too, but in dilemmas which offer only this kind of solution, the old saying applies "Ultra posse nemo obligatur."

Jodl was no rebel. His conscience told him the Fatherland is in need, everybody at his post! Jodl's place was at the head of the operational staff of the armed forces. He did not get this post voluntarily, he did not keep it voluntarily. It was a hard duty. He fulfilled the task which this post imposed on him, according to the best of his ability and conscience-unto the bitter end. Your Honors!

Allow me in conclusion to recall a personal reminiscence which throws more light on Jodl's personality.

I made his acquaintance about 20 years ago in the house of his uncle, the philosopher Friedrich Jodl, in Vienna. There I had a conversation with him on the education for a career as an officer. What the young captain said about it was of such moral earnestness, and so far from anything that could be called militarism that I have always retained it in my memory. I had no more contact with him of any sort until last autumn, when I received the surprising summons to defend him here. My first thought was "This gallant soldier must be helped." But I doubted whether to undertake this, since I am not a professional attorney. Still, when I met him in the court building for the first time, he said something to me which scattered all doubts "Rest assured, professor," he said, "if I felt a spark of guilt in me, I would not choose you as my defense counsel."

Your honors, I believe that a gentleman, and not a criminal. speaks thus.

I ask that the colonel general Alfred Jodl be acquitted.

2. FINAL PLEA of Alfred Jodl

Mr. President, may it please the Tribunal, it is my unalterable belief that when history is being recorded in the days to come it will arrive at an objective and just verdict for the higher military leaders and their assistants. For they and together with them, the entire German Wehrmacht were confronted with an insoluble task; namely, to conduct a war which they had not wanted under a Commander-in-Chief whose confidence they did not possess and whom they themselves only trusted within limits; to conduct a war which they had not wanted with methods which frequently were in contradiction with their operational principles and their considered opinions which had been disregarded; to fight with troops and police forces which did not come under their full command and with an intelligence service which, in part, worked for the enemy. And all of this, together with the complete and clear

4

The Prosecution deals with Papen's activity as Reich Chancellor in the last pre-Nazi cabinet, with the part he played as vicechancellor in Hitler's cabinet until 30 June 1934, and with his activity as Minister Extraordinary in Vienna. It was faced with the task of proving that during this period preparatory actions for a crime against peace actually took place and that Papen in full recognition of these aims collaborated in the preparations. Since the counts of the indictment deal with a field of activity which is in itself a legal one and since the criminal element cannot be introduced into the individual acts except in the direction of their aims, judgment of the Papen case lies essentially in the subjective field. The Prosecution is faced with the fact that Papen's own sentiments which often came to light and the policy which he actually pursued cannot be made to agree with the interpretation given by them. Therefore, they seize upon the premise that he is a double-faced opportunist who has sacrificed his real sentiments or those displayed to the existing conditions of the day and Hitler's will. In consequence it must be the task of the defense to bring about an elucidation of his personality in order to prove that Papen's actions and statements constitute a uniform consistent line and that his entire attitude de facto was such as to forbid connecting him with the offenses of the Charter; and that those of his actions which are under discussion must have been undertaken in pursuit of other aims than those which the Prosecution thinks it can recognize. Furthermore, the defense will outline Papen's entire political activity in its legality and within the framework of this activity it will deal with the actions considered punishable by the Prosecution and will finally submit counter-evidence showing that he actively worked against a political development as represented by the facts of the case brought forward in the indictment.

..

We shall arrive here at a just evaluation only if the discussion is kept away from the question of political suitability and correctness and if we accept the politician as he reveals himself to us with the opinions which he developed from origin and tradition. Moreover, an essential element in judging fairly will be the elimination of that knowledge we have now received at the trial from later years and concerning this later period.

We shall have to direct our considerations only to the time of the actions themselves, and only then shall we obtain a clear opinion of what Papen could see and expect at that time.92 9

The Prosecution places the beginning of Papen's participation in the conspiracy on 1 June 1932, the date of his appointment as Reich Chancellor. However, it gives no answer to the question