, that the
card index contains only a few names of communists, and for the rest
mostly names of social-democrats:
"I was told during the interrogation that the card system con-
tained a few communists, and for the rest only social-democrats.
I accepted as true what inc interroeator told me about the con-
tents of the card index..... I see now that I should have said
correctly that I did not know what was in the card index of
opponents nor in the list of proscribed persons. I allowed myself
to be misled by the assertion that the card index contained the
names of some communists and of many social-deLlocrats...."
This man Otto was a former SS officer who efter the war had worked for
a British Information Service, and who was in touch with professional
TT'

raNT in c
iormat ion
- Sevii gity
Inform&
intelligence agents, for instance with Wehlen who was arrested during
a. treason trial; therefore, his personal history makes a somewhat
dubious impression. He had already, some time before, been the chief
of a Section I f in the federal Executive Committee of the 3DJ in
which position he had performed similar work which is something
between the collecting of material and counterintelligence work.
? hen in summer of 1951 he and the accused Peters went across to the
latter's organization, Otto transferred considerable amounts of the
information maj:erial which the 31.)J had collected. However, tnat
material was rearranged to suit the puroses of the new organization
on1,7 after Rietdorf had become the chief of "Security" in fall of
1951, and after 3reitkopf had been set to work on the rearranging.
It was only during. these activities that 3reitkopf set up the card
indices which have now been confiscated. The 'olloviirg indices have
bearing on this procedure:
a. a =een card index:
This is merely a compilation of the names , Lich T.mef)r
in the other folders, mentioning the exact Tlace where the
can be -roul -id. Therefore it is rr el,,. li-t ofnaaeawathout
special importance.
a red card index:
This one consistin6 sf 70 c.ar,'s and called "Warnkax.tei"
card index) or " 2 4 . -behr7-:artei" (cou7Aeritellii;ence card index),
contains personal date -)ersons who, from the vie-7.oint of the
or-r. hization, were considered hostile, q anerol, .s, ox rwre suc-
-ccted of someth, incl.! :Ldin those had left th orntion
The i
r laa
r.:lso mentions the reason for which tH. ase
appearscts card inde:r.
c0 a folder with the title "List of Proscribed Persons":
con:,istinE; of 12 pages with names, most of then without
and without mentioning the nature of the suspicion that is being
nourished sEainst that person;
a. a folder entitled "L := ta on Individ'utals":
This folder contains, in addition to other political information,
principally those cards on politicians and trade union 1.:lembers,
most of them social-Oemocrats, which the Linister President had
41oned in his declaration before the LandtaL. 0 These cards
ich are completed on standard forms, contain personal data, des-
criptionb of the -eersons, a more or less elaborate personal history,
and political characterization.
.-' * The declaration made by the Hesse JAinicter President, and the ensuing
discussion
in the press, disuieted the public especially because of
the thou:_jit that this collection of names of prominent 6ocial-democratic
politicians may have some connection with the "lit of proscribed
persons" . Linister Presidentinn was probably tempted to make that
association of ideas because of the statement Otto had -mude on 1 October
before the - lizeipraesidium lorankfurt/L.:
"The card index on about 100 persons includes names of persons of
whom i h is known that they are clearly opposed to the rearmaent
of Germany. The index which was by no means complete, also con-
- ecurlly Informataii
et - Security Information
- 14 -
tamed, the names of some communists, and principally social*
democrats, who were suspected of belonging to an extreme
socialist wing which we assumed to be existing, and who, despite
the present oppositional attitude of the social-democrats, might
be employed in prominent positions after the occupation of
Germany by Russian troops."
Actually Otto knew that these cards were nothing but informative
material which the BDJ had collected and which he himself had taken
along with him. To my assistant he stated in this respect:
"The folder "Data on Individuals" is a compilation of all the
information received on individuals. It was supposed to be a
basis for the evaluation, followed by entering the items either
in the card index for opponents or the list of proscribed
persons. The folder "Data on Individuals" contains material
which may be of interest in some way or other, without dis-
crimination between friend or foe. In other words, one cannot
draw the conclusion that somebody is believed to he an opponent
or eligible for the list of proscribed persons simply because
his names appears in this folder which bears the title "Data on
Individuals". That Would be dependent upon the nature of the
infolmation received on him.
The cards "von Knoeringen" or, for instance, "Kaisen", had been
obtained from a certain Dr. Wagner in hUnich, against payment,.
They were not compiled by us, but were received from Dr.Wagner
exactly as they are now filed in the folder "Data on Individuals",
When I went through the cards a while ago I saw that one, No53,
had a remark on it in Lueth l
s handwriting. However, on the whole
the cards are probably exactly as they were at the time they were
received from Dr.Wagner. Almost all cards deal i ng with the person
as well a
with the personal history of SPD politicians, and
contained in the folder "Data on Individuals", caMe from Dr.
Wagner. Therefore, most of these carde must have been received
already by 151e BDJ, e nd must ha-Te trensferre. when the two
groups senaretp:'0
The os.i e. 'n of thoee e o r-'s
foin,d out by investigation. The
witness Dr. Wagner, an employee of Evangelisches Lilfswerh in Lunich,
and Acting 1Lesager of the BEE (3und der , Heimatvertriebenen und Ent-
rec,
hteten . Union of Expellees and Persons Dispossessed of Their
App,ts) in Land Bavaria, had sent them to Lneth, former 1st Chairman
,Wthe BDJ, on a cotielnous base. Lnoth had discussed with DrWagner
he hostile attitude of the SPD in regard to the BDJ,.
end had stated
-
that he would try to -et in touch with th
e "white" social-democrats,
meaning the riegsht wing of the
SPD. In this connection he said he would
like to hone inf
ormatior on leadine SPD politicians. Dr.Wagner
accepted the job after having found the witness Hofmann, a Bavarian
Gerichtsreferendar (assistant judge), eilling to provide the material.
Hofmann, who
after the war had worked come time for an American Inform
thou Service, recruited, with the assistance of that Service, two
agents who provided him sith the a:terial. These two agents, of whom
Hofmann knows only the coyer names, could not yet be found. Hofmann,
of whom my assistant gained the impression of reliability, stated that
one of those agents lived in Hannover, hinting that this man had access
- Security iniorination
-15-.
-
to material belOnging to the SPD Party Executive Committee. The second
agent lived in Frankfurt/U. and worked in communitt cover organizations
by order of an intelligende agency. Those of the cards where nothing
indicates whether they came from either Hannover or Frankfurt/M., were
written by Hofmann himself. Most of these persons are Bavarians whom
he knew, for instance the Bavarian Linister of Interior Hoegner, or his
own Attorney-General.
According to Hofmann, he arranged the outward form of -these cards,
which contain a complete description of the person; he also instructed
his agents to use that form because he was used to it from the time of
his activities in the afore-mentioned intelligence agency.
Hofmann and Dr. Wagner, who merely passed
out working on i themselves, admitted to
merely for moneys sake. Lueth paid appr
cards he receivea between summer of 1950
personal political interest discernible:
can be traced in the material, it may be
mentioned by Lueth9
the material on to Lueth nith-
have performed this work
oximately 13-15.000 DM for the
and spring 1951. There is no
as far as a political trend
explained by the purpose as
Therefore, these personal cards have not been made out by the organiza-
tion itself, nor even for its benefit; they were prepared by Hofmain
and Dr. Wagner who were unaware of the existence of the "guerilla orga-
nization" and who sent it to the BDJ as political information. Most of
the cards which were found in the possession of the organization, had
been prepared at a, time when the cuganization had not yet been estab-
lished. It is certain that Otto himself brought these cards in to the
organization; probably he also got hold in the liDJ of those few cards
which were made out in summer of 1951. That there is no connection
between the organization and the persons. who furnished these cards, is
corroborated by the fact that the organization did not receive any more
cards between armmer 1951 and spring 1952, after the organization had
been separated from the BDJ. The organization merely did some re-
arranging, while no definite purpose or use is discernible. Neither the
Red Card Index nor the List of Proscribed Persons contain names
mentioned in these cards.
Therefore, starting from the suspicion that lists of persons may have
been prepared with the intention, of liquidating them at a later time,
the names of the Green Card Index as well as those of the folder "Data
on ;ndividuals" must be elitinated because in view of the results of
-
,investigations it is improbable, and can at any rate not be proved,
4t these two collections of names were made with such intentiong
persons involved have unanimously called the Red Card Index a
tz.
card index for warning and counterintellience purposes. It was com-
piled on the basis of reports nihich the Land leaders received concerning
individuals living withint their area of jurisdiction and from the
viewpoint of the organization, were believed to be hostile or dangerous;
as the general trend of thought and activities was focused upon the
possibility of an occupation on the part of the Russians, siost of the
names
except those of former members of the organization," -- were
those of persons who seemed to be in a cP,tegory suspected of maintaining
relations with the Last. TT1PF!c
ri=ports, received. from. L;-.nd leaders,
were sent on to the American liaison officr; siultaneouly they were
e-o t ,
-red in the "led Card Index. There are no names of '
- ,r, l1-know-n 'persons
in the cr.-; : a clex. If or doe:, on); fro , ,7,he fact that orL-Frnition
- 0
(-1 16
- ally InTormauo
,t,ueret
k,,
Secwir Informati-n
was a. covert organiez P tion nur p ortinP to . engage in efeuerilla warfare in
case of occu p ation, then this card index -- as nmea.teurish as it may
be -- serves the purpose of -arnin., re a in! ,, t certain eersonJ f or the
sake of protection against them, as well as for the sake of taking
senurity elee-sures for missions to be carried on at a lat
e r time. Teo
structure and the contents of the card index itself does not shoY an
intention to eliminate these -e er s ons -noi or at a later date.
The contents of the folder entitled "List of P roscribed P ersons"
would not in itself permit such conclusion, were it not for the
sensational title. It was not possible to find out exactly nfiy the
names contained in this folder were collected under this title, ivluch
can be said in favor of the opinion that the filing in this folder
was merely- due to lack of something better, because the list contains
merely names, no personal data or facts, so that it could not have
been used for the Red Card index. At any rate, the contents of that
folder with names of quite unknown persons, most of the cards not
mentioning actual sus p icions, do not tally with the idea one has of a
list of proscribed persons; concerning the first two persons on the
Hamburg list which is marked "Hele Stark" the accused Tapp, who pro-
vided this list, contends in a credible manner that the reasons indi-
cated in that place are merely meant as a warning not to contact
those peraDns for intelligence rurposes..
However, there is still the suspicious use of the expression "List of
P roscribed P ersons". It was Rietdorf who first used this expression;
he read it, according to a. memorandum he prepared, in a brochure
written by an Ukrainian emigrant on the structure of a Russian
Security and Counterintelligence Service. That the workd was con-
sciously adopted from Russian language and practice, seems to indicate
that it must be interpreted to mean a licuidation list. Nor did the
accused Rietdorf and P eters deny in the final questionings that their
minds have actually been occupied with this thought. Rietdorf declared:
"I have stated in a previous interrogation that it was I who first
used the word 'List of P roscribed P ersons', and that I found it in
a. brochure written by a Russian emigrant. When I first used this
expression, I visualized a problem which would result from the
mobilization plans. With the mission assiened to our organization
of in OUT mindes, we were oi course anticipating the occupation of
German territory by the Russians. According to experiences
previously made, it La4- be safe to assume that the Russians will
try to organize civilian life by means of persons who are their
friends as far as organization or philosophy is concerned. In
iOny cases it is known now already who will be arpointed mayor or
Landrat in certain territories, if' and when the Russians should
occupy them. I contemplated the question, whether a militarr power
evacuating the territory should leave persons behind who wOuld be
sure to collaborate with the enemy. I myself was of the opinion
that the answer to this cruestion should certainly be "nth". If you
ask me, I admit that I, too, believed it improbable that troops,
forced to retreat while fighting, would assume the burden of takin6
such persons b rAck with them. I also admit that I did not consider
it wrong to settle this problem by a radical solution, namely by
killing. Those collaborators are traitors, if I understand the
.6e3u.rity-
f.W
-ret Sepiurjty 'dor- lti on
situation correctly* I may be under the influence of what I ex-
perienced in the East zone in this respect. Nor. do I wish to conceal
that in the meantime I learned to view such matters more calmly and
prudently. But I do not deny that, when I first used the word "List
of Proscribed Persons" 2 I was indeed thinking of the possibility of
preventing Ruch future collaN) ratore from coopereting with the enemy'
by tbom, i-
i' ecceeeery. It is true that, in the state of mind
as it was P t the time, I had doubts whether tl)e Americ e ns wold be
hard enongh to drew R uch conse,luences, ii.oevor, I believed it to be
out of (_luestion that our own le=an formatione as our organization
previewed them, would assume the burden of '. ueh tasks in vase of war."
Peters made similar statements at his last interrogation.
In view of these declarations there is no doubt that the leadinj
eersons"of the or,-enization, whose thonghts were exclee sively focused
n-n on war e nd occupation, did indeed think that in vase of war the
kiiling of certP ir persons. susreeted of being willing to collaborate
with the enemy might become nedeseary.
The accused, however, pointed out in all interrogations that they
would never have taken the initiative for such measures, but that, as
they conceived it, the initietive would have been left to the res-
ponsible milit ary hight command; also, that the compilation of names
in the various lists and card, indices was not made in preparation of
such measures. Peters stated:
"The expression 'List of Proscribed Persons' may, I admit that,
give rise to misinterpretation. , Actually, we did not plan to
kill certain persons, neither now or at a later date. The lists
we made for other purposes. If the organization had had a longer
life, we might have preprared lists which miejit have suited oux
idea of lists of proscribed persons, namely lists of persons who
could have-been expected to serve the enemy in p rominent positions
in occupied territory. However, what was to happen to those
persons, would not have been our responsibility, but that of the
troop commanders. Our task would merely ha .'e' been to. compile such
lists; however, they had not yet been made."
R ietdorf made a similar statement;
"Although I admit that I myself, when I thought of preparing a
list of proscribed persons, also considered the possibility that
the persons so listed might have to be killed in case of war, I
TIA"stress that a real list of proscribed persons as I conceived
Whad not been prepared at all, As has been said before, this
A5roblem only came up in connection with the mobilization pans.
These mobilization plans were not my responsibility, and what they
contained in this res pect, I do not know exactly.
Actually, the folder entitled Data on Individuals', does not at
all contain a list of persons who were to be killed in case of
war. A list of proscribed persons, as I conceive it, has never
been prepared. The existence of the folder /List of Proscribed
Persons' 4Geg-no.%-at-all-ga)qtaiA-a-li,c;t-gelq,g-wLe-win;Q-tg-be
kiII4-114-9ase-e-wapy--A- is merely due to Breitkopf's collecting
spleen; he filed away lists in that folder which he knew not where
else to
-et - Secaritry Inform.atio-
The Red Card Index was not prepared under the catchword "List of
Proscribed Persons", as is evident by its contents, but it con-
tains rxincipally names of persons who might infiltrate the or-
ganization and against whom the organization was to protect it-
self."
Indeed, it cannot be denied that neither the Red Card Indez nor the
folder "List of Proscribed Persons" in themselves reveal the intention
to make a list of persons who after the occu pation might cooperate with
the enemy in prominent pthnitions.
I take the liberty of recapitulating as follows:
The leaders of the organization never actually thought of eliminating
persons who are their opponents in regard to home policies; however,
their concept of the imminent catastrophe, which they had by necessity
been taught when they received the orders for guerilla warfare, made
them play with the dangerous idea that it might be necessary in case of
war to eliminate real or supposed collaborators. However, there is no
proof that they were already harboring practical ideas concerning
certain persons. In the first place, there is no proof that the lists
of names in the Red Card Index and in the folder "List of Proscribed
Persons" were meant to be used for the realization of such plans. On
the contrary, it cannot be disproved that the aed Card Index was pre-
Pared only as a warning and counterintelligence card index, as rec;uired
for the military commission upon which it is based. When the accused
Rietdorf coined the expression "List of Proscribed Persons", and had it
written on the folder, he may have been thinking of a real .list of pros-
cribed persons in the meaning of a li rluidation list; however, it cannot
be proved that what was actually filed in this folder had. flny connection
with a ii at of proscribed -fl ezeors in the ue, I . e l ' ,. ee,-,4ng. It r! en-p ot be
rel-Ite/ 1 that the accused, who kme7 that all ther "e ctivites 7- C'r(= bre. 4ng
guided and -b. p.,: r7ised by a .' mrican officer, 77:ko alle,:ed to
conside r temsel7es, mow s' :;,-1 1 as fee care of wa_
large orgnize,tio; id 2 et consider y rtl) e ir own i ni-
tiative even when they thou ht o r the iossibi lity of liidations by
means of viole-., ce, but in case o" would leave decision--; to th e future
Allje r SuIze me Ccander.
III. Juridical Evaluation of the facts as outlined above
sn The Per:P g.,' 1 -. 0 7)t tfir organization secret in 9cr.ordance with the
instructions they had received from the ir .merican employers. They have
asserted that in this matter they had believed, in a highest-level agree-
ment between the 2 ederal govemment and the Americans. This statement
is 1 -1 ,9t_Jinbelievable, as indeed the accused Peters atalater date
than Eay 1952 -- of his own accord called on the Vice-
,/;' ' ritSitd' ent of the Feder_l Ageljcy for the Protention of the Constitution,
) .-' told him of work being performed by order of the allies which was
e .0 oncerned aith the future missions of defensive nature.
' In view of these facts, it appears that the constituent facts of Art.1 2 8
of the Penal Code are not established. It would be a prereuisite that
existence, statutes, or purpose of the organization were meant to be kept
secret from the "state government". Under the auspices of the Occu],;ation
Statutes it must be accepted that the occupation powers, having reserved.
the rights of jurisdiction in regard to "protection, pestige, and
security of the Allied Forces, w+4-4 .e.tvn the sovereignty of the Federal
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Republic in matters of military security, and therefore l and insofar,
mist be considered to be the competent authority in the interpretation
of Art.129 of the Penal Code.
However, at any rate, howsoever the objective legal situation may be
evaluated, it cannot be disproved that the accused believed to be
justified by the military commission assigned them by the American
occupation power, so that they were not aware of illegality.
b, The result of the investigations made ihregard to the List of Pros-
cribed Persons is insufficient to apply ..rticles 129, 49 b of the
Penal Code. The punishment laid down in the last-named stipulation
is meant for participation in an organization "which aims at crimes,
against life, or considers (crimes against life) as a means to other
ends." The first of these two elements is obviously out of question,
because the purpose of the organization was.not at all that of com-
mitting crimes against life. However, the facts are equally insuffi-
cient ax to establish that the organization considered killing others
as a means to other ends. "Conadering" in the interpretation of this
article does not mean thinking of killing, but requires a certain
amount of clear determination. The two parts of the now valid text of
Art 0 49b of the Penal Code have grown from the concept "conspiracy"
(see the history of RGST 69, 164 ff.), so that the established prin-
ciples of the former text will have to be taken into consideration.
The prerequisites of "conspiracy" are thus explained: that "on the
basis of the discussions a common will must have been born which is
seriously directed upon carrying out the murder, regardless of 7,hethet
or not the manner of carrying it out has already been fixed in detail"
(RGST 58, 392, 393). An "act seriously considered as an aim" (RUST -68,
360, 363) is the essential prereeuisite of both alternatives of re-
quired facts even in the text which is valid at present.
Whatever the investigations have produced in the case on hand, could
not be proved to exceed deliberations oboioui what, in case of war,
the Alli ed Hi gh Commend may order to be done in regard to persons who
are presumed to collaborate in -erotn.inent 7ositions with the enemy in
the occupied terri tory. In such deliberations th e ,; CC1SP.11 thol-Ilitit
ro e sible t7:1t 114'7'1 Csiand in -no ee-ebr . me c7e7o .71fet1 7t 0-22the
.kil l je?:: of the collaborators, if it should be iml)oe e ib7e othert,ise to
prevent t h em i'rom their intended eith the e-eemy, From
this circle of thoughts indeed emerged the (..epreeeion "list of pros-
cribed persons", althou gh, as e7tplained under II ebove, it cannot be
7,-oved, and is not even probable, that fh e coisriletian of fl e..es in the
fol,der,entitled "List o f Proscribed Persons" and in the Red Card Index
1 ,1.en_aee es- e een s to realize suce
q.,'dcl n,-, er of a mentel Pttitude ce :e e ble of such refle ctionc, is evident,
tjlemore so if c ombined with rle ns for guerill P warfare. however, as
dangerous as such mental attitude may be, it is not funishable in it-
self, but only if it has assumed, by conspiracy in the interpretation
of Art.49 b of the Penal Code, that intensified dengerousneee which
meets the factual requirements of .irt0 49 b of the Penal Coda. It is
just such actual conspiracy, in an at least general interpretation, for
killing acts as serious aims, that cannot be proved in this case, The
thoughts of the accused ere focused upon a future war; they ,Tisualized
themselves e;
being under the command of an Lined High Command to whose
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decision they left the ultimate realization of their ideas. This
attitude, which leaves to others he decision on the Whether, and
How, and By Whom, to be made in a nebulous future, is not what the
law thinks of when speaking of "considering".
co Prosecution from the viewpoint of Art090a of the Penal Code is
equally unp romising. Here, too, one cannot ignore the decisive
fact that the organitation, including its informative lists of
presumed opponents, was planned and guided_ by Allied military
agencies, and was to begin activities only in case of war. As
out of place and undesirable such planning may be from the stand-
point of German interests, still, there is no struggle "against
constitutional order" discernible; it was even to be used under the
presupposition that the constitutional order might be suppressed by
Soviet Occupation, and was to be used -- although with questionable
means -- in the struggle against such auppresdohl
This planning is so obviously governed by the viewpoint of resistance
against a dreaded attack, that one cannot say that it is directed
"against the idea of international understanding". Whether or not
the activities -planned by the Americans for this organization in case
of war would have violated international law or martial law, would
have been dependent upon the manna' of its employment; what little
is discernible from the general planning i is insufficient for any
evaluation.- In view of the juridical development during the two
World Wars, which overran the Hague Convention, and which was laid
down in the Geneva Agreement on the Treatment of Prisoners-of-War of
12 August 1949, it is no longer possible to say that any guerilla
activity as such constitutes a violation of international law; pur-
suant to Art94 par 0 2 of the afore-mentioned Agreement, the members of
guerilla groups even enjoy full international protection, if the re-
quirements of that Article are fulfilled.
d. Howsogver the facts may be evaluated according to German law: as
there is no proof that the accused have exceeded their American orders
in their organizational activities, German Penal Laws are not applicable
anyway because of Law No 0 62 (ACC Law 51, 1108) by which intelligence
work for occupational forces as well az,in general', the relations with
occupational forces is removed from the jurisdiction of German Penal
Laws.
IV. On the basis of this factual and juridical evaluation, I intend, if
should not receive other directives, to stop prodeedings as soon as the
supplementary investigations which are still pending, are concluded.
/s/ Dr, Wiechmann
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