V. EVIDENCE CONCERNING PRINCIPAL ISSUES IN THE CASE (continued 10)

Under article III, paragraph 2 of the Penal Ordinance for Poles, the death sentence must be passed if the law provides for it. The defendant Kaminska, therefore, under the law against violent criminals is deserving of the death penalty.

The death penalty has to be pronounced as the only just atonement because the security afforded by law within the German living space must be protected against Polish criminality with the utmost severity. The defendant Wdowen, if only by his behavior toward the feeble old farmer Gundel proved that he is an insolent aggressive fellow inasmuch as he kept following the police official, although he had been chastized twice. It is to be concluded that he was waiting for a favorable moment to free the codefendant Kaminska by force, and finally by attempting to prevent by force the police official from the execution of his official duties and the latter having to call for assistance, he topped his provocative, dangerous behavior. Every security organ enjoys the special protection of the Reich. He who impedes in such a provocative manner the security organs, which are stationed at home, and which on account of their numerical minority are particularly overburdened during the war, must expect the Reich to react with utmost severity. That applies, in particular, to the foreign workers from the East who work in the Reich. In view of that, the court has assumed a particularly grave case within the meaning of paragraph 4 of the Decree against Public Enemies, and has not attached any decisive importance to the circumstances alone that the defendant Wdowen has had no previous convictions and has hitherto not attracted any unfavorable attention during his stay in Germany. Therefore, the defendant Wdowen had to be sentenced to death under the penal law of article 4 of the Decree against Public Enemies.

Costs: Paragraph 465, Code of Criminal Procedure.

[Signed] Oeschey[378]

Dr. Gros[379]

Pfaff[380]

TRANSLATION OF DOCUMENT 664-PS

PROSECUTION EXHIBIT 348

CIRCULAR LETTER OF HIMMLER TO THE SUPREME REICH AUTHORITIES, 10 MARCH 1944, NOTING THAT “THE ACCOMPLISHED EVACUATION AND ISOLATION” OF JEWS AND GYPSIES HAD MADE MEANINGLESS THE PREVIOUS MANNER OF PUBLISHING SPECIAL DIRECTIVES CONCERNING THEM

Berlin, 10 March 1944

The Reich Leader SS

Minister of Interior Affairs

S. Pol. IV D 2 c—927/44 g-24

[Initial] Th [Thierack]

[Stamp] Reich Ministry of Justice

17 March 1944

Dept. VII

SECRET

To the Supreme Reich Authorities

Subject: Posted prohibitions concerning Poles, Jews, and gypsies

The separately published decrees and rules governing the livelihood of Poles, Jews, and gypsies within the jurisdiction of the Reich, have frequently led to a summary equalization of these groups in the public eye as far as sale-and-utilization prohibitions, public announcements in the press, etc., are concerned. This attitude does not correspond with the differentiated political position to be granted to these groups now, and in the future.

As far as Jews and gypsies are concerned the accomplished evacuation and isolation of these groups by the Chief of the Security Police and the SD has made the publication of special directives (concerning the all inclusive prohibition of participation in many livelihoods) in the previous manner meaningless. Therefore, corresponding public directives may be eliminated.

The decrees and regulations which have been decided upon to govern the livelihood of the Poles will remain as before. For political practical reasons it is hereby recommended to maintain a certain amount of restraint in the public directives of these regulations, be it in posters, signboards, on press releases, etc.

I wish that the subordinate officers be informed of the necessary directives.

[Typed] Signed: H. Himmler

Certified: [Illegible signature]

SS Sturmbannführer

TRANSLATION OF DOCUMENT NG-900

PROSECUTION EXHIBIT 453

LETTER FROM THE CHIEF OF SECURITY POLICE AND SD TO MINISTRY OF JUSTICE, 3 MAY 1944, ENTITLED “REQUESTS MADE BY THE COURTS FOR INFORMATION ON JEWS,” AND INTEROFFICE MEMORANDUMS LEADING TO DISPATCHING OF A LETTER DRAFTED BY DEFENDANT ALTSTOETTER

The Chief of the Security Police and the Security Service

IVA b (I) a 4647/43

Please state this business number, the date and the subject in correspondence

Berlin SW-11, 3 May 1944

Prinz Albrechtstr. 8

Local Phone: 120040

Long distance: 126421

[Stamp] Reich Ministry of Justice

5 May 1944

Dept. VII-VI

[Initial] Th [Thierack]

[Initials] Kle [Klemm]

To the Reich Minister of Justice

Berlin

Subject: Requests made by the courts for information on Jews

Reference: None

In a number of proceedings for the checking of descent, the District Court Vienna requested information about the whereabouts of Jews, in some cases it requested this information from the central office for the regulation of the Jewish problem in Bohemia and Moravia at Prague, and in some cases directly from here. These Jews were at some time either evacuated to the East or were sent to Theresienstadt. Although my local office drew the attention of the District Court Vienna several times to the fact that such requests, as well as applications for the admission of such Jews as witnesses before courts or for hereditary biological examinations cannot be granted on account of reasons stated by the Security Police, the District Court Vienna renews its applications continuously.

Besides the fact that the Jews for years had time and opportunity to clarify their position with regard to descent, the proceedings for the checking of the descent demanded by the Jews or their families are according to experience in general made only in order to conceal their descent so that they would not be subject to the measures of the Security Police intended for them, or to those which have already been carried out. For this reason and in the interest of urgent dispatch of work important to the war effort the granting of applications of this kind has to be refused for the time being.

Therefore, I request to direct the District Court Vienna not to submit any such applications in future. I would be grateful to be informed about the steps taken from there.

As deputy:

[illegible signature]

The Reich Minister of Justice

Berlin, 3 June 1944

VIb 2 1124/44

Dispatched 14 June 1944, [initial] B

[Stamp] Office

8 June 1944

H/Frl. [illegible]

1. To the President of the Court of Appeal, Vienna

Subject: Handling of cases concerning descent of Jews or Jewish persons of mixed race

No previous correspondence.

The Chief of the Security Police and the Security Service pointed out that in cases concerning descent of Jews and Jewish persons of mixed race the office of the police are frequently asked for information on the place of abode of deported Jews by the courts especially by the District Court Vienna, or that their admission, as witnesses or for the purpose of examination for hereditary biological expert opinions is requested. These requests cannot be granted for reasons of the Security Police.

Even if the hearing (and examination)[381] of the Jews (be an important piece of evidence for the clarifying of the question of descent) in many cases help to frustrate the intentions (of the Jews) to conceal their descent, reasons of the security police demand to desist therefrom (from this piece of evidence).

In the near future I intend to issue in a decree detailed regulations for the handling of cases concerning the descent of Jews and Jewish persons of mixed race. Already now I request to inform the District Court Vienna (and other courts, in your district, which according to your judgment, Mr. President of the Appellate Court, should be informed) of the following:

(insert)[382]

As deputy:

2. To the Chief of the Security Police and the Security Service

Subject: Requests for information on Jews made by the courts.

Reply to the letter of 3 May 1944—IV A-4-b (I) a-4647/43

1 enclosure (copy of 1)

[Stamp] Dispatched: 14 June 1944

3475/2

[Initial] B

In the enclosure I submit a copy of my letter to the president of the Appellate Court Vienna for your information.

By order

[Initial] Al [Altstoetter]

3. Ministerial Counsellor Rexroth

With the request to settle the arrangement of the report with the Minister

The settlement of the arrangement of the report was not possible on 3 June 1944

Before dispatch

Mr. Minister is informed

[Illegible initials]

[To the] Minister [of Justice] with request to permit the dispatch of the above letter signed by me. The arrangement of the report could be settled in connection with the report on the decree concerning a general order on the handling of cases concerning the descent of Jews and Jewish persons of mixed race. It is intended to put into the draft of this official decree, the directives in the above letter sent to the president of the Appellate Court Vienna for information to all presidents of the appellate courts and general public prosecutors.

[Signed] Altstoetter, 3 June

[Initial] R [Rexroth] 3 June

[Insert]

(In cases of Jews who were deported to Theresienstadt or to other places, a hearing as witnesses or a hereditary biological examination is impossible for reasons of the Security Police, because persons to accompany them and means of transportation are not available. If the residents registration office or another police office gives the information that a Jew has been deported, all other inquiries as to his place of abode as well as applications for his appearance [before court], questioning and examination are superfluous. On the contrary, it has to be assumed that the Jew is not obtainable for the taking of evidence.

If in an individual case it is in the interest of the public to make an exception and to render possible the taking of evidence by special allocation of persons to accompany and means of transportation for the Jew a report has to be submitted to me in which the importance of the case is explained. In all cases offices must refrain from direct application to the police offices, especially also to the central office for the regulation of the Jewish problem in Bohemia and Moravia at Prague, for information on the place of abode of deported Jews and their admission, hearing or examination.)

[Initial] R [Rexroth] 3 June

EXTRACTS FROM THE TESTIMONY OF DEFENDANT SCHLEGELBERGER[383]

DIRECT EXAMINATION

*******

Dr. Kubuschok (counsel for defendant Schlegelberger): Since the Jewish question is of particular importance for several points in the indictment, I would ask you first of all to tell us what your personal attitude to the Jewish question was.

Defendant Schlegelberger: As far as I am concerned, there is and there was no Jewish question. This is my attitude: all races were created by God. It is arrogant for one race to place itself above another race and try to have that race exterminated. If a state deems it necessary to defend itself against being inundated and does so within the frame of a social problem, then it can and must be done by applying normal, decent means.

During the Goebbels campaign in 1938 I was abroad. When I heard about those events I said to my family: “We must be ashamed of being Germans.” That was my view at that time and that is my view today. The only person with whom I am united in faithful friendship until today because we went to school together is a full Jew. I succeeded in saving his life all through that era. He again holds his former office as a judge. My physician too is half-Jewish. That attitude of mine naturally meant that on many occasions I was faced with inner conflicts. I ask you to consider that the Jewish problem was regarded as the central problem of the National Socialist State and the entire life in Germany was to be placed in line with that. Concerning that question Hitler and his followers worked in an entirely uncompromising manner; that an expert administrator could not bypass that basic attitude is a matter of fact. I shall have an opportunity to demonstrate what my personal attitude was toward those questions and how it always evidenced itself in an effort to put a check on the wishes of party policy, to make improvements and to exercise as far as possible a moderating influence on the practical application of those matters.

Q. What were the manifestations of your attitude to the Jewish question in your office?

A. The prosecution charges me with having cooperated in taking measures against the Jews. That the ordinance of 4 December 1941[384] against Jews in the eastern territories must be evaluated under particular points of view, I shall show in connection with the Polish question. For the rest, I ask you to consider that in view of the strength of the powers with which I was engaged in a struggle, a hundred percent victory of the Ministry of Justice was entirely out of the question. In that sphere, too, faithful to my basic attitude, I did work to make justice prevail; but frequently I had to content myself with making a compromise and I had to be pleased when at least I had achieved some amelioration. To use a customary phrase, if I had drawn the consequences from every defeat, I would have deprived myself of all possibility to aid the Jews. Quite apart from the fact that the resignation from office, before the war would have been a factual impossibility, and during the war a legal impossibility until a new minister was appointed.

With the permission of the Tribunal I will prove how difficult it was by citing an example. When the Party started a campaign against Jewish lawyers, I went to see Hitler and told him that it was untenable to remove from their profession Jewish lawyers among whom research people of repute were included, and with whom I myself had worked. I was pleased when I succeeded in persuading Hitler that that was correct and in achieving his agreement that he would reject the wishes of the Party. To inform the agencies concerned, I called a meeting of Ministers of Justice of the Laender who were still in office in those days and informed them about Hitler’s decision. The result was surprising. I encountered bitter resistance, and the meeting bore no result. Hitler asked for Guertner to come to see him and asked him for information as to whether I was not perhaps a Jew myself. Then the Party began to exercise pressure on Hitler. He abandoned his decision, and the Jewish lawyers were removed from office. So as to make it possible at least for the Jews to preserve their rights, I proposed to set up the institute of the so-called Jewish consultants where former lawyers worked as consultants.

As to my own attitude toward these problems, that I could show properly only where I, myself, had to make the decisions. In this connection, I attach importance to the fact in saying here that nothing is more removed from me than here to play the part of the friend of the Jews. I am not a friend of the Jews; I am not a friend of the Aryans as such; but I am a friend of justice. And anybody who saw me at work and wishes to give a just opinion can confirm that with regard to all those who in my opinion were unjustly persecuted; no matter what their race or what their class, I tried to help them with all my strength.

Roosevelt, the former President of the United States of America, in 1944, in an address to the United Nations said, “Hitler asserts that he had committed the crimes against the Jews in the name of the German people. May every German show that his own heart is free of such crimes by protecting the persecuted with all his might.” I can claim for myself that I acted accordingly. Concerning the members of the Ministry who were not fully Aryan, I kept them in office; and as has been established at this trial concerning judges who were not fully Aryan, I left large numbers of them in their offices irrespective of the Party purge. I looked after those who had been dismissed from their posts, and who were non-Aryans, and who had Jewish relatives. As far as possible, I protected them against being driven out of their homes and being deported.

Q. Concerning the question of civil servants remaining under Dr. Schlegelberger who were not fully Aryan, persons who were only dismissed on the basis of Thierack’s list, I refer to Exhibit 42.[385] On the legal provisions concerning the fact that since 1933 a minister could not resign on his own, I will submit Schlegelberger Documents 79 and 80.[386]

Witness, you also dealt with a bill concerning people of half Jewish race. The prosecution has included those documents under PS-4055, Prosecution Exhibit 401.[387] Will you tell us something about those documents?

A. That document has been the subject of the discussion before the International Military Tribunal. The document, if my recollection is right, consists of two parts. On 12 March [1942], there was a letter from me to Reich Minister Lammers, and a letter of 5 April, to various agencies.

Q. May I interrupt you for a moment? The first letter is dated 6 March, and is in the English text on page 95.

A. I thought you were talking of the discussion which took place on 6 March.

Q. Yes, on page 95.

A. First of all, I’d like to speak about the letter of 12 March. That was, as I said, a letter from me to Reich Minister Lammers. From that letter I gathered that on 6 March there was a discussion about the treatment of persons of mixed origins, partly Jewish, partly Aryan. In that conference, the SS had demanded that people of mixed origin were to be treated in the same way as full Jews and were to be sent to labor camps in Poland.[388] If that had been done, a demand which for a long time had been voiced by the Party in a categorical manner would have been carried out. If one reflects to what extent the police measures were carried out in those days against Jews, one had to recognize that now the question of the fate of the mixed Jews had entered into an acute phase.

When I heard about the subject of that discussion, the question arose immediately whether one could, and how one could, intervene. My moral obligation was clear to me. There was the difficulty that it was a different department; that in itself was difficult to interfere with a different department in its work; and again and again there would be the additional difficulty that I was no minister. But to put it plainly, it was the case of an under secretary who was only appointed [as acting Reich Minister of Justice] under a system by which he could be given notice any day. If I had attempted to attack that political solution with legal or ethical weapons, nothing would have been done and there would have been nothing but mockery about me. Thus, I had to find a different way.

I had to try to approach somebody who perhaps might have the possibility to talk some sense into Hitler, and that person was Reich Minister Lammers, a man from the group of old civil servants, a man who had a feeling for right and justice, and whom I had frequently assisted in difficult situations. I could be quite open and frank with him; and, therefore, the quite open way in which I talked in my letter was without any pretense. I described the suggestions as entirely impossible. I did so knowing that thereby I was interfering with affairs which had nothing to do with me as far as my department was concerned, for the judiciary only had an outside interest in those affairs. There was a question of compulsory divorce, a question which naturally I answered in the negative; a question which was naturally very important for those whom it concerned, but the importance of which was not comparable to the great problem which was now my concern. Lammers said I could talk to him, but that conversation never came off, and probably it did not come off because Lammers was away at the [Fuehrer] Headquarters. Thus, I had to act on my own initiative, and, as I have said, I could not act in basing myself on legal and ethical considerations because that would have amounted to doing nothing. I had to limit myself concerning the agencies in question to acquaint them with the fact that the solution which they intended to apply was not possible. The entire idea and the entire way of thinking concerning that question altogether was based upon the desire to see to it that a further increase of persons of mixed origin, Aryan and Jewish descent, was to be avoided. I used that as my basis, and this is what my proposal amounted to. Certain groups were to be exempted from the solution altogether from the very outset. First, persons of mixed descent of the second degree, that is to say those persons who had only one Jewish grandparent; second, a person of mixed descent of the first degree, that is to say a person who had two Jewish grandparents; of those the people who were not able to propagate; and three, those persons of mixed descent, first degree, whose offspring under the law were not considered half-Jews. By that proposal, therefore, all persons of mixed descent, second degree a very large number, and a considerable number of people of mixed descent first degree, would have been excluded from this measure. The remaining persons were of mixed descent, first degree. For them I suggested that if they were to prefer it, they were to be sterilized rather than deported to Poland. May I draw the attention to this point. The idea of escaping deportation by voluntary sterilization did not originate within myself. That idea originated from the persons of mixed descent themselves. I knew that persons of mixed descent had asked physicians to exempt them from the application of the Nuernberg laws and had themselves suggested to afford them the possibility of sterilization. In view of that situation in which they found themselves, I thought it justified to revert to the suggestion which these people themselves had made originally, and to afford them an opportunity in that manner to escape deportation to Poland. The prosecution employed that suggestion of mine to raise charges against me. I believe that if one thinks things out until the last, it is not so difficult to recognize that these charges are unfounded. My suggestion, altogether my work in that respect as I have said before, was not one of the tasks of the judiciary. If I went beyond the limits of my department, one must bear in mind that the charge would only be justified if one took it for granted that I was a model of active National Socialists, an active National Socialist who overcomes every obstacle even the limitations of his department, and I would assume that everything that has been discussed here so far will show that to assume such an active National Socialist ardor would be complete nonsense. I acted in accordance with my ethical feelings; the only motive for me was the intention to check a development which was fatal for a large number of persons. There are, after all, situations where one can only escape a larger evil by applying a smaller evil. But that somebody who all his life has thought along the lines of law, found it extremely difficult to make a decision of that kind, that the Tribunal will understand.

Q. Under Document NG-151,[389] the prosecution has submitted documents concerning limitations of the legal means for Jews in penal cases. Please give us an explanation concerning those documents.

A. Those documents begin with a letter by Freisler dated, I believe, 3 August 1942. In that letter Freisler tells the agencies in question about a bill concerning the problem we have just mentioned. The reason for his suggestion, he referred to as the exigencies of the war, he says that the state of affairs is untenable, and that it weakens the defensive will of the German people. Freisler wrote that letter without my knowing anything about it beforehand, but afterward he told me about it and gave me his explanation. This is what he told me: Himmler and his agencies had pointed out again and again that the present state of affairs was an impossibility; only a radical separation of the entire Jewish problem from the judiciary and transfer to police was conceivable. Again here we find—I shall have to revert to that later—Himmler had also said that the administrative measures against the Jews had advanced so far that it would be nonsense, in particular concerning criminal Jews, to be more lenient; therefore, one had to guard against allowing these criminal Jews, who were already under the supervision of the judiciary, such benefits as legal protection.

Himmler’s desire to transfer Jewish affairs to the police was too much even for Freisler. Perhaps he was also particularly proud of his paternity of the penal ordinance concerning Poles and Jews which he considered his own sphere. Therefore, so he told me—and I believed him—in all circumstances he wanted to adhere to the competence of the courts; but he then convinced himself that somehow or other he had to make a concession because otherwise events would move without us.

Furthermore, we of the administration of justice, particularly in the Incorporated Eastern Territories, suffered from a severe lack of judges, and we could only master that difficulty if we exempted a number of judges from service in the armed forces. If Freisler and we had refused consistently to comply with Himmler’s wishes, it would have been easy for Himmler to get Hitler to agree to cancel such exemptions from service with the armed forces, and thus the administration of justice in the eastern territories would have come to an end altogether. In order to avoid this danger, Freisler believed that he had found a way out in limiting legal remedies and thereby to start out on a way which we later on, inside Germany, in cases against Germans, had to take on account of the lack of judges. That is why he made the suggestion. I could not altogether agree with Freisler’s arguments, but I attached importance to the fact that this new regulation was to be final and was to appear as such to the outside world, too. That might strengthen our position toward the opposing forces and, therefore, in the letter I wrote afterward,[390] I discussed the question of whether Jews are able to take an oath, and I included that question in my draft so as to make that draft more well rounded and complete. In itself this question of the oath was important, for under German law it is the duty of the judge to attach equal weight to statements made under oath, and statements made while the person was not under oath.

There again we were faced with a case in which a concession which in itself was immaterial but which to the outside world, nevertheless, seemed important, had to be made in order to pacify Party circles. If one wants to evaluate such a procedure, one must bear in mind that 1 month later Thierack did find a final and comprehensive solution. He dropped my suggestion and transferred the Jews to the police.[391]

Q. The prosecution also submitted Document NG-589, Prosecution Exhibit 372,[392] a document which concerns a curtailment of the poor law privileges of the Jews. Was that ruling made at your suggestion?

A. No. I only heard about that ruling here when the document book was submitted. At every ministry certain matters which are not of much importance are dealt with quite independently by departments which are below the under secretary or the minister. It is altogether out of the question that an under secretary or minister deals with everything personally. He would even misunderstand his function if he were to do so. Those matters, for example, the question of the poor law, fell within the competence of the then Assistant Under Secretary Hueber, who signed the ordinance.

As I said, I only heard about it here, but I should like to add that the institution of the poor law was created so as to enable poor persons to conduct civil litigations. The granting of poor law privileges does not mean that the person to whom it is granted can conduct proceedings free of costs, but it only exempts him from payment in advance. He is still under an obligation to pay.[393]

The poor law institution, therefore, so to speak is an institution of government welfare. For a long time before Hueber ordered it, government financial support of Jews had been stopped, and they had been referred to their own Jewish welfare organizations. The uncurtailed provisions governing the poor law, therefore, were not in accordance with the line otherwise observed, and Hueber refers to that when he considers the old ordinance as outmoded.

Q. I do not know whether the witness’ statements were clear enough to elucidate the concept of the poor law. I hear that the expression in English has been translated by “poor law.” That translation might perhaps lead to confusion. We are concerned here merely with the question of costs and merely with the exemption of paying costs in advance, and that is the cost of civil litigation.

*******

Q. I come now to the introduction of the German criminal law in the Incorporated Eastern Territories. Will you please give a short review of the general development of that question?

A. These matters, as far as the time was concerned, are connected with what I said before. Among the drafts sent out in February 1940, there was also one about the introduction of criminal law.

Q. May I interrupt you? That, again, is Exhibit 459.[394]

A. That draft comes from Freisler’s sphere, and in the absence of the Reich Minister of Justice Guertner, as well as Freisler, I signed that draft upon the request of the Minister. That draft provided absolutely equal treatment of Germans and Poles. Later on, 6 June 1940, a decree was issued about the introduction of penal law in the Incorporated Eastern Territories and that decree was only designed for Poles and Jews; that shows that before my time, and without any assistance on my part a special law was created for Poles and Jews. Apparently Freisler afterward gave in to the efforts of the Party and had managed after hard struggles to obtain the approval of Guertner, who, as I know, was against such a thing on principle. But the decree of 6 June 1940 bears the signatures of Frick and Guertner.

Q. That decree will be contained in my document, Schlegelberger 60.[395] Then, it came to the penal ordinance concerning Jews and Poles, 7 December 1941, that is Exhibit 343.[396] Will you please discuss that decree in detail?

A. That decree of 7 December 1941 which has been the subject of a detailed discussion in this trial is based on the following: The decree of June 1940, in the view of the department of criminal legislation in the Ministry, was not satisfactory. And that was because the extent of punishment was not sufficient, neither the maximum nor the minimum of punishment was sufficient. There was also a lack of specific provisions. In addition to that, the Reich Chancellery had informed the Ministry, that the deputy of the Fuehrer and the Party, demanded a discriminatory law concerning Poles and Jews.

Q. I refer to Exhibit 341.[397]

A. Therefore, the Department for Penal Legislation—that was before my period in office as Acting Reich Minister of Justice—had started to work out a new draft which should take care of these deficiencies. When I took over after Guertner’s death, Freisler reported to me about that matter and told me the following: It was Himmler’s intention to obtain sole competency for all cases against Poles and Jews, and that Gauleiter Greiser of Warthegau province was of the same opinion, and he if necessary wanted to eliminate the administration of justice with the aid of civilian courts martial. Bormann was of the same opinion and demanded, first of all, the introduction of corporal punishment. According to this information I had to expect a fight with the Party. This fight which was fought to maintain legal procedures for Poles and Jews in all events, could only be successful if I could point out that the courts had at their disposal an appropriate procedure and appropriate provisions which were sufficient for all, even the most serious cases. The new draft,[398] in my opinion, was designed to rebut the assertion by the Party that the courts could not master the situation. Therefore, in April 1941, I submitted that draft to the Ministerial Council for Reich Defense to the attention of Reich Minister Lammers, in order to achieve a decision. I also announced to Lammers that I had to see him in advance to inform him about the situation, and about the conditions which lead to the draft in that form. The prosecution has repeatedly referred to that covering letter which accompanied the draft.[399] Therefore, I should like to explain the reason for this letter, and the manner in which it was written. According to the legal provisions, to those provisions which I have already discussed, I had to have the approval of the Party Chancellery, but only then did I have any chance to obtain that approval, if that draft was implemented with those main points which I considered necessary.

If I had described in my letter the contents and consequences of the draft without exaggeration, I could never have expected the approval of the Party Chancellery. Therefore, I had no alternative but to emphasize the increases in the severity of treatment with exaggerated expressions, to pass over less severe provisions, and to leave out references to decrees which would make this decree more lenient. Whether it came to any conference with Lammers, I could no longer tell. I remember quite clearly the event which proved to me that my assumption was correct, that we would have to expect a most energetic attack on the part of Himmler.

In the summer of 1941, Himmler asked me to come to a conference. That was the only one I ever had with Himmler. There was a great pressure with regard to time connected with that request. Himmler told me that he was on his way to see Hitler and that he had to have my approval. Penal cases against Poles and Jews should be turned over to him, that is to say, to the police. That was regardless of where the acts had been committed.

I rejected that categorically and told him that for that kind of change of competence, there was no reason whatsoever, particularly since in a very short time a new regulation could be expected about that question by the Ministerial Council for Reich Defense. That, of course, made Himmler suspicious. At that time, it did not seem to him to be the right thing to fight against the Ministerial Council for Reich Defense which was under the presidency of Goering, at that time a strong opponent. Himmler seemed to depart for a short time from his original plan.

The Ministerial Council for Reich Defense passed that draft in December of the same year and that determined and assured the competence of the courts for penal cases against Poles and Jews[400]. When I left office that was immediately changed as could be seen from these proceedings. That decree dates back to December 1941, as I have already pointed out the period when my task as Acting Minister of Justice came to an end. It is not surprising that I could not gain a clear picture, as to how that decree was applied and what the consequences were.

I do recognize that one could criticize individual sentences at least as far as the limited amount of material is concerned which is available to us now. However, considering that there were about half a million penal cases during 1 year—as regrettable as it may be in the individual case—it is not very decisive for an over-all judgment of conditions. I owe it to the German judges to state here frankly and publicly that as long as I could observe their activity, they have discharged their duties with a definite desire for justice in general.

Concerning the criticism which was voiced against this decree, I should like to say the following in detail. The most essential feature of that decree was its practical application. I took every opportunity when a judge from the eastern territories came to see me to point out that that decree gave a great deal of latitude to the judges; that therefore, the judges for the procedure as well as for the sentencing had to keep in mind that they were servants of justice. Beyond that I caused Freisler to discuss the point of view of just application in an article in a magazine, Deutsche Justiz (German Justice).[401] Deutsche Justiz, an official publication, was read by all judges and prosecutors, and that made absolutely certain that they knew how Freisler thought about it, and that he did not want any arbitrary application. That achieved that Freisler himself was prevented from giving individual directives or expressing opinions which would go contrary to the meaning of that decree. In view of his unstable nature, this was particularly important.

This article by Freisler took into account my demands by stating that it was a serious duty of judges and prosecutors in cases of Poles and Jews to apply the same maximum care as they would in the case of Germans. The prosecutors are instructed in preliminary investigations to examine also points in favor of the defendant very carefully so that the defendant can recognize the charges made against him and is put in a position to prepare his defense. The courts are admonished to keep in mind that it was not within the meaning of the decree that facts which were of little or no importance should be artificially exaggerated. What harms an individual does not harm the Reich. Sufficient opportunity should be given to the defendant to use legal remedies, to explain things, and to state his views to the evidence submitted. Everything should be avoided which in the least would make the sentence look like a sentence based on suspicion. Under all circumstances, the extent of the punishment should be within sound measure. The legal remedy of appeal should be applied by the prosecutor, also in favor of the defendant and for that express purpose, the time limit was extended to twice its normal length.

Presiding Judge Brand: Mr. Schlegelberger, you are referring to an article by Freisler, are you not?

Defendant Schlegelberger: Yes.

Presiding Judge Brand: Does that have an exhibit number, or will it have?

Dr. Kubuschok: I will submit that article as Document Schlegelberger 61; 61 will be the number of that article. It is in my document book.

Presiding Judge Brand: 161?

Dr. Kubuschok: No, only 61 in document book 3, Schlegelberger document book 3.

Presiding Judge Brand: Thank you very much.

Defendant Schlegelberger: The right for civil suits for Poles and Jews had already been rescinded by the old decree. A new decree brought modification by which also Germans should not have that right any longer as Freisler explained. And now the most important element—the latitude and extent of punishment was increased not only toward heavier punishment, but also by decreasing the minimum. The death penalty was mandatory only where an act of violence was committed against a German on account of his being a German. That was already contained in the old decree. In all other cases, apart from the death sentence, there was an opportunity for a prison term.

In the old decree, in the case of anyone owning or carrying weapons a death penalty was mandatory. The new decree provides for the possibility of a prison term which goes all the way down to 3 months in prison. That modification applied to a large number of offenses. Also, the mandatory death sentence for arson was abolished. Apart from that, I am of the opinion—and it has been mentioned here frequently—that whether the death penalty is mandatory or optional, a judge who does not want the sentence of death in taking into account the facts in a case, can almost always avoid that possibility.

The prosecution asserts that the new decree excludes the clemency plea for Poles and Jews. That is not correct. If it is stated that the sentence was final and had to be executed immediately that only means that with the exception of that right the sentence is final. I will not discuss the question as to whether a sovereign can forego the use of the clemency plea from the outset, but it is beyond doubt that the Ministerial Council for Reich Defense could not have excluded the right of pardon on the part of Hitler. Besides, for the Incorporated Eastern Territories, the pardon regulations of 1935 applied. Article 453 of the Code of Criminal Procedure, according to which execution of the death sentence is only possible after it has been ascertained that the authority in charge of the clemency prerogative has refused to make use of this prerogative was especially emphasized upon my demands in Freisler’s article. In fact, Poles were pardoned. That was mentioned in these proceedings. I would like to refer to two cases which I remember: the case Pitra and the case Wozniak.

Dr. Kubuschok: Those cases are contained in Document NG-398, Prosecution Exhibit 253.[402]

Defendant Schlegelberger: The right to have defense counsel is not taken from the defendant by that decree. On the basis of the regulations concerning Special Courts of that time, a defense counsel had to be appointed for the defendant. And I may say in conclusion that the penal ordinance concerning Poles and Jews guaranteed the Poles and Jews a court procedure and a sentence by the court. Also, it prevented these defendants from being dealt with without the protection of the court and being turned over to the police.

Q. I am just informed that the translation on one point was in error. The witness stated that he would not discuss the question as to whether the right for pardon on the part of the sovereign, or the supreme authority of the state, could be omitted, and instead of the word “sovereign,” the word “defendant” came over the channel.

According to Exhibit 346, retroactivity of the penal ordinance for Poles and Jews was ordered.[403] What can you say in that connection?

Mr. LaFollette: I did not get the Exhibit number.

Dr. Kubuschok: Exhibit 346.

Defendant Schlegelberger: I have described how great the pressure on the part of Himmler and Bormann had been. We had just succeeded in calming these parties down. They had had quite different ideas of the practical application, but now Freisler again piped up. He complained that in past cases the old decree was still applicable. In order to prevent a renewed debate about the competency of the police, that request for retroactivity was granted. Besides, that decree concerning retroactivity had a consequence which the Party officials had not taken into account, most probably, because now, on these many pending cases against people who had been found to have arms, not the old decree but the new decree had to be applied which also gave the possibility of a penalty of 3 months’ prison term instead of the death sentence, which was mandatory under the old decree.

Q. The prosecution charges you with having introduced or contributed toward introducing the Standgerichte—the civilian courts martial—in the Incorporated Eastern Territories. Document NG-136, Prosecution Exhibit 345[404] is in point. What can you say in that connection?

A. Apart from the general desire to turn over cases of Poles and Jews to the police, Himmler and Bormann, as it was said once, had a special preference and desire for the establishment of civilian courts martial. One could not quite bypass that desire in the decree concerning Poles and Jews, but it was possible to establish an obstacle. I did so, including the provision that civilian courts martial could only be established with the approval of the Minister of Justice and the Minister of the Interior. Greiser, with the support of Himmler, had recognized that that clause or that provision would make it impossible for them to have their wishes fulfilled.

Therefore, bypassing the Minister of Justice, they went directly to Hitler. Lammers, by order of Hitler, informed me that Hitler had decided that the demand for the establishment of civilian courts martial and the transfer of rightful pardon should be granted.

What I had always tried to achieve by various means had not been achieved; on the contrary, that which I had tried to avoid had come true. By the decision on the part of the Fuehrer, my hands were tied.

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CROSS-EXAMINATION

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Mr. LaFollette: Now I believe you testified on direct examination that you yourself had no anti-Semitic feelings as such against the Jews as a race; that also you sought justice rather than to classify people as groups. That, as I gather, was right?

Defendant Schlegelberger: Yes, that is correct.

Q. If then you extended the Nuernberg laws[405] by decree into the eastern territories, that would be a little inconsistent with your own feeling about the matter, would it not?

A. Certainly not.

Q. May I hand you a copy of an order of the 31 May 1941 which as I read it has the effect of extending those laws into the eastern territories. This order was signed by you. That is the prosecution’s document NG-1615, which we asked to have marked for identification as Prosecution Exhibit 521,[406] Your Honor.

If Your Honors please, if the Tribunal will permit me, I have had English copies of this and I thought they were here. I am advised that they are not in here now. I will furnish them. May I proceed and then furnish them to the Tribunal?

Have you examined that exhibit, Doctor?

A. Yes.

Q. It is signed by you as Acting Reich Minister of Justice, Martin Bormann, and Dr. Stuckart. Is that correct?

A. Yes. There are two decrees on the same day.

Q. Yes. Article 3 provides the Act for the Protection of German Blood and Honor of 15 September 1935 shall be applicable in the annexed eastern territories. That is what is known as the Nuernberg law, is it not?

A. Yes.

Q. That was applied to the eastern territories?

A. In regard to this decree, I would like to say something, if I may.

Q. Surely.

A. These two decrees of 31 May 1941; the first one is an order introducing it; and the second one is the executive order of the Law for the Protection of German Blood and Honor. They have to be looked at together. As far as the basic question of the introduction of that law is concerned, the prosecutor has already spoken about my personal feelings. I shall leave them out of consideration for the moment. In regard to the question as to whether the Nuernberg laws were supposed to be introduced, the following were the decisive legal sources:

First, here too the directives of policy which Hitler had issued; secondly, the political responsibility of the Ministry of the Interior, as the central office for questions regarding the eastern territories, and the leader of the Party Chancellery.

The Ministry of Justice in regard to these laws participated only because the so-called law for the Protection of German Blood and Honor, by which Minister Guertner was completely surprised at the time, contained a penal regulation. If now, in accordance with the political directives, one had to introduce this decree, the penal regulation, of course, had to be introduced too, and from that resulted, of necessity, the signature. Moreover, from the connection of these two decrees, it is apparent without any doubt that the decrees do not apply to Poles, either Jews or non-Jews, but only to German citizens, and that they had to comply is obvious.

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EXTRACTS FROM THE TESTIMONY OF DEFENDANT KLEMM[407]

DIRECT EXAMINATION

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Dr. Schilf (counsel for defendant Klemm): We come now to the third phase of your activity, namely, your activity in the Party Chancellery in Munich.[408] I ask you, first of all, how did it happen that you came into the Party Chancellery at all? Please also tell the exact dates to the Tribunal first.

Defendant Klemm: I began my activities in Munich on 17 March 1941. At that time the Party Chancellery did not exist at all. At that time there was only the staff of the Deputy of the Fuehrer, and that was Reich Minister Hess. Reichsleiter Bormann who had the position of chief of staff was not in Munich at all, but since the beginning of the war, in the Fuehrer Headquarters in the immediate proximity of the Fuehrer. That remained the same way during the entire course of the war. From the Party Chancellery I knew the chief of Department III, that is Under Secretary Klopfer. I have known him since 1924 or 1925; that is, from my student days. We had not seen each other at all for 1 or 2 years and had not written to each other. We met by chance in Berlin in January 1941 in front of the Reich Chancellery, on the occasion of the funeral of the Reich Minister of Justice Guertner. I had come for this funeral from The Hague and Klopfer happened to be in Berlin. At that time Klopfer had just been given Department III in the staff of the Deputy of the Fuehrer, and he asked me whether I would like to work in his department, and to take over the group in charge of the administration of justice. That group consisted at that time of two or three people, and there was no group leader because he was employed in other matters.

Q. I believe that is sufficient to describe the cause—

A. I said at the time to Klopfer that I liked it very much at The Hague; that I had an independent position there. I was able to work independently, but during the war things were not done in accordance with the personal wishes of a person; that I would work wherever I was assigned to work. I never heard anything about it again until one day Seyss-Inquart called me to him and told me that he had had a lengthy correspondence with the Party Chancellery, that the Chancellery had asked for me, that he had fought against this, but in the end had to give in after all. And he had agreed to the chief of staff of the Deputy of the Fuehrer to put me at his disposal, and therefore, he instructed me to start my service in Munich 4 days or a week later. That is how I entered the staff of the Deputy of the Fuehrer at the time.

Q. Before we now turn to your activities in detail in the Party Chancellery, it seems to be necessary to tell the Tribunal the most important facts about the organizational structure of the Party Chancellery or the staff of the Deputy of the Fuehrer. You know that the Party Chancellery has a bad reputation. We want to tell the Tribunal first the outside organizational structure.

A. The staff of the Deputy of the Fuehrer had that name until the middle of May 1941, until the time when Reich Minister Hess—that is the Deputy of the Fuehrer—secretly flew to England.[409] At that time the staff was transformed into the Party Chancellery, and for the sake of simplicity I shall only use the name “Party Chancellery” from now on.

The Party Chancellery was an organization with, in my estimation, from 750 to 1,000 persons. There was one office in Munich and one in Berlin. The Party Chancellery was divided into three divisions, and these divisions were again subdivided into groups:

Division I, which is of no interest here, was in charge of management, building, and maintenance; and in that division the personnel of the Party Chancellery itself was administered. Furthermore, the registry was there and the telegraph and teletype system.

The nucleus of the Party Chancellery as a Party office was Division II, the Party political division. Here was the actual leadership of the Party, that is, the NSDAP, and here was the direct channel to the Gaue, the Kreise, and the local groups. A certain Friedrichs was in charge of this division.

Division III was the State or constitutional division as it was called. Under Secretary Dr. Klopfer was in charge of it. Here everything was dealt with which had to do with the State and the State functions of the Party Chancellery, while, as I have already stated, purely Party matters were dealt with in Division II.

Q. Would you please explain to the Tribunal the contrast between this office, the Party Chancellery, and the purely Party offices of the NSDAP?

A. In addition to the Party Chancellery, the Party had different offices on the level of the Reich leadership, for instance, to cite examples, the Reich Legal Office, the Office for Agricultural Policy, and the Office for Public Welfare. Thus, there were a number of different agencies. Party jurisdiction went through up to the supreme Party court. It also was divided into Gau and Kreis courts. In addition to that there were also, of course, some other Reich offices, such as the office for Reich propaganda matters and Reich organizational direction, and so on.

Within the Party Chancellery, in addition to these three divisions, there was also the so-called Reichsleiter Bureau, Reich Leader Office. That was, so to speak, the staff formerly closest around Reich Minister Hess and later on around Reichsleiter Bormann. This Reich Leader Office Bureau, which at times had up to three jurists on its staff, met partly in Munich and partly in Berlin, in the office there, and partly at the Fuehrer Headquarters immediately with Bormann.

Q. You spoke of Division III as the State or constitutional division. I ask you whether it was anchored on a legal basis.

A. If I speak of a state or constitutional division, I give it this designation because of the nature of the work of that division. Division III was, so to speak, the counterpart of the State organization in the Party sector. Division III was divided into seven groups. I shall describe this organization somewhat later.

By virtue of the “law to secure the unity of Party and State,”[410] the Deputy of the Fuehrer had been made a Reich Minister. Supplementary decrees, and orders laid down that the Deputy of the Fuehrer, had to participate in the making of national laws and ordinances, by having to approve the drafts of such decrees. This right was then transferred to the leader of the Party Chancellery, and in a more stringent form—as the witness Schlegelberger has already testified—quite clearly in a circular, or perhaps in an ordinance it was repeatedly stated that the leader of the Party Chancellery always had the position of a participating minister. In the same way as in the purely legislative field, the Deputy of the Fuehrer entered into personnel matters of the government. No higher official could be employed or promoted if this measure in the State sector was not approved by the Deputy of the Fuehrer and later by the leader of the Party Chancellery.

In order to fulfill these State and constitutional functions, Division III had been formed in the Party Chancellery, or rather earlier, in the staff of the Deputy of the Fuehrer. As I have already stated, it consisted of seven groups:

Group III-A, above all, dealt with the sphere of the Reich Ministry of the Interior and questions of nationality [Volkstum]. During the last period of my time in Munich, the witness Anker, who was examined here as a witness for the prosecution, was in charge of Group III.

In Group III-B, all economic matters were dealt with: economics, food, traffic, mails, and armaments.

Group III-C, the group of which I was in charge, dealt with laws and orders as far as they had been issued by the Ministry of Justice, and with questions of Party law.

Group III-D worked on educational and ecclesiastical questions, as well as matters of the Foreign Office.

Group III-E dealt with financial questions, and Group III-P (Paula) dealt with personnel matters; that is, all State personnel matters, without consideration of the fact as to whether they originated from the judiciary, the administration, finance, or anywhere else.

Then there was a group, III-S, which had special tasks in the cultural field.

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Q. Witness, you have now listed the individual groups, seven, as you stated. I now ask you to make a statement as to how the individual groups of the Party Chancellery were in contact with each other or how they worked together.

A. In my description I omit Division I, because it only dealt with technical matters of the management of the office, administrative details within the Party Chancellery. I can limit myself to the relationship of Division II, that is the purely Party political division, and Division III. These two divisions worked not with each other but against each other. Already this structure was quite arbitrary and unorganized. For example there were fields of work which had the same name in both divisions. In the course of time Division II arrogated this to itself. This battle between the two divisions was not based only on purely factual reasons in the fields of work but also had other deeper reasons. In Division III officials were working who had almost exclusively been detailed by their ministries for such work. In Division II only political leaders were working whole time who, for the most part, looked down upon the jurists with contempt. The word “jurist” was a kind of epithet, and they saw in the people of Division III only civil servants and deputies of the ministries. They did not concede that we did any political work at all, and especially not work of a party political nature. They did not acknowledge us as political leaders at all. We in Division III were only a necessary evil in the Party Chancellery; that is how they saw things, because without the experts they could not get along. This disrespect—I cannot call it anything else—this disrespect on the part of Division II was especially strengthened by the attitude of Bormann toward Division III. He had approximately the same attitude. The result was that between Divisions II and III there was a constant malicious fight for competency. Division II constantly tried to arrogate to itself matters which could have something remotely to do with Party matters. These attempts took place also when State matters were predominantly or exclusively concerned; that is, if the effects would take place in the State sector. This situation was favored by the unbelievable conditions that existed in the registry. This registry had been built up by laymen. In 1933 Germany had several million unemployed, and an effort was made to find a place for these people and again give them an opportunity to make a living. The result was that people were put in such positions only to find a place for them, people who had no idea about an organizational structure. In this registry, former streetcar conductors and violinists were employed, people who knew nothing about it. Therefore, the entries were constantly directed to wrong places and then the other division did not let them go out. Whether a letter went to Division II, or Division III, or directly to Bormann was in many cases just a question of luck.

Q. I wanted to ask you also, in Division III was there also a financially worse position compared with the people in Division II?

A. We were paid the same way as we were paid when we were in the employ of the State, while the political leaders, the Main Office political leaders, had their own salary scale; and I do not want to repeat here; I can refer to what the witness Anker stated who explained that a political leader of Division II in the same position as Anker got about double the amount of salary than an official.

Q. I want to demonstrate to the Tribunal the borderline of competency between Divisions II and III. I have here a document which the prosecution believed they could bring into some kind of connection with your case. It is Document NG-364, Prosecution Exhibit 108.[411] This is the infamous letter about the lynching of Allied airmen who had bailed out. The letterhead is the NSDAP, Party Chancellery. Further, the leader of the Party Chancellery and the place from which it was sent is the Fuehrer Headquarters. The date is 30 May 1944.

A. Even though this is a circular from the Party Chancellery at a time at which I had been out of the Party Chancellery already for 5 months, I do know that such circular letters in principle were not submitted by Division II to Division III when they were in a draft form or for cooperation, even if the police, the Wehrmacht, and the administration of justice and their spheres of work were discussed in it.

Q. The letter is signed by Bormann. In the same document, that is Exhibit 108, there is contained another letter which also has the date 30 May 1944. It is addressed to all Gau leaders and Kreis leaders, and refers to Bormann’s circular letter. It is signed by Friedrichs. Is Friedrichs the chief?

A. Friedrichs is the chief of Department II.

Q. Before, when you were speaking about the registry and the delivery of letters, you mentioned that many letters went directly to Bormann, to the Fuehrer headquarters. Thus, these letters did not go to Munich to the divisions that had been established there. Was there any standard in regard to the distribution of these letters, to whom they were to be sent?

A. If personal letters to Bormann in his position as Reichsleiter or as secretary of the Fuehrer were received by a minister or a Reichsleiter or a Gauleiter or any other prominent person in the service of the State or the Party, these letters always went first to Bormann in the Fuehrer Headquarters. Other letters went quite frequently first to Bormann. It depended entirely on who of the people I described before, who did not have the requisite training at the registry, and the mail got such a letter into his hands and how he forwarded it. Of course, efforts were made to make as few mistakes as possible which would arouse Bormann. The result was that as much as possible was sent to Bormann so that the reproach could not be made that he had been skipped.

Q. Perhaps we can clarify this by means of an example. The prosecution introduced Document NG-558, Prosecution Exhibit 143.[412] This is a personal letter which Thierack wrote to Bormann, dated 13 October 1942. In this letter the information is passed on that in the extermination of Jews and Poles the administration of justice wanted to give a helping hand. In the form in which it is submitted, this letter is addressed personally by Thierack to Bormann. I am asking you whether this letter went via your Group III-C, that is the legal division, or whether Bormann later sent it to your legal division and thus informed you about it?

A. Whether this letter was sent to Bormann too, by Thierack, I don’t know. It did not come to Munich to Group III-C. I personally saw this letter for the first time here when the document was submitted.

Q. We have another document here, that is NG-280, Prosecution Exhibit 70.[413] It is a letter which Lammers, who was then Chief of the Reich Chancellery, sent to Bormann. It is a complaint about an inadequate sentence regarding a Pole. This document contains several letters. We are here concerned with the third letter with the address: “To Reichsleiter Bormann.” I ask you to also make a statement in regard to this whether the legal group or you personally had this letter, as shown to you, put at your disposal.

A. This letter came to Bormann personally, and in the same way as the preceding letter from Lammers to Bormann which was written by him personally. Group III-C, Bormann-Lammers, was not informed about this correspondence. I have to add something here. Bormann had, after all, two functions. He was leader of the Party Chancellery and he was secretary to the Fuehrer. He stayed almost exclusively in the Fuehrer Headquarters. It was often difficult to find out whether Bormann acted as leader of the Party Chancellery or as secretary of the Fuehrer. In a case like the one here, Exhibit 70, certainly the Fuehrer exercised criticism and to that extent Bormann then acted as the Fuehrer’s secretary. He then referred the matter to the State sector via Lammers. In addition, an exterior circumstance must be considered between the Fuehrer Headquarters and the Party Chancellery in Munich; there were thousands of kilometers. For some time the Fuehrer headquarters was in Vinnitsa in the Ukraine. In the immediate proximity of the Fuehrer Headquarters were the field headquarters of Lammers, that is, of the Reich Chancellery. For purely technical reasons the mail went immediately back and forth between the Fuehrer Headquarters and Lammers’ field headquarters.

Q. Another interim question, Mr. Klemm. You characterized Bormann in two capacities; one, as leader of the Party Chancellery, and secondly, as secretary of the Fuehrer. This letter which I am just showing to you, however, contains the designation Reichsleiter Bormann. Was that a third capacity in which Bormann worked?

A. In contrast to other Reichsleiters, as far as I know, Bormann became Reichsleiter, more or less, in title only. Goebbels, for example, was a Reichsleiter too, because he was in charge of the Reich Propaganda Office. On top of that, he was also Reichsleiter Goebbels, the Gau Leader of Berlin. At the very moment in which Bormann became leader of the Party Chancellery and in addition secretary of the Fuehrer, the concept Reichsleiter did not signify a special office or a special function any more.

Q. That is enough. Since you have described the geographical and technical conditions in which the correspondence went as a rule, I now want to ask you in principle, did you at all receive information about that correspondence which went to Bormann to the Fuehrer Headquarters or which went from Bormann from the Fuehrer Headquarters or which went from Bormann from the Fuehrer Headquarters to other State offices or Party functionaries?

A. That depended. There were several possibilities. Either Bormann answered such letters immediately himself, or those parts of the Reich leader’s office which were also in the Fuehrer Headquarters dealt with them. I have already mentioned that sometimes up to three jurists belonged to the Reich leader office who advised Bormann.

A certain proof of the fact that Bormann dealt with a matter himself is the initials “Bo.” Very frequently we were not informed about such matters, because often they were put in the files of the secretary of the Fuehrer which did not concern us in the Party Chancellery after all.

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Q. Mr. Klemm, you spoke about several possibilities concerning Bormann receiving letters or sending letters. You said it all depended on the circumstances. I now ask you to explain to the Tribunal further what additional possibilities existed in order to clarify whether you were informed about any measures taken by Bormann or not.

A. The second possibility was that Bormann wrote his decision or his opinion on the margin of the letter and then gave it to the Referent in the Party Chancellery and left it up to him to draft the answer in accordance with the decision he had written in the margin. Whether the answer to the letter then formulated was signed by Bormann himself, or whether the Referent, his group leader, or the division chief signed it, depended in each case on who signed the first letter.

Q. The documents which I just mentioned were all brought into close connection with your person by the prosecution, apparently solely because the Party Chancellery is mentioned on these documents. I now come to Document NG-412, Prosecution Exhibit 77.[414] On this, there is your name. The connection with your person is very clear here. It concerns an approval that you gave to a draft of a law which the Reich Ministry of Justice had drafted on order of the Party Chancellery. The contents were retroactive application of regulations concerning treason. I would like to ask you on the basis of what you explained, was this approval given on your own decision or on Bormann’s instructions?

A. I did not give this approval by my own decision. In the case of drafts of laws in particular, Bormann always reserved the right to make the decision for himself. In this case the letter concerned, which the Ministry of Justice had, among others, probably also addressed to the leader of the Party Chancellery, was returned from the Fuehrer Headquarters. Probably on the margin it said “approved,” or “yes,” or “in accordance,” those were the words which Bormann used; and since in this letter of the Ministry of Justice a wish of the Fuehrer was referred to which he had expressed already before in discussions, it was quite clear for Bormann that he would agree, and in such a case I could then sign.

Q. This letter of the Party Chancellery is dated 18 June 1942 and also has the file number III-C; that evidently was issued by the legal group. I would like to ask you now to describe somewhat more in detail the sphere of the task of the legal group.

[Recess]

Q. We discussed Exhibit 77, that was the approval of the Party Chancellery to a draft or law which was prepared by the Ministry of Justice. I had asked you what matters in the legal group of the Party Chancellery were dealt with by you in addition?

A. I want to summarize the tasks of the legal group briefly. First it had to deal with laws and drafts and decrees of the Reich Ministry of Justice, unless for reasons of their subject, they were dealt with by another group, because that group appeared to be competent. Secondly, penal matters based on the law on insidious acts, as far as on the basis of legal provisions the approval of the chief of the Party Chancellery was required for the prosecution. Thirdly, complaints from Party offices or individuals against decisions by the courts. Fourth, complaints from the administration of justice against interference by Party offices into pending trials. Fifth, to observe especially civil and penal cases which concerned the Party. Sixth, matters of legal reform, and seventh, expert opinions in the field of the Party law.

Q. As for the first group, approval of laws and drafts, was that approval of the Party Chancellery for drafts of law based on a legal foundation?

A. I have already made statements concerning that question when I explained why there was a Department III, the so-called state law and constitutional law department in the Party Chancellery. The chief of the Party Chancellery, on the basis of certain legal provisions in the case of any law or draft or any decree was a minister who had to participate in its drafting, that is to say, he had the same position as a minister participating in legislation.

Q. In discussing the first part of your activities you made the reservation that the legal group in the Party Chancellery dealt only with those drafts which for reasons of their subject did not belong within the competency of another group. Would you please elucidate to the Tribunal what you mean by that?

A. First I have to make a more general reservation. It was not the task of individual groups of Department III or of Department III itself to display any political activity. The Party political elements connected with a problem were to be dealt with by the political offices of the Party. I had listed before the Reich Legal Office, the Office for Agrarian Policy, the Office for Public Health and others. These offices within the Party developed their policies through the Reichsleiters who were in charge of these offices, and did that directly with the Fuehrer. The groups of Department III, and above all not the Legal Group, could not deal with the individually specialized matters to the extent that it would have been necessary. I have already explained that Group III-C comprised four to six officers. That group was balanced in the Ministry of Justice by well over 200 experts. Our tasks—and above all because each individual in that group considered himself a representative of the thought of the Ministry of Justice,—were to prevent difficulties which might arise by some legal arrangement between the Party and the offices of the administration of justice. For instance, in Group III-C, we always were very skeptical to any general clauses which were contained in a draft and laws because such general clauses are the pets of the layman, and he sticks to them because that affords him the opportunity to criticize. That arrangement which was as such provided by law that the chief of the Party Secretariat always had the capacity of a participating minister, was not agreed to by various sectors of the administration of the State, and thus, for instance, Goering in his various positions which he held at the same time, as Minister for Aviation, as Plenipotentiary of the Four Year Plan, and as chairman of the Ministerial Council for the Defense of the Reich, never stuck to it, and never submitted any drafts. Likewise, the High Command of the Armed Forces never submitted the drafts of laws as far as they concerned the administration of justice, penal regulations, et cetera, to the Party Chancellery. The individual group, however, the legal group could not independently deal with a draft, if problems were dealt with in that draft which did not immediately concern the legal group but in their essence concerned other ministries, for instance, all questions of nationality, were dealt within Group III-A. For instance questions of Poles and Jews, Group III-C, to cite another example, in the field of law concerning hereditary estates, could not decide independently. That was claimed by Group III-B, which was in charge of questions of food, the Food Ministry, to which the hereditary estate court belonged also. I believe these examples should be sufficient.

Q. You had set forth that the various subgroups of III were offices corresponding to the institutions of the State, that you would consider the Ministry of the Interior as analogous to Group III-A. I ask you now since you mention Poles and Jews, the problems of which were to be dealt with by III-A, whether the purpose for that was that as far as the organization of the State was concerned, the Ministry of the Interior took a leading part in dealing with these questions?

A. Group III-A had dealt with these problems because it was the equivalent of the Ministry of the Interior. It was dealt with there only and if on the one side the Ministry of the Interior took the leading part, then Group III-C had nothing to do with those matters at all.

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Q. Then, since you worked in the Party Chancellery, Document NG-151, Prosecution Exhibit 204[415] was submitted in connection with you. It is a proposal on the part of the Reich Minister of Justice of 3 August 1942, with the designation “Limitation of Legal Remedies in Penal Matters for Jews.” On page 108 of the German text, a letter is submitted which has the signature of Bormann. Next to Bormann’s signature there is also the file note “III-C,” that is to say, the symbol of the Legal Group [in the Party Chancellery].

I ask you to comment on that and to tell us whether you or your Legal Group had anything to do with that matter.

A. To answer this intelligently, I have to refer to the entire document submitted by the prosecution. The document comprises 25 pages, and that letter from Bormann is put at the end. The entire procedure, however, can be understood only if one puts these various documents in the correct chronological order, for only then can one see how this entire development can be subdivided into three phases.

On 3 August 1942, the Ministry of Justice distributes its first draft, which is draft number 1. The letter of 13 August 1942 shows the approval of the Reich Ministry of the Interior, with supplementary suggestions. In the meantime, however, the Ministry for Propaganda quite apparently, although there is nothing contained in this file about that, has made counterproposals and distributed those to all offices concerned. That can be concluded from the fact that on 13 August—that is to say, on the same day when the Ministry of the Interior first approved proposal number 1 with certain supplementary requests—on the very same day, the Ministry of Justice distributed suggestions for draft number 2, at the same time referring to suggestions made by the Ministry of Propaganda. That draft number 2 was approved on 20 August 1942 by the Food Ministry, which also stated requests for supplementation in its field, that is, in the field of civil administrative law. Then, on 9 September 1942, the chief of the Party Chancellery states his approval, and in that letter also the request is expressed that the suggested draft concerning a restriction of legal remedies for Jews should be supplemented.

As for the second phase, dealing with draft number 2, there are two events to be noted—one, a certain activity of the Reich Chancellery, that is to say Lammers, who suggests to the General Plenipotentiary for the Administration of the Reich, that is, the Reich Minister of the Interior, that he should see to it that these suggestions are adjusted to meet the requirements and then submitted.

And the second is a letter from the Reich Leader SS of 25 August 1942, who suggests a conference regarding draft number 2. On 10 September 1942, the High Command of the Wehrmacht also states its approval, and that second phase of developments ends with the result that the leading part is transferred from the Ministry of Justice to the Ministry of the Interior. The final conclusion of that phase is the letter from the Plenipotentiary for the Administration of the Reich, that is to say, the Ministry of the Interior to the participating supreme offices of the Reich containing draft number 3. Now the third and last phase of this development starts, and the procedure as submitted in documentary form by the prosecution for more than half a year does not produce any results as far as matters developed. In the documents submitted by the prosecution the only further development is that on 3 April 1943 the Minister of the Interior writes to the Reich Chancellery, that is to say, to Lammers and encloses a letter by Kaltenbrunner from the police of 8 March 1943 where the demand is made that the Jews should be completely removed from the administration of justice. These documents then contain only two further notations of the Reich Chancellery of 6 April 1943 and of 21 April 1943. The first notation deals with a conference between the Under Secretary Kritzinger on the part of Lammers, Reich Chancellery, Stuckart on the part of the Ministry of the Interior, and Klopfer for the Party Chancellery, the Party Secretariat. And the last notice of 21 April refers to a conference of various under secretaries from the Reich Chancellery, Party Secretariat, Ministry of the Interior, Ministry of Justice, and Kaltenbrunner on the part of the police. The result of that conference is what we designate as the 13th decree amending the Reich Citizen Law. The Party Chancellery letter from 9 September 1942 does only refer to draft number 2 of the Ministry of Justice, that is the draft of 13 August 1942. The problem of removing the Jews entirely from the administration of justice and to declare them incapable of inheriting property, that problem was not all under discussion at the time when that letter was written, and the suggestions made in that letter do not represent any change against the fundamental character of that draft. They supplement the draft only to the legal systematic side. In as far as the Party Chancellery suggests that legal remedies should be included, they are suggestions of a minor weight compared to those that are already planned in the draft. According to the draft, limitations were provided to appeals and revision, that is, matters which are directed to the next higher resort. Whereas in the suggestion for supplementation made by the Party Chancellery legal remedies are referred to which are normally directed to the same court in the form of a reminder or a complaint. The next suggestion to limit the right of challenging a judge is the same provision which is also part of the IMT charter. This letter of 9 September 1942 I did not draft. Besides since it was issued more than 1 month after the letter of 13 August, other offices must have participated. Who it was in Group III-C who drafted that letter and who was the referent dealing with the matter I can no longer tell. I cannot even recall ever having seen that letter such as Bormann signed it. It is quite possible that I was away on a duty trip and that my deputy signed it for me.

Q. I believe, Mr. Klemm, that that is sufficient.

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Q. Then, concerning Poles, Jews, and members of the Protectorate, Document 664-PS, Prosecution Exhibit 348,[416] was submitted, that is a circular letter from Himmler with the classification of secret, and was sent to all Reich authorities. Your initial is on that letter because it was received in the Ministry and apparently came to your attention. In this letter it is stated that posters such as “no Jews permitted to enter public places and stores” should disappear. It was no longer necessary to show such practice to the public because the people concerned by evacuating and isolating them were no longer there. I ask you, did that lead you to the conclusion that the Jews were to be exterminated or already, at the time of this circular, had been exterminated?

A. I would never have gotten a thought of that kind. I know nothing about the places in the East. I knew that Jews lived in a city for themselves in Theresienstadt near Leitmeritz. On the contrary, I remember having seen series of pictures in magazines, I believe pictures from Theresienstadt were shown of the Jewish mayor, of the Jewish police, also of the baths and restaurants, and similar things. Also, I believe from Warsaw, such pictures were shown in German illustrated magazines. One could not gather any more from that circular letter than that or conceive the thought that it had anything to do with the extermination or anything similar to it.

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Q. In addition, Document NG-900, Prosecution Exhibit 453,[417] was submitted against you. This concerns a document which treated so-called complaints of descent of Jews. The decisive question in this document is whether you, from the letter which is contained in this document, which was written by the chief of the SD and the Security Police, could gain the conviction that Jews should be exterminated. If you have the document in front of you—it consists of several letters—the first is of 3 May 1944, there the chief of the SD writes to the Reich Minister of Justice in this letter, and the subject is a request for information about reports regarding Jews. Please comment on this.

A. In regard to the first question I can only repeat what I have already stated in regard to Prosecution Exhibit 348. No such thought ever occurred to me. Moreover, I only saw the introductory letter of this document on which the Minister had written “V”—which meant “Vortragsanordnung,” schedule of report. With that, the matter was taken out of my sphere of activity.

EXTRACTS FROM THE TESTIMONY OF DEFENDANT ROTHAUG[418]

DIRECT EXAMINATION

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Dr. Koessl (counsel for defendant Rothaug): It has been asserted that you had coupled together the Katzenberger and Seiler proceedings in order to exclude the Seiler woman as a witness.[419] What was the situation there?

Defendant Rothaug: Under the German Code of Procedure, there are always as many penal proceedings pending as there are defendants. Under certain conditions, such penal proceedings can be tried together for the purpose of uniform trial and decision. That is what we call joinder of penal cases. That joinder may be decided by the court, concerning cases which are pending with it separately. But such joinder may be established by the prosecution itself by one combined indictment. That was what was done in the Katzenberger-Seiler case. The prosecution, by filing one indictment for both defendants, had already established the joinder prior to the files reaching the court. The joinder of the two cases was therefore neither due to a file prepared by me, nor to a file prepared by the court.

Q. Would it have been possible for the prosecutor to proceed differently?

A. Naturally. He could have filed separate indictments. The question was merely whether that would have been correct from the technical point of procedure.

Q. What are the legal provisions on which a joinder of penal cases is based at the Special Court?

A. A joinder is based on article XV, section 2 of the competency order.

Q. When do the conditions exist for a joinder, such as demanded by the law?

A. Such conditions can arise from all sorts of situations. They exist in particular if one offense developed from another offense, and if the judgment has to be based on the same facts. That was the case in the Katzenberger-Seiler affair, which we have been discussing.

Q. What was the reason for the prosecutor to connect the two cases?

A. Both cases, as is proved clearly by the opinion of the court, had to be decided on the basis of the same facts. Therefore, a joinder was altogether natural and corresponded to the customary treatment such as was applied in other cases as well.

Q. What was the legal nature of such joinder?

A. It was purely a measure of expediency.

Q. Is a defendant entitled to ask for not combining his case with that of another defendant because in the case of a joinder he loses evidence?

A. The defendant does not have such a claim. According to the general legal doctrine, which existed prior to 1933, a joinder is admissible even if, as a result of a joinder, one codefendant can no longer appear as a witness. But if it is decisive that the codefendant should appear as the witness, the two cases can be separated after all so as to have an opportunity to examine the codefendant as a witness. But that is left entirely to the discretion of the court, and the defendant has no claim to have that question decided in one definite way.

Q. When several penal cases are combined, does that mean that all possibility is excluded to examine one of the codefendants in the same proceedings as a witness? I would like you to supplement your previous answer and to tell us whether it is possible temporarily to separate proceedings.

A. Such temporary separation is allowed expressly by jurisdiction. Therefore, during one proceeding, temporarily a separation can be ordered. One codefendant can be examined as a witness, and after he has been examined the case can be recombined.

Q. Did anybody at any time—be it the prosecutor, the defense counsel, or the defendant—during the trial make a motion to separate proceedings?

A. Such a motion was not made either at the trial or outside of it by anybody. Not even the mere idea of doing that was ever mentioned, and the reason was that at that time nobody regarded the joinder of the two cases as a defect.

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Q. In the case under discussion, was it likely that the chances of the two defendants might be affected by joining their cases?

A. As I have stated before, the legal position of the defendants could not be affected, and their chances were not affected either. If one had thought that their chances might be affected, I think in that case the two defense counsel would have made a motion to have the two proceedings separated. If one wishes to judge the situation properly, one has to bear in mind the following: that is to say, one has to think of the situation such as it would have been if the Seiler woman had not been a codefendant but a witness. In that case, she would have made no different statements at the trial than she had made at her interrogation under oath before the investigating judge, for she made the same statements as a codefendant, and we had to discuss her statements under oath before the investigating judge from every point of view for the purpose of the verdict. What difference would there have been, as far as our judgment was concerned, if she had repeated the same statements at the trial in her capacity as a witness? The real problems of the proceedings would and could not have been affected in any way by that.

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Presiding Judge Brand: Were tickets issued for admission to the trial?

Defendant Rothaug: Yes, Your Honor.

Dr. Koessl: I shall come back to those tickets later. What importance had to be attributed to the fact that a trial was held in front of such a large public?

Defendant Rothaug: Under the German Code of Penal Procedure, the fact that the public is admitted to a trial constitutes one guaranty that the proceedings will be conducted in an orderly manner.

Q. Did Katzenberger have a defense counsel?

A. Yes, he had.

Q. Was that defense counsel a Jew?

A. Yes, he was.

Q. Did the Seiler woman have a defense counsel, too?

A. Yes, she had.

Q. What sort of a man was the defense counsel for Seiler? Was he a National Socialist, or what was he?

A. I knew him. He wasn’t a National Socialist for certain. My impression was that he was entirely uninterested in politics and devoted to his profession.

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Q. Now, we’re going to examine the statements by the witness Seiler. The statements by the witnesses Ferber, Seiler, and Dr. Baur[420] are criticizing your method of conducting the Katzenberger case.

According to the testimony of the witness Seiler, you addressed the audience and said—“The Jews are our misfortune. It is the fault of the Jews that this war happened. Those who have contact with the Jews will perish through them. Racial defilement is worse than murder, and poisons the blood for generations. It can only be atoned by exterminating the offender.” (Tr. p. 1053).

Did you make remarks of that kind, or of a similar nature, or what exactly did happen?

A. That expression—“The Jews are our misfortune” or “It is the fault of the Jews that the war happened,” or “Those who have contact with the Jews will perish through them”—those expressions are well known slogans from the Stuermer, which I think appeared in large letters in every issue of the Stuermer.

Presiding Judge Brand: Mr. Witness, the only question before you is whether you used, in substance, the language which was attributed to you. You may answer that question. We are not concerned with who else used the same language.

Defendant Rothaug: Neither on duty nor in my private life did I use such generalizations, but the facts which have been discussed here, and which were mentioned in that issue of the Stuermer, concerning all that I would like to give my view on one point. That is the question as to war guilt. I can remember more or less exactly—and that idea is also mentioned in the opinion of the judgment in the same way in which I expressed it at the trial. Naturally, it was not the purpose of the trial to prove that it was the fault of the Jews that war had broken out. The point was, however, this. As is known, both defendants tried to make the situations which incriminated them appear more harmless, as if their relations had been everyday matters. And in that connection, I remember that I put it to Katzenberger that, particularly here in Nuernberg, he must have known that such relations were particularly dangerous even if the relations had been harmless, because, ever since 1933, he had observed the developments, and then, finally, war had broken out and the Jews were held responsible for the war, and all these events should have caused him to be wise and to abandon relations which were bound to endanger him, even if those relations had been only harmless—and if they had been harmless it would, after all, have been easy to abandon them. That thought of which I made use by way of arguments, both at the trial and in my oral opinion, that thought appeared in the Stuermer. It said, if I remember correctly: “He also mentioned the fact that it was the fault of world Jewry that war had come.”[421]

Dr. Koessl: Now, it has been alleged that in other cases too, you addressed the audience. What were the speeches about? What was the purpose of those speeches?

Defendant Rothaug: I am charged with having addressed the audience, particularly in connection with the Katzenberger case. In addition to the generally acknowledged fact that, under the German Code of Penal Procedure, trials have to be held in public, there is also a fact that by the trial this general law consciousness should be deepened—

Presiding Judge Brand: We have extended beyond our time for the recess. We’ll take 15 minutes’ recess now.

[Recess]

Dr. Koessl: Witness, you came to the explanation of the connections where you have made the so-called speeches to the audience. Will you explain the purpose and the connections for making these so-called speeches?

Defendant Rothaug: I base myself on the fact that the reason for the trials being public according to the German rules of procedure was that the conscience of law should be strengthened and that the population should be educated in the meaning of the laws. Our sphere dealt with entirely new legislation, new in consideration of the basis on which it was founded and of its purposes; for that reason—and of course one has to consider that this new legislation provided severe and most severe consequences, and that makes it understandable why I—and that was with approval of all interested offices of the administration of justice—was of the position that it was necessary to bring as quickly and as effectively as possible this legislation before the population in order to warn them because that warning in a certain sense is a justification of the severe sentence, particularly the extent of the sentence; and that explains why I had the intention to conduct my trials before the public and as many people as possible and as broadly as possible. That also explains why it was not only my intention to describe the bare legal facts but the offenses regardless in what field they were committed and to explain them from the point of view of the doctrine of the State and from the points of view of the legal system and the political point of view. The guiding thought for me was that it was our duty, and at the same time, our justification before the public, to explain that the sentence pronounced in any individual case was the direct consequence of the legislation provided therefore. It has to be added that fundamentally according to German rules of procedure, the sentence can only be based on the entirety of the trial; that is to say, that all points of view which are concerned with the penalty or the extent of penalty have to be discussed in all details during the trial because that alone puts the defendant in a position to recognize the main points which may be directed against him; and I also want to emphasize that at no time were lectures made for their own purpose, but that such statements were made in connection with the testimony of the defendant or the witnesses at the time and at the place where it seemed proper.